Morning Hearing on 16 May 2012

Jack Straw MP gave a statement at this hearing

Hearing Transcript

(10.00 am) (Proceedings delayed) (10.12 am) MR JAY Sir, today's witness is Mr Straw, please. LORD JUSTICE LEVESON Thank you. MR JACK STRAW (sworn) Questions by MR JAY MR JAY Thank you, Mr Straw. Your full name, please?
A. John Whittaker Straw, but I'm commonly known as Jack.
Q. Thank you. Your witness statement is dated 30 April of this year. You've signed and dated it. Are you content to confirm its contents as true for the purposes of this Inquiry?
A. I am. LORD JUSTICE LEVESON Mr Straw, thank you very much for your witness statement and the obvious effort you've put into it and also for some of the annexes which were extremely prescient. Of all the witnesses who have appeared or who are to appear at this Inquiry, as I made clear in the declaration I made at the very beginning, I know Mr Straw the best, not merely because we knew each other many, many years ago, but because I worked quite closely with him in my capacity as senior presiding judge when he was the Lord Chancellor and Secretary of State for Justice. MR JAY Mr Straw, in terms of your career, the dates may be relevant for certain parts of your evidence, so I will set it out. You were Home Secretary 1997 to 2001, Foreign Secretary 2001 to 2006, Leader of the Commons 2006 to 2007, and then Lord Chancellor and Secretary of State for Justice 2007 to 2010; is that right?
A. Yes.
Q. General questions about engagement with the media, this is paragraph 9 of your statement and following, our page 02547. You speak of the general public interest in engagement between politicians and the media. May I ask you, please, to explain in general terms the risks as you see them, particularly paragraph 11?
A. Mr Jay, the risks are really getting too close to the press. We live in a democracy. A free press plays a critical role in our system of democracy, but and every politician wants to have the best relationship they can with the press because the press is the prism through which the work of politicians and other people in the public life is perceived, or the main prism. But if you get too close, your own position becomes compromised, more likely than compromising the position of the press, and can undermine your integrity.
Q. Thank you. We'll deal with that in some more detail in due course, but the steps you took to ameliorate those risks, paragraphs 14 to 17 of your statement, these are cautionary words of advice
A. Yes.
Q. you would give to others?
A. Yes.
Q. And which you sought to follow during your political career; is that right?
A. I did. I suppose I I learnt my trade in the school of hard knocks, but quite early on, and in that respect I was fortunate because the period I spent in the late 60s, early 70s, as president of the National Union of Students, when what student politicians were doing was very high profile, sort of front page stuff, taught me a lot about what to do in relation to the press and what not to do, and then, having spent 17 years in opposition, thinking about this a lot, I sort of came to these views over that period. I also saw the effect of on those colleagues and people on the opposition on the other side who'd got too close to the press because what it means is your share price goes up well beyond the normal share price for politicians of that party, but like any share prices that are overvalued, there's then a crash and those who are, as it were, the share and those who are puffing the share don't see that, but I think any sensible observer can see it. I just took the view I may not always have been perfect in following it that you have to take the rough with the smooth, so certainly, as the Today programme will tell you, my view was: go on and face the music, even if it was going to be really difficult. I was always clear that if I was asked to go to Parliament, I should do, and indeed plenty were the times when I was arguing with the Whip's office to let me go to Parliament rather than to hide, and ultimately, if you just are as straight as you could be, that would come through, even though you'd get an uncomfortable ride on the way.
Q. Can I ask you, please, the point you made about a rise in share price in opposition, that it's inevitable in opposition that politicians have got to cultivate journalists because that's the best way of getting their message across. So the share price rises, they then are in government and the position changes. How or what is the best way to manage that change, the expectations which arise on both sides, in your view?
A. Yes. I mean, the relationship between media and politicians is not symmetrical as between government and opposition. In opposition, what matters is what you are saying, and what you're saying you're going to do, but obviously you can't be tested in terms of your actions. Much press media reporting of politics is copy which is framed by reference to the government, and these days it's part of our culture, most of those stories are knocking stories in one way or another. So what you get is very close, sometimes cosy relationships being built up between particular journalists and particular opposition spokespeople, and it can become very, very close, sometimes incestuous. And we all had to try and do that. So when I was education spokesman between 1987 and 1992, there were education correspondents who I worked with. When I became home affairs correspondent home affairs spokesman between 1994 and 1997, again there were home affairs correspondents that you would work with and build up stories and enjoy the results. But that has to change when you go into government, and I think one of the reasons there was a bigger reason, but one of the reasons why collectively the Blair government was too close to some people in the press was because of our experience in opposition and we'd not stopped and thought: hang on, we can't continue to operate in that way in government.
Q. I will pick that point up a little bit later, Mr Straw. The general points you make in paragraphs 20 and 21, 02548, are points which we've heard from other witnesses, in particular the need to sensationalise, really.
A. Yes.
Q. Because the truth may be prosaic and boring, but if you add the spice of a personality clash or conflict, it becomes more interesting. This is paragraph 20.
A. Yes.
Q. And then the problems of print media in seminal decline, Mr Campbell spoke to those matters. Are there any points you would wish to elaborate?
A. Two sets of points. One is there wasn't ever a golden age of journalism, and indeed before television and radio got going, of course the newspapers were even more powerful than they are today, and part of the folk history of the Labour Party is still there. But certainly when I it is about the role the Daily Mail played in the defeat in the second election 1924 when they published this Zinoviev letter suggesting that the Labour Party had received Moscow gold, which subsequently, but a long time afterwards, turned out to be a complete forgery, and no question it assisted our defeat. LORD JUSTICE LEVESON You have a long memory, Mr Straw.
A. Not even I was there at the time, but my grandfather was and remembered it, and so I remember him telling me this with great bitterness, about how Labour had been deprived of the government only lasted eight months, in 1924. They were more powerful in one sense, hence Stanley Baldwin's complaint, but all the broadsheet papers and actually papers like the Daily Mail and the Daily Mirror used to report what was going on in Parliament as a public service, and that started to disappear, in fact I think coincidentally with the televising of Parliament. But as I submitted, sir, to the Inquiry, I got a young researcher who was working with me as an intern in 1993 to do a lot of work in a newspaper library in Colindale charting the decline of reporting, being pretty stable and then it shot down, and the effect of that, and it's led to contributed to ignorance by the public about what happens. I mean, just to give you an example, this is subject to correction, but the online editor of the Times, Mr Philip Webster he's been great man, been there forever he started work working in the press gallery of the House of Commons, and he's told me that at that time there were 12 people in the gallery, not the lobby, whose sole job was to produce the 7,000 words a day which reported what had happened in Parliament. So if you wanted to know what had happened in Parliament, as opposed to what the background stories were, where the fights were, that would be there. And that was also true when I went into the House in the late 70s, and that's gone and it's been replaced by this sort of personality conflict-based journalism. So if you're pursuing a policy which is consensual, which ought to be a good thing, the papers in their editorial columns will say why aren't you going for agreed policies with the opposition? Often you are, probably half the legislation that goes through is agreed, but nobody notices and that has a knock-on effect of not being examined. The second point I'd make, Mr Jay, is this, that although television and radio have become, and now the Internet, much more powerful and to some extent balance the print media, it is still the print media that sets the news values, and I was very struck that in Mr Adam Boulton's written evidence, paragraph 17, he brings that point out, that they set the news values and they set the news values for the broadcasters as much as they do for their own colleagues in the print media.
Q. Special advisers now, Mr Straw, paragraphs 27 and 28. When you were in high office over a 13-year period, presumably you had special advisers. Can you assist us, approximately how many?
A. Yes, I had any one time you were allowed two special advisers and I had one who was on the policy side and the other who dealt on the media side. And on the media side, I only had two fill that slot. One was a man called Ed Owen, who'd been with me in opposition in 1993 and stayed until the General Election in 2005, and then the second was a man called Mark Davies, who was with me from 2005 to 2010. Both were journalists, they came to the job as journalists, and their job was to have direct relations with the media but also to co-operate and work closely with the Civil Service press officers. Both were completely straight and are completely straight and I wouldn't have employed them for a second if they'd not been, and they had a good reputation with journalists for being straight and for I think for not being manipulative, and that's how I wanted it. I'm afraid my observation and bear in mind I was a special adviser in the 70s is that they're a very mixed bunch, special advisers, and to some extent they reflected the personality and quirks of their bosses, and some people in politics are obsessively conspiratorial and think that the only way you can make your way is by being involved in all kinds of conspiracies and stuff, and so you they employ special advisers who were similarly up to fancy tactics, which led to their boss's share price rising for a period, more than the generality, and then invariably the share price crashed and quite often the ministers themselves ended up having to resign. But this was a long learning process.
Q. The extent to which your media special advisers acted under your general direction, can you help us with that?
A. They acted under my complete direction, it wasn't general direction. I knew what they were doing. I knew in real time what they were doing. First of all, they were in and out of the office. They were effectively part of the private office. In each case they were on exactly the same floor, and so, for example, in the Foreign Office, there's one although it's an old building, one area which so they were just in/out(?) and the same is true in, say, the Ministry of Justice. I was thinking about this. If there had ever been a moment where they'd acted inappropriately, then somebody else in this very open environment I mean, ring of confidentiality, but very open environment itself, would have told me. The Private Secretary, the Permanent Secretary, a press officer. They just would have found out immediately.
Q. Okay. Aspects now, Mr Straw, of your own individual practice. This is paragraph 30 of your statement and following. Our page 02550. You explain in paragraph 30: "I have known a number of the senior journalists/editors for years, and we have each other's contact numbers. The political editors/senior correspondents would often call for a steer on issues how forthcoming I was would depend on a number of factors." One can understand the underlying reasons for that. Can I ask you about Mr Dacre, who you identify?
A. Yes.
Q. You've known him since university in the late 1960s, but since then, how frequently do you meet him?
A. Not that often. I mean, I but he as I say, it's a respectful acquaintanceship. I mean, it's not a friendship. It could have been a close friendship, but it isn't. That's just how it's been. I'd have to trawl through my diaries, but I guess I aside from when there was policy business to deal with, as there was towards the end of my period at the Ministry of Justice, I probably see him for lunch or so maybe once a year. I might bump into him in other environments. I mean, I could, Mr Jay, if you wish, trawl through my diaries and ask Mr Dacre to do the same, but I was president of the students' union at Leeds in my last year and I think he was very obviously a very talented young journalist when he arrived in Leeds and he became the editor of the Union News very quickly, so I think he was in his first year, but we rubbed along and as I say there was, I think, a position of kind of mutual respect there. As I said in my evidence, my relationship with him has been made more straightforward because his political views and mine and those of his newspaper are different. I mean, I've never ever held my breath that just because I knew Mr Dacre, somehow or other, in the editorials on election day, saying that people would be insane if they voted Labour, there would be a sort of codicil saying but it's okay in Blackburn. That doesn't happen, I've never expected it. So it's a clean relationship.
Q. I think your flavour of your evidence is that the exchanges between you are not frequent, or indeed perhaps any text messages, rarely spoke on the mobile telephone, is that it?
A. With Paul Dacre?
Q. Yes.
A. No, I don't think I've ever exchanged a text message with him. Sometimes I've in fact his email famously I don't think he does he's a bit like Mr Blair in this respect. I don't think he uses computers. So to when I wanted to send him something by email, I've sent him that to a PA in his office. I have his phone number on my system, but I can't remember, I don't think I've ever sent him a text.
Q. Did the relationship change at all when Mr Brown became Prime Minister, because, as we know, Mr Brown is much closer to Mr Dacre than was Mr Blair to Mr Dacre?
A. Yes, Mr Dacre it's for him to say, but I think you'll find that Mr Dacre was sceptical about Mr Blair in a way that well, he was less sceptical about Mr Brown. It did partly because Mr Brown, before he became leader, with a view to becoming leader, had had conversations with Mr Dacre about Mr Dacre heading up an inquiry into the 30-year rule. I meanwhile, that in a sense was a done deal as Mr Brown became Prime Minister, but I then took on the operational side of that inquiry. And of course subsequently there were a lot of conversations with Mr Dacre and other senior colleagues from the press about Section 55 of the Data Protection Act and the increase in sentences.
