Afternoon Hearing on 09 July 2012

Lord Hunt of Wirral gave a statement at this hearing

Hearing Transcript

(2.00 pm) LORD JUSTICE LEVESON Yes. MR JAY Lord Black, may we look at the draft regulations, please, before we go back to your witness statement. These are under tab 6 of the bundle which has been prepared. LORD JUSTICE LEVESON Thank you. MR JAY It's our page 00052. If you look at the opening three regulations, the remit of the regulator: "The regulator shall regulate the following material published by the regulated entities, subject to the exceptions And you define the material as editorial content in various places, whether it be printed or electronic services and then there are various exceptions. In 3: "Regulator shall not deal with 3.3, for example, concerns about matters of taste, decency and due impartiality. Would you agree that one could have, in principle and in practice, secondary legislation which precisely reflected these regulations?
A. I dare say in any set of regulations you could have a parallel set of regulations which were based in statute. That's the nature of obligations on a publisher. So it would be impossible to disagree with that assertion. The question is why you would do it.
Q. Mm. Then in regulation 8 it may be we've covered this to some extent already complaints and mediation. This our page 00053. In the second sentence: "Regulated entities are expected to try and resolve their issues with the complainant directly where possible." This is to obviate the need for a complaint having to be made in the first place, is it?
A. This is to try to push more complaints back directly to the publisher to deal with, on the basis that that's likely to be quicker for the complainant, and indeed it is in the grain of what we're trying to do in terms of increasing transparency and accountability within publishers.
Q. Although one wouldn't expect a regulator of doctors or lawyers to be placing such an obligation on its regulated entities. Would you agree with that?
A. But this is, I think, symptomatic of the fact that actually in newspapers, quite often simple inaccuracies can occur just as a result of an accident. I think if you are a doctor and a small accident occurs, that's probably a rather different matter than if a fact is got wrong in a short local newspaper report. So where those are straightforward and simple, the publisher should short them out. I think there is also there would be a view in here that, of course, there may be circumstances where an individual perhaps his or her relationship with a particular newspaper had broken down to such an extent that that wasn't possible. Obviously in those circumstances, the complaints arm of the regulator would take over right at the start. This is just intended to be a statement of the norm.
Q. Thank you. Regulation 25, this deals with when a standards investigation is triggered. We saw three categories in your witness statement. There are four categories here but that doesn't matter. It's the definition of "systemic failure" in 25.1 of page 00056: where it appears that there has been one or more significant or serial or widespread breaches of the Editors' Code or ethical standards which indicate a systemic or serious failure at one or more regulated entities. So "systemic failure" includes serious failure, doesn't it?
A. As we discussed earlier, there could be examples where one single complaint had made clear that the governance within a newspaper had broken down to such an extent that it could trigger an investigation. So it may just be one episode. I think it is more likely to be where there is evidence of veal breaches that have built up over time, but it could be one.
Q. That arguably goes wider than that because it's the breaches which indicate the relevant failure. The relevant failure, although it's defined as a systemic failure, is in fact either a systemic failure or a serious failure. So you could have one single serious failure which is indicated by one or more serial breaches; do you see that?
A. Indeed, and that's why this is drafted in this way, to give the trust board the maximum amount of discretion to be able to trigger an investigation if it's clear that one of those pertains.
Q. Regulation 31, just to cover a point that you made before lunch, is where a regulated entity refuses to provide information. That refusal will be notified to the investigation panel. So that, as it were, the refusal will trigger or might trigger an investigation because in itself it in itself is regarded as a serious infringement, isn't it?
A. Correct.
Q. The rest of it is probably self-explanatory, apart from the issue of fines or financial sanctions which we see in annex B. This is page 00063: "Power to impose the sanction resides with the trust board on a referral from the standards and compliance panel." That is annex B clause 1.1. Then there are various guidelines. In 2.1: "The trust board shall have the power to fine a regulated entity up to 1 per cent of its annual turnover." But then there's a cap of ?1 million in 2.2, so in effect whichever is the higher. But responsibility for these guidelines I think resides with the IFB; is that correct?
A. In promulgating them in the first place, but as I said earlier, they will become part of the regulations, so they will, at that point, become the responsibility of the regulator.
Q. Thank you. Can I go back then to your proposal document, paragraph 40, the paragraph which deals with complaints.
A. Bear with me one second, Mr Jay.
Q. 00089.
A. This is paragraph 40 of the proposal document? LORD JUSTICE LEVESON The statement? MR JAY The proposal document.
A. Yes, dealing with complaints. I have it.
Q. I think it may be important to identify where this new complaints arm of the trust board or the new regulator, pardon me differs from the current PCC, in what respects. Is it fair to say that the only real difference is this: serving editors will no longer be appointed by PressBoF or the IFB, but by the relevant industry trade association?
A. That's one difference in the composition of it. I think there may be some differences in process, but in the composition, that is correct.
Q. As for process, how would you identify the relevant differences between the PCC and this complaints committee?
A. I think it's fair to say that probably in the way that sanctions have been dealt with in the Press Complaints Commission, there's been a certain degree of opacity about them, both about the way the complaints are actually resolved and indeed how they're recorded. What I've been proposing in this document is that there are that the regulator would in fact have a ladder of sanctions from a fairly straightforward correction through to a breach of the code that's remedied and identified in statistics, through to a formal reprimand of the editor, right up to where there has been a very serious breach and that leads to a referral from the complaints arm to the publisher because it raises contractual disputes, so that when people go to the complaints committee of the new regulator, they know which are the various ways that their complaint could possibly end. That may help to go back to an issue you raised earlier if necessary, to funnel more substantive complaint through to an adjudication. I think that sort of gradation of different types of sanction identifying that and making it transparent could actually be an important new element of the complaints committee.
Q. Although many of these sanctions are not within the power of the complaints committee, they would require a referral to or action by the compliance and investigation panel, for example; is that correct?
A. Such as? I'm looking in paragraph 43 in the form of resolution, published apologies, formal reprimand through an adjudication. Those would all be within the power of the complaints arm.
Q. Yes, but any fine would have to be via referral to the compliance investigation panel.
A. If a complaint was so serious that it warranted investigation with potential financial sanction, that would have to be passed over to the relevant arm, yes.
Q. What the PCC does, if you compare paragraph 43 with that, primarily it does informal resolution, which we can see here. It does published apologies. I don't think it does formal reprimands but I may be corrected on that and it does adjudications but only occasionally. So the only possible addition here is formal reprimand, isn't it?
A. Yes, but what I'm talking about here is making the whole process of this more transparent so that when a complaint has to be conciliated through a complaints arm, the complainant knows at the start: "These are the various ways that your complaint may end up." I don't think that is clear at the moment.
Q. Well, the complainant knows at the moment that his or her complaint is not going to end up with a fine under any circumstances or compensation.
A. That's correct.
Q. It may end up with an adjudication but it will be obvious pretty soon that informal resolution is the primary mode of dealing with the complaint. This system doesn't differ very much from that, does it?
A. No, it's a simple codification of it, which I think would help with reporting of statistics from the regulator in a more transparent fashion than might have been the case previously.
Q. How does this system end up with more adjudications than the current system?
A. That's going to have to be a matter for the complaints committee. As I said earlier, I would expect the regulator to take a more robust approach to adjudicating where there was clearly a public interest or on point in doing so.
Q. But how may that expectation be translated into reality, particularly having regard to the fact that under this system, 2.25 million is set aside minus, of course, the enforcement 100,000 pot which we've referred to and under the old system it's 1.95 million? There'll still be an impetus, for reasons of financial stringency, on mediation, won't there?
A. I don't think the cost of taking a complaint to a formal adjudication would be that much different from the actual mediation process of a complaint. I think you also need to take into account with some of these things the wishes of the complainant. There will be some complainants who want a complaint dealt with privately by some form of resolution, who would actually object to a formal adjudication. I don't think it should be for the regulator in those circumstances to ride roughshod over the wishes of the complainant but I don't see any difference in expense in these two things, certainly such that would cause that budget figure to be knocked.
Q. So you're expecting the new regulator to form a judgment as to which complaints of their nature are best dealt with by mediation it may be that the wishes of the complainant will be very important here and which should move forward for full adjudication; is that
A. Yes, indeed, which would be helpful to the regulator in possibly bringing forward best practice guidelines in a specific area relating to an individual subject which would need to be done and hammered out on the back of the adjudication.
Q. Do you think it might be better to have a sort of threshold written into the regulations which, if the regulator thought that there was prima facie evidence of a serious breach of the code or breach of the code which was other than minimum or raised minor questions of inaccuracy, then unless the complainant wished otherwise, almost as a matter of obligation, the regulator should take that forward to an adjudication?
A. I would expect that to be the best practice of the regulator. If there's a case for writing that in, if it can be codified in a way which can be written into regulations, then I wouldn't see a principled objection to that.
Q. I think it could be written in fairly easily. The way it sounded coming out of my mouth as I was making it up as it went along made it sound a bit cack-handed but it could be done wide straightforwardly, I think.
A. Yes.
Q. You're agreeable with that principle?
A. As I say, I would hope it would be a matter of best practice, but if there is merit in codifying it, we will.
Q. In relation to group complaints, which has been an issue which has been of concern in relation to the PCC, could you summarise how this process will differ from the PCC's process? You may want to look at paragraph 9 of the regulations in this context, Lord Black.
A. Indeed. I think there are two ways that there is a difference. As you rightly say, Mr Jay, regulation 9 will give the regulator and the complaints committee the power to take up a third-party complaint where it believes there is a significant public interest in doing so. So I think that if a group was able to show that there was a very good reason why a complaint should be taken up, then it would. I also think that there may be a role for the standards arm in this as well and if there is a group that feels that it has been particularly badly treated, perhaps across a section of the press, and this has arisen over time, in a to use that word systemic way again, then that may be a case that the standards arm of the body could look at to trigger an investigation into that area. LORD JUSTICE LEVESON Does that mean you visualise the possibility that a group can't make a complaint about a specific article but could spend a year collecting up half a dozen and then complain to standards? That doesn't seem to be terribly sensible.
