To be published as HC 819-ii




Culture, Media and Sport Committee

Regulation of the Press

Tuesday 5 February 2013

Professor John Horgan and Dáithí O'Ceallaigh

Professor Brian Cathcart, Hugh Tomlinson QC, Jacqui Hames and Baroness Hollins

Evidence heard in Public Questions 127 - 233



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Oral Evidence

Taken before the Culture, Media and Sport Committee

on Tuesday 5 February 2013

Members present:

Mr John Whittingdale (Chair)

Mr Ben Bradshaw

Tracey Crouch

Philip Davies

Paul Farrelly

Mr John Leech

Steve Rotheram

Jim Sheridan

Mr Gerry Sutcliffe


Examination of Witnesses

Witnesses: Professor John Horgan, Press Ombudsman of Ireland, and Mr Dáithí O'Ceallaigh, Chairman, Irish Press Council, gave evidence.

[This evidence was taken by video conference.]

Q127 Chair: We are going to begin the session and be broadcasting. Thank you very much for joining us this morning and, please, if you could introduce yourselves, that would be most helpful.

Mr O'Ceallaigh: I am Dáithí O’Ceallaigh and I am the Chair of the Press Council.

Professor Horgan: I am John Horgan. I am the Press Ombudsman. I am independent, but I do report to the Press Council.

Q128 Chair: Thank you. As you will be aware, there has been some discussion in the UK, on the back of Lord Justice Leveson’s report, about the Irish model and whether or not it could be applied here. I think it would help us if you could perhaps just begin by giving a brief outline and saying how you think it differs from what we have had in the past and the advantages that it might bring if we were to follow your example.

Mr O'Ceallaigh: Perhaps I might begin by saying something about the manner in which the operation here was established about five and a half years ago. There have been various attempts over the last 20 years to introduce some form of complaints handling or regulation of the press, and it really did not get under way until a little bit after 2002 when the industry itself established a steering committee. There were three people in particular on that steering committee that were very important. They acted in a way as a link between the industry and the Government, in particular the Minister for Justice and the Department of Justice. The chair of that steering committee was Tom Mitchell, who was the former Provost of Trinity College and who afterwards became the first chair of the Press Council.

Secondly, there was a facilitator, who was Dr Maurice Hayes. He had been an ombudsman in Northern Ireland and he was on the board of Independent Newspapers, which was the largest of the media groups here in Ireland. From the very beginning the NUJ were involved as well on that steering committee. The steering committee, that is the industry itself in effect, drew up a code of practice and agreed to the establishment of an independent system that would regulate that code of practice. It includes an Ombudsman and a person in the Ombudsman’s Office who handles complaints and tries to resolve complaints before they go to the Ombudsman. Then after the Ombudsman has made his decision, if that decision is appealed by either side, either by the complainant or by the newspaper, then it comes to the Press Council. In a way, the Press Council is like a court of appeal.

That is the origins. The system itself is quite a simple system, it is not a complicated system, and it has a face that is widely known to the public, who is the Press Ombudsman.

Q129 Chair: You have seen the recommendations of Lord Justice Leveson as to the kind of system he wants to establish here. He obviously looked very carefully at your model, but do you see any particular differences between the way you operate and the kind of system he is proposing?

Mr O'Ceallaigh: I think one particular virtue of the Irish system is its relative simplicity. There is a code that has been drawn up voluntarily by the industry and then the application of that code is made by the Press Ombudsman’s Office and the Press Ombudsman in the first instance, so it is quite simple. If there is an appeal it comes to the council and there is no appeal from the council.

Professor Horgan: I rather think that there is quite a difference in the origin of the two systems, in that our system is one that arose voluntarily, by and large, whereas the system recommended by Lord Justice Leveson came as a result of a crisis in the industry, of which the phone hacking was the most prominent part, so there are different points of departure that may have led to slight differences in the outcomes.

Q130 Chair: You say that yours was established voluntarily. Has it commanded 100% support from the newspaper industry?

Mr O'Ceallaigh: Not 100%, no. All of the main nationals, be they Irish-owned or be they Irish editions of British-owned ones, are all members. Most of the magazines in the country, though not all of the magazines in the country, are members. Most of the local newspapers in Ireland-and the local newspapers in Ireland are weeklies whereas the British-owned are dailies-are members, but not all, and the freesheets are not members either. You could say probably 90% to 95% of the print media in the country are members, but not all.

Q131 Chair: As I understand it, you are also covering at least some online publications?

Mr O'Ceallaigh: We cover one at the moment, but we have had an application from probably the biggest online publisher in the country. We have established criteria for membership of online publications, and that particular application from that particular outlet is at a very advanced stage at the moment.

Professor Horgan: It is fair to say that both in the Act under which we were recognised and in our articles of association, the digital future is envisaged in very concrete terms. That would seem to us to be a natural way for us to go and, indeed, increasingly I suspect digital news publishers will want the kite mark that would attach to their membership of our council.

Chair: I am going to bring in some of my colleagues.

Q132 Mr Bradshaw: I do not know whether you can see me. But in your judgment, how well does your system work and what has changed since before its existence in terms of newspaper behaviour?

Professor Horgan: Our system structure has a very strong objective, and that is to help the newspapers to realise what the public concerns are about the way that they go about their business, and to help the public to realise some of the pressures and forces that drive journalism. This is a long and fairly slow process, but I think that one of the results of the last couple of years of our existence has been to increase the trust that should always exist between the press and the public and to remove unnecessary points of friction. Also, I think a very obvious result has been that within the press, where the traditional attitude to handling complaints was brusque at best and often not very facilitatory, there has been the development of a fairly sophisticated internal complaints handling system, which means that a lot of the complaints that in the early years of our existence would have come to us, because people did not get any satisfaction from the newspapers, are now being handled satisfactorily to the complainants within the newspapers themselves. It is a long process but one that is enhanced by a sense of ownership of the project and the structures, both by the public and by the media themselves.

Q133 Mr Bradshaw: You have some kind of statutory recognition, but you do not have the power to force or require a large newspaper group to belong to your system. How would you address the problem that we had in this country with our current system where a major newspaper group simply walked away from the voluntary system?

Professor Horgan: Under the Act of constitution, it is impossible to compel anybody to be a member and, interestingly enough, that is a constitution that since 1937 has formally embodied the right to freedom of speech. Be that as it may, one of the incentives that helps to keep the present members as members, and which may in time encourage others to join, is that if you are a publication and you are sued for defamation, you are allowed to give evidence to the court of your membership of the council, your observance of the code of practice and so on. If you are not a member of the council and you are sued for defamation, you have to be able to satisfy the court, in order to take advantage of that part of your defence, that you operate to standards that are at least as good as those of the Press Council and the code of conduct. My honest opinion is that it would be quite difficult for a non-member newspaper to satisfy the court to that extent.

Mr O'Ceallaigh: I should add that this legislation is so far untried in the courts. It is the 2009 Defamation Act, but this defence has not yet been tried in the courts.

Q134 Mr Bradshaw: That is the extent of the statutory recognition or underpinning, whatever you want to call it, that recognises your body, is it?

Mr O'Ceallaigh: If I might just add this, we the Press Council and the Ombudsman’s Office are recognised by Parliament as the body that handles complaints against the press. That is the statutory underpinning. As regards sanctions, we really do not have any sanctions, but we have never had a situation where a complaint was upheld by the Ombudsman, or indeed by the council, that has not been printed later on in the newspaper against which a complaint was made.

Professor Horgan: It is important to underline the fact that the requirement to publish a decision, obtained with due prominence and promptly, on a complaint that has been upheld against a newspaper has been seen in the past by the public as a mere slap on the wrist. But if you look at it from the point of view of the press on the other side of the desk-the newspaper editor, the newspaper proprietor-they are extremely unhappy about having to publish that. As far as our experience shows, they do experience this as a realistic sanction, and the evidence for that is that they take considerable pains to avoid it if they possibly can.

Q135 Tracey Crouch: To follow on from the Chairman’s opening questions, has the public confidence in the system been damaged by the fact that membership is not compulsory?

Mr O'Ceallaigh: I do not think so. There is no evidence that there isn’t public confidence in the system, and the fact that complaints are made to us quite consistently, and that significant complaints have been conciliated or a decision has been made by the Ombudsman, means that we do not see any evidence that there isn’t public confidence in the system.

Professor Horgan: It is a bit difficult to measure quantitatively, but I did a small exercise a couple of years ago that showed that, in terms of the number of complaints per head of population, Irish newspaper readers tend to complain rather more frequently to us than British newspaper readers. You could look at that two ways: I suppose you could argue that this means that Irish newspapers do not behave themselves as well as British newspapers, but I prefer to interpret it as showing that the Irish public, as a whole, has considerable confidence in the system and perhaps slightly more confidence than the British public has in its own system.

Mr O'Ceallaigh: I just want to add that we have had complaints from very prominent politicians, some of which have been upheld, and we have had complaints from Government people that have not been upheld. So, in certain instances, politicians have used the system to complain against the media.

Q136 Tracey Crouch: The Irish model was being proposed as a best practice model before the Leveson discussions, as a means of preventing things like the invasion of privacy. Did you receive a lot of complaints when one of the Irish papers published the topless photographs of Princess Catherine in France?

Professor Horgan: Under our system we have a fairly limited ability to receive third-party complaints. We are allowed to receive third-party complaints if the person making the complaint has been personally affected by the article, and if they have the permission of anybody else named in the article who may also have been personally affected. In that case, although a number of members of the public did complain to us about the publication of those pictures, we did not get any complaint from anybody who met those particular conditions. There were not a large number of complaints. There were some.

Q137 Tracey Crouch: Therefore, the model itself does not prevent the invasion of privacy in the first place.

Professor Horgan: No, I would not go so far as that at all. The invasion of privacy is a very substantial part of our code. Indeed, every year it usually accounts for the second highest number of complaints. The largest number of complaints generally deals with truth and accuracy. The second highest number of complaints comes under the heading of privacy, so we are dealing with complaints about privacy morning, noon and night, and very many of them are upheld.

Q138 Tracey Crouch: Can I ask a question about membership of the Press Council? Are any of the industry members serving editors?

Mr O'Ceallaigh: There has been a serving editor in the past. At the moment, none of the industry members are currently serving editors, but one of the industry members was an editor in the past. The industry members who are on the council are all very senior journalists. My experience has been that it is very beneficial indeed to have people from the industry and, indeed, from the NUJ on the council, because it brings home to the lay members of the council the circumstances in which the industry works. I would also say that, from an industry point of view, it is very beneficial that they have senior members on the council. Anecdotally, I can tell you that some of those industry members on the council have told me that they have benefited from learning of the public’s concerns by being on the council, and have been able to bring some of those concerns back to their newspapers and so on. So I think it is actually very beneficial to have senior industry members on the council.

Professor Horgan: It is worthwhile pointing out that a subsection of serving editors are entitled to sit on the Code Committee. In practice, not all of them do, some of them appoint senior deputy editors to fill that position, but there is no doubt about the fact that editors and journalists substantially have a majority voice on the Code Committee. This is part of the balancing act. I think it is very important in our system that no one group of people, either the public interest members or the journalist members, should operate as a majority in every part of the system. So on the Press Council the journalistic element is in the minority, but on the Code Committee they are effectively a working majority. That is important for balancing the rights and responsibilities of both groups.

Q139 Tracey Crouch: You do not think that having a serving editor would lead to any tension or conflicts or question the independence of the council?

Mr O'Ceallaigh: I have been Chairman of the council now for about two and a half years and, in my experience, in no instance has the presence of a serving editor or, indeed, a former editor led to a difficulty in terms of doing the business that the Press Council has to do. I cannot recall any occasion when a difference arose on the council in a particular case between the industry members on the one side and the lay members on the other-quite the contrary. If a complaint is made in which a member of the council has an interest-in other words, if a complaint is made against a newspaper that has a representative on the council-that representative member of the council absents themselves from the deliberations of the council. For example, if there were a complaint against the Irish Times the member on the council from the Irish Times would not participate in the discussion.

