An Inquiry into the Culture, Practices and Ethics of the Press
Purchase of The Times and The Sunday Times
Purchase of The Times and The Sunday Times
¶Introduction 1.1 On 22 October 1980 Thomson British Holdings Limited (Thomson) announced its decision
to withdraw from the publication of The Times, The Sunday Times and their associated publications and to cease publication of all the titles in March 1981 if a buyer could not be found by that time.1 It is well known that in the end a buyer was found: Rupert Murdoch's News International (NI). The acquisition of these iconic titles immediately gave NI an important place in the national market for broadsheet newspapers. When combined with the company's existing tabloid titles, the News of the World and The Sun, it also conferred upon the company a very substantial share of the national newspaper market. The circumstances by which NI came to acquire these influential titles has been the subject of controversy ever since. This section of the Report examines that transaction for what it may tell us about the relationship between the press and politicians of the time.
¶The decision to sell 1.2 It is evident from the contemporary documents that Thomson's ownership of Times
Newspapers had, by the autumn of 1980, become commercially disastrous. The sale marked a decision by Thomson to cut its losses and a conclusion that it had no realistic prospect of reversing the position. At the root of Thomson's problems was the state of industrial relations. So severe was the problem that publication had been suspended for 11 months in 1978/79 amidst disputes over procedures, guarantees of continuous production, a new wage structure, manning levels and the operation of new technology. Publication was resumed in November 1979 but many of the agreements reached between management and unions soon began to unravel. Industrial disruption in the shape of various forms of non-cooperation from sections of the workforce prevented the operation of new technology. In August 1980 there was a further strike by members of the National Union of Journalists (NUJ) which prevented publication of The Times and its supplements. During October 1980, The Sunday Times was damaged by action in the context of a dispute involving major matters of principle between members of the National Graphical Association (NGA) and the National Society of I Operative Printers and Assistants (NATSOPA). That action alone, which affected production on two successive weekends, is estimated to have cost Thomson £500,000 in lost profits. Given the continuing industrial unrest, the conclusion recorded at the time by Thomson was that: "...there was no possibility of an improvement in industrial relations at Times Newspapers, such as to permit the Titles to be produced on an economic basis under Thomson ownership".2
¶1.3 The draft management plan for Times Newspapers produced in September 1980, but considered by Thomson to be "very optimistic", forecast continuing losses until 1982 and 1
¶The last date set for publication in Thomson ownership of The Sunday Times and the Supplements was 13 March 1981 and a day later for The Times. p13, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Exhibit-KRM-91.pdf 2 p5, ibid
1234¶PART I | The Press and Politicians
cash requirements totalling £34.4 million for the years 1980-1982.3 Those bleak statistics came against the background of very substantial interest free loans made by Thomson to Times Newspapers which, by 28 September 1980 totalled £69.8.4 At the time, the company described its reasoning in these terms:5
"...the Board of TBH concluded that, in Thomson's ownership, neither The Times nor The Sunday Times was economic as a going concern and that, in the interests not only of shareholders but also of the Group's employees, the present situation, if allowed to continue, would threaten the future security and development of the Group as a whole."
¶Setting the deadline
¶1.4 Of some importance to the later political debate was the manner in which it decided to put
the titles on the market. In particular, and as described later in this section, the March 1981 deadline for closure of the publications, unless a buyer could be found became fundamental to the Secretary of State's reasoning when he later exercised his discretion to permit NI's acquisition of the titles without a reference to the Monopolies and Mergers Commission (MMC).
¶1.5 At the time Thomson asserted that it had to balance a number of factors: (i) its obligations to
shareholders, as part of a public company, having regard to the scale of Times Newspapers' losses and the demands on the cash resources of the Group; (ii) its desire to see the titles survive in other hands; (iii) the legal requirement to give 90 days' notice of potential redundancies and begin consultations with the trade unions concerned; and (iv) the legal necessity to give certain minimum periods of notice to employees under the terms of their employment.6
¶1.6 Thomson recognised that any potential purchaser would have to reach satisfactory manning
and technology agreements with the unions. Thomson itself had been trying for years, without success, to achieve just that. It was convinced that: "The prospect of achieving the agreements necessary to make the Titles economic exists only in the context that the alternative is the certain cessation of publication and the closure of the Titles".7 Having adopted the deadline, Thomson resolutely stuck to it. It appears to have worked. When writing to the Secretary of State on 23 January 1981 the company was able to state that since the announcement of the deadline production of the Times Newspapers titles had been efficient and uninterrupted.8
¶1.7 Putting back the deadline would not have been an easy matter. Following the 22 October 1980 announcement, Thomson gave notice of redundancy proposals both to the Department of I Employment and to the relevant trade unions allowing for the statutory period of consultation.
1235Notices to staff were issued at the end of November. Once issued, these notices could not have been withdrawn unilaterally.
¶Chapter 5 | Media Policy
¶The bids 1.8 Seven proposals, or serious indications of interest, were received by S.G. Warburg & Company
¶Limited (Warburgs) before the end of year deadline set by Thomson. They came from:
(a) NI; (b) Associated Newspapers Limited (ANL); (c) Pergamon Press Limited; (d) Lonrho Limited; (e) Sea Containers Inc (for The Times only); (f) A consortium including Journalists of The Times (JOTT) (for The Times only); and (g) Sir Harold Evans, editor of The Sunday Times, and his associates.
¶1.9 A number of other parties expressed but did not follow up an interest and two parties expressed an interest in the supplements only.
¶1.10 In evaluating the bids and, before that, when deciding with whom to engage in serious
negotiation, Thomson applied a range of non-financial criteria which were agreed by the Directors of Times Newspapers Holdings Limited (TNHL). These were:9
(a) the new owner or owners should have (i) editorial credibility; (ii) commercial viability; and (iii) managerial skills industrially; (b) the new owners should be seen to have no direct religious, sectional or political interests; (c) the new owners should be of good reputation; (d) the new owners should be asked if they would give a written guarantee of independence for the editors on similar lines to that which they have enjoyed under the Astor and Thomson ownership; if the appointment of the present editors was to continue then on what terms; (e) the new owners should, for preference, be British but Commonwealth and North American would not be excluded; and (f) the new owners should be asked if they had any views on staff involvement or consultation (this refers to JOTT), and would they agree a form of trust on similar lines to the National Directors to act in event of further disposals?
¶1.11 Other non-financial criteria upon which Thomson stated they placed considerable weight in I evaluating the proposals of the various parties included:10
1236(a) their ability and determination to conclude complex and difficult negotiations with the unions; (b) the financial and managerial resources required to sustain and develop the titles; (c) the strength of their commitment to support the individual titles; and (d) the views of the journalists.
¶PART I | The Press and Politicians
¶1.12 Thomson's strategy was to negotiate with a single purchaser of all the titles as a continuing
business without interruption to production. It decided not to pursue negotiations with other bidders unless a single purchaser and uninterrupted production proved impossible. The reasons given by Thomson for adopting this approach were that the separate acquisition of The Times would require its removal from the company's Gray's Inn Road complex, at some considerable cost, cause the loss of 2,000 jobs, almost certainly cease publication for a period, and risk industrial unrest which might seriously disrupt production of The Sunday Times.11
¶1.13 Fully understanding that any potential purchaser would only commit to the acquisition subject
to a satisfactory deal with the unions, Thomson recognised the importance of maximising the chances of such an accommodation with the unions. The company decided that this was best achieved by ensuring that negotiations with the unions should take place with not more than one prospective purchaser of all the titles.12
¶1.14 The result of this approach was that, at the start of 1981, Thomson entered into serious
negotiations with NI and ANL. Of the others who might have been eligible on these criteria, Lonrho did not in the end submit a specific proposal and, for reasons which are not fully explained in the contemporary documents, but which appear to relate to the fact that the company was owned by Robert Maxwell, Thomson chose not to negotiate with Pergamon Press Limited.
¶1.15 Internal discussion between Sir Denis Hamilton, Chairman and Editor-in-Chief of TNHL, Sir
Harold Evans (as he now is) and William Rees-Mogg, then editor of The Times, resulted in their unanimous agreement that Mr Murdoch was the most suitable future proprietor. Their agreement to this effect is recorded in a memorandum to Thomson from Sir Denis, dated 16 January 1981.13 It is right that I qualify the agreement set out in that document by reference to the oral evidence of Sir Harold, who indicated to the Inquiry that in fact his own support for Mr Murdoch was, quite naturally, secondary to his preference for his own bid. The explanation for the discrepancy between what is recorded in the document and Sir Harold's oral evidence seems to lie in Thomson's negotiating strategy. Of course Sir Harold preferred his own bid, but that was at this stage academic because Thomson was at that time only countenancing bids for all of the titles, a restriction which excluded Sir Harold's bid for The Sunday Times. Sir Harold's preference, amongst those who were bidding for all of the titles, was for NI. The memorandum gives eight numbered reasons for preferring Mr Murdoch. First, and perhaps foremost amongst them, was the assessment that: "He is a highly effective manager. He, therefore, has the best chance of success on his proven track record. He has built up a big business entirely on his own. The company is in a tough spot. It needs a tough operator to survive." It is also interesting to note reason number 5: "He is neither greatly to the Left or
¶I greatly to the Right in his politics".14
¶1.16 In preferring NI's bid, Thomson was not selecting the highest bidder. ANL offered more
1237money. However, its bid was thought by Thomson to fall short on other grounds, specifically the fact that ANL was not prepared to commit to the continuance of the titles. Thomson also took into account the capacity of ANL to carry through the transaction and subsequently to manage the titles, and the likely reaction of interested parties, including the journalists, to the ownership of the titles by ANL.