Q. We'll come to the detail of that. LORD JUSTICE LEVESON Just before you go on, can I go back to a phrase I rather like: "respectful acquaintanceship". Was that because you or he felt that your respective paths took you in different directions and therefore that was the best way, or was it just a coincidence and that's just how it went and you wouldn't have minded if it had been more? Do you understand the question I'm asking?
A. Yes, I do. There was no I don't think there was anything explicit. At university all of us you meet people and I say I was never close to him, it was a respectful relationship, nothing more. Our paths could have crossed more afterwards, but they didn't, and so I think there was quite a period when I was in London, and indeed working briefly at the bar, when I didn't have anything to do with him, so it could have developed. I think that it was completely unsaid, but I mean as far as I gather he's pretty private about his family life, we are about ours. We have never turned our houses into sort of salons for politicians, we liked almost all of our personal friends, our family friends are not politicians, or journalists for that matter, they're friends. So I have no idea who Mr Dacre's circle of friends are, but I suspect they're rather similar. LORD JUSTICE LEVESON I wasn't seeking to be personal, I was merely seeking to examine whether you'd taken a decision which, in the light of what you said, would be entirely understandable that, well, here was a guy I did get on with, oh, sure, I could try to get to know him, but actually, because I think there is an issue about closeness
A. I see, yes. LORD JUSTICE LEVESON then I won't. And if you did reach that conclusion, I'd be interested to know is this going back umpteen years, because it's very relevant to the issues that we've been talking about about the extent of closeness of relationships.
A. My instinct always was not to get too close, so I think although I think it was a rather inchoate view of mine at the time, that was my instinct, that you shouldn't get too close. And I was so for example, if I was getting worked over in the press, which happens from time to time if you're a minister or opposition politician, sometimes fairly, sometimes unfairly, my view always was not to try and phone up an editor and complain about it because I just thought it would make it worse and it would look pretty weak and with a bit of luck they'd think of something else to write about. You know, you might be lucky. Normally I was. But there was nothing much to do about it, and I might get the special adviser or the press officer to talk to the journalist concerned, but not to go bleating to the editor, because what's the point? Does that answer your question, sir? LORD JUSTICE LEVESON Yes. It's really the inchoate thinking.
A. Yes. LORD JUSTICE LEVESON Because you're talking now about over 30 years.
A. Yes. LORD JUSTICE LEVESON And one of the interesting issues for me is whether what everybody now concedes has become an overcosy relationship is recent or really endemic in the system, and from what you're saying, I'm getting: well, at least from my perspective it was never endemic because I, perhaps inchoately, perhaps subconsciously, always decided that that wasn't a sensible line.
A. Yes. I think, sir, that is true. Is it recent? No, it's not recent, and I mean it's as old as the popular papers. LORD JUSTICE LEVESON Well, one can go to Beaverbrook and Northcliffe
A. Beaverbrook, Hugh Cudlipp, if you think about the relationship between Hugh Cudlipp and the Labour governments. And when I worked for Barbara Castle, who'd been a journalist, and I think the best way of describing Mrs Castle for those who didn't know her was that she was very much the Labour equivalent of Margaret Thatcher. So she had very strong opinions about people, and she kept a list in her head of journalists she liked and was willing to talk to and journalists she detested. I remember there was one called Nora Beloff on the Observer and she used to spit about Nora Beloff, almost literally, and the Lobby, of course, in those days was very the press Lobby, with a capital L, was very tight, 60 journalists, sort of Freemasonry, so they it was even more incestuous than it is today. I'm not saying how I would have operated in that system, except I think that it's a wise politician who just keeps a bit of distance. MR JAY Thank you. Paragraph 34, Mr Straw. You look at the Sun and its particularly important role in the fortunes of the Labour Party. Can I ask you please to elaborate on what you mean halfway down where you say: "Mr Murdoch has played a power game with political leaders."
A. Yes. The political leanings of most newspapers in Britain are predictable, so the Daily Telegraph is going to be supporting the Conservative Party, the Daily Mirror is going to be supporting the Labour Party. From recollection, I think there are only two newspapers that are unpredictable. One is the Guardian and the other is the three of the four at News International papers. The Guardian normally supports the Labour Party, but except in elections where we really need them to support us, it supports the Liberal Democrats, so it did in 1983 and it did again in 2010. So it's sort of a fair weather friend. It won't support the Conservatives, but it's unpredictable about whether it will support the Labour Party. For the Murdoch papers, since Mr Murdoch purchased those papers, the Sunday Times has always supported the Conservatives and it did in 1997. The other but what I perceive of Mr Murdoch's approach, particularly with the Sun and the News of the World, was that he reckoned that his political influence would be greater if, as it were, his support was available in return for what he thought he could get out of it, and I don't mean some deal, because I've seen no evidence of a deal, but he thought there was something in it. Now, they might a benign view of this is that the people at News International took a very sorry, I was going people at News International like other newspaper executives were very concerned about where their readers were and they spotted between 1992 and 1997 their readers were going to support Labour so they followed them, but it's a more complicated set of relationships than that, and I think that the perception I've had was Mr Murdoch has enjoyed the fact that he has been willing to play with political leaders in a way that the senior executives of the other papers have not you know, have not, because their loyalty ultimately is predictable. I hope that explains what I meant there.
Q. There are three ways perhaps one can analyse power game. One is just a piece of enjoyment that doesn't lead anywhere. The third, and it's the most extreme, it's a game which is deadly serious because underneath it there's an express deal. And then there's something in between, but can I just understand this. You said in return for what he thought he would or could get out of it?
A. Yes.
Q. Can I ask you to explain what you mean by that?
A. I've never had this conversation with him in my life. I've obviously met him but I scarcely have had more than a paragraph of conversation with him ever. This is just my sense. He's very interested in power for its own sake, because you don't get to that position, running a huge international media empire, without being interested in power, and I think to help him consolidate his non-newspaper interests in this country, and I was struck when he was explaining that the print media titles contribute only 2 per cent or James Murdoch did, only contributed 2 per cent or some small percentage of the total revenues of the News Corp that there was a degree of disingenuity about the point that was being made, because the power that those print titles provide is much greater than 2 per cent of the total, certainly in the United Kingdom. It goes back to the point Mr Adam Boulton made, which is that the print media have the greatest influence of all over the news values and the headlines on all the other media and I mean I've assumed that Mr Murdoch reckoned that if his support for the winning party, which is basically what he's sought to do each time, was available, that would open more doors in government when it came to things like media regulation, licences, regulation of football and so on.
Q. So is this right, what you're giving us here is an analysis of what you believe his motivations to be, rather than perhaps direct evidence of anything he has told you or others may have
A. No, as I say, I've never had more than say a paragraph of conversation with Mr Murdoch in my life so I have no direct evidence. This is my surmise. But Mr Murdoch is a busy man, he's a very successful man, and like anybody else in a senior position like that he thinks about what he's doing and why he's doing it, and that's the conclusion I've drawn.
Q. Okay. In paragraph 35 you refer to the "power" of Mr Murdoch's papers. One might note that you prefer to use that word rather than Mr Campbell's "influence"?
A. Well, it was a I mean from a point of view of the yes. Certainly those on the receiving end, it felt like power, and, Mr Jay, it may be helpful just to provide a bit of explanation as to why people who were on the front bench in the Labour Party in the 1990s, and particularly had been through the experience of the 1992 election, believed that we had to get the papers on side. If I may, I've dug out of my files with me one example of this, which is the main story in the Sun newspaper on 1 April, just 1992, eight days before the 1992 election. The main story was this, and I'll put this in as evidence: "I'm all right Jack" and it was saying: "Shadow Education Minister lectures us on the scandal of private eduction from the luxury of his ?300,000 cottage, his ?200,000 townhouse and his ?40,000 flat." And I was branded a hypocrite for preaching socialism from the luxury of three homes. Well, it's true, my wife and I between us own three houses and that was perfectly public. Now, what the Sun was doing in the 1992 election was working over each senior member of the Labour front bench and this had an effect, and if you were on the receiving end of it, it felt like power. It had an effect in my constituency. I remember doing an open-air meeting that Wednesday and you could feel support falling away, and my majority scarcely moved, although it did not reflect the national swing. This was minor, but it had one consequence, let me just say, talking about power. Every burglar in West Oxfordshire knew that the one day of the year we were not going to be in our house in West Oxfordshire was the election night. We got burgled and a lot of property was stolen. I raised that subsequently with the Sun and they got the glazed eye look: that's just one of those things, you get burgled, tough. The more important point is that Mr Kinnock, for example, was mercilessly and unjustifiably treated by the Sun over quite a period. It did contribute to our defeat. I took that as power. And we were therefore, once Mr Blair had come into office in 1994, we all shared the same view, that if humanly possible, without completely compromising ourselves, we should do our best to get the papers on side. It was better than the alternative. This was because I'd been through 18 years of opposition.
Q. I'm sure there was no question of completely compromising yourselves. Some might ask: well, what about partially compromising yourselves?
A. Well, I thought you were going to ask that as I the words came out of my mouth. It's more complicated than that. I mean Mr Blair was very much in favour of the New Labour agenda, let me say so was I, in terms of, say, the crucial decision on that, which was to change clause 4. I mean, I published a pamphlet about that in 1993, and nothing whatever to do with the Sun or anybody else. In fact, I think they all regarded the pamphlet as rather boring. I don't think there was any compromise of our integrity. Some if you take the area that Mr Blair had been involved with between 1992 and 1994 and then I took over between 1994 and 1997, which was law and order and crime, there were people who were saying, our critics on the liberal left, they were saying we were only doing this because we wanted papers like the Sun and the News of the World on side. That wasn't true. I was doing it, Mr Blair was, because we believed in it. We were had been profoundly dissatisfied with the very soft approach which the Labour Party had taken on crime before that, which had lost support of an awful lot of our working class supporters.
Q. Further social contacts, paragraph 38, Mr Straw.
A. Yes.
Q. You say: "During my period as Justice Secretary I would often travel to London on a Monday morning from the West Oxfordshire station Charlbury. Mrs Rebekah Brooks used to use the same train. After a while, we made arrangements to meet up and sit together for the journey." But then you say, I paraphrase, this stopped some time in 2009 when she became chief executive. That, I think, was formally in September 2009. In general terms, were the discussions which you had with her on the train other than social or private?
A. No, they were not much of them were social or I mean, they were private in the sense that neither of us went out and wrote them up on a blog. They weren't social, they were political. So they were sort of we'd talk about what was in the papers, what was we'd gossip about personalities, that sort of thing. A lot of the time we'd get on with our work, she had work to do, I had work to do, so we weren't nattering the whole journey. I never put a figure to it but in any case, these are crowded trains, so there are all sorts of people around earwigging, so there was a kind of limit to what one was going to say either way, otherwise it would have appeared in somebody else's newspaper.
Q. Fair enough. And then you say, amongst many others, of course, you attended her wedding in June 2009?
A. Yes, I did, yes.
Q. Can I ask you a number of specific points which might arise out of relationships with News International? Was, as Mr Lance Price has said was the case, the Labour Party's policy on cross-media ownership quietly dropped within six months of the Hayman Island trip, which was in June or July 1995?
A. I don't know is the answer to that because I didn't have any direct involvement in media policy, so I no, I wish I had, but I hadn't, so I mean I simply I have no information on why it was dropped at all.
Q. Mr Dacre has claimed that Labour could not have committed British troops to war in Iraq without the implacable support of News International newspapers. Do you agree with that view?
