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

  • MR KENNETH CLARKE (sworn).

  • Thank you, Mr Clarke. Your full name, please?

  • Thank you. You've provided us with a witness statement. If we check the date on that, I think it's 30 April of this year.

  • Is it 34 pages in length?

  • It's 26 pages plus several annexes.

  • I don't have a date on mine, I'm not sure that's going to be that critical.

  • I'm afraid I can't claim that I remember the precise date time, but I probably did it about five or six weeks ago, something like that.

  • Thank you. You're content to confirm the truth of this statement?

  • Oh yes, I reread it and that is certainly my statement, assuming you have the same copy as me, 26 pages with two annexes.

  • Yes. Mr Clarke, thank you very much indeed for the statement and for the obvious work that you, and I have no doubt others, have had to put into it.

  • Yes. My officials and my advisers have actually worked -- particularly, as you see, I have had checked the detailed explanations for the legal position for various things I am responsible for. If there are errors, they are not solely my own, but I have a confident belief that they're correct as they stand.

  • In terms of your career and current position, as we all know you are Lord Chancellor and Secretary of State for Justice. You have been since May 2010. In previous administrations you occupied various positions in Cabinet between 1985 and 1997, and thereafter various shadow positions in the Shadow Cabinet. Is that in a nutshell correct?

  • Yes. A much reshuffled career. I first entered a government 40 years ago, but we will draw a veil over my various junior activities.

  • You've also had a limited association with Independent Newspapers Limited, which you identify in paragraph 3 of your statement?

  • As a non-executive director, first of the British company and then of the international company, which is based in Dublin, whilst we were in opposition, between -- after we lost office in 1997 -- I've given the dates in my evidence, but it was Independent News and Media, dominant shareholders the O'Reilly family, and I was one of the non-executive directors.

  • Thank you. In terms of the areas of your responsibilities, you cover that in paragraphs 4 and 5 of your statement, and further detail is furnished by the two annexes. We're going to take those as read, Mr Clarke.

    Can I touch on the issue of conditional fee agreements first of all, page 6, our page 01116. You have followed the main recommendations of Lord Justice Jackson's Review of Civil Litigation Costs. First of all, please, is there a difference between defamation and privacy cases in the context of CFA and the generality of other cases? And then secondly, why have the success fees been capped as a matter of policy in the way in which there has been?

  • The report, as you say, came from Sir Rupert Jackson, Lord Justice Jackson, and was delivered to the previous government and challenged the way in which no win no fee cases were being conducted on the basis they were far too costly for all the parties, and in particular for defendants.

    The previous government had proposed to act on Sir Rupert's recommendations so far as defamation and privacy only was concerned. They'd announced that just before the election, in what seemed to me a blatant way to win favour with the media and were only interested in reducing the costs for cases which involved the media.

    What I did when I came in, I was very attracted by Sir Rupert's proposals. I think justice in this country has got too expensive for all parties and that no win no fee, which had been quite a good idea when it started, and still is, had been made extraordinarily profitable by the changes made in 1991, 1992. So I proposed to act on it, but I applied it to all actions, and with the result that it of course will have an effect in reducing costs for defendants of all kinds who are unsuccessful, and probably will have an effect in reducing the costs for plaintiffs as well, because there will be some constraint on the running-up of costs which did not exist under the previous thing.

    So I went ahead with the recommendations in full, I didn't just concentrate on defamation and privacy, as my predecessor had proposed.

  • To be fair to your predecessor, defamation and privacy had been accorded a special status by the European Court of Human Rights, in a case I think called MGN v United Kingdom where a breach of Article 10 was established in view of the problems with the CFA regime which you described.

  • A punitive level of success fees, yes. But it didn't seem to me that the argument applied solely to defamation and privacy, and the idea that punitive costs were being imposed to an excessive level on defendants applied to all other defendants as well.

  • It may be that the policy decision is already writ in stone, Mr Clarke, but might it be said that the balance of power has shifted too far the other way, and when you say in paragraph 9, "Nothing in these reforms will prevent CFAs continuing to be available for strong cases", by that you mean very strong cases, because it's only in such cases that a solicitor would take the risk, given that his or her success fee is capped at 25 per cent?

  • I don't think it's shifted the balance too far the other way, myself. It does, of course, alter the assessment of risks from the point of view of the solicitor involved. He has to bear in mind that when he does -- he or she does win a case, it's not likely to be quite so profitable as it was under the previous regime, and that will affect the assessment of the cases, but I think that is a perfectly reasonable thing to do.

    The no win no fee was introduced, as I recall, in the mid-1990s, and it worked perfectly satisfactorily until we got -- the reforms were made in the early part of the 2000s, and this suddenly much higher tariff for success fees and insurance reimbursements was introduced, and that has made no win no fee litigation an extremely profitable area of activity for those that specialise in it. It will still be profitable, still be reasonable, but a proper assessment of the risks involved will have to be made.

  • There is a general topic here on costs, which I would like to ask you about, Lord Chancellor, which really touches upon Mr Jay's point about moving the boot from one foot onto the other and then back again. It may be better to do in the context of the general regulatory framework at the conclusion, rather than to do it piecemeal.

  • Mr Clarke, the next topic is reporting restrictions, paragraph 10 of your statement. I think the general point here, aside from the merits of the individual policies -- and we can include broadcasting in courts under that rubric -- is whether media pressure or influence has borne on the policy decision or whether the policy decision has happened to be coincident with a particular view within the media. Can you assist us with that?

  • I think you would have to move to particular, to give a precise answer. This is obviously an area in which the media has a perfectly legitimate interest, so if anybody starts proposing that activities are closed and withdrawn from scrutiny, I would expect the media to react and to resist that, but that's no different from any other lobby. The manufacturers of Cornish pasties are in exactly the same position as the owners of newspapers; they will react.

    If you're suggesting withdrawing -- as you probably know if you read this morning's newspaper, if you had the time, I'm involved in just such an exchange at the moment about how far you retreat from otherwise what is a highly desirable principle of open justice in a particular case about intelligence evidence affecting national security. It doesn't surprise me that the media are on the whole extremely cautious, shall we say, about that being accepted, indeed I'd be rather shocked if they weren't.

    So most of three these things are subject to quite a lot of lobbying from media interests. Politicians are conscious of that lobbying. I don't think it's an area in which you can really be very critical of the media for having a legitimate interest in it.

  • No, I'm sure that's right, but the issue is whether the lobbying might have caused you to take a position other than that which you would have been minded to take?

  • Some of these issues but not the ones I -- sort of mention here, that I recall. There certainly are cases in a slightly wider area where policy decisions are taken primarily because people -- the politicians and ministers responsible are fearful of the media reaction. Most of those are not things that directly concern the media, it's just fear of the media reporting, fear of the media reaction that causes people to sometimes be overinfluenced by media campaigning.

    But the ones cited in paragraph 10 are not areas where I can recall the media being excessively influential.

    We've had an ongoing discussion about family courts and whether they should be opened up to reporting, which has gone a certain way, and I think most people now accept that's fine, but only in terms of anonymised reports, and we've paused slightly to review it. There remains a general feeling that family courts can't be opened up in the normal way, where you can name all the witnesses, identify the children, this kind of thing, although there's a section of the media that I'm sure wants to open up the family courts so they can get stories about the children of celebrities, but they're never going to get that. The public pressure, the policy-making is going to be very, very cautious.

    But to give the public a little more understanding of what kind of things are being heard and what kind of things are being decided in the family court is very cautiously being undertaken and I'm sure the media will continue to press us to review it and perhaps take it further eventually.

  • The areas in which the weight of opinion is expressed through the press may have an influence on government policy. I'll come to those at the appropriate stage in your evidence where you actually address those areas.

  • I move on to the functions --

  • Sorry, but I draw a distinction between where the media have an influence on media-based policy -- we're perhaps going to go on to defamation. If you're in the media industry, the law of defamation is something in which you have a very, very considerable legitimate interest. That's going to affect the way you do your job. So that kind of lobbying I regard as legitimate lobbying by a group that has direct interest and perhaps slightly better knowledge than most people.

    What you're talking about, the broad issue is the influence of the press on big political issues and what the editors and proprietors of the press are mainly interested in is exerting influence on big non-media type political issues, where they can certainly drive a weak government like a flock of sheep before them sometimes in some areas.

  • Isn't there a link between those two areas? I'm just dealing with it as a reasonably high level of generality inasmuch as the media voice may be said to be disproportionately loud in both areas, even in areas where, on your analysis, they have a legitimate lobbying concern because of the very nature of their business and the amplification that they're able to provide to that voice through the organs they print.

  • It sometimes seems that way to me, but your question kind of begs the question: disproportionately, you say? The history of politics is a love-hate relationship between journalists and politicians, and that's how it should be. Politicians constantly need to try and persuade the public, including persuading journalists that it helps them. The journalists are there to challenge and to question and to bring down to earth the politicians. So there's always been that tension.

    In recent years it's got noisier and noisier, more and more professionalised on both sides, so modern politics is mass media dominated. And then you get the area where policymaking is almost overwhelmingly influenced by PR people on each side trying to decide what the government can do that either avoids the retribution of the press or wins the favour of the press, and that has been a growing thing in my lifetime and it's -- the power of the press is now far greater than the power of Parliament.

    When I entered Parliament, the power of Parliament was far greater than that of the press.

  • You say that it's far noisier and more professional. How about more personal?