¶Chapter 5 | Media Policy
¶1.17 Having emerged as Thomson's preferred bidder, the next step was for Mr Murdoch to
appear before the Editorial Vetting Committee of Times Newspapers, consisting of the then Chairman of TNHL, three of the four then existing Independent National Directors and both of the then editors (Sir Denis Hamilton, Lord Dacre, Lord Greene, Lord Roll, Mr Evans and Mr Rees-Mogg). He did so on 21 January 1981. The purpose of the meeting was to evaluate would be an acceptable proprietor and at the heart of that process was establishing what assurances Mr Murdoch would be prepared to give on matters such as: maintenance of the titles, resources for their development; editorial independence and quality; board structures, especially continuance of the system of Independent National Directors; and restrictions on the acquisition of shares by persons other than the purchaser.15
¶1.18 The Vetting Committee was sufficiently impressed to recommend Mr Murdoch to the Board
of TNHL as the preferred bidder. He secured the recommendation by providing a series of formal undertakings. The principal undertakings were published by TNHL on 22 January 1981 in a press release and covered the preservation and enhancement of the system of Independent National Directors; protection in relation to the appointment and dismissal of editors; limitation on the disposition of titles; and, in some detail, the maintenance of editorial independence.16
¶The Fair Trading Act 1973 1.19 A valid transfer of The Times and The Sunday Times to NI could not lawfully be executed
without the written consent of the Secretary of State under s58 of the Fair Trading Act 1973. The provision was engaged because the circulation of NI's titles exceeded the limit stipulated in s58(1). In the normal course of events the Secretary of State was prohibited from giving his consent until he had received a report on the proposed transfer from the MMC. However, a number of exceptions to this rule were provided by the statute including, materially, s58(3) (a) which provided that:
"Where the Secretary of State is satisfied that the newspaper concerned in the transfer is not economic as a going concern and as a separate newspaper then if he is also satisfied that, if the newspaper is to continue as a separate newspaper, the case is one of urgency, he may give his consent to the transfer without requiring a report from the Commission under this section ..."23 p13, lines 12-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/leveson-inquiry- transcript-060911.pdf pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Susan- Mendus.pdf p12-13, ibid p1, para 1.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Thomas- Mockridge.pdf pp103-104, lines 24-3, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-23-January-2012.pdf pp8-9, paras 20-23, ibid ibid, pp63-65 p206, para 272, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen- Abell.pdf No records of these approaches were kept before May 2010 p41, lines 4-7, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-30-November-2011.pdf p17, para 22, ibid http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Ian-Hurst.pdf pp57-58, lines 18-5, William Lewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-10-January-2012.pdf Ms Marshall claims that this was replicating Mr Paxman's interview of a well-known politician in the 1970s pp89-90, lines 24-12, Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-15-December-20111.pdf p37, lines 3-16, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-23-November-2011.pdf p16, para 29d ibid pp84-85, lines 8-20, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-11-January-2012.pdf; p11, para 35, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf; p6, para 17, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Dawn-Neesom.pdf; pp1-2, paras 5 – 6, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/01/Witness-Statement-of-James-Welsh.pdf; p4, para 13, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Witness-Statement-of-Peter-Wright.pdf pp102-103, lines 15-3, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript- of-Morning-Hearing-5-March-2012.pdf p7, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf p70, lines 1-12, Paul Peachey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-14-March-2012.pdf para 4.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp23-24, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning- Hearing-9-December-2011.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of-Richard- Thomas-CBE1.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Third-Witness-Statement-of- Richard-Thomas-CBE1.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted.pdf p29, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-1.pdf p99, lines 14-18, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-21-May-2012.pdf p9, lines 3-6, Tony Blair, ibid p74, para 221, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David- Cameron-MP.pdf ibid p32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-1-to-Witness-Statement-of-Vince- Cable-MP.pdf p56, lines 13-16, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-13-June-2012.pdf Part K, Chapter 7 pp7-8, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Claire-Enders- Enders-Analysis.pdf The majority of the press core participants have argued in favour of a public interest defence for journalists, see for example News International closing submissions at para 64, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Closing-Submission-from-News-International.pdf, Associated Newspapers closing submissions at para 31 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Closing-Submission-from-Associated- J Newspapers-Ltd.pdf, Guardian News closing submissions at para 17 http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Closing-Submission-from-Guardian-News-and-Media-Ltd.pdf. See also part 5, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf; Part 6, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-Roy-Greenslade-of-City-University.pdf which support a general public interest defence for journalists Appendix 4 p40, lines 3-6, Baroness Buscombe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-7-February-2012.pdf p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Covering-Letter-from-Ofcom.pdf; p10, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of-Brentwood1.pdf; p8, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Carnegie-Trust.pdf; p20, para 3.35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-MediaWise1.pdf; p11, http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Michelle-Stanistreet-on-behalf-of-the- National-Union-of-Journalists.pdf; p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission- by-Coordinating-Committee-for-Media-Reform.pdf pp106-107, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning- Hearing-9-July-2012.pdf p60, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf Part H K Defamation Act Schedule 2.10, ibid p70, lines 1-3, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- K Afternoon-Hearing-24-April-2012.pdf Part K, Chapter 7, para 3.14 Discussed in detail in Section 3 of this Annex January 1981 – Thomson apply for consent 1.20 By letter dated 23 January 1981, James Evans, Joint Deputy Managing Director of The
Thomson Organisation Limited applied to the Secretary of State for Trade, the Rt Hon John I Biffen MP (as he then was) for written consents for the transfer of The Times and The Sunday Times from TNHL to NI.17 A memorandum, enclosed with the letter, explained the factual background in support of the application.18
¶1.21 The basis for contending that the case was one of urgency was the March 1981 deadline
1238which Thomson had itself imposed. In addition to citing the original reasons for setting the deadline, the memorandum explained that it had resisted requests to extend the deadline and considered an extension to be impossible. Thomson steadfastly maintained its reliance
¶PART I | The Press and Politicians
upon its original reasons and cited five further reasons in support of its stance. They were as follows:19
(a) trade union opinion at a senior level is very strongly of the view that a deadline for closure as an alternative to sale is essential if the necessary new arrangements are to be made with their members, particularly at chapel level, to secure the necessary cost reductions vital to the financial future of the Titles; (b) since the announcement of October 1980 the staff of Times Newspapers have inevitably been under a very considerable strain due to the uncertainties of their future and to prolong this period of uncertainty could now easily lead to many of the staff seeking other employment thus jeopardising the ability of Times Newspapers to continue publication of the Titles; (c) in addition, if the March deadline was extended, even for a very limited period, it would be necessary to withdraw a very large number of notices already issued, particularly those which terminate simultaneously with the deadlines. Since notices cannot be withdrawn unilaterally by the employer and must be subject to the agreement of the individual employee, it is highly likely that the trade unions concerned would seek to exact a heavy price for agreement to the withdrawal of notices or any extension of the notice period. Other alternatives such as the offer of short-term engagements have been considered but give rise to legal consequences involving a cost exposure which it is impossible to risk. Even if some employees were willing to cooperate, a position could easily emerge in which an insufficient number did so and the company would then be faced with a contractual commitment to pay those employees for a further period yet be unable to produce the Titles. (d) in the consultations which have already taken place with the trade unions since 22 October 1980, there has been great pressure from the trade unions to discuss redundancy terms on the basis of closure. The company has declined to do so, mainly for the reason that so long as there is a possibility of sale it is not only inappropriate to do so but inadvisable. The terms of redundancy on closure are likely to be a very contentious issue and discussion of them would run a grave risk of causing disruption at a time when continuity of production is vital for the prospects of sale. It will be necessary, for legal reasons, to enter into discussions of redundancy terms on the basis of closure within a very short time. If there is a further period of uncertainty as to whether or not a sale can be achieved, this could jeopardise the negotiations now beginning for the improvements required as a pre-condition of sale and survival of the
¶I Titles;
1239(e) further uncertainty could have very adverse trading consequences. While readers and advertisers have remained loyal to the Titles not only through the period of 11 months' suspension but also through erratic publication caused by industrial disruption, there are now signs that advertisers are becoming reluctant to commit ahead in terms of booking space except on a short-term basis, and this is a particular problem for The Sunday Times Colour Magazine because of its longer "lead" time to publication. In order to secure sufficient bookings for issues subsequent to 8 March, the Sunday Times Colour Magazine is now having to offer substantial discounts to advertisers. This has very
¶Chapter 5 | Media Policy
serious implications in view of the importance of the magazine to the financial position of The Sunday Times."26 p59, line 23 et seq, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Morning-Hearing- 11-June-2012.pdf As a fundamental constitutional principle, the rule of law is now recognised in statute: see s 1 of the Constitutional Reform Act 2005 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Christopher- Megone.pdf ibid p3, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark-Thompson. pdf p13, paras 31-33, ibid Frost, C, Journalism Ethics and Regulation, p217 pp185-186, paras 254-261, 280.2, ibid p13, lines 5-8, ibid p12, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip- Williams.pdf; Vodafone referred to voicemail telephone numbers as unique voicemail numbers (UVNs) whilst O2 referred to them as direct dial numbers (DDNs). Rather than use one or more acronyms, they will be referred to generically as unique voicemail access numbers p10, para 36, ibid http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090511/debtext/90511-0003.htm p6, paras 23-24, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sheryl- Gascoigne.pdf p1, para 1.1, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/MS-Exhibit-11. pdf Part F, Chapter 6 pp65-66, lines 12-2, ibid p2, para 5.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Susan- Panuccio.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Dr-Rob-Mawby.pdf pp3, 76, lines 9-21, 7-13, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-7-March-2012.pdf p8, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeremy-Lawton. pdf Part G Chapter 3 Section 11 p97, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning- Hearing-9-December-2011.pdf; pp50-51, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Afternoon-Hearing-9-December-2011.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of-Richard- Thomas-CBE1.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Third-Witness-Statement-of- Richard-Thomas-CBE1.pdf page 4-5, ibid p69, lines 6-15, Richard Thomas, ibid p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of-Alastair- Campbell.pdf p10, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-14-May-2012.pdf; pp69-70, Harriet Harman, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Afternoon-Hearing-12-June-2012.pdf; p8, Lord Mandelson, http://www.levesoninquiry. org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon-Hearing-21-May-20121.pdf p99, lines 19-23, David Cameron, ibid p37-38, ibid pp63-64, lines 22-2, ibid pp8-9, lines 15-13, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-23-January-2012.pdf pp76-77, lines 25-2, Claire Enders, ibid HC Hansard, Debates, 29 January 1951, vol 483, col 681 [1997] QB 586 pp6-7, paras 39 and 40, ibid p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Max-Mosley.pdf; pp3-4, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Regulation-Round-Table.pdf K p4, para 4, ibid pp23-24, lines 23-11, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- K Morning-Hearing-9-July-2012.pdf p6, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-working-group-led-by- Lord-Prescott.pdf p76, lines 13-22, Professor John Horgan, ibid pp51-73, Michael Gove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon- Hearing-29-May-2012.pdf Part K, Chapter 7, para 5.5 Von Hannover, cited above, para 65; Hachette Filipacchi Associés (ICI PARIS), cited above, para 40; and MGN Limited, cited above, para 143 January 1981 – Mr Biffen's consideration of the application 1.22 Mr Biffen acted with great speed. On 26 January 1981, he met first Thomson and then Mr
Murdoch, before attending a meeting of the Cabinet Ministerial Committee on Economic Strategy.20
¶1.23 The fact that Mr Biffen met Mr Evans, who acted on behalf of Thomson, on the morning of
26 January 1981, and the substance of their discussions, is evidenced by the letter which the latter sent to the former later the same day. Mr Biffen attempted to persuade Thomson to extend the deadline and indicated that it would be reasonable to hope for a report from the MMC by 25 March 1981. The letter sets out Thomson's substantive response to that request. The company remained immovable on the subject, making essentially the same points as are set out in their earlier memorandum of 23 January 1980 (discussed above) but also relying upon a condition in their agreement with NI that, if the Secretary of State's agreement had not been obtained by 12 February 1981, then the agreement would not have effect.21
¶1.24 Mr Biffen's meeting with Mr Murdoch is evidenced by an office minute prepared by Mr Biffen's
officials. It is an important document, not least because it records Mr Biffen as being minded, at that time, to refer the transfer to the MMC:22
"1 The Secretary of State said that there was a presumption behind the legislation that he had to refer a newspaper merger automatically to the MMC unless particular financial and timing considerations applied which allowed him to exercise discretion over whether the merger should be referred or not. He said that he had still to come to a decision on whether these considerations applied in this instance though he admitted that he was prejudiced in favour of a reference in order to defuse any criticism of the bid".
¶1.25 Mr Murdoch signalled to the Secretary of State his willingness to maintain his bid if Thomson
extended its self-imposed deadline. Although he was at pains to explain that any such extension would create problems both for him and for Thomson. He thought that an extension of about two months would be required, on the assumption that the MMC reported favourably by 25 March 1981, because of the need thereafter to negotiate with the unions.
¶1.26 Mr Biffen maintained his preference for a referral to the MMC throughout the meeting. He
1240does not appear to have ventilated any concerns about plurality. Rather, his concern appears to have been to avoid criticism. The final paragraph of the minute states:23 I "8 The Secretary of State concluded that in his political judgment an MMC investigation would be the best means of defusing criticism. He considered that the MMC would be able to complete a report in about eight weeks and he hoped that Mr
¶PART I | The Press and Politicians
Murdoch would encourage Thomsons to extend their deadlines so as to allow such an investigation to take place".
