TUESDAY 25 FEBRUARY 2003

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Members present:

Mr Gerald Kaufman, in the Chair
Mr Chris Bryant
Mr Frank Doran
Mr Adrian Flook
Alan Keen
Miss Julie Kirkbride
Rosemary McKenna
Ms Debra Shipley
John Thurso
Derek Wyatt

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Memoranda submitted by Professor Eric Barendt and Mr Michael Tugendhat QC

Examination of Witnesses

PROFESSOR ERIC BARENDT, Media Law, University College London and MR MICHAEL TUGENDHAT QC, examined.

Chairman: Professor Barendt and Mr Tugendhat, thank you very much for making yourselves available for this first public session of this inquiry. I have already clarified to my colleagues on the Committee the framework of the way in which we have to proceed. I would just add, I should have mentioned it to my colleagues earlier, because of the great pressure on time I shall have to ration the period of questioning for each member of the Committee fairly stringently. We will get going right away and I call on Derek Wyatt to ask the first question. Could I just make the point that we moved into this room from the main building because the acoustics for us are pretty good. On the other hand, my understanding is that people sitting behind you can find some difficulty in hearing witnesses so it would be helpful if you spoke rather more loudly than you normally do.

Derek Wyatt

Good afternoon. Which is more important, freedom of speech or an individual's right to privacy?

(Professor Barendt) Shall I go first on that, Mr Chairman? These are both absolutely crucial and fundamental freedoms. Both are guaranteed in many constitutions and under the European Convention on Human Rights but like many fundamental rights they may conflict and I think it is very difficult to say irrespective of particular circumstances where they do conflict that one freedom is more important than the other. In some cases where, for example, a story about a public figure, although it implicates his or her privacy, is of major public interest then of course the right to freedom of expression should be treated as paramount. But there are many other cases when a story in the press or a broadcasting item says things or reports things about a person, whether a person in public life or a private person, which are of no objective public interest and in those cases it seems to me that the rights to privacy should prevail. The interesting question is how should this conflict be resolved, but I imagine that is something you might want to ask further questions about.

How would you place the Matthew Kelly story then in those two extremes?

(Professor Barendt) Well, that is of course not a typical privacy case. Although it does involve privacy to some extent it is a case about the freedom of the media to report that a person in the public eye is suspected of or there are allegations of sex abuse and yet there are his own interests not to have his standing and privacy infringed in an excessive way. The law is of course that the media are free to publish details of a person who is under investigation or against whom allegations are made and that may be right. It is interesting of course that the law now takes a very different view if the person about whom the allegations are made is a child and that raises very difficult questions as to whether the law is right to take such a radically different view over child suspects on the one hand and adults on the other. I think the Matthew Kelly case is a very difficult one. There are a lot of difficult cases in this area.

Chairman

Could I just intervene before we proceed. Mr Tugendhat has in fact, I think, been about to pre-empt what I was going to say, namely that I would be very happy if either or both of our witnesses felt free to answer any question which is put.

(Mr Tugendhat) I certainly agree with everything that Professor Barendt has just said but I would like to add that it is not to be assumed that privacy and freedom of expression necessarily always conflict. In fact in many circumstances it is impossible to have freedom of expression without privacy. The most obvious examples of that, of course, are when people give information to newspapers and need to protect their identities. When people have unpopular political or religious views they can only express them in private and there are many, many other examples. It is, I think, a mistake to assume that they are in conflict.

Derek Wyatt

You have both drawn on the European Human Rights and making that part of the UK law. Could you explain to me what France and Germany therefore do, as they have a privacy law. Have they opted out of part of the European Human Rights? Could you explain what that is then and how that does not conflict with Human Rights?

(Mr Tugendhat) It does not at all because they both in their different ways have legal implementation of both rights and how they resolve particular cases where there is a conflict is to some extent a reflection of their culture and attitudes to life. So I do not think that if we had the same law as the French do, which effectively incorporates Article 8, I do not think the English courts would apply it in exactly the same way for cultural reasons but the margin of appreciation (as it is called) is not very wide and so far as Germany, Spain and other Convention countries are concerned, as I understand it they all have legal implementation of both Articles and they all have courts which have to decide each case on its particular facts.

Chairman

Following on from what Mr Wyatt has been putting to you, could I just ask you about the anomalous situation, certainly in the United States where some states do have privacy laws, of the general assumption in the United States that a public figure has less right to privacy than a private figure and therefore it is much more difficult for a public figure to win a libel action. Is there not a problem here, namely that a public figure may be a public figure for one purpose but then it is assumed that his openness to intrusion should be general? For example, if you take a footballer, a famous footballer maybe, he is a footballer, he is famous as a footballer. It is then assumed and has been assumed in the courts recently that he therefore must assume the role of being a role model as well although he may not wish to be a role model, he may just wish to play football and possibly getting very great rewards from it. To what extent would you say that that criterion in the United States is one that is viable there and ought to be viable here or not?

(Professor Barendt) It is the case, Chairman, that in the United States following a series of libel decisions in the 1960s the courts have drawn a sharp line between the position on the one hand of public officials and public figures and on the other the position of private individuals and that development, which first occurred in the context of libel cases, has been applied to privacy both by federal and by state courts. My view, and it is the view of some commentators in the United States, is that that sharp line is to some extent wrong, that even public figures and even politicians have a right to have their privacy respected and I think there are good arguments for that. Many people may not choose to go into public life or may be hounded out of political and public life because they have been the victims of or fear they may be the targets of excessive media intrusion. That is an argument which I think should be taken seriously by all people, whether Members of Parliament or anyone concerned with standards of public life and the preparedness of people to go into public life or remain in public life and the distinction drawn by the American courts in my view is unfortunate because it means that public figures, particularly politicians, in effect surrender their privacy rights as well as to some extent their rights to claim damages for libel.

What about the families of such people? A Member of Parliament volunteers to be a Member of Parliament, indeed volunteers is an understatement; not one of us is a Member of Parliament other than because we have made very great efforts to get here. But what about the son or daughter of a Member of Parliament who has not chosen that her or his parent should be an MP and yet if something happens to them it may well be that they will get publicity which the boy or girl next door doing the same thing would not get simply because their parent is - I choose an MP but I am not choosing that because we wish to be considered in some special protected category. Ought not a child, who has got no say over whether his parent is a public figure, to get some kind of protection when he is involved in some incident which would not get that kind of publicity if it was not "MP's son" or "Showbiz son", or whatever, that was the headline?

(Professor Barendt) I think the position is that if a story is written about a relative, particularly a child of someone who holds public office or is in public life, and that is a story about the child or relative then that person is not categorised, him or herself, as a public figure and is entitled to bring a privacy action and indeed that is the prospective of the Press Complaints Commission when applying the PCC code. I refer the Committee to clause 6 in this context. But of course it is the case that children and other relatives, particularly spouses, will be caught up by media stories intruding on a public figure's life and will themselves be indirectly therefore the victims of that story and in many cases may suffer considerable emotional damage and distress.

But what ought Parliament to do about this, because that in the end is what we are looking into. Ought Parliament to do anything about it or simply say, "Oh, well, that's too bad. It goes with the territory"? Take another example before I hand over to Mr Doran, a trade union leader involved in a controversial industrial dispute. Fair game in terms of the industrial dispute. The press probes into his private life. "Mr X, love rat." Is it tolerable in any kind of civilised community that somebody, however controversial he or she may be in their public activities, should then be vulnerable to gross intrusion on their private activities which have got nothing whatever to do with the reason why they are public figures?

(Professor Barendt) I can give a very short answer to that question, Chairman. The answer is that it is not tolerable and the argument which the media, particularly the tabloid press, make that everything is relevant to how a public figure or official conducts his office and that therefore this gives us a right to know about their current or past private life, particularly sexual affairs, seems to me to be a thoroughly bogus and terrible one.

Mr Doran

Speaking as someone who had previously practised as a solicitor, now as a Member of Parliament, I never considered a possible role model until I started reading the case law. It has come as quite a shock to me. You both have opposing views on the need for a privacy law and reading through some of the evidence which has been submitted to us by one of our witnesses who will appear later he tried to summarise from the press point of view how he saw the situation and he said: "The press in this country worms under some of the most stringent and powerful laws of any western democracy. The libel laws, contempt of court, the provisions of the Youth Justice and Criminal Evidence Act, the Children Acts, the Law of Confidence, the body of law restricting the reporting of certain cases in court, the Protection from Harassment Act, the Copyright laws, the Data Protection Act, the Human Rights Act, the Sexual Offences Act, the Representation of the People Act, the Access to Justice Act," and a whole host of others. Regardless of your views on whether or not we should introduce a privacy law, it does seem to be a bit of a morass and if you add on top of that what seems to be a recent change in the courts of previously denying that there was any right to privacy, certainly in England and Wales, and now with the introduction of the Human Rights Act, what seems to be a slow edging in that direction. How do we resolve that? Regardless of whether or not you are in favour of a privacy law, does it not need to be rationalised and cleaned up?

(Mr Tugendhat) Speaking as somebody who is not at the moment advocating legislative intervention, it has actually been cleaned up and is being cleaned up. The position in other countries is not as dissimilar as the passages you have read out might be intended to suggest. English law does not use the word "privacy" very much but there is and always has been massive protection of privacy under English law. What has gone wrong over the last century is that English protection of privacy did not catch up with the means available for reproducing and storing information about private individuals but all the privacy laws in America and on the Continent can be traced back to our own leading case of Prince Albert v. Strange. So I do not accept that there really is that much difference. The difficulty I have with legislation is that legislation does not finally answer questions any more because it has got to be interpreted in accordance with the Human Rights Act, but so has case law and until there is a problem my view is, if it ain't bust don't fix it. At the moment it is not bust. I agree you have a lot of conflicting decisions, for example you have different opinions about role models expressed in the footballer case and in the Naomi Campbell case but you are going to have that if you legislate as well because the legislation can only be in general terms. So I would say that if you give it a little bit of time to settle in, it probably will come right in much the same way as other areas of the law have.

One obviously significantly recent decision is the case in Strasbourg involving Mr Peck, Peck v. United Kingdom, and that is very critical of the protections which are offered to individuals in this country in respect of privacy, particularly the remedies. I would be interested in the views of both of you on whether you see any need for the Government to respond to that decision or is that simply something which should be left to the individuals involved, the PCC or whoever?

(Mr Tugendhat) It depends what the courts do. If the courts respond by developing legal remedies, as it seems to me they are compelled to do by the decision in Peck, then we will be all right. If the courts do not respond then legislation will simply be essential, otherwise we will continue to have humiliating judgments against us in Strasbourg.

How long do we need to wait for that?

(Mr Tugendhat) I would have thought not long because while in my experience there is not a huge number of privacy claimants there are more than there used to be and there is a steady stream of cases. Most of them do not get reported. There is a steady stream of cases and the information I am being given by in-house lawyers of newspaper publishers and broadcasters is that the broadcasters always did respect privacy because they had to, because their licences required it. The press did not but now they do more and more. There are quite simply pictures which are being offered to newspapers that would have been bought and published two years ago which are unsaleable now, so I am told.

(Professor Barendt) Could I, Chairman, offer a different perspective without wanting to disagree with much of what Michael Tugendhat has said. I think there is a case for Parliament legislating partly because one reason the courts give in some cases for not formulating in explicit and clear terms a right to privacy is that this is a bold step which courts should hesitate to take against a long background of there not being such a right and that this is more appropriate for Parliament to decide. This has been said in a number of cases, some of them media cases but others involving telephone tapping, strip searching, and so on. The courts have said: "This is a matter for Parliament. To formulate a right of privacy would be too radical a step for us to take, although we recognise that this is an interest which cries out for protection." That is one reason why I think there is a case for Parliament stepping in. Another reason is, to take up the Peck case, of course it is correct that the courts will, if a case comes before it, fill the gap in English law revealed by the Peck decision. But such a case may not arise for some years even though invasions of privacy on facts similar to that may recur. If you leave it to the judges it depends upon individuals bringing appropriate cases and of course having the appropriate funds to do so. A third point for legislation is this: I think legislation has considerable what you might call declaratory quality. Take, for example, the provisions on incitement to racial hatred. These are important provisions not because there are many prosecutions brought on them, there are very few despite what happened yesterday. The point about such a statute is that it declares that society sets its face against an abuse of freedom of speech. Equally, it seems to me that there is a powerful case for a privacy law so that society through Parliament can say without reservation that privacy is an important fundamental right and that is something which Parliament can more effectively do than any court decision. I think that constitutes a third argument for saying that there is a strong case for formulating a right to privacy. If I could just go on for one moment, I think another important feature of legislation is that this would enable statute to provide defences of public interest, public domain, and to circumscribe the ambit of privacy in ways which would recognise that the press and the media also have powerful interests here.

Ms Shipley

Sex. If it ain't bust don't fix it. The dealings I have had mainly since I have been in Parliament have been to do with child abuse, rape, that sort of nasty sex. I would like to put on record that I think the media have done an absolutely super job in part, particularly to do with child abuse, in putting it on the political agenda and keeping it there and a lot of really important things have been written in the media, including the tabloid press. However, there is a side to it which I would say is extremely dangerous. You have the potential for lynch mobs, that sort of really genuinely dangerous. "If it ain't bust don't fix it," I would suggest to you, does not apply. It is bust in this instance. There is a really clear problem on child abuse, and indeed rape cases. There is a real problem that has to be addressed. Professor, you said it is a difficult area and you did not really address it, you ducked. So I am going to give you a second chance. How do editors really seriously address this? I am going to be really pleased to ask the editors the same question because I think that the good work they can do can be seriously unravelled if we do not get this one right.

(Professor Barendt) I am not quite sure what you think I have ducked.

You outlined the fact that it was difficult without suggesting any way through.

(Professor Barendt) The balance between privacy and free press in a particular case may well be difficult. There are easy cases and there are hard cases. If you take the question about how far the press should be free to publish allegations about someone who is suspected in a local community of being involved in child abuse that may raise very, very difficult questions and I do not think it is always possible to say yes, the press should always be free to publish or they should not be free to publish.

So how should editors make their decisions?

(Professor Barendt) These are difficult decisions for editors -

I think we are all agreed on that but how should they do it?

(Professor Barendt) They should determine what is the public interest in this, how much evidence is there to substantiate these allegations, is it appropriate to go public rather than to give the informant's evidence to public authorities, local authorities, the police and so forth.

So give me an example when information about sex abuse by a man should be in the press before the police have investigated?

(Professor Barendt) There might be a case for such press coverage if the media believe on good grounds that the law enforcement authorities are for one reason or another, particularly if there is any suspicion of collusion between the police and the suspect, are not doing their job. The media do have a valuable essential role as the ultimate watchdog to, if you like, ferret out abuse of power or incompetence, whether that is by a local authority or by the police.

Do you think that is what they have done in Operation Ore(?)?

(Professor Barendt) I do not think I could comment on that particular case.

Operation Ore was interesting because there were so many names which were clearly leaked and then were in the press prior to the people being investigated or taken to court and now subsequently some of the names are allegedly being obfuscated and other powers being brought to bear on the various newspapers, and what have you. In that situation how does your reasoning work, and perhaps you would like to comment too?

(Mr Tugendhat) It is a decision which I have spent a lot of my life advising newspapers on, whether you can publish something or not. It has become more difficult. Child abuse is particularly acute as a difficulty because the damage to the child if the allegation is true and not properly disclosed is catastrophic and correspondingly the damage to the individual if the allegation is ill-founded is also catastrophic and that is why it is very difficult. But ultimately the solution to the problem depends on whether the evidence supports the allegation. If it does then there is no doubt that if you want a free press you will have to put up with them publishing it.

So do you think in the case of Operation Ore, in which a very large number of names were leaked to the press prior to the police actually arresting the person or bringing them to court, that that still has to happen?

(Mr Tugendhat) No, I do not think that leaks from public authorities to the press are inevitable or always justified but what I am saying is that journalists are not private detectives. If they find a story they will publish it and that is, I am afraid, the price of a free press. They will, of course, be conscious of their legal obligation but it is no good saying to a journalist, "All you need do with this story is take it round to the local police station," because that is not, I am afraid, how you can have a free press. What you have got to do is to make sure that if the press get it wrong there are adequate sanctions but the sanctions must not be so great that you have a press that is frightened of publishing even allegations that ought to be published.

Alan Keen

Professor Barendt, you would like legislation. If you do not get it, what changes would you make to the PCC and its operation to try to fill the gaps, what it explores? That is a difficult question.

(Professor Barendt) I have outlined some possible changes in my paper. The PCC overall I think does a fairly good job but there are some significant changes which could be made both, if you like, of a structural or institutional character and then into the Code and its interpretation. Any system of self-regulation has to enjoy the confidence of both the industry which is being regulated, the press itself, on the one hand and that of the public, in particular complainants, on the other. I am not sure that all aspects of the PCC necessarily give me the belief that it does or should enjoy public confidence. For a start, I think the Code committee, that is the legislator in this area, should have some independent non-press representation, although I think it is entirely understandable that it largely consists of press representatives. Secondly, I think it is unfortunate that the Press Complaints Commission never conducts an oral hearing. There are many cases, to judge from the reports of their adjudications, when the Press Complaints Commission just cannot find the facts and therefore cannot reach a satisfactory conclusion. That might be improved if in some cases, like the Broadcasting Standards Commission, there was provision for oral hearings. That of course does have the defect that it might lengthen the course of the proceedings by a few weeks or a couple of months. But the third point I would make of this institutional sort is that the PCC acts entirely on its own. It produces an annual review and it publishes its adjudications but there is no system of scrutiny or appeal from PCC decisions. There is, I think, a strong case for saying that there should be a right of appeal or an opportunity to appeal either to a press ombudsman, as the National Heritage Committee recommended I think ten years ago, or to the Content Board, which will take decisions in this area under the Communications Act when that is on the statute book. Secondly, I think there is a case for the PCC reporting to the public not just through an annual review which is read by those who are interested in such things but by making a statement and taking questions from either OFCOM or through a Parliamentary Committee. With regard to the Code, I do not know whether you would like me to continue?