A. No, I don't. I mean and let me say that since I was completely inserted and involved in the decision to commit troops in Iraq, I can't ever remember a conversation along the lines of Mr Dacre's, where we were discussing whether we went to war or not and said, well, we can or we will because the Sun newspaper or the Murdoch press is going to be on side. I mean, it would have been disgusting if that had been part of the conversation. This is about putting British troops in harm's way and bluntly was much, much more serious than that. So no is the answer.
Q. Of course you were Foreign Secretary at this time. We've heard evidence, somewhat unclear evidence, about three telephone calls, Mr Blair, Mr Murdoch, in March 2003. Are you able to throw any light on those?
A. I'm sorry Mr Jay, I'm not. I think I was vaguely aware that they'd taken place, but it's quite I think hard to get across to those who weren't involved the pace of events at this time. I mean, I at the beginning of March, on 5 or 6 March I went off to New York for what turned out to be the last of the series of Security Council meetings, and then after that I must have got back on the Saturday, I guess between then, which would have been 8 March, and the 17th, when the Cabinet made its decision to go to war, my whole time was spent trying to get support of the Security Council for a second resolution, and frankly I well, who Mr Blair was talking to on the telephone was neither here nor there. Unless it was about getting support for the second resolution. LORD JUSTICE LEVESON But how important was it politically to, as it were, get a newspaper on side, because the public had to be convinced?
A. It was certainly important, sir, to have the newspapers on side and my recollection is that the News International papers were not the only papers who were on side, and it is by any means yes, of course it's far better to have them on side than not have them on side so I'm not trivialising it but it was never part of any of the discussions I was involved in. It's worth bearing in mind that there was widespread support for military action. I know there was also widespread opposition for military action and the opinion was polarised, but what many people are now doing is looking at those events with the benefit of hindsight, including the failure to find any weapons of mass destruction, and the awful aftermath, the chaos of the aftermath after the fall of Saddam. But if you were looking forward, it was very different circumstances, and bear in mind that I mean the whole of the international community had said in resolution 40 and 41 that Saddam posed a threat to international peace and security, that 40 and 41 as far as I was concerned and the British government was concerned, that had authorised military action if there were a further material breach by Saddam, which we believed and still believe there was, so and there was a huge weight of international opinion as well as opinion here in favour of it. In Europe, half the Member States of the European Union were in favour of military action. A very considerable number of those put troops in. So this wasn't what is now presented as a sort of evil minority activity at all. There was a very large consensus behind it. It's also just worth sir, if I can just mention this, bearing in mind that the Conservative Party, not all of them but the Conservative Party front bench was strongly in support of military action as well and that was bound to affect the character of support from the newspapers, in practice. MR JAY Mr Straw, I move on to the topic of media influences on public policy. First of all, genesis of Section 12 of the Human Rights Act. We have the text of Section 12, which is really the end point in the process, under tab 6.
A. Do you want me to look at it?
Q. Please. You'll know this virtually off by heart.
A. I do know it virtually off by heart, but I'll try not to
Q. Everybody following this will understand the significance of Section 12. It is a procedural provision dealing only with the circumstances where the High Court is considering whether to grant any relief which might bear on the Article 10 right of freedom of expression.
A. Yes.
Q. There are two key points. The first key point is that the High Court won't grant relief unless satisfied that it's more likely than not that publication should not be allowed, which, to be clear, that sets a higher bar than the general law in relation to interim injunctions.
A. Yes.
Q. And then the second point is under subsection 4: "The court must have particular regard to the importance of the Convention right to freedom of expression, particularly in journalistic cases, and also will have regard to matters such as public interest, the extent to which it may become available to the public", and then importantly "any relevant privacy code."
A. Yes.
Q. And the privacy code would be capable of accommodating the PCC editors' code?
A. Indeed, sure, yes.
Q. So that's what Section 12 is about. You deal with this in your witness statement at paragraphs 100 to 111, Mr Straw.
A. Yes.
Q. Let's see if we can summarise it in this way, that there were two concerns which came from the press, but who was leading the press cause, as it were, was the then chair of the PCC, Lord Wakeham.
A. Yes.
Q. First of all there was a concern about a burgeoning or clandestine privacy law which the Human Rights Act in general might herald, or usher in, and secondly there were concerns about pre-action restraint, which is what Section 12 is about.
A. Yes.
Q. Could you tell us about how those concerns evolved and how you addressed them?
A. Yes, and Lord Wakeham himself in his written evidence gives a lot of sort of factual detail about this, but once the White Paper called "Rights brought home" I think it was called, but anyway, the White Paper was published and the bill obviously various interest groups weighed in to say they thought this bill as drafted might adversely affect them and one group was the churches, particularly the Roman Catholic church and the Anglican church were very concerned that it might affect them, so the result of those negotiations was what became Section 13; and the other was the press, and they raised these concerns through representations to originally to Lord Irvine who was handling the bill in the House of Lords and it started in the House of Lords, not in the House of Commons, and then Lord Wakeham raised them on the floor of the House and he said in his written statement, I think, that he did that not as a representative of the press but to effect his own opinions, but he happened to be chairman of the PCC, and I was very anxious to achieve a consensus on this legislation because I have a principle which is that major constitutional change should only go through if there is some kind of greater legitimacy, either through a consensus in Parliament or through a referendum, and the Conservatives were opposing the bill at second reading and I was anxious to see whether we could reach an accommodation so we could get their endorsement to it. And also I thought a part of what Lord Wakeham and the PCC were saying was reasonable, and if I may just refer you, Mr Jay, to paragraph 103, where I refer to a letter which Lord Wakeham wrote to Chris Smith, the Culture Secretary, on 12 January 1998, he said there are two central problems. He says one is the issue of prior restraint, I thought they had a point there, but Lord Wakeham went on to say there was a second issue, which he described as far more serious, which was whether the PCC should be a public authority within the terms of the bill. In facts the PCC was not a public authority within the terms of the bill, but what the PCC were trying to secure was a situation where the media were outwith the impact of the bill so you just drew a ring around them somehow and they be excluded from any adjudication on the conflict between Articles 8 and 10 or anything else. Now, that was just impossible to meet, and I had to explain that to them, and we didn't meet it. It's also simply incorrect for anyone now to say that nobody knew that a Human Rights Act would lead to a law of privacy. Of course they did. They said so. But as I brought out in my Gareth Williams lecture, we all knew it was going to do that. That was discussed endlessly in Parliament. But to be truthful the politicians thought they'd like to will the end of a law of privacy but hand the means to The Strand and the Law Lords because it's tricky, if you're a politician, to develop a law of privacy and we thought that their Lordships on the bench would do a better job, so it was really a set question of passing the parcel to them. Everybody knew what was happening.
Q. So the PCC wasn't listed as a public authority for the purposes of Section 6 but as a matter of ordinary principles of jurisprudence it would have been so deemed, and Mr Pannick(?) gave an opinion, I think, to that effect?
A. There was a great debate about whether in drafting the bill you had a list of public authorities or whether, as we as happened with the Freedom of Information Act, for example, there's they are schedules, either
Q. Yes?
A. It's a matter of certainty whether an authority's public or not, whereas in the Human Rights Act it's structured in a different way and although I haven't got Section 6 in front of me directly, there is reference to a definition of a public authority, but it's much broader than that, but of course the courts are public authorities and what the PCC had worked out was that since the courts were public authorities and would therefore have to as public authorities have to follow the obligations of the Human Rights Act and the convention articles, they would therefore reflect those in their judgments and therefore indirectly the PCC or its members or anybody else would be subject to the convention and that was what they were worried about.
Q. Yes, and the second point that the law of privacy would develop on a case-by-case basis once Articles 8 and 10, as it were, had been incorporated, that was a point which Lord Bingham made at the time in
A. Yes.
Q. 1998 and therefore it was
A. No, I and aside from the fact that it frankly suited the convenience of politicians on both sides to have the courts do this job, I also thought they'd do it the courts would make a better job of it because this it this balance to be able to achieve in respect of privacy is so tricky, because what as I said in my Gareth Williams lecture, defamation is easy enough in one sense because what you're dealing with is what isn't true. With privacy, what you are dealing with is whether something which is true should nonetheless be kept private, and that is very complicated, and I think the courts have done a good job in developing LORD JUSTICE LEVESON Of course, one of the consequences of that, possibly it's not relevant for this Inquiry but it's a point worth making, that the flak has been directed to the judiciary rather than to anybody else.
A. I accept that, sir, and in I also think and certainly in my Gareth Williams lecture that we do now need there is a need now for Parliament to amend the law so there is a tort of breach of privacy, which applies doesn't just apply to public authorities, applies to everybody, so I think it is time for Parliament to accept the responsibility we passed to the judiciary. MR JAY The immediate genesis to Section 12, if you look under tab 9 to the debate
A. I wonder if I could sorry, to reduce the bundle, I left some of these if I could ask somebody to just pass me the other tabs, would that be all right? LORD JUSTICE LEVESON Of course.
A. My researcher there can pass them to me. I made a very poor judgment that I'd never be asked about what was said in them. MR JAY This is the second reading of the bill in the Commons on 2 July 1998. It's an Internet printout from Hansard. It runs to 21 pages.
A. Anyway, if you just go on, I've no doubt I'll find it in due course. LORD JUSTICE LEVESON No, no, no, I'd rather you
A. I think I've still not got number 9. LORD JUSTICE LEVESON Let me give you mine.
A. I'm very sorry about this. LORD JUSTICE LEVESON No, no, don't worry.
A. I have 10, I have 3. Thank you. LORD JUSTICE LEVESON They're normally in order numerically.
A. Sir, what I did was LORD JUSTICE LEVESON It doesn't matter.
A. to reduce the bundle on the train, I thought I don't need those, but that was a very stupid thing to do and I'm very sorry. MR JAY You were debating what was then clause 13, which became Section 12, and on the second page of 21 at the top, you told the Commons: "As the Committee will know, there was concern in some sections of the press that the bill might undermine press freedom and result in a privacy law by the back door." And then you say that was not the government's view and you've dealt with that issue.
A. Yes.
Q. But on the issue of prior restraint and what became Section 12, the third paragraph, you say: "We recognise the concerns expressed in the press. As I have made clear, for example in respect of the bill's impact on the churches, we are anxious [et cetera] to deal constructively with them. In the light of those concerns we decided to introduce a new clause specifically designed to safeguard press freedom. We thought long and hard about it And this is clause 13.
A. Yes.
Q. Then at page 6 of 21, towards the top of the page, you make it clear that there were discussions which involved you, the late Lord Williams and Lord Wakeham, and in the third paragraph: "The new clause [which is 13] was drafted in consultation with Lord Wakeham and representatives of the national and regional press. They have given it a warm welcome." So the upshot is that part of the explanation for the genesis of Section 12, a consultation, agreement, if you like, which you reach with Lord Wakeham, who may well have been speaking for a large section of the press. Is that fair?
A. Yes. He certainly was speaking for a large section of the press. Whatever his position in the House of Lords, he was chairman of the Press Complaints Commission. LORD JUSTICE LEVESON No, it's probably the other way around, isn't it? Because he couldn't really do this as chairman of the Press Complaints Commission, which is supposed to be independent, isn't it? But I thought he was doing it in his personal capacity.
A. Well, sir, my recollection is that quite a lot of the correspondence was signed by him in the capacity of chairman of the PCC. LORD JUSTICE LEVESON That itself raises a not uninteresting question.
A. Yes. Look LORD JUSTICE LEVESON I'm not going it's of historical value only.
A. I mean it wasn't a piece of private enterprise by Lord Wakeham. There would have been no purpose served in busy ministers spending their time talking to Lord Wakeham if it was just a sort of personal foible. He had a very influential position and he was tending to speak on behalf of the press. Yes, Mr Jay, you're right. I worked on the basis that if I could square Lord Wakeham, I'd square most sections of the press, which is what I wanted to do. LORD JUSTICE LEVESON I understand that, and that's how it worked and it's quite clear looking at the documents that you've provided for the relevant period that's exactly what happened.
