Leveson's central recommendation is a contradiction in terms

The phrase “independent self-regulation,” used by Lord Justice Leveson, was presumably crafted to make his proposals seem less threatening. It’s certainly having the desired short-term PR effect: it’s been unthinkingly parroted in all the instant media reaction. But it may end up being an own goal.

Because if you actually stop to think about it, it’s nonsense. Regulation is either independent of the industry, or it’s self-regulation. It can’t be both. You’d expect a High Court judge to know that, wouldn’t you?

Similar troubling syntax is employed on the alleged distinction between “statutory regulation” and the “statutory underpinning” of the supposed “independent self-regulator.” There is, in fact, no essential difference. Any legislation, “underpinning” or otherwise, will, as the report makes clear, have to set a series of statutory criteria for a regulator which will amount to government involvement in the affairs of the press.

At the very least it establishes a precedent, a crack in the door, which future governments will have no difficulty in widening. Indeed, at worst, the criteria could be immediately drawn in ways which would at once establish state control over some aspects of the press.

Leveson himself also recommends that if newspapers do not cooperate with this approach, then there should be a swift move to a statutory “backstop regulator” – that is, full state regulation of the kind almost no-one claims to want.

Leveson’s choice of words paradoxically underlines the central point made by the press – that there is no nice-sounding Third Way. The press is either regulated by the state, or it isn’t.

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If the National Union of Journalists won't defend journalism, what's the point of it?

Chilling: Chris Frost

I’ve been a member of the NUJ for about ten years. To be honest, there was never all that much point. But I support the principle of trade unionism, I was grateful for the NUJ’s backing during the Hutton inquiry, and I valued the work it did for people who couldn’t stick up for themselves, particularly on local newspapers.

I’m now resigning from the NUJ in protest at what may be its existential mistake in failing to stick up for its entire membership. The union has decided to back a statutorily-underpinned regulator of journalists – a move taken without the slightest consultation with members, no doubt because they knew we would be against it.

The clincher for me was this chilling piece in the Press Gazette from the head of the NUJ’s “ethics council,” Chris Frost (pictured above), defending the union’s position. Mr Frost, an academic at Liverpool John Moores University, writes:

“The right to free expression…cannot be absolute…the key is to allow as much freedom as is concomitant with the rights of others balanced by the public interest…

“If I buy [a newspaper], I expect the news to be reasonably accurate, gathered ethically and a fair selection of the day’s important events…Those who say free expression is more important than those standards…make it clear they don’t understand free expression.”

Yes, you read that right: the union representing journalists wants a regulator to impose its idea of what constitutes a “fair selection of the day’s important events” on the press. No doubt by this Mr Frost means that the Daily Mail should be forced to run fewer pieces about housing benefit claimants and more about children suffering under evil Tory cuts. But it could just as easily be used by some government to demand that the press reports more on its successes and less on its failures.

The issue of “ethically gathered” news is a minefield, too. Had my newspaper not paid for a disc containing MPs’ expenses, the most you’d have known about that scandal would have been ten thousand sheets of blacked-out paper. We had the freedom to publish, and to be damned if we’d got it wrong. If some regulator had had to rule on whether we were being “ethical” or not, it would have held up the story, and given MPs another avenue to block us. (It’s generally forgotten now that they had a serious go at the paper at the beginning of the saga, before the sheer weight of revelation about their greed overwhelmed them.)

Even the requirement for accuracy, which seems uncontroversial enough to outsiders, is quite complicated. Newspapers should (and usually do) make strenuous efforts to be accurate – but we won’t always succeed. We are often shining a feeble torch in a large, dark cupboard. People try to mislead us or give us partial information. Many of the issues we report on are the subjects of bitter dispute, with no one “accurate” version. That’s often precisely why they are newsworthy.

The prospect of some regulator adjudicating when all this can override freedom of expression is terrifying.

On the subject of that all-important virtue, accuracy, I was interested to note that Mr Frost also claims:

“Concerns that stronger regulation would bring more interference are simply not supported by evidence. In 20 years of the Press Complaints Commission and more than 30 years of the Press Council before it not one complaint was made about any newspaper or magazine exposing malpractice by those in power.”