I am worried about the time. Michael Tugendhat, do you agree with this view?

(Mr Tugendhat) The problem with the PCC is that unlike broadcasting, which is licensed, the press is not and broadcasting licences can be taken away and therefore there is a sanction which is ultimately controlled by Parliament. I am certainly not advocating press licensing but with the press there is no sanction and so while the PCC has done, in my view, a pretty good job over the last few years ultimately it is very limited and either you will have to have interventions by the judges through development of the common law, which is what is happening, or you will have to have legislative intervention if the judges do not do it or you will have to have both.

You seem to be saying that things have improved in the last couple of years. Over a ten year period I get the impression that they got worse before you say they started to get better. Why was that? Was it the market? Was it a difficult market for the press?

(Mr Tugendhat) I am afraid I do not think the answer to that is difficult at all. It is a body which was set up to try and stave off legislation and if you have people self-regulating they are not going to do things they do not have to do. One of the things the PCC has set its face against, for example, is any form of compensation and I am afraid that is quite simply due to the fact that it represents newspaper interests and that is inevitable. So if you want compensation you have to go to the courts.

So it is the market that has overcome the ethical -

(Mr Tugendhat) I think the judges waited because there was a prospect of legislation. The prospect disappeared and the judges started intervening.

Rosemary McKenna

Could I just follow that question up. We have now had self-regulation for ten years and I really want to talk about ordinary people, our constituents. Do you believe that standards have improved over the last ten years?

(Mr Tugendhat) I believe they have. I also believe that on the whole newspapers do not bother ordinary people unless they become newsworthy as a result of choice or accident. When they do become newsworthy as a result of choice or accident the newspapers are often willing to pay for a story, an exclusive, because otherwise they do not get it. If they do pay for it then the newspaper that has paid for the story is generally prepared to fund the defence of the legal rights of the ordinary person. I have been involved in a number of such cases. The most famous one is the conjoined twin, little Jodie as she was called, whose parents were not of substantial means at all but when the exclusive story was sold, as it was after the successful operation, the newspaper groups who had paid very large sums of money indeed for the story stepped in, in order to fund the protection of the child's rights. So it is not just a question of celebrities and non-celebrities and non-celebrities having no means.

But I am not talking about high profile cases like that. I am talking about ordinary people in our constituencies who find themselves on the front page of a newspaper, who have not been paid for it and who do not get what I believe is the proper right of reply. Do you think in those terms the Press Complaints Commission is upholding the Code? I actually think today is quite a good example, the Matthew Kelly case. Matthew Kelly is back on the front page today because he is famous but an ordinary individual who was accused of exactly the same could have been on the front page at his accusation but when all charges against him were dropped that would not have been on the front page, it would have been buried on page 5 or page 6, at the bottom in a tiny little column. That is the point I am making. Do ordinary people get the kind of support that the PCC purported to bring in when it was started ten years ago?

(Mr Tugendhat) You are absolutely right. I agree with you. The problem is though that we have a system of law which is hugely expensive to invoke and the area of legal aid is diminishing and so the rights of ordinary people, I am afraid to say, are often not protected by the law. To that extent the PCC is cheap and quick and may be better than nothing, indeed it is better than nothing.

But it is only better than nothing if all you get is a tiny little apology. Do you not think that by agreeing with that you are arguing that therefore there ought to be some kind of privacy law or at least a strengthening of the Code of the PCC to deal specifically with the ordinary people who do not have recourse to any finance at all?

(Mr Tugendhat) I certainly believe the English privacy law needs strengthening. The only difference between me and Professor Barendt is whether it should be done by the judges or by legislation. But I am afraid given the system of law that we have, which has oral hearings which take a lot of time and require skilled lawyers, it is going to be beyond the means of people if there is no legal aid. If you want something which is accessible to ordinary people, as they have in France, you will have very short hearings, no oral evidence and it is quite cheap.

(Professor Barendt) I do not want to go over ground I have already covered but the sort of cases you are referring to strengthens the case for enabling the Press Complaints Commission to make an award of compensation and also provides a powerful argument, I think, for allowing those complainants who are not satisfied by the PCC disposition of the case or the response of the newspaper to the PCC findings to appeal to some ombudsman or a content board. That might help individual claimants but I think more importantly it might induce or persuade newspapers to take the Press Complaints Commission more seriously.

But even then it is still not going to be reported in the same way that the original report was made and I think to ordinary people that matters more, that their neighbours, their community see this accusation and they really do not see the retraction.

(Professor Barendt) If this happens of course that is in itself really a breach of the spirit of the Press Complaints Commission Code because newspapers are required to publish PCC adjudications with due prominence and if they bury them inside the paper where they are not so conspicuous to ordinary readers then they are breaking the spirit of the Code.

Miss Kirkbride

I wonder if I could ask Mr Tugendhat, he presumably favours that judges should take forward a privacy law in the light of the Peck case and perhaps other things and I wonder what kind of form he would expect this to take in his considerable experience in this area.

(Mr Tugendhat) It is actually happening all the time but it does not get reported very often. Regularly my colleagues and I are contacted, usually on a Friday or a Saturday, about a story that is going to be published and in the past you could do nothing about it because you could not get libel injunctions. Now if you ring up the in-house lawyer of a tabloid and say, "I hear you've got a story about Miss So-and-So going into a clinic," you will get sworn at but they will not publish it.

What is it about the present law that prevents that then?

(Mr Tugendhat) There has been a sufficient number of decisions in recent years which prevent it. The most dramatic one was the decision in the Venables and Thompson case to keep their identities private. The reason for that was because everybody knew that if their identities and whereabouts were not kept private their lives were at risk. So the judges developed an unprecedented injunction against all the world and the newspapers cooperated in it. That is the major decision. There has been a couple of others since which have attracted a lot of attention like Naomi Campbell and the unfortunate footballer who may or may not be a role model. But there is in fact a considerable number of these things happening, I will not say every weekend but very, very regularly. They are not reported, as I say, because the judges do not give formal judgments but you get on the telephone and there is a duty judge and very often the newspaper simply will not publish long before you get on the telephone to the judge.

I am fascinated by what you say but I am still left scratching my head because I read the newspapers every weekend and it seems to me that the level of sort of prurient titillation in them of things about other people which I have no business knowing but which inevitably one reads because it is there and it is in gory detail does not seem to bear out what you are saying. We have still got the trade union man or anybody else, or any of us round this table, who might have a secret lover and that would be it, the front page of the newspaper, thank you very much. Are you telling me that now I just ring you and it will all be all right? Not that I am about to!

(Mr Tugendhat) It is not always going to be all right, of course it is not, but the reason you see what you do see is two-fold. One is that not everybody actually minds their private lives being disclosed. A lot of people exploit their private lives. There is nothing which some people will not sell, that is one thing. The other is the problem I mentioned before, which is that this is a very expensive country in which to get legal advice and representation and so there are plenty of people who cannot afford to do it and that is the reason. But if you can afford to do it and you do want to do it and there is a sufficient case, because that is important too, then you can do it. But very often what the newspapers report is in the public interest.

So what is the nature of the privacy to which we are entitled then? That is a very broad question, I can see, but where you are not a law maker are you entitled to have it? Would you assume that you are entitled to have extramarital affairs which you are entitled to keep quiet or if you are someone in the public eye and you have got a predilection for something which is perfectly legal but very pruriently interesting is that something you are entitled to keep quiet? What is it you are entitled to keep private in this area of the law, which I have to say I am interested in what you say but which I cannot really feel and touch because it is all behind closed doors?

(Mr Tugendhat) Well, it is not as bad as that actually because we do have a privacy law. It is called the Data Protection Act. It is almost unreadable but it is there and if you look in, I think it is section 2 or 6, you will find a list of things which are sensitive - sex, political opinion, past involvement with crime, and things like that. Professor Barendt did a study on this across Europe and he found that these are in fact a list of things which are generally regarded as private and although the press never thought it was going to be subject to all this legislation in fact, as the Campbell judgment has held in the Court of Appeal, the press is subject to the Data Protection Act because they use computers and you can invoke that right. You do have a privacy commissioner. He is not called that, he is called an information commissioner, but under section 58 of the Act he can support people who do not have legal advice and representation. He gave a speech, which I listened to just before Christmas, to a group of people which included newspaper lawyers. He is a newly appointed man and he said, "I am here. I have these rights and duties. I am aware of what the press do. I am willing to take on cases." It is very much a question of things happening which people have not heard of.

(Professor Barendt) But of course recourse to the information commissioner will not stop the story appearing in the press and of course your statement brings up another point and that is that the PCC has never taken on board previous recommendations that they should introduce a hotline procedure under which the chairman or an official of PCC should tell a newspaper, "We don't see there is any justification for this story. We must warn you that if you go ahead and publish this you are likely to attract a complaint which we are likely to uphold."

John Thurso

I would like to follow up a bit on some of the previous questions regarding the PCC. It seems to me that basically what any newspaper company is setting out to do is actually maximise its circulation and make as much money as it possibly can and the fact that it is part of the democratic process is a happy accident rather than a prime purpose! But if one comes back therefore to the operation of the PCC, if a story comes up which is of sufficient excitement that it is clearly going to add hugely to circulation, it is going to be on of those "Freddie Starr ate my hamster" type headlines, then there must be a temptation to say, "Let's print this and to hell with the consequences." So what you come back to with the PCC is really whether the sanctions are sufficiently effective to have any deterrent effect in those kind of situations. Could I explore with you both, please, that particular side of it, the sanctions and whether, for example, it would be wise to envisage the PCC having some ability to sanction in a way which really did make a newspaper company think twice about incurring a cost such as a percentage of the day's sales and a fine or something of that order and ask you, therefore, whether you feel that strengthening and improving sanctions could achieve the objective of giving the PCC sufficient teeth to avoid having to go to law, which I rather agree with you it would be better not to do.

(Professor Barendt) I think again this is another very difficult question because if you grant the PCC power to impose sanctions which have a real bite then the argument of the press that their freedom is being seriously eroded becomes a stronger one. Nevertheless, I think there are some circumstances in which the PCC, if granted power to award damages at all, ought to have the power to award higher damages. I hesitate to contemplate in this area exemplary or punitive damages for what one might call persistent and deliberate infringements of privacy when, if you like, a newspaper harasses through a persistent course of conduct a particular person whom it chooses for reasons of its own, perhaps commercial profit, to make a victim. I am not saying that this is, all things considered, the best course to take but if you were to go down that course then I think you would have to introduce some right of appeal not just of course for the disappointed complainant but also for the press itself. One disadvantage of that course is that you would inevitably lose one of the advantages of the PCC system, which is that it is very quick and expeditious and reaches a result in something like thirty to forty days. Once you contemplate the introduction of awards of compensation which are more than a few hundred pounds then the press, particularly local papers, will want to have a right of appeal and the process becomes longer drawn out.

(Mr Tugendhat) There is no doubt about that. First of all, the PCC would never be an effective body for imposing sanctions because they are appointed by the publishers. Secondly, what matters to people is not compensation, which never is adequate in these cases, it is that the publication should not occur at all. So you need something which is either an injunction or the equivalent of it and as soon as you have that you are straight into the limiting freedom of expression and that is something which cannot be dealt with otherwise than by judges.

Could I put it to you that really you have put your finger on the problem, which is that because it is a self-regulatory system run by the industry itself it is never ever going to have that kind of sanction. But that is the very problem because, as you rightly say, what people are after is for whatever it might be, the untruth or whatever it is, not to be published in the first place. But if it looks juicy and will make a good story then at the moment surely the temptation is to publish and be damned because at the end of the day that is better for business?

(Mr Tugendhat) I meant to pick you up on that actually before. There are many, many scandalous case which we all know about but I do have to say I do not agree with you that journalists publish anything and be damned. On the whole I find that with journalists, like everybody else in society doing a difficult and responsible job, some of them will say anything but most of them are actually conscientiously trying to do a good job.

Could I just interrupt to say I agree with you and it is not the 99 per cent who are good I am talking about, I am only talking about where it goes wrong.

(Mr Tugendhat) Yes, and we must never underestimate the asset we have in the free press and I am afraid a free press is bound to be one that occasionally gets it wrong either by malice or mistake.

I do not know if you would agree with this but it does seem to me that actually the local and regional papers, certainly in my part of the world, seem to be generally regarded as being pretty fair and it really tends to be more at the national level that these kind of things happen?

(Mr Tugendhat) That is my understanding and equally it is my understanding that these revelations sometimes can cost people their lives and their livelihood.

Chairman: Thank you very much indeed. I am most grateful to the Committee for the self-discipline. I am extraordinarily grateful to you for what has been a very valuable session. Could I just make this point. Hugh Cudleigh(?) for whom I worked at the Daily Mirror wrote a history of the Daily Mirror called Publish and be Damned and it was therefore assumed and is widely assumed that it is the newspapers who say that but that actual statement came from a victim of the press. Thank you.

Memorandum submitted by Mr Rabinder Singh QC and Mr James Strachan

Examination of Witnesses

MR RABINDER SINGH QC and MR JAMES STRACHAN, examined.

Chairman

Gentlemen, welcome. I do not want to be invidious right at the start but you have heard the previous session. It is a very high standard to live up to, as I am sure you will. Could I start by asking you this question: there is a very strong argument that the press should be self-regulated, that it is a free society, the press is not licensed and anybody can set up a newspaper, rightly, and that self-regulation is the best way but are we not now beyond that in that whether we like it or not, as this Select Committee indeed warned ten years ago, privacy law is being made every day and it is not being made by the PCC, although the PCC has its own precedents, and it is not being made by Parliament, it is being made by judges just as judges are now making asylum law and all kinds of law? If a privacy law is to be made would it not be better made by Parliament?

(Mr Singh) Chairman, I would have to agree with that. I think one of the other pressure points which is very clearly emerging is legal pressure coming not just from the courts of this country but from the European Court of Human Rights. A number of times today the Peck decision has been referred to and there have been other decisions, although in my view Peck is the most important decision of the Strasbourg Court in this area. That makes it inevitable, as you say Chairman, whether one likes it or not that some law reform in this area will have to take place and many of us take the view that it is better when there is to be law reform, particularly in this sensitive area where a number of interests have to be balanced and different groups have to be consulted, if the decision making process which arrives at legislation is used. Obviously things like a white paper can be used. Consultation can take place on a draft Bill. Those sorts of methods of arriving at law reform are simply not available to the judges, who have a different sort of job to perform, which is to decide a particular dispute brought before them on particular facts.

Could I then put to you another point before I call on Frank Doran which emerged from the previous session. If you have a privacy law enacted by Parliament - and let me make it clear we are at the beginning of this inquiry and what this Committee will decide months ahead is not for me to even guess - it is a law of general application even though it may be and will be used on an individual basis. If you have judge made law, the judge made law will depend on actions which are taken, individuals taking actions and almost certainly those individuals will be people of considerable means in view of the expense of going to law.

(Mr Singh) Yes, Chairman, I have to agree with that. Listening to my colleagues earlier one of the things which struck me about the discussion was that I, in my professional life at least, probably have a different sort of experience from those who perhaps work primarily for the media or for celebrities because my work tends to involve, I think the phrase was used earlier, ordinary people and certainly not public figures by choice. If I could just give one example which is commonplace, I think, to illustrate the sort of difficulties which can arise. A woman who was violently attacked and photographs of her injuries were taken by the police photographer. Obviously she consents to those photographs being taken and being used in the court file for the purpose of a criminal prosecution but what she did not do was to consent for those photographs somehow to find their way into a local newspaper. She has not been paid for that to happen. It is a real case. I will not name names obviously but it caused her enormous distress. The route which is available at least in theory of going to court is not only very expensive it is also a very blunt instrument because it tends not to give the individual what they really want and it also tends to be disfavoured by the press because they feel, I think with some justification, that sensitive issues, balancing freedom of speech against privacy ought to be handled not by judges, particularly judges hearing urgent injunction applications late on a Saturday night, but rather by a body which although not necessarily exclusively composed of those representing the press at least would have some media element represented in it. Personally. and perhaps we can return to this later in questions, Chairman, I would suggest that a way forward may be to have a strengthened regulatory body which would cover the press as well as the broadcasting media with the sort of powers which the European Court of Human Rights envisages in Peck such a body needs to have if this country is to comply fully with the ECHR.

Mr Doran

I can see that something needs to be done as a result of the Peck case but I think the question is what needs to be done? You have just mentioned the idea of a strengthened regulatory body. I would be interested to know whether you see that as being a statutory body or, for example, whether the PCC could be beefed up in some way?