A. Mm. LORD JUSTICE LEVESON But it does raise a question ongoing for the future as to whether that is an appropriate role for somebody who holds that position in whatever body
A. Yes, oh, I see, sorry, I'm being slow. Yes, I agree. I think that if for the future if there is, yes, as I hope there will be, a very different system for dealing with press complaints, that that person will, as it were, be in a sort of quasi-judicial position, and that should be very separate from somebody who's there to represent the wider interests of the press and to campaign for changes in legislation, yes, I accept that. MR JAY Some fairly sophisticated points were made by Mr Garnier.
A. He always makes sophisticated points.
Q. I think it's fair to say although he was quibbling as to whether Section 12 would have much substantive effect, there was, generally speaking, cross-party support for this clause, is that your understanding?
A. Yes, there was, and the added advantage of dealing with Lord Wakeham was because he had been a leading figure in the previous Conservative administrations, and I mean he's I had a good I still do have a good relationship with him, have high respect for him. I think that, as I said in my Gareth Williams lecture, had his successor as chairman of the PCC been of a similar calibre, then the PCC would not have ended up in the state that it is, but I I don't think we ever had this explicit conversation, but I worked on the basis that if Lord Wakeham said yes, he would certainly be delivering the press and almost certainly be delivering the Conservative front bench as well, and that was unsaid but there.
Q. What you made explicit, though, Mr Straw, was to underline your government's commitment to the need to preserve self-regulation, because we see that in the third paragraph on page 6 of 21 and indeed the fourth paragraph. Would you agree?
A. Yes. And that was a view we were taking at a time, the PCC had been improved, there was I mean some good evidence, not least because of the way in which Lord Wakeham was operating, that the PCC was becoming effective. I say we all knew that we were going to end up with a law of privacy, and anyway we all had loads to do. I mean why at that stage start on an agenda which had been unformed about how to regulate the press? I mean there would have been no point. There certainly wasn't in my mind.
Q. There certainly wasn't Labour Party manifesto commitment in 1997, and the death of Princess Diana at the end of August 1997, did that cause any change of thought or not?
A. Not directly, no. I mean, obviously the sort of media surrounding that was terrible, but not not directly. And I think insofar as we had that conversation in government, the view was: let's see where this gets to. The PCC plus a developing law of privacy might work.
Q. Some would say it's the traditional British approach: let's see how the law develops. You know it's going to move in a certain direction, and the ramifications of that can be seen over the forthcoming years.
A. Yes, I mean it's not if I may say so, Mr Jay, it's not a bad approach to do things gradually, because the risks of disaster are reduced.
Q. That probably covers the issue on Section 12. May I address now the amendments to the Data Protection Act 1998?
A. Yes.
Q. Following the ICO reports of 2006. You pick this up in paragraph 82 of your witness statement. This is our page 02555. Mr Thomas was arguing very strongly for increasing the penalty for a breach of section 25 from a fine only to a term of imprisonment and you say in paragraph 82: "HM Government agreed."
A. Yes.
Q. Can you tell us why, please, Mr Straw?
A. Why we agreed? Because we thought the case that he had made out was a very good one, that the penalty did need to be strengthened because of the evidence of abuse which he provided in that report which was in May 2006. I just say here, I mean I agreed with this, but for the first 14 months, this was handled not by I was Leader of the House between I became Leader of the House two days before the publication of this report in the first week in May 2006, and stayed in that position until the end of June 2007, so this the policy therefore is one I inherited, but as it happened, I wholly agreed that we ought to increase the penalty.
Q. Was it then government thinking that it was simply a question of increasing the penalty rather than changing the test in Section 55, because I think at subsection 4 the test it is a purely objective one, but we know in Section 78 of the 2008 Act it's part objective, part subjective, if you take into account the reasonable belief of the editor.
A. Yes.
Q. Was the government's view: all we need do is increase the penalty, without at the same time introducing this part objective, part subjective test?
A. The part subjective test came later. I mean, I the view LORD JUSTICE LEVESON That was part of the ultimate compromise.
A. That was, sir, it was. LORD JUSTICE LEVESON But the case for an increased sanction was if it was purely financial, then the law was quite clear on I'm on comfortable territory now. The law was quite clear that you had to have regard to means, and if people of little means broke the law in this way, then actually there was very little that could be done by way of sanction. And that was so whether you were doing it because you wanted to find out about your daughter's boyfriend, for example, or whether you were doing it for industrial or commercial reasons.
A. Yes. I mean you're right, sir, you are, if I may say so, the expert on sentencing. But my own view is that I mean the maximum sentences laid down by Parliament, although they're very rarely applied by the courts, they convey a message about the relative seriousness which Parliament and therefore the public attach to that particular transgression, and I regret the fact that in the Data Protection Act, which is also a bill which I put through, we had not spotted that this penalty was too low, but we hadn't. LORD JUSTICE LEVESON But if I pick up the point that was made when we were discussing this I think with Mr Graham, that actually, if you're doing it for the purposes of business, and at a high volume, it is something which society should disapprove of rather more than might be for that range of offences that have purely fiscal penalties.
A. I entirely agree. It may be this is a very recent thought I've had that in the light of what we think may have happened, that the penalty itself should be higher still, tougher still, than two years, but certainly I think the case for having a two-year penalty maximum was very strong. LORD JUSTICE LEVESON On the basis as you really identified, that then the court is in a position to calibrate the gravity of the offending, and in appropriate cases to discharge or fine or pass a community penalty, or ultimately a custodial sentence.
A. Indeed, sir, yes. MR JAY As you say in paragraph 83, the press objected. When you're referring to "the press"there, are you able to be more specific?
A. Well, it was I don't know whether the people who came to see me were Mr Dacre, Mrs Brooks, from the Telegraph normally Murdoch MacLennan, who is the chief executive, and sometimes Guy Black, who had been the secretary of the PCC and I think was working an as adviser to the Telegraph. It was those those were the core, but I understood from them that they were representing the views of the national press as a whole. I had no reason to think they weren't.
Q. Because these were the most powerful figures, either within the PCC or on the Editors' Code Committee, was that your inference?
A. Yes. I never, Mr Jay, said, "Can we see your precise credentials?" They plainly were and are were powerful figures who were representing the generality of the LORD JUSTICE LEVESON You knew them and you knew that's what they were?
A. Yes. So there wasn't an issue. MR JAY Paragraph 83, you refer to a meeting that the minister sponsoring the bill, Maria Eagle, had on 17 January 2008. We have the note of the meeting under tab 44. I don't think it's necessary to turn it up, but we know that Mr Brett, Mr Garnier had a powerful voice on that occasion.
A. Yes.
Q. Moving forward, paragraph 84, you met directly with Mr Dacre, Mr MacLennan, Mrs Brooks, I don't think Mr Hinton?
A. Mr Hinton I don't think was there, no.
Q. And that is referred to in a letter you wrote on 12 February.
A. Yes.
Q. It's not exactly clear from that letter it's under tab 46 when the meeting was, whether it was over lunch or over dinner. It may not matter much.
A. I don't think the meeting was over lunch or dinner. I think it was in my office. In fact, I'm almost certain it was in my office. It's not yes.
Q. If we could look at the text of the letter of 12 February, you write to Mr Dacre. Under the heading "Data Protection Act" you say: "We're not proposing to criminalise any conduct which is not currently against the law. However, we do understand your and the media's concerns more generally about the introduction of custodial sentences for breach of Section 55. We have no wish to curtail legitimate and responsible journalism, and when the proposed penalties were being designed it was not considered that they would have that effect. We're not aware that Section 55 has caused any problems such as a chilling effect since the DPA came into force. The penalties were proposed and strongly argued for by the Information Commissioner to strengthen the protection of individuals' rights to respect for their privacy." And then if I can look six lines into the next paragraph: "But I have reviewed the proposals in the light of the important points which you and others have made. As I explained when we met I was increasingly minded to consider inclusion of provision for the reasonable belief of someone at the time an offence was committed. I understand there will still be considerable anxiety about the potential impact of this measure and that there is, therefore, a case of reconsidering it in slower time." Then you say: "Alongside this, I am faced with the overwhelming need to achieve royal assent for the bill by 8 May 2008, when the existing legal restrictions against prison officers taking industrial action otherwise terminate. Taking all these factors into account, I'm making a further recommendation to colleagues and I will be back in touch." So you're faced here, Mr Straw, with a double pincer movement. On the one hand you have the press stirring up trouble, making the arguments you'd expect them to make, and we can analyse those in a moment, and you would say, perhaps even more importantly, you had to get this bill through by a particular date because there were other provisions in it which were absolutely vital. Is that it?
A. Yes. It obviously was extremely hard for others outside or, say, for Mr Thomas to comprehend because it was my problem, not theirs, but it made me recall that at the end of August 2007 the Prison Officers Association called an unlawful one-day national strike, and they gave us 15 minutes' notice of this. It led to huge disruption in Britain's jails, it led to the firing of a whole wing at Lancaster Farms, it led to a breakdown in order in a number of other jails, and it was completely contrary to an agreement which the Prison Officers Association had voluntarily signed called the JIRPA please don't ask me what the acronym stands for because I can't remember that they had voluntarily signed in return for the statutory bar on industrial action being taken from the statute book. Now, they broke that agreement and also had given notice that they were going to terminate it in any event and the date of termination was 8 May, so the absolute imperative, whatever else happened, was that I got this bill through both houses and into royal assent by 8 May, because we knew anyway, given the state of mind of the leaders of the POA, that they would almost certainly go on strike the next day, and it would be a disaster. So I'm afraid other things then became subordinate to it. That's life, that's politics. So what was in my mind at this stage was that I might have to withdraw the whole provisions to increase the penalty for this legislation and then find another bill to put it in in the following session. So that was what was going on there. LORD JUSTICE LEVESON Mr Jay, is that a convenient moment just to take a few minutes? (11.25 am) (A short break) (11.36 am) MR JAY Mr Straw, we understand this is, as it were, a classic case study in realpolitik. Royal assent had to be obtained by a certain date for reasons extraneous really to the merits of the case in Section 55. Had it not been for that consideration and/or the pressure that you were under by the press, would your policy position have been either adhere to the original position, in other words just up the sentence to include a custodial penalty, or were you in fact persuaded by the merits of the argument that the subjective/objective test should be introduced?
A. It's a very difficult question to answer, Mr Jay, because I became persuaded, if you follow me, so you have to work out why you were persuaded. If I may just explain this about this deadline, the deadline not only meant that I had less time, but it also changed the balance of forces in Parliament, because although we had a majority in the House of Commons, we never had a majority in the House of Lords and if the House of Lords had decided to block the bill, as they could have done, or to delay it, I would then have been faced with a situation where either I lost the whole of the bill or I dumped this particular part, and indeed I faced exactly that dilemma ten years before over the crime and disorder bill, where a proposal to lower the age of consent for gay people to the same age as heterosexual people was defeated in the Lords, and I was about to lose the whole of that measure, so I had to drop that part of it and introduce it separately. So I mean what would have happened if I'd had more time, if we'd been able to take this bill through in normal time, which would have been to the end of that session, which would have been October 2008, I could have drawn breath and then I think found it easier to satisfy Mr Thomas, who I wanted to satisfy, so I couldn't have the prisons going into meltdown. That was the difficulty. I'd like to think that even in slower time I would have made the same judgment about the subjective defence that was inserted, but I can't say for certain.
Q. What happened subsequently is clearly explained in your statement, paragraphs 86 to 88. There was in effect, at the Prime Minister's instance, a negotiation involving Mr Thomas on the one hand and representatives of the press on the other, and the end point of that negotiation was Section 77 and 78.
A. Yes.
Q. And the documents substantiate that.
A. If I may say so, the one thing that wasn't I mean I've always believed and still believe that there was a clear understanding with everybody that these two measures would be introduced at the same time. Now subsequently there have been suggestions that we should have introduced, for example, just the additional defence rather than the penalty as well, and I'm although the record's rather defective on this, I am absolutely clear that the two went together, and I mean I regret the fact that I didn't then bring in the amendment to Section 55 before the election, and I think it ought to have been brought in by now, but there we are. LORD JUSTICE LEVESON Well MR JAY I'll come back to that point about activation, but one core participant wishes me to take up with you a point about conditional fee agreements, which you also refer to in the letter of 12 February 2008.
