The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • DR COLETTE BOWE (recalled). MR ED RICHARDS (recalled).

  • Thank you both. You've both previously affirmed or taken the oath and I'm very content to just proceed. I hope you've had the opportunity of seeing Mr Suter's paper before just listening to him in the last three-quarters of an hour. It would be rather unfortunate, if you've only just heard it, if we then ask you to comment on it.

  • We have indeed seen it, thank you.

  • First of all, we have a submission which you've put to us dated 2 April of this year, which is primary evidence for this module. It's under tab 45.

  • Thank you very much, yes.

  • Insofar as it contains statements of fact, are you content to attest to the truth of this statement?

  • There's also a letter addressed to the secretary of the Inquiry dated 6 June in which you comment on the Inquiry's draft criteria, and we can take that into account as well. That's under tab 30.

    The separate section on plurality is not being dealt with today.

  • Could we just mention one housekeeping point, which is we don't have any bundles, so when you mention tabs, you will find us looking through our own papers to find what you're talking about.

  • Yes. The only people who have tabs are me and Lord Justice Leveson. Everybody else is just working from the statement.

  • The material that we've had on this module covers five lever arch files, and to give everybody everything would have been unnecessarily burdensome. We've trespassed on people's goodwill sufficiently, but where there are ideas that we're keen you comment on then I hope you've been provided with the papers.

  • First of all, may I ask one of you -- I am going to be in your hands as to who develops each point, but obviously we would like to hear from each of you approximately the same amount of time -- to develop orally the overview, which is the second page of the main submission, our page 00848.

  • So the second page, I think marked page 3, as in the possible public purposes? Is that where you are?

  • No, the previous page. We're very soon going to come to the possible public purposes, but the overview, which is the previous page.

  • The only important point to make out of that is that you are not seeking to regulate the press?

  • I think that's the principal point that we don't seek to take on additional regulatory burdens. We've had additional regulatory responsibilities placed upon us in the last couple of years in other areas, none of which we've sought, so we do what Parliament asks us to do, ultimately.

    I guess the only other point to draw out from that is the importance which everybody has already emphasised but which we would certainly agree with, which is that a crucial starting point is protecting the rights of free expression and then we move from that into what the appropriate regulatory environment is.

  • Thank you. Your evidence divides into six chapters or sections. The first one, which is page 3 on your internal numbering, our page 00849, is the possible public purposes of press regulation. Can I ask you please to summarise that and then we'll pick up some points?

  • Yes. I think the key point we're starting with here is that in any regulatory environment for any purpose of regulation it's crucial to start with clarity about purposes and objectives, and if you don't have that, then I think inevitably you will struggle.

    Ours are set out very clearly in statute. That means that we have a very clear sense of what we are there to do, and that is what we will typically fall back on.

    I think the context for that, which we pick up towards the bottom of the page, is the broader environment in which regulating the media is -- the broader relevant environment, which is that the media in this country are very, very powerful, exercise enormous influence, and that therefore it's right that there is a notion of both an ethical and a legal backdrop to that, and I think that is what is a part of the regulatory environment that we operate and which we suggest is potentially relevant in this -- to this Inquiry as well.

  • Thank you. If we can collect together the points which appear in paragraph 1.11, these are the over-arching requirements or key elements, however you wish to describe them. The first -- and everybody has spoken to this -- the "requirement to protect the rights of the press in relation to freedom of expression". Would you expect to see that as a statutory requirement?

  • I think statutory -- or freedom of expression, the right to freedom of expression is clearly derived from the ECHR, so in that sense it is statutory and that's how we think of it and our entire approach to it derived from that framework, so we think of it -- that as the backdrop. But I think we think of it more -- I wouldn't want to give you the impression that we are sitting there thinking about law and statute in that context primarily. That's the backdrop and it's important, but we think about it I would say more importantly as a very important principle.

  • Thank you. And then the second principle or requirement: "to protect the right of individuals by giving prompt and effective rights of redress in relation to privacy, fairness and defamation".

    It's self-evident that the first and second requirements might be in conflict with each other so there's a degree of balance. Can I ask you about the fairness requirement, though? Why are we including fairness? We understand privacy and defamation.

  • What we're mainly concerned with there is that broadcasters can -- in programmes can -- okay, those programmes can involve individuals and the preparation or portrayal of individuals, and I think what we're concerned about there is that individuals portrayed or affected by programmes are treated fairly, and given the power of the media, particularly in our context the broadcast media, that does seem to be a very important principle.

  • Under the Broadcasting Act I think you can make a complaint to Ofcom on fairness grounds as a separate --

  • Yes, that's right. It's precisely for those reasons. If somebody feels they have been misrepresented, portrayed in an unfair way, it's very difficult for a private individual, particularly ordinary people, to stand up to that or correct the position or feel that they have been given fair treatment and that is precisely why that is there.

    So when we deal with fairness issues, we are dealing with people who have been affected by a programme, who have been portrayed in a programme or who are involved in a particular programme. It's about their particular circumstances rather than a broader set of concerns about the impact of that programme on society more generally, for example.

  • Does that also mean fair as a matter of process as well? So that if a broadcaster wants to invite somebody onto the programme, they should have some time at least to understand what that programme is about?