(Mr Singh) My own preference would be for a statutory body. It is a personal view but on a very impressionistic level my experience is that while people tend to have relatively little confidence in the PCC for some of the reasons that have been mentioned - that it is appointed by the press and has relatively weak powers - there is a greater degree of public confidence in the Broadcasting Standards Commission. There are still, however, legal defects, as Peck has demonstrated. One of the issues in Peck, as you will know, was whether the existing bodies (including the Broadcasting Standards Commission) could afford someone an effective legal remedy under Article 13. The court holds that it is not able to provide an effective legal remedy primarily because it has neither the power to restrain publication if that is appropriate in a given case nor to award compensation.

Michael Tugendhat said earlier that one of the weaknesses in that proposal is that the broadcasting media is licensed and the regulator has the authority to remove the licence. We do not licence the press in this country and I do not think you are suggesting we should.

(Mr Singh) No.

I do not know if Mr Strachan wants to comment?

(Mr Strachan) I agree. I think it is very difficult to envisage how one would give the teeth needed to such a regulator without it being done on a statutory footing because it is effectively self-regulation and therefore any coercive means the regulator wishes to impose have to be by the consent of those who are being regulated and in this case where it is the press such means would have to be agreed by them for them to have any effect. So it is difficult to conceive how one can do it absent some form of statutory intervention.

One of the problems we laboured under when we discussed this, as politicians anyway, is that it was quite clear that the last government had no intention of introducing privacy legislation and I would be very doubtful if this Government was interested in introducing privacy legislation. If that is the case and if I am right, it is difficult to see how we can do anything other than wait until the right case comes before the right court and the right decision is made or else we are still in limbo.

(Mr Singh) I can see why you say that and I would tend to agree with that. On the other hand, I think there are now two new developments, potentially at least. One is the judgment of the Court of Human Rights and whichever government has been in office this country has a very good record, contrary to what some of the politicians might say to the press, of complying with judgments of the Court of Human Rights. In fact in some ways judgments of the Court of Human Rights let the Government off the hook because it can be said to the public and to the press, "We might not necessarily have done this ourselves but we have to respect the court's judgment. We have to implement this." So usually within a year or two experience suggests that the Government of this country, whether it likes it or not, tends to introduce legislation to implement European Court judgments when legislation is needed. The second point, curiously enough, paradoxically perhaps may be that unless the press actively wants the courts to move into this territory, because there is a gap which is clearly there, they may actually want something like a revamped regulatory body because I am sure they would prefer something on which they had some representation (if not exclusive representation), something which was relatively cheap and speedy and something which could adopt a more refined approach perhaps in balancing free speech against privacy than I think the press view the judges as being able to give.

Could I ask one more question. It is on a completely different subject. You heard the discussion between my colleague Ms Shipley here and the two previous witnesses on the issue of basically criminal proceedings and a lot of the ordinary people we are particularly concerned about come to the attention of the media because they are either the perpetrator of a crime or a victim of a crime. As a Scottish lawyer I have always found it very difficult to understand the latitude which the English media is given pre-trial in any situation like this. You are probably aware that in Scotland the rules are very, very tight. Once someone is in police custody and being investigated then it is not possible for the press to do anything other than print the name, address, age and details of the charge. Photographs are absolutely prohibited without the leave of the court and that carries all the way up until the trial, whereas in England we seem to see the tabloids vying with each other to see who can prosecute the individual first before he has even been remanded. Do you think there is any scope there for improving the criminal law - it may not be your field, I do not know your backgrounds - to improve the situation there? That could be an adjunct to some privacy law which might help quite a lot of people.

(Mr Singh) Yes. I suspect that that would probably require some kind of reform of the law of contempt of court rather than being a privacy issue directly at least. But having listened to that discussion earlier, I have to say I had a lot of sympathy with the view expressed that effectively thousands of people through leaks and the like seem to be being tried by the media. Maybe I am wrong about this, maybe I am optimist, but I do not actually think that the British sense of fairness in most people approves of that happening.

Mr Doran: Thank you very much.

Mr Bryant

Two of the phrases which are bandied around a lot in the discussion about privacy and which are in the PCC Code or hang around it in some form or another are the public interest and whether there is a difference between the public interest and that which is interesting to the public or which can be made interesting to the public but with a sufficiently attention grabbing headline and the other is a reasonable expectation of privacy. Could you say what you understand by either of those two phrases and how you think they might be tightened up.

(Mr Singh) In a sense the common lawyer uses those phrases like many other concepts particularly in English law, which is a common law system, precisely because they are inherently flexible. I appreciate that that tends therefore to mean that there is relatively less certainty but on the other hand, rightly or wrongly, the view that our legal system has tended to take in history is that it is better to have a system of justice which is able to accommodate new circumstances as they arise and apply general principles to those facts rather than have highly rigid rules. But having said that, one does not need to reinvent the wheel even with those sorts of concepts. One of the advantages of being able to look to other countries is that where something useful can be learned we can learn it and concepts like reasonable expectation of privacy are well established, particularly in American privacy law, and the concept of public interest is one which is relatively familiar to English judges under the existing law because they often have to deal with public interest immunity questions, for example, or disclosure of confidential information not in the privacy context but in the commercial context. So they do sit in judgment on these questions and what at least those who have access to legal advice are able to do is to look at the precedents to see a body of principle which has built up, to see the kind of thing that would be regarded as being private and also regarded as being in the public interest.

But the PCC does not have to go through that process and I presume the reason why it likes the phrase "the public interest" is not so much because you can bend with the wind as generations of legal precedents change but more so that you can drive a coach and horses through it.

(Mr Singh) I think at least the way the system ought to work - and I understand why you are saying what you are - is that the courts give a lot of leeway to the self-regulatory and other regulatory bodies in this field. One of the reasons why they do that when those bodies themselves apply concepts like public interest is because the courts, I think rightly, feel that in a democratic society freedom of the media is very important and so in the first instance editorial freedom and the freedom of the industry itself ought to have the first opportunity to decide where the public interest lies but with the important caveat that there should always be a longstop, that there is some other way of correcting their initial judgment, and currently that longstop is provided by the ability of the courts to intervene. For all the reasons others have mentioned that is a relatively blunt instrument and so that leads me to believe that a re-vamped regulatory body might be the way forward.

Mr Strachan?

(Mr Strachan) I agree that there is a great danger in trying to define with any great precision what is involved in terms of privacy. The more one adds definitions and exclusions and exemptions the more difficult it becomes to define precisely what it is one is protecting and balancing that against the importance of freedom of expression one is in great danger of over-defining the right to privacy at the cost of freedom of expression. Therefore, many attempts have been made to narrow the definition but I believe that that can lead to greater difficulties than it solves.

You are both speaking in a very lawyerly way, if you do not mind my saying so, and ordinary people do not have access to your great thoughts every day of the week unless they pay a fairly substantial fee and for ordinary people clarity is what really matters. So, for instance, one of the few things in the PCC Code which is generally understood by a significant amount of the public is the phrase "The use of long lens photography to take pictures of people in private places without their consent is unacceptable," because that is clear and specific. It seems to me that this is one of the dangers about the sort of enormous flexibility that lawyers like you would argue for but which may in the end not be in the interest of a code which is generally understood and accepted.

(Mr Strachan) You are right in the sense that it would be nice if one could define in every circumstance whether or not there is an unacceptable infringement of privacy but of course it is impossible to do that. What is important is that there is a right of redress which is readily accessible for those people who believe their rights have been infringed and that that is available for them to test in a particular circumstance. Going back to the Peck case, which went to the European Court, one of the difficulties faced by Mr Peck, as I understand it, was that by taking the case on one of the arguments used against him was that he was in fact attracting publicity and therefore his right to privacy should not be upheld in any great shape or form because he was courting publicity and that was a point run against him in the case which the European Court rejected. But it is important that what is there is a right of redress which is readily accessible by those people who believe their rights are infringed but defining precisely the circumstances in every case would be impossible.

But if you take the case of a family whose young child has a medical condition which is of interest to the public, the newspaper turns up at the door and asks could they do an interview. They will not name the child, they say. They will take a photo just for themselves but they are not going to use it and then they use the photo and publish the name of the child and say what school that child is going to and then the child receives taunts at school which makes that child's life a misery. The family may feel aggrieved but if there is not a clear code then they do not have the means of knowing whether they have a grievance which can stand up, if you see what I mean.

(Mr Singh) I actually agree with that, Mr Bryant. That is why I would suspect that the media, and certainly I, would favour a middle way rather than the blunt instrument of court injunctions, and you are absolutely right, a case by case, piecemeal development of vague concepts like public interest. I think the media and members of the public would probably welcome more clarity set out in, if not a voluntary code a statutory code of practice because you are absolutely right, that can give you more detail and everyone knows then where they stand. But it does then require public confidence in the enforcement of that. I think that is where at the moment people feel that things are breaking down.

Derek Wyatt: As Frank Doran said, it is unlikely that the current Government will not bring in a privacy law and if it did it would have to do it, as it were, in the first week of the next election so that it was out of the way in time, and so on, and we know that is unlikely. In other words, it is only really the PCC we can get a handle on and whether we change that. The equivalent to the PCC is ICSDIS(?) for mobile telephones. The way that works is that the mobile telephoning companies, the four and five, 2G(?) and 3G licences, pay for ICSDIS but can have no say as to who is on that board, in fact none of the operators are represented on that board. So surely the solution to the PCC is that the newspapers should pay for it but should have no representation on it and then we will trust it.

Chairman

Could I just intervene to say that that was exactly the way the British Board of Film Censors has been conducted. It is paid for by the film industry but the film industry is not represented on it.

(Mr Strachan) As I understand the position in relation to ICSDIS, for example, there is an underlying system of licensing and albeit that ICSDIS does not have the ability to withdraw licences or suspend licenses it can make recommendations to the licensing body to do just that and of course that is not the case in relation to the press. There is no underpinning licensing regime which provides an effective sanction in the event of a refusal to cooperate with a decision.

Derek Wyatt

But as you know, it mainly makes judgments and it fines and they are fined immediately and they are off. They are off immediately, people who send pornographic spams by e-mail on these things or just spams. They are fined £50,000 or £100,000. They have collected £1 million of fines in a month. That is what we want and it is not for us, not famous people, it is for our citizens who are trawled over and tramped over. If you consider the case of the Welsh girl who had this relationship with a Turkish man. She is under sixteen. Well, who cared? Apparently, according to the PCC, you should not mention that. The name, a photo, everyone tramped all over her. What chance has that child got? There are lots like that. So the PCC thing just does not hang together for me.

(Mr Singh) I have to agree with you. The only thing I would add, and it may be a technical lawyer's response for which I apologise but I think it is important in the area of law reform to know what the law does require and that is that in Peck the Court of Human Rights had regard to the fact that some of the bodies concerned - I think they mention the ITC - have the power to impose a fine but they still said that that was not enough to comply with the requirement of the Convention on Human Rights because the two things which are critical and which are currently missing are the power, if necessary (I stress, if necessary), to restraint a broadcast or publication and secondly the power to award the individual compensation rather than impose a fine more generally.

Mr Strachan, If you were not keen on an ICSDIS equivalent for PCC, given that OFCOM has some regulatory process and we have heard about the Human Rights, have we got enough or what do we need?

(Mr Strachan) The reason I identified the differences with ICSDIS was that there were underlying teeth to their regulations. They could bite if they needed to, albeit indirectly, whereas that does not exist for the PCC and what I was indicating is that effectively if you were to require some form of teeth that would have to be imposed upon the PCC, as I understand it. Under the current system whereby it is self-regulation, and indeed the body is representative of the press, one cannot have that system of regulation which you are envisaging without some form of statutory intervention. That is why I was drawing the distinction between ICSDIS, which can work as a voluntary scheme, and the PCC, which may not be able to work because there is not that underlying sanction.

Mr Flook

At what point in a circle around the public individual does he or she get privacy, how far out from them, do you think? At what point does a public individual have privacy rights?

(Mr Strachan) I think it goes back to some of the evidence you have heard from earlier speakers. It is difficult in every circumstance to define how broad that right to privacy is and I believe that in each case there may be different circumstances, and indeed there will be guidelines which have been drawn up by the courts in those cases where they have been involved as to in what circumstances there is an expectation of privacy and indeed in what sort of circumstances it would be in the public interest to publish an article. So if you are in an area dealing with public standards and the piece of private information relates directly to something you are involved in then there may be a greater case for allowing that piece of private information to be published and put into the public domain. What I do not attempt to do is to try to describe definitively in every circumstance some form of words which would enable you to know in every case how wide that protection is. I am not sure it is possible to do that.

So the union leader who was allegedly a love rat, that was a step too far, was it, in your view?

(Mr Strachan) I am not sure I can comment on individual cases and give my own personal view but what I see is important is that whatever decision is made by the press to publish, for example, that decision is capable of being subject to sanction if it is a wrong decision and moreover that those persons who are affected have the ability to get hold of that sanction. That is really, as I understand it, the main difficulty currently, that those people - perhaps the union leader is a bad example but certainly more people who are in everyday life affected by decisions of the press are unable to access such sanctions that do exist.

(Mr Singh) The only thing I would add to that is that I think in principle a public figure has the same right to privacy as everyone else so the nature of the activity which is being investigated, say of a sexual nature or something of that kind, applying the normal tests that the law does apply such as does a person have a reasonable expectation of privacy, would this embarrass someone of ordinary sensibilities, I think you would give the same answer to that question in relation to say a love affair or anything of that kind. Where I think the law quite legitimately may legitimately treat a public figure differently from a private person is if there is a public interest in intruding upon that person's privacy where there is an acknowledged intrusion on privacy. So it may be that, for example, if they are the sort of politicians who have made a virtue of what they call family values or something of that kind and made a big play of that then I think there can be in principle a public interest in exposing political hypocrisy. On the other hand, it may be that the politician concerned has never made those sorts of remarks and is a very liberal politician and takes the view that people should be able to do whatever they like as long as they do not harm other people and they do it in private. So I think it does depend on the context but I think the answer to your question is that these questions of why a public figure may be differently treated come in more in balancing the public interest against private interests rather than in answering the question whether there is an intrusion on privacy in the first place.

Jumping forward, when an individual does get redress because it has been found that there has been very unfair reporting do you think that redress is enough in the vast majority of cases? I mean if there is a small correction on page 7 after a front page splash?

(Mr Strachan) That brings one back to the point that quite often what is not sought is some form of damages, indeed an apology, but the prevention of the publication in the first place and of course one of the possibilities is to enable whichever regulator is to have an effective way of regulating the press the ability to stop publication before it takes place, which I think was discussed earlier. That of course is one way of providing the most effective redress but obviously that is very difficult in many cases. As to what particular redress is agreed in particular cases, it is difficult to know whether that is going to be adequate depending on what has been done. I think an apology in certain circumstances of that kind may be satisfactory for some individuals. In other cases, for example where the initial story was a front page splash and then the apology appears some weeks later in the back pages that certainly is not and there may need to be some form of sanction which prevents that type of abuse, i.e. capitalizing on the initial publication and then some form of apology which is not sufficient.

But as lawyers no doubt you will have at some point worked for individuals or even companies who have been possibly libelled but it has never gone that far. Do you think the money that is paid out of court is a fair one or do you think the legal costs put people off and they will take some money and a small apology or some money for charity and a small apology?

(Mr Singh) In the privacy context I mentioned some real cases about ordinary individuals that I have come across. The reality of the situation is that unless you have a lot of private income, which the sort of people I am talking about do not have, you have to be able to get some kind of assistance possibly from the Legal Services Commission now. Even if that happens, if a reasonable offer of compensation is made by the newspaper concerned - it may be a few hundred or a few thousand pounds, certainly not mega bucks - then the lawyers in the case have a duty to the Legal Services Commission to say that a reasonable settlement is being offered and that we cannot advise you to fight this any more because the legal costs are going to outweigh the level of compensation likely to be recovered. So I think that in practise it is not only that on a Saturday night the phone call is being made to editors, it is also that when cases are brought whether you like it or not they are effectively killed off, maybe for reasonable purposes. That is another reason why I think you are not actually hearing about the famous cases going to court.

Mr Flook: Part of it, again on another side, is that we have had over 130 submissions, which is a lot for inquiries that we have done, at this stage of an inquiry. Just from my observation an awful lot of them seem to come from newspapers with a standard line seemingly being that they like the Press Complaints Commission!

Ms Shipley: It is doing a fine job!

Mr Flook

There is a good writing campaign and maybe it is our job as MPs to recognise that. I do not know if other members of the Committee have noticed that. Even my local newspapers, some of whom refuse to take my press - no, that is not quite true - have been very keen to write to me about this particular issue because I am on this Committee. Any comments on that?

(Mr Singh) It is something that the press clearly do feel very strongly about and I do not want to belittle the concerns in a democracy about a free press. That is the starting point, I think, and Human Rights law recognises that it is a very, very important right. But it carries with it responsibilities, as Article 10 of the Convention on Human Rights says, and what is interesting is that whenever the press appear themselves to be threatened by law, including the Human Rights Act, the one thing they always seem to be concerned about is the impact on them and what will happen to them, particularly if a privacy law is created. It was interesting that as the Human Rights Bill went through Parliament, as many people on this Committee may recall, the one thing the PCC did through Lord Wakeham was to try and get the Human Rights Bill diluted so that there would be no risk of the courts creating a right of privacy through the Human Rights Act. I always thought that was very sad because after thirty years of campaigning for a Human Rights Act, a campaign which included many newspaper editors who had been able to secure victories for freedom of the press only by going to Strasbourg historically with the Sunday Times, the Spycatcher case and so on and yet when at last the time came to bring rights home the one thing that they all seemed to be focussing on was that we do not want this because it is going to lead to a right to privacy rather than celebrating that for the first time in history they have a legally enshrined right to freedom of expression.

