TUESDAY 1 APRIL 2003

__________

Members present:

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

__________

Memorandum submitted by Broadcasting Standards Commission

Examination of Witnesses

LORD DUBS OF BATTERSEA, Chairman, MR PAUL BOLT, Director, MS JUDITH BARNES, Head of Complaints (Fairness & Privacy) and MR STRACHAN HEPPELL CB, Commissioner, Broadcasting Standards Commission, examined.

Chairman: Lord Dubs, could I welcome you and your colleagues here. I need to make the point that because of these new Parliamentary sitting hours, which several of my colleagues voted for, and will again- which just shows there is no limit to human folly - it is perfectly possible within the next few minutes there will be divisions, in which case I regret the discourtesy to you. Thank you very much for coming to see us.

Derek Wyatt

Good afternoon, can I ask what sort of conversations you have had internally with respect to how you regulate or how you deal with complaints of broadcasting on the internet?

(Mr Bolt) The ITC tend to take the lead in that, not in the specific context of privacy. There are continuing discussions with Ofcom and the ITC about the regulation of content on the internet, or rather the non-regulation of content and how Ofcom is going to make sure with its light touch that it is going on all right. I cannot say in this particular context of privacy, subject to Judith's correction, it has ever arisen.

(Ms Barnes) That is right.

Are you a conciliation service, a tribunal or a professional standards body? How would you describe yourselves?

(Lord Dubs of Battersea) Obviously we have a conciliatory approach but essentially we are governed by statute and we deal with complaints, and we have to achieve a finding as to each particular complaint. Obviously we do a lot of things that would be seen to be conciliatory in a more general sense, we try and take the broadcaster with us when we do research, sometimes we do it jointly. A lot of it is done with their good will, even if they do not like our conclusions in all instances.

(Mr Bolt) We have to act through complaints to be a professional standards body.

Is there a statutory obligation to have more lay members on the Committee?

(Lord Dubs of Battersea) We are under statute run by a lay panel, or a lay commission, which can be up to 15 members. At the present time our strength is 11 members. The essential feature of the way we approach things is that our lay members deal with complaints in panels, the staff may advise but our lay members make the decisions.

Do they ever need external legal advice in reaching their decision? Would they go to an external legal system or is that always internal?

(Lord Dubs of Battersea) It would normally be our own advisers who would steer the matter through. On occasion we might use external legal advice but not normally for dealing with complaints. I think that is right.

(Mr Bolt) Certainly in my two years it has always been on a point of law.

(Ms Barnes) There is an internal legal adviser to each panel, it is rare to seek external legal advice.

By and large is it 90 per cent, 95 per cent, what sort of figure is it that you, as it were, deal with internally without anyone having to go to the High Court to take legal redress?

(Lord Dubs of Battersea) Whether they go to the High Court or not is up to them after we have decided. We would not take a complaint on if legal proceedings were underway. We see ourselves as an alternative to legal proceedings for most people. That is to say, if they want redress, if they feel their privacy has been breached and they want the broadcaster wrapped on the knuckles by publication of our upholding the complaint they come to us, if they want money they go to the courts.

Where would you say the weaknesses are currently in your organisation? Be brave.

(Lord Dubs of Battersea) I think one of our weaknesses is that we would like to be quicker at dealing with complaints about privacy. We have speeded up a lot and we have made some good progress over the last two or three years. We review what the waiting times are at every monthly Commission meeting, it would be nice if we could be a little bit quicker. Timing is not normally in our control because it depends upon the responses of broadcasters, how quickly the complainants can prepare their statements, and so on. Most of the delay is not in our making, however I would still like to see the times being a bit quicker.

The PCC has 31 days, what is yours?

(Ms Barnes) I can give you the figures for the last year, which was 25 weeks to reach an adjudication where a hearing is being held, that is an average, and an average of 19 weeks where there is no hearing. That does compare with 42 weeks in 1998/1999 and then 29 weeks, so it has come down.

Why is that, is it because you do not have the staff? That seems an extraordinary amount of time to get some redress or some solution.

(Mr Bolt) As Lord Dubs already pointed out, we usually proceed by having an open exchange of papers and comments between the complainant and the broadcaster and they usually take their time doing it. As Lord Dubs said, redress should be quicker and we are concerned to make it quicker.

Who audits you?

(Mr Bolt) Well, we ---

Do you audit yourselves?

(Mr Bolt) We make an Annual Report to Parliament and we are subject to audit by the NAO in a technical sense.

(Lord Dubs of Battersea) And we are subject to scrutiny by this Committee.

Has nobody ever raised the time difference with you at any other time?

(Mr Bolt) We agreed targets with our sponsor department, DCMS, for the key things they expect from us and every year we set ourselves targets to do both kinds of casework more quickly. That is one of the main things that we measure our performance by and they measure our performance by.

(Lord Dubs of Battersea) It is sometimes the case that we are dealing with a broadcast and the production team that made the particular film about which a complaint has been made may be dispersed, they may be working abroad, and it takes time for the broadcasters to the get their people assembled, even if there is not a hearing, to put forward the paperwork in their defence. Of course if there is a hearing they have to have the people in London on a particular day, and they have often said they have to pull people back from abroad for this purpose. I would say the delay is not entirely within our control but we are concerned that the delays take longer than we would like them to.

(Mr Bolt) Going back to your earlier question, it is a post hoc operation, which to a considerable degree it is professional standards that is as important in this consideration.

Chairman: I was encouraged by the fact that Lord Dubs and his colleagues were worried about delays because that is not what I get from other public bodies. I have just had a letter form the Parliamentary Ombudsman about a complaint of a constituent of mine which will take 42 weeks to be investigated. I will not say it is encouraging but it is reassuring that you are worried about delays rather than regarding them as par for the course.

Michael Fabricant

What about delays from the person who is actually making the complaint? Complainants at the moment are limited to making their complaint within three months of broadcast. Why is that? Why do you set that as the limit? Do you often, or ever, make exceptions to that rule? Have you ever thought of changing the time span?

(Lord Dubs of Battersea) I will have to look to one of my colleagues to see whether that limit is statutory or one that we have simply set.

(Mr Heppell) It is a limit set in effect by the legislation which requires the tapes to be kept for three months. Where there is good reason for a complaint to be delayed, for example if the person concerned has previously raised it with the broadcaster, then we will extend the limit.

Or perhaps if the complainant has made their own tape of the broadcast.

(Lord Dubs of Battersea) That might be.

(Mr Heppell) Yes.

Why not?

(Mr Heppell) We have not had a case like that but in principle, as you say, why not.

(Mr Bolt) It is not merely a matter of the tapes, yes, it is true ---

What is it really a matter of? We are getting to the bottom of it now.

(Mr Bolt) There is, it is true, and for sensible reasons, a statutory period to keep the tapes for and the normal period within which they have to make a complaint. What we basically look at is, is it reasonable they have taken so long? Three months is not an accidental period, if somebody has not complained within three months of a programme normally you would feel they would have to have a good reason for delaying that long. In common sense practice it works perfectly well. As Mr Heppell said there have been occasions when we have said, A Fair enough, we understand@ .

(Lord Dubs of Battersea) May I give an example, there was a person in jail who was making a complaint about a programme and for various reasons he was not able to proceed with the complaint because he delayed things because of having a legal appeal and we took all that into account and we had a hearing on it quite a long time after.

What percentage, do you know, roughly, of your complaints are based on privacy intrusion by broadcasters?

(Ms Barnes) There are two sorts of privacy complaints, there is solely privacy complaints and then there are fairness and privacy complaints together, where the complainant has a double-headed complaint. Privacy complaints alone are very rare, for example in 2001/2002 we only entertained nine privacy complaints alone out of a total of 80 complaints that were entertained.

What do you mean by A entertained@ , do you mean ones you considered?

(Ms Barnes) The Broadcasting Act lays down parameters within which we can consider complaints. We receive about 360 complaints a year but only about 80 of those fall within our remit and are therefore entertained and taken forward. That is, perhaps, a relevant figure for your purposes. We entertained about 22 fairness and privacy complaints combined.

Of the nine and the 22 how many of those were upheld?

(Ms Barnes) Four were upheld last year. One privacy only complaint and three fairness and privacy complaints.

What power do you have to ensure that broadcasters do not continue to make the same intrusion, if you like, into that individual's personal privacy or other people's personal privacy? What muscle does the Commission have?

(Ms Barnes) Our remedy for the complainant is to require the broadcaster to broadcast a summary of the adjudication if it is upheld and also to publish it in a newspaper, which can be a fairly expensive business. That is the limit of our statutory powers.

Would you like more statutory powers?

(Lord Dubs of Battersea) I do not think we would for ourselves. Broadcasters hate having to publish our findings against them, in practice that is a pretty good sanction. Of course as regards repeat offending, normally the typical context of a privacy complaint is an investigative programme and the issue is not likely to be repeated, although I concede that it could be. The main point is that broadcasters do not like it if we uphold complaints again them and we find they normally take note of that.

Four were upheld, as you said, but the majority of complaints you received were not entertained, what were the grounds for not entertaining them? What proportion, was it a similar proportion of complaints out of that total you received that were related to privacy per se or privacy combined with unfairness?

(Ms Barnes) The reason why we would not entertain them would be because under the Act we can only entertain if the complaint is made by someone whose privacy has been infringed. Complaints are often made by people who think their privacy has been infringed but there is no prima facie case that it has been infringed. If they complain about disclosure of information that is obviously in the public domain or is not of a personal or private nature then we could not entertain it as a complaint of infringement of privacy.

Do you get many of those?

(Ms Barnes) We get a fair number of those.

(Mr Bolt) On the fairness side you get vexatious complaints of unfairness which quite strictly, and, in my view, correctly are powers confined to dealing with people with a reasonably direct interest in the programme which has allegedly been unfair to them. So a lot of fairness-type complaints fall by the wayside for that reason.

(Lord Dubs of Battersea) We get more complaints about fairness than about privacy. In terms of numbers we get 5,000 or 6,000 complaints a year about standards, they do not affect what we are talking about today but they do affect the burden on our small organisations.

(Mr Bolt) Can I add a little about sanctions, there are two points I would like to make, firstly we would claim, without being too sanguine about it, that the broadcasters know and, by and large, respect the code and if we make an adverse judgment not only is it fiercely fought but it becomes widely known in the broadcasting community, so we tend to find that error is not repeated. Secondly, under the existing arrangements the ITC and the radio authority have concurrent jurisdiction, so if the licensee has behaved particularly badly they can see what we have done and, if necessary, act on it. Under the Ofcom arrangements this will apply to all broadcasters, including the BBC, so the licensing/fining authority, if you want to use the ultimate sanction, will be same as the body that is looking at fairness and privacy.

Michael Fabricant: That is very helpful.

Mr Doran

There are two issues I want to explore, first of all you do some investigation into complaints and you do have the facility to have a hearing involving complaints, it would be quite helpful if you can talk us through the procedures and how you approach these cases if you feel merit in that sort of investigation and hearing?

(Lord Dubs of Battersea) We would have a hearing when we feel that there is doubt about the facts. If the facts are clear and we simply have to make a judgment in relation to agreed facts we would not want to have a hearing, it just prolongs things.

How do you make that decision?

(Lord Dubs of Battersea) We do it on the basis of each individual case. If we feel the facts are not clear or if there is a dispute as to the facts between the two parties we would feel a hearing is the best way forward. It is a pragmatic judgment based upon the circumstances relating to each particular case.