  • Yes, totally. My memory of politics -- I don't go back quite to the Ice Age -- goes back to when I was a very active student politician and I knew, only as a respectful student inviting them to meetings, Harold Macmillan and most of his ministers, and I became a Parliamentary candidate when the political leader of my party was Harold Macmillan.

    Everybody in politics, even a minor Parliamentary candidate, knew that the then Prime Minister's wife had been having a torrid affair with a backbencher for at least the previous 30 years. Not a word of this ever appeared in public print. Everybody in the press lobby knew it, everybody in politics knew it. It's been written up, if you're interested, in "The History of Modern England", it appears in all the books now, only posthumously when they'd died, but the convention of the time was that not a word of this sort of thing could possibly be produced in a newspaper, however popular or broad street, and it remained known to the political bubble but carried to the grave by all the participants.

    Nowadays, I don't know how long the Prime Minister would stay in office once the first journalist produced the story, but it wouldn't be more than two or three days, I would guess, before he would be removed. Indeed, even on the limited knowledge I had as a student at the time, about a third of the then Cabinet probably would have been removed for one reason or another.

  • I don't want to go into too much detail about this.

  • But those personalities were not regarded as a legitimate thing for the public -- not necessary for the public to know, they weren't regarded as the business of newspapers and broadcasters to comment upon, and I will leave you to draw the contrast with the present day, which is quite extreme. We're now in the celebrity culture. The celebrity culture has as one of its branches the government and the politics of the country.

  • I think probably people would accept that the extreme to which you have just referred is one end of the pendulum. The question is whether the present position of the pendulum has gone too far and made it therefore much more difficult, perhaps, to attract capable, able people into politics or whatever.

  • Yes, I think a lot of people are driven away from politics by the fact they don't want to accept the level of exposure. I suspect that's true of professional sport, quite a lot of showbusiness. The same thing applies there.

    But it's all a matter of judgment. What is too much? I'm a child of the 60s, almost. I'm not -- the age of deference, I think I'm glad to say, is very much behind us. I think a certain amount of irreverence and a certain amount of exposure is all right so long as it's combined with tolerance and good judgment.

    All I can say is that I think politics now is a mass media dominated activity. So is government. I'm not sure we've totally learned how to handle that. I don't think you can reverse it. I think that's the way we're going to go. But we do have to address exactly how you keep going a proper system of decision-making and the good governance of the country against these sorts of extraordinary pressures, which are quite different to those, say, up to 20, 25 years ago.

  • I understand, but therefore the important words in your last answer were: tolerance and good judgment.

  • Surely. Yes, I believe in those in all things, obviously it's a platitude to say so, but yes. The trouble with all these things is they are matters of personal judgment where somehow as a society we have to take a collective view.

    I mean the big issue in this age is what is the public interest? What is the need to know? What is there no right to conceal? How much confidentiality is required for decision-making? What becomes mere secrecy? When does the individual private life of an individual become a matter of public concern? Each and every case in the end requires, I don't know, a collective judgment, really, as to where you draw lines.

    But some lines should be drawn and at times we've got very near to no lines being drawn at all, I think.

  • And that's the issue. Ultimately, the first person to draw the line will be presumably the editor of a newspaper. Is he going to print this or is he not?

  • And they still do, I think, but some editors draw different lines from others.

  • And then the question arises -- and we're getting a long way ahead of ourselves, but again just to foreshadow, one of the questions is whether there should be anybody else who is prepared, whether you call it a regulator or an ombudsman or a judge, or whatever, on behalf of society to draw that line in a slightly different place.

  • That is the key question. I think the answer is obviously yes. I think we decided yes quite a long time ago, when the Press Complaints Commission was first drawn up, and that hasn't worked, and that is -- I look forward to your recommendations because that's one of the key things we're looking at here.

    Also, the other question: does the law have a role in this, apart from just the regulator? Where's the legal line? At what point does an attack on reputation, at what point does an invasion of privacy actually justify legal intervention?

    Now, I think you're charged with both those enormous questions.

  • And whatever you come up with will be wildly controversial, but my answer to the question is: yes, we do need a regulator. Yes, there must be a legal line somewhere. And again I'm back into platitudes again. It has to respect the undoubted need to have a free press on the one hand, and the undoubted need not to allow people's lives to be destroyed through malice on the other. We obviously have to address both all over again.

  • Yes. The reason that we will come back to discuss it again is as I said to a number of people, I'm in charge of making recommendations in this area, but I'm very conscious that, as a lawyer, I've spent my life looking backwards to decide what has happened rather than looking forwards as to what we should do in the future, therefore any input, even though ultimately you will be part of the decision-making body that decides how far whatever I say might be taken, any input that you will be able to provide, which we'll come on to, will be very welcome.

  • Sure. I think, unlike the judgments you give, which close a matter, having to make recommendations will undoubtedly not lead to universal acceptance.

    One thing I could give you but it would take me far outside here is what the reactions of each side of the argument will be to whatever you decide. The conclusions will be criticised from one side and from the other wherever you put the line, but you have the advantage of being in a position to put the line forward with some authority and people will have a job moving it once you've laid it down.

  • Lord Chancellor, that whatever I suggest will be criticised is a feature of life of which I've been aware since I was asked by the Lord Chief Justice to undertake this responsibility.

  • An extraordinary number of members of the legal profession and the business world don't seem to be aware of that until it hits them, but I'm sure in your case, Lord Justice Leveson, you are.

  • May I move off that high ground, Mr Clarke, to the Information Commissioner's office, which is paragraph 19 of your statement. You deal with this quite succinctly. Under European law it is autonomous of government, but government funds it. That's in a nutshell the position.

  • Yes, my department does pay in rations, but we also are the responsible department for policy in this area and for the Commissioner's office.

  • In terms of resourcing, how is a judgment made as to the appropriate level of funding in a given year in view of the size of the ICO and the panoply of functions which it needs to discharge?

  • It's one of several features of the ICO which we're having to address at the moment because the underlying funding structure will need to be readdressed and it will need to be readdressed certainly in the light of whatever comes out of the current European proposals for the law in this area, but of course funding in the end is decided by the department on the basis of a negotiated assessment of the necessary budget. But we pay in rations, there's no policy position behind the funding of it.

  • You pick up on recent changes in European law in paragraphs 51 and following of your statement, our page 01132, on the internal numbering page 19. You explain in paragraph 53 that:

    "The European Commissioner published proposals earlier this year on data protection which will involve consideration of the Information Commissioner's powers and functions. Notably, the EU proposals do not require Member States to implement a notification system and this is a key mechanism by which the Information Commissioner's data protection work is currently funded."

    Could you explain that for us, please?

  • Well, all the people who hold data pay a fee to the office, and the European proposals may change that. The whole thing is slightly up in the air at the moment because we're having a post legislative scrutiny carried out, it was as a review, which is now looking at how the Act has been enforced since 2005.

    We're having this -- it's quite early stages of this discussion inside the Council of Ministers of the European Union about data protection law across the union. We've had a data protection law for quite a long time across the Union but it's by everybody's agreement out of date now and needs to be brought up to date, and the current draft, for the reason explained in that paragraph, doesn't contemplate the way in which we're mainly at the moment financing the Commissioner's office, but that doesn't mean we'll cease to finance it, it just means the whole thing is slightly, as said, up in the air at the moment.

    Obviously at the moment, if the money raised in that way can't meet the workload, we raise the level of the payments, but it may be we'll have to go to a different method of financing. It's far too early to foresee the outcome of what will be quite a complicated negotiation on new European data protection arrangements. We don't even know for sure yet whether it will be a regulation with a general European pattern or, as we would probably prefer, a directive within which each member state will respond as it best wishes.

  • Is the current position, so we correctly understand it, in relation to the data protection as opposed to the FOI function of the ICO office, that the data protection part is completely funded by the fee paid by the data controllers?

  • Surely. I think that's right.

  • So if the position were that the ICO's role in any new regulatory framework for the press were to be expanded or enhanced, pursuant possibly to any recommendations this Inquiry would make, it's self-evident that additional funding streams would have to be made available by you. Is that right?

  • If that were to happen, yes. If that were to happen, you could be expanding the remit quite significantly, and as it's at the moment set up, I don't think the ICO could take that on, myself. Couldn't take it on full stop, but certainly the financial problems would have to be addressed. They wouldn't be enormous in the great order of things in public expenditure, but yes.

  • Aside from the fact that currently there's not sufficient money available with £20 million, are there any structural or other aspects of the ICO's office which would suggest to you that any expanded role for them would be inappropriate or impracticable?

  • Well, I prefer to think that the workload it's carrying at the moment, which is a kind of slightly complaints based service which it is doing, is satisfying. But it doesn't have great scope at the moment to go further, but could, I suppose, if you financed it.

    The other thing is, as I think the Commissioner has taken you through in his evidence, the legislative powers he has at the moment greatly confine his ability to take on very much responsibility towards the press. The legislation is torturously drafted to try to minimise the prospect of his taking any very great role vis-a-vis the press.

  • There's a big debate, if I can put it as neutrally as that, as to the reach of section 32 of the Data Protection Act and really the strength of the press exemption. I don't think it's necessary to say more about that.

  • I was not involved in the drafting, the legislating. I took no parts in the debates at the time. It does look to me as though it was torturously drafted to make sure the press would not be excessively troubled by the creation of the new office.

  • One of the issues I suppose we're going to have to think about is whether they ought to be a bit more troubled.

