By Brian CathcartThis is the third part of a response to the government consultation. More will follow. We will welcome your comments, and if you wish to register your views with the government, click here.Under the rubric of ‘much has changed’ since 2013, the consultation document states: ‘We have seen arguably the most significant changes to press self-regulation in decades’. This cannot be disputed insofar as it relates to changes resulting directly from Parliament’s cross-party actions in 2013: the PRP has been established and has begun work – a historic step – and Impress has been established and has been recognised by the PRP as meeting the standards of independence and effectiveness set out in the Leveson Report and the Royal Charter as necessary for the protection of the public and for the safeguarding of freedom of expression. Given the unfortunate history of press regulation in this country, these can rightly be described as most significant changes.They do not, however, constitute changes of a kind that could justify abandonment of the course chosen by Parliament under the all-party agreement in 2013, nor could they justify interference by Government in the processes envisaged and set in motion at that time. As explained above, the threshold for any such action must be exceptionally high.The document makes the following statements in relation to press regulation:

1. The government ‘remains steadfastly committed to ensuring that the inexcusable practices that led to the Leveson Inquiry being established can never happen again’.
2. ‘It is important that the public know that should they have a complaint about the press, their concerns will be handled competently, fairly and swiftly.’
3. ‘The government is also fully supportive of a system of voluntary self- regulation by the press that is free from government interference and which enables all sectors of the industry to thrive.’

Point C describes recognised self-regulation under Royal Charter, as offered for example by Impress. In relation to A and B, the Leveson Report made 38 recommendations relating to press self-regulators and these were accepted and adopted under the cross-party agreement and endorsed by all parties in Parliament as the recognition criteria in the Royal Charter. That is to say, they represent the formal, impartial public test – independent of political influence – of whether a press self-regulator is sufficiently independent and effective to provide the public with confidence that their complaints will be dealt with competently, fairly and swiftly and that the regulator is in a position to do everything possible to prevent a repeat of inexcusable practices.Sir Brian Leveson made clear in his report that effective, independent self-regulation of the press in line with his recommendations is the best way of underpinning standards and so the best way of protecting the public against abuses of all kinds, including those proscribed by law. He noted in particular the difficulty of detecting crimes such as voicemail interception and data theft, where victims are usually unaware that they have occurred. This means that the criminal law is sometimes weak protection for ordinary citizens. More effective is the sustained maintenance of ethical standards in the industry.The consultation document states that “the press has undergone significant changes” including that “the majority of the press are regulated by IPSO, a new self-regulator” (para 64)The Inquiry examined in great detail the proposals for a new regulatory arrangement put forward by Lords Hunt and Black on behalf of the leading newspaper groups (Part K, Chapter 2). The Leveson Report set out a very detailed account of the serious shortcomings of this scheme (Part K, Chapter 3), the spirit of which was captured in the Executive Summary:

‘The proposed model does not go anything like far enough to demonstrate sufficient independence from the industry (and, in particular, serving editors) or sufficient security of high and unalienable standards for the public . . .’ (para 53)

Elsewhere the judge remarked [pdf]:‘It is still the industry marking its own homework. Nor is the model proposed stable or robust for the longer-term future.’The Hunt-Black scheme none the less was adopted as the blueprint for IPSO, and where alteration was made to the original scheme it was rarely to address the shortcomings identified in the Leveson Report. This is confirmed by the close study of IPSO’s founding documentation [pdf] undertaken by the Media Standards Trust in November 2013:

‘According to this analysis, of these 38 Leveson recommendations, IPSO satisfies 12, and fails to satisfy 20. It is unclear, given the information provided to date, whether IPSO satisfies the other 6.‘Of the 12 recommendations that IPSO satisfies, some should substantially improve the current [PCC] system, especially with regard to internal complaints and compliance, and protection for whistleblowing journalists.‘However, of the 20 recommendations that IPSO fails, many are key elements of the Leveson system, including independence from industry, access to justice, and complaints.’ (p.3)

These findings have never been faulted and the chair of IPSO, Sir Alan Moses, has acknowledged that they are accurate. IPSO’s principal shortcomings – the main reasons (among many) why it cannot properly serve the public interest – are glaring and substantive:

1. IPSO is not independent of the industry, but rather is dependent upon it as represented by the Regulatory Funding Company, which is dominated by the national corporate newspaper groups and which exercises control and influence through influence on appointments, control of regulations, an effective veto of investigations, setting the level of sanctions, deciding whether to use arbitration and the sole control of the IPSO constitution and terms of the contracts with newspapers.
2. IPSO’s complaints process, very similar to the PCC’s, is predicated on mediation and not adjudication, meaning that the priority is not upholding the code in general, or even on achieving just outcomes, but on palliation. This is not an effective way to uphold standards.
3. IPSO’s arbitration scheme is under the control of the industry, can be ended at any moment by the industry, is not low-cost for members of the public (and is therefore not accessible), is subject to a much lower limit on awards of compensation than would be obtained in the courts and allows defendant newspapers to ‘cherry-pick’ the cases they will allow to go to
4. IPSO’s arrangements for investigations and sanctions, though they have been the subject of considerable industry boasting, are powerfully weighted in favour of news publishers if they happen at all. It is no surprise that IPSO, in a period when press standards of accuracy have been manifestly low and widely criticised, has yet to launch a single investigation much less to impose a single fine.

