There has been a considerable volume of coverage in the last week about the so-called ‘Leveson Deal’, some of it quite high pitched, lots of it not entirely accurate. For this reason it might be helpful to try to set out where things actually are in the process of press reform.
Links: A Guide to Press Reform
- The closeness of the Leveson Recognition Criteria to the Royal Charter
- The compromise over the Recognition Commission to accommodate press concerns
- How press coverage of Leveson has consistently failed to reflect public opinion
On Monday 18th March Parliament voted on three aspects of the Leveson ‘package’:
- A motion to approve the Royal Charter
- An ‘entrenchment’ clause, within the Enterprise and Regulatory Reform Act, to prevent government ministers and Privy Councillors from interfering with the Charter
- Two amendments to the Crime and Courts bill, to put into effect the costs and exemplary damages incentives
All three passed on a cross-party basis.
The Charter is very close to Leveson, though does not go further than Leveson. Indeed it is not as strong as Leveson in a number of key places. It establishes a Recognition Panel and a recognition process as Leveson set out in his recommendations. Some newspapers have suggested that this is somehow a ‘victims’ charter’. This is not borne out by the evidence. The Charter is 80-90% Leveson, and the 10-20% that is not in accordance with Leveson comes from compromises in favour of the press (e.g. having a Royal Charter instead of legislation, and strengthening the autonomy of the Code Committee). For a comparison of Leveson and the recognition criteria see this analysis.
This clause, passed in the Enterprise and Regulatory Reform Bill, protects the Royal Charter from interference behind closed doors by Privy Counsellors and Government ministers. Of course Parliament could still pass new laws to dissolve the Chartered body, but it would need to do so publicly, and through the democratic process. But with the entrenchment clause in place there cannot be changes made in secret by Privy Counsellors or ministers. If it is ‘crossing the Rubicon’ it is crossing the Rubicon only to use law to protect press freedom, not the reverse.
This is by far Leveson’s most important incentive because it could apply in court cases brought against publications and therefore could have considerable cost implications. The amendment set out in the Courts & Crimes Bill is close to Leveson, although it does not include qualified one-way cost shifting (an approach to civil litigation funding that prevents a defendant from recovering its costs from an unsuccessful claimant), as first recommended in the Jackson review and subsequently by Leveson (in case arbitration does not work or takes a long time to implement). This may be addressed separately. There is also the question of jurisdiction since the definitions are currently broader than intended by Leveson (though the judge was not entirely clear on this). In our view this needs to be addressed urgently since it might otherwise lead to the penalisation of small online publishers who were never the focus of the Leveson inquiry.
This Leveson recommendation, despite the controversy it has caused, is a much less important incentive. First, because exemplary damages could only be considered where there is a deliberate and outrageous disregard of someone’s rights. They have been used very rarely indeed in the past. Second, because those within a system of regulation have virtual immunity, and most of those publishers outside a system are exempt (eg specialist publications, academic/scientific publications, public bodies or charities, and others).
However, the way in which it has been worded in the government amendment may be open to challenge under the ECHR (as Lord Pannick has advised the press).
Some of the confusion about who is inside and who is outside the system seems to have been caused by a misunderstanding of the purpose role of the Royal Charter as against the role of the costs and damages amendments. It makes sense to draw the jurisdiction of the Royal Charter deliberately broad so as not to exclude those who would like to join a regulatory system (or form one themselves). At the same time the jurisdiction of the amendments ought to be drawn much narrower so that costs and damages incentives do not apply to bloggers, NGOs etc. It is this second jurisdiction that is crucial and, in our view, is currently too wide (though there may be an opportunity to narrow this).
Since Monday there has been considerable media coverage of – and some intense criticism of – the cross party deal. Some of the criticism has been directed at the process and some at the substance. As explained above, some of the criticisms of substance claim that the package goes far beyond Leveson. In the case of the Royal Charter this is not true. In the case of the amendments, exemplary damages does, in our view, go beyond Leveson. Costs only goes beyond Leveson with respect to jurisdiction.
You can see a comparison of Leveson’s recognition criteria with the Royal Charter here
You can see how the Royal Charter approach is a compromise that accommodates the press’ concerns over Leveson here
You can see public polls about support for independent regulation and for Leveson’s recommendations here