Who should guard the Guardian?

Alan Rusbridger, editor-in-chief of the Guardian, argues that Britain needs both a free press and reform of its failed regulatory system. Since this will require both time and openness, a new independent press regulator should therefore be given a year’s trial run.

Within a week of the Leveson report around 20 newspaper editors met for breakfast in the retro faded splendour of the Delaunay Restaurant in London. After pulling down the blinds on the ground floor room (a tabloid editor predicted we could be papped) we got down to business.

The entire national press was there – from the Daily Star to the FT. This never happens. The Spectator and Economist editors were around the table, with a Times reporter in attendance to take notes. James Harding, editor of the Times, chaired very efficiently.

Within two hours we had agreed the overwhelming majority of the 47 Leveson recommendations for establishing an independent self-regulatory regime for the press. Six clauses relating to statutory underpinning were rejected. Of the 41 remaining clauses five were agreed with reasonable amendments and the remaining 36 passed. The minutes said: “We agreed unanimously to accept the Leveson principles – save statutory underpinning … on almost every point we accepted Lord Justice Leveson’s wording.”

The editors went further. We welcomed an arbitration service as “a very significant innovation for both newspapers and the public to ensure swift, cheap and effective resolution of claims.” We agreed the need for a recognition body to verify the new regulatory system and suggested a retired judge might chair it.

It was a historic moment: the full spectrum of the national press in total agreement with the main Leveson recommendations – with some tweaking at the edges and without statutory underpinning. Within a week Harding was out of a job and an unseen hand had decided that the 20 or so national editors in the room were not to be trusted with such things. We never met as a group again and the Delaunay agreement was never published.

Two Conservative peers were charged with representing the industry – a small irony given the recent cries of horror at the spectre of political interference with the press – and a long period of private negotiations began with conservative ministers. What had seemed reasonably clear-cut on the morning of December 5 became mired in hand-to-hand fighting over the detail.

None of these discussions has been made public and the other political parties and representatives of press abuses were largely excluded. Much has been made of Hacked Off‘s role in the last stages of negotiations, but the press ensured they were excluded from the initial stages. Downing Street currently refuses to say whom David Cameron met or spoke to during this period.

These private meetings were completely against what Leveson himself wanted: he specifically asked for “immediate” transparency in any discussions about his report. Having spent a year looking at the problem of the press, politics and naked power, he wanted things to be done openly in future.

The press started introducing new conditions – for instance, that newspapers should be able to veto even the “independent” members of the regulator if they didn’t like the look of them. And the government introduced a constitutional pantomime horse – a royal charter – to get round Leveson’s recommendation that a bit of statute was needed to bolster the entire arrangement.

A royal charter is, of course, statute (as is the widely welcomed defamation bill) – but one introduced via the back door of Buckingham Palace rather than the front door of Westminster. Its political attraction was that it got David Cameron off the hook of his post-Leveson “no statute” promise – and doubtless that it also allowed the Lib Dems and Labour to blur their initial insistence on “Leveson in full”. Its drawback was that a royal charter needs to be uncontroversial (ie, at minimum it must enjoy all-party support) and that it can be unpicked by ministers without the inconvenience of – or protection of – parliamentary debate. It was an unloved idea that garnered support if only because no one could think of a better one.

These private talks were, by all accounts, arduous and exhaustive. Government officials kept introducing new clauses in a bid to accommodate the new wishes of the press, but these, in turn, seemed unworkable. And the longer the parties with the majority of votes in the Commons were excluded, the more suspicious they became of what they saw as a backroom stitch-up.

Nevertheless, when the detail of the proposed deal emerged blinking into daylight in mid-February most papers were prepared to support it – albeit through gritted teeth, and with some detail still to sort out.

It’s worth pausing to note the dogs that were not barking at this stage. No one claimed that the proposals marked an end to 300 years of press history – that John Milton, John Wilkes, John Stuart Mill and George Orwell were spinning in their respective graves.

That’s not to say the press welcomed any of this. Like bankers, doctors and payday lenders, most journalists would like the least regulation possible. But this “Leveson lite” deal – including an arbitration service with lower costs as an incentive to join, and with a royal charter bolted on – was broadly acceptable.

Calmer heads in the press realised this was not statutory control of the press. It wasn’t even statutory control of the independent regulator. It was privy council-sanctioned ground rules for the independent panel – not politicians or the press – who every so often would verify that the regulator was properly constituted and doing its job.