¶1.27 Despite his clear preference for an MMC investigation, Mr Biffen did explore the alternative at
the meeting, expressing the view that there would have to be "...an extremely comprehensive set of assurances to allay the fears that had been expressed...". On that issue, Mr Murdoch provided reassurance: "...he was happy to see the assurances that he had given on editorial independence given some statutory backing..."
¶1.28 At 4.45hrs on the same day, Mr Biffen attended a meeting of the Cabinet Ministerial
Committee on Economic Strategy, chaired by the then Prime Minister, Margaret Thatcher. Times Newspapers was one of two items discussed. In the intervening period between his meetings with Mr Evans and Mr Murdoch and the meeting of the Cabinet Committee, Mr Biffen had received Thomson's letter declining to extend their self-imposed deadline because he was aware of it by the time of the meeting.24
¶1.29 It is clear from the minutes that Mr Biffen understood the test which he was required to apply
under s58(3)(a) Fair Trading Act 1973 and that his Cabinet colleagues correctly understood that the decision had to be taken by Mr Biffen and not collectively. Mr Biffen reported that: "...On the basis of advice from his Department's accountants, he was satisfied that neither The Times nor The Sunday Times was economic as a going concern, though only in the case of The Times was the issue clear-cut. He was also satisfied the case was one of urgency ...". Consequently, discussion was focused on whether Mr Biffen should exercise his discretion to consent to the merger without prior reference to the MMC. The minute succinctly records how Mr Biffen appears to have regarded the choice before him:25
"...He (the Secretary of State), therefore had two alternatives open to him. He could make a reference to the MMC in the hope that the Thomson Organisation would then extend their deadlines, but with the risks of causing TBH to lose a substantial sum of money, of declaring around 4,000 redundancies, and of bringing about what might prove to be the permanent closure of The Times. Alternatively he could give his consent without a reference, subject to a condition which would in effect entrench the undertakings which Mr Murdoch had given, bearing on the independence of the papers and on editorial freedom, and ensure that they could not be changed thereafter without his consent."
¶1.30 In discussion it was thought unlikely that Thomson would refuse to extend their deadline in
the event of a referral, but that there was little advantage in a reference and considerable risks and costs in making it. Thomson had taken the view that no suitable alternative purchaser
¶I had made a bid. Those who were pressing for a reference were mainly concerned to secure
1241greater authority behind the undertakings on independence which had already been given. This concern should be met by entrenching the undertakings in the consent. The Opposition, it was thought, might be less inclined to press for a reference when they understood the potential consequences. It was left to Mr Biffen to make his decision.26
¶Chapter 5 | Media Policy
1242¶PART I | The Press and Politicians
evidence to the Inquiry, that what he said was in the context of his still preferring his own bid to that of NI.33
¶1.35 The debate did not split strictly down party lines. Jonathan Aitken MP (Conservative), who,
as the great-nephew of Lord Beaverbrook, had family connections with a newspaper empire spoke against the transfer, warning:34 "The plain fact is that Mr Murdoch has strewn assurances and safeguards on newspaper and television ownership like confetti, all round the world, and the more one examines those assurances the more one has to say that in far too many instances they have proved to be worthless."
¶1.36 Mr Aitken was one of a number of MPs who criticised Thomson's self-imposed deadline and
believed that there were other credible bidders. He put it graphically:35 "Lord Thomson and Mr Murdoch are putting a phoney pistol to the head of the Secretary of State and saying to him, in effect, "Stand and deliver without your reference to the commission." I believe he should have called their bluff, because there were plenty of other serious alternative bidders in the ring".
¶1.37 From the other side of the political fence, Ron Leighton MP (Labour), who was a sponsored
member of the printing union NATSOPA, made clear the support of the trade unions for the NI bid:36 "The printing trade unions and, I understand, a very large number of journalists take the view that the best chance of keeping the publications in existence is Rupert Murdoch – not Atlantic Richfield or Associated Newspapers ...it is our view that the most viable offer is the one from Murdoch".
¶1.38 Two MPs alleged at the time that the decision was, in reality, that of the then Prime Minister.
Firstly, Phillip Whitehead MP opined:37 "I detect the opinions of the Prime Minister. I think that it is the Prime Minister who has dictated that Rupert is owed a favour and that the proposal should not go to the commission. The Minister is an honourable man and a man somewhat given to private and public agonising." Mr Biffen rejected that suggestion.
¶1.39 Second, the Rt Hon Geoffrey Robinson MP said: "In this his first major decision the right hon. Gentleman has failed to stand up to the Prime Minister. That is the reality...This is a I straightforward pay-off for services rendered by The Sun."38
¶1.40 In the result, the motion was defeated by 281 votes to 239 and the transfer took place without a reference to the MMC.
¶1.41 The debate was followed by a brief correspondence between Mr Smith and Mr Biffen, about the figures upon which the Secretary of State had relied. By letter dated 3 February 1981,
1243¶Chapter 5 | Media Policy
Mr Biffen conceded that he had made an error in the House but, for reasons which were explained in the letter, stood by the overall conclusion that neither The Times nor The Sunday Times was economic.39
¶The decision not to commence judicial review proceedings 1.42 The reaction of journalists at The Sunday Times was such that initially a legal challenge by way
of judicial review of Mr Biffen's decision seemed likely. In the result support for such action collapsed. Sir Harold Evans explained that this change of heart was the result of concern that, if a claim had been successfully brought, and a reference to the MMC ordered, The Times might have been lost.40
¶The continuing controversy 1.43 Allegations that the Minister might have taken into account irrelevant political considerations
were not only raised in Parliament but repeated outside. In his diary entry for 14 June 1987, Lord Wyatt states that he told Mr Murdoch that:41
"I reminded Rupert during the evening how at his request and at my instigation she had stopped the Times acquisition being referred to the Monopolies Commission though the Sunday Times was not really losing money and the pair together were not."
¶1.44 The entry for 1 December 1995 recites a conversation with Dr Irwin and Cita Stelzer, recording that he (Wyatt) had said:42
"I had all the rules bent for him over The Sunday Times and The Times when he bought them. Because of the strikes the Sunday Times was at that time losing a bomb, and so was the Times. Through Margaret I got it arranged that the deal didn't go to the Monopolies Commission which almost certainly would have blocked it."
¶1.45 Sir Harold Evans was explicit in his suggestion to the Inquiry that there had in fact been
something of a transaction in this matter between Baroness Thatcher and Mr Murdoch.43 He also said that he was told that Baroness Thatcher had determined the titles must go to Mr Murdoch because she valued his support:44
1244"I was told by someone I know that Mrs Thatcher had determined it must go to Mr Murdoch because she valued his support. In this belief, I was supportive of Mr Hugh Stephenson at The Times, who had it from a friend in the Cabinet Office that Mrs Thatcher's real debt of gratitude was the crucial factor in doing it. Lord Donoughue, I Bernard Donoughue, had it from the Cabinet Office that she owed him a debt. He had supported her in the last election, and would support him in the next. Mr Jim Prior
¶PART I | The Press and Politicians
in an interview with Mr Bruce Page said of course it was a purely cynical ploy for political support."
¶Lunch at Chequers
¶1.46 More than 30 years after the events in question, in March 2012, and not long before Mr
Murdoch gave evidence to the Inquiry, previously unpublished documents were released by the Churchill Archives Centre. These revealed that Mr Murdoch had visited Chequers for lunch with Baroness Thatcher on Sunday 4 January 1981. This was a surprise because Mr Murdoch had not told the author of The History of the Times, Graham Stewart, about it when interviewed in 1995. Sight of the documents, which he did not dispute, did not rekindle any recollection.45 In the light of that, and of the allegations of influence made in 1981 and thereafter, these documents call for careful scrutiny.
¶1.47 Events are primarily recorded in a four page note for the record produced by Sir Bernard
Ingham (as he became) the day afterwards.46 The lunch was attended by Baroness and Sir Denis Thatcher, Sir Bernard and Mr Murdoch. It was at Mr Murdoch's request. There was discussion of President Reagan's then embryonic administration and of Australian politics. The main purpose of Mr Murdoch's visit though was "...to brief the Prime Minister on his bid for Times Newspapers". The deadline for bids had expired during the course of the previous week. The note records in outline the bid which Mr Murdoch's NI had made and his plans for turning the business around are set out in some detail. Mr Murdoch pointed out the scale of the financial risk that he was taking and the difficult economic climate in which he would have to operate. He also speculated about the other bids which he thought had been made (Sir Bernard had tried but failed to establish through the Department of Trade information about the bids).
¶1.48 The impression given by the note is that Mr Murdoch did most of the talking. Sir Bernard was
careful to record the passive role played by Baroness Thatcher in the last paragraph of the document:47
"The Prime Minister thanked Mr. Murdoch for keeping her posted on his operations. She did no more than wish him well in his bid, noting the need for much improved arrangements in Fleet Street affecting manning and the introduction of new technology. Mr Murdoch made it clear that in his view the prime need, given the inevitability of progressing gradually, was to apply existing technology with reasonable manning levels."
¶1.49 The note was marked Commercial – In Confidence and Baroness Thatcher required that it did I not go outside No.10.48 Mr Murdoch sent a handwritten thank you letter, on 15 January 1981, reporting in relation to the sale that the field had narrowed down to two or three.49
1245¶Chapter 5 | Media Policy
¶Reflections 1.50 There appears to be little reason to doubt the difficulty of the situation faced by Thomson
in the autumn of 1980. Electing to cut their losses was a commercial decision in the face of mounting losses and real industrial relations problems. The reasons which they recorded at the time explain why it was important for them to set a deadline. Other aspects of Thomson's behaviour fall well within the range of reasonable responses for an organisation in its position. Looked at from the company's point of view, Thomson's preference for a single bidder with the means to purchase the whole of Times Newspapers is understandable. The successful sale of either title individually could have jeopardised the fortunes of the other. Their choice of Mr Murdoch as preferred bidder, later endorsed by the Times Vetting Committee, is explicable on the merits of his bid. ANL, the other serious contender for a purchase of both titles, would not commit to maintaining them both. Mr Murdoch was thought to be a man capable of negotiating successfully with the trade unions. Indeed, he was the preferred choice of the trade unions. Most significantly for the purposes of this Report, there is no evidence that any political pressure was put upon Thomson to prefer NI's bid.
¶1.51 However, that there was a confidential meeting between the then Prime Minister and Mr
Murdoch, the fact of which did not emerge into the public domain for more than 30 years, is troubling in its lack of transparency. It serves as a reminder of the importance of contemporary practice to make public the fact of such meetings. The perceptions at the time and since of collusive arrangements between the Prime Minister and the preferred bidder are corrosive of public confidence.
¶1.52 Not surprisingly, the contemporary documents do not evidence any form of express 'deal'
between Mr Murdoch and anyone in the Government of the day, including the Prime Minister. The note of the meeting itself is careful to record that Baroness Thatcher did no more than wish Mr Murdoch well. The minutes of the Cabinet Ministerial Committee on Economic Strategy demonstrate that the committee was well aware that the decision was ultimately for Mr Biffen alone. They are corroborated by Mr Biffen's contemporaneous denial that he took irrelevant considerations into account.
¶1.53 Why then did Mr Murdoch seek an invitation to Chequers? The prospective deal was plainly
of great importance to him. He no doubt believed that there was real value in meeting the Prime Minister face-to-face, to inform her of his bid and his plans in the event that it was successful, and importantly, to form a personal connection. He would have expected to make a good impression on Baroness Thatcher; he would have known of her respect for risk taking entrepreneurs, and that they would have thought alike on the merits of turning around a troubled newspaper company with industrial relations problems. Their world views had much in common.50 There is no evidence that the approach made any difference to the outcome I of events; nevertheless, Mr Murdoch was no doubt making an investment, not least in the context of the union confrontation which both would have seen in the future.