I actually feel quite deeply that the council benefits from the industry members, because they bring to the deliberations of the council a sense of the reality of newspapers. Many of them have told me that they have brought back to their editorial boards a sense of the reality of the public, which they did not have before, and it is embedding in some of the newspapers a sense that, if you have made a mistake, it is far better to apologise quickly, and once the apology is given that is the end of the matter.

Q140 Chair: You said that editors in Ireland take an adverse ruling by the council very seriously, and try to avoid having to publish an adjudication against them. We heard exactly the same claims from British newspaper editors, and I have to say in this country we were not convinced by that. It was felt that one of the weaknesses of our old Press Complaints Commission was that they could not do any more than just publish an adverse adjudication. There was no power to impose any penalties. Do you feel that that is a weakness of your system or do you think you do not need to have any further sanction?

Professor Horgan: The point about the publication of decisions is that editors try to avoid finding themselves in situations in which they have to publish decisions. No decisions that have to be published have ever not been published within that system. In relation to further sanctions, such as financial sanctions, there is quite a big issue here because there is no point in having sanctions that are actually unenforceable. If you were to have financial sanctions that lacked enforceability, I think that would be a problem. If you were to have the enforceability of financial sanctions, it is very difficult to avoid a situation in which the courts might have to be involved in enforcing financial sanctions. In our view, that would certainly come perilously close to breaching the line between statutory regulation of the press and the voluntary system such as we have.

Q141 Chair: I think there was a feeling here that if a newspaper put on 100,000 copies by printing a story that, for instance, invaded somebody’s privacy, having to print a small apology several weeks later was a pretty small price to pay and they did not mind that much. But you believe that the requirement to print an apology is a serious deterrent. Do you insist on the size and the positioning of the printing of the apology?

Mr O'Ceallaigh: We have regulations as regards where it should be printed and when it should be printed. Obviously, if there is a big story on privacy on page 1 the damage done in something like that will not be met by the printing of an apology. We had a recent case where a newspaper chose to print an apology in its edition that was significantly less than the edition in which the original story had appeared. The people who made the initial complaint complained a second time about the positioning of the apology and about the edition-the day edition-in which it had been printed. The council heard that particular complaint and, as part of the council’s judgment, they told the newspaper that they needed to publish it on a particular page on a particular day, and the newspaper did so. They did not like doing it, but they did it.

Chair: Thank you.

Q142 Steve Rotheram: To pick up on the last question, surely it is about prominence as well. There was a famous incident where The Sun newspaper printed lies under the banner headline of "The Truth" and at a later stage offered a mealy-mouthed apology on an inside page of that particular newspaper. Surely, if they were forced to print in the same prominence that they had lied, as they did when they printed "The Truth" under that headline, then they would think twice about doing such things?

Professor Horgan: In our experience, only courts have the power to enforce this. There was a recent defamation case in which a court ordered the publication of its own judgment, in exactly the same place and with exactly the same prominence as the original article. That was on the basis of a court decision. In a voluntary system, there is always an element of negotiation. But I think you can take it, from our point of view, that the council’s interpretation of the phrase "with due prominence and promptly" is of keen importance to the council, and if there is any attempt to circumvent that, the council takes appropriate steps to make sure that it does not happen.

Q143 Steve Rotheram: The Irish regulatory system itself relies on the industry agreeing an annual budget, which in principle seems appropriate in the respect that the industry itself contributes. But how can any regulator be seen to be independent if it has to apply every year for funding from the very people it would wish to regulate?

Professor Horgan: Yes, it is always an issue. There are press councils in various other parts of Europe where the press council itself is partially supported by the state. In those countries-there are about half a dozen of them, to the best of my knowledge-neither the press nor the press council see this as any impairment of their independence. Culturally, in Ireland, there has been very strong resistance by the press industry to the idea that the state should in any way subsidise an organisation like the Press Council, because they fear that this will be the thin end of the wedge of state involvement and state regulation. That is their choice. They favour that choice by supplementing us. As the person who has negotiated the budget, every year for the last five years, with our funding bodies, I must say that there has been no substantial difference of opinion between us over the past five years. I think the industry recognises that it is a very small price to pay for the degree of public confidence that it engenders. It works out at approximately a quarter of a cent of the sale price of every newspaper published in Ireland.

Q144 Steve Rotheram: As a body, do you not feel like you are hamstrung by having to go with the begging bowl every year? Does it not affect your independence?

Professor Horgan: Absolutely not. In fact, there is a provision in the Act that might be relevant here, because under the Act-we have recognition under the Defamation Act-it is technically possible for Parliament to withdraw recognition and to withdraw the privileges and incentives that accompany recognition if it felt that the industry was in any way short-changing the Press Council or making it impossible for the Press Council and the Press Ombudsman to do their jobs. That particular reserve power in the Act is a protection of the independence of the council and of my office and of its entitlement to appropriate funding.

Q145 Mr Bradshaw: That sounds like another piece of statutory underpinning.

Professor Horgan: It is part of the same piece of statutory underpinning. That is the way the Act has been written. It is anything but a threat. It is part of the guarantee of our independence from the industry. It is also worthwhile pointing out that, at the time at which we were recognised by Parliament under the Act, we had already been in existence for two full years, so they were not buying, as the Irish expression has it, "a pig in a poke". They knew exactly what they were recognising-they were recognising its independence.

Mr O'Ceallaigh: It is actually a guarantee of the system in the sense that were the Press Council or the Press Ombudsman’s Office not be seen to be doing the job that they should be doing, it is possible in a technical way for Parliament to take away that recognition that they have.

Professor Horgan: If it did choose to so act, the result would not be state regulation. It would be simply the restoration of the status quo.

Q146 Jim Sheridan: Good morning, gentlemen, I am Jim Sheridan MP. Gentlemen, I was in Ireland at the weekend and met with politicians from all the main political parties. There seems to be the same situation in Ireland as there is in the UK-this continual friction between the press and politicians. Indeed, the press in Ireland are just as intrusive into the private lives of politicians as they are in the UK. Is that a fair assessment of what is going on in Ireland?

Mr O'Ceallaigh: The politicians frequently are very unhappy indeed with what is said about them in the press. Sometimes they are very unhappy about what they see as intrusions into their privacy. As I mentioned earlier, there have been three complaints made to us by senior politicians and the politicians have won on each occasion. Where politicians feel that any element in the media has breached the code, it is open to them, as it is to any other citizen, to complain to us.

Q147 Jim Sheridan: You will probably be aware that in the UK there have been some exaggerated fears of political interference in the press. I note that the Irish Press Council has been recognised and regulated by resolutions in both Chambers. Has there been any interference or any other problems regarding politicians appointing or agreeing the regulator?

Mr O'Ceallaigh: No, there has not been anything at all. The politicians and the Government have absolutely no role to play-and, indeed, neither has the industry-in the operations or in the policies of the Press Council or of my office. In fact, following up on your earlier question, I think it is true to say that the relationship between the press and politicians has always been a fairly spiky one, not only in our country but in every country that I am aware of. I cannot imagine that there is any press council in the world that will lead to a satisfactory total resolution of this eternal tension. I think that is the way it should be, by and large, as long as the code is observed and appropriate statutory professional practice is followed.

Q148 Jim Sheridan: In hindsight, would you have chosen any other way to bring in this recognition of the press regulator?

Professor Horgan: The actual core of our model is identical to that proposed by Lord Justice Leveson in number 71 of his recommendations, in which he said effectively it is for the press to bring forward a model that will meet the criteria that have been laid down. The criteria laid down in our Act are the ones by which the press create a body, which we are, which the press have satisfactorily met over the last five years. So there is no essential difference, in principle, between what Lord Justice Leveson has proposed and what we have operated under for the last four or five years. There are fairly substantial differences in detail.

Q149 Jim Sheridan: Can I just confirm there are no mistakes that you have made that we can learn from?

Professor Horgan: Perhaps our initial procedures were a little bit complicated, and we have simplified them, but we are always learning in the sense that we have a very broad set of principles that have to be applied to a very wide range of circumstances. We are doing our best to implement and apply the code in as honest and impartial a manner as we possibly can. I think there is a fair measure of public acceptance of that, which is not to say that we are perfect. We are trying to improve the system all the time.

Q150 Jim Sheridan: Finally, I understand that you have a member of the NUJ on your Code Committee. Does that create a problem in any way?

Professor Horgan: I am on the Code Committee as an ex officio member. The NUJ are on the Code Committee. The NUJ are also on the council itself where they are represented by a retired journalist. I think it is important to say that from the very beginning of the discussion about the Press Council, way back in 2002 right up until the present day, the contribution of the NUJ has been enormously positive and has been recognised as such by all the other participants.

Q151 Mr Leech: What are the main advantages and disadvantages of having a Press Ombudsman as the first part of the complaint procedure?

Mr O'Ceallaigh: The first advantage is that there is a specific person who is known to the public rather than the committee. The initial complaint is always made to the Press Ombudsman, and he is a specific person and known to the public. That is the first thing.

The second thing is, the operation that we have in the Press Ombudsman’s Office is quite a small one. There is a complaints handler and there is the Press Ombudsman himself. When the complaint is made, the complaints handler will try to resolve the complaint with the newspaper after the complainant themselves has failed to resolve it with the editor. The procedure is quite quick. It does not take a long time before it goes to the Press Ombudsman, who will normally make a decision quite quickly. So the first thing is that there is a person there who is known publicly and the second is that complaints can be dealt with quite quickly.

Thirdly, and most importantly, where either the complainant or the newspaper is unhappy with the decision of the Press Ombudsman, there is an appeal system. There is a feeling that if they are unhappy with a decision they can then appeal it. It would be much more difficult if it were made in the first instance to the Press Council, because there would be no appeal to the Press Council.

Q152 Mr Leech: Does it have an impact on cost, to make the process cheaper?

Mr O'Ceallaigh: Probably, yes. The operation of the system is that in the Press Ombudsman’s Office there are three people: the press officer, the complaints handler, and the secretary administrator to both the Press Ombudsman’s Office and the Press Council. The council itself meets 11 times a year, normally for two and a half hours. It is a relatively simple and quick procedure. I think the big advantage with having the Press Ombudsman is that there is a particular figure, first, and then, second, that the complaints can be handled very quickly.

Professor Horgan: I understand what Dáithí has said, in one respect, but the fact that we have an appeal system does contribute to acceptance of the system, both by newspapers and by the public. The appeal system seems to have been working reasonably well, insofar as the volume of appeals has actually gone down quite substantially. When we were set up and started business in 2008, virtually everybody appealed everything all the time. In the early years, the first year or so of operation, almost three quarters of my decisions were appealed. That ratio has now gone down by about half, to something under 35%, and very few appeals are upheld by the council. So there is this sense of a second chance for both parties to a complaint if they feel that they have not been properly heard.

Q153 Mr Leech: In my experience with different ombudsman services in the UK, a lot depends on the public perception and confidence in the individual who is the ombudsman. Is there a sense that you are reliant on public opinion being that the Ombudsman is doing a reasonable job?

Mr O'Ceallaigh: It is not possible for John to answer that, so I will try to answer it.

Professor Horgan: I accept that.

Mr O'Ceallaigh: The Ombudsman is well known. He is a former journalist himself. He is a former Member of Parliament. He is well known, and he is a former professor of journalism. He is the public face of the Press Council and the Press Ombudsman’s operation in this country, and I am responsible to him.

Q154 Mr Leech: On that basis, then, the appointment of the Press Ombudsman, it is vital that you get that appointment right so that people can have that public confidence in that individual?