  • When we look at a fairness case, we would look at how the broadcaster treated the individual in advance of the broadcast, and were they given -- were they involved in it with their consent, with informed consent? Were they given, if appropriate, an opportunity to respond to allegations in the programme? Things of that kind would be part of what we'd look at in a fairness complaint.

  • So that might include issues which have certainly come up in connection with the Inquiry about prior notification, so that if you wanted to expose on the television somebody for what were believed to be illegal activity, if you tell him too much in advance, he simply won't come along to the studio and therefore there's a balance in each case --

  • Exactly, exactly. Normally we would expect allegations to be put to the party to give them an opportunity to respond, but there are circumstances that one can conceive of, and which I think have taken place although I can't recall a good example right now, where that is more difficult because of the nature of the allegation and the response, but that is generally the approach we would expect to see, that's right.

  • So that's exactly the same as a prior notification type issue of the sort that we've heard in the press?

  • The fairness obligation on broadcasters would not arise unless statute imposed it. Am I correct in saying it arises solely by virtue of the Broadcasting Act 1996?

  • Yes. It's in the 2003 Act and I think the origin of that is the 1996 Act. That's right. It is then given form in our Broadcasting Code.

  • I understand the position in relation to the broadcasters, but are you advocating or perhaps suggesting that a similar obligation should apply to the press as well, an obligation to act fairly, which may have two components. It may have a process or procedural component, which Lord Justice Leveson referred to, but it might also have an impact on the need to attain a degree of balance, which at the moment the press are not obliged to achieve?

  • Well, I think there's a difference between fairness as conceived in the way that I've described it and balance. We generally think about balance in the context of impartiality and accuracy, which is obviously specific to broadcasting. I think fairness can involve different things, for example the kind of procedural fairness that you are alluding to, and I think if you think -- if I think about our reasons for having that and why we have those, it is because, as I mentioned a few minutes ago, the importance and the power of the media, in particular in relation to any single individual and allegations or the treatment of any individual in a particular case, I think it's reasonable to say that all powerful media have that -- are in that relationship and therefore I think fairness is an important dimension to how we think about powerful media.

  • Do you wish to add to that.?

  • No, I just wish to underline that and take you back to the text. We've said key elements of the public purpose of press regulation could include, and this is where this comes up, so yes, we've thought carefully about this and we wish to give you this advice.

  • Thank you. Section 2, the principles of effective regulation. Some of this is not altogether dissimilar from Mr Suter's evidence and there may be reasons for that, given where he comes from, as it were, but can we see where we are? Under section (a), which is between paragraphs 2.2 and 2.3, these are the principles which relate to the governance and accountability of the regulatory body, and then (b) is operational independence, so what you are looking for here is a sort of subset of second order principles. Looking on the first order of principles we looked at on the previous page: independence governance and decision-making, clear public accountability, clear regulatory objectives and clear and transparent processes.

    All of this is relatively uncontroversial and plainly right, if I may say so, but is there anything which you would wish to draw out, either collectively or individually?

  • I'm interested that you say this is all relatively uncontroversial, because it does seem to me that what is said at paragraph 2.3, first bullet point, is something on which there has been a very great deal of discussion. It may well be that what you mean by saying this is relatively uncontroversial is that the words on the page look as if they are words that most people could agree with, but the putting into practice of these principles is where the controversy arises.

  • We wanted to raise this because we do feel that a clear acknowledgement of the importance of the independence of the governance is of the utmost importance. We spoke about this last time we gave evidence to the Inquiry, and I don't want to reiterate what we said there to explain how the Ofcom system of independent governance works, but I think I would just like to emphasise that I think ensuring that something -- the governance arrangements put in place are seen to be independent and are demonstrably independent is something to which we would respectfully suggest the future principles should attach the most weight.

  • Your point is extremely well made, and of course it is the words on the page that are not controversial. Putting them into effect is an entirely different matter.

  • If I can correct myself slightly, what may be slightly more controversial may be degree of independence from the industry which is being regulated, because you refer -- and I'm looking at the words on the page as you're asking me -- to "inappropriate influence over decision-making by third parties", but one of the issues that is concerning the Inquiry is degree of independence from the industry and that may or may not be a matter which arises in relation to the Lord Black proposals. Do you have a viewpoint on that?

  • I think you've discussed with Lord Black at considerable length the detailed arrangements that might be made in terms of numbers of people and their provenance, as it were, in order to try to deliver independence. I think what one always has to have regard to is that the arrangements you put in place for governance, as I've said, are able to demonstrate visible independence, and this has to have to do not just with a counting of numbers, how many lay, how many industry, et cetera, but also the ability of all of those people when they meet around a table to be able to come together to fulfil the common purposes of the regulatory body.

  • The relevant word in the sentence there is the word "inappropriate".

  • Yes, exactly, and I'm trying to sort of unpack what I mean by that word.

  • Thank you. The second category, (b) on the next page, page 6, 00852, "Principles which relate to the operational independence and capability of the regulatory body", and there are five principles here. I'm not going to say they're self-explanatory or uncontroversial this time. "Workable membership incentives/obligations", you explain that. "Independent funding and budget control, accessibility, genuine powers of investigation and effective powers of enforcement and sanction".

