Bombshell by Leveson's own adviser: His law to gag press is illegal as it breaches Human Rights Act (but she's banned from telling you what she advised inquiry)Shami Chakrabarti blasts Labour leader Ed Miliband’s ‘hasty and ill-considered’ endorsement of the reportDirector of Liberty also rebuked pro-legislation pressure groups such as Hacked Off for 'ill-informed debate'
12:44 GMT, 2 December 2012
One of Lord Justice Leveson’s key advisers last night delivered the bombshell verdict that his demand for compulsory press regulation would be illegal.
In an exclusive interview with The Mail on Sunday, Shami Chakrabarti, director of the civil rights group Liberty, said any such clampdown would breach the Human Rights Act and be open to legal challenge.
Her intervention is hugely significant because as one of only six ‘assessors’ who helped guide the inquiry and its conclusions, her position threatens the viability of key parts of the report.
Opposition: Human Rights expert Shami Chakrabarti rebuked pro-legislation pressure groups such as Hacked Off over 'ill-informed debate'
As well as her opposition to Leveson’s demand for a law to enact his recommendations, we can also reveal that she:
Rebuked pro-legislation pressure groups such as Hacked Off, led by celebrities including Hugh Grant and Steve Coogan, saying: ‘There has been a great deal of ill-informed debate, with people bandying about terms such as “statutory underpinning” with little grasp of what this would mean.’Has been banned from discussing any aspect of the report’s deliberations under pain of ‘disciplinary action’.Poured scorn on Labour leader Ed Miliband’s ‘hasty and ill-considered’ endorsement of the report.
At the heart of her objections to the Leveson report is that any new law that made the government quango Ofcom the ‘backstop regulator’ with sweeping powers to punish newspapers would violate Article 10 of the European Convention On Human Rights which guarantees free speech and is enshrined in Britain’s Human Rights Act, too.
She said: ‘We were chosen as advisers
because of our areas of expertise. Mine is human-rights law and civil
liberties. In a democracy, regulation of the press and imposing
standards on it must be voluntary.
‘A compulsory statute to regulate media ethics in the way the report suggests would violate the Act, and I cannot support it.
Landmark: After 16 months of hearings and evidence Lord Justice Leveson poses with his final report
'It would mean the press was being coerced in being held to higher standards than anyone else, and this would be unlawful.’
On Miliband, she commented on the fact that when he made his promise to back the report on the day it was published, he could not possibly have read or weighed up the contents of its 2,000 pages.
‘He should have been more careful about what he said,’ Ms Chakrabarti said.
declare his full support so early, when he cannot have read it, was
hasty. He should have reflected on it. This is a policy that must not be
and the other assessors were hand-picked by David Cameron to help guide
and advise Leveson on his inquiry and report.
assessor, George Jones, the former political editor of the Daily
Telegraph, shares her view that there should be no ‘backstop’ role for
Ofcom, as a little-noticed footnote to the report makes clear.
Prejudging the report: Labour Party leader Ed Miliband came under fire for agreeing to support the Leveson Report without even seeing its contents
Ms Chakrabarti said that if the recommendation were made law, any publication which became subject to compulsory regulation would be able to challenge it in the courts, and seek a legal declaration that the ‘Leveson law’ flouted human rights.
If the law were not repealed, the publication could seek to have it overturned at the European Court of Human Rights in Strasbourg.
Article 10 states: ‘Everyone has the
right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers.’
Chakrabarti also rebutted Leveson’s claim that a new statute to
establish a press regulator is ‘essential’. She said the new regulator
does not need ‘statutory underpinning’, and should not rely on approval
from Ofcom or any other quango.
Hacked Off, Ms Chakrabarti said: ‘I understand that people who have
been wronged want action. But they should be interested in outcomes,
rather than particular processes.
'The outcome they should be seeking is a free and vibrant press with access to justice for the public when things go wrong.
Celebrity pressure: Actor Hugh Grant arrives to attend the release of Lord Justice Brian Leveson report
‘We can achieve this without
legislation, which may have serious unintended consequences.
Unfortunately, there has been a great deal of ill-informed debate, with
people bandying about terms such as “statutory underpinning” with little
grasp of what this would mean.’
important thing, she said, was for the newspaper industry to set up as
quickly as possible a new, independent regulator along the lines Leveson
recommends, with real powers to punish publications. The debate over
whether any change in law was then required should wait until its
structure was clear.
neither Ofcom nor any other state quango should validate it, she said.
‘I don’t think quangos such as Ofcom are independent enough of the state
to be judging press regulation.
'I don’t think it’s necessary for the
Leveson scheme to work.
‘Quangos are an emanation of the state, and their members are appointed by Ministers.’
