An interview with Sir Alan Moses - interview with the former Lord Justice of Appeal and Chair of the Independent Press Standards Organisation.
RL: Rebecca Lowe
AM: Alan Moses
RL: I’m Rebecca Lowe from the IBA and joining me at our London office is Sir Alan Moses, a former judge at the Court of Appeal and the first Chair of the Independent Press Standards Organisation, which took over from the Press Complaints Commission in Sep 2014. Sir Alan, thank you very much for joining us.
As I mentioned just now, you’re the first Chair of IPSO, the Independent Press Standards Organisation. How have the first three months been since you took up that post?
AM: Exciting. Busy. And it fills me with optimism as we’re trying to set up for the first time an independent regulator. We have been busy negotiating with the funding company representing the press, a budget. We have now agreed a budget, we have found new premises and hope to be there shortly.
RL: There have some criticisms: the Guardian, the Independent, the Financial Times, the Media Standards Trust, the Hacked Off activist group…
AM: I wouldn’t put them all in the same… The Guardian and Independent are standing in the wings watching us and waiting. But there has been vigorous and loud criticism right from the start.
RL: And is that criticism justified?
AM: It is very understandable. I don’t think it is justified because we are only for the first time setting up a new regulator and we will have to wait to see if it’s justified. But I fully understand why there is that anger and criticism, because people they speak on behalf of and people they represent have waited a very long time to see an independent regulator and in their minds far too long. From our point of view, we have been busy and acting quickly, but we only started in September. So while I understand their criticism, and while I sympathise with the sort of people they speak on behalf of, I am determined to represent to them that we will act as an independent regulator.
RL: There are some core issues that they have issues with, though. The Media Standards Trust has pointed out that the main publishers still have a veto over the budget, appointments, the code, investigations, potential arbitration mechanisms...
AM: Well, that’s about 15 different items. Which one do you want me to pick out first?
RL: Whichever you think is the most important. Because it’s quite serious, isn’t it, if the main publishers still have that kind of control over those issues?
AM: As Leveson envisaged, there has to be agreement between those who sign up – and it’s a remarkable thing they have signed up – to be regulated by an independent regulator. We’ve entered into those negotiations, we now have the money we need to start a large, new regulating authority, and we will see how much money we need during the first year. It would be madness to agree for six years a budget before we see how we are going to work and what we need. We have agreed for the first year what the figure will be, and with extras for the transfer of our offices, and then at the end of the first year we are confident we will then agree a three-year budget so we won’t have to be going backwards and forwards.
RL: What is the budget for the first year?
AM: The budget is something in the region of £2.5m, plus a substantial sum for transfer, because as you appreciate the Chairman likes a very plush office. You had better cut that bit out!
RL: £2.5m is not very much, is it? It’s the same as the PCC…
AM: No, it’s about £600,000 more; the PCC was about £1.9m. It had been quite financially run down, if I may say so.
RL: Ok, but it’s in the same sort of realm as the PCC. And you have yourself called the budget ‘hopeless’ for investigations…
AM: I’m not sure I did…
RL: I found it online in a speech you made. You described the IPSO budget for investigations into serious press misbehaviour as ‘hopeless’ and said you were worried about how little your staff were getting paid.
AM: We have now managed – that was before we negotiated the budget – so that was the opening blast on the trumpet to convince them to pay us what we need, which they now have done.
RL: And that is enough?
AM: Yes. So far as investigations, that will be an ad hoc payment for what we need when we launch a standards investigation.
RL: So you’re confident you will have the money you need to launch those sorts of investigations?
AM: Absolutely. I think what you have to understand is that we have a board and we have me, of independent minded people, who have set their reputation on the line at making this regulatory system work and they will not tolerate being prevented from doing that which the particular issues need.
RL: You said you wanted to distinguish between the attitudes of the Guardian, the FT, the Independent and some of the others, like the Media Standards Trust and Hacked Off – and I just wonder, these newspaper have not signed up yet, they are waiting in the wings to see what is going to happen. Are you confident that you can bring them into the fold?