A. Yes.
Q. Because on the occasion that Mr MacLennan, Mrs Brooks, Mr Dacre saw you, not merely was the DPA discussed but also CFAs, and we can see the views that you held on that matter on the second page of the letter of 12 February.
A. Yes.
Q. First of all, in a nutshell, what were your views about CFAs in media privacy cases in particular, and were you succumbing to press pressure about it?
A. Well, first of all, my view about CFAs generally was that they'd not worked as intended and that was why, although this slightly preceded this, I mean there were already discussions with the senior judiciary about establishing what became the review by Lord Justice Jackson. I think that's just slightly later, but it was certainly in the air. On CFAs, I'd received a lot of representations actually from the regional and local press rather more than the national press about the effect on the financing of the regional and local press of the way CFAs were operating, and I recall a case which affected not my own local newspaper, that was the Lancashire Telegraph, but the adjacent one, which is printed and published in Preston, the Lancashire Evening Post, where for a very minor defamation, where I think the payout was ?3,000, and even that really wasn't justified, the newspaper had had to pay out thousands and thousands by way of costs, and as just a citizen as well as a politician I'm very concerned that we should not lose the regional and local press. I looked at this, whichever I think the Society of Editors which represents the regional or local papers as opposed to the Newspaper Society which represents the national ones, but the Society of Editors had made a lot of representations to me, provided a lot of data. There were also strong representations, however, from the nationals as well, and I thought they had a case, quite a strong case, and to cut this short, I then followed it through and I decided that we should reduce the success fee from 100 per cent to 10 per cent. I got ministerial colleagues' agreement to that without any difficulty. As it happened, in the rush of legislation as we approached the General Election, that proposal was then the subject of what I can only describe as an ambush in the particular committee that looked at it and so it fell. I mean, it would not have fallen but for the election.
Q. Were you lobbied by those in favour of maintaining the existing panoply of arrangements in relation
A. Yes, I was. The people who represented plaintiffs in these actions, I can't remember exactly who which law firms it was, but they were lobbying. There were some people in the Commons who were concerned about what I was proposing. And I remember going through a lot of contrasting evidence about the effect of defamation claims on newspaper finances, and I think Lord Justice Jackson had a view about this as well LORD JUSTICE LEVESON He certainly did, but let me take a point away from Lord Justice Jackson's comprehensive view, not merely of defamation but of costs generally, and ask whether this is a relevant consideration. There has to be a bit of a statement surrounding it. Before conditional fees, libel, privacy, defamation was very much only open to the wealthy. Legal aid wasn't available for it, therefore you took on what were perceived to be the wealthy newspapers at your peril, and therefore that area of litigation could be kept comparatively under control. The effect of CFAs was to, as it were, move the boot onto the other foot, because then people who did not have money but who could persuade lawyers that actually there was a wrong here that stood to be righted could take it on with massive risk as to costs on the newspaper, because not only was there the success fee, so this doubling up of costs, but also after the event insurance and everything else, I don't need to describe it all to you, but that actually changed the balance, and in a way that not merely impacted adversely on the economics of the press, or indeed the BBC, it doesn't matter who, but also increased the potential scope of the available remedy for those who didn't have money. I just wonder whether, by just dropping it to 10 per cent and it's relevant because I'm looking for ways and thinking about the way in which these sort of issues should be resolved or removing it and removing the after the event insurance recovery, all these possibilities, you haven't just moved the boot back onto the foot that originally occupied it. One wouldn't be surprised that the press would think that was entirely desirable and in the public interest. Equally, one wouldn't be surprised if those who are concerned about their ability to go to law would be concerned the other way.
A. Yes, sir. My view was this: I did not want to go back to the situation where the boot was only on one foot, which was the one you described before CFAs came in, and where it was in practice impossible to take proceedings for defamation unless you had a very long pocket yourself, just impossible, and that gave the press too much power. But I also took the view, for reasons I've explained, that I thought the balance had shifted too far in favour of plaintiffs, and some the cases I looked at in some great detail were frankly completely unmeritorious. I mean, they really were unmeritorious, but they nonetheless LORD JUSTICE LEVESON Then risk of course is the newspapers say, "It's going to cost us ?500,000 to fight it, therefore we'll buy it off for a very small sum."
A. It's a kind of subset of the abuse of the costs system which we've ended up with in motor insurance, which was never intended but it's the way it's come out. Just going back to Lord Justice Jackson, I'm sorry I haven't briefed myself on this, but my recollection is that when I was discussing whether it was appropriate to make this change then, and I'm pretty certain that Lord Justice Jackson took a different view from me on this, but I can't remember, he produced or his office produced quite a lot of evidence about whether I was correct in claiming that the Defamation Act was having this effect, but I looked at all this and I came to the judgment I did. You can never be certain when you make a policy change. My view was that it liked to rebalance it reasonably satisfactorily and if it didn't, then three or four years' time you could balance it again. But given the fact that Lord Justice Jackson's proposals overall have now broadly been taken into law, I assume that to a degree, sir, the landscape's changed a bit anyway. LORD JUSTICE LEVESON I think that's right, but the reason that I've gone into that discussion with you and would welcome your view is because at an earlier stage of the Inquiry, one of the things that I have said that I would like to think about is whether whatever mechanism one puts into place, if one changes what is to be proposed in any meaningful way, would be the question of some form of arbitral system which permitted privacy, small libel claims, all that sort of breach of confidence type litigation to be dealt with perhaps inquisitorially in a way that was far cheaper, far quicker, and provided a far better outcome for everybody, with the possibility, of course, that points of law could come up to the courts and be dealt with as usual, and I'd be very interested in your view on that, and I'm sorry I frequently take Mr Jay out of order, and it's too bad.
A. Would you like my view now off the top of my head or would you like me to submit a memorandum about it? LORD JUSTICE LEVESON I'm very happy for you to defer and consider it, if you're able to, because there are a couple of other hooks in your statement which I intend to pick you up on.
A. On which I'm going to be impaled, yes. LORD JUSTICE LEVESON All right.
A. Sir, if you're happy, I will send in a supplementary statement. LORD JUSTICE LEVESON Thank you very much.
A. Thank you. MR JAY The issue of activation of Section 77 and 78, it never happened.
A. Yes.
Q. Is that a matter of regret?
A. Yes, it is, yes. I wish I'd done it before the election. I can't remember why I didn't, but anyway. I mean, there's a wider issue about activation of legislation and my view is that there ought to be time limits by which sections of legislation have to be activated full stop, because otherwise Parliament's will is undermined. But that's a wider issue. LORD JUSTICE LEVESON Well, it is, because if you go back to criminal justice legislation
A. The 2003 Act? Yes, it's absurd. And if there were that discipline on ministers and officials, then the laundry list in legislation would be much less and people would have to think through more carefully the consequences. MR JAY Next, please, Mr Straw, general questions about media influence on public policy. It's paragraphs 114 and following. Can I just pick up some isolated points. Paragraph 119, our page 02559, where you refer to periods when pressures from the press can be intense, and then you mention Sarah's Law, which I think was a News of the World campaign
A. Yes, you're right about that sorry, both were pursued by Rebekah Wade as she then was, but on that first occasion when she was editor of the News of the World. So that was wrong.
Q. In terms of the intensity of the pressure, can you expand on that, please?
A. It was greater over Sarah's Law than it was over prison ships, but newspapers will decide they want to run a campaign. They judge that's how they sell papers. And in the light of the death of Sarah Payne in, I think, 2000, Mrs Brooks developed a relationship with Sara Payne, her mother, and they put together this demand for the equivalent of what's in the United States known as Megan's Law, here it became Sarah's Law, which in broad terms would have meant that people in any one area would have been able to access the names of those who were on the sex offenders register. I could understand why they wanted to do that. We all want to protect our children. On the other hand, I was pretty certain this would lead to more trouble and more criminality than it was going to resolve and that there were better ways of controlling the predatory instincts of sex offenders than having them bluntly subject to a mob outside their doors. So I was resistant to this, and I was strengthened in my resistance when in Portsmouth, as everybody now knows, someone who was a paediatrician was misunderstood to be a paedophile, and now, I've seen the effects of sort of understandable concern on the behaviour of crowds of all sorts. So that was my view. I thought we should do plenty of other things to strengthen the law against sex offenders but not that. I haven't got all the detail, but we had a disagreement with Mrs Brooks, and I as I said right at the beginning of my evidence, I'm very much of the view that people like home secretaries, justice ministers, need to understand and reflect the concerns of the mass of the population about what it feels like to be a victim of crime and I've tried to live like that all my political life and I don't subscribe to the view of some of the Metropolitan interest groups that you should always give people community sentences, which in the sense that there had been too much bias towards the interests of the perpetrator rather than the victim. But you have to have a balance here and you have to be able to maintain sort of public order and resort to the mob is not appropriate and we're not the United States. Anyway, as everybody knows, the United States isn't one jurisdiction, it's 51, and what happens in Massachusetts or Maine is not what happens in Texas.
Q. How persistent was her lobbying of you on this?
A. I'm a bit vague on this but it was fairly persistent. This was in the period of the murder of Sarah Payne in 2000 and when I left as Home Secretary in June 2001. I mean, and it's worth bearing in mind that at that time they were there was sort of a lot of briefing going on I think by my colleagues that they might be able to do a better job, that I was too soft, which I thought was slightly risible, and so on, and others manoeuvring because for my position, but anyway, got through all that.
Q. What about the specific point or indeed the general point that Mrs Brooks was merely representing the views of her readers and therefore it's wholly legitimate for her to bend your ear?
A. Oh, yes. It is striking that when one talks to editors, senior executives of popular newspapers, that they believe this. I think that has a truth behind it, but the Sun's or the Daily Mirror's readers are also my constituents and I think you can't have a position in public life, which editors do as much as politicians, and plead as your excuse for an otherwise abject position that you have asked your readers or your constituents what you should do with your conscience and taken their view, because first of all they don't have a single view, and not only I mean, a lot of my politics comes from talking to my constituents in organised ways, through open air meetings, through residents' meetings and so on, and the same person may have two views within the space of ten minutes, and what you have to do is to try and make judgments about what they are saying to you. Most people have their lives to lead. They're not people who use argument as day by day as you and I do, Mr Jay, or that journalists do, so I say at one level I understand entirely what Mrs Brooks is saying. At the other level, frankly, it is trying to evade responsibility for judgments which have to be an editor's.
Q. Thank you. The similar sorts of issues arise in relation to immigration. This is paragraph 120.
A. Yes.
Q. It's probably not necessary to go into that. Is there anything you can help us with on paragraph 123, and this is the Thompson and Venables case?
A. Yes. If I can just make this point on immigration, because it's something I've been looking at recently. Everybody, quotes, wants to control immigration and I understand that and interestingly that's the view of my Asian heritage constituents in my constituency as much as the white constituents. But the same newspapers which are calling for restrictions in general, when they're faced with a particular case, will then say, "Oh no, we should make an exception there". Exactly that happened with me when I was Home Secretary, where there was a man who had no case whatever for staying in the country, except that he'd been here evading the law for 12 years, was turned into a hero by the Daily Mail, as it happened, and if you are the person who has to make a decision, it's really really tricky and it also means that public opinion becomes quixotic. Or, for example, you're invited to take a firm position over those who breach the law, and that people ought to be serving the sentences laid down, and then when you get a man who's sentenced to 30 years in jail, escapes from jail after 19 months, spent 36 years on the run, Mr Ronnie Biggs, he is then regarded as some kind of hero and you are accused of being unfair to him when you decide he ought to stay in jail for a bit longer. These things are you have to cope with them, but I wish sometimes that the newspapers would hold the mirror up to themselves and compare and contrast positions they're taking in general with those they're taking in particular. On the issue of Thompson and Venables, what happened was towards the end of my period as Justice Secretary, one or other of them, and I'm afraid I can't remember which one, had committed an offence of Internet porn and that meant that they had to be recalled to prison and all the rest of it, but there were demands from the papers for the injunctions, which were lifetime ones to prevent their new identity being released, those to be withdrawn, and for further details to be given. The press were desperate to find these people. Again, I understand that, but if the identities of these people had been disclosed, they would have been at very serious risk of physical danger, injury, certainly, worse possibly, and yet the papers some of the papers simply weren't willing to think about that. But anyway, I mean I stuck to my guns on that.
