When conscience hit the cutting room floor

Posted by Tim Gopsill

One of the more frustrating moments of the Leveson Inquiry was the questioning of Rupert Murdoch by John Hendy QC, who was representing the National Union of Journalists.

Amid the old autocrat’s evasions and lapses of memory, there was a tantalising public airing of a radical but simple measure to transform all journalism for the better: a “conscience clause” to grant journalists a legal right to stick to decent professional standards without fear of losing their jobs.

Everyone who is concerned about corporate media recognises the problem. The phone-hacking and worse things that precipitated the 2011 national newspaper crisis took place because journalists had to do as the company told them.

In the early 2000s the News International and the Mirror group tabloid papers (now shown also to be culpable in the use of journalism’s “dark arts”) were locked in grim competition to hang on to their share of the declining mass circulation market, amid prophesies that the industry was on its last legs.

Managers saw one way to shore up circulation as to step up the quota of celebrity tittle-tattle in their pages, in print and online. What was needed was an endless stream of inconsequential nonsense about royalty, show business people and others defined as famous. It didn’t matter how the journalists got hold of them.

There was another way to commercial salvation, which was to sack large numbers of journalists, to save on payroll costs. The concurrence of these two necessities required ways to generate more material from fewer people, and two came conveniently to hand. One was technology, which enabled the phone hacking; the other was money – the Big  Media corporations still had plenty of that -- which facilitated the acquisition of stories from bent public officials.

Large sums were dispensed not only to coppers, screws, mental health nurses and so on, but to former coppers who had set themselves up as private eyes, using their contacts to purloin personal data from official databanks, on an industrial scale.

Everyone knows what came of this, and the big losers were journalists. Dozens lost their jobs and their careers, were arrested, spent years on bail and weeks in court.

Whatever they thought of the things they got up to, they had little choice but to do them.

No doubt some of them were happy and had good fun. But a lot weren’t; this is known because dozens supplied evidence for Leveson about job insecurity and the prevalence of bullying in Murdoch newsrooms. A handful did so to the inquiry; quite a few more have done so since in their court cases; and others were only prepared to do so anonymously, though the NUJ, which presented it to Leveson. Go to https://www.nuj.org.uk/news/michelle-stanistreet-reveals-bullying-newsroom-culture-at/

But happy or not made no difference. Journalists on the Sun and News of the World had no right to refuse instructions to work unethically, no support to fall back on since Murdoch got rid of the NUJ along with the print unions in the 1980s, no means of venting their discontent, without putting their jobs at risk.

At Leveson on April 26 2012 John Hendy got to ask Rupert Murdoch about journalists being bullied, threatened and sacked by his managers if they didn’t do as they were told.

Hendy asked, would Rupert Murdoch acknowledge this? – “No” -- and restore recognition to the union? – “No” -- though he did concede that if a majority of journalists voted for representation by the NUJ, “I'd accept their democratic decision."

He said journalists could raise problems through the staff association his managers set up in 1999, or talk to their editors. Neither is likely to lead anywhere: the News International Staff Association (NISA, which now calls itself the News Union, since NI was renamed News UK in 2013) in  is a “sweetheart” union, entirely run and financed by the company, and as for the editors – well, who employs THEM?

Then John Hendy asked Murdoch: “Are you aware that the NUJ has for a long time been seeking the insertion in contracts of employment, not just at News International but other titles, of a conscience clause, that's to say a provision by which it is forbidden to discipline a journalist who refuses to do something which is unethical or against the code of practice?"

Murdoch said he had never heard of it. Lord Justice Leveson cut in to ask: “Do you think it's a good idea?” Murdoch replied: “For us to say as a condition of employment in a contract for a journalist they have the right to do that, I think that's a good idea”.

The full exchange is at        

https://www.nuj.org.uk/news/rupert-murdoch-quizzed-at-leveson-inquiry/#prettyPhoto/0/

For once, Murdoch was right, and Leveson was impressed. We know this because he said so in his report. He wrote: “I was struck by the evidence of journalists who felt that they might be put under pressure to do things that were unethical or against the code. I therefore suggest that the new independent self-regulatory body should establish a whistle-blowing hotline and encourage its members to ensure that journalists’ contracts include a conscience clause protecting them if they refuse."

