The report in today’s Guardian of a legal challenge to the Government’s latest consultation on Leveson shows the depths of the mire they’re in over press freedom.
Amidst reports that ministers are planning to shelve both ‘Leveson part two’ – a new inquiry into the past conduct of newspapers – and “the controversial section 40 of the Crime and Courts Act 2013 concerning legal costs”, an investigative website and some “victims of press intrusion” have sought judicial review of Karen Bradley’s consultation.
They claim that it’s unlawful because those measures were “previously promised, and because the consultation document itself is biased.” Hacked Off is, unsurprisingly, backing them up.
All this serves to remind us that Brexit isn’t the only area where Theresa May’s ministers must grapple with a shambles bequeathed them by David Cameron’s administration. She should find the courage to bring an end to this one.
It isn’t hard to see why the Government is hesitant. Under the processes set up to implement Leveson the Government isn’t responsible for choosing the new regulator. Instead it is selected by the independent Press Recognition Panel, itself appointed by an independent process.
Plenty of degrees of separation, intended to draw a clear distinction between the enlightened ‘self-regulation’ decreed by Leveson and nasty, un-British state regulation. Unfortunately, the PRP went and spoiled the illusion by choosing an outfit called Impress as their designated self-regulator.
If being voluntarily chosen by those subject to it is an important qualification for distinguishing self-regulation from state regulation, Impress doesn’t qualify: no major UK title has joined it. Those who aren’t getting by without one – such as the FT and the Guardian – are mostly members of the Independent Press Standards Organisation, an actual self-regulator.
Nor is it hard to see why, when Guido Fawkes’ ongoing, currently three-part investigation into Impress reveals it to be staffed by people with a clear agenda, rooted in a wearisomely familiar contempt for the right-wing popular press. It looks very much like a campaign group trying to set themselves up over the industry, and so unsurprisingly commands neither its respect nor its obedience.
Such obstinacy on the part of the press is what Section 40 is intended to remedy. David Aaronovitch sums it up quite well in The Times (£):
“It is, in essence, the stick that could be used to get newspapers and publications to sign up to the new state-approved press regulator, Impress. What it says is that any publication not agreeing to be regulated by Impress will be subject to the costs of a legal action — even where it wins. Really. That’s what it says.”
If media organisations have their normal legal rights to fair treatment under the law suspended unless they submit to the authority of a politically-motivated outfit, that is the point at which all the pretty language about self-regulation ought to be set aside.
This shambles has more to teach us than the value of a free press, important as that is, or the creeping judicialisation of our political process. It should also be taken as a clear demonstration of how damaging is the current trend towards shunting difficult decisions out of the political sphere.
Leveson was set up during the height of the phone hacking scandal. Politicians wanted to be seen to be doing something, and calling for an independent inquiry managed both to look dynamic and avoid them having to come up with explicit proposals. So the task was delegated to a judge and his thoughts, once set out, treated as holy writ by people who dearly want state regulation of the press but were wary of arguing for it.
The tendency for politicians to farm out difficult decisions is corrosive to democracy, for it creates the false impression that inherently political decisions have correct answers which can be impartially reached. It also creates a delay between an event and the policy reaction, which leaves us on the brink of implementing Leveson’s heavy-handed overreaction even as the police’s finally collapses into complete ignominy with the clearing of the sole Sun journalist convicted by the £20 million Operation Elveden.
Finally, such behaviour blurs the lines of democratic accountability for state policy by vesting huge amounts of power in people several degrees removed from the electorate – i.e. ‘independent’. As I’ve argued on this site previously, we need more accountability, not more independence, for those who wield powers delegated from the Government.
The behaviour at the heart of the hacking scandal was already illegal, and has been punished, but Elveden’s unmitigated failure demonstrates that it provides no case for a broader assault on the popular press – at least, not one based on equal treatment under the law of the land.
Impress is instead the vehicle by which the sort of people who make up independent panels can give weight to their distaste for behaviour which isn’t illegal by people and institutions they dislike.
Bradley should take a leaf out of the Remainers book. No law has been passed compelling her to press-gang (a telling historical meaning of ‘Impress’) our newspapers – it is the ‘will of Parliament’ only that she possess the bludgeon, not that she wield it. She has every right to leave the newspapers alone, and would be right to do so.