By Brian CathcartThis is the first part of an extended response to the government consultation. More parts will follow. We will welcome your comments, and if you wish to register your views with the government, click here.

Introduction

In this consultation the Government seeks guidance from the public on the courses of action to be taken on two matters, the commencement of Section 40 of the Crime and Courts Act 2013 and the initiation of Part 2 of the Leveson Inquiry. Since the chief role of Government in a democracy is to protect and promote the interests of the public, it follows that the proper courses of action here are those which further those aims. In other words, how are the interests of the public best served? Those interests are engaged in three ways.The first is in the upholding of the civil and criminal law. Both have been breached in the recent past by employees of newspapers, not occasionally but on many occasions, not by just a few but by many, and not only by lowly figures but also by senior ones – and institutionally. Thousands of people have suffered in consequence, many of them without remedy, while others have been wronged but remain unaware to this day of the injustice done to them. In pursuance of the interests of the public it must be the first obligation of the Government to do all it reasonably can to ensure that such illegal conduct does not happen again, and where it does to ensure that adequate remedies are available.Secondly, the public’s interests are also engaged through their need to have access to reliable information on public affairs, in this case through the medium of newspapers and other news publishers outside the realm of broadcast – in short, the press. Government has an obligation to protect the freedom of the press to perform this function, and equally an obligation not to interfere with that freedom itself.The third way in which the public’s interests are engaged relates to the standards of conduct of the press industry. The press industry accepts the principle that in addition to the law there must be common, basic standards of conduct, and it has done so ever since it produced its first code. Painful experience has taught us that the public suffers injustices as a result of failures to meet these standards, even where the law is not breached. Such failures may relate to the ways in which news is gathered and to the ways in which it is written and published. Inaccurate information, for example, can cause grave harm to ordinary citizens without being defamatory.Across all three of these one is paramount: the interests of the public. The interests of the press industry can only count in the considerations of government insofar as they serve the interests of the public. Press freedom and the wider freedom of expression are acknowledged in law to be qualified freedoms – other rights and freedoms sometimes come into conflict with them, and sometimes properly override them. Similarly the interests of the press industry, that is to say the array of corporations and companies that publish our newspapers, can and do on occasion conflict with the interests of the public. None of this is to suggest that freedom of expression is anything less than vital and important, merely that its importance derives from the ways in which it benefits and protects the public.With the exception of some rhetorical flourishes this vital emphasis on the interests of the public is absent from the consultation document. In particular the questions posed in the document relegate views and evidence relating to impacts upon the public to at best a secondary position. A conspicuous priority is given instead to views and evidence relating to impacts upon the commercial press industry, an approach which, morally and historically, cannot be justified.This response to the consultation seeks to answer the questions that are posed while giving priority, as the Government must in its decision-making, to the public interest. Where the questions fail to address those interests we have nevertheless identified them.The corporate press has campaigned on these matters. In considering all the responses to the consultation, ministers should bear in mind that public discussion during the consultation period has been warped by the abuse of press power. Newspapers have presented arguments that serve their interests and reflect their prejudices to the exclusion of all other views. Requests by Hacked Off and others to correct inaccuracies and present alternative perspectives have been consistently brushed off. This is a clear breach of the obligation of the press to provide the public with reliable information. Much of the press industry’s case has been so hysterical as to be beyond argument, but where the consultation document has repeated arguments put forward by the corporate the press we have rebutted them.Our answer to Question 1: Which of the given statements do we agree with?We agree with statement B: Government should fully commence Section 40 now.Our answer to the first part of Question 2: What evidence do we have to support our view that Section 40 should be fully commenced now?Part 1: An unjustified and damaging consultationThe delay in full commencement thus far, and any further delay, is unjustified because it constitutes:- a direct contravention by this Government of the will of Parliament- a misuse of the commencement procedure- a breach of the cross-party principle established in all matters relating to Leveson- an infringement upon freedom of expression and the freedom of the press- a breach of promises made to victims by Government, and by Conservative ministers.The evidence is as follows.

