by Atul Hatwal
It’s taken an age. The Tories’ proposals for establishing a press regulator through a royal charter have been mooted for months but were only published earlier this week. After David Cameron’s commitment to swift action in the Commons debate, following the publication of the Leveson report last November, they had been expected at the start of January. But weeks passed and nothing emerged. Why the delay? What took so long?
Uncut can exclusively reveal that the Conservatives were in fact ready to publish proposals several weeks ago. A team operating under cabinet office minister Oliver Letwin prepared a draft setting out how the royal charter would operate, in December. This draft was personally authorised by Letwin and cleared at the highest levels in Number 10. It represented the Conservatives’ view of what was needed to establish an effective regulator without statute.
But even this proved to be too much for the press barons and under private pressure from the industry, the Tories have further watered down their proposals. The result has left the cross-party negotiations on Leveson in chaos.
Two changes have been made to the Tories original proposal, weakening regulation beyond the levels even David Cameron and Oliver Letwin felt necessary.
In the December draft of the proposals, seen by Uncut, Letwin’s team enshrined the independence of the recognition body that underpins the press regulator, to protect it from interference by government.
The body could only have its terms of reference altered if backed by a two-thirds “super-majority” in the House of Commons and it could only be dissolved by an act of parliament. A whole section of the draft document was devoted to this topic:
The Recognition Panel
(1) (An amendment of the Recognition Panel’s Charter has no effect until each House of Parliament has by resolution by the required majority directed that the amendment is to have effect.
(2) The Recognition Panel may not be dissolved otherwise than by way of Act of Parliament.
(3) The reference to an amendment of the Recognition Panel’s Charter is a reference to —
(a) the addition of a provision to the Charter,
(b) the variation of a provision in the Charter, or
(c) the omission of the whole or part of a provision from the Charter.
(4) A resolution under this section is to be regarded as being by the required majority if at least two-thirds of the members of the House in question who vote on the motion for the resolution do so in support of it.
(5) A motion for a resolution under this section may be made by any member of the House in question.
(6) “The Recognition Panel’s Charter” means the Royal Charter dated [ ] 2013 under which the Recognition Panel was incorporated.
Sources within the newspaper industry have suggested that publishers were panicked about safeguarding the remit of the recognition body in this way because it effectively removed their ability to pressure future governments to amend the terms of reference.
The feedback to the Tories from the press camp was robust and unequivocal: preserving the independence of the recognition panel with these protections was unacceptable.
In the draft published by the Tories last Monday, this entire section of the proposal had been deleted.
Second, and potentially most importantly, the requirement for newspapers to abide by the press regulator’s code of standards in the way they gather information, has been removed.
This is particularly relevant given the whole Leveson process was started by the widespread use of phone hacking to generate stories.
Originally, the Tories’ draft proposals stated that any newspaper which accepted the remit of the regulator, but had not implemented the regulator’s code of standards internally, could be subject to exemplary damages in a court action. The key passage stated:
“the courts must take account of the following…material is not obtained by or on behalf of the defendant in an inappropriate way (having regard to any code of standards to which the defendant was subject as a result of being a member of an approved regulator)”
The critical element in the December draft was the direction to the courts to look at whether the regulator’s code of standards was in place when assessing if a newspaper had gathered its information in an appropriate way.
Unsurprisingly, the press barons were having none of this. When the new proposals were released on Monday, any reference to the regulator’s code of standards in this section had been scrapped.
The threat of exemplary damages is the sole means of enforcing the will of the new regulator. Unless the regulator’s codes of conduct are backed up by the potential for these exemplary damages, they are just words. Words that will be as effective as the old Press Complaints Council’s codes of conduct that were blithely ignored by the press.
The changes made by the Tories to their own proposal tell us three points about their approach to denouement of the Leveson saga.
First, they are absolutely committed to doing whatever it takes to keep the press barons onside.
The December draft was considerably weaker than Lord Leveson’s recommendations. Despite the representations made by victims’ groups, none of their views have been incorporated and the way in which the provisions were further watered down mean the Tories have effectively given the newspaper publishers a clause by clause veto on their proposals.
Second, cross-party talks on Leveson will break up without resolution in the next two weeks. The Tories’ commitment to the newspaper publishers means a realistic negotiation is not possible with Labour and the Lib Dems.
At the end of the month the crime and courts bill and the defamation bill return to the House of Commons. The quickest route to establishing a regulator through legislation, rather than a charter, would be via these bills.
The Lords amendments to the defamation bill, which had been opposed by the Tories, already go a long way to legislating for a new regulatory process in line with Lord Leveson’s vision. When these bills return to the Commons, decisions on how Leveson is to be implemented (or not) will have to be made. This is the effective guillotine on cross-party talks.
Third, no-one in government is managing the overall Leveson process. The royal charter proposals released on Monday now widely contradict an earlier draft bill published by Maria Miller’s department for culture. media and sport in January.
The only difference between the two was meant to be whether the Tories’ proposed regulatory regime was established through a bill or a royal charter. But since the DCMS draft bill was published, the press have secured further concessions on the remit of the regulator such as dumping the need to stick by the regulator’s code of conduct in how stories are sourced. This is part of the draft DCMS bill, as it was part of the December draft on the royal charter.
As a result, the Tories have two sets of proposals on the same topic, simultaneously out for consultation, which cut across each other. Which takes precedence? Who knows?
With minimal co-ordination between Letwin’s cabinet office team and Maria Miller’s officials in DCMS, this is administrative and legislative incompetence of the highest order.
Anyone who had hoped that the comparative political silence over Leveson meant a consensus was being built will be disappointed. This issue is now headed for a showdown on the floor of the Commons.
The question is, when it reaches the House, will David Cameron have the votes to impose his will? We’ll know in a few weeks.
Atul Hatwal is editor at Uncut