You get the complaint in written form from a viewer and do you make an assessment at that stage or does it bounce to the broadcasting outlet and then you make a judgment? I am just trying to get to each stage.

(Lord Dubs of Battersea) If I can ask my colleagues to take you through the details of the procedure.

(Ms Barnes) The procedure would be that we receive the complaint and once it is entertained we would send it to the broadcaster with a request for a statement, so that gives the broadcaster an opportunity to respond. If it appears there are other issues that need exploring we would send it to the complainant for their comment and then back to the broadcaster again. It is not normal to go beyond two rounds of statements, although we would in exceptional circumstances. If it is that complex and it looks like there is more information to be elicited then we would normally go to a hearing or we could go to a hearing directly after the first round of statements. We should be in a position to judge once we have had either one or two rounds of statements as to whether there is a conflict of evidence and we need to test the credibility of the witness.

At that stage you filter out the cases where the facts are quite clear and both positions are quite clear?

(Ms Barnes) Yes, and there is no conflict of evidence.

Moving on to the hearing, can you explain how these operate?

(Ms Barnes) The hearing is fairly informal compared to a court hearing. We have a panel of three commissioners who run the hearing, so to speak. The parties are asked to make an opening statement, they are then questioned by the commissioners and they can ask questions of each other through the chair of the commissioners and then they make a closing statement. Then the commissioners adjudicate on the complaint. The broadcaster and the complainant can both bring with them whoever they think might be able to support their case, subject to the discretion of the commission, but they normally accept whoever the parties want to bring, so they can also be questioned.

Are complainants allowed to be represented?

(Ms Barnes) Yes, indeed.

Is that common?

(Ms Barnes) No, it is not. It is quite interesting when they are represented because I think it is fair to say that it probably does not help them a great deal.

As a former lawyer I will not put my tuppence worth in there. Have you done any customer satisfaction surveys after people have been through this process? Do you have any gauge about how comfortable people are with the process or happy with the outcome?

(Ms Barnes) The last one was in 1999 which did indicate that people appreciated having the right to have a hearing, or the possibility of a hearing, I should not say a right. They did seem fairly comfortable with it. There was an indication they probably would have liked some help with the procedure and the lead up to that, but the feedback was fairly positive.

Have you taken on board that point about helping them through the procedure?

(Ms Barnes) They would like more advice from the Commission about how to pursue their complaints but we have an obligation to be independent. We do try and help complainants with their complaint when it comes in a rather unformulated state and try and organise it so that we can get it as much as possible within the remit of the Commission. It would be difficult for us to offer any more substantial help.

(Lord Dubs of Battersea) We have had positive feedback, spontaneous letters from people who said they very much appreciated what we did and their chance to have a fair says during the hearings.

(Mr Bolt) It is also fair to add that the commissioners at a hearing are not bound by any adversarial positions and they can, and do, ask pretty sharp questions of either party if they think something is being concealed or needs to be explored further. To some extent they act as the vicarious agent of the complainant.

The people who sit on your tribunal have professional knowledge or experience of these cases which your complainant might not have, is it common to help the complainant with questions in that situation, keeping your independence, of course?

(Lord Dubs of Battersea) The panel do ask questions. If we feel a particular point has not been put by the complainant and we feel it is relevant to the case then we will put the point. In that sense we are quite interventionist on both sides.

(Mr Heppell) It might be helpful to add, when the panel is operating there is an opening statement from each side, then one of the commissioners will lead the questioning and try to ensure that the points are brought out, and in particular make sure that the complainant's side is fully put on the table so that we know what it is that the complaint is about. On a number of occasions complainants have said afterwards even if the adjudication decision has not gone their way they were very pleased to have the hearing because it has enabled them to put their points to the broadcaster face to face and to hear what the broadcaster have to say. If you are looking for conciliation that in itself is a form of conciliation.

Alan Keen

I wonder if you can help us understand how it works, if you can give us a brief, fictitious example of an intrusion case that had a happy ending?

(Lord Dubs of Battersea) We can give you a real case, there was a breach of privacy as follows, there was an accident on the motorway and there happened to be a film crew there and they filmed the result of the accident, which show the injured lorry driver lying by the roadside waiting for an ambulance being helped. The point of the breach of privacy was the camera went so close that one could identify and recognise the individual that was lying there injured. He complained there had been a breach of his privacy, he should not have been shown on television in what was otherwise a very serious programme about road safety, and so on, he should not have been seen lying their injured, and that was on main television. We upheld his complaint. The television company said that their people had whatever the company was on their jackets and that was enough. We pointed out that the individual was shocked and concussed at the time and could hardly have taken that in.

What happened? Was the person happy when you had finished and adjudicated on it?

(Lord Dubs of Battersea) In that case they had to publish our upholding of the complaint on air with some of the details. He was happy I think. As far as I know he was happy.

(Ms Barnes) A lot of people just want justice.

He was happy when that was carried out.

(Lord Dubs of Battersea) Yes.

Could you give us an example of one where it did not have a happy ending, where the offended person was still unhappy when you finished with your adjudication?

(Ms Barnes) I can give you one where the complaint was not upheld, and that is why he was unhappy.

We are trying to get the sort of things that happen and what could be done if somebody is not happy

(Ms Barnes) We had a complaint from the father of a policeman who was murdered in 1982 by a serial killer. It was rather unfortunate that within a few weeks of each other two broadcasters did two programmes on the same subject reconstructing the murders committed by the serial killer. He complained because he had not been informed when the programmes would be transmitted. It is a provision in our code that we do expect broadcasters when they are revisiting traumatic events to let surviving relatives know so they can minimise the distress. It came out in the course of the statements that the broadcasters had contacted his other son, who had advised them not to approach the father. We felt in those circumstances that the broadcasters had done what was reasonable and it was not really their fault that the complainant had not been warned.

Returning to the first example, are there ever cases where the broadcaster says, A We think we did the right thing, we are not going to do anything, you can go and jump@ .

(Lord Dubs of Battersea) If we make an adjudication and uphold the complaint and we then instruct how they should publish it they have to do that, that is statutory.

What would happen if they still said no?

(Lord Dubs of Battersea) It has not happened. That would be illegal conduct by the broadcaster and I would have thought that the broadcaster would not want that. Presumably the ITC could then exercise some sanctions on them. It has not happened. On the face of it I think it is most unlikely to happen.

Your adjudication is effective because it has always been carried out to your satisfaction so you do not need any further powers?

(Lord Dubs of Battersea) I cannot think of any instance where we feel the process has not worked properly.

(Mr Bolt) There are sometimes cases the other way round, when the complaint is put forward where the broadcaster says, A Yes, okay, it is a fair cop, we got that wrong@ . If they apologise satisfactorily to the complainant we do not proceed further with it. That does happen on occasions.

You involve the complainant all of the time and if the complainant is satisfied easily then you deal with it like that.

(Mr Bolt) The process is transparent between both parties, you share the papers.

Ms Shipley

I am curious, are there any complaints which fall outside your remit which you feel you should be able to cover?

(Lord Dubs of Battersea) Given that our remit, apart from standards, is fairness and privacy or a combination of those I think that is reasonable. People have sometimes suggested we should deal with complaints about political impartiality, and so on, but I think that is probably not for us, and that has been our view all along.

You said there are a large number that fall outside your remit, are all of them very individual, there is no grouping of anything, there is nothing that struck you as, A It is a shame we cannot cover that one but it is not in our remit@ .

(Ms Barnes) I do not think so, essentially because if we have taken the judgment that there has not been an infringement of privacy then we do not entertain complaints. If we have reached that judgment, and I think I can say we are fairly generous to our complainant in the way we approach complaints, then it is very unlikely. I am not saying we never get it wrong, it is very unlikely there would be an infringement of privacy in those circumstances. Under the Act we are allowed to take a complaint where it is a complaint of privacy in the making of the programme as well as in broadcast, unlike fairness. That does extend the scope of privacy quite widely.

Is the Act limiting in that it fails to allow you to be proactive?

(Ms Barnes) We can only entertain a complaint once the programme has been broadcast. We are limited in a statutory sense in that way.

(Mr Bolt) There is a case to say that in a perfect world we would have the kind of resources that would allow us to mount a full-blown independent investigation of the facts in a case, I am not sure that we pine for such powers, but occasionally, it is fair to say, there is a case where we have a nagging feeling where we would have liked to dig deeper into that and find out more rather than at one removed through the parties or at the hearing what had happened. The fact is that we do not have a whole battery of investigators to support us, I do not think it is plausible or right.

Keeping with the proactivity, basically you are not proactive, that is what you just said.

(Ms Barnes) We have no power.

Is that not in itself very limiting?

(Mr Bolt) I think by and large Parliament was right to confine it to people who had a direct interest. There may be a case, this is one of the categories that we habitually bat off that people complain vexatiously - I keep using that word - on behalf of other people whose privacy was outraged and they feel very cross, and they write in complaining on their behalf. Normally we cannot accept that, but if it is so outrageous that it amounts to a complaint that normal standards of decency and even human dignity have been violated then we actually consider such a complaint under our taste and decency remit.

Things, for example, like war, where we are going to have significant numbers of people grieving, until a complaint comes to you that there has been an inappropriate broadcast you have no powers to do anything, however one might say you should be proactively seeking to prevent multiple intrusions before they start happening which you can foresee, which in this case is going to happen?

(Mr Heppell) We are able to lay the ground rules by the publication of the codes, which broadcasters have to follow. That is required of us under the legislation. Broadcasters would know our general approach in those circumstances, in that sense that is being proactive.

You are allowed to be proactive?

(Mr Heppell) Not in respect of individual cases but in setting the scene.

You are allowed to be proactive, what is your remit for this proactivity? What are your parameters? Take back remit, what are your parameters?

(Lord Dubs of Battersea) I am not sure I would quite use the word A proactive@ in the same way. We develop codes and we have a statutory obligation to do so, as with Ofcom. Those codes both enable complainants to know whether there has been a breach of a code in a programme and they also enable the broadcaster to judge whether the programmes they are making are ---

That is back to the specific complaints, I have moved away from that, I am talking about with war. You can see there are going to be multiple intrusions, they are going to happen, from which there may or may not be complaints, should you have a role to be proactive, to seek to influence the broadcasters not to do this in the first place?

(Lord Dubs of Battersea) I think that would probably not be a good idea from my point of view, because we would be getting very close to being a censorship body, which emphatically we are not. If we said to the broadcaster, A You ought not to be doing this, do not cover the war in this way, do not do that@ , that is pretty close to saying, A You may not do that@ , and frankly I welcome the fact that we are not a censorship body and we do not have such powers, and I would not wish us to have such powers.

John Thurso

Can I pick up on that in a slightly different way, I was interested to read in your submission the current privacy code, which was adopted 1998, is in the course of revision. What I was really aiming at was, who decides when the codes need to be revised? What procedures and processes do you have in place for making that decision and then undertaking the work?

(Lord Dubs of Battersea) We revise the codes every few years because we want them to be up to date in relation to developments and research that we have done, and so on. The specific driving force is that we want our codes to be as up to date as possible so that we can hand them over to Ofcom so that Ofcom have a good starting point for their work. The way we do it is that we do it internally, we have a panel of members, we work at the codes and we consult the broadcasters and others as to the appropriateness of the codes and changes in the codes before we actually publish them and say, A That is it, that is how we are going to move forward@ .

Is it a regular thing, something that you would be doing biannually or on a relatively regular basis?