Mr O'Ceallaigh: Yes, and that appointment is made by the Press Council itself. The industry has no say whatsoever in the appointment of the Press Ombudsman.

Professor Horgan: It is also important to add that our appointment system underlines our independence, because all appointments are industry members and independent members of the Press Council, made by or ratified by our appointments committee on which the industry is not represented at all. That is classic arm’s length independent regulation, if you want to describe it as that.

Q155 Mr Leech: Do you ever get any complaints from people about the independence of the Ombudsman?

Professor Horgan: I think when I make a decision I am always going to disappoint at least one person. Sometimes I manage to disappoint both of them. People have complained about my decisions, but very rarely have they argued that I made the wrong decision because I was not independent. There is certainly a public perception, which has been echoed on your side, that simply because we are financed by the industry we cannot possibly be independent, but the answer to that in the long run, I think, is the quality of the decision making, both by the Ombudsman’s Office and by the Press Council. That takes time to establish, but I think we are well on the way to doing that.

Q156 Mr Leech: Can the council initiate its own investigations without receiving a complaint?

Professor Horgan: The council does not have that power. The PCC did have that power. It exercised that power in relation to the News of the World in relation to a matter that, I felt, was a more appropriate matter for investigation by the police than by the PCC. It was not a marked success in any shape or form. I think the problem about establishing own-initiative investigations is that, effectively, that could only be done with the agreement of the industry. If the industry decides not to go down that route, I think that would be a reason for us not to try to go there independently, because it would perhaps involve unnecessary conflict. We can take third-party complaints under certain circumstances, and that is also a factor.

Mr O'Ceallaigh: I would just like to emphasise there that this is a voluntary system. It works with the co-operation of the industry, and I doubt very much at this stage if the industry would support complaints that were initiated by us.

Professor Horgan: I would add that anything that is serious enough to warrant serious investigation requires a body with serious investigative powers, and many of the subjects that people think that a Press Council should investigate might more properly be investigated by other agencies such as the police.

Q157 Mr Leech: Have there been any circumstances, though, where you feel that there would have been an opportunity if you had those powers to initiate a complaint?

Mr O'Ceallaigh: Not those particular powers, but there have been cases where, had we had a complaint, we might have welcomed it. But under our system we need a complaint in the first instance.

Q158 Mr Leech: Would you accept, then, that that is a potential flaw in the system if it so happens that no one complains although there is clearly a reasonable ground for complaint?

Professor Horgan: Lord Justice Leveson asked me that when I gave evidence to him. It can be perceived as a weakness in the system, but whether it actually is a weakness depends on the way the system operates as a whole. One of the big problems about investigation is the same as the problem about financial sanctions. If you are going to have powers of investigation, you have to have some sanctions for people who do not participate, or who do not want to answer your questions or do not want to provide documents. If you are going to have enforceable sanctions on people for not participating in an investigation, you are again coming perilously close to the dividing line between state regulation and voluntary, independent regulation, which is what we have.

Q159 Paul Farrelly: Hello. Am I correct in understanding that the Irish Daily Star, the Mirror, The Sun, they are all members of your organisation?

Mr O'Ceallaigh: The British newspapers that are members of our organisation are those that publish Irish editions.

Q160 Paul Farrelly: That also includes the Daily Mail?

Mr O'Ceallaigh: The Daily Star, the Irish edition, and the Sunday Mail.

Q161 Paul Farrelly: How would you give an explanation for the fact that those newspapers, including the Daily Mail, are willing to sign up to your system but over here they have been fighting tooth and nail to try to keep a system that is not even as independent as yours is?

Mr O'Ceallaigh: I cannot answer that. But they do work very much with us.

Professor Horgan: I think it is fair to say that at the very beginning, although I was not part of the negotiations that set up the Press Council, the British-based titles were very anxious at this statutory underpinning model that was being put forward, because they felt that it was the thin end of the wedge of state regulation. I think the experience over the last four or five years has demonstrated to them that this was not the case and that statutory underpinning of a relatively light kind, in a system that is relatively simple, does not present the threat of state regulation that they thought it did. They may have other objections to what Lord Justice Leveson has proposed, but at least they have accepted the concept of statutory underpinning in the form in which it exists here. There has never been a threat to the buying of the papers.

Mr O'Ceallaigh: One of the members of the Press Council is the same journalist of one of the British-based titles.

Q162 Paul Farrelly: That was an argument that was very strongly presented by Lord Hunt at the Leveson inquiry. You seem to have demolished it as far as Ireland is concerned and their practice there, as the senior counsel at the inquiry dismissed it here when he said they were tilting at windmills that did not exist. But can I put my original question in a different form? Do you think it is worthy of remark that the newspapers here are fighting tooth and nail against a system that is not as independent as yours, yet are willing to sign up to your system?

Mr O'Ceallaigh: I cannot answer that. I just do not know. I do not have sufficient knowledge to answer that question because I do not know the situation in the United Kingdom. But certainly here, the British titles that produce Irish editions co-operate fully with us.

Professor Horgan: It is not clear to us, or to anybody outside the people who are carrying out the negotiations at the moment, exactly what British newspapers are prepared to sign up to in Britain and exactly what they are objecting to in Britain. That will come out in the wash, but it is not clear to any of us over here as yet.

Q163 Paul Farrelly: Could I just ask you who in Ireland makes sure that the Press Council and the Ombudsman are doing their job properly?

Professor Horgan: Effectively, the backstop is Parliament. Parliament has recognised us under the Act. The Act says that only one body can be recognised as the Press Council. As I mentioned earlier, it does have the technical, theoretical possibility of derecognising the council if it feels that it is not doing its job properly or is not being independent enough. We do not report to Parliament and there is no time limit on that recognition. Effectively, we have been recognised and we have been sent out to do a job, and we will continue to do it for the indefinite future.

Mr O'Ceallaigh: Were a situation to arise in which we were deemed or believed not to be doing the job, it is open to Parliament to decide we are not doing the job.

Professor Horgan: If it did that and decided to derecognise us-although I think this is really in the realms of fantasy at the moment-it would be up to the industry to lend its hand or face the possibility that Parliament might want to recognise a different body as the Press Council.

Q164 Paul Farrelly: We have talked about the requirement to publish your adjudications. Apart from asking newspapers to publish them with due prominence, do you direct them to make apologies and print apologies as well?

Professor Horgan: The publication of decisions is separate from the publication of apologies or corrections. Apologies or corrections, when they are published by newspapers, are usually the result of a satisfactory conciliation procedure carried out in my office. So apologies and corrections, which are published by newspapers, are generally in that context rather than the context of a decision to uphold a complaint, because if they agree with the complainant what is going to be published there is no need for us to make a decision in the matter.

Q165 Paul Farrelly: But if you then adjudicate a complaint and your adjudication is presumably quite lengthy, does it simply end with the complaint being upheld or, as part of upholding the complaint, do you then direct a newspaper to print an apology on page 1 if the transgression was on page 1?

Professor Horgan: No, that is not part of our system. Our system requires a newspaper to agree simply to publish the decision with due prominence. On some occasions, those decisions have included an apology. I can think of one decision that was made recently that included an apology by the newspaper, but which was not accepted by the complainant because the complainant believed that it was not going to be published with sufficient prominence. In that particular case, the newspaper’s apology was published as part of the decision.

Q166 Paul Farrelly: In strict terms, if they publish the adjudication to the complainant’s satisfaction, is the apology entirely voluntary?

Professor Horgan: That is correct.

Q167 Paul Farrelly: Could I ask one final question of you? One of the seminal cases here was the treatment of the McCann family, who did not feel that they were going to get any effective redress from an organisation that was effectively controlled by the newspapers that they were complaining about. To everybody, it was quite clear that the McCann case involved the gravest breaches of standards, the gravest breaches of the press’s own code. What would you have done in that instance, in terms of trying to uphold standards and the code, if the McCanns had not complained to you?

Professor Horgan: We would have operated on the basis of a complaint. It is a matter of considerable regret and concern that initially the McCanns decided not to complain to the PCC at all. We do not know precisely what would have happened had they done so. Eventually, a court found in their favour very substantially in terms of damages. But a complaints-based system-which both the PCC has been and we are-has to operate on the basis primarily of complaints. I would hope, as reputation grows and the recognition of independence grows, that people who might be afraid or unwilling to make complaints will recognise this and be more ready to make them in the future than in the past.

Q168 Paul Farrelly: The final point is that the feeling here-I do not know whether you would agree-is that with Leveson, the treatment of people such as the McCanns and phone hacking, the complaints-based system simply did not work. There was a need to move towards a more effective system that upholds standards as well. Now, perhaps you have not got there because people who come to edit the Irish editions undertake a personality transplant when they cross the Irish Sea and they are far less feral and more responsible in Ireland, I do not know, but there is a feeling here that standards need to be more effectively upheld. Therefore, perhaps your model is behind our times.

Professor Horgan: As I said when I gave evidence to Lord Justice Leveson, newspapers operate in a cultural context. I think the cultural context in our two countries is different. That may explain the different levels of acceptance for what we have been doing over the last five years and the problems that have been experienced by the PCC in Britain at the present time. We have never argued that our system is capable of being, or should be, exported from us over to the United Kingdom. Every country has to establish its own procedures and its own institutions, and this has been the way right across Europe and outside Europe where there are various models of independent, voluntary press regulation, some of them with far more presence of the press than either we have or the PCC has, but they have established public confidence. The critical thing is whether any system that is proposed or established can achieve public confidence.

Mr O'Ceallaigh: If I might just add one thing to that, in the western democracies there are many different forms of democracy, as we all know, and equally there are many different forms of press regulation. The second point I would like to make is that phone hacking is a matter for police. No regulator could deal with that.

Q169 Chair: Can I just pick you up on that last point? Because one of the tests of a new system, we have been told, is to satisfy the victims of phone hacking, and particularly Milly Dowler’s family, which was perhaps the worst case. You are saying that you would not have been able to prevent that in Ireland had it been happening there.

Mr O'Ceallaigh: No, I think phone hacking is a crime that needs to be dealt with by the police. I do not think it is something that can be dealt with by a complaints system. It is much too serious for that.

Q170 Chair: Had the kind of abuse that has happened in the UK taken place in Ireland, what would you have done about it?

Mr O'Ceallaigh: Gone to the police.

Q171 Chair: You would not have mounted an investigation by the Press Council?

Mr O'Ceallaigh: If there was clear evidence of criminal behaviour, I think that really is a matter not for us but it is a matter for the police.

Professor Horgan: It is worth pointing out, of course, that when we talk about regulating and regulations there are many forms of statute that regulate the press in terms of court, defamation and so on. The idea that the press is not properly regulated because a press council does not have the powers that are given to other bodies by statute, I do not think that holds water.

Q172 Chair: But it is significant that you are essentially saying that the body that we are likely to create, which in large part is going to be similar to the body that you run, would not have been able to do anything about phone hacking.

Mr O'Ceallaigh: I think phone hacking is a crime, and crime has to be dealt with-in this country, certainly-by the police. I am not saying there are not things that we might have been able to do, and this was one of those things that John-

Professor Horgan: We have a standard procedure, which I am sure is the same in Britain, which is that we do not investigate any matter that is at the same time the subject of court proceedings. If I got a complaint about any matter, I would investigate it, including if it was widespread, if it was internal or something like that, but if I came rapidly to the conclusion that this was a matter for investigation by another agency with appropriate powers, that is where I would send it.

Q173 Paul Farrelly: I am coming in again there, because clearly phone hacking was a symptomatic and serious lapse of standards that strayed into the criminal arena, but I deliberately did not use phone hacking as an example. I used the example of the collapse in standards in the McCann case. It seems as if you could not really have done anything about that had the McCanns not complained to you.

