Afternoon Hearing on 22 May 2012

Lord Smith of Finsbury gave a statement at this hearing

Hearing Transcript

(2.00 pm) MS PATRY HOSKINS Good afternoon, sir. We have one witness this afternoon and that witness is Lord Smith. CHRISTOPHER ROBERT SMITH (sworn) Questions by MS PATRY HOSKINS MS PATRY HOSKINS Lord Smith, if you could take a seat and make yourself comfortable. First of all, could you provide your full name to the Inquiry, please?
A. I am Christopher Robert Smith, Lord Smith of Finsbury. LORD JUSTICE LEVESON Lord Smith, I think you've previously appeared by proxy at the Inquiry. Let me thank you for the evidence that you there provided, although given through another voice, and indeed for your present statement and the obvious work that's gone into it. Thank you.
A. Thank you. MS PATRY HOSKINS As Lord Justice Leveson has indicated, you've actually now provided two statements to the Inquiry. The first was in relation to your role as chairman of the Advertising Standards Authority, and it's dated 16 September 2011. The second is dated 30 April 2012, and that relates to Module 3 issues, if I can describe it in that way. Can I confirm that all that amounts to your formal evidence to this Inquiry?
A. It does indeed.
Q. Thank you very much. We're going to start, please, with a description of your career history. In that respect, if you would turn to tab 1 of the bundle you should find your second witness statement. At paragraph 1 of that, you have set out helpfully for us a brief summary of your career history. You explain there that for 22 years, from the period 1983 to 2005, you were the Labour Member of Parliament for Islington South and Finsbury, and from 1997 to 2001 in particular you were Secretary of State for Culture, Media and Sport, responsible, amongst other things, for government policy towards the media and the press. You explain that from 2003 to 2008 you were founding director of the Clore Leadership Programme. You're currently the chairman of the Environment Agency and chairman of the Advertising Standards Authority, and you explain that you've recently been reappointed for a further term of office for both positions. For the purposes of these questions, we'll be focusing on the period 1997 to 2001, when you were Secretary of State for Culture, Media and Sport. You took office, as I understand it, on 3 May 1997. Would that be approximately correct?
A. Yes. Two days after the election.
Q. Two days after the election. Sticking with that date in your mind, please, I want to understand the position in terms of media, government policy and what the policy was in relation to the media and press. I want to understand the position you inherited on that date. So if we can just rehearse the history very briefly in this way. It's correct to say, isn't it, that roughly seven years before that, in June 1990, Sir David Calcutt's first report had essentially ushered in the abolition of the Press Council and set up the PCC. Calcutt 2, the second Calcutt report, was delivered in January 1993, so about four years before you took up office, and this concluded that the PCC was not an effective regulator of the press, essentially on the basis that the body was set up by the industry and operating a code of practice which was devised by the industry and he considered to be overfavourable to the industry. So good so far?
A. That would be an accurate summary of Sir David Calcutt's conclusions.
Q. He recommended in 1993 the establishment of a statutory press tribunal. You're very familiar with that.
A. Yes.
Q. That statutory tribunal to have the power to impose fines, amongst other things, and require the printing of apologies and corrections and so on. Overall, Lord Wakeham accepted it was a rather damning assessment of the PCC in 1993. That was all before your time. I simply want to set the background to your evidence. Others will, in due course, be asked about it. Only one other aspect of the history that we need to remember before we focus on your questions is that on 1 January 1995, Lord Wakeham had been appointed chairman of the PCC. That was just before your time, but nevertheless he remained chairman of the PCC when you took office.
A. I think he was chairman of the PCC throughout my period of office as Secretary of State.
Q. Going back to the date that I asked you to stick in your mind, 3 May 1997, can you assist us with this: what were your impressions, on taking up office, of the culture, practices and ethics of the press at that time?
A. The first thing to say is that it probably wasn't a hugely current issue at that moment. There had, of course, been a lot of discussion and debate around the time of both the Calcutt reports, but since the Calcutt review had taken place, and especially since John Wakeham had taken over as chairman of the PCC, the issue had appeared to go off the current political boil. One of the things I would say is that I think John Wakeham was outstandingly skilful at taking the PCC forward enough to take the sting out of the political debate, and it was almost certainly due to to the steps that he had already taken, in terms of the people he'd brought on to membership of the PCC, the way in which it was making its adjudications, and he'd already taken quite a lot of steps to effectively ensure that the Calcutt proposal for statutory intervention did not have any political legs. When I became Secretary of State in 1997, I don't think at that moment there was any major public or political demand for statutory intervention.
Q. So that was the position you inherited. You tell us at paragraph 4 of your statement, just over the page from where we've been looking you explain that the major change that had taken place was the appointment of Lord Wakeham but you say at the end of that paragraph that one of the first things you did on taking up office is you met with Lord Wakeham on 25 June 1997 to hear his views and proposals and to identify areas where further progress might be needed. Given you say that there was no public demand, it wasn't something that was top of everyone's agenda, why identify areas where further progress might be needed?
A. Because it was despite not being a particularly hot current issue, it was nonetheless clearly important, and as I had taken over, as Secretary of State, responsibility for the government's policy generally towards the media and press regulation, I thought it was important to meet Lord Wakeham I didn't know him particularly well prior to that point to hear what his views were, how things were going, and to indicate that I think at that stage I thought that probably the steps that had already been taken didn't go really far enough, but I wanted to have a candid and constructive discussion with him about what the future might hold.
Q. Okay. So you LORD JUSTICE LEVESON Presumably you knew Lord Wakeham?
A. I knew him a bit but more as a figure across the other side of the House of Commons until he was translated to the House of Lords. I'd seen him at the dispatch box but I didn't particularly know him well personally. I got to know him quite well over the succeeding months. MS PATRY HOSKINS Around this period, May/June 1997, you'd just taken up this post. You've explained that you met with Lord Wakeham to discuss the future. You've explained that at that time the behaviour of the press was not particularly in the public eye. What were your views though about how the press should be regulated, on taking up office? Were you a believer in self-regulation? Were you a supporter of the Calcutt 2 recommendations? Where did your opinion lie?
