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

  • Sir, on behalf of Associated Newspapers, we have submitted to you in writing detailed submissions and --

  • 45 pages. I've got them and I've read them.

  • Thank you.

    I was going to say today I can say to you that I do not expect to be any longer and properly shorter than 20 minutes.

  • You take the time that you think it's appropriate to take, Mr Caplan.

    Although we asked people to identify how long they wanted, it was merely so that we had an indication of what time to allocate. It's very important that everybody has the opportunity to say that which they want to say at this important time.

  • Thank you. I'm certainly not going to repeat the detailed submissions we've already given to you.

    Sir, the scope of your Inquiry has been vast. Looking back over the last eight months, no one can fail to have been moved by the evidence of witnesses like the Dowlers and the McCanns, disturbed by the behaviour of some journalists or concerned about the closeness of the relationships between some politicians and News International. Equally, no one can fail to accept that the regulatory procedures for the press need strengthening.

    But although the Press Complaints Commission has been found wanting, the failure to investigate fully what happened with regard to phone hacking at News International lies with the Metropolitan Police, and we must remember that it was ultimately the work of journalists at one newspaper, the Guardian, that exposed the true situation.

    Sir, the gloomy prospect must exist that history could look back on your Inquiry as reading the last rites on an industry which sees circulations falling year after year, provincial papers closing every week and very few of the national papers making any profit.

    One of the main reasons for that decline is the enormous and increasing proportion of the public's leisure time that is consumed by electronic media, which is controlled by vast global corporations based in California.

    When Sir David Calcutt delivered his reports 20 years ago, voicemails did not exist, nor did Facebook or Google or Twitter. Those that run these American corporations have a fundamental philosophical objection to any restraint on the free dissemination of information, and they live in a society where the First Amendment gives an absolute guarantee of freedom of expression. Public figures there submit their private lives to substantial scrutiny as the price for enjoying fame and wealth.

    And, sir, as the audience for British newspapers migrates online, this is the world in which their publishers have to compete.

    Whatever recommendation your Inquiry makes for future regulation, great care, we suggest, will need to be taken to ensure that it does not jeopardise the 19,000 jobs still remaining in British newspaper journalism, or drive publishers in the great growth area of the Internet to move their operations to another, sunnier jurisdiction because the conditions here mean they are unable to compete on equal terms with other global players.

    If they are prevented from being commercially viable UK businesses, their employees and investors will suffer, and so too will the public interest in a diverse, vibrant and properly regulated press.

    It is because of these vital interests at stake, and others, that my clients have sought to play an active role in this Inquiry to provide what assistance, sir, they can and suggestions for reform, including a paper by my client's editor-in-chief, Paul Dacre, and the speech he made last October, which set out a range of proposals to improve standards and self-regulation.

    Your Inquiry was conceived in the wake of the phone hacking affair, and in particular the interference with and claimed deletion of Milly Dowler's voicemail messages by newspaper journalists. But although these events formed the trigger for the Inquiry, the risk of prejudice to possible criminal trials has meant that the Inquiry has in fact been unable to examine this issue, and your terms of reference instead asked you broadly to inquire into a culture and a practice.

    Sir, we suggest this task is exceedingly difficult. Unlike most public inquiries, you cannot make findings of fact about the particular incidents in question and then proceed to make consequential recommendations. You have had to devise or choose your own areas for enquiry and decide which witnesses to hear from among a potentially vast number of persons who are qualified for many different reasons to assist you.

    The establishment of a general inquiry into culture, practices and ethics creates, we suggest, two particular difficulties. First, it tends to invite an emphasis on what is wrong with the press to the possible exclusion of all the good things. It is also worth recalling that although we have heard from many individuals who have complaints regarding their treatment by the media, there are countless individuals and organisations who have been helped by the press when the authorities have let them down.

    The role of the popular press is to speak up for those who are abused, whether by the State, the rich, powerful or possibly corrupt. There are numerous cases in which newspapers have overturned miscarriages of justice or campaigned for the ordinary people of Britain on issues ranging from the treatment of Alzheimer patients to the many failures of our banking system.

    The press have exposed oppressive or unfair treatment. The family of Stephen Lawrence, the victims of the Omagh bombing, people like Garry McKinnon are all people the State has in one way or another abandoned and newspapers have helped, and overall my clients feel that we have heard too few speaking up for the popular press.

    Instead, the vacuum has been filled by people with axes to grind, prejudices to air, some ideological scores to settle, and some undoubtedly see this Inquiry as an overdue opportunity to take the popular press and its content in hand. But the fact is that about 18.5 million people read the mid-market and red top papers, and about 4.7 million read the broadsheets.