A. No, regulation 9, sir, would give a group on the back of one single complaint, it would give the regulator the discretion to be able to take that up. LORD JUSTICE LEVESON Yes, but with respect there has to be a significant breach of the code, not just a breach. There has to be a substantial public interest not merely a public interest and even then, that's in the discretion of the head of complaints. I'm not sure how different that is from the present system, which merely says, "We normally accept complaints only from those who are directly affected by matters about which they are complaining", but which obviously admits of the possibility that you're prepared to go further. And indeed, it's been said that the PCC is prepared to go further. I'm not sure you've changed anything. If anything, you've made it more clear that there has to be significant breach and a substantial public interest. Is that really what you wanted to do?
A. I think there is danger, as we saw in the case of the Press Council many years ago, in a regulator having to take up unfettered third party complaints. I think that where it is a third party complaint, except on a matter of accuracy, where the regulator, of course, will be able to take up a complaint which is from a third party, then we need to build some form of discretion in here. LORD JUSTICE LEVESON Where does it say that?
A. Where does it say what? LORD JUSTICE LEVESON A third party can always make a complaint about accuracy?
A. That's always been the case of the Press Complaints Commission. On accuracy of a point of fact, if it says something about a group if it says a group is X, Y or Z and that is wrong, then that group can take up an accuracy complaint. LORD JUSTICE LEVESON That doesn't come within paragraph 9, does it?
A. But that's the existing practice so that would continue under the code. MR JAY It could be said that this regulation is a greater force than the code and defines all the circumstances in which complaints can be brought by what are described as third-party groups.
A. It's taken in conjunction with the code I agree with that, Mr Jay in order to be able to give the regulator quite significant powers to the take up group complaints where it wishes to do so. LORD JUSTICE LEVESON But you think the words "significant" and "substantial" are essential because otherwise the head of complaints won't be able to exercise his discretion appropriately?
A. I think those words are important in there so that the regulator doesn't have to take up every single third-party complaint that comes to it on a potential matter of discrimination. I remember from my own time of the Press Complaints Commission, sir, that we dealt with quite a lot of potentially discriminatory issues, certainly regarding people with mental illness and mental health reporting on the back of good complaints under clause 1 of the code dealing with accuracy. So there are ways that groups can complain in the existing using the existing powers and this is meant to be a further assistance to them on top of that. So I think it actually strengthens the position for groups rather than weakens it. LORD JUSTICE LEVESON It might be said that this regulation 9 limits that which you say you presently do, and therefore if you don't want to limit it, you'd better write it in, and I'm not talking about I understand the problem about group complaints but you know that I have heard from those with mental illness, those with disabilities, those other groups not simply complaining about taste and decency or necessarily about the ability of a publication to express an opinion, but about downright misleading reportage. That's the complaint that I've received and you may say it's not really valid or you may say anything you like, but if you want to deal with it, doesn't it have to be in the regulations?
A. But those complaints can be dealt with under clause 1 of the code as it stands. If it's to do with misleading coverage of a group, then a group could be entirely entitled and you may want to talk to Lord Hunt about this later because I'm sure he's been dealing with some. A group may well be able to take a complaint to the PCC to say that this report says that whatever the traveller community or whatever it might be it makes certain allegations about them and they're wrong. That complaint is already amenable to resolution or adjudication under clause 1 of the code. LORD JUSTICE LEVESON It may be, but it doesn't seem to be within rule 9. Anyway. Lord Hunt is nodding away, so he'll be able to
A. Oh good. MR JAY I think Lord Justice Leveson's point is right in perhaps a different way. It is within rule 9 but the threshold now is higher, because whereas before you just had to show a breach of article 1 of the code, now you have to show a significant breach.
A. I think, Mr Jay if you'll forgive me, I think this is simply just to do with the drafting of the regulation. LORD JUSTICE LEVESON Well, it may be
A. But this is not intended to limit the ability of groups to complain under clause 1 of the code. LORD JUSTICE LEVESON I'm sure Lord Hunt will have all the answers.
A. He usually does, sir. LORD JUSTICE LEVESON Yes.
A. But just to confirm, this is intended to make it easier for groups to bring discrimination complaints under the discrimination clause of the code. MR JAY I can see that. If the purpose of rule 9 is to lock into clause 15 of the existing code, then you would be right.
A. Then we need to clarify.
Q. The wording is deficient.
A. I'll take it up with LORD JUSTICE LEVESON I can only say how I read it, that's all, and I'm perfectly happy to be told that I am reading it wrongly.
A. You may be reading it correctly, sir, but the intention is as I've outlined it. LORD JUSTICE LEVESON I understand, I understand. MR JAY Can I go back to your ladder of sanctions point, Lord Black, paragraph 43 of your statement. 00090. One of the points which has been made to this Inquiry relates to the publication of critical adjudications and apologies. It's under the amended clause of the code. It has to be with due prominence, I think, but as agreed with the regulator or the PCC. I can't remember the exact language but can we understand precisely what's intended you under the new system? You say: "It would also be for the regulator to look into how critical adjudications are presented and branded in the relevant publication to make clear that it's been criticised and under the code to agree where it should be place." But the regulator, I think, under the new system, will have the right to say, in default of agreement, where the adjudication or apology should be placed; is that correct?
A. The regulator will have to agree with the publication where the adjudication will go. So it will give the regulator a say over that, yes.
Q. Sorry, it either has the say over it or it agrees with the relevant publication where it will go. They're different possibilities. I'm not sure which you're saying
A. In most cases, I expect it would be a matter of agreement. If the regulator disagreed with that, then it would be open to the regulator to say: no, no, no, it should go in X, Y or Z. But that is going to be a matter for the code to be changed.
Q. It's not clear to me why there should be any equivocation over this. A proper regulator should be able to say to the publisher: "I don't care what you say, this is where it's going to go, end of story." Is that going to be the position under this new system or not?
A. I think that's going to be a matter for the regulator to have to deal with Code Committee. That's why I tried to make clear here it will be a matter for the new regulator to set these out. I'm not going to try and tie the hands of a new regulatory body before it's launched.
Q. Is this a matter for the Code Committee or the regulations?
A. It will be a matter for both.
Q. If it's a matter for the regulations, unless we see it in the regulations now, any amendment to the regulations will have to be agreed by the industry, wouldn't they?
A. But if it's in the code, then the code because compliance with the code is written into the contract, then it will have the force of contractual obligation as a result.
Q. So it would be a case then of the trust board ratifying the recommendation of the Code Committee to amend the existing code to include these provisions?
A. Correct, which is why I put down there it's a matter for them to deal with.
Q. Thank you. I'm looking over the remainder of this proposal, just to check whether there are points which we haven't covered orally. LORD JUSTICE LEVESON Well, there are many, but the question is which ones you want to cover. MR JAY Most of them we have covered already but I stand to be corrected. Yes, the process of appeal. I don't think we've covered that very clearly, Lord Black, so can we do that now? It may be that if we go back to our schema, which is appendix 2, we're going to understand how it works. Look first of all at the complaints committee and its decisions.
A. Yes.
Q. Have I correctly understood it that both the complainant and the publication can appeal to the independent assessor?
A. No, it would be my view that this was just for the complainant to be able to appeal the decision.
Q. Right. So the aggrieved publication would have no right to take matters further to the independent assessor or anywhere else; is that correct?
A. As indeed meets the existing the publication has to abide by the decision, in this case of the complaints committee.
Q. If there is an adverse decision of the compliance and investigation panel, there, of course, although there may be a victim in the background because the failure is systemic we're looking at a range of victims so it's much more diffuse, but they will be out there nonetheless the aggrieved publication would have the right to make representations to the trust board, who would then appoint a further compliance and investigation panel to review the decision of the first panel; is that correct?
A. Yes. I don't think the trust board would automatically do that. In the first instance, the trust board would look at the nature of the representations that have been put to it, either presumably the process had not been fairly followed. If the trust board believed there to be a prima facie case, it would then appoint another panel of three people, obviously not involving the panel the people on the panel in the first place, who would look at the decision afresh.
Q. That's the point I would like to take further with Lord Hunt when he comes to give evidence, but that's how you envisage it working, is it?
A. Correct.
Q. Incentives to join. This is paragraph 65 of the proposal document, page 00099.
A. Bear with me one second. Yes.
Q. You're looking for carrots and sticks here because this is a voluntary system and your first carrot is the provision of press cards, which you take up at paragraph 66. You describe it as a proposal currently under consideration. There would be 17 gatekeepers who issue cards to ensure that where a journalist is employed by a newspaper or magazine, they will be able to receive a press card only when their publisher is signed up to the system of self-regulation. How does this differ from a system of licensing journalists?
A. I believe you have a submission from the UK Press Cards Authority which deals with this in much more detail. It's not just where they obviously are a journalist signed up to a newspaper, but they could be signed up to a relevant industry body or a trade union or something like that, so it is not limiting it simply to people who work for specific publications. But of course, the provision of a press card is an assistance to journalists who are going about their business. It is not a complete bar to them going about their business. There will be all sorts of journalists who never need the provision of a press card. That's why I think there is a fundamental between this and any form of licensing. Indeed, the various gatekeepers to the scheme I think would never have any truck with anything that appeared to be a system of licensing with journalists. So I believe it's a useful incentive but it's not a bar to trade. LORD JUSTICE LEVESON I don't understand how it works, because a newspaper could say, "I'm not interested, I'm not going to get involved in this", and encourage all its journalists to go through some other body to get its press cards.
A. That other body, sir, would have to take into account whether it was just being used in order to shortcircuit the scheme. LORD JUSTICE LEVESON But the journalist would say, "But I'm absolutely committed to all the rules of the PCC. I am entirely ethical journalist. Nobody has ever questioned my personal integrity in any way. How can you possibly deprive me of a press card which will have an impact on my right to earn a livelihood?"
A. Those are matters which the press card authority has looked at and I think is clear in its own mind that this is not going to be an insuperable problem to the introduction of this scheme. MR JAY Another possible incentive you say is whether the Press Association might provide its copy only to publications which have signed a contract with the regulator. You say: "PA News is currently undertaking a study in what is a legal challenging area but one which could provide a key incentive." Can you be a bit clearer as to what this study is about?
A. As I understand it, this was a scheme that was generated from within the Press Association by some of its own members who want to look at it to see if it could be an incentive to support this system. At the moment, PA News will have contracts with a number of people to provide news and some of those will be over different terms. PA News also has certain obligations regarding the provision of news, so I think it is going to have to look to see whether such a scheme could actually be made to work in this area or whether there would be insuperable legal obligations. That is far from clear at the moment. That's why they are now looking into it, I believe with a view to reporting to the PA board by September.
