The first report of Sir David Calcutt QC

The first report of Sir David Calcutt QC

¶5.1 It is clear that neither the MacGregor Commission nor the limited and begrudging response

of the industry to its recommendations did much to stem the increasingly growing sense that self-regulation of the press through the offices of the Press Council was not an effective means of limiting harmful press behaviour. Rather, they fostered a polarisation of the debate on the role of the press in British society and the most effective means of regulating what many believed to be the most harmful aspects of press behaviour. Indeed, the period between the publication of the report of the third Royal Commission and the formation of the Press Complaints Committee in 1990 (following the publication of the first of the reviews of the press by Sir David Calcutt) witnessed some of the most egregious examples of press

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misconduct. These included allegations of cheque book journalism in relation to the Yorkshire Ripper, Peter Sutcliffe, defamatory allegations made in The Sun about the singer, Elton John (which led to the award of record damages for libel in 1987), the coverage of the television presenter Russell Harty's illness and subsequent death in 1988, and the coverage of the alleged behaviour of Liverpool football fans during the Hillsborough disaster in 1989. Some of these examples of breaches of privacy and defamatory reporting became stories in their own right. The growing list of high-profile incidents involving harmful press behaviour tested public and Parliamentary support for the Press Council and led to a 'crescendo' of criticism.43

¶5.2 The corollary to this was the continued erosion of public support for voluntary self-regulation.

It should not be doubted that contemporaneous arguments about journalistic freedoms and the most effective means of regulating the British press were amplified through the wider travails and industrial disputes that afflicted the industry during this period. These paralleled a growing ideological divide in British politics. Back in 1974, the Labour Party had published

¶D a report entitled The People and the Media which set out its thinking on the British media

and communications markets. It proposed that a joint regulatory code should be developed for both broadcasting and the press, and that public confidence in the regulator should be fostered through greater transparency, regular public review of that body and a legally enforceable right of reply.44 The report also considered the state of the press market and, perhaps unsurprisingly for a document produced by a political party which was not always favourably characterised in press reporting, bemoaned a lack of accountability and bias in the press. More significantly, The People and the Media was also strongly critical of the existing system of self-regulation through the Press Council; whilst the Governments of Harold Wilson and James Callaghan did little to change the system of self-regulation for the press, the report marked an fundamental shift in political support for the Press Council, which had previously benefited from the tacit support of both the Labour and the Conservative Parties.

¶5.3 The Labour Party was certainly not alone in its criticism of the Press Council. The Campaign

for Press Freedom (which would later be re-constituted as the Campaign for Press and Broadcasting Freedom (CPF)) also advocated a complete overhaul of regulation of the press. Perhaps unsurprisingly for an organisation that had its roots in the wider Labour movement, the CPF pointed to what it regarded as unnecessary and destructive hostility directed at the trade unions by newspaper proprietors. The CPF also sought to lay the blame for the lack of real and meaningful reform at the door of the Press Council and the system of self-regulation itself.

¶5.4 So concerned was the CPF at the perceived injustices of the existing system that it established

its own Inquiry into the Press Council and matters relating to it. When it was finally published in 1983, the CPF report (known as the Robertson Report on the Press Council after its Chairman Geoffrey Robertson). The Robertson Report was unsurprisingly critical of the performance of the Press Council, but recommended nevertheless that the organisation be granted one final opportunity to reform itself and demonstrate its efficacy as a regulator.

¶5.5 The conclusions of the report were unambiguous about what such reforms should entail.

