Hacked Off has submitted a detailed response to the request, made by the Department for Culture, Media and Sport on the Privy Council website, for comments on the petition for a Royal Charter by the Press Standards Board of Finance (PressBoF).It demonstrates that the PressBoF petition failed to meet any of the advertised criteria for a Royal Charter, that it failed to include essential supporting information and that the simplest formalities of process were ignored. Worse, the system of regulation it proposes would actively undermine the public interest. Processing such an application, says Hacked Off, is a waste of the time of public servants.The submission concludes, referring to the Leveson Inquiry:‘The aim of the petition is no more and no less than to subvert, delay or wreck a draft Royal Charter closely founded on the recommendations of that inquiry – a draft Charter, moreover, that has been solemnly approved by every single party in Parliament and by many victims of the press abuses it seeks to prevent. In the interests of democracy, free speech and the protection of the public, the PressBoF petition for a Royal Charter should be swiftly and firmly rejected.’Here is the submission in full:About Hacked OffHacked Off was founded in the spring of 2011 to campaign for a public inquiry into the phone hacking scandal and the crisis of standards in the press. When, in July of that year, the Government commissioned an inquiry, we advised on the remit. As the inquiry unfolded we gave evidence, we supported and encouraged victims of press abuses who gave evidence, and we reported on the proceedings on our website in a fuller and more balanced manner than most of the press. Since the conclusion of the inquiry we have campaigned for the implementation of its recommendations, particularly in relation to press regulation, and we have sought to challenge the misrepresentations of those recommendations and of the inquiry itself that have been propagated by some national newspapers. We continue to have the support in our work of many of the most prominent victims of press abuses, and more than 150,000 members of the public have signed our petition calling for the implementation of the Leveson recommendations.We comment on the PressBoF petition in three ways. First, and briefly, we discuss its context. Second, we test the petition against the criteria for acceptance laid down by the Privy Council. Third, we examine the implications for the public interest of this draft Royal Charter. A short conclusion follows.Part 1: The contextThe background to this petition leaves no doubt that it has not been made for the reasons that normally prompt such applications. The Press Standards Board of Finance is not a professional institution or collection of individuals that is seeking the recognition or the prestige that accompanies a Royal Charter. Its petition forms part of a political campaign by a group of companies seeking to protect their influence and commercial interests and to avoid accountability to the public. They do this at a time when a public inquiry has found against them, when the public is demanding change and when every party in Parliament has approved a different course.On 18 March 2013, at the culmination of 20 months of fair and careful public scrutiny and discussion of the issues, the House of Commons gave its approval to a draft Royal Charter on press conduct agreed in the first instance by the three largest parties in cross-party talks and then supported by all other parties. The draft closely followed the recommendations on press regulation of the public inquiry into the culture, ethics and practices of the press carried out by Lord Justice Leveson at the behest of the Government. Public opinion polls show that the public, by substantial majorities, wanted those recommendations implemented.At the Leveson Inquiry the views of the press industry were heard at exhaustive length. Moreover, several newspaper groups were fully represented by counsel, who were in a position to ensure that the proceedings were fair. None the less, outside the chamber a group of prominent newspaper companies sought to undermine the inquiry through biased reporting and propaganda. When the report was published they misrepresented the recommendations to their readers, and they have since attempted to discredit the inquiry itself and its supporters. In the cross-party talks that followed the inquiry the press were again invited to make their case, and they enjoyed generous access to ministers and other leading politicians. Some of their views and concerns are reflected in the draft Royal Charter of 18 March, but these companies are not satisfied. They oppose real change, and they continue to resist it by a variety of means even after Parliament has spoken. In the present context, PressBoF is their agent.Seen in context, therefore, the PressBoF petition is not a bona fide application for a Royal Charter but a political manoeuvre designed principally to obstruct or delay the formal progress of the draft Royal Charter approved by Parliament. As will be seen, the PressBoF petition fails to meet the advertised criteria for approval by such a wide margin that it can be considered a waste of the time of public servants and a waste of public resources. We strongly urge the Secretary of State to reject the petition.Part 2: the petition and the criteria

Criterion A: ‘The institution concerned should comprise members of a unique profession, and should have as members most of the eligible field for membership, without significant overlap with other bodies.’‘Members of a unique profession’

