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

  • MR JAMES PAUL HARDING (sworn).

  • Please make yourself comfortable, Mr Harding. Your full name.

  • Is James Paul Harding.

  • Thank you. Might I ask you to bring to hand file 2, entitled, "Bundle for News International, the Times and Sunday Times". You're under tab 1. That is a witness statement you gave and it is signed under a statement of truth on 14 October of last year. Is that your truthful evidence?

  • You probably want to incorporate into that statement -- I don't know whether you have it to hand -- a leader in the Times this morning. I have a spare copy for you.

  • Which, it's fair to say, gives us advance notice of some of the issues your evidence covers, but there are just some isolated questions, if I may, on your witness statement before I delve into the leader. You, of course, are the editor of the Times and have been, is this right, since December of 2007. Before then, you had a career primarily at the Financial Times for 11 years, between 1994 and 2005; is that correct?

  • Thank you very much. Some specific points on your statement, which of course we've looked at carefully. Page 2 -- this is 7822 -- where you explain you don't have a readers' editor as such, but of course you have a Letters to the Editor column which has probably been there for a couple of hundred years, and a feedback editor who serves as an ombudsman. How does he or she operate?

  • She is -- I suppose she serves much as a readers' editor does in other newspapers. We happen to call her the feedback editor. She receives letters and emails and comments about the papers and the papers online, and she will respond to those either directly -- but she also runs a weekly column that we run in Saturday's paper alongside our leading columnist.

  • Is she expected to operate in a quasi-independent manner?

  • Yes, she is. So if there is concern about a piece of reporting or a question from a reader, she will regularly go and speak to the relevant journalist or the relevant head of department to understand our thinking and our processes in that reporting.

  • Presumably, her remit is to provide a balanced response to any opinion piece or perhaps even a factual piece which is in the paper, so that we get a sense of the calibration of readers' views in reaction to anything you might have printed; is that right?

  • Yes, that's right, and one of the other things we've done is we introduced a few years ago just a little column called "You the editor", which runs beneath the daily letters page, and the purpose of that is to allow people not just to comment on what they think is right or wrong with the paper in a factual sense, but in terms of emphasis, in terms of the way in which the paper's been edited, precisely, as you say, to make sure the readers feel as though they can comment on the paper they get every day.

  • And that's not the subject of editorial modification?

  • Thank you. Your evidence also covers the position of the Times independent directors. Obviously we've just heard from one of them. Is there anything you'd like to add or subtract from the evidence Mr Pennant-Rea gave us, particularly in his dealings with you?

  • I thought he gave a very good account of the role of the independent national directors, and clearly within the context of this Inquiry and thinking about the potential role of trustees, I'd endorse what he said.

  • Thank you. On the next page, 07823, under paragraph 3, you say in the middle of that paragraph you seek to set the culture of the paper. First of all, what do you mean by that, and secondly, how do you seek to set the culture of the paper?

  • Can I answer both in a sort of practical and a principle sense? The practical fact is that a newspaper's day is quite clearly structured. We have a news conference mid-morning and a leader conference that follows that, then an afternoon conference and then we're on the back bench reviewing the paper that we're putting out. The most important job of the editor is to make sure that he or she has an eye on creating the best possible -- getting the best possible paper out the following day, and that's with a view to breaking news on the front page, serving the readers in terms of the full range of news coverage, and providing, again, a range of opinions on the opinion pages and a strong view in the editorial column, in the leader column of the paper. So that's, in the very practical sense, the way in which you set the culture of the paper and the way in which you direct it on a daily basis.

    Of course, it's also set in terms of what you choose to do and what you choose not to do, and in that news conference, which generally is attended by heads of department or their deputies, that's where you discuss what stories you're looking into and sometimes it will also be the way you're looking into those stories. So the culture of the paper is set through those meetings, as well as, of course, the private conversations and the other conversations that happen through the day.

  • Since your arrival in December 2007, what changes, if any, have you perceived in the culture of the paper?

  • Well, of course, the largest by far has been: how do you take a newspaper which, for 225 years, was printed entirely on paper, and say how do you produce editions of the Times that live up to what our readers expect of the Times but -- not in print but on screen? So one of the very big changes has been moving to a 24-hour newsroom, moving to a whole range of different devices and journalistically that, of course, has meant that we can do things very differently, the incorporation of videos and interactive graphics and all that.

    So that means that our journalism is changing very rapidly, as is the way that our readers are consuming the Times.

  • Thank you. The question of sources you cover in paragraph 6 in a manner which I think is now quite familiar to us, but one straightforward question: do you ever print stories on the basis of one source alone?

  • Very, very rarely. But, yes, you would if that source was -- most likely if that source was pivotal in the story. There are, of course, stories where there is only one source. So you will try to get multiple sourcing for any story but you wouldn't close the door on a story simply because it only had one source. You would just have to interrogate properly what the motives of that person were and what their role in that story was.

  • The key to the reputation and, as you say, the commercial viability of the Times is your relationship with your readers, both current readers and, you hope, prospective readers. But how do you, as it were, log in to the aspirations, reactions and view points of your readers to what you're producing so as better to improve your product?

  • Firstly, as you say, I think there's long been a view held by the readers of the Times, and certainly by editors of the Times, that the most important page in the paper is the letters page, that you understand the range of interests, the depths of the passions and also the extent of the knowledge of the people that you're writing for, that at the root of the paper is a respect for the intelligence of our readers.