But the problem with the “deal” was that Cameron couldn’t deliver it. By insisting on private talks and excluding all other political parties and stakeholders, the negotiators were simply storing up a problem. Another round of wider negotiations followed, not much more public than the last. Within a month the mood in the press had changed and front pages were booming the death of freedom.

What changed? Two main things and a few smaller, but potentially worrying, concerns. The new deal thrashed out in a hurry in the small hours by the three main political parties – now, at last, having a common conversation – insisted on “underpinning” the pantomime horse of charter with a requirement that it could only be unpicked or amended by a two-thirds vote of parliament.

That – because it is a modest piece of Westminster, rather than palace, “statute” – became the rallying cause for some editors and columnists to proclaim the end of liberty. They apparently felt liberty was better served by an arrangement under which ministers could quietly and privately negotiate the future of the press with equerries at the palace – just so long as parliament itself doesn’t get a look in.

The Guardian, FT and Independent agreed with the parliamentary route. It is unclear why Milton, Wilkes or Orwell would be happy to bequeath freedom of expression to the government of the day in collaboration withthe Lord Chamberlain – currently an hereditary peer, the third Earl Peel.

The second cause for alarm is more real – the insistence on imposing exemplary, or punitive, damages on those who don’t join the regulator (and, in some circumstances, even those who do). This is a seriously bad idea that will create martyrs and is probably incompatible with the free speech clauses of the human rights act and European convention. It means a magazine such as Private Eye or websites for which regulation was never intended could face crippling damages which could put them out of business.

It should be sufficient to offer the cost benefits of an arbitration service – even to those outside regulation who can show that they acted to the professional standards of industry. More carrot, in other words, and less stick. Unlike exemplary damages the “carrot” of costs can be achieved without statute – though the cost clauses are also flawed.

The press has other reasonable grounds for concern. It is fair for the regulator to have powers in relation to the prominence and wording of corrections and adjudications. But not even the courts have the power to insist on apologies – though they can certainly take the lack of an apology into account when awarding damages.

Similarly, the press have quite understandable worries about ambulance-chasing lawyers misusing the arbitration service in ways that could add disastrously to the costs of an industry already reeling from the existential disruptive threat of new technologies and competitors. A nominal fee – similar to small claims courts – may be necessary to make the system work and avoid a flood to compensation as opposed to other forms of redress.

The same is true of third party complaints: a reasonable idea within limits, but potentially crippling if the floodgates open in an uncontrolled way.

The difficult question now is how to sort out these remaining issues without the crushing time pressure that leads to botched drafting which, in a royal charter world, become inscribed on vellum and extremely difficult to modify.

The race against the clock is largely due to the guerrilla action that has seen at least three government bills – including the defamation bill – held hostage by campaigners and factions who are, understandably, mistrustful of the private negotiations that have got us to this pass. It would allow much calmer discussion of the remaining issues if the campaigners dropped these hostage clauses. Let Cameron have his bills back – including defamation – so that everyone can get the future of press regulation right.

The Lib Dems, Labour and campaigners for press victims will counter that they cannot entrust the press and Cameron with any future negotiations. They point to Cameron’s broken promises and to the way in which some of the press have abandoned any pretence at reporting the issues fairly, or indeed at all.

A royal charter was supposed to be unifying – politically and with other stakeholders. It would be wrong to rush it through at this stage if it enshrines some things that are still far from fully worked out. The advocates of reform – including the Guardian – should be unenthusiastic about endorsing a messy compromise with unintended consequences and with the prospect of years of stalemate in the courts and with the regulator itself.

The House of Lords has the opportunity on Monday night to amend the badly executed elements of last week’s late-night meeting. Failing that, there is an alternative – which may be rather closer in spirit to what Leveson intended. Let (former supreme court judge) Lord Phillips and (commissioner for public appointments) Sir David Normington establish an appointments process for the regulator. Allow this new regulator (under a new and independent chairman, preferably not yet another Conservative peer) to sort out the outstanding details of regulation with the press. Do this in a transparent way that will allay the fears of other concerned parties. Do not allow the press any veto on who gets to sit on the regulator.

Separately, establish an independent recognition panel – again free of press or political involvement. Equip it with a copy of the Leveson report and the minutes of all the meetings between politicians and the press since November, which helpfully flesh out its meanings and ambiguities. Let them reach a judgment on whether the new regulator is, and does, what Leveson had in mind.

