An unfree press – by appointment to the Crown?

Some might be wondering if they imagined the whole year-long Leveson Inquiry into the ‘culture and ethics’ of the UK press, and the brouhaha that met the publication of Lord Justice Leveson’s report in November, so little has been heard of it lately. And even if it did happen, they could be forgiven for thinking that Leveson’s proposals for a powerful ‘independent’ statute-backed press regulator had already been forgotten, given the apparent lack of political progress towards agreeing the new system.

But they would be wrong. In fact, there have been intense negotiations and arguments over what exact form the new regulatory system should take. We have not heard much about these machinations, because the authorities do not believe that the public has any real part to play in deciding what sort of media we should be allowed to read, see and hear.

Instead, from the start the Leveson Inquiry operated as a closed shop for the political, legal and media elites, with the rest of us reduced to largely bored spectators. In the same oligarchic spirit, the post-Leveson political debate has been an invitation-only affair confined to the leaders of the main political parties, lords, lawyers – and the pro-regulation lobby group, Hacked Off.

There are, of course, differences of emphasis between these parties – notably over Leveson’s proposal that the new regulator be underpinned by law, which was rejected by Tory prime minister David Cameron but backed by Labour, the Liberal Democrats, the House of Lords and Hacked Off. However, what is much more important is that they all accept the central myth that has informed the debate since the phone-hacking scandal: the myth that the British press has been too free to run wild, and that the naughty newspapers need the firm hand of a new regulator to smack them into line.

The pro-liberty argument, that in fact the press is already neither free nor open enough, has unsurprisingly not featured in their deliberations. That pro-regulation consensus makes it also unsurprising that the main players have apparently begun to move closer to a deal on how the press should be restrained, behind the closed doors of their smoke-free rooms.

The lack of visible political progress on press reform has this week led the frustrated denizens of the House of Lords to put more pressure on the government by passing their own version of a ‘Leveson law’ – a bill to create a low-cost arbitration system, as proposed in the Leveson report. Before anybody starts cheering this latest act of ‘rebellion’ by their lordships, we might recall that Leveson’s proposed ‘voluntary’ arbitration body is in fact an indirect form of coercion on the press: the flipside of his financial ‘incentives’ for newspapers to sign up to the system is the threat of ‘exemplary’ damages being awarded against publications that refuse to bend the knee to the new regulator-arbitrators. This is just one way in which the ‘Leveson principles’ for a statute-backed regulator threaten further infringements on press freedom (see Leveson: a licence to police press freedom).

But while the lords were right to complain about a virtual ‘news blackout’ on the political negotiations over Leveson, they were wrong to suggest that nothing has been happening. In their desperation to escape from the corner they have painted themselves into – wanting to implement Leveson, but having rejected his key proposal for statute – the Tories have come up with an extraordinary ‘alternative’. They now want to see the new regulator established, not by parliamentary law, but by Royal Charter. And what is more, their opponents have lately shown signs of coming round to this dangerous idea.

Acting as the prime minister’s voice on earth, Tory Cabinet minister Oliver Letwin reportedly sprang the idea of a regulator backed by Royal Charter on to the other political leaders during cross-party talks. The details of this extraordinary proposal remain unclear, though the government has promised to announce them soon and has already begun lining up the great and the good – a top judge, a former Labour cabinet minister, etc – to play a part in judging the press.

What is clear, however, is that the Tories want to avoid going through parliament and instead set up the regulatory system using the Royal Prerogative. This is the historical constitutional device which gives Her Majesty’s Government, acting in the name of the Crown, the power to do anything from signing treaties and launching wars to appointing lords and judges, without consulting parliament, never mind the public. The Royal Prerogative is a permanent menace to democracy which ought to be abolished – indeed, it is the main argument against the monarchy. Instead, the Tories now plan to introduce this authoritarian instrument into the affairs of our supposedly free press.

A Royal Charter has to be agreed and overseen via the Privy Council. This is the ancient secretive body of advisers to the monarch, officially known as Her Majesty’s Most Honourable Privy Council. Largely made up of senior politicians, the Privy Council formally advises the sovereign on the exercise of the Royal Prerogative and the issuing of Royal Charters. In practice, this means that such executive decisions are taken by government ministers. And as the Privy Council Office’s own website makes clear, there is a strict limit to the ‘independence’ of any body set up by Royal Charter:

‘[O]nce incorporated by Royal Charter, a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to charters can be made only with the agreement of the Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of government regulation of the affairs of the body.’

So much for no political interference in the press.

Anybody with a passing knowledge of the history of the struggle for press freedom in Britain should recoil from the merest suggestion of the Crown and the Privy Council becoming once more involved in press regulation, however formal their role. It evokes grim shadows of the old system of Crown licensing of the press, started by Henry VIII in 1529 and expanded under successive monarchs, under which nothing could be published without official permission. The central body of censors enforcing that system was the Star Chamber, a secret court made up of judges and Privy Councillors. Those who dared to defy these crude early attempts to ‘regulate’ the press faced more than a slap on the wrist; an insolent author had his writing hand cut off at the wrist under Queen Elizabeth I, while a Puritan pamphleteer whose writing was less than complimentary about the wife of King Charles I had his ears removed. Even after that king has his head removed by the Puritan revolutionaries in 1649 and the Star Chamber was abolished, licensing of the press returned. As late as 1663 a printer was hanged, drawn and quartered for defying King Charles II’s monopoly of the press. Crown licensing and censorship of everything that was published did not end until 1694.