Chairman: Before I call on Debra Shipley, I would just like to follow up the exchanges you have had with Mr Flook because I think it may be as well at this early stage of the inquiry for us to try to get something clarified. The phrase "public interest" is bandied about constantly with regard to this. There are two ways of looking at public interest. One is an interest to the public. There is scarcely anything that is not of interest to the public. I even took part in a television programme showing the contents of my refrigerator! Actually, it was very interesting.

Mr Flook: It was for you, Chairman!

Chairman

No, to the public. I got letters about it. If you are looking say at the Clive Ponting trial, the reason Clive Ponting was acquitted even though it was perfectly clear that he had violated the Official Secrets Act was because the jury decided that what he had done was in the public interest, namely to the benefit of the public. Any newspaper could claim that almost anything they said or did was of interest. In your exchange with Mr Flook you talked about a person proclaiming family values while not practising them. When the National Heritage Committee conducted an inquiry into privacy and media intrusion ten years ago in New York we had a session with the senior editorial staff of the New York Times and they told us that they had a clear firm policy that whatever his or her role in public life was or was not they would never out a closeted homosexual unless that person had made public statements denouncing homosexuals, in which case they would regard that as being in the public interest. So can we pin down now at this very early stage in the inquiry what we mean when we talk about "in the public interest" because if it is simply of interest to the public then it is absolutely free. Any newspaper would have a right to print anything.

(Mr Singh) Chairman, I think that is a very helpful question. The way I would respond, if I may, is to say that generally speaking I think our law has given a very clear answer to that question, namely that it is what is of benefit to the public rather than merely anything which interests the public. In fact it may well be that most members of the public are not interested in the sort of things that in a democracy are very important but nevertheless it is in the public interest that a free press should be able to report them. The one aberration in our legal system seems to have been the footballer case, where I think some rather unfortunate remarks were made by the Court of Appeal last year, where they gave the impression at least that anything which the public was interested in and therefore would sell newspapers was in the public interest. The court gave rather strange rationale for that, in my view, which is that unless newspapers can sell a lot they may go under and that therefore the public interest in having a press in a democracy will be undermined. I regard that as an aberration in our legal system because that has not generally been that attitude taken by the judges and I am glad to say, as I think Mr Tugendhat mentioned earlier, in the Naomi Campbell case another Court of Appeal has taken the opportunity to correct the impression some people may have got as a result of the footballer case and has re-established the understanding in our law that "the public interest" means, as you say, Chairman, benefit to the public. It is a concept that the courts have always found it difficult to apply, nevertheless they have to grapple with it in many contexts including, as you will know, public interest immunity where just because a minister signs a certificate does not mean that is the end of the story and at the end of the day in our legal system it is a judge who ultimately can decide where the balance of interest lies in disclosing possibly quite sensitive information. So I would start with the point that public interest means benefit to the public. It should not be confused with anything which interests the public and that therefore newspapers, if they are to invade people's privacy, will have to be able to make some kind of plausible case at least that the reason why they are intruding on a politician's privacy say is to expose hypocrisy because that is in the public interest in a democracy but not simply because this person happens to be a homosexual and at least so far has not chosen voluntarily to disclose that fact.

Ms Shipley

That is precisely what I am interested in. I think your logic is very sound, if I may say so. So if you could address the problems I have around the sexual offences because obviously naming names could protect children. On the other hand, it can incite lynch mobs - a lynch mob of a guilty person or worse still an innocent one, but even a guilty one - or it could destroy an innocent person. However, it might save another child from being abused. So could you think around that balance of interest for me. I would like your input on that. Secondly, sanctions, which may be one for you really. As the editors are really keen on the Press Complaints Commission would it be good if they had to come in front of the Press Complaints Commission personally and defend themselves verbally - them personally, not some underlings way down but the big man at the top? Also, if an apology is wanted from the person, if they are found to be in breach of one thing or another, should that apology be of the same measurement that the original coverage was? So if it was four spreads, should it be a four spreads apology? Obviously only if the apology was wanted by the person against whom it was perpetrated.

(Mr Singh) Could I deal with the first of those questions, perhaps, because that is something which has interested me professionally for a number of years. I think the answer to your conundrum may lie in the legal concept of proportionality and the issue has arisen in a number of court cases, not primarily to do with the media but to do with, for example, police forces and local authorities. As well as all the developments I think Mr Tugendhat has been talking about in the last five years concerning privacy and the press there has actually been relatively unnoticed in our legal system a new body of law which has emerged, which is effectively a law of privacy which binds public authorities. This is enforced by way of judicial review because that is used against public authorities. A very good example of that is a case concerning the police in North Wales which concerned allegations of child sex abusers moving in to the area and the question arose, should the police be free to publicise this generally or should they be limited. The answer, the court said, was to be found in the concept of proportionality and so some disclosure was necessary in the public interest for the reason you have suggested, which is to protect public safety, but that this does not mean that everyone, including the newspapers, are entitled to know and are free to publicise this information. The reason for that is precisely again what you have mentioned, that that then leads to its own dangers arising, such as the lynch mob mentality, possibly even risk to life. That of course lay behind the reason why in the Venables and Thompson case one of our most senior judges, Dame Elizabeth Butler-Sloss, the President of the Family Division, granted the injunction that was sought to protect the identity of those two individuals on their release from prison.

(Mr Strachan) I will try and address the second question you raised, which was in relation to the PCC, for example, appearances by editors. I do believe that the absence of oral hearings does inhibit the PCC's ability to adjudicate upon complaints certainly because there is no opportunity to test assertions of fact or if they are uncertain about questions of fact to test it by questioning, for example, either the journalist concerned or indeed the complainant and that is a defect in the procedure. As to apologies being of the same size, it is an interesting idea and one can see that in some cases the complainant might wish to have that as an option but it draws attention to what I see as a significant difficulty in relation to privacy, which is that in order to get redress from, for example, the courts one quite often has to enter into the public arena and so give rise to further publicity about the very thing you want never to have been brought into the public domain. The suggestion of publishing, for example, the same scale in retraction in many cases would be unattractive, I suspect, to people whose rights to privacy have been infringed because it draws attention to the very allegation which was made against them previously. That illustrates the difficulties with the process of going to court to seek protection. Not only is it expensive but of course it opens you up to further public scrutiny about the very things you are concerned about and therefore any system of regulation which the PCC or any other body has in order to be effective has to be both available cheaply and quickly but also not involve the same public circus.

I totally agree with you that there would be a lot of cases where they would not want it for exactly the reason you have outlined, but if it is a case of mistaken identity and someone is splashed all over the place and actually it was not them, it is really mistaken identity. There is the possibility of one at the moment, is there not? So pages and pages of "No, actually it wasn't me and actually I am the innocent person sitting in my cottage that I told you I was all along" might be a really good prohibitive sanction, a sort of pre-sanction because you would not print six pages of this stuff if actually six pages of "No, this person is a normal person" will come out later. It might be very limiting on what happened in the first place until the information firmed itself up.

(Mr Strachan) It is a novel solution, I agree, but I suspect that really what it illustrates is the difficulties in identifying what would be adequate redress for any particular individual and I doubt there are many case where that would be what they are really after.

Could I just ask you, Mr Singh, about proportionality. Everything you have said is very, very interesting. I am not a lawyer so I do not know, is that sort of law transferrable? If it exists in one bit of law can you transfer it?

(Mr Singh) Yes, definitely.

So that could be operable now?

(Mr Singh) Definitely, yes. It is a principle which we find in all sorts of areas of the law to do with restraining someone who is trying to compete with you unfairly in a business.

In your judgment could that be operable now with relative ease?

(Mr Singh) I think so, yes. Proportionality lies at the heart of the Human Rights Act and so it is now -

So why is it not happening?

(Mr Singh) It is not happening because it is a relatively less well publicised area of the law. The Human Rights Act obviously has only been in force for just over two years. It is a very specialist area of the law. Media law and privacy law in particular is an even more specialist area. So I think there is that problem. There is also the problem about access to legal services, the expense and so on, which I have already mentioned earlier.

Ms Shipley: Thank you.

Chairman: Thank you very much indeed. I think we have had an extraordinarily useful double session now. I am going to adjourn the Committee now for a short while for two reasons. First of all, because we are expecting a division at any time. Secondly, because our next witness is in transit. So we will take a break. Thank you very much indeed. We will reconvene at 4.45.

The Committee suspended from 4.30 pm to 4.45 pm

Examination of Witness

MR MAX CLIFFORD, Max Clifford Associates, Public Relations, examined.

Chairman

Mr Clifford, thank you very much indeed for coming. If I may, I would like to resume from where we left off and put to you a question myself. In the Clive Ponting Official Secrecy trial there was absolutely no doubt that Clive Ponting had violated the Official Secrets Act but the jury acquitted him on public interest grounds. Some newspapers would say that "public interest" means of interest to the public whereas others, including the distinguished legal minds from whom we have just received evidence, would disagree and say there has got to be a public benefit as distinct from arousing the interest, which may be a prurient interest, of the public. You have got a very great deal of experience of press coverage of figures, both public and private. I wonder if we could start by you giving us your view on this definition of public interest.

(Mr Clifford) It is difficult because no two people would give the same answer to that question, no two members of the public. What I might say is of interest to the public or of public interest somebody else would not. I suppose like everything else I have ever been involved with you look at every situation on its own merits. There are things that I have brought out that a lot of people thought were not in the public interest. If you were a supporter of the last Conservative Government a lot of my activities were very much against your interests and against the people who voted for you. Nevertheless, I brought it out and other members of society thought it was very much in the public interest. So it is a difficult thing to answer really. In my view, you have just got to look at every situation on its own merits and judge accordingly.

Mr Bryant

One of the phrases in the PCC Code of Practice is "a reasonable expectation of privacy". What do you think is a reasonable expectation of privacy for someone?

(Mr Clifford) If you are talking about the stars and celebrities I represent, total control of everything that is in the media is a reasonable amount of protection!

How do you secure that?

(Mr Clifford) With great difficulty sometimes. If you are talking about members of the public, any kind of protection would be better than what they have got now.

How would you bring that about?

(Mr Clifford) In a variety of ways. I suppose that the PCC is jobs for the boys, it is editors looking after editors. The public do not really have a say or any clout in that. There is no one really out there looking after the interests of the public. There is no legal aid for libel. So if you are an ordinary member of the public you are virtually defenceless and you take whatever is given you and you have got nowhere to go. If you are a star, a celebrity, rich, powerful, you can afford to employ expensive PR people like me, lawyers, and we try to make sure that what appears in the papers is only what you want.

Politicians could be accused of hypocrisy if they were to say that it is wrong for the PCC to be self-regulatory because we regulate ourselves, as MPs anyway.

(Mr Clifford) Yes, but then I agree that both are wrong!

Yes, I do rather. Maybe we could swap and maybe we could regulate them and they could regulate us - oh, no, they already do regulate us!

(Mr Clifford) It depends on who is doing the deals.

How do you think you can create a code which is sufficiently well understood by ordinary people - forget about the stars and so on but by ordinary people - for them to have confidence in it and for them to feel that if they feel aggrieved their grievances -

(Mr Clifford) Well, I think there are people out there that the public respect. There are people out there who probably genuinely have principles. There is a few of them. For example, I think if you were to say that someone like Mo Mowlem was going to sit on that committee a lot of people would get a lot of comfort from that because of the perception that the British public have of someone like that. I just think that it is important that you get people there who are not seen to be puppets of the media, who are not seen to have vested interests and who the public would have faith that they would be looking after my interest.

But this is quite difficult, is it not -

(Mr Clifford) Of course it is difficult.

- because if Government appoints people to a body which is then looking at the content of newspapers and regulating the content of newspapers that is not a very free press. How do you ensure that you have some kind of arm's length principle without it being, as you say, jobs for the boys and just the media appointing their own regulator?

(Mr Clifford) Well, you have got to come up with a system which is seen to take care of that particular problem. It might be a question that there are people nominated and it might well be that people vote. I suppose in a democracy that could possibly work. It is not an easy situation. It is easy for me because I can see what is going on, I am in the middle of that game. But unless you are in the middle of it, it is very, very difficult. A lot of the MPs I know have not got a clue what goes on in terms of the realities of the media. So to come up with that kind of blend would be extremely difficult. I can think of a handful of people who I think outside of the press would do a very good job were they to be willing to sit on the PCC and that is for someone who is in the middle of this game. So it is not easy but possibly a way would be to bring names into the public domain and people would vote on that subject.

One of the arguments which is often advanced by the newspapers for the PCC remaining as it is is that the market provides, there are lots of newspapers and if somebody does not like what is in the newspaper then they can go somewhere else and if lots of people objected to the intrusion into people's privacy as exemplified by a particular newspaper then they go off and buy another newspaper. That argument seems nonsense to me. What do you think of it?

(Mr Clifford) The same.

Derek Wyatt

Mr Clifford, good afternoon. Are you in favour of privacy law?

(Mr Clifford) No.

You are not. You just want to change the way the PCC is organised?

(Mr Clifford) I think the system I would like to see is legal aid for libel for ordinary members of the public. There are lots of things I would like to do but yes, the PCC definitely should have a much stronger representation from the general public, particularly those members of the general public who have some idea of what goes on.

Over the last ten years as rolling news has become a factor in satellite homes where you have got three, four, five or six channels of news twenty-four hours a day and where the Internet has come in the last ten years and perhaps in the last two or three years has also been a factor in giving us news twenty-four hours a day, do you think that has made it much harder for the popular newspapers to sell more copies because the news, as it were, is there and therefore in a sense they have got to be a daily Hello! or a daily OK! or a daily something because that is the only thing, it is the entertainment bit of a newspaper not the news bit now that will sell the newspaper? You must have made a reasonable amount of money as a result of that but that is really an aside. What I am trying to work out is have you noticed a significant change in your business pattern over the last ten years and would you say it is due to the television or not?

(Mr Clifford) You have to understand that what I actually do is probably slightly different from the public's perception of what I am doing most of the time. I started in 1962 launching an unknown band called the Beatles. I just happened to be at EMI Records in the press office. My part in their success was non-existent but they helped me to get a lot of contacts all over the world. Those days were a totally different world to today. The biggest part of my business now is public relations. The biggest part of that is protection and in the last ten years the balance has shifted tremendously. It used to be promotion. It used to be very much getting it out there. Now it is far more about protection. We have, in my view, the most savage media in the world. Therefore the needs are for everyone for greater understanding, for greater influence of the media. Image is everything. Reality comes into that less and less. Protection therefore becomes the most important part of my business. The one area which does not have that is the public, the masses. The rich, the famous, the powerful have tons of protection, often far too much protection but the public has got no protection at all. I can think of people who have come to me over the years and what the press has done to them has been far more damaging, the terrible things that have happened to their families or situations they find themselves in. They have been destroyed by what happened and devastated by the way the media treated them. They turn to the police, "We can't help you." You want to employ a lawyer. You cannot afford to employ a lawyer and you have got to move fast. They are torn apart, destroyed every day. They phone me and have phoned me for years and years and years, and more and more of them. Yes, I make fortunes from selling stories and fortunes from looking after the PR images and interests of companies and stars all over the world. It is a wonderful industry for me but the public are left behind.

I think my question was though, is the result that the reason why there is more interest in this privacy issue currently, not just because of a famous case in the High Court but there is more interest is because the newspapers, in order to sell on a daily basis, have actually got to come to the extreme of entertainment or find entertainment somewhere in the political -

(Mr Clifford) We have become very much a celebrity-led culture. There are more and more celebrities. More and more celebrities are being created, some for five minutes, some for ten minutes, some last a bit longer and the media finds it is a way of increasing circulation. There is a certain shelf life for these celebrities, some longer than others. We like to build them up and destroy them. That is our way. The British public seem to enjoy a savage media because otherwise they would not buy what they buy and read what they read so it is down to them. Unfortunately, I think we have changed as a nation tremendously. We used to get far more pleasure from people's success. We now are often, I find, far more jealous of anybody's success, not just ours but members of the public who have had good fortune. People do not like it. I think that is reflected in the media and I think the two go hand in glove. But yes, celebrities, they are looking all the time for any kind of celebrity. They make celebrities so therefore they can then write more and more about them and reveal and disclose and that sells more papers. Then it gets a bit boring so they have to create somebody else.

Would you feel marginally happier if we had the PCC in front of us every year accountable to this Committee?

(Mr Clifford) Well, I do not have a lot of faith in politicians to that would not really give me too much comfort. Based on most of the politicians I have got to really know over the last ten or fifteen years, I would not trust them further than I could throw them. I do not want to sound cynical because I have never been a cynic; I would be a journalist if I was cynical.

Derek Wyatt: You could be a comedy writer! Thank you.

Chairman: Thank you very much indeed, Derek.

