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

  • MR JONATHAN PORTREE HEAWOOD (sworn). MR JOHN PAUL KAMPFNER (sworn).

  • First of all, please, respectively your full names for the Inquiry?

  • John Paul Kampfner.

  • Jonathan Portree Heawood.

  • Mr Kampfner, you provided a submission to the Inquiry dated 13 January of this year. Is this your formal evidence to the Inquiry?

  • Or at least your first submission, because I understand you may wish to submit another submission later.

    Does the same apply to you, Mr Heawood, in relation to your submission of 30 November of last year?

  • Can I ask you first of all, please, respectively to tell us about your organisation and then about yourself.

  • Just before you do, it's right, isn't it, that certainly at the seminars one, if not both of you, actually spoke?

  • Would it be fair to allow me to incorporate what you said there into the record of this Inquiry?

  • I think my remarks were from the floor at the seminar but likewise.

  • Mr Kampfner first of all.

  • Index on Censorship celebrates its 40th anniversary this year. It was founded as a response to Soviet dictatorship and was designed to promote free expression around the world and to highlight areas of censorship around the world. In those days, a much clearer definition between dictatorships and democracy. Over time it has evolved. In the just over three years I have been involved -- and I will be leaving at the end of March -- Index has changed quite considerably. We embrace the digital age with alacrity. We do considerably more campaigning and lobbying around the world in addition to the editorial work that we do and we embrace -- the term I use is we cover and highlight not just black and white cases of censorship, egregious abuse, use of violence, suppression of journalists around the world who are killed or otherwise intimidated, but we also are heavily involved in what we call the shades of grey. That is areas where free expression comes up against competing rights, whether it is privacy, confidentiality, data protection and elsewhere, and this brings us and has brought us for several years now very much to the forefront of the debate in Western countries and particularly in the UK.

  • Thank you. And yourself, Mr Kampfner?

  • I've been a journalist for longer than I care to remember, more than 20 years. I started at Reuters as a graduate trainee. I served in Bonn and Moscow. Then I was the bureau chief of the Daily Telegraph in Moscow and East Berlin for the events of the late 80s and early 90s. I moved to the lobby to be chief political correspondent of the Financial Times. I moved to the BBC where I covered politics for the Today programme and Newsnight. I became political editor of the New Statesman and then editor of the New Statesman in 2005 to 2008 and since then I moved -- I kept a lot of my -- what I would call journalistic instincts but moved into the NGO world.

  • Thank you. Mr Heawood next, please.

  • So English PEN is the founding centre of an international writers' association known as PEN International, which now has centres in over 100 countries around the world. PEN was established in 1991 by a group of writers who were very concerned to aid international understanding between writers and that evolved over the years into the free speech NGO that we are today. We see our mission as promoting the freedom to write and the freedom to read and identify and remove any barriers to those freedoms, whether those barriers are political, legal, social or economic.

    I have been director of English PEN for six and a half years. Before that I worked for a think tank. Before that, for the Observer newspaper, where I was on the books desk, and before that I was in academia.

  • Thank you very much. Can I ask you, Mr Kampfner, first of all, page 54660 -- I'm working from the numbers we have furnished for the documents; on the internal numbering it's page 4 of your submission -- where you set the context for free expression and press freedom in a developing environment. May I ask you, please, to encapsulate the points you're making there?

  • There is a difference -- there is a huge amount of convergence but there are also differences between press freedom and freedom of expression. Freedom of expression is the broader right of individuals, as much as organisations, news organisations, whatever, to express themselves freely in all contexts but within the boundaries of law.

    We take a -- what I regard as a reasonable but a fundamentally principled view on free expression, which is: where there needs to be curtailment of that free expression, it needs to be very clear and it needs to be narrow. We work from very strong -- a very strong belief not only in the American version of the first amendment but in the European equivalent, namely Article 10, while at the same time not in any way diminishing the competing rights.

    Therefore, our brief -- we are not -- Index, even though -- and it's obviously an area you will wish to come to -- we, together with PEN and others, have been leading the libel reform campaign. That could be seen to be -- and we've had very good working relations with newspapers on that front. We represent the interests of no media organisation.

  • Thank you. You also remind us at the bottom of 54660 of the global repercussions any recommendations made by this Inquiry will have, since the commentary, you point out, in China and Iran, for example, on the government responses to the summer riots. So others are watching us?

  • Absolutely, and again an area, I imagine, you will probe, which is our submission on areas where we regard the otherwise understandable incorporation of laws and norms into European Union countries, namely France and Hungary, can, if done wrongly, have an extremely deleterious effect.

    So while not exaggerating the importance or the status of the UK decisions made here and statements made here, such as reported statements that I have alluded to several times, such as the reported response of the prime minister to the riots in August, which was, on one level, an understandable instinct to shoot the messenger -- BlackBerry messenger in this care -- and to say it is the medium that is at fault -- time and again, through diligent research and, we hope, convincing argument, we seek to prove that invariably it is not the medium; it is other issues that need to be tackled.

  • Thank you. Mr Heawood, you make similar points, but in your own way. At page 53717, on the internal numbering page 2 of your submission --

  • Just before you pass to Mr Heawood, Mr Kampfner, you were actually distinguishing between freedom of expression and freedom of the press.

  • I think if you're dealing with that, it might be useful -- I'm sorry, Mr Jay -- just to articulate -- I think I've heard you on this subject before but publicly to articulate where you see the difference between freedom of expression, which you have talked about, and freedom of press, which has different connotations.

  • Freedom of the press is a subsection of freedom of expression. As I say, freedom of expression is a broader concept. Without a vigorous press and without a vigorously free press, then free expression is severely damaged, because newspapers, broadcasters and others in the mainstream media remain -- even though their proportion perhaps is diminishing all the time, they remain still the most significant conduit of information and comment and news. That proportion is constantly now being diminished by the rise of unmediated bloggers, citizen journalism, using crowd sourcing and other methods as well, so -- but one can always exaggerate the extent to which people "don't read newspapers", because even if newspaper circulations inexorably seem to decline, the impact on broadcasters and others remains strong.

    So it is a significant but not the only vehicle for information, and a conduit of freedom of expression for the public. But there are other areas of press practice, again I'm sure to be gone into, whether it's corporate bullying, poor corporate governance, et cetera, which can act as much as a curb on free expression as more broadly defined.

  • Thank you.

    Mr Heawood, page 51717, you provide the context: Article 10 and the changing environment, particularly the introduction of greater technologies and different technologies. In your own words, please, are there any matters you would wish to draw out?

  • In terms of the introduction of new technology, digital technology, in a way, it just allows me to build on a point that John made a moment ago about jurisdiction. I mean, there's an exemplary effect of laws made and practised in this jurisdiction. Other countries may want to emulate them.

    There's also a very direct effect -- and we've seen this in libel -- because of the transjurisdictional nature of internal publications, so that suits repeatedly brought or issued in the high courts for libels which may have actually taken place involving overseas claimants and/or overseas defendants. I think that's one impact of the digital revolution on the reach of English jurisdiction, one reason to be very careful about making changes here.