    Sir, you will recall my clients having expressed at the beginning of your Inquiry a great concern that your panel of six assessors did not include anyone with experience of actually working in the popular press. One of the six is a founder, director and trustee of the Media Standards Trust, a core participant of module 4, and also a member of the Hacked Off campaign, which are both critics of popular journalism, but you were not given any assessor from the popular press. That's something we mentioned at the beginning and it's a concern of my clients that I express again today.

    This view was echoed last week by Peter Preston, the former longstanding editor of the Guardian and the distinguished press commentator, who said in stark terms that the middle market and the red tops were not represented on the panel of assessors.

    Sir, the Inquiry has received evidence from various academic witnesses about the importance of journalism in the public interest, but it is important, we suggest, to understand that in order to produce public interest journalism, you need to have journalism that interests the public.

    There are millions who want to know from their newspapers a little more about the lives of sportsmen, actors and other celebrities whom they admire and may even see as role models. It is important that there is not a groundswell of elitism, where the minority dictate what the majority can read.

    As Lord Judge recently commented, we need a press which responds to the demands of everyone who buy newspapers, and of course it is part of the exercise of our constitutional freedoms that we should be able to choose for ourselves the newspapers we buy and read. We are not cut from identical cloth.

    Or, as Peter Preston has written:

    "No inquiry can or should turn off the demand for a mixed diet of news, gossip and entertainment for the mixed bag of democratic voters. Freedom of the press includes the freedom to publish things that some people, maybe refined, discriminating people, don't relish. Let's not forget towards the close that our press is there for everyone. Something too narrow, too restrictive, won't endure because it will leave the rest of Britain out. And something clearly elitest won't work either."

    Sir, the rules to which your Inquiry has been held have been dictated of course by the terms of the Inquiries Act 2005. We suggest it is a matter of concern that those rules provide no right for core participants to cross-examine witnesses who make serious allegations against them, and we would suggest for the future that it is important that such allegations, if serious, should be tested at the time by the party whom they affect. That obviously would require an amendment to the statute and the rules.

    The Inquiry will no doubt consider carefully what weight to accord to evidence given anonymously or to witnesses who have made allegations based on supposition or hearsay. Many of those who have attacked the Mail titles have done so because they object to the paper's political or ideological views, which are often robustly articulated. For example, the Daily Mail was the most robust critic of the Blair/Campbell regime and Mr Blair's claim of a vendetta needs to be viewed against this background.

    In fact, of the 30 letters of complaint referred to by Mr Blair, only two resulted in legal proceedings, one was withdrawn and the other which did result in an apology and damages was based on a well-sourced or apparently well-sourced report published by the Spectator.

    My clients have nothing but sympathy for those whose lives have been hurt by errors made by the press, but it must be recognised at the same time that news is reported at great speed against hard deadlines and thousands of stories are published every week without complaint. It is sadly inevitable that human errors will be made, and no regulatory system will ever change that.

    What matters is that a regulatory system should do what it can to prevent mistakes happening and in conjunction with the law provide access to meaningful forms of redress to those affected.

    The Inquiry will no doubt ask itself if heavy emphasis should be placed on the historic use of private investigators by the press, especially as the current Information Commissioner said in his evidence to the Inquiry that he has seen no evidence of press involvement in data protection offences since 2003.

    In stark contrast, the House of Commons Home Affairs Select Committee in a report published this month found that there are still as many as 10,000 individuals working as private investigators for law firms, major corporations, local authorities and Government departments.

    More to the point, the Select Committee accepted that those investigators can perform a useful service providing they comply with the law, and suggested that the Government consider a licensing system that would give private investigators access to some prescribed databases, such as the DVLA.

    The future of press regulation is the fundamental issue, clearly, for your Inquiry. My clients' position is that they accept the need for a new, strengthened regulatory system, but it must be self-regulation.

    They support the proposals put forward by Lord Black on behalf of the industry. Those proposals would, for the first time, set up a standards and compliance arm with powers to investigate allegations of systematic wrongdoing, it would enforce good practice and would have the power to impose fines for breaches of the standards of up to £1 million.

    Under the proposed industry scheme, there would be an arbitral arm as well as a standards and compliance arm. The arbitral arm would assist members of the public to pursue complaints against the press in an effective, proportionate and economical way.

    The Inquiry has asked Lord Black and Lord Hunt why the scheme should not be statutory, suggesting that there can be no real objection to some form of statutory underpinning, and implying that there cannot now be proper regulation of the press unless there is, at the very least, some statutory backdrop.

    We suggest that there is a very clear and principled objection to statutory underpinning, which is that it let's the politicians in. It may be perfectly appropriate to impose statutory controls on lawyers, dentists, chiropodists and the like, but none of those people, sir, seek to hold politicians and public servants to account.

    The press cannot hold politicians to account if it is simultaneously to be held to account itself by those very same politicians, or by those who depend on those politicians for their appointment and funding.

