How Leveson’s press regulator would work

On Thursday, the long awaited report of the Leveson inquiry into the “culture, practice and ethics of the press” was published. Based on reading the executive summary, Leveson proposes:

  • an “independent self regulatory” body be established to:
    • promote high standards of journalism and protect the rights of individuals
    • be responsible for a code of conduct for all subscribers, including requiring them to have fast complaints procedures, plus appropriate, transparent internal governance processes.
    • be advised on the code of contact by a code committee that can include serving editors.
    • hear and complaints, with serving editors being barred from advising the board on such complaints
    • provide a low cost arbitration service related to civil claims in relation to breaches of the code of conduct
    • have the power to investigate serious or systemic breaches of the code of conduct by subscribers
  • the board of the regulatory body would comprise:
    • a majority of people independent of the press
    • “sufficient” people with experience of the industry but not including serving editors, MPs or members of the government.
  • the board would be appointed in a “fair and open” process by an appointments panel that itself would be independent of the press and the government. Leveson proposes that the panel be established by Ofcom
  • whilst membership of the body would be voluntary, Leveson envisages that all “significant news publishers” would subscribe to the the new body. In the event of failure for this to happen he suggests Ofcom could operate as a backstop regulator
  • the main incentive for publishers to subscribe to the body would be the provision of low cost arbitration which should be cheaper than going to court in the event of disputes
  • according to recommendation 8: “the code must take into account the importance of freedom of speech, the interests of the public (including the public interest in detecting or exposing crime or serous impropriety, protecting public health and safety and preventing the public from being seriously misled) and the rights of individuals. Specifically, it must cover standards of:(a) conduct, especially in relation to the treatment of other people in the process of obtaining material; (b) appropriate respect for privacy where there is no sufficient public interest justification for breach and (c) accuracy, and the need to avoid misrepresentation.”
  • Leveson also suggests consideration be given to amending the code of conduct to equip the regulator “with the power to intervene in cases of allegedly discriminatory reporting, and in so doing reflect the spirit of equalities legislation” (recommendation 38).
  • The role of legislation in all this is restricted to:
    • enshrining a legal duty for the government to uphold the freedom of the press
    • providing “an independent process to recognise the new self-regulatory body and reassure the public that the basic requirements of independence and effectiveness were met and continue to be met” (a role leveson suggests would be given to Ofcom)
    • “by recognising the new body, it would validate its standards code and the arbitral system sufficient to justify the benefits in law that would flow to those who subscribed”
    • Leveson summarises: “What is proposed here is independent regulation of the press organised by the press, with a statutory verification process to ensure that the required levels of independence and effectiveness are met by the system in order for publishers to take advantage of the benefits arising as a result of membership.” (section 73)
  • Leveson emphasies that the legislation would not establish the new regulatory body itself or give rights to the regulatory body, parliament or the government to prevent material being published or to require material to be published, except that the regulatory body would be able to require corrections and apologies to be published and direct how such corrections or apologies are placed.

It seems to me this raises quite a few questions such as:

  • how independent can the body really be?
  • when would a web based site (e.g. a blog) be considered a “significant news publisher”?
  • won’t web based publishing undermine this, if only because web based publishers can easily be based outside the jurisidiction of British laws let alone the regulatory body?
  • given that the the press would be held to a code of conduct rather than merely be required to obey the law, isn’t there an inherent threat to freedom of speech there?
  • will this setup actually stand a chance of addressing the problems Leveson was set up to address, namely the lying, disregard for accuracy, invasion of privacy for trivial reasons, intimidation and cosy relationships with politicians and police?

I intend to comment on these questions in later posts.

Climategate: On CRU, freedom of information and access to data

Both The TaxPayers’ Alliance and Watts Up With That tackle the issue of the CRU and its responses to Freedom of Information Act requests. The emails they cover show resistance to answering freedom of information act requests on the part of CRU members. Andrew Bolt also highlights relevant emails. It certainly looks as if Phil Jones et al were reluctant to hand data out to people, such as Steve McIntyre, who they regarded as “deniers” of global warming. We also see requests to delete emails regarding the IPCC AR4  and a suggestion that Jones might delete emails that are subject to a FoIA request (which would be illegal), though he later notes concerns from the University that such deletion should not occur.

The reason this should be of concern is the same reason the loss of the raw data should be of concern. For scientists to fully assess a piece of work they must be able to get hold of and question the data and the methods behind that work. Yet here we have some of the key scientists involved in the research behind climate change resisting releasing the data to their critics, and worse still losing some of it!

