Tuesday 11 December 2012

Press regulation ~ The Labour Party's Draft Bill ~ a new role for the High Court?

The Guardian has linked to a draft Press Freedom and Trust Bill published by the Labour Party.  They are keen to provide a form of statutory underpinning for an independent press regulator.  It is a short bill - as bills go!

Clause 1 of the Bill is a guarantee of media freedom and independence.  This will be achieved by placing a duty on the Secretary of State, every Minister of the Crown and every other person exercising any public function relating to the media to uphold the freedom of the media and its independence from the executive.  Such duties are, in their nature, imprecise and they are usually enforceable only by political means - perhaps including public opinion.  Of course, the fact of including a guarantee of media freedom in a statute might be seen to have made it, effectively, something in the gift of the politicians as opposed to a basic fundamental of democracy.  The guarantee offered by Clause 1 would be in addition to the Convention rights of any person - where "convention rights" are those rights protected by the Human Rights Act 1998.

Clause 2 is concerned with an independent and effective system of self-regulation by the press.  The word "press" has a wide definition and will include online content published by newspapers.

The idea put forward by Lord Justice Leveson of using Ofcom as a Recognition Body appears to have met with general disapproval across the political spectrum - (discussion in the previous post Guarding the guardians - the Leveson Report and the Rubicon ).  In Clause 3, the bill comes up with a very novel idea.  The High Court would sit as a Recognition Panel with power to recognise a Press Standards Trust  (or, perhaps, trusts - since the bill does not rule out more than one).  When the High Court sits as a "Recognition Panel" the Lord Chief Justice would sit with holders of high judicial office and with assessors to be appointed by the LCJ.  The High Court will have the role of conducting reviews of any Press Standards Trust.

Clause 4 is concerned with Press Standards Trust(s) which must meet criteria set out in a Schedule to the bill.  The clause also sets out the required reviews.  Clause 5 offers certain advantages in civil proceedings to members of press standards trusts.  These advantages appear to be broadly along the lines suggested by Leveson LJ as "incentives" to sign up to the regulator.

This is an interesting attempt to meet Leveson's desire for statutory underpinning.  At its heart is the proposed new role for the High Court as a Recognition Body.  Here would be a new form of judicial proceeding.  Whilst the idea may have some members of the bar salivating at the prospect of hearings before what is effectively a "Recognition Court", the question has to be asked whether it is desirable that judges be handed this role.  The true role of the judges is the interpretation and application of the law in relation to actual cases coming before the courts.  It seems likely that their position could be compromised if they are required to act as a body recognising Press Standards Trusts.  If a regulatory body has to be recognised then decisions of the recognisation body would have to be subject to judicial review should questions arise - as they assuredly will - about legality.  Further questions come to mind such as whether it is sufficient to leave appointment of assessors to the LCJ; whether the court will have adequate resources to carry out the recognition task effectively and whether a door is opened to asking the court to be a recognition body for regulators in other areas.  Legislators will need to think long and hard before adopting this solution to statutory underpinning.

Lord Justice Leveson was, of course, firmly of the view that Ofcom was the best qualified body to undertake the recognition role - see Volume 4 of his report - page 1775 where Leveson said:

"There is no single obvious best option for a recognition body. Ofcom is by far the best qualified body for the role, and I do think it is important that the expertise that Ofcom holds is brought to bear on the recognition process. In all the circumstances:I recommend that the role of recognition body, that is to say, to recognise and certify that any particular body satisfies (and, on review, continues to satisfy) the requirements set out in law should fall on Ofcom. A less attractive alternative (on the basis that any individual will not have the requisite authority or experience and will only be occasionally be required to fulfil these functions) is for the appointment of an independent Recognition Commissioner supported by officials at Ofcom.  In either case, the decisions could be subject to appeal and would undeniably be liable to judicial review, so that ultimately responsibility would sit with the courts."

I am not so sure that "ultimate responsibility" would lie with the courts since judicial review is concerned with legality and not merits.  However, if there was to be a merits-based appeals process then the judges would have that responsibility.

Shami Chakrabarti of Liberty was one of the advisers to Leveson LJ.  She advised that she preferred the court to fulfill the recognition role.   His Lordship seems to have rejected that idea since in footnote 56 he said:

Shami Chakrabarti has advised that she prefers this role to be fulfilled by the court but I do not see how the court, of its own motion, could adopt an adjudicative role in relation to certification or subsequent review. Somebody would have to be prepared to challenge either the extent to which the new body fulfilled the requirements of the legislation or the proposition that it should continue to do so. If that was Ofcom, and Ofcom raised no objection, there would be nothing upon which the court could adjudicate. Thus, the decision would become whether Ofcom was satisfied. A very similar role would be available to the court if there was an appeal from an adverse decision of Ofcom (which could allow a merits challenge rather than be limited to the more restrictive justification for intervention that is provided by judicial review


Lord Lester QC is to put forward his own suggested scheme for statutory underpinning - The Guardian - 10th December - Peer propsoes law to underpin press regulator

Lord Lester's scheme appears to have similarities to the scheme in the Labour Party's bill with the exception that the recognising body would become the President of the Supreme Court.   As with the Labour Party bill, this must meet with the same objection that this is not the proper role of judges.

A bill is also being drafted for the government - details are awaited.

A further post of interest is Leveson: Ofcom, Royal Charters and Judicial Recognisers.  Or how about Sir Brian?  

1 comment:

  1. Ultimate responsibility" would lie with the courts since judicial review is concerned with legality and not merits. However, if there was to be a merits-based appeals process then the judges would have that responsibility.

    Best Lawyers