The “sword of Damocles” which hangs over our free press can and will be got rid of without harming anyone. So maintains Damian Collins, chairman of the Culture, Media and Sport select committee, in this interview.
The Leveson Inquiry has left the press feeling outraged and threatened by Section 40 of the Crime and Courts Act 2013. If and when that section is implemented, it will leave newspapers which refuse to sign up to a Leveson-compliant system of press regulation liable to pay the costs even of those complainants whose cases are dismissed as groundless.
But in order to be Leveson-compliant, it is necessary for a regulator to be certified under a system set up under Royal Charter, which can itself be modified by a two-thirds vote in Parliament, opening the way to state interference in the press.
Only one, small regulator called IMPRESS, set up with the backing of Max Mosley, has received such certification. IPSO – the Independent Press Standards Organisation set up by the mainstream press – will have nothing to do with the Royal Charter system.
So the Government seemed to be faced by an unenviable choice: implement Section 40, which would enrage the press, or refuse to implement it, which would enrage Hacked Off, a group representing people abused by the press.
It postponed this decision by launching a consultation, which finished a few days ago. Collins here outlines how he thinks the Government will ensure justice for complainants while also scrapping the Royal Charter scheme.
ConHome: “Do you yourself want the Government to repeal Section 40?”
Collins: “I think that’s a good question, because my position at the moment is that I think a decision to repeal Section 40 should be taken in conjunction with there being satisfaction that IPSO has reached a level where it’s Leveson-compliant.
“And then I think you can draw a line under the system that was put in place before, the system of Royal Charter regulation and Section 40 then being the kind of mechanism to try and effectively bully the press into signing up.
“As I said in my Telegraph article, I don’t believe that’s the right approach to take. What I believe as well is that IPSO should get to the level where it is broadly compliant with the principles of what Sir Brian Leveson set out in his report.
“And I think Sir Joseph Pilling’s review, which IPSO commissioned itself, was an attempt to get some sort of external assessment of how well IPSO’s doing so far in reaching those agreements.
“In particular, I think the big missing piece of the jigsaw is the whole area of low-cost arbitration and mediation of complaints made by the public to IPSO, and there is a pilot scheme they have up and running already on that which is due to conclude this summer.
“And I would hope that from that there would then be a generally available low-cost arbitration scheme run by IPSO for the public. And I think that once that’s in place, that goes a long way towards satisfying us that IPSO is Leveson-compliant.”
ConHome: “So at that point would you repeal? Or would you keep Section 40 in case the arbitration system declined in effectiveness?”
Collins: “I wouldn’t keep it there as a kind of sword of Damocles hanging over the press. I think there should be an agreement to say what was envisaged three or four years ago has not worked, because the system that was proposed by the last Government and the Royal Charter is not seen as credible in the eyes of the press.
“So we’re going to do something different, which is a different form of self-regulation than was envisaged when the Royal Charter was approved by Parliament.
“Which is genuine self-regulation by IPSO. What I’d like to see is later this year we reach a level where IPSO’s got the arbitration scheme in place, it’s seen as being Leveson-compliant, and alongside that, Section 40 is repealed.”
ConHome: “And do you think there’s a majority for that in both Houses of Parliament?”
Collins: “Well I don’t know about the Lords. The Commons has respected the consultation the Government has set out. The attempts by the Lords to bring in Section 40 or introduce Leveson Two through Lords amendments have been rejected by the Commons, reasonably clearly.
“But obviously this process is still on-going. The most important thing I think, listening to what colleagues said in those debates, is this whole area round redress, particularly for members of the public
“So if you’re an ordinary member of the public who cannot afford to take the risk of hundreds of thousands of pounds of legal costs for taking a newspaper to court because you feel you’ve been wronged, what is the reasonable method of redress that you have?
“The low-cost arbitration scheme is absolutely core to that. If you’re someone like Chris Jefferies – he was awarded legal costs I think [he was] – if you’re someone like that, who has never sought to be in the public eye, who all of a sudden finds yourself a victim of press intrusion and misreporting, what’s your mechanism for redress that’s reasonable and fair?
“In the debates we’ve had in Parliament so far, that is the issue people keep returning to. Is there independence in the way IPSO as a body, or other bodies, can interpret the rules, and give rulings against papers where they see appropriate?
“Is it accessible to the public? I think probably also the prominence of printing of apologies. These are the sort of issues, which I think are mechanical issues if you like, about the process of delivering justice, and I think if people are convinced that is in place, then I think people will feel much more comfortable about that approach.