It recommended substantive changes to the Press Council and indeed to the existing law. Recommendations for reform of the Press Council included the further and oft repeated call for the development of a published code of conduct, auditing powers to ensure the maintenance of high standards, as well as powers, backed by contract, to direct prominent publication of corrections.45 The Robertson Report also recommended that the Press Council be given responsibility for the training and professional development of journalists. However,

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this report also went much further in its recommendations than just proposals for the reform of the Press Council. It also recommended substantive legislative change. Proposals put forward by the CPF included legislation to establish a statutory press ombudsman, to provide a defence in law for investigative journalism, a Freedom of Information Act and changes to the laws on libel and contempt.46

¶5.6 Reference has already been made to examples of press misconduct in the 1980s, but it would

be incorrect to suggest that the Press Council was always silent in these circumstances. Indeed, under the leadership of its final Chairman Sir Louis Blom-Cooper QC, the Press Council made significant efforts better to represent ordinary people and the victims of press mistreatment.47 However, there is little evidence to suggest that such rulings were respected or observed by the industry. Indeed, in material submitted by Sir Louis to the Inquiry, he has made clear his belief that the Press Council ultimately failed because its rulings were routinely, though not always, traduced and undermined in the pages of newspapers, thereby only serving to undermine public confidence in that body.48 D

¶5.7 The perceived inability of the Press Council to take credible and effective action in these

cases of press mistreatment further damaged its reputation. Increasingly, it was regarded as ineffective both as a regulator of press conduct and as a means of redress for those who had suffered harm. Consequent opprobrium at the Press Council was not restricted to those who were the victims of press misconduct, but also extended to policy makers and to some of those involved in the industry. Already in 1980, the NUJ had withdrawn its membership from the Press Council on the grounds that it was not only incapable of internal reform but also was not able effectively to improve the behaviour of the press.

¶5.8 Parliamentary concern at the behaviour of some parts of the press was such that in 1989

two Private Members' Bills were put before Parliament. These were intended to address the intrusive practices conducted by some journalists and the lack of redress available to those who had been the victims of them. The first of the two Bills was laid before the House of Commons by a Conservative MP, John Browne. His Bill proposed the introduction of a privacy tort, envisaged as a means of helping to protect individuals from unwarranted intrusion by the press. The second such Bill was introduced by Tony Worthington, a Labour MP. This proposed the creation of a statutory Press Commission Appeal Tribunal with legally enforceable sanctions. Introducing his Bill to Parliament, Mr Worthington expressed the hope that it would improve access to redress for those who had been the victims of press mistreatment and speed up the process of dealing with complaints.

¶5.9 These Private Members' Bills were not the only attempts by Parliamentarians to tackle

perceived press wrong-doing and the seeming inability of the Press Council to police press excesses effectively, although they were the last before the eventual appointment of Sir David Calcutt in 1989. For example:49

• In June 1981 the Labour MP, Frank Allaun, presented a Bill 'to give members of the public the right to reply to allegations made against them in the press, or on radio or television'. In December 1982, Allaun introduced a second right of reply Bill to the House of Commons.

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• In January 1982, the Conservative MP, Teddy Taylor, asked the Attorney General to review the remedies available 'to individuals, groups and organisations in the event of newspapers or the broadcasting media publicising inaccurate or misleading reports, and legal remedies available to newspapers and broadcasters in the event of industrial action looking to influence their content.'
• In June 1984, Alfred Dubs MP (Labour) pressed unsuccessfully for a Bill to make newspapers declare payments to non-regular contributors. The Labour MP Austin Mitchell also introduced a Bill requiring a right of reply.
• In 1987 a number of yet further attempts were made to introduce legislation to curb the worst excesses of press misbehaviour. These included the movement of a debate in the House of Lords by the Labour Peer, Lord Longford, on 'Tabloid press: moral standards',

¶D the introduction of an Unfair Reporting and Right of Reply Bill by the Labour MP,

¶Ann Clywd, and the introduction of a Right of Privacy Bill by the Conservative MP, Bill Cash.

¶5.10 The Government responded to this continual build-up of pressure for both the reform of the

Press Council and the introduction of effective curbs on the worst excesses of press practice by appointing a Departmental Committee, chaired by Sir David Calcutt QC, to investigate the matter. Sir David was asked:50

"...to consider what measures (whether legislative or otherwise) are needed to give further protection to individual privacy from the activities of the press and improve recourse against the press for the individual citizen."

