by Max Mosley
The level of tendentiousness, even dishonesty, of the newspapers’ criticisms was breathtaking. For me, the only moment of light relief came when the Daily Mail suggested I was ‘the brains behind Leveson’. If only! Sadly, this example of dishonesty was over the top even by the Mail’s extreme standards. Everyone knew it was nonsense. A pity – I should have liked people to think I was clever enough for it to be true.
Yet, interestingly, opinion polls conducted by YouGov showed the public were standing firm. Poll after poll reported an overwhelming majority in favour of Leveson’s plan for an independent press regulator that would be stabilised by a very light-touch law. It seemed that, despite owning the megaphone, the tabloids were not as influential as they imagined. The public was on to them. I often wondered what the owners thought: did the Rothermeres approve of Dacre fighting to defend the News of the World? Would they and their friends not object to Murdoch’s so-called journalists filming them having sex in their bedrooms? Or, when the criminal trials started, did they see anything strange in the spectacle of expensive lawyers at the Old Bailey fighting hard for Brooks’s and Coulson’s Article 8 (privacy) rights to stop too many details of their six-year affair emerging?
In contrast, perhaps, to Rothermere, the public know exactly what Brooks and Coulson would have done if they had heard of two film stars conducting a doubly adulterous relationship like that. The megaphone was beginning to fall on deaf ears.
As is well known, one of Leveson’s recommendations was a form of statutory underpinning for the independent body tasked with checking that the independent regulator was doing its job. Previous experience had shown that, without this, the press would agree to all sorts of things then, when the dust had settled, they would be back to their old ways. This cycle had been repeated at least six times since the Second World War. Cameron, much too hastily, stood up in parliament and dismissed any form of statutory backing for a regulator – he did this within 24 hours of the inquiry’s report appearing. He said that to introduce a statute, however distant from the regulator, would be ‘crossing the Rubicon’. It was a very basic mistake. He could easily have taken his time, saying the government would study the inquiry’s report. It was, after all, 2000 pages long. The press had got at him, and this was obvious not just to us but also, crucially, to the public.
With the public backing Leveson, and Labour and the Lib Dems tending to support his conclusions, the press became desperate. Above all, they wanted no statute. A statute could not be quietly forgotten after a decent interval. They did not want any risk that a Leveson-style regulator would become permanent; their aim was to get back as quickly as possible to business as usual, with no tiresome impediments. Having managed to do this several times in the past 60 years, they did not intend to fail this time. The political battle lines began to be drawn.
The tabloids were in full cry, but there was also much activity on our side. The newspapers were lobbying furiously and secretly. Editors were seen coming and going from Downing Street. They seemed to have the prime minister on their side. They certainly had his ear. Cameron’s appointee, Oliver Letwin, suggested a royal charter. This was intended as a fudge but fooled no one: he and the press were saying that because a royal charter needed no statute, the politicians could be kept away from press regulation.
The reality, of course, was exactly the opposite. A royal charter could be quietly changed by a handful of ministers acting as the Privy Council. They could do this secretly, without reference to parliament. Far from removing the press from political control, it would put a regulator under direct ministerial authority. The tabloids were happy with that because they knew it would put them back in charge. They would soon be able to pressure a future government into allowing them to get back to their old tricks. It would just be a matter of waiting for the right moment.
Labour and the Lib Dems started to understand this. Hacked Off did an excellent job keeping up a steady stream of information to counteract the tendentious nonsense coming from the Daily Mail camp. Increasingly, the politicians, including some Tory rebels, were onside. At one point, encouraged by Tom Watson, Ed Miliband came out for Leveson and openly criticised Murdoch. He was the first political leader to do so, and it was a bold move because conventional wisdom was very much against. Yet his support in the opinion polls immediately leapt. This was another indication that, despite all the efforts of the tabloids, the public knew what was going on. Many of them may still read the Sun, but they now know what’s behind it and that it cannot be trusted.
BBM were active behind the scenes and very effective in parallel with Hacked Off. It was quickly apparent that the government would not allow time for a parliamentary bill to implement Leveson, but there was a plan B. This was to try to amend the Defamation Bill at its report stage in the House of Lords. If this succeeded, it would put the government in a difficult position. If they did not move, they would risk losing the Defamation Bill the press and others desperately wanted. Some suggested amendments were produced. These were put into proper form and redrafted.
The amendments placed great emphasis on access to justice. Despite all the confusion that was being created by the tabloids and their supporters, everyone could see there was something wrong if 99 per cent of the population had no means of redress if their privacy were invaded or they were libelled, particularly so now that Leveson had offered a complete solution to the problem. A formidable alliance then emerged in the House of Lords, headed by Lord Puttnam. Hacked Off were briefly unhappy because the amendments did not seek to implement the whole of Leveson. To begin with they perhaps missed the point that these amendments were never intended to become law; they were meant to send a message about access to justice to Downing Street and to the country beyond.
