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Archive for the ‘regulation’ Category

Is media accountability a level playing field?

In regulation on July 17, 2009 at 4:49 pm

One contentious story. One complaining MP. Two different approaches to self-regulation.

In May, top Tory blogger Iain Dale broke an exclusive story about Tory MP James Gray, a member of the defence select committee. His report ‘James Gray and the photo of the dying soldier’ told the story of a delegation of MPs visiting Afghanistan. The MPs were at an airbase as a:

“very poorly soldier was wheeled across the tarmac to the plane. It was a very sombre moment. Suddenly, James Gray took out his camera and proceeded to take photos of the soldier. His colleagues looked on aghast. . . .The MPs were then summoned into a sideroom by the Brigadier in charge who yelled at them and told them that taking photos on such an occasion was totally unacceptable. He ordered whoever was taking the photos to delete them from their camera. Needless to say, Gray failed to step forward and own up. Whether he did delete the photos is not known.”

Iain Dale then followed this up with a claim that James Gray MP should have the whip withdrawn. Both stories remain on Iain Dale’s blog.

Iain updated the first post on three occasions so readers can see how the story unfolded. One update includes the rebuttal from James Gray, a second source coming forward and notification that the Daily Mail was running the story.

Today, the Press Complaints Commission published the outcome of James Gray’s complaint to The Sun regarding its story:

“ which contained the inaccurate claim that he had taken photographs of injured British soldiers while on a visit to Afghanistan.”

The newspaper said that claim came from “several sources” but published the following letter from the MP.

“Further to your report that I “had taken photographs of a dying soldier on a recent trip to Afghanistan” (Sun, 12 May), allow me to set the record straight.

“My colleagues and I had taken photographs of the C-17 cargo plane onto which some wounded soldiers were to be transferred but at the time we were 500 yards away in the pitch black. Any photographs would have been impossible and there is no evidence any of the soldiers were “dying.”

“I assure your readers I took no such photographs and as an active member of the Royal British Legion, Chairman of the Parliamentary All Party Group for the Army and a former TA soldier myself, I hope they will be ready to accept that assurance.”

The article is not available on The Sun’s website.

Iain Dale is accountable because he clearly updates his blog so you can track revisions, enables comments and trades on his reputation – though it costs nothing to read.

The Sun is accountable through the formal process of the PCC, because it publishes a rebuttal and trades on its reputation – which is dependent on sales and advertising revenue.

Both compete for readers online. One is self-regulated and the other is subject to no regulation. Is that fair? Which system is more preferable?

Select committee inquiry into phonetapping story

In regulation on July 14, 2009 at 5:27 pm

The culture media and sport select committee began its evidence sessions in response to the phone tapping allegations in The Guardian. The evidence is being take as part of its inquiry into press standards, privacy and libel. It was the first session attended by two new committee members: Tom Watson and Peter Ainsworth.

Committee chairman John Whittingdale informed members that: Les Hinton says he does not wish to change the evidence previously given to the committee. His original evidence was “sincere and comprehensive”.

We tweeted live from the event so a blow by blow account is available before the transcipts are published.

Tim Toulmin, the director of the PCC, was first to give evidence. He told the committee that:

  • The PCC’s concern is with the integrity of its report into subterfuge and newsgathering and to ensure the practices are not continuing
  • It will ask further questions of the Guardian and Information Commissioner if there’s any evidence it had been misled
  • It has not yet uncovered any evidence that there have been further breaches of the code. Rumours that it did go on but “absolutely does not now”
  • “Even if we introduced hanging for editors there would still be people who would criticise the PCC”.
  • The PCC has stretched the boundaries of its remit as far as possible. “We are more like an ombudsman really”, not a regulatory body
  • The PCC is set up as a mediator. Toulmin said that he had a bulging postbag of thank you letters. But it was not a legal regulator. Not set up for these sorts of inquiries.
  • A number of the committee’s questions were more a matter for the information commissioner. In particular, he suggested it was odd that the commissioner had chosen not to name the journalists who had breached others’ privacy in respect for their privacy

There were a few moments where questioning was more confrontational.

  • Adam Price asked: Will you follow up on Private Eye story that Glen Mulcaire was paid £200,000 post conviction? Toulmin replied that the PCC was not going to follow up on every tittle tattle and suggested the story was not pertinent to the report the PCC wrote at the time. Price responded that it was extraordinary to dismiss it like this. Surely central to whether there is a pattern of behaviour?
  • Paul Farrelly suggested: This narrow view of your remit is why some people want you to take a more proactive view.
  • Mike Hall said that there was a general concern that PCC has very little power.