Critical: Ms Chakrabarti called on Hacked Off, the pressure group for statutory regulation of the Press, to be interested in the 'outcome' not the 'processes'
Individuals involved in the Leveson Inquiry, including Hacked Off member Jackie Hayes, Bob Dowler and Kate McCann speak on the steps of the QEII centre
If a quango were to be involved, she
added, Ofcom was an especially unfortunate choice, because its existing
role in governing broadcasters means it is a ‘regulator of content’.
example, Ofcom has powers to decide whether programmes breach
broadcasting rules on political bias, which have never applied to the
press, and to punish those who transgress.
Warning: Shami Chakrabarti, pictured arriving at the High Court during the Leveson Inquiry, warned of the dangers of losing a free press
Leveson’s recommendation that Ofcom should be the body empowered by law to decide whether the regulator was doing its job was ‘something I can never accept’.
Journalism, she added, must never become a ‘state-licensed profession’. Some, she noted, had argued that the state does license drivers, implying that licensing for the media would be no more onerous.
‘But driving a car isn’t a fundamental human right,’ she said. ‘Freedom of speech is.’
However, it is in discussing the politically-vexed issue of whether legislation is necessary at all that Ms Chakrabarti’s views present the most radical departure from Lord Leveson, who believes: ‘It is essential that there should be legislation to underpin the independent self-regulatory system and facilitate its recognition in legal processes.’
But as Ms Chakrabarti pointed out, in
the same breath, the judge also said that the law should not determine
the structure of the new regulator: that should be left to the press
itself. In her view, the new system would work much better without any
legislation at all.
believes that the way to ensure newspapers both join and obey a
regulator is through incentives, administered by judges considering
legal actions against the press.
fact, the Leveson report recommends this too, saying that once the new
regulator has set up an arbitration system which can be readily accessed
by the public, judges should be able to impose big cost penalties on
those who ignore it, whether they be newspapers or those who try to sue
Yet all this, Ms
Chakrabarti said, could be achieved without statute. All that is
necessary is for the press to set up the regulator, and then, if sued,
to ask the judge to take their participation into account when deciding
Reforms: Lord Justice Leveson (pictured delivering his verdict) called for sweeping changes in the law to regulate the 'outrageous' behaviour of the press
‘That would not be statutory regulation of the press, or even statutory underpinning,’ she said. ‘It would be the civil courts giving credit to the press for meeting Leveson’s crucial recommendations, by joining a “club” that was independent and able to provide redress for those with legitimate grievances.’
If, she added, judges proved
unwilling to change the way costs are awarded, then it should be
possible to amend the Civil Procedure Rules, the ‘White Book’ of
regulations for the way civil cases must be conducted.
would be done by a panel of judges, so again legislation would not be
needed. Only if this proved impossible would Ms Chakrabarti countenance a
very limited statute on the matter of costs.
Ms Chakrabarti’s view was supported yesterday by Dan Tench, a partner in London law firm Olswang and an expert on media law.
is absolutely right that you don’t need legislation,’ he said, adding
that changes due to come into force in April to the way costs are
awarded would make it easy for judges to ‘incentivise’ newspapers in the
way Ms Chakrabarti suggested.
Reaction: Prime Minister David Cameron made a statement to MPs after Leveson's response and said he did not back statutory regulation
Thoughtful: Mr Cameron considers the speech of Ed Miliband while Nick Clegg prepares himself for his own speech on press regulation
Ms Chakrabarti said it was also clear there could be more than one regulator, and that other such ‘clubs’ could also be established for internet bloggers or Twitter users – who could thus also benefit from the court incentives.
She added that the Leveson report had come at a time when media freedom is already under threat, with the government fighting to introduce more secrecy to British courts.
She said. ‘Investigative journalism is under attack, and it’s a shame the media have not paid as much attention to these measures as they have to Leveson. Their effect, if enacted, will be chilling.’
Finally she revealed she was ‘sadly disappointed’ Ed Miliband was so vocal about the Leveson Report – while remaining silent on a Bill opening the way to ‘secret courts’ and the ‘snoopers charter’ which would give security agencies owers to spy on people’s use of the internet.
‘When Ed Miliband was elected party leader, he promised this would mark a new era of Labour concern for civil liberties. I’m still waiting for that. I would like to see him be much more robust on these issues.’
From 'Horsegate' to this week's showdown, Mail On Sunday told you first
Spot on: Last week's Mail on Sunday front page
Friday morning’s newspaper headlines reporting David Cameron’s decision to reject Lord Justice Leveson’s call for new laws to police the press had a familiar ring to Mail on Sunday readers.
That’s because our front page last week accurately reported the Prime Minister’s intention to rule out state meddling – and the Leveson Report’s support for it.
It was the latest in a series of Leveson scoops that have left our rivals trailing.