There was a huge majority (131) in the House of Lords for the Puttnam amendments – the message had been sent and could not have been clearer. The government and the press realised they had a problem and, consequently, press attacks on the Leveson proposals became even more irrational, verging on hysteria. Even the serious papers began to misrepresent the inquiry’s proposals. As already mentioned, even for the better editors, it had become theological. They absolutely did not want outsiders interfering with what they did.
I personally understood this somewhat. I had felt much the same when we had a succession of serious accidents in Formula One in 1994. Outsiders were talking about banning it, or getting governments and health and safety legislation involved. The thought of a bunch of well-meaning non-experts trying to fix the problem was anathema to me. But I knew back then that, if we did not genuinely and seriously set out to put things right, we would get what we didn’t want. Unlike the press, we hadn’t been through this several times before and each time failed to act properly. Whatever sympathy I had was removed by the knowledge that, if the theologians got their way, we would be back to the old tabloid habits in no time at all.
To maintain the pressure, more Leveson amendments appeared in the House of Lords. This time it was the Enterprise Bill. These were much more complete, having been prepared by Hacked Off and drafted by parliamentary counsel. Robert Skidelsky, who is a cross-bench peer, tabled them and immediately came under intense pressure from Downing Street to withdraw. He refused. Then the Daily Mail discovered he was an old friend of mine from Oxford days and mounted a full-page attack. Again, he took no notice and stood firm. Next, the Leveson supporters indicated they would also seek to amend the Crime and Courts Bill as it went through the Commons.
The government finally got the message. Unless the Leveson Report was implemented properly, which meant a degree of statutory support, there would be constant disruption to the government’s parliamentary business. Every piece of legislation with a suitable bill would be met with amendments to give effect to the Leveson proposals. On Thursday 14 March 2013 Cameron abruptly terminated the cross-party talks on Leveson that had dragged on for months. This crystallised the debate at exactly the right moment – pro-Leveson politicians had e
ven been contemplating ending the talks themselves. Over that weekend, Cameron learned that some courageous Tories would vote with Labour and the Lib Dems on the amendments to the Crime and Courts Bill, despite enormous pressure from Downing Street not to do so. It was increasingly clear that, if it came to a vote in the Commons, the government was likely to lose.
During the same weekend, Hacked Off had a late-night meeting with Ed Miliband and Nick Clegg in Miliband’s office and explained that the victims wanted cross-party agreement. Apparently, Oliver Letwin joined the meeting a bit later. The press represented this as a meeting in which the royal charter was thrown together over pizzas. The Hacked Off people saw no pizzas and the accusation of secret meetings and deals was strange coming from the press, who had had endless meetings with the government over the preceding months. All the meeting really did was give the victims an opportunity to comment on the proposals that were already in the draft royal charter which had been negotiated by the government with the press over a number of months.
But we had all long since grown used to the press dissembling at every opportunity. Although I was in touch with them, I was not part of Hacked Off and was not at the meeting. I did not know what had happened so was slightly wrong-footed doing a live radio interview in a van outside my London base the following morning. Fortunately, Harriet Harman was on just ahead of me and before I had to say anything it emerged that agreement had been reached.
The key question remained statute or no statute. In particular, whether there should be a statutory provision to prevent ministerial amendment of the royal charter. This was the fundamental difference between the position of the government and what had become an alliance of Labour, Lib Dems and other parties in the Commons backed by cross-benchers in the Lords. It was a vital issue because stopping ministers amending the charter without parliamentary scrutiny was essential if the press were to be prevented from going back to their old ways once things had calmed down. No one understood this better than the press themselves – hence their virulent opposition to any sort of statute. Above all, they did not want to be made to keep to their agreement.
Until his hand was forced, Cameron backed the press, no doubt with an eye to his own career and their support during the 2015 election. But over that weekend he heard from some of his backbenchers and eventually conceded the point. On the Monday, we at last had cross-party agreement that the royal charter could not be amended without a vote in parliament. There would be no quiet deals with ministers letting the press off the hook. A debate was scheduled for that afternoon and Tom Watson arranged a seat in the gallery for me. With everything that had happened over the past five years, it was a strange sensation listening to the speeches of the three party leaders congratulating each other on the agreement they had reached.
Next day I appeared once again before the Culture, Media and Sport Select Committee, this time with Brian Cathcart and Hugh Tomlinson QC. Three of the press-supporting Tories on the committee were clearly furious about the cross-party agreement. They seemed to be almost biting the carpet in their rage and repeatedly attacked, although rather ineffectually. Each time, they came off second best, particularly in exchanges with Hugh Tomlinson, who was much more than a match for them. The rest of the committee were objective and understood the issues. It was an entertaining morning, but with more to come.
Two days later I took part in a Joint Criminal Bar Association and Law Reform Committee debate on ‘Protecting free speech: A Public Interest Defence for the Media?’, with Gavin Millar QC and Gill Phillips, the Guardian’s lawyer, on the other side and Richard Drabble QC on the same side as me. Sir Anthony Hooper, a recently retired Appeal Court judge, was in the chair. Afterwards, Lady Hooper told me she’d once interviewed my mother and that I said ‘do’ in exactly the same way as her. That was a bit disconcerting, as even my father used to make fun of my mother’s posh voice. On his retirement, Sir Anthony had given a brilliant lecture to the Inner Temple (22 June 2012) that anyone who is interested in the rule of law and individual liberty, as well as the problem of drugs in modern society, should read.