    Maybe I should ask you to develop the first and second of those points, because I'm sure we understand the third, and fifth?

  • May I do them the other way round? I think the second is the easier one.

    The second is very straightforward. If you have established to public satisfaction, as it were, all of the things that Colette was talking about a few moments ago, in other words your governance and independence framework, that in reality is not going to go very far if actually someone is controlling the purse strings on a regular basis and in effect can infer or imply that resourcing or money may be withheld or changed in one form or another should decisions be made which are not the ones that may be preferred, and I think this is extremely important. I think a very important dimension of independence and effectiveness is financial security.

    You can't have an in perpetuity arrangement, and I think we suggest a multi-year period, I think we might mention somewhere three or four years, such that there is a moment when a proper exercise takes place which asks what is the necessary funding for the body? And that's about efficiency and value for money. But after that, there should not be interference with that budget, to ensure that the operational daily decision-making is not subject to any risk, any risk of threat or intimidation or anything of that kind. It's slightly strong words, but I think you understand what I mean.

    So that is a very important building block in independence and effectiveness.

    In terms of membership, incentives and obligations, I think as we go on to observe in the paper, this is more difficult, and this is again an issue which many people have discussed: how do you make sure that everybody relevant is inside the regulatory regime? It's obviously crucial that that is the case. It's not going to work very well if significant parties are not inside the regulatory regime and therefore we have to think about making sure that there are workable -- is the word we use -- incentives or obligations to ensure that the relevant people are included.

    We go on to discuss that, but perhaps I'll pause at that point to emphasise that I think that is obviously a crucial, crucial factor.

  • Thank you. The third section, please, page 7, 00853. You speak to models of self-regulation, co-regulation and statutory regulation. For those of us who still recall this, you gave slides which explain the three categories early in October of last year. That's some time ago now. Some of us may have forgotten that or never heard it first time around, but there is a very helpful tripartite distinction between the pure self-regulatory model on the one hand, co-regulation in the middle and statutory regulation on the other, and it's the degree of coincidence between the commercial interests of those being regulated and the public interest which may determine to which of those three categories one falls without prejudice to forming any judgment where the press might fall in this system.

    Can I ask you, please, to develop, though, 3.3, which looks back at 3.2, which I should refer to:

    "The starting point for consideration of a future model of press regulation would be balancing the central importance of protecting the independence of the press against creating an effective model of regulation ..." which would have the trust of the public.

    But you say two questions suggest themselves. May I ask you, why are we still looking at retaining a self-regulatory framework rather than co-regulatory or statutory regulatory framework?

  • The way we thought about this is to say that in a sense, as everybody knows, there is a tension between the absolutely -- the freedom of the press on one hand and any constraints on that which people have argued is a restriction of freedom of expression, and at the other end an effective regulatory environment, effective regulatory settlement. And what we thought would be a helpful way to think about it would be to say: all right, let's start at this end, let's recognise the importance of an independent and free press, and then say to ourselves: how far can one travel towards what we, I think, recognise as the criteria for effective regulation before you leave the world of self-regulation? In a sense, that struck us as the test to start with.

    What we try and do in the note is to say, well, actually you can travel -- if the industry is willing, you can travel quite a long way on that continuum before you end into -- you are in the territory of statute. And that seemed to us to be quite a constructive way of testing or investigating a question.

  • It might be argued, though, if I can put this forward quite tentatively, that if you look at your definition of the self-regulatory model and you identify there a strong alignment between the incentives of participants and the wider public interest, some would say that isn't really present here in relation to the press, particularly where we are now, that immediately therefore makes us look further down the page, whether it be to the co-regulatory or the statutory regulatory model. Is there any merit in that approach or not? Or is it too cynical or too --

  • No, no. The observation is at the heart of the dilemma here, the heart of the challenge. In our discussion of co-regulation and self-regulation, we observe again two end points to help frame that discussion, and I think one we refer to is advertising, where you have, I think, broad alignment between the industry and the public interest. The industry -- it's very, very important to the advertising industry that there is trust in advertising because otherwise their product is in essence undermined, and therefore they have a strong interest in there being an effective regulatory environment to ensure that trust pertains.

    The other example we gave was a situation of economic regulation where you have a company that wants to make as much profit as possible, that is where they have a monopoly position, that is clearly not aligned with the public interest and therefore you typically will see statutory regulation.

    I think in this area, one of the challenges that emerges from our treatment of the issue is clearly the extent to which -- where one places the press in that -- between those two points, and when we develop the argument and discuss the -- some of the more difficult issues such as membership incentives and obligations I think that's precisely the issue you're dealing with.

  • There's an extra layer on it, isn't there, Mr Richards, in this form, that one can talk about it theoretically and consider at a high level the ultimate interests of the press and the competition among them and the need to inform and all the high level issues, but then there are practical implications that some organs of the press aren't very comfortable with other organs of the press and therefore they're not very pleased to be in the same tent with them, yet we need to cope with both sets of problems in a way that prohibits, discourages, dissuades, whatever word you want to use, one from saying, "Well, I'm very sorry, this doesn't work for me", and is then able simply to walk away at the loss for the public of an over-arching broadcast regulatory regime.