A. I was a strong believer in self-regulation, and I still am. In a democracy, I believe it is very dangerous to go down the road of statutory regulation of the press, and however deleterious some of the behaviour of the press may from time to time be, nonetheless having in place a permanent apparatus of state regulation I think would be profoundly detrimental to free speech. I still believe that. LORD JUSTICE LEVESON Will you please explain what you mean by "self-regulation"? I've said it once today already. Lots of people mean very, very different things by it, and I'd be very grateful, as you explain your view, if you'd expound precisely what you mean by that and what you done mean.
A. By "self-regulation", I mean that the press should be responsible for policing its own rules, should do so effectively that perhaps we will come onto in due course. MS PATRY HOSKINS Yes.
A. As I say right at the end of my statement of evidence, I think in any self-regulatory system there is scope for having some sort of statutory backstop to assist with the enforcement of decisions that are made by the self-regulatory system, but the decisions themselves should be made by a body that is voluntarily put together by the press rather than imposed upon them by government decision. LORD JUSTICE LEVESON Right. Sorry, I'm going to just press you on what that means. Decisions by a body voluntarily put forward by the press. So you don't necessarily mean editors?
A. Not necessarily editors at all. Indeed, I think it could be argued that having current editors sitting on the adjudicatory body for the press is not necessarily a particularly sensible way of proceeding. LORD JUSTICE LEVESON Well, so this is why I'm simply trying to explore what the concept is, because although, save for Sir Christopher Meyer, most people have concerns about the current PCC system but describe it as self-regulatory, that's very much dominated by press editors on the Code Committee, and indeed the chairman is selected effectively through PressBoF, which is very much dominated by, if not exclusively staffed I'm not sure, I think there may be some independent people there now by the press. So if they can nominate everybody who's on it I'm not suggesting this is quite how it works then the element of having independent engagement becomes a little bit more diffused because you can choose who your independent people are.
A. I think the key is having someone in the chair who is unimpeachably independent, and I think John Wakeham actually was in the way in which he ran the PCC. I think that's also why he was right to bring in significant people from the world outside who had no connection whatsoever with the press. The best analogy I can draw and you've already received evidence on this is with the Advertising Standards Authority, where, as chairman, I am appointed by ASBoF, which is the advertising equivalent of PressBoF, which provides the money for the system by raising a levy on all advertising spend. ASBoF is an entity primarily drawn from the advertising industry but in seeking a chairman for the ASA they are required by the memorandum and articles of the ASA to look for someone who has had no connection whatsoever with the advertising industry in the course of their life. So they are required to look for someone who is totally independent. Then appointments to the ASA council are made by that chairman and in drawing those appointments, he is required to choose at least two-thirds of the members who have also had no connection whatsoever with the advertising and marketing industry during the course of their life. So built into the system is a robust provision for independence of mind and thought. LORD JUSTICE LEVESON I must let Ms Patry Hoskins continue, but let me just ask whether the parallel quite works between the ASA and the Press Council, because in relation to the ASA, you have standards of appropriate advertisements, and if an advertiser wants to advertise in a way that offends those standards, then the media and the rest simply won't publish the adverts.
A. Yes. LORD JUSTICE LEVESON There's a tremendously easy sanction. That's the first thing. The second thing is that there is nothing perhaps quite so fundamental within advertising as within the press, because we can all agree with truthful, honest, decent I can't remember the phrases.
A. Legal, decent, honest and truthful. LORD JUSTICE LEVESON I didn't do badly.
A. Very good. LORD JUSTICE LEVESON for advertising, but actually, in relation to intense desire for a free press, that actually raises other issues which create a tension perhaps between the press and those who are likely to complain about the press, and therefore it may be rather more difficult to find somebody who is truly independent in the way that I am sure is possible for ASA to staff the Press Complaints Commission. If I give as the example I think I'll be corrected because I'm going back some time in my memory. Lord Hunt explained that he was asked in terms whether he believed in a free press and freedom of speech in a way that some might think meant: "Are you going to be on our side?" I'm not suggesting that anybody asked him that in terms, and I'm not suggesting that was the intention behind the question, I say immediately, but that is the risk or there is a perceptive risk which wouldn't exist in advertising, I think. Correct me if you think I'm wrong.
A. No, no, you're absolutely right to draw quite a clear distinction between the two, and it is probably almost certainly easier to regulate advertising effectively than it is to do the same with the press because in advertising there is a clear defined purpose of selling a product to the public and there are clear consumer protection ambitions to be met. In the case of the press, it's a matter of expression of opinion, of description of people or actions that may or may not have a harmful or detrimental effect on those people that they're talking about. LORD JUSTICE LEVESON The concept of public interest.
A. Much more difficult. And the concept of public interest in relation to advertising is relatively clearly and easily defined. The concept of public interest in relation to the press is much more difficult to define. So you're absolutely right to identify that there are major differences between the two. The other difference that you have also identified is that we have a very effective sanction at the ASA, which is that if we find an advertisement to be in breach of the code then it cannot appear in any medium, and there is an agreement across all parts of the media that if there is an adverse adjudication, they will not carry the ad. That's a quite powerful sanction. LORD JUSTICE LEVESON I'm sorry. MS PATRY HOSKINS No, no, please. We'll come back in due course to this very interesting issue of the future of press regulation and if any analogy can be drawn with the authority's work, that would be very useful. I'm just going to continue to take you through the chronology. We'd been discussing your views back in early or mid-1997 when you took office, and you've told us about your views, that you believe very much in self-regulation. It's at that point that Lord Justice Leveson asked you about what that meant. If you look at paragraph 5 of your statement, you confirm that. You say: "The only way to secure the objective of ethical behaviour is through the self-regulatory route." But you go on to say that you think it must be far more robust and effective than it has been, and that your views during your time at Secretary of State probably became stronger in wanting to see more robustness in the operations of the PCC. As you identify and we'll look at this in some detail there were significant improvements in the wake of the death of Diana, Princess of Wales. But they were still, you say, insufficient. We will look at that in some detail if we can. If we just, again, look at dates, Diana Princess of Wales died on 31 August 1997, so a few months after you took office. You explain in paragraph 6 of your statement that following her death there was much public concern about the actions of the paparazzi who had chased her. In fact, you go on to tell us, further down in your witness statement, paragraph 9, that in the two or three weeks following her death you received thousands of letters about press conduct. Can you tell us a bit about that? Were those from members of the public, from organisations?