Is he serious? I alone have had at least a dozen PCC complaints from people in power whose malpractice I’ve exposed – like Lutfur Rahman, the extremist-linked mayor of Tower Hamlets (he lost on all the substantive points – but is no doubt looking forward to the rematch if some new regulator comes along.) I don’t know too many reporters in my line of work who haven’t had complaints about them to the PCC from those in power!

Mr Frost also repeats the canard that the PCC has been “brutally proved” by the hacking scandal to be “unfit for purpose.” But what happened at the News of the World, hideous as it was, was not a failure of the PCC or of regulation. There was already a rather strong regulation against hacking people’s telephones – the law. The problem was the failure of the police – many of whom were clearly in News International’s pocket or even on its payroll – to enforce the law.

No press regulator, however strongly constituted, could possibly have had the power to kick down doors at newspapers, seize emails and interrogate journalists under caution. Those are police powers; powers which the police had, but refused to exercise. The PCC’s only failing in the whole saga was to get involved at all. It should have said that the investigation of criminality was outside its power, and called in the cops.

Mr Frost’s claim that “almost everyone believ[es] there needs to be an improvement in the regulatory system” sadly flunks the truth test, too. Seventy-one per cent of the public, according to a recent poll, say that the priority should be better enforcement of the existing law. Perhaps what we really need is a regulator to enforce greater accuracy on third-rate media academics.

Now the NUJ is not a very important institution – but propaganda value of its stance to our enemies is considerable. If even the body supposed to represent journalists won’t defend journalism, what’s the point of it?

UKIP fostering scandal: has Labour just lost the Rotherham by-election?

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The stunning decision by Rotherham Council to remove three children from a foster home (where they were happy) because the foster parents support UKIP shows that the “culture war” here in Britain is being waged not by the Right, but by the Left.

Joyce Thacker (above), the council’s director of children, who said her decision was influenced by UKIP’s sceptical take on multiculturalism, is the mirror image of those mad American right-wingers who want to outlaw abortion clinics and homosexuals. Unlike them, though, she is in a position of power. Hers is the latest in a series of increasingly chilling actions of this nature taken by bien-pensant officials.

Last week, Adrian Smith, a Christian, won a High Court appeal against his demotion by Trafford Housing Trust for expressing opposition on his private Facebook page to gay marriage in church. (Even most liberals do not believe that churches should be forced to conduct gay marriages on their premises!) Somebody else was convicted of racially abusing her neighbour by calling her a “stupid fat Australian.” The week before, a bus driver won a court case against his sacking for being a member of the BNP – even though he had never acted in a racist way at work, no-one had ever complained and he was considered a “first-class employee.”

The special interest of the Rotherham case – and no doubt why Ed Miliband was so quick to condemn it – is that in five days’ time the town has a parliamentary by-election. Labour is already in a bit of trouble here – about 80 of the 114 members present at the meeting to select its candidate walked out in protest after the favourite, local man Mahroof Hussain, was excluded from the shortlist. Many of them said they wouldn’t campaign for the woman Labour chose, Sarah Champion.

UKIP only got 6 per cent of the vote in Rotherham at the general election – but they came second in another byelection in next-door Barnsley last year. Like many working-class Labour areas, Rotherham showed an undercurrent of disaffection with the party, even before its MP was forced to resign for fraud. In the general election, the total broadly “Right-wing” vote in Rotherham (Tories, UKIP, BNP and an anti-Labour independent) added up to 39.3 per cent, only 5.3 per cent behind the Labour vote.

In a low-turnout by-election with big protest vote potential, the fostering decision by a Labour council could just be the kind of issue UKIP might use to pull off an upset. It’s still much more likely that Labour will win, of course. UKIP is notoriously crap at the ground game of fighting elections. But if I was them, I’d pile everything I have, and more, into Rotherham.

 

Lynton Crosby: stop kidding yourselves

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In the London mayoral elections of both 2008 and 2012, one of the main reasons Labour lost when it could well have won was that the party and its supporters quite simply refused to engage with reality.

There were plenty of true and serious arguments they could have made against Boris Johnson. Instead, they claimed that he was a racist, an elitist, a member of the “Tory hard right,” “George W.Boris,” “Norman Tebbit in a clown’s uniform,” and so on, themes without any credibility or traction among the vast majority of voters.