Q. But it would obviously depend on PA News if any legal obstacles in relation to anti-competition law were surmounted to agree to participate in this sort of arrangement?
A. If there were obvious competition law reasons why this could not proceed, then this scheme would obviously not proceed. Indeed, I think it's a point you covered in one of your questions which there is further legal opinion which has been tabled for the Inquiry.
Q. Yes. That opinion is on more general aspects. It's not addressed specifically on these individual contracts between PA and publications, but we see where we are on that. They're reporting in September.
A. Yes.
Q. Then there's kite mark or badge. Well, that's self-explanatory.
A. Yes.
Q. And then there's the issue of advertisement, which is paragraph 69. There are likely to be the same sort of issues there, perhaps even greater ones, than the issues you've identified in relation to the Press Association; is that correct?
A. Yes. I would not believe this to be straightforward, although having said which, the point I make in the final sentence about the role of government in this area probably could be a little bit more straightforward. But that's a matter that I've not discussed with ministers or officials, but should like to.
Q. Part of the philosophy may be bringing in the PA and the Incorporated Society of British Advertisers into the regulatory framework, which they may or may not be willing to do. Do you agree?
A. Well, the Press Association is currently signed up to the terms of the code of practice, so it is part of the regulatory framework from that point of view. Advertising, of course, is an entirely separate system of regulation and I think that would be a very difficult step. The advertisers that I've spoken to have been very clear with me: "We are enormously grateful to the printed press for the support they give us in making advertising self-regulation work. If there's some way we can find to help support press self-regulation, then we'll do it."
Q. I'm going to move forward now to paragraph 83. Embedding accountability and transparency in the system. You say there: "The industry will wish the regulator to be as open and transparent as possible. It will be for the trust board to establish the precise way it seeks to achieve that, including the setting of benchmarkings and targets, publication of statistics, et cetera." So much will depend on how the regulator wishes to comport itself in due course, doesn't it?
A. Yes. I would see no objection to outlining the areas where these sorts of things should be met into the regulations. I just think it would be not right for us at this stage to set down how that might actually be achieved, but I think a general view that the regulator should be open and transparent might be something that it's very important to codify in the regulations or indeed the articles of association, which might be a more appropriate place for it to go.
Q. The articles of association we haven't looked at until now. They're under tab 5 of the bundle Lord Justice Leveson has. They start at page 00037. I'm just interested in the objects of the new company. The status of the new company is as a community interest company, so it's not a current company limited by guarantee but it has certain objectives which work in the public interest and therefore has that status, hasn't it?
A. Yes.
Q. That's not a problem. The objects themselves: "Activities which benefit the community, in particular to promote and uphold the highest professional standards of journalism." Then we see various subsidiary objects in relation to the regulatory scheme, the code of practice, ability to levy fines, et cetera, and then at the end of clause 5: "Having regard at all times to the importance in a democratic society of freedom of expression and the public's right to know." There's nothing there, Lord Black, about the rights of individuals or the importance of the public interest in other rights beyond freedom of expression, such as individual's rights to privacy. Would you agree with that?
A. I would hope that that was covered by the phrase "the highest professional standards of journalism" because it would seem to me that the highest professional standards of journalism encompassed the rights of individuals.
Q. It might or might not do, but we see full regard here to Article 10 rights and no express reference to Article 8 rights.
A. I would have no objection to the first sentence of the objects being clarified to make clear that Article 8 rights were of course of equal importance. I think it is covered by the phrase "highest professional standards of journalism" but if it's not explicit enough then we could look at dealing with that point. Indeed, as the company responsible for promoting compliance with the Editors' Code of Practice, the Editors' Code of Practice does, of course, set out individual rights on privacy, children, hospital victims and so forth. LORD JUSTICE LEVESON But then what does the last clause of 5 add: having regard at all times to the importance of (reading to the words) right to know." Because that's also within the Editors' Code of Practice. It's also part of the highest professional standards of journalism.
A. Yes indeed, sir, which is why I say I have no objection to the Article 8 rights being set out. MR JAY Some general questions now, Lord Black. Internal governance, as your statement itself recognises, has been part of the problem in relation to the culture, practices and ethics of the press. How will the new system, including in particular the annual certification process, address that problem?
A. I think there are two aspects of this. First of all, inherent in this system and I suspect it is spelled out somewhere in the contract or the regulations is that there should be a named senior individual within each company, each regulated entity, who is responsible for the maintenance of standards, compliance with the code of practice and reporting annually to the regulator and then dealing with the follow-up from the regulator. So for the first time in each company, there will be a named senior individual who is going to be responsible for this. And I think for publishers there are two real incentives for making that work. First of all, they do have to go through a process of annual certification, which, as we heard earlier, is going to be a transparent process of certification. So there will be a public scrutiny of the like that has not been before, and that will be a real incentive to make sure that the annual certification goes smoothly and that there are no issues identified which might trigger an investigation. Secondly, there will be an added incentive that if there is a standards investigation at some point, because of a systemic breakdown or whatever it might be, then I think it will be for the regulator to take account of the processes that were in place within the publisher to have stopped that in the first place. So if a publisher who doesn't have those systems in place is found guilty, I would expect that then the regulator would take that into account in levying the sanction. So there are going to be real incentives to the publisher to make sure that the system actually works and indeed they will be accountable to the regulator for it.
Q. A former prime minister gave evidence along the lines that editors and proprietors should be the responsible named individuals. Moreover, if there are serious breaches of standards established against their papers, they should be accountable for those breaches and, if necessary, fined. Is that something you would find favour with or not?
A. Well, the editor is always going to be responsible contractually to the publisher and the publisher is the one who is going to have to sign the contract, and I think that's an important relationship there. The difficulty, I think, of making the proprietor the named individual in charge of internal compliance and so forth is that in reality, the proprietor is not going to be sitting there every day looking at complaints trends and making sure that complaints are handled. They will, of course, have overall responsibility for it, but they can't be expected to get involved in the detail of it. Some newspapers, of course, don't even have proprietors, in which circumstances it would fall back to the chief executive in any case. I think you have to respect the nature of the company involved as to whom they choose to have as the senior person. I would also expect the regulator, if they believed that the person who was not nominated was not appropriate and not senior enough, to say that.
Q. Okay. You pointed out earlier this is clear from regulation 26 that the trust board starts an investigation either on its own initiative or following a complaint or suggestion by the head of complaints or standards. Why is the head of standards not able to set up an investigation without going to the trust board?
A. I think the decision to set up an investigation is a very serious one. It could prove very costly it will prove very costly to one party or another, and I think there should be checks and balances in that system so that an official, quite rightly, should have the cover of some form of accountability through the trust support. All this regulation is saying is that the head of standards believes there to be a case to answer. The trust board just needs to look at that on paper and say yes.
Q. If you look at the regulations, the regulated entity has numerous opportunities to make representations. Look, first of all, at regulation 27, our page 00056. This is whether an investigation is going to be set up in the first place. A letter has to be written to the regulatory entity to that effect and the regulated entity shall reply to that notification within 14 days, either consenting to the investigation or setting out reasons why the investigation should not take place. So that's the first opportunity to make representations. Then there are further opportunities at regulation 36. This is our page 00058. This is an invitation to attend for part of the meeting in order to answer questions from the investigation panel. LORD JUSTICE LEVESON You have to go through 32 as well, don't you? So if there's a dispute between the entity under investigation and head of compliance, that's referred to the trust board. MR JAY Yes. So any dispute is referred. Then there's a further opportunity at 36. At 40, this is the investigation panel's preliminary decision. That's sent in draft to the regulated entity which then has 14 days to comment on the draft. Then regulation 44, that's an ability to request a review, which you told us about earlier. Then regulation 51, the review panel's preliminary draft the decision is sent in draft to the regulated entity for comment and it's only the final decision of the review panel at regulation 53 which is final. The basic point is doesn't that give so many opportunities to the regulated entity to, as it were, put a spanner in the works that it would be surprising if any adverse decision were reached following an investigation of this sort?
A. I don't think so. I see nothing abhorrent in giving the regulated entity the ability to make representations at certain junctures throughout this. I don't think it can be overstated quite how serious an adverse finding from the standards and compliance panel of the new regulator would be, and therefore I think the regulated entity needs to be dealt with fairly and proportionately and that means they should have the ability to put their case at certain points during this. That would just seem to me to be natural equity and natural justice.
Q. Certainly it should have the right to put their case once, but they seem to have the right to put their case six or seven times. Isn't that creating a degree of bureaucracy and such an opportunity to make representations that it would either take a very long time to reach an adverse decision against a regulated entity or it won't happen at all?
A. I don't think that with some of these, for instance, if a dispute arises, that this should necessarily be something which delayed the process for an overly long time. I certainly think if, at the end of it, there is going to be a very serious financial sanction against the regulated entity, that it should be have the opportunity to put its case to the trust board. I think it highly unlikely that during the course of an investigation a regulated entity would take every single opportunity to try to derail it, but even if it did, then the trust board and the investigation and compliance panel must plough on and it will get to the right place in the end.
Q. Who is responsible for drafting these regulations?
A. These have been drafted by PressBoF in association with legal advisers, Reynolds Porter Chamberlain working with Andrew Green.
Q. So they drafted it then and no doubt have taken into account representations made during the three consultation processes of the industry?
A. There have been a huge number of comments that have arisen during the consultation exercises. So this document you have here today is very different from the original document you started with. It's actually been an extremely constructive process but at the end of the day this is the industry's document.
Q. Yes.
A. Which, as I said earlier I keep reiterating is a snapshot of where I believe the consensus currently lies. LORD JUSTICE LEVESON Is there any prospect in this document for the person who has complained about an egregious breach of standards to ask for a review of a decision adverse to them but in favour of the entity being investigated?
A. I'm not sure I follow the question, sir. LORD JUSTICE LEVESON I'm sorry, I'm sure it's my fault. Is there anything in this document which allows the complainant the person who is complaining about an egregious breach of standards and has put the matter before the new body to investigate to be involved in seeking to challenge a decision of the panel that's actually against them and in favour of the newspaper?
A. It would have to take a case for judicial review, because it would be at trust board which would be triggering the investigation, so you would have to review the decision of the trust board. LORD JUSTICE LEVESON And, of course, presumably at any one of these stages, it would be open to the regulated entity to judicially review a decision?
