Three-D Issue 19: Lord Justice Leveson’s Inquiry and the next Communications Act

Damian Tambini
London School of Economics

Media policy has always been a political minefield, and recent events have done little to defuse the terrain. The Leveson Inquiry has seen that elected politicians face deep conflicts of interest with regard to the media. Many say they should be removed from exercising ‘quasi-judicial functions’ in implementing the rules; and potentially from designing the rules themselves.  Tony Blair was careful during his Leveson appearance not to accept that New Labour traded policy for favourable media, but he did admit there was a conflict of interest: “there is a lot wrong with the way the media operate. But politicians are also in a sense, the worst people to make the point. We have much experience of it. However … we also are partisans ourselves.”1

Parliament will write the Communications Act of course, but should Leveson recommend they tighten media regulation, can politicians really be expected to bite the hands that feed them? Leveson wrestled with this dilemma2: if he reaches the conclusion that politicians have been forced by media power to compromise on matters of media policy – should his policy recommendations give elected politicians wide discretion to decide how media policy should curtail that media power?

The most sensitive issue is media ownership. Media power over public opinion is related to the size and proportion of the market for news controlled by any one company, so the rules3 that limit the size of media companies are subject to intense debate. For many observers the Phone Hacking debacle and the subsequent public policy failure provides clear empirical evidence that these checks and balances on media power simply failed.

The 2003 Communications Act set out a public interest test for media mergers which gave wide discretion to the responsible Secretary of State exercising a ‘quasi-judicial function’. It was this role that has led to so much political flak for Vince Cable and Jeremy Hunt. In preparation for the Leveson Report, the Opposition has been leading the charge for a thorough revision of these rules and limits on media ownership. But the moment Leveson reports, there is nothing to prevent politicians engaging in the same old jockeying for the favour of media owners, which could undermine trust in the entire Communications Act process.

Anyone doubting the conclusion that media power has directly influenced governments on matters of policy should carefully re-read Tony Blair’s evidence and witness statement. Tony Blair was asked about a dinner conversation with Murdoch which took place before New Labour received the “Sun endorsement” for the 1997 election:

Robert Jay QC. Then you apparently indicated that media ownership rules would not be onerous under Labour. Is it possible that you said that?

Tony Blair. I think “not onerous” is not the way I would have put it. I can’t specifically remember what was said, but it’s perfectly possible, if that issue came up, I would have said, “That’s not an issue we’re going to be taking on.”

Robert Jay QC. So whatever the position, by the end of that dinner, Mr Murdoch would have had some degree of comfort from you, at least in this particular domain. Are we agreed about that?

Tony Blair. Yeah”4

Readers, like Lord Justice Leveson himself will reach their own judgement on whether this amounted to a deal. Even though it is extremely difficult to prove any ‘implicit or express deal’ trading policy influence for favourable coverage, phone hacking and the subsequent cover up has damaged democratic legitimacy and created among the public a lingering sense of a ‘stitch up’ by the ‘politics-media complex’.

It seems clear that the Leveson Inquiry has already led to the delay in the Communications Review process which the Governmnent promised would lead to a new Communications Act. The Green Paper never materialised, and the White Paper is not due until next year.  It may be that this hot potato is so hot that legislation will be debated at exactly the wrong time: just before a general election. Regardless of the decision on ownership rules, it must be hoped that the issues that do need to be addressed: Broadband investment, the future of Channel Four, regulation of commercial public service broadcasters and net neutrality are not shelved due to a collective aversion to grasping media policy nettles on ownership.

The best bet for the Coalition would be to quickly appoint a transparent and expert independent commission with a public consultation programme on the specific issue of media ownership and media pluralism, to run alongside the Communications Review process. This would be a good way to prevent unexpected political explosions derailing the entire process.

1 Blair, Leveson Transcript. Morning May 28, p30.

2 See for example Leveson transcript Morning, July 17 p73-76. 

3 See primarily Enterprise Act 2002 Section 58 and Communications Act 2003 Schedule 14. 

4 Leveson transcript morning May 28. P44.

Posted by Einar Thorsen