Contravention of the will of Parliament

Section 40 of the Crime and Courts Act 2013 was a measure enacted as a result of the acceptance by the three main political parties in Parliament of the recommendations of a public inquiry under the Inquiries Act 2005 in response to a grave crisis affecting the press, political parties and the police.The inquiry had been conducted by a senior judge over a period of a year and heard the views of every interested party including, in particular, the press. Its recommendations and supporting arguments were then considered over four months by a committee of senior figures from the three main political parties, in government and opposition, and the result was a formal cross-party agreement signed in March 2013 by the leaders of the three main parties in Parliament (parties which between them accounted for 95 per cent of MPs). This agreement was the basis for the Royal Charter on press self-regulation, for Section 96 of the Enterprise and Regulatory Reform Act 2013 and for Section 40 of the Crime and Courts Act 2013. All of these were endorsed by every single party in the House of Commons and overwhelmingly by the House of Lords.Few Parliamentary measures in modern times can claim greater legislative authority and legitimacy and the threshold for interrupting or interfering with the processes then set in motion must be extremely high.Aware that there might come times when the question would arise whether this high threshold had been reached, and conscious that these were matters not properly left in the hands of politicians and governments (given their potential for improper interference with the press and their known susceptibility to improper press influence), Parliament made explicit provision for a safe, proper and independent means of judging. Through the Royal Charter it gave that responsibility to the Press Recognition Panel (PRP), the uniquely independent public body charged with protecting the interests of the public in matters of press regulation. Paragraph 4.1.d. of the Royal Charter gives the PRP the task of ‘reporting on any success or failure of the recognition system’, and paragraph 10(b) of Schedule 2 requires it to report to Parliament on this matter. The PRP laid its first state of recognition report, which itself had been the subject of a public call for information, before Parliament in October 2016. It stated:

‘Urgent action needs to be taken if the recommendations of the Leveson Report are to be given a chance to succeed: Section 40 should be commenced in England and Wales, and the Scottish Government and the Northern Ireland Executive should consider what further action is required to bring about success as contemplated by the Charter. Until this happens, free speech and the public interest cannot be safeguarded.’

The will of Parliament in 2013, and the exceptional care taken to act by consensus and with respect for press freedom, cannot be doubted. The various measures adopted have special authority derived from their basis in an independent public inquiry, in cross-party agreement and in their overwhelming endorsement by Parliament.Nothing in those 2013 measures, or in the debates surrounding them, foreshadowed the actions of ministers in delaying commencement. To the contrary, on no fewer than 29 occasions over the past three years statements have been made in Parliament that the incentives envisaged in March 2013 would enter into force.The failure to commence Section 40 self-evidently runs contrary to the determination of Parliament, enshrined in the various measures (see below), to remove politicians so far as possible from influence over the framework of press regulation that was set out. They also run contrary to the recent and unequivocal recommendations of the PRP, the body tasked at Parliament’s behest with monitoring press regulation. On all these counts the Government is contravening the will of Parliament.

Misuse of the commencement procedure

There is no evidence in the records of public and parliamentary discussions of these matters in 2012-13 to suggest that it was the intention or expectation of the three party leaders or of Parliament that a power of commencement might be used by ministers to delay or prevent the operation of Section 40. The terms of the cross-party agreement and the alternatives that were rejected in favour of the statute that was enacted makes clear that in fact no delay in commencement was anticipated, far less any decision not to commence.Such an intervention breaches the spirit of the reforms as it amounts to political interference in the freedom of the press, the terms of the cross-party agreement, and it departs from the principle established in 2011-13 that all such matters require cross-party consensus. (This point is dealt with below.)The Act itself gives clear guidance as to when those who passed it expected that Section 40 should enter into operation. Section 40(6) states:

‘This section does not apply until such time as a body is first recognised as an approved regulator.’

This reflects the unequivocal understanding at the time that,

1. the Act was passed that, by the time a body was first recognised as an approved regulator, section 40 would be in force.
2. Delayed commencement (which had been proposed in alternatve versions of the statute and rejected) was not necessary or desirable

Impress became the first body to be recognised as an approved regulator on 25 October 2016. There can be no doubt that the legislators of 2013, including a Conservative Prime Minister and a Conservative Culture Secretary, expected Section 40 to have been commenced by that date. The Government’s refusal to commence is patently not the proper exercise of a power conferred upon it by Parliament, but is instead an abuse of the commencement power in order to frustrate the purpose of the relevant statutory provisions.

Breach of the cross-party principle

The political response to the crisis of 2011, spanning nearly two years from the decision to hold an inquiry to the decision to approve Section 40, was explicitly and by design cross-party. The Leveson Inquiry itself, and its terms of reference, were the results of cross-party agreement. Announcing them on 13 July 2011, David Cameron stressed the point:

‘As the Leader of the Opposition said, we had an excellent meeting last night. We discussed the nature of the inquiry that needs to take place. We discussed the terms of reference. I sent those terms of reference to his office this morning. We have had some amendments. We are happy to accept those amendments.’

On the publication of his Report Sir Brian Leveson urged that [pdf] the same approach should be adopted in relation to his recommendations:

‘I hope that my recommendations will be treated in exactly the same cross-party spirit which led to the setting up of the Inquiry in the first place and will lead to a cross-party response.’