A. I think in a system where they have submitted to go back to a point we made earlier, to the terms of the contract, that would be an unlikely prospect, but in theory, I suppose it is possible. MR JAY Their remedy would be a contractual remedy, the argument being it was an implied term of the contract between the regulated entity and the regulator that the latter act fairly and
A. Certainly it would have to go to court for that.
Q. So it would be very similar to judicial review in terms of
A. But it would be in the courts. Breach of contract. LORD JUSTICE LEVESON Yes. MR JAY I've been asked by others to ask two further points of you, Lord Black. First of all, I think you've seen this I handed it to you earlier: the submission PressBoF made in 2009 to the DCMS Select Committee on privacy and libel, where PressBoF I'm not going to read it all out pointed out that the PCC works well, the code of practice has raised standards: "To concentrate on one atypical episode [well, that was phone hacking] which was always inevitably heading in the direction of litigation would be a great mistake." Then you refer in that submission to recommendations on reform of conditional fees and the Human Rights Act to reverse the extremely serious damage they are doing both to freedom of expression and to the long-term commercial future of the press, which is now facing unprecedented challenges. Do you stand this is the question by the assessments that were preferred by you in 2009?
A. I suspect this was from before I was chairman of PressBoF, but I will take responsibility for it. I would certainly stand by paragraph 38 about the fundamental legal and commercial issues affecting the industry, and indeed, if anything, the structural/financial issues which have affected the industry have become significantly worse since 2009. So I have no difficulty standing by that. But as far as paragraphs 39 and 40 are concerned, this time last year the world changed within the space of one week, so I think to look at things which were written three years ago it's almost impossible to do so. Of course I don't stand by that particular sentence. It is now clear that it wasn't one atypical episode in the way that some people thought it was at that time, and that is why we've undertaken the very arduous process to which Lord Justice Leveson referred earlier over the course of the last fine months. We wouldn't have done that if we'd stuck by this statement.
Q. The other point I'm asked to put to you is that you said, some time ago now, that "a good journalist should rejoice in being held in low esteem by the public"; do you stand by that?
A. Did I say that?
Q. Yes.
A. Can you just remind me of the circumstances in which I might have said it, Mr Jay?
Q. It's in the MediaWise submission for Module 4 of this Inquiry. I could find it for you, but I can't give you the context but if you don't remember having said it, it may be difficult for me to pursue the question. It will either ring a bell with you or it won't.
A. I don't remember having said it, but let me just give you sort of one obvious example. The paper which I work for, which, as you've heard during this Inquiry, broke the story of MPs' expenses, I think there's no doubt about the importance of the story. I'm sure that a lot of the journalists who worked on it are probably held in low esteem by a number of MPs, so it is, I think, probably a relative point. It may have been LORD JUSTICE LEVESON I don't think that's a terribly good point. I'm sure that those guilty of crime don't think very highly of those that expose them.
A. That's why I'm just not sure of the context in which I made the statement, sir. LORD JUSTICE LEVESON All right, all right.
A. Oh good, somebody MR JAY We do have the context now. I'm very grateful. It is in the submission I mentioned. It was your last interview before working for the Conservative Party in 2004. That's what you said as the outgoing director of the PCC. I think you left the PCC in December 2003; is that correct?
A. Correct. LORD JUSTICE LEVESON How these things come back to haunt you. MR JAY Does that ring a bell?
A. One of the reasons I hardly ever give interviews. I think I probably was trying to make the general point that journalists ruffle feathers from time to time and that irritates people. A point I stick with. Congratulations to MediaWise for finding it.
Q. There are points of detail, Lord Black, which I could pursue further with you, but I was concerned just to look at the general picture. We have gone over the time which had been notionally allotted to you so that concludes all the questions I have. LORD JUSTICE LEVESON Thank you very much.
A. Can I say, Mr Jay, I would be very happy if there are specific points of detail you want to cover I mean, to write to us and we can set them out in writing if they relate to the detail of the contract. LORD JUSTICE LEVESON Thank you very much indeed. MR JAY The only point I raised expressly with Mr Hunter QC was further assistance on the competition law aspects of this proposal.
A. Which we're intending to provide. MR JAY Thank you. LORD JUSTICE LEVESON Well, Lord Black, a couple of times you've dangled a carrot in front of me. As I'm sure you'll appreciate, the purpose of requesting you to return to give evidence was to test the propositions with which the Press Standards Board of Finance have advanced, and that, I hope, is what we've done. You've invited me to encourage you to go further, but I'm equally sure you'll appreciate that I am not prepared now to create an expectation that I will propose or give favour to one as opposed to another solution. In other words, I can do no more than say you'll have to take your own view as to what steps you want to take in relation to your proposals. I'm sorry I can't go further.
A. If I was sitting where you're sitting, sir, that's probably the answer I'd have given me. LORD JUSTICE LEVESON Well, good. MR JAY May we move seamlessly onto Lord Hunt before we take our break? LORD JUSTICE LEVESON Certainly. Thank you. LORD HUNT OF WIRRELL (recalled) Questions by MR JAY MR JAY Lord Hunt, you're returning to give evidence so you're still under the oath you gave I think it was 31 January. You kindly provided us with a further witness statement, which runs to best part of 50 pages. You've signed and dated it. It's dated 8 June. Is this your formal evidence for this module of our Inquiry?
A. Yes, it is. LORD JUSTICE LEVESON Lord Hunt, thank you very much. You also, as the previous witness, have obviously done an enormous amount of work on the proposal that you wish to discuss, and I'm grateful to you.
A. Thank you. MR JAY Lord Hunt, can we be clear where we are in terms of the current state of play? In paragraph 2 of your statement, you refer to a comprehensive process of internal consultation with the staff of the PCC and also your fellow commissioners. Not everything that follows bears their imprimatur or carries their hearty endorsement. We understand that. Have you been in consultation with proprietors and editors and if so, what have been the results of that process?
A. Yes, I have. I was pleasantly surprised on 15 December that when asked whether there were any of the editors or publishers who disagreed with the initial proposal, no one put up their hand, and I do believe and I think particularly at the moment perhaps I ought to stress that since I started on this job, as I describe it, the independent chairman of an independent body, I do believe that the press have come a considerable way, first of all to accept the idea of a regulator, in my view for the first time ever; secondly, a regulator with teeth and the ability to fine; thirdly, to bind themselves under contract to create such a new body with a fresh start and it's just appropriate, I think, to recognise the distance that the press has come, albeit, of course, faced by unacceptable and disgraceful behaviour by a comparatively small number of journalists than others.
Q. You made the point in those opening remarks and you pick up on the same points or one of the points you've made in paragraph 8 of your statement and you say there that you don't believe true self-regulation has ever really been attempted, at least so far as the press is concerned. Therefore the system which we're looking at is the first occasion on which regulation has been attempted. Would you agree though that over the last 20 years or so or nearly 20 years the press have been calling the present system a system of regulation?
A. That's a matter for others. Certainly I never saw it and I think at my last appearance, when you asked me to give evidence, I did say that I had said at the outset that I did not believe the Press Complaints Commission had any regulatory powers and I was again surprised to find that virtually everyone agreed with me, including those within the PCC. Although they play a key role in dealing with complaints, it was never as part of a regulatory structure. LORD JUSTICE LEVESON In those circumstances, do you think that anybody who sought to describe the PCC as a regulator was simply misleading everybody?
A. I think they I'm speaking as a lawyer with a speciality in regulatory matters. I don't see it as a regulator, but I can understand other people being under the expression that it was. I'm not sure we ever defined "regulation" with any great skill. MR JAY In terms of the attributes of any system of regulation, properly so-called, you would want to see a proper complaints system with sanctions; is that correct?
A. Yes. The original proposal to which I referred when I last gave evidence was to have two arms: a standards and compliance arm alongside a complaints and mediation arm, but with the flexibility perhaps to embrace a further third arm, which I think has been described as an arbitral arm.
Q. Indeed, indeed, and the other attributes of a system of regulation properly so called is that it needs to be independent of the pods it's regulating; is that right?
A. Yes. I feel that very, very strongly indeed. To have authenticity as well as influence and ability to regulate, the regulator has to be independent, and what I've sought to do in my statement is to stress that I certainly have taken, nor do I now take, any push or steer from the industry or anyone who appointed me on how I should proceed. What I tried to be is the independent chairman of an independent body with a blank piece of paper to work out how I would suggest that an appropriate regulatory structures should be fashioned. And I hope my ideas have been helpful to this Inquiry, but I now very much wait to hear what this Inquiry concludes.
Q. What would you, from your experience to date as an independent regulator, want to see changed in the proposal to deliver the best quality independent regulation?
A. Well, that's my 47-page statement. Many attributes, I think, have to be embraced if we really want to pass that test of an independent regulatory structure.
Q. Well, the proposal is what we see in your 47-page statement. It's whether there are any changes you would want to make to that proposal to deliver the best quality independent regulation from the perspective of a lawyer who has plenty of experience to date as an independent regulator. Do you see that?
A. Yes. First and foremost, I would want to see independent people. I find it very difficult to decide how to define an independent person, and I've had that discussion with many people, but I think I conclude it must be someone of independent mind, who doesn't have history or baggage or conflicts of interest. So it must be truly independent, and independent-led. But equally to be a self-regulatory structure, it must draw its strength from knowledge and expertise within the industry combined with that independent element. But equally it must have sanctions, it must seek to ensure that its conclusions are adhered to, but above all, I think any new structure must change the culture the culture and ethical standards of the press. I think we have a very good basis in the Editors' Code, which starts off with the words which are part of the code: "All members of the press have a duty to maintain the highest professional standards." It goes on in the preamble to refer to the most ethical standards, and certainly in all the discussions I've had with victims, groups and people throughout the industry, there is a wish to see the culture and ethical standards of the press improved and strengthened.
Q. Although that code has been in being for over 20 years now and has not brought about the cultural changes you've referred to, self-evidently, otherwise we wouldn't be here. Why do you think that is?
A. Well, I want to take you through the areas where you think it has not been followed but certainly Article 10, clandestine devices and subterfuge what I think you may be referring to were in direct breach of clause 10. Equally on misleading, which has been another subject, again in breach of clause 1. This is not a static document, but it's recently been improved, particularly by now setting out that where the public interest has been discussed and accepted as a reason for breaching the code, there must be a trail as to how and with whom that was established at the time. That only came in on 1 January, so I think there has been a wish continually to improve the code.