    In the modern world, of course, that comes at you every which way, so I will receive not just those letters every day, but emails directly to me, or I'll get telephone calls directly to the office. There's a running commentary, of course, on what the paper does and says on Twitter, not to mention in the pages of other papers or on other blogs, so I do feel as though we're keenly aware of what is being said about the paper, good and bad.

  • On the issue of sources, paragraph 17 -- I think this chimes with the evidence of the previous witnesses, that aside from freelancers, it isn't the practice of the Times to pay sources for stories; is that right?

  • On the issue of collision between private rights and public interest, again, it may not be an issue which often affects what the Times is writing about, but how do you weigh up in general terms the public interest in publishing a story against the private rights of individuals? Where do you see the line falling?

  • Well, this is at the heart of the work of this Inquiry, I suppose. There is clearly no absolute right of privacy and there's no absolute right of freedom of expression, and I think that what you're always doing is addressing what is a sliding scale. The question you have to ask yourself is, when you authorise a level of intrusion or when a story is going to have a certain impact as a consequence of the exposure of the person or the institution involved: what is the merit of that story? What is the nature and the importance of the public interest? And it is a judgment, and it is a judgment that editors make.

  • Can you give any example of your having to make that sort of judgment? I appreciate you're not doing certain types of the stories that we've particularly focused on.

  • Well, I guess -- I'll give a recent example. In the pursuit of the story about the nature of the former defence secretary's relationship with his friend Adam Werritty, clearly we were seeking to understand how it was that Dr Liam Fox was finding himself in foreign capitals accompanied by this person who had no official role, and there was a line of inquiry which seemed to be pursued which was about the nature of that personal relationship. You could have held off reporting on the grounds that you were concerned about treading on those toes. It seemed clear to us that there was a public interest in understanding the nature of that relationship, and the line that we pursued was to understand how Adam Werritty's travels were financed. We then were -- it then was made available to the paper the bank accounts of Adam Werritty's company, which exposed not only the way in which he spent that money but the people who had funded him and his work.

    Clearly, that was an intrusion in terms of his life and in terms of the individuals that had funded him. I took the judgment that this was clearly in the public interest and the nature of external influence on the Secretary of State for defence was something the public should know about.

  • So the greater the public interest, the higher the potential level of legitimate intrusion can become?

  • And it works the other way around?

  • I would have thought so, yes.

  • Thank you. Before I get to your ideas for the future, which you've set out in detail and in writing, a miscellany of questions. Was the Times offered the MPs' expenses story?

  • Yes, I think we were one of a number of papers that was approached about that story.

  • By implication -- well, it's not a necessary implication -- the Times turned it down. Why was that?

  • We generally don't, as I mentioned, pay for stories, and on that occasion we took the view that we shouldn't be in the business of paying for stolen goods, that there would not necessarily be a public interest defence for that. If you remember, sir, in this case, what you had to pay for was the right to look at what you could look at. So there was a fee, as I remember it, for looking at the -- at a selection of the disks before you actually acquired them.

    It may be the case -- you know, hindsight is a wonderful thing. You look back -- there may have been a public interest defence in that case. There was undoubtedly a public interest in the publication of that story, and going back to the point you just made, if there's a lesson there -- and I certainly -- this is certainly the lesson that I drew, it was that you have to have a set of rules in a newsroom, you have to have a set of standards and a culture, but you also have to be willing to break them in the event that you're presented with a story that is overwhelmingly in the public interest.

  • That's quite a hard call before you've got to the four corners of the story.

  • Does that require some structure around it for you or you're happy to say, "Well, that's my call, that's what I get paid for and I don't need any help to do that; I just need to be able to think about it"?

  • Well, it -- I think there are two issues there. How do you pursue a story when you don't know exactly where it's going? That was the point about the Liam Fox/Adam Werritty example. You didn't know where you would end up. In that, I think the issue is you should be able to pursue a shareholder when you're acting in the reasonable belief that it is in the public interest. I think that's very important.

    And the question about the responsibility of the editor, I do think it's absolutely right that the responsibility lies with the editor. As soon as you try to farm that out, you either compromise the independence and the freedom of journalists to investigate, and you also compromise the commercial organisation or the individuals who oversee the paper.

  • To take your first point first, then I'll allow Mr Jay to continue, I entirely agree that you don't know where the story is going before you've done the story. Isn't that a very good reason for saying that you need to have some sort of audit trail -- I'm not talking about anything overly complex -- to demonstrate that at the time you were making your decision, these were the features of the information you had which led you to reach the conclusion that it was in the public interest to do what you were going to do, so that even if nothing came of it and then there was a complaint, you could say, "This isn't retrospective thinking; this is actually what I was thinking about at the time and there it is"?

  • Yes. I think one of the things that we've learnt watching this Inquiry is that there is a real value in having an audit trail at the very simple -- at the simplest level is to show that there is a process, because sometimes it's unclear to people outside the paper that we have run a very thorough process in that investigation.

    This comes with one caveat: I don't want a newsroom to spend more time reporting on its own activities than what's happening elsewhere, so I think our view is that -- and what we're putting in place is an audit trail which is clear that when there are issues of concern, that we log those meetings and we can trace back that --

  • There must be a level below which it becomes unduly bureaucratic but above which it is appropriate to do something. The trick is going to be to find out where the level is, and that's a judgment call in itself.