Mr O'Ceallaigh: Had the McCanns complained to us, we might have been able to do something about it. But I do not think we were in existence at that time, were we, John?

Professor Horgan: We weren’t, but in our culture I think it is very likely that if a similar case occurred, people in the same situation as the McCanns would have been on to us pretty sharpish and we would have done something about it.

Chair: We have finished all our questions for you. Can I thank you very much for giving up the time to come and join us even if by video-link this morning?

Professor Horgan: Thank you.

Mr O'Ceallaigh: Thank you, and may we wish you well with your work.

Chair: Thank you very much.

Examination of Witnesses

Witnesses: Professor Brian Cathcart, Hugh Tomlinson QC, Jacqui Hames and Baroness Hollins, Hacked Off, gave evidence.

Chair: Good morning. For our second session this morning we are delighted to welcome you in person, rather than by video link. Representing Hacked Off, can I welcome Jacqui Hames, Hugh Tomlinson QC, Professor Brian Cathcart-who was of course an advisor to this Committee when we were looking at libel, privacy and press standards-and Baroness Hollins? Jim Sheridan is going to start off.

Q174 Jim Sheridan: Good morning. What are the most important aspects of a press regulator from your point of view? What are you looking for?

Professor Cathcart: I think the most important thing, and we have been saying this from way back, is that the regulator should be effective-we have long experience of regulation that is not effective-and that it should be independent. In all circumstances, it absolutely must be independent, both of the industry and of the political influence of your good selves.

Hugh Tomlinson: Can I add just one thing, if I may? A crucial aspect of Lord Justice Leveson’s recommendations-and this is something that is new-is to add an arbitration service to the press regulator. The reason he did that was for access to justice. I know that you are all very familiar with these issues, but there is a fundamental question as to how ordinary members of the public can get redress for wrongs. Without legal aid and with the CFA regime being changed, you have to have some simple, cheap and effective way. He said an arbitration arm was a crucial and vital part of a new regulator.

Q175 Jim Sheridan: Without wishing to compromise in any way, which of Leveson’s recommendations are non-negotiable?

Professor Cathcart: In relation to regulation, I would say that all of them are non-negotiable.

Q176 Jim Sheridan: So there is no room for compromise anywhere?

Professor Cathcart: The way we view it is that, at the behest of Parliament, Lord Justice Leveson conducted a year-long, extremely thorough investigation of these matters, with a broad remit. He heard every conceivable interested party and, in our view, he brought in what is a very measured, cautious report. In fact, some of his recommendations fall short of things we had hoped for. To use the words of Gerry McCann, this is "the minimum compromise" that would be workable and acceptable for our supporters, including-many of them-victims of press abuses in the past.

First of all, I think that what Lord Justice Leveson has created is a coherent package. The parts rely on each other and connect to each other very thoroughly. If you start picking out a piece here and a piece there it won’t work. So, without wishing to sound dogmatic about it, I think the whole package, so far as regulation is concerned, should be non-negotiable. This is a package, not a series of discrete recommendations.

Q177 Jim Sheridan: You will be aware there are discussions going on between the coalition Government and the Labour Party on this issue, so your clear message is implementation in full?

Professor Cathcart: Yes. I think Leveson himself laid out a fairly clear road map for implementation. He hoped to see a very open, pretty swift process by which his recommendations were translated into a Bill and this went forward with cross-party support through Parliament. This created the recognition body that itself immediately became independent of political influence. He was very concerned about the way previous recommendations for press reform had fallen by the wayside, again and again, because they slipped into this nexus of debate between politicians and the press. Constantly in that process, the influence of the interests of the public, and of the interests of some of the people who have experienced press abuses, is lost and what you end up with is either the kind of deals that have ended up giving us nothing.

Q178 Jim Sheridan: Has Leveson addressed all your concerns, do you think?

Professor Cathcart: All our concerns? I would go back to that quote from Gerry McCann. I think that it is the minimum compromise. I think there were things that we were hoping for that weren’t there, but if this were implemented as a whole it is workable.

Hugh Tomlinson: I just want to add one thing about negotiations. There are cross-party talks, as everybody knows, but it has not been suggested to us by anyone that in those cross-party talks, people are negotiating away bits of Leveson. What they are talking about is mechanism and process, or a Royal Charter, or statute and so on, but nobody-I do not think even the press-has said, "Oh, we’d like to take this bit out here and take this bit out here". Brian is absolutely right, the way that the judge thought about it, he balanced interests very carefully indeed, and it all hangs together, and once you start pulling a thread the whole thing falls apart.

Baroness Hollins: I think the recognition body is needed to protect the public, and it needs to be independent. That seems to me to be absolutely critical. I think one of Lord Justice Leveson’s hopes was that this would not become a politicised process, which it seems to be in danger of becoming.

If I might just ask a question of the Chair, I want to ask whether the purpose of taking evidence about this is to produce another report, or whether in some way it reflects a lack of trust in Lord Justice Leveson’s work.

Chair: I think it is unusual to ask the Chairman a question.

Baroness Hollins: Yes, I am sure it is.

Chair: However, I am very happy to answer it. The question of whether or not we produce a report the Committee has not yet decided. Obviously the purpose of these hearings is to take the different views of the various bodies affected by Leveson, to see how they respond and to try and identify possible ways forward. Select Committees almost routinely examine possible legislation that is going to come before Parliament. It is part of our function, and this is part of that process.

Q179 Jim Sheridan: I think you would normally call it a wash-up meeting. Finally on this question, you mentioned independence. How independent would the regulatory body be? I think Leveson recommended that the taxpayer should not pick up the bill for any regulatory body and that it would instead be the industry itself. So who pays the piper calls the tune.

Hugh Tomlinson: People say, "He who pays the piper calls the tune", but it is absolutely standard for regulators to charge those they are regulating fees for doing it. I am a barrister. I am regulated by an independent body backed by statute, but we have to pay fees for our practising certificate, and financial services works like that and so on. I do not see any problem with a situation where the press is paying a fee to the regulator, and the regulator has all the independence guarantees that Lord Justice Leveson proposed.

Q180 Paul Farrelly: Before we move on into the technical detail and process, Chair, I wonder whether I could ask this. We know about the case of the McCanns, and Gerry McCann has been mentioned. Hugh and Brian, if you will forgive me, you are part of the furniture now, but we do not really know how you, Jacqui, and you, Baroness Hollins, were treated and how it showed failures of our regulatory system. I wonder whether both of you-in public now-could briefly rehearse your experiences.

Jacqui Hames: Yes, I was a serving police officer, as indeed was my husband at the time, who was a detective chief superintendent. He had been tasked with making an appeal on Crimewatch as a way of reopening a case into the murder of a private detective called Daniel Morgan, who had been murdered back in the 1980s. During the course of that appeal, it reopened and reignited discussion about the case. Intelligence was received by the Metropolitan Police that-as a result of his taking control of this case once again, and bringing it forward-action would be taken by the suspects in the inquiry to discredit him in some way in order to derail that inquiry, and, by default, myself and potentially our family. As a result of that intelligence, we were placed under the umbrella of the witness protection scheme in the Met and were highlighted to the fact that there may be some interest in us as individuals, as a family. A few days after that we were put under surveillance by some white vans, and some attempts were made to find out his financial details from a previous force that he worked for. When the identity of the people in the vans was established, it turned out they were in fact from News International, which was a completely leftfield event, as far as we were concerned, because this is not what we were expecting at all.

It subsequently turned out that there were connections between one or two of the suspects involved in that original investigation and individuals who were working at the News of the World. Obviously that is still a cause for investigation in the Met, and we need to get to the bottom of it once and for all. But the explanation that was put up at the time by the then editor of News of the World was they were investigating the fact that we were having an affair. Now clearly we had been married for several years and had a couple of children. It doesn’t say a lot for their research strengths, but that was the explanation that was put up.

Q181 Paul Farrelly: Did you complain to the regulator or did you feel it was not a body that was worth complaining to?

Jacqui Hames: As serving police officers, the difficulty was that ultimately this was a murder inquiry. I was of the opinion that it would be dealt with by the Metropolitan Police. As I understand it, there was a meeting held at Scotland Yard challenging Rebekah Brooks about these incidents, some of which we didn’t know about. We only knew subsequently, through the Mulcaire diaries, that in fact our phones were hacked and various other things had gone on. But she just reiterated that explanation. To be honest, to this day I still do not why that wasn’t pursued further because I would have expected the Metropolitan Police, in supporting its officers, to have taken it much further than that. However, as a serving police officer, as I say, I would expect the first priority for the police service to be investigating that murder. I would expect the victims and family to want that to be the first priority as well, so I did not pursue it as much as I could have done at the time-I say that regretfully now. I think that is being looked at again. It may be that they will get to the bottom of it with the passage of time, or maybe they won’t.

Baroness Hollins: Lord Justice Leveson’s report, of course, was about the culture, standards and practices of the press. In 2005 our daughter, Abigail, was stabbed and paralysed. We were subjected to the most extraordinary intrusion into our lives, which went on for several years. The most recent serious case was two years ago, which was seven years after the original injury. She had had another baby, and the Daily Mail placed a constant surveillance outside the house for a month with photojournalists and if she went out in her van she was followed. That was the most recent event.

What happened was that we had thousands of news reports. Yes, there were television reports as well, but the television reporting was much more accurate and sympathetic. In fact, most of the reporting was sympathetic and it wasn’t defamation. It was intrusive. It harassed us. It intimidated us. It prevented people from going out and about and conducting their normal business. Much of it was untrue-not in a negative way, but it was made up. It was just fabricated. It would be taken off the internet. Somebody would write a piece, a two-page piece, it would be lifted from the internet, words moved around, perhaps one new piece of information added and it is another exclusive. We never gave any exclusives-they were all exclusives. Of course, everybody believes what they read in the newspaper. People would tell us about what they had read and I would say, "Well, actually, it isn’t true" but people believed it. So it creates a very strange world where everybody knows an awful lot about your family, an awful lot of which isn’t true, and it is just constantly there.

I had some really surreal experiences, like travelling on the underground to go to visit a hospital that my daughter was hoping to go to, and seeing opposite me four different newspapers being read by different members of the public, all with a photograph of my daughter on the front page. Everybody kind of knew her and knew her story, and it was just an extraordinarily difficult experience to deal with as a family.

Q182 Paul Farrelly: Did you complain to the regulator?

Baroness Hollins: I did.

Q183 Paul Farrelly: Did you complain to the Daily Mail about the last incident two years ago?

Baroness Hollins: I did. I did try to complain to the Press Complaints Commission, but what you need to understand is that I do not think it should be down to a member of the public to have to try to monitor and manage the press. When you are involved in some deeply upsetting personal circumstance, the last thing you have energy for is to go to court over something or to pursue an investigation over somebody. I rang the Press Complaints Commission on two occasions or perhaps three occasions, and my sister rang on two occasions, but we got nowhere really. They basically said that they couldn’t help. The reasons given, for example over the business of the Daily Mail sitting outside, were that unless I could give them the names of the journalists they couldn’t help me. They couldn’t do anything. The photojournalists-there were three that I recall-declined to give their names and they declined to say who they worked for. I put two and two together because there was always a copy of the Mail on the back seat, and indeed, when I gave evidence to Lord Justice Leveson, Paul Jacobs’ response was not to say that it had not been the Mail but rather to dispute how many metres away from the house they were. There was no apology actually. And it is unpleasant.

My husband and I would go out for a walk to our local common, and we would be conscious of the fact that we were walking past a car and may be being photographed going out for a walk, casually attired, and we would feel uncomfortable about it. That is a just a minor, minor issue, but there were telephoto lenses. On one occasion when they followed my daughter in the car-this is the most recent episode-they went to her son’s sports day. You are not allowed to come up and photograph children at the sports day, and they were identified by somebody as not being a parent and asked to leave. They said they hadn’t done anything wrong and they hadn’t taken any photographs, but what they had wanted to do was to get a photograph of Abigail.