I can understand some of the comments about private emails remaining private, but when it comes to published results that are part of the scientific record, it seems to me that there should be total transparency regarding the data and methods used to arrive at those results in order to enable adequate scrutiny and replication of results by other scientists. This should go doubly for publicly funded work such as that of the CRU and especially for work with public policy ramifications such as that on anthropogenic global warming. A concrete example of the value of allowing people with different viewpoints and methods to access data is given in the National Post which has a neat article that illustrates how different methods of averaging can give different results.

The CRU say they have agreements with the providers of some of their data not to hand it to third parties, and this obviously constrains the extent to which they can hand out data. But the email also demonstrate an unwillingness to hand out data (and even to delete correspondence regarding the IPCC’s AR4) that went beyond such concerns which is unjustified and undermines the scientific process.

Update: Bishop Hill’s account of Steve McIntyre’s attempts to examine the work of the CRU’s Keith Briffa demonstrates a long running reluctance and resistance by Briffa to release data lasting right upto 10 years after the original publication, as well as demonstrating how differing selections of data can alter the results one gets. This reluctance to release the data used to make claims does not engender trust in the scientists concerned.

On the Tories and future transfers of power to the EU

In his speech outlining his party’s new post Lisbon treaty policy on the EU, David Cameron pledged that no more powers would be transferred to the EU without a referendum:

Never again should it be possible for a British government to transfer power to the EU without the say of the British people.

If we win the next election, we will amend the European Communities Act 1972 to prohibit, by law, the transfer of power to the EU without a referendum.

And that will cover not just any future treaties like Lisbon, but any future attempt to take Britain into the euro.

He also pledged that any attempt to use the Lisbon Treaty’s “self amendment” clause would require approval by Parliament:

But people will rightly say that the Lisbon Treaty does not just transfer powers to Brussels today.

It allows further powers to be transferred in the future, because it contains a mechanism to abolish vetoes and transfer power without the need for a new Treaty.

We do not believe that any of these so-called ratchet clauses should be used to hand over more powers from Britain to the EU.

Furthermore, we would change the law so that any use of a ratchet clause by a future government would require full approval by Parliament.

Note that he is not pledging that power transfers arranged via the ratchet clause would require a referendum.

Read the rest of this entry »

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The Elected Representatives (Prohibition of Deception) Bill

Would it be nice if our elected representatives were required to be honest? Well, a private member’s bill has just been published which, if it became law, would make it an offence for MPs, members of the devolved assemblies, MEPs and elected mayors (or agents acting on their behalf) to make, or publish a statement they know to be false, misleading, or “deceptive in a material particular”.

Someone accused of this offence can raise the following defences:

  • they did not know, or could not reasonably have been expected to know, the statement was false, misleading or deceptive in a material particular.
  • they had no part in causing or permitting the statement to be made or published.
  • they took all reasonable care to ensure the statement was accurate.
  • they acted in the interests of national security.

If found guilty, they face a fine and being barred from standing for election for up to 10 years.

An offence of making false, frivolous or trivial accusations of deception is also created, punishable by a fine.

Being a private member’s bill it is unlikely to get very far, but would any of our political parties be willing to include in in their manifestos for election? It might provide a means for restoring trust in the political system.

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Legislative and Regulatory Reform Act

My take on this is now up at the Magna Carta Plus weblog.

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On FoIA and the security services’ role

An anonymous commenter has made an interesting point in response to my discussion of the impact of the Freedom of Information Act on the security services. Responding to the point that the processing of any FoIA request will draw resources away from the security services’ core duty of protecting the country, the commenter writes:

Not so – in the extreme case that the government itself becomes an enemy of the country, time spent by the security services documenting their activities for the public *becomes* their core duty.(Colour, boldface and italics added)

Of course there is also the option of the security services using their more secretive powers to undermine or overthrow the govt in such circumstances. Either way, the scenario posited would be very dangerous territory to be in and would require considerable bravery and intelligence to deal with.

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More on FoIA requests have responded to my previous article on FoIA requests. They add some further points to those I made myself. As well as noting that section 14 of the FoIA allows departments to reject vexatious requests, they go on to point out:

In any case, the Publication Schemes established by the FOIA in the run up to January 1st this year all, obviously, provide phone, postal addresses, fax and email contacts with the teams of civil servants, well away from the operational “sharp end” of the organisation, who have been tasked and funded to deal with and filter any “vexatious” or “disruptive” requests, and to comply with the Freedom of Information Act 2000, which is the law of the land. (Emphasis added)

This raises a key point. Any sensible implementation of the FoIA by the security agencies should have ensured that those dealing with e.g. surveillance operations or analysis of the data obtained via such operations should not be dealing with the processing of FoIA requests. It should have involved creating entirely separate teams for processing the requests, hired with extra funds to set them up so that existing operations do not get disrupted.

Thus even if processing FoIA requests posed a higher than expected burden the effect should simply be to stretch the FoIA request teams (who should then point out the problem to management) and should not impact on the other activities in the organisation concerned.