Q. You make this is out of sequence because this relates to the future a useful point in paragraphs 124 to 128 about the vices of what you call pre-briefing speeches.
A. Yes.
Q. Which of course would include but not necessarily be limited to leaks.
A. No, I mean the pre-briefing is I mean there are leaks of speeches, but we've got too absurd may I just start this again and separate statements to Parliament from non-Parliamentary occasions. Statements to Parliament, the rules are very clear, which is that Parliament should be the first group to hear what a minister is saying, so you must not pre-brief or publish in advance. That's often, I'm afraid, observed in the breach, and sometimes a draft of a statement, although that's less frequently, is leaked, but more often there is briefing by, say, a special adviser or sometimes a minister concerned about what they're going to do. Then there are non-Parliamentary speeches, where you're going to make a speech, it's quite an important one, and the journalists and the press office then say "We're going to brief this out", I used to be told. I used to go along with it, but I used to also say that I thought this was kind of absurd because you ended up having the speech quotes briefed out. So the people who turned up, had bothered to turn up to listen to you, already knew what you were going to say. I just think it would be better if everybody said, look, we're going to make a speech, then if you want to hear it, come along; or, after all with webcams and all the rest of it people don't necessarily have to be there, but it becomes sort of a trick on the public, all this stuff. So you get the Today programme desperate for early sight of the speech so that their man at 6.32, who sets up the political agenda every morning, is able to say breathlessly and confidentially what he'd learnt about what was going to happen later in the day, all this stuff is going on, and I just think it would be a good idea if we as politicians could all agree hang on a second, this is not good for anybody concerned except those who sell drugs for blood pressure. We ought to all calm down. LORD JUSTICE LEVESON Probably that's nothing to do with me.
A. That bit, certainly the drugs for blood pressure, sir, is not. LORD JUSTICE LEVESON No, no, no, I wasn't thinking of drugs or blood pressure.
A. No, no, no. LORD JUSTICE LEVESON It doesn't really bite on the relationship.
A. It makes the relationship more incestuous. The issue of how of Parliament enforcing the rules about Parliament learning first is not to do with you, sir, of course. I think it's a symptom of the way this relationship has become. LORD JUSTICE LEVESON Okay.
A. Too incestuous, so it does to that extent. MR JAY I move on to the police LORD JUSTICE LEVESON Just before you move on to the police, there are two points just on what you've been saying a moment ago when you were discussing with Mr Jay editors believing they are reflecting the views of their readers.
A. Mm. LORD JUSTICE LEVESON I'd very much like your view on the sub-argument, or it may be the over-arching argument that also lies behind that, that editors get their legitimacy because nobody needs to buy one of their papers on any day, therefore they face an election every single day, and if nobody likes their views, they won't buy the paper.
A. Well, they certainly get their legitimacy from the aggregate of their readership, because for sure. If you're selling 3 million newspapers, you have more influence and authority query legitimacy. Legitimacy, I think, is a slightly I wouldn't use that word, sir. They get their authority and influence from LORD JUSTICE LEVESON All right, I prefer that.
A. from, say, the aggregate weight and value of their readers. So if you're selling 3 million you're going to have more influence than if you're selling three papers. Although it's not just, as everyone knows, an issue of total numbers because the Financial Times would say they only sell, I don't know, 300,000, but they sell to the right 300,000, I think is how they put it. And talking to editors and senior executives, I'm struck almost by their neurosis about what their readers think of their product, and yes, they are tested every day, and it's also the case that this is a the market in newspapers in Britain is more competitive almost than anywhere else in the world, we have more national titles, and some titles are doing better than others. If you think of the Daily Mirror, I mean it was outselling all the papers 30, 40 years ago, and now it's not. So they're right to be neurotic about this, they're right that their authority and influence comes from this, but I think where it's inappropriate is for them to say therefore, as it were, they should resort to the lowest common denominator of the prejudice of their readers, because I don't think even the readers think that, really. LORD JUSTICE LEVESON Thank you. The second point, you provided some graphic illustrations of inconsistent approaches, and you said newspapers should hold up a mirror to themselves. That actually raises another question, which is the fact that with very, very rare exceptions, nobody holds the press to account at all, and I'd be interested in your view at some stage about whether that's just a fact of life and everybody just has to live with it, or whether there is force in the view that organisations such as Full Fact should be given a greater prominence in order to just try to improve standards.
A. I think it's a cultural issue, this, as much as a kind of issue of regulation. A more effective system of regulation, which as I set out in the Gareth Williams lecture I think has to have a platform of statute, would certainly help and it would more effectively put the mirror to the press where they have breached certain standards, but there is, say, there's a bigger issue here about the culture of newspapers, culture of what happened in newsrooms, where I certainly think that the press need to be more examining of what they are doing, much more examining. I talked earlier in this evidence about how they report politics and Parliament. I'm constantly amazed by the newspapers complaining about low turnouts at elections and even 20 years ago they were much higher, and not understanding that they have contributed to a significant degree to a culture in which politics is seen as boring, it's seen as completely self-serving and is not for smart people to get involved in, even to the point of voting. So of course there's going to be and that has an effect and they don't really think about that. They're highly quixotic, so the same newspaper can be praising a politician one day and then I can produce cuttings, but I won't, where one month I'm the greatest thing since sliced bread and the next month even your paternity is being questioned in some very great degree, and by the same people who have written this, and they have no memory at all. I mean, it doesn't matter what you said before. Previous inconsistent statements can never be adduced against a newspaper, whereas, quite properly, they can against politicians. The other thing, sir, that many newspapers are lacking in is an understanding of what it feels like to have to make decisions. Yes, you need observers in a society, but there is a degree of sort of voyeurism about the British journalists which takes no account of the responsibility of decision-making. I don't use that as an excuse for decisions which I may have got wrong, but they I mean they sometimes think that you have had all the time in the world to make a decision. Well, you haven't. You have a box full of papers to make to get through. One is conscious, when I certainly was a minister, that if I missed a detail then I could a year down the track, maybe ten years, I'd get rolled over for missing that detail, not least by the press, you have to be very careful, but you have to be very quick, you have to move on but no understanding of that. It goes back to this almost wilful refusal by the press collectively to develop an understanding in the minds of their readers about how governments in this country and democracy actually works and they reduce it so much to personalities and to conflict, which some of it is personality, some of it is conflict, but nothing like as much as they claim. LORD JUSTICE LEVESON Does that carry into a criticism that Mr Boulton was making yesterday or actually I think he was quoting somebody else that errors are not simply errors, there's something going on behind them?
A. Errors by the media? LORD JUSTICE LEVESON No, errors by the politicians. In other words, there is some not merely I think I used the word yesterday, not merely a cock-up, but actually there's something much more serious underlining a failing.
A. Well, I'm sorry, I did read Mr Boulton's written statement carefully. I've not read the oral evidence LORD JUSTICE LEVESON I think it came from a book that he'd written, a piece that he'd written.
A. I'm not sure what point he's making because very, very occasionally there may be a conspiracy behind a decision, but I've never taken part in a conspiracy and I never saw any of my colleagues doing this. I took part in plenty of cock-ups, for sure, because that's life. As John Major famously said, the only people who've never made a mistake are the people who have never made a decision, to which I would simply add: they're called journalists. So you do make mistakes, of course. I think when you do, you should seek to apologise for them and move on. But that's life. LORD JUSTICE LEVESON All right. MR JAY Police issues now, Mr Straw.
A. Yes.
Q. The detail of what you say in paragraphs 51 and following I'm not going to ask you about. I'm going to ask you about the issue of culture.
A. Yes.
Q. Particularly your take on what the culture was as between senior members of the Metropolitan Police Service and journalists.
A. I have no direct knowledge of this, and as I said in my written statement, I've been through all the records that the Home Office could find of this period as Home Secretary and the issue of media relations itself is very rarely mentioned. I mean, my view from having been briefly in practice at the bar in the 1970s when the evidence was emerging of endemic corruption inside the Police Service, including in London, and having taken a close interest in the whole issue of police accountability from the very first year that I was in the House of Commons because I had a private member's bill on that, was that the relationship was not altogether a satisfactory one and I certainly didn't take the view, I worked on the basis that in every police station, every police station, the local or national papers would have a stringer, who was a police officer or member of staff, who they were paying. That was also I mean just regarded as a fact of life by senior officers, very difficult to pin down, and yes, that was my very clear view. The other point I think is very important which I didn't properly bring out in my written statement to take account of is this: the whole of my relationship with the police, particularly the Metropolitan Police, when I was Home Secretary was framed above all by the Lawrence Inquiry. I'd become Home Secretary in very early May, I'd made no commitment about an investigation into Lawrence before the election or at the election because I didn't think that was appropriate, but I then one of the first things I did was to call for the papers, look at what had happened or hadn't happened, and then at the end of July 1997, just three months after taking the job, announced this inquiry, and as both Lord Blair and Lord Stevens bring out, I mean that was deeply traumatic for the Metropolitan Police and particularly with Lord Condon, Sir Paul Condon, who was the Commissioner my Commissioner between May 1997 and when he retired, which I think was early 2000, it was absolutely dominant. So I just need to what we were dealing with there was much wider failings of the Met, which came out, as they did so dramatically in the course of that inquiry.
Q. The Lawrence report was, of course, leaked.
A. It was.
Q. Are you able to assist the Inquiry as to the circumstances surrounding that?
A. Yes. Yes. The inquiry report was due to be published on a Wednesday, which I think was 22 February. I was I received it the previous week. We were very concerned at the Home Office about the possibility of it leaking, and it was kept very closely under wraps in the Home Office, and I'm absolutely I had total confidence in everybody who handled it within the Home Office, the few who did. Downing Street people wanted to see it and said they wanted to see something for the Prime Minister's weekend box and I was very resistant to this because I was very concerned about the general culture which had built up in Downing Street of leaking, so I was very reluctant about them seeing anything before the Monday. In the event, as I recall, we agreed to produce a summary, but it was a bit of a part of it was a paraphrase, and quite deliberately so, and this only went to them. Then on the Saturday evening, when I was coming back, as it happens, from Blackburn, I got a call from my private secretary, Clare Sumner, who was on duty, to say that it had leaked, and because I was so concerned about the effect of this leak on the Metropolitan Police particularly and on the Lawrence family and also on Parliament, because we'd been under great criticism for pre-briefing, which I didn't go in for myself but with government in the frame, I sought and obtained an injunction to stop the presses of the Sunday Telegraph. And then that subsequently had to be lifted because they'd already printed some of the copies and there was a huge rumpus that I was trying to gag the press, which was nothing of the kind because the whole thing was going to be published the following Wednesday. LORD JUSTICE LEVESON I've had that problem too, in the Inquiry.
A. Indeed. It was absurd. Nonsense. If I was intending not to publish the report, of course there would have been a public interest in publishing it, but this was about whether one newspaper was entitled to publish extracts. And for all sorts of reasons, not least the fact of the summary, which was written solely for Number 10 and didn't go anywhere else, and for other reasons, I had not that leak came from Number 10, didn't come from Alastair Campbell, I don't believe he knew about it, but it came from somebody in Number 10 and I know who that person there was a leak inquiry, which took some time, we weren't able to take disciplinary action against them but we knew who they were, and they subsequently left working for Downing Street. But I was very angry about it indeed. Furious.