Q. That wish has existed over the last 20 years, but admittedly with perhaps greater appetite in recent times than in more ancient times, yet we still have the position now where the culture, practices ethics and of the press said by some to have been found wanting. The question is: how and why is it we find ourselves in that position, notwithstanding what you've read out in the code?
A. Because I think we need a regulator.
Q. In terms of the mix then between independent people who are outside the press and people within the press who will meet the self-regulatory aims of the organisation because I suppose you say without having people from within the press, the organisation, the regulator cannot by definition by self-regulatory how do you see that balance being met in terms of two important areas of the new system: first of all, the editors committee or the Code Committee, pardon me where there are a majority of serving editors still under the new system, and the complaints arm, where there are a minority of serving editors? How and why is that desirable?
A. Well, the great value of editors is that they are dealing with the situation as it is, right at the heart of the industry, and they have a valuable input. But I concluded that rather than try and bring the Editors' Code Committee within the structure of the new independent self-regulatory regime, it is better for them to continue with their work on the Editors' Code Committee, accepting as they now have that there should be a lay element. But within the regulatory structure, the board which Lord Black has been referring to, the trust board, that will not have anything other than a majority of independent people on it, and that will be the key decisionmaker in some of the areas that we've been talking about.
Q. The complaints arm will have serving editors, won't it?
A. Yes, and speaking as the chair of the Press Complaints Commission, we find that everyone all 17 of the Commissioners who sit to adjudicate on complaints does put everything at the door before they come in and certainly the editors that I've heard speak are as critical often of journalists as the independent members. The discussions do not divide between independent members and editorial members. It's a valuable discussion with no prediction as to where people are coming from but a united consensus on where we should be going.
Q. The issue may be as much one of perception than anything else, but would you agree that it's important if one wants to have a system which is seen to be independent that one avoids, if at all possible, having editors judging in their own cause, because although naturally they recuse themselves from their own cases, as it were, they're nonetheless adjudicating on a system which concerns them because the decisions may have an impact on their own cases in the future.
A. Yes. It's a perception which has to be met head on. When I was given the task of working up the right regulatory structure for solicitors and barristers in the legal services bill and indeed by the Law Society there was a view that solicitors and barristers should not be involved in adjudicating on complaints. But actually, I think in the long run everybody decided there has to be a balance. LORD JUSTICE LEVESON But there's an enormous difference there, isn't there? Because there are 40,000 solicitors and there are, I don't know, several thousand barristers, I can't remember, 14,000, 15,000 barristers, and therefore it's not difficult to find a barrister or a solicitor who's not at all affected by the subject matter of a particular concern. You're talking about 30, 40 editors. If you said to me there ought to be working journalists, those working in the industry, then the parallel is much, much stronger, but if you say, "No, we are going to take this comparatively small group of very powerful people and we're going to then make them judges", isn't that different? I mean, I'd be interested for your help.
A. I think my figures are 118,000 solicitors and 10,000 barristers, but the point is still as valid. LORD JUSTICE LEVESON Oh well, whatever. You make it even stronger for me then.
A. Yes, if I've got it right. When I went to see the chief executive of IPC Media I think I've got the name right she said to me: "Are you saying that my 60 editors must each individually complete a form to say that they Now, that's just 60 editors in one very small part of what we're talking about. I don't think the number of editors is a key factor. It's the decision-makers that I've been seeking to see at the publisher level, who have a whole range of editors. Now, of course, the large newspapers do have comparatively few, but regional, local newspapers, there are huge numbers of editors, and I find with the local and regional newspapers in particular that they do want the editors to be involved, because at the end of the day quite often the editor will be one of the few people employed in that newspaper or periodical. LORD JUSTICE LEVESON There's a problem, isn't there, because whereas you might have no difficulty at all in having the editor of the Southampton Echo sitting on a decision involving the Yorkshire Post, if that would ever happen I immediately make it clear that I'm casting no aspersions on the Yorkshire Post the position of the very, very large newspapers is rather different, and whether it's News International or Associated Newspapers or Trinity Mirror, enormous players in the field are quite different from the other group of editors to whom you've just referred.
A. I agree, and with regard to solicitors, there are 80,000 of those 118,000 solicitors who are in very small little firms, but if you just take the magic circle of five firms, those chief executives have a huge amount of influence within the system. So I'm not sure that there aren't too many lessons to be learnt from comparisons of that nature. What I'm trying to do all the time is to reflect a balance between the regional and local newspapers, between the national newspapers, between online and between the magazine and publications industry generally. The regulator that's going to emerge must reflect all these elements and I think to exclude or bar editors would be a step backwards. MR JAY In paragraph 9 of your statement, Lord Hunt, you say this is page 00801: "Self-regulation can be effective only in an industry that possesses the necessary ethos, structures and systems to ensure that an agreed level of standards is maintained." Do we, at the moment, Lord Hunt, have an industry which, in all its manifestations, possesses that necessary ethos, structures and systems? Do we currently have such an industry?
A. In the main, yes, but there are parts of the industry that have been found wanting. And indeed, the most critical people I meet are those in the industry, particularly journalists and editors, who really are rather ashamed of what some parts of their industry have done and want to see it put right, which is why I believe there is such a consensus now on the need to move forward, subject to what this Inquiry may conclude.
Q. Isn't it the premise of paragraph 9 to this extent we can agree with it that if we were to have an industry that did possess the necessary ethos, structures and systems to ensure that an agreed level of standards was maintained, then self-regulation would be effective, but given that we don't have an industry which currently, in all its manifestations, possesses that necessary ethos, et cetera, self-regulation is unlikely to work?
A. No. I believe that self-regulation can and will work, provided you have the necessary agreement on the right way forward and provided you have a regulatory structure which means something.
Q. How will the new regulatory structure ensure that the right internal checks and balances are in place?
A. This is probably one of the key features, so far as I'm concerned, that I have found on the part of the publishers a wish and a willingness to sign up to a system which puts the responsibility for the necessary ethos, structures and systems fairly and squarely in their area of responsibility. And I greatly welcome that. I find it interesting to note that perhaps that hadn't always been the case, but when I put it to publishers, that they should have an internal system of standards setting, compliance, complaints handling and mediation, they accepted it, but very few had actually put it into effect.
Q. Given that Sir David Calcutt's report was, as it were, in the last-chance saloon and reviewing the history since 1947 there have been three, if not four occasions before Sir David Calcutt where opportunities were missed, why should the press, which still exhibits, on your account, deficiencies as regards the culture, practices and ethics, be given a further last chance?
A. I don't think it's ever been given a last chance. I've had the opportunity of meeting and discussing with most of the members who are still alive of the Calcutt committee and asking them about the recommendations of the 1949 Commission and indeed the recommendations of the 1962 Commission, and I was surprised to find that the whole idea of a contractual basis wasn't raised. So no one thought up what seems to me to be an obvious course of action, that the publishers should contract to create a proper regulator. Now, that is in effect carrying out some of the recommendations of the 1949 Commission. I'm not sure to what extent this Inquiry has heard evidence from media or press historians, but certainly several members of the Calcutt committee have told me that they're not quite sure why they didn't consider this, because it does seem to be an option that ought to be on the table and that it is now is on the table gives us a real opportunity for the first time to put things right.
Q. The earlier commissions and committees you're referring to were all thinking in terms of a regulator which had some form of a statutory underpinning. They didn't think in terms of express commercial contracts maybe because the existing system they were looking at was based on implied contracts. But why isn't the system of commercial contracts yet another variant of the last-chance saloon? Why shouldn't we move straight to a system which has been on the table in various forms now for over 60 years, namely a system which has some form of statutory underpinning?
A. I do think it's a common misunderstanding about the '62 Royal Commission, so I brought with me the extract from command 1811, which is the September '62 Royal Commission report, where they say in paragraph 325, whilst detailing the recommendations they then go on to say: "We do not think that the absence of an enabling statute need necessarily be fatal to the activities of such a body." And continue, I quote: "Much of its power could rest upon a contractual basis." So the '62 Royal Commission did actually suggest a contractual basis but no one seems to have picked that up. MR JAY Is that a convenient LORD JUSTICE LEVESON Yes. We have in fact seen the Royal Commission. Thank you. (3.25 pm)break (A short break) (3.35 pm) LORD JUSTICE LEVESON Yes. MR JAY I think, Lord Hunt, following on what you said before we broke for our short break, there should really be two saloons. The saloon which has been called "last-chance saloon" should be called "penultimate chance saloon" and your contracts are last-chance saloon, and if that doesn't work, where are we then?
A. I think I made a terrible error last time in referring to the sword of Damocles. I'd forgotten that Cicero was using that as an example of how there can be no condition of happiness where there is still some fear hanging above you, and I suppose in a way that's always going to be there. It's just I don't think anyone has really tried an internal regulatory system policed, monitored and enforced by a professional oversight body. Perhaps this is too legalistic on my part, but I don't think it's been tried. Now, whether you put that in a saloon or out in the public arena is a matter for your judgment, but I think that the key test here is the test: will this restore trust and confidence on the part of the public?
Q. You don't think the public would say, "Well, this, in effect, is a cop-out. We've had similar palliatives over the last 60 to 70 years and they've failed. We have reached the end of the road and that means some form of statutory under pinning"? You don't think that would be the likely public response to anything less than that from this Inquiry, wouldn't you say?
A. I think there is pride in the British press amongst the public, but outrage at the way some parts of the press have behaved, but I don't think you could summarise the view of the I was taken if I may, for a moment, just give one example. I was taken a little bit by surprise on 21 June, I had the honour to be introduced to Aung San Suu Kyi, who is taking her seat in the Burmese Parliament at the moment and I was introduced to her as chairman of the press in the United Kingdom. She looked me straight in the eye and said, "You must be so proud." I suddenly thought: yes, I am very proud. But that pride doesn't mean I'm oblivious to the activities of a small minority, but I do think there is still that pride.
Q. So you feel that the public would wish to give the press another chance? Is that it?
A. Yes, so long as it's a free and responsible press, not just a free press but a press that accepts its responsibilities, and I've found a willingness and I think Lord Black epitomised that, and I stress again, as I said in my first response: I do believe the press has come a long way under Lord Black's leadership. He's now putting forward a potential solution, subject very much to what this Inquiry may decide.
