“Statutory” is not a bogey word

Why statutory regulation of the press is itself neither a good nor a bad thing.

In a striking passage in his essay On Prejudice”, the great pamphleteer and critic William Hazlitt noted:

Defoe says, that there were a hundred thousand stout country-fellows in his time ready to fight to the death against popery, without knowing whether popery was a man or a horse.

In the current debate about press regulation, one gets the sense that the word “statutory” also has the same sort of bogey quality as “popery” did for Defoe’s stout country-fellows.  

There may not be a hundred thousand stout fellows decrying the prospect of menacing statutory provisions, but there are certainly are those who are against “statutory” regulation regardless of what that would actually mean in practice.

For some, it is as if just saying that regulation will be “statutory” is enough to discredit any proposal by itself.

But what does “statutory” actually mean, and is it necessary something of which one should be scared?

All “statutory” means is that a regulatory regime has some basis in an Act of Parliament. It may well be that the statute merely gives legal personality to a regulator, allowing it to hold property and enter into contracts as a corporation (and thereby employ people). But it can also mean that specific and residual powers for that regulator are set out in statute, including perhaps the powers to obtain information or impose fines. It all depends on what the statute says.

What “statutory” does not necessarily mean is that either government or parliament will have any control or influence over the activities of a statutory body.

Unless the Act of Parliament formally allows for such a role for politicians or departments, a “statutory” regulator can be just as independent (if not more so) as one based on contract or consent.

Unless a regulator has a statutory basis for its powers, the effectiveness of the regulator is entirely at the behest of the regulated. The regulated are then free not to comply with a non-statutory regulator (which in respect of the press is called the “Desmond problem” after the proprietor of the titles who withdrew from the Press Complaints Commission).

And a regulator without statutory powers is impotent when faced with a lack of cooperation: compare the refusal of News International to provide information to the PCC when the hacking scandal first broke with News International’s ready compliance with the statutory powers of the Leveson Inquiry (for example in the Nightjack case).

Almost every profession has a regulatory regime based in statute or a similar legal instrument (such as a Royal Charter). This includes professions which emphasise their day-to-day independence from the government of the day, such as lawyers