  • Well, if not by the Information Commissioner, by whom, yes. But I don't know. I really am an observer reading the evidence that's been given to this Inquiry and otherwise just a general member of the public, because I wasn't about at the time. But they produced startling reports about things which I think is out of a sense of exasperation, because they couldn't actually do anything about them, but then nobody else did anything about them. That does seem to me the problem, but it's entirely for you to judge, not me, whether the Information Commissioners involved adequately explained what their problems were in not being able to do more about it themselves, and I do think whoever drafted the legislation was instructed to put in just about every possible constraint once you started getting anywhere near giving him much control over the activities of the press.

  • Although the criminal offence under Section 55 is not subject to the Section 32 exemption, and the matters you've been referring generally to may have arisen for other reasons, Mr Clarke, but on the topic of Section 55, it's not your current intention to activate either Section 77 or 78 of the Criminal Justice and Immigration Act of 2008 --

  • Well, now I'm in the happy position of waiting for Lord Justice Leveson's comments, if he's going to make any on it.

    That did come to me. Came to me quite early on. Everybody seemed quite in a hurry to get to me about Section 55 and they questioned as to whether I should accede to the request to introduce custodial penalties, prison sentences, for Section 55, which was linked in everybody's mind with the enhanced public interest defence which had been offered to the press. A few years before it seemed to me they'd been given as a trade off, one against the other, and then never implemented.

    So it fell to me, and I certainly wasn't going to be rushed into it, but it wasn't just that. It was quite early on. I was not minded to create any more imprisonable offences because I was rather alarmed about the size of the prison population and we had gone through several years when new prison sentences and criminal offences had been created as a fairly brisk rate, so I was resistant to that.

    I was not attracted by the enhanced public interest defence, I'm not very keen on public interest defences at all, and I think there is a public interest defence in the sense that you don't get prosecuted if the CPS decide there isn't a public interest in prosecuting you. So I left it all alone because then I found there was a triennial review of the arrangements altogether. There was this European negotiation coming under way and hence you're reading I'm sure in my formal statement in a letter, I can't remember to whom, that the government had no present intention of addressing these issues.

    The Leveson Inquiry gets set up and my present position is I shall wait to see what the Leveson Inquiry says on the subject.

  • The issue, so that it's quite clear in relation to the possibility of a custodial sentence, is not, I think, from the perspective of the Information Commissioner that he wants to lock journalists up --

  • No, it's a deterrent, yes.

  • It's rather that at the moment, with the only penalty being financial and the obligation on all courts to have regard to the means of the offender, the result is that the potential penalties available to court, applying general sentencing principles, might be thought to be derisory and well worth the risk. That's the point.

  • I understand that is the argument. Of course, there are constraints on the size of fines that can be imposed, which actually for quite different reasons we're about to lift, so a lot of the present restrictions on fines to be imposed are being lifted.

  • I don't think the constraints have been by reference to the maximum. It's by reference to --

  • The means of the defendant.

  • -- the means of the defendant.

  • The means of the defendant always has to be taken account of in financial penalties and that is obviously a constraint in what they can do, but for some of these firms of private investigators and some of these media organisations that wouldn't be too great a constraint, I think. I think the Information Commissioner is really complaining that these cases are not being taken seriously enough when they appear before the courts, but in response to that it could be said that hardly any really serious case has ever been taken to the court in the first place.

  • So they do tend to have what appear to be fairly trivial breaches presented to them at magistrate's benches and the like.

  • I'm not so sure that people would say that Motorman and the prosecutions arising out of that were not terribly serious but I understand the point and judges pass sentences that they think are appropriate and that could easily come back to me in a different guise.

  • There weren't many prosecutions following Motorman.

  • That was the startling thing, but I don't think you can put that down to the Information Commissioner. The Motorman reports were pretty startling, and rather going back to what I said before, what is known in the bubble and what's known outside, I think every knew that private and confidential information was fairly readily available in the outside world as long as you were prepared to pay for it, and the Commissioner produced these two reports and not much was done about it, but it goes beyond, I think, just the penalties and the powers of the Information Commissioner.

  • You say not much was done about it. What other reasons do you think exist for why not much was done about it?

  • Well, it's no good mentioning my pet theories because I don't know for sure, but what this Inquiry is looking into, how far was it a desire, for one reason or another, not to upset the people who were happily indulging in all this? I won't go further.

    It's not totally new, all this. When I was first appointed Chancellor of the Exchequer, I had to move my bank account because my bank complained to me that journalists were trying to bribe the staff of the village branch where I had my bank account. It would have been regarded as perfectly customary in those days, I think particularly as the Chancellor of the Exchequer who had been appointed had views which weren't shared by some the editors of the more vigorous newspapers. So that and various other things happened.

    And in business everybody was perfectly well aware that if you wanted to engage in these sort of practices, it was terrible easy to get details of the private information of your competitors or rivals, and journalists joined in the same thing.

    The scale of it appears to become startling. Motorman sort of made people aware this had now grown to a very profitable and large industry, and even following through the newspapers the evidence given to this Inquiry, the scale has certainly shocked me, when I would have thought I was fairly worldly wise on the subject in previous years, but I had no idea it was going on on this monumental scale.

    Going back to the question of fines, some of the people responsible have made very considerable amounts of money and could certainly pay a very considerable fine.

  • Thank you. May I move forward now in your statement, we're off the ICO's office to more general matters. Section 3 of your statement I think we've covered. You deal there with the role of your press office, which we understand.

    In paragraph 24, page 01122, page 9 on the internal numbering, you explain that you engage in various ways with the media where they have an interest or are affected by the department's policies. Do you ever brief the media in advance as to likely direction of policy?

  • Yes. There are all kinds of -- as a politician, you increasingly develop strong links with quite a lot of the media. You have to. And anyway, you work together, so you're bound to. And as a pretty obscure backbencher, you soon get to know members of the lobby in the House of Commons.

    Now dealing with general politics, things where they have a particular interest like defamation, I think you should engage with them like any other legitimate interest that wants to give you its views.

    But in general politics, yes, most of the time the reason you're doing about other things is to try to persuade, try to argue a point, try to explain what you're doing, and everybody knows in the lobby that there is a difference between on-the-record and off-the-record conversations, and I wouldn't deny off-the-record conversations sometimes involve giving a much stronger steer about where you think you're likely to go than you would on the record.

    And the last 15 years, since the whole PR got more professionalised after 1997, it's become positively part of the system that once the government has decided what it's going to do, it starts pre-briefing it all out. To my slightly old fogey horror, this happens to budgets, let alone other pieces of legislation, and that has steadily grown over the years.

    Now, I am a 20th century politician as much as a 21st century politician so I haven't quite got into all that, but certainly occasionally giving an off-the-record briefing to somebody who you hope will be supportive, or you're trying to persuade him or her to stop being critical, give them some advance preparation of what you're proposing to do, that has always gone on in politics, and always will. Except on the question of the budget. When I was chancellor, we had an absolutely rigid rule about budget secrecy. We would have had criminal police investigations if it ever got breached. Of course, all the leaks in the budget are of great financial value to someone who knows what he's doing in the City.

  • Yes. You were asked to -- this is question 5 now, Mr Clarke, paragraph 32 -- to consider the manner in which you have engaged with media interests in relation to a number of policy matters. I think we can take these reasonably economically because we've already touched on them.

    The draft defamation bill -- page 13 or 01126 -- you inform us that there was an informal consultation with media representatives in the summer of 2010, then there were informal discussions with other parties, but the basic point you make, paragraph 37, that you had arrived at a fairly settled view on the matter before you returned to office in May 2010. So are you suggesting there that what you may have been told by media lobbyists in fact had no material impact on the result?

  • No, no, I'm not saying that. I arrived believing the case -- the new Parliament, whoever won office, actually, needed to have a defamation bill. That there was now enough doubt about the law. I mentioned in my evidence that this new problem had sprung up about scientific publications and various interest groups trying to stifle what they regarded as critical academic comment and so on. There was a lot of fuss about libel tourism, with people coming into this country to bring defamation actions about publications in foreign languages which were not widely available here, so that we're going to reform it on that.

    I then set out what I think most people still accept are the two things that have to be balanced to get legitimate freedom of speech on the one hand and protection of responsible journalism, but then also the protection of reputation, which can sometimes be of a destructive quality if a totally untrue defamatory step is taken.

    But then the actual detail, you know, the drafting of it and all the rest of it, involved consulting with a lot of people. The media had a very legitimate interest in all that, and so both I and my officials and everybody else involved the media in just the same way I would have expected to involve any other interest group outside if you were legislating an area which was a central feature of their way of making a living and their life.

  • Was the consultation sufficiently broad as to include those who might represent potential claimants?

  • Yes, it was. I mean, particularly -- I mean, there are lawyers who -- most defamation lawyers tend to specialise on one side or the other so obviously there are people who were normally plaintiffs' lawyers who could consult, just as defendants and actually there had already been an attempt to reform the law put forward in the private bill by Lord Lester, in which half these things had been canvassed already. Although we didn't follow Lord Lester's bill in all respects, Lord Lester's bill was a very good starting point, so when we started consulting all these interests, they mainly were referring to Lord Lester's first stab at modernising the law.

    So it was a perfectly ordinary consultation, and the media representations I got were not outside the kind of representations I'd have expected for any other interest group.