Q. The issue of responsibility is one you take up quite clearly in the last sentence of paragraph 9 of your statement at page 00802: "Self-regulation requires the industry to recognise that the still considerable freedoms it enjoys are a privilege, not an unassailable right So freedom of the press is not absolute, you're saying there.
A. Yes.
Q. requiring journalists to behave responsible within certain generally observed behavioural norms and precepts." So I suppose the issue is: what comes first? If journalists did adhere to those behavioural norms and precepts, then it may be more arguable that self-regulation is the appropriate regulatory system, but if journalists are falling too far short of appropriate behavioural norms and precepts, then it might be said that something stronger is required. Would you agree with that analysis?
A. Yes, but at the moment I'm suggesting the "something stronger" is for the first time ever a self-regulatory structure chair by an independent person with an independent majority. I don't think we need a cumbersome, slow, expensive press law. We need a sort of as I say, a professional oversight monitoring and enforcing the standards that I believe the vast majority of journalists accept.
Q. In paragraph 13 of your statement, Lord Hunt, you refer to the formidable corpus of legal and regulatory structures and strictures. Are you conceding there that a considerable degree of statutory regulation already exists?
A. Not statutory regulation, but a considerable amount of caselaw and statute law exists of which journalists have to be aware. Last time I did refer to McNae's "Essential Law for Journalists" and I've seen many volumes on privacy law, various decisions of various courts which do set out a number of safeguards for the public, of which journalists have to be aware. LORD JUSTICE LEVESON Why is it stronger or weaker if it's one way or the other? Isn't it just appropriate that we have a system of regulation that encourages the good, discourages the bad, and venerates the proper expression of free speech?
A. Yes. LORD JUSTICE LEVESON Providing we achieve those ends, whether it's come through a statute or contract or because everyone's said, "Truly we will this time", why does it matter?
A. Oh, I do disagree, sir, if I may. I think as soon as you start to move towards a statutory regulator I do recall, sir, last time you referred me to the Constitutional Reform Act and in particular clause 3, subsection 6, saying the Lord Chancellor must have regard to the need to defend the independence of the judiciary. If I recall, sir, you put to me: why can't we have a similar provision so far as the independence of the press is concerned? If I may continue, I have spent some time reading back the debates which occurred over the independence of the judiciary. And what effect did it have? Because the very following year, in 2006, the Home Secretary, John Reid, attacked a judge pretty severely. Vera Baird, who was a minister in the Department of Constitutional Affairs, attacked, on many questions, the judge on particular. LORD JUSTICE LEVESON I don't think she was. She might have been Solicitor General.
A. At the time, on 16 June 2006, she was Parliamentary Undersecretary of State at the DCA. It was before she was promoted, and she said, "I'm critical of the judge for three reasons", and she set out her three. Judge Cutler, Secretary of the Council of HM Circuit Judges, said, "Why is no one speaking on behalf of the judges?" And then if one looks then later on 18 July, the Lord Chief Justice condemned the attacks on judges as intemperate, offensive and unfair. So what effect did that provision have? LORD JUSTICE LEVESON Well, I'll tell you the effect it has, that actually what you've just identified is the value of free speech, whatever the judges might think about it. But the effect that it did have is that nobody can say that a statute statute has cut down the independence of the judiciary, whatever comment politicians might make about it. And your concern, as I understand it and it may be more than philosophical Lord Black's was very philosophical. But your concern is that a statute, once it's started to even talk about providing a framework within which the press can be regulated, is itself impacting on the freedom of the press. That, I understand, is the argument. If I've misunderstood t please correct me.
A. I think, sir, what I was referring to was: what effect did this statute have on, say, the Lord Chancellor? Because we're just looking at it in this particular context but there are many others I could quote. The Lord Chancellor, in giving evidence to the Constitutional Affairs Committee on 4 July 2006, said that this particular case "has had an impact on undermining confidence in the judiciary". This is the Lord Chancellor. I just feel that when you move from the independence of the judiciary, which I uphold and would fight to the death to uphold, to independence of the press, you move into a completely different structure. If it doesn't work for the judiciary in the way that I would like it to, it's hardly going even to get off the ground in respecting the independence of the press. LORD JUSTICE LEVESON Well, if it means: are you going to be able to stop ministers complaining about what's written about them in the press, I think not, in the same way that we've been unable, if we've even tried which I doubt to stop ministers complaining about judicial decisions. We've complained that the context of our decisions is not correctly identified and therefore people get the wrong impression, but free speech is there to correct all that. The purpose of the statute is to cope with what I understood was the concern about creeping legislation. Once you've started a bit, then it's easy to do a bit more, and all of a sudden what looks benign, by creeping legislation, becomes something that's not at all benign. Therefore I'm saying or I'm asking; I'm not deciding, as yet the equivalent of section 31 of the Constitutional Reform Act, and 36 and all the rest of them, if applied to the press underlines a Parliamentary commitment to a free press which presently does not exist. That's the point.
A. Yes, I readily understand, and if one seeks to try and entrench the independence of the press, one is really fighting with, I suppose in many ways, amendment 1 to the the First Amendment to the American constitution. If one reads the First Amendment, which is, I suppose, parallel to the sort of statutory underpinning of the independence of the press, it is it goes far further, and I just think as soon as you open this arena for Parliamentary scrutiny and control through legislation, primary and secondary, you open up the opportunity, really, of confusing a quite simple problem that has needed like a hole in the head needs statutory regulation and does desperately need some form of regulation which it's never had. LORD JUSTICE LEVESON Well, I understand article 1 does go further and raises all sorts of other different issues. MR JAY On that argument, I think, Lord Hunt, one would never have any form of statutory regulation because it would always be wrong in principle, wouldn't it?
A. No, I think the press is as we remind ourselves every day, in the UK is pretty unique. I don't think there's a similar press regime anywhere else in the world, which criticises ministers, judges, everyone else, and long may that last, but let us have a change in the culture, a change in the ethics and the standards of the press, which I think the overwhelming majority of the press want to sign up to.
Q. I think you're agreeing with me then that on this line of argument, one would never have a system of statutory regulation in whatever form, since it would always be inimical to the principles you've just expounded. Wouldn't that be so?
A. Well, in the Human Rights Act, the Data Protection Act, there is reference to a code. It may well be and I introduced it last time and you'll be hearing from Professor John Horgan a little later that week it may well be that the defamation bill could have a recognition of a code, or indeed, as in the European Court's judgment in the Mosley case, specific reference to the Editors' Code. That, to my mind, is not a statutory regulatory system, which, in the case of the press, I wouldn't advocate but I await the decision of this Inquiry.
Q. Can I ask you, please, about paragraph 20 of your statement now. I haven't asked you about bills before Parliament mutating and ending up having damaging consequences. You told us a bit about that on the last occasion, but out of fairness to you, is there anything you wish to add to that point?
A. Except just to point out that secondary legislation does require primary legislation. It is now accepted that Parliament should not give the executive unfettered power to introduce secondary legislation, so every regulation or every element of secondary legislation has to have a derivation and an authority in an Act of Parliament, and I thought that perhaps those who advocate "Well, it can all be dealt with by secondary legislation" do not sometimes understand that the Henry VIII principle of allowing the executive to do whatever it likes is inappropriate and would not be accepted. LORD JUSTICE LEVESON Of course one couldn't, and the great value of primary legislation is that it can define exactly what is permitted or not permitted in secondary legislation.
A. Yes. Yes. LORD JUSTICE LEVESON I understand that. MR JAY Paragraph 20, where you refer to your time having been spent meeting victims who've suffered at the hands of the press. You say you've been saddened and sometimes appalled by some of the stories you've heard and then you say: "I'm sorry to say in some of the most high-profile cases, the treatment they received from the PCC also fell short of what a genuine regulator could, should and would have done in a similar situation." I'm not going to give examples. Some of your conversations may have been confidential but I think we can imagine the sort of individuals you spoke to who gave you those views. LORD JUSTICE LEVESON Could I ask you this question, though: have these extended beyond people who've given evidence to the Inquiry?
A. Yes, sir, because I have met groups and individuals who have not given evidence to the Inquiry. But I did make it my business to meet as many as I possibly could of the victims who have given evidence. LORD JUSTICE LEVESON But you make a very important point. It would be quite wrong for anybody to think that the people who have given evidence to the Inquiry are the only ones who have complaints against the press. There are out there a large number of other people with similar complaints, which we could have they might tell different stories, so we could have filled this Inquiry with days and days more. Do I correctly understand what you're saying?
A. Yes, sir. In fact, since I gave evidence to this Inquiry, I think we have dealt with an enormous number of complaints within the Press Complaints Commission and I've also met groups who have given what they believe to be evidence to show that there are groups in society and groups generally who are not treated properly by the press. I found discussions with, say, the Samaritans to be enormously helpful in understanding the importance of listening to groups like the Samaritans, particularly when we look at the Internet and what is appearing on the Internet at the present time and we have to work out ways to overcome the dangers that they highlight. LORD JUSTICE LEVESON That might also mean not merely looking at what's happening on the Internet but looking at what groups have to say about the way they are portrayed in the press.
A. Yes. MR JAY You tell us that the victims you've spoken to by and large have not lost faith in the press. Have they lost faith in the PCC as currently constituted?
A. Yes, they've told me that. Although the 260 complaints we've dealt with since January I've looked at the returns, because we ask everyone to say what they felt, and over 80 per cent of those who have had their complaints dealt with have expressed satisfaction with the way in which their complaint has been dealt with. LORD JUSTICE LEVESON Could you explain to me by what you mean by "dealt with"? Does that include those who have complained and you've directed them back to the newspaper and then mediated something, or is it only those who actually get through to the stage of adjudication?
A. No, I'm talking about all complaints, and generally speaking, the majority of complaints are resolved through mediation, and quite often the complainant will be satisfied that their complaint has been dealt with properly without the need to press for adjudication. LORD JUSTICE LEVESON What proportion of those people who actually complained were rejected as not falling within the grounds of the code? Well, how many more people were there, because they're obviously not included in your number.
A. I would want to ask, but as I understand it, a very small number would be turned away, because at the moment, without this new regulatory system and without being satisfied, as the new regulator would have to satisfy themselves, that there are properly internal procedures for dealing with complaints, we do not brush aside complaints and direct them towards the editor without taking them up in the first place. That is something which I think would be new and would be welcome, and indeed the publishers have said that they would want to make sure that there was a proper system of dealing with complaints within each of their titles. As I understand it just take one section there are 15,000 editors of regional and local newspapers and magazines, so we are dealing with a huge number of publications. Generally speaking, I'm sure that most of them would prefer to deal with the complaints directly themselves without first having to be made aware by the PCC that a complaint has been lodged. LORD JUSTICE LEVESON 15,000 editors?