Mr Doran

I am not sure I should bother now. I want to follow up the strengthening of the PCC, which clearly you are in favour of. We have got a note of a telephone conversation you had with the clerk and you mentioned the points you have already raised about the fact that it is really a jobs for the boys club but there is no real protection for ordinary people, it is a very weak organisation. That is summarising it very quickly. But we have had some other ideas presented to us for strengthening the PCC, for example one of the things which is obvious to anyone who has had any contact with it is that it is totally reactive; it is not proactive in any way. It will not investigate, it will not hold hearings. It really acts as a post box and letters are sent in from one side, sent to the other, the responses come back and they go out and that is the way that adjudication is done. Do you see any scope for improving and hardening the PCC and making it more efficient by, for example, giving it investigatory powers?

(Mr Clifford) Yes, I think it really goes down to the hearts and minds of the people who are actually doing this particular job, if they want to achieve, if you like, justice through the media, because a lot could be done. But then you see things happen very quickly. I am not again talking about the stars, the celebrities, but for the masses unless somebody can act quickly for them the damage is done. An apology does not - you know, it is destroyed. A brief story, a lady I spoke to some time ago up in Scotland whose daughter had died in a playground incident, a tragic incident, one of these freak things, many, many years ago. The press kind of hounded them and they just wanted to be left alone and it was tragic and terrible, etcetera, etcetera, and she had a younger brother who was devastated; they were very close. The media tried to get to him and tried to get to the family. They sought protection from the police and they could not give them protection, etcetera, etcetera, etcetera. Eventually a journalist wrote certain things in a national newspaper which were meant to have come from this boy, whom they had never spoken to. The boy committed suicide. You have got to move fast. People come to me and I can get on the phone to an editor and say, "Okay, fine. If you go ahead, fine, but everyone's going to know what you're doing."

Okay, you have got that access.

(Mr Clifford) Yes.

You obviously work in the culture and you know the culture.

(Mr Clifford) And I want to do it.

That is why you are paid what you are paid.

(Mr Clifford) No, because I am not paid for that.

No, I do not mean that particular case but generally. You made the point earlier that you did very well out of it, out of your profession.

(Mr Clifford) Absolutely right, yes.

I can understand that. It is almost worth saying that you depend on the media for your livelihood and in some respects -

(Mr Clifford) Yes, and a lot of the things I say will not endear me to them.

No. I think that is fine. I admire that and I appreciate it. In some respect you could probably argue that they depend on you as well because you provide them with stories from time to time and you are part of the balancing in the system, the balancing perhaps that the PCC does not provide?

(Mr Clifford) I have a unique position. Because I have often a big influence on the front pages it means I have as much influence as I can possibly get on all areas of the media - press, televison, the lot - around the world and obviously that suits me wonderfully well.

Take the point you have just mentioned, the particularly tragic case you have used as an example. Another area which has been talked about is a hotline to try and stop publication in certain cases, something that the public could have access to through whatever representation we are able to find. Could you see that operating, what you do in your professional life, ordinary members of the public having access to the hotline to the PCC to try and stop publication? Do you see that as feasible?

(Mr Clifford) I do not work with the PCC. It is a waste of time. I do my own thing my own way. It is quicker and it is far more effective. If there were a hundred people in my position around the country they could do an awful lot if they wanted to because you can get to the people who make the decisions straight away and you can explain to them that maybe it is not in their interest, maybe they cannot walk all over.

But you can do that because you know the territory.

(Mr Clifford) Yes, that is the point. As I say, I can only -

One of my constituents in Aberdeen is being hounded by the press and he or she does not know where to turn.

(Mr Clifford) Quite right.

If there was a line where someone at the PCC could take a phone call and could phone the newspaper, check the evidence against what they have been told by the individual and call a halt to publication would that be something that would be beneficial?

(Mr Clifford) Well, I think anything would be much better than what there is at the moment, yes. What you would need would be something that the public were aware of as a defence mechanism.

Yes, it would have to be advertised.

(Mr Clifford) So suddenly if you are thrust into the media glare, which happens, you would know in this instance - if someone is taken ill you ring for an ambulance. If someone suddenly thrusts you into the media spotlight you ring. So wherever you happen to be from Land's End to John O'Groats you know there is a number to call and very quickly, in a perfect world, you get a response.

Yes. I have done that myself on behalf of other people and on my own account, phoning editors, and it has been very successful and I do not see any reason why the PCC could not offer that sort of facility because they would be experts in their own right and would be able to speak directly to the people who make the decisions about publication.

(Mr Clifford) I do think that the PCC, hopefully an improved PCC, would certainly take that on board and could do an awful lot more.

Mr Doran: Thank you.

Alan Keen

You have been very critical of the press. Could you tell us how you think it works. The national press are controlled by financial groups, are they not? They may be self-contained anyway. Do the non-executive directors and the actual owners influence what is printed? Some of the stuff that you are critical of obviously you would think that somebody at the top would think, "We shouldn't do that," but are they overridden?

(Mr Clifford) No. I think that by far the most important judgment is the editor and it is purely based on "Is this good for my paper, my circulation?" That is the one. But with regard to outside influences, no. Generally speaking I am amazed at some of the things that publishers allow their editors to publish from time to time. It is a refreshing form of amazement because there are certain things which I thought politically were not very clever and were not very good for those particular publishers, the owners. So no, I do think that we have as free a press as is properly possible and that is a good thing, which is why I am against a privacy law because I think there are, you know, pluses and minuses. But I do not think there is too much interference generally speaking. It varies. Richard Desmond probably has more influence over his editors than most publishers but you have got to look at every situation on its own merits. I think probably Piers Morgan would have a far freer hand. Rebecca Wade would have a far freer hand. Paul Dacre is virtually a law to himself. You look at every individual newspaper but unless you are working for Richard Desmond - I think Richard takes a far more personal active interest and in my view would have a far closer hands-on approach then most.

Would it be more effective as a restraint if the owners had to answer rather than just, "Oh, it's nothing to do with us, we just deal with the finances"?

(Mr Clifford) The problem that you have got, Alan, is that it is the time process, you see, because for the public by the time you have don all this and gone through all that the damage is done and it is finished. You know, the body is dead. It is a waste of time anything else, no satisfaction, nothing. So that is the problem, that unless, as Frank was saying, you can react quickly and protect people, anticipate, unless you have experts with clout, "Hold on a minute, you can't do this. Stop. You're not going until you've satisfied us you can justify," etcetera, etcetera, it is a waste of time because when someone is dead you are not going to resurrect them.

Just to help us understand how it works, if an ordinary person, you feel, is being persecuted do you take up their case with the newspaper and say, "Look, if you print this we want some money for what you're doing"?

(Mr Clifford) No. The problem, Alan, is this. First and foremost, I am not working for - you know, I have clients. I do not have enough hours in the day to do half the things I am being paid to do. So you do what you can, which is not anything like enough, but sometimes there is a quick solution. Sometimes I can quickly get hold of someone. Often they come to me and say, "Look what they've done in this newspaper. It's totally untrue," etcetera, etcetera. I have shown it to them. I do not get anywhere. Other newspapers are not interested because six months down the line, a month down the line, the same thing might be happening to them so they do not want to know either. So where do you go? Nowhere.

Alan Keen: I am fascinated and would carry on but I think the Chairman will stop me.

Chairman: I would never stop you, Alan, but I will call Rosemary.

Rosemary McKenna

Thank you, Chairman. Thank you for your honesty. You yourself have been at the receiving end of some pretty nasty stuff because of the job that you do but that is all right because you are like us.

(Mr Clifford) That is fine. If you give it, you can take it.

That is right. We are in the public domain. My concern, like yours, is about my constituents but also about the families of people. How do you deal with the case where an eighty year old woman, who happened to be the mother of someone fairly well known, was doorstepped for three days by the press pack, by photo journalists and nobody but nobody can stop that?

(Mr Clifford) Okay. Let me tell you because that kind of thing has happened to me. The person phones or contacts my office, one of the girls, one of the people who work for me, and they tell me and I can quickly - because normally they would shove a card through the door - contact the editors and say, "Fine. This is what you're doing," etcetera, etcetera, etcetera. "If you don't stop I'll make sure that everybody knows exactly what you've been doing to this eighty year old," etcetera. So that is what I can do but that is just a drop in the ocean, I know that. What you need is people, an organisation, a structure that can do that, that can look after the interests of those who have got no one to protect them and move fast. For them, the public, what I would suggest you do is that you employ Max Clifford Associates and pay them fortunes to promote this and then everyone will know about it and then the public have got a number to ring.

Chairman

When we did our inquiry ten years ago one of the things that we discovered and indeed referred to in our report was that there was on the statute book a criminal law which criminalized what was called "besetting". It was in fact enacted against strikers but it could equally be used against people who were doorstepping, besetting people. Do you think that that kind of law, which is actually on the statute book and could be used, would be useful or is that overdoing it?

(Mr Clifford) No, I do not know how that would work in practice. Someone is doorstepping you. I mean, who do you call to stop it? How long does it take? The point I am saying is that the kind of organisation the PCC in a perfect world would be it would take care of these things because it is in their interest to. So once you bring in the law, you know, that takes for ever and you take pot luck and they do not want to know because they have got far more important, serious, frightening things going on for them to sort out all the time and it might mean more paperwork, which they all say they have got far to much of anyway.

Invoking the civil law is a slow business but if it is a criminal Act of Parliament which denotes a criminal offence then one would assume that you could simply call the police?

(Mr Clifford) Yes, but then of course it is a question of what is legitimate? Whilst I am the first to say that the press is guilty of lots of things, if it was not for a free press then an awful lot of people would have got away with an awful lot, and still do!

Rosemary McKenna

Yes. I think we all agree it is the balance about making sure that we do have freedom of the press and that what should be exposed is exposed. But the press themselves operate in a quasi-judicial role and there is no control, no legal controls over them. What concerns me is that the PCC is self-regulation and it was set up to stop legislation quite clearly. It has not worked because clearly the press and standards over the last ten years have deteriorated. I do not think anybody would disagree with that.

(Mr Clifford) Yes, I would agree with you, Rosemary, but I would also say that if it can be modernised, if it can be changed it would still be the most effective way of getting it right rather than legislation, which does not work and is time-consuming and you get meetings about meetings and proposals about proposals and two years later they are still arguing.

I have a very open mind about that. I have not made up my mind at all.

(Mr Clifford) It should not be too difficult to make these kind of adjustments. The difficulty, I think, is going to be in making sure the public are aware that they do have a means.

Rosemary McKenna: Yes. Thank you.

Ms Shipley

It is a shame you do not like MPs because you are sounding a lot like one.

(Mr Clifford) Not all MPs, no, I have met the odd one, you know -

But you are sounding very much like one, and I mean that as a compliment because if you had been able to come to the earlier sessions you would have found that most of the MPs here are incredibly indignant about exactly the same people that you are fighting for, the ordinary constituent in our case, who have had bad things happen to them and we are really wanting from you, and getting it now actually, what we can do about this. What can we do? So I am interested in the organisation structure that you are feeling your way around really and that is what we are doing. The PCC, I think just about every person now who has been discussing it who does not have a vested interest says it has got to be changed, there are too many things wrong. So we have noted your comments on that. Who do you think should actually fund that? If there was a nationwide structure your idea of the good people, a Mo Mowlem type person, that would be really good PR for this changed image but to maintain it over a number of years, how would you go about putting the structure in place?

(Mr Clifford) Well, with difficulty. As I say, you have got to try and come up with a few people that are not only of that perception but whose hearts and minds are in the right place and who also have an understanding of the media and the power of the media.

But structurally how would you come up with it? Do you have one in each city and you get the great and the good who are to do a particular region? Is it national figures -

(Mr Clifford) I think that it might be a question that - I mean, I have not thought this through, I am just here to have a chat - you would need to come up with a list of people and then put that in front of the public and the public would let you know those they have confidence in. It would be very easy for me in two or three weeks to come up with a dozen people like that. As to what the public think, that is another matter.

I am with you actually, I want something like that and I agree with you that it has to be up front quite quick. So the situation a colleague outlined where someone was doorstepped for three days and they just should not be, that sort of person has a quick redress. The problem is, and you said it yourself, what is legitimate? Where is that boundary between what is legitimate and what is not? We had another expert witness talk about proportionality. The person who makes that decision between what is legitimate and the proportionality argument is going to have to be not the great and the good but an expert, which brings us back to the legal thing which you do not like.

(Mr Clifford) Yes, and you are not going to get it perfect every time but I think that a chance is better than no chance. I think that if you have got a collection of people, media and others - I keep coming back to Mo Mowlem because she epitomises the kind of person I am thinking of - they have got a chance and right now they have got no chance. So that is an improvement. It is not going to be perfect and I am sure that you can tinker around with it, this does not work so you need to introduce that, but you have got to start somewhere. I do not say you are going to start with a system which in two or three years' time will prove to be perfect in every situation but I do think that first of all if you have got a system in place around the country where there is a person to go to and that person can react very quickly, the other problem then is does everything have to go before them or do you have an ombudsman who has the power to act in certain areas and certain situations?

Who should pay?

(Mr Clifford) I suppose probably the Government should pay because you are protecting the general public and I think it is a vote winner for the general public. It will make them popular and that seems to be an important factor in politics and politicians making decisions. I think then the money that you get back from the media by imposing fines for the kind of things they get up to would very quickly make it self-funding.

Ms Shipley: An interesting point. Thank you.

Mr Flook

Mr Clifford, you said earlier that you do not take money from some of these cases that you are doing, i.e. it is pro bono, like a lawyer. Is that a fair assumption for the moment?

(Mr Clifford) Yes.

But sometimes I presume there must be an opportunity whereby there is a story that you could sell for a sum of money?

(Mr Clifford) Yes.

Would you then charge or take something for your time and expenses?

(Mr Clifford) Yes. You have got to look at every situation. If someone comes to me with something and out of that there is something there which is a huge story I would say to them, "Right, if you want to do this I would take 20 per cent." It has never happened yet but it could happen and if I found a way of making money I would be very happy to. But the way I look at it right now is that the people who employ me pay me fortunes so they can subsidise this.

Do you approach prospective pro bono clients?

(Mr Clifford) I do not approach anybody.

They always come to you?

(Mr Clifford) I have never approached anybody in my life, whether it is a client for bringing out a story - I do not chase them like newspapers do. Someone comes to me. Sometimes I get involved, sometimes I do not, whether it is a public relations, it is a company, it is a bank, it is an organisation, it is a star or it is a member of the public with a story. A lot of people came to me with stories about politicians I did not bring out because they were not lecturing us about family values, those politicians.

I am sorry to ask what might be obvious to you but do they ring up 192 and say, "Max Clifford, please," or whatever number it is this week?

(Mr Clifford) No. This is what I am saying, they know my name and it is easy to find. I am in the phone book.

But it is that way, they probably do ring 192 and say, "Max Clifford, London"?

(Mr Clifford) Yes. I do not put pieces in papers every week saying, "Have you got a story? Phone such and such." The newspapers do that.

I know it is not just you, there is Max Clifford Associates, you have got family members who work for you as well. How many in total work for you?

(Mr Clifford) It is a very small company. There are eight of us.

But there is only one Max Clifford and there is only one name as such. You seem to be giving the impression that anything is better than that that exists at the moment or the PCC is a waste of time?

(Mr Clifford) No, that is not what I am saying. What I am saying is, it leaves an awful lot to be desired. That is what I am saying.

That was my point but I did not want to put words in your mouth.

(Mr Clifford) Not that it is totally worthless. It leaves a lot to be desired, particularly from the public's perspective.

I was really getting round to asking how many other Max Cliffords could there be?

(Mr Clifford) You could answer that better than I could. I work on my own, I am on my own and I do not know.

Protecting the interests of the individual against bid, bad journalists. Do you think there could be more, should be more?

(Mr Clifford) Well, I would hope so, yes. Unfortunately, I do not know anybody else who is doing what I am doing.

I have to say I like your idea that an apology should be printed by the newspaper and be at least half the size of the original article.

(Mr Clifford) Well, it would certainly sober up editors.

Would you agree with adding to that that actually that may be quite difficult to achieve but that money could be spent wisely putting those ads in other papers to embarrass that paper for having pulled someone through -

(Mr Clifford) Yes, I think that that is a very sobering thought for an editor. At the moment there is no one. They know they cannot stand up to them. The amount of people who go to newspapers and then phone me and say, "We agreed X, Y and Z and they've just totally turned me over." "What did they say to you?" "Oh, 'If you don't like it, sue us.'" No chance. It will not happen. It happens all the time, all over the place. Sometimes it is people's own fault but often it is not.

How many of those sort of cases a month? I know it may be difficult.

(Mr Clifford) There are probably a hundred a month that I get called on but a handful that I get involved with because, as I say, I do not have any time.

Mr Flook: I understand that. Thank you.

John Thurso

Could I ask one very short question. Do you distinguish between the broadsheets and the tabloid in what you have been saying?

(Mr Clifford) Yes. I think the broadsheets are more interested in the truth. But having said that, it is not a perfect scenario. What I find is, particularly with some of the big scandals I have brought out, the sleazy stories I have brought out, the tabloids will blast them everywhere and then the broadsheets will say "How disgusting" while printing all the details. So it is a mixture but generally speaking they would be far more interested from where I am coming in the truth.

Could I therefore, on the basis that like anything human there are degrees of perfection and imperfection and broadly saying that you think possibly we are in agreement that the broadsheets are trying to do a more serious job, you made the comment that there should be legal aid for all libel. Would that not put an intolerable burden on those sections of the press which are generally trying to deliver in the public good? I am thinking obviously of, for example, the Archer case.

