Accepting Leveson means accepting we have lost

In the days since Britain’s political leaders and their favourite Hacked Off lobbyists cobbled together their shabby deal on press regulation behind closed doors, various doubts have been raised about the stitch-up reportedly agreed over pizza and Haribos in Labour leader Ed Miliband’s smoke-free room.

Many have pointed out that the cross-party deal to recognise a new press regulator by Royal Charter, underpinned by a ‘dab of statute’, does indeed ‘cross the Rubicon’ of statutory-backed regulation that Tory prime minister David Cameron pledged to resist. Newspaper groups and editors have protested about the provision to allow the courts to impose ‘exemplary damages’ on those who do not sign up to the Royal Charter’s new arbitration system. Even the parties involved in the deal and Hacked Off itself have apparently retreated from the proposal for policing the web, and are now supporting amendments that would supposedly exclude blogs and small websites from the new system. Meanwhile, there have been widespread predictions that the back-of-an-envelope scheme will turn out to be a costly and confusing mess, alongside appeals to take time to consider.

But these criticisms of the details do not go nearly far enough. The problem is that most of the critics of the Royal Charter deal still insist that they accept the principles behind Lord Justice Leveson’s proposals for policing the press. That is a fatal concession. Supporting the Leveson principles means acknowledging the need to curtail press freedom. That will make it hard, if not impossible, to resist the logic of the regulators.

To accept Leveson, in short, is to accept that we have lost the war over the freedom of the press.

The dangers of the Leveson Inquiry and report, as argued on spiked from the first, do not begin or end with the important issue of statutory intervention. Whatever means might be used to implement Leveson’s proposals – whether by statute, Royal Charter or a hybrid of both – those plans are founded on the fundamental myth of the entire post-phone hacking debate: the myth that the British press has been too free to run wild and cause trouble, and needs to be reined in and tamed somehow.

The Lord Justice’s central proposal for ‘independent self-regulation’ of the press is a contradiction in terms. If regulation is ‘independent’ of the press, it cannot be self-regulation. It will mean being policed by an outside body made up of the Great and Good – no fans of popular newspaper and dirt-digging journalism. So, signing up to the Leveson principles means signing away the right to freedom of our already-unfree press.

Last Monday’s late-night deal was not the first key moment in this struggle. That came on the day in July 2011 when Cameron first announced the Leveson Inquiry into not just phone-hacking, but the entire ‘culture and ethics’ of the British press.

It was immediately clear to some of us that this would be a showtrial in which the tabloid press was found guilty before proceedings began, an inquisition to purge the press of that which is not to the taste of those who deem ‘popular’ a dirty word. Yet many who surely should have known better went along with it, even welcoming the Lord Justice sitting in judgement on press freedom and queuing to try to catch his ear. So the head of the civil-rights lobby group Liberty became a member of Leveson’s star chamber, sorry, panel of experts. And the liberal press largely accepted the premises of the Leveson purge.

Now we see some of these people objecting to the practicalities of implementing Leveson, but it is too little and far too late. Guardian editor Alan Rusbridger (who, in the midst of the battle over Leveson and the future of the press published a book about learning to play the piano), this week wrote a long and tortuous article about the problems with the regulation plans, trying to untangle the knots his supposedly liberal newspaper tied itself up in by claiming to support both Leveson and a free press. This is the same editor who went to the Leveson Inquiry and declared to the Lord Justice that the British press had been ‘under-regulated’ – that is, too free. Now it appears that Rusbridger particularly objects to the Royal Charter’s proposal for allowing exemplary damages to be imposed on dissident newspapers. This is the same Guardian editor who was praised by the Tories for suggesting that Leveson might impose VAT for the first time on papers that refused to sign up to the new system. Having championed the idea of imposing a tax on the unregulated press, it is hard to take seriously his belated objections to the Royal Charter’s own financial penalties.

Even the latest proposals to soften some measures in the Royal Charter are still infused with the spirit of the Leveson inquisition. Take the amendments to do with the internet, reportedly backed by both the justice ministry and Hacked Off, which would seek to exclude ‘community’ websites, small blogs and not-for-profit online publications from the threat of exemplary damages. That might seem virtuous enough. Yet in fact it only underlines a central message of the entire Leveson carry-on: that freedom of expression is a gift to be handed down like charity from on high by lords and judges to those deemed worthy – and can be denied to the vulgar and undeserving.

Even if these amendments are agreed, incidentally, it remains unclear who will and will not be covered. At a debate this week I was assured by Hacked Off hackademics that spiked, for instance, would not be brought under the system. Yet justice minister Lord McNally says that online publications which wish to be exempt will need to pass ‘an interlocking series of tests’. Those are: ‘First, whether the publication publishes news-related material; second, whether the publication is written by different authors; third, whether it is to any extent subject to editorial control; and fourth, whether it is published in the course of a business.’ spiked would appear to fail on all counts. Of course it is not run as a profitable business – but then, neither is The Times or the Guardian. As spiked editor Brendan O’Neill has made clear, we would refuse to sign up in any case. There seems little reason to get excited about these discriminatory amendments.

Meanwhile, we can already see the Leveson effect taking hold of freedom of expression. The mainstream press appears far more timid about publishing controversial stories (and not just about the sex lives of celebrities). And the enemies of press freedom are smelling blood. While Hacked Off bestride the political world like smug victors, others are on the attack. A government minister has called for the Observer editor to be sacked for publishing an article she found offensive. A campaign has sprung up demanding that the Daily Mail sack its star columnist Richard Littlejohn for a similar crime. And Labour MP Jim Sheridan has called for journalists who write unflattering things about politicians to be barred from parliament.

This last example caught my attention, because it evoked an historic episode I wrote about in my book. A key moment in the eighteenth-century struggle of John Wilkes and others for the right to report the proceedings of parliament came when two newspapers described one of their main enemies in parliament as ‘little cocking George Onslow’. This led to warrants being issued for the arrest of printers, to Wilkes’ allies including the Lord Mayor London being sent to the Tower for defying MPs – and to 50,000 Londoners rioting outside Westminster and almost lynching the prime minister, Lord North, in their defence of ‘Wilkes and Liberty’ – including the liberty of the press. By contrast, in the chilling atmosphere of conformism institutionalised around Leveson, today’s little cocking MPs, by contrast, feel free to demand the exclusion of non-forelock-tugging journalists without fear of retribution.

It is late in the day, though still not too late to start an all-out fight for press freedom. But only if we are prepared to reject the Leveson principles, and insist on the principle of unfettered freedom of expression. Press freedom should not be in anybody’s gift, nor should anybody have to pass an ethical test to qualify for it. It is an indivisible freedom for all, or none at all.

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.