  • Absolutely, and that characterisation is not one I think we witnessed in advertising, where pretty much everybody, to my knowledge, feels there is an interest in being part of that environment. And that is I think why co-regulation and indeed self-regulation in advertising has broadly worked quite successfully for many years.

  • And that is why, if I may just come back to -- I think the question you were asking in a way was why are you even bothering to start at the self-regulatory end of the spectrum in the analysis we've offered? I think it is worth looking at what we say here about actually how could the self-regulatory regime work? What does it take? And as Ed has said, we can see it working in the advertising industry. So I do think it's quite important that one just doesn't -- and I'm not suggesting you're doing this, but that one doesn't just rather cynically jump over the possibilities of self-regulation.

  • No, I'm very pleased that you do this, because the constant challenge for the Inquiry is to test --

  • -- is really to tense the self-regulatory ideas which have come out to see, well, can they really work?

  • It may be that they can work on 12 July 2012, because of everything that's gone on and everything that is now going on.

  • Professor Greenslade earlier today said yes, the Inquiry has changed what people may be reporting today, I'm pleased he thought for the better, but other people may think for the worse, but this is not a long-term responsibility.

  • Certainly theoretically, and perhaps more than theoretically, in paragraph 4.3 you say that there really is no reason why significant progress couldn't be made in relation to the various core regulatory elements or functions you'd earlier identified. You did heavily caveat it by saying in 4.1 that you would need "genuinely willing participants in such an enterprise" which I suppose it would be for the Inquiry to judge, having heard all the evidence, whether we're in that position or not, but then you say on the next page that one can analyse it is in more detail:

    "All of this can be said to rely on the successful establishment of three further core building blocks of effective regulation."

    And then you look at each of them.

  • The first one is membership, because if we don't have everybody signed up, then we have an obvious flaw as well as lack of public confidence but can I ask you, please, in your own way to develop the point on membership and in particular why you feel that a licensing system is inappropriate in this domain?

  • Again I think we're back to some of the principles that we started with and the way we've tried to test these questions, so we have tried to ask ourselves what is necessary beginning with that free and independent press and we'll move away from that so we therefore don't start with a licensing regime because self-evidently a full licensing regime is a significant change to -- or significant challenge to that context of freedom of expression.

    Its origins in broadcasting are very, very different, we set those out, and those origins which are technological, really, have been underpinned over many, many years by public understanding, public perception.

    So I think we start at a different point in broadcasting and observe that freedom of expression therefore operates in broadcasting in a slightly different way. The most manifest example of that is that we have impartiality rules for broadcasters and that clearly places broadcasters in a different context vis-a-vis freedom of expression.

    Our starting point therefore was to say that is the broadcasting environment. Freedom of expression works in a different way and in a more unqualified way for the press, and let's see how far we can go before one needed to create a licensing regime, given that a licensing regime has those kinds of risks and effects.

    Now, what we then did was try to develop the potential incentives that might make membership work, and we set some of those out. I wouldn't pretend that we've done an exhaustive study of that. We certainly didn't have time or the resources to do that. But we set out what we felt were interesting ideas. And as you'll note at the end, we couldn't conclude in all honesty by saying we thought with any real confidence that these would necessarily guarantee or ensure that everybody who you wanted inside the tent would indeed be inside the tent, so we qualify our advice or view at the end quite carefully.

  • Certainly. The incentives you mention there, they don't differ greatly from those others have put forward.?

  • And they speak for themselves. Journalistic accreditation, though, how does that differ from licensing?

  • I think that's one of the issues with it, and we note at the tail end of that bullet point that an accreditation system could potentially have a restrictive effect on rights of freedom of expression. It is a paradox, that point, that it seems like quite a potentially attractive device to incentivise membership; on the other hand, you are automatically thereby saying: somehow, if you don't have the accreditation, your freedom of expression is circumscribed.

  • There is no doubt that's been articulated in very great detail in relation to Mr Dacre's idea on press cards and the response from Northern & Shell, which we saw the day before yesterday, which spoke about it being anti-competitive and contrary to the law; is that right?

  • Yes, there is certainly an interesting competition dimension to it as well as the freedom of expression dimension to it, I agree.

  • There's also a small clarificatory point to make which is the Ofcom licensing regime doesn't licence individuals, doesn't bear on individuals. We licence companies. As I understand it, the debate around journalistic accreditation, press cards, et cetera, is about individuals and their freedom or not to participate in the industry. It bites in a different way.

  • This does lead you to conclude in the bold print between 4.15 and 4.16 on our page 00857, page 11, you think this is quite a challenge and difficult at the end of the day to establish a voluntary self-regulatory incentive, so you're looking for incentives which might be created by a statute, but how does that differ from a co-regulatory or statutory regulatory regime?

  • Well, by degree, I think is the answer to that, in I think once there is a -- what we were trying to do here was again to start from the -- with the objective of having as little -- going as -- keeping as close to the principle of an independent free press as possible and travelling as short a distance as possible consistent with the kind of effective regulation which I think everybody recognises is necessary.

    But once one is in the recognition in statute territory, you are obviously technically in that co-regulatory type environment to a degree, although you wouldn't necessarily be co-regulatory in the sense that you wouldn't necessarily have to have another body awarding the status to a -- it could be stand-alone, with a minimalist statutory underpinning, which I think we note.