(Mr Clifford) No, because it was up to Max Clifford to prove without any shadow of a doubt what he was up to and I did. He tried everything to stop it and he has got a lot of clout and he had a lot of powerful friends. That is the game obviously that goes on. Those people do not need looking after. They are more than well looked after. They have got far too much protection as it is. A lot of them are still getting away with murder.

But if anybody could bring a claim, which is what legal aid would mean, would there not have to be some kind of filtration process so that you did not get a stream of vexatious litigants?

(Mr Clifford) Yes, sure. I am the first to admit I have not thought this thing through. This is your Committee, this is your situation. I am just here to tell you my experience and my views and obviously these things have to be developed carefully. The problem I have is that so many people who seem to be making decisions about the media have not got a clue as to the realities of the media or they are too frightened to stand up to them because they need them. Politicians need the media. You do not want to go against them. You want to be popular. You want to be liked. You are in an impossible position.

John Thurso: Thank you.

Chairman: I think that is a very good sentence on which to end your evidence to us, Mr Clifford. Thank you very much indeed.

Memorandum submitted by Mr Paul Dacre

Examination of Witnesses

MR PAUL DACRE, Editor, Daily Mail and Editor-in-Chief, Associated Press, MR ROBIN ESSER, Executive Managing Editor and MR EDDIE YOUNG, Legal Manager, examined.

Chairman: Gentleman, I would very much like to welcome you here today. I know you have gone to some considerable trouble to be here and that is appreciated. I need to make the point that the Minister is winding up in a debate on whether the BBC should come under the National Audit Office. The division bell will very likely ring soon and I fear then we shall have to interrupt this in order to go and vote so I apologise for that inconvenience and discourtesy right away. Again, thank you very much indeed for being here this afternoon.

Mr Bryant

You were in the room, I think, and you probably heard Max Clifford say that we have the most savage media in the world. Do you count yourselves as noble savages or wild savages?

(Mr Dacre) Well, I was not in the room and I did not hear his remark and frankly it is worth a good laugh but I would possibly riposte that we have a very good press in this country, one that I am very proud of. It is a press of enormous energy, a press of enormous diversity and veracity. More people read newspapers in this country than most other countries. You, as representatives of democracy, I should think should be very pleased at such an energetic and diverse press. It is a press that has its faults, everything has its faults, but it is a press that I am proud of and I do not believe it is particularly savage, no.

Which are its faults?

(Mr Dacre) It can occasionally be inaccurate. It can occasionally be insensitive. It can occasionally behave in an overly competitive fashion. But it has also great strengths, great freedoms and violent abusers, as you know.

Chairman: Before we proceed, could I just remind the Committee this inquiry is into privacy and media intrusion. It is not an inquiry into the general standards of the press and I would be grateful if the questions could be focussed on the subject of our inquiry.

Mr Bryant

One of the things which has been intimated by other people today is that one of the faults of the modern media is a failure to recognise a right balance between the freedom of the press and the privacy of individuals. The PCC Code of Practice refers to a reasonable expectation of privacy. How do you understand that?

(Mr Dacre) Well, as you know, we have the Code of Conduct on the PCC. That defines people's reasonable expectation of privacy as regards pictures and situations where they might expect to be heard. My understanding is that if they are in a public place they do not have a reasonable expectation of privacy. If they are in a place, say their own garden that cannot be overlooked, that is a place where they should have every right to have privacy.

One of the phrases that we have debated some fair amount this afternoon is the phrase that is used very regularly "of the public interest" and some people have been trying to draw a distinction between that which the public is interested in or that a newspaper can make the public interested in and something which is to the benefit of the public to know. Do you draw that distinction or do you think that is a false distinction?

(Mr Dacre) Well, it is a very big question, is it not? I wish your question was a little more specific.

I am sorry, I ask the questions that I want to ask.

(Mr Dacre) Of course you will, but I am saying it is a little difficult to answer because they are such huge questions and one could write a treatise on them and I am trying to give you a brief and sensible answer. Expectations and what would interest the public. Let me say first of all that unless you produce a newspaper that interests the public they are not going to buy you. I do not have a five year term of office like you. I have to persuade the public every day to go out and buy my newspaper, often in the rain and pay 40p for it, therefore I have to interest them. I have to provide material that they will find interesting and the Daily Mail does that by producing a brand of serious journalism mixed with celebrity gossip and human stories. That enables us to have a very large circulation and I would argue engage in very serious discourse with our newspapers. Therefore, I as an editor have to decide what interests the public and how far we can go within the Code. Whether it is of public interest of course is a different matter. How far can we go in interesting the public without offending the Code and whether that is therefore in the public interest? That is what the Code is there for, that is what the PCC is there for and that is what they have to decide. All I can say is we have the Code. We observe it very, very carefully. We study every story in the picture in the light of that Code and we decide whether it is in the public interest in the light of that Code.

Mr Bryant: Let me give you a very specific instance. It is slightly conflated between two stories just to protect the privacy of the individuals concerned and it is a case that I put to another witness earlier of a family who have a child with a particular emotional and physical illness which is of interest to the newspaper. The news people turn up at the door. They have heard about the child, a young child, a seven year old child. The parents consent to the newspaper doing an interview on the understanding that the child will not be named nor where they live, except to say in South Wales, and that no photo will be used although a photograph is taken at the time just for the internal purposes of the newspaper they are told. All of this does appear in the newspaper, the name of the child, a photograph of the child, the school that the child goes to and the town where they live, all of these details. How would you make sure that that did not happen or do you think that it is legitimate for that to happen because it is of public interest?

Chairman: You and your colleagues are going to have a fair amount of time to ponder your answer to that question because we have to go and vote. Could everybody be back as soon as possible, please.

The Committee suspended from 5.35 to 5.45 pm for a division in the House

Chairman

You were going to say before we were so rudely interrupted?

(Mr Dacre) Well, through the bell I think I heard the question. It is an outrageous case. If the PCC had been adjudicating on that I think they would have found the newspaper concerned guilty on several counts. Health, as you know, is one area that the PCC is very strong on and they would have found the paper guilty on that. They are very tough on children and identification of children without the parents' consent. If the newspaper did that that was wrong and I condemn it utterly. If the newspaper and the photographer had said they were going to behave in one fashion and then did not and took a picture and then said they were not going to, that again would have been condemned. I have very little sympathy with the case but now you are going to tell me something that is going to catch me out, are you?

Mr Bryant

I am not in favour of a privacy law myself. On balance I would much prefer to see a tough PCC.

(Mr Dacre) But you do understand the PCC would have come down terribly heavily on that case.

Yes, but they have not, this is the difficulty, on this case.

(Mr Dacre) Well, from what you have told me I find that astonishing.

I find it astonishing and the family finds it astonishing.

(Mr Dacre) I have sat on the Commission for four years and I just cannot believe, the way you have told that story, that the Commission - on what grounds did the PCC not come down?

They will not tell me because they do not have to provide grounds and this, it seems to me, is one of the difficulties. There are two questions that follow on from that. It is unfair in a sense, as you point out, to put a case in front of you which is not your newspaper.

(Mr Dacre) It is very difficult, yes.

But there are two issues which arise for me. One is that half of me could not care less what you do about public personalities but what I do care about is the constituents of mine.

(Mr Dacre) I could not agree with you more.

So what I want to know is what you do to make sure that something like that does not happen?

(Mr Dacre) All right. I do not want to labour the point but I do find it astonishing that the PCC (a) has become involved in that, and (b) if it had that it would not have adjudicated in the most censorious fashion against that paper, and that is based on sitting once a month, twelve months a year for four years on the PCC. So I do ask you to perhaps go back there and get it re-submitted to the PCC because I just find it astonishing. Anything involving children and health they are terribly, terribly tough on.

So what do you do?

(Mr Dacre) On our paper, as you know, every newspaper man working for the Daily Mail Group has a contract. As a matter of contractual obligation the Code is written into his contract. I have a large and very capable managing editor's office which keeps all the journalists memoed about developments in the PCC, in the Code and the journalists are constantly reminded when other newspapers offend it that we should not make the same mistake. Every decision that is made in the news room is made in the light of the Code. Our lawyers read copies assiduously for the PCC Code as they do for libel. If I have got one job today it is to persuade you - you are sceptical - ladies and gentlemen that the press do take the PCC very, very seriously and the Code is now very much part of their lives. It is in the psyche and the consciousness of a newspaper at every level.

One of the issues then is having broken the eggs you cannot put the eggs back together. In most of these cases recompense is when it is an ordinary family whose lives have been torn apart by some foul play, which might not be the intention of the editor but nonetheless has come to pass. One of the things that the PCC can insist on is due prominence for the rebuttal or the reply. For instance, today in the Yorkshire Post the front page of the Yorkshire Post has a big photo of Matthew Kelly and immediately next to it has the word "Guilty" and because the Yorkshire Post is a broadsheet it is folded so that is all you can see. You cannot see that underneath the photo of Matthew Kelly there is "No charge" and that the "Guilty" actually refers to a completely different story. But I have seen instances where the due prominence that is given to the reply is done with such responding arrogance on behalf of the newspaper that it is effectively putting two fingers up to the PCC.

(Mr Dacre) Well, I think that is very regrettable and all I say in my group is if the PCC finds against us we carry their full adjudication, which can often be of considerable length. We do so with prominence. For instance, the Evening Standard recently did a serious investigative piece on a school, what life was like in an inner London school, and inadvertently they identified a couple of the children in the case. The PCC investigated, adjudicated, "You cannot identify children. The case upheld against the Evening Standard." Although it was a serious piece of journalism the then editor carried their adjudication in full, in fact I have got it here. So that is the kind of prominence we gave it and that is not done in a begrudging fashion. The editor also wrote a leader on the day accepting they had made a mistake, apologising to the children and accepting the PCC's adjudication unreservedly. My experience certainly at national newspaper level is that people take a punch on their nose, which is why the PCC has such clout. It is a very shameful moment but it is one we recognise we must do and it is not one that we like because too often our critics, our competitor papers, make great hay of it as well.

Mr Bryant: Thank you.

Chairman

Before I call on Frank Doran, could I put this question to you, Mr Dacre. It follows from Chris Bryant saying that he was not in favour of a privacy law. Everybody, whatever their approach to these matters, is in favour of the principle of self-regulation. Is there not now though the problem of the Human Rights Act and the fact that certainly anybody with means can use the Human Rights Act as a way of seeking to enforce and gain damages for an alleged intrusion into privacy? What we have got, and it is now building up in case law, is a series of judicial decisions which are making a privacy law which has not been made by Parliament. So is it possible simply to go back to the issue of self-regulation when a lot of people for whom self-regulation is not enough can now use the Human Rights Act to get their own private privacy law made?

(Mr Dacre) I think that is a very good question and of course this is an area which is being defined all the time as the courts consider this matter. I think the first thing to say is there was an expectation when the Human Rights Act came in that the judges would fashion a privacy law. I have to tell you that so far they have been extremely cautious about this and shown that they actually feel the best place for privacy to be adjudicated on is in the PCC. That is not me saying that, that has been said at the High Court and the Appeal Court. If I could just make a couple of comments. Mr Justice de Silva during Anna Ford's judicial review of the PCC ruling on her complaint about the Mail and Okay! running pictures of her on a beach said: "The type of balancing operation between privacy and freedom of expression conducted by a specialist body such as the Commission [the PCC] is still regarded as a field of activity to which the courts should and will defer. The Commission [PCC] is a body whose membership and expertise makes it much better equipped than the courts to resolve the difficult exercise of balancing the conflicting rights of privacy and of the newspapers to publish." Another very significant recent case was testing the Human Rights Act in a ruling which overturned an injunction preventing the press from naming the footballer Gary Fitchcroft(?), who, as you may recall, although he is a married man had been linked to two ladies of a lap dancing persuasion. In the Court of Appeal Lord Woolf gave the verdict: "Once it is accepted that the freedom of the press should prevail then the form of reporting in the press is not a matter for the courts but for the Press Commission and the customers of the newspaper concerned." He added: "This is the position irrespective of whether the particular publication is desirable in the public interest." He went on to say: "In many of these situations (stories of sexual infidelity) it would be overstating the case to say there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so legitimate interest in being told the information. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in there would be fewer newspapers published, which would not be in the public interest." So piece by piece the courts seem to be indicating that they believe the PCC has shown itself to be trustworthy in this area, that it has case book now stretching back over many years which shows it has behaved in a responsible fashion in the area of privacy and that they are indicating they are happy that this is an area the PCC adjudicates in.

That is one judge, Mr Dacre. It may well be that other judges would take a comparable view; other judges might not. Other judges might be on a crusade.

(Mr Dacre) But those are the two cases -

Your newspaper recently published an analysis of the judgments of Mr Justice Collins on asylum and it could be argued that he is on some crusade to which he has appointed himself. In the same way it might well be possible, whichever way it works, if cases are dismissed under the Human Rights Act then privacy law is being made through the dismissal of cases as well as through the upholding of cases. We have got a very prominent case before the courts now to which we must not refer because it is sub judice but whichever way that case is decided another chunk of privacy law will be being made in the courts.

(Mr Dacre) I accept what you say, Chairman, but certainly the early signs from the judiciary are that this is an area where they believe they can trust the PCC and an area they choose not to become involved in. I do not know. As you see, it is an organic thing, is it not? We will find out. Certainly I think it will be a sad day if it does happen in that way.

Mr Doran

The Chairman has pre-empted the issue I wanted to pursue but I will take it on a little bit further. I have got a little preamble but I promise I will come to the point. It is quite clear that you run a very successful newspaper and a very successful company and in many respects it is an opinion leader and we all recognise that. I have some experience of the regional press because my two local newspapers, the Aberdeen Press & Journal and the Aberdeen Evening Express are part of the stable and quite clearly from your own evidence and the way in which you have answered questions today and my own experience of the local papers there is a firm commitment not only to the PCC but the training which you have referred to. You have made the very strong point that it also appears in every journalist's contract. So that gives it some force on the ground. But following the point the Chairman has made to you, I just wonder whether you are building a wall around the PCC when everything else around you is changing because while I accept that the judgments or the extracts from the judgments you have read out may suggest that the judiciary is moving in one particular direction I think from the legal evidence we have heard earlier - and I used to practise as a lawyer and I have been looking at the cases - what I see is quite a bit of uncertainty. On the one hand you have got the introduction of the Human Rights legislation which has created uncertainty in all sorts of areas and we are only just now coming to terms with it. But you have also got decisions of the European Court of Human Rights and there is one particular decision, the Peck decision, which I am sure you are familiar with, where the court decided in favour of Mr Peck because the British system did not offer proper recourse and they mentioned specifically areas like damages, etcetera. It seems to me that there are two problems here for the newspaper industry. One is the general uncertainty in the law at the moment. It may go one way, it may go the other. I accept it is possible it may go in the direction which you have indicated from the extracts but given the fact that the UK Government tends to respect the decisions of the European Court it may be more likely to go in the other direction. I would really like you to take your comments a little bit further forward because the situation is moving all the time. This Committee is looking at this situation fresh, this is our first day of hearing, but we are hearing and seeing a lot of conflicting evidence and the question I am particularly concerned about is, is defence of the PCC in its present form in the best interests of the newspaper industry?

(Mr Dacre) You have covered a lot of ground there. Firstly, at the risk of being presumptuous, I would ask you in all humility to read the PCC's submission to this Committee because it is a tremendous document. I have read it myself.

I think it is five hundred pages.

(Mr Dacre) I know, that is why I am saying have a look at it. The fact that it is five hundred pages shows how much work has gone into it and how much work has gone on in the last ten years, the growth of the PCC, which is not the organisation that the Press Council was twelve years ago. A lot of mistakes have been made, an awful lot of things have been learned. What I would guess from your question is you think that the PCC has not got enough teeth and therefore we are somehow -

I am not saying that, the European Court is.

(Mr Dacre) All right, and therefore that somehow we are fooling ourselves by just defending it if we do not accept the realities of what might come. First of all, I would say that the PCC's prime area of responsibility is to ordinary people, it is to protect the rights, the freedoms and the privacy of ordinary people. Once you accept that you realise the great dangers if you take the PCC's ability to fine you, introduce some kind of method of punishing newspapers into a whole different area. Let us examine fines for a moment. The PCC totally depends on goodwill. It is a body there which is designed to solve disputes, correct complaints, to improve press standards and by consensus to encourage the press to observe our code of ethics. If you introduce fines you are bound to change dramatically the whole goodwill nature of the PCC. If I know as a newspaper that I am going to be fined I will not cooperate in that goodwill measure. Everything will have to go through lawyers. The PCC's response to me will have to come back by lawyers. What is a quick and speedy mechanism at the moment (it takes about thirty-one days for the average PCC adjudication) - incidentally when lawyers are involved in a PCC case it takes double that amount of time - so it will take much longer and justice delayed is justice denied. It will also, as I say, change the whole nature of the relationship between the media and the Commission. It will also hurt small newspapers who cannot afford the fine. It will probably go out of business and it will be like swatting a fly to the big newspapers, and indeed you might even have a situation like you have in France where newspapers boast about the number of fines they have paid; in other words they are great celebrity busting stories. But most of all it will be the rich who will benefit because they will be the ones who will be able to afford the lawyers, to fight for the fines. The poor people will not be able to afford the lawyers to fight because once they start asking for a fine we are going to submit legal submissions, they are going to have to come back with legal submissions and ordinary people will be denied quick, free justice. So I hope that goes some way to answering your question.