¶1.54 I have carefully considered what conclusions (whether as to fact or credibility), if any, I should
1246draw from Mr Murdoch's inability to recall the meeting either when interviewed for the History of The Times or when he appeared before the Inquiry. It is perhaps a little surprising that he does not remember a visit to a place as memorable as Chequers, in the context of a bid as important as that which he made for Times Newspapers. However, perhaps that is all I need to say.
¶PART I | The Press and Politicians
- Response to the reports of Sir David Calcutt QC
¶Introduction
¶2.1 The Report has already considered the background to, and conclusions of, the Calcutt Reviews
in some detail.51 This section of the Report does not seek to repeat any of that detail but to examine the political response to the Calcutt Reviews.
¶The first Calcutt Report
¶2.2 Sir David Calcutt QC published his first report on Privacy and Related Matters in June 1990. It
was highly critical of the existing Press Council and set out in clear terms the failings of that organisation. It recommended that the Press Council be abolished and replaced with a new self-regulatory organisation, the Press Complaints Commission. The report recommended that this new organisation should deal with the numerous and substantial concerns that had been raised around the behaviour of some parts of the press.
¶2.3 The report recommended that the new PCC be given 18 months to demonstrate that self-
regulation could work effectively. Sir David recommended that, if this challenge could not be met, then an independent complaints-handling tribunal should be set up (which would have required legislation). The details of the recommendations are set out elsewhere.52
¶2.4 The response of the industry was swift but selective. The Press Council was disbanded, and the
Press Standards Board of Finance (PressBoF) was created for the purpose of funding the PCC. The PCC itself was incorporated on 1 January 1991. However, many of the recommendations made in the first Calcutt report were not implemented by the PCC. For instance, the Code of Conduct was promulgated by the industry rather than the PCC itself, and the appointments to the PCC were made by the new Chairman, rather than by way of an independent appointments process.
¶The second Calcutt Report
¶2.5 Concern about the conduct of the press continued and was not dispelled by the PCC. The final
straw appears to have been the publication in The Sun of the detail of intimate conversations between the Princess of Wales and James Gilbey, and the Prince of Wales and the Duchess of Cornwall (as she now is). On 9 July 1992, Sir David was asked by the Rt Hon David Mellor QC MP, Secretary of State for National Heritage, to conduct a second review and he did so, reporting in January 1993.
¶I 2.6 In summary, Sir David's second report made clear his view that the press was neither able nor
willing to initiate reforms that might constitute a credible form of self-regulation in which the public could have confidence. He put it in this way:53
1247"The Press Complaints Commission is not, in my view, an effective regulator of the press. It has not been set up in a way, and is not operating a code of practice, which enables it to command not only press but also public confidence. It does not, in my view, hold the balance fairly between the press and the individual. It is not the truly independent body which it should be."
¶Chapter 5 | Media Policy
¶2.7 He therefore recommended that the proposals set out in his first report for a Press Complaints
Tribunal be enacted as soon as possible. The detail of his recommendations is set out more fully above,54 but can be summarised as having three main 'strands' as follows:
(a) the PCC should be disbanded and replaced by an independent Press Complaints Tribunal; (b) the introduction of new criminal offences, making it a criminal offence to enter property with a view to obtaining personal information without consent, to place surveillance devices on private property without consent, or to photograph or record someone on private property without consent. Various defences were proposed; and (c) consideration of a new tort of privacy.
¶2.8 Both the PCC and the industry opposed Sir David's analysis. The PCC suggested an alternative;
namely amendments to the Code of Practice, new guidance for journalists and some changes to the way in which the PCC was run and governed.
¶The Political Response: David Mellor 2.9 In December 1989, some six months before Sir David's first report, Mr Mellor was a Home
Office Minister of State, working to David Waddington MP, who was then Home Secretary. At that time, prior to the creation of the Department of National Heritage following the 1992 election, the Home Office was responsible for media policy. Mr Mellor gave a television interview in that month indicating that, in the light of Sir David's forthcoming report, the press were now drinking in the 'last chance saloon'. These were words the press were never to forget.
¶2.10 Mr Mellor became Secretary of State for National Heritage on 11 April 1992, just over a year
after the PCC had been created. Shortly after commissioning Sir David Calcutt's review, in July 1992, Mr Mellor was the subject of a "kiss and tell" story, in which the actress Antonia de Sancha sold her story of his extra-marital affair with her. Conversations between Ms De Sancha and Mr Mellor had been recorded and were then published in The Sun. Although Mr Mellor survived in office, the press pursued details of his private life and published a number of further stories about him, including one which alleged that he had enjoyed two free holidays; one as the guest of the daughter of an official of the Palestine Liberation Organisation and one as the guest of the ruler of Abu Dhabi. Finally, after weeks of personal and negative coverage, Mr Mellor resigned on 24 September 1992.
¶2.11 Mr Mellor felt at the time that he had been hounded out of office by the press as a result of
his comments and his formal request to Sir David to conduct a second review; asked by the I Inquiry whether he believed that the timing of the adverse articles was deliberate, however, he said this:55 p2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf pp35-36, lines 24-2, Jim Gray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-23-January-2012.pdf p28, para 32.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Ed-Richards. pdf Home Office (1990), Op cit, p74 p5, lines 13-15, Lord Black, ibid pp1-2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fifth-Witness-Statement-of-Richard- Thomas-CBE.pdf p76, lines 12-23, ibid p10, lines 13-17, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-23-July-20121.pdf p59, lines 4-12, William Lewis, ibid Part F Chapter 5 p66, lines 10-19, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-12-December-20111.pdf p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Daniel-Sanderson.pdf p5, para 16, ibid p81, lines 9-13, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Afternoon-Hearing-6-February-20121.pdf; pp85-86, lines 22-6, Dawn Neesom, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012.pdf pp64-65, lines 18-11, Gillian Shearer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-26-March-2012.pdf pp47-48, lines 8-3, Sandra Laville, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-14-March-2012.pdf p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT5.pdf p15, lines 13-15, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-26-January-2012.pdf http://www.dfpni.gov.uk/consultation_misue_of_personal_data.pdf p21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf pp55-56, lines 1-15, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-28-May-2012.pdf, Mr Mullin is diarising a conversation he had with Mr Blair on 17 November 1994. The direct speech is Mr Blair's p107, line 3, David Cameron, ibid p30, lines 7-11, David Mellor MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-26-June-2012.pdf p37, ibid pp33-34, paras 5.74-5.79, ibid pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Lord-Wakeham-Letter-to-Inquiry.pdf p116, lines 13-22, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-9-July-2012.pdf p4, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-D1.pdf p81, ibid p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Exhibit-to-Submission-by-Professor-John- Horgan-Irish-Press-Ombudsman.pdf s3 Communications Act 2003 http://www.legislation.gov.uk/ukpga/2003/21/section/3 Part H, Chapter 5, paras 2.93-2.94 [2002] EWCA Civ 274 at para 5
1248"No, I think it was coincidental, because interestingly, the News of the World had the first chance at the de Sancha story and elected not to publish it, so... I think it was just, you know, an inconvenient moment for one's private life to fall out of the cupboard."
¶PART I | The Press and Politicians
¶2.12 However, he did claim that coverage of the the 'kiss and tell' story had been personal and disproportionate, and that the press did appear to be pursuing a personal attack:56 pp1-3, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-James- Harding.pdf p60, lines 17-25, John Battle, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-23-January-2012.pdf This is considered in detail in Part I, Chapter 6 Home Office, Op cit, p74 pp22-23, lines 24-6, Lord Black, ibid pp86-89, lines 22-11, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-9-December-2011.pdf. Mr Thomas used the words "mount a conviction": this is the only interpretation that can be put on that phrase p77, lines 6-12, ibid para 2.3 above in all, the investigation involved scrutinising more than 4m documents, with a team of more than 10 reporters backed up by dozens of support staff Part F, Chapter 6 and Part J, Chapter 5 p93, lines 19-24, Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-15-December-20111.pdf Part F, Chapter 6 p67, lines 8-14, Gordon Smart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-9-January-2012.pdf p81, lines 14-22, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript- of-Afternoon-Hearing-6-February-20121.pdf; p9, para 30, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Peter-Hill.pdf; p39, lines 16-23, Paul McMullan http://www.levesoninquiry. org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-29-November-2011.pdf Part G, Chapter 3 p52, lines 19-24, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf pp5-7, lines 1-11, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-9-December-2011.pdf p17, lines 14-23, Christopher Graham, ibid http://www.legislation.gov.uk/ukpga/2000/23/contents p25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf In the result, only two such Special Advisors were appointed p75, para 227, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David- Cameron-MP.pdf p31, line 19 and P35, lines 103, David Mellor MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Transcript-of-Afternoon-Hearing-26-June-2012.pdf pp47-67, 85, ibid pp34-35, paras 5.80-5.84 pp1-2, Stephen Abell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-M7.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-B1.pdf pp27-28, lines 25-3, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-9-July-2012.pdf p2, paras 8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Tim-Suter-of- Perspective-Associates.pdf ibid 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 K allow a merits challenge rather than be limited to the more restrictive justification for intervention that is provided by judicial review Part H, Chapter 5, para 2.106 Loc. cit
"What shouldn't happen, though, is it then becomes a sort of vendetta and people then go around thinking because you are a wounded animal, rather like in those nature films, you know, the beast can sort of rip you to bits without any worry about fairness, truth or anything and you know, we come to the wretched Chelsea shirt. You know ... fan that I am of Chelsea Football Club, I have never owned a Chelsea shirt. Never felt the need to – and that was a total invention.... Insofar as my rather sad and pathetic little Chelsea shirt incident has any relevance... it shows a press that was out of control and had no concern with the truth whatsoever, no concern with the public interest. They were just having a laugh and I was stupid enough to put myself in a position where they could laugh at me, fool that I was".