The team from the Guardian (Alan Rusbridger, Paul Johnson and Nick Davies) were next to give evidence:

Alan Rusbridger said:

  • Self-regulation only works when newspapers are open with the PCC. For example, Associated has admitted to faults and corrected them.
  • Peta Buscombe should examine whether PCC needs to be re-constructed to undertake such investigations.
  • News International has engaged in an aggressive campaign in response with cleverly drafted denials of allegations that weren’t made
  • News International knew of involvement of other senior journalists for at least a year. Why didn’t they tell cttee or PCC?
  • Press isn’t only profession looking at issues around when it is acceptable to invade privacy: so are the secret intelligence services. Struck by David Omand recommendations in a recent ippr pamphlet

Nick Davies told the committee that:

  • One source thought News Int statement was “designed to deceive” and had now allowed Davies to provide evidence as a result
  • He had a copy of an email sent to Mulcaire, written by a NOTW reporter, which referred to Neville Thurlbeck, a senior reporter at the newspaper
  • He had a contract signed by then assistant editor Greg Miskiw with Mulcaire. In which Mulcaire had used a false name
  • The police had all this evidence so either other implicated journalists had been interviewed (in which case the NOTW statement was misleading) or they hadn’t in which case, it was a concern that the police hadn’t investigated the matter further
  • Senior reporters made requests, including Greg Miskiw who made 90 requests. 35 directed at databases. Coulson was not one of them
  • He had copies of invoices from News International to Steve Whittemore, a private investigator who specialises in blagging. Payments were clearly made by the accounts department.
  • Mulcaire submitted regular lists to the newspaper of targets of his investigations to justify his retainer.
  • News International know the identity of all senior journos commissioning illegal info becuase legal docs to Taylor also went to NI
  • There was a consistent and worrying pattern in statements made by News International to the committee and the public
  • The statement made by assistant commissioner fails to disclose the facts of the case.

The committee is expected to have two more evidence sessions before the end of the parliamentary year next week.

The challenges of reforming parliamentary regulation

In Debate, regulation on June 15, 2009 at 9:35 am

Gordon Brown has announced proposals for an “independent statutory regulator” of parliament. The new regulator will oversee the actions of politicians in parliament and remove the self-regulatory arrangements which had overseen the expenses claims regime publicised in the Telegraph.

In his announcement he dismissed as “reminiscent of the last century (a system) where the members make up the rules and operate them among themselves”. However, in the new system, MPs may still have significant influence on the regulator – but is this such a bad thing?

1. Who owns the code of conduct?
Gordon Brown has said that the code of conduct for MPs will be drawn up after consultation with all political parties represented in the Commons. The code will be enshrined in statute, to give it the force of law and the regulator will be responsible for “applying firm and appropriate sanctions”.

Therefore, the contents of the code of conduct still remains under the discretion of MPs. This is important for democratic accountability. But what happens to the code after it has been agreed? It may be desirable, for example, for the independent regulator to have a formal role in proposing amendments to the code. And should parliamentarians have any say in the interpretation of the code? What about if elements of the code are found to be ambiguous (as all laws are)? How and where the distinction between self-regulation and statutory regulation is made will have an important bearing on whether the regulator is seen to be independent.

But the alternative is worse. If the code of conduct was imposed on MPs by the regulator, it could lead to significant problems. No one is better placed to understand the job of being an MP than MPs themselves and no one faces the anger of the people more than an MP who has acted inappropriately. A code which was written by an external regulator would be unlikely to command the respect of MPs, resulting in people following the letter rather than the spirit of the rules.

2. Who determines the sanctions?
The announcement by the prime minister seemed to suggest that MPs would determine the appropriate sanctions for people who break the code – another feature of self-regulation.

“It will codify much more clearly the different potential offences that must be addressed and the options available to sanction.”

It will be interesting to observe how wide ranging these sanctions are: whether they include criminal sanctions for example. But also whether the sanctions suggested by the regulator ever puts MPs in dispute with the regulator. This could damage the legitimacy of the whole process. Advocates of self-regulation say that the harshest penalty is facing an unfavourable finding in front of your peers. Many MPs have shuddered at the prospect of having to make a statement of apology in the House of Commons. But whilst a public apology may be sufficient for misuse of parliament stationery, is it appropriate for buying a duck house on expenses?

