Professor Guglielmo Verdirame, King's College London,
specialises in international law, and legal and political philosophy. He is one
of the founders of the Templeton-funded Freedom Rights Project which explores
what has gone wrong with human rights and how we can fix it. He practises as a barrister at 20 Essex Street chambers.
In its dying days, the regime of President
Daniel arap Moi in Kenya established a Standing Committee on Human Rights. Not
that President Moi had suddenly become passionate about human rights; it was
just an exercise in international public relations. The Chairman of this
Committee, when invited to address a conference, said this: “Free speech has to be put in context and
interpreted against the background of what is right and what is wrong to say.”
Some members of the audience swallowed hard. When I interviewed the Chairman afterwards,
he explained: “There is no free speech
for inaccurate statements”. “Who
decides?” – I asked. “That’s one of the
functions of the Government” was his reply.
The Royal Charter on the Press, with the two
statutory amendments which – pace Mr
Cameron – do underpin it, is founded on a similar misconception: that speech should
be free only if ‘right’ or ‘accurate’.
This misconception will spread. It will
penetrate institutions and change our free habits. Aided by uncertainty about the
scope of application of the new regulation, an autocratic bureaucracy will
emerge, not only in newspapers and but potentially also in all other
organizations running “a website
containing news-related material”. “Leveson officers” will be hired. Doubtless
eager to justify their existence, they will guide, monitor, regulate, and on
The regulation of the press is part of a
broader attack on self-regulation launched by the previous Government. The current Government first did little to reverse it. With its ‘solution’ to
Leveson, it has now embraced it. From universities to the legal profession,
from Parliament (think expenses) and now to the press, ancient liberties have
been dismantled and replaced with government-sponsored bureaucracies. How could
it be otherwise? The Government always knows better and does it more fairly.
As Tocqueville foresaw, we now live in a society “with a network of small complicated rules,
minute and uniform, through which the most original minds and the most
energetic characters cannot penetrate, so that no one can rise above the crowd.”
This regulatory power, which will now extend to the press, “does not destroy, but it prevents existence;
it does not tyrannize, but it compresses, enervates, extinguishes, and
stupefies a people, till each nation is reduced to nothing better than a flock
of timid and industrious animals, of which the government is the shepherd.”
Small, complicated rules imposed by the
government, directly or through one of the various bureaucratic armies it
created, have already transformed our life. Look at what happened to
universities with research excellence frameworks, teaching quality managers,
student experience surveyors – layer after layer of bureaucracy put in place to
gratify an insatiable Leviathan.
The latest frenzy are ethics officers. In
a recent example brought to my attention, the research plan of a phd student in
a leading British university was deemed ‘unethical’ unless the student could ‘provide
the panel with further reassurance that the interviews will not induce
psychological stress or anxiety’. The other concern of this ethics soviet was
that the military personnel, whom this particular student wanted to interview, might
‘disclose details regarding illegal activities carried out by themselves or
others’. They wanted assurances that this would not happen.
The number of people who finds this sort
of stuff illiberal, intrusive and outrageous is dwindling. More and more of my
colleagues accept it as a fact of life. Some even seem to derive comfort from
all this regulation.
Why does this
matter for the press? Because, after this latest constitutional outrage, it too
is heading in that direction. It will not be long before journalists, like the
PhD student, will be asked to provide assurance to their Leveson officers that
they are not going to ‘induce stress or anxiety’. Rather than being encouraged
to go out and unveil illegal stuff, they will be asked to stay clear of that.
importantly it matters for all of us too. Once the free press is tamed,
reversing these broader oppressive trends will become almost impossible.
How can this be happening in the homeland
of liberty? Where has British liberalism gone? Labour’s liberal wing seems to
have disappeared – crushed by two decades of New Labour conformism. Even left-wing
intellectuals have largely gone quiet on the dangers of Leveson, perhaps
reassured by the stance of The Guardian and
The Independent. As for the Lib-Dems,
only a handful of them say liberal things, and the party should seriously
consider dropping the ‘liberal’ from its name altogether.
The legal profession and the courts have
on other occasions stood up for liberal principles. But their liberalism now suffers
from a deep philosophical confusion. The Human Rights Act has become the only
framework for argument about liberty. The Act, like the ECHR on which it is
modelled, is centred on proportionality and balancing. With a few exceptions
(like torture) all ECHR rights can be limited as long as the judges consider
the utilitarian calculus behind the limitation to be sound. Read the Leveson
report and you will see how deeply this utilitarianism pervades it.
The Tories, who embody the Burkean
tradition of British liberalism, had taken the right position on Leveson. Their
instincts and their analyses were correct. Even if the vote in Parliament had
been lost, they would have come out the moral winners. Why give away such an
advantage? And if they do not stand up for ancient and modern liberty, who
will? Alexander Herzen is believed to have said that
the English invented liberty without having any theories about it. We may now be killing it in the same way.