Now it seems the Conservatives want to give the Crown and the Privy Council a role in a system of regulating the press once more. There is no prospect of a return to the censorship and punishment of old (though some critics might like to cut a few journalists’ hands off). But it is still a dangerous form of state intervention in the press, the very thing that people have struggled against for more than 500 years, and presents no ‘alternative’ to Leveson’s proposed statutory regulation that is rightly seen as an historic danger. (Indeed, it is now suggested that the Royal Charter idea might need some sort of statute to entrench it.) Whether a new ‘independent’ regulator is supervised by the broadcasting regulator Ofcom (as Leveson wants), or by senior judges (as Labour have suggested), or by the Privy Council, it is state intervention by any other name, and bad news for press freedom.

Yet the Tories’ idea appears to be gaining what the political wonks call ‘traction’ in their talks. The Labour Party has made clear from the day Lord Justice Leveson published his report that it backs his call for a law to underpin the new regulator, and opposes Cameron’s position. Its culture spokesperson, Harriet Harman, says the argument against statutory intervention does not hold, because there are already laws limiting freedom of the press. Which sounds rather like saying things are already bad, so what’s wrong with making them worse? It never occurs to these state-dependent politicians that this might be an argument for getting rid of the legal restrictions that exist, rather than imposing more. However, Harman has only said of the Royal Charter idea that Labour is ‘unpersuaded’ – which, as lobbyists have pointed out, is not the same as unpersuadable. There is plenty of scope for some sort of deal backing some form of state intervention.

The Hacked Off campaign was initially more dismissive of the Tories’ Royal Charter idea – hardly surprising, as that celebrity-fronted lobby group has called for a law making it obligatory for all newspapers to submit to the new system. The Hacked Off complaint that Letwin’s proposal was ‘undemocratic’ might have been a bit rich, coming from the leading lobbyists for further restraining the democratic right to a free press. But it was also true – the notion of Privy Councillors and judges implementing a regulatory system is even less democratic and accountable than MPs doing it. However, this week Hugh Tomlinson QC, the lawyer who chairs Hacked Off, told a committee of MPs that the campaign was ‘prepared to consider’ a Royal Charter instead, if that was the best way to get a strict system of press regulation set up.

(The two-actors-a-hackademic-and-a-dog outfit that is Hacked Off continues to exercise a remarkable influence over the entire process. Having, as recently argued on spiked, set the terms and the tone for the entire Leveson Inquiry, and written most of the key proposals in the report, it is now apparently shaping the supposedly hostile Tories’ response. So, as Peter Preston points out in the Observer, ‘Hacked Off wanted a “present or former civil-service commissioner” and/or “a present high judicial officer” plonked on top of the appointments body who’ll choose the successor regulatory board to the Press Complaints Commission – and lo! their demands would seem to be met in full.

‘The government has asked Sir David Normington, current commissioner for the civil service – and public appointments as well – to move in and approve the appointments system that emerges. He’ll need Privy Council assent to extend his official brief. Expect this to follow in a few days. And meanwhile Lord Phillips, former president of our supreme court and thus just about the highest former judicial officer extant, has agreed to advise on the construction and running of that selfsame appointments apparatus.’)

One way or another, it appears that the main parties allowed into the elitist clique redefining press freedom are coming closer to agreeing a system described by the pro-regulation Institute of Public Policy Research (IPPR) as ‘underhand statutory underpinning’ for a new system of policing the press. No doubt there will be ructions, fallouts and U-turns ahead as they attempt the juggling act of appearing to support press freedom in principle while hobbling it in practice. But whatever arrangement they eventually agree to endorse, the writing is already on the wall, in big bold type, for the future of a more free and open press.

Already there are signs of politicians becoming bolder in chastising the press under the shadow of Leveson – whether it’s the culture ministry warning the Daily Telegraph that it should not expose the minister’s questionable expenses claims while she was considering the Leveson proposals, or another government minister demanding not only that an Observer columnist should be sacked for writing something she disagreed with, but that the editor should also go for daring to publish it (he quickly took it down). Expect more of the same.

This does not signal any return to historical forms of state censorship. But it should highlight the real threat that an ostensibly free UK press is facing today – not censorship, but conformism, the pressure to conform to an increasingly narrow you-can’t-say-that culture of what opinions and ideas and investigations are acceptable to publish. What the pro-regulation consensus wants is not a state-run press, but a more conformist, tamer, better sanitised press that has been ‘ethically cleansed’. And all done behind the banner of ‘Of course we believe in a free press, BUT….’

One question that, it seems, has been entirely removed from the agenda for debate is this: why should we need or accept any special rules or laws for regulating the press, anyway? Freedom of expression is the bedrock liberty of a civilised society, on which all other freedoms depend. A free press is the organised expression of that right. So why should we look to the Irish, Finnish or whatever other system of press regulation is fashionable with the controllers this month? Why not look to the American revolutionary tradition to which Britain gave birth, and match the spirit of the First Amendment to the American Constitution, which declares that Congress shall pass no law ‘abridging the freedom of speech, or of the press’?

The fight for real press freedom, against all the alternative systems of control being proposed, should be a major issue for 2013. The first step is to break the political oligarchy’s monopoly on this issue and start a proper open debate. The future of a free press is far too important to be left to those who think the ‘public interest’ should ultimately be policed, not by the public, but by the Privy Council.

Mick Hume is spiked’s editor-at-large. His new book There is No Such Thing as a Free Press… And We Need One More Than Ever is published by Societas and is now available in print and Kindle editions. (Order this book from Amazon(UK).) Visit his website here.