“Leveson’s challenge was that the system of self-regulation of the press had to be credible to the press and credible to the public. And clearly the Royal Charter system is not credible to the press.
“So the press must go a different way. But what the press then has to do is work hard to make IPSO credible in the eyes of the public.
“The Advertising Standards Authority could be quite a good model. A self-regulatory body which is open to the public to make complaints, there’s easy mediation of complaints at an early stage.”
ConHome: “And is that what the Government is working towards, as far as you can tell?”
Collins: “Well the Government has only just finished its consultation, so we’ll have to wait and see what the result of the consultation is. The Secretary of State has said that everything is on the table, and obviously the options in the consultation include introducing Section 40; not introducing but not repealing; repealing; or introducing part of Section 40 but not all of it.
“They really have put everything on the table, and I don’t think the Government will be drawn on which route it will go down until it’s reviewed the responses to the consultation, of which I believe there are a lot.
“And then you have the added complication of legal challenges to the recognition of IMPRESS. So again it would be difficult to introduce Section Forty provisions if we are in a position where there wasn’t a recognised regulatory body for the press, because then it would be seen to coerce the press to sign up to a system of regulation which is not accessible because there’s no one to deliver it.”
ConHome: “The press has of course the utmost scorn for IMPRESS, which they just think is Max Mosley and Hugh Grant and a few other people.”
Collins: “One of the things I think we have to reflect on is if you have a free press that’s basically coerced by Parliament to sign up to a system of regulation it doesn’t believe in, exercised by a body it doesn’t want to join – that can’t be regarded as freedom of the press.”
ConHome: “The people who dreamed up the Royal Charter – I have the impression that people like Oliver Letwin would be happy with this kind of compromise.”
Collins: “Yes, Oliver in the FT, Monday of last week, he highlights the need for IPSO to have a robust system of arbitration.”
ConHome: “On the Tory benches, do you think people would be happy with this? Some MPs do hate the press, though others are great defenders of a free press.”
Collins: “I think what people are concerned about is that if Section 40 was introduced, there would be potentially great financial pressure placed on newspapers because of costs being awarded against them even in cases where they had won those cases.
“Even at the moment, that would present a substantial risk, particularly to local smaller news organisations.
“I’ve been quite heavily involved in issues around sports corruption, and my concern would be if newspapers were operating in a world where the Section 40 measure was introduced, would it be a lot harder to get a lot of those stories in print?
“It’s already a lot harder than people think. Very wealthy, litigious people act to close down investigations where they can.
“I’ve seen plenty of very big stories where actually newspapers, news reporters and documentary makers have often provided the only safe haven for whistle-blowers.
“We’ve seen that with the recent evidence the committee’s taken on doping in athletics, that it was the Russian athletes who wanted to share their story, who tried to get it investigated within their sport, were frustrated and believed that nothing was being done about it, so went to investigative journalists as the only way in which their story could be told.”
ConHome: “A free press is an absolutely essential part of holding people to account.”
Collins: “And there has to be a concern as well that if this was introduced, you’d have the equivalent of those people who phone you up about PIP, saying ‘Have you been offended by something in your local newspaper – you have the right to take action – we will do that for you at no cost.’ These lawyers if they knew they’d get paid even if they lost, case law would soon start to determine the cases where the judges would award costs against the newspapers even when they’ve won. There’s no other area of the law where you can have costs awarded against you even if you’ve won.”
ConHome: “And for the arbitration thing, there’ll be a small fee, to discourage vexatious people?”
Collins: “IPSO have got a fee of £3,000. One of the points Joseph Pilling raised in his review of IPSO is ‘Is this too high?’ There is a fee which is much, much lower than the cost of going to court.”
ConHome: “Do you envisage the social media platforms on which fake news is published being drawn in to this arbitration scheme? It’s the big new thing: fake news and lies being spread with amazing rapidity and absolutely no comeback.”
Collins: “At the moment the committee are actively considering launching an inquiry on fake news.”
Collins pointed out that companies like Google now acknowledge their responsibility for discouraging the distribution of pirate copies of music and film: “I think that responsibility should apply with fake news as well.
“Is there a way of attributing the source to news stories and whether they come from reputable news organisations or not?”
ConHome: “Would it be fair to say that you are cautiously optimistic that the press is going to develop a Leveson-compliant system of low-cost arbitration, and that Section 40 can then be repealed?”
Collins: “Yes. That is the direction that IPSO are taking as far as I can see.”
ConHome: “That would obviously very much suit the Government, because the idea of pushing not only the Daily Mail but the Financial Times and the Guardian into the welcoming arms of Max Mosley is politically impossible.”