IPSO claims to have undergone reform since its launch but any changes are not remotely substantive. Of the 20 shortfalls identified by the MST just one, relating to security of funding, was tackled. Other shortfalls were made worse (such as the initiation of investigations). Nineteen breaches therefore remain. By its own admission IPSO does not meet the Charter recognition criteria and it has stated it will not seek recognition. Until it does so and is successful it cannot be said to meet the standards found by public inquiry and agreed by Parliament to be necessary to protect the public. Nor would it be right for any politician to attempt to make his or her own judgement in this matter: that would breach the central Leveson principle, accepted in the cross-party agreement, that politicians must not be the arbiters in matters of press regulation.

History of self-regulation

The most cursory assessment of the history of press self-regulation in this country over the past half-century leaves no doubt that the industry alone cannot be trusted to do the job in the interests of the general public.The Leveson Report noted two recurrent themes: a ‘pattern of cosmetic reform’ of regulation by the industry when things went wrong, and persistent failures by government to act effectively in the public interest (see Part D, and Part J, Chap 4) The PCC came into being because of the Calcutt Report of 1990, which recommended that the press be given ‘one final chance to prove that voluntary self-regulation can be made to work’. In his follow-up report two years later Sir David Calcutt concluded: ‘The Press Complaints Commission is not, in my view, an effective regulator of the press.’The failure of government to act effectively at that time, combined with the unwillingness of the press industry to operate effective self-regulation, may fairly be said to have made possible the collapse of standards at some national titles which in turn made the Leveson Inquiry necessary. Many ordinary citizens, as the consultation document acknowledges, suffered in consequence. Further failure by this Government to interrupt the ‘pattern of cosmetic reform’ is certain to cause further suffering by innocent citizens. Such a failure, in the teeth of such clear historical evidence, would amount to a dereliction by the Government of its duty to the people.IPSO, as explained above, is the latest manifestation of the pattern of cosmetic reform. The Royal Charter, supported by Section 40, was the means by which Parliament decided to break the pattern in 2013. A failure to commence Section 40 and an acceptance, however tacit, of IPSO or any other regulator that falls short of the standards of independence and effectiveness required under Royal Charter, and fails even to undergo the test, would be a betrayal by the Government of all those whom it is its duty to protect.

Industry advocacy

Ministers should be extremely cautious about accepting any opinion on IPSO that is expressed by leaders of the press industry since the record demonstrates beyond doubt that these opinions may not be relied upon. Lord Guy Black, mentioned above, is a former director of the PCC and now a senior executive at Telegraph newspapers. In 2009, after the Motorman scandal and the McCann affair, and two full years into the phone-hacking cover-up, Lord Black was chair of PressBof (predecessor to the RFC), whose written submission to the CMS select committee made these assertions, under the heading “The success story of self-regulation’:

‘The industry is fully committed to effective self-regulation through the editors’ Code of Practice and the jurisdiction of the independent PCC. .’ ‘Standards of reporting have been raised markedly. . .’‘The PCC itself has proved itself to be an efficient and accessible regulator.’ (Report, Vol 2, Ev 109)

Paul Dacre, editor-in-chief of Associated Newspapers and chair of the Editors’ Code Committee, told the same committee in 2009:‘What gets my goat a little bit is the refusal of a, to be fair decreasing, minority to accept that standards have not improved very considerably in the press since the start of the Commission. I have been in this business forty years; the journalistic landscape has changed dramatically since the `80s; journalists are much better behaved. There is an argument that the Code and the Commission has toughened things up so much that, vis-a"-vis the earlier conversation, it is blunting the ability of some of the red top papers and the red top Sunday market to sell newspapers.’ (23 March 2009, Q588).In 2011 Mr Dacre told Sir Brian Leveson:‘The PCC has changed the very culture of Fleet Street. The editors’ code of conduct imbues every decision made by news desks and back benches.’ (Leveson seminar November 2011)In other words the two most senior industry figures associated with regulation at its highest levels were blind to the faults of the PCC even in the depths of its failure. One finding of the Leveson Inquiry in 2012 puts this in perspective:‘The failings which have fatally undermined the PCC and caused policy makers and the public to lose trust in the self-regulatory system are not new. They have been consistently identified by external scrutiny for at least a decade. The twin failure of both the self-regulatory system and the industry to address these problems is itself evidence that there has been no real appetite for an effective and adequate system of regulation from within the industry, in spite of a professed openness to reform and self-criticism. It is difficult to avoid the conclusion that the self-regulatory system was run for the benefit of the press not of the public.’ (Part J, Chap 4, 8.12).