¶2.13 Although Mr Mellor took the view that the timing of the articles, shortly after he announced
the second Calcutt Review, was coincidental, there is no doubt that there was a measure of press triumphalism at his resignation. The day after his resignation, The Sun's front page contained the headline "From Toe Job to No Job"57 and Bill Hagerty, then Editor of The People, commented: "This is the first time in ages that David Mellor has done the right thing".58 p3, para 2.7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Thomas- Mockridge.pdf Alan Rusbridger has talked at length about these principles which are applied at the Guardian News Media titles (see Part C, Chapter 2 above) A(3)). A "newspaper" is a daily, Sunday or local (other than daily or Sunday) newspaper circulating wholly or mainly in the UK or in a part of the UK (Section 44(10)) http://www.guardian.co.uk/media/greenslade/2011/oct/18/local-newspapers-mediabusiness Shannon, R, A Press Free and Responsible, p74. p31, lines 11-24, Lord Black, ibid pp89-90, lines 22-5, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf p33, lines 10-16, ibid p3, lines 9-21, DAC Sue Akers, ibid p18, para 31.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-William- Lewis.pdf pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sienna-Miller.pdf p2, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Colin-Myler1.pdf pp87-88, lines 12-9, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-14-December-2011.pdf pp65-66, lines 22-5, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-21-November-2011.pdf p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Baroness- ONeil.pdf p26, lines 8-22, Amanda Hirst, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-27-March-2012.pdf p53, lines 13-18, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf p3, lines 3-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-9-December-2011.pdf pp11-14, paras 4.17-5.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of- Alexander-Owens1.pdf The Law Society & Ors v Kordowski [2011] EWHC 3185 (QB), paras 100-101, where the equivalent point is made about the first data protection principle and civil torts ibid p9, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Tony-Blair1.pdf pp6-7, para 8.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-George- Osborne-MP.pdf http://news.bbc.co.uk/onthisday/hi/dates/stories/september/24/newsid_2529000/2529115.stm p68, ibid, it is not clear whether the "strongly argued views to the contrary" is a reference to the Enders report which had arrived that day or to the numerous letters from MPs (on behalf of constituents ) and members of the public which had by then been received: p73, paras 2-3, ibid p67, lines 14-22, Nick Clegg, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-13-June-2012.pdf pp91-92, lines 1-11, Ed Richards, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-1-February-2012.pdf p5, para 15. ibid Chapter 5 paragraph 4.5 p81, lines 2-9, Professor John Horgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript- of-Morning-Hearing-13-July-20121.pdf See Part K, Chapter 7 Part H, Chapter 6, para 4.9 Re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] AC 660 at 703
¶Lord Brooke
¶2.14 Mr Mellor was replaced as Secretary of State for National Heritage by the Rt Hon Peter Brooke
MP, now Lord Brooke. Lord Brooke was Secretary of State for National Heritage between September 1992 and July 1994. As such, he was Secretary of State for the period immediately following the publication of Sir David's second report and the first of two Secretaries of State with responsibility for responding to that report. He described this role in this way:59
"I should stress that my involvement in that response [the government's response to Sir David's second report] was my principal media responsibility during my 22 months as Secretary of State".
¶2.15 It is important to note from the outset that although Sir David's second report was published
in January 1993, the Government's response to it did not emerge until 1995, after Lord Brooke's time as Secretary of State. He explained:60
"the chronological narrative indicates how not once but twice we ran out of time to settle the genuine departmental differences between us".
¶I He concluded:61
1249"only historians can fully determine how, where or why we failed, which of course I regard as an embarrassment".
¶Chapter 5 | Media Policy
The Inquiry was interested in understanding how and why there was no consensus, why the process took so long, and why so little was ultimately done. In order to answer these questions, it is necessary to consider the chronological narrative in a little detail.
¶2.16 Upon publication of the second report in January 1993, Lord Brooke made an oral statement
to the House of Commons. Having made clear that a final response would have to await the report of the Select Committee on National Heritage on Privacy and Media Intrusion and the outcome of the debate on Mr Soley's Bill,62 Lord Brooke indicated that the Government was broadly supportive of Sir David's recommendations relating to privacy, such as the case for new criminal offences to deal with specified types of physical intrusion, and that further consideration should be given to the introduction of a new tort of infringement of privacy as recommended. However, on the central recommendation that a Press Complaints Tribunal be set up, he put the Government's position this way:63 ibid p41, lines 1-3, Jim Gray, ibid P29, lines 5-17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Afternoon-Hearing- 26-June-2012.pdf p24, lines 10-13, Lord Black, ibid Not published p3, lines 9-21, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript- of-Morning-Hearing-23-July-20121.pdf; pp2-3, paras 9, 17, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Third-Witness-Statement-of-DAC-Sue-Akers.pdf News International has sought summary judgment on Ms Field's claim against it in the Chancery Division. It is believed that the basis of the application is not that Ms Field's version of events is necessarily incorrect, but that there is no evidence that her voicemail, as opposed to that of Ms Macpherson, was hacked. This gives rise to a number of legal arguments not relevant for the purposes of the Inquiry p92, lines 9-18, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-13-December-20111.pdf pp73-74, lines 23-12, Professor Brian Cathcart, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-8-December-20111.pdf pp62-75, lines 11-25, Anne Diamond, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript- of-Afternoon-Hearing-28-November-20111.pdf; pp7-9, para 29-37, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Anne-Diamond1.pdf pp76-77, lines 22-17, CC Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-20-March-2012.pdf; p8, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Chief-Constable-Chris-Sims.pdf pp2-3, paras 9-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Mark- Thomson-to-be-read.pdf p117, lines 21-24, Richard Thomas, ibid pp44-46, lines 25-10, Christopher Graham, ibid Part J, Chapter 2 pp33-34, lines 20-2, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf pp72-73, line 24, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-14-May-2012.pdf p113, lines 8-19, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Lord-Brooke-Exhibit-1.pdf pp92-94, ibid Ofcom report 'Measuring Media Plurality, Supplementary Advice' para 4.15 p15, para 45, ibid; pp46-47, lines 3-13, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Transcript-of-Morning-Hearing-15-May-2012.pdf pp25-26, paras 40-41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black- of-Brentwood1.pdf p24, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- Brentwood1.pdf K p2, paras 5-6, ibid p68, lines 9-11, ibid Part H, Chapter 5, para 2.72 [1991] 1 AC 1
"I turn now to Sir David's recommendation that the Government should introduce a statutory regime for dealing with complaints against the press. That raises separate, and more difficult, issues which need to be carefully weighed. The Government agree with Sir David that the Press Complaints Commission, as at present constituted, is not an effective regulator of the press. It is not truly independent and its procedures are deficient. Sir David's detailed analysis of those shortcomings is compelling. We also recognise the strength of the case that he makes in his report for a statutory tribunal with wide-ranging powers. At the same time, we are conscious that action to make such a body statutory would be a step of some constitutional significance, departing from the traditional approach to press regulation in this country. In the light of those considerations, the Government would be extremely reluctant to pursue that route. A most persuasive case for statutory regulation would need to be made out."
¶2.17 That was also the view of the press. The report of the Select Committee on National Heritage
was published on 24 March 1993.64 In summary, it recommended a new Protection of Privacy Bill, but rejected the recommendation for a press complaints tribunal concluding that "unless future events show such a tribunal to be utterly unavoidable",65 it was preferable to rely on self-regulation.
¶Strand 1: The Press Complaints Tribunal 2.18 In rejecting the proposal of a tribunal, the Select Committee did propose the appointment
1250of a Press Ombudsman (which would also have required legislation), on the basis that "a regulatory level is needed beyond that of the Press Commission". The Ombudsman, it was envisaged, would be able to provide an 'accessible and effective recourse' for 'anyone dissatisfied with the outcome of a Press Commission investigation, or whose complaint had I been rejected without an investigation.'66 Lord Wakeham (then the Chairman of the Cabinet Committee on Home and Social Affairs) opposed this proposal, describing it as "Calcutt's statutory tribunal by another name".67
¶PART I | The Press and Politicians
¶2.19 On 28 June 1993, Lord Brooke minuted Lord Wakeham saying that the White Paper would
acknowledge the steps already taken to meet some of the Calcutt and Select Committee criticisms, but that the Government preferred to retain self-regulation. It was clear therefore from that date that the Government had decided to reject the proposals for a either a Press Complaints Tribunal, or a Press Ombudsman.
¶2.20 On 29 July 1993 the Lord Chancellor's Department, in conjunction with the Scottish Office,
published a consultation paper. This floated the idea of a voluntary press Ombudsman scheme being set up within the PCC itself. In September 1993, Lord Brooke gave a speech to the Conservative Party conference, referring to the concept of a 'voluntary Ombudsman'. In November 1993, he gave a speech to the Institute of Public Relations, calling on the press to establish such a voluntary Press Ombudsman. Again, as will be seen, this was never something taken up by either the press or by Government.
¶Strand 2: criminal offences
¶2.21 On 14 January 1993, Lord Brooke made a statement to the House of Commons in which he said this about the new proposed criminal offences:68 pp7-8, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Susan- Panuccio.pdf p43, lines 19-22, Jim Gray, ibid Shannon, R, Op cit, p119 p235, para 350, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen- Abell.pdf para 88, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf pp9-10, paras 32-34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-of- DAC-Sue-Akers.pdf pp4-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Margaret-Watson. pdf MST database of PCC statistics http://complaints.pccwatch.co.uk/search The Sun, the Daily Mirror, the Sunday Mirror, the Daily Record, The Daily Mail, the Daily Star, The Scotsman and the Daily Express pp18-19, lines 19-25, Baroness Hollins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript- of-Afternoon-Hearing-2-February-2012.pdf p59, lines 1-12, CC Stephen House, ibid p26, lines 10-13, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf p4, lines 18-25, Richard Thomas, ibid Associated Newspapers Ltd has robustly denied these allegations, and Mrs Cherie Blair has submitted further evidence in support of them. The Inquiry is in no position to adjudicate as between them http://www.levesoninquiry. org.uk/wp-content/uploads/2012/11/Witness-Statement-of-Cherie-Blair1.pdf p4, line 15, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Afternoon-Hearing-25-April-2012.pdf; see also p27, para 111, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Witness-Statement-of-Keith-Rupert-Murdoch2.pdf HC Hansard, 14 January 1993, Col 1067 p116, ibid pp4 – 5, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord- Smith.pdf p2, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-C1. pdf p52, lines 14-17, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning- Hearing-9-July-2012.pdf p7,para 18 ibid p73, lines 7-12, ibid K Part H, Chapter 5, paras 2.94-2.95 Ibid, at 702
"The Government accepts the case for new criminal offences to deal with specified types of physical intrusion and covert surveillance ... Subject to further examination of the details of the proposed offences ... The Government will bring forward legislation in due course".
¶2.22 By May 1993, the Cabinet had agreed that the Criminal Justice Bill, to be introduced either
that year or the following year, should include provisions on intrusion. Indeed, Lord Brooke told the Inquiry that, before a Cabinet meeting in June 1993, Sir John Major had expressed interest in seeing details of proposed criminal offences. At that meeting, the new proposed criminal offences were discussed. Lord Brooke told the Inquiry:69 ibid http://consumers.ofcom.org.uk/2011/08/a-nation-addicted-to-smartphones/ pp4-8, lines 18-21, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-22-May-20121.pdf, pp23-24, lines 25-12, Lord Wakeham, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/05/Transcript-of-Morning-Hearing-15-May-2012.pdf p34, lines 5-8, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning- Hearing-1-February-2012.pdf para 89, ibid To provide context, Ms Akers described a terabyte of data, in terms that "…if downloaded in the form of a kind of normal-size paperback, which is then piled on top of one another, I'm told the terabyte amounts to three and a half times the height of Everest". p12, lines 9-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-23-July-20121.pdf pp11-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-SAMM-NI.pdf data supplied by Linklaters 31 January 2012 p5, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Christopher- Jefferies.pdf pp1-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Bob-and-Sue-Firth. pdf p74, lines 7-23, CC Stephen House, ibid p46, lines 24-25, Chief Constable Andrew Trotter, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-hearing-28-March-2012.pdf pp117-118, lines 23-2, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-31-January-2012.pdf Campbell, A, Diaries Volume One: Prelude to Power 1994-1997, pp631 and 634 in particular I 70 p23, para 92, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Keith-Rupert- Murdoch2.pdf; p80, lines 1-7, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript- of-Morning-Hearing-28-May-2012.pdf. It was in 2010 that Mr Blair became a godfather to one of Mr Murdoch's daughters p98, lines 12-21, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf p5, para 2(xviii), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord- Brooke.pdf p116, ibid p2, para 11, ibid p52, lines 9-18, Lord Black, ibid para 5.5 p79, lines 10-1, Lara Fielden, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-13-July-20121.pdf Part J, Chapter 2, para 9.1 L 1812 Ibid, at 704
"Criminal offences had been discussed on June 24th in terms of Parliamentary handling. I sought to reach agreement with the Home Secretary and that the offences should apply to those who profited from, or even used without profit, the results of illegal intrusion. The intrusion and the use of the material should thus be separate offences. The offences should only apply to personal information but the offences should be in the 1993-4 session of legislation, having been accepted as far back as 1990".
