The Tories’ draft proposals for what they call a ‘tough’ new press regulator to be underpinned by a Royal Charter are a right royal disgrace to democracy and an attempt to impose more state supervision under cover of the Queen’s robes. Yet 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 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. 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 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. 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’.
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 mean 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 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 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.
From the point of view of freedom, however, the Royal Charter proposal does not represent any sort of positive alternative to statute-backed regulation. 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 Honorable Privy Council – the ancient secretive cabal of senior politicians – would simply impose the new system in the name of the Queen. 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.
Royal Charter 'incentives' are baseball bat dressed up as a carrot
Whatever method is used to implement them, the ‘Leveson principles’ should not be placed upon a pedestal, but rather trodden into the dust. The entire Leveson Inquiry has embodied the elitist hostility towards press freedom – especially for the ‘popular’ press. As I wrote here last time, 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.
Despite his gesture of opposition to statutory-backed regulation, Cameron has embraced the central Leveson principles. His Royal Charter would oversee a regulatory body made up of the great and the good, charged with re-writing 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 £1m, as demanded by Leveson.
Worse, 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 ‘exemplary’ damages on those who refuse to submit to the new regulator.
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, the website I write for, Spiked.
Little wonder that there have been signs of the pro-regulation forces in the Liberal Democrat and Labour Parties coming round to a Royal Charter as the best they can get. Yet despite the Tories’ embrace of the poisoned Leveson Principles, the cry has still gone up 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, where senior politicians turned up to be lectured, the hackademics and lawyers running the pro-regulation lobby 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, the political consensus behind the need for a new regulation system can only strengthen the atmosphere of sanitised conformism hanging over the UK media.
Defending the principle of press freedom does not mean we have to enjoy or endorse everything, or anything, that the press does. 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 is not obliged to comply with ethical rules that suit the tastes of Lord Justice Leveson, 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. That case 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.