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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Why are boundary changes bad for Labour?

New boundaries, a smaller House of Commons and the shift to individual electoral registration all tilt the electoral battlefield further towards the Conservatives. Why?

The government has confirmed it will push ahead with plans to reduce the House of Commons to 600 seats from 650.  Why is that such bad news for the Labour Party? 

The damage is twofold. The switch to individual electoral registration will hurt Labour more than its rivals. . Constituency boundaries in Britain are drawn on registered electors, not by population - the average seat has around 70,000 voters but a population of 90,000, although there are significant variations within that. On the whole, at present, Labour MPs tend to have seats with fewer voters than their Conservative counterparts. These changes were halted by the Liberal Democrats in the coalition years but are now back on course.

The new, 600-member constituencies will all but eliminate those variations on mainland Britain, although the Isle of Wight, and the Scottish island constituencies will remain special cases. The net effect will be to reduce the number of Labour seats - and to make the remaining seats more marginal. (Of the 50 seats that would have been eradicated had the 2013 review taken place, 35 were held by Labour, including deputy leader Tom Watson's seat of West Bromwich East.)

Why will Labour seats become more marginal? For the most part, as seats expand, they will take on increasing numbers of suburban and rural voters, who tend to vote Conservative. The city of Leicester is a good example: currently the city sends three Labour MPs to Westminster, each with large majorities. Under boundary changes, all three could become more marginal as they take on more wards from the surrounding county. Liz Kendall's Leicester West seat is likely to have a particularly large influx of Tory voters, turning the seat - a Labour stronghold since 1945 - into a marginal. 

The pattern is fairly consistent throughout the United Kingdom - Labour safe seats either vanishing or becoming marginal or even Tory seats. On Merseyside, three seats - Frank Field's Birkenhead, a Labour seat since 1950, and two marginal Labour held seats, Wirral South and Wirral West - will become two: a safe Labour seat, and a safe Conservative seat on the Wirral. Lillian Greenwood, the Shadow Transport Secretary, would see her Nottingham seat take more of the Nottinghamshire countryside, becoming a Conservative-held marginal. 

The traffic - at least in the 2013 review - was not entirely one-way. Jane Ellison, the Tory MP for Battersea, would find herself fighting a seat with a notional Labour majority of just under 3,000, as opposed to her current majority of close to 8,000. 

But the net effect of the boundary review and the shrinking of the size of the House of Commons would be to the advantage of the Conservatives. If the 2015 election had been held using the 2013 boundaries, the Tories would have a majority of 22 – and Labour would have just 216 seats against 232 now.

It may be, however, that Labour dodges a bullet – because while the boundary changes would have given the Conservatives a bigger majority, they would have significantly fewer MPs – down to 311 from 330, a loss of 19 members of Parliament. Although the whips are attempting to steady the nerves of backbenchers about the potential loss of their seats, that the number of Conservative MPs who face involuntary retirement due to boundary changes is bigger than the party’s parliamentary majority may force a U-Turn.

That said, Labour’s relatively weak electoral showing may calm jittery Tory MPs. Two months into Ed Miliband’s leadership, Labour averaged 39 per cent in the polls. They got 31 per cent of the vote in 2015. Two months into Tony Blair’s leadership, Labour were on 53 per cent of the vote. They got 43 per cent of the vote. A month and a half into Jeremy Corbyn’s leadership, Labour is on 31 per cent of the vote.  A Blair-style drop of ten points would see the Tories net 388 seats under the new boundaries, with Labour on 131. A smaller Miliband-style drop would give the Conservatives 364, and leave Labour with 153 MPs.  

On Labour’s current trajectory, Tory MPs who lose out due to boundary changes may feel comfortable in their chances of picking up a seat elsewhere. 

Stephen Bush is editor of the Staggers, the New Statesman’s political blog. He usually writes about politics.