(Lord Dubs of Battersea) Not as often as biannually, it is quite often.

(Ms Barnes) It is quite a big exercise, as you can image. We have to give the adjudications that we have decided on a bit of run-in first.

You are positively - to avoid the proactive word - looking at the code and you are from time to time saying, A Does it still meet its needs?@ A year later you say, A Yes@ , two years later you say, A Yes@ and three years later you say, A No, we have to do something@ , and a positive process takes place. It is not reactive in the sense that after a while you say, A We are getting an awful lot of complaints about how this code works, we have to do something about it@ . That is really what I was driving at. Another point, you cover, interestingly, radio, television and satellite, you have everything that is broadcast, do your complaints come from particular areas? Is it more radio than television or vice versa, more local than national, more satellite?

(Ms Barnes) There is only about ten per cent radio, that is the true offence and privacy, and it is mainstream broadcasters, if I can call them that. We get very little from satellite channels, presumably because there are fewer people watching them, perhaps, and less concerned about them. It is mainly the terrestrials.

Of the mainstream broadcasters are they all broadly equal in complaints or are there particular bad boys and girls?

(Ms Barnes) Looking at the statistic that we prepared on privacy when it comes to complaints being upheld as opposed to received or entertained then there is not a lot of difference between them, it is fairly evenly spread.

Mr Bryant

You mentioned satellite, do you include cable?

(Ms Barnes) Yes, we do, yes.

Not just the traditional concept of broadcast but cable as well. How do you interpret the public interest, is it just what is interesting to the public or is there some other concept that underlies what you think of as the public interest?

(Lord Dubs of Battersea) No, it is not just what is interesting to the public. I am not sure how useful it is for us to try and get a precise definition. What we use it for, of course, is to see whether breaches of privacy can be justified. The main justification for a breach of privacy is if it is in the public interest, that is to say that it is likely that this information should be made public even if some privacy has been breached.

(Mr Heppell) You could talk about the public interest being a matter of concern to the public on matters such as public health, corruption, injustice, criminal activity, something that is of concern to the community at large rather than a matter that only affects a small number of people.

You mentioned earlier that one of the things that affects your process of adjudication is whether something is already in the public domain, if something appears in newspapers and is complained about to the PCC and the same piece of information is broadcast, possibly as a report of what was in a newspaper, would you then investigate separately?

(Mr Heppell) We have had cases where there have been complaints of infringement of privacy where the information has been used from written reports in the press. In those sort of cases, unless there are very special circumstances, we will not have upheld the case because it is already in the public domain.

That seems a bit rough on the poor individual. If one were to take the view that the PCC had not done its job well enough to prevent newspapers being rather casual with people's privacy you would then be allowing broadcasters to be casual on the back of that?

(Ms Barnes) It would depend partly on the degree to which it was in the public domain. If there was a short paragraph in some local paper and then it was broadcast on the BBC News then I think there is a possibility that the complaint might be upheld. If there was days and days of stories in all of the newspapers on a particular issue then by the time it got used through the broadcasting medium then we might find it difficult to uphold.

Is the absolute infringement not there, nonetheless?

(Ms Barnes) Sorry?

Mr Bryant: If the person's privacy has been infringed without an overriding public interest of the kind you specified in the newspaper but because in the newspapers world there is no statutory body to enforce in the same way as there is in broadcasting then we are getting the lowest common denominator if terms of defence for privacy?

Chairman: It is important to remember, Chris, that the broadcasters are established by statute or in the case of the BBC by charter, whereas the press, of course, are not established by anything, except their own decision to publish.

Mr Bryant

I understand that. If the Broadcasting Standards Commission and subsequently Ofcom are going to say, A Well, if it has already appeared in the newspaper then we cannot uphold a complaint@ ...

(Mr Bolt) Our code does make it clear, it is not an absolute defence to say this has already been published. As Judith Barnes has already pointed out, duration of time is one consideration that might make one think that dragging it up again, so might the disproportion between where it has been published and where it is suddenly now being broadcast, it is not an absolute offence. Our code expressly says that while it is obviously a very powerful consideration it is not necessarily a complete knockdown argument. There are some requirements by us on the broadcasters to behave with reasonableness and proportionality.

If there were a privacy law then it would probably apply equally to both of you as opposed to this statutory relationship for broadcasters, but non-statutory self-regulation for the press.

(Lord Dubs of Battersea) Yes. If there was a scurrilous story in a newspaper we would not necessarily say that that was properly in the public domain, we would make a judgment as to the way that information was in the public domain, and the authenticity of that information in the first place. We would not just say it appeared in some newspaper and therefore it is not a breach of privacy for the broadcaster to repeat. We would want the broadcaster to have gone into it a bit more than that.

You mentioned the number of complaints that you receive and then you mentioned the number that you entertained and then the number that you upheld, obviously these numbers go down very rapidly from received, to entertained, to upheld, is that because there are people complaining vexatiously or because the system is not readily understood by the majority of people in the country, or should you be getting more complaints than you are because not enough people know how to complain? Why was it that you upheld 16 complaints in 1998/1999 and only two in 2001/2002 and four in 2002/2003. Is that because broadcasters have improved or you are more lenient towards them?

(Lord Dubs of Battersea) We are not being more lenient. I hope we can maintain the same standard over the period, we certainly do our best.

(Mr Bolt) There is another reason why the numbers go down, and that is what we quite often find, not least in cases which go to a hearing, is that it is just a misunderstanding or an insufficient understanding amongst the general public of what are the normal conventions about the ways that broadcast journalists go about their business. There is a surprising degree of naivety and quite often we have to say not that the person is vexatious but that ---

Give me an instance of that?

(Mr Bolt) The number of people who complain that they were not given a right to vet the way a statement they had given to the broadcaster was going to be presented on air and seemed to think they had an absolute right to have their verbatim account broadcast, and then get upset when it is not seems to be an example. I have come across that more than once.

(Ms Barnes) Picking up on the point you made about remit and entertainment, the concept of privacy is quite a flexible one. Perhaps people do not understand what is included in privacy. I can give you an example, somebody complained to us that the broadcaster had nailed a sign to his shop and then filmed the shop, which was empty. That may be inappropriate and reprehensible on the part of the broadcasters but we took the view that it was really trespass to his property rather than privacy, because it did not involve disclosure of any personal information. There are quite a lot of tricky issues round that kind of division between privacy and damage to property or trespass. It is a difficult one for lay people and lawyers to understand.

Mr Bryant: Thank you, Chairman.

Chairman: Thank you. Thank you very much indeed. I think I speak for the Committee when I say the way in which you presented your evidence and your accurate evidence was extremely impressive. Thank you.

RT HON BARONESS SCOTLAND OF ASTHAL, QC, a Member of the House of Lords, Parliamentary Secretary, MR NICHOLAS HODGSON, Legal Adviser and MR DAVID WILLINK, Civil Law Development Division, Lord Chancellor= s Department, examined.

Chairman: Baroness Scotland, thank you very much for coming to see us today, you have come at relatively short notice, and we appreciate that. We understand that the Lord Chancellor himself is having to prepare for his first appearance before his own select committee.

Rosemary McKenna

Evidence from many witnesses has suggested that access to the law by ordinary people is extremely limited, does the Government have any proposals to make legal aid available for libel actions and is legal aid available for alleged breaches of the Human Rights Act, the Data Protection Act and/or a breach of confidence?

(Baroness Scotland of Asthal) Can I start with the last three, the answer to that is that it is available. I know there has been a lot of concern in relation to access to justice generally. I think one has to look at the efforts that we have made to make that far wider. For instance, the creation of the Community Legal Service has been a very important advance, together with the Community Legal Service partnerships, I do not know if the Committee is familiar with how they work. If not, maybe I could explain in a word or two. It was understood that there were a number of issues which were not being dealt with, basically because people did not know where to go to get advice. Secondly, people often went to the wrong place to get advice. We did some evidence-based analysis, which was done by Professor Genn and Professor Patterson to help us sort out how we dealt with that, and what came out of it was the creation of the Community Legal Service Partnership, which brings together all those who give advice in an area, both legal and other advice, to do two things, firstly to do a needs-based analysis as to what is needed in that area and, secondly, to chart who the service providers are and to get some clear recognition between the two. We now have virtually one hundred per cent coverage across the country for these Community Legal Service Partnerships, who are very much addressing the issues of what people need. That is point number one. Point number two is that we created the Just Ask website, which people generally have access to on a 24 hour basis, where they will be able to find some basic information. If you add that together with the changes in legal help we have a very thick net, far thicker than it used to be to help support people. Legal aid is not directly available in relation to defamation but there are, of course, the availability of CFAs, which are voluntary arrangements that are conditional fee arrangements or conditional fee agreements which have been entered into, and since they came on stream they have been used to very good effect in relation to defamation. One very well known firm of solicitors are saying that since CFAs have been available they have had success in over 200 cases, for MPs, postmen, all sorts of people who have been able to take advantage of CFAs to get justice in this field, together with, of course, the Government encouraging, amongst others, the greater use of mediation. I understand that historically there has been an anxiety about how much is available, but through using these different models we have been able to widen the number of people who can get access to justice and deal with these issues.

What steps do you take to put that information into the public domain, because many of the people who appeared before us have said how difficult it was to access information about it?

(Baroness Scotland of Asthal) We are trying to take basically every avenue that we can to raise the profile of Community Legal Service Partnerships. I myself have been going round the country doing road shows to try and raise awareness. Obviously we are very keen for local MPs, local councillors and local authorities to become involved, and the way in which Community Legal Service Partnerships are taken up has been very, very encouraging. There are links between the local strategic partnerships, we have local authorities involved in spreading, if you like, the news in relation to how people can creatively do that. We are taking Community Legal Service Partnerships into schools, we have had a few pilot projects. We also have the innovation budget, which is trying to spread the way in which we get access to justice out more broadly. We are being as creative and as positive as we can to applaud really what has been done by a plethora of people, not just by the Government, but these Community Legal Service Partnerships involve charities, non-governmental organisations, local authorities, really everybody and anybody who gives advice, both legally and for other reasons, health authorities, everyone is involved and they are working really well.

The Press Complaints Commission and the BSC, soon to be Ofcom, state they offer an alternative dispute resolution to legal action which is cheaper, quicker and more private than the legal process, however they state that complaints for which a legal remedy is available need not be entertained. What do you understand by that?

(Baroness Scotland of Asthal) I suppose what they are saying is if you can have an alternative dispute resolution it is better because many people who make complaints about infringement of privacy want an apology, and they also want it not to happen again. We know that as a justiciable issue that is much more difficult to obtain through the judicial process, because you can get damages but you cannot always get them to say sorry and you cannot get them to say they will not do it again. As a method of resolution many people find a mediated settlement, whereby they get their apology and their acknowledgment that the person or the individual or the institution would be on good behaviour from now on, is a more satisfactory model. I think that is what they are highlighting, that so many people who come to them are not looking for money, they are looking for something else. I think one has to see these as complementary to the other, one does not necessarily exclude the other, though it may do.

Could a system like the small claims court possibly be conceived that could address all of those issues?