¶2.23 On 18 August 1993, a Cabinet Office note on possible criminal offences on intrusion concluded by noting that the aim remained to publish a White Paper in September of that year, following I a discussion at the first meeting of Cabinet after the summer break. However, the ambition of publishing the White Paper in September was not fulfilled.
¶2.24 In January 1994, Lord Wakeham met with the Lord Chancellor (Lord MacKay), Lord Brooke,
1251the Home Secretary and a number of other senior politicians, to discuss the Calcutt recommendations. Lord Wakeham himself described this meeting as productive, and it appears that a common view was reached on the proposed criminal offences. By 8 February 1994, Lord Brooke was proposing to circulate a draft of the White Paper which recommended the introduction of the new criminal offences. This draft of the White Paper was sent to the Prime Minister on 3 March.
¶Chapter 5 | Media Policy
¶2.25 On 7 March 1994, No 10 wrote to Lord Brooke asking for some further time to consider
the White Paper, and on 31 March 1994 wrote again, asking him to recast the draft White Paper. The new draft was to make the case for the new criminal offences whilst balancing it with the arguments against; acknowledging the need for wide defence provisions against criminal offences but also the disadvantages of the offences with such defences included. This intervention marked a turning point in the history of the response to the recommended criminal offences.
¶2.26 The new draft White Paper was produced on 30 June 1994.70 The Chancellor of the Exchequer
expressed some disappointment that there had been a retreat on the idea of new criminal offences.
¶2.27 By the time of Lord Brooke's departure on 20 July 1994, it was clear that the Government's
support for Sir David Calcutt's recommendation for new criminal offences to be introduced was beginning to wane. Indeed, as will be seen, no new criminal offences were in fact introduced.
¶Strand 3: civil offences 2.28 As referred to above, on 29 July 1993, the Lord Chancellor's Department, in conjunction with
the Scottish Office, published a consultation paper. This proposed the introduction of a civil penalty for infringement of privacy. Lord Brooke told the Inquiry that the Lord Chancellor was known to be of the view that his proposed tort would render unnecessary any changes to the criminal law.71
¶2.29 In January 1994, the Lord Chancellor invited the Department of National Heritage to agree
that there should be a statutory remedy for infringements of privacy, arising from their conclusions on the July consultation paper that the civil law should be put on a statutory footing.
¶2.30 On 3 March 1994 Lord Brooke provided a draft White Paper to the Prime Minister on that
basis. By the end of that month, the Prime Minister had asked him to redraft it. On the issue of the new tort, the new draft was to say that, although a new tort was under consideration, the inclusion by the PCC of like provisions within its own Code of Conduct would be even better. Again, by the time that Lord Brooke left office, it was clear that the Government had also retreated from this recommendation, preferring instead to encourage enhanced self- regulation.
¶The Rt Hon Stephen Dorrell MP I 2.31 In July 1994, the Rt Hon Stephen Dorrell MP was appointed as Secretary of State for National
1252Heritage; he therefore inherited the amended draft White Paper.72 The key conclusions of the White Paper were as follows:73
¶PART I | The Press and Politicians
"The Government accepts the [Select] Committee's analysis of the dilemma [posed by the need for a balance between freedom of expression and privacy] and agrees that, at the stage when Sir David Calcutt and the Committee reported, the necessary balance between these rights manifestly did not exist... Since that time, however, the press has shown hopeful signs of greater self-restraint, and the PCC has improved its procedures and practices. There have been regrettable lapses by individual newspapers, and the Government is still to be convinced that the newspaper industry, through the PCC, is fully in control of its members and we have entered a new era of wholly responsible journalism. But it considers that statutory intervention at this stage would be out of proportion and possibly counter-productive. Nonetheless the Government would urge the industry to consider further the self- regulatory improvements set out in paragraphs 2.36 to 2.39 and in paragraph 4.19 ... Failure to implement these changes, particularly if any such failure coincided with further press abuse, will incline the Government to introduce, or give support to any Private Members' Bill introducing intrusion offences, a privacy tort, or both."
¶2.32 In written evidence to the Inquiry, Mr Dorrell indicated that his first instinct upon taking office was to take some time to reassess the various options. He noted as follows:74
"(a) I am personally hostile to any proposal for official regulation of freedom of expression;
(b) Quite apart from issues of principle, any proposal to regulate the activities of the press carries obvious political risks;
(c) I was reluctant to publish the draft White Paper which combined a theoretical willingness to legislate (about which I was dubious) with practical unwillingness to do so (which I thought was unconvincing)75;
(d) I was conscious that there had been substantial debate before I took office between senior members of government, some of whom were more sympathetic to a regulatory response than I was."
¶2.33 In his oral evidence Mr Dorrell was asked to elaborate why, in his view, the Government was so keen to avoid replacing the PCC. His explanation was as follows:76
"I think it starts as an issue of principle ... it would be a step of considerable constitutional significance ... There was also, because this was a real political world with a real political set of decisions, there was the reality that if you were going to
¶I even contemplate going down that road, you would encounter huge opposition from
1253the press themselves, based both on principle and it's often argued on self-interest, but it would be powerful, vigorous opposition, and that would, as a practical matter, have made it impossible for such a proposal to have been carried through the House of Commons. So whether you address it as an issue of principle or reality, it wasn't an option that merited very serious consideration".
¶Chapter 5 | Media Policy
¶2.34 Mr Dorrell's written evidence indicates that, as of November 1994, the imminent appointment
of Lord Wakeham as Chair of the PCC prompted a dialogue with the PCC about the options for improving the self-regulatory structure, and that this dialogue continued into the early weeks of 1995. He described his objectives at that stage as being to develop the policy outlined in the draft White Paper so that:77
(a) the Government could report that it had agreed improvements to the operations of the PCC which would justify its decision not to replace it; and (b) it could also report a clear conclusion – namely that it intended to proceed with its commitment to legislate the proposed criminal intrusion offences, and that it did not intend to proceed with legislation to introduce a new tort of infringement of privacy.
¶2.35 This policy position was summarised in a minute sent by Mr Dorrell to the Prime Minister on
2 March 1995.78 This minute prompted responses from three Ministers, all of whom favoured proceeding with the policy position set out in the original draft White Paper.
¶2.36 On 20 March 1995, Mr Dorrell produced a further minute for the Prime Minister. This brought
a number of matters to his attention. In relation to the proposed tort of privacy, the minute revealed a real concern about taking on the press, reading as follows:79 p6, para 5.2.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Susan- Panuccio.pdf p68, lines 16-21, David John Collins, ibid p15, lines 4-9, Lord Brooke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-24-May-2012.pdf p236, para 355, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen- Abell.pdf pp34-35, lines 5-2, ibid; Operation Caryatid Update as of Wednesday 21 June 2006 (not published) pp22-23, lines 25-4, Brian Paddick, ibid p3, s5, ibid pp34-35, lines 1-9, Colin Myler, ibid pp65-66, Stephen Waring, ibid pp3-4, para 12 -13, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Graham- Shear.pdf pp24-25, lines 19-3, ACC Jerry Kirkby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript- of-Morning-Hearing-27-March-2012.pdf pp14-15, lines 18-1, ibid p88, lines 7-15, Timothy Toulmin, ibid p94, lines 4-14, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-28-May-2012.pdf p68, lines 2-14, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-11-June-2012.pdf p15, lines 11-16, Stephen Dorrell MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-23-May-2012.pdf pp189-200, ibid PCC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-S21.pdf para 3.3 p13, lines 6-23, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-9-July-2012.pdf p13, paras 40-42, ibid Previous attempts at passing a similar right of reply bill through UK Parliament been unsuccessful to date. See Peter Bradley Submission – http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Peter-Bradley. pdf K Part G, Chapter 4, para 4.10 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr Abid Hussain, submitted pursuant to Commission Resolution 1997/27
"The tort would be the wrong thing at the wrong time. Most importantly, it would mean a major row with the press (the Daily Mail editorial of 16 March, annex B, is a good indication of the strength of feeling). By contrast, the press has never been in serious doubt that the criminal offences would be enacted" (emphasis added).
¶2.37 The relevant Daily Mail editorial was headed "Who are they to cry foul?" and started with
the words "What is this profoundly unpopular government now doing?" It went on to recite the names of a number of Ministers "driven out of office by their own philandering and folly" and concluded that the Prime Minister must know that "in the current climate of sleaze and corruption any concerted political clamour for privacy legislation is liable to be dismissed as little better than a self-protection racket".80
¶2.38 Mr Dorrell was asked whether he was concerned about press coverage of this nature. He explained:81 p10, para 37, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John- Witherow.pdf http://order-order.com/ p22, lines 12-16, Stephen Dorrell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-23-May-2012.pdf p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-M14.pdf Decision log dated 6 July 2006 (not published) p21, lines 10-15, Brian Paddick, ibid p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Refugee-Council.pdf p69, lines 10-18, Neville Thurlbeck, ibid pp72-73, lines 12-19, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-16-January-2012.pdf p91, lines 5-7, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-29-November-2011.pdf p26, lines 8-15, ACC Jerry Kirkby, ibid p15, lines 6-14, Sir Denis O'Connor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-12-March-2012.pdf More fully discussed below It may not be an uninteresting parallel that Mr Murdoch felt able to contact Mrs Thatcher, the then Prime Minister, at the time that he was seeking to acquire The Times and The Sunday Times pp16-17, paras 72-77, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andy- Coulson.pdf p16, line 16, Stephen Dorrell MP, ibid p238, para 1, ibid pp61-62, lines 24-1, ibid p29, para 50, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- K Brentwood1.pdf p14, lines 11-14, Lord Black, ibid K p14, para 44, ibid p89, lines 11-13, Lara Fielden, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-13-July-20121.pdf Part G, Chapter 4, para 6.4
1254"I was told early in my political life: any fool can have friends, it takes a wise man to have the right enemies. You have to pick which battles you're going to fight. I'm not in favour of having government policy determined by press editorial, but nor am I in favour, in the real world, of government policy being determined blind to press editorial. You have to choose which arguments you're going to have. One of the elements of that choice is that there's not much point in the government committing I itself to a course of action which, because of press hostility, it is profoundly unlikely to get through the House of Commons. That was in my judgment the position that would have been in if we'd contemplated going down the route of introducing legation and privacy.
¶PART I | The Press and Politicians
Q: It seems that editorials from the more influential papers like the Daily Mail were certainly having an effect on your thinking? A: Of course. That's part of the public discussion and I think it would be – for a politician to deny that the views of newspaper editorials are taking into account in policy making would be both implausible and actually wrong in principle."
¶2.39 A third minute was produced by Mr Dorrell for the Prime Minister on 24 April 1995. This
minute referred to a request from the Prime Minister as to how the Government might present a "do nothing" option.82 Mr Dorrell was asked about this:83 "Q: So can I take it from that that the Prime Minister was beginning to think in terms of a 'do nothing' option? A: I think it's relatively hard to draw any other conclusion from this correspondence. The government was arguing itself to a standstill, and therefore there had to be – it was a reasonable question for him to ask. We had an obligation to reply to Calcutt. We also had an obligation to reply to a Select Committee report, which this response was by then two years behind schedule, so we had to bring the matter to a conclusion somehow."
