Leveson is not being lobbied by extremists on both sides – Hacked Off simply wants effective independent regulation
The Guardian appears to be agonising about whether it can share yet another drink in the last chance saloon of self-regulation or whether it should support what Lord Justice Leveson might propose if that was independent regulation underpinned by statute.
In doing this, the newspaper has performed a service to its readers just as its journalism helping to expose the hacking scandal performed a service for the whole country in exposing the scale of the cover-up of widespread illegal practices by journalists.
Yet the Guardian first ought to frame the debate fairly.
Friday's editorial describes "furious lobbying … by those who wish Lord Justice Leveson to turn the statutory thumbscrews on journalists". It is unclear where this is derived from. Hacked Off, for instance, is not even calling for statutory regulation (far less thumbscrews). We are looking for independent regulation, underpinned by just enough statute to make it effective. This position is set out here, here and here and countless other places, so it is hard to see where the Guardian has found the lobbying for straight "statutory regulation", with or without thumbscrews. Perhaps a spectre is being conjured up, in comparison to which another – voluntary – system somehow looks better?
The editorial then describes lobbying "on the other side, by those who believe that the judge may be set on sweeping away 200 years or more of press freedom". This is exactly what the so-called Free Speech Network claims in a voice of thunder. So talk of "two extremes" seems unjustified. In contrast, the victims of the press have been pretty dignified in calling for an end to voluntary self-regulation. But every single one – from Hugh Grant to the Dowlers – have rejected government regulation. Just because one side of an argument is extreme, that does not justify talking glibly of "two extremes being urged on him".
The central problem with the editorial was the suggestion that "Sir Brian [Leveson] can build on the real progress made by Lord Black in outlining a new system of regulation that enjoys widespread support across the press".
The problem with the press at the moment is not just about breaches of the criminal law (hacking, bribing) or civil law (libel, intrusion). It includes stuff that is unacceptable without being unlawful. Telling a celebrity that unless they co-operate with a paper, the paper will publish another story about their mentally ill mother. Conspiring to cover up industrial scale law-breaking. Exercising a perfidious and secret hold over politicians at the top of government. There is no way that all this can be tackled by a plan cooked up by a Conservative peer, who is executive director of the Telegraph and has been the top man and the main defender of the discredited PCC.
But taking it purely on its merits, we are implored by the editorial to believe that the Black proposal is not the status quo. But it is self-regulation and described as such and promoted as such by its proponents. We are told that it promises "real investigations, tough sanctions and a commitment to the enforcement of standards that its predecessor, the PCC, did not have". Yet when the PCC was established – back there in the last chance saloon – the industry claimed the PCC had all these qualities and was doing so until recently.
The most curious argument of the editorial comes next. "But there is still merit in the outline Black plan, which goes some way to solving the so-called Richard Desmond problem – the fear that major publishers could undermine the system by simply leaving it – by requiring all publishers over a certain size to sign a five–year contract." The Desmond problem is not just about people leaving after two years of a five-year term. It is about people not returning for another term in the contract.
It is also about people never joining in the first place, and no fair and legal contract can of itself compel parties into it. So to truly "require" publishers to join the system would need at least a dab of statute. Ergo an underpinning statute is needed. This is the allegedly extreme position put by Hacked Off. It is also something that the proponents of Lord Black's scheme have never accepted and say they never will.
The editorial then espouses an arbitral arm of this self-regulatory, non-statutory, contractual system – to deal with legal press complaints.
For such a parallel system of justice to stand a chance of being legal, it would require parliament to pass a law authorising a different standard and a different penalty as the editorial concedes. Friday's editorial rightly judges that "For the press to oppose such a limited use of statute as a matter of principle would seem to be counter-productive". Quite. For Lord Black's not-a-hint-of-statute-required, totally-self-regulatory plan to work, we require not only an underpinning statute to compel newspaper proprietors to sign the contract and more statute to establish a parallel legal system of press complaints for those signed up.
But all that Rubicon-crossing underpinning new statute would itself amount to more new legislation than that required for the effective system of independent regulation that Hacked Off supports.
The editorial goes on to say that the "trouble with compulsory regulation is that, in the wrong hands, it could edge us back towards something that looks like the licensing of the press and of journalists – something that was abolished in the late 17th century and which has no place in a free society". The article concedes that "some counter that this is a baseless fear, claiming that it would be possible to enshrine in law the regulator's independence from both government and the newspaper industry". But if there was a valid fear about press freedom, the question should be – what is the problem facing Britain that we need to edge away from? The prospect of our media being run by a fascist state? Or the prospect of our state being run or over-influenced by a small number of powerful and corrupting media groups and their top executives?
You only need to read the Guardian to see that the former is absurd while the latter was and remains the clearer danger, especially if the press escape effective regulation yet again.
In support of the "fascist regime might be just round the corner" justification for supporting a purely voluntary system, the editorial asks "whether, having once conceded parliament's right to lay down the law about the regulation of the press, a Rubicon has been crossed – at least politically."
But our elected parliament has always has the right to legislate in ways that constrain the press. And has used it in respect of defamation laws, data protection, RIPA, computer misuse, contempt of court, bribery etc. Even our self-serving tabloid press, when a politician used statutory powers to obtain a conviction against the Mirror and the Mail, did not argue that our contempt of court laws were being used by a hostile Government to muzzle them. And this vengeful parliament is currently passing a defamation bill which – insufficiently I would say – liberalises the law for the media. If statute somehow begets statute, one would expect multiple amendments to these laws. There have been very few amendments to the original acts and most amendments have been liberalising.
Then we had "Europe may be on the brink of a period of social turbulence – with all the authoritarian responses that will almost inevitably follow. See this week's arrest of the Greek journalist Costas Vaxevanis for publishing the names of alleged tax evaders". This "Greeks under the bed" argument seems a bit unworthy of the Guardian, more like the preserve of the Daily Mail, as it duly confirmed with a blast on Friday.
Self-regulation in good old Blighty has been the bedrock on which the justifiable arrest of scores of senior UK journalists by a police force that can not be claimed to be hostile to the employer of those journalists, under a government that spent more time socialising with those arrested than running the country.
Next exhibit: "And look at the fury recently directed by the press and MPs at the BBC's news operation and see how ugly the mood can turn against even the most ethical and professional news organisations." This is a quite bizarre argument. Because a self-serving press can bully and victimise a public service competitor, we should back off from effective press regulation?
The editorial ends by repeating its central inconsistency. "We do believe in a contract system – not the use of statute – to secure participation". Someone needs explains how, without underpinning statute, a voluntary contract can secure participation – a problem identified by everyone at the inquiry from Lord Justice Leveson, through Robert Jay QC, up to the court usher.
Until then, Hacked Off will be arguing that the recommendations of the judge – if a bit of statute is used to secure participation of the press in a system of regulation independent of both government and the industry – is the right way forward, and that even a more independent-looking son of the PCC, based on a blueprint from the boss of the PCC is the wrong way.
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