AM: I am optimistic. I think it’s a matter for them. I think it’s a shame if we’re working effectively that they wouldn’t join up, but of course one has got to remember that all these different organisations and newspapers have different interests, different constituents, different readers and they all have to think of them and they all have very different views about the world, politics and regulation. It’s a remarkable thing that so many publications, something like 98 per cent have already signed up. And I quite understand why it is the Guardian doesn’t want to be associated with the other newspapers unless they are satisfied there is truly independent regulation. And however much I speak about it, however much I assert it, the proof will be in the way we actually act.
RL: So you are convinced it is better than the PCC, it is more independent than the PCC?
AM: It is comparing apples and pears, the two things are totally different. The PCC was a complaints handling organisation without the possibility of any sanctions at all, without the possibility of dictating where corrections and apologies should be placed in a newspaper. We are for the first time a regulatory body founded on the contractual agreement of those who have signed up, with the powers that the contract gives us. And in those circumstances we will regulate, we will not just handle complaints, we will monitor standards, we will point out where there have been breaches of the editors’ code – and where there have been deliberate and serious breaches of the code, they will be punished. None of that has ever existed before in the 75 years that people who have been debating about press freedom and regulation. The papers have never signed up contractually to be bound by a regulator. It is something that Hartley Shawcross looked for back in the early 60s and late 50s and now it has happened, and we have to see whether we can make it work. It’s something that I and the board are determined to try to do.
RL: Hacked Off says it only caters for 12 out of 38 of Leveson’s recommendations. Is that an issue? Do you agree with that number?
AM: I thought there were more differences between what Leveson recommended. Some of them are pretty broad recommendations. I don’t agree with them all, some of them I do agree with, and what is important is that now we are up and running, we enter into negotiations so we can change the rules in a way that are effective and independent. And so I am happy to say we have already had a meeting with those representing the Regulatory Funding Company as to rule changes and those rule changes discussions are continuing as we speak.
RL: And what rule changes are they?
AM: They basically deal with, first of all the complaints, to simplify and make them more comprehensible and ensure that once the newspaper and complainant have failed to reach agreement, then the IPSO complaints committee will reach a resolution and make a ruling, they fill in a gap and are intended to fill in a gap in investigations, so that if a complainant doesn’t complain but it’s a matter of significant public concern then of its own motion IPSO can investigation and reach a resolution as to the particular issues. Quite often there will be a serious issue but the complainant himself or herself doesn’t want to complain. The old PCC had the power to investigate of its own motion, IPSO should have and we are negotiating about that.
And then finally, if you read the rules, if you’re a senior wrangler, you will understand the rules in relation to standards investigations leading to fines, but I lacking that mathematical skill, am unable to understand a lot of the rules about that, so we want to simplify those. That is the first stage, there will be others that will be necessary – and, of course, we have to look into the really important question of how people can obtain redress cheaply without going to court, so we are researching arbitration and that is a fundamental aspect. Whether arbitration is the answer, or some other form of an ombudsman, remains to be seen.
But what I do want to say about the rules is that it is no easy thing to provide transparent, simple, effective rules and if you want the proof of that, you have merely to look at the efforts that Impress are making to set up themselves as a regulator. They announced they were going to do it, was it at the beginning of last year, and they think they may have devised some scheme by the end of this year. And it is difficult a task.
RL: So you think that IPSO, it may have some flaws, but you think it’s the best option on the table at the moment?
AM: It is the only option on the table. What is happening at the moment is that we’ve had well over 3,000 complaints coming to us and what I would like people to do, though it won’t be possible, is just to come and listen to our staff talking to members of the public daily on the telephone, holding their hands, speaking to them, providing them with a voice to speak on their behalf against what they feel have been breaches of the code against the press. If we weren’t there doing it, who would be? There is nobody there doing that and it is remarkable what is going on at the moment.
RL: And you feel now that you have the resources you need to do the job effectively regarding the staffing levels, the amount that they are paid and so forth?
AM: Yes. And we are going to see over the year whether that’s enough or whether for that matter it’s too much.
RL: Is £2.5m really enough?
AM: How do we know until we’ve tried? We have a staff right now of 12 and we propose to increase it to 20. It is important to recognise that the new system requires the newspaper to attempt to resolve the complaints themselves first and it’s only where that breaks down that it comes to us. So that members of the staff who have previously dealt with complaints will be dealing with standards monitoring, watching what the trends are, what the patterns are, and providing something that hasn’t been provided before, which is an important resource both for members of the public and for journalists in relation to judgments that have to be made whether there is a breach of the code.