It answers one part of the question but I am not sure it is the issue. I have got the court judgment in front of me and at paragraph 109 it says: "The court finds that the lack of legal power of the Commissions" - that is the Broadcasting Commission as well - "to award damages to the applicant means that those bodies could not provide an effective remedy to them" -

(Mr Dacre) The Broadcasting regulations can fine -

But I am just making the point to you and it seems to me there are two routes we can go down. Either the Government can introduce legislation to remedy this defect which the European Court has found in the UK system - because I would imagine, like most editors, the last thing you want is to be constantly trouping to Europe because the British system does not change to accept this remedy - or else the system changes and the PCC remedies some of these defects. It has the power to provide a financial remedy to somebody -

(Mr Dacre) Most people who come to us do not seek a financial remedy, they really do not.

No, I understand that, but some do. One of the major difficulties and why we have mounted this inquiry is that the ordinary working person cannot get a remedy whereas the stars and the very public figures can.

(Mr Dacre) I would argue that the ordinary people do get more of a hearing with the PCC than the famous and I would suggest to you that if you have a privacy law or if you have fines newspapers will take the attitude, especially with a privacy law, that they are only concerned about dealing with the rich, the powerful and famous, the celebrities, because they are the people who are going to come back to them in a court. Newspapers do not employ very good lawyers. I am afraid they will take the attitude that the goodwill and self-regulation thing regarding ordinary people will go by the board and therefore ordinary people or people not generally in the public eye will be the sufferers there because they do not have the money or the lawyers to represent them.

But do you accept that scenario, that the industry may be forced into change?

(Mr Dacre) No, I do not accept that. I think the PCC is showing that it can police the press very effectively and I think every year that has passed it is doing a better and better job.

Could I raise one specific point with you as a final question. In one of the pieces of evidence that I got, all the members of the Committee got, was from the Scottish Police College at Tolyalen(?) and it was about the role of police officers as counsellors. Tolyalen College is the main training college for police in Scotland and they train family liaison officers and one of the areas they have to be trained in now is stress counselling for families who have been subjected to what is described as "tremendous stress and hurt through inappropriate actions of the media". This is a general point, it is not a specific point. I understand that because clearly, particularly given the high profile that many cases now have in the media, the pressure which some families are subjected to, I think they will welcome very much that professional help from the police. But one particular issue in this piece of evidence we have received which concerned me is the final paragraph of the letter suggests, and I will read it out: "A final but significant point is the developing trend for the family liaison officer," that is the policeman who has been trained to help these families in these difficult circumstances, "to be targeted by the press during the investigation. Reports are being made of officers being followed and photographed and their families being compared to those of victims." The author of this report concludes: "Officers are less likely to volunteer for the role or their welfare could suffer if the press targets them and their families." That strikes me as a very, very disturbing development and I am sure as an editor it is not one that you would support but clearly this is someone with not vested interest, a police college in Scotland, saying that this is now an issue.

(Mr Dacre) Clearly I deplore that. I just do not know about it. Certainly you have a very competitive press north of the border, as we know, but I would be surprised if that is happening and I would not defend it for one moment. But going back to the need for stress counselling, I have an old-fashioned view that stress counsellors cause more stress but seriously it is a problem that if there is a big, big story these days you have a situation where you can have five or six crews from the BBC or different BBC programmes, ITN, ITV channels, the radio channels, the local newspapers, freelance agencies, and I think that is something that the PCC should be looking at in the future. All I know is that when the Press Complaints Commission does get knowledge of that, someone rings up and says, "This is not right," we all withdraw. But if a child has gone missing or it is an important child murder case there is huge national interest in that and whether you like it or not the press can do an awful lot of good in that. In the case of Amanda Dowler the parents, grief stricken, probably did need a lot of help but they needed the press and the press were very helpful with the police.

Chairman: I am really sorry, Frank, but I have got seven other people who need to ask questions.

Alan Keen

The Chairman will be glad to know that you have given answers to the questions I was going to ask but if I could jump on a little bit. When you started you gave a really robust defence of the press and we agree with that. I thought from the first questions you answered to Chris Bryant you looked as if you were slightly on the defensive as if you thought we were going to attack you. Our interest is really just to listen to people both on your side of the argument defending the PCC strongly and to listen to those who are very critical of the press. The previous member of the panel was highly critical of the press.

(Mr Dacre) He has made his living out of the press, a very good living, for many years.

He said you were a law unto yourself, which I take as a compliment when that is used most of the time. There is a lot of heavy criticism of the press. You say the PCC is doing a great job. How do you want to get rid of that criticism that is there because we presume some of it must be justified? Even you must presume some of it is justified. You have really not given way at all on the PCC's action and power. Is there anything else at all that you think the PCC should be strengthened on?

(Mr Dacre) Well, I think the PCC can do even more than it is in trying to get its message across to everybody because in my experience there is an awful lot of ignorance about the PCC even amongst journalists and editors of some newspapers. To that end they do do a lot. They have a web site. They have press releases released twice a week. They keep a comprehensive catalogue of all the press coverage that they communicate to anybody who asks for it. They have got a twenty-four hour help line. But I think the PCC has still got a long way to go to get its message across to people. I think we should be responsive to things like privacy and listen to your complaint, and you will be having the PCC chairman and the secretary here later, and I think the Code of Conduct is something that should change and grow and that people should be aware of that. I think the PCC in the past has perhaps made mistakes. I think it may have given the impression that it has been more concerned about the privacy of the famous and the rich. I think that is very unfortunate because I think the great, great dogsbody amount of work done by the PCC and a very devoted staff is to benefit and protect ordinary people and generally, as I say, I think the press itself should actually start defending itself a little more robustly. We are criticised, MPs are criticised but we have a very good message to sing and I would be very, very worried if you gentlemen and ladies recommended more curtailment of the press because already we are pretty curtailed.

(Mr Esser) May I add a little supplement to that, as I was in the room earlier on. There is a hotline. PCC has a hotline and that hotline is available in every telephone book throughout the country and anybody ringing 192 or India can get it at once and I can assure you that the director of the PCC and the chairman of the PCC have even better access to even more editors than even the great Max Clifford, instantly at any point of the day or night! That message certainly needs spreading but anybody, any of your constituents can get that number and they can get direct to the PCC and talk to Mr Dacre any time.

Chairman

Do you think it would be a good idea for every newspaper to publish that, Mr Esser?

(Mr Esser) We do carry it twice a week.

(Mr Dacre) The Daily Mail carries it twice a week and so does the Evening Standard and the Mail on Sunday. We have those adverts in twice a week. We could do it more often. We will do if you think it is a good idea.

Alan Keen

It would be a good idea for you to give one or two of your exciting stories to the PCC and they could put it on the web site and more of us would read it. We might have read more of the five hundred pages if there had been an exciting story at the front of it as a hook! The question I asked Max Clifford when he gave the response, "Paul Dacre is a law unto himself," was are there any restraints through the structure of the companies, the owners and the editors, or are you a law unto yourself and you do what you want? Is there a standard -

(Mr Dacre) I missed that. Max Clifford said I am a law unto myself?

(Mr Esser) He said you are a law unto yourself.

(Mr Dacre) I see. Well, I am not a law unto myself. (a) I work for a company, but (b) I am a law unto my readers and if I do not connect to my readers' values and reflect their interests and aspirations and if I offend my readers they will stop paying 40p a day for the Mail and if that goes on in great numbers I will soon lose my job. As I say, I have to stand for election every day of the week, not every five years, and I am not a law unto myself because I am fully signed up in my own contract to the PCC and its Code of Conduct. I do not know what more I can say about how seriously we do take the PCC.

Alan Keen: No, you have answered the earlier question.

Derek Wyatt

Good afternoon. Has the PCC ever been audited by an outside body?

(Mr Dacre) The judges audit us, to use the word loosely.

But not the NAO or not another agency?

(Mr Dacre) No.

You have never asked for an agency to look and see how good or bad you are?

(Mr Dacre) No, but the judges were subject to judicial review and obviously the cases that come up subsequently before the judges will be examining the same areas. I presume you are hinting at the kind of OFCOM type of audit?

No, but I am happy to come to talk about OFCOM. No, I was not, I was just asking whether you had ever been audited?

(Mr Dacre) I am not aware of it.

So how do you know how good or bad you are? You can wait for a judge to make a judgment but that might be one year or seven years later.

(Mr Dacre) Well, I will tell you how I think we know because we employ very, very distinguished lay members who are in the majority on the PCC committee, always in the majority. Some pretty distinguished people have sat on that committee while I have been there. It is an independent appointments commission chaired by three very distinguished people. There is an independent chairman. We have just appointed the Ambassador to Washington, Christopher Mayer(?), to be the new chairman to replace Lord Wakeham, who by no means was a slouch. Those people seem to think we are doing a fairly good job. I think I prefer that to something like OFCOM, who would I presume offer some kind of auditing service in the sense you mean.

On the answerable part, you and I apparently both belong to professions where the public do not think much of us. We are normally at the bottom of most polls.

(Mr Dacre) I think journalists are just above politicians.

Derek Wyatt: It depends on the poll, I think.

Chairman: We are neither of us in professions, we are both of us in trades.

(Mr Dacre) Yes, you are a socialist too.

Derek Wyatt

What I am getting round to is that we have had to move, because of what happened in the early 90s, to an electoral commission, to an independent inspector really of Parliamentary activities. So although an answer was given just a while back that actually we regulate ourselves that is less true and it is for the better of politicians, I think, so I welcome that. So if there something wrong with the fact that the PCC should not include any editors? Why can it not just have lay people only?

(Mr Dacre) Well, you yourself brought up your own regulation and, forgive me, I think it makes some very useful comparisons between your methods of regulating yourself and ours. You have a Commissioner for Standards and Privileges. The last one you had was a lady called Elizabeth Filkin(?). She herself referred to the Committee for Standards and Privileges many cases. The committee brushed most of them aside or just issued a tap on the wrist to the people. On Peter Mandelson the committee decided to take no further action. In the case of John Prescott when he failed to declare his RMT subsidised flat in the Register of Members' Interests the committee completely exonerated him. In the case of John Reid, whom Filkin said had attempted to intimidate witnesses during her investigation into his paying Parliamentary funds to his son to work for the Labour Scottish Parliamentary Campaign the committee decided they should adopt a higher standard of proof. Finally, there was the case of Geoffrey Robinson, initially exonerated by the committee, who had to be hauled back in front of them after the Dail Mail proved that he had accepted a cheque from Robert Maxwell. The committee delayed until after the election and then let him off with a token three week ban from the Commons. You subsequently, with great respect, squeezed Elizabeth Filkin out of office. You reduced her successor's role and the number of hours that he or she would work and her staff. The only way that MPs who get into trouble now would come into the open is through the press. It was the Mail on Sunday, my sister paper, who revealed that Michael Trend, the Tory MP, had been defrauding the taxpayer to the tune of £90,000 by fiddling his expenses. To make your last point about why do we have any editors on the committee, Nigel Rix recently called of the Committee for Standards in Public Life that they should create an independent panel headed by a judge to look at cases where MPs disputed the fact. This, the MPs said, would undermine the system of self-regulation. So you yourselves have a total body of MPs judging yourselves. You did not like the findings made by your regulator, you effectively drove her out of her job and reduced her role. The PCC is totally different. We have a minority of editors, a majority of lay distinguished members, we have a large secretariat full of very dedicated people and we have an independent chairman.

Okay. Let me give you this example, which is a mobile phone. Before the five 2G and the four 3G operators paid for ICSDIS, which is the same as the PCC, but they cannot appoint a single person from their companies to actually regulate themselves and they have the capacity to fine as well, which they have done. What is wrong with that?

(Mr Dacre) All right. Well, let me try and answer that for you. If we can go back to another parallel, the television regulators are allowed to fine television companies and have done so to huge amounts in the past and people keep ringing up and saying, "If television regulators can do this, why doesn't the press regulator?" Can I argue passionately that you are talking about two different things. Television is a monopoly, okay? The BBC is a state monopoly. I would argue in my more cynical mood that it is a state monopoly that has now been colonised by New Labour. It has appointed a chairman and a director-general, both of whom are Labour Party donors and many people think the BBC is very party free. It is a state monopoly. The independent companies are monopolies. They take a rare finite resource, the airwaves, and there is an auction by access to those airwaves and they beam them into your home whether you like it or not. Newspapers are totally different. They have no monopoly whatsoever. Anyone can start a newspaper. Many, many people start it and have failed. Newspapers come and go. Most of them die eventually. They only survive by connecting with their readership, by representing their readers' interests and reflecting their aspirations, guarding them against injustices and things like that. If those newspapers do not connect with their readers they will not survive. It is called freedom of the press, freedom of expression. It has been a sacred principle, the printed word, for four, five, six hundred years. You take that freedom of press away, that right for the newspapers to represent their people and you will be bringing cheer to everybody who believes in authoritarian regimes everywhere. The press needs to connect with their readers. They need to represent their interests against over-mighty authorities. If they cannot do that you will be curtailing the press.

Miss Kirkbride

There is a number of questions I want to ask but just following up from that, Mr Dacre, you are right to say that the press is not in a monopoly position and there can be other entrants to the market. But that is only one driver of your market. The principal driver of your market is within the answer to your first question, which is to say you have got to make something which is interesting to your readers.

(Mr Dacre) Correct.

Therefore the temptation for you to deal in prurient interest is pretty overwhelming, I would have thought, in fact it would be fair to say that the Daily Mail is a complete master at it?

(Mr Dacre) I would not accept that and it would not be fair to say that.

Well, as I am your target market and I read you pretty much every day along with most of my female relatives and friends -

(Mr Dacre) Well, in that case you must be guilty of prurience yourself!

Nevertheless, I think it is an observable point. So you do have an interest in invading people's privacy because of the fact that that is basically how you sell; your newspapers?

(Mr Dacre) I would not deny that we have a fairly sophisticated celebrity journalism and that we have a lot of human interest stories. A lot of that celebrity journalism is created by the celebrated industry itself. It is in their interest to create interest in them. That is how they become famous and make very, very considerable fortunes and enjoy very, very high standards of living. If I was prurient to an unacceptable level people would not read the Daily Mail. If you trust in the basic decency of people, which I do, and we have more AB readers than any newspaper in Britain and more ABC readers than the Times, the Independent, the Guardian and almost the Telegraph put together. I trust their decency. If I take things over the limits they will not buy the paper. Why should they if they are decent people? Like you, if I may say.

But potentially the answer to your last question though was that when it comes to a celebrity therefore anything goes because that is how they make themselves rich and famous?

(Mr Dacre) Not at all. No, they are entitled to exactly the same protection of the PCC as a so-called person not generally in the public eye. You would be quite astonished at the extent to which celebrities connive with paparazzi photographs, freelance photographs, to invade their own privacy, to restore their own flagging standing in the public's eyes and I would ask you to bring a degree of cynicism into that. Last week - I do not think it is revealing any secrets, I think it has been published - at the PCC we had the case of a well known Coronation Street star who has spent a lifetime charging the press for intimate pictures, intimate snatched pictures of her, information about her, charging very heavily for that but actually one day a Sunday newspaper chose to take a picture of her in her garden from a vantage point with a long lens and she complained about it and the PCC found in her favour and censored the newspaper.

But despite the fact that there may well be complicity - and I doubt that I would be very shocked actually at the lengths people go to - there are nevertheless occasions when it is not relevant what might be of private prurient interest about someone who is in the public eye and when the genie is out of the bottle and that piece of information is published their reputations could suffer and if nothing else they will also be deeply humiliated and embarrassed perhaps. Therefore, what do you really have to fear about a privacy law, bearing in mind that you are sitting here telling us today that you would not actually do something purely out of prurient interest, you would do it when there is a public interest defence? What do you have to fear?

(Mr Dacre) What I have to fear about a privacy law is that I believe it would destroy the PCC effectively. It would destroy the goodwill and the consensus, which are the prime engines of the PCC, and I keep repeating we are about ordinary people. As I understand it, this is the remit of this Committee, about ordinary people. You destroy the PCC and you will destroy the most effective barrier to defend the privacy and the rights of ordinary people that we have. At the moment we respect and it is ingrained into every journalist that ordinary person's rights must be respected in the PCC Code. You have a privacy law and that will go by the way, I am absolutely sure of it, because the goodwill, the consensus relationship between the PCC and the journalist industry will be destroyed.

But would it necessarily change what is put in the paper?

(Mr Dacre) Yes. I think, I am afraid, cynically - and I hope to exclude the Mail - that more ordinary people's lives would be intruded upon because only the rich and the powerful would be able to afford the lawyers to take advantage of your privacy law. Do not fool yourself. Ordinary people will not be able to. They will not be able to get no win, no fee; insurance premiums will prevent that. Can I just give you the example of Naomi Campbell? I do not know whether you have discussed this already but it is a fascinating kind of parallel for all this. Naomi Campbell goes to court over her privacy being invaded. The case takes eighteen months to reach fruition. It cost her three-quarters of a million pounds eventually. In it her whole private life was put on parade, which is what would happen with a privacy action. Newspapers, combative newspapers, would have a right to bring all that up. Her whole private life was put on parade in that case. In the end she lost. It had created a confrontational situation between her and the newspaper. The newspaper is still taking the mickey out of her remorselessly in the most combative way. If she had gone to the PCC it would have taken thirty-one days, it would have been free, it would have cost nothing, it is all private and confidential and she would have probably won her case. So it is always useful to kind of crystallise it in that way.