¶5.11 Sir David published his report on Privacy and Related Matters in June 1990. It is clear from the

content of the report that the members of the Committee considered its remit to go beyond a limited discussion of privacy and encompass the existing system of press regulation.51 The final report was highly critical of the Press Council and set out in clear terms the failings of that organisation. These included: its ineffectiveness as an adjudicator; the lack of confidence in its independence from the newspaper industry; its tendency to reject large numbers of complaints; the lack of clarity in its selection and categorisation of complaints; the time taken to resolve contested cases; and the lack of effective sanctions in instances of proven breach.52

¶5.12 However, contrary to the expectations of a number of contemporary commentators, Sir David

Calcutt's first report did not advocate the introduction of statutory controls for the press. Rather, it recommended that the Press Council should be abolished and replaced with a new self-regulatory organisation; the Press Complaints Commission (PCC). The report argued that the press be given:53

"...one final chance to prove that voluntary self-regulation can be made to work. However, we do not consider that the Press Council, even if reformed as proposed in its internal review, should be kept as part of the system. We therefore recommend that the Press Council should be disbanded and replaced by a new body, specifically charged with adjudicating on complaints of press malpractice. This body must be seen to be authoritative, independent and impartial. It must also have jurisdiction over the press as a whole, must be adequately funded and must provide a means of seeking to prevent publication of intrusive material. We consider it particularly

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important to emphasise the break from the past. The new body should, therefore, be called the Press Complaints Commission."

¶5.13 The report recommended that this new body should deal with the numerous and substantial

concerns that had been raised around the behaviour of some parts of the press. In contrast to the three Royal Commissions, the Calcutt Committee did not make a large number of recommendations for specific reforms. Rather, it set out a framework of measures that the Committee regarded as the necessary elements of an effective self-regulatory regime. The new PCC would have 18 months to demonstrate "that non-statutory self-regulation can be made to work effectively" by implementing appropriate reforms.54 In this report, Sir David recognised that such change would pose a significant challenge for the press but was adamant that if the challenge should not be met, namely 'a less than overwhelming rate of compliance with the Commission's adjudications...[or]...large-scale and deliberate flouting of the code of practice by the press or a total collapse in standards,55 then "a statutory system for handling complaints should be introduced."⁵⁶⁵⁶ 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. citShow full note D

¶5.14 Sir David's report made clear that the primary function of the PCC should be to provide effective

redress for complaints made by members of the public against the press, including the ability to consider allegations of unfair treatment and unwarranted infringements of privacy. In addition, the Commission was to "publish, monitor and implement" a comprehensive code of practice for the guidance of both the press and the public, as well as to operate a 24 hour hotline for complainants.

¶5.15 Sir David also made clear that the adjudication of complaints should be a clear and fast process

and that, where a newspaper was demonstrated to be in breach of the code, an apology should be given to the complainant. Sir David also recommended that the PCC should be able to advise on the form and placing of replies or corrections. It is noteworthy that Sir David's report made no mention of sanctions and instead placed emphasis on the preparedness of the press to adhere to the adjudications of the PCC.

¶5.16 In addition, Sir David's report made a small number of specific recommendations about the

structure and function of the PCC, intended to address concerns expressed by the three Royal Commissions as to the independence of the organisation. The report recommended that the PCC should have an independent Chairman supported by a Commission made up of no more the twelve Commissioners. These would be appointed by a separate independent appointments commission which would select and appoint on the basis of merit alone.

¶5.17 As had been the case after the second Royal Commission (but not other reviews less favourable

to the press), the response of the industry was swift. The Press Council was duly disbanded, and in the spring of 1990 the five publishing associations in the UK (the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers Association, Scottish Newspapers Publishers Association and the Scottish Daily Newspaper Society) worked together to establish the Press Standards Board of Finance (PressBoF) for the specific purpose of funding the PCC. The PCC was itself incorporated on 1 January 1991 and, in a nod to the history of the self-regulation of the press as well as in recognition of his very real qualifications for the post, Lord McGregor was appointed as its first Chairman.57 However, the full Commission was

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appointed directly by Lord McGregor, in direct contravention of the Calcutt Report's specific recommendation that there should be a fully independent appointments process.58