Sunday, October 18, 2015

The Leveson mess

A quarter of a century ago, during a previous period of extreme dissatisfaction with the media, a home office minister in the then government warned the press that they were "drinking in the last chance saloon."

I remember being one of the organisers of a Young Conservative conference back then, and we invited Eric Pickles - not yet a cabinet minister or even an MP, but leader of Bradford council which he was running on the Mayor's casting vote.

He replied for to one of our debates, and also gave an after-dinner speech, and during one of those speeches he discussed the problems of press behaviour and regulation and gave a cogent warning of the dangers of rushing in to regulate the press.

While I live I will never forget Eric's closing words: I can still hear him saying in his soft Yorkshire accent

"If the press is drinking in the last chance saloon, a wise government will think long and hard before calling time."

That was good advice then, and it was good advice twenty years later when the Phone Hacking scandal broke.

Ironically the allegation which turned public opinion decisively against the newspaper industry - that the News of the World had obstructed the murder investigation into the killing of teenager Millie Dowler by deleting messages from her mobile phone - appears to have been untrue. The rival newspaper which made that allegation has issued a half-hearted apology and it is now believed that the phone company had automatically deleted the messages because they were time expired.

But by the time that allegation came out the damage was done - and how!

I have no wish to defend phone hacking or any other form of illegal behaviour. It is quite clear that there was a wholly unacceptable culture of law-breaking among a large section of the press and on a very considerable scale, and that this needed to be dealt with.

But what does not appear to have been sufficiently taken into account about the phone hacking scandal is this: it did eventually come out without a new regulatory framework and was brought to court and severely dealt with under the pre-existing law.

A substantial number of editors and journalists and their associates, including some people who were at the time the investigation began among the most powerful in the country, were prosecuted. Some were acquitted - that does happen from time to time if you have independent courts which are supposed to give the accused a fair trial. But plenty were convicted and jailed.

Although I have my own concerns about the press - there have been instances where they have had a lot to answer for - I consider that the harm the press does is trivial compared with the harm which governments, councils, and some businesses will do if there is no independent scrutiny to hold them to account.

Many journalists are fools or scoundrels. But, even if they do not act in the public interest quite as often as they like to think, it remains true that often they are our fools and scoundrels: if they are not there to speak truth to power, that truth may remain unspoken.

I was very concerned that the stampede to legislation by various politicians after the Leveson inquiry might be deeply damaging to freedom of the press in Britain and hence democracy: I had the impression that David Cameron did actually get this point but many other politicians did not. My worries about the Royal Charter and other measures which are now coming into force have not been allayed by some of the reports which have come out in the past week.

The Freedom of speech group 89up has produced a report called "Lord Leveson's illiberal legacy" which should be required reading for anyone who cares about freedom of speech in Britain and the health of British democracy.

Here are a couple of key quotes

"Central to this critique of the ad hoc and repressive system of press regulation that has emerged since publication of the Leveson Report are the provisions contained in Sections 32 to 42 of the Crime and Courts Act 2013 dealing with exemplary damages and costs. These introduce the thoroughly unpalatable notion that a newspaper may face punitive damages and onerous costs in a civil case, not because of any uniquely malicious wrong it has inflicted, but because it has chosen to remain outside a regulator that is recognised under the Royal Charter."


"Newspapers will refrain from publishing challenging stories in the public interest for fear that they will face expensive consequences. That concern will be exacerbated by a truly novel and pernicious innovation: the Act decrees that a newspaper can be required to meet the claimant’s costs even when the claimant has lost. The spectre looms of blameless, public-spirited local newspapers bankrupted because they have reported harsh truths."

Let's just emphasise that point again. If a newspaper chooses not to sign up to the new state regulator - and as I understand it, not a single newspaper or magazine has signed up - and is sued for libel, they can be held liable for both their own costs and those of the person who sues them even if they prove what they printed was true and win the case.

Mike Harris 89up points out in The Telegraph here what could have happened to the Telegraph when they exposed some of the misconduct on MP's expenses:

"One powerful example is the report’s analysis of what would have faced The Daily Telegraph if it had revealed the MPs’ expenses scandal with the Leveson punishments in place. The Telegraph exposed multiple MPs over a period of weeks. And with the Leveson punishment of “cost-shifting”, the paper would have been liable for the legal costs of every single MP who decided to sue the paper, regardless of whether what it had published was true (it was), in the public interest (it was), or responsible reporting (it was). Even if The Telegraph won every single case, it would still be liable for all of these legal costs – because under Leveson, it doesn’t matter if what you write is true; all that matters is that you have to join the state-backed regulator. Good investigative journalism already costs many hundreds of thousands of pounds – under Leveson it may cost millions. Few national newspapers, and certainly no local papers, can run this risk."

Nick Cohen has a forensic analysis on what is wrong with the legislation here.

You can read "Leveson's Illiberal Legacy" here.

As Mike Harris says

"In the coming weeks, the Government will need to decide whether to activate the punishments enabled in the Crime and Courts Act. They should make it clear they will not do so. It should be a priority for the Government to repeal the draconian provisions in this Act and let the Royal Charter fall into abeyance.

"In the current parliament, with the press subjected to near-endless attacks from politicians who ought to know better, a full repeal of the law may not be possible.

"But stopping this process before it is out of control is essential. Looking to the future, any British Bill of Rights must not have fewer protections than we enjoy as citizens now. The Government should strengthen our right to free speech."


Quentin Langley said...

Great blog, Chris, raising some very important issues.

Part of the problem is that when all you have is a hammer, every problem looks like a nail. Legislators tend to assume that problems can be solved by passing laws when, in this case, the problem was entirely to do with not enforcing laws that were already on the statute book. It is what Bernard Woolley called the "this is something" syllogism:

We must do something.

This is something.

Therefore we must do this.

Chris Whiteside said...