In June, we revealed how Lord Justice Leveson protested to Cabinet Secretary Sir Jeremy Heywood and was close to quitting after Education Secretary Michael Gove criticised him, arguing the Leveson Inquiry was a threat to press freedom.
On November 4, we revealed intimate emails between David Cameron and disgraced ex-News International boss Rebekah Brooks that were handed to the Leveson Inquiry – but not released to the public.
In one, the Prime Minister thanked
Mrs Brooks for letting him ride one of her horses, saying it was ‘fast,
unpredictable and hard to control but fun’.
Mrs Brooks said she ‘cried twice’ during one of Mr Cameron’s speeches.
following week, we accurately revealed Leveson would urge for
‘controversial new laws to give the state a role in regulating national
newspapers’, that papers would ‘face big fines if they ignore the new
watchdog’s orders’, but the regulator ‘won’t curb internet smears’.
Revealed: The Mail on Sunday told first how emails between David Cameron and disgraced ex-News International boss Rebekah Brooks that were handed to the Leveson Inquiry
This is exactly what happened last week.
And last week, we reported that Mr Cameron had ‘already ruled out state meddling’ in the press and would order newspapers to ‘clean up their act immediately’ with ‘the threat of sweeping legal action if they fail to do so’.
Downing Street issued a half-hearted denial, but the story was 100 per cent accurate.
We also forecast the Prime Minister’s stance would lead to an ‘explosive Commons showdown’.
It did, as the Deputy Prime Minister Nick Clegg and Labour leader Ed Miliband denounced Mr Cameron in Parliament.
Furious No 10 accused BBC of burying good Cameron news
Row: BBC Political Editor Nick Robinson was accused of burying Lord Leveson's conclusion there was 'no deal between Cameron and News International
Tensions between Downing Street and the BBC have erupted again over its coverage of the Leveson Report after No 10 accused the Corporation of ‘burying’ findings favourable to the Prime Minister.
David Cameron’s communications chief Craig Oliver fired off a furious letter to the BBC accusing it of peddling ‘conspiracy theories’ about links between the Government and Rupert Murdoch’s executives at News International.
In it he accused BBC Political Editor Nick Robinson of failing to give sufficient air time to Lord Leveson’s conclusion that the evidence ‘does not establish anything resembling a “deal” whereby News International’s support was traded for the expectation of policy favours’.
Mr Oliver complained that despite the fact Lord Leveson ‘dismissed all of the conspiracy theories’, this was ‘only mentioned in half a line, buried in the middle of Nick Robinson’s report’.
He concluded: ‘I expected a better, more fulsome approach . . . this was hardly proportionate.
'With so many people having had their reputations questioned so thoroughly, we deserved a lot better.’
Last night, the BBC confirmed that they had received a letter from Mr Oliver and had responded directly to him.
A spokesman said: ‘The BBC’s coverage of this complex story was clear, balanced and impartial.’
Riddle of Judge's Commons grilling
Lord Justice Leveson was involved in a new riddle last night over reports that he may turn down a request to explain his views on state regulation of the press to a powerful group of MPs.
A senior MP spoke out after it was revealed that Sir Brian Leveson has not responded so far to a request to give evidence to the Commons Culture, Media and Sport committee.
70,000 SIGN HACKED-OFF PETITION
A online petition calling for the UK’s three main party leaders to bring in a new press watchdog backed by law has attracted more than 70,000 signatures since its launch on Friday.
The petition was organised by Hacked Off, the group campaigning for victims of phone hacking.
Gerry McCann, father of missing Madeleine, and Christopher Jefferies, the landlord wrongly arrested for Joanna Yeates’ murder, were among those urging the public to support the campaign after David Cameron indicated his unwillingness to introduce legislation.
The committee’s chairman, Conservative MP John Whittingdale, said: ‘We have not received a response from Lord Justice Leveson yet.
‘We are very keen to discuss important matters that arise from his report, such as putting Ofcom in charge of press regulation, and whether state regulation is desirable or practical.
‘I very much hope he will decide to give evidence.’
But a senior legal figure said: ‘There is no reason why Lord Justice Leveson should appear before the committee.
‘He has conducted a judicial inquiry and is entitled to say that is his last word. He has little to gain by saying anything more. It would simply add to the confusion.’
In his statement unveiling his report last week, Sir Brian closed by making clear he would be making no further comment on his inquiry.
He said: ‘I believe that the report can and must speak for itself; to that end, I will be making no further comment.
‘Nobody will be speaking for me about its contents either now or in the future.’
Sir Brian, 63, is due to fly to Australia to give two lectures on matters connected with his inquiry.
He will speak next Friday in Sydney on privacy. A second event is to be held five days later in Melbourne.
The Appeal Court judge could be the leading candidate to succeed Igor Judge, 72, as Lord Chief Justice.
Lord Judge is due to step down from the post – the effective head of the judiciary – next September.