    But I mean nefarious things, like promising support, withholding support, personal support or attack, I have to say to be absolutely fair did not come into it. My discussions with people from media interests were perfectly normal discussions about what a defamation law should contain.

  • You say the lobbying was based solely on the extent of the argument really?

  • There weren't any ad hominem attacks on --

  • There were no ad hominem attacks because, you know, it was perfectly reasonable -- it came -- I'm tempting fate, we're about to introduce the bill. We came to almost -- you never get to a consensus in the conclusion, so I shall be commending the actual bill as a reasonably well accepted solution. I may find it all gets reopened again, as is the way of things, but no, it was a perfectly ordinary consultation.

  • It is also legislation, but the same pattern, I think, comes out of your evidence in relation to CFA reform, paragraph 39 and following, where it's lobbying of a similar nature, but again based on the merits of the case and not any extraneous considerations. Is that a fair summary?

  • That is a fair summary, yes.

  • We covered the attempts made or the consideration given to activate section 77 and/or 78 of the 2008 Act, that's paragraph 44, but can I ask you about the Bribery Act, which is paragraph 45, 01129 of your statement, Mr Clarke.

  • The desirability or otherwise of a general public interest defence within the statute itself, which of course we know doesn't exist. And the extent to which you were lobbied on that point by the Society of Editors, Mr Dacre and others. Could you help us with that, please?

  • Yes, there were discussions and I was lobbied on the basis it needed to have a public interest defence put into it. Of course this had become an Act of Parliament just before the General Election and so it was now an Act. I was being asked to name a date for implementing it to bring it into effect. So to put in a public interest defence at this stage would have involved having to find Parliamentary time for a bill to amend the Act of Parliament we had on the statute book, so that was a very good reason for not doing it, but I also said in answer I think to an earlier question I was not an enthusiast for public interest defences of this kind. I do think journalists are entitled to bribe in an extreme case if it's the only way in which they can get information about some major public scandal. If you have some outrage that's taking place at the public expense, then I do accept the argument of journalists that they don't all stay within the law when exploring those cases.

    I remember saying as much to the Society of Editors when I was at the meeting with them, but the protection to the journalist is -- I think this case today has illustrated it. A prosecutor will not prosecute -- and in the case of the Bribery Act, you need the DPP's consent or the head of the SFO's, I think, consent -- will not prosecute unless there's a public interest in prosecuting. For example, if, and I don't know, the Daily Telegraph used bribery to obtain evidence of MPs cheating on their Parliamentary expenses, I would be deeply shocked if anybody had prosecuted the journalist for using bribery.

  • Two points. First of all, I think we heard evidence from I think it was Mr Lewis to the effect that they did not, so --

  • Sure. I remember it was alleged at the time by some indignant members of Parliament, but I did not join them.

  • Secondly, in the light of both this answer and your last answer, you may be aware that earlier on in the Inquiry when the Director of Public Prosecutions first gave evidence, I invited him to give consideration to publishing a policy on public interest issues that he would take into account when journalism was affected, and he acceded to that suggestion and indeed has published a draft public interest test in relation to the media, on which he's consulting. Do I gather from what you're saying that that approach accords with your view?

  • I didn't know we'd reached that stage, and with respect, yes, I think that is in my opinion precisely the right road to go down. I think it worked very well in the case of mercy killings recently, and I think -- perhaps a rather wide analogy, but it's a similar sort of point, that if the prosecutor is going to have a policy when he prosecutes, it should be publicly available, the principles being applied, and I think here it is correct that a prosecutor should apply a public interest test before prosecuting, and if that is being formulated and put into writing, I look forward to seeing what the outcome is.

    That is better than having different phrasings of public interest tests in different bits of legislation on different things, and particularly as nobody finds it very easy to agree as to what the public interest is I would protect the journalist who disclosed criminal wrongdoing by Members of Parliament, but I'm not quite sure I feel the public interest is so strong if it's the sex life of a footballer that is being obtained by some illegal means, and I wish every joy to whoever is drafting the public interest consideration to get the line right in that case as well.

  • I think, Lord Chancellor, you'll find there is in fact a consultation paper out in existence at the moment on this very issue. It's probably residing in some red box somewhere.

  • It probably is. I must obviously catch up on that.

  • Mr Clarke, you referred to a meeting with the Society of Editors. We have evidence of that meeting in the bundle here. Look under tab 4 --

  • It was a pretty public meeting. So when you say you have evidence, I don't think it was necessary to wire trap it or anything.

  • No, no, I'm not suggesting -- we can see the nature of the evidence in a few seconds. Under tab 4, there's an exhibit which contains a list of all your meetings, calls and correspondence with media proprietors, et cetera. On the first page of that, 01056, you see the way this schedule operates. On 24 June 2010, you were in power now for five or six weeks, you were invited to a meeting by the Society of Editors and there is an email record of it. That record is at 01066 in this bundle.

  • It is, under the same tab. It look as if it's --

  • It's the minutes of the meeting?

  • Yes, prepared within your office; is that right?

  • For the interests of transparency, we can see how your office conducts itself in this sort of situation and the nature of the record. On 01066, it says this:

    "At the outset, SoS was clear that he could offer views but was not making any commitments. SoE made a pointed comment upfront about promises made to them and not kept by HMG."

    That may or may not relate to the current administration, but possibly not.

  • I don't think in six weeks it can possibly have done so.

  • But I'm sure it can apply to any administration at some time. I try to avoid it myself.

  • Under the Bribery Act on the next page, it's clear that you didn't give any commitments. They were asking you to consider the introduction of a general public interest defence. You accepted in the third line that:

    "... in general it was better to have a public interest enshrined in legislation -- he was not aware of proposals for that at the time of the Bill passing through Parliament, and noted that he had been very supportive of it getting through, overdue as it was. He said, in general, that he needed to get fully up to speed with the Act, as Mr Djanogly had handled it in opposition, and he was happy to look at the idea of a public interest defence but it would have to be a proper test, and not one drawn widely to protect greased fishing expeditions."

    So you were making your position without committing yourself reasonably clear?

  • Of course. The post I now have in government was not one I expected to hold when I was in opposition, it isn't the one I was shadowing. Six weeks into a new job, I have long ago learnt it was best to be exceedingly cautious, hence I always listened to what they said in getting myself up to speed on the Bribery Act, as you say.

  • You had a general sense though of the public interest with a reference to the protection or the non-protection of "greased fishing expeditions". It sounds as though that might be your turn of phrase.

  • Yes, there was a plain public interest in exposing a corrupt public contract, or private one, probably. I'm not so sure there's so much public interest in the sex life of some soap opera celebrity.

  • In terms generally of your interactions with media proprietors, editors, et cetera, you tend to see people -- you do see people across the board. There are quite a few meetings with the Daily Mail and Mr Dacre. Is that a fair picture?

  • Yes. I get on pretty well with Mr Dacre. I don't see him that often. The reason I saw -- but we don't agree on a very great deal, but we have quite a good mutual respect, I think. But on this occasion I was meeting him frequently because of course the previous government, again with a certain lack of subtlety, I think, had invited him to chair a committee to consider the future of the 30-year rule for the disclosure of documents, and he was the chairman and I was discussing our reaction to that with him, and so that gave rise to rather more meetings with Paul Dacre than otherwise might, although I have over the years had a few meetings with Paul Dacre, but that's -- I think you'll find the particular subject that kept coming up was that, because obviously I was discussing it with him because he was the author of the advice to the government, which we were considering, and actually it was very valuable advice on the 30-year rule and on the retention of documents and disclosure of documents, where, not surprisingly, he was in favour of easing the rule and going to more openness. We didn't accept every recommendation, but reached a reasonable change in the arrangements with which I think he was broadly content.

  • The general pattern which emerges of you seeing everybody across the newspaper spectrum, does that arise as a matter of policy on your part, is it accidental?

  • I've been doing that the best part of 40 years, really. It's all the way from having a drink with somebody in the House of Commons, which we don't have time to do any more so they don't appear in the register, to going out to lunch with a journalist who invites me. There are some journalists I won't go and have lunch with, but some I will. It's part of political discussion and political persuasion or attempted persuasion in the life of Parliament and the life of politics.

    I don't think any of those concerned, apart from things like the effects on the media of no win no fee costs, I didn't have discussions about media matters or matters which touched on the business.

    Apart from that I had a couple of dinners with Mr Lebedev, who I hadn't previously known, who now runs the Independent. I got on very well with him. But although we talked about politics generally, I think one reason he invited me is because I used to be a director of the newspapers for which he -- which he know owns, so I think he was quite interested in talking to me about those newspapers and about the business model for newspapers and so on. So I seem to recall we on both occasions talked about that quite a lot, as well as a bit of general politics, but that's why I met Lebedev, because I think he just was rather interested to discover that I'd previously been the director of the newspapers he now owned.

  • Thank you. There are no other points on that particular exhibit. May I move on to question 6, which is page 01131, on the internal numbering page 18. You were asked about whether there was a risk that the measure introduced into Parliament to effect government policy on press regulation would in itself provide an unwarranted opportunity to Parliamentarians to restrict the freedom of the press contrary to the public interest. There was a particular reason for asking that question. There was a piece of evidence we received which indicated that there was such a risk, but you have stated that you don't think there is?

  • No, the idea that the media might be hurt by introducing it because certain Members of Parliament would swoop in to take further revenge on the media -- there are some who might try to do that. I think they're greatly outnumbered by the number of Members of Parliament who would be terrified of annoying the newspapers. If the two sides fell to lobbying against each other, I would expect the newspapers to win when it came to lobbying the modern Parliament.