A. I asked before, that whereas the small number that was earlier quoted may be the number of editors in major newspapers, there are, as I demonstrated through IPC Media, 60 editors there. There are hundreds and thousands of editors of smaller publications, at local/regional papers and magazines. MR JAY You travelled to Ireland in early May of this year. You say you learnt some valuable lessons there. Could you summarise, please, Lord Hunt, the lessons that you did learn from that visit?
A. Well, you're quite right. I found it fascinating and I have established a very good working relationship with Professor John Horgan, who was present at each of my meetings there, and I found that there are some lessons to be learned from the Irish system, but there are some considerable differences which exist, and I have sought to set those out in my statement.
Q. In your own words, could you summarise for us the lessons you learnt and then the differences?
A. Well, so far as the Irish system is concerned, the Act itself does lay down certain specifics about the Irish Press Council which I'm not sure would be translated into our defamation bill. It does achieve universal coverage. The self-regulation itself, they believe, is a sufficient incentive and I see potential benefits in having similar legislation here linking a Reynolds-style defence to membership of a recognised regulatory structure but I wouldn't advocate a perfect replication here of the Irish Press Council or the Defamation Act 2009.
Q. We'll look at the detail of that as we go through your evidence, Lord Hunt. Can I ask you, please, about paragraph 26 of your statement where you start to give a brief overview of your recommendations. You point out the current system is non-contractual or rather operates on the basis of implicit contracts that analysis is no doubt correct save for an informal system that's endured surprisingly well. I put this to you: if the suggestion is the publishers would be willing to sign a contract and be compelled into doing things that they would not otherwise agree to, why would they do that?
A. There is a willingness to set up, for the first time, a proper regulatory structure. I can't really speak as to whether that willingness was there before, had the notion been put forward, but certainly in the past, even though there may or may not have been an implied contract I personally don't think there was there had been occasions on which several publications have in particular at the time of the Calcutt committee's report on privacy, one major newspaper threatened to withdraw from the Press Complaints Commission and were eventually persuaded not to do so, so it's never really been put to the test. So I don't think it's a case of just looking at one large newspaper publishing house; I think one has to look over the whole scene and set up a system where it would not just not be possible for anyone unilaterally to withdraw.
Q. Under the new system, enforcement is via court action if necessary. How likely is it that the regulator would be willing to take court action to enforce a contract in this way, and what would the implications be for relations between the regulator and the publishers if such a step had to be taken?
A. Well, I I I have reserved my position on the drafts which have been put forward. I haven't reached any conclusion on the draft contract, the draft regulations, the draft articles, nor have I been asked to do so. I await the view of this Inquiry. One can only speculate as to what the relationship would be in the circumstances you describe. I started off, perhaps too idealistically, in hoping that we might have a short, simple, easy-to-understand contract. That's still, I think, my position. I don't see the need for great, huge, extensive provisions. I want to set up an independent self-regulatory structure which can then work out with the industry the best way forward, rather than being too inhibited by detailed provisions, but I'll very open to any suggestions that may be made on that subject. LORD JUSTICE LEVESON So you've not commented upon the precise details that Lord Black's enunciated to us. You've deliberately not seen that as your role and you've not discussed them with, for example, any of the people that you've been consulting with?
A. Well, there have been a number of drafts. I saw some early drafts when I again reiterated my wish for a short, sharp, simple, easy-to-understand contract. I haven't given any view on the latest drafts, nor have I seen all of them. I felt it was I was hoping that you, sir, would give a view on the right way forward. LORD JUSTICE LEVESON Oh, in due course I certainly shall. MR JAY Can I understand, though, what your preference would have been? You've obviously been able to have a look at the latest iterations of Lord Black's model in terms of the contractual structure, the regulations and the articles of association. Is it your position, Lord Hunt, that a shorter, simpler model would have been preferable, therefore giving the regulator and the regulated entities greater leeway subsequently to decide what to do?
A. Mm, yes, but it is for the industry to come forward with their proposals. I suppose in many ways I set out an agenda in that two-page document. I set out in simple terms the powers that the new independent self-regulatory structure should have. I think it's remarkable that Lord Black has been able to get agreement across the industry, because I am aware that there are differing views in all parts of this great newspaper and magazine industry but I haven't reached a conclusion because I was hoping to receive some guidance, because we are dealing with a completely new area. This is going to be the first time ever a contract-based as recommended by Shawcross a contract-based regulatory structure is going to be set up.
Q. Is your fear, though, that if the contractual stipulations and associated regulatory stipulations are very detailed as indeed it's fair to say they are in the proposals we've been examining this morning it may be less likely that every single entity within the press as a whole will sign up to them?
A. Well, there's no point if there's disagreement. We have to see agreement across the industry. But I would far prefer it to be on the simple objective of creating, for the first time ever, a self-regulatory structure, shared by an independent trust board, but I recognise that this is the first time we've ever attempted this, and I suppose we'll never know unless we give it a go.
Q. That may be right, Lord Hunt, but I think my question was more that for whatever reason and frankly, I can see for good reason we've reached the position now of a quite detailed set of proposals in terms of the contract, the regulations and the articles of association. Having reached that position, is your fear that it's in fact less rather than more likely that everybody will sign up to these proposals because of the level of detail we see in them?
A. Well, in the last few weeks I've seen virtually all the publishers and they have all expressed a willingness to sign up. LORD JUSTICE LEVESON That's the publishers. You don't see editors?
A. I see their I have concentrated in particular in talking to the publishers. I did, of course, discuss and I still discuss with key editors who take a lead in putting forward views, and the editor of the Independent on Saturday asked the public to express their views in his editorial on Saturday. So one must conditionally have discussions, but I was particular concentrated if we are to have an internal standards setting and complaints-handling mechanism within every publisher, it must be the publisher who is willing to set that up. It is then for the publisher to decide how the internal structure should work with his or her editors. MR JAY Are you personally satisfied that the detailed proposals which we've seen and scrutinised deliver the best quality independent regulation system?
A. Yes, because I am advised that it fulfils the objectives which I set out on 15 December. The key area, though and I think that is where many people will be looking to this Inquiry for guidance is on this third arm, the arbitral arm. Everyone wants to see a quick and easy way of resolving disputes without overoccupying the time of lawyers and courts, but I don't think yet anyone has come forward with the solution. I think people are looking to this Inquiry to give guidance. I think it's much easier to determine standards and compliance and handling complaints, and as you know, I don't think adding compensation to the list of powers of the complaints-handling body would be a good idea because I want to see complaints continue to be mediated.
Q. The issue in relation to the arbitral arm, as you well know, is it requires some form of statutory underpinning, that commercial contracts by themselves are insufficient. You appreciate that?
A. Yes, and Lord Lester's bill originally did set out a way in which that could be done. The government have not yet incorporated the wording that Lord Lester of Hearne Hill suggested but it may have the opportunity of reconsidering that, particularly when the bill comes before the House of Lords later this year.
Q. Paragraph 27 of your statement. You refer in the second bullet point to funding. Can I ask you please about the relationship between the industry funding body and the trust board of the regulator. Do you feel that that provides sufficient autonomy for the trust to do its job properly?
A. I don't really want the regulator to be involved in the detail of how the funding is allocated between individual publishers, individual newspapers and magazines and online. I think for the regulator to have cognisance of that would lead to different pressures being put on the regulator. I would far prefer the independent self-regulatory mechanism to be funded but not to go into detail about how that funding should be arrived at. That will be a matter for the industry.
Q. So the industry then will have control over the total amount of the pot, would it, Lord Hunt?
A. No, because, as you know, I have set out in my statement what I think will be the cost of the new structure, and as I understand it, the industry feels able, provided it gets general acceptance, to supply sufficient funds to meet that budget.
Q. I put the point to Lord Black and I put it to you as well: we know how much the PCC costs at the moment. It's just short of 2 million. The new body will cost 2.25 million a year, plus the enforcement pot, which will start at 100,000. Is that really sufficient, given all the extra work which the new regulator is being asked to undertake?
A. Yes, because I anticipate that the emphasis on internal standard-setting and complaints-handling will result in a more oversight body than presently is constituted. Therefore, you're quite right; there are additional responsibilities in the standards arm, in particular if there is a serious or systemic breach, but the onus of complaints-handling should be much more the responsibility of individual newspapers and magazines than it is at the present time, and I've found there's a general acceptance by the industry that that should be the case.
Q. That goes back to an earlier point. It assumes that there's already a culture change within all the relevant press organisations to ensure that both internal governance is improved but that there are fewer breaches of standards to enable internal systems to deal with them. Wouldn't you agree with that?
A. Yes. Certainly I've not come across anyone who has told me that it's impossible or too difficult to organise the necessary internal standards compliance and complaints-handling. There are differing views as to how independent the complaints-handling would be, but certainly I've found, especially in the local and regional press, that they would far prefer that complaints are dealt with direct with the complainant and resolved quickly.
Q. Can I ask you, please, about paragraph 28 of your statement, where you say in relation to the board of the new regulator that you would like to see one or two industry representatives on it but there should be an independent chairman and an independent majority. Lord Black's model has three press representatives on it who are not serving editors. Do you feel that's too many?
A. Well, there are some differences between Lord Black's proposals and my suggestions. I stand by my suggestions, but I do believe the outline that Lord Black has put forward is an extremely good starting point, although I've always said that the contract should be as sort and as simple as possible, so that the regulator then has sufficient flexibility to adapt to challenges presented by what is a dynamic and fluid industry. But I certainly don't believe any final contract should be signed until it has been forensically examined by you, sir, and by your team, and I would also like to study it myself to assess its fitness for purpose.
Q. It's right that there are some differences between what you're proposing and what Lord Black, with the acquiescence or otherwise of the industry, has proposed. I'm just seek to identify the key differences. One difference relates to the number of industry representatives on the trust board. You favour, in principle, a fewer number, don't you?
