The Times settles Nightjack claim for £42,500 plus costs

Why there should now be a "Nightjack" test for proposals for press regulation.

The New Statesman can reveal that the Times has settled the civil claim brought by "Nightjack" blogger Richard Horton for £42,500 plus legal costs. 

Horton brought his civil claim for breach of confidentiality, misuse of private information and deceit after it emerged that his identity had not been uncovered by some brilliant piece of detective work by a staff journalist, as was maintained by the newspaper at the time, but had been established instead by unauthorised access to the blogger's email account.

There will now be a statement in open court by the Times before the end of this month.

As there is now a criminal investigation related to this matter - a journalist has been been arrested and a former in-house lawyer has been interviewed under caution - not a great deal more can be said about the circumstances of the unauthorised access.  It is a matter entirely  for the criminal courts to determine whether there is any criminal liability arising - a settlement of a civil claim does not and should not prejudice any criminal investigation.  Certainly nothing in this post should be taken to suggest any criminal liability of any person or entity connected with the case.

And given the criminal investigation, there is little which those involved can currently say about this particular case.  Horton's lawyer Mark Lewis tells me only that whilst he is delighted that his client has won substantial compensation, nothing can put Horton back in the position that his identity was secret. 

And Horton says, "I am happy to have settled with the Times and I can now put that incident behind me and get on with my life".

 

A "Nightjack test" for press regulation?

However, there is perhaps a wider issue about the case apart from the now settled civil claim and the current criminal investigation. 

The Nightjack case raises a general point relevant to the debate on press regulation which will follow publication of the recommnedations of the Leveson Inquiry.

Quite simply, without the Leveson Inquiry's effective use of statutory powers, the Nightjack incident would never have come to light.  It is thereby a perfect example of what remains hidden with "self-regulation", still the the preferred model of many in the newspaper industry.

Here it is important to note that the story only emerged when the New Statesman analysed witness statements submitted by various figures from News International in response to formal (and legally backed) requests for evidence (the full account is set out here). 

Even then, News International was initially reluctant to give a full account, and it was only when both the editor and the former legal manager of the Times were summoned to give oral evidence to the Leveson Inquiry on the incident that the fuller picture emerged of what had actually happened.

As Prof Brian Cathcart, director of Hacked Off, told me earlier today:

The Nightjack affair is a clear case of a newspaper behaving unjustly and  it would never have come to light but for the scrutiny of the Leveson Inquiry, a body with real legal clout.

No voluntary, self-regulatory regime would ever have unearthed the facts.

This is further proof that we need an effective press regulator that has teeth and is genuinely independent the press industry as well as of government.

Tom Watson MP agrees:

I hope the Prime Minister and other members of the cabinet now realise that without the statutory powers of the Leveson Inquiry none of this whole sorry saga involving Times Newspapers and News International would ever have seen the light of day.

One test - which perhaps should be called the "Nightjack test" - of any non-statutory proposals for press regulation will be how an envisaged regulator can obtain relevant documentary and witness evidence from an unwilling news title. 

Would some non-statutory regulator really be able to obtain information from a title akin to that which the Leveson Inquiry was able to prise from News International in respect of the Nightjack incident?

For many it is difficult to see how any contractual or voluntary basis for press regulation could pass this important "Nightjack test" - it would merely (again) be regulation at the fiat of the regulated.

And unless any post-Leveson press regime can pass such a "Nightjack test" then the old pre-Leveson abuses could well continue.

 

David Allen Green is legal correspondent of the New Statesman

 

POSTSCRIPT

Richard Horton has now made the following comment below the line:

None of the above would have happened without the patient, detailed forensic dissection of the facts by David Allen Green at the New Statesman. It feels like a huge weight has been lifted from my life and after 3 years of not writing anything worth a damn, I am back writing for pleasure again. Leveson was undoubtedly the lever but without David's work at the fulcrum, I would still be sat here 3 years later strongly suspecting wrongdoing but entirely without evidence.

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.)

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What will the 2017 local elections tell us about the general election?

In her timing of the election, Theresa May is taking a leaf out of Margaret Thatcher's book. 

Local elections are, on the whole, a much better guide to the next general election than anything the polls might do.