A. There were entirely letters 1,200 of them that came into the department in the couple of weeks or so after the death of Diana, all from ordinary members of the public, and the overwhelming burden of those letters was that the actions of the paparazzi were unacceptable, press regulation clearly doesn't work, you, the government, have to do something about it and we need much better protection against intrusion.
Q. Apart from the letters that you received at your department, can you give us a flavour of how you could gauge public opinion on this issue at that time?
A. It was clearly something that was of general public concern, not just the letters that were coming in to the department but the discussions that were taking place in pubs and buses up and down the country that you pick up from all sorts of different sources, coupled with actually quite a lot of discussion and debate in the media itself about what had happened, and including, of course, lots of letters to the press that gave the public's view alongside the press' view.
Q. I think I heard you I think I'd be correct in saying that you said that one of the concerns is that regulation of the press hadn't worked. Is that the feeling that you got from the letters and from the
A. That was very much the burden of a lot of the letters that came in, yes.
Q. So quite a contrast from when you'd first taken up office, when public concern didn't seem to be very high, and then suddenly overnight, literally, very high?
A. It had become, directly as a result of the tragedy in Paris, a very hot current topic of public concern and debate.
Q. You tell us at paragraph 7 of your statement that what you did is that on 2 September, so two days after the death, you wrote to the Prime Minister to recommend that the government should not make any hasty public comments about press regulation, that it might be necessary to look at laws relating to harassment but it would not be desirable or practical to move towards privacy legislation. You also say it was up to newspaper editors and proprietors, in the light of public sentiment, to indicate now what action they proposed and that you would be meeting with Lord Wakeham on 8 September. Now, just in case there's anything you would like to add, let's look at the actual document that was sent. If you look behind tab 2 of the bundle you have, you should see the first page is the letter do you call that a letter? Memo? Whatever it is.
A. Memorandum.
Q. Memo that you sent to the Prime Minister on that date, 2 September 1997. You make it absolutely clear in the first paragraph that there should be, essentially, abstinence from any substantive comment on the issue immediately. You explain that the issues of press regulation are complex, have a long history obviously we know that and we've just been discussing Calcutt and Calcutt 2 and then you say this in the third paragraph: "As the first step, it is for newspaper editors and proprietors now urgently to indicate what action they propose to take in the light of the weekend's events." Then you explain that John Wakeham is now engaged in an urgent review with editors and so on. I understand perhaps the concern not to do anything rash and not to make a statement immediately, but why, in your view, was it for newspaper editors and proprietors to do something about it, given the very strong public opinion and sentiment at that time?
A. The first thing to say is that I believe it's a very important lesson for governments not to rush into making hasty pronouncements in immediate response to particular events. Much better to consider, to prepare and to come out with statements and judgments that are much more fully formed some time after the event. Indeed, as I said in my memorandum to the Prime Minister: "In due course, however, we shall be called upon to make a clear statement of our position and I shall put proposals to colleagues accordingly." My point about the newspaper editors and proprietors now urgently to indicate what action they propose to take was really to put the onus first of all tonight them, to say, "Look, folks, there's a huge amount of public concern out there. What do you, channelled through the rather able medium of Lord Wakeham, propose to do to change your behaviour?" With the thought that if that was not going to be sufficient, then government might need to bring further pressure to bear subsequently.
Q. That's what you say in the third paragraph: "This will help establish a benchmark against which to consider whether further government action is needed."
A. Yes.
Q. Am I right in thinking that essentially you said, "You, proprietors and editors, go away and think about it. You come up with a proposal and then we will look at it, decide whether it's enough, and if it's not, we might have to propose some further changes ourselves"?
A. Yes.
Q. Is that basically the position?
A. Yes, although of course in the discussions that I had with Lord Wakeham a few days after I'd put that memorandum to the Prime Minister, I did push him to go further than he was already, at that stage, proposing to do.
Q. We'll come onto the first meeting that you had post the death of Diana in a moment. At paragraph 8 of your statement, you tell us that your main point of contact for discussions with the press at that time was Lord Wakeham. You repeated that several times.
A. Yes.
Q. You say that you don't recall much contact with proprietors or editors yourself. I want to understand why it was that that view was taken, that you would simply entrust this discussion that needed to take place with the press and Lord Wakeham.
A. I think I took that view at that stage because Lord Wakeham was himself keen to take the initiative and to make the running. I think during that period of the three or four weeks after 31 August, Lord Wakeham acted primarily as a strong regulator of the press rather than as a spokesman for the press. He was coming forward with ideas and proposals for tightening up the PCC code. He was talking with me about how he intended to get that agreed by the Code Committee, the public statements that he was going to make in order to push the agenda forward. My view was that because he was being so proactive, so keen to make progress on this, that actually that was much the best way of getting the press rowing in behind him. One of the other things that he admitted to me in private was he said, "If the government can keep up some external pressure on me, pushing me all the time to go a bit further, then that will be very helpful, he said, in enabling me to make better progress with the editors and proprietors." LORD JUSTICE LEVESON That's: "If you don't do what I say, you're going to get worse"?
A. Exactly. MS PATRY HOSKINS Exactly. You described him as regulator. I think he himself said in evidence that he didn't consider himself to be a regulator, but I see your point.
A. I think one of the interesting dilemmas of the chairmanship of the PCC, especially at that time and I think it endures is that the chairman is both and regulator and a champion. There is a very interesting potential conflict in those roles, and although a succession of chairs of the PCC would probably not wish to describe themselves as regulators, they would probably have seen themselves more as mediators. I think the public were expecting them to be regulators, and for that period in the immediate aftermath of the death of Diana, I think John Wakeham was stepping up to the plate and being a regulator. LORD JUSTICE LEVESON He was encouraging others to accept restrictions.
A. Yes. LORD JUSTICE LEVESON But how can you ever be both a regulator and a champion?
A. I think the nearest anyone has ever come to it is John Wakeham. LORD JUSTICE LEVESON That may be, but are they not not merely not always consistent but actually inconsistent?
A. I think they potentially present conflicts but not always, and there are times when being an advocate for the freedom of the press sits relatively easily alongside a role of keeping the press honest in trying to preserve those freedoms, and I think it is possible to be both, but you have to have some pretty clearly defined boundaries and I think they've never been in in terms of the role of the chairman of the PCC, I don't think they've ever been as clearly defined as potentially they ought to be. LORD JUSTICE LEVESON That's probably the point, because if I wanted to complain to the PCC, or to a body because I believed that I'd been unfairly treated by the press, I'm not sure I would want to go to somebody whose role in any sense was to be a champion of the press.