  • I think so. I think -- actually, I'm not sure that the issue is at much the level as the mechanism. So in our -- because sometimes it can be a very small issue that actually grows into something much bigger.

  • So I think the simplest mechanism, at least in terms of the newsroom of the Times, is to be clear that when one of our journalists is consulting a lawyer, that we log the fact that that meeting has happened, because the reality is that whenever there is an issue of concern to a journalist -- is this going to raise concerns about bribery, blagging, is this going to be a data protection issue -- any of those, not to mention the big privacy issues, the first instinct is to say, "Let's consult our lawyers."

  • You have to be a bit careful about that, because if you're ever called upon to justify it, you would want to know what somebody was thinking, and the great snag about that, as I've seen in connection with many of the statements that I've received, is people say, "Hang on, this is legal advice and I'm not prepared to waive privilege."

  • You won't be surprised that that's what our lawyers also have told me. I think the issue here is to figure out a way that you log the fact of these meetings without necessarily, as I say, getting into a situation where you're endlessly reporting on yourselves.

  • Move off expenses onto a different story. There is a conception -- I'm not saying a preconception -- that the Times and perhaps even the Sunday Times -- but I'm only asking you about the Times -- was rather slow to pick up the phone hacking story, possibly because of external pressures. Is that fair, Mr Harding?

  • If you look back at the coverage of phone hacking, look, it's clearly the case that the Guardian broke that original story in the summer of 2009. We followed that story immediately the following day. We had a story up online by lunchtime, another story in the paper the following day. Through the course of the months that followed, we covered it too, and occasionally on the front page.

    What changed, of course, was when it emerged that the News of the World appeared to have hacked into the voicemails of Milly Dowler. Then the way in which we thought about what was happening or what had happened at the News of the World fundamentally changed, and that was not just about how widespread it was, but about the nature of the journalistic inquiry there. And after that, what you saw is that we covered that story on the front page every day, day in and day out, for the better part of three weeks.

    We not only did that in the pages of the paper; we also ran leaders that criticised the News of the World for not just its methods but whether or not it had lost its moral bearings. We criticised News International for its catastrophic handling of it and we criticised Rupert Murdoch and James Murdoch for overseeing an inadequate corporate culture that allowed this to happen.

    So I guess behind your question there is always a question of whether or not we really address the stories, whether we call it as we see it. I think in this case what you saw was we did exactly that, and I should say to the credit of the proprietors that they never raised a finger to stop us doing so.

  • Might it not be said that you were a bit slow here? I appreciate -- I think the timing of the Milly Dowler story was 4 July of last year, but certainly for 18 months before that, the Guardian was saying, "Look, this isn't confined to one rogue reporter; it was widespread." Wasn't it at that moment that the Times ought to have had an interest in the importance of the story, it might be argued?

  • Yes, looking back I certainly wish that we'd got on the story harder earlier. The reality, of course, is that both News International and the police poured cold water on it at the time, and we went to the sources that we had to try and chase it up and ran off those. It was only later that we could fully get to grips with it, but of course it was and has proved a very important and significant story.

  • I can't expect you to start identifying the sources you went to. Were they journalistic sources?

  • Sorry, I don't understand what you mean.

  • You said that you went to the sources you had in order to find out whether the News International/News of the World line was correct: one rogue reporter. My query was: did you go to journalistic stories? What sort of source did you go to?

  • I think the point that I'm making is that, looking back on it, if you're trying to understand why was the Guardian better sourced on this story than the Times, I think the answer to that is self-evident: if you wanted to bring this story, you would probably not immediately bring it to a newspaper that was owned by Rupert Murdoch, precisely because you had that suspicion, even though I would take the view that that suspicion is wrongly held.

  • Thank you. Can I ask about the question of proprietorial influence, if any. I suspect I know the answer to this, but do you feel under any influence under pressure from the proprietor?

  • When I joined the paper -- I joined the paper just after the Times had endorsed Labour at the general election and the Sunday Times had endorsed the tories, and it seemed quite clear to me that these were papers that were free to express themselves, politically and in all things, as they saw fit. In my experience, I should say, Rupert Murdoch had a number of undertakings when he bought the papers in 1981 and they are quite expressly made that there should be no interference in the opinion of the paper, in the political commentary of the paper, and my experience of that is that he's always respected that.

  • Thank you. In terms of his contact with you, presumably most of the time by phone, how frequent is it?

  • It varies a great deal. So sometimes you won't hear from him for weeks, then occasionally there will be things that are happening and you'll get a couple of calls in a week. And usually that is driven by the news. So in the run-up to Christmas, we spoke quite often because he was very interested, as was I, in what was happening in the eurozone. He'd heard certain things he wanted to talk about. He wanted to know how I saw things. So in that context, he'll call and we'll discuss that, as well as other things.

  • Can I ask you please about your dealings, if any, with politicians, socially or semi-socially. I've asked similar questions of other editors. How often do you meet politicians in the highest office or shadowing those in the highest office?