RL: Are there any concerns about the way IPSO is fundamentally structured, though? The fact that it is under the Regulatory Funding Company, which I understand has a board of nine white industry men, so perhaps there’s a lack of diversity there.
AM: Well, I’m not responsible for the RFC…
RL: No, you’re not responsible for it, but I’m wondering about your opinion about it.
AM: Well, I’ve only just started negotiations with them. And I get on peaceably.
RL: Are they pliable?
AM: They are remarkably pliable and I get on with them peaceably at the moment. They will no doubt give you a totally opposite story and say what a bastard he is. But anyway, I get on perfectly well with them, or sufficiently well to be able to do what IPSO wants to do. But it’s very interesting about funding and the control of funding. When you say that to people and they say, oh look you’re being paid for by the newspapers, I say well let someone else pay for me, delightful. Who? Government? The taxpayer? A charity? Individuals? Who is going to be paying for any of this form of regulation? And you raise immediately the question of whether you can have an independent regulation independent of the sources of finance. And the answer seems to me: of course you can. If your systems are clear, transparent and effective, the mere fact the money comes from the newspapers is neither here nor there. And I can tell you that neither the board nor I are going to be controlled nor dictated to in the way we conduct our business.
RL: And is it clear, transparent and effective? As clear, transparent and effective as it could be and should be?
AM: You’ll have to wait and see. I refuse to answer that question until we have been able to prove it. All I can say is we will do our best and try.
RL: What about the Editors’ Code Committee, because there have also been some concerns that the Chair is Paul Dacre, and he was also the Chair of the PCC Code Committee. Is that problematic, that there’s that hangover from the days of the PCC?
AM: What has happened to the Editors’ Code Committee is for the first time not only I and the Chief Executive are going to be members of the Editors’ Code Committee, but our appointments board will appoint three other independent members so that there will be a constituency of independent members of the Editors’ Code Committee, and it’s no secret because we’ve already said so in the principles we’ve published, which no doubt you know off by heard on our website, that we are hoping for a wider membership of the editors code committee so that it can be more flexible. But obviously that is something to come in the future, because I haven’t even yet attended a meeting of the Editors’ Code Committee. But it is interesting to note that when you speak to, as I do, to members of Hacked Off or the Media Standards Trust, and you say just help us about which features of that code and principles you are unhappy with or you think are wrong, nobody identifies a single one. What is needed is flexibility so that it can change, so that people have a voice to say what they think about it. And if you read the Leveson Report, you won’t find any identification of errors or absences or lacunae within the code as it is drafted. Although I think the latest version is since Leveson.
RL: It was the interpretation of the code that was the problem.
AM: Of course it is, but interpretation will always be a problem. With all the fine judgements of what is and what is not meant by the public interest. You will always have disagreement, and IPSO won’t be doing its work if everyone agrees with its result. In the whole issue of press regulation, I think it is important to recognise that there will be whole section of people who think that a regulator is not doing its job unless it’s condemning a particular publication and fining it a million pounds. And there will be a whole other constituent who says lay off, I’m selling and making a successful newspaper, it’s absurd that you are telling me how to do my job and you will never reconcile those two views. There are members of the public who want a tasteful, balanced, reasonable newspaper, but were they waving the banner ‘Je suis Charlie’?
Fines will only be imposed in circumstances where there is an egregious breach of the code – in other words, where a newspaper has deliberately or recklessly or repeatedly ignored the code and has been cynical in abusing someone in breach of the code. Now, if you ask me how often that is going to happen in the future, how can I possibly say? The foresight of Leveson was, well the newspapers will behave themselves for a few years and then it will all lapse back into the bad old days. I simply don’t know. All I hope is that now they have signed up to independent regulation that sort of behaviour will be a thing of the past, but it can only be a hope and I have every single crossed because it is perfectly legitimate for those who have suffered in the past to be cynical about the future.