Q. Can I ask you about the general topic of spin and New Labour.
A. Yes.
Q. Some observers would say that you were either tangential to or outside the spin circle and therefore can assist us sort of looking in.
A. I take that as a compliment, if they do, and I hope I was.
Q. You're statement suggests that generally speaking you were, but as you say you're not perfect?
A. Well, none of us is perfect, but I disliked that I understood why it happened, but I thought that it was bound to blow up in our face, which indeed it did, and I also just thought it was unnecessary, because if we just got on with being ministers and telling Parliament what we were doing, it would mean to use the share price analogy, of course the price wouldn't be puffed as much as it was, but it wouldn't go down as badly as it did, and it might have meant that we, instead of winning 400 seats in 1997 and 401 in 2001, if those were the numbers, we'd won 30 or 40 fewer, but that probably I mean, without that would probably I think might have been a good thing for the Labour Party as well as for our democracy.
Q. In terms of its causes, though, how would you analyse those?
A. The spin? Well, it goes it partly, Mr Jay, goes back to our concern to develop a close relationship with the papers, which arose particularly during the 1980s and the 1992 election, and to the highly competitive nature of the British press. So what I saw was that gradually some newspapers or some journalists on some newspapers were being favoured by Downing Street or some particular ministers, and they were involved in kind of conspiracy is too strong a word, but had these little groups. It was very, very incestuous, I think very unhealthy. It suited the ministers or Number 10 concerned at the time. It also suited those journalists because they had privileged access to information, so they were getting exclusives over their colleagues in the same newsroom and over other newspapers, but I think it was a bad idea. I didn't like it, and I tried to get on, as far as I could, doing things in a different way. Interestingly enough, Alastair Darling did too, and I think there was some connection with the approach we adopted and the fact that we survived in that government whilst others didn't.
Q. Arguably there are two polar positions one sees in commentaries. There's the position that someone like Mr Oborne adopts, and we'll be seeing his piece. It's all the fault of the political classes, if one can put it in one sentence. And the position of Mr Campbell is more: it's the fault of the fourth estate, culture of negativity, everything else. Do you have a different position, a mid-position or
A. Right, as I've indicated I think the truth lies in between and I think there are high responsibilities on both journalists and the media and on politicians. I'm not trying to be sort of Pollyanna-ish here, although probably that's the wrong metaphor, but anyway, I'll think of the correct one a moment, but yes, the right approach always lies in the middle, but I think we fed each other. I think Mr Oborne is completely off the wall in what he writes, but Mr Campbell is not correct either.
Q. One can debate the diagnosis, but what if anything can be done about it in a free press and a mature democracy?
A. I think the process of this Inquiry is, quotes, doing something about it, just as the process of the Lawrence Inquiry, the process of it, leave aside the specific recommendations, changed the nature of policing, because you saw over the period of that inquiry aspects of policing which the public didn't generally know about and the police it was a mirror for the police. Now this Inquiry, this whole process, is a mirror for journalists and many journalists are very serious people, intelligent, bright, thoughtful, and concerned about the future of journalism in our democracy, and they want this they want to think about this. So that's one part of it. I think changes in the system of regulation will also help, in fact I'm pretty certain they will, because they will end this with luck sorry, sir, I'm anticipating your recommendations, but my view is that you have to have some external regulation of the press and that's not, as Mr Dacre would claim, I think, that this would be the end of freedom of the press as we know it. Far from it. It's to protect the freedom of the press. But the press can't go on, as they have been, claiming that every other institution in the land requires external regulation, which includes the legal profession, and they were right at the front of claiming that the legal profession couldn't continue to regulate itself, it includes the City, and again they were in the front of saying the City couldn't go on regulating itself, but they then say, "But hang on a second, the press ought to be able to regulate itself", when palpably it has failed, and also it has to be taken into account that the only reason that any changes in regulation have ever been made, ever been made, in terms of self-regulation have been a late response by the press to the possibility that they will at long last be subject to statutory regulation. You go through all the post-war inquiries, including the Younger one and then Calcutt and all of those, so they only shifted under well, when they saw a tank coming down the road, and I think, frankly, the last 50 years' experience shows that those days have gone and you have to have something external, and I think it would be good for the press as well because most journalists want much higher standards.
Q. You gave expression to some of these views in the Gareth Williams memorial lecture. One sentence, of course, was extremely propitiously timed, 12 July, so it was right in the eye of the storm. It's under our tab 2.
A. Yes, I have that.
Q. We're not going to read it out, Mr Straw. We've had the chance to pre-read it. But can we pick up a number of key themes and see the extent to which at all you wish to modify those in the light of events which have occurred since July of last year? LORD JUSTICE LEVESON Or indeed what's happened in the Inquiry. Not external events, but to such extent as you've picked things up from the Inquiry.
A. Indeed. MR JAY First of all, the concept the reality indeed of self-regulation, which you begin to touch on on page 3 on the internal numbering.
A. Yes.
Q. You describe it, I think, as a weak substitute at the margin for a legal structure.
A. Yes.
Q. I think you probably have already explained it as one in the context of the
A. Yes.
Q. historical context.
A. And one other point which I make in the preceding paragraph is that and the subsequent ones is that some people in the press have presented self-regulation versus external regulation as a kind of four legs good, two legs bad dichotomy, and implied that at the moment there is no external regulation anyway. There is actually quite a lot, in terms of the law of defamation and indeed the law of privacy, and what you have is simply it's principally about what sanction you can get for failure of substantive law above the at the top of it, which is the system of self-regulation. I didn't make that very clear, but you may want to go on, Mr Jay.
Q. On page 4 you deal with the issue of privacy.
A. Yes.
Q. Which you describe as intellectually, procedurally and politically much more difficult to handle.
A. Yes.
Q. We're not dealing with inaccuracy, we're dealing with truth.
A. Yes.
Q. Which should remain private. Is this your position now that consideration should be given to a separate privacy tort?
A. Yes, it is, and indeed I say that in the course of this lecture later on, that there ought to be we ought to pick up what Calcutt proposed, which was that for a separate tort. And I've later on
Q. Page 8, isn't it?
A. Sorry?
Q. Page 8.
A. Yes. And I mean there isn't and for the reasons which I set out, that the public have a right to expect the same explicit protection available to them as they do in respect of defamatory statements, breach of copyright, and every other tort. At the moment we're getting to it by a kind of side door.
Q. Might two things be said? The creation of a privacy tort might create primacy of Article 8 over Article 10, and secondly, what is wrong with the development we've seen over the last 14 years, namely what the highest courts have done, creating not so much a privacy tort but de facto principles, or indeed perhaps de lure principles which amount more or less to the same thing?
A. I think on your first point, Mr Jay, you can deal with that by drafting of the legislation, so I don't I think you can overcome that. On your second point, the answer isn't what would be the difference? Not much, is my answer. I accept that, and it's implicit in what I say at page 8. It's really the only inference is really a point of principle. You may say the principle's not worth it, and you could also say, well, the torts which are available for people where a remedy is available to them directly, for example, defamation, have themselves been developed by the courts rather than by Parliament, and broadly that is true, so why not leave, as it were, the living law, the common law, to develop in the same way? And I there is a strong argument on that side. As I say, my judgment, and it's a balanced one, not a is that to get a first of all, I think that Parliament needs to take this job on now. I mean I say and Lord Justice Leveson has made the point in an interrogatory way that the effect of us, as I to use the analogy here, the passing of the parcel, the development of a law of privacy was to put the judiciary unfairly in the frame for being criticised for this, when in fact it was Parliament which had done this. So I think we ought it's an issue of responsibility, and just of Parliament saying making a statement to everybody that as citizens they do have a right to have their privacy protected, not absolutely, but generally.
Q. On page 8, before you deal with privacy, you muse over what was then going to to be a non-statutory inquiry into the culture, practices and ethics of the press.
A. Yes.
Q. And a few days later it ceased to be that.
A. Yes. I was struck how much this is a piece of ancient history when I reread that paragraph.
Q. The "kicking into the long grass" point may or may not be valid, whatever the
A. Well, I hope not. LORD JUSTICE LEVESON But that again is going to be a matter for Parliament. The great difference between what I am doing now and what I normally do for a living is normally I decide cases, and that's the end of that. The decision is there, and if you don't like it, off you go to the Supreme Court. Here, everything I do will take the form of recommendations.
A. No, I understand that. LORD JUSTICE LEVESON They don't have to be picked up or not.
A. I understand that, sir, and there will then be a responsibility on the body politic, in my view, to ensure that your labours have not been wasted. LORD JUSTICE LEVESON It is one of the reasons why I've been very, very keen to ensure the Inquiry could maintain the cross-party support
A. Yes. LORD JUSTICE LEVESON that it had when it started.
A. So far that's there, and it's the whole sort of politics of this are now very different from where they were before. LORD JUSTICE LEVESON I'm pleased you say that, because I think I heard from Mr Campbell on Monday that he doubted whether there was still the same support. I am not trying to get into any political debate here.
A. No, I know. LORD JUSTICE LEVESON I want to make this as politically neutral as possible to make it easy for all parties to decide a common way forward. If you like, it's the consensus politics to which you referred earlier.
A. I think that really it you could only make progress, I think, on a in an area like this by consensus. That doesn't mean without any argument, but it does mean there has to be backing for the principle and backing for where you get to in the end. I mean, at the moment, if you look at what's going on in Parliament, of course there is a lot of partisan argument over, for example, the issue of the BSkyB bid, and I won't go into any further detail on that, but that is obvious, but behind that, I think that what I divine is clear understanding by all the parties that we got too close to the papers, and that applies particularly to the two main parties, and that it's not healthy for anybody, least of all is it healthy for the press, so with luck, there will be that continuing momentum for change, and some of us are going to do our best to ensure that it takes place. LORD JUSTICE LEVESON I'm pleased to have asked you the question, because listening to Mr Campbell the other day I don't say it was very depressing, but it certainly created a concern.
A. Look, I'm not in any doubt, sir, that there will be a concerted effort by some of the newspapers to argue against any form of more coherent regulation than you have today, and I think Mr Dacre has made clear he holds a perfectly honourable view, which I respect but don't share, about what he thinks will happen if there is coherent regulation. But I hope and believe that even he recognises that the landscape has changed completely, and what the public are willing to tolerate has changed completely. LORD JUSTICE LEVESON He certainly said that last September when he attended the seminar.
A. Yes. MR JAY Mr Straw, on other matters, the issue of prior notice, page 10.
A. Yes.
Q. You don't favour an absolute requirement, you favour a presumption.
A. Yes.
Q. And you indicate why. The third issue, the make-up and underpinning of the reconstituted regulator
A. Yes.
Q. which you would like to be called the Press Commission, but I'm sure the label doesn't matter. First of all, its normative force, are you envisioning a statutory underpinning, and, if so, why?
A. Yes, I am. One discrete reason for having statutory underpinning is that if you don't, if it continues to be voluntary, there's no way that I can perceive by which you can then bring in those newspaper groups that don't want anything to do with the regulator. It used to be a matter for speculation but now it's a matter of reality because of the position the Express Newspapers decided to take to just extract themselves from the PCC. That's one reason. Secondly, if you leave it to self-regulation, we end up with this absurd situation where they are judge and jury in their own cause. As I think has become clear in the course of this, I do have very high respect for Paul Dacre I've known him for a very long time and so on, and none of that is soft soap, but I simply do not believe that anybody could or should be placed in the position of adjudication which he and senior colleagues have over the standards of the press when the adjudication's taking place of them. That seems to me to defy all known principles of justice. So and the moment you accept that proposition that I've made, you then have to accept that this body will have to externally be imposed because there's no other way of doing it, the press simply aren't going to be able to do it themselves. I believe that they should calm down about the effects on their autonomy from politicians and ministers and have regard to all these other institutions which Parliament has set up and sustains which aren't remotely in the pockets of ministers or Parliament. The most obvious one is the judiciary. I mean, it's entirely sustained by Votes, with a capital V, of money from Parliament, but we're a free society and wouldn't dream of trying to constrain what happens here or in the Supreme Court, but there are plenty of other institutions now which we've more recently established, which, for example, include the United Kingdom Statistics Authority, the Independent Parliamentary Standards Authority. These are recent creations which have made our society more pluralistic and have led to the ministers and Parliament, who set them up, becoming more subject to account.