  • I try to meet with them pretty regularly, by which I mean once every few months, once every six months, and -- I've noticed the fact that this has been an issue that has come up regularly in the Inquiry and I think I'd like to make the point that for journalists, access is very important. It's important to speak to the people that you write about to find out what's going on. Sometimes it will be to make the case to them when it comes to your criticisms of them, your questions of them, your complaints about the way in which they're handling things, and to give them a forum to answer to. I have no doubt they have their own agenda when they see us. I think I do, and I hope my journalists regularly speak to politicians and people of power and influence and do so to pursue journalistic lines of inquiry.

  • How often since May 2010 have you met with Mr Cameron?

  • Um --I don't have the number to hand, but he will now -- because -- do you remember since the summer they announced a log of every time we'd met? Do you have the number?

  • No, I think all we need is a broad sense of the number?

  • Since May 2010, so in the last year and a half? I would have thought around half a dozen times, maybe a bit more, but I'm happy to go back and check and give you the exact number.

  • I don't know that that's important, but I just don't want you to miss the point that I think is behind Mr Jay's question. It's entirely understandable that journalists will want to pursue stories with politicians, with generals, with bishops, with judges, with whomsoever you like in our society on a general level. The real question is whether, because of the extent of the contact, it is possible for newspapers overly to influence government policy. An example could be the decision not to implement the amendments to the 1998 Act.

  • Oh, I see. (Pause)

    All I can say to that is that's not been my experience. My experience is that the subject of the conversations that we've had are always the matters of the day, that actually when we get in the room, the conversation that you have with the prime minister or the chancellor or the leader of the opposition is: what direction are they taking the economy, what do they think they should or shouldn't be doing on issues of policy. It's -- I'm just racking my brains, but I think it's safe to say that that's never been the subject of conversations that I've had with politicians.

  • I'm not suggesting that it isn't sometimes appropriate for people to be able to lobby their causes.

  • But if journalists have particular access and a particular megaphone, namely their newspapers, I'm sure you understand the risk of the perception that they may be used in some way that suits the pair of them, both the journalists and the politicians.

  • But actually, Lord Justice Leveson, I am concerned that journalists would be able to walk into the offices of a politician or a minister and be able to lobby their own commercial causes, or their own interests. I think that when people like me go into the offices of -- walk down Downing Street or walk into the palace of Westminster, we are there representing our readers, and we should be there pursuing politicians to justify what they're doing, to question them, not to be making the case in the best interests of our newspaper.

  • I happen to entirely agree with you, which is why I said I'm not suggesting that it isn't sometimes appropriate for people, and I did not necessarily say journalists --

  • -- to be able to lobby their causes.

  • Yes. But I guess one of the reasons why we are -- and I realise we're jumping ahead of ourselves, but one of the reasons why I take and I think the paper takes such a strong view on the issue of statutory regulation is the one set of people that you want to trust to walk into the offices of state and have nothing to gain or lose by the nature of the conversation they have is journalists.

  • Do you ever get a sense, though, Mr Harding, that politicians are seeking to manipulate either you or, equally importantly, your journalists, who are providing so-called exclusives?

  • Of course. There is a process in which politicians seek to use the pages of the press to make their case, to win their arguments, to secure reelection, and the job of journalists and the job of reporters is to distinguish between what is the official reality or the preferred political reality and what's really going on.

  • It's been put to me by those who have been observing the Times very closely that you don't like to splash on a story that's been on the television the night before. That's understandable these days. You therefore want exclusives, very often from politicians, and therefore that exposes the risk that you might be manipulated by politicians, often at short notice perhaps, to put in a particular story or spin on a story.

  • That's an interesting -- I think quite a convoluted observation. It's an interesting one. I would say that my experience is that Downing Street and politicians in general build programmes, build announcements, with a view to landing them on the 6 o'clock news, on the 10 o'clock news. Actually, that is quite a managed and choreographed way of dealing with the news. Actually going out and trying to, as I say, report what's really going on, find out what's possibly off the Downing Street diary but nonetheless of sufficient significance to our readers to be on the front page of the Times is a serious way to conduct our journalism.

  • We've heard a lot about agenda-driven journalism. How, if at all, does the Times seek to avoid that phenomenon?

  • First, can I make a small defence of agenda-driven journalism?

  • Sometimes, a journalist or an editor will be gripped by a particular issue or idea and will make a point of going after a particular line of reporting. So in the last year, the Times has reported again and again on, you might say, a campaigning footing about the scandal of adoption in this country and the failures of our adoption system. And similarly, we have sought, over a period of more than two years, to draw attention to the plight of a woman, Sakineh Ashtiani, who has been imprisoned and threatened with the death sentence and threatened with stoning, and you would say our coverage of that has been disproportionate. It has been in the service of an agenda. Of course it has, and that's what newspapers should do. So I make that small defence.

    I think that when people talk about agenda-driven reporting in terms of more broad news coverage and the service to our readers that we provide in telling them what's happening in their communities and countries, the point I'd make is that that really misunderstands the nature of a newsroom and the nature of journalists. We are a pretty independent-minded bunch of people, and we want to pursue the story and pursue it where it leads us. If you try to constrain journalists, what you'll often find is that you don't get the best people working for you and you don't land the best stories, and actually, more broadly, when it comes to issues of opinion, certainly in the case of the Times, if you're not providing a broad range of opinion and you're not surprising, sometimes challenging your readers, too, you're disappointing them. So I don't feel as though that's the nature of the Times.