  • I think we are sliding, if that's the right word, maybe it isn't, to what is beginning to look like your preferred position, which is a minimal degree of statutory underpinning. What label you apply to that system within your labels at the beginning -- self-regulation, co-regulation and statutory regulation -- may not matter too much but have I correctly understood where you're coming from because we can see it beginning to be articulated at 4.16 and following?

  • Could I just inject a small note here, which is we don't have a preferred position, and what we think we are doing is advising the Inquiry about what we think works.

  • I'm sorry to make a slight meal of that.

  • No, as soon as Mr Jay said the word "preferred", the point had occurred to me.

  • What you have done -- it's very important this is understood particularly in the light of the suggestions that we just had -- is respond to the invitation that I issued to you to help me from your experience across the range of the work you do at Ofcom of the types of traps that there are for each of the possible solutions.

  • And you have not tried to do anything else. Now, we will ask you to cope with what other people have suggested, because you may have pluses and minuses for them, but this paper -- and I'm just emphasising it so there is no doubt about it at all -- is not a position paper as to where you are.

  • This is an over-arching view of the issues that we have to address with the benefit of your experience of where the problems are likely to arise.

  • That's exactly right.

  • In terms of the incentives, you outline these at paragraph 4.16. Indeed, these are not unfamiliar to us: statutory powers to operate a complaints handling process, amending laws and procedures to give the court power to penalise parties who don't go through the complaints handling system, again, statutory changes to the defamation laws, we've seen that in Ireland in their 2009 Act, and a similar approach to privacy.

    May we look at the second issue of independent governance, where you really undertake the same sort of analysis, if I correctly understand you, so you say let's start with the position of self-regulation, let's see how far we can move with that.

  • And then see where, if any, the problems are, and at 4.22, you identify that there are significant steps a self-regulatory model could take, and again in terms of what you articulate, if I can put it in those terms, they are self-explanatory, and commend themselves for that reason. For example, not having serving newspaper editors, management or proprietors on the board are able to influence the board and then transparent appointment processes, et cetera.

    Can I ask you to deal with one point where the Inquiry has received conflicting evidence: serving newspaper editors on the board, whether it's the board of the regulator or on the relevant Code Committee. Many people have said there are advantages in having that because you're drawing on a repository of experience. Although maybe the principle of independence is being undermined, you're gaining elsewhere. In terms of the advice that you can give the Inquiry, do you have a position on that which you could express?

  • Yes, I think we would draw a very very strong and clear distinction between advice which I think it is very important to take from those with experience and ideally recent experience of the relevant industry in which we do our sales, and the precedents on decision-making or determinative functions of the regulator of participants and active -- people actively involved in the industry at present. I think that is quite the wrong thing to do and makes effective and reliable independent decision-making extremely difficult, and to be honest in our context is unimaginable.

    The idea that we would have and we could stand up in public and defend decisions we made if we had serving broadcasters on our decision-making bodies or on our code-setting bodies, I think is --

  • Even on the code-setting body?

  • Yes, absolutely. And I will say in terms of code setting, in terms of sanctions, in terms of corrections or anything of that kind and in terms of policy making overall, you need to have a bright line separation between those who are regulating and making decisions and those who are regulated, and I think any breach of that in my view, in our experience, means that you will immediately undermine the perception and indeed in all reality the actuality of your independence.

  • So what you could do is this: you could have an advisory board?

  • And bring serving editors or whatever onto an advisory board to deal with issues that have arisen and whether there needs to be a change in the code, but then their advice, all being transparent and open, should go to a decision-maker which does not comprise or comprehend a serving member of the industry.

  • Yes. Let me just enlarge upon the advisory point. When we revise our code, which we do from time to time, one of the most important things that we do is put it out for consultation with the industry, so we actively seek that feedback and that input that you're describing from working members of the industry, but it's done in an open, transparent way as part of a consultation. But the decision-making stays within Ofcom. Sorry Colette, did you want --

  • No, I just wanted to add one little further note on that. The main place where this happens in Ofcom is the content board, about which Tim Suter spoke to you at length earlier this morning. The content board is both chaired by and comprises people with very substantial experience of the broadcasting industry but who are not currently working actively in it, and I think that's another important point to take here as well. Ed is absolutely right about the strong, clear line between existing practitioners and those who actually make the decisions.

    To my mind, it's equally important that the people who are making the decisions are people who have had very substantial relevant experience and that they are bringing a lot from that to bear on this.

  • That's going to create a problem because if I go back not just one witness but two witnesses, Professor Greenslade said: don't think that the fact that an editor is no longer an editor means that he doesn't have an agenda.

  • I think probably everybody in this room has got an agenda, actually, if I could treat that point a little bit lightly, perhaps. But if by that he means that, let us say, the person who currently chairs the Ofcom content board, who was formerly the director of programmes at Channel 4, before that edited Panorama and edited Newsnight, if by that Professor Greenslade would mean that person was in some way bringing a bias from those previous jobs to his exercise of his regulatory functions, I think I would want to take very strong issue with that.

  • I think it's a rather light remark to make.

  • I'm not so sure. It might be slightly more serious than that because the gentleman you've just described has grown up with the requirement for impartiality.

  • And therefore can bring that in-built impartiality to every single decision he makes now.