    With any luck, there's quite a broad body of Members of Parliament who believe extremely strongly in the freedom of the press and also believe extremely strongly in sensible regulation, so I think it stands quite good chance of being seriously considered.

    You're looking surprised by that.

  • No, actually, not surprised at all. Rather more optimistic about that answer than I might have been had I only relied on some of the other things that I've heard.

  • The point you make in paragraph 50 we're going to pick up later, when you bring in the Society of Editors speech in November 2011. It's perhaps a freestanding point which locks in with the future.

    Question 8 now, page 01134.

  • Paragraph 56, page 21.

  • Where you deal with your own interactions. You covered this already to some extent. But can I ask you to deal with the matter again at a level of some generality? Do you feel that the relationship between politicians and individual journalists can fairly be characterised as transactional, as one witness has told us?

  • I'm not quite sure what he means by transactional. Each one needs the other, and it's a kind of love/hate relationship, really, although actually perfectly good friendships can spring up between some politicians, some journalists over the years. It's inevitable if you work with people, even on this basis, after a bit there are some for whom you require high regard, high respect, and so on.

    It's always a mistake, as I think I've said somewhere in here, to think that thereby you will in the end curry favour. One always hopes that the people you get on well with are good journalists, and a good journalist will not let you off lightly if in his opinion you've made a mistake or he disagrees with you, so the idea of just currying favour with the press is something which many politicians do, which is a bit of a waste of time, in my opinion, from their point of view.

    But otherwise, the journalist needs the contacts, particularly a political Parliamentary journalist needs the contacts with the politician at least as much as the politician needs the contacts with the journalist, but that's the ordinary timeless relationship that's bound to take place in a democracy between the politicians and two professions. They're bound to work together.

    What sprang up alongside it is a highly professional PR operation for those leading the political parties and the political machines, highly professional political operations on behalf of the proprietors of the great newspapers, and the engagement between them is certainly transactional and I'm slightly describing the more cosy world of Westminster and Whitehall, where journalists and politicians still interact with each other.

  • I'm looking at this at a micro level, not a macro level.

  • We'll come to the macro level. I've been asked to suggest this to you, that by giving a journalist a story ahead of their competitors, as I'm sure sometimes happens, the politician is able to dictate or better dictate how that story may be used. Is that a better hypothesis?

  • I don't do it myself, but it is done. I have to admit, I think, it's plainly true, it would be naive to deny it, and the political parties' governments have in recent years increasingly given advance notice to particular journalists of cases -- this all started after 1997 when I think Labour came in and thought we'd all been terrible amateurs and introduced people with these sort of skills, and they gave stories to journalists who they thought would be sympathetic and they gave them more stories if they were indeed sympathetic when they wrote up the story. If the story trailed was not written up properly, no more stories were given, and somebody else would receive trail of the next story. And that entered into British politics and introduced what had been a standard American technique for some time, and it's not gone away.

  • Is there anything you want to say about it?

  • You may gather I'm not overenthused about it.

  • I know of at least one journalist who was just barred from the Treasury and told she would not be let in again because of the stories she'd written.

    I think it's slightly eased. It was the early enthusiastic days of New Labour when control freakery was being introduced into Westminster and Whitehall on quite a scale.

  • We've heard some evidence on the topic. I think Mr Campbell gave evidence to the effect that they carried into office some relationships with journalists that were certainly appropriate while in opposition, and they would have done better to leave them at the front door of Number 10 Downing Street. I think that's how he put it. And he was recognising that they got that wrong.

  • Well, I regard that as a considerable mitigation from Mr Campbell, who was one of the people who came in in 1997. I've always got so perfectly well with Mr Campbell in the way it's easy to get on with one's political opponents, but yes. I'm very relieved to hear he said that.

  • I have got that right, haven't I?

  • The question then arises whether that's not carried on and continued, and led to a real interest in the political parties obtaining access to a Director of Communications with tabloid journalistic experience.

  • Well, the Major government was one which all the press officers and the press consider were civil servants, which I think was a perfectly satisfactory situation. We had some very good press officers. You had some very weak ones but that was just a question of appointing a civil servant who did have the kind of qualities that could adjust to being a press officer. And I never questioned that.

    In my last office at the Treasury, it seemed to be obvious you had to have a Treasury official as press officer because one of the main duties was actually being able to engage with financial journalists, which involved some understanding of the complexities of economic policy and tax law.

    I remember being told that the incomers decided this was all naive and amateur-ish and a whole lot of political appointments swept in and Alastair Campbell was a tabloid editor and it was thought appropriate to make him the Director of Communications. Well, that was a -- I don't want to exaggerate the suddenness of the change of culture, but it was a pretty marked change of culture, and it -- all kinds of things went on and they've not gone away. It is now thought necessary to have similar people about. And it does affect the way in which governments interact with these services.

    Also, it's led -- I always thought 21st century governments have been totally obsessed with newspapers and totally exaggerated the importance of this daily 24 hour a day sort of interaction with what the newspapers are saying and writing about the government. I mean you don't go to the other extreme, you don't ignore newspapers, they have quite a major effect. They don't have the same effect as broadcasters have on public opinion, nor do the week by week incidents reported by newspapers have much effect on the voting practices of the public when it comes to the point. But, you know, certainly in the last 15, 20 years, there has been an obsession with newspapers which was not there before. Although there always was an interaction with newspapers, let me not be naive. A relationship with newspapers was always there, but we didn't campaign 24 hours of the day, seven days a week anyway before that, and although previous governments certainly had their excitements with Lord Northcliffe, Lord Rothermere, Lord Beaverbrook and others over the years, so there's nothing totally new, but the present incestuous relationship between the two is quite peculiar and all based by both sides believing that the daily headlines really matter to an extraordinary extent, which I don't believe for one moment they do so far as real people in the real world outside Westminster and Whitehall are concerned.

  • The inference from what you've just said might be that there has been a cultural shift.

  • A marked cultural shift, yes.

  • And if that is right, and given that again I go back to my terms of reference, the relationship between the press and politicians is something that does fall within my remit, how would you address that?

  • Well, what falls in force with your remit is as it were the proprietors of it, isn't it? I mean, how far is undue influence being exercised for commercial, well, political, other reasons?

    The politics are quite difficult because in the end it is for the politicians to decide how far they're going to allow a particular powerful group to influence policy. If I'm sounding -- every democratically elected politician in every part of the world I've ever known easily falls to criticising the press, so if I sound as if I'm criticising the press, my criticisms are actually aimed equally at the ministers.

  • When taken to excess, this terror of the tabloids and this subservience to the media doesn't give any success to the politician who does it. You may win some temporary praise, but you make stupid decisions in government and they turn on you eventually when it starts to fall apart. You still come to the same ruin in the end unless you actually make a decent fist of the good governance of the country.

  • Just so that it's clear, the terms of reference are to inquire into the culture, practice and ethics of the press including contacts, the relationship between national newspapers and politicians and the conduct of each, and I'm required to make recommendations for the future conduct of relations between politicians and the press. So that's why I ask the question, what would you do about it?

  • Excellent. Well, in my opinion the power of the media has grown, is excessive, and ought to be diminished, although I think the remedy is as much in the hands of the politicians as others. On the other hand, I still want to have a free media, an aggressive media, an irreverent media, and one that continually questions the government's own estimate of itself, so you have to get the balance right between those two.

  • I agree with all that, but I repeat my question, and I think you're right that it is directed to politicians as much as to the press: how do you shift the culture so that the pendulum swings a bit more the other way? It may be that it's a question that's impossible of answer, it's just got to be accepted by political leaders generally.

  • I think politicians have to ask themselves how far they're able to adjust. I think -- ask themselves how far the culture of the last 15 years has been terribly successful for the elected politicians concerned, and get back to -- ask themselves what's the balance between good governance of the country and good communications via the media with the general public. I don't envy you putting any recommendations of any action that in practice is going to affect that.

    Politics usually ends in tears. I've seen -- most great men find in the end they skulk from office, rejected by the public that hailed them when they arrived. As Enoch Powell said, it always ends in tears. But actually the ones who have practised this extraordinary relationship with the media seem to come to be worst croppers than most.

    Tony Blair spent a very great deal of time doing this, he had a good long run, partly helped by his opponents, which is how Margaret lasted so long; and Gordon Brown, who was utterly obsessed with relationships with the media, had a spectacularly unsuccessful time, didn't do him any good at all. If I'd been in Gordon Brown's entourage, I'd have tried to stop him reading any newspapers and get back to the business of what they were going to do.

    My advice to some my colleagues of the past has been to stop reading them when I found colleagues were being upset by the newspapers, quite inordinately. I don't read them all myself, and I never understood why politicians do. Margaret Thatcher never read a newspaper from one week to the next.

  • Well, I think that's probably a convenient moment to take a few moments for the shorthand writer.

  • (A short break)

  • Mr Clarke, we were discussing the term "transactional" on the micro level. Can I raise this to the macro level, relations between politicians and media proprietors. Is the term "transactional" appropriate in that context or not?

  • A bit broad. I hope not is the answer I was going to give, but I immediately go on to say it depends what you mean by transactional. You have great masses of evidence before you of that, and it probably hasn't -- there's always been something of that there.