  • Does this have something to do with your perception of what your readers want, that they want to be challenged, that they don't want to be fed a particular line on a particular issue or a range?

  • Yes, I guess that gets back to the initial point you made about: how do you go get a sense of where your readers are? What's the nature of your contact with them? You only need to read the letters page of the Times to get a flavour of that, and as I say, I get much more of that simply through emails and other forms of communication.

  • To take a non-political subject such as religion or the conflict between religion and science, it might be said: well, the Times is very even-handed here. It publishes the Dawkins line and it has a range of religious opinions which it is careful to give equal prominence to over the course of a year. Is that right?

  • I think that absolutely is right. I remember when we published Steven Hawkings' latest work, an excerpt from his latest book, there was a phenomenal response. We also then heard the following day from the archbishops of Canterbury and York, Westminster, the chief rabbi, the leading imam in the country. I think it's important that a newspaper like the Times is the place where people come to debate some of the most strongly felt issues that are alive in society.

  • Thank you. May I come now, please, to your leader of today.

  • Which I'm probably right in saying is largely, if not wholly, your own work, is it?

  • I'm afraid to say it is largely my own work, but I am lucky at the Times to have very clever people who I consulted with. But all thoughts are mine.

  • I certainly agree with the first sentence.

  • Yes, and I could well understand if you couldn't get further. I realise it's quite long.

  • Standing back from it and before looking at the detail, this general question: to what extent is the leader a response to the evidence the Inquiry has heard? In other words, would you have written the same thing on 14 November of last year, or expressed the same opinions, rather?

  • It's been significantly influenced by what's been happening here in this room. If you believe deeply in a free press and free expression, what is happening here is of enormous importance, and of course you've been affected both emotionally by some of the evidence that was given right at the beginning of this Inquiry but also forced to think technically about some of the possible responses that you will make to it.

  • In terms of the evidence the Inquiry received -- and of course, Lord Justice Leveson will form his own view about it -- was that evidence a revelation to you or did it merely chime with your own perception of where we were with the press generally or certain quarters of it in particular?

  • Both. At times, you were surprised and at times people said things that you were familiar with. I think if you talk about this leader and the way in which what's been happening here has shaped it, some of the issues that we wouldn't -- that I wouldn't previously have been quite so exercised about I've become much more exercised about, and some of the small -- not smaller but some of the more technical questions have seemed to me -- have loomed much larger. So -- I don't know whether you want to go into it in any detail?

  • Yes. Yes, please.

  • Let me make it abundantly clear this is very valuable, because instead of using the time we have to elicit these views from you, we can use the views and move it on a stage, so --

  • -- to that extent, it's very helpful.

  • It's clear that you're keen on independent regulation, but you draw a bright line really between that and statutory regulation, which you are entirely opposed to. May we just understand why you are opposed to statutory regulation and perhaps define your terms again?

  • There has been a great deal of discussion about how this Inquiry could respond to the task that it's been given, and I think it's been very clear from Lord Justice Leveson and from everyone involved that we don't want a country in which the government, the state, regulates the press, that we don't want to be in a position where the prime minister decides what goes in newspapers and what doesn't, and everyone agrees with that.

    Then there's a second order of conversation which is: what happens if you introduced an independent regulator but it had some kind of statutory backstop, that there was something in law and that the state had the capacity to oversee that independent regulator? And actually, the more I thought about that, the more deeply opposed I was to that, because either that backstop would have been meaningless, ineffectual, or what you have is actual state regulation.

  • Now let me change the word "oversee", and let me say "provides only a framework".

  • Right, this is, I guess, the third element of it. I have to confess in the recent weeks I was coming around to the idea that what could happen at the end of this Inquiry would be that Lord Justice Leveson, you would outline a new framework for regulation and it would be recognised in an Act of Parliament, and the more I thought about that, the more uncomfortable I was with it, and it's for this reason: instead of looking back at what's happened in terms of phone hacking over the recent years, if you look forward ten years' time, and a Leveson Act was in place, my concern is that you would be a journalist walking down Downing Street or walking into the Commons and be aware that if you were potentially too critical or possibly if you sought to curry favour, that could play out in terms of politicians using the Leveson Act and using -- making an easy amendment to the Leveson Act to take that out on you.

    So I know there is -- some people take the view: well, actually, if the press behaved very badly in ten years' time, Parliament could anyway legislate against you. But I think that the creation of a -- I call it a Leveson Act -- would give a mechanism to politicians to loom over future coverage, to respond to the bad press they're getting by making an easy amendment to that legislation and that would have a chilling effect on press freedom.

    So I end up in a very, very strong position, which is: I would not like to see any form of statutory regulation of the press.

  • Yes. You carry on and I'll bring it up again.

  • Can I just test this a little bit, Mr Harding? First of all, let's imagine that we want to create a regulator, properly so-called, we want to give it a name and we want to decide how it's going to be comprised. We could have an Act of Parliament which establishes the framework, but then does two things: one, sets up an independent body to decide who's going to comprise the regulator, and secondly then, the regulator will, by definition, have, one would hope, an independent and impartial group of people who could start regulating the press.

    Is there any principled objection you would have to that, notwithstanding that that system has its genesis in an Act of Parliament?