In 2012, Kevin Cunningham, then working in Labour’s targeting and analysis team, surprised his colleagues by announcing that they had lost the 2015 election. Despite gaining 823 councillors and taking control of 32 more local authorities, Cunningham explained to colleagues, they hadn’t made anything like the gains necessary for that point in the parliament. Labour duly went on to lose, in defiance of the polls, in 2015.

Matt Singh, the founder of NumberCruncherPolitics, famously called the polling failure wrong, in part because Labour under Ed Miliband had underperformed their supposed poll share in local elections and parliamentary by-elections throughout the parliament.

The pattern in parliamentary by-elections and local elections under Jeremy Corbyn before the European referendum all pointed the same way – a result that was not catastrophically but slightly worse than that secured by Ed Miliband in 2015. Since the referendum, thanks to the popularity of Theresa May, the Conservative poll lead has soared but more importantly, their performance in contests around the country has improved, too.

As regular readers will know, I was under the impression that Labour’s position in the polls had deteriorated during the coup against Corbyn, but much to my surprise, Labour’s vote share remained essentially stagnant during that period. The picture instead has been one of steady deterioration, which has accelerated since the calling of the snap election. So far, voters buy Theresa May’s message that a large majority will help her get a good Brexit deal. (Spoiler alert: it won’t.)

If the polls are correct, assuming a 2020 election, what we would expect at the local elections would be for Labour to lose around 100 councillors, largely to the benefit of the Liberal Democrats, and the Conservatives to pick up around 100 seats too, largely to the detriment of Ukip.

But having the local elections just five weeks before the general elections changes things. Basically, what tends to happen in local elections is that the governing party takes a kicking in off-years, when voters treat the contests as a chance to stick two fingers up to the boost. But they do better when local elections are held on the same day as the general election, as voters tend to vote for their preferred governing party and then vote the same way in the elections on the same day.

The Conservatives’ 2015 performance is a handy example of this. David Cameron’s Tories gained 541 councillors that night. In 2014, they lost 236, in 2013 they lost 335, and in 2012 they lost 405. In 2011, an usually good year for the governing party, they actually gained 86, an early warning sign that Miliband was not on course to win, but one obscured because of the massive losses the Liberal Democrats sustained in 2011.

The pattern holds true for Labour governments, too. In 2010, Labour gained 417 councillors, having lost 291 and 331 in Gordon Brown’s first two council elections at the helm. In 2005, with an electoral map which, like this year’s was largely unfavourable to Labour, Tony Blair’s party only lost 114 councillors, in contrast to the losses of 464 councillors (2004), 831 councillors (2003) and 334 councillors (2002).  This holds true all the way back to 1979, the earliest meaningful comparison point thanks to changes to local authorities’ sizes and electorates, where Labour (the governing party) gained council seats after years of losing them.

So here’s the question: what happens when local elections are held in the same year but not the same day as local elections? Do people treat them as an opportunity to kick the government? Or do they vote “down-ticket” as they do when they’re held on the same day?

Before looking at the figures, I expected that they would be inclined to give them a miss. But actually, only the whole, these tend to be higher turnout affairs. In 1983 and 1987, although a general election had not been yet called, speculation that Margaret Thatcher would do so soon was high. In 1987, Labour prepared advertisements and a slogan for a May election. In both contests, voters behaved much more like a general election, not a local election.

The pattern – much to my surprise – holds for 1992, too, when the Conservatives went to the country in April 1992, a month before local elections. The Conservatives gained 303 seats in May 1992.

What does this mean for the coming elections? Well, basically, a good rule of thumb for predicting general elections is to look at local election results, and assume that the government will do a bit better and the opposition parties will do significantly worse.

(To give you an idea: two years into the last parliament, Labour’s projected national vote share after the local elections was 38 per cent. They got 31 per cent. In 1985, Labour’s projected national vote share based on the local elections was 39 per cent, they got 30 per cent. In 2007, the Conservatives projected share of the vote was 40 per cent – they got 36 per cent, a smaller fall, but probably because by 2010 Gordon Brown was more unpopular even than Tony Blair had been by 2007.)

In this instance, however, the evidence suggests that the Tories will do only slightly better and Labour and the Liberal Democrats only slightly worse in June than their local election performances in May. Adjust your sense of  what “a good night” for the various parties is accordingly. 

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

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