    For some peculiar reason, the politics of the last 15 years have been dominated by competition for the support of the Sun newspaper. Once we have the evidence out of this Inquiry, we shall know quite how people set about that and what they did to achieve that. I personally do not think the Sun as a newspaper has ever had any great significant effect on the outcome of any election in my lifetime, but obviously it was thought by some to be terribly important, and desperate lengths were gone to, to try to fight over its support.

    The Inquiry has much better witnesses to know what all went around that.

    I share the rather more jaundiced view which has been expressed by many people, including some journalists, that what Mr Murdoch and the Sun newspaper are very good at doing is changing sides when it's obvious that the horse they're riding is about to collapse, and that they anticipate when the change of power is coming. When it was perfectly obvious to a 5-year-old that the Major government couldn't survive the 1997 election, they transferred support to the Labour government. When it was obvious that Gordon Brown was completely and utterly unelectable against anybody, they transferred their support to us. Unfortunately, I don't actually blame the Sun for this, we didn't actually win the election despite that.

    So I remain much more laid-back about all of this. I cannot understand the excitement that appears to have been demonstrated over the years about the support of the Sun newspaper.

    I get on quite well with Gordon Brown, I'm not citing him, but I think Gordon more than anybody else was utterly obsessed about whether the Sun newspaper was going to endorse him. He was meant to be governing the country.

  • Whether there is an implied term of the support that a favour might be offered or rather government would keep off the obvious commercial interests of particularly powerful media organisations, do you have a view about that?

  • The answer is I don't know. I hope not. I don't know if you're exploring that.

  • Thank you. May I deal more generally now with the issue of the media on certain aspects of government policy, which are sort of outwith media policy, which you've already fully discussed. A recent piece, very recent, in the Independent, which we have here under tab 8, 23 May 2012, you're reporting as blaming the popular press for putting thousands of criminals in jail who need not be there. What's the evidential basis for that, Mr Clarke?

  • I think a lot of the criminal justice legislation of recent years has been a response to popular newspaper complaints. It's not wholly new, and the popular press have always tended to be -- made a great virtue of ever tougher policies on law and order, and I don't know a politician who isn't in favour of tough policies on law and order, but there has been a wave of ever more noisy campaigns, either following high profile criminal cases or whatever, demanding ever tougher sentences from an ever wider range of crimes, to which government and Parliament seems to me to have most readily conceded.

    Part of what I asked myself when I got back in charge of prisons again, after an interval of 20 years: why do we now have double the prison population? Why are all the sentences longer than they used to be when I was led to believe as a member of the public that crime had actually fallen in the intervening time? Some would say it's cause and effect, but it plainly is not because the longer sentences are for one type of crime and the fall in crime has been in other types of crime, mainly crime against property which sentences (inaudible) fall, but not much. The answer is really a series of tabloid newspaper campaigns responded to eagerly by government and Parliament and a series of criminal justice bills.

    Actually, it's quite a lot of my officials and people in the criminal justice system, not just me as a politician, that even the courts respond to this strident demand all the time for ever longer sentences, ever tougher penalties, and you can see the judiciary and the magistrates, if you like, responding to the criticism they would otherwise come under in individual cases if they don't keep imposing stiff penalties.

    Obviously as a politician I disapprove of that. I'm not sure it really does represent a genuine public feeling. There are some people who think you would somehow get rid of crime if you just made the prisons nastier and the sentences longer, but it's not the prevailing public view, and the newspaper campaigns are usually based on a very, very partial account of some very shocking high-profile case.

    When I have constituents lobbying me, I always say that you shouldn't wholly rely on the newspapers for a full account of every feature of this case, because it's been written with a view to shocking you with the apparent lightness of the sentence, and the facts as presented in the newspaper may somewhat overestimate the full gravity of the case if you'd had the chance of listening to hours of evidence in the court.

    I won't go back, I'm dilating on again, but I just think the clamour from particular newspapers for tougher and tougher Criminal Justice Acts has been responded to. I think prison requires tens of thousands of people in, there are serious criminals who should be punished severely and need to be put away to stop them committing more crimes, but I don't think you should add people who are really an extremely annoying nuisance and people who really you could get them to stop being criminals if you dealt with them in some other way. Because the prisons are so overcrowded and so difficult to do anything there, we are steadily toughening up an underclass of criminals who keep going round and round in the cycle, in and out, and I blame the newspapers for that.

    If the tone of the newspapers had been different for the last 15 years, we'd probably have 20,000 fewer prisoners in prison. I hasten to add that's not a scientific estimate, it's just a way of illustrating my opinion.

  • Implicit in that you reject the argument which has been advanced by some that the newspapers are simply a proxy for the aggregate of their readers' views? Is that correct?

  • Yes, I do. To be fair, if I was to have this discussion with a journalist, and I have had this discussion with journalists, with the editor of a tabloid or something, they pay a very great deal of attention to their readers' views and I think that most of them do believe that they represent them, but it's at a level of first reaction. It's not at a level of sensible discussion. That's the problem with all opinion polls. You can get a yes/no answer to things, but you don't get an answer on how strongly the person holds that opinion or whether they would hold the same opinion if for five minutes you explained the competing arguments.

    I therefore -- perhaps because of my own bias -- think some of the newspapers, not all of them, present a kind of frenzied version of what they believe to be the opinion of their readers. The moment you doubt it, they rush out and hold some slightly unscientific opinion poll saying, "95 per cent of the Bugle's readers agree with this" and all the rest of it. I personally don't believe it. You don't need them.

    Also, the proportion of the population that still reads newspapers is not very high. Far more people watch broadcasting than read the newspapers.

  • You wrote a piece as recently as yesterday, Mr Clarke, in the Daily Mail, change of policy in relation to what was described as secret justice. That's in national security cases.

  • Why, out of interest, did you publish your recantation or change your view in the Daily Mail?

  • Because the Daily Mail had been leading a campaign against my bill, rather to my surprise. When I announced the policy, it was no opposition worth talking about, but quite rapidly the civil liberties organisations, who I expected to be quite difficult to persuade, began to oppose, and still are, and then a few weeks ago the Daily Mail suddenly mounted their sort of tremendous attack on the policy. And as the Daily Mail readers have been given the benefit of the Daily Mail's campaign, I wished to put my response to it in the Daily Mail, so that the same readers could see where we now were.

  • You describe the Daily Mail as a newspaper known for its robust defence of civil liberties?

  • The first time -- I told you I get on quite well with Paul Dacre, although the two of us would fence to say the least on many political issues, so I'd given an interview about a week ago paying credit to the Daily Mail for highlighting the rather broad interpretation that can be put on things and getting me to go back and address some of this and narrow it, and they wrote an editorial ticking me off for trying to butter them up, which plainly was what I was trying to do and they were very alert to that, and they still had big reservations about the policy.

    So, I mean this is -- the Daily Mail does -- it gets very strong campaigns. I mean, I don't agree with the Daily Mail on very many issues, but it isn't as predictable as the other right wing popular press.

    The last time I found myself firmly and surprisingly in alliance with the Daily Mail on a major political issue was on the Iraq war. It may normally be regarded as a far right wing middle of the market newspaper -- not far right wing, but right wing middle of the way newspaper, but it was as opposed to the Iraq war as I was, and occasionally I found myself a bed fellow with the political writers of the Daily Mail, and they do have a slightly maverick and radical view on things sometimes, and they got very excited about secret courts and I still think they're wrong about -- well, I tried to persuade them, and they accepted it to an extent, that in the case of spies, national security, damaging evidence and so on, you cannot just have open justice. Tried to respond to their claims that the way we were setting about it was going to lead to the exclusion of the press and the public from all sorts of things which ministers found embarrassing. Well, I'm not in favour of that, so I've tried to respond to that and make it clear I'm not.

    Where we are now is very close to where I would have liked to have been when we started the whole consultation process, so the Mail and myself are getting closer.

  • So you weren't as it were succumbing to their campaign, you were merely accepting the force of the argument which they put forward, is that --

  • Well, I did respond to their campaign, yes. They are a formidable opponent when suddenly -- again, it was the unexpected -- although the sentence you read to me acknowledges it wasn't so unexpected when you thought about it. Did I expect to be attacked by the organised civil liberties groups with whom I actually tend to agree on nine out of ten subjects? Yes, I thought they'd be highly critical. Very difficult to sell to small "l" liberal opinion in the country and in the House of Lords, as I normally am part of that small "l" opinion, I set about trying to tackle them, and suddenly the Daily Mail is coming out with a blazing campaign on the same subject, and well, it's the political impact, really, it wasn't just because it's the Daily Mail. I don't usually read the Daily Mail, actually. But we're getting into trouble here. I am being fired at from another direction.

    I still think that they were attacking me by putting an interpretation on the original proposals which I can see could have been put upon them, although it was never the interpretation that I was proposing to put upon them myself. And as I'd responded to the Daily Mail's arguments as well as the arguments of other people, I put an op-ed in explaining where I now was, because -- and I genuinely think it was quite helpful of the Daily Mail, because it got me and my colleagues to concentrate our minds on exactly what we were going to make the case for and why we were proposing to retreat from the normal principle of open justice in this very limited number of cases.

  • The other article we've collected here is under tab 9, which is the speech you gave in November of last year when you were expressing some general views. This is the Society of Editors annual conference in Surrey.

  • You backed self-regulation. A totally free press is crucial to a freedom -- democratic society but on the other hand there should be a new regulator which must have some force, more convincing teeth, but you warned against paranoia and overreaction.