  • So the system that you talk about, ie having an independent regulator which the press funds and the press respects but does not appoint, does not set the rules, does not manage the adjudications, that seems to me to be entirely right. As we say in the leader, we have to move away from a system where we're seen to be marking our own homework. So an independent regulator is essential.

    What I don't like is the prospect of that being enacted by Parliament, because my concern is that once you have that legislation on the statute book, any future infringements by the press, any future failings by the press -- and there will be -- there will be -- whatever we come up with here, there will be shortcomings -- it gives politicians the opportunity to say, "Well, Lord Justice Leveson's work was good but we're going to just ratchet it up a little bit through this amendment or through that small act of legislation", and that's something I'd like to -- I hope that this Inquiry will think about.

  • Well, we're thinking about everything but the whole point that Mr Jay is getting at is that all one is doing is enabling the work of an independent regulator, the difficulty with it being: if you don't do that (a) you don't need to join the club, and that's a real issue, and (b) you can't have a mechanism, which has certainly attracted some of your colleagues, that provides for a swifter, more expeditious and cheaper resolution of the types of issues that bring members of the public into conflict with the press.

  • But, sir, what are you saying there? Because if you're saying that it's only through recognition and an Act of Parliament that you're going to be able to bind people into that regulator, what does that mean?

  • Well, the question is -- I'll put it quite bluntly: how do you solve the problem of a substantial publisher of newspapers saying, "I'm not prepared to participate in your independent regulator, either (a) because I don't like any of them, or (b) because I spend all my time criticising them and I don't particularly want to give them a chance to have a go at me; they wouldn't be very supportive"?

  • But does that mean that you think that you have to, in the end, have a system whereby you have -- where you have compulsory compliance? Because then you have a system of licensing of newspapers.

  • I'm not thinking anything yet.

  • And I have to continually say this: I haven't made up my mind about anything. Watch my lips: I haven't. I am simply trying to tease out what are the real issues and how best to create a mechanism or recommend a mechanism -- it will be for others, in part the press and in part others, to decide what will happen -- that will work.

  • The absolute priority I have is that it should work, because I am struck by the history of this sort of exercise -- not quite, an Inquiry under this legislation -- the number of times it has happened since the war. I don't think it's very good for the country, I don't think it's very good for the press, but whatever one does, then there's another Inquiry, last-chance saloon, "We'll be better", then another one. This is why I have postulated this graph of immediate improvement after some disaster and gradual drift until the next disaster, and then a big story will happen, and you've said it yourself: there will be trouble. So the system has to be sufficiently robust to cope with the trouble, so that in ten years' time we don't have to do the whole thing again.

  • And I would say that it has to be sufficiently robust, but in the event that in a decade's time you had an incident along the lines of the BBC's reporting of the run-up to war in Iraq but it happened not to be the BBC but a bunch of newspapers, I would be very concerned that politicians would react to that reporting by saying, "We have the Leveson Act on statute and we're now going to make a number of amendments to make sure that this kind of thing can't happen again."

  • But what I really can't grasp, and I'd like to, is what the difference is. Because it's not very difficult for a parliamentary draftsman to start on a blank piece of paper with an Act or to amend another Act. So if you've really wound up the government by what you've done, then we all know of examples where immediate reaction leads to swift legislation, normally which has all sorts of problems associated with it. Certainly, wearing a different hat, I'm only too conscious of legislation that's been speedy and ill-sufficiently planned.

  • But, sir, there is a big political difference between amending an existing piece of legislation and putting new legislation on the statute book, particularly when it is going to be the first piece of legislation that articulates regulation of the press.

  • There is a political hurdle there that is different from amendment.

  • I understand that, but it won't do that. This model that we're talking about isn't intended to identify standards, isn't intended to identify who should decide whether there's been a breach of standards. It is merely to give some authority to independent regulation; in other words to allow it to work across the piece on the basis that otherwise it won't work across the piece because you can't make it.

    Now, I'm not requiring you to -- the advantage of your leader is we've moved the debate on, and I'm not asking you instantly to respond to any of this because I'm not responding to it myself.

  • I'm asking the questions -- I repeat something I've said before: the reason I'm asking these questions is because this is a problem for the press. They have to solve it in a way which works for them but it does have to be work for the public as well, and it's therefore not sufficient to say, "Actually, it will be better because in some way we'll get everybody into a club today because we have to respond today, and things will be happier in the future" for the very reason that you identify: that actually it's not all going to work forever.

    So that's the problem.

  • May I try, Mr Harding, one more attempt, if I may, to distill the principal basis of your objection to state regulation, to give you examples where your objection could well be seen to be well-founded. Imagine a system under which the executive or an organ of the executive was able to determine who should sit on the regulatory body; would we agree that that system would be objectionable because the executive would be able to manipulate the outcome by deciding: "We're going to have X but not Y"? Are we agreed about that?

  • Yes, I'd be very concerned about that.

  • Would we also be agreed that if the executive were able to determine the standards which the regulator should apply with any degree of precision, that itself would have the tendency either to determine the outcome or at least make particular outcomes more probable, and therefore that would be objectionable? Are we agreed about that?

  • Yes, I would be concerned about that.

  • Are we also agreed that if journalists were required by the state to meet certain licensing criteria or qualifications which the state itself imposed -- and we've heard about one continental example which may or may not be objectionable; we don't know enough about it, perhaps -- then you could begin to see the makings of an objection because the state again would be determining who would be doing the reporting?

