The ‘test’ for press freedom should not be set by lords or victims

The idea that the Tories’ proposals for press regulation are ‘too soft’ turns truth on its head.

Mick Hume

Mick Hume
Columnist

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Topics Free Speech

The Tories’ draft proposals for what they call a ‘tough’ new press regulator to be underpinned by a Royal Charter, published this week, are a right royal disgrace to democracy and an attempt to impose more state supervision under cover of the queen’s robes. Yet it is a sign of our illiberal times that by far the loudest criticism of the plan has been that it does not go far enough in shackling our supposedly free press.

The cry has gone up from the pro-regulation crusaders that prime minister David Cameron’s Royal Charter plan does not ‘pass the test’ of satisfying the victims of press intrusion. Nor, they complain, does it ‘meet the Leveson principles’, as laid down by Lord Justice Leveson’s proposals for a press regulator backed by statute.

So what? Who decided that the future of press freedom in our society should be determined by the whim of one bewigged Lord Justice, or by the wishes of a few high-profile people who had their phone messages hacked by a closed newspaper several years ago?

The only ‘test’ any plan should have to pass is whether it contributes towards creating the more free and open press we need to facilitate public debate. And the only ‘principles’ it needs to meet should be those bedrock principles of a democratic society: freedom of expression, and the freedom of the press that enables it. These are the grounds on which the Tories’ plans to regulate the press by Royal Charter should be thrown out of the Westminster window.

The problem is not that Cameron is being too ‘soft’ on newspapers; it is that he sees it as the state’s right and responsibility to interfere in the affairs of the press at all. This reflects the extent to which the entire post-Leveson debate has turned reality on its head. The British press does not need a tough new regulator to tame it. The truth is that it is already not nearly free or open enough.

Cameron’s Royal Charter scheme is a devious attempt to get out of the corner into which the Tory leadership has painted itself. The Tories accept the need to regulate the press as demanded by Leveson. However, Cameron has declared that Leveson’s most controversial proposal, for the new regulator to be backed up by the law, would be a step too far, ‘crossing the Rubicon’ away from the principle of a free press. Publishing their draft Royal Charter is intended to show, as the preamble states, ‘how a Leveson model might be created without using an Act of Parliament’. The Tories have been holding private cross-party talks with other political leaders in an effort to win support for their alternative.

This scheme rests on two king-sized falsehoods that no supporter of press freedom should accept. The first falsehood is the suggestion that a Royal Charter would somehow be a less onerous intervention in the media’s affairs than a parliamentary statute. The second is the notion, widely accepted on all sides, that the Leveson principles for regulating the press must be implemented as a Good Thing.

The truth is that the prime minister was right to tell the Hacked Off lobbyists this week that his proposals would give the UK the toughest regime of press regulation in the Western world – though why he thinks that is something to boast about is a mystery. Yet such is the climate of hostility towards unfettered freedom of expression today that his plans are loudly condemned by the likes of Hacked Off as being too soft.

Indeed, the only real ‘rebellion’ against the Tories’ plan has come from the House of Lords, where peers voted last week in favour of an amendment which would attach Lord Justice Leveson’s proposal for an arbitration body backed by the law to the new Defamation Bill. This is an attempt by their unelected lordships to get the judge’s plan for policing the press into law via the back door. Such is the desperate state of the debate about press freedom today that this gesture of genteel authoritarianism is what now passes for opposition to the Tories.

But it is important to insist that the Royal Charter proposal does not represent any sort of positive alternative to statute-backed regulation either, from the point of view of freedom. If anything it might be even worse. Instead of a law passed in parliament, a regulator recognised by Royal Charter would be established by order of the Crown. Using the anti-democratic Royal Prerogative, Her Majesty’s Most Honourable Privy Council – the ancient secretive cabal of senior politicians – would simply impose the new system in the name of the queen. As I pointed out here last week, such a scheme evokes shades of the old system under which nothing could be published unless licensed by the Crown via the Privy Council and the Star Chamber, which brutally suppressed publication of dissident thought for almost 200 years until licensing was finally abolished in 1694. Privy councillors might not all favour a return to hanging, drawing and quartering troublesome writers and publishers today, but such a high-handed form of state interference would still cast a long shadow over a free press.

And whatever method is used to implement them, it is also vital to raise the argument that the ‘Leveson principles’ should not be placed upon a pedestal, but rather trodden into the dust. As spiked has argued from the start, the entire Leveson Inquiry embodies the elitist hostility towards press freedom –especially for the ‘popular’ press. The proposals put forward in Lord Justice Leveson’s final report, from the oxymoronic nonsense of ‘independent self-regulation’ to the criminalisation of more methods of investigative journalism, seek to put those prejudices into practice (see Leveson: a licence to police press freedom).

Despite his gesture of opposition to statutory-backed regulation, prime minister Cameron has embraced the central Leveson principles. Thus his Royal Charter would oversee a regulatory body made up of the great and the good, charged with rewriting the journalists’ code and defining what might be in the ‘public interest’ to publish. It would also recognise Leveson’s arbitration body, which could hear complaints not only from those who feel directly abused by the press but also from third parties and ‘representative groups’. This amounts to a complainants’ charter, allowing busybodies and self-aggrandising lobbyists of every stripe to pursue their agendas with the press. The arbitrator would be empowered to hit publications it found guilty with fines of up to £1million, as demanded by Leveson.