We had a situation when my mother-in-law who was dying. She had terminal cancer. A journalist turned up at her house and she rang to say, "I’ve got a journalist here who won’t leave until I provide a photograph of Abigail, and I am wondering which photograph to give her". We tried to persuade the journalist to leave, and in the end my sister called the police to ask the journalist to leave.

What else can I say? When Abigail was first injured and was in intensive care, because the police did not know who had done it they put a guard on each end of the intensive care ward. Once they had decided that they knew who had committed the crime, or they were pretty sure they had a suspect, the police continued on a voluntary basis to keep an eye out. It was to keep the journalists out. We believe that our phones were hacked. We do not have evidence for it, except for the fact that information appeared in the papers that could only have come from listening into conversations. For example, five days after her injury the News of the World published a piece saying that she was pregnant. She did not know she was pregnant. She might have just been told by then because it was found out when she was admitted. I think that is extraordinary, that the News of the World thought it was right to put it on the front page of their newspaper.

Paul Farrelly: Thank you. I have been staked out by the Daily Mail when they were making things up. I just thumped a hooligan in self defence and it was nothing as harrowing as your case, so thank you very much.

Q184 Mr Leech: I want to pick up on something that you have both just said, because our previous witnesses were the Irish Press Ombudsman and Press Council, and the point Baroness Hollins made about not wanting to have to constantly monitor the press is relevant. The point was made that given the lack of a criminal process from the Metropolitan Police, such issues would not be addressed by us introducing an Irish-style model. I wonder whether you have any comments in relation to how your Bill would differ from the Irish model and would address those concerns that would not be addressed if we were in Ireland.

Hugh Tomlinson: The first thing to say is that what Lord Justice Leveson recommended is drawn from the Irish model, but it is not the Irish model, and things are very different in Ireland. One thing you have to understand about press regulation is that it depends very much on the culture of the particular country. We have particular problems in England that we have to deal with. What the Press Complaints Commission has been is simply a complaint service, and on some level, sometimes, it does that well. Of course, that requires individuals to make complaints, as has been said.

What Lord Justice Leveson recommends-and I do not think anybody disagrees with this part of it at all-is that, for the first time, there has to be proper regulation. There has to be a proactive body that regulates, in the way that any other profession is regulated. If there are reports of doctors prescribing the wrong drugs, then there is an investigation. People do not have to make complaints. I think the short answer to your question is that the type of regulator that Lord Justice Leveson envisages being recognised by the independent recogniser is one that, as well as a complaints arm and an arbitration service, will also have an arm that does regulation and enforces standards. If it sees the terrible breaches that people have experienced, such as the people giving evidence today but also other people, and sees that there is a child death or something that attracts a lot of media coverage, it will be in a position to say to the newspapers, "Remember, these are the limits. You are going too far-don’t do it". I think what Lord Justice Leveson envisages is a regulator that will do regulation for the first time and therefore, in practice, will be able to deal with these kinds of problems.

Professor Cathcart: If I could just add to that, much of what you have heard, insofar as it is not against the law-and some of what you have heard is against the law-would have been covered by the Press Complaints Commission and the editors’ code of practice. The problem with that is that it was only enforced occasionally. The PCC itself did not have the clout to call editors to account, and that was a systemic failure. Leveson analyses it very closely, and at great length, and demonstrates where the faults lay. His structure is designed to create something that is both effective and independent and capable of making a code of practice apply.

Q185 Mr Leech: Would you accept, then, that those changes make Leveson fundamentally different from the Irish model?

Professor Cathcart: Yes.

Q186 Mr Leech: Certainly, from what we were told by the previous witnesses, they would see what is being proposed in Leveson as being completely different to what they-

Hugh Tomlinson: Yes, and they are right. Recommendation 18, "The Board, being an independent self-regulatory body, should have authority to examine issues on its own initiative and have sufficient powers to carry out investigations both into suspected serious or systemic breaches of the code and failures to comply with directions of the Board." Like any regulator, he proposes that the regulator has that power. That is a mandatory requirement for a body to be recognised.

Q187 Mr Leech: The point I was trying to make was that, while there may be some similarities, and the Irish model may have been looked at as a basis for creating a new model for the UK, by including those provisions it fundamentally changes the Irish system.

Hugh Tomlinson: Yes. It is very important to understand that, looking at the report and the context of the evidence, he has taken suggestions from all kinds of places and integrated them into a balanced package. There are elements from Ireland but it certainly is not the Irish model.

Professor Cathcart: The structure of a recognition body does not exist in the Irish system. It is just not the same. That is central to Leveson’s recommendations. There is self-regulation, which is set out and organised by the industry as voluntary, independent self-regulation, and there is the recognition body, which, as Leveson recommended, is underpinned by statute. That provides a sort of MOT test, a periodic test, to ensure-given the history, this is required-that the self-regulator meets the basic standards needed to protect the public.

Hugh Tomlinson: And in Ireland you take the regulator of the Press Council to the Minister of Justice who says, "That’s fine". In England, because of our cultural differences, we do not think it is appropriate to have politicians having that role. Lord Justice Leveson is very clear about that, and I think everybody involved is very clear about that, so we cannot take everything from Ireland by any means.

Jim Sheridan: Chairman, can I just remind you that this Bill covers the whole of the UK and not just England?

Chair: Thank you-that is from our Scottish contributor. We are obviously going to come on to look in more detail at the proposals for the regulatory commission body and the statutory backing. But before we get to that, Ben Bradshaw.

Q188 Mr Bradshaw: Can I just ask for clarification, is the case that you referred to, the relationship between News International journalists and the former accused, is that investigation still ongoing?

Jacqui Hames: As far as I am aware, and I am not necessarily being kept up to date, they have taken it as far as they can at the moment. It does not look like there will be any additional charges. That is not to say that, during the course of the rest of the investigations that are going on, something new may not come to light, but at the moment it is still ongoing.

Q189 Mr Bradshaw: Thank you. Baroness Hollins, please excuse my ignorance, but am I right that your daughter was an ordinary member of the public, not a celebrity or public person?

Baroness Hollins: No, she was just a young mum. She was walking with her child home from nursery school.

Q190 Mr Bradshaw: So there was no remote area of public interest in her case at all.

Can I ask you about the whole membership problem? This is one of the things the UK will come back to. It is about what you do if Desmond decides to walk away from a voluntary system. In your very helpful draft Bill, I think you accept that the system you advocate would not have compulsory membership, but how do you then address the potential problem of a proprietor walking away or simply ignoring a sanction that may be imposed by the regulator?

Hugh Tomlinson: This is obviously a central issue and one that Lord Justice Leveson gave very careful consideration to, and he thought that the way to do it was by a system of sticks and carrots. Basically, the idea is that if you are in the regulator, you have protection against legal costs and exemplary damages are much less likely to be awarded against you. He also made certain recommendations about data protection.

The idea in the end, hanging over it all, is that if regulators are not regulating the whole industry, they are not effective. If a regulator was established that regulated, let’s say, just two or three newspaper groups, I think in the end the recognition body would say, "I’m sorry, that isn’t sufficient". So the ultimate stick is that if people do not join, there should be legislation to establish a statutory framework for press regulation, in the same way as there is a statutory framework for broadcast regulation. Lord Justice Leveson decided that he did not want to recommend that, and specifically didn’t, but he hopes that the balances produced are sufficiently attractive to the press to draw them all in.

Q191 Mr Bradshaw: What about your backstop? I am one of those people who feel perfectly relaxed about Ofcom. I think they do rather a good job when it comes to broadcasting. I cannot understand the general political neuralgia about just letting them do it and the feeling that we need to invent something new or something else. But you lay that possibility on the table as well, don’t you?

Professor Cathcart: As you know, he made two suggestions. He said he would prefer Ofcom, and provided quite a strong rationale for Ofcom. But he said he recognised that some people, as you say, have this allergy and he offered the alternative of a commission. Why did we go for a commission in our Bill? I think we did the same thing he did and recognised this problem. But there is also a problem of principle. It is not beyond the wit of man to overcome it, but there is one problem of principle with Ofcom, which is that the high-level appointment essentially owes something to the DCMS and the Secretary of State. You could argue that that would be a direct political connection with the body doing the recognition. You could fix that by changing it or alternatively you could go for the recognition commission. We went for that.

Baroness Hollins: Can I come back on what I said to you when I said my daughter wasn’t a celebrity? She wasn’t, she was an ordinary member of the public. I wasn’t in the House of Lords at the time. However, I was President of the Royal College of Psychiatrists and there was one incident, which was very concerning, where my position probably did add to the coverage by the press. It was because the Royal College of Psychiatrists was opposing the then Labour Government’s draft Mental Health Bill. There was an article published by the Mail that had information that we believe-and indeed senior civil servants believe-was leaked to the press by the Department of Health. That provided information to the Daily Mail about my son, who is a vulnerable adult with a learning disability, putting a photograph of him in the paper and trying to link an earlier assault on him to the assault on my daughter. The Secretary of State at the time was very distressed by this, and said it was the fourth leak to the press that month.

What was concerning about it was that the Department of Health, the civil servants, had had-and I do not know who circulated it-a briefing about my son sent round. My husband thought I was being paranoid, but I thought at the time that this was an attempt to try to shut me up by putting pressure on me, and that there was some sort of conspiracy going on. That is the effect of having information about your son, which is confidential, disclosed to the media, especially when the source of it appeared to be political. It was very distressing, and my position meant that publicity about my daughter was more likely at that time.

Q192 Chair: I want to come back to a couple of things. Brian, you gave reasons why you had some misgivings about Ofcom. I think you suggest that Ofcom may well be an appropriate body. Actually, as Ofcom was originally constituted, it would not have been compliant with the terms of your Bill, because it was chaired by a peer who had held the Labour Whip.

Professor Cathcart: Indeed.

Chair: I want to make it clear that, like Mr Bradshaw, I have a high regard for Ofcom, and I do not want to make any suggestion that the people running it at the moment are not doing a very good job. But it is the case that the current chief executive was a former member of Tony Blair’s policy unit. His predecessor as chief executive went on to become a Labour Minister. These are people who clearly are going to have political affiliations, but you are quite clear that you do not think that that is appropriate.

Professor Cathcart: Yes. Just as we do not think it is appropriate that the senior figures in the press self-regulator should be taking a party Whip either. I think that a lot of the argument, going a long way back in this, is about independence of politics and independence of political influence. Leveson himself has done his very best, and we also have done our very best, to create the distances that are required to ensure that these are independent bodies.

Q193 Chair: Hugh Tomlinson, as I understand it, we are pretty close on a large area of the recommendations. Most people have accepted the overwhelming majority of what Lord Justice Leveson is seeking to establish, but there are now some arguments about relatively small but nevertheless important issues. As I understand it, one of the most important is about exemplary damages, which you have written a paper about. You want newspapers that subscribe to the new regulatory body still to be vulnerable for the imposition of exemplary damages, perhaps only in extreme cases. That is one of the real points of difference. Am I right?

Hugh Tomlinson: Yes, and that is what Lord Justice Leveson recommended. The reason he recommended that was because he recognised that it is possible for a newspaper to engage in a commercial calculation, "This is a very interesting article about this celebrity. I know that we’re not entitled to publish it, but it’s going to be worth a lot of money to us in sales, so we’ll do it and then we’ll pay the damages when they come". He said, "But when it comes to breaches of privacy, effectively, the damages at common law are not adequate to provide a deterrent, therefore you have to have exemplary damages". That is a very clear recommendation.