(Baroness Scotland of Asthal) You know that the small claims jurisdiction in relation to these issues has changed, you can now have a limit of , 10,000. There are some very interesting models, I can tell you about a model of mediation that is being used in Exeter. In June 2002 Exeter started a mediation pilot to deal with small claims cases, so that when a claim was made an opportunity to mediate would be offered to the participants, and that had a very good take-up rate. From June 2002 until now they had a 70 per cent success rate overall and in recent months the success rate of that small claims mediation has been about 90 per cent plus, but overall we have about 70 per cent. In addition we have a number of court-based mediation schemes, again I take Exeter, but there are others happening round the Court of Appeal in Birmingham and London and elsewhere. The Exeter scheme is that you have a fast-track and a multi-track, the fast-track cases are cases that are , 5,000 to , 15,000 damages. As soon as somebody, this is in relation to any claim, files a claim and then makes a defence they will be sent out a document which says, A Have you thought about mediation? Mediation is available at this court@ , and it gives them a price, , 450 for fast-track and , 650 for multi-track, which will be shared between the participants, and they are hoping that the same sort of success they have in small claims could be replicated in the larger claims. That is being piloted and tested out in a number of cases round the country, it is a very creative model.

Could it transfer to libel action?

(Baroness Scotland of Asthal) It relates to any claim made in a county court, once it is lodged people will be given an opportunity and asked, A Would you like to mediate?@ That is a pilot, and obviously we will look at it, London is doing something slightly different, so is Birmingham, and we may have something in the North, in Leeds, we will see. It is a very good model for us to look at.

Derek Wyatt

Good afternoon, I guess the question I am struggling with is in human rights law there is sort of privacy in a sense, and there are some cases going through, as you know, is it right that the judges actually may interpret the law or do you think that we as politicians ought be braver and make a privacy law? What is the discussion going on inside the Lord Chancellor's Department on these sort of issues?

(Baroness Scotland of Asthal) The first is to acknowledge that the Human Rights Act has made a huge contribution in this area, because in a very clear way it gives the court the tools to try and balance the issues of privacy against freedom of expression, because we have the Article 8 balance against the Article 10. That balancing exercise, which the court will have to deal with on a case-by-case basis, is a very important change that has occurred, which will enable the court to do that. I hear what people say, of course, in relation to, A Well, should Parliament and politicians not grasp this nettle?@ The likelihood is that even under another piece of legislation the same balance would have to be there and expressed, so in the end, I know that many of us find this more difficult, it would have to be the courts who would have to interpret any new privacy law and make that balance between what is in effect already now the Article 8 and Article 10 balance, the ballast which is given by Section 12 of Human Rights Act, which says that you have to consider freedom of expression as being a very important issue when you come to make that balance.

You do not think that the Peck case undermines all of the things you just said?

(Baroness Scotland of Asthal) Peck came before the Human Rights Act, if you look at Peck and you say, A Would that happen again under the new legislation?@ I think in the main you can say that it probably would not because Peck would have an opportunity to make a claim against the council, who really were the ones who were responsible. I think we now have better tools than we had before Peck to deal with these sorts of issues. I think we are in a significantly different situation now than we were before Peck was heard.

Am I right in your suggestion if we wanted to enhance privacy we would change the human rights code rather than introducing anything or we would have to wait for judges to interpret it, back to the first question I asked, really.

(Baroness Scotland of Asthal) I think we have already got that balance within the Human Rights Act. The Act itself has only been in being for a relatively short period and we are seeing the advantage individuals and others are taking of that Act, proper use is being made of it at the moment. Perhaps it is a little too early to say that it has either achieved everything which we would wish it to achieve or failed to achieve that which we aspired for it. I think it has done remarkably well. It has been a very good piece of legislation, which has been used very judiciously and properly by the courts so far.

If Ofcom had a backstop power to the PCC do you think that would complicate matters?

(Baroness Scotland of Asthal) Complicate matters, it would certainly make the soup thicker.

Do you think it should be a public authority, the PCC, under the Human Rights Act?

(Baroness Scotland of Asthal) The PCC is founded on self-regulation. I have said in the past self-regulation is a privilege, not a right and so long as the PCC discharge their duties properly and robustly it must be preferable for them to continue to self-regulate, because you then have some very interesting discussions as to what is the proper role for the state in terms of interference of the freedom of expression, and you get into some very tricky and difficult water. I think if the PCC is doing its jobs robustly then that must be the better course. The question, of course, is are as responsive as they should be to the pressures and the anxieties that are being expressed on different issues? You will all know that we have had concerns about the payment of witnesses, and there was some very trenchant debate as to the moves and the changes that the PCC should make in response to those concerns. Now they have responded in a very fulsome way and the way in which we would want them to, we are talking about creating and changing a culture which will hopefully permeate right the way through and be understood by all editors of newspapers. When you think about how many newspapers we have in this country, both national newspapers and regional newspapers it would be very, very difficult for us to police all of them if we have not generated the sort of culture which inculcates into the editors themselves the ethos which says that we must not behave in the following way. There is also the issue, which I know has not been nailed down, as to whether the PCC is amenable to judicial review, so you have some levers there too.

Mr Doran

There are two issues I would like to pursue with you, the first is to pick up a comment you made on the Peck case, you suggested that if we had the Human Rights Act Peck would not have happened in the way that it happened.

(Baroness Scotland of Asthal) Yes.

We have had quite a range of conflicting legal views on that, you probably would have earned a lot more as a QC dealing with them than you earn now in the Lord Chancellor's Department, it is quite a conundrum for us, because on the one hand we seem to have the European courts saying that the remedies in the United Kingdom are just not adequate, and that seems reasonable, and we have just heard from the British Broadcasting Standards Commission, and we also heard from the PCC, there is no question of any compensation in their process, yet you say things would have gone differently.

(Baroness Scotland of Asthal) If we just look at Peck itself, Peck's judicial review action against the council would be judged on a different basis, I think for proportionality reasons. Alternatively, as the council is a public body Peck could sue for damages under the Human Rights Act 1998, which you could not have done prior to the introduction of the 1998 Act. He may also have an action against the council as a data controller under the Data Protection Act 1988. As a breach of confidence has also developed he could bring an action for breach of confidence against the council and any print or broadcast media which used the images. That structure, the Data Protection Act, the Human Rights Act gives us avenues for pursuing his claim, which were not available before. I think that is the way we could now deal with it.

It was important to get that on the record. Can I pursue another issue with you, that is the situation that we have lots of ordinary people who only come to the attention of the media because they are involved in a court action, I know this is not directly in line with the issue of privacy, but I have been concerned for some time about the way in which the Contempt of Court law operates, on the one hand we have the principle of freedom of the press and on the other we have the right to a fair trial. We have had certainly two very high profile cases in the last ten years where the intervention of the press has led to the abandonment of trials, in one particularly serious case, a murder case, the Taylor sisters about seven or eight years. I am a Scottish lawyer by background, I do not practise anymore, and I am very familiar with different contempt laws and the way in which they operate. I have read a number of articles, I have one in front of me just now which was written at the time of the Taylor case which contrasts the two systems. It is quite clear that in Scotland we would not have had a situation where the press would have been able to publish the material they published prior to the trial or during the trial, partly because the bench is a little bit harder and because we do not need the permission of law officers to deal with any transgressionals. The principle is that the trial judge is the person who is best able to consider the impact of the transgression on the trial before the court. Is that an issue the Lord Chancellor's Department has looked at in its broader examination of the conduct of the press?

(Baroness Scotland of Asthal) The Attorney General - and I know that he would rather deal with these issues himself as opposed to have other speak on his behalf, so I add that caveat - is after consultation to issue guidance to editors that will address the difficulty surrounding the prejudicial publicity which may come before and, indeed, during, because it is not just the one-off article, it is sometimes the cumulative effect, so that each individual expression is not of itself a transgression but put together it becomes so. He has not decided yet on exactly what he is going to do, but he is going to consult on this issue. That is very much within government's consideration. All the work we did on payments to witnesses and third parties and the changes that we propose to make in the Court's Bill in relation to the court being able to bring those who are responsible for wasted costs, who may be third parties not involved in the case, to make them responsible is going to also be another tool, because people should become more cautious about wasting or potentially wasting court time by causing a retrial.

I am not familiar with this particular proposal, are you suggesting that if a newspaper steps over the line and affects a trial the editor could be held responsible for the costs of the abandoned trial?

(Baroness Scotland of Asthal) Yes.

Will that be explicit in the legislation?

(Baroness Scotland of Asthal) It is in the Court's Bill. What we doing now on third party costs is we are amending the Prosecution of Offences Act 1985 to empower the criminal courts to order a third party to pay the costs which his or her serious misconduct has caused a party or parties to waste or incur. If there is a trial which is abandoned for an act or omission by a third party it will be possible for the judge to say: (A). I consider this conduct to be serious misconduct. (B). That has engaged the loss of the following costs and, (C). You will therefore be obliged to pay it.

So far as procedure is concerned will the judge be able to do that within his or her own motion? There will be no intervention from the Attorney General or anything of that sort?

(Baroness Scotland of Asthal) That is not within our contemplation. There are those in our House when we were debating this issue who said, A What about the failure to bring witnesses or failure to get prisoners to bring them to court?@ There was a great rant about the non-production and the way in which this undermines the system of justice and should we not have a specific claim? We said the provisions that we are bringing in catch anybody who is responsible by virtue of their serious misconduct to waste of costs, so if somebody decides they would rather go to Harrods shopping than Knightsbridge Crown Court they may find themselves, if costs are wasted, with a different bill to that which they had before.

Will your Department be issuing any guidance to the press as to how you expect that to operate in practice?

(Baroness Scotland of Asthal) We will issue guidance in relation to the Bill. I am sure we will be notifying all relevant parties. I know that the members of the press will be looking at this provision with a great deal of care and attention. I do not think they will miss this one!

The two cases I mentioned earlier, the Taylor sisters case and the footballers case, Lee Bowyer and his colleagues, these are cases where the judge could have made an order for costs.

(Baroness Scotland of Asthal) Of course they did under a contempt procedure. This procedure would, we expect, catch those who behave in this way.

Mr Doran: Thank you.

Mr Bryant

I think most of us round this table are delighted by what you have just said. Would you like to publish the road map with a clear timetable?

(Baroness Scotland of Asthal) Clearly we have to get the Bill through our House, which is proving somewhat troublesome. I think it will probably have a faster, swifter and happier passage through the Commons, and once that is there obviously implementation will follow. It is a provision which has been anxiously awaited, and we have had some very robust discussions with the PCC and others about issues like this and issues in relation to payments of witnesses for some time. Everyone is aware that this is coming and they know why it has been fashioned in the way it has been fashioned.

You have mentioned payment to witnesses. What about payment to police officers?

(Baroness Scotland of Asthal) That is equally objectionable. Most police officers in proceedings will become witnesses so I would have thought that many of them will be caught. Payment to witnesses provisions have a slightly different focus because they prohibit the payment of witnesses once proceedings are on-going, but you are talking about straight corruption.

Yes, so it is slightly different. I am not meaning where a newspaper pays a police officer for telling the story they have told in court. I mean where a police officer spots that somebody has been a victim of crime at West End Central police station and has an arrangement with The Sun or The Mirror or The Mail or whoever to give them a tip-off, and it then appears in the newspaper. Do you understand that to be an offence? I think it is pretty clearly an offence for the police officer, but do you think it is an offence for the newspaper?