The Press Standards Board of Finance appears to define its own membership in two distinct ways, neither of which meets this criterion.The first definition is found in Paragraph 3 of the petition, which states: ‘PressBoF's membership comprises The Newspaper Publishers Association, The Newspaper Society, the Professional Publishers' Association and the Scottish Newspaper Society, making it fully representative of the newspaper and magazine industry.’These are trade bodies or associations of trading companies. They are self-evidently not ‘members of a unique profession’. Only individuals can be members of a profession. Nor, in turn, could the companies that compose the membership of each of these associations be so described (they are companies and not individuals). Nor could the staffs of those companies, because such companies employ people pursuing a variety of professions and crafts – for example, managers, accountants, payroll managers, public relations executives, solicitors, designers and journalists. These cannot collectively be described as members of a unique profession.The second definition is found in PressBoF’s title: it is a ‘board’. This definition is also implied in the first paragraph of the petition, which refers to ‘a unanimous resolution of the members’ on 30 April 2013. We may assume that this was a board meeting and the members in question were members of the board. On this definition there are usually ten PressBoF members, though currently it appears that there are eight. Far from comprising members of a unique profession, the publicly listed individuals do not have a profession in common. Only one might be said to work currently as a journalist, and though others may have backgrounds in journalism those backgrounds are mostly in the distant past. The board members also include two lawyers and a politician. What the board members have in common is that they are or represent employers in the press industry, but ‘employer’ is not a profession, still less a unique one.

‘Most of the eligible field for membership’

If the eligible field for membership is understood in terms of either of the membership definitions given above, then PressBoF comprises the entire eligible field, but, as explained above, those fields do not conform to the Charter criteria.In its petition, however, (paragraph 2) PressBoF asserts that it is ‘fully representative of the newspaper and magazine industry’, and so may be making a claim for a wider eligible field for membership. Such a claim cannot be sustained. The newspaper and magazine industry, by any definition, comprises more than the employers for whom the relevant trade associations claim to speak. The eligible field for membership of that industry must at the very least include administrators, journalists, printers and distributors. Without such people the industry could not exist, yet PressBoF does not include them as members or represent them. Its claim to be ‘fully representative’ of the newspaper and magazine industry is therefore without justification and PressBoF cannot be said to have most of the industry as members. Further, it is noteworthy that not every national newspaper group has supported this petition.

‘Without significant overlap with other bodies’

PressBoF’s claim to be ‘fully representative of the newspaper and magazine industry’ constitutes a significant overlap with the claims of other, longer-established membership organisations, some of them chartered.The National Union of Journalists (NUJ), founded in 1907, states on its website: ‘We speak on behalf of our 34,000 members who work throughout the industry, as freelances, casuals and in staff roles in newspapers, news agencies, magazines, online, book publishing, in public relations and as photographers.’ The overlap is self-evident, and it is relevant that the NUJ (which has made a submission to this consultation) opposes the PressBoF petition.The Chartered Institute of Journalists, which traces its origins to 1884, states as its mission: ‘The Institute combines the role of professional society with that of a trade union – known as the IoJ(TU). The Institute’s union section protects its members’ interests in the workplace and campaigns for better conditions for working journalists.’The Worshipful Company of Stationers and Newspaper Makers (also chartered, and originating in 1403) declares on its website: ‘The Company’s mission is to be recognised as the most effective independent forum in the UK Communications and Content industries, actively contributing to the strategic development, success and education of these industries.’ There are others, but these examples are sufficient to show that if PressBoF claims a membership across the press industry (and as explained above any such claim would itself be unfounded) then such a membership would inevitably have a significant overlap with other bodies, some of them already chartered.On all three counts in Criterion A, therefore, PressBoF fails. It does not comprise members of a unique profession; it does not have as members most of the eligible field for membership and it has significant overlap with other bodies.Although PressBoF does not assert that it speaks for, represents or has a membership of journalists, it may be helpful to note that if any such assertion were made it would be open to challenge on several grounds, including that there is no consensus inside or outside journalism that it is in fact a profession. It has long been contended that it is instead a craft, since it demands skill but no substantial and specific corpus of knowledge. The title of ‘journalist’ may be applied to all of those capable of getting their work published in news media, and it follows that no one may be expelled from journalism. These matters are discussed by the freedom of expression organisation Article 19 here.

Criterion B: ‘Corporate members of the institution should be qualified to at least first degree level in a relevant discipline.’