Cross-party negotiations duly followed in which the three main parties were represented at very senior level: the Conservatives by the Secretary of State for Culture, Media and Sport and the Minister for Government Policy, the Liberal Democrats by their deputy leader in the Lords and Advocate-General for Scotland, and the Labour Party by its Deputy Leader and shadow Culture Secretary. This negotiation concluded with the cross-party agreement of March 2013.There were two reasons for this unprecedented approach. First, given the history of political partisanship in relation to the press (a factor which the Inquiry found had contributed to the crisis of 2011), the public could not be asked to have confidence in measures undertaken by one party alone. Second, it is self-evidently unhealthy for a democracy when any one party, even a majority party, makes decisions on its own relating to the regulation of the press.The commitment to cross-party principle can be seen in the careful arrangements for amendment to the Royal Charter. Royal Charters can usually be amended by the Government with no recourse to Parliament. In this case, not only must the PRP give unanimous approval, but any change also requires assent by two-thirds majorities in both Houses (Royal Charter [pdf], par 4.1 (d)) – a requirement that Parliament enshrined in law through section 96 of the Enterprise and Regulatory Reform Act 2013. Since no one party has won more than two-thirds of the seats in the Commons since 1931, and no one party can achieve a two-thirds majority in the Upper House, it can hardly be doubted that Parliament’s intention was that any change would entail cross-party agreement.Despite this background, no cross-party process was involved in the decision announced in October 2015 to consider the non-commencement of Section 40, and on the evidence of the consultation document none is envisaged in the decision-making that is to follow the completion of the consultation.

Infringement upon freedoms

The Government’s decision to delay the implementation of Section 40 places it in a position of influence over the form of press regulation which is not compatible with freedom of expression or with press freedom.Politicians should never have such power, which is precisely why Parliament in 2011 asked a senior judge to review the matter and make recommendations, why once his recommendations were made they were handled on a cross-party basis and why those recommendations were so punctilious in excluding politicians from future involvement in press regulation. So long as the government holds the power of commencement, it is acting as a censor or potential censor, which is why Options (a) and (d) in Question 1, explicitly holding out the possibility of long-term ‘review’ by politicians, must be unacceptable.This was a point made clearly by the independent Press Recognition Panel in its report of October 2016 [pdf] when it said…On 19 October 2015, the then Secretary of State, John Whittingdale, said that he was not yet minded to make the order which would commence Section  40. At the same time, he urged relevant publishers to move within the recognition system.In making this statement, he moved away from the recognition system in England and Wales as contemplated by the Charter and the CCA 2013 apparently to see whether relevant publishers would nonetheless create and/or join an approved regulator as contemplated by the Charter. The majority of relevant publishers have not taken this opportunity.The shared view from both proponents and opponents of the recognition system (and implicit in the Charter itself) is that press regulation should be free from political interference. Full implementation of the recognition system would achieve that. Some opponents of the recognition system have focussed on discouraging the Secretary of State from commencing Section  40 arguing that its cost shifting measures amount to an attack on free speech. The decision to delay commencing Section  40 has paradoxically kept a political presence in place, something which its commencement would remove.Editors and journalists will be conscious that the government on whose activities it is their business to report has the power at any time, by executive action alone, to alter the terms of their industry’s regulation. Government thus assumes a power at the very least to ‘chill’ reporting and also potentially to trade favours with the press in a corrupt manner.

Breach of promises to victims

In 2011-13 politicians of all parties, including the then Prime Minister, made it clear to the public on numerous occasions that the views of victims of press abuses were of central importance. From the many examples, here are statements by David Cameron to Parliament on 13 July 2011:

– ‘We must at all times keep the real victims at the front and centre of this debate.’– ‘This has to be about the public and the victims.’– ‘None of us can imagine what they [the victims] have gone through, but I do know that they, like everyone else in this country, want their politicians to bring this ugly chapter to a close and ensure that nothing like it can ever happen again.’

Here are statements he made to Parliament on 29 November 2012:

– ‘What matters most about this is putting in place a regulatory system that can make the victims proud.’– ‘What is absolutely vital is that we put in place a regulatory system that they [the victims] can see has got real teeth.’ – ‘I think that they, as all victims do, deserve a really tough, independent regulatory system that can really hold the press to account, that can fine those editors, that can call them to account, that can insist on proper apologies and that can take up complainants’ cases and deal with them properly.’

The Culture Secretary, Karen Bradley, in remarks in the Commons, has suggested that she honoured this commitment by meeting a group of victims, once. This was at a time when the possibility of a consultation had never been publicly aired and she did not on that occasion mention the subject to the victims. Victims were never asked their views either on the principle of consultation or its form.This disregard for the views of victims is also evident in the terms of the document itself, which consistently gives priority to the interests of, and the possible impacts upon, the press industry, and invites views or evidence relating to impacts upon victims or potential victims exclusively in relation to their possible status as legal claimants. Nowhere are respondents asked to comment, for example, upon the possible impact of the various options on press standards and ethics, or on the number of code breaches likely to take place in various scenarios, or on the number of regulatory investigations, fines and front-page corrections that are likely to occur. These are matters of direct concern to victims, whose views represent those of future potential victims and of the public generally.END OF PART 1Click here for a guide on how to respond to the consultation.