Allow the system to bed in for a year or so and for a dialogue between regulator and recogniser about what works and what needs tweaking. Then, and only then, think about wrapping it all up in a royal charter. People may by then have a clearer idea of the value of an endorsement by Buckingham Palace. A charter should in other words seal the deal, not describe it.

If the press can show it is committed to a truly independent system that works then there may be less need for royal cement. Real independence matters more than statute and there may need to be a hard deadline to keep up the pressure on the press.

Designing a voluntary regulation system in the age of the internet is not a simple task – which is why Leveson didn’t get it perfectly right even after a year of thinking, consulting and listening. It’s worth reflecting that some of the same people currently decrying the current proposals as state licensing of the press were themselves recently proposing a system by which only card-carrying “accredited” journalists would be given access to official press conferences, the police, sporting events or medical and scientific bodies – and that journalists could be “struck off” an approved register, rather like the General Medical Council and doctors.

So, no one has the monopoly of principle. But this much is clear: the old system of regulation was feeble. Leveson uncovered much that was shameful about significant parts of the press – with more dismaying allegations doubtless soon to emerge in the courts. The most powerful newspaper group in the country was – on the kindest interpretation – out of control. The police and parliament were cowed.

We badly need reform. We also need a free press. Achieving both can’t be done at speed or in the dark.

Alan Rusbridger has been editor of the Guardian since 1995. He is editor-in-chief of Guardian News & Media and a member of the Scott Trust, which owns the Guardian and the Observer. We  reprint this piece with permission from the Guardian. Guy Black, executive director, Telegraph Media Group; David Newell, director, Newspaper Society; and Peter Wright, editor emeritus, Daily Mail Group, sent the following response  to the Guardian:

Alan Rusbridger’s account of the events which led to last Monday’s widely condemned all-party agreement to impose a Royal Charter on the press ignores a number of inconvenient truths.

The Delaunay breakfast was organised by the then Editor of The Times acting in concert with two other editors whose newspapers bear only a tiny percentage of the cost of newspaper regulation. They claimed to speak for the industry but failed to understand that, with no representatives invited from the regional press or magazine industry, who between them carry 45 per cent of the cost, that could not be the case.

Although there was a universal feeling that it was a positive meeting, there was also a worry that it was an attempt to bounce the newspaper and magazine industry into accepting Leveson’s recommendations without debate.

It was concluded the industry could not overturn a system of regulation constructed over many years without further careful thought, and it was agreed that all the editors present would go back to talk to their lawyers.

The idea of a Royal Charter had been introduced the day before by the Government – without any detail – at a meeting with the Prime Minister in 10 Downing Street. It was this that led to the opening of talks with ministers, after other editors discovered that Oliver Letwin had given a private briefing on the subject to the Guardian.

The industry’s representatives at these talks were not two Tory peers, but a group of four including the Legal Director of Trinity Mirror, and the Director of the Newspaper Society, both representing the regional newspapers so regrettably excluded from the Delauney meeting. When appropriate the group of four was supplemented by others, including representatives of the Guardian, the magazine industry and Scottish publishers.

Far from these meetings being kept private, the ministers involved made it clear that they were simultaneously reporting their outcome to meetings with other political parties and Hacked Off. No industry representatives were invited to these parallel meetings which were at least as numerous, and by all accounts longer, than those held with the industry.

It was during the course of meetings with the industry that ministers produced the scheme for exemplary damages which has been so roundly, and rightly, condemned by all newspapers. Other editors also shared the Guardian’s doubts about a Royal Charter, and presented an alternative scheme to arrange recognition through a charitable trust, but ministers dismissed it.

Nevertheless a great deal of progress was made over the recognition criteria, with agreement reached on all points except the method of appointments to the new regulator, over which the Guardian had reservations, and the arbitration service, which the regional press and magazine editors feared could result in unsustainable cost.

It was at this point that Lord Puttnam introduced the first of a series of wrecking amendments that led to last Monday’s debacle. The gist of The Guardian’s 2000 words is that all this happened because the industry negotiated in private. Far from it – the results of those negotiations are there for all to see, in the draft agreement published by the DCMS on February 12.

What a pity that the Guardian’s response was to advocate statutory underpinning, now rejected by every liberal paper around the world.

Alan Rusbridger is right when he says we need reform and we need a free press. And right when he says we can’t achieve both at speed and in the dark. That is why we need to let the dust settle on the rushed legislation of the last week and decide how best to tackle both tasks.

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford. www.freespeechdebate.ox.ac.uk

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