Numbers

Nor can the number of members of IPSO be taken as evidence of its ability to perform the roles identified in A, B and C satisfactorily in the public interest, as the consultation document might be inferred as suggesting. Up to the time of its abolition the PCC actually had more members than IPSO does now, but that did not prevent Sir Brian Leveson from concluding that it was ‘run for the benefit of the press not of the public’ (Part J, Chap 4, 8.12) or David Cameron from stating that it was ’not set up in the right way, and has not worked’ (Col 319).

Trust

Point B above refers to the importance of public trust in regulation. A YouGov opinion poll in November 2016 [pdf] asked respondents: ‘Which of the following would you most trust to regulate news publications?’ It suggested: a regulator set up by the Government, a regulator set up by newspaper publishers and a regulator that is independent of Government and newspaper publishers. The first option found favour with 8 per cent, the second with just 3 per cent and the third with 73 per cent. IPSO corresponds precisely to the least popular form of regulation, favoured by only a tiny minority, while almost three-quarters of people support a regulator such as Impress. This has been the consistent view of the public, as expressed in opinion polls, since before the conclusion of the Leveson Inquiry.

Sustainability

Integral to the arrangements agreed in 2013 was provision for the long-term maintenance of standards in press regulation. Paragraphs 5-12 of the Scheme of Recognition in the Royal Charter provide not only for routine ‘cyclical’ reviews of recognised bodies, in the first instance after two years and thereafter every three years, but also for ‘ad hoc’ reviews in cases where the PRP considers them necessary. This flowed directly from the Leveson Report (Part K, Chap 7, 6.9, 6.10) and the objective is obvious: to prevent slippage or departure from the standards set out in the recognition criteria. IPSO not only fails to meet those recognition criteria now, but there is also nothing in the IPSO framework that ensures that it will continue to meet even its existing standards in terms of the rules and processes of IPSO which the industry, through the RFC, can change at any time. And beyond the term of the current five-year member contracts in 2019, everything else will then be up for renegotiation, and if the process of creation of IPSO is any guide it will not be a negotiation in which victims or the public have any part, but instead will aim to serve the interests of the press industry and no others. Should the Government fail to fully commence Section 40 and give recognised regulation the best chance of success, it will carry responsibility for the damage done to ordinary citizens as news publishers continue to ‘mark their own homework’.

The Pilling review

Finally in this context the consultation document states:

‘IPSO recently commissioned Sir Joseph Pilling to conduct a review into its independence and effectiveness which reported on 12 October 2016. The Pilling Report stated that its recommendations were ‘intended to help a new regulator, which demonstrates early achievement, promise and commitment, to develop into a trusted, experienced regulator’.’

This ‘review’ had no standing other than any conferred upon it by IPSO. It had none of the legitimacy of the Charter process – or of the PRP with its rigorously independent and open appointments arrangements and its transparent processes. How Sir Joseph was chosen and the terms of his employment remain undisclosed. His method of gathering information would satisfy few objective observers: he gave in his report a list of 63 witnesses to whom he spoke (p.45) and of these 21 were employees of IPSO, including its chair, 24 were employees of regulated publications, one was a member of the Editors’ Code Committee and another of IPSO’s owners, the RFC. In short, 75 per cent of his witnesses had a strong vested interest in IPSO. Of the remainder, six were journalists or representatives of newspapers and two were representatives of Hacked Off whose only engagement was to explain to Sir Joseph why his review had no legitimacy. The sum total of Sir Joseph’s engagement with the public – the most important stakeholders in the issue of effective press regulation – appears to have been meetings with two peers and one academic. He interviewed no complainants – that is, no one who had used IPSO.In evaluating the Pilling review, history is once again helpful. In 2004 the PCC, concerned to shore up failing credibility, appointed a ‘Charter Commissioner’ (coincidentally, also a former Permanent Secretary in the Northern Ireland Office), and established a ‘Charter Compliance Panel’. These consistently gave the PCC a clean bill of health right up to 2009, by which time the organisation’s public reputation was in shreds and its failure had caused great damage. Sir Joseph Pilling’s review has similar status: no reliance can be placed upon it.

Conclusion

So far as the structures, institutions and performance of press regulation are concerned, the one essential, impartial and independent view, as provided for by Parliament in 2013 on the basis of the cross-party agreement and the Leveson Report, is that of the Press Recognition Panel. The PRP, by design, speaks and acts exclusively in the public interest. It delivered its first report on the progress of press recognition in October 2016 and, as has been noted above, it called for the immediate commencement of Section 40 in full.Click here for a guide on responding to the consultation.