If PressBoF has supplied details of the educational background of its board members we are unaware of this and so unable to comment.If PressBoF contends that its members are the four trade bodies then just as trade bodies are incapable of being members of a profession so they are incapable of achieving educational qualifications, at any level.If by claiming that it is ‘fully representative of the newspaper and magazine industry’ PressBoF is implying that its membership is, or includes, the employees of the companies that make up the four trade associations, then it needs to show that those people are qualified to at least first degree level in a relevant discipline. To our knowledge no such evidence has been attached to its petition, and we believe that the facts are otherwise.

Criterion C: ‘The institution should be financially sound and able to demonstrate a track record of achievement over a number of years.’‘Financially sound’

The petition states (paragraph 6): ‘PressBoF's financial position is sound as its latest annual report and accounts show.’ This general statement cannot be accepted as proof of financial soundness, particularly since the report of the Leveson Inquiry expressed dissatisfaction at the opaque nature of PressBoF’s funding arrangements, thus:‘The structure of PressBoF is based loosely on the funding body for the Advertising Standards Authority. However, whilst the funding structure underpinning that organisation has been made public, that is not the case with the PCC or PressBoF. As a consequence, there is little public understanding of how the PCC budget is financed. This has been the subject of both criticism and speculation.’ (Leveson Report p 228)Given that a senior judge, after conducting a year-long public inquiry at the behest of the Government, has called into question the funding structure underpinning PressBoF, it must be doubtful whether the organisation can be described as financially sound. At the very least the petitioner’s bland assertion of financial soundness cannot be taken at face value.

‘A track record of achievement over a number of years’

PressBoF states in its petition (paragraph 3): ‘PressBoF has a long and distinguished history of supporting the preservation and maintenance of Press standards and the adjudication of complaints from the public.’This assertion is very far from being accurate. PressBoF’s track record is one of persistent failure that has resulted in harm to thousands of people, and it has combined this failure with an equally persistent refusal to change even when urged to do so by Parliament. It is a record that marks PressBoF as unfit to hold a Royal Charter.According to its chairman, Lord Guy Black, ‘the main aim of PressBoF – which remains true today – was to ensure that sufficient funds were available for the maintenance of the industry’s self regulatory system, and to provide a vital link between the industry and the independent Commission’. (First witness statement to Leveson Inquiry, par 12)Lord Justice Leveson found that PressBoF did not ensure that sufficient funds were available for the self-regulatory system. The judge wrote: ‘In reality, the functional independence of the PCC was restricted by the limited resources which the industry supplied.’ He also wrote: ‘It is also clear to me that the funding made available to the PCC is barely sufficient to enable it to conduct its complaints handling functions effectively. Further, in so limiting the funding available to the PCC, the organisation was unable to exercise other functions that might be properly expected of a regulator, for example, in relation to investigations into industry conduct, and the promotion of standards.’ (P 1521)The verdict of the Leveson Inquiry, therefore, was that PressBoF failed in what its own chairman regarded as its main aim. But the Leveson Report went further, making clear that the real role of PressBoF was not merely to fund the Press Complaints Commission, but to oversee it on behalf of the press industry. PressBoF has enjoyed considerable powers over the PCC besides the important financial ones: it appoints the chair and has overseen the appointment of other commissioners; the PCC’s articles of association may not be altered without PressBoF approval, and PressBoF manages the Editors’ Code Committee, which writes the code of practice which the PCC is supposed to enforce. Having such influence over the PCC over a period of more than two decades, PressBoF was in a position to determine whether the organisation succeeded or failed. It failed, and PressBoF must take responsibility.The PCC’s failure is so well established that evidence is hardly required. It was manifested most shamefully in the Motorman, McCann, phone hacking and Christopher Jefferies scandals, but it had many other manifestations. The Prime Minister, David Cameron, said on 8 July 2011: ‘Let’s be honest, the Press Complaints Commission has failed.’ That failure is comprehensively analysed in Section J, Chapter 8 of the Leveson Report.Not only must PressBoF take responsibility for this failure, but it must also be held responsible for a persistent refusal to heed warnings that the PCC system was not working. The judge wrote: ‘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.’ (p 1579) And he described a consistent response to these criticisms in which ‘a show of reform has been used as a substitute for the reality of it’. (p 1535) He went on to write: ‘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.’ (p1579)This lack of appetite for adequate regulation persists. During the course of the inquiry PressBoF put forward a proposal for reform that the judge and the prime minister both dismissed as falling far short of what was required. The draft Royal Charter contained in PressBoF’s current petition would deliver a system little different from that rejected model. It is clear that PressBoF still has no appetite for adequate regulation and that it still favours the show of reform over the reality.In summary, PressBoF cannot claim a track record of achievement: its record over nearly 23 years is one of failure. It thus fails to meet Criterion C on both counts.