A. Perhaps "champion of the press" is not the right term. "Champion of the freedom of the press" might be a better are description, because I think it is possible to have confidence in the ability of someone to adjudicate, to analyse the information in front of them, to come to a robust decision against the rules that are laid down, whilst at the same time defending, in broad and general terms, the right of free expression in a free society. LORD JUSTICE LEVESON I understand that, but speaking from a judicial perspective, I think I might be concerned, if I were a complainant, that such a person might use the rather imprecise language of the code and define it against me, rather than absolutely square, because of their emphatic interest in a free press. Of course one has to be conscious of the importance of a free press and the importance of freedom of expression, but I think that if I were approaching somebody who was tasked with judging whether I had a legitimate complaint against the press, I would want the scales to be square, not tilted.
A. And the scales absolutely have to be square. Because of the grey area nature of some of the decisions that will need to be made by any press regulatory body, I can see absolutely the point about the need for the complainant to have confidence, but if the rules are as clear as it is possible to make them and if the process by which the chairman and the other members of the PCC come to their conclusions are clear and transparent and follow absolutely robust procedure, then I think it is possible for a complainant to have confidence. MS PATRY HOSKINS Perhaps we'll come back to discuss this when we're discussing the role that Lord Wakeham played during the passing of the human rights bill, but we'll come back to that in a moment. We're still going through the chronology. You'll understand why we're doing this, Lord Smith. If we look at the terms of reference of this Inquiry, one of the things that Lord Justice Leveson will have to do is to I just want to quote the exact paragraph: has to consider the extent to which there was a failure to act on previous warnings about media misconduct." So we need to understand what the PCC was doing, especially in the light of, for example, events like the death of Princess Diana. We turn now to the meeting that you had. You told the Prime Minister you were going to have a meeting with Lord Wakeham to discuss potential changes, and you met with him on 8 September. If you look behind tab 2, behind the memo that we were just looking at to the Prime Minister, you will find a document dated 9 September 1997 which appears to be a minute of your meeting with Lord Wakeham on 8 September. Do you see that?
A. Yes.
Q. It's prepared by the principal private secretary.
A. Yes.
Q. What you tell us about that meeting in your statement, before we look at the detail of it, is that you know that he was seeking urgent changes to the code and that you suggested further possible measures which could be contemplated in particular in relation to the actions of the paparazzi. If we look at the document itself, the minutes, it's clear there paragraph 2, you say that you welcome Lord Wakeham's initiative in setting in hand a review of what can be done to control the activities of the paparazzi. Then, in paragraph 3, Lord Wakeham explains that it might take some time. Paragraph 4, Lord Wakeham explains the possible programme of action. Paragraph 5, he explains that this is all going to be set out in a speech to the London Press Club. At paragraph 6, your response to that. You welcome the agenda, you wish him success. It's explained that you were particularly concerned that there should be a permanent change in press attitudes and that the press should not slip back into old ways when the events of the past week have receded from recent memory. You say that the government's natural instinct is to strengthen legislation rather than to introduce any privacy or harassment legislation and that you would watch developments with interest.
A. To strengthen self-regulation.
Q. Sorry, strengthen self-regulation. At paragraph 7, there's then a question on timescale able and then there's a discussion right at the end on procedural matters, ie whether it should be disclosed that a meeting has taken place. I don't see any reference in that to you saying, Lord Smith well, you say in your statement that you suggested further possible measures that could be taken. I don't see any mention of this. I'm wondering whether that's been missed out in the minute or
A. There are some references where Lord Wakeham was explaining his proposals. Under (c) I say it says: "The Secretary of State stressed that it was important to address the means by which photographs were taken rather than their source." Which reflects back on some of those points about the paparazzi that I made in my statement. And then, under (e): "The Secretary of State suggested that the press might, on such occasions, agree to take pooled photographs. Mr Phillips [who was my official] noted that there was precedent for press co-operation in the matter of news blackouts." Then, under (f): "The Secretary of State said that Lord Wakeham might also usefully look at the definition of the public interest defence in the code, which he noted was more widely drawn than that favoured either by the Calcutt or Select Committee reports." So there were various points where Lord Wakeham was saying, "I'm proposing this", where I was saying, "How about going a bit further and doing that?"
Q. Okay, so there was a discussion about options. You then tell us in your statement at paragraph 11 that you kept in regular contact with him and his office over the following three weeks as he worked up his proposition for changes to the code. So he worked them up. Did you have any other input into the changes? Other than that discussion on 8 September and the discussions that you made, did you have any other formal input into the changes that he ended up proposing?
A. There was no until 24 September, which was the day before he made his public statement, when I next met him, there was no formal meeting, and as far as I am aware, there was no formal correspondence during that time, but there would almost certainly have been discussions between my private office and his office at the PCC about the evolving nature of what was happening.
Q. Tell me if my assessment is unfair, but the impression that's coming out here is that Princess Diana dies and effectively you write to the Prime Minister and you say, "Well, don't do anything hasty, I'm going to be meeting with Lord Wakeham and I'll discuss with him what the right thing to do is, and then if anything else needs to be done, the government can have a think about that." You then meet with Lord Wakeham and have an informal discussion about the proposed changes. He works up the proposals and on 25 September he's, essentially worked up the proposals himself. One might say that the government essentially handed over all responsibility following the death of Diana to Lord Wakeham. The government could have been more proactive, it might be said, during that period, in essentially suggesting changes. Would that be a fair assessment or
A. I don't think that would be fair at all because the discussions that we had on 8 September were very much an assessment of what he was proposing, coupled with a range of proposals that I was making. In the subsequent couple of weeks, there was further discussion between our offices, so the government were keeping very much in touch with what Lord Wakeham was proposing. Our view was that it was up to him to come forward with proposals at this stage. It wasn't up to the government to come forward with proposals.
Q. Right.
A. When I met with him again on 24 September, the three principal things that I said basically I said to him at that point: "You've done pretty well to get this far", which he had, and he had been, I think, remarkably successful in getting some rather reluctant press editors and proprietors to agree to a range of changes. But the three things that I said, "Really, this isn't good enough yet" were firstly the need for the PCC
Q. Can I interrupt you just so we can actually be looking at the minutes of the meeting of 24 September. It's not an exam. You can look at what you actually said. It's just on from tab 2. It's minutes dated 29 September 1997, but they refer to the meeting on 24 September. Do you see that?