Of course that’s no excuse for anyone who sends frivolous requests (which will waste taxpayers money and civil servants’ time if nothing else), but that is not what I or were proposing to do.

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Is wrong to solicit suggestions for FoIA requests? recently asked for suggestions for requests for information to make under the Freedom of Information Act(FoIA).

They will take some of the requests they receive and ask for the information via the FoIA procedures and then track the progress of the requests. This seemed to me to be a valuable exercise in testing out how well FoIA will work in practice, enabling people to hold the government to account for its promises regarding FoIA.

I’ve received comments from a friend that were very critical of this action (and by implication my support for it). To paraphrase, I was asked if I’d prefer that the security agencies waste time dealing with phoney FoIA requests or if I thought their time was better spent on protecting UK citizens.

I would argue in response that making FoIA requests for the purpose seeing how well FoIA works in practice is an entirely legitimate exercise, so long as it is done with care and they don’t flood the govt with frivolous requests.

If they were to carefully choose a handful of requests on the basis of there being a clear public interest in the release of the information, and no strong overriding objections (e.g. no clear reason to invoke the exemptions) then I would argue both that the exercise is a legitimate means of highlighting how well FoIA works in practice and that the burden on the departments processing the requests would be minimal. I hope and expect to do this.

If on the other hand they simply submitted every suggested request without regards to whether the information is already available elsewhere, whether the exemptions would clearly apply and whether the information requested is of real public interest, then I’d agree that would involve a waste of the government’s time and resources in processing the requests. I do not support such an exercise.

Note that any FoIA request, valid or otherwise, that is processed by the security services will take time and resources away from their core duties of protecting the country. This point along with the nature of the work they do is, I presume, the prime reason why Section 23 of the FoIA provides an absolute exemption for information supplied by, or relating to, bodies dealing with security matters (see also Section 2 on the effect of the exemptions). GCHQ, MI5 et al are all explicitly listed as being such bodies.

Of course some processing may need to be done by the security services for the purposes of determining whether the information requested is information that is supplied by or related to the security services. However ISTM that only a small fraction of the likely requests would involve the security services and the exemption will minimise the burden imposed by the remainder.

I’d add that the government has had 4 years since FoIA went through parliament in order to ensure that the security services receive the extra resources they may need to process FoIA requests.

It seems to me obvious that campaigners like would mount exercises to test the FoIA out to see if, in practice, it delivers on the governments promises related to FoIA and that this is a legitimate exercise so long as it doesn’t amount to an attempt to flood the govt with requests. Given that and the 4 year implementation period, failure of the government to adequately resource the security agencies and other departments to deal with FoIA requests would seem to me to be a failure of the government to implement the Act properly and responsibility would lie squarely with the government, not those making the requests.

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The govt’s hostility to Freedom of Information shows again

The BBC is reporting that civil servants have stepped up the shredding of official documents, ahead of the Freedom of Information Act coming into force:

From a series of parliamentary answers Dr Julian Lewis, the Conservative spokesman for the Cabinet Office, says he has discovered a huge acceleration in shredding.

The Department of Work and Pensions destroyed nearly 37,000 files last year – up 22,000 on four years ago when the Act was passed.

The number of files destroyed by the Ministry of Defence and the departments of Environment, Food and Rural Affairs and Trade and Industry has also risen dramatically.

Dr Lewis has called for an investigation by the information commissioner Richard Thomas

This follows on from the recent reports that the govt has ordered internal emails more than 3 months old to be deleted.

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Govt keeps legal advice re: ID cards secret

In line with its (lack of) commitment to freedom of information, the government has decided to keep the legal advice it received on whether the ID cards bill conforms to the European Convention on Human Rights secret. According to The Register:

This line, however, merely confirms the Government’s shameless approach to human rights in its legislation. One of the early moves of the Blair Government was to incorporate the European Convention on Human Rights into UK legislation in the Human Rights Act. This one might suppose would mean that the UK Government would be far more careful about human rights in its legislation, but instead of this it tends to be used as a kind of cloaking device. Instead of being accompanied by detailed assessments of human rights impact, UK legislation now tends to have just a one liner saying ‘the provisions of this legislation are compatible with the European convention of human rights.’ So, as Browne put it today, the Cabinet has advice on the impact prepared for it, and nobody else needs to see the advice because the legislation has been deemed to be compatible by the Cabinet. Trust us.

Thus in one fell swoop this illustrates both the weaknesses of the human rights/freedom of information legislation and the attitudes of this government towards privacy, openness, freedom of information and human rights. I.e. they know best and are quite happy to keep secrets about the legislation that will open up our lives to their scrutiny at the expense of our privacy and freedom.

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