Criterion D: ‘incorporation by Charter is a form of Government regulation as future amendments to the Charter and by-laws of the body require Privy Council (i.e. Government) approval. There therefore needs to be a convincing case that it would be in the public interest to regulate the body in this way.’

The principle that the public interest is best served by a system of press regulation that is independent of Government needs no elaboration or explanation. It follows that any Royal Charter creating a framework for press regulation should not be open in the normal way to Government intervention as implied in this criterion. The PressBoF draft Royal Charter is deficient in this respect – it contains no effective protective measures, nor are any external protections involved – and is therefore unable to serve the public interest adequately. The petition thus fails to meet this criterion.A fuller analysis of the ways in which the PressBoF draft Royal Charter fails to serve the public interest, in contrast to the draft Royal Charter approved by all parties in Parliament on March 18, is given in Part 3.

Criterion E: ‘The institution is normally expected to be of substantial size (5,000 members or more).’

This returns us to the membership issues raised under criterion A. If it is a board, as its name implies, PressBoF has at most ten members. If it is an association it has four members, all of them trade bodies. If it were to claim as members each constituent organisation of those trade bodies the number might reach three figures but they would be companies and not individuals. The combined workforces of all of those constituent organisations would certainly exceed 5,000 individuals, but it is not possible for PressBoF, which has no relationship whatsoever with the overwhelming majority of those people, to claim them as members. PressBoF fails to meet criterion E.

Further procedural requirements relating to Royal Charter petitions

The Privy Council website sates that the Privy Council office ‘should be approached informally’ before a petition is made. In this context it states that a memorandum is ‘required’ covering nine points of information. So far as we are aware, no such approach was made nor was the required memorandum submitted.The website also states: ‘At this stage if the draft Charter and by-laws are available they should be emailed to PCOsecretariat@pco.x.gsi.gov.uk along with the memorandum.’ As is clear from this blog post and this article, PressBoF has been discussing by-laws and articles of association for months, yet so far as we are aware no relevant draft documents were submitted to the Privy Council.The website states that in the absence of the relevant documentation, any petition that is made must contain sufficient information to enable the Privy Council to make a recommendation, and ‘this information should always include’, among other items:– details of past achievements and extent and character of present activities;– size and composition of, and existing qualifications or requirements for, membership;– financial position; and– generally the grounds on which it is submitted that the grant of a Charter is desirable and justified.No such information is contained in the PressBoF petition.Further, the PressBoF Royal Charter does not contain provisions making clear that the remit of the body it seeks to establish would extend to Scotland, even though the Scottish Executive and Scottish Parliament have stated that that is their wish.It is clear from this that PressBoF has failed to conform to the basic formalities of petitioning, and has not, in the words of the Privy Council, provided ‘sufficient information to enable the Privy Council to made a recommendation’.Part 3: The petition and the public interestThe PressBoF draft Royal Charter conflicts with the public interest. In general terms we take the public interest to be reflected accurately in the recommendations and findings of the Leveson Inquiry, and in the draft Royal Charter approved by all parties in Parliament. Lord Justice Leveson took the view that a self-regulator that was effective and independent would best serve the public interest. In the PressBoF draft Royal Charter:1. Arbitration is optionalThere is no requirement for an arbitration scheme giving members the public who argue that their rights have been breached relatively cheap access to justice. This was one of the central recommendations of the Leveson Inquiry (Schedule 3, Para 22)2. PressBoF is given a great deal of powerThis undermines the independence of the system, its ability to deliver an impartial service to the public and its credibility in the eyes of the public. It also conflicts with the Leveson recommendations.

• The Charter is granted to PressBoF: (Petition and Preamble and Art 1)
• Members of PressBoF make up the initial Recognition Panel (Art1.2)
• PressBoF/Industry Funding Body (and trade bodies) have a veto on amendments to Charter (Art 9.2)
• PressBoF/Industry Funding Body (and trade bodies) have a veto on dissolving the Charter (Art 10.2)
• PressBoF can fund the Recognition Panel on a year to year, rather than a long-term basis: (Art 11)