(Baroness Scotland of Asthal) I am not sure that it is an offence for the newspaper. Certainly enforcement of the law in terms of practice for the police officer is a matter for the police and the prosecution. We understand from the CPS that there has been an increase in the wrongful disclosure of police information. Criminal law, of course, is a matter for the Home Office, and you may wish to ask Home Office ministers specifically about this issue. There is no doubt that such behaviour can be prosecuted as a serious criminal offence; in particular section 1 of the Prevention of Corruption Act 1906 provides for up to seven years' imprisonment for both the giver and the receiver of a corrupt advantage such as a payment, and therefore, if it fell within the definition, both the newspaper and the officer would be at risk in that regard. Now obviously the Home Secretary has overall responsibility for the police service and the Police Act 1996 gives the day-to-day running to the police forces so it will be a discipline matter for them, and the Police Conduct Regulations in 1999 set out a code of conduct for police officers, and this outlines principles that should guide their conduct. So it is, as far as I am concerned, unlawful behaviour but you would have to look at the specific issues and I am sure the Home Office would be delighted to come here and answer them.

You are probably aware that the editor of The Sun said that her newspaper had paid police officers for information in this way. Who do you think should be pursuing that then? The Crown Prosecution Service? The Home Office?

(Baroness Scotland of Asthal) I think I should best say it is not a matter for me.

Coward! You refer to the PCC enforcing their self-regulation "properly and robustly". What do you mean by "properly and robustly"? You referred to it in terms of the payment of witnesses.

(Baroness Scotland of Asthal) I think they have across the board sought to address these issues properly. You will be aware that we had concerns, and they were quite serious concerns, as a result of a number of cases in relation to the payment of witnesses and it was an issue about which we were very troubled indeed. Now if, and I make no bones about it, the PCC had not been minded to change their rules and their code of conduct to reflect the sort of proper balance that we thought needed to be there in order to bite on that particular vice - and it was a vice - so as to stamp it out both culturally and particularly so we have no more cases of this sort, then I think the Lord Chancellor made it absolutely clear that this was a case when we would have had to legislate, and it was not something that we were minded simply to allow to continue. So basically we wanted to hear from them very clearly whether they wanted to discharge their duty or whether they wanted us to do it for them. Now, I am very relieved indeed and delighted that they thought that they would like to do it themselves because I think self-regulation is better because you have the willingness then of the editors to police it themselves, to inculcate it into the journalist, to make people realise that this sort of behaviour is intolerable, and we have a much better chance of stamping it out than if we are fighting against a culture that feels it is out of step with what we want. So I am delighted that they have taken that on board and that is why I say, if they are going to do it robustly, which they clearly have on this issue, then I am - and we are as a Department - content for them to do so. If they are not then, of course, we would take a different view.

We were told by Michael Tugendhat that his reading is that the PCC's status as a self-regulatory body is now a matter of name or procedure only and not a matter of substance, in effect saying that the Human Rights Act means they are going to have to follow the law as laid down by Strasbourg and the English courts, and they are not going to be effectively self-regulatory at all. Do you think that is fair or not?

(Baroness Scotland of Asthal) No, they are good. You can say that about every single body because we all have to operate within the law. We are all bound by the law. It is not a pick and mix - "I do not fancy it today"; we are all having to work within those parameters. The question is: "How do you fashion the Code against that backdrop?" I think they are a self-regulatory body; they are able to influence the way in which their profession works, and hopefully get a better product as a result. I do not think that that is fair; attractive and seductive as an idea maybe, but I do not think it has much substance, I regret to say.

Ms Shipley

Apart from payment to witnesses, can you give me any other example where the PCC has behaved robustly?

(Baroness Scotland of Asthal) I think they have tried to respond to complaints quickly; the fact that they are fast or compared to other regulatory bodies in getting resolution I think is B

That just sounds efficient. It does not sound "robust" in the way the witness payment sounds robust.

(Baroness Scotland of Asthal) I think the witness payment is the clearest and most recent evidence of that. I think the Code has been developed, as you know, over a period of years, and it is clear that in the past there have been challenges, perhaps similar to the witnesses issues, where they may have needed to be encouraged to enhance their Code.

Well, there is the rub, because you say, "Well, the PCC must behave robustly", but the only example you can give is where you have encouraged them with some tenacity, a lot of force, and a great big stick - and quite rightly too - but in other areas which you have not as yet taken up they are behaving very far from robustly. The one example I put to them was their coverage of paedophiles, particularly those who were yet to be charged, so nobody knew whether they were guilty or not - there was nothing against them - and far from behaving robustly there they thought it was not up to them. Paul Dacre, however, said very clearly and very well that it was not an area where things were behaving as they should in newspapers and that there should certainly be an improvement. So do you think you will be moving in with your big stick in the future and, if not, why not?

(Baroness Scotland of Asthal) I think there has to be judicious use of the sort of encouragement we are giving them over witnesses.

I would put to you the chances of someone being lynched would mean that it was a good idea at this moment to encourage them.

(Baroness Scotland of Asthal) There has to be a balance, has there not, between those areas where we feel that it is important to put pressure and not, and I am not saying that this necessarily is not an area which has keenly excited its own debate because I know there has been a lot of debate in the PCC as to how to respond, and you have just alluded to it yourself. I do not know how we could, without saying, "You will now have a regulated, government intervention on everything", encourage them further. Obviously we will look to see if there are further and other areas that need this sort of attention that we have given to those, and we will operate and act even when that proves to be the case.

The PCC told us last week that this was not an area that they had any intention of doing anything about, and in the newspaper they have alluded to the fact that they think this is in the minority and nothing much to do with them. Not true. So I would suggest to you that this is an area where you do need to go away and implement whatever it was that you did for the payment of witnesses, because it was clearly effective and very necessary.

(Baroness Scotland of Asthal) Obviously we will listen to anything said by this Committee very carefully but I think I would give a caution. We have come down in favour of self-regulation because it seems to have worked so far in most of the areas with which we were most concerned. I just say, and of course we will look very carefully at any recommendations the Committee may make, that one has to tread a very careful line on some of this if one wants to remain effective.

Chairman: Baroness Scotland, I have a very high regard for the Lord Chancellor and I hope he will not take this the wrong way but I am very glad he could not come! Thank you very much indeed for the clarity of your answers.

Memorandum submitted by Department for Culture, Media and Sport

Examination of Witnesses

RT HON TESSA JOWELL, a Member of the House, Secretary of State for Culture, Media and Sport, and MR ANDREW RAMSAY, Director of Broadcasting Policy and Creative Industries Division, Department for Culture, Media and Sport, examined.

Chairman: Secretary of State, we would like to welcome you, and thank you and Mr Ramsay very much for being here. Thanks to the self control of the Committee and the brilliance of the evidence of Baroness Scotland we have got back on time. We are delighted to see you as always. Mr Fabricant?

Michael Fabricant

Baroness Scotland was telling us how we have to be careful about legislating on the subject of privacy, and in your letter to us you talk about the idea of an ombudsman overcoming press complaints and you say, "... this would mean some form - however minimal and tenuous - of state control over the press", and you say, "We believe that it is quite simply not acceptable to the people of this country that there be any Government intervention in our free press." How do you know?

(Tessa Jowell) It is a very good question as to why we assert that. I do not think there has been any systematic research which has sought to examine the relationship between the public and the press. We have the benefit of some of the research which the PCC themselves have conducted about levels of satisfaction with performance in relation to complaints. There are some other more ad hoc surveys which give us an insight into public attitudes to the accuracy or otherwise of the press. We also have a better body of evidence in relation to public attitudes to the behaviour of the broadcasters but I suppose we proceed, Mr Fabricant, on the basis that the people of this country want minimal government interference in their lives, consistent with protection in the areas that are legitimately the government's to deliver, so that is the basis of the judgment.

I like your argument about protection and the duty of care of government and minimum intrusion by government, but there should be minimum intrusion perhaps by the press as well. It was not that long ago, maybe ten years ago, maybe nine, that a predecessor of yours said that the press were drinking at the last chance saloon - well, they still are. Do you think things have got much better?

(Tessa Jowell) Certainly the Government is clear that, for all its flaws and weaknesses, for all we feel frustrated by and outraged by our press, a free press is something which is very precious in a democracy. We have a system of self-regulation, a system which is common throughout Europe: we have a system of self-regulation and a system of self-regulation is never going to be absolutely perfect. There are plenty of areas in which I hope the PCC will look closely at ways in which they can improve the capacity of self-regulation but I would not argue for moving from the present system to one which has statutory status and by implication involves the government.

We have just been speaking to the Broadcasting Standards Commission and they said to us that decisions made by them are made by the lay members, and you will know that the PCC's board is made up of equal numbers of lay members and journalists, or editors anyway, some of whom may be in charge of newspapers that have committed the offences, if you like, or the crimes if you like, that people are complaining about. Is that right, or do you think perhaps the BSC model is a little bit more transparent?

(Tessa Jowell) I would certainly suggest that, given that the PCC have expressed themselves open to the case for reform, this might be one of the areas that they would want to look at but this is, after all, a body which is regulating the newspaper industry and I think that --

Is there a role for you, though? Sorry to interrupt you but you are saying "they should do it" and "they should do that". Is there not a role for DCMS to give a steer, if not actually a direct command?

(Tessa Jowell) No, because I think if DCMS gave a "steer", as you so gently put it B

I am always gentle!

(Tessa Jowell) -- that would very quickly become perceived as and could be the thin end of the wedge in relation to more formal government intervention in the behaviour of newspapers.

But it seems to me that you really do seem not only wanting to be very much at arm's length in this issue, and in some respects I cannot blame you given the experiences of some of your predecessors, but you also seem to be really quite comfortable with the way things are working right now and there have not been examples. It is almost as if you are speaking from a shell, completely unaware of all the terrible examples that have happened publicly and examples that have been given to us in camera for reasons you would understand if you heard some of these stories: it almost sounds as if you are complacent or comfortable that these problems do not exist at all in our press in the United Kingdom?

(Tessa Jowell) No. We should take your proposition in two stages, asserting as I do the case for self-regulation for the press is quite different from being complacent. I believe that substantial improvements manifested by increased public confidence, increased public access and increased public comprehension, can be brought about by the Press Complaints Commission working with the newspaper industry, strengthening their scrutiny.

But you do not want to give them any guideline as to how it might be improved?

(Tessa Jowell) I do not think it is the job of government to give them those guidelines. If you have a system of self-regulation, it is just that. What you are suggesting is perhaps a move to something that would be tantamount to accredited self-regulation which is where, in a sense, what the government does is to set out the framework and says that if you operate within that framework then you will earn the right to regulate yourselves. We are not in that position in relation to the press. The Government does not have a role in relation to regulating the content of our newspapers. We do not intend to assume a role in relation to the regulation of the content of our newspapers. That said, I as Secretary of State with broad responsibility for the media would add a series of proposals that I believe the PCC should look at as part of their commitment to continual examination and re-examination of their role because, at the end of the day, what is important is not who sits on these bodies and so forth but the level of public confidence and public support and competence that these bodies have. Do the public feel that they are doing the right job on their behalf? That is much more important.

Do you think they are?

(Tessa Jowell) It is hard to judge. If you look at the available research you would conclude that the public have a high degree of scepticism about the accuracy of what they read in tabloid newspapers: they have much less scepticism about what they read in broadsheet newspapers: they are most confident in the news coverage particularly that they hear on the radio and see on television a reflection of two different regimes; the licensed broadcasting regime where the broadcasters are bound to meet the licensing standards by which they can operate; the BBC, the governors responsible for impartiality and accuracy. The position in relation to the press is different and I think that is reflected in a healthy way in relation to the public assessment but also public behaviour. People get their information from radio and television: they buy their opinions when they buy their morning newspaper.