If you are in a regulator, one hopes-and obviously he hopes-that a regulated entity would develop a culture where it did not do that. A regulated entity would train its staff or train its editors, adhere to the code and listen to the regulator, so it would not engage in egregious conduct, deliberately breaching people’s rights to make money. But if it did, then he thinks, and we think, there has to be that backstop of exemplary damages. If a regulated newspaper goes completely over the top it should be liable for exemplary damages. On the other hand, if you have a newspaper that is conscientiously trying to follow the rules, is in the regulator, is doing its best and makes a mistake, then it should not be liable. That is what Leveson recommends. He obviously thought about it-this is the balanced package point again-and he did not say, "If you are in the regulator, no exemplary damages, and if you are outside the regulator, exemplary damages". What he said was, "If you are in the regulator, that is an important factor in protecting you against exemplary damages, but in extreme cases you might have to pay anyway."

Q194 Chair: If you are part of the regulatory body then you are also liable, if you have committed a flagrant breach of the rules that has caused extreme distress, to significant fines-up to perhaps £1 million pounds-by the regulator. In that case, why do you need exemplary damages?

Hugh Tomlinson: The law as it stands is that if you have been punished already for your wrongdoing, you will not be punished again. I think the Government version of the Bill makes that express. Ours does not, but it would obviously be a factor. If you were subject to a fine you would not be subject to exemplary damages as well-that is the practicality.

Q195 Chair: If you have committed so grievous a breach of the code that you are going to be subject to a fine, then you are not going to have exemplary damages. If you haven’t, then what would you be liable for?

Hugh Tomlinson: It may well be that the facts are not established until there is a trial. Take the facts of the Mosley case. If the PCC had intervened, the News of the World would have given them their version of events, and without a full trial they probably wouldn’t have found the truth. When it comes out at trial-this is a cynical calculation-there is blackmail of witnesses involved. The whole thing stinks. So you have to have a case. Yes, in a smoothly run world, a regulated entity wouldn’t do it and, if it did do it, it would be fined. But you have to cater for the case where, for whatever reason, the regulator cannot or does not act, the regulatory mechanism does not work properly, and you have egregious conduct that needs to be punished.

Q196 Chair: Isn’t that double jeopardy?

Hugh Tomlinson: No, it is not double jeopardy. Double jeopardy is only if you are punished twice, and I think-

Q197 Chair: First of all, potentially, you are going to get a huge fine, and then if you convince the regulator that it was not that grievous and that it was a genuine act, or whatever, you might still be exposed to exemplary damages because the court might take a different view.

Hugh Tomlinson: That is not double jeopardy. There are cases where people are acquitted of crimes and then people sue them in the civil courts because there is a lower standard of proof. I go back to the balanced package point. We can all say, "Oh, well, we might take a different view from Lord Justice Leveson on this and a different view on that", but once we start unpicking at the edges and saying, "Oh, well, although Lord Justice Leveson thought about this very carefully and didn’t draw a bright line, we will draw a bright line" then all kinds of other things start falling away as well. To take your point, he obviously thought-and I think everybody thinks this as well-that fines should be absolutely the last resort. The regulator shouldn’t regularly be fining newspapers. The regulator should only be doing that in cases where there is systemic and serious abuse. If you have a one-off case of a bad article, where there is a cynical calculation by a journalist, the regulator may take the view that a fine is not appropriate. If the damages are ordinarily £10,000, a judge may take the view that it is appropriate to add a figure for exemplary damages. I think bright lines are always tempting, but they are always dangerous.

Q198 Chair: Yes, but equally, Parliament’s job is obviously to listen very carefully to Lord Justice Leveson, but not just to say, "We have to accept it in totality without any amendment at all". If this is a really important issue that will determine whether or not the newspapers are willing to subscribe or not-and we are told it is a very important issue-at least we should consider whether there is a way of meeting it.

Hugh Tomlinson: You have to be careful about this. This is not a willingness point. This is something that will have to be put into statute, and the newspapers won’t have a choice. If it is in statute in our Bill, or indeed in the Labour party’s Bill or the Government’s Bill, the newspapers have no choice. That is what they have. Those are the rules that they have to comply with. The rules about the regulator are a different matter. There they can pick and choose, but they cannot pick and choose over statute.

Q199 Paul Farrelly: Just picking up the Chair’s point, I am not party or privy to the details of the negotiations that are going on somewhere behind the scenes. It is the first time that I have heard this as a potential sticking point. But if you consider it in the round-as I am sure Lord Justice Leveson did-I can understand why he kept this as part of the package, because, first of all, if you are guilty of that, you shouldn’t have been doing it in the first place whether you are regulated or not regulated. There are issues of moral hazard here, and the unforeseen consequences on making things work if newspapers always have a "get out of jail free" card because they are regulated and therefore immune from other sanctions. I can well see why, as part of the sticks and carrots, that was kept in. I do not know whether you can comment on that.

Hugh Tomlinson: Absolutely. If you look at the report, Lord Justice Leveson says, "From my point of view, this is absolutely plain. You have to have a deterrent when people calculate that, by breaking the law, they can do better than they can by obeying the law". That is what exemplary damages are about, and that is why we need them extended across the board. If you make that calculation, whether you are regulated or not, in appropriate circumstances you ought to be punished, whether it is by the regulator or by the courts.

Professor Cathcart: Just to pick up on that, you used the word "negotiations". We are mystified by what is going on at the moment, because there seems to be silence and we hear nothing of what is emerging from, for example, the cross-party talks, but we hope that what is going on is not a negotiation with the press. The process of Leveson was set up to examine the wrongdoings of the press, who were found to have wreaked havoc in the lives of blameless people in this country over far too many years. The outcome of that inquiry is a report that says, "This is what should happen to the press". In our view, it is not something that should be negotiated with the press to see which parts of the punishment they are happy to accept and which ones they want to reject. That is not the position they are in. They have been found doing wrong over many, many years and they should respond by conforming to what is expected of them by a proper public inquiry.

Q200 Chair: You would accept that Government, and indeed Opposition parties, are sensible to discuss with the press their concerns about the recommendations before moving to bring in a system?

Professor Cathcart: I would look at it differently, and indeed, Leveson looked at it differently. He took the view that discussions between politicians and the press, particularly behind closed doors-and we are seeing nothing here-contaminate the outcome. They reduce the ability of the public to have faith in what emerges at the end, because what they are likely to suspect, rightly or wrongly, is a fix.

Q201 Chair: But at the end of the day, we live in a parliamentary democracy with elected representatives and it is our job finally to decide.

Professor Cathcart: It is indeed, yes.

Hugh Tomlinson: Nobody objects at all to discussions with stakeholders about proposed legislation or proposed ways forward. Lord Justice Leveson says that his report, and he makes it absolutely clear-as you know, part of the report is about the relationship between the press and politicians, and his recommendations cover that area as well as press speculation. He made the matter clear in the speech he gave when he delivered the report, when he said, "I hope that a new transparency will be seen initially in the way that politicians consider how to implement the recommendations of my report". We have no objection at all to those discussions, but it seem to us that they should be clearly and transparently in public, and, if there are meetings, minutes should be published so people know exactly what has happened, so the public can have confidence in the process.

Q202 Chair: I think the Committee would have some considerable sympathy with that, and-partly in answer to Baroness Hollins’ earlier question-I think one of the reasons we are doing this is so that these discussions can be brought out in the open, and we can see where-

Hugh Tomlinson: We are not criticising the way you do it.

Chair: Good, I am delighted to hear it.

Baroness Hollins: Can I just say that the lack of transparency does cause a great deal of concern too among the victims, or as I like to call them, "experts by experience"? What is really interesting to me is that if this had been had any other walk of life-take the medical profession-this would be in the papers every day. The media would be making sure that there was as much transparency as possible, as much light as possible shone on what was going on behind the scenes, if indeed it was happening behind the scenes. The press are not about to tell us what is going on for themselves, so there is much less transparency than there would be if it had been any other area of occupation. I think that is really, really worrying, and I think people should be very sensitive to it. Don’t forget, the Prime Minister did say that there would be a victim test-if the victims were not happy, then it wasn’t going to be fit for purpose. I just don’t think it is down to a private negotiation, really. So I am glad that you are asking questions.

Jacqui Hames: Can I add something very briefly to that?

Chair: Yes, of course.

Jacqui Hames: I think one of the biggest issues that came out of Leveson for me, as an ordinary member of the public going into these things and looking at a public inquiry in detail for the first time, was that what people perceived to be wrongdoing in many cases may not have been. There may have been legitimate things going on and legitimate discussions going on, and that is carrying on. But there is that perception, and I get it day in, day out. People are saying, "What is going on? Is David Cameron just sorting it all out with his friends, the proprietors?" I think we are in huge danger of the whole process being perceived as being pushed into the long grass, when in fact there may be some very good discussions going on, but we need to know what they are.

Chair: I have a great deal of sympathy with that.

Q203 Jim Sheridan: Can I just make reference to your own proposed Bill? When you say clause 10 is based on an assumption that the Act extends only to England and Wales, and that clause 10 is based on the assumption that the Scottish Parliament and Northern Ireland Assembly will wish to consider their own recognition body, given that we have the BBC and that all the major newspapers are produced throughout the UK, why do you make that assumption?

Hugh Tomlinson: In fact, we are talking here about the newspapers. As you know, the newspapers are published in Scotland and read in Scotland and there are distinguished newspapers, the Scotsman, the Herald and so on, which are purely Scottish newspapers that don’t have English equivalents. We have done this out of a sense of we do not want to trespass into what-

Q204 Jim Sheridan: Isn’t Parliament responsible, though?

Hugh Tomlinson: I think there is a dispute about that. My understanding is that the devolved Assemblies think this is within their competence.

Jim Sheridan: They may think a lot of things are within their competence.

Hugh Tomlinson: We put this in out of caution. We do not have a strong view on it one way or the other. We can see the argument for UK-wide regulation, but the regulatory system that is being discussed is one that is focused on the English press. Whether or not a similar system is adopted in Scotland is a matter which-

Q205 Jim Sheridan: I think you are doing yourselves a disservice if you are restricting it to England and Wales, but that is entirely up to you.

Professor Cathcart: I should say our Bill is subject to consultation at the moment, and we are inviting input from anybody who has anything thoughtful to contribute, so we will no doubt get submissions along the lines that you suggest.

Hugh Tomlinson: As you know, the Scottish Government have set up a committee to consider their own response. Whether it is within their competence I think is outside our competence.

Q206 Jim Sheridan: Anyway, moving on. Given the practicalities of individual journalists working under pressure, we know how the system works. If they object, they simply find themselves unemployed. Has Leveson produced any protection for individual journalists who may have some sort of conscience when they are asked to do things?

Professor Cathcart: That is a fundamental question here, and I speak now as somebody who worked in journalism for many years. One of the changes that this system could bring about is editorial accountability and responsibility at the heart of newspaper-making. I would argue that the effect of that would be to transfer responsibility down through the system. That would give more protection to journalists, who could say, "Look, it says if I do this, it is a breach of the code. If I do this and the newspaper is found to have breached the code, then I am protecting the newspaper. Indeed, the responsibility may track its way back to me through the internal governance improvements that Leveson recommends. The responsibility may track back to me, so I am going to take a stand and say, ‘I am not going to do this’."

I think that the capacity for a new culture of responsibility is one of the unsung aspects of what Leveson is proposing. It seems to me that in the present circumstances we often have an environment in which the editor says he takes responsibility for everything, but you in this Committee and the Leveson inquiry have seen that the editor was at lunch at the time, on holiday at the time, not aware of what was going on, that he doesn’t take responsibility. If you have that sort of culture, then people further down the system are much more at risk than they are where there is a culture where everybody is trying to take responsibility.

Q207 Jim Sheridan: You would be happy with a conscience clause?

Professor Cathcart: I would, certainly. Leveson says it should be considered.