Q. We've heard the argument advanced that once you have a statute there, it's easy to amend it, and a less benign government in years to come will amend it in a way which is inimical to the interests of the press. Do you see any force on that?
A. No, I mean, on that basis you should never change the law at all because it could be changed again. It's not easy to amend primary legislation. I mean, for it's quite I mean, I've obviously in abstract theory it's easy, because you introduce a legislation and you pass it, but in practice it's very difficult. You have to get parliamentary time to do so, you have to make a case for it, you then if you're the minister, you have to go before the House of Commons and explain why you're doing it, and then it's it will proceed through its stages. It always takes a long time, which is a necessary part of the process. And I just think it's absurd to argue that you shouldn't do one thing that is right today for fear that something may happen in the future. I mean, either, I think we should look at the case on its merits and if it's correct, then go for it. If it isn't, don't go for it. LORD JUSTICE LEVESON The editor of the Times
A. Mr Harding? LORD JUSTICE LEVESON proffered that argument and when I came back and pointed to section 3(1) of the Constitutional Reform Act, which enshrines in a statute the independence of the judiciary, he decided that he had brought a knife to a gun fight and, as it were, retired from the debate.
A. Yes. LORD JUSTICE LEVESON But that's an identification of a principle I think it would be quite difficult judicially to review something on the basis of an alleged breach, but do you see a value or a detriment in having a similar sort of declaration of principle, as it were, to put the position beyond doubt and to demonstrate that if somebody did want to change it, they'd have to change the principle, which actually couldn't be just done through an "and or an or" amendment, as it were, but would require a fundamental rethinking of the structure?
A. Yes, I think a statement like that is of would be of value. I'm sure it would be. And I mean picking up your point about the Constitutional Reform Act, the 2005 Act, not only I know you are familiar with its terms is there this requirement about the independence of the judiciary, but there also parallel requirements on the Lord Chancellor of the day to uphold the independence of the judiciary. Indeed, you have to there's a further oath that the holder of the office has to swear in the Lord Chief's court here. I don't think anybody ever anticipated that certainly the section relating to the Lord Chancellor would be the subject of judicial review here, but I have to say, as the person who was subject to those obligations between 2007 and 2010, they were in your mind, and had any of my ministerial colleagues ever said, "You should be doing this or you should be doing that", which I felt was conflicted with that duty, I would have said, so. Moreover, that explicit statutory duty there helped, in my view, to underpin the non-statutory duties in this regard which are in the Ministerial Code, so there are all sorts of sort of ripple effects from declarations like that, and for sure, in extremis, I suppose I could have been subject to judicial review as well, so there's always that happy prospect, so I think it would be a good idea, yes. MR JAY I invite you, please, to look at paragraphs 45 and 46 of your witness statement. This is page 03551. In 45 you say you take seriously the concern that any system of statutory regulation could lead to an unacceptable degree of state control: "I do not believe that these concerns negate the case for a statutory system. Rather, it has to be constructed with great care." And then you explain how to do this in paragraph 46, it's all done arm's length.
A. Yes.
Q. What about the concern though that there is a seepage or the perception of seepage that there might be state control over the content of what newspapers can do?
A. I don't think there will be state control over the content of what newspapers can do. I mean, by what process could the state I mean control what they were doing? They would be still free to publish anything they wanted within the general law. If I may say so, Mr Jay, I don't know who said this, but I think it's nonsensical, it's a fantasy.
Q. I think that's clear. Unless you have any points you wish to develop in relation in particular to the future, those were all the questions I had for you.
A. Can I say, sorry, it was triggered in my mind by Lord Justice Leveson's reference to the Times. The only thing probably I think it is quite important to understand is that we tend to talk about the News International papers as a single body, but what is striking in my dealings with these papers over 30 years is that although for sure they're all owned by the same group, they are very different and you've had the Sun, which was has been without question the most powerful paper and the one I think Mr Murdoch has used as the agent of his power, right out front, and then not far behind, the News of the World. And then the Sunday Times, which in a sense, although it shares a name with the Times, is a very, very different animal from the works in a different market. And I put those three together in one bracket, they're sort of partisan vehicles, and quite separately you have the Times. And I have just to say, because I declare a sort of interest because I've written for them on and off over the last 30 years, that the Times has a very different culture from these other papers, and in my lengthy experience maintains high standards. I mean I just say that. So I think it's quite important that they shouldn't all be tarred with exactly the same brush. LORD JUSTICE LEVESON It bears the weight of its history.
A. Yes, and it has it's really interesting that in that building, the one at Wapping and now the other one, they just have a very different culture, even though they're only a floor apart. It's just how it is. And, of course, you might say that it's what their readers expect. LORD JUSTICE LEVESON Paragraph 50 of your statement.
A. Yes. LORD JUSTICE LEVESON If that's not an invitation, I don't know what is.
A. I will, sir, provide you with more details. LORD JUSTICE LEVESON I would be very grateful. The reason I would find it valuable, let me make it abundantly clear, much criticism has been addressed, at least initially, I hope not so much now, to the fact that my background is as a lawyer and latterly as a judge, and I have been parachuted into a world that is not mine, and expected to identify all the pitfalls and all the solutions, and the suggestion is that that simply isn't practical or feasible. You bring a very different experience to bear, and I've said this to a number of people, and therefore any assistance that I can get to try to come to terms with the terms of reference that I have and to produce a solution that is practical, effective, and properly balances the legitimate interests of society where a free press is critical, of the press who have the commercial problems that they have to face with the Internet, and the public is quite a task.
A. Yes, I accept that. LORD JUSTICE LEVESON And therefore I would welcome enormously the assistance of you and indeed, as I've said to others and will continue to say, to provide input. I'll come up with the recommendations and then everybody can do with them what they will, but I wouldn't want to fail to take up a point for want of the humility of asking. I am humble in this area.
A. Yes, sir. Of course I'll do that, and if I may, I'll reflect on it and prepare a written statement. I was also just reflecting on the experience of setting up the Independent Parliamentary Standards Authority, because it's a which I had fell to me to do, and that's been a very interesting institution because here is a body which has considerable power over Members of Parliament, which is the sovereign Parliament in the land, and to begin with, it caused conflict and friction between the members of the House of Commons and this body, but it's sort of gradually settled down and there are mechanisms there by which the so the members of the authority, the five members, are appointed at arm's length from people in the House of Commons, and I think it works. Of course I'll LORD JUSTICE LEVESON There are a couple of things you've agreed to look at.
A. Yes. LORD JUSTICE LEVESON And I'm very grateful. Let me just ask one further question, if I might, really picking up on something that Lord Hunt said, which Lord Wakeham agreed with, which
A. Lord Hunt, the chairman of the PCC at the moment? LORD JUSTICE LEVESON Yes. Lord Hunt put it this way: oh, well, if you introduce legislation, then members of both the House of Commons and the House of Lords will do their level best to really try to emasculate the press. That's my summary, not his words. And they will want to use the opportunity to impact on the freedom of speech and expression and the press, which I have constantly espoused. Another witness said: well, I'd like to know who these people are.
A. Yes. LORD JUSTICE LEVESON But then Lord Wakeham said: oh no, there are certainly people like that. If you have some sense of that, I'd be interested to know it.
A. Well, I mean there could be people in the House of Commons and the House of Lords, who after all number going up to 1,400, who may have this view, that their business is to emasculate the press. I've yet to meet them, it has to be said, and I don't think they've ever put their views on record. In any case, I'm afraid I think that this prediction is completely unfounded. What are we talking about here? We're talking about a body which will be hopefully statutory, but whose role would be very narrow. What is it there for? It's to provide remedies for which would be hopefully fast-tracked for defamation and maybe for breaches of privacy. LORD JUSTICE LEVESON And also maintain standards.
A. Yes, and we query whether the adjudicatory body would also do the standards, you might have to do that separately. LORD JUSTICE LEVESON I agree, and I talk about three limbs.
A. So if we're talking about the I mean let's deal with that part of this body or that body which has enforcement mechanisms. What it is enforcing there is behaviours which are found to be in breach of the general law. They're not I am not proposing any change in the substantive law here in terms of either defamation or privacy, and put aside my point about having a separate tort because I've agreed with Mr Jay it wouldn't make that much practical difference, so you're just talking about provision of remedies, and what you're trying to do is effectively to make the current purpose of the PCC, which is to provide fast-track remedies in situations like this, far more effective in the circumstances in which certainly I've come to the conclusion that the PCC cannot do it by voluntary behaviour. So that's what you're doing. There's no way in the world that process is going to lead to control of the press. It's completely nonsense. And I mean who are so you have a press commission, let's call it that. They have an office, you have adjudicators, they have power to require publication of corrections and apologies, they may have power to award damages. And query, although I think's it's a really tricky area, this, whether they have power to restrain publication in advance of publication in privacy cases. Okay. But how would any of that lead to LORD JUSTICE LEVESON Yes, I ought just to say so I can test you on the question of restraint, prior restraint, you suggest there should be a presumption
A. Yes. LORD JUSTICE LEVESON of provider notification. Was it in your speech
A. Yes, it was. LORD JUSTICE LEVESON that the answer to that might be in default, exemplary damages?
A. Yes. LORD JUSTICE LEVESON It was in your speech?
A. Yes, it was, page 10. I mean I didn't come to a I thought about this a lot and talked to a lot of people before I wrote that paragraph, and it is and of course well informed by a lot of the discussions I had over in the Ministry of Justice. It's a really complicated area; you know it, sir, better than I do, about whether you should have an absolute requirement of prior notification or whether it should have some qualification. And in the discussions I've had with serious senior editors, there could be cases where it was in the public interest for essentially the subject to be ambushed. Not very many, but they may be very serious cases. So I was trying to find a way through, and I think my suggestion there was you make this presumption and then if they can't meet the test, public interest, then it would be open in very serious cases for there to be an award of exemplary damages against them so they have to take that into account when they make a risk assessment. LORD JUSTICE LEVESON Yes. The other possibility that I think I asked somebody about was that there is some mechanism for an editor to go to the Commission and say, "We don't want to notify", so there's an independent view
A. That would be a very good idea, I think, yes. LORD JUSTICE LEVESON Of course you couldn't force people to do it. It would be evidence that would be relevant to the court to consider if you had or you hadn't.
A. Yes. LORD JUSTICE LEVESON And if you'd ignored the advice
A. That you were given. LORD JUSTICE LEVESON then that's relevant.
A. No, I think that's a very good idea, yes, and I think that would work too. Just going back to this issue of state control, I mean the Commission is not going to be sending around Gauleiters into the newsrooms of newspapers, or even explaining to editors they won't get honours or invitations to Ascot at the end of the at the appropriate time. The way our society works, which is very pluralist anyway, isn't like that, and we are I mean, my observation far more open than many, not all but many European jurisdictions. I don't think anything's going to change in respect of this. LORD JUSTICE LEVESON Well, you mean our society isn't going to change?
A. Sorry, my sentence rather tailed off. I don't think that the pluralism is going to change, just because you have a press commission which is backed has a few powers and enjoys public confidence, which the current arrangement palpably doesn't. LORD JUSTICE LEVESON I think that's probably a very convenient moment at which to conclude, Mr Straw. Thank you very much.
A. Thank you very much, sir. LORD JUSTICE LEVESON Right. Well, you shrug, Mr Jay. You've allowed me to have an afternoon to do some work. Thank you very much indeed. We'll say 10 o'clock tomorrow morning. Thank you. (1.02 pm)


Gave a statement at the hearing on 16 May 2012 (AM) ; and submitted 10 pieces of evidence


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