3. Who appoints the regulator?
Gordon Brown’s statement didn’t set out who would be responsible for appointing the regulator. In a system of self-regulation, the regulator is usually appointed by an independent appointments commission, with an overview of the whole system. Many regulators are appointed by the secretary of state (eg. the Environment Agency, the IPCC) whilst others are appointed by parliament (Ofqual) or the Privy Council (the GMC) to further safeguard their independence from politics.

It is important to get the right balance in the appointment of a regulator so that the regulated have confidence in their judgment and the public are reassured that the person can act independently.

Changing self-regulation to statutory regulation for MPs is made more complicated by the fact that they are in charge of the legislative process. But it also provides a useful case study to understand many of the challenges faced when reforming regulatory systems.

Independent statutory regulation is not inherently better than self-regulation and does not necessarily inspire greater confidence amongst the public. It is often the process of regulation as much as the regulatory structures which determine whether or not it commands respect.

Self-regulation of the lobbying industry

In regulation on May 22, 2009 at 2:25 pm

The lobbying industry is currently debating how it can strengthen its arrangements of self-regulation. I have researched the issues within the industry to understand what lessons can be drawn from this for self-regulation of the press.

Currently lobbying or public affairs companies can join the Association of Professional Political Consultants whilst individuals can be a member of the Charted Institute of Public Relations – which is conditional on acceptance of the institute’s code of conduct.

Membership of the APPC is dependent on signing-up to a code of conduct and declaring all of your fee paying clients and salaried staff in a publicly available register. The code is owned by the members of the APPC who can seek election to its board. Judgements for breaches of the code are made by a committee of its members. The APPC is administered from within the industry.

In addition to the code and the register, the APPC requires that:
“the member firm, its staff and non-executive political consultants should accept and agree to abide by this Code for itself and that members will be jointly and severally liable for the actions of their staff in relation to the Code. Regulated political consultants are required to endorse the Code and to adopt and observe the principles and duties set out in it in relation to their business dealings with clients and with institutions of government.”

However, after examining the relationship between lobbying and national politics, the public administration select committee found these arrangements to be insufficient. In particular the select committee found:

  1. The guiding principles of conduct may not go far enough, but they are nonetheless a welcome and noteworthy step towards consistency of approach
  2. The APPC does not seem to attract sufficient trust throughout the lobbying industry and among its clients for it to suggest with any authority that only its members should be eligible to apply for public contracts. But the spirit of this suggestion . . . recognises that the current situation allows consultancies to pick and choose the rules that apply to them in a way that is incompatible with effective self-regulation.
  3. A complaints system that was working would have produced more than three cases in the last ten years . . . Reprimands and “severe” reprimands . . . are not of a kind that would give confidence to any outsider that disciplinary processes are robust.
  4. The APPC’s policy of expecting complainants to be prepared to bear the costs of an investigation, including the legal fees of the member complained against, is unacceptable.

Next week, I will examine the debates around reform of the self-regulatory system to identify the similarities and differences with other self-regulatory systems.

The challenges facing regulatory reform of parliament

In regulation on May 20, 2009 at 8:03 am

Gordon Brown has said that the system of self-regulation of MPs conduct, pay and expenses has to end. He told his monthly press conference:

“The keystone for any reform must be to switch from self-regulation to independent external regulation. Westminster cannot operate like some gentleman’s club where the members make up the rules and operate them among themselves.

“If MPs continue to set their own codes and rules, however objectively they try to do so, the public will always question the transparency and the standards that they rightly demand. And MPs themselves are currently put in the invidious position of having to be judge and jury of their own pay and rations.

“We will set out our proposals for an independent . . .  external to the House of Commons (which) would oversee the system . . . maintain the register of members interest and take appropriate sanctions . . .

“(in order to) respect parliamentary sovereignty it would be for parliament itself to devolve this power in these specific matters and put this on statutory footing.

There are four key questions facing parliament as it determines the nature of this regulatory body:

  • If it is to be independent, who will appoint its members?
  • If the rules are to be set by an external body, how will that body maintain the confidence of MPs and the public?
  • If the body makes a decision that the public or an MP do not like, what means of appeal will it have?
  • What powers of sanction will the body hold which still respect the democratic system eg. will it be able to force a by-election?

Gordon Brown believes that if MPs set the rules, the public will always question the transparency and standards by which the rules were set. But would an independent body maintain public confidence just because it is independent?

Any regulatory system has flaws. Just because self-regulation has failed, it does not necessarily mean that “independent external” regulation will be better, unless these key questions can be resolved and constantly reviewed.