Lessons from Leveson

Ignorance is no excuse.

If we have learned one thing from the first part of the Leveson Inquiry, it is this: for the first decade of this century there was a culture of casual lawlessness on many of the news and show-business desks in Fleet Street.

Part of this can be put down to new technology. It was relatively easy to listen to telephone messages or to guess the answers to security questions for email accounts. It was not much harder to use a "Trojan horse" email attachment or to "blag" a record of calls from a mobile telephone company. And it certainly was not difficult to pay a specialist private investigator to do any of these unlawful things.

There was also ignorance of the relevant laws. Ignorance doesn't excuse anyone from liability for criminal acts, but it helps explain the culture of unethical behaviour. A generation of reporters and in-house lawyers, fully aware of the technicalities of libel and contempt, appear to have had no real idea of technology law.

Few seemed to know that interfering with someone's email account, let alone using an intrusive Trojan horse programme, was a breach of the Computer Misuse Act 1990. In the Nightjack case, where a reporter unmasked a blogger after hacking his email, even the experienced former legal manager of the Times freely admitted that he had no idea of the existence of the act or the offences it details.

Such a culture is what can develop in business when "self-regulation" is non-existent. The sorts of ethical restraints that can come from professionalism or just good leadership are easily ignored under the pressure of deadlines and bullying editors anxious to fill their paper with copy.

However, this is where technology again has an impact. The publication of news on the internet or stored in electronic archives means that journalists and their managers can remain accountable for what they publish years after the stories have gone to print. A byline is now not only a measure of achievement but also a potential curse. Any hacking can leave electronic traces long after the story has been forgotten by anyone other than the victim.

On the books

A third lesson from Leveson is that "statutory" is not a dirty word. Many in the mainstream media have a knee-jerk reaction against "statutory" regulation but do not seem to know what the word means. A statutory power is one that has its basis in legislation rather than in a contract or
a non-binding code. And a statutory power is always specific; it is a precise device to get something done.

In the Nightjack case, it was the use of statutory powers by the Leveson inquiry that uncovered the Times using computer hacking to source
a story and then misleading the High Court. Left to self-regulation none of this would ever have come out. Whatever the solution to the problems caused by the ethics and practices of the press, it is now rather clear that they are not able to sensibly regulate themselves.

David Allen Green is the New Statesman's legal correspondent

James Harding, editor of The Times newspaper, arrives at the Leveson Inquiry, 17 January 2012. Credit: Getty Images

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

This article first appeared in the 02 April 2012 issue of the New Statesman, France is my enemy

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Is defeat in Stoke the beginning of the end for Paul Nuttall?

The Ukip leader was his party's unity candidate. But after his defeat in Stoke, the old divisions are beginning to show again

In a speech to Ukip’s spring conference in Bolton on February 17, the party’s once and probably future leader Nigel Farage laid down the gauntlet for his successor, Paul Nuttall. Stoke’s by-election was “fundamental” to the future of the party – and Nuttall had to win.
 
One week on, Nuttall has failed that test miserably and thrown the fundamental questions hanging over Ukip’s future into harsh relief. 

For all his bullish talk of supplanting Labour in its industrial heartlands, the Ukip leader only managed to increase the party’s vote share by 2.2 percentage points on 2015. This paltry increase came despite Stoke’s 70 per cent Brexit majority, and a media narrative that was, until the revelations around Nuttall and Hillsborough, talking the party’s chances up.
 
So what now for Nuttall? There is, for the time being, little chance of him resigning – and, in truth, few inside Ukip expected him to win. Nuttall was relying on two well-rehearsed lines as get-out-of-jail free cards very early on in the campaign. 

The first was that the seat was a lowly 72 on Ukip’s target list. The second was that he had been leader of party whose image had been tarnished by infighting both figurative and literal for all of 12 weeks – the real work of his project had yet to begin. 

The chances of that project ever succeeding were modest at the very best. After yesterday’s defeat, it looks even more unlikely. Nuttall had originally stated his intention to run in the likely by-election in Leigh, Greater Manchester, when Andy Burnham wins the Greater Manchester metro mayoralty as is expected in May (Wigan, the borough of which Leigh is part, voted 64 per cent for Brexit).

If he goes ahead and stands – which he may well do – he will have to overturn a Labour majority of over 14,000. That, even before the unedifying row over the veracity of his Hillsborough recollections, was always going to be a big challenge. If he goes for it and loses, his leadership – predicated as it is on his supposed ability to win votes in the north - will be dead in the water. 

Nuttall is not entirely to blame, but he is a big part of Ukip’s problem. I visited Stoke the day before The Guardian published its initial report on Nuttall’s Hillsborough claims, and even then Nuttall’s campaign manager admitted that he was unlikely to convince the “hard core” of Conservative voters to back him. 

There are manifold reasons for this, but chief among them is that Nuttall, despite his newfound love of tweed, is no Nigel Farage. Not only does he lack his name recognition and box office appeal, but the sad truth is that the Tory voters Ukip need to attract are much less likely to vote for a party led by a Scouser whose platform consists of reassuring working-class voters their NHS and benefits are safe.
 
It is Farage and his allies – most notably the party’s main donor Arron Banks – who hold the most power over Nuttall’s future. Banks, who Nuttall publicly disowned as a non-member after he said he was “sick to death” of people “milking” the Hillsborough disaster, said on the eve of the Stoke poll that Ukip had to “remain radical” if it wanted to keep receiving his money. Farage himself has said the party’s campaign ought to have been “clearer” on immigration. 

Senior party figures are already briefing against Nuttall and his team in the Telegraph, whose proprietors are chummy with the beer-swilling Farage-Banks axis. They deride him for his efforts to turn Ukip into “NiceKip” or “Nukip” in order to appeal to more women voters, and for the heavy-handedness of his pitch to Labour voters (“There were times when I wondered whether I’ve got a purple rosette or a red one on”, one told the paper). 

It is Nuttall’s policy advisers - the anti-Farage awkward squad of Suzanne Evans, MEP Patrick O’Flynn (who famously branded Farage "snarling, thin-skinned and aggressive") and former leadership candidate Lisa Duffy – come in for the harshest criticism. Herein lies the leader's almost impossible task. Despite having pitched to members as a unity candidate, the two sides’ visions for Ukip are irreconcilable – one urges him to emulate Trump (who Nuttall says he would not have voted for), and the other urges a more moderate tack. 

Endorsing his leader on Question Time last night, Ukip’s sole MP Douglas Carswell blamed the legacy of the party’s Tea Party-inspired 2015 general election campaign, which saw Farage complain about foreigners with HIV using the NHS in ITV’s leaders debate, for the party’s poor performance in Stoke. Others, such as MEP Bill Etheridge, say precisely the opposite – that Nuttall must be more like Farage. 

Neither side has yet called for Nuttall’s head. He insists he is “not going anywhere”. With his febrile party no stranger to abortive coup and counter-coup, he is unlikely to be the one who has the final say.