Now the architect of those two against-the-odds mayoral victories, Lynton Crosby, has been asked to see if he can pull off a similar trick for the Tory re-election effort in 2015. And in their reactions to the news, the left – along with some Tories – appear to be suffering the same fatal lack of contact with the real world. Crosby, according to this necessarily anonymous crowd, is a fanatic who will bully a helpless Prime Minister into a right-wing, immigration-led “dog-whistle” campaign aimed at the core vote.

There is no doubt that Crosby is personally quite right-wing. Horrors! And God forbid that anyone should talk about immigration – it’s not as if any voter cares about that, is it? But I’ve never heard him say anything even remotely racist. And the caricature of the one-note “dog-whistler” does not survive thirty seconds’ examination of the campaigns Crosby actually ran for Boris.

Boris simply could not have won either of his election victories on the basis of hard-right or core-vote pitches. In lefty, liberal London there isn’t anything like a big enough Tory core vote. Boris’s campaigns – run by Lynton Crosby – were broad and catholic. Johnson won, both times, because he and Lynton Crosby secured the votes of hundreds of thousands of people who would ordinarily vote Labour or Lib Dem.

In 2008, for instance, Johnson’s supposed “dog-whistle” campaign included supporting an amnesty for illegal immigrants – something far to the left of even current Labour policy. It is alleged that in the 2012 election, Boris “lurched to the right on immigration, making it a campaign issue.” It is true that Boris gave one interview in which he urged ministers to “get a grip” on immigration. (How unreasonable!) But he did not make it a campaign issue against Ken Livingstone and immigration barely featured in the campaign.

In his exciting role as the spider at the centre of the web, Crosby is also alleged by one journalist to have been behind the stories that did so much damage to Ken in 2008 and 2012: the scandal at the London Development Agency, and the great man’s tax avoidance. I was the reporter who broke both stories, and I did not get either of them from Lynton Crosby or anyone connected to the campaign. I actually got them both from, you know, investigative journalism, developing sources, Companies House trawls of Ken’s personal company accounts, and so on. It does still happen! My LDA stories kicked off in early December 2007, almost a month before Lynton Crosby even joined the Boris campaign. And in 2012, not until weeks after my tax story, published in February, did Team Johnson decide to go heavy on it. Livingstone was always keener on negative campaigning than Johnson ever was.

In February, indeed, Boris was still barely campaigning at all. Various anonymous ex-City Hall staff have claimed that Johnson would have done better in 2012 had he taken less notice of Crosby and reached out to unsympathetic groups. The fact, however, is that until Lynton Crosby took full control of the campaign, Boris was losing. Polls put him behind, or level with, Ken. As I put it in the Spectator in March:

“Boris’s City Hall staff tried to position him as almost a non-political figure…he spent a lot of time opening things and making jolly, small and medium-sized announcements about subjects that don’t matter to most voters.

“One day last year, as Labour was campaigning hard on violent crime, which had just started to tug faintly in the wrong direction, I looked on the City Hall website and found that Boris had been… er…“meeting Peter Andre to help recruit Reading Ambassadors” and…well… “joining his Street Party Ambassador, Barbara Windsor, at the ‘Big Lunch’ festivities on the South Bank.” The top item on the website’s front page was “London’s bees are in trouble. Find out how you can help them.”

“Incumbents lose when they get too wrapped up in the administrative and adulatory aspects of the job and forget the politics. Livingstone lost [in 2008] when he majored on what, for voters, are second-order issues like the environment, while having nothing to say about transport or crime. That’s not a mistake he’s making now. But throughout January, as Ken made headway with a simple, populist – if totally fraudulent – pledge to cut Tube fares, Team Boris allowed its opponent the pitch.”

As soon as Crosby took full control of the campaign, Boris started campaigning – and winning. The real secret of Livingstone’s failure was not the baroque conspiracies his supporters always try to weave around Crosby, the Evening Standard, negative campaigning and various other excuses: it was that Ken was unfit to be elected. And the real secret of Crosby’s success is not his supposed blowing of the dog-whistle. (How revealing that phrase is of some liberals’ contempt for ordinary voters, by the way, seeing them as animals who can be whistled to heel.)

Crosby’s most valuable skill, as even his opponents agree, is the ability to instil direction and confidence. And God knows, the Tories need some of that.