¶2.40 The third minute accordingly discussed the "do nothing" option. It explored how such a
decision could be presented. The practical options appeared to be: first, making no statement at all, second announcing that nothing was going to be done, or third making a statement which (a) confirmed the intention to legislate the intrusion offences when Parliamentary time permits (italics in the original) and (b) asserted the preference for self-regulation in the wider field of privacy law but underlined that continued public confidence in this approach depended on the effectiveness of the PCC. When asked why the words "when Parliamentary time permits" was in italics, Mr Dorrell confirmed that this was because the real intention was in fact simply not to enact these provisions.84
¶2.41 Mr Dorrell's minute expressed the view that the final option was the "least bad choice" and
that although it would "take a good deal of brazening out, given the history", it could not "be criticised as a substantive retreat, it avoids a head-on collision with the press and it gets the Select Committee off our backs". He went on:85 "Q: Can I suggest that this political debate and the consideration of the announcing "do nothing" and the third option of saying that you're going to legislate when Parliamentary time permits, is that an example of a phenomenon which has been referred to by Tony Blair of not being able to be entirely frank for fear of how matters will be perceived?
¶I A: I think that is a reasonable way of putting it, and I think it's pretty explicit in the
1255minute. I was asked to dress up a 'do nothing' option. One way of doing nothing is to announce that you're going to do nothing, and I made it clear in the minute why, as a member of the government, that didn't seem to me to be an attractive way of announcing it, but clearly the option (c) amounts to the same thing. Q: Indeed it wasn't your preferred way forward, but a variation of the 'do nothing' option was in fact what happened, wasn't it? A: Substantively, yes".
¶Chapter 5 | Media Policy
¶2.42 Thereafter, Mr Dorrell produced a further draft White Paper, which went to a Cabinet
Committee meeting which was held on 15 June 1995. This set out Mr Dorrell's preferred option, namely to legislate on the criminal offences but not the tort, and it encouraged the PCC to raise its game; but noted that the Government had no plans to replace it. No clear consensus appears to have been reached at that meeting, and Mr Dorrell explained in evidence that Ministers had differing views on the appropriate way forward.86
¶2.43 A number of discussions took place thereafter between No 10 and the Department of National
Heritage, but matters were interrupted by the Prime Minister's decision to resign his position as Leader of the Conservative Party on 22 June 1995. Following Sir John Major's re-election, Mr Dorrell moved to the Department of Health.
¶2.44 Mr Dorrell was asked whether he considered that the Government's response to Sir David's second report had been a missed opportunity. Unlike Sir John Major, he did not think so:87 ibid evidence of Jamie East to Joint Committee on Privacy and Injunctions Q336, http://www.parliament.uk/documents/ joint-committees/Privacy_and_Injunctions/JCPIWrittenEvWeb.pdf p35, lines 8-11, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-22-May-20121.pdf http://www.pcc.org.uk/cop/evolving.html para 44, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lord-Macdonald- QC1.pdf; Letter of advice not published http://www.guardian.co.uk/media/greenslade/2012/may/01/rupert-murdoch-newsinternational p67, lines 8-21, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-12-December-2011.pdf pp27-28, lines 11-16, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-11-June-2012.pdf pp29-30, lines 13- 2, ibid p68, lines 18-25, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-13-March-2012.pdf p40, lines 15-19, Gillian Shearer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-26-March-2012.pdf p108, lines 11-19, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-31-January-2012.pdf pp66-67, line 22-2, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-11-June-2012.pdf p37, lines 8-19, Stephen Dorrell MP, ibid p12, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-Cable- MP.pdf pp1-9, Stephen Abell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-–-D8.pdf pp2-3, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood- Annex-B1.pdf p64, lines 9-12, Lord Black, ibid p54, ibid There have been three resignations by previous chairs in the last four years Part I, Chapter 9, para 2.8 Ibid, at para 39
"My basic response to that is no I don't. First of all, at a purely mechanistic level, the ability to do anything fundamental in legislative terms I don't think was there because, as I have already said, I don't think in reality we'd have been able to carry legislation, so there was no opportunity, if that's what you wanted to do. But ... I am not persuaded that if we go down the legislative route here we don't create a problem, a cure that's worse than the disease".
¶Virginia Bottomley MP 2.45 The results of the discussions referred to above were the White Paper, published on 17 July
1995, some two and a half years after the publication of Sir David's second report. The Rt Hon Virginia Bottomley MP, now Baroness Bottomley, as the new Secretary of State for National Heritage, was responsible for its publication. The key points of the White Paper were as follows:88
"(a) The Government does not find the case for statutory measures in this area compelling. It believes that, in principle, industry self-regulation is much to be preferred. (b) The Government has long recognised that there is, in principle, a case for the introduction of [new physical intrusion] offences ... The Government has however so far been unable to construct legislation which in practice would be sufficiently workable to be responsibly brought to the statute book. (c) In considering the results of the consultation [on the feasibility of introducing a new tort of the infringement of privacy] the Government draws two conclusions. I First it does not believe there is sufficient public consensus on which to base statutory intervention in this area. Secondly it strongly prefers the principle of self-regulation ... It therefore has no present intention to legislate a new civil remedy".
¶2.46 In summary, the PCC was to remain, and there was to be no new tort and no new criminal offences.
1256¶PART I | The Press and Politicians
¶2.47 Baroness Bottomley summarised the position she inherited as follows:89 p4, para 2.9, ibid p56, lines 1-3, Camilla Wright, ibid p24, lines 6-14, ibid http://www.pcc.org.uk/cop/evolving.html Operation Caryatid Update as of Thursday 20 July 2006 (not published) p6, NI Group Limited Report and Financial Statement for 03 July 2011; http://www.guardian.co.uk/media/2012/ may/02/news-corp-standards-committee For example, National AIDS Trust; UK Drug Policy Commission; Youth Media Agency p66, lines 3-15, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-13-December-20111.pdf p9, paras 31-32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Closing-Submission-from- Rebekah-Brooks.pdf pp48-51, lines 21-2, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-12-January-2012.pdf; pp110-115, lines 4-1, Hugh Whittow, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012.pdf p40, lines 14-25, CC Andy Trotter, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-hearing-28-March-2012.pdf p25, lines 3-11, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Afternoon-Hearing-28-February-2012.pdf Part J, Chapter 4 ibid p48, lines 9-20, Andy Coulson, ibid p1, para 2(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Rt-Hon- Virginia-Bottomley-of-Nettlestone-signed-30.04.12.pdf Article 4, Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 p11, Stephen Abell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-E1.pdf p5, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-C1. pdf pp6-7, lines 21-3, Lord Black, ibid http://www.pressassociation.com/about-us/shareholders.html Bauer Media Group own both publishing and media brands worldwide that include UK's Bella, Take a Break, that's life! and Q and Kerrang! magazines Part I, Chapter 9, para 3.9 Ibid, at para 45
"Taking over in July 1995, I had little direct knowledge of the conditions prior to Sir David's report. There was confidence that John Wakeham, as Chairman of the PCC, was the man for the moment and would lead self regulation in an authoritative manner with, if necessary, greater menace than before".
¶2.48 She therefore moved forward with the response to Calcutt largely as it had been prepared
under her predecessor. She announced to Parliament that the Government would "for the present allow Lord Wakeham's commission, and the press, to demonstrate that self- regulation can be made to work."90 All three of the Calcutt recommendations for legislation were rejected and instead Baroness Bottomley told Parliament that she had written to Lord Wakeham setting out "further improvements that the Government wish to see both in the procedures of the PCC and in the code of practice itself."91 Those improvements included the creation of a compensation fund from which the PCC would compensate those whose privacy had been violated by the press and a number of changes to the Code to place greater weight on the protection of individual privacy.92
¶2.49 This was a complete victory for Lord Wakeham and the press, delivered through negotiation
with the Government in relation to the improvements that could be delivered through self-regulation. Baroness Bottomley appeared to consider that the Government and Lord Wakeham had an understanding and she presumed it would be honoured on both sides. She said: "I was satisfied that Lord Wakeham, who is not to be trifled with, had got the measure of the role. There were lists of improved reforms and mechanisms."93
¶2.50 This was demonstrated, for example, in February 1996, when a Private Member's Bill on
protection of privacy was brought forward, Baroness Bottomley was keen to honour that agreement. In a letter to the Lord President of the Council she said:94 p8, para 6.1.6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Thomas- Mockridge.pdf pp114-115, lines 23-8, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-8-February-2012.pdf p20, lines 6-9, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon- Hearing-22-May-20121.pdf p7, lines 21-25, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning- Hearing-1-February-2012.pdf p7, lines 10-22, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-4-April-2012.pdf Mr Mohan's second appearance before the Inquiry was in fact the day before Ms Belcher testified. However, he had been given advance notice of her written submission pp82-84, lines 1-25, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-12-December-2011.pdf p34, lines 21-22, Gordon Brown, ibid pp63-68, lines 21-14, ibid p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Amanda-Hirst. pdf p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf http://www.legislation.gov.uk/ukpga/1998/29/section/51 p45, lines 2-8, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-14-May-2012.pdf p71, lines 11-16, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Exhibit-to-Rt-Hon-Baroness-Virginia- Bottomley_letter-to-Anthony-Newton-MP-Re-Private-Members-Bill-12.02.96.pdf pp108-109, lines 24-3, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript- of-Morning-Hearing-24-April-2012.pdf p244, para 356, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen- Abell.pdf pp29-30, para 51, ibid p24, paras 3-4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/Joint-submission-from-Associated- GNM-3-Telgraph-media-for-module-2.pdf p56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf Eberwein, T, 'Germany: Model without Value?' in Eberwein et.al, Mapping Media Accountability – in Europe and Beyond, pp77-78 K Part I, Chapter 9, para 6.11 1817 L Ibid, at para 67 "More importantly, the Bill would cut across our policy on press regulation. It would be strongly resisted by the media, and would undermine the position of John Wakeham, whose authority as chairman of the Press Complaints Commission is predicated on the Government's assurance that it will not introduce legislation provided that he can make self-regulation work. For this reason alone, I think that the Bill should be blocked at Second reading."
¶2.51 By the end of 1996, it was becoming clear that the PCC and the press had not delivered on
all that the Government had asked, and expected, of it in 1995. An internal Department of Heritage review of press self-regulation for the Secretary of State concluded that95 "in certain crucial respects, and as shown by a series of unremedied press abuses, the
¶I weaknesses of self-regulation identified by the first review (covering July 1995-April
1257
- have not been addressed, largely because the industry and Commission have not implemented various recommendations which you [Mrs Bottomley] made".
¶Chapter 5 | Media Policy
¶2.52 The Department of Heritage note recorded agreement with Baroness Bottomley that she
should write to Lord Wakeham to seek assurances that there would be action on breaches without a complaint, as well as incorporation of guidance on the public interest. This note shines a very interesting light on the relationship that had hitherto existed between Baroness Bottomley and Lord Wakeham. Baroness Bottomley was warned that seeking assurances from Lord Wakeham which he was known not to be willing to give would be a distinct change of approach:96 "You should note that this will be a change of approach to the Press Complaints Commission. The two previous-exchanges with Lord Wakeham (i.e. the letters published in July 1995 in Privacy'and Media Intrusion, and those referred to in paragraph 1 above) were agreed in draft by the recipient before they were sent, so that, for example, your letters to Lord Wakeham tended to be limited to recommendations which he personally favoured, which he thought the industry would accept, or which he felt he could reject or defer in a plausible way. Equally, we could ensure that his letters to you were less evasive than they might otherwise have been. I think that the difficulty with this method is that your letters push mostly at open doors, whereas it is the closed ones on which he has not been very forthcoming and which are at the root of the present failures of self-regulation."
