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

How Jim Murphy's mistake cost Labour - and helped make Ruth Davidson

Scottish Labour's former leader's great mistake was to run away from Labour's Scottish referendum, not on it.

The strange revival of Conservative Scotland? Another poll from north of the border, this time from the Times and YouGov, shows the Tories experiencing a revival in Scotland, up to 28 per cent of the vote, enough to net seven extra seats from the SNP.

Adding to the Nationalists’ misery, according to the same poll, they would lose East Dunbartonshire to the Liberal Democrats, reducing their strength in the Commons to a still-formidable 47 seats.

It could be worse than the polls suggest, however. In the elections to the Scottish Parliament last year, parties which backed a No vote in the referendum did better in the first-past-the-post seats than the polls would have suggested – thanks to tactical voting by No voters, who backed whichever party had the best chance of beating the SNP.

The strategic insight of Ruth Davidson, the Conservative leader in Scotland, was to to recast her party as the loudest defender of the Union between Scotland and the rest of the United Kingdom. She has absorbed large chunks of that vote from the Liberal Democrats and Labour, but, paradoxically, at the Holyrood elections at least, the “Unionist coalition” she assembled helped those parties even though it cost the vote share.

The big thing to watch is not just where the parties of the Union make gains, but where they successfully form strong second-places against whoever the strongest pro-Union party is.

Davidson’s popularity and eye for a good photo opportunity – which came first is an interesting question – mean that the natural benefactor in most places will likely be the Tories.

But it could have been very different. The first politician to hit successfully upon the “last defender of the Union” routine was Ian Murray, the last Labour MP in Scotland, who squeezed both the  Liberal Democrat and Conservative vote in his seat of Edinburgh South.

His then-leader in Scotland, Jim Murphy, had a different idea. He fought the election in 2015 to the SNP’s left, with the slogan of “Whether you’re Yes, or No, the Tories have got to go”.  There were a couple of problems with that approach, as one  former staffer put it: “Firstly, the SNP weren’t going to put the Tories in, and everyone knew it. Secondly, no-one but us wanted to move on [from the referendum]”.

Then again under different leadership, this time under Kezia Dugdale, Scottish Labour once again fought a campaign explicitly to the left of the SNP, promising to increase taxation to blunt cuts devolved from Westminster, and an agnostic position on the referendum. Dugdale said she’d be open to voting to leave the United Kingdom if Britain left the European Union. Senior Scottish Labour figures flirted with the idea that the party might be neutral in a forthcoming election. Once again, the party tried to move on – but no-one else wanted to move on.

How different things might be if instead of running away from their referendum campaign, Jim Murphy had run towards it in 2015. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.

0800 7318496