How would the independence of Leveson’s regulator be guaranteed?

An independent regulatory body should be established, with the dual roles of promoting high standards of journalism and protecting the rights of individuals.(Leveson Report, Executive Summary, Section 57, page 14, emphasis added)

My earlier article summarised Leveson’s proposals with respect to this body, the aim of this article is to examine the question of how independence is to be achieved. As the executive summary makes clear, the new body should be independent of both the press, MPs and the government. Leveson proposes to achieve this by:

  • Ensuring that a majority of the board are “independent” of the press with no serving editors, MPs or members of the government on it.
  • Requiring the appointments panel to have a “substantial majority” of members independent of the press, and no more than one current editor of a publication that could be a member to be on the panel.
  • Restricting the role of legislation to that of specifiying a process for recognising the regulator (via a recognition body) and certifying that it meets certain criteria laid out in statute.
  • The recognition body will not play any role in regulation of the press.
  • Leveson suggests Ofcom as the recognition body.

Thus we can envisage the following happening if Leveson were implemented in full:

  • Legislation is drawn up specifying the criteria for recognising the press regulator, granting the status of recognition body to Ofcom.
  • MPs will debate and vote on this legislation.
  • Once enacted, Ofcom will set up the appointments panel and they will appoint the board of the press regulator, in accordance with the legislation specifying the criteria by which both the panel and the board are to be appointed.
  • The press regulator, having been set up would oversee drawing up code of conduct, agree funding arrangements with the press, whilst the press would join the regulator based on the benefits Leveson sets out.

The level of independence achieved can thus be described as “operational independence” – its decisions about the code of conduct, whether a member has violated the code, whether to investigate violations of the code and what punishments to apply would be made by the board or by the arbitration service. However MPs will determine the criterion by which the regulator is judged and recognised when they legislate, and Ofcom will be charged with putting these criterion into practice and e.g. whether all “significant news publishers” have become members.

It seems to me this means that the regulator will be no more “independent” of the government than any other quango. It may have operational autonomy, but its role is still determined by MPs. Can we trust the MPs not to frame the criterion by which the regulator operates in a manner that protects their own interests?

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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.

On Blair’s "rebalancing" of the justice system

From “Just Law”, by Baroness Helena Kennedy QC, Chapter 1, page 26
(hardback edition, ISBN: 0-701-17506-0)
:

“In the criminal courts the victim is a witness, a crucial and central witness for the state. So, when the government talks about rebalancing the system, it is really about rebalancing in favour of the state.That is the fraud in the government’s rhetoric, the sleight of hand.”

Kennedy puts this point quite well, but I have a problem with the language.

It is the accuser who is the witness for the state.

Who the victim(s) is(are) depends on whether the defendant is innocent of the crime he’s charged with and on whether the accuser has had a crime committed against them. These are questions for the court to decide.

It may well be that the defendant is the victim, e.g. of a false accusation.

It may even be that both the accuser and the defendant are victims, with the accuser misled as to who the perpetrator is and the defendant the unfortunate scapegoat or victim of mistaken identity.

Or it may be that the accuser is indeed a victim of a crime committed by the defendant.

But the language of the government’s rhetoric, and much of the debate over these issues, implicitly assumes that the accuser is the victim.

Yet surely part of the purpose of the trial is to determine whether or not the accuser has in fact had a crime committed against them? And thus whether or not the accuser really is a victim?

And when Tony Blair says, e.g. “It is perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished”(1), it is simply wrong.

Logically speaking you have 4 possible miscarriages of justice:

  1. The accused is punished for a crime someone else commited.
  2. The accused is punished for a crime he didn’t commit and no one else committed.
  3. The accused is punished for something he did do, but which wasn’t a crime.
  4. The accused walks free from a crime they committed.

It is arguable that cases 2 and 3 are as serious as 1 — assuming like crimes — because in each of these three cases, 1 party is punished or not incorrectly.

However (1) is clearly more serious than (4) because 2 parties are punished (or not) incorrectly — the accused and the actual perpetrator(s). To make matters worse, the actual perpetrators also remain free to commit further crime.