  • Whereas, if you haven't grown up with that fundamental part of your DNA, indeed your DNA is different, for reasons which we all understand, then the point may not be entirely light. There is something a bit more there, isn't there?

  • There is, and if we could just spend one more minute on this --

  • -- you'll recall I said a few minutes ago, when we were talking about governance, the important thing that the people who come in to sit on the board of the regulator, wherever they have come from, come and exercise that role with commitment to the public purposes of the regulator.

    So in challenging, I suppose, the proposition that everybody is going to bring an agenda into this future press regulator which they are somehow incapable of leaving at the door, I would say that is an important -- a very important point for the future chairman of this regulator to have regard to, that -- I completely see your point. One doesn't want to be naive about this, but people who take on serious roles in public life have to know that they do so in the full knowledge that they are not going to be acting in a sectional way in so doing.

  • Let me take it one stage further, because I wasn't suggesting, and I don't think Professor Greenslade was suggesting -- I didn't ask him -- that a retired editor would say, "Right, here is my opportunity to get at my previous competing titles". I don't think that was the point. What I took from what he was saying was something rather different, which was I come into the role with a fundamental view about freedom of speech, which balances the other interests to which we have spoken, privacy, fairness, the others, in a different way to the way that another editor from another type of journal or paper might approach the problem. So it's not that he's deliberately being partial, it's that his perception of the public interest is actually different.

  • I completely see -- sorry, Ed, I know you want to say something here, but I just want to -- this seems to me to go absolutely to the role of how the chairman of this body will perform, because on any board people bring into that board a range of different experience, perspectives, agendas, if you will, and I think part of this -- part of the richness of the debate of this future regulatory board will be because people are bringing their different views about where one strikes these difficult balances between different freedoms, and the effective working of this board will be tested by, amongst many other things, the skill of the chairman in welding together these different perceptions, these different balances people are going to make to get a good result. You would not want a board where everybody who came into it had pretty much the same view about how this is going to work.

  • That's fair enough. So what that would mean is that you would need to encourage that particular board, however it's constituted, not merely to have an ex-editor or ex-somebody from a business, but a number of people from different parts --

  • -- of the business who will bring their different DNA into the discussion?

  • Yes, yes, yes, yes, that's exactly how I would see it. I'm sorry, Ed, I --

  • Just one small elaboration. I think the point about DNA is definitely important. I can't speak for editors and the press on this, but it is definitely true to say that the former broadcasters who Colette has been referring to, one of the reasons that we feel very comfortable with those individuals and I think it's worked well is because they come into Ofcom and their DNA and their attitude to it is that they respect the regulatory regime that's been in place for many years, that they actually feel as a matter of principle that their purpose is to uphold its principles and its objectives, and therefore what we find is that there is really no risk whatever of them being somehow proxies for the broadcaster or those who are being regulated. What they actually tend to do is come and says, "I spent 30 years working to these standards and I'm determined to uphold them in the future".

    So I think your point about DNA and attitude and experience from the past is very important, because what you wouldn't want is somebody with industry experience coming in and then seeking to fight a battle of the past in the new regulatory regulator.

  • Why we need a regulator at all.

  • Indeed. We don't have that problem. We have people who respect the regulatory environment and want to uphold it, and if you have industry practitioners who did not hold that view, I think that would be a challenge, would be a serious issue.

  • I've been asked to clarify this with you, that is this right, for the same reason that you would exclude serving editors from your regulatory board, would you also exclude serving journalists?

  • Yes. Absolutely. Serving journalists, broadcast journalists, yes. Again, we would quite happily talk to and consult with serving journalists in revising our code, but I can't see any way they could possibly be part of our decision-making process, no.

  • The conclusion you reach on this area, the bold type between paragraphs 4.23 and 4.24 in terms of the advice you give:

    "Because governance arrangements go to the heart of the legitimacy and authority of the new body, recognition in statute could be needed to establish the most important features."

    And then you go on to outline how that would work and we understand that, but you make one very important point which I think should be emphasised in the light of some evidence we've heard, 4.26:

    "Recognition in statute for governance would also change the view of those appointed to the most senior posts about the source of their authority. It would be clear that their authority was embedded in law and not derived from industry and its representatives."?

  • I think that goes right back to one of the remarks that we began with when you asked me about our overall purposes and we are very, very clear that our purposes derive from Parliament and who we are here to serve, so when I come in every day, I know that I am there to serve the citizens and consumers of the United Kingdom, not the industry, and that is actually a very fundamental point.

  • But your point on accountability is one I think that can be shortly made because it is clearly understood, that you are proposing, at least as a possibility, a periodic review in statute, and that, I think --

  • I think we say a periodic review, whether one ends up in statute or not, is very important. So even if one could devise or the final proposals did not involve statute because people were satisfied that a self-regulatory version was good enough, you would still have to have a periodic review and that is because I think that's the only way you can test and make sure that the body is performing effectively. If you don't do that, I don't think you should expect it necessarily to perform effectively over a sustained period. So it's important under all scenarios, in our view.

  • Before we break for lunch, the summary between 4.31 and 4.33 we're not going to cover because your evidence is very clear, but 4.34, please. You do feel that there's a risk that a statute once in place could be amended in a deleterious way?