  • Yes, you would have ripped up the principle of free speech, yes.

  • But if we fall short of doing any of that and we keep to a framework under which, although the state sets up the regulatory body, the regulatory body itself or via a different body -- whether we call it a press commission, it doesn't matter -- decides who's going to sit on the regulator but the state has no influence over who sits on the regulator -- do you follow me?

  • -- then your principal objection falls away, because the state has merely set up the framework, has put the baton down and then allowed the regulatory body to get on with it. Do you accept that?

  • I do. I guess my point was I was coming around to seeing that as, if you like, the least-worst objection, and when I thought about it with an eye to the future, I thought: my concern here is that I do not want journalists at the Times, years from now, walking into the offices of politicians talking about ourselves, rather than the issues that face the country, and that we have an interest in behaving in a certain way in those offices rather than behaving in the way that journalists should, which is in pursuit of the story.

  • The other key point I'd like to make is that: provided that the state has absolutely no role in the standards which the regulatory body sets itself -- and those standards are purely for the body to decide, either in consultation with the press or wholly independently, but there's likely to be a consultation process -- then again, the principled objection falls away because the state has no hold over what journalists can do. Do you accept that?

  • Actually, the practical objection falls away. I think the principled objection stands and the concern would be over time, again, that in the event that politicians were unhappy with the press they were getting, they would say, "You know what? We should just tighten one thing up, and the thing we should tighten up is the oversight of standards. It will be easy to do; we'll just make an amendment to the Leveson Act."

    That's my concern, and I'm sorry we're labouring the point. Obviously, as you know, before the war, the Times endorsed appeasement. There was a real concern that a newspaper of influence and importance had got too close to government. I think it's really important that we avoid that.

  • I'm sure that's right, and one may be looking at the least-worst possibility. That may be so. But if I just pick up a couple of the other points you suggested in your leader: have you done any work on whether the VAT legislation would permit an exception to be made, given that VAT tends not to be attracted on printed matter, whether it be newspapers or book, but on other matter? That's not just a question of national law; it's a question of European law.

  • European law. As you noticed, at the start of the leader we said it's an unenviable task. The answer that we've had when we've looked into this issue has been quite contradictory. Some people said it is possible to do; others have said it's very difficult to deal with similar products in different ways for tax purposes.

  • But as I say, unfortunately we've had contradictory responses to that from the same place, so we're -- as we said in the leader, we realise that you need to have a muscular and independent regulator and it needs to bind in newspaper publishers and to do that we think it needs to sound in the pocket of proprietors, and what I hope we've listed here are a few ideas that are worth exploring. I'm sure -- these may be good; there may certainly be better ones out there.

  • That's what you and your fellow editors can carry on thinking about.

    Yes, Mr Jay.

  • If we move on now to the Internet. Those who publish on the Internet are subject to the general law and to the law of tort. May there not be a difference between what journalists do in your paper and more generally and what happens on the Internet? The Internet is merely an expression of an opinion by a blogger or whoever. It carries no more or no less weight than that. But that which appears in your paper -- and we'd like to think everybody else's paper -- carries with it a specific imprimatur, that an editor has approved it, it has been carefully sourced, et cetera, et cetera, and therefore that we see in the press is, by definition or as a matter of practice, much more weighty than that we read on the Internet and it's because of that that it requires a measure of regulation. Do you accept that?

  • I think that certainly was true. I think that may even hold to be true now. I'm not sure that that view of things will endure. If you look at the speed with which individuals are gaining really huge followings on Twitter, for example, or through Facebook or through their blogs, you're seeing individuals have huge readership, sometimes bigger than national newspapers, and I think it will feel -- we'll very quickly feel as though we're in a strange world, where there are significant constraints on publishing in a newspaper or beneath the masthead of a newspaper but those can easily be circumvented through any digital means of communication.

  • The issue of prior notification, a separate issue. One puts this forward not as an absolute requirement -- there is unlikely in this area to be any requirement which is absolute -- but, as it were, a presumptive requirement that generally speaking one should follow the principle of prior notification unless you can demonstrate exceptions to it. After all, you've heard the Pandora's box point, that once privacy is invaded, privacy is lost forever. With that refinement, would you accept the good sense of prior notification?

  • Yes. I think I do. I hope what we've laid out here on prior notification is essentially two points. One is: of course it's right, where possible, to contact people in advance and it's right for reasons of decency that you mention it. For reasons of accuracy, you want to make sure you hear their side of the story.

    The concern that I have is simply: how do you recognise that in the future? And I think there is understandable concern amongst journalists that any significant requirement or any significant obligation to -- for prior notification will result in a surge of injunctions, which even if they are -- if they go through the courts and we take the time and the money to deal with them, the correct outcome is one that we see at the end. I'd be very concerned about that.

    But there was a practical point I really wanted to make about prior notification. I remember a fair few years ago I was reporting a story for the FT. I was covering media, and I got a tip-off that one big media company was about to launch a bid for the other, and I called the person I knew of that company and someone picked up the phone and said -- it was late in the evening by now -- "I'm the cleaner, I can't help you." So I called another number there; turned out I got the cleaner. And I called a third and again I got another cleaner. And it later emerged, many years later I discovered that the person who ran the company had heard that I'd been tipped off about it and informed every single person in the office that if they picked up the phone, they should say they were the cleaner.