The NUJ called on national newspapers to insert a conscience clause into journalists' contracts, and on the government to include the proposal in the Royal Charter enacted to underpin as new regulatory regime. Nothing came of it. We know this because what did happen is spelt out on the website of the media reform group Hacked Off.

On one of the stranger pages to be found on a campaigning website, Hacked Off boasts about the concessions made to the newspaper corporations in the negotiations over the charter. The page (http://hackinginquiry.org/mediareleases/whos-being-stubborn-in-the-charter-debate/) lists 12 proposals made by Leveson that Hacked Off and the political parties dropped because the bosses didn’t like them. Number 10 reads:

“Leveson said clearly that a self-regulator ‘should consider’ the introduction of protective ‘conscience clauses’ in journalists’ contracts. The draft Charter at one stage included a requirement that a self-regulator must at least show it has considered these matters, but again the industry objected and again the concession was made.”

It goes on: “The concessions were made in good faith in the hope that the industry’s leaders would be persuaded to ‘buy in’ to the new system, but as we know they have not done so.”

Anyone could have told them that would happen. And of all the things, the conscience clause is the last the bosses would ever agree to because it affects their role as employers. They’re a splendid group, Hacked Off, but rather ingenuous sometimes. They seem to think that the most important thing is to appear well-intentioned and conciliatory, which is not the way to approach Big Media.

Hacked Off may not understand how journalists work but the NUJ does. The conscience clause is an old idea but it gained traction as a reaction to the attempt by newspaper owners in the 1990s to incorporate the PCC’s Editors’ Code of Practice into journalists’ contracts of employment. The union opposed this.

It might seem strange to resist committing journalists to adhere in their work to a code that everyone respects. But making that adherence contractual turns journalistic standards into a matter of employment discipline, of relations between master and servant, rather than a personal professional obligation. If the boss says you have broken the code, you get the sack.

It would be a formula for victimisation. Say a reporter is asked to steal a person’s data, or their photograph, or overcooks a story to meet the demands of the desk – happens every day – or even makes a mistake, and there’s a well-founded complaint. The reporter has broken the code, and if the paper wants to get rid of her or him, they have no defence, because it’s in their contract. Editors, the people who give the orders, would effectively be absolved of responsibility for their publications.

Instead, the union began to push the conscience clause, which does the opposite. The clause in the NUJ rules says: “A journalist has the right to refuse assignments or be identified as the author of editorial which would break the letter and spirit of the code. No journalist can be disciplined or suffer detriment to their career for asserting his/her rights to act according to the code."

In law, its effect would be to give the sacked journalist a strong case for wrongful dismissal at the Employment Tribunal. It would restore standards to the realm of professional principle, rather than the contingencies of keeping a job.

But in the frantic discussions of March 2013, as politicians and campaigners struggled with editors to get some version of Leveson into law, the conscience clause hit the cutting room floor.

There was however in the Leveson report the related proposal for a “whistle-blowers’ hotline”. This was not conceded in the talks and indeed it is in the remit of the newspaper owners’ tame self-regulator IPSO. But five months into IPSO’s functioning existence there is no sign nor word of it.

No-one should hold great expectations of IPSO. The national paper managers have fiddled their way round every obligation they can and will continue to do so. But in any case the hotline is a useless proposal. There are lots of them about, notably in the NHS, but whistle-blowers still get sacked.

Hugh Tomlinson QC of Hacked Off, an unquestionably well-intentioned media lawyer, explains: “The idea of a hotline is they can go to the regulator and say, look I’m being asked to write this kind of article, I’m being asked to stake this person out, I’m being asked to steal their information, and I don’t want to do it – what can I do? IPSO is supposed to have a hotline but doesn’t. It says in its founding documents it will have one but it doesn’t have it.”

Notice the gap? “What can I do?” asks the beleaguered hack. Tomlinson has no answer, because there isn’t one. IPSO cannot tell reporters to defy their editors. And if it did, it couldn’t protect them from the consequences.

Hotlines might throw up interesting information on how Big Media work but they don’t challenge their power. The difficulty with the conscience clause is precisely that it does. But isn’t constraining that unaccountable power itself precisely what the purpose of Leveson was supposed to be?