A. Yes, and there are a number of other differences. For instance, I think it's vitally important that there should be a whistle-blowing hotline into the new regulatory structure, in particular for someone employed who feels they're being asked to do things which are contrary to the Editors' Code. There should also be an ability within the new structure to discuss points of culture and ethical standards with any part of the industry who wishes to seek advice. I would want to the see, certainly in the early days, as flexible a structure as possible. LORD JUSTICE LEVESON One of the concerns about which I don't think my memory is letting me down relates to a complaint by some journalists about being asked to proceed in a way which they felt was unethical and being told by the PCC that they had no right to complain.
A. Yes. LORD JUSTICE LEVESON And I suppose that is what you're talking about by the whistle-blowers?
A. Yes. LORD JUSTICE LEVESON But do you have a comment then on the whole question of third-party complaints and the need for significant breaches of the code or substantial public interest? Or do you think that puts it too high, before a third party can complain or a group can complain?
A. I'm assured by my colleagues in the PCC that they do listen attentively to any third party who wishes to bring forward a complaint at the present time, but often the complainant may not wish to make a complaint but there is a group or a third party wishing to complain on their behalf. I think that will be a matter which should and must occupy the new self-regulatory structure as being right at the heart of what it needs to establish if we are to see a change in culture and ethics across the whole industry. There shouldn't be artificial barriers to people who feel they have a genuine grievance. LORD JUSTICE LEVESON The people who have given evidence to me on this topic aren't so much complaining about a particular person who might have had a complaint but about the way in which whole issues are addressed, such as disability, such as mental illness, such as
A. Yes. LORD JUSTICE LEVESON Well, you've heard the examples. Now, I appreciate that there is a line to be drawn which permits even partisan comment, but you see such complaints as fitting very firmly within the scheme that you anticipate taking centre stage?
A. Yes, particularly article 1 of the Editors' Code, which clearly says: "The press must take care not to publish inaccurate, misleading or distorted information." And I think it is perfectly in order for a group or an individual who feel that accuracy, code one, has not been followed, to make the new regulatory structure aware of their views. MR JAY Okay. Before we look at other areas of difference between your proposal and Lord Black's proposal, there's one area of similarity. This relates to the appointment of the chair of the trust board. It's toward the end of paragraph 28 of your statement, and you pick it up again in paragraph 71. Your proposal is the same as Lord Black's, although you refer specifically to a shortlist which would be produced independently by headhunters. A panel of four should make the final decision, there would be two independent members and two industry members of that panel, but there should be unanimous decisions. I don't think Lord Black referred to headhunters, but in all other respects your proposal is the same as Lord Black's. I must ask you this, Lord Hunt: you say that this should be a thorough-going process modelled upon best practice, but is it best practice to have this sort of appointments system? Why not have an appointments system which is independent of the industry altogether?
A. Well, I certainly believe independent policing of standards is in the public interest, and the new body has to be clearly and demonstrably independent of the industry it regulates and also of the apparatus of the state, and I would hope that certainly the conclusion will be to recommend an appointments system which will entrench that independence. I feel that very strongly. Otherwise the public will not have trust and confidence in the new body. LORD JUSTICE LEVESON But do you think the public is likely to have trust and confidence in a body which gives to the industry nominees a veto on the appointment of the independent chair?
A. Well, I I was hoping you were going to provide the answer to that question. LORD JUSTICE LEVESON But you, in paragraph 71, suggest that the answer is yes, because you propose that the appointment must be unanimous.
A. Yes. It's because I've always started from the point of view of consensus. I think the way ahead must be by agreement and I would not want to get off to a bad start, and I therefore put in the word "unanimous" because I think everyone should agree. It does, I recognise immediately, give a veto to the independents and also to the industry LORD JUSTICE LEVESON But the independent people will almost certainly want somebody who is independent. The press people may want somebody who looks independent but who is "one of us".
A. I have yet to find that degree of cynicism. LORD JUSTICE LEVESON Oh, have you?
A. I believe that there are independent people who don't necessarily want independent people, and there are equally press people who don't necessarily want press people. I just want there to be unanimity on the right way forward, but I will be guided by you, sir. LORD JUSTICE LEVESON Well, I'm prepared to accept that people may consider me cynical as well. I just want to be realistic and ensure that there is a system which attracts public confidence.
A. Yes, yes. MR JAY The other point of departure between your proposal and Lord Black's proposal, assuming I've correctly understood Lord Black's proposal, which I believe I have, is that you put forward the idea that the independent chairman should be the chief ombudsman on complaints and the principal arbiter of standards. So are you saying, Lord Hunt, that the ombudsman in effect is the first tier of the complaints committee, or is he or she the appeal body? How is this working in contradistinction to Lord Black's proposal?
A. Well, I reached this conclusion after my visit to Dublin and also considering a number of other systems and a number of other ombudsman, and I think the key to this system working well will lie in the character and personality of the person who is going to occupy this key role, and I would therefore want them to have that power and that influence.
Q. Is this person an ombudsman properly so called, or is it someone who is just going to be regarded as very important and key to the whole system?
A. Oh no, no, no, it's got to be someone who is seen by the public as someone in whom they can have trust and confidence to make the right decision.
Q. But an ombudsman properly so called? Because an ombudsman, on the evidence the Inquiry we've received, is usually independent of the body it's regulating, and this ombudsman is not part of the system. Ombudsmen also usually have power to award compensation. So it's not, on our understanding, an ombudsman at all. I just want to understand what your terminology amounts to, if I may.
A. Well, during the course of that first independent inquiry into the financial services ombudsman that I did, I was introduced to the Society of Ombudsmen, and I have to tell you they are so different depending on which country they're in, which jurisdiction. I don't think I can generalise, except to put forward my view of what this ombudsman would be.
Q. Okay. Well, we don't see it mirrored in Lord Black's proposal, but it may be that your proposal is better. In order to test whether it is, can we just see what this ombudsman is doing? Is he or she the first level of the complaints system, as it were? I mean, obviously
A. No, the first level must be the internal newspaper and magazine.
Q. Yes. Putting that aside
A. If that can't resolve, then it moves into what I have sought to describe as the complaints arm with its panel of adjudicators: 13, eight independent, five from the industry.
Q. Mm-hm.
A. And obviously that complaints arm would operate alongside the standards arm, which would also have a panel of experts, and if necessary, an investigation by a panel of three
Q. We understand that.
A. So that is the structure.
Q. So where's the ombudsman fitting in in this structure?
A. Well, I see the ombudsman as being the independent chairman of the whole structure. That is one solution. That's one way forward. There are many others, but that's the one that I thought would attract the maximum support.
Q. Well, we may be playing with words, but the distinction may be important. That, on our understanding of the term, is not an ombudsman properly so-called, but nonetheless the chair of the trust is occupying a very important position in the whole structure.
A. Yes.
Q. We can see it on Lord Black's charts.
A. Yes.
Q. We may dispense with the label, but we understand the importance of the role that person occupies. Can we at least agree with that?
A. Yes.
Q. You also suggest it's not explicit in Lord Black's model, but it may be implicit that the new regulator should require a communications function. This is paragraph 36 your statement. What precisely do you have in mind there?
A. In what respect?
Q. How is this communications function going to be discharged and what is the need for it?
A. In relation to the ombudsman?
Q. No, in relation to the system as a whole.
A. Well, I see the ombudsman as certainly not being a champion of the free press but believing in a free and responsible press, and the job of the ombudsman is to ensure that the responsibility element of the equation is just as important as the freedom element, and the system should operate on the basis that a free press is in the public interests as long as it operates within the code, and that's the way I look at the use of the word "ombudsman" and indeed the purpose of the whole structure.
Q. The next section of your evidence is effectiveness, paragraph 35. You identify five principles these are the Hampton principles and you add a sixth principle, namely independence. We understand that. In agreement with the public interest that's paragraph 37. We understand that. May I ask you, please, about the amendment of the code which you refer to in paragraph 37, which I think is fairly recent, if my recollection is right, Lord Hunt. It requires editors to demonstrate the public interest has been served and the amendment is, and how and with whom that was established at the time. How has this amendment been used or tested at all since this introduction and what difference, if any, is it making? Can you assist us with that?
A. I'm told it has made a considerable difference, in that now, whenever public interest and it will be comparatively rare that public interest is discussed in this way I am told now that there is every effort made to record exactly what is said and done at that time. I don't think it was an easy amendment for the press to accept. There was considerable discussion about it, but I think it's a reflection of the way standards have improved and culture has improved that everyone felt that this was a necessary amendment and it came in on 1 January this year. It's a little early still to adjudicate on how effective it's been, but I think it's a move certainly a move in the right direction. LORD JUSTICE LEVESON Well, one hopes it's never challenged, because everybody does it properly.
A. Yes. MR JAY The next theme you take up this is paragraphs 39 to 41 is that of flexibility.
A. Yes.
Q. The need to ensure that there isn't, as you say, the time bomb of obsolescence built into the system. Are you contemplating here simply this: that the system is flexible enough to enable new entities to be incorporated within it, either in terms of the criteria for entry or the ability of those currently within the system to amend its terms? Is that basically the issue here?
A. Yes. LORD JUSTICE LEVESON Choose a time, Mr Jay. MR JAY I want to sort of leave I think we can break now. I wanted to ration myself to an hour and a half tomorrow morning with Lord Hunt, otherwise we're going to be in danger of not completing the business of the day, but I think I will be successful. LORD JUSTICE LEVESON If you want to MR JAY No, I'm not that concerned now. LORD JUSTICE LEVESON Right. MR JAY But I am asked to say that we're reading in a number of statements today. LORD JUSTICE LEVESON Right, let's do that. MR JAY The list will be put on the website immediately. I'm not going to read out the whole list now. There's quite a lot of them. LORD JUSTICE LEVESON All right. Could I just see the list? MR JAY Certainly. (Handed) LORD JUSTICE LEVESON I hope it's not inconvenient for you tomorrow morning.
A. No, no, not at all, sir. MR JAY These have all been circulated to the CPs. Any about which there is some concern or dispute are not on the list and will be taken up subsequently. LORD JUSTICE LEVESON I've seen this list. Yes, I agree. Thank you very much. All the statements identified in this document, the deadline for objections having been 4 pm on Monday, 2 July, will be deemed read into the record of the Inquiry. Thank you very much. Tomorrow morning at 10 o'clock. (4.36 pm) (The hearing adjourned until 10 o'clock the following day)


Gave statements at the hearings on 31 January 2012 (PM) 09 July 2012 (PM) and 10 July 2012 (AM) ; and submitted 6 pieces of evidence


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