 

Hacking claims against me were 'attempted extortion', says High Court judge

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The case involved the business set up to manage Lord Coe’s commercial interests

A High Court judge has today savagely criticised a man who accused me of hacking into his emails. In a judgment published this morning Mr Justice Tugendhat describes the allegation as “an attempt at extortion” and “without any basis in logic or fact.”

The claimant, a gentleman called Peter Abbey, dropped the allegation of hacking, accepting it to be groundless, before the case even reached court. But he went all the way to trial with a claim for breach of confidence against me and my then employer, Associated Newspapers, publishers of the Daily Mail, the Mail on Sunday and (at the time) my then paper, the Evening Standard. This claim was today dismissed by the judge as an “abuse of process” in some of the most scathing language I have ever seen.

It is, I think, an important judgment, and not just for us – but for the whole of the media, as a deterrent against all future chancers and ambulance-chasing lawyers who feel emboldened, in the post-Leveson climate, to try their luck with worthless claims.

First, some background: Peter Abbey is a slightly upmarket version of Arthur Daley, a man who for the last thirty years has left behind him a long trail of business failures, bankruptcies, angry creditors, County Court judgments and unpaid bills. Mr Abbey is a friend and former business associate of the chairman of the London Olympics, Sebastian Coe. In 2007, Abbey effectively ran a company called the Complete Leisure Group (CLG), which controlled Lord Coe’s commercial interests and image rights.

In September 2007, in the London Evening Standard, I published extracts from a series of emails in which Mr Abbey admitted that Complete Leisure Group had “pissed away” £400,000 of Lord Coe’s money. “I am not happy having this in writing for obvious reasons,” pleaded the great businessman. “This is about the worst situation I have had to deal with and we are trying to solve it quietly. DO NOT circulate this PLEASE!!!”

Other emails revealed that CLG’s auditors were refusing to sign off its accounts, and that its directors (including Lord Coe) were being threatened with criminal prosecution for failing to submit those accounts to Companies House. Finally, some of the crisis-ridden emails were copied to Lord Coe’s Olympic-funded personal assistant at Locog, Susie Black, who had a CLG email address – and who arranged meetings for CLG. That cast doubt on Locog’s public assurances that Coe kept his commercial money-making interests strictly “ring-fenced” from his public duties.

The first thing that several of CLG’s investors knew of all these difficulties was when they read about them in my article. The company subsequently lost many of those investors a great deal of money. Happily, however, it is now about to make Lord Coe himself a very rich man indeed – with a reported sale of CLG to Chime Group for £12 million. (Coe was not a party to Abbey’s legal action and the judge made no finding against him.)

Mr Abbey declined the opportunity to comment before publication, and didn’t make so much as a phone call of complaint afterwards. We heard nothing at all from him, in fact, for almost four years.

Then, in August 2011 – just as the hacking scandal was reaching its climax – Mr Abbey heard the distant tinkle of the cash register. His solicitors wrote to me and the Standard, accusing me of hacking the emails, threatening to call in the police and demanding £100,000.

As even Abbey now accepts, I didn’t hack the emails. I was passed them by another journalist, Ed Howker of Channel 4 – who’d just finished a programme on Coe but had got the emails only a day or two before transmission, too late to rework his film. As the judgment makes clear, Ed didn’t hack them either. He was leaked them by a confidential source, of whose identity I satisfied myself before using the emails.

Abbey denied that he was motivated by damages. In our opinion, however, he calculated that the very mention of the H-word in the post-News of the World climate would scare us enough to pay him some money to go away. He issued a writ with the allegation.

As Mr Justice Tugendhat puts it today: “What is troubling here is that Mr Abbey repeatedly alleged that the Defendants had committed criminal offences which are serious, and which were of the kind which had led to the demise of the News of the World (followed by reports of payments of very large sums of money to persons whose phones had been hacked), but in circumstances where there was no evidence to support those allegations.

“The fact he never did report the matter to the police supports the inference I draw that he made the threats for the purpose of obtaining a settlement on terms which he did not expect to achieve on the merits of his claim for breach of confidence.

“I find that this was an attempt at extortion, and that it was an abuse of the process of the court to attempt to obtain settlement of this claim by that means.”

Abbey also hoped, no doubt, as later happened with Lord McAlpine, that various little helpers on Twitter and the blogosphere would pick up the allegations and spread the mud around. They duly obliged. The Sally Bercow of this particular saga was the “respected” legal blogger and New Statesman columnist, David Allen Green, who went to considerable effort to punt the story out on Twitter and his blog to my colleagues in the mainstream media.