3. The regulator cannot insist on prominent correctionsThe regulator has no power to direct the placing of corrections and apologies. Like the current PCC it will have to negotiate with news publishers what sort of remedial action is suitable. This gives editors freedom to bury corrections in little-read parts of their newspapers, so denying the public appropriate redress. (Schedule 3, paras15 & 16)4. Editors control the code of practiceThe code is the key document of the regulatory system and all complaints are judged against it. The PressBoF draft Charter requires only one or two lay people on the committee that writes the code, while the others would all be editors. This excludes working journalists and excludes any role for the public, which the Leveson Report said was vital. Editors are left in a position where they can write a code that puts their interests before those of the public. (Schedule 3, Para 7)5. There is no guarantee investigations will be funded or effectiveInvestigations undertaken by the self-regulator are not required to be ‘simple and credible’, as proposed by Lord Justice Leveson, and there is no requirement for a ring-fenced investigations fund. Nor is the recognition panel free to use its judgment to assess the effectiveness of investigations. This calls in question the willingness of PressBoF to see a self-regulator capable of finding facts when things go wrong, establishing responsibilities and learning lessons so that the public is protected. (Schedule 3, paras 18 & deletion of 19A)6. Appointments to the Recognition Panel are not independent of the industry

• The Commissioner for Public Appointments (CPA) no longer has control of process of appointments to the panel (deletions in Schedule 1, Para 2.1 and Para 4.2).
• The Chair appoints the other members instead of this being done by the CPA (Schedule 1, Para 2.2).
• One member of the appointments committee has to be agreed with the PressBoF/Industry Funding Body and will be a ‘representative of the press’ (Schedule 1, Para 2.3).
• Members of the recognition panel serve only two years not five – considerably increasing turnover and ability to influence appointments (Schedule 1, Para 5.2)
• Former editors can be appointed to the recognition panel (Schedule1, Para 3.3 (a))

7. Politicians are allowed to hold positions of influence

• Any and all politicians (including serving MPs) can play a role on the staff of the Recognition Panel, including as director (see Article 7.3).
• There is no bar on party political peers and MEPs being members of the Appointments Committee and the Board of the Recognition Panel (see Schedule1, paras 2.4 & 3.3)
• There is no bar on party political peers, MEPs and elected members of the devolved parliaments or assemblies being members of the Board of the Regulator (see Schedule 3, Para 5)

8. The Recognition Panel has no room to use its judgement on the public’s behalfThe Recognition Panel cannot use its judgment when determining whether a regulator is independent and effective. It is limited to a tick-box approach, relying on the recognition criteria (Schedule 2:, para1)9. A whistleblowing hotline is not a definite recognition requirementAlthough the final draft now purports to include a ‘requirement’ (Schedule 3 Para 8A) to have a whistleblowing hotline for journalists wishing to report unethical conduct, this is deceptive. While Schedule 2 para1 says that the recognition criteria in Schedule 3 must be met, this is qualified by the explicit rejection of this requirement, and other Leveson recommendations, as recognition criteria in Schedule 2, Para 4.10. Restrictions are placed on complaints It will be very difficult indeed for representative groups to complain (Schedule 3, para11(b)). A representative group complaint has to relate to a ‘significant’ code breach, there has to be ‘substantial’ public interest, and it has to qualify for ‘formal’ consideration. This is a higher hurdle even than in the unsatisfactory PCC and it is a further grave restriction on the public’s ability to gain redress.11. The chair of the self-regulator lacks independence Under the PressBoF draft, the chair of the self-regulator could be

• a serving editor as per Schedule 3 Para 5(d),
• a serving MP (or any politician) as per Schedule 3 Para 5(e) or
• someone who cannot in the view of the recognition panel act fairly and impartially.

12. Eligible publishers may be excluded from participation The self-regulator will be able to exclude some eligible news publishers because it is not required to provide differential membership terms based on different characteristics of the publishers.ConclusionThe PressBoF petition is so far from what is required to secure a Royal Charter for a professional body that it must be viewed as an act of mischief and a waste of the time of public servants. Not one of the advertised criteria is met or even nearly met, nor has necessary supporting information been supplied. Formalities of process have also been ignored.Worse, the regulatory structure it seeks to introduce is clearly designed to protect the interests of a small group of companies that have been found guilty by a properly constituted official public inquiry of ‘wreaking havoc in the lives of innocent people’. The aim of the petition is no more and no less than to subvert, delay or wreck a draft Royal Charter closely founded on the recommendations of that inquiry – a draft Charter, moreover, that has been solemnly approved by every single party in Parliament and by many victims of the press abuses it seeks to prevent. In the interests of democracy, free speech and the protection of the public, the PressBoF petition for a Royal Charter should be swiftly and firmly rejected.