  • That's something which I think the Inquiry would like to hear you develop. Do you have practical experience of that as a theoretical concern? Why do you feel this is an issue?

  • In some ways it's a statement of the obvious. Once legislation is in place, it can be amended. In some ways it's theoretical in the sense that we have never felt that -- we have never felt in broadcasting that that has been a particular problem, but I think the point we made earlier is that it's slightly dangerous to draw too close a -- too strong a conclusion from our experience in broadcasting and the reason for that is that impartiality rules govern what broadcasters -- how broadcasters portray the world and report the world, whereas newspapers are partial and as we all know they are highly partial on a whole variety of things and therefore I think the point we make earlier is that the temptation for politicians to interfere could be greater because of that partiality.

  • I understand the point that's made here, and it may be I'm being naive, but in the same way that legislation could be amended, so a new statute can always be introduced?

  • It can be just as difficult to do the former as the latter, and it's one of the reasons why I've spoken about enshrining the independence of the press, the freedom of expression, into the sort of language that's been used for the judiciary. The point was made, well, yes, but that doesn't mean ministers do respect the opinions of the judiciary, but that's what free speech is all about. Ultimately then somebody has to say hang on a minute, you have a duty to be independent. We have a duty to be independent and you have to uphold our independence.

  • I'm just not sure why the risks of amending a statute are any greater than the risks of there being a new statute if somebody is so minded to do it?

  • I don't think we think that they are. To be honest we're just making this point here because we know it's a point which concerns a large number of people and we're adding it to our advice in the interests of completeness.

  • I've understood that. Right, is that convenient?

  • Could you make sure that -- I am not trying to give them homework, but that you check that Dr Bowe and Mr Richards know about the other ideas that you want to ask them about.

  • Maybe they do already. Good. Thank you very much, 2 o'clock.

  • (The luncheon adjournment)

  • We are on to section 5 now of your submission, please. Page 15, 00861, "Establishing the scope and jurisdiction in a changing digital media environment", where obviously there may be different providers growing up over the course of time.

    Can I ask you, please, to just summarise what your advice is in this context.

  • I think in essence we make a very obvious point which a number of other people have made, which is that this world is changing significantly, and we need to think about, or the Inquiry needs to think about how to ensure that that evolution of digital communications is anticipated in any proposals that are made.

    We note the environment as it is today, and in this context I think that's particularly relevant in relation to our co-regulator ATVOD, who were discussed earlier, and that's a relatively new relationship that we have, very young. But we have got a good understanding now of how I think that works.

    Clearly that is dealing with an on demand, video on demand world, which has been populated thus far largely by people with feet in the broadcasting environment, but which in the future may well be populated by people who have historically been press organisations.

  • The conclusions of your paper again summarise the points you made before, but 6.5 is likely to be seen as the critical point:

    "... the importance of public confidence in the press cannot be overstated. Confidence in a system can be undermined very quickly by the actions of individual commercial enterprises acting against the interests of the industry as a whole. An effective regulatory mechanism which builds public trust is in the interest of the press as well as the public."

    I'm sure that's a point you would wish to underscore.

    One point you haven't addressed in this paper, but you did in the letter of 6 June, was the relevance and significance of the sanctions. Could I ask you please to talk to that.

    Ofcom we know and understand doesn't have the ability to order compensation to complainants, but it does of course have the power to impose, I think, unlimited fines. What is the significance of that power within a regulatory system, whether it be self-regulatory, co-regulatory or statutory regulatory?

  • I don't think our fines are unlimited, but they are significant. The way I would describe the fines and the significance of the fines is in the context of the overall framework of sanctions. This is very much how we think about it, and I would say I think it's very much how our regulated companies think about it, which is to say that there is a ladder of sanctions, beginning with the simplest, which is that we may take a case, we may decide that it is indeed a breach of the Broadcasting Code, and we simply record in public that it is a breach.

    That has a reputational effect. It has a -- it helps set precedent, it helps clarity, and it establishes a basis, should there be any further similar breaches.

    We then step through a series of sanctions which could be things such as requiring the programme in question not to be broadcast again, requiring an apology or a correction to be broadcast, importantly in a form and at a time of our choosing. And then through to fines, and then ultimately the sanction we have which is of course licence revocation or suspension. So that is a ladder of interventions and we always start at the -- typically start at the most lenient, and then go through those measures as appropriate.

  • As a criminal judge, that's not uncommon.

  • As you say in the letter, obviously it's a punishment, but perhaps more importantly, it's a deterrent.

  • Yes. I think we found the system works. It's very, very rare that we revoke a licence. We have revoked one in the last year or so. But it was -- it's an egregious case, and we --

  • We talked about it on the last occasion.

  • We did. Thank you for reminding me. So it's very rare, and largely we don't have to do that. The sanctions are known, and they are, I think, broadly speaking, effective. And they are -- needless to say, I think they are an essential part of effective regulation.

  • Two final areas of questioning.

    Mr Suter's proposal, which I think on analysis is a form of co-regulation. Whether with your agreement or not, he places Ofcom at the centre of it as the co-regulator. Could I have your considered reaction, please, to what he's propounding.

