Last year, a working group within the Department for Constitutional Affairs was set up to determine which private organisations could be considered as exercising "functions of a public nature" under Section 5 of the Act. It drew up a list of criteria that could be used to identify such bodies, and a list was proposed by government departments.
The PCC is conspicuous by its absence. However, one of the working group's papers makes it clear that the PCC could be defined as a public body for the purposes of the Act. Firstly, it suggests that bodies may perform public functions "if they regulate commercial and professional activities to ensure compliance with proper standards", deploying techniques such as rule-making, adjudication and other forms of dispute resolution. Step forward the PCC's Code of Practice. Swiftly followed by its Annual Review 2003, which announces that "much is rightly made of the commission's success in resolving disputes.
The commission recognises that there will be some cases where only an adjudication is appropriate, but on the whole it believes that its role is to negotiate amicable settlements to cases where possible". QED.
Secondly, the document notes that the courts have recognised a non-statutory regulatory body as exercising a public function, if, "but for the existence of the body, the government would inevitably have intervened to regulate the activity in question". As Geoffrey Robertson and Andrew Nicol argue in Media Law: "The PCC is exercising a recognised public adjudicative function, as a government-brokered alternative either to a Calcutt-devised complaints tribunal or to a privacy law introduced by an act of parliament." Here again, it is the PCC itself that has provided the grounds for considering it a public body for the purposes of the Act. For example, its aims and objectives set out in its first annual report in 1991 include: "to secure support from the public, parliament and the press for maintaining self-regulation of the press". And shortly after his appointment as chair of the PCC, Lord Wakeham told Press Gazette in 1995 that "it's the task of the PCC and the industry to make [the] system of self-regulation so successful that nobody can seriously want to pursue the statutory option".
The advantages of the PCC being considered a public authority are obvious. I recently brought together a number of accounts by dissatisfied complainants to the PCC, and a recurrent criticism was that it was a highly opaque organisation. Many complainants particularly disliked the way it stitched up behind-the-scenes deals with offending newspapers and then presented these to com plainants on a take-it-or-leave-it basis. Were the PCC to be considered a public authority in this context, then complainants unhappy at their treatment could ask to see all correspondence relating to their complaints in order to find out what the PCC had been up to on their behalf. The same option would be open to any journalists dissatisfied with the PCC's handling of a complaint against an article by them.
On the other hand, the disadvantages to the PCC are clear. To apply the FOI to the PCC might reveal evidence of brief and unsatisfactory consideration of cases, conflicts of interest, and communications with newspapers which have not been divulged to the complainant. It might, for example, reveal the private communication between Lord Wakeham and St James's Palace as it attempted to "protect" princes William and Harry from the press.
Nor is the PCC likely to welcome a measure which would make it easier for its critics to gather further evidence of what they see as the unsatisfactory way in which it handles complaints. Given the considerable energy expended by Lord Wakeham in trying to exempt the press from the Human Rights Act, one suspects that his successor, Sir Christopher Meyer, has assiduously lobbied the DCMS to ensure that the PCC is Freedom of Information-proof. However the department denies having any dialogue on this. Thus the only course of action now is to make a request for disclosure under the Freedom of Information Act. One can almost hear the shredders whirring ...
The reality is probably that the PCC is not a public authority for the purposes of the Act because the DCMS has refused to propose it as such. To suggest that allowing complainants to find out how the PCC has dealt with their cases is a form of state intervention that might imperil democracy is to stretch the bounds of credulity. The PCC was worried that, were it considered a "public authority" for the purposes of the Human Rights Act, then, as Richard Shannon says in his history of the Commission, A Press Free and Responsible, the courts would ultimately be able "to confer upon it disciplinary powers and thus make it into their definition of a truly effective regulatory body".
And so one suspects the real reason for the PCC's exclusion from the list of public authorities lies in the government's desire to avoid a row with the press in the run-up to an election. Thus dissatisfied complainants to the PCC are denied an opportunity to cast light on its murky workings. Still, openness and accountability in a press organisation - that would never do, would it?
· Julian Petley is joint chair of the Campaign for Press and Broadcasting Freedom