Worse still, Cameron’s plan recognises Leveson’s proposal for using indirect compulsion to make newspapers sign up to the new system. The one demand from Hacked Off which Lord Justice Leveson balked at was that the law should compel publishers to submit to the new regulator – an explicit return to state licensing of the press. Instead Leveson opted for the idea of offering ‘incentives’ to sign up, as suggested by some misguided figures in the newspaper industry itself. The main incentive would be the low-cost arbitration service to handle complaints. The flipside, however, would be the threat of ‘exemplary’ damages and costs being inflicted by the courts on those publications that did not bend the knee to the arbitrator. In other words, a form of indirect compulsion disguised as an incentive, a baseball bat dressed up as a carrot. Lo and behold, alongside their draft Royal Charter this week the Tories also published draft clauses of the legislation that would be required to make an example of heretics by imposing such ‘exemplary’ damages. This draft law spells out that such penalties could not be applied to publications which subscribe to the regulatory body recognised by Royal Charter.

Incidentally, Cameron’s plan would also, for the first time, extend the regulatory system to include not just newspapers but other websites carrying news and opinion – such as, presumably, our own spiked.

Little wonder that there have been signs of the pro-regulation forces in the Liberal Democrat and Labour parties coming round to the idea of a Royal Charter if that is the best they can get. Yet despite the Tories’ embrace of the poisoned Leveson Principles, the cry has still gone up this week that their plans are not enough, because they have not followed the letter of the Leveson/Hacked Off demand for a proper law to back the regulator.

At a Hacked Off conference in Westminster on Monday, where senior politicians turned up to be lectured, the hackademics and lawyers running the pro-regulation campaign put up Gerry McCann, father of the missing child Madeleine, to grab the headlines by declaring that ‘Leveson without the law is meaningless’. If only that were true. With or without a Leveson’s law to underpin it, the political consensus behind the need for a new regulation system can only strengthen the atmosphere of sanitised conformism hanging over the UK media.

It is no surprise to see the anti-tabloid crusaders hiding behind high-profile victims such as the McCanns or Milly Dowler’s family, effectively deploying them as human shields for their campaign. Such victims attract entirely understandable public sympathy, and represent the crusaders’ only hold on the moral high ground. Their grim tales of press malpractice are used as the one argument which most critics of Leveson are unable or unwilling to confront. Indeed, as Hacked Off has often pointed out, Cameron made a rod for his own back by setting the test that any new system of press regulation would have to satisfy the victims of phone hacking and intrusion.

These emotive issues might be hard to deal with. But that only makes it all the more important to take a stand against any idea of a ‘victims’ veto’ over the future of press freedom. The fashionable notion of victim-centred justice has always been dangerous, moving the law closer to Medieval-style retribution than a justice system to serve the interests of society as a whole. Those dangers should be even more explicit in relation to the freedom of expression, where no group of individuals, be they victims or vicars, should be allowed to influence what the rest of us are permitted to say, publish, read or hear.

It is an historical truth that the greatest public good will always be served by the greatest freedom of expression and of the press. But freedom is always a messy business. Defending the principle of press freedom does not mean we have to enjoy or endorse everything, or indeed anything, that the press does today. It does mean accepting the liberty of others to publish what you might not want to see. The point about a free press is that it does not have to comply with ethical rules set down to suit the tastes of Lord Justice Leveson, you, me or anybody else. These liberties are indivisible, and we either defend press freedom for all or for none at all.

There are already far too many curbs on a free press in the UK, both legal and cultural. It is high time the case was put for the right of the press to be an unruly, trouble-making mess.

A last point about the public. They have been effectively excluded from the entire Leveson discussion, which has gone from the rarefied atmosphere of the Royal Courts of Justice to the smoke-free rooms of Westminster and Whitehall committees behind closed doors. Yet now the pro-regulation lobby wants to whistle the public up as a stage army to support their case. Thus Hacked Off has sought to make great play of its opinion poll which claims that 74 per cent of respondents think the Leveson report should be implemented in full. That is hardly surprising, given that the ‘Leveson principles’ for policing the press have been accepted by leading figures on all sides. Perhaps a more interesting figure, however, was that more than half of those polled admitted that they had followed the issue ‘not very closely’ or ‘not at all’. That comes as no surprise at all, given the extent to which the discussion of press regulation has been a closed shop for the legal, political and other elites, the terms set by cliques of lords, lawyers and lobbyists, the ‘debate’ conducted in the courtly jargon of Leveson’s one-million word report while the rest of us alleged idiots are fed emotive images of press victims.

This is not to pretend that there is any sort of ‘silent majority’ in favour of more press freedom today. Freedom in all of its forms is highly unfashionable in these miserable, misanthropic times. But it is right to say that there has been little or no real public debate about these crucial issues for the future of our society. And it is certain that the case for real press freedom has been all but absent from the deliberations to date. Forget the talk of ‘victims’ tests’ and ‘the Leveson principles’. The test of a civilised society remains the extent to which it can uphold the principle of freedom of expression. That is one test both the Tories and their critics are failing dismally.

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.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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