  • I think the ideas that Tim Suter has put to you are very interesting, and there are some similarities to one or two points that I think we've made in the past. In a document we submitted to the inquiry at an earlier stage we made the argument for the case for common or similar codes. There is a similarity between the existing PCC code and our own Broadcasting Code. There's a close relationship between our code and the BBC's editorial guidelines. In a converging digital world, it does seem to us to make an awful lot of sense that the closer the relationship between those codes, the better.

    So I think that underlying point that Tim Suter is making is a very, very good one, and one which we agree with.

    He then goes on to expound a longer term vision, if you like, about how this all might fit together, the notion of authorisations and the notion that Ofcom might be the spider at the heart of the web and not actually doing any regulation any more itself, but approving codes and being the backstop.

    I think I can probably say two things about that. Firstly, we are obviously used to being a backstop. We are a backstop in relation to ATVOD and various other co-regulators. So the concept is familiar to us.

    The second though is where we would have concerns about that kind of idea is that it would seem to move broadcasting into a very different place potentially.

    Actually, I think the level of trust among the public or certainly what the public tells us about the effectiveness of broadcasting regulation is it's pretty high. It seems to work pretty well, it works with the industry pretty well, and therefore I would be -- I think our instinct would be to be cautious in relation to radical change to a part of the system, a media regulatory system, which broadly speaking works pretty well.

  • Do I understand that it's this. If that works for the press, why shouldn't it work for the broadcasters, and why shouldn't there be a common system, albeit with different regulators? Why should Ofcom be directly involved? Is that the point?

  • Slightly different, I think. I think where Mr Suter --it he was in a sense saying Ofcom should step back from regulating in any respect, and merely be the code approver. And I think what I'm saying is, well, I can see the logic of that argument, particularly from a longer term perspective, but I observe that in broadcasting we have got something that works very well, and therefore part of me is saying, well, why would we want to change that?

  • Yes. I think that's what I was trying to suggest.

    I don't think he was suggesting you should change broadcasting, but given the rather different dynamics of the press, a slightly different system might work better for them. I'm not going to ask you to sign up to anything. It would be quite unfair of me to do so, and it's not in my gift. But I did want to make sure that you had the opportunity to comment upon it, given that we've just heard about it.

  • Well, I think the only thing I would add is if you look at paragraph 5.6 of our advice to you, page 0861 of your papers, you'll see that we're saying there the importance of different regulatory bodies working together, common and consistent principles. You'll recall that Tim Suter ended his remarks by talking not only about the importance of in effect being able to deal with the convergent digital future, but also of the importance for consumers and citizens of knowing where to go in a clear way if they've got a problem.

    So I think what we're saying here is we think the direction of travel sketched by Tim Suter is very interesting. Right at this moment we have a system of broadcasting regulation that appears to work well, and which appears to command public trust.

    The two things, I think, are not inconsistent.

  • Yes. I understand the point you're making.

  • There's one matter I have been asked to raise with you from another core participant.

    One issue which has been raised before is what happens when, at least in regulators, when there's the possibility or the actuality of contemporaneous court proceedings.

    The position with you, at least as regards fairness complaints, section 114 of the Broadcasting Act -- I'm sure this is well-known to you, but it won't be well-known to everybody else -- is that if the matter complained of is a matter in respect of which the complainant or the person affected has a remedy by way of proceedings in a court of law, and that in the particular circumstances it is not appropriate for Ofcom to consider a complaint about it, so you have to reach a view as to whether or not it's appropriate to consider the complaint.

  • I haven't forewarned you of this question, but are you able to help us in general terms as to how that works in practice? What factors do you take into account in deciding whether or not it's appropriate to consider a complaint if there are extant legal proceedings?

  • In light of legal proceedings taking place in parallel, I think in light of -- I think the kind of thing we would look at there is whether there is a broader set of issues for broadcasting itself beyond the individual specific case against the broadcaster, and therefore whether there was something we could learn or something that was important for a wider community. That's the kind of consideration we take into account there.

  • Other professions have been through this battle. I vividly remember involvement in the accounting industry where there were enormous corporate collapses, and civil proceedings against auditors parallel to disciplinary proceedings, and there were a number of conflicting decisions ultimately resolved by saying get on with it.

    So you look for something more than just get on with it. You want to see that there is a wider public interest engaged. But if there is, you do press on with it, even though there are extant civil proceedings?

  • I think that's the approach we would seek to take.

    Another example of that kind of thinking is own initiative investigations where sometimes we don't receive -- not very often, but occasionally we don't receive a complaint, but we have the power to make an own initiative investigation, if we judge that there is an issue, and potentially a wider issue, even though the individual in question hasn't actually complained. So you can see it from both sides of that perspective.

  • Thank you very much, both of you. Those were the questions I had.

  • Dr Bowe, Mr Richards, before you go, could I just repeat my thanks. You have many other calls upon your time and have had many other calls upon your time, and taking on this role for the Inquiry has had little benefit for you, but it's had a great benefit for the Inquiry. And I would like to thank both of you, and indeed anybody else -- and I'm sure there are others -- who exercised some grey matter in connection with this paper. I would be grateful if you would pass on to them my real thanks.

  • Thank you very much. Some of those people are here with us in the room, and have heard what you have very kindly said.

  • I'm very pleased about that.

  • The next witness is Sir Charles Gray.