Alan Keen

You said how good you think self-regulation is. Why do we bother to have lay members on the PCC if it is so good? Why muddy the waters by bothering to have any member of the public sitting on there?

(Tessa Jowell) It is important to draw a distinction between the industry and the regulatory body, and I do not think it would be convincing to have a regulatory body that was made up only of the regulated. It is important to have a proportion of lay members. I, for instance, think that the PCC should think very carefully about a much more open and transparent recruitment and appointments process to the lay membership. They may want to look at the balance of lay members and editors on the body, but at the end of the day, as I said to Mr Fabricant, the test of the competence of the body, the self-regulatory body, is in the level of public confidence.

If, therefore, we are most concerned about the public confidence, and I think that must be uppermost surely, if that is the case, why do the public not regulate the press? Why muddy the waters by having journalists and editors on the PCC?

(Tessa Jowell) You have probably put that question to the PCC but I suppose the answer is that if you have a regulatory body you have to give it some kind of shape and form. This is a body which comprises not in equal parts lay members and editors and they should look at the balance of their membership, but there is another ingredient in this recipe for discharging this contract between the public and the free press and that is increasing the level of what we would describe in terms of the developing world for Ofcom, who I know you are taking evidence from later, in relation to media literacy. Also the PCC could do a lot more to make themselves more available, more widely known, and more accessible. I know they say they have done a lot but they can do more and they certainly should do more, so the answer to your question is that if you are having self-regulation you cannot have in a sense self-regulation by referendum or by regular vote: you have to have self-regulation which is given form in a body and I do think that all those who look at the PCC recognise the importance of the lay membership and I think it is an open question as to whether there should be more lay members and fewer editors.

The other week when I asked why we needed members of the newspaper profession on the PCC the lay Chairman said that it was very important that the PCC understands the pressures under which the printed media work - the issues have to be got out quickly in competition - and the reason we have a PCC is to protect individuals and the public. Why do you think we should take account of the pressure under which the industry works? Surely the industry should not offend individuals just because they are under pressure.

(Tessa Jowell) I would say to you that if you have a self-regulatory body which is unfettered in the way that the PCC is, not a body which has to conform to a degree of accreditation in order to earn its self-regulation, it is up to that body to determine its membership and how it is going to run its affairs and be judged on its own effectiveness and, as I said a moment or two ago, on the degree of confidence it inspires in the wider public - the public in the widest possible sense of the word.

Would you not agree with me though that, if there are powerful members of the media on the PCC, that would tend to cause the lay members to be a little bit cautious about being critical? I gave the example last week of the police who are not really encouraged to socialise with members of the ordinary public because they feel they may be affected by it. Do you not think the same principle must apply on the PCC? Editors are usually colourful characters, at least in personality anyway. Do you not think they are likely to have some effect on the lay members?

(Tessa Jowell) They may well have but if you look at the list of lay members they are certainly not people who are famous for being cowed. A body will be as good as its membership which in turn forges its reputation, and that is what is important. If the PCC were to be seen as a body operating a narrow and sectionable self interest, not doing the job that it exists to do which is achieving this balance between protecting freedom of expression and our free press and defending the wider public interest, then it will have failed in its job and it will have failed in its job no matter who sits on the board as a commissioner for the PCC. The point is you have to judge by results rather than necessarily assume the consequences of the balance of membership.

Derek Wyatt

Good afternoon, Secretary of State. Do you meet the PCC formally, or informally?

(Tessa Jowell) No, I do not.

This is difficult for you because you will not see the evidence of Baroness Scotland but she gave some very interesting thoughts about how she thought the law might change. Do you meet the Lord Chancellor's office in respect to privacy matters?

(Tessa Jowell) No, I have not done so. You will know and the evidence has made clear that we are in a state of revolution in relation to privacy law and the impact of the Human Rights Act and certainly we were very active in relation, for instance, to the Lord Chancellor's proposals in relation to the payment of witnesses. There was certainly communication between me as Secretary of State and the Lord Chancellor over that and there was certainly contact between our officials: but because press regulation is self-regulation, because Government does not have an instrumental role in overseeing that self-regulation, there are not the formal channels that you suggest. That said, I will be meeting Christopher Meyer next week as the incoming chair of the PCC in order to discuss with him his plans for reform.

But in a sense you are the backstop for the PCC - I know that is slightly different but you could be - and last week Linda Gilroy in the House, and others, mentioned the door-stepping of families who lost people in the Gulf and how repugnant that was, yet it is hard for the public to know where they go. You can start by saying that the broadcasters can go to this Committee or that Committee, but it would be nice if there was one place they could ring to say, "Look, I have taken deep offence at what is going on outside my house". Would it make more sense for the Department or, say, Ofcom or a committee or an ombudsman? What is your thinking on these sorts of issues? They only come up occasionally but, like Heysel(?), they come up?

(Tessa Jowell) They do, and you are right to say I hold backstop powers in relation to the regulation of the BBC and, in relation to the other commercial public service broadcasters, Ofcom will be when it assumes its functions the responsible authority. Your suggestion is a very good one: is there a way in which, once Ofcom is established, there can be greater collaboration in promoting ease of access for the public who wish to make complaints? But that should not confuse the different status of broadcasting regulation which will be under Ofcom, which requires compliance with licence conditions and taste and decency, impartiality and accuracy - these are not standards which apply in the same way to our press and we do not intend to engage in a regime that introduces content regulation of the press.

Derek Wyatt: I suppose the real issue, and we have discussed this separately previously, is how proactive you have to be. In other words, you get door-stepping, you go halleluiah, get out of here but it would be really nice if somebody sent a note to everyone saying, "Here are the rules on door-stepping before you are going to be wrong". That seems to be the dilemma we are in, but thank you, Chairman.

Mr Bryant

Secretary of State, I am sure all of us would applaud and rejoice in a free press but not in a free-for-all press and that is the bit we worry about, because in the end what basically newspapers do is trade in stories about other people's lives, and sometimes when it is a fiercely competitive industry that can lead to problems for individual people's privacy. You mentioned that you thought the PCC could do better and you suggested some ways in which it might do. Do you want to elaborate on any other ways in which you think the PCC could do better?

(Tessa Jowell) Following up Derek Wyatt's earlier point, there are a number of areas in which I think the PCC could certainly look at strengthening its position. I say this against a background whereby if you read the PCC Code it is a reassuring Code in its comprehensiveness, but it is only as good as its capacity to ensure that journalists and newspapers comply with it. Where do I think the PCC should look at reform? I certainly think that for all the difficulties the PCC should look at the case for acting more proactively and I think it was the case in relation to the Plymouth servicemen's families that the PCC's answer was that they had taken no action because there had been no complaint. Now, there needs to be some thought about how the process is navigated but in terms of public confidence in the PCC's determination to uphold the Code then the capacity and the willingness to act proactively is something that they should look at. Also, and they have indicated a willingness to look at this, there should be some kind of independent scrutiny of their processes - and that is not a proxy for Government, just independent of the PCC. I also think they should look at opening up the way in which they advertise for their membership. Every other major public body goes to increasing efforts to ensure that it attracts candidates for positions from the widest possible range of --

Do you mean the commissioners?

(Tessa Jowell) Yes, for the commissioners, and the appointments at every level in the body. I was interested in the question about the role of the lay members and my question, which they would do well to address, is whether there is a sufficiently distinctive role for the lay members as opposed to the editors? Is there a coherent lay voice, and how does it differ from the contribution of the editors? On the whole business of appealing PCC decisions, I think there would be a general welcome for the PCC's willingness to look at that, so in a context where self-regulation is a dynamic process and it has to constantly adapt and change, all these are areas where I hope the PCC will take a fresh look under its fresh leadership.

May I suggest a couple of others and see what you think about them? Do you think that commissioners who are editors of newspapers which have had adjudications against them should remain on the PCC as commissioners?

(Tessa Jowell) The problem with saying that if you have an adjudication against you then you are automatically barred is that you might find it very hard to recruit an editor who had not had an adjudication --

Chairman

That is an interesting comment!

(Tessa Jowell) Indeed, but you can certainly add that to the list of questions that could be put to them.

Mr Bryant

I am taking that as a sort of yes.

(Tessa Jowell) Well, let's just take this point because it is important that it is not a gesture and it is important to look at any change like that in the PCC where you get a rapid turnover because editors do frequently have adjudications against them and ask why that is. There are a number of reasons. To what extent do we have a journalistic culture where journalists are prepared to take risks with behaviour that they know is at the edge of or beyond the reach of the Code until they are reined back? I welcome the fact that most editors now have within their contracts of employment the obligation to comply with the Code B

But if that is in their contract I do not understand why they are not then sacked if they have not abided by the Code, at least sacked from the PCC?

(Tessa Jowell) With great respect that is a matter for those who employ them. If they are in breach of their contract it is not for the Secretary of State for Culture, Media and Sport to determine they should be sacked, but for their employers, depending on the severity of the offence and so forth. Adding to that, it is important, if this Code is going to mean anything in its influence on journalistic practice, that it is something that every journalist thinks about when they are setting about a story and writing it and making sure they act within it.

Chairman: I think it is a point worth making that when you, Secretary of State, point out that large numbers of newspapers now have the Code in their contract of employment, when the National Heritage Committee recommended that in its inquiry in 1992 we were told by the Press Complaints Commission that that was an absolutely impracticable proposition. Frank Doran?

Mr Doran

One of the difficulties for us, Secretary of State, has been the way in which the Press Complaints Commission has presented its case, and I know you are not responsible for the presentation of their case but it is quite clear they have a story to tell but have told it very badly - at least that is my view and that of some of my colleagues. You have made it clear, however, in one remark you made earlier in response to a point Mr Wyatt made that you are meeting with the new chairman next week to discuss plans for reform. That is the first indication we have had, despite the length of time this inquiry has taken and the volumes of paper we have had from the PCC, that they are actively considering reform and that creates some difficulty for us. Listening to your evidence and reading through the Department's submission it is quite clear that you are relatively happy at the moment with self-regulation, although you have obviously made it clear that you can see areas where it can improve. There is another driver and that is the legal changes we have seen over the last little piece. As you know we heard earlier from Baroness Scotland, and I think it is quite clear that there is no clarity in the legal position at the moment - there is a lot of confusion - but in relation to where the government is at the moment it seems that the government's position is that it will step back from considering the legal complexity and the court processes which are adding to that complexity, but that seems to be creating a little bit of a morass which somebody needs to cut through.

The Committee suspended from 4.49 pm to 5.01 pm for a division in the House. Chairman: Let us resume. Thank you, Secretary of State. Frank?

Mr Doran

The last part of my question was drowned out by the bell but basically the point I was making was that we are in a fairly complex legal situation at the moment, particularly with the judgments from the Human Rights Court in Strasbourg. Secretary of State, you made it clear in your evidence and in your submission that you monitor the situation. How are we going to clear up this mess or are we just going to drift?