RL: Do you think the punishments are really a deterrent for the biggest publishing groups? If a million pounds really is the biggest…
AM: I don’t think it’s the money. I think you have made a very good point. What they actually hate is having someone wagging the finger at them. You’ll be surprised by how thin skinned they are. They hate being told they have got it wrong and they feel real humiliation at being told where and in what terms to place in their newspaper a correction. You’ll be really surprised. That came as a shock to me. I thought, here they are, they are powerful, they can throw their weight about, they won’t care what you say. They really do. The moment I whisper a criticism, they are down on their back saying how dare you talk about us like that – in the nicest possible way as they are all reasonable and nice people.
RL: So you feel you can get them in line, basically.
AM: I am sure I can never get them in line. And I don’t want to. I don’t think that the relationship between the regulator and the press ought to be about getting people in line, because I don’t want a press that is in line. It seems to me that people who love journalism, people who believe in the importance of the press do not want a press that is towing the line – quite the contrary.
RL: You want an unruly press.
AM: I want an unruly, irregular, annoying press, but I don’t want a bullying, cruel or distorting press.
RL: We talked a little bit about deterrents. What about the fact that a few journalists and editors were sent to jail? Has that acted as a deterrent as well? We saw Andy Coulson, Glenn Mulcaire, Clive Goodman…
AM: They are still going on those trials and I think one must be very careful about any comment.
RL: Let’s talk in the abstract about the fact that people have gone to jail, there have been convictions. Do you think this has put the press off? Has it made the press a little more wary about some of its activities?
AM: I think they are more shaken about the general public uproar about their behaviour than about individual sentences. I think the atmosphere at the time of the Leveson Inquiry and the first time people for whom I have great respect, like Christopher Jeffries, speaking out about what it was like to be abused and traduced like that, has had – and at least I hope it has had – a chastening effect. Because I do believe that in the end, the newspapers and the publications and their proprietors do believe that if they have lost all trust from the public and the readers, they eventually will disappear and nobody will care. And I don’t believe that certainly the journalists I meet don’t think that they want to be in a profession where nobody cares what they say, where it just becomes the flatulence on the airwaves. I don’t think that they want to be part of that.
RL: Just a question about social media. Do you think a regulator like IPSO is something of an anachronism when it’s not really just about newspapers now, but media is going out globally. Is there any solution to that?
AM: There needs to be real thought about whether there should be a solution about it. There are real problems. As far as IPSO is concerns, it does have jurisdiction over the online press. One mustn’t think about newspapers the way your parents read them at the breakfast table. We have jurisdiction over their online publication. The difficulty is that when you’re talking about broadcasting, they have different rules, requirements of balance and taste, which the newspapers don’t have, and that is partly why you have a different system of regulation. You have a system of licensing in relation to broadcasting and nobody hitherto has suggested a system of licensing for newspapers, unless you want to go back to Cromwell’s time or earlier. And in those circumstances there are real difficulties about difference of what you want to achieve in the media. But some sort of consolidation needs to be thought about because nothing can be worse than having a whole lot of disparate rules and disparate regulation systems.
RL: And also for social media like Twitter, YouTube and Facebook, which the public are using and are perhaps not realising they are beholden to the same rules as the traditional media.
AM: I think those who write abuse on Twitter are beginning to learn that they can find themselves paying substantial damages or going to prison if they break the law. You can’t shelter behind the anonymity, but that of course is not at present an absolute rule. But it is something that obviously needs to be thought about and solved.
RL: Now, I’d like to talk a little about broader issues to do with the legal profession. Access to justice is clearly an important issue to you. We’ve seen huge cuts to legal aid, and you’ve talked about this a lot in the past. What do you think the real impact of those cuts are going to be on the legal profession and also on society in general?
AM: Well, on society, it just means that people don’t get a fair representation in court. So far as the legal system is concerned, it means that it takes far longer, it is far more complicated and costs far more money in the end. I think the test is that one can talk in terms of, we will look at the total legal aid budget and doesn’t it seem vast amounts of money, and then wait until it’s a member of your family or friend who has got into trouble. Who do you want? You want someone to speak on their behalf with persuasion, with effectiveness. And if you destroy the independent bar, you destroy the ability to have somebody to appear on behalf of the defenceless. And I think the saddest, most tragic thing I have seen in the last few years in the law is the total inability of people who should have been in charge of ensuring that there is a legal system for everyone, destroying that representation, cynically and without a proper factual basis for doing so. So that the criminal bar struggles to survive. And who will suffer? You won’t. I won’t. But those who need a voice and haven’t got it will suffer.