A. Yes.
Q. We can see there from paragraph 2 that you do say quite clearly: "Thank you very much for your proposals but the press must stay in the letter and spirit of undertakings", and that there remain areas in which the press needs to make further progress. Then, over the page at paragraph 5, this is where you set out that there are three further areas where the Press Complaints Commission needs to address. I interrupted you when you were about to tell us what those were.
A. These were indeed what I was recalling as being the three principal areas where I thought further progress was absolutely needed. The first was the issue of sanctions. The second was the definition of the public interest used to justify intrusion, and the third was the way in which the Commission's procedures were pretty much entirely reactive rather than proactive or intervening before the event.
Q. Of course, if we look back in the note to paragraph 4, two of these issues are ones where Lord Wakeham had said to you, in effect: "I've been able to make absolutely no headway on these points." Look at paragraph 4: "He explained that there were two issues on which he had been unable to make headway [presumably with editors and proprietors]. The first was on sanctions against newspapers that broke the code. This needed a great deal more thought." Then on the issue of children of well-known figures, that's fine, but they wouldn't accept that spouses should be similarly protected. Do you see that?
A. Yeah. On the first issue of sanctions, I think we all accepted that this was a very difficult area. It's still a very difficult area, referring back to our exchange earlier on about the rather effective sanctions that are available to the ASA that would not be similarly translatable to any revamped press regulatory body. The issues of the definition of "public interest" and the proactive role that the PCC could or ought to play, those had not, at that stage, as far as I can recall, been part of the Lord Wakeham agenda. He did develop a procedure subsequently where he personally would intervene with editors prior to a story appearing, but that was very much part of his personal style and relationship with editors rather than a wholesale change in the reactive/proactive nature of the way the PCC worked.
Q. Can I stick on sanctions for the moment. It's clear from this minute of the meeting two things are clear. The first is that Lord Wakeham says, "Look, I've made no headway on sanctions. I'll need to give that a great deal more thought." Secondly, you say, "Despite that, frankly, it's one area which you need to address. It's something which still firmly remains on the agenda." Am I fairly assessing it?
A. Yes.
Q. We know from the announcement the very next day that sanctions did not form part of the changes proposed by Lord Wakeham and in fact they never did form part of any of the changes ever proposed by Lord Wakeham. Did you take any steps yourself to move forward the agenda on this issue or any other steps to ensure that this was an issue that continued to be reviewed and taken seriously by the PCC?
A. It's something that I raised from time to time, but I have to say with as little success subsequently as Lord Wakeham himself had had at that early outset. I suppose it's worth saying that one of the difficulties in this whole area is that the balance of power between government and the press is a complex matter and one which there tends to be much more equality of power than there is with the role of government in many other areas of national life. There are moments when the balance changes in the government's favour, and the death of Diana was one such moment, where there was clear public demand for change. And so the changes that were put in place and there were quite a considerable number of changes that Lord Wakeham was able to put in place at that point were able to be carried through, sometimes, I suspect, with gritted teeth amongst the editors and proprietors, because there was a public wind at the back of change. But that moment did not last for terribly long, and the equilibrium returned more or less to normal, which makes it very difficult for government to take strident steps to restrain press activity. I would suggest that we are living through currently another such moment, where the balance has changed and it is possible to make further progress, but these are moments that have be seized.
Q. Princess Diana died on 31 August 1997 and you were Secretary of State until 2001. Just looking back over your years, how long did that period last, where there was that window of opportunity to make a difference?
A. Probably, I would estimate, for no more than two or three months.
Q. Okay. And after that, what? The position became much as it had been when you first took office?
A. Yes, although we did have a considerable amount of discussion, of course, as I've reflected in my statement, about the incorporation of the European Convention on Human Rights into British law and the potential impact that that might have on the press and press freedom and also on press activity.
Q. We'll come back to that. Moving through the chronology, we know that the next day after this meeting, Lord Wakeham's proposals were published and you describe the proposed changes in some detail in your statement. You explain that these included increased protection against the publication of photographs obtained by persistent pursuit or in places which might legitimately be regarded as private, extended protection for children between 16 and 21 of course, that was in direct response to the protection needed for the young princes who had lost their mother a ban on payment to minors for stories, requirements for intrusion into grief or shock to be handled with sympathy and then various other small changes, including a small change to the "public interest" definition. You say that on the day of publication you issued a press release welcoming the changes but still saying that, yes, the PCC had done well, but that you expected newspapers to abide by all of this and that you expected the Commissioner and the newspaper industry to take the process of self-regulation even further. So again, we get the same scenario: yes, you've done well, but you kept pushing to say, "I want you to continue to do rather more." Would be that a fair assessment?
A. That would be an entirely fair assessment, yes.
Q. At that stage, you said in evidence earlier that one of the reasons you were pushing is because Lord Wakeham had asked you to. Essentially he'd said, "Look, if you put a bit of pressure on me, then it would be easier for editors and proprietors to accept the changes I've proposed." So were you pushing because essentially there was this discussion with Lord Wakeham about needing to keep up the pressure or was the pressure because you genuinely believed or thought that you could actually push them into doing rather more?
A. The answer is both.
Q. Did you ever achieve any more than Lord Wakeham himself put forward.
A. No, and it's a matter of some regret to me that I didn't perhaps often enough return to the fray subsequently over the course of the following three years.
Q. In paragraph 13 of your statement, you tell us that you wanted to keep the pressure up on the PCC in light of these proposals. On 25 November, you wrote a minute to the Prime Minister essentially circulated to all Cabinet colleagues, saying: "Although these proposals are a welcome step, I don't think they go far enough to ensure a proper balance between the freedom of the press and the rights of the individual." You've just told us that you never did achieve the changes that you would have liked to see. Two things, really. Which changes do you think would have made a difference? Two, why do you think that they weren't achieved?
A. I think the three principal changes that I think had crystallised in my mind and in the mind of government colleagues following the meeting on 24 September with Lord Wakeham were those three that we identified from that meeting which related to sanctions, the definition of public interest and the potential for the PCC to become most proactive, and I think those were the three major things that I kept on pressing.