    Can we be clear, Mr Clarke, what do you mean by self-regulation, in particular whether you're ruling out of account by the use of that term some sort of statutory architecture?

  • Well, again I await the recommendation, actually, of this Inquiry. I'm deeply suspicious at the idea that the state or the government should as it were be in control of the regulatory system. On the other hand, if you just invite the press to create their own, you do have to ask, well, what happens if it turns out to start failing again?

    I think we're all agreed, I don't know, you've had many witnesses now, that whoever the regulator is must be totally independent of both government and press in their activities, that they should have some authority, and the ability to require the relevant media organisations to subject themselves to the authority, and that they should have the power to impose penalties so there is some practical effect. Financial penalties, I imagine, the most part. It's when they break the criminal law, it should go off to other courts and other jurisdictions to deal with that.

    If that needs statutory underpinning because you won't get everybody to produce something like that and join something like that, submit to something like that and comply with something like that, then you're going to need statutory underpinning, and --

  • -- I haven't tried to draft anything or even draw up a document which specifies exactly what this beast would look like that has all those attributes I have just described.

    The Press Complaints Commission I always thought was a joke, although I had some very good friends who were on it who tried to persuade me otherwise. Completely useless. And I think we need a very much stronger body.

  • The issue may be that there has to be some mechanism not merely to require people to join, because that's a separate question in itself.

  • But to allow the body that comes out of it to be able to enforce its borders, rather than have to commence civil proceedings for damages.

  • No, I can see that, and there will be (inaudibles) depending on what is -- and I do think it is orders as well. I've touched on the easy bit, like financial penalties. The difficult bit is retraction, apology, that kind of thing. Perfectly responsible journalists would agree with everything I've said so far. Take off if you say the body should have the power to stipulate the form of apology and retraction and where it is printed in the newspaper.

    I know people who would otherwise get very, very excited saying no one is going to start telling me what I put where in my newspaper and so on. I'm afraid it is necessary, because certainly in the past I know people who have had favourable adjudications at the PCC perhaps which have simply been ignored by newspapers. I also know people who an apology has been invited, have found the apology is tucked away in three or four little lines in some completely obscure and unreadable part of the newspaper.

    So the more you start setting out the specific powers, you are undoubtedly going to have people refusing to comply with its orders, probably, unless it has some statutory underpinning.

    But then you have to be careful what penalties you then impose for refusal to comply then. The last thing we want -- I do think 99 per cent of people in this country genuinely believe in a free press. The journalists are getting almost as sensitive as the politicians in believing nobody loves them any more. Nobody minds an irreverent, noisy and critical press.

    Once you start imposing severe penalties on someone who owns a newspaper for not doing what you want him to do, you have to be extremely careful, but otherwise the history I think shows that without teeth in the end you're wasting your time, and in my opinion we'll be completely wasting our time if some section of the printed media just refuse to join it and won't submit anyway.

  • Yes. The compulsion element creates other problems.

  • But as regards freedom of expression and a free press, I have to say at least twice a day that I am absolutely with you and with -- I'm not sure it's not higher than 99 per cent of the population.

  • The other issues which we'll talk about in relation to what such a body might be able to do or what additional powers it has I would like to raise with you because I want to come back to the business of privacy and defamation, but I'll take my time -- if that's convenient, let's do that now.

    The issue that I'd be interested for your view upon is this. If I go back to your comment about CFAs, which I understand, and you will know that at the end of last year a number of the witnesses came and expressed real concern that they'd only been able to obtain redress through the mechanism of CFAs.

  • And were very concerned about the proposal to adopt what Lord Justice Jackson has said, and it might be articulated in this way, that 20 years ago the power in relation to libel resided with the press. They were the wealthy ones, you couldn't get legal aid to sue for libel. It was a very expensive business, always had to be commenced in the High Court, with great risk as to cost. So therefore anybody without means simply couldn't do it.

  • And in that way, the number of actions could be minimised. CFAs put the boot on the other foot because now, if the lawyers assessed the case at a high enough prospect of success, they can get after the event insurance, they can mount the claim with prospects of recovery and then very, very high costs, and I well understand the argument, I don't need to be persuaded about that, which therefore led to the argument is a chilling effect on the press because now they were no longer in the powerful financial position that they had been in 20 years before, now the risk to them was of enormous cost at a time when their financial position was rather more parlous than it had been.

    So I understand the argument. Of course, the concern that's been expressed in the Inquiry is that by changing the rules of CFAs, you may have had the consequence of moving the boot back onto the other foot again.

  • And one of the concerns that I've been interested to raise with people is to suggest that a system might also have as a third arm, that is the first arm being a mediation arm, the second arm being an adjudicative arm, but the third -- in relation to standards, whether you call it an ombudsman or whatever you call either of those two, but the third, an adjudicative arm in relation to, if you like, small claim privacy libel type actions which could be conducted on an inquisitorial basis without cost, or very limited cost, and therefore be much more available for everybody.

    I'm concerned about proliferation of specialist tribunals. I can understand the risk of that. But if you have a view on that sort of idea, I'd be very grateful to receive it.

    The idea would be to discourage, except in very large scale cases, this High Court litigation, but to encourage everybody to be able to get a speedier, swifter solution using whether it's libel silks or retired judges who are used to the law in the area, to obtain swift and effective redress at little cost.

    Now, the effect of that might be that it would create a cost which might mean there would be somebody knocking at your door --

  • -- for public funding, because after all it would be creating a mechanism for the resolution of disputes, which is the responsibility of the state.

    But the idea and the value of it, because in that way it might encourage the press to feel actually this whole system is one that we can gain benefit from, is one that I would welcome your view on.

  • Well, if I may, Lord Leveson, I'll go away perhaps to consider it and submit something too, but I find your idea very attractive. Because when we went in for the Jackson reforms, of course in this area and several others people argued that I was barring access to justice for people of low means because no longer would lawyers take them on. I have tended to answer that by saying the main difference actually is your lawyer will not make as much money as he did before if you're successful, but I conceded I think earlier on that the lawyer will make a more careful assessment of risk. At the moment he expects to make a lot of money when he wins one case and that makes up for the couple he's prepared to take on and lose because in the long run he will have a very successful practice, and therefore you have to be -- the lawyers will have to be very much more careful about the risk they're incurring.

    Also, because we're going back to the old system whereby any success fee, if the plaintiff allows you to take a success fee, it will be taken out of the plaintiff's damages, everybody will start thinking a little more about what costs they're incurring.

    I don't know what the figures are in litigation, but certainly in the CFA cases against the National Health Service, lawyers and expert witnesses who appear for plaintiffs tend to be paid four or five times as much as lawyers and expert witnesses who appear for the defendant, who knows he's going to have to pay it.

    I still think you will have people of ordinary means having good cases brought under our modified CFA with less reward to those who act for them.

    Then people argue we should have qualified cost shifting, which in other areas, particularly personal injury claims, is what we propose, where you can't get legal aid and where you are taking on a big employer, big company, that in certain cases you can shift the cost burden so the plaintiff is at much less risk. I'm reluctant to do that in the case of defamation, although we'll have a look at it, because I think it would produce a flood of claims if you were not careful. People are very sensitive to things they don't like written about them in the newspapers and in the media, and once you start popularising the idea that anybody can go along and have a go in court without too much financial risk in circumstances where the CFA-based lawyer is no longer bringing his careful judgment to bear even, you might produce a great rash of defamation cases, and I'm not attracted by the idea of producing a litigious society in this particular area.

    Going back to the regulator, I think the idea that the regulator might answer all our prayers and be a regulator, a mediator of disputes proposing a remedy and, in certain cases, actually adjudicating and giving a modest award is quite attractive.

    In most of these cases I don't think finance should play a large part in it. I don't think great sums of damages are very often appropriate unless somebody can demonstrate they have indeed suffered a substantial financial loss in the course of their career and their business.

  • But it is the prominent apology. It's sometimes just the agreement that you're not going to do it again, which will be quite a valuable remedy if we could find some cheap and efficacious way of providing it.

    So far as public funding is concerned, I owe it to my Treasury colleagues to say that the government has no money, which it certainly doesn't, but it is an interesting proposition, as long as we don't produce thousands and thousands of trivial small complaints.

  • One of the reasons for suggesting an inquisitorial system, just as I've thought about it over the months, is so that somebody who really does understand the area will be able to see a claim form in a defence, in other words just the documents, and say this has legs or this doesn't have legs, so people will learn very, very quickly what is sustainable and what isn't, without it necessarily costing very much money to get to that position.

  • Yes. They get a small claims procedure. I think the media would rightly complain they'd have to employ quite a few people if there were lots of these coming in all the time, if there was a weekly intake of these which they were being asked to respond to, but in principle I find it attractive.

    My one worry is that some people are so sensitive to these things that you would produce, as I said a moment ago, thousands and thousands of people seeking a remedy. Politicians have to get used to all kind of bizarre things being said about them day by day if they're prepared to go to their newspaper cutting service and look for them, and I'm afraid it's necessary in a modern democracy for a politician to acquire a kind of pachyderm skin.

    Most of the population who are not used to it are not, so they react with ferocious grief, anger, to things which are just not expressed in a way which they would like. So I think the average local newspaper, let alone the nationals, could find themselves bombarded with complaints if you made the hurdle too low, too easy, and became a kind of routine office for complaints.