    The other impact, again as John has noted already, is the fact that we are all now potential publishers. The press, the institutional press, may still play a very particular role. That role has changed, it will continue to change. We're all now not merely consumers of media content; we all have the capacity, the capability to become producers of media content. So I think article 10, which for many may have been a right that was something that was slightly abstract, a right for others, is a right which actually we all now can directly enjoy through access to the Internet, and I think it's one reason why in the submission and today I want to make very clear that I think one thing we have to get right here is the underlying law. I think if we seek to regulate an industry which is actually in the process of transformation and may, in ten years' time, not exist in a recognisable time, we may be regulating, as it were, a stable door, and the horse has bolted. So the law has to be right.

  • May I just elaborate further on your original question about distinguishing between free expression and a free press.

    The free expression -- having discussed the issues of media, we defend free expression, whether it is doctors, whether it is academics and peer review. A lot of -- a vast amount of the work that we did when we launched the libel reform campaign was to protect the right of speech and writing for people who are not journalists at all: speakers at conferences, as I say, scientists, academics, NGOs whose free speech is chilled by either deliberate acts of oppression or by the use of wrong laws or unbalanced laws, such as English libel. Artistic expression and censorship norms -- there are all manner of UK laws that potentially impede upon that.

    So it is the right of individuals, organisations, interest groups as well as the media to speak freely.

  • I move on to the next theme. Mr Kampfner, it's 54661 under the rubric "Weaknesses of UK journalism". Mr Heawood, it's 53718, where you make the separate and different but maybe related point that what is most troubling about certain media organisations is their power. So there's weakness on the one hand and there's power on the other.

    First of all, Mr Kampfner, weaknesses. There are two questions I have for you: what are the weaknesses and are they systemic? That's the first question. As a subset of the systemic point and maybe the second question: are they truly systemic, rather than being derived from what you call the laziness and pliancy of some journalists?

  • Thank you. This is an important part of our submission, and humbly we would ask you, sir, to consider the view which has very rarely been made to you so far in this Inquiry that while I as an individual and Index as an organisation and I'm sure all right-minded people unequivocally condemn the actions that led to and arose through the phone hacking scandal, and while we -- as we will set out -- strongly advocate improved regulation and other methods to ensure better behaviour, nevertheless the -- born from my own experience over many years and our work at Index, the weakness of the UK media and the fundamental weaknesses of media in general are something that should be strongly taken into account.

    Referring -- I go through very briefly in my submission areas upon areas, whether it's entertainment and celebrity journalism, business journalism, sports journalism, and of course one of the fundamental requirements of a good journalist is to nurture their sources, to become friends with the CEO, with the spin doctor, with, if it's a company, the CFO or whatever, in order for them to give you information that could potentially turn into an interesting insight or an interesting story.

    My experience, however, of the Westminster lobby in the time when I was there from the mid-1990s until ostensibly the mid-noughties was a media that was extraordinarily pliant, particularly -- and I'm not making any political points here but I think I'm highlighting a particular era, and I'm not particularly qualified to talk about the current era because while I, to a small degree, am involved in it, to a much lesser degree than I used to be.

    But having been a foreign correspondent and worked with journalists who risked life and limb to eke out information and stories, to come to a culture at Westminster where, with some very notable exceptions, there was a culture almost of feeding -- it was just feeding the beast. I remember the spin doctors -- and I quite often had more sympathy for them than I did for some of the journalists -- would literally say, "All right, we have to feed the beasts today, what are we going to feed them with?" and they would line up to be fed.

    I remember one spin doctor, who I don't think it would be fair to name, one day -- I had just started out at the Financial Times and it was all about the soon-to-be-incoming Labour government and it's rapprochement with business. It was about 1996, and he was giving me a story about a new business initiative, and literally dictating pretty much the story to me down the phone, you know: "And then Tony Blair will say this, and then this happened and this happened." And I turned around and asked him a couple of questions, like: "But didn't you say this last week? Didn't this happen? Doesn't this contradict something else?" To which I got a response which I always will remember, which is: "Shut up, take it down if you want more from where this came in the future."

    This really was -- and I turned around politely and got on with the guy and said, "Actually, I don't really -- you go and give it to somebody else. I want to do my own --" I'm not trying to sound worthier than anybody else, because obviously if I had lunch with ministers or whatever and they gave me a good story, I would do that story -- it would be crazy not to -- but there was a culture of compliance, of docility.

    Now, if someone was on the floor, if there was a politician on floor, they would all give him a kicking. It was a sort of her instinct. When the going was clear, you would do it. But just as you had this very strong -- and it was -- a huge amount was obviously driven by the culture at the time, which was a desperation of politicians to endear themselves with News International, with Associated as well and with all the media groups, but there was a distinct pecking order. There was very much a sense of services renders: you write the story, and the more faithfully you write the story, the more stories you are going to get in the future.

    To me, while obviously political journalism is about nurturing your services, that seems to be a travesty of this idea which Tony Blair then, later on in his farewell speech, led to him coining the phrase "feral beasts". They were occasionally feral but most of the time they were locked up.

  • Thank you. Mr Heawood, the power of the press. You make a number of succinct points on 53718. Can I ask you, please, to develop those and to deal with the apparent confrontation between weakness on the one hand and power on the other, and what you mean by "power"?

  • I think it's a necessary power. I think it's a power that the press continues to hold and I think it's a power that should be there in society, whether it's held by the newspapers that we're familiar with or some other source that's coming into being, which may be certain NGOs or individual campaigners.

    As I talk about in the submission, if you compare what happened to Heather Brooke, who, as an individual campaigner, spent several years trying to reveal the details of MPs' expense claims and was consistently pushed back and the law was used against her and she was taken to court and she took MPs to court, took Parliament to court and fought a very long, very painful battle, very much unsupported by the institutional press who largely didn't think it was a story worth pursuing -- compare what happened to Heather Brooke and what happened finally when the Telegraph decided that when this disk, this unredacted disk which was being prepared ultimately as a result of Heather Brooke's campaign -- when that disk came illegally into the Telegraph's hands, they decided it was one of the biggest stories of the century and they would publish over several weeks, as we all know, with enormous consequences.

    I'm not convinced that the power at this date in law of the lone campaigner was equivalent to the power of a very large newspaper group like the Telegraph to bring something of that importance, of that public interest into public debate. I'm not suggesting for that reason that we should celebrate or fail to question the power held by those big beasts of the media. I'd like the same power to be enjoyed by other players, other actors, other speakers, other publishers, providing they follow --

  • But it's who has the megaphone, isn't it?

  • Well, the Telegraph on that occasion had the megaphone and was able --

  • I understand, but Ms Brooks didn't, and it works in two ways. It's not merely the ability to pick up a story and run with it; it's also the ability to drop a story. One of the points that has been made is: who is checking up on the press themselves, if not the press? The press hold us all to account, whether we be politicians or businesses or judges. The court of public opinion is there for the press to put our behaviour in front of them. But who does it for them? Who looks at the press?