Moreover since it is the state that brings a prosecution, there is an inequality of arms which safeguards like the presumption of innocence, the right to a jury trial and the right to silence seek to redress.

Weakening or jettisoning those safeguards thus makes it easier for the state to lock anyone they choose up and thus increases the risks to us all from the state.

This is where those who criticise civil libertarians for preferring the rights of criminals over victims get it so wrong with regards to those who try to uphold the accused’s rights.

When the rights of the accused are weakened, this is an attack on the rights of all, because anyone could be accused of a crime and these rights are there to try and ensure that only a sound accusation will result in loss of liberty.

Defending the rights of the accused is not the same as defending the rights of criminals.

Convicting the accused is not the same as convicting the guilty.

Making it easier to convict the accused by lowering the burden of proof, or standards of evidence, will simply make the system less reliable, thus increasing both the incidence of innocent people being punished and the incidence of the guilty walking free.

It will also lead to less trust in the system (though I grant trust in the system has already been compromised in Britain).

The only sound way to ensure the guilty are convicted and the innocent are either not put on trial, or are acquitted if they are, is to ensure a sound and thorough investigation of crime, and to ensure that each case is thoroughly tested in court.

Principles such as presuming innocence, having to prove guilt beyond reasonable doubt and allowing a trial of someone by a jury of their peers should not have been jettisoned as they are there precisely to ensure such thorough investigation and testing of cases.

Of course the criminal justice system was not perfect when these principles applied. There may well have been a need to provide better protection for witnesses for example, but this was not an excuse for abandoning sound principles that had been tried and tested for hundreds of years.

Footnote

(1) Kennedy attributes this quote to Tony Blair for the 18th June 2002, but does not give a proper source. Indeed, one problem I have with the book is the poor citation of sources. A bit of googling got me this article however:

http://www.number-10.gov.uk/output/Page1717.asp

Near the bottom it says:

“And it’s perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished.”

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UK Govt can put control orders on those who are, on balance of probability, innocent…

Update (April 9th, 12:12 am BST):

I was mistaken about this matter. House arrest will actually require the balance of probabilities, but non-derogating control orders can be imposed on the “reasonable suspicion” test. Thus I have changed the title from “UK Govt to house arrest those who are, on balance of probabilities, innocent…” to the new title above.

Anyway sorry for the error. With all the fuss it was hard to keep up with the changes and it’s only with my reading the actual Act of Parliament that I realised the mistake.

The extraodinary battles in the Houses of Parliament over the Abandonment of the Rule of LawPrevention of Terrorism Bill have done little to protect civil liberties. The main changes the Lords insisted on include:

  • judges issuing all control orders
  • the Director of Public Prosecutions declaring there’s no possibility of prosecuting
  • a sunset clause so that the legislation expires at end of November
  • use of evidence gained from torture abroad prohibited
  • the standard of proof being “balance of probabilities” instead of “reasonable suspicion”

Given that it will still be the case that suspects will not know the evidence or the charges against them, they won’t be able to defend themselves and these changes are fairly minor (despite the fuss the government is making).

The most significant change is raising the standard of proof. Although this barely touches the problems with this bill, it gives judges greater room to decide that a control order is not justified.

With the “reasonable suspicion” standard, it is hard to see how one could seriously dispute the reasonable suspicion except by claiming it is unreasonable which begs the question of whether, in law, the Home Secretary, acting on advice and secret evidence from the security agencies, can ever seriously be regarded as acting on unreasonable suspicion.

ISTM thus that this standard of “proof” is a joke, and will ensure that the Home Secretary can still apply control orders to anyone he/the security agencies choose, with the judge acting as a mere rubber stamp.

With balance of probabilities, if a suspect has a sympathetic and independent minded judge, there is room for the judge to say he’s not convinced it is more likely than not that the suspect is involved in terrorism.

Of course it is still a very subjective and arbitrary standard (unless they actually compute the probabilities, but how would one do that?) but it does give room for maneouvre.