  • Well, I understand that, and obviously it has to be appropriately calibrated, but as I said to you earlier in your evidence and I've said to a number of people, as a lawyer I'm very used to looking backwards and reaching decisions. Planning for the future is something which doesn't come naturally within the expertise that I have previously demonstrated, if any, and therefore to have the advantage of observations to such extent as anybody feels it appropriate to provide them is valuable, if only so that they can be -- the very -- for example, the very concern you've mentioned can be fed into the balance, because ultimately it will all come back to the government to deal with, as you correctly identified before.

  • Yes. I will go away and consider it, if I may, and discuss it with my department as well, because I'm trying to think of analogies across, as it were, equivalent small claims processes. I can't think of any very exact ones we've set up anywhere else.

  • One that does exist is in relation to National House Builders.

  • They have a mechanism to resolve building disputes. I'm not saying the analogy is perfect, it isn't, and to some extent it may not matter because the entry qualification can be described, the -- on any showing the ingredients of libel still have to be established, and if the primary requirement is that people get an apology, then that's what the mediation service does in any event, or seeks to do.

  • So I hope the risk that you've identified wouldn't be there, but it's very important to mention that and indeed any other risk, and it all has to be read of course in the context first of all of ensuring that individual rights are protected, and secondly -- and I might put them the other way around -- that free speech is not imperilled.

  • And being imperilled involves not just the penalties, but actually -- it's a terrible current fashionable phrase is the chilling effect. The disincentive effect of facing up to constant complaints all the time so you become risk averse in what you write because frankly you cannot cope with the bombardment you're getting of people trying to go off and seek a remedy against you, if one is so readily available.

  • Yes, that might also work in another way as well. It might mean that what is put in the newspaper is thought about just a little bit more.

  • Surely. At the moment, they obviously think what they put about a celebrity, because the only people who can take the newspaper to court are rich celebrities, and the ordinary person can't, for various reasons, as you say, and it would -- it certainly would require the same care, but no, at the moment it can have a chilling effect if the newspaper is writing about somebody who is known to be highly litigious and with a great deal of money.

    Robert Maxwell died leaving something like 150 writs behind him alleging defamation by people who had suggested that he'd behaved somewhat improperly in his business affairs. He never took any of them to court. I got threatened with one at one point. Nevertheless, the people did not repeat them, because as Robert Maxwell said to me when he rang me on one occasion, "Of course for me it's just petty cash, Kenneth, but you'd be betting the ranch, you know, if you fought it", and I denied his allegation. The so-called gagging writ.

    So that is usually against the ordinary person and what you're suggesting would be a remedy against that. It would be very difficult to devise.

  • If Mr Maxwell was not threatening to run up tens of thousands pounds worth of costs which you'd have to stake against him.

  • Correct. If you have a mechanism which prevents that, first of all because little if any cost would shift in the system I'm suggesting, and secondly because somebody would be able to take a very early view, and whether it's strike-out or whatever, or put it forward, then it may be you might find the remedy for that sort of approach. I'm not saying you would. I haven't fully -- obviously I haven't decided anything and I'm not committed to any idea. But these concepts have been there or thereabouts during the course of the last few months and I'm obviously anxious to get as much assistance --

  • What I had in mind was at the moment the newspapers do employ lawyers, and if there's a contentious story about some powerful organisation or some powerful person, the lawyer advises the proprietor whether you can do that. And they won't print if the lawyer says, "You're at serious risk here, you're not going to be able to justify this".

    What we don't want is for the ordinary Joe to impose on the journalist the same obligation. If it's Robert Maxwell threatening to sue you, it probably costs quite a lot to work out whether it's worth the candle of persisting with the story. If you have half a dozen people a week alleging that, are you going to hire more lawyers or is the remedy going to be so slight, the process so informal, that the lawyers are not really needed? I'm not sure.

  • I think it rather depends what you're going to say about the ordinary Joe. If you're going to say something that may be characterised as mildly abusive, then that's one thing. If you're going to say something about them that actually might have a very real impact on them, that may be something else.

  • It also allows the press a mechanism perhaps if appropriate to take advice on things like pre-notification.

  • Which itself is another issue, which I have not raised with you.

  • That's another issue, yes.

  • I don't feel it's necessary to at this stage. I'm receptive to the very sort of concerns that you express, because I have no intention of seeking to break the rule of unintended consequences.

  • Mm. Because in the less serious case, once you start raising the issue well is this mere abuse or have you done damage to this man, then you raise the question is he going to be able to demonstrate that it's untrue or can we demonstrate that it is true, and then you get on to what remedy are we going to give this man; almost immediately you're plunging into areas which are a bit beyond the retired judge with two pieces of paper, you're getting all the time nearer to some process of litigation then there's going to be an argument of appealing and lawyers will pile until saying that you do need advice on all this.

  • I understand that, but actually much of what you've just said is part of the mediation process at the moment.

  • Run by the Press Complaints Commission.

  • -- complain to the PCC and the PCC consider the complaint and they reach a view and try and negotiate a settlement, and I see no reason why that shouldn't carry on. Obviously it's much better for people who have concerns to have them addressed, and I have no doubt that those who wish to complain would be very happy to see a correction the following day rather than something six months down the track.

    So I take all you've said on board, but the alternative is that you don't cope with the problems of those who can't afford to litigate, because the risk is too great, the financial consequences, however modest, are too much on top of what they're already going through.

    I mean, you will have seen --

  • But your tougher PCC surely is able to listen to the complaint of the man with no money.

  • And can impose penalties on the newspaper.

  • And I would suggest it's worth considering could order the newspaper to publish a swift and appropriately prominent apology or retraction.

  • They don't need any other process than that. But there will be many fewer cases than if you start setting up some small claims process in addition to the mediation which is kind of handing out remedies beyond that for less serious cases.

  • The question is providing some compensation for less serious cases.

  • I see the point, and I'm not saying that each leg depends upon the other. I am seeking to find reasons why the press might actually see the value of a swifter, cheaper, effective resolution rather than the sort of litigation by attrition that is sometimes fought out in court and of which you are well aware.

  • I make the mistake of giving a sort of first reaction slightly if I hadn't faced the question quite so directly as you put it. I will go away and think about it and if I have any worthwhile thoughts, perhaps submit them in a written form suggesting how we might develop it. Otherwise I shall just go over in mind and keep thinking of possible reservations, which is a bad thing to do, and in principle it sounds an attractive avenue to go down if we can find a solution.

  • Nothing that I will do will change anything, so this will in some form or other come back to you and your colleagues in any event.

  • And nothing I say personally off-the-cuff will affect what my colleagues and I will eventually collectively decide, nor can I make any remote offer of bringing any Treasury money to pay for it, but we'll go away and think about it, and if I have any personal contribution or government contribution to come back to you with, I will. If it's personal not governmental, I will draw a clear distinction.

  • Yes. I don't think it's appropriate for me to ask for a government response.

  • Because the government will respond --

  • The government is waiting for your report.

  • -- in due course to me. I'm really asking you not merely based upon your experience as Home Secretary and as Lord Chancellor, and as a practitioner of the law for many years, who has a great deal of experience of thinking about policy and legislation and regulation, to test the ideas so that I can have regard to concerns that might not otherwise have occurred to me.

  • Well, if I can help, I will, yes. Surely.

  • I've been asked to raise one additional point.

  • The concern, Mr Clarke, that a number of witnesses have expressed, Mr Blair amongst others, the fusion of news and comment, whether that's a concern you share, and if so, what might be done about it.

  • I share it to the full. But quite who has the authority to order the newspapers to go back to the objective factual reporting of news reporting and making it distinct from comment I do not know. Again, it's not exaggerated but it is a marked change.

    Nowadays, in sections of the press, the popular press, the reporting of events makes no attempt to be an objective account of the facts at any stage of the piece. It is from the word go a campaigning description of an event being used to further a campaign, which is of course exceedingly irritating if you don't have a newspaper which writes things up to suit your view of things and you don't have a newspaper reporter on your side, which my well-known views on Europe, I've always had this problem. There has been no such thing as a Conservative pro-European newspaper in this country for a quarter of a century, which I think slightly explains the present state of opinion on the subject.

    There is no newspaper that will report my views on Europe accurately, factually, objectively. The general context, the adjectives, the description of what I'm supposed to have been doing will be entirely coloured by the campaigning position of a newspaper.

    I'm sure Tony found that very frequently probably on that subject as well as others, but there are Labour pro-European newspapers, but they only report Michael Heseltine and myself as evidence that the Conservative Party is divided, so you don't get -- Labour pro-European newspapers don't report one's views, what you actually said, but that's just a politician's moan. The answer in my opinion is to go on the radio and the television and to stop reading the newspapers.

  • Although the Press Complaints Commission does in fact -- the code of practice, the Editors' Code does in fact require a distinction between fact and comment.

  • Well, if we had the time, I'm sure, I haven't read all this, I have actually looked at two or three of this morning's newspapers in which I appear generously, but if we went through this morning's newspapers, I think I could rapidly persuade you this is a complete fiction, which has the entertaining effect that the version of events depends on the newspaper you read. Most people, I think, choose the newspaper which matches their own views, although fortunately an astonishing proportion of them take a newspaper which still doesn't affect their views when they're finished.

  • Thank you very much indeed, Mr Clarke.

  • Right. Tomorrow morning, 10 o'clock.

  • (The hearing adjourned until 10 o'clock the following day)