Q. You tell us, in effect in fact, expressly in paragraph 15 that you made no headway with the proposals that you would have liked to see, but of course all Lord Wakeham's proposals did translate to changes to the code. Why was that? Why was it that he was able to be successful where you were not?
A. Well, he was able to be successful because the proposals that he was making were relatively modest. The proposals that I was making would have been considerably stronger in their impact on the press. The other reason that I suspect he was quite successful was that there was external pressure, both from ourselves in government but also from the public, and the editors and proprietors at that time recognised they had to do something in order to demonstrate that they had learnt some lessons.
Q. You've described three things that you would have done that you think would have made a difference. Are there any other steps that you think you could have taken to advance those in any way?
A. Short of introducing government legislation, probably not, because bringing pressure to bear both on the PCC and more generally on the press through public statements and speeches and so on were the tried and tested ways of bringing government pressure to bear. The possibility of including legislation was something that I was very anxious to avoid, if at all possible.
Q. I'm told that Guy Black if you give me a moment, I'm just going to look at the note we were just looking at of your meeting. (Pause) LORD JUSTICE LEVESON I'll ask a question, which might take Ms Patry Hoskins slightly out of order, but she can revert. It is a matter of fact, isn't it, that the calamity of the press behaviour in relation to Princess Diana, which led to this activity and some change was then followed by the activity of the press revealed in Motorman in 2002, and the activity of the press revealed by phone hacking in the same period. So the moment might only have been a moment, but it wasn't really very enduring.
A. I think there were some changes that did endure, but as I say, I think in paragraph 20 of my submission, where I say: "Looking back, I should probably have been more active in continuing to press the case for further change, especially once the immediate public concerns had died down." And just earlier in that paragraph I say: "Lord Wakeham's changes did lead, for a period at least, to more acceptable behaviour on the part of the press." I'm afraid that after a while, some old habits began to creep back. LORD JUSTICE LEVESON But isn't that the problem with all this? One can go back to the end of the last war and I've said this several times in the course of the Inquiry. Royal Commission, behaviour improves. Royal Commission, behaviour approves. Calcutt 1, behaviour doesn't really improve. Calcutt 2, slight changes. Then this, Princess Diana, and try a little harder again. Then all these other things and nothing much happens and it all goes to bed and then the Guardian and eventually we don't need to recount recent history. How many times can we do this?
A. I think it's probably fair to say that for the two or three years following the Wakeham changes immediately after the death of Diana, the conduct of the press did improve. Certainly in terms of the specifics of the changes, their approach to the coverage of the princes, handling of children and minors, some of the intrusive taking of photographs, there was a palpable change of behaviour. But after that two to three-year period, I think it began to slip, and as we know from all the evidence that you've been receiving, it slipped grievously in quite a number of ways. The dilemma always is the freedom of one newspaper to engage in inappropriate activity is the freedom of another newspaper to investigate what they're doing LORD JUSTICE LEVESON No, with great respect, I don't accept that that
A. I don't equate them, I have to say, but one of my reasons for wanting to find a way of securing the genuine freedom of the press, whilst at the same time ensuring that behaviour is proper and that's a very difficult equations to make. One of my reasons for wanting to do that is that the freedom of the press can result in real public interest being secured. LORD JUSTICE LEVESON I have no doubt about that at all, and I remain obviously open to persuasion, but I do not accept that there would be any curtailment on the freedom of the press to hold all those in office to account, whether they be politicians, local government workers, health service workers, judges, or to indulge in investigative journalism, is imperilled by a system that prevents the type of behaviour which I've heard so much about in the last few months. Now, if you think I'm wrong about that, I'd be very, very interested to hear it.
A. You're not wrong at all and that must be what all of us, and especially, I hesitate to say, you, sir where all of us have to get to. The difficulty is finding the precise framework that will take us there. There are clearly activities which are plainly illegal. For those, having robust legal sanctions in place is obviously the way to go. There are other behaviours which are intrusive, which are unnecessarily damaging to individuals, which are unpleasant and unsavoury, and which need to be somehow curbed and controlled LORD JUSTICE LEVESON Except where there's a dramatic and obvious public interest.
A. Yes. LORD JUSTICE LEVESON And I recognise that, but if one just takes your first point first, plainly illegal, robust legal sanctions, this goes back to the example I provided the other day. Many persons have sat there and said, "Well, this isn't really a failure of the press; this is a failure of the criminal law", and I ask whether speeding is a failure of the criminal law or the offence of the motorist who is speeding, and whether we don't have to have a system whereby the press accept they don't need a policeman sitting at their shoulder and to say, "Well, you can't blame us for doing this, that or the other because the law was there and didn't enforce the law" is, to my mind, not an argument that causes me to be sympathetic to the view, but tell me. It's your evidence, not mine.
A. No, clearly someone who breaks the law, it is their responsibility for having done so. One of the problems, I suspect, in all of this is the culture that develops within the press not all parts of the press, but in some parts of the press where it is assumed that the end justifies the means, and the press needs to remind itself that that is not always the case. But how we produce a framework which enables the culture to change and to change permanently rather than just for another two or three years, that's what needs to be tried for. I doubt if we'll get it perfect, but it can be better than it is now. LORD JUSTICE LEVESON I can live with something short of perfect. What I personally would find it extremely difficult to live with is improving things for two years, because I would feel that a lot of people had spent a lot of money and put a lot of effort into not very much.
A. Mm. LORD JUSTICE LEVESON And that's everybody here and everybody who's sat where you're sitting, those who have told about the invasions of their privacy, who've gone through the process of giving evidence in public to identify the extent to which they've suffered at the hands of the press, and the public money. So two years would represent, for me, a real failure, I think.
A. And I have to hold up my hands and say the changes which we were able to secure in 1997 and which lasted for a two to three-year period in terms of their impact and effect, I regret that I didn't see properly at the time that this wasn't enough and we should have pushed further. MS PATRY HOSKINS Of course, one of the changes that was made in that two to three-year period was the coming into force of the human rights bill becoming the Human Rights Act. Can I touch on that briefly. We've discussed it with Lord Wakeham. You tell us at paragraph 16 that fairly soon after all these discussions about changes to the code, the focus changed because there was now a government proposal to incorporate the Human Rights Convention into British law. You tell us that getting the balance right between articles 8 and 10 was something that you were very anxious to secure and there were many discussions within government, and between yourself and the PCC and editors at that stage, to establish how you could best achieve your objectives. At paragraph 17 you say: "The press argued strongly that they were worried that the human rights bill would introduce a judge-made law of privacy by the back door as cases were gradually brought. They were demanding at the outset that the PCC and the press should be exempted from the provisions of the human rights bill." When you say "the press" were arguing strongly and then you go on to say "they were demanding that the press and the PCC should be essentially exempted", do you mean Lord Wakeham?
