Self-regulation without statutory underpinning is possible and desirable
By Tim Luckhurst
Britain’s newspaper industry has responded to the Leveson Report with commendable speed and intelligence. Brian Leveson took hearings for eight months before he started to write. But journalists understand that a job worth doing well must be done fast. So, consensus is close, and only meticulous attention to detail now delays the publication of a workable scheme for independent self-regulation enforced by contract.
Predictably, supporters of statutory underpinning are cross. They fear the emergence of self-regulation that can secure ethical standards throughout professional journalism without it. So, rejecting in advance consideration of a solution with nigh universal appeal, they have published what Professor Brian Cathcart of the Hacked Off Campaign calls “Our draft Bill – the Leveson Bill.”
None of its frequent displays of arrogance has done more to confirm Hacked Off’s reputation as this country’s most undemocratic campaign since Lady Olga Maitland’s Families for Defence. Its promotion of a self-appointed elite’s entitlement to define the public interest combines the worst instincts of Whig Imperialism and Democratic Centralism. Heaven forfend that the newspaper industry might put its own house in order. The state must intervene whether it is needed or not.
And so future battle lines are defined as essentially unchanged. Hacked Off will demand statutory underpinning no matter what a coalition of titles ranging from the Independent to the Daily Mail suggests. The risk looms that a scheme that could be in place in 2013 – with all the attendant advantages to victims of bad journalism – will be delayed indefinitely.
The constitutional, ethical and reputational dangers of statutory underpinning are understood throughout the developed world. The principle of separation between the state and journalism is enshrined in Article 19 of the Universal Declaration of Human rights, the European Convention and the first amendment to the US Constitution. Hacked Off’s convoluted efforts to redefine statutory underpinning as somehow compatible with independence from the state cannot reconcile the obviously irreconcilable.
And let nobody who professes progressive beliefs ignore warnings from abroad. Britain’s example on issues of free speech is followed and magnified throughout the developing world. If Westminster were to impose statutory underpinning, no matter how benign in the first instance, the excuse would be used mercilessly by regimes determined to crush their critics.
It is time to stop pretending that statutory underpinning as proposed by Leveson does not grant government power over newspapers. The power to certify a press regulator would be exercised by a ‘recognition body’ empowered by statute. This body would be ultimately accountable via parliament to a minister. A minister determined to get the press they wanted as opposed to the press they deserve could use this ‘hands-off’ influence to reduce newspapers’ independence to that of a Bantustan.
Joanna Hindley, special adviser to Maria Miller, Secretary of State for Culture Media and Sport, has already offered a glimpse of how ministers might start. Last December, keen to divert the Daily Telegraph’s attention from her boss’s expense claims, Ms Hindley told the newspaper’s reporter: “Maria has obviously been having quite a lot of editors’ meetings around Leveson at the moment. So I am just going to kind of flag up that connection for you to think about.” I find that chilling.
Nothing in my career in academia has depressed me as thoroughly as the absence of vocal hostility to statutory underpinning from fellow journalism academics. I beseech eminent colleagues, particularly those whose sincere commitment to decency and ethical practice has prompted them into sympathy for Hacked Off, to recognise that the state should have no greater involvement in the regulation of journalism than in the peer review of submissions to scholarly journals.
The real and urgent need is plain: Britain’s press can have a truly independent self-regulatory body with teeth. It must promote ethical standards. It must investigate serious breaches. It must have the power to impose sanctions. It must offer effective arbitration through which victims of bad journalism can obtain redress without having to go through the courts.
Newspapers, including the overwhelming mass of local, regional and national titles that have been neither accused nor convicted of the criminal offences that brought about the Leveson Inquiry, have been persuaded that these powers are required to restore trust. They seek only the freedom to put their house in order without the clunking fist of statute. Every conceivable effort should be directed to ensuring they achieve this virtuous outcome.
No bill is necessary. To introduce one would invert a long and admirable tradition of British representative democracy. It would also inaugurate a process of constant legislative revision because the pace of technological change that poses such challenges to professional journalism would hand MPs an ideal excuse to revisit and reinforce any Leveson Law that makes its way to the statute book.
So, supporters of honest, ethical and entertaining journalism capable of serving the public interest and holding power to account can have what they want in 2013. They must work with professional journalists and newspaper proprietors to achieve it. Let it happen fast, because the economic challenges confronting high quality, well-resourced professional journalism have not gone away while British opinion has been diverted into this energy-sapping debate. New research from Enders Analysis suggests that newspaper-advertising revenues fell precipitously in 2012. A similar decline in 2013 is likely.
To continue to promote statutory underpinning in these circumstances would be perverse. At the end of that route lies only bankrupt newspapers, victims betrayed and extended legal challenges under Article 10 of the ECHR. It is the equivalent of demanding a coup de grace for an awkward but valued friend.
Independent self-regulation is possible now. Newspapers can no longer behave as if they are above the law; Leveson’s Inquiry revealed too much that was atrocious to permit another fudge. But that does not mean they should be made meek, mild and obedient. If part of Hacked Off’s purpose is to tame popular titles its elite backers despise, then it must give up. These are among the newspapers that have realistic prospects of survival in the internet age. We will need them to speak truth to power.
If advocates of statutory underpinning remain unpersuaded they should remember George Orwell’s warning against cultural elitism in The Art of Donald McGill. Here he pointed out that he never read: “Temperance tracts, papal encyclicals and sermons against gambling and contraception, without seeming to hear in the background a chorus of raspberries from all the millions of common men to whom these high sentiments make no appeal.” Millions of readers would react with similar contempt to newspapers shorn of scandal and glamour. The distinction between the public interest and what the public is interested in defies accurate definition. Certain only is that a newspaper market constrained by sanctimony can serve neither.
(The author is Professor of Journalism and Head of the Centre for Journalism at the University of Kent. His latest essay “Excellent but Gullible People – The Press and the People’s Convention,” appears in Journalism Studies, Volume 14, Issue 1, 2013)