    This is a rather elaborate way of saying: if you make a requirement of prior notification, you could very quickly get yourself in a situation where, because the journalist cannot deliver that notification, they cannot publish.

  • That's my one hope. I hope there's a simple way of dealing with this, which is: if you look in the PCC code, as things currently stand, editors have to justify intrusion without consent. I think editors should have to justify intrusion without consent or prior notification.

  • Yes. The slightly odd feature about this is that virtually all the editors we've heard from have said in fact it is their practice, but not an invariable one, to give prior notification to their targets.

  • It's a bit of theoretical argument.

    May I turn to the issue of public interest on the right-hand column. I think what you're arguing for there is a public interest defence which applies to all laws that affect information-gathering, and I suppose that would also cover logically the laws which relate to phone hacking, which are laid out in the Regulatory Investigatory Powers Act 2000. Have I correctly understood where you're coming from?

  • It would. We touched on this right at the beginning, which is to say that if a story is of significant enough public interest, you should be able to justify the intrusion. The world we live in now is very odd, because I fear that the public interest defence we have is currently too narrow and not sufficiently robust, but more than that, it's very uneven, so it applies to some laws and not to others. So we're in the odd situation that blagging -- you can impersonate your way to securing a document, but you could not buy that document, say, from the knowledge that you had a public interest defence.

    And I would say that if we are going to move to a world, which I expect we will do, where we will have a more muscular regulator and there will be expectations that the press treat people better, press freedom will be best defended by having a very strong and widely enforceable public interest defence.

  • Possibly we could come back to that at 2 o'clock, but let's just think about this on the way: the effect of your leader, which is the response to all that has happened and has led to the Inquiry, is this right, is to recommend legislation to allow the press to publish more?

  • The response is this, is to say: we recognise, the Times recognise, that this Inquiry has a very difficult task, that it will want to, and rightly should, ensure that the press treats people better in the future, and that it does so by giving them meaningful terms of redress in terms of their corrections, by giving a greater expectation of prior notification and a regulator that has the power to investigate and to punish. But at the same time, if you are going to ensure that there is press freedom in this country, you should look to -- or I hope this Inquiry will look to a more robust and more widely enforceable public interest defence. That's our conclusion.

  • I'd like to test some ideas on that with you, but we'll do it at 2 o'clock. Thank you very much.

  • (The luncheon adjournment)

  • Mr Harding, over the short adjournment, I've been thinking a little bit about your concern, which you identify as a political concern rather than legal concern, about amending an Act of Parliament. That caused me to go back to legislation with which I'm sure you're very familiar, the Constitution Reform Act, which enshrines in paragraph 3(1) the following:

    "The Lord Chancellor and other ministers of the Crown with responsibility for matters relating to the judiciary, or otherwise to the administration of justice, must uphold the continued independence of the judiciary."

    That's what the Act says, and I was thinking about whether your point could not be met by seeking to enshrine a series of potential principles -- and I'm not seeking to define them -- in such a way that you couldn't possibly tinker without running four square into the over-arching principles to which I've just referred.

    I don't ask you necessarily to respond now, because I've just put it to you. I don't require that you respond --

  • -- with your megaphone, but if you do have a view about that sort of approach or anything else, I would be interested to hear it. I am entirely open to sensible suggestions as to the way forward in a way that most certainly does protect the independence of the press and the freedom of speech, subject to law.

  • And what you're essentially suggesting there is that First Amendment principles, or those kind of ideas, are enshrined -- would be set out in any such legislation?

  • Yes. I'm not suggesting a First Amendment -- I think that would be a little bit presumptuous of me -- but I am suggesting a mechanism whereby it would not be a simple matter of political expedience to put in a "not" or change a subprovision of an Act, which is what concerned you.

    Now, what I think of the concern is another matter, but I'm anxious to address it, because if you're thinking it, other people will be thinking it as well, and I am anxious to create a system that actually does what it says on the tin: encourages all that is good about the press, discouraging all that you recognise ought to be discouraged, and also provides a mechanism, perhaps, for the very much speedier resolution of those arguments that require timeous solutions. It is, to some extent, a failure of the system, however speedy, that it took Mr Hislop some months to overturn an interim injunction that was granted after the original injunction had been refused but pending appeal. That's a problem. But I can't simply promote privacy or press interest litigation above all the other types of action that are being pursued in court because everybody else would say, "Well, me too", and legitimately. That's the pressure that we're all under.

  • All right. I don't ask you to respond further to that at this stage.

  • Just one final question, Mr Harding, which I omitted to pose before lunch.

    You referred to meetings that you've had with Mr Cameron. Are those meetings, as it were, private meetings or do others go with you?

  • It depends. Usually there are other people there. I'd go along with our political editor, for example.

  • Have you ever been along with Mr James Murdoch or Mr Rupert Murdoch to any of those meetings?

  • No. There was a social function -- News Corporation has a party in the summer and so I've attended that, and all of those men were there, but when I've gone for meetings at Downing Street or with the leader of the opposition or with the chancellor, it's only ever either on my own or with other journalists and pursuing, as I said, journalistic enquiries.

  • Thank you very much, Mr Harding. Those are all the questions I have for you.

  • Thank you very much indeed.

  • The next witness is Mr John Witherow, please.