Anyway, the government is tonight opposing this change. This has the logical implication that they want control orders imposed on people who would be judged more likely to be innocent than not

And the govt claims it is doing this for our own good.

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Control Orders: Just exactly what can they impose?

The media coverage/discussion of the proposed control orders has focussed on several possible things that can be imposed with them: house arrest, tagging, curfews, internet/phone bans and restrictions on who you can communicate with. However upon reading the legislation itself it appears that potentially any obligation could be imposed. Section 1(2) of the bill states:

A control order may impose any obligation on the individual against whom it is made that the Secretary of State considers necessary for purposes connected with preventing or restricting further involvement by that individual in terrorism-related activity (whether or not activity by reference to which the Secretary of State was satisfied for the purposes of subsection (1)(a)).

Section 1(3) of the bill lists numerous examples of such obligations, but does not restrict the control orders to the imposition of such obligations. The possible obligations listed are (to summarise section 1(3)):

  • prohibitions/restrictions on the possession of articles or substances,
  • prohibitions/restrictions on the use of specified services or facilities or on specified activities,
  • restrictions on a person’s work, occupation or on their business,
  • restrictions on who one associates/communicates with,
  • restrictions on one’s place of residence or who is allowed to access one’s residence,
  • prohibitions on being in specified places/areas at specified times or on specified days,
  • prohibitions/restrictions on one’s movements to, from or within the UK or specified places/areas in the UK,
  • requirements to comply with other prohibitions/restrictions on movement for a period not exceeding 24hrs, by directions given to him in a specified manner by a specified person for the purpose of securing compiance with other obligations imposed by the order,
  • requirements to surrender one’s passport or anything other possessions to which a prohibition/restriction relates to a specified person for the period of the control order,
  • requirements to grant access to one’s place of residence or other premises one has access to,
  • requirements to allow searches of one’s place of residence or other premises one has access to,
  • requirements to allow items found in one’s place of residence to be removed and retained by specifed persons for the period of the control order,
  • requirements to cooperate with arrangements for enabling one’s movements, communications and other activities to be monitored,
  • requirements to provide information to a specified person in accordance with a specified demand,
  • requirements to report to a specified person at specified times and places.

Thus it seems to me that a control order, in addition to possible house arrest or internet/phone bans, could require you to leave (or stay) in the country, move to another part of the country, allow your house and workplace to be searched, allow items to be seized from your house or workplace, and much else.

A further possibility arises: because “any obligation” can be imposed if the Secretary of State deems it necessary, perhaps one might even be required to keep the imposition of the control order on you secret from anyone you’re allowed to contact, the excuse being it might alert other “suspected terrorists” that you’ve been surveiled.

Note that even if I’m wrong about an obligation to keep the control order secret, the restriction on association/communication could be used to ensure you cannot communicate with anyone except the authorities anyway!

The powers being given to the Home Secretary, even where falling short of house arrest, are thus extremely wide ranging and could make it impossible for people to defend themselves against the control orders.

Quite simply, this measure is worthy of a tyrannical dictatorship, and would put us in the same league as apartheid era South Africa or Communist East Germany.

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Barbara Follet MP on house arrest

A report from the Scotsman quotes the novelist Ken Follet’s wife:

Mrs Follett (Stevenage), now married to novelist Ken Follett, said the system of control orders proposed by Home Secretary Charles Clarke bore “an extraordinary resemblance” to those used under apartheid.

She told the Commons during second reading debate on the Prevention of Terrorism Bill that Richard Turner was placed under house arrest in 1973 because he campaigned to give black people the right to vote and join trade unions.

He lived under the order for five years, unable to work or leave home, until he was assassinated in front of their two daughters Jann, 13, and Kim, aged nine.

“House arrest hampered but didn’t stop him,” she said.

“That is probably why, just before his five year order was due to expire, he was shot dead in front of our two young daughters in their bedroom.