Q208 Steve Rotheram: Lord Justice Leveson proposes that there should be no serving editors on the governing board of the regulator, but in schedule 1 paragraph 6(d) of your Bill, you recommend that the board should include no more than one current editor of a news publisher. Why have you included that particular proviso? Do you think it is essential for Hacked Off, more than anyone else, to demonstrate your independence and the independence, therefore, of your proposals of the new body?

Hugh Tomlinson: Sorry, that relates to the independent panel that is appointing the board.

Steve Rotheram: Schedule 1?

Hugh Tomlinson: The idea is that, in order to ensure independence, Lord Justice Leveson wanted a two-stage process. So you have an independent panel, which then appoints the board. The board is then the governing body of the regulator, and so schedule 1 paragraph 6 says, "The board must be appointed by an independent panel, which must be-" and then the independent panel is the panel that is appointing the board. So the membership of the board is schedule 1 paragraph 8, "the process must be designed to secure that the Board-(a) comprises a majority of members who are independent of news publishers; (b) includes a sufficient number of members with experience of the media who may include former editors…(c) does not include any serving editor of a news publisher". That is the Leveson recommendation, and then there are the requirements of no politicians and so on. So there is a balance in this. As everybody says, you cannot have a regulator that knows nothing about the people they are regulating.

Q209 Steve Rotheram: So your proposals go further than Leveson?

Hugh Tomlinson: No, we are not. No, sorry, our recommendations in relation to the board are in paragraph 8. If you look at 8(c)-

Q210 Paul Farrelly: The appointments panel might have an editor on it, but not the appointments board. Is that your point?

Hugh Tomlinson: Yes, exactly. The appointments panel might have an editor, but not the board. The reason for that is that we are sensitive-and it is obviously a sensible point-to the fact that the regulator must know something about the industry. You cannot just have the newspapers being regulated by barristers, who know nothing about anything, really, in the same way as you couldn’t really have barristers being regulated by editors. You have to have a balance. At the moment, effectively, the PCC is dominated by editors, and the Leveson recommendation-

Q211 Chair: They would usually contest that if they were here. They say there is a lay majority. There was a time when it was dominated.

Hugh Tomlinson: "Effectively dominated by" is the phrase I used, but the-

Chair: So you do not accept that the lay majority-

Hugh Tomlinson: I do not accept that. The PCC, as we perceive it, is dominated by the editors, who have the force and the authority. There are lay members who do a good job, but it is a body that is not properly independent of the press, as everyone recognises.

Even the press recognise that the Hunt/Black proposal includes a higher degree of independence. The point is that, factually, the independent panel that appoints the board can contain an editor. The board itself cannot contain editors. Then the standards board can contain editors, but not the majority.

Q212 Chair: I am afraid this is trying to read the runes and pick up on the gossip, but as I understand it, one of the points in dispute now is around the Code Committee, where the press remain strongly of the view that the Code Committee should be drawn up by journalists.

Hugh Tomlinson: Our understanding-and you don’t quite have to read the runes, because there was the famous Delaunay declaration taking place in a central London restaurant, where what the editors decided became public-is that that is one of the points where the editors did not want to accept the Leveson recommendations. They wanted a Code Committee that effectively contained a majority of editors.

Q213 Paul Farrelly: It appears to me from your proposals that the chair of the Code Committee could continue to be the editor of the Daily Mail, or would you like an independent Chair of the Code Committee?

Hugh Tomlinson: What we have said, and what Leveson said-this is another thing the press do not like-is that there is a Code Committee that draws up the code, but ultimately the Code Committee is the responsibility of the board. Now, this-

Paul Farrelly: My question is very precise.

Hugh Tomlinson: No, I understand your precise question and the precise answer is that the chair of the Code Committee can be whoever the Code Committee chooses as its chair. That does seem to us to be a bit of a red herring, because one of the few parts of the PCC that works reasonably well is the formulation of the code. Most people think that, subject to a bit of changing here and there, it is not a bad document to start with.

Q214 Paul Farrelly: No, some people would disagree totally with that, Hugh, because the chair of the Code Committee is the editor of one of the worst transgressing newspaper, which we have heard about so harrowingly from Baroness Hollins, so people would disagree with you.

Hugh Tomlinson: No, sorry, that is a different point. I am talking about the actual code itself. The code itself is a document, which was one of the first of its kind and has been widely imitated. Forget the identity of the chairman-

Paul Farrelly: You are separating theory and practice.

Professor Cathcart: I think I said earlier that if the code had been enforced, we probably would not be having this session and there probably wouldn’t have been a Leveson inquiry. The problem is less with the code than with the enforcement. There are serious problems with the code, and Leveson identified some of them. It does need a review. For example, like most of codes of practice, it needs some sort of positive elements.

Q215 Paul Farrelly: So under your proposals, it is entirely possible that a very strong-willed editor might push himself to the fore and remain as chair of the Code Committee, having impressed his credentials and willpower on the lay members of the committee? That could still be the situation?

Hugh Tomlinson: The position is that the purpose of our Bill-I think we have made it absolutely expressly clear-is, so far as it is legislatively possible, to implement what Leveson has recommended. No more, no less. Leveson’s recommendations are for a Code Committee to have a majority of independent members, but it may include serving editors. So you are right to say that it is possible that the Code Committee could be dominated by one dominant personality. On the other hand, the board, which has the ultimate responsibility, has no serving editors on it, so what you cannot do, as you can at the present position, is have one very dominant person, if there is such a person, who could dominate the Code Committee and then dominate the commission. That is not possible in this recommendation.

Q216 Paul Farrelly: Sorry, a final point on this, because it is such a point of issue with the industry. There is more chance of a chair of a Code Committee making it his or her task in life to make sure that all this good, theoretical stuff that they are drawing up is implemented in practice if that person is independent, not the serving editor of a newspaper that only pays lip service to the code.

Hugh Tomlinson: Paul, I entirely understand your concerns, but the Code Committee is not responsible for enforcement of the code, it is simply responsible for drawing it up. The code contains all kinds of provisions, which had they been implemented would have meant that the material published about Baroness Hollins’ family, for example, would never have been published. Why did that happen? It is not because the code was bad. It was because the code was not enforced.

Q217 Chair: Despite my colleague’s strictures against Mr Dacre-and it may or may not be the case that he did not follow the code-he has done a good job in drawing up the code.

Hugh Tomlinson: The code is not a bad document. It needs improvement, everybody says, but the code was not the issue.

Professor Cathcart: There is just one example of the problems with the code, and I have never understood this. There is a clause in the code that says it is incumbent upon newspapers to separate opinion from fact. How you could publish most of our national newspapers without mingling opinion and fact, I do not know.

Q218 Steve Rotheram: I just want to find out whether you are happy with the principle of editors being on the board, and-

Hugh Tomlinson: Not on the board, on the Code Committee and on the independent body rather than the board.

Steve Rotheram: On the independent body rather than the board.

Hugh Tomlinson: Look, it is a good and important question, and as I said before, this regulator is supposed to co-operate with the industry. If things were working properly, there would be a positive relationship between the regulator and the industry. The industry will be helped by the regulator, and it is vital that it has expertise. It is vital that it has senior journalists on the board and has editors involved at other levels, because otherwise it will not work as well.

Professor Cathcart: I would not want to sound like a hopeless optimist, but you would like to think that the Code Committee, in appointing its chair, would consider what the public might think suitable.

Q219 Paul Farrelly: Let me shuffle my papers. We are still waiting for what white smoke emerges-and John will probably know better when it is likely to emerge than I do-and we are still waiting also for Brian Leveson to judge which of the various proposals that you and other people have come up with are the most Leveson-compliant. So it is probably unfair of me to ask you whether you think yours is the most Leveson-compliant of all so far, but I will do it anyway.

Professor Cathcart: I think we are certain of that.

Paul Farrelly: That was an easy question.

Baroness Hollins: Could I make one point, though, which is that Lord Puttnam put some amendments down to the Defamation Bill today.

Paul Farrelly: I have seen that, yes.

Baroness Hollins: Which you have seen, and I have tabled with Baroness O’Neill some amendments to the amendment, to try to make it more Leveson-friendly. Of course, they do not cover the whole of what Lord Justice Leveson was wanting, but there will be a debate about that this afternoon, probably starting around 3.15pm.

Q220 Paul Farrelly: Yes, I saw that report. These have gone down out of frustration with the lack of progress, the lack of openness at the moment.

Professor Cathcart: Indeed. On that point, we wait. There seems to be a logjam around the charter proposals-we have been expecting more or less daily for about three weeks to see the colour of it.

Paul Farrelly: We heard possibly next week when we were discussing it earlier.

Chair: It has been "possibly next week" for about the last four weeks.

Professor Cathcart: I would have more confidence in that. We have heard the same thing.

Q221 Paul Farrelly: I want to come on to the charter now. For many people, the idea of a Royal Charter seems like a quaint step back into the past. I do not think we can see what the advantages or the disadvantages are without seeing the detail. At the same time, we have the terms used to imply different meanings, but the meanings are different. We have terms such as statutory backing, statutory recognition and statutory underpinning, without sufficient definition. As far as you understand it, in terms of if a Royal Charter model comes along, what safeguards will need to be built in to be Leveson-compliant that will need statute?

Hugh Tomlinson: The position is that we have seen a draft Royal Charter, and this needs two pieces of statute to go with it. The first is to protect the Royal Charter against the Privy Council, because Royal Charters in general are subject to the control of the Privy Council. That of course effectively means Government Ministers, and because everybody accepts that a recognition body should be wholly independent of the Government, there will have to be a piece of statute that protects the Royal Charter from amendment. What is contemplated-up to now, anyway-is a piece of legislation that says, "The Royal Charter cannot be amended unless there is a vote of two thirds of the Members of each House of Parliament who vote in favour of amending it". So the Privy Council has no control.

The second piece of legislation is to deal with the so-called incentives-the questions of exemplary damages and costs. So if you look at our draft Bill, which is just a convenient document, the position is that part 3, which is headed, "Consequences of subscription to a regulator" would have to be in a piece of statute. That could be in a free-standing Bill, or more practically it could be inserted into a Bill that is presently proceeding through Parliament. That is what the proposal is at the moment.

Q222 Paul Farrelly: So a charter on that account would need-let me use some of these terms-statutory underpinning in that sense, but it sounds rather quaint and historic. Yours is a Bill that guarantees, as per Leveson, the independence of the whole process from politicians as well as from the press. So what is the big difference? What is the big point at issue?

Hugh Tomlinson: We are just humble campaigners. We are not party to the dark arts of politicians. As we understand it, the position is the Prime Minister, on the day Leveson was published, gave his view that statutory underpinning would be to cross the Rubicon, which he did not want to cross.

Paul Farrelly: Which he will have to.

Hugh Tomlinson: So what was set in motion was a system-this is what we have been told by the Government, and we accept this-whereby the Government would say, "What we are trying to do is something that will have precisely the same practical effects as what Lord Justice Leveson has recommended, no more, no less. But we will do it without having a statutory recogniser. We will do it by having a chartered recogniser". I have not been told this directly, but I think that was what inspired them was the BBC. They said, "Look, the BBC is an independent body that is free from political interference and so on and has a Royal Charter, so let us have a Royal Charter recogniser".

We are gravely concerned about that, for the obvious reason that statute is a clear, democratic way of doing things. You have to pass through your stages in both Houses; it is debated. A charter is something that is done behind closed doors. It is a very old-fashioned instrument, drawing on the dark recesses of the Royal prerogative. We would prefer a statutory recogniser. But if the political reality is, for whatever reason, that a charter is much more politically acceptable, and if the charter does the job as well as a statutory recogniser, that is something we have indicated to the Government-we have made our position clear-that we are prepared to consider. We are not saying we are ruling it out from the start. We are prepared to consider it, and we are prepared to look at the practicalities.

We have had very helpful discussions with the Minister and with Conservative members of the coalition over this, and we are waiting, like everybody else, to see the document that we understand is due to be published this week.