So you are clearly a big enthusiast of the PCC but bearing in mind -

(Mr Dacre) Well, because I believe that if we do not regulate ourselves that regulation by a government would politicise the regulation and I think that would be very dangerous, particularly under this present Government, which seems to want to control everything.

Miss Kirkbride: I do not want to agree with you too much because that is clearly very dangerous but bearing in mind that some people feel that it fails on occasions what about suggestions that have been made that we should have like for like, that where you get it wrong, where you humiliate someone, embarrass someone, the same prominence is given to the story that corrects the unfairness that was perpetrated as opposed to the sort of back page two lines because there is not like for like? Would that be a fair way forward of beefing up the PCC?

Chairman: If the person wanted it.

Miss Kirkbride

If the person wanted it, quite right.

(Mr Dacre) I think that is a very good point because quite often they do not.

But they might?

(Mr Dacre) Well, when we carry corrections we often carry it on the same page and with some prominence.

On the front? Have you ever done that on your front page?

(Mr Dacre) As it so happens, the Mail on Sunday did want to do that once, yes. It is not something I would like to encourage but they did do it once, yes. There is the one I have already showed you, the Evening Standard one. It is a right hand page following at the foot.

What about you turning up as an editor to defend what you have done when you are being hauled in front of the PCC? Why should it all be done in letters and a bit sort of behind the scenes? Why should you not be arraigned as an editor to justify what you have done? Would that be helpful?

(Mr Dacre) Before the PCC?

Yes, should you?

(Mr Dacre) Well, I have to write for letters, as you say.

I am sure Mr Esser does it for you.

(Mr Dacre) Well, I have a very good team around me. I suppose that could be explored. I think it would make things much longer and much more labourious and, as you know, the idea is to do these things efficiently. But I am totally at the call of the PCC. They can write to me about anything, and do bear in mind I sit on the Commission as well, although I am not allowed obviously to sit when my own newspapers come up.

Ms Shipley

Child abuse. I have done a lot in Parliament to do with child abuse and I am actually grateful for the media coverage and for the tabloids for putting it high on the agenda. There is a lot of really good coverage and allowing ordinary people to talk about it. It is now an issue, child abuse, in all its many horrible forms. So I think the British press is doing a very good job and I am over in Europe doing bits and pieces as well and the British press is out there at the front breaking down those barriers of silence around this topic. So literally three cheers for the press on that. However, really seriously there is an area of danger, real, serious danger should you name people before due process of the law has been gone through for obvious reasons, the lynch mob mentality, the person may be innocent and have their lives well and truly destroyed and all their family around them in a way that even with your apologies on the front page would not be able to put back together again. Let me just finish, please, because I really value your opinion on this as a senior newspaper person. How do you make the judgment between that and protecting the children? I do not want you to go into what the PCC does, I really want to know how you, as a newspaper person, make those judgments because it is so serious.

(Mr Dacre) Obviously one gave this quite a lot of thought during the News of the World's name and shame campaign and I was one of those who was not overly critical of the News of the World because I was very worried about the danger implications, I genuinely was, the lynch mob thing and I think you would be a fool if you were not worried about that. My limited experience of this area - and you are obviously much more experienced than I am - the News of the World was articulating the terrible fears and worries of people who live on giant council estates who do not have political representation, who do not have access to newspapers and lawyers and this is clearly a problem that does afflict the children on those estates much more probably than it does in middle class suburbs. The News of the World is predominantly a working class paper and I thought in that sense its actions were defensible. I cannot give you a blanket answer, I really cannot. I think I would be very loathe to identify anybody who was suspected of child abuse. If, however, he was arrested by the police I would have no compunction about it because I think that justice must be open. I do not know who was referring to Matthew Kelly earlier. That was terribly regrettable. This man has been maligned and blackened. However, that one abuse does not get round the fact that justice must be seen to be open. What would you prefer, cars rolling up in the middle of the night and them just being bundled in the back and you do not hear of them for two weeks? Well, frankly that is not the kind of justice system I want. We must know about this.

I am kind of feeling my way around this because I come down heavily on expose them, expose them. But there is a danger in expose them, expose them, because the backlash when it goes wrong is enormous and the Matthew Kelly example has done damage to those who wish to protect children because it has devalued allegations -

(Mr Dacre) But what is your answer to that?

Well, I am actually looking to you and all the other witnesses who come in front of us to explore what that answer is. It may be that the answer is to do with the proportionality legislation which exists in other areas, which are not used at the moment as I understand in the area we are now discussing. You are arguing for the PCC and for not having more legislation, not having more controls, and when I am thinking round this I am literally pulled both ways but I do think you, as a senior newspaper person, and others in those very senior positions with something like this are going to have to lay aside some of what you have already said to us to address this because I think this particular subject area, in the same way as the celebrity ones and others, is liable to bring in the sort of public reaction which nobody would want. So how will you progress from here in your thinking about this, because this is going to come up month in, month out, year in , year out because you are doing a good job opening up the subject?

(Mr Dacre) I think the honest answer is we all need to think about it a lot more. If you go back to Matthew Kelly, we have put on our front page the fact that he was innocent today and we actually put the headline "Pilloried".

But do you see my point that although you must do that for Matthew Kelly as an individual, that in itself is quite damaging because then the public is thinking, "But we thought he was," and the whole thing about protecting children is to do with getting the right legislation, the right protections, the guilty people locked up?

(Mr Dacre) Ms Shipley, I cannot give you a simple clean answer. All I know is that justice must be seen to be open and if the police arrest someone a newspaper must have the freedom to report that.

So how would you then within the PCC be asking the PCC to look at this? Because the guidance is not good, you know that.

(Mr Dacre) I know that, but we are all grappling with this area, are we not, politicians as well?

But how exactly would you within the PCC set out to grapple with this because I would like to know and I would like to be part of it as somebody who is trying to legislate, and indeed I have -

(Mr Dacre) I think, and I am on very hesitant ground here, that the Commission would take the position that a suspected paedophile until he is charged or arrested has exactly the same rights as anybody else and his privacy presumably would be exactly the same as Naomi Campbell's privacy and that, from my limited experience because these cases do not come up that often, has been the response. Certainly with prisoners and certainly murderers even the ruling of the PCC is that they must be given the same rights.

Rosemary McKenna

I have to congratulate you on your defence of the PCC and the Daily Mail. It is certainly not a picture that is painted by the correspondents who have communicated with me as a member of this Committee and who have many, many complaints about both, particularly the recourse that they have through the PCC. One case that was made was, for example, in 1998 your annual report said that there were 82 unresolved cases that got to the actual Commission out of 2,862. The suggestion was that many people had given up because they lost hope because of the tortuous process that people have to go through. They want a quick resolve of an issue but because of the tortuous process that people who make a complaint have to go through and get no satisfaction many of them give up and many of them do not have the resources. I am talking about ordinary people, I am not talking about celebrities.

(Mr Dacre) All the complaints to the PCC?

Yes.

(Mr Dacre) Again you are going to be hearing evidence from the Commission's director and the chairman. You must put your questions to him. My experience is that they have been dramatically -

Yes, but the point is you are at the end of the process. You are on the Commission which is at the end of the process. The time it takes for ordinary people's complaints to be aired, to go through all the system -

(Mr Dacre) Thirty-one days is the average.

No, not to get to the Commission. That is certainly not the case.

(Mr Dacre) Well, I think so. They write, they get an instant response. There is a very well staffed secretariat. Read their submission -

Most of them are brushed aside.

(Mr Dacre) Also I think you will find they have done research on most of the complainants and they are recording a higher and higher satisfaction level. They do the poll every year and every year that passes more and more people are saying they are satisfied with the way the PCC handled their complaints.

Well, we certainly have a lot of correspondence from people who are not. However, we will come to that.

(Mr Dacre) Who do you get your correspondence from, from constituents?

From individuals who have written to the Committee. We have a lot of correspondence, much of which was solicited by the PCC because people have actually said to us, "We were asked to write to you by the PCC."

(Mr Dacre) Of course, yes.

But much of it has come from individuals grossly dissatisfied with the PCC, with individual newspapers, etcetera. The point I am making is that I do recognise the picture you paint on balance, however that is something we will have to take into account. You rehearsed the situation with MPs who had been before our self-regulating. I will make a point and then ask you a question. The point I would make is that all of the cases that you referred to had been well rehearsed throughout every organ of journalism in the country, whether it be broadcasting or media. All of that is in the public domain.

(Mr Dacre) Well, by and large the PCC ignores most of -

When was the last time that a journalist was investigated for anything apart from a rival newspaper?

(Mr Dacre) Hang on, madam. A journalist does not make laws, he does not take people to war, he does not waste a billion pounds on the Dome, he does not enact policies that damage education. You have enormous power. You can make or break lives and you do every day.

Yes, but we go to the ballot box where people -

(Mr Dacre) Well, I go to the ballot box every day, as I told you.

No, you do not.

(Mr Dacre) Well, I do.

No. I am asking you - you did not answer the question - compared with the number of professions which are investigated by the press, investigated by every avenue of journalism that there is, every profession in the country will at some point have had someone, several people who have been investigated. Can you tell me a case where a journalist was investigated in a similar manner except by a rival newspaper?

(Mr Dacre) It happens frequently. If we commit libel our editors and our journalists are very heavily investigated by the courts. If we commit contempt of court we have to appear before the highest judges of the land. The PCC does have the right in rare own volition cases to interview and call journalists before it and sit in judgment on them, and it has done so. I think it did so with the Mirror -

Would you then follow on with an expose of that journalist's lifestyle?

(Mr Dacre) I think Mr Morgan at the Mirror would think his lifestyle had been well and truly evaluated in the press. For my own sake, I have had more written about me in other newspapers than I suspect any member of this Committee, apart from the respected Chairman. I am constantly written about in the press and often in a very pejorative fashion, I have to tell you.

Dear, dear.

(Mr Dacre) Seriously, I have been the subject of 6,000 word profiles.

Mr Bryant: Let us have a privacy law then.

Rosemary McKenna

That is right.

(Mr Dacre) I have nothing to hide.

Mr Flook

Mr Dacre, there has been more in our newspapers, there is a lot more frippery than hard news in 2003 than there was say ten years ago?

(Mr Dacre) Certainly in the so-called quality papers, not in the Mail.

I was coming on to you in just a moment.

(Mr Dacre) But I make a serious point. The serious papers are not as serious as they were and I concur with you on that.

But judging by your ability to increase circulation you are obviously ahead of the curve of what people want?

(Mr Dacre) Are interested in reading.

Yes, are interesting in reading. Where is that curve going?

(Mr Dacre) What, my curve?

No, the readers' curve. I would disagree with you and say there are more lighthearted stories in the Mail in 2003 than there were in 1993.

(Mr Dacre) No, I disagree with you. I think the Mail is a more serious paper today.

But relative to say the Telegraph, instead of having the criminal court sessions on page 3 it has now got entertainment rubbish, and so on and so forth?

(Mr Dacre) Yes, sure.

People are more keen on looking into personal stories, private interest stories as readers of newspapers. Where is that curve going, do you think? Where does it stop? Does it stop?

(Mr Dacre) Well, I think you as leaders of the democratic process will have to trust people. They are the electors, they are the readers. When they decide that televison becomes too invasive or newspapers become too obsessed by celebrity journalism they will stop buying those newspapers. I would add, and I am not making a self-indulgent point, the Daily Mail carries an awful lot of serious journalism interwoven between the celebrity journalism. We have great writers writing for us, we give a lot of space to political analysis and that is the sugared pill, the celebrity journalism, which enables us to get that journalism across so I would not deplore it too much.

Is that true of the Mail on Sunday?

(Mr Dacre) You must ask the editor. I would say roughly so, yes.

Moving on slightly and quickly, you make a very strong case for the PCC -

(Mr Dacre) Because I believe in it.

- and a strong case against the press ombudsman but you may not have any say, as the Conservative party does not ultimately have any say. If the Government wants to put something through we can rant and rave about it and you too can rant and rave about it. What would you try and get into a press ombudsman if there were one, what safeguards for press privacy?

(Mr Dacre) I would deplore it from the start. I think it would be a repugnant step. I think it would be political by its very nature. Who appoints the ombudsman? I think if you had an ombudsman you have not thought it through. It would create a bureaucratic nightmare. How would he operate? Who would be his staff? How would he deal with the thousands of complaints he gets? Would you have a local ombudsman? There are 1,300 provincial and local papers in this country. Are you going to have to have an ombudsman for every one of their areas?

They would probably have a regional one, would they not, like a regional everything else?

(Mr Dacre) Well, I think it would be very regrettable if you did because again the accusation would be they were political. I think it would be a very retrograde step and one that I hope this country does not follow, I really do. Who would the ombudsman be, by the way? Would it be the Lord Chancellor or someone like that?

John Thurso

The question I want to ask I want to ask within the framework of what this inquiry is about, which is media intrusion. You have sent us a very helpful letter, which has been a very good agenda for looking at a number of issues. In that you make a very strong case for the freedom of the press and against a privacy law but I think you also accept the other side of the case, that there are indeed responsibilities that come with that freedom and that you accept that there are some rights to privacy and the PCC does a good job in protecting those. Would that be a fair summation of where you are? Equally, you made it clear today in talking to us that the PCC has evolved and is evolving and therefore by definition one can assume it will go on evolving?

(Mr Dacre) Absolutely.

Could I ask you a positive question then, which is how would you like to see it evolving? How would you like to see it becoming stronger in the right way and with the kind of spirit that you think it should have?

(Mr Dacre) Well, I think I touched on one earlier and that was the case of harassment. I am very unhappy about these mob scenes of television cameras and journalists on occasions of grief and tragedy and I think that is an area that the industry should be discussing. I suspect protection of children's privacy will be an ongoing debate. I do not want to refer to specifics but, for instance, does privacy for children stop at school or does it stop at university? I do not know is the answer and a lot of debate has gone on, on that question. I think we have to be responsive to you and the public on the whole area of privacy and if you feel that newspapers are still not quite getting it right then we should examine that. I say it is an organic thing and the stories define how we react to things. All I can say is that I think we have learned a lot over the last ten years. The Press Council was a very flawed body. That was twelve years ago. It took own volition complaints and made a laughing stock of itself as a result, particularly with the Royals. We have evolved a system through hit and miss and mistakes that I think is beginning to work. Have faith in us. I think we will continue to grow and change. A new chairman will probably provide the impetus for that, and this Committee's report of course would be taken on board very much by the new chairman, I am sure.

Could I put a question and it is not that it is my view, it is just that I genuinely would like to hear your view, which is that having listened to some of the evidence this morning a lot of the problems seem to revolve around definitions and what do we mean by "the public interest" and what do we mean by the various rights on either side. At the same time you make the very good point in your paper of the severity of our libel laws. Would there be any possibility of looking at legislation which did not seek to put in place a privacy law per se but sought to re-balance by giving some definitions to help the PCC in their work on the one side and by perhaps looking again at the libel laws on the other side so that there was a new balance that was fair on both sides? Would that kind of legislation not be worth looking at?

(Mr Dacre) I think I am going to lead the Fifth on this. Can you give me any help on that one?

(Mr Young) You mean new rules brought in to define say what we mean by privacy?

The problem seems to be that we talk about a right of privacy but it is a kind of huge great big vague thing. We all know it exists. We can all see at the narrow end when the long lens appears in the bathroom, or whatever, or illegal wire tapping, or whatever it might be. But there is also this great area at the other end where the public interest is clearly served by knowing about something. It seems that at the moment, as has been pointed out before, the work has been done for us in the courts by judges, which is a good thing in many ways but has its difficulties. Can one not envisage a piece of legislation which sought to help those definitions and at the same time looked to a certain extent at re-balancing the power of rich people to almost threaten papers, in other words there is no quid pro quo in there to a certain extent?

(Mr Young) I think one of the problems is that to define privacy is very difficult. People have tried it for many years. I think we have been trying certainly for the last thirty, forty years and certainly much cleverer people than I am have decided that it is almost an impossible concept to define. I know the Caulker(?) Committee tried a definition and people came up with a number of definitions. I do not what happened this morning. I know you had some privacy experts here this morning or this afternoon so I do not know what they said but efforts, certainly efforts by judges as well to talk about privacy in any sort of definitive way has been very difficult and that is one of the problems with arguing for a privacy law because without a good, decent, working definition of privilege it is difficult to know how you could introduce a privacy law. The advantage of the Code is that it is a floating thing, it is a moving feast. Newspapers are supposed to, and do as far as I know, observe the spirit of the Code as well as the letter of the Code, which they certainly would not do probably with a fixed law since newspapers, certainly newspaper lawyers try and read laws literally to see whether they can find loopholes. I say that in the sort of above board sense. But certainly with the Code newspaper lawyers in my experience take a much wider view when they advise and they do try and accept the spirit of the Code and do try and work within that. That is why trying to come up with a definition of something as abstract as privacy is, I think, very difficult. Anybody who says they can do that is a very brave person.

Chairman: Thank you very much indeed, gentlemen. We are much obliged to you both for coming here and answering questions and for giving us so much of your time. It is much appreciated. Thank you.