  • I agree, and clearly that's the topic of the Inquiry, and I think it's worth remarking that if you look at parliamentary journalism, if you think about speaking truth to power and you think about where power is actually held and exercised in this country -- one would hope it would be by Parliament. It's democratic seats. Parliamentary coverage has fallen by about 95 per cent in the mainstream press from the second half of the 20th century to today. We've gone from 10,000 words a day in the Times and the Guardian down to about 500 on a good day. So I think the press is, in all sorts of respects, failing to fulfil that consistent role of speaking truth to power.

    But I think it comes back to my original point, that it's important to get the law right. We want the individual campaigner to be able to be confident that they can pursue that story. We want the press to be aware that if they choose not to pursue a story or they pursue a story in a way which we are unhappy with as a society and we want legal redress against that, that that redress will be forthcoming.

    One of the huge problems in this instance is actually the pocket, the depth of the pocket. It's not simply that the Telegraph can in some way bully government. The Telegraph is still -- you know, they largely follow the laws of the land. I have no objection to the Telegraph. But they have a much deeper pocket than an individual campaigner, and lawyers have similarly hungry pockets for what newspapers can provide.

    So I think there is a real problem here with legal costs as well. I think, you know, there's a lot in this Inquiry of seeking to hold journalists to account. It would be interesting to hold lawyers and the legal industry to account as well. I mean, research in libel has shown that the average cost of a libel trial in this jurisdiction is 140 times greater than the average cost across the EU.

    So I think there are some real issues here about access to justice on the part of the individual.

  • Mr Heawood, we're going to come to this. Let me just pick out one theme. You talk about empowerment of the individual. You also say, in the penultimate paragraph, 53718, that the press has a voice which is collectively more powerful than the sum of its readers or users. Might it be said that that is an argument for the need to regulate the press more, owing to its power?

  • Not necessarily, because I think as I say, one of the reasons for that power is also to do with financial resources, in the same way that companies are more powerful than their individual shareholders or customers. It's not necessarily a desirable property of the press; it's a reality.

  • Okay. I think you --

  • Sorry, I wanted to come in on a couple of points. Obviously if you take Jonathan's example of Heather Brooke and MPs' expenses and the Telegraph, there were two areas that militated against the individual and worked for the news organisation. One is the law. As Jonathan has alluded to and as to be developed later, libel and other legal areas and legal costs are just enormous, not just for individuals, and they are frightening and they are chilling, to use the free expression sense of the term, for individuals and for small publications as well, and there is another -- there is a more editorial argument, which is the pick-up, that when a story is run by a mainstream media organisation, it is deemed by broadcasters and others to have an imprimatur.

    Finally in this area of weakness -- it is a statement that I used at the seminar back in October and it's one I've used in various newspaper commentaries since, and I was pleased that it was taken up by the Times in a leader article a week or so ago -- I would simply emphasise again that if you look back at the main news stories of the past decade, and you can take your pick, but whether it is issues such as weapons of mass destruction, whether it is the failings of the banks and whatever, just simply ask yourself -- and I think it's absolutely crucial to this Inquiry: did the media find out too much of what was going on or too little?

    We're not here to hold a candle for the media. What we do -- what I personally and what my organisation fundamentally worries about, however, is that any misplaced increase in restrictions on the media will limit the public's right to know. That is a far bigger question than whether or not a particular newspaper can do this or that.

  • May I touch on the issue of risk aversion, 54662. If I can just summarise the points you make and then ask you to comment. You rightly say that investigative journalism is expensive and the returns, if any, may be long-term. There is a need for a vigorous press, what you say or you call a freedom to engage in robust or even grubby comment. Matters of taste must not be regulated.

    I think the question is: does that not create a risk of collateral damage?

  • Well, part of the answer to that question will come in, I would imagine, the more specific comments about regulation and what I would term to be the need for better regulation. We contend that there are already a plethora of laws that, legitimately or otherwise, already curtail the right to investigate and in some cases even the right to express, but the -- sorry, I've lost my thread.

  • It's the risk of collateral damage.

  • Yes. There will always be -- there is no such thing as the perfect system. There is no such thing as perfect regulation, which does not mean that we, and you, sir, should not be straining every sinew to find it. I don't want to put myself in the position of saying, "Oh yes, there will always be victims and that's a price to pay." No, because for every individual who is wrongfully traduced, whose life is made a misery, that is an individual tragedy. But if we get regulation stronger, details to be discussed, if the already-existing strong and copious laws were better enforced, which in many cases they are not now, and if -- an area I'd like to focus a bit upon at some point -- we can improve on editorial lines of accountability, responsibility and corporate governance, then I think you have the building blocks in place.

    That will never prevent wrongful things happening -- that is both the nature of journalism, as the first draft, and it's also the nature of human error, and in some cases bad behaviour -- but you will have a system that does not chill free speech, but at the same time does make a requirement of looking always at your own standards and your own behaviour as you go along.

  • Mr Heawood, do you wish to add to that point?

  • Well, I think I'm broadly in agreement, but I think the words "collateral damage" suggests a kind of negligence attitude and I think neither of us is here to suggest that the press should be negligent in any way. But I think the point is that one would rather live in a perhaps slightly too noisy, open society than in a slightly too quiet and overly restricted and overly regulated society.

  • Can I ask you this: is it your position that the starting point, or perhaps the primary right is the right of free speech, however you wish to articulate it, Article 10 of the Convention, and therefore you need to find a justification or reason for curtailing or curbing that right, rather than the other way around, that the primary right may be the private rights of individuals and you need to find a reason or justification for departing from that right? Do you start from free speech, each of you, and then are look for an exception, or do you start from a different position? Can I ask you first, Mr Heawood?

  • Yeah. I think ultimately these are both right, and one thing the court may want to look at is the ultimate objective of the whole rights portfolio. This is not simply about one right trumping the other. The reason we have a framework of rights and we have, you know, 30 articles in total, is to achieve something equivalent to human dignity, human flourishing, equality before the law.

    So I think in a way it's not really about one right being more or less important than another. The rights are a means for us to try to create a society that enables all of us to be equal, to enjoy our dignity and our freedoms.

    I think the way that the privacy law has developed, where the court seems to see it as a conflict between rights, is rather problematic. I think to a large extent the rights are complimentary. Without a private sphere, it's very hard to enjoy a public sphere in which we can express ourselves and speak truth to power and vice versa, so I certainly don't want to answer the question by suggesting that one right is more important than the other.

  • But inevitably the courts are going to have to balance those two. One could take any of these privacy cases that have been fought through the courts and the court is trying to balance freedom of expression on the one hand, the right of the press on the one hand, against the individual rights of the person who is complaining about their infringement.