Mr Allen Green’s excitement at finding the evil Associated Newspapers apparently in the crosshairs was so great that he didn’t trouble to contact me for my reply to the allegations. When taxed on this failing by a journalist on Twitter, the “respected” blogger responded: “Do you give defendants a reply when writing about convictions?” Mr Allen Green is apparently a solicitor. If he doesn’t know the difference between a contested civil claim and a criminal conviction, perhaps he should reconsider that career choice.

Luckily, my colleagues in the professional media were more scrupulous than David Allen Green. They did contact me. Once I’d explained the circumstances to them, they lost interest – and the story never achieved the lift-off that Abbey hoped. I do, however, in a much, much smaller way, have an idea of the kind of thing that Lord McAlpine went through.

The other thing Abbey clearly hoped was that we would simply decide it was not worth the financial risk to fight. His solicitors, PSB Law, were on a CFA, conditional fee agreement – otherwise known as “no-win, no-fee.” So even if Abbey lost, he faced no financial penalty. And even if we won, we would be in line (as we are) for bills of at least £50,000, perhaps much more.

In Mr Justice Tugendhat’s words: “This is an example of a claim funded by a CFA which, as a result, put the Defendants in a position where there was a strong economic incentive to them to settle the claim, even if they took the view, as they appear to have done, that it was wholly without merit.”

Many other newspapers would have settled. Luckily Associated, which still owned the Standard in 2007, is made of stronger stuff. They hired top solicitors, Keith Mathieson and Louise Turner at RPC, junior counsel, Adam Speker, and one of the best QCs in London, Desmond Browne – who famously once kept two claimant witnesses in the witness box for 45 days, and who ripped Abbey apart in cross-examination. Mr Browne was worth every penny, but he’s not cheap. The total financial cost of the case on our side will be somewhere between £150,000 and £200,000 – much, but by no means all, of which we hope to recover from insurance. Then, of course, there’s the time this all took, time which could have been spent doing journalism.

The judgment in our favour was comprehensive. “There is no case that the Defendants [us] misused any information in respect of which [Abbey] had reasonable expectation of privacy,” said Tugendhat. “If it be necessary to decide the point, I would decide that the publication complained of was in the public interest.”

The judge also said: “It is plain that Mr Abbey never did have a realistic prospect of obtaining substantial damages for breach of any duty of confidentiality owed to him, or for misuse of any private information of his… Accordingly, in my judgment the claim was an abuse of process …The costs of the case are out of all reasonable proportion to the benefit that could accrue to Mr Abbey were he to have succeeded.”

In the end, even if it has cost us a lot of money, it might almost be worth it to see a chancer so thoroughly spanked, and to have a judgment affirming journalists’ right to print leaked material which is not personal, which has not been obtained illegally, which involves a major public figure and whose publication is strongly in the public interest.

David Bell: there is a real story here

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The Daily Mail has gone to town this morning on Sir David Bell, one of Lord Justice Leveson’s assessors.

For all the fun some have had today mocking the paper’s conspiracist tone, there is a real story here – some of it first exposed by me more than a year ago. As I revealed, and the Mail repeats today, Bell – the high-minded defender of privacy – was at that time chairman of a charity which was itself censured by the regulator under the Data Protection Act for multiple probable breaches of individuals’ privacy.

The charity concerned, Common Purpose, is the subject of far too much conspiracist chatter on the Internet. But its essential aim is to train a network of “future leaders” – to help create a new, broadly left-liberal, establishment, if you like – and it has done this with vast amounts of public funding.

Bell also does lie at the centre of a network of people who have personal and professional interests in restraining journalists. I found, for instance, that the “Hacked Off” campaign – an offshoot of Bell’s Media Standards Trust, now pushing for statutory regulation of the press – was partly funded and staffed by a New Labour lobbying company, Sovereign Strategy, that has had many run-ins with newspapers which have questioned its ethical standards. Hacked Off and Sovereign huffed and puffed about my piece, but couldn’t shake any of the central facts.

This nexus is quite subtle. It’s also often boring and complicated to describe accurately, requiring the naming of long strings of people you’ve never heard of – but it really does exist, and it has clearly played a big role in framing the Leveson inquiry.