Q223 Chair: That is a hugely important and encouraging statement. Are you confident that you speak for all members of the Hacked Off organisation?

Hugh Tomlinson: As I said, the position is that we are willing to consider if it is effective in the way we indicate. In the end, we have to consult our supporters and the victims of press abuse to see what their view is. What we have made clear from the beginning is that we are not ruling it out. We are not saying, "No, however effective your charter is, we are not going to agree to it".

Professor Cathcart: Just to underline this, we were asked the question at the very beginning, "What is negotiable here?" We are looking for-and this was what the discussion was about-Leveson and the whole of Leveson being delivered through this process.

Paul Farrelly: I might have used the description "interesting" rather than "encouraging".

Hugh Tomlinson: I am not sure whether this is understood, but the idea of a charter would be that the chartered recogniser could only recognise a press regulatory body if it fulfilled the Leveson criteria. So you would only get the advantages that the accompanying statute would have to give you if you complied with the recommendations. That is in our statute, but it could be written into the DNA and the rules of a chartered body if that was regarded as more politically acceptable. If that was done-as I say, we are not ruling it out-we would then consider it and consult with our supporters.

Professor Cathcart: Absolutely. I would add that we do not understand or sympathise with the Prime Minister’s stance taken on 29 November in any way. We do not believe there is a Rubicon here, and we are not alone in this. You can range across people’s views-Sir Harry Evans in his speech last week said that Article 19, a body dedicated to global free speech monitoring sees no principled objection to this. There is a very long list. We believe the Prime Minister is wrong in his view that there is a Rubicon here. We believe, too-Leveson goes into this at great length-in the need for the recognition body to be solid and robust, because of the challenges it is likely to face if it rejects or demands changes to a body. We have seen the way the press attacks Ofcom. They will do the same to this body. It needs to be strong and robust, and we believe that the best way of doing that is statute.

What I find difficult to understand is why some MPs and some peers should accept the idea that their engagement with this thing, in terms of producing a statute, is in some way inimical to democracy, is in conflict with free speech and the safety of our society. It is just nonsense.

Q224 Chair: Therefore, you could effectively make the same argument why is it inimical for MPs and peers to have any involvement in the regulatory body.

Professor Cathcart: I am talking about the difference between creating the circumstance-

Chair: Which is the same reason, isn’t it? You are very clear that you do not think politicians should have any involvement in the regulatory body. Equally, I think the argument would be, "Well, politicians should have no involvement in the setting up of the recognition committee".

Professor Cathcart: I certainly would argue that they should have the minimum involvement, but it needs the sanction of statute for it to have robustness. As Hugh has said, we are open to being persuaded that you can achieve the same with a charter. I have yet to meet anybody casually familiar with the idea of a charter who believes that to be the case, but we are open to being persuaded about it.

Hugh Tomlinson: Can I just mention this? There is also a misconception that we very often find in the press-they talk about "amendable statute". They seem to think that if you had a Leveson Act, it could be casually amended by MPs. They do not seem to realise that, once you have the statute on the books, to amend it you need to bring in another statute. Therefore, if the fear is-and this is a slight caricature-that there is a bunch of evil press-phobic MPs, who are just waiting to impose censorship on the press, if that was the case, which I do not think it is, they could do it whether there was a Leveson Bill or not. The Leveson Bill makes no difference whatever.

Q225 Chair: Equally, presumably, however much we pass statutes saying it requires a two-thirds majority of both Houses, it could be repealed by a future Parliament with a simple majority.

Hugh Tomlinson: Of course, absolutely.

Chair: It is a pretty meaningless proposition.

Hugh Tomlinson: Yes, it is, but I think the idea is it would be strongly symbolic. It is a bit like fixed-term Parliaments-it is very, very clear that it is a Rubicon, and it is very clear what you are doing if you repeal.

Paul Farrelly: I have a few more questions, but Jim wants to come in.

Q226 Jim Sheridan: Yes, because time is moving on, and whenever we get a legal person in you know what happens. But, seriously, if I can just rewind slightly, in our earlier evidence session our Irish colleagues suggested that the involvement of the NUJ and regulatory bodies was extremely helpful. Is that a view that you share?

Professor Cathcart: Yes, as simple as that. It is intriguing that several of our newspaper groups here, which are also subscribers to the Irish model, have accepted that there. As I understand it, there is not as yet even a commitment to the conscience clause from the press side here.

Q227 Paul Farrelly: A few quick questions of detail. I too am looking forward to seeing what this charter holds. We all know the esteem in which certain newspapers-including the Daily Mail-hold the BBC Trust, which is cleared by Royal Charter, so this will be very interesting to see and discuss.

I take it you are 100% in favour of the regulator having the power to accept third-party complaints?

Professor Cathcart: Yes, and I suppose to elaborate slightly on that-

Paul Farrelly: Or to exercise its discretion on whether to accept them.

Professor Cathcart: Yes, indeed. Yes, to have the ability to accept them. Our view, and we have had quite a lot of expert opinion on this, is that the PCC has a practice by which it conforms to what you describe already. It may not be perfect. What Leveson proposes is to bring clarity to that in the new body, and we would welcome that. We do detect a suggestion that this is in some way new-it is not-and that is unwelcome to the press. It is extremely important to the workability of the entire process here that third-party complaints should be admissible. It is effectively the only way to protect general accuracy in the press, to have that capacity. There are so many categories of inaccuracy that do not have a first or second-party victim-I have never quite worked out which party is which-who can make a complaint. So the third-party capacity has to be there.

Q228 Paul Farrelly: Am I correct in thinking-it is yes or no-that you have gone one step beyond Leveson in terms of the independent panel and the board, because you are excluding Members of the House of Lords who are politically affiliated, whereas he only excluded Members of the House of Commons? Is that correct or not?

Professor Cathcart: Yes.

Paul Farrelly: So you have gone one step further. I couldn’t understand why Lord Justice Leveson just stopped with politicians in one House rather than the others, so you have gone a little bit beyond.

Hugh Tomlinson: We have also gone beyond him in requiring that at least one third of the members be men and one third of the members be women.

Q229 Paul Farrelly: That is another discussion. We will waive that.

One of the strong criticisms of the so-called Hunt/Black Plan is that, from the very start, the press wanted to retain the right of veto over the chair of the regulator. Yet your proposal, even at that pre-stage, allows the press a veto over who is on that appointments panel. Can you explain your thinking on that?

Hugh Tomlinson: Are you talking about the appointments panel or the recognition body?

Paul Farrelly: I am talking about the appointments panel.

Hugh Tomlinson: Which schedule are you talking about, schedule 2?

Paul Farrelly: I am talking about six editors of the national newspapers.

Hugh Tomlinson: Yes, that is the recognition body. That is completely different from the regulator. We had to come up with a mechanism whereby you could get a recognition body that was independent from all outside influence. It is quite difficult because, as you will know, for example, judges-although they are wholly independent-are formally appointed by the Queen on the advice of the Minister. Most public appointments are ultimately made formally by a Minister, and we wanted to avoid that. So the question is, how do we avoid doing that? What we came up with was two points. The first is that Ofcom is the default, because at least we know what Ofcom is. So in the end, if nothing can be agreed, Ofcom is the body that sets up the recogniser. We then had a system that we thought was the best way of doing it, whereby those who set up the recognition body, not the recognition body itself, are arrived at by consensus. We deliberately put in-and this is schedule 2-a position where you have the Prime Minister, the Leader of the Opposition, the leader of the party with the third largest number of seats, the convenor of the Cross-Bench peers and the editors of six national newspapers. Yes, they have to come to an agreement. Yes, they have a veto, not over-

Q230 Paul Farrelly: Of who is on the appointments committee?

Hugh Tomlinson: Not over the recognition commission itself, because we want to get a body of people who everybody agreed were independent and appropriate, and we have put consensus into the system. The Government is pointing to people’s heads, saying, "If you don’t agree, you get Ofcom".

Q231 Paul Farrelly: So that is the justification?

Hugh Tomlinson: It is not the regulator at all. It is only the recognition body.

Paul Farrelly: I am talking about the appointments panel.

Hugh Tomlinson: Sorry, there are two appointments panels.

Chair: The panel that are going to appoint the people to appoint them.

Hugh Tomlinson: Yes, it is very complicated.

Chair: I think we know where we are.

Hugh Tomlinson: It is very complicated, to ensure independence.

Q232 Paul Farrelly: I only have two questions left, because of time. If the regulator cannot fulfil its remit, it puts its hands up in horror and writes to the Secretary of State, is that correct?

Hugh Tomlinson: The position is this. As Lord Justice Leveson contemplated, the press should be doing this. The press come along to the recognition body and say, "This is the regulator we have set up, and we want you to recognise it". The recognition body either says, "Yes, that is great" or, "No, your proposal is inadequate in the following respects. Go back and think about it again". They go back and think about it again. If they fail and it is never compliant, then yes, the recognition body reports to the Secretary of State to say, "We’ve done our function and there is no regulator we are capable of recognising". One possibility would be to write into statute a default position, which Lord Justice Leveson did not recommend but contemplated, which was having Ofcom as the backstop regulator. We could write that into the statute but, again, as we are trying to be Leveson-compliant we did not put that in, because it is not what he recommended. In the end, I think it has to be made clear to the press-the Government have said this-that if they do not get their act together, in the end Parliament will have to legislate.

Q233 Paul Farrelly: So we would be back at square one if that were to happen, yes.

The final question is this. We have talked about the lack of transparency so far, with meetings going on behind the scenes, and this Royal Charter, which is like the famous "Free Beer Tomorrow" sign that stays outside a pub-it is going to appear at some stage, some day, some week. When he published his report, Lord Justice Leveson said that he wanted the spirit of his recommendations in other respects, and certainly in terms of connections between the politicians and the press, to start from day one. Yet we read press reports of meetings between Cabinet members with Rupert Murdoch, in one instance with Rebekah Brooks, and it seems to the general public-as has been commented to me-that this is just business as usual, and we still do not have a regulator either.

Professor Cathcart: I could not agree more. I think that recommendations 82 to 84 set out what Lord Justice Leveson hopes we will get. It is not a lot to ask-openness about context that has taken place. It is not a lot to ask, and recommendation 84 speaks of the immediate need for doing this. As we understand it, the latest Cabinet Office information about which Ministers have met which press people is up to date to June 2012. That is not even quarterly. It is a long way behind. I point out that in that period, we had the party conferences and we had the build-up to the publication of Leveson, and we have what is going on now. I would argue that the public are entitled to know more or less day-to-day what the state of meetings are, not year-to-year, which is where we are.

Besides that, the state of play with the charter, as Hugh said, is that we saw an early draft-I think a mid-December draft-and some of the supporting clauses. We have seen nothing since that has been refreshed. We have no idea what has been going on and what the delay is, but we have given an undertaking to look at this thing and consider it. The whole system is blocked by the failure to do this. It is hardly surprising that in the Lords there is deep frustration about what has been going on, or rather, what has not been going on.

Hugh Tomlinson: The public opinion evidence shows absolutely clearly that somewhere in excess of 70% of people think that the press requires independent statutory regulation. The public confidence in the press is at a very low ebb. It seems to us that the way to rebuild that public confidence is through a transparent set of processes deriving from what Leveson recommended, which will enable the public to have confidence that what is being put in place will work in the public interest, not in the narrow interests of the press and certain groups of politicians. We have urged all the politicians we have met with to be open and transparent about the process. I have made this point already, but it is a very important one, and we hope that that message will get across to the Government in terms of what is happening going forward.

Chair: This Committee will hear in due course from Oliver Letwin and Maria Miller, so we may gain a little additional information at that time if the Government has not published its own proposals. I think that is all we have for you. Thank you very much.

Prepared 12th February 2013