  • I think if you look at it in the same way that any other civil tort is brought to court. I mean, it's required of the claimant to show that some harm, some real harm has taken place. I think if we inherit what we've developed in libel law over the last 800 years, where we have a reverse burden of proof and we don't expect the claimant to show harm -- I mean, in the libel reform campaign we press very hard that there needs to be serious and substantial harm for a libel action to be brought, and I guess we do begin then by asking the claimant in a privacy case, for instance, to show that some real harm has taken place or conceivably will take place as a result of publication.

    To that extent, I suppose, you are then presuming -- you know, free speech is the presumptive right, and then if that harm is established, then you may want to ask the defendant in such a case --

  • I asked the question because that rather answers Mr Jay's. But let me give an example. One of the people who gave evidence, JK Rowling, a very successful authoress, but who wishes not to be in the public limelight. She says she writes books. She doesn't want her family photographed. She doesn't want to be doorstepped. She doesn't want any of this.

    When you come to describe "serious or substantial harm", it might be argued: well, what is the harm? People are very interested in her because of her success.

  • I think there are two things here which are becoming confused, which is the harm of a publication in a newspaper, which may be the result of a story that has been generated by someone who has some connection with JK Rowling and has chosen to give that story to the newspaper -- now, that may be morally objectionable, but unless some real harm is consequent upon it, it seems problematic to make it illegal.

    On the other hand, if you're talking about real intrusion and somebody actually, as we heard from JK Rowling, somehow invading her daughter's private space and putting a note in her daughter's school bag, or the doorstepping or the long lenses through the window, I think there's a very different wrong that's taking place that has very little to do with Article 10 rights at all. It's about -- it's a form of trespass or a form of intrusion, which I think the law could look at very severely.

  • To answer your Article 10 question, I think I would take a more emphatic position. We, as an organisation representing freedom of expression in the UK and around the world, do regard Article 10 rights as fundamental to democracy.

    Where they are impinged upon, where they are restricted as necessarily they may be, whether it is shouting "fire" in a crowded theatre, whether it is specific areas of official secrets or operations where there -- we would like there to be public interest defences in some the laws where there are none, where there are competing rights and Article 8 rights as determined by judges -- and we think they should be determined by judges and judges alone -- then they will come up against those competing rights, but we do start from a straightforward Article 10 position.

    Jonathan has spoken about JK Rowling. I'd also mention one of the other witnesses who gave you very telling and vivid testimony. When Sienna Miller -- and correct me if I have my facts wrong -- was talking about how the paparazzi were hammering on her windscreen trying to evoke any kind of reaction so they could then snap that less than flattering picture, it's our contention -- not only is that reprehensible behaviour -- and I'd like to come, at the appropriate time, to issues around the progeny of stories, editorial processes and editorial management, and that includes freelancers as well -- but that is covered in the existing law. Were it to be properly enforced, laws on harassment, that kind of behaviour, it may not be preventable in the first instinct, but it sure as anything is, if this is the right term, dealable with regards.

  • You say it's an actionable tort, the tort of harassment and trespass?

  • Public interest, please, I can pick up that theme next. It's 54664, 53719. I'm going to deal, Mr Heawood, with your points first, 53719.

    You make a number of points, but one of them is that public interest should, you say, be a partial defence to otherwise unlawful activity. May I ask you to develop that point, please? Are you saying, for example, in relation to RIPA 2000, interception of communications, that there should be a public interest defence in this context?

  • Yes, I think -- and this was in response to a question that Lord Justice Leveson set before the Christmas break. He asked: should it be a complete or partial defence? I'm being quite specific: it should be a partial defence. It's not an absolute get-out-of-jail card. You can't simply wave the public interest card and that's end of story.

    I think, as I say in the submission, the nature of the public interest defence will be different in different areas of law. I'm not convinced that you can have a blanket public interest exemption. But I think if you begin from the starting point that the public interest is something along the lines of a publication that actually enhances the ability of the public, in whole or in part, to play a part in the life of their society, to understand their society -- and that may be slightly different from the PCC code, for instance. I'm not convinced about -- that simply the revelation of hypocrisy is a sufficient definition of "public interest". That seems to open the door to a whole swathe of publications which don't in any way contribute to that public interest in the outcome of a story. The public may be interested as observers, but they don't have an interest in that more narrow sense.

    So I think it is possible to define the public interest. I think what you then have to look at in some cases is the good faith of the journalist and whether they acted with the public interest whole-heartedly in mind or are using it as an excuse for something.

    I think the nature of public interest in, for instance, a libel publication is very different from the nature of public interest in, for instance, a breach of the Official Secrets Act. It may not be enough for someone to breach the Official Secrets Act in good faith. Their faith may be very, very, very faulty. You may want an objective test. The court may want to come to a decision whether or not it was in the public interest for that particular revelation to come out, but I think in different areas of law such as libel, it may be what's called a subjective test, where the court simply needs to be persuaded that the journalist or other publisher acted really with a conviction that it was in the public interest for that publication to be made. But I think it has to be a narrow definition, and on the basis that it's a defence against, as I said before, a real tort, that real harm has to have been shown.

  • Yes, you have a test, as you explained to us, of serious and substantial harm, which is a threshold both presumably for libel and for privacy, and unless you surmount that threshold, one doesn't get into any of the consequential balancing arguments.

  • Quite. You don't get off the starting blocks.

  • Yes. Fair enough. You also, Mr Heawood, draw our attention to very definitions of the public interest in the middle of page 53720, which we can note.

  • Mr Kampfner, you approach this from a similar angle but make different points, 54664. I think it may be said that you pose two questions, which you answer. The first is: is the problem located in the failure to enforce existing laws which are perfectly adequate?

  • The short answer is: yes.

  • The second question: in any event, is uncertainty created by the open-textured nature of the public interest defence in libel and privacy?

  • Well, the current public interest test, insofar as it exists in libel, namely the Reynolds defence, we have contended right from the outset, and I'm pleased to say I think this seems to now have broad consensus in the originals of the draft bill and in the joint committee's response to the draft bill and hopefully in the final bill soon to be published. We think the Reynolds defence is not remotely a strong enough public interest defence and a defence of responsible journalism.

    So there isn't, in many cases and in other torts, in our view, a strong enough defence of public interest journalism recognised in courts, and as written in our submission, it doesn't exist in a series of laws where -- I completely agree with Jonathan -- it is a qualified defence. It cannot be an absolute defence. You couldn't say, "The fact that we revealed, in a war situation, you know -- two hours before troops were being sent in a particular place, we revealed that they were going to invade this part of a particular country; that was a public interest defence." I think any such defence would be seen as insufficient where it came to endangering life or dealing in operations or that kind of thing.

    But I would throw it slightly on its head and say in those various laws where -- I mean, I've written a lot about what I regard as an absence of civil liberties in this country which permeates very deeply into a very secretive Whitehall mindset. There is a suspicion invariably of information and there is almost a -- built into the walls, there is a determination to keep as much information out of the public domain as possible.