A. No, I mean both the press and Lord Wakeham. It was an argument that was being put quite strongly by a number of editors and proprietors, by Sir David English particularly, who was the chairman of the PCC Code Committee, and by Lord Wakeham, and in a way, when we got to these few months of discussion about the Human Rights Act, Lord Wakeham had moved from being in regulator mode, which he had been the previous September, into being champion of the freedom of the press mode by the time we got to these discussions.
Q. He suggested that the press should be exempted from the provisions of the human rights bill initially. He explained to us that that was a tactic, essentially, that he thought, "I may as well aim high and then we'll end up with a compromise", I think. Is that your recollection, that he was responsible essentially for tabling that particular issue?
A. I think he and others. I don't think he was solely responsible, but he was a very effective voice in arguing that case and certainly he gave every impression at the time of believing in it rather more than as a tactic. As I point out in my evidence, there were some quite robust discussions within government on this subject, and the law offices in particular were powerfully opposed to any suggestion that the press or the PCC, as public bodies, should be exempt from the provisions of the privacy part of the Convention.
Q. Of course that didn't happen. We ended up with section 12.
A. Yes.
Q. But what I want to ask you is about the appropriateness of the chairman of the PCC essentially lobbying for a complete exemption and then eventually being one of the parties to the agreement, to the solution, which ended up being section 12. In your view, is that an appropriate thing for the chairman of the PCC to do?
A. As things stood at the time, I think the role that Lord Wakeham played in relation to the press meant that if you wanted to find a collective view that was likely to find purchase across the editors and proprietors of the press remember, these are fiercely competing individuals quite a lot of the time if you wanted to secure a collective view, then Lord Wakeham was the route to channel it. So I think at the time everyone accepted that this was an appropriate role for him, both as an individual but also as chairman of the PCC, to play. If you ask me in general terms: "Is it an appropriate thing for the body that regulates the press?", probably I would have to say now: no.
Q. You then go on in your witness statement at paragraph 20 to say that you believed at the time the changes were made that they'd make some difference but you didn't believe that they would resolve the problems completely. With hindsight, the view is stronger. You say the changes led to a period where some more acceptable behaviour took place but then you say and you've already touched on this: "I'm afraid that after a while, some old habits began to creep back, and in any case there had been little progress on proactive work by the PCC on the public interest test and on effective sanctions." You go on to say at the end of the paragraph that you still believe, despite this, that strong self-regulation is the right answer but it does have to be demonstrably strong and that can't be said of the PCC at present. Earlier when you gave evidence, you had an exchange with Lord Justice Leveson about the ASA example and you were asked a number of questions about whether or not that example could successfully translate to a new regulatory body which regulates the press. We've covered that in some detail now. Is there anything else that you would like to say? You cover this at paragraphs 22 and 23 of your statement, if you want to refresh your memory on what you've said to us in writing. Is there anything in particular that you would like to add to what you've already said?
A. I think the two things I would add, apart from the importance of perceptible independence of the council that makes the decisions, are firstly finding effective sanctions in relation to the press the most obvious sanction would be a requirement for equal prominence. A system of fines of some kind has been mooted many times. Very difficult to put in place, but nonetheless should certainly be considered as a way of toughening the ability of the PCC or its successor to make a newspaper recognise that it has made a mistake and to deter it from making a similar mistake again. The other point I'd make is that ultimately the ASA system has two statutory backstops. In relation to the non-broadcast media, it's currently the Office of Fair Trading.
Q. Yes.
A. In relation to the broadcast media, it's Ofcom. Indeed, all our work in the broadcast arena is done on a co-regulatory basis on Ofcom's behalf rather than on a self-regulatory basis. I think having those back stops in place, which are hardly ever invoked we've referred, I think, two companies to the OFT in the course of the last four years. One was Ryanair, one was Groupon. In the case of Ofcom, I think there have been one or two cases of Ofcom taking over a licence inquiry into a particular broadcaster because of a persistent offence. So very rarely invoked, but the existence of the backstop means that our adjudications are probably taken more seriously by the people who receive them than if the backstops did not exist. LORD JUSTICE LEVESON Why shouldn't that happen for the press?
A. I think the potential for having a backstop in order to enable decisions of a self-regulatory body to be enforced effectively might well have quite a lot to be said for them. Rather than having direct statutory control or direct a government-appointed body making the decision LORD JUSTICE LEVESON There's no question of my going towards a government-appointed regulation.
A. If you still maintain a body that is voluntarily put together by the press, as we discussed earlier on, but make sure that its decisions are enforceable by having some sort of statutory authority underpinning it, I think that might provide a more effective ability to have for the press to have regard to. LORD JUSTICE LEVESON Just think about the word "voluntarily". If the ASA did not exist, Ofcom would have to do it.
A. In relation to broadcast media, yes. LORD JUSTICE LEVESON Yes, or the OFT.
A. In relation to the non-broadcast media, there is no statutory provision about advertising responsibility. If the ASA didn't exist, I suspect any government would have to put together something to replace it. LORD JUSTICE LEVESON Yes.
A. But the industry has always the advertising industry has always recognised that in order for advertising to be effective, it has to have some degree of trust from consumers, and this is a way for them of ensuring that it happens. LORD JUSTICE LEVESON Yes. But again, as I'm examining in my mind, of course, you are viewing whether the advertisement placed fits the standards that you identify.
A. Yes. LORD JUSTICE LEVESON So to that extent, the criticism that you make is directed not to the medium through which the advertisement is being put out to be the public; it's directed to the person who is putting the advertisement out.
A. Yes. It is the advertiser who is who carries responsibility for the advertisement, although, having said that, in the case of broadcast advertising, it is the broadcaster who ultimately carries responsibility, but they will, of course, pray in aid the case that the advertiser themselves has made to them. LORD JUSTICE LEVESON Yes, and to such extent as they've been convinced by the advertiser, then doubtless they will have remedies back against the advertiser. I'm not trying to look at the contractual arrangements. But there isn't that same one stage removed in relation to the press.