(Tessa Jowell) We are not just going to drift. It may take a little time to establish the degree of case law that establishes the extent to which the Human Rights Act in effect provides a privacy law. There are obstacles facing most people using the protection of the Human Rights Act, using Article 8, what it will mean going to court, and it is beyond the reach of many complainants, which is why the PCC for many people will be a more affordable, more practical option because it offers free redress. I want to make two things absolutely clear. One is that we are not in this position by accident. We are not somehow hapless bystanders on an industry that we simply somehow have forgotten to do anything about. We have a decision as a government, we have a policy as a government of allowing and supporting self-regulation of the press. My Department carries the responsibility for the media. It does not carry any direct or indirect responsibility for monitoring the work of the PCC, and I think it is very important to be clear about that. Why is that our position? Because in government we are not persuaded that an alteration or breaching the boundary between statutory and non-statutory regulation would necessarily improve the quality of our press, improve the quality of public redress or achieve better outcomes than the present regime which can be improved, but should be improved within the context of self-regulation, as I have identified. A very quick final point of clarification in relation to the final composition of the PCC, you will all be aware, and it is worth underlining the fact, that the majority membership of the PCC is in fact lay membership, not newspaper editor members. I think the balance is nine to six, so nine lay members and six editors and then the chairman.

Can I just say to you, though, one of the witnesses we had last week showed up the lack of transparency in the appointments system because she admitted quite candidly that she got the job because she was phoned by the director.

(Tessa Jowell) I have said to you one of the areas I think the PCC should look at reforming the way it operates is by opening up the advertisement for its lay members, and it is important that people know what the rules are.

I understand that you will be discussing that with Sir Anthony Meyer next week.

(Tessa Jowell) I am sure it is one of the things that I will talk to him about.

Chairman: We are going to have to move on to our next questioner. Adrian?

Mr Flook

Our very efficient Clerk, Secretary of State, has said that philosophically the Government's position is close to the PCC's own position. No particular problems are identified in the evidence that DCMS have given to us and we have also heard that from the PCC. Can you see why as parliamentarians there is an issue for us to look at?

(Tessa Jowell) Yes I do and most days of the week any of us as parliamentarians will see something that we do not like, will read something that we do not like about us or about somebody else or the coverage of something in government, policy that we are responsible for. Of course I can see that and I can see why as parliamentarians we get worked up about it, but I think that the important thing is the protection of the wider public which is much more important than the protection of people like us. We are public figures, we are in public life and public life brings with it wonderful things and it also brings a downside.

I do not think any of us are asking from a position of self-interest as parliamentarians but from the point of view of looking after the interests of our constituents. That is where I am coming from.

(Tessa Jowell) That is precisely my point, that you want to be sure that your constituents have proper protection from press intrusion if they suddenly find themselves at the centre of an issue of press interest. I am not here to defend the PCC and everything it does, I am here to defend a system of press self-regulation which I believe to be the right way to establish the relationship between a free press and the wider public, but there must be safeguards. I believe the safeguards exist in the code so in theory what the PCC has to ensure is that those safeguards are delivered consistently and in practice.

There is self-regulation, but I am told you maintain a watching brief over the PCC and you monitor what they do. What sort of form does that monitoring take?

(Tessa Jowell) We keep abreast of PCC policy.

How many civil servants are devolved to that, hours a week?

(Tessa Jowell) A very small number because we have no formal locus and to describe it as a monitoring role could mislead you into thinking that we were actually overseeing their judgments and their adjudications and their performance. We are not; we are categorically not. The PCC is a separate entity and is responsible for itself. It is not accountable to either me or to my department.

I have been passed this because I obviously did not have it in front of me, and under Section 2.13 - and I presume your civil servants sent it to us from the ministers at the DCMS - it says DCMS has no specific role, but clearly they have an interest, and maintain a watching brief, monitoring the press and PCC. You can see why I thought the word A monitoring@ was used.

(Tessa Jowell) I can tell you exactly what this amounts to. My officials will look at newspapers, will study press stories that have given rise to particular concern, particular interest and so forth in order to establish the position of those stories in relation to PCC Code. What they will not do is to act to substitute the PCC's judgment for theirs and my Department would not, for instance - and it never has done and I cannot think of the circumstances in which it would - initiate a complaint to the PCC about the way in which a particular story had been handled.

Right, thank you.

(Tessa Jowell) I think that your confusion is entirely legitimate and I think that this is one area where we were absolutely not doing what government is often accused of doing and that is periodically meddling. We do not meddle in the PCC because we have no locus to meddle in the PCC.

Finally, you will know as a Member of Parliament that people write to you when they are not happy with something for which the government department has arm's length responsibility. You will sometimes get letters in DCMS as the minister ultimately in charge of the press or media because they will pick on you as the minister in charge. Could you send me a copy of the letter that you send back to those individual complaints saying what you say to them, the responsibility you do not have for them, it is arm's length and sorry you cannot help?

(Tessa Jowell) I will certainly supply a range of sample letters for the Committee setting out the Government's policy in relation to ---

I know you will not be sending them reams of paper.

(Tessa Jowell) We set out the case for, from memory, self-regulation and we refer people to the PCC.

Ms Shipley

You said, A I am here to defend a system of self-regulation.@ You also said that the PCC need to do more. You said it needs to be proactive. You quite rightly pointed out that the PCC said no, no action because no complaint, so forget proactivity from the PCC. You said independent scrutiny of process would be another A do more@ and they indicated their willingness to do so. They said to us, A No, no.@ You said how they advertise for their membership is something they need to look at and that again they would be willing to do so, you thought. Their position to us was robustly the opposite. They defended their current position of recruitment. So we are left with a position where the PCC needs to do more, and I would agree with all your points they need to do more, but they will not, so now what?

(Tessa Jowell) Let's take that in two parts. First of all, yes, I do defend the self-regulation of the press and what I offered you were a number of areas for potential reform and strengthening the position of the PCC. I will discuss those when I meet Sir Christopher Meyer for the first time in his new role next week but ultimately what happens as a basis for those discussions, what happens as a result of your report and other representations made to the PCC is a matter for the PCC.

So if the three things that you put to us, which by chance we covered, they are not going to do, you will simply say although they need to do more, never mind, it is up to them, and that is the logical effect of self-regulation? Happily the Chancellor's Department took an opposite point of view when it came to payment of witnesses. Baroness Scotland clearly showed us how in the payment of witnesses a different point of view was reached, it was indicated, after a substantial amount of pressure. Do you think that is appropriate; I certainly do?

(Tessa Jowell) What the Lord Chancellor's Department did - and the Lord Chancellor's Department has a different responsibility in relation to this to my own department - was to make it absolutely clear that unless certain guidelines were adopted then legislation would follow. There are a number of precedents for that. We are not however saying in this context, in these circumstances where we are now that if the PCC fails to adopt the Secretary of State's proposal as given to your Committee then the government will legislate. No, the government will not legislate, the government has no plans to legislate which would alter the basis on which press regulation currently operates.

Finally, Chairman, if there were a consensus of opinion generally that proactivity in a certain area was very desirable but the PCC failed to do anything, you would still maintain that position?

(Tessa Jowell) I think you have to take these things on a case-by-case basis. The position that was reached in relation to payment of witnesses was wholly consistent with the PCC's self-regulatory role. I think that you would have to take the circumstances that you are speculating about and look at them in the light of the events themselves. I think that these are dangerous discussions to have on a purely hypothetical basis. What I have done is set out scenarios where I think self-regulation could be improved within a context of a very clear government view that self-regulation should prevail.

Ms Shipley: I do have a concern but I think you would prefer someone else to ask questions at the moment.

Chairman

I would like to ask a question myself actually and it follows on the line of questioning that Debra Shipley has been conducting and that is this: payment of witnesses is to me a very worrying thing because there is evidence that newspapers have indicated to witnesses that their story will only be worth publishing if there is a conviction and that could taint evidence and therefore taint a trial. Is that not something that the government ought to do something about?

(Tessa Jowell) Because in the circumstances you describe, Chairman, payment of witnesses would be tantamount to perverting or could be a perversion of the course of justice and clearly any action by a journalist which amounts to a perversion of the course of justice or an incitement to criminal behaviour should be dealt with in the toughest possible terms. I would hope that in those circumstances and within the context of self-regulation the Press Complaints Commission would be as concerned as you are about that.

Thank you very much, Secretary of State. We are most grateful to you and we are sorry for the interruption.

(Tessa Jowell) It is a great pleasure. Thank you.

LORD CURRIE OF MARYLEBONE, a Member of the House of Lords, Chairman, MR STEPHEN CARTER, Chief Executive, and MR DOMINIC MORRIS, Policy Adviser, Ofcom, examined.

Chairman

Lord Currie, I would like to welcome you and your associates here today. It is a particular pleasure to see you right at the start of work of Ofcom. I have got a feeling we will be seeing you from time to time.

(Lord Currie of Marylebone) We look forward greatly to that.

Chairman: Thank you. Alan Keen?

Alan Keen

Good luck with everything in the future. How will you deal with complaints by the public on intrusion by the broadcast media?

(Lord Currie of Marylebone) We have substantial powers in terms of the broadcast media. Of course, the Ofcom Bill limits our content regulatory powers to broadcasting, it does not cover some other areas, and we will have substantial powers over broadcasters in a number of ways, more powers than currently the ITC, the Radio Authority and BSC have and we will be able to combine real expertise with a fairly flexible regulatory tool kit. If you look at powers, we will cover all broadcasters, have a range of sanctions from published adjudications to directions not to repeat programmes to fines for very serious breaches. We could even in extreme circumstance remove a broadcaster's licence, although one imagines that that is a rather theoretical possibility because a broadcaster is unlikely to wish to push an issue to that degree. I should emphasis that Ofcom is very much in preparatory mode at present. We are building on the best of the regulatory expertise and practice from the regulatory bodies that come into Ofcom. We are starting our thinking and we will be looking afresh at every aspect of our regulatory powers and practices and therefore we will be building on the best practice we see in the whole area of privacy.

Have you decided whether it would be a good idea to have executives, managers, producers from the broadcast media on the committee that looks at complaints?

(Lord Currie of Marylebone) We have not specifically decided this. This is an area of course that will lie within the power of the content board which is chaired by my colleague Richard Hooper. We are in the process of selecting the members for the content board in shadow form. That selection process is well advanced and out of that members of the content board will not include any editors of national newspapers.

I mean from broadcasters, I am not talking about the press at all.

(Lord Currie of Marylebone) All broadcasters? No.

Why not?

(Lord Currie of Marylebone) We will have people who will have experience of production of broadcast on that committee and that is very important. We will not have people who have executive control over current broadcasters.

Would you disagree therefore with the principle of the PCC having full-time editors on their self-regulatory body? Why have you decided not to have them on and the PCC have got them on?

(Lord Currie of Marylebone) I think it could well be argued to be a somewhat different area of expertise. We have statutory powers laid upon us by Parliament. We have chosen the members of the main board and the content board and a range of criteria to make sure that those boards are able to carry out the statutory duties laid on it by Parliament in an appropriate manner. We will be drawing on lay representation for example in some areas for privacy cases.

So you tend not to take full-time executives from the broadcast media because you want to be independent from the broadcast companies?

(Lord Currie of Marylebone) My colleagues may wish to come in. There is a question of independence, there is also a question we can get the expertise we require to carry out our statutory duties by drawing on other members who have experience of broadcasting and have that perspective.

Do you think it would be a bad thing to ask for a number of executives from the broadcasters and current managers from the broadcasters, or do you think they might be not be such good regulators of themselves?

(Lord Currie of Marylebone) I think we envisage there could well be some conflicts of interest in exercising the statutory powers - I emphasise the words A statutory powers@ - that are laid upon us by Parliament. Would you like to add?

