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Law Column: Section 40, IPSO, and the (former) Secretary of State


It’s not often that a former Secretary of State speaks candidly, at length, and in public, about the issues facing the press.

Which is why the annual IPSO lecture given by John Whittingdale MP a few days ago is worth considering. From his perspective not only as the former Minister for Culture Media and Sport (CMS), but also as the former chairman of the CMS Select Committee (a position he held for 10 years), Mr. Whittingdale gave quite a few insights into the issues the industry now faces.

Mr. Whittingdale began by saying that in light of the outcome of the election, he suspected that the repeal of section 40 of the Crime and Courts Act would not be seen in the immediate future. Rather, he expressed the view that the implementation of S40 will come back to the fore once again.

He warned that the industry had to make all the arguments against implementation all over again.  He used a memorable phrase to describe the current situation: “the sharks are beginning to circle again”.

But it was Mr. Whittingdale’s comments about IPSO that caught my eye. After giving a brief account of the events that led to the replacement of the PCC by IPSO, he assessed its work to date as good in parts – the proverbial curate’s egg.

Specifically, he welcomed the creation of IPSO, and said that it went a long way towards delivering what Leveson wanted from a regulator – “I commend some of its work”.

But there’s the rub – those words: “…some of…”.

So why did Mr. Whittingdale feel it necessary to qualify his endorsement of IPSO? The answer, it seems, is public opinion and ultimately, politics.

Why so? Well, as friends do, he told us some truths as to what some politicians are thinking:

IPSO was promoted as being more independent than the PCC, as having real penalties available to it which the PCC had not had, and also with an ability to initiative investigations…..I think there are a lot of people both in the public and in Parliament who are not persuaded yet that IPSO is any of those things.

“But I think ….. the public find it difficult to believe that in the over two years since IPSO has been in existence, no newspaper has done anything that merits independent investigation, or the imposition of a fine….I think it is not just an academic problem, because we are going into a political period when it is all the more important that IPSO does persuade Parliamentarians that it represents the kind of tough, independent regulator which all of us accepted was necessary after the Leveson Inquiry.

Whilst it’s rather disappointing that both the industry’s adherence to the Code and IPSO’s work in promoting standards, is not apparently being recognised, I find Mr. Whittingdale’s insight into the thinking of IPSO’s parliamentary critics to be pretty helpful.

The particular issue highlighted by Mr. Whittingdale, that some Parliamentarians see the absence of an independent investigation or the imposition of a £1m fine, as clear evidence of IPSO’s failings, is simply perverse. If no wrongdoing has been committed, and if no-one has complained, how can it possibly be reasonable to conclude that IPSO is an unfit regulator because it has not taken action?

After all, no-one criticises the police for investigating alleged crimes only when official complaints are made to, and accepted by, them. And, as far as I am aware, no-one criticises other regulators for exercising their powers only when third parties make complaints and provide evidence in support.  IPSO, it seems, is being held to a higher standard than any other public body when it comes to the enforcement of journalistic standards.

If Mr. Whittingdale is correct, and we must assume that he is, the attitude of parts of the political class to IPSO is unfair and unreasonable. Call me old fashioned, but whatever happened to the concepts of fairness, reasonableness, and evidence-based opinion?

This is not to say that IPSO does not need to be improved or reformed. No organisation can, or should, ever rest on its laurels.  But surely, any criticism as to its current approach to regulation should be the result of thoughtful analysis, evidence, and above all, fairness.

However, we are where we are, and Mr. Whittingdale’s speech makes it clear that IPSO has a real task on its hands.

I have nothing to do with IPSO, and have no connections with it. But I imagine that its senior leaders are already considering how best to demonstrate to Parliament and Parliamentarians that it is both the tough, independent, regulator that Leveson envisaged, and the supervising body that the public wants.

John Whittingdale exhorted the industry to reflect upon these issues. He’s right, of course.  But I go further, and suggest that IPSO’s critics should do likewise.