A. That is indeed true and that is why it is more difficult both to devise sanctions but also to get buy-in from right across the press. One of the reasons the ASA system is effective is that there is buy-in across the whole of the advertising industry. Everywhere recognises that this is a system that ultimately protects advertising, and simply for example, good companies who are good advertisers, who follow the code, don't want to be undercut by bad advertisers who don't follow the code. They want to see the system operating robustly. You don't have the same immediate buy-in across the press. LORD JUSTICE LEVESON No, and indeed the finance it's financed by advertising revenues, which is slightly different from the way in which who is paying for the regulation of the press.
A. The ASA system is financed by a 0.1 per cent levy on all advertising spend, whereas, of course, the PCC is financed by direct contributions from newspaper groups. LORD JUSTICE LEVESON Yes. The other problem of the system as present which you've really identified is it depends to a very, very large extent on finding an individual human being who is capable of commanding the respect of the entire press, the confidence of the public and the confidence of the government and/or politicians and all those who might be affected. That itself may be a pretty big ask.
A. It's a very big ask, and the nearest we have ever come to it was Lord Wakeham, who did, I think, in both the changes that he managed to persuade the press to accept and the way in which he followed them through, I think he was he did an outstanding job. It is an almost impossible task for any one individual to do. LORD JUSTICE LEVESON And in the context of also allowing him to be described as a champion, becomes even more difficult.
A. I can absolutely see the dilemma in this dual role that he performed and that up to now chairmen and women of the PCC have performed. LORD JUSTICE LEVESON Well, the default position more recently has been: "We weren't regulators at all", which means the press aren't regulated, if that's right.
A. And I think one of the important things that I think in any reformed PCC is that it has primarily to regard itself as a regulator. Certainly the ASA views itself as a regulator. LORD JUSTICE LEVESON Not a champion of advertising.
A. No, although we will, from time to time, remind the world that 99 per cent of advertising does not break the code and is indeed legal, decent, honest and truthful. LORD JUSTICE LEVESON What you're championing then is your code, actually.
A. Yes. LORD JUSTICE LEVESON You're not championing the industry; you're championing the code and the effectiveness of the code.
A. Absolutely. LORD JUSTICE LEVESON Which is rather different.
A. Yes. MS PATRY HOSKINS Lord Smith, those were all my questions. Is there anything that you would like to add?
A. There's just one further point that I would add, rather separate from most of the issues that we've been discussing and which has risen in one or two discussions in the House of Lords recently. That is in relation to decisions that are taken at the moment by secretaries of state about issues of media ownership and control. I believe very strongly, looking back on my time at Secretary of State but also looking at what's happened subsequently, that those decisions should almost certainly not rest with a political figure, however honourable that person may be. That decisions about applying the public interest plurality tests to media ownership issues are matters that should be for either the Competition Commission or Ofcom or both, and should not rest in the hands of a Secretary of State. LORD JUSTICE LEVESON How would one then ensure that the public interest, which politicians are elected to serve and are mandated to serve by those that elect them, are represented in the decision-making that must flow?
A. Because, sir, they would place a very clear requirement on Ofcom or the Competition Commission to judge the public interest when coming to their decision and presumably that decision would be reviewable by a court if it were inadequately made. LORD JUSTICE LEVESON But, as I'm sure you know, the decisions which we review and which I have reviewed in a different life always provide within them room for a policy view which is not irrational or which does not taking into account considerations which are irrelevant or not taking account of considerations which are relevant the Wednesbury test and I'm not sure the court is an appropriate vehicle to make policy decisions. I'm just wondering how you would ensure that the government, who will have a view about policy, should be able adequately and appropriately to feed into the decision of whichever body is charged with making the decision. To some extent it's all it's the question of the democratic deficit, isn't it?
A. Yes, but also there must be protection against any possible suggestion of a decision being made for partisan political reasons rather than for reasons of the national interest. LORD JUSTICE LEVESON Of course.
A. And so enabling a government view to be stated openly, transparently, put into the process alongside the overriding principle of the public interest as identified in legislation, and then to have an entirely impartial body then making the decision seems to be much better than placing what is ultimately going to be a potentially intolerable burden on an individual Secretary of State. LORD JUSTICE LEVESON Not least because I think somebody has said somewhere, either in the Inquiry or elsewhere, that every politician would have a strong view on some topics, one way or the other, and it then becomes difficult for them to exercise an independent national interest mind.
A. Absolutely. I know in a very small way and I hold a range of strong views if a view that I hold would in any way run the risk of jeopardising the impartiality of a decision that the ASA council had to make on a particular adjudication, I would resile myself from the process and ensure that I did not take any part in it. LORD JUSTICE LEVESON Yes. Well, that's on the competition issues. As I run through the remit that I have, is there anything that you would like to say in the light of all the circumstances as to the relationship between the press and politicians?
A. Always difficult, interesting, frequently infuriating. Politicians need the press. Politicians would love the press to be constantly adulatory about them. They never are. However, I would draw a distinction, I think, between the way in which the press deal with politicians and the way they deal with ordinary people who get caught up in events. Politicians put themselves forward into the public spotlight. LORD JUSTICE LEVESON That's a different point.
A. Ordinary people don't. LORD JUSTICE LEVESON Because it's dealing with the press and the public, and you say a politician is a member of the public and must have certain rights, but they have to be calibrated differently because they put themselves forward for public office.
A. Yes. LORD JUSTICE LEVESON I understand that. Very well.
A. In relation to the sort of public policy issues and the relationship of the politicians and the media, I always tried, through the whole of my time as Secretary of State, to approach issues of press regulation, media policy from the point of view of what is going to be best for a flourishing media, rather than from the point of view of which particular company is arguing what particular case, and I think it is perfectly possible for ministers to take that view and to take a properly impartial approach to the way in which they view these matters, despite the fact that the press are campaigning out there for or against political parties. It is entirely possible for ministers to approach the making of policy in a way that has regard to the public interest rather than any partisan interest. LORD JUSTICE LEVESON All right. Thank you. MS PATRY HOSKINS Thank you very much indeed. LORD JUSTICE LEVESON Lord Smith, thank you very much indeed.
A. Thank you. (3.36 pm)


Gave a statement at the hearing on 22 May 2012 (PM) ; and submitted 6 pieces of evidence


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