¶2.53 It has not been possible to follow these policy developments from start to finish, but the
evidence presented demonstrates first, that the 1995 Government response to Sir David Calcutt's report was developed on the basis of an understanding between the Government and Lord Wakeham (clearly acting on behalf of the press), and second, the limited extent to which even that understanding, so wholly in favour of the industry, was ultimately delivered by the industry or the PCC.
¶Lord Wakeham 2.54 Lord Wakeham said in evidence that he was appointed as a fixer, a man tasked with restoring
the reputation of the PCC with leading figures within Government and of convincing the public of the effectiveness of the PCC.97 In his evidence to the Inquiry, Lord Wakeham summarised the thinking of the industry in relation to his appointment in this way:98 "I think the newspaper industry did not want statutory control and that they accepted they needed someone to be the chairman with a bit of clout, who could stop statutory control by getting the standards up to an acceptable level, and this was my view of what I thought they probably wanted."
¶2.55 Lord Wakeham's particular skills were certainly recognised at the highest levels of Government.
1258Sir John Major said:99 I "I think if you wanted someone who could guide the PCC to a better code of behaviour, it would have been difficult at the time to find anyone better than John Wakeham or more capable of being able to do it. Certainly he made some efforts to do it, but I think at the end John would concede there was more perhaps needed to be done than he was able to do. But it was perfectly credible to believe that he would achieve more than almost anyone in doing it."
¶PART I | The Press and Politicians
¶2.56 Sir John also made clear the political impact of Lord Wakeham's appointment (as well as the
intelligence of the industry decision) in these terms:100 "I mean, those who were at all queasy about it would then say, "Look, here is one of our own, a very respected former Cabinet Minister who is actually chairing the PCC. Therefore, why don't we wait and see how well he gets on? Why rush ahead with legislation?" So his appointment did have a material effect upon views in the Parliamentary party."
¶2.57 Lord Smith of Finsbury, the Secretary of State for Culture, Media and Sport between 1997 and
2001, noted that the appointment of Lord Wakeham as Chair of the PCC represented a sea change in that organisation.101 He explained that Lord Wakeham moved to look seriously at how the powers of the PCC might be strengthened, stating that this was the first time that the PCC had demonstrated a preparedness to make real change. This, he suggested, led policy makers to be sufficiently impressed to remove the threat of concerted political action.102 This he asserts:103 "effectively ensure[d] that the Calcutt proposal for statutory intervention did not have political legs."
¶2.58 Certainly, Lord Smith gave evidence that on his assumption to office, press reform was no longer an issue accorded any priority.104
¶2.59 It may be argued that this was the purpose of Lord Wakeham's appointment; in the words
of Lord Smith, to "draw the sting" of political pressure for greater and more far-reaching reforms. Lord Wakeham was regarded as an able political operator and "was outstandingly skilful" in his efforts at reforming the PCC.105
¶2.60 The purpose of his appointment, however, has been open to question. On the one hand, it is
argued that it was to make use of his finely tuned political antennae to deliver the minimum reform necessary to placate the proponents of greater press reform and preserve as much of the industry influence and control of the system of press self- regulation as possible. On the other hand, it is contended that this was a genuine attempt at reform, that ultimately though well intended fell short of delivering real and effective change. The third possibility is that Lord Wakeham's tenure as Chair of the PCC fell somewhere between those two stools.
¶2.61 The role of Lord Wakeham is altogether more complex and nuanced than as the fixer he claims
himself to be. He was also appointed as Chair to make certain that the PCC was satisfactory to the industry it sought to regulate. As the Report has noted, Lord Wakeham gave evidence that he was a strong supporter of both press freedom and self-regulation:106 "I don't think you could be a chairman of a body that was running a system of self-
¶I regulation unless you believed in self-regulation. I think that would be a bit difficult.
1259And I can't imagine you being a very good chairman of a Press Council if you didn't believe in press freedom. I would have thought they were pretty self-evidently things that were required for the job."
¶Chapter 5 | Media Policy
¶2.62 The key to Lord Wakeham's success was that he provided the Government with a solution
to what had increasingly become an intractable problem. By the time Mr Dorrell became Secretary of State, the Government may have privately abandoned proposals to implement the recommendations of Sir David Calcutt's second report. It seemed to those in Government, including Mr Dorrell, that the most effective way forward was through reform of the PCC itself. Lord Wakeham had the personality, status and apparent willingness to take that reform forward to the satisfaction of Government.107
¶2.63 It is testament to the political skills of Lord Wakeham that, in this particular context, the
PCC emerged as a potential solution to the issue of privacy.108 Additionally, it was fortuitous for Government that Lord Wakeham moved quickly to introduce reforms to make the PCC more credible. These included, for example, the strengthening of the position of the Privacy Commissioner, and the appointment of men of stature to key positions within that organisation, about which Lord Wakeham said:109
"Well, I suppose this is the flipside of me being appointed as the chairman. I mean, things were changing and here it seemed to me that it was important to try and get the Press Complaints Commission more highly respected and therefore to get the right people and have the right people appointing them seemed to me to be a move in the right direction.'"
¶2.64 By the time that Baroness Bottomley took over as Secretary of State, it is clear that Lord
Wakeham was successfully influencing Government policy, very much to the advantage of the PCC and the press without distinction between the two.
¶Sir John Major 2.65 The first Calcutt report was published a few months before Sir John Major became Prime
Minister, but the second report was published in January 1993 when he had been in that position for a number of years and had, of course, been returned to power following his election victory in April 1992. Asked about his direct role in responding to Sir David's second report, he said this:110
1260"Well, I didn't acquire direct ownership of the issue, certainly not. It was one of 20 or 30 – there are 30 to 40 issues a day that cross a Prime Minister's desk. The fact of the matter is that he or she can almost never have direct ownership of an issue. It has to be sub-contracted to the appropriate Secretary of State and the appropriate Cabinet committee and that is what happened with the Calcutt Report ... The day- to-day detail of examination, of what is a very complex matter ... was predominantly in the hands of the Secretary of State, although when things were snarled up, they I were reported back to me and I became sucked in, in terms of expressing an opinion and inviting people to go back and look at something again or recognising that it wouldn't work".
¶PART I | The Press and Politicians
¶2.66 Sir John was asked in evidence about the three 'strands' to the Calcutt recommendations. As to the recommendation for an independent tribunal, he noted:111
"The grounds of principle we had in mind was the freedom of the press to comment. That was why we regarded the idea of a statutory tribunal as very much as a last resort and something that we were not at the time attracted to."
¶2.67 As to the proposed privacy tort, he noted:112
"There were several difficulties with the tort of privacy. One of the difficulties was that it was very easy to portray a tort of privacy as being a piece of legislation that favoured people who were relatively well off and relatively well organised but without complete access to legal aid for everyone would not be available to be used by the vast majority of people ... The other point about the tort of privacy was that it became apparent in the deliberations of the Cabinet subcommittee was that there was a very substantial philosophical difference within the Conservative Party, within ministers, as to the desirability of a tort of privacy. Some thought it would be very difficult to frame and might only be unfairly framed and that would be unfair on the media. Others thought it would provoke such hostility that it would dwarf everything else that the government were doing. To that extent, some of them were very wary. Others were simply philosophically unsure that it was the right time and right place to actually go down that route. There was a universality of opinion across the press that the tort in particular would be very damaging to investigative journalism. That was their view and they expressed it very forcibly in the columns of their newspapers ... It was a universality of opposition that we thought would spill out beyond opposition to that into opposition on wider areas of policy as well. The government would, in effect, become tainted. I think some colleagues felt that and there would be a general opposition to what the government were doing and not just an opposition focussed on that particular piece of legislation and that particular provision."113
¶2.68 As to the proposed criminal offences:114
"I asked the then Secretary of State why he felt that the press weren't very concerned about the criminal clauses and he said that was what they had told him in discussion. I don't suggest that they were enthusiastic; I suggest that there wasn't a last-ditch determination by the media to have fought against that".
¶2.69 Asked why, in general terms, the Government had been unable to implement any of the main I Calcutt recommendations, he said as follows:115
1261"The principal reason, at the end of the day – not the only reason, but the principal reason, at the end of the day, why we were unable to enact Calcutt is that we could not have got it through the House of Commons. If you cannot get something through the House of Commons, you are powerless. That is the difference between – a government with a large majority can force something through. A government with a small majority – and in the 1990s we had a small majority to start with and it shrank
¶Chapter 5 | Media Policy
to a majority of one – makes you very dependent upon the whims and fancies of a handful of Members of Parliament in your own party, quite apart from the opposition you can expect from parties other than your own".
¶2.70 He also noted that the appointment of Lord Wakeham as Chairman of the PCC had also had a significant effect:116
"It would have been difficult at the time to find anyone better than John Wakeham or more capable of being able to do it ... I mean, those who were at all queasy about [statutory regulation] would then say: 'Look, here is one of our own, a very respected former Cabinet minister who is actually chairing the PCC. Therefore, why don't we wait and see how well he gets on? Why rush ahead with legislation?' So his appointment did have a material effect upon views in the Parliamentary party".
¶2.71 Asked about the 'do nothing' option contained in the minute of 24 April 1995, Sir John gave
evidence as to why Mr Dorrell was asked to explore this option, and why it was the option eventually chosen:117
"We couldn't carry anything through Parliament, and at the time, I think we had a majority of – I think our majority had fallen to single figures by then. So we were talking about a majority of nine and arguably the most contentious piece of legislation that anyone could have seen for quite a long time."
¶2.72 In his written evidence, Sir John expressed the view that the failure to implement any of the
Calcutt review recommendations was a 'missed opportunity'. Asked to elaborate on this in oral evidence, he said:118
"Well, I do. I do feel that. I think many of the things that have happened subsequently that have led to this Inquiry may not have happened if we had been able to enact, and I think in the interest if the good majority of the press, the press wouldn't have fallen into the disrepute in which the criminal activities have laid it. If these changes had been made, I don't think many of the things that subsequently happened would have happened. So in that sense it was a missed opportunity. But it was a missed opportunity which was unavoidable. It wasn't a missed opportunity because we shirked it. It was a missed opportunity because we couldn't do it" (emphasis added)
¶Reflections 2.73 The triumph of the 'do nothing option' demonstrates the way in which the press and the
politicians have worked together on questions of media policy. In this case, the context was of I a reactive policy: both the Government and the industry leaders were responding to external events.
¶2.74 First, doing nothing is both recognisable and perfectly legitimate in very many areas of policy
1262and politics; there are many competing demands on the political agenda and public concern about press standards was, in a pre-internet age, afforded little publicity. Doing anything, particularly in this area, is always more difficult. Second, the press objected to the proposals both vociferously and comprehensively, deploying the megaphone at full volume. Third, they overtly attacked the authority of the Government to take any action at all in relation to the
¶PART I | The Press and Politicians
press, mired as it was in 'sleaze' allegations. Those allegations had of course been considerably amplified by the press itself; holding power uncomfortably to account, no doubt, but not necessarily disinterestedly. Fourth, without cross-party Parliamentary consensus and a powerful Government mandate, the lobbying by the press was impossible to withstand. Fifth, the PCC had appointed a Chair, in the person of Lord Wakeham, who was himself a skilled politician and advocate, and who had developed alternative proposals which appeared sufficiently plausible to be capable of being presented to the public as an adequate improvement. It is little wonder that Sir John Major, personally undermined and faced with a very small majority in the House of Commons, found himself with no alternative to the 'do nothing option'.
¶2.75 I have no doubt that the success of this strategy would have left an indelible impression on the press and politicians alike.