    One example: when I was editing the New Statesman, we had a very strong story given to us by a whistle-blower in the Foreign Office. We were taken to the official secrets -- we were slapped with an official secrets case, my magazine and the whistle-blower -- interestingly not me myself. It's interesting how, in all these issues, whether it's official secrets or libel, they can pick and choose who they go for at individual times. And it was thrown out on the first day, I'm pleased to say, at the Bailey, because this was a straightforward case of trying to silence a publication in order to save the bacon of a cabinet minister. It's all in the public record.

    And there is often a presumption -- one can get into the wrongful or misguided error of always thinking it's the media that is doing too much. I repeat my statement of earlier, that in so, so many areas it is extremely difficult for the media, faced with a wall of laws and other restrictions, to find out otherwise legitimate information.

  • Can I deal with practical solutions to address the question of uncertainty in the context of public interest. It may be a constitutional solution as well.

    Is it a possible solution, you think, for Parliament to set out in a statute the broad parameters of what public interest might mean and then leave it to a regulator to give flesh to those factors in individual cases, or would you say it's desirable for the existing or a new press regulator to seek to tabulate all relevant public interest considerations, perhaps depending on the context, as Mr Heawood as said, so that we have almost a code book which can then be applied in individual cases? How do you see it, Mr Heawood?

  • I'm not sure that I've come to a final position on that. It's a debate that's going on at the moment. English PEN, Index, the Media Standards Trust and others are very interested in exactly that question.

    I think I tend towards the second route that you outlined. I'm not sure that as a single piece of statute would do enough. I think it potentially could cause further confusion because, as I said, the nature of public interest in different areas of publication is so different. So I think a code book that perhaps at least gathered together the different areas and the different requirements that might be relevant would be of more value.

  • What do you think, Mr Kampfner?

  • I would be strongly worried about the first proposition. After all, it is the same Parliament that keeled over at the first sign of trouble when it came to the superinjunction and Trafigura. Parliament's commitment to -- and the same Parliament that tried to get -- to change freedom of information to prevent the exposure of MPs' expenses -- the default position, while there are many, many honourable exceptions who we work with and who we respect, and while we completely understand the competing pressures, the record of Parliament in navigating a course towards better accountability and better transparency is very poor indeed.

  • Fair enough. The next theme is privacy, 54667. At 54669 -- well, let me go over the points you make, Mr Kampfner, at 54667 first.

    The first point you make is that you feel that Article 8 of the Convention has been overinterpreted, is that right, to yield a chilling effect?

  • It has been, from time to time, a bit like Churchill and democracy. I can't think of a better way of dealing with the issue than leaving it to the discretion of judges, and as with any judgment, one can always argue the toss and agree or disagree with those final decisions.

    We do -- I think the -- some of the main problems arose from the Fontaniva(?) case, where it was -- broadly, the continental view of privacy, which is pretty much everything is private unless we seek to make it otherwise, began to seep in from that judgment, which we regarded as wrong and dangerous.

    However, subsequently, in any of the many cases involving footballers or others in the public eye, these are difficult issues and there does need to be a public interest -- a strong public interest defence. One could literally go case by case through them and say: yes, no, yes, no or possibly.

    We would very much assume a public interest unless there is a convincing argument that there isn't, and certainly the public realm is a public place.

  • Yes. Thank you. That moves to the next point, Mr Kampfner. Prior notification, bottom of 54668. You address Mr Mosley's evidence and make the point that in your view prior notification could lead to injunctions stifling a significant amount of investigative journalism.

    Could I seek to put the point in this way, perhaps: that particularly in privacy cases, genie out of the bottle argument, the harm is done, one could say prior notification should be the general rule, but that would always leave open the possibility for exceptions. One such exemption might be precisely the sort of case you're addressing at the bottom of 54668, where there's concern that an injunction would be improperly gained on imperfect information, causing lasting harm. Would you agree with that formulation?

  • Yes, I would. I would also point you back to Ian Hislop's testimony of a week or two ago, where he talked about injunctions simply being used to stop coverage in perpetuity of issues.

  • That's a slightly different point, though, isn't it, because that goes to the speed and efficacy of a remedy, which I've been trying to address with a number of people, as I'm sure you're aware. What I think we're focusing on at the moment is the substantive position. How you then solve a problem and how you cope with trying to resolve the issue between the two competing parties and the speed that you can do that is a slightly separate point, but there is a fundamental issue, isn't there, namely whether it is ever right to permit a story to be published without giving a right of reply -- and I understand your answer to that, or prior notification -- and if it isn't, then how you couch the way in which you put the requirement to ensure that sensible decisions are made in individual cases which are then testable quickly. But the "quickly" bit is a slightly separate point, isn't it?

  • Point absolutely taken, sir. I mean, what I would say -- two things. One is a practical, one is a broad one. There is already, correct me if I'm wrong, an assumption of a requirement in good journalism to test your story or test your supposition against the person about whom you are writing in any Reynolds defence, which is broader than simply in cases of libel. It is obviously good journalism, if I'm writing about someone, to get their point of view before you write it. But there may well be cases when, for absolutely legitimate journalistic reasons, you cannot and should not do that. If you're exposing corruption and you know they are going to slap a story -- I mean, what sometimes happened in politics -- and again, it may not happen now, I'm not qualified to judge -- was you go back to a spin doctor or a minister and say, "I understand this and this and this is happening", and they'll just go and give the story to a rival just to spike your gun. So there were often non-legal but editorial reasons for not doing that.

    But on prior notification, we just took, as did the British government, an absolutely strong view in Strasbourg that prior notification is deeply as enshrined in statute -- and thankfully the European Court agreed with us. And they didn't just agree with us; they agreed with us vehemently. Their judgment was unequivocal on that.

    You just need to read, as we have written, a number -- those countries that currently require prior notification in statute: Albania, Azerbaijan, Latvia, Lithiania, Moldova, Poland, Russia and Ukraine. These are not paragons of free expression.

  • Yes, but is that a fair argument? There may be other problems with their press regulation systems --

  • Many indeed, yes. No, but I think by way of example, at least in part --

  • You say the United Kingdom shouldn't be added to that list.

    Mr Heawood, do you have a separate angle on prior notification or do you endorse what we've just heard?

  • Yeah, I completely endorse those points.

    I think, just to add a sentence to the point about accuracy. I think in a libel case the wrong is that the information is false and damaging. In a privacy case, we're simply talking about an unjustified intrusion into someone's private, virtual or physical space. In libel, if you're talking fundamentally about accuracy, then there may be a greater responsibility on the journalist to check out the accuracy of the story and therefore the Reynolds steps, as they currently exist, do require journalist to notify the subject of the story in advance.

    I think in privacy, if for some reason it's absolutely clear that the information is accurate, I think it is worrying to then impose this prior notification requirement because you are essentially asking the subject to snap an injunction on publication.

  • Isn't that slightly anomalous, though, that in libel the wrong, if there is a wrong, can be corrected by a public announcement of the court and a payment of damages and the public understands that a wrong has been righted, but in privacy, the complaint, of course, can be 100 per cent accurate, but the damage, the intrusion of privacy, is permanent, which is an argument, of course, in favour of prior notification. Is that not a possible analysis?