    It is not fanciful to suppose that the light touch statutory control today could become heavy-handed tomorrow or the day after.

    The Inquiry has heard, for example, from Lord Patten, chairman of the BBC Trust, as to how politicians throw their weight around with the BBC, even though it is a supposedly independent organisation, protected by charter and not statute.

    Politicians recognise this problem. The report of the Joint Committee on Privacy and Injunctions, chaired by Mr John Whittingdale and published in March this year, made it clear. We do not recommend statutory backing for the new regulator, said the report. The report also warned against the dangers of trying to define "privacy" and "public interest" by statute. It said:

    "There is danger that any list will be treated as exhaustive, and so fail to cover information that should be respected as private. Any list that purports to be exhaustive will imply that anything not on the list should not be covered. We do not recommend a statutory definition of 'public interest', as the decision where the public interest lies is a matter of judgment and is best taken by the courts in privacy cases."

    And even if some were tempted to go along the statutory road, Lord Wakeham's submission makes it clear why the legislative route is not, we respectfully suggest, one to take. He wrote:

    "In my judgment, even this slenderest of statutes could be amended out of all recognition in a way which seriously eroded free speech. The battle to get it through would be extremely divisive. Just as many Parliamentarians hate the press, a number, possibly smaller, are equally passionate about press freedom, and wholly opposed to any Government involvement in this area. The battle would be so acrimonious no government in my view would willingly push ahead."

    By the same token, the Inquiry has heard proposals from Mr Ed Richards of Ofcom and others, that editors should be removed from the new complaints body and possibly from the new Code Committee.

    Sir, for any regulatory system to work, we would respectfully suggest that editors have to buy into it, not only in the letter but in the spirit, and there is a real danger if editors are forbidden to participate in the new system, they will seek simply to challenge it at every opportunity, which is clearly undesirable.

    The Irish Press Council, which is held up by some as an example, actually ducks these questions by making membership voluntary. Not only does the government vet the appointment of its chairman, but it fails to answer what has been termed in this Inquiry "the Desmond question", which is one of the key tasks the Inquiry has set the industry.

    Then there is the Internet: a global industry populated by bloggers and Tweeters who follow standards, as I have said, not set here but in California.

    The Media Standards Trust, supported by various professors, seeks to confront this problem by suggesting that the right to freedom of expression is relative, and because the national press possess, to quote Professor Cathcart of Hacked Off, a megaphone, they should be subject to compulsory, statute-based regulation, whereas small publishers should not.

    We suggest that that betrays a lack of understanding as to how news gathering works. All news operations borrow and develop information and ideas from other sources, whether blogs or Tweets or local newspapers. And so is the Media Standards Trust suggesting, therefore, that a story published, for example, by Guido Fawkes or the New Statesman could not be reproduced or even referred to in the Daily Mail or any other national newspaper?

    We suggest the solution is not statutory. It is, we advocate, the system proposed by Lord Black and Lord Hunt. It has the support of the press. We believe it should and will have the support of the public, and we must now look to the future.

    We would respectfully suggest to you it would be a fitting achievement for this Inquiry if the result of its work leads to a new and stronger system of press regulation which clearly is fit for the 21st century.

  • Thank you, Mr Caplan.

    I take very much on board what you've said about the First Amendment, but should I not be able to draw a conclusion that the way in which regulation operates in this country at the moment does not necessarily, or indeed particularly at all, reduce its commercial effectiveness from the fact that the MailOnline has such an enormous readership in the United States, where it is commercially apparently successful, so I've been told?

  • Yes, it is.

    Sir, our point in saying what we have done about the major players in the industry is that the large number of readers of the British press are, as we have said, migrating online to the online publications. One of the issues you have to decide, obviously, in this case is what is meant by "the press"? How are the press going to compete in this new world of electronic media? That was not something Sir David Calcutt had to worry about at all --

  • Oh no, I appreciate that.

  • It is a very real and difficult problem --

  • I appreciate that. I think I called it an "elephant" very early on in the Inquiry.

  • But I'm just interested by the fact that Mr Clarke made it clear that the MailOnline does indeed follow the requirements of the Editors' Code and is subject to the PCC, and yet is indeed extremely successful in America, where there is no such regulation. So therefore the question is: does that not lead one to the conclusion that the problem is not necessarily sensible regulation?

  • We're looking to the future. And we're looking to the recommendations you're going to make.

    Our point is that it is absolutely essential to have regard to the whole marketplace, and to include not just regulations for the British press, but to have regard to the fact that Internet publishers really are going to be the principal competitors of the British press, and are at the moment.

  • I understand. Thank you. Thank you very much.

    Right, Mr Rusbridger, you'll soon be taking silk.