(Mr Carter) I just echo David's comment. There is a time commitment, it is up to four days a month, so in a sense it is a material commitment of time. It is a statutory obligation that goes into quite some detail of the delegated authority of the content board, to do with licence terms and renewal and tier one or tier two regulation, so I think you would sail pretty close to the conflict issues, but if you are looking for an analogy there are areas of co-regulation and self-regulation in the broadcast world, advertising would be a good case in point, where the relevant committees and delegated institutions do indeed contain representation, indeed are chaired by full-time executives from within the broadcasting industry and that works very effectively. So there are examples where that does work but that is in the commercial messaging rather than in the editorial content area.

If there is an amendment to the Communications Bill put down that you were going to take on the role of the PCC, would you therefore carry on the PCC's principle of having full-time people from the press regulating or would you say, A No, we think it would be wrong, we think it would be better if everybody is driven along by the profit motive.@ That is really why the press has to operate quickly, it is to do with profit, and that is why the individuals who suffer intrusion suffer. Do you think you would take a different line if the PCC were put under your control?

(Lord Currie of Marylebone) That is something of a hypothetical question. We had the second reading in the House of Lords of Communications Bill last week and I said then I felt it would be a mistake to expand the role of Ofcom in the way that you are suggesting. If it were to happen we would need to look through very carefully at how we would want to discharge that. I think it would be too wide a range of power over the broad range of content.

Mr Bryant

By virtue of your combining the powers of the BSC and ITC you are able to do what you referred to earlier, that is you are not only able to tell somebody off and print an apology on screen or in a newspaper, you are also in theory able to take away their licence. You have all these sanctions but presumably these will be done by different parts of Ofcom?

(Lord Currie of Marylebone) The investigation of privacy questions lies with the content board. The decision - and I have to say we are still thinking through the precise delegations of powers between the main board and the content board - I imagine a major decision would be an issue the main board would wish to have oversight of and certainly a decision to remove a licence would be very much a matter for the main board, so the degree of severity would be an issue in those terms.

The BSC told us earlier that they revise their Code on it seemed a slightly ad hoc basis. Would you expect to be taking over their Code on these issues lock, stock and barrel or would you be writing your own new one?

(Lord Currie of Marylebone) One of the early tasks for Ofcom and one of the reasons for putting the content board in place before we assume our powers is that we do wish to develop the Ofcom Code, drawing on the best of existing Codes consolidated across the range of our activities. That will be an early activity which we will be involved in. We will go out to public consultation on that. Indeed, the report of your committee will be relevant to some matters on that Code.

How closely would you want to align that with BBC Producers' Guidelines?

(Lord Currie of Marylebone) Dominic, would you like to answer that?

I thought that might land on Dominic's plate.

(Mr Morris) Thank you very much. Having been both in the regulator and the quasi self-regulator of the BBC, the answer is they will need to be analysed. If the BBC wish to adopt more stringent internal guidelines for themselves that must be a matter for the governors. I think the intention of the Communications Bill was that there should be a single, coherent, central tier one with privacy in that category, that runs across all the industry, BBC included.

(Lord Currie of Marylebone) So our Code would cover the BBC in this area of privacy but of course it is open to the BBC to enhance that Code if they so wish.

Indeed, and so if you are going to be developing this Code, it is quite important to us to know what your broad instincts are about what privacy and public interest mean, whether the public interest that overrides a privacy consideration in terms of broadcasting is merely the fact that it is interesting to the public or whether it is the interpretation that we had from the BSC earlier.

(Lord Currie of Marylebone) That is clearly an important question. I was not sure when you said A your@ whether you were referring to me in the singular or the collective nature of the Ofcom board because it would be for the board to decide that. That board consists of nine individuals and it would of course go out to very wide consultation in the process of developing its thinking.

It would be quite interesting to know what you personally think as well you because you might have some role in developing and leading the debate.

(Lord Currie of Marylebone) Absolutely but, as I said, we are at an early stage of development of our thinking. I think it would be unwise for us to pronounce too early before we have had an opportunity.

Chairman

I think we are going to have some profitable and constructive sessions with you.

(Lord Currie of Marylebone) I think we will. As I said, I mean seriously the point that we will draw on your report as one very important input into our thinking.

Mr Bryant

Just one thing that has been around as an idea is that the PCC might have an annual appearance before us, obviously on privacy issues or general issues just as the BBC governors now appear before us on an annual basis. I think there has been some discussion of Ofcom appearing before us on an annual basis.

(Lord Currie of Marylebone) I would expect that to be the case. I have a date in the diary to meet with the Chairman to discuss exactly those sorts of questions.

Derek Wyatt

Can I congratulate you, first of all, on the three directors you appointed last week. It is an absolute breath of fresh air that you have gone outside the remit with some great people and I wish you well with it.

(Lord Currie of Marylebone) Thank you. May I say the credit for that is to my chief executive.

Good old Stephen. Even though you are going to meet with the Chairman shortly, can I ask is it possible you could send us a map of where you are going over the next nine months with the key dates for decisions on staff and senior things so we can get a better view of how it is moving? I know it is nothing to do with privacy but as you are here it would be nice.

(Lord Currie of Marylebone) Certainly we can do that. I do not know whether you would like Stephen to say a word about that at this moment?

I think in a note to us would be great or put in the library or made public. It just would help matters since we are going along at some pace. On privacy and the internet and Ofcom, as you know David Beckham was made a target, as his wife was, on the net and the story went very quickly into the papers and quickly out again as it was not true. It is very difficult to stop the net. In what sense are you trying innovative practices on looking at other regulators? In California the state is looking at different legislation for this. How do you hope to cope with such a huge thing as the net?

(Lord Currie of Marylebone) My understanding of the Communications Bill is we have no powers in that area. We may therefore wish to work with any organisations that are seeking to develop self-regulatory approaches but we have no formal statutory powers.

Even though there will be broadcasting on the net, as there is already, you have no say over that, I did not know that.

(Lord Currie of Marylebone) ICSTIS within the Bill has powers over premium rate.

That is 3G, that is not broadcasting.

(Lord Currie of Marylebone) Not the internet.

I can get the BBC on my computer at the moment.

(Mr Morris) I think, Mr Wyatt, if you mean by that in effect the equivalent of the BBC on the internet, it is indeed, and it has been a conscious decision of Parliament that it should be A self-regulators outwith formal regulation@ . One would hope and expect that the established broadcasters would have a very high standard indeed on the internet.

I understand that. That is not really what I mean. Say, for instance, Westminster Video Company decided it was going to follow politics on its own, set up its own broadcasting on the net, you do not regulate any of that?

(Mr Carter) I think you raise an interesting question there which is that the Bill, like all pieces of legislation, is written in the time in which it is written or in this case written two and a half years ago and we are still discussing it. I would hazard a guess that if you and I were having this conversation in ten years= time or in five years= time there may be a different consensus. As it stands at the moment, the facts are the facts which is we do not regulate content on the internet. I think you raise some interesting examples and they tend to be examples in areas where internet penetration is considerably higher or usage is higher and where its power as a medium is greater. I am sure we will play catch up. We do of course economically have an intersection with the internet on infrastructure and that is not an unimportant connection point because whilst we may not regulate the content on ISBs, certainly we have a connection with the infrastructure part of that history.

(Mr Morris) Could I add one final comment. Part of that extends not just to 3G but to anything that is premium rate. Quite a lot of internet content, and possibly in the future the business model will be more going in that direction. It is pay as you go in effect to that extent there is a co-regulator working under Ofcom Codes.

What you are saying to me is that we have to have primary legislation. On the legislation type, as we have got one last chance in the House of Commons, there is a view that the PCC ought or might or should have a backstop and there is this discussion about whether it ought to be Ofcom or not. What about if that was delegated, in other words perhaps delegated to the Secretary of State in legislation. She would not have to come back to the House. Would you have a view about that? She would not have to say to the PCC - she would have to say - I have answered my own question.

(Mr Carter) Excellent answer.

Michael Fabricant

I have had two obsessions during the course of the Communications Bill which as you quite rightly say is still ongoing, as they say. One is that radio is not sidelined, so I am very pleased to see that - albeit in a slightly different position - Tony Stoddart has been appointed to the Commission, and the other one, of course, is the BBC and the fact that the BBC does not come under all three tiers of Ofcom. Nevertheless just be grateful for small mercies, at least it comes under tier one, as you have mentioned already. If the BBC transgress one of the guidelines of Ofcom, not anything it might do beyond that, in self-regulation, how are you going to impose any sanction on them? It is one thing taking a licence away from an independent television contractor, you cannot presumably, can you, take away the Royal Charter from the BBC? Can you fine the BBC with public money in which case where does the money go, it is public money?

(Lord Currie of Marylebone) My understanding is that we do have powers to fine.

They just put up the licence fee.

(Lord Currie of Marylebone) The question of taking away the Royal Charter is clearly not in our remit. I have to say I think in this area those sanctions are not what is actually going to ensure the BBC does what is appropriate. The governors will play a major role in that. In so far as there is a transgression I think Ofcom noting this, commenting on it publicly, will be sufficient deterrent and will ensure the BBC, if it needs to, changes its practices and changes its ways. I am not worried about the sanction issue in that area, I think the BBC need to be seen to be conforming and will wish to conform with the codes as laid down by Ofcom.

For the record, I do not think the BBC are a major transgressors in the area of privacy.

(Lord Currie of Marylebone) Absolutely.

Presumably you are in the process at the moment of considering what sort of sanctions you will have on the BBC. It is most unusual, for once the BBC is at least in some area coming under the auspices of an external body when previously, of course, the board of governors was the backstop.

(Lord Currie of Marylebone) Stephen may wish to comment on that. It seems to me in the code area there will be a need for our codes to be imposed on the BBC. The BBC I am sure will wish to conform with those. The more significant area of oversight I suspect will turn out to be in the competition area where there are some important issues Ofcom will be asked to address early on.

(Mr Carter) Yes. We will probably characterise the nature of our prospective relationship with the BBC in different ways in those two areas. In the code area I would be disappointed if we could not bilaterally come to a code which was applicable across the piece. It would be slightly unsatisfactory if we ended up with, even if it is a more stringent applicant, more administrative confusion. I think in the economic area we want to keep some degree of separation in the nature of that relationship. I think they would expect us to do that.

One of the raison d= etres of Ofcom is not just because of the integration of digital technology, if you like, across from television and radio and telephony and so on and so forth, I think it is to create a one stop shop. I rather suspect you will get people coming from Ofcom to make complaints against broadcasters, including the BBC, rather than going directly to the broadcaster themselves. MPs experience that, I get letters all the time about matters which do not concern MPs at all: local government, European Union issues or whatever. How do you plan to handle that sort of correspondence?

(Lord Currie of Marylebone) The detailed logistics of how we do it, we have not yet got to that, we are not at that stage. In general I think personally I favour the notion a complaint should in the first instance go to the broadcaster because I think that creates a healthier relationship between the broadcaster and the viewer or listener. Clearly Ofcom needs to make sure that complaints are well handled and in the event that they are not satisfactorily handled pick them up. Thinking through the logistics of that is something we will have to do. As a philosophy I think that is the right way to approach it.

Chairman, it is early days but I look forward to future discussions.

(Lord Currie of Marylebone) Thank you.

Chairman

Gentlemen, may I thank you very much indeed for coming. May I recommend, if it is not impertinent of me to do so, that you read the evidence of BSC which was very good indeed and I think you might wish to take account of that.

(Lord Currie of Marylebone) Certainly we wish to do and we would have been here to listen to it had we not had a board meeting earlier this afternoon.

Chairman: Thank you for coming.