  • It is, but it seems to bring up a rather odd issue about these various speech laws in general, whether it's libel or privacy, that we seem to treat the harm that is done so much more seriously than we do the harm of someone losing a limb. Personal injury cases, the redress that's available to someone who may b permanently incapacitated is often rather less than the redress that we seem to be thinking should be available to people whose --

  • I don't think the privacy awards have matched the type of sums that we've been reading about in the press recently agreed. Those agreements might be for all sorts of reasons. If you want to debate the size of awards in personal injury cases, that's something which I'm very happy to talk about, but I'm not sure how helpful it is, because there are different features that come into play.

  • I take the point, but I think taken as a whole, the cost of defending a libel or defending an injunction -- an application for an injunction is so great that it does have a potentially chilling effect, which we make talk about when we talk about costs.

  • Before I deal with the issue --

  • Part of it, then -- both of you, it's not so much the substantive law that you challenge, although in some regards you do; it's the ability to get a remedy and the cost of sorting it out?

  • In part, but I think also to clarify, in libel prior notification isn't an absolute requirement. It may be a requirement as part of a series of hurdles in the Reynolds defence on a public interest issue, where a libel -- a publication may be largely accurate but there is some inaccuracy in the mix. I think what Max Mosley and others have called for is an absolute requirement for privacy, which I think is problematic.

  • We understand a possible room for a more nuanced position, that there's a general rule with exception to that rule.

  • Potentially, and that may be slightly more desirable if it was written into code rather than into statute.

  • And again, it would come into the points I'd like to make at the appropriate time on editor management and corporate governance.

  • We're soon going to come to those points, but just an insight, Mr Kampfner, that the two international European examples you provide us with, 54672, the French privacy example and then the Hungarian experience -- can we try and summarise the position thus in relation to France, because you're the first witness, I think, who's given us an insight into this. Under article 9 of the Civil Code, which was introduced by amendment in 1970, there is a general right to privacy. That's just one sentence in the code and the courts have interpreted that, particularly the higher courts in France, quite restrictively. You require a good and solid justification to breach that right and you give us an example of the Meteron(?) secret diaries case; is that correct?

  • Correct, sir. It is within the same -- originally, citing Article 8, in other words the same body of law that operates now in the British jurisdiction. However, the codification into the French constitution as a constitutional right gives it further strength. It is a very -- which partly goes to the French approach to privacy and the private life, but it is a broader one about the ownership of the public space and the ownership of image.

    Here is an example: a French TV crew wanting to do a GV, a generally view shot of a beach, talking about exceptional weather at a particular time, cannot identify a single person on the beach because each person lying on the beach owns their only image and could sue, and so therefore pictures are blurred. It is an absolute view. It is sort of the Hanover decision on speed. It is absolutely a view that the public realm is private unless any individual wishes their movement in the public realm to be identified and commented upon. It's, in our view, an unhappy place to be.

  • Yes. In many cases, French beaches are very happy places to be.

  • The Hungarian example -- can we deal with this shortly because we won't, with respect to Hungary, necessarily be looking for detailed lessons from Hungary, but the problem, as you see it, Mr Kampfner?

  • I would also, Mr Jay, say that Hungary isn't a far flung place about which we know little and care even less. It is now an integral member of the European Union, the European Commission and the European Parliament. The European Parliament, along with the White House, the OSCE and pretty much every UN commission under human rights -- pretty much everyone condemned or criticised the media law both in its substance and its tone, and the European Commission was -- got one or two minor changes but was pretty powerless to act.

    The points where I think it is salient for this Inquiry to remember is that while the prime minister of Hungary, Viktor Orban, seems to have some difficulties with democracy at the moment -- the constitutional court and other courts are being similarly deprived of their independence -- some of the -- many of the provisions in the media law are seemingly innocuous and mainstream. Co-regulation, licensing, fining, et cetera. If you looked at them on a piece of paper, a lot of these laws, you would say, "What's the problem with that?" Several witnesses have come to this Inquiry and advocated similar such measures, and of course the British heritage and British jurisdiction is different, but it is a case of "be careful what you wish for" because this has led to owners -- because they are part of this internal coregulation under statute provision, they're frightened stiff of any form of journalism that would lead the new adjudicator to deem them not to be fit and proper, and we have cases -- and we can bring you more, as any other organisation in this field can -- of self-censorship and of outright censorship, even in the 12 months that this law has been in existence.

  • Thank you. I'm going to move on now to the issue of regulation, which subdivides internal and then external regulation. Mr Heawood first. This is 53772, internal regulation.

    The basic themes may be these: the need for clear lines of responsibility, the need for audit trails and the need for sound governance. Mr Heawood, in your own words, how would you develop those issues? What are you looking for, please?

  • I think those are points that are taken from the Index on Censorship submission. I'm happy to expand on those. I think one of the greatest innovations that we currently have in the press is the internal ombudsman, the readers' editor, which the Guardian and the Observer have blazed a trail in appointing, but it's an internationally recognised model, and I would certainly be interested in a regulator which obliged members of that regulator to have an internal ombudsman as a first port of call. I think the vast majority of complaints can be resolved very quickly and effectively if there is someone inside the newspaper who is able to resolve complaints but is editorially and commercially independent, and I think that independence is something to be cherished. It's unusual at the Guardian and the Observer because of the nature of their ownership by the Scott Trust, but I certainly see no reason why other newspapers couldn't be obliged to have a similar function in-house.

  • Thank you. Mr Kampfner?

  • I completely endorse that point.

    More broadly, we see a strong independent framework of self-regulation where the regulator does the complaint mediation work that it does now, that it strongly facilitates ADR in -- alternative dispute resolution in its many manifestations -- and I think that's a very important carrot to membership, that where you are a member, you will have the facilities and the means -- it's not the only means, but very good means -- to seek resolution where resolution is required.

    The regulator should have a very strong standards arm to it, where it should be seen to be at one arm removed but at the same time consistently to be looking at the standards of newspaper behaviour, twice yearly meetings with editors and others important in that media organisation.

    So we see a strong regulator -- the code needs some tweaking, but it's fundamentally a good code. We think there should be far stronger lines between the funding arm of the regulator and its operations. We -- it's my view that serving editors -- even if they recuse themselves from individual decisions, I just think it diminishes from the sense of transparency and of disinterest in outcomes, and so serving editors should not be part of that, but --

  • It undermines the trust of those who might complain.

  • Correct. You do, however, because of the fast-changing nature of the media, particularly now in the digital age, you do need -- I think if you're a former editor 20 years ago, you're probably not in touch with the immediacy and the changes that are happening exponentially in the news media and particularly the challenges of the Internet newspapers. If we think it's bad now, newspapers used to wait until the following morning to put something out. Now they put it out at 4 o'clock in the afternoon or whenever they get it, so the challenges are greater than they were.