RL: Do you think the cuts are a false economy because we are going to see a lot more litigants in person?
AM: You just have to look at the family courts at the moment. Really serious issues affecting people’s lives cannot be fairly litigated without representation and all it means is the judge is trying to identify the issues, fairly dispose of them without the absolutely essential assistance of independent lawyers. It will cost much more and it is deeply unfair. And what is important to remember is that inequality is also inefficient.
RL: There are reforms for judicial review going through Parliament at the moment. They have been watered down somewhat from the original proposals and now it looks like judges are going to have the final say after all. What are your thoughts about that?
AM: I think there were inefficiencies. I think judicial review is really important because it is the legal mechanism by which those in power, the Government and Executive, is held to account, and I think to make it virtually impossible to challenge decisions – even if it turns out that at the end of the day the Government or the Executive wins – is a great mistake. Because what Government and the Executive, some of them do understand, but some of them don’t, is that although the vast majority of cases are lost by claimants, it provides a legal, independent endorsement of executive action. And if that check doesn’t exist, then you have to ask well what else will act as a check on overweening power? There is absolutely nothing.
RL: The UK is often held up as a paragon in the legal world, that it has the best legal services in the world and it’s an example to others. Do you feel it’s losing some of that sheen now?
AM: Well, if you ask why that was – and many of us go around to other countries and sometimes have the impertinence to talk about our legal system to other judges – the one thing that was admired was the independent advocate speaking on behalf of the unpopular and the abused, and if you lose that you will not have anything admirable. One of the great joys of advocacy is that one day you could be prosecuting, one day you could be defending, one day you could appear for a claimant, one day you could appear for an insurance company defendant. If you put people into firms, employed, as has happened with the CPS and is happening because they simply can’t afford to go on acting as independent, you lose that priceless ability to be able to see both sides of the argument.
RL: Does it leave something of a bad taste, then, when you see something like the Rolls Building opening, which takes on a lot of cases that involve a lot of money and you get rich oligarchs coming over from Russia, Abramovich and so forth, who have their cases there, and it is held up as a great feather in the cap of the legal services in the UK?
AM: Well, it provides good income from the export of our legal expertise. I simply don’t mind. Sometimes one feels – how should one put it? – a certain ‘frisson’ when you see in the family court two husband and wife at loggerheads over their children without representation and in the next court there is somebody arguing about whether they ought to be paid £20 or £30m for weekly maintenance or annual maintenance at worst. That sticks slightly in the craw. But no, I have absolutely no objection, as long as people realise that that is not the most important aspect of our legal system.
RL: A final question about diversity in the legal profession, which we have touched on a little bit. I’m just wondering about your thoughts on the social diversity issue, because I have a statistic here on a recent report by the Social Mobility and Child Poverty Commission. It said that 75 per cent of all senior judges went to Oxbridge and 71 per cent were privately educated. You yourself went to private school and then to Oxford University. Is this a problem? Is this an issue?
AM: Yes, it is a real problem and a real issue. I worked as a judge for nearly 20 years and ever since I started they said, oh it will gradually change as people come through the profession because it’s pretty much 50:50. I think there are more women in the solicitors’ profession than men and it’s pretty much 50:50 at the bar. But they have been saying that for 20 years. It’s far too late and it’s much more urgent and much more ought to be done about it now.
You have to understand that the skills of being a member of a tribunal or a judge are shared and can be learnt about very many people, not just a tiny few who can do it. And I simply refuse to believe that there are not people that can’t be found. And there are ways of doing this. For a start, I would have time limits on how long you can be a judge in certain sections so you would be a tribunal Chairman when you are, say, in your late thirties and, say, you’re having children and want to take them to school, then you job-share in your thirties and you do a judicial job for ten years, then go back to the Bar or the solicitors’ profession. We have this complete shibboleth that once you become a judge you can’t go back to independent practice. But then you could have much younger judges earlier on, then they go back to the Bar or solicitors’ profession and then they can be High Court judges or Court of Appeal judges. But I have another hour to speak about my changes for the judicial system.
RL: Well, we’ll save that for the next interview. Sir Alan, that was a fascinating discussion, so thank you very much for joining us.