What do you do when an entire system fails?

The Leveson inquiry is revealing a problem for which there may not be a solution.

The evidence continues to accumulate at the Leveson inquiry as to the sheer scope of British media malpractice in the first decade of the 21st century. The inquiry is not only there to investigate what went wrong, but also to suggest proposals for reform and improvement. In the words of its detailed terms of reference, the inquiry is to make recommendations:

a. for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards;
b. for how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including Parliament, Government, the prosecuting authorities and the police;
c. the future conduct of relations between politicians and the press; and
d. the future conduct of relations between the police and the press.

However, what went wrong occurred when there was -- on the face of it -- the laws and the enforcement bodies already in place. The misconduct happened anyway.

In terms of law, there was the Data Protection Act, the Computer Misuse Act, and the Regulation of Investigatory Powers Act. These statutes provided clear prohibitions in respect of almost all the "dark arts" of which we have heard; it was just that the legislation was not enforced. The PCC "Editors' Code of Practice" has -- on the face of it -- a sensible regime for guiding press behaviour. And, as with the black letter law, that also was not properly enforced.

One by one the enforcement bodies -- the Metropolitan Police, the Information Commissioner's Office, and the Press Complaints Commission -- had the opportunity to act, and, for whatever reasons, chose not to do so. Had only one of these entities discharged its obligations properly, then the illegal and immoral behaviour of the tabloids would have been significantly checked. Had all three done so, then the scandals may not have even occurred at all on any great scale.

Words on paper -- however well-intended and comprehensive -- have no greater meaning than enchantments in a book of spells unless they are translated into real-world action. Whatever are the recommendations of the Leveson inquiry, yet more words on paper will not be enough.

Perhaps there is nothing the Leveson inquiry can usefully recommend. As one eminent Victorian politician said in rebuke to another: problems may not actually have solutions. In the face of a general systemic failure of compliance and enforcement, then, the mere positing of a new system is futile.

Furthermore, the commercial and operational pressures of the tabloids over the last decade may now be changing. There is less scope for "celebrity exclusives" where the splashes are on the internet and communications between stars and those who follow them can be done directly, and not through a Show Business column. There are now different ways for tabloids to buy in their stories which are more cost effective.

The Leveson inquiry came about because a system failed comprehensively. And we may never have known, had it not been for the Royal Household complaining of hacking in a manner which could not be ignored (leading to the arrest of Clive Goodman and the seizure of Glen Mulcaire's notebooks), the investigative journalism of the Guardian and the New York Times, and the brilliant lawyering of Mark Lewis and Charlotte Harris. Between them, they were able to force results where the Metropolitan Police, the Information Commissioner, and the Press Complaints Commission all failed.

The value of the Leveson inquiry may therefore be in the accumulation of evidence and its documented exposure of routine illegal and unethical activity, rather than in any particular recommendations. The Leveson inquiry is simply telling us the story of what happens when an entire system fails.

David Allen Green is legal correspondent of New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

How Jim Murphy's mistake cost Labour - and helped make Ruth Davidson

Scottish Labour's former leader's great mistake was to run away from Labour's Scottish referendum, not on it.

The strange revival of Conservative Scotland? Another poll from north of the border, this time from the Times and YouGov, shows the Tories experiencing a revival in Scotland, up to 28 per cent of the vote, enough to net seven extra seats from the SNP.

Adding to the Nationalists’ misery, according to the same poll, they would lose East Dunbartonshire to the Liberal Democrats, reducing their strength in the Commons to a still-formidable 47 seats.

It could be worse than the polls suggest, however. In the elections to the Scottish Parliament last year, parties which backed a No vote in the referendum did better in the first-past-the-post seats than the polls would have suggested – thanks to tactical voting by No voters, who backed whichever party had the best chance of beating the SNP.

The strategic insight of Ruth Davidson, the Conservative leader in Scotland, was to to recast her party as the loudest defender of the Union between Scotland and the rest of the United Kingdom. She has absorbed large chunks of that vote from the Liberal Democrats and Labour, but, paradoxically, at the Holyrood elections at least, the “Unionist coalition” she assembled helped those parties even though it cost the vote share.

The big thing to watch is not just where the parties of the Union make gains, but where they successfully form strong second-places against whoever the strongest pro-Union party is.

Davidson’s popularity and eye for a good photo opportunity – which came first is an interesting question – mean that the natural benefactor in most places will likely be the Tories.

But it could have been very different. The first politician to hit successfully upon the “last defender of the Union” routine was Ian Murray, the last Labour MP in Scotland, who squeezed both the  Liberal Democrat and Conservative vote in his seat of Edinburgh South.

His then-leader in Scotland, Jim Murphy, had a different idea. He fought the election in 2015 to the SNP’s left, with the slogan of “Whether you’re Yes, or No, the Tories have got to go”.  There were a couple of problems with that approach, as one  former staffer put it: “Firstly, the SNP weren’t going to put the Tories in, and everyone knew it. Secondly, no-one but us wanted to move on [from the referendum]”.

Then again under different leadership, this time under Kezia Dugdale, Scottish Labour once again fought a campaign explicitly to the left of the SNP, promising to increase taxation to blunt cuts devolved from Westminster, and an agnostic position on the referendum. Dugdale said she’d be open to voting to leave the United Kingdom if Britain left the European Union. Senior Scottish Labour figures flirted with the idea that the party might be neutral in a forthcoming election. Once again, the party tried to move on – but no-one else wanted to move on.

How different things might be if instead of running away from their referendum campaign, Jim Murphy had run towards it in 2015. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.

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