No sooner had a draft royal charter been prepared than the press put forward a different charter and submitted it to the Privy Council. This was calculated to delay the entire process. It succeeded but by October 2013 the charter prepared by some of the press had been rejected and the Queen signed the government’s version. Elements of the press even commenced legal proceedings to stop the royal charter by judicial review, but predictably this failed. Meanwhile, a bigger danger was that the three main press groups were setting up their own wholly inadequate regulator with many essential Leveson elements missing, not least the vitally important arbitral arm giving general access to justice. It was to be under the financial control of the three press barons and their newspaper groups: Associated Newspapers, Telegraph Media Group and, of course, Murdoch’s News International, now renamed News UK.
Having repeatedly said there must be no political influence, the press barons initially appointed two Conservative peers (Lords Black and Hunt) to be in charge. It was remarkable that they were prepared to ignore Lord Justice Leveson’s recommendations plus an almost unanimous House of Commons and, according to innumerable opinion polls, a steady 70 per cent or so of the general public. It was two fingers to democracy and the rule of law. Their arrogance is astonishing.
Their hope, quite clearly, was that if they set up their own regulator it would become a fait accompli, despite falling way short of Leveson and having no statutory underpinning to stop the press backsliding. Then, in the absence of a Leveson-compliant regulator, the provisions of the Crime and Courts Act would not come into operation and the royal charter would be a dead letter.
The structure they have created consists of a supposedly independent regulator known as IPSO (Independent Press Standards Organisation). They have appointed Sir Alan Moses, an independent-minded former Appeal Court judge, as chairman. Coincidentally, it was he who chaired the first Gray’s Inn event in January 2010 mentioned in the previous chapter. That appointment was promising but the difficulty was, and remains, that IPSO is not only constitutionally far short of Leveson, but it also sits under another body, the Regulatory Funding Company (RFC), which is controlled by the usual coterie of Murdoch, Rothermere and the Barclay twins. The RFC has veto rights over IPSO covering the so-called Editors’ Code, the IPSO regulations, any arbitral system, investigations, the voting regulations, financial sanctions guidance and so on. In other words, total industry control. It will be interesting to see if Sir Alan can rebalance things.
Meanwhile, an alternative body to IPSO has been set up by Jonathan Heawood.12 Called IMPRESS, it will be fully Leveson compliant and has attracted a number of local newspapers and other publishers. It is supported by public money. Importantly, it includes an arbitral system that can give members of the public and less wealthy newspapers access to justice in disputes about libel, breach of privacy, harassment and so on. This will prevent financial bullying of individuals by rich newspapers. It will also stop financial intimidation of freelance journalists and small local newspapers by wealthy individuals. Quite clearly, press regulation is in a state of flux but, for the first time since the Second World War, it seems possible that the tabloids will not be able to go back to their old ways, as they always have in the past.
Apart from my interest in press regulation and privacy in the human rights sense, I am following closely what is happening about Rupert Murdoch and his companies in both the UK and the USA. There are also further trials involving Murdoch’s journalists in the UK, and questions about how involved James was in everything that happened while he was in charge of his family’s UK operation. I am also pursuing litigation against Google in the hope that they will eventually understand that a free and open internet (which I fully support) does not require them to ignore court decisions of democratic countries. On the contrary, responsible adults accept the rule of law as being, among other things, the guarantor of our most bas
ic freedoms.
In a very real sense, I am still living the last chapters of this book, but it will be some time before the open questions on privacy are resolved. All are works in progress and the lawyers say they cannot yet be written about in any detail. I therefore have no choice but to leave them open for the time being if I want this book to come out while the last years of my involvement in Formula One are still of interest. My work on road safety, in particular crash-testing with Global NCAP, also continues and this, too, is far from finished. So, nearly 50 years after abandoning the law for a more exciting life there’s no chance of retirement just yet.
APPENDIX
HOW THE FIA WORKS
In 1979, immediately after Jean-Marie Balestre was first elected president of the FIA’s sporting division, the Commission Sportive Internationale or CSI, the FIA was divided into five international commissions:
• Touring
• Traffic
• Customs
• Sporting
• Technical
These were all under a Committee and an Executive Committee elected by the FIA’s General Assembly. Except for sport, the original purpose of these commissions was to co-ordinate internationally the attempts of the national motoring organisations to encourage and facilitate motoring on the roads. For example, the FIA Customs Commission issued the carnet de passage en douane, which enabled a motorist to drive into another country without paying duty on the car. The FIA Traffic Commission lobbied successfully for international conventions on traffic signs and the Technical Commission persuaded the car industry to agree that the accelerator and brake pedals should be in the same place on all cars. In some early models the accelerator was in the middle, the brake on the right – not ideal in an emergency if you were used to driving a car with the other layout.