    One area I would like to stress -- and I hope this is the right place to do so -- is editorial management, corporate responsibility, corporate governance. Just imagine the following scenario: a reporter on the news desk has got wind of a very good story, talks to the news editor about it. It will involve, perhaps, any of the areas we highlight: phone hacking, paying sources for information, stealing documents, forging documents, impersonation, blagging, secret recording, secret filming, et cetera. It could potentially involve any of those. So in other words, we're in difficult terrain.

    The news editor has a private conversation, thinks: "Well, actually this is pretty flaky. Who is your source? This may just be somebody with a grievance. Go back, get stronger information, come back."

    So the story -- fast-forward. The story is strong, the news editor is prepared to back it. The news editor talks to the editor with the reporter present, really cross-questions the reporter. "Are you sure about it", et cetera. So you get to a point where the editor is satisfied beyond reasonable doubt. He or she is going to take a risk on this story, a reputational risk on this story.

    That editor should then go to the managing editor, or their publisher if it's a magazine, and say, "I'm not going to give you the details because it's my responsibility but I'm going to sanction an operation, to coin a phrase, in which we're going to use potentially the following methods to get a story which we're strongly of the view is in the public interest."

    Another conversation: "Are you sure, are you sure", et cetera. You have that conversation, and the managing editor says, "Fine, it's your call, completely support what you're doing. Go ahead with that."

    The story may come to nothing. The story may be a fabulous story, and so the concerns fall away because of the public interest test, or it may go badly wrong and there are then problems then ensue.

    The quarterly board meetings of the news organisation could and should have an agenda item on standards and practices: "So, in the last quarter, how many potentially underhand operations did you do?" "Well, we did eight." "Okay, don't tell us the details. We don't need to join those two sets of dots. How did they go? Were you satisfied with the process?"

    And then you add into that a role for the regulator to discuss -- again, without joining the dots, without compromising sources -- and you have a robust internal mechanism that ultimately comes down to the directors of that news organisation. There is a massive self-interest for them, as News International and News Corporation directors are now finding to their cost. Where you don't apply procedure editorial standards -- the "I was in Tuscany" excuse, "I didn't know about it, I didn't know who the bloke in the dirty mac in the corner was", is just no excuse.

    The buck does stop with the editor and not knowing is not an excuse and it's an issue of corporate self-interest to make sure that procedures are good. But where done properly, this will not in any way chill free speech. I think it will be great for newspapers to say, "We did 37 investigations last year. They involved the following methods, and we're proud of each and every one of them."

    I think that will be greatly enhancing for a news organisation.

  • Mr Heawood, I imagine you endorse all of that?

  • Yes, nothing to add to that.

  • Just picking up a number of themes from Mr Kampfner's submission on external regulation. First, you say that the regulator should be an authority on the big issues of the day. What do you mean by that?

  • Where there -- we're constantly, in the media, in the broader sense of media, coming up against all these dilemmas of data, of the other sense of privacy, which is corporations and search engines and others, and ISPs holding information about individuals, the Wikileaks case. All kinds of issues flying around. The regulator/ombudsman should be somebody who has a voice and who helps -- who contributes to the public discourse on really thorny issues.

  • May I move to a related matter, the issue of statutory regulation, which I know, Mr Kampfner, you oppose, and is this right, Mr Heawood, you adopt a similar position on? Or position to?

  • Yes, yes, very clear position. Clearly opposed to statutory regulation.

    I think also -- thank you -- this holy grail has appeared of co-regulation, this term which is now used as if it's a kind of magical third way between the rock and the hard place of statutory or self-regulation, and every example of co-regulation that I've seen so far seems to be a veiled form of statutory regulation, insofar as it usually provides that somewhere in the process an elected politician has the capacity to exert some influence over the decisions or the composition of a press council or a press commission.

  • But it's not difficult to remove the scope of politicians. It's really a more fundamental question than that which I'd be grateful for your assistance on, which concerns the way in which you ensure that common standards are commonly applied across everyone.

  • I'm not sure who that "everyone" is. I think this is one of the problems -- I think -- this is why I mean it's a rock and a hard place. I don't think there's a magical way between them. You may ultimately have to choose the rock or the hard place, and if the rock is statutory, where you do have that capacity for political oversight, and the hard place is self, where it is independent but there are flaws with that, I think one would prefer to go down the self-regulatory route, where it's essentially an opt-in, contractual model where you may still encounter, as it were, the Desmond problem of some publishers who choose not to opt in, but are still subject to the law of the land -- this is why I reiterate that it's crucial to get the law of the land right and to facillitate access to justice. I think ultimately that's preferable and then to be a member and subscriber to that code becomes a badge of honour for the publications which are involved and you may wish to incentivise membership in various ways and compliance with the code may, as now, be recognised by the courts as one of the incentives for membership and compliance.

    I may have missed something but I haven't yet seen a model which somehow charts a magical course between those routes and somehow manages to get the best of both. I'm not sure that it exists.

  • Before I suggest such a model, Mr Kampfner, are you broadly in agreement with what you've just heard?

  • We see no need in a robust environment for any statutory element to regulation, where there is, as I've outlined, I hope, strong editorial practice, where there is a good code and there is robust self-regulation as set out in this form or in variance of that. We believe that that will suffice in improving standards.

  • But it hasn't to date. One can look at history, as you probably heard me say over the years, over the weeks --

  • It probably feels like years.

  • There is some calamity, something must be done, there's a commission or a report, recommendations are made. Your predecessors said, "We must be self-regulated and that's the route" and then, two years on, there's something else. Now we must do something -- no, one last chance, whatever you want to call it, and over the last 20 years there have been examples. I'm very sympathetic to a great deal of what you say, but when you assert, as you say, that that will suffice in improving standards, I'm not sure of your evidence base for that assertion.

  • I'm not sure -- I accept what you say, sir, in that it's a prediction more than anything else. The dangers -- I hope I have given a reasonable fist of drawing upon the dangers of statutory elements to regulation around the world. I hope I have pointed out that we don't lack for laws where it comes to dealing with areas of wrongful behaviour. We have a reasonable code. Nobody in their right mind would argue that the PCC, whatever the reasons for that, has not -- nobody could remotely sympathise or even seek to explain its actions in the early part of the Milly Dowler case, in the McCanns' case. I was just as touched and horrified by the examples set out to you and the Inquiry in the first three or four weeks of evidence.

    But I would simply argue that yes, there have been many last-chance saloons before, but with the right robust and considerable changes -- I've outlined some and you've had many other witnesses who better than me have outlined others -- a strong system of self-regulation -- you could have the ombudsman or the chair of the new regulator reporting to the DCMS Select Committee on the -- not on the individual judgments but on the general performance mechanisms of the regulator once a year. You can have all kinds of areas where, at every level, the behaviour, the standards and the compliance is rigorously monitored. I just -- and I think advocates of freedom of expression, mindful of foreign precedents and mindful of the weaknesses of the media, would just resist strongly and urge you not to go down the statutory route.