“In the days that followed I tried to comfort them by telling them we were going to go to Britain where people were not detained without trial or put under house arrest.
She said she would not support the Bill and called on Mr Clarke to change the orders so they can only be implemented by a judge, to consider using intercept evidence in court and to write a sunset clause into the Bill.

“The end does not justify these means,” she said.

“The example we set will stay with us for many years.

“These principles are the very basis of our democracy and the Labour Party – destroy them and you destroy us.””

We have:

[This list is not comprehensive.]

Should we be surprised when they put forward measures like house arrest without trial, on the say so of the Home Secretary, with evidence kept secret from the detainee and his legal representatives and try to rush them through the House of Commons in the space of 1 week with only 2 or 3 days of debate?

If they get away with this, what will they try next?

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Opposition growing to house arrest proposals

It seems that opposition to Charles Clarke’s proposals to impose house arrests on suspected terrorists without trial is growing. Firstly, there was George Churchill-Coleman’s comments to the Guardian claiming that the proposals were impractical and he feared that Britain was “sinking into a police state”.

Then, both the Tories and Liberal Democrats are reported to be opposed to the measures:

“Controversial government plans to keep terror suspects under house arrest rather than in jail could falter in parliament and fail to become law.

The Conservatives declared on Wednesday they would oppose the new scheme, hastily drawn up after the highest court ruled that imprisoning foreign suspects without trial broke human rights law.

With the Liberal Democrats also against, and many in the Labour party uneasy, the legislative battle could be bloody.”

However Michael Howard, the Tory leader has agreed to meet with Blair to discuss the proposals:

“Mr Howard argued that it was wrong in principle for anyone to be deprived of their liberty “on the say-so of a politician” and argued that those accused of terrorist offences should be brought to trial and detained in prison in the meantime.

Mr Howard went on to ask Mr Blair to meet him “to see if we can agree on a way forward which will command a wide degree of public confidence on these vitally important issues”.

Acknowledging the civil liberties implications of the Government’s plans, Mr Blair said he would be “perfectly happy” to meet Mr Howard to see whether it was possible to find a common way forward on dealing with terror suspects who cannot be brought to trial.”

I suspect a stitch up job here, which will result in measures only slightly less fascist than these proposals being agreed to.

But then yet more opposition has appeared, with the head of the Metropolitican Police, Sir Ian Blair coming out in favour of using intercept evidence in court as an alternative:

Perhaps more importantly Sir Ian also disagrees with the Government about the best way of dealing with suspected terrorists. Although Charles Clarke is proposing to detain suspects in their own homes without trial, the Commissioner believes that it would be better to allow intercept evidence to be used in court so that they can be tried.

“I have long been in favour of intercept evidence being used in court,” he says. “In policing terms, it would make my job much easier. The simple reason why it would be better is that if we’ve got this, we can put it in front of a court and the court can weigh it up. At the moment, nobody can test it.”

His concern with the proposals for house arrest is that Muslims will feel alienated from the police if they see officers searching everybody who goes into a suspected terrorist’s house.

“The community will say to us, ‘What are you doing with these people, why have you got these people under all of this, why don’t you just tell us what it is you’ve got?’ That’s my position but, of course, there’s a legitimate argument on the other side.”

He is using diplomatic language, and I’m not sure there really is a legitimate argument on other side (save in the most extreme circumstances, but we’re not facing those), but it is clear he’s at odds with the government on this. It is worth noting that the civil liberties group “Liberty” has also come out in favour of accepting intercept evidence in court:

Backing Sir Ian’s stance, Shami Chakrabarti, director of human rights group Liberty, said: “Judges rather than politicians should decide when to authorise phone tapping.

“However, if it is legitimate to eavesdrop on someone’s private phone calls, it is nonsensical not to use relevant material in a criminal trial.”

It really is strange that Britain and Ireland alone in Europe do not allow intercept evidence in court. The US does it, France does it, Israel does it, Canada does it. Their security agencies seem to be able to cope why not ours?

And isn’t worth trying measures that will help bring people to trial rather than dispensing with a trial altogether, at a serious risk to individual liberty?

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