  • ADR, please, finally. 53722, Mr Heawood. 54675, Mr Kampfner.

    Mr Heawood, first of all, identify the key features of the ADR scheme you have in mind, please.

  • So we're talking about alternative dispute resolution. Again, it returns to my central point that the underlying law has to be right and it has to be accessible. So when you look at libel -- and many of the cases -- many of the more egregious cases that have come up in the course of the Inquiry are actually libel cases, although it's not within the terms of reference of the Inquiry as such -- what we are very concerned about is that libel doesn't currently work for either party. It doesn't seem to prevent some of those really grotesque attacks on individuals' reputation, but at the same time, it is being used very effectively to silence all kind of publishers, NGOs, scientists, researchers, academics, book publishers, authors, historians et cetera, who don't have the resource to fight those cases.

    So in order to get resolution for both parties we have found, in our research, that mediation is actually phenomenally surprisingly successful in more than 90 per cent of cases where it's been used. Early neutral evaluation has been used less but it does -- in the cases where it has been used, it has been equivalently successful.

    So what we are recommending through our alternative libel project is that those options should be made not mandatory -- because there are some problems attached to making forms of ADR mandatory and in some cases it may be inappropriate. The rights and wrongs may be so black and white that actually it's a waste of people's time to try to find some sort of settlement, but in most cases there should be a heavy incentive to go down those routes, which would be recognised by the courts in the costs awards --

  • Of course there's a snag there that we discussed with Mr Barber, that those of very great wealth might be perfectly prepared to use the very expensive court route itself to effectively squash the expression that you wish to preserve, and if it's voluntary, then nothing can be done to stop that.

  • You mean they will refuse to mediate and will say, "See you why court"? Well, quite, and this is a problem that we have wrestled with considerably, but problems have been put to us around Article 6 rights of access to justice. If you're suggesting that some private body which offers mediation or arbitration services could replace the courts --

  • No, you can't, because of Article 6.

  • That's right. Therefore, if there is such a mechanism, it has to be provided by law. Now, it might not work and the victims might not like that, but it's just the other side of the coin.

  • If I can just make one final point there. To that extent, we have then looked down the Tribunal route. Many people are talking about: can you not have a libel tribunal, perhaps a broader press tribunal that sat within the courts and tribunals service? I think unless that tribunal came with quite severe cost capping and other ways of limiting the ability for size of chequebook to determine the amount of time spent, I'm not sure it offers significant advantages, really, over the High Court.

  • We would like, sir, to jointly submit in due course the full report that we're doing jointly on alternative dispute resolution and currently we expect it to be published in March, and we've done a draft of it, which I trust you received. We have an advisory committee involving a number of lawyers chaired by Sir Stephen Sedley, and we hope it will be a valuable contribution.

    It's our view that judges could take cognisance of the willingness or otherwise of parties to engage in any of the several potential fora for -- or mechanisms for dispute, but they're not obliged to.

  • I'll be very interested to see what Sir Stephen, who has a great deal of experience in this area, and his team have to suggest finally, and of course there will be an opportunity for that to be presented and discussed. But once one seeks to permit judges to take account of this feature or that future, there has to be some jurisdictional basis for them so to do. There has to be something that says, "You can take this into account", otherwise judges are acting outwith the law, and whatever we do and however well we do it or we don't do it, we try to do it consistently with our obligations to respect the law, whether it be a statute or common law.

  • It's your area and not ours, but is there not already a de facto recognition of some element of prejudicial activity in terms of early determination of meaning?

  • Well, yes, but that's because there's a decision that that's what's been ordered should happen in this particular case. Anyway.

  • I have about three minutes left. Mr Kampfner, Mr Heawood, are there any points you feel we haven't covered or you haven't covered adequately which you wish now to draw to our attentions?

  • Your statements, of course, are part of the record and I've read them both carefully, but I'm very keen that you do have the chance to say any extra if you want to.

  • I would like to conclude on a very specific point that is absolutely, in our view, fundamental to freedom of expression in the UK, and I said it -- I alluded it to it in my seminar presentation but I want very much -- and I said it this morning in the Times -- to exhort you and the Inquiry to make it clear, where clarity is required, because the decisions are being taken in coming weeks, that libel -- substantive reform of libel through the final defamation bill should not be held up pending resolution of all the many issues that you are wrestling with. You will be reporting in the autumn. Where there are measures that need to follow, that will take another many months, and if libel, which is there -- it's pretty much there. Pretty much consensus has been reached through the joint committee of the Lords in Commons on the substantive issue. It's ready on the stocks. It's a fast bill. We've had prelegislative scrutiny and I think it would be a tragedy if inadvertently, of course, this -- the ongoing work of this Inquiry delayed the insertion of libel into the Queen's speech in May.

    So anything you might wish to say or do now or at an appropriate point, we would be very grateful on that score.

  • I'd obviously completely endorse that. We spent several years of our lives trying to achieve sensible libel reform and we are very keen to see that completed.

    Just one very small point about the chilling effect. Sometimes people talk about the "chilling effect" of law or regulation as if it's desirable, as if it's necessary there should be a deterrent. Now, obviously law serves a deterrent purpose but the chilling effect is something quite different. The chilling effect of a bad law or a law which is badly applied or inaccessible is that certain subjects simply go unreported. So in libel we've had evidence from publishers that a majority of publishers will now not touch certain individuals. They won't commission books or biographies about them because they're so litigious that they know they might be financially destroyed if they did so.

    So I think we need to very careful about the nature of the chilling effect and to make sure that the law is right, that it's accessible either through a regulator or through the courts in the best form. But essentially just to say thank you very much for being here, for letting us come.

  • Thank you both very much.

  • Thank you.

    I would be grateful, if you can spare the time, if you would stay and listen to some of the other interest groups that are coming to give evidence today, which have different concerns, which it seems to me may impact on some of the nuanced discussion surrounding the very big issues that you've spoken about.

  • I agree, and I've read their submissions with great interest. As far as possible, we'll stay for part of the day.

  • I was wondering, sir, whether you were possibly on the point of saying something about libel and then you didn't. Did we stop you in your prime?

  • No. It's quite difficult to do that with me. What I decided to do -- and I will tell you exactly what I've decided to do -- is to look rather carefully at what has been happening. I have not studied the legislative pre-scrutiny. I don't know precisely what the provisions proposed are. I've not seen precisely how they fit in to my terms of reference. But what I will do is I will do that, particularly if you have any material that will help me do it, and I will then make the position clear.

    I would be very surprised if anything that I was doing should prevent legislation being proposed and advanced because libel is not specifically within the terms of my reference, but I felt it wrong to shoot from the hip, as it were, in response to your submission, which I've seen before. I would rather make a considered response. You've seen that during the course of this Inquiry, periodically I say things at an unexpected time in an unexpected way. I have very much your request in mind. I will consider it, but I hope you will not consider it discourteous if I take just some moments to think about what I should say and how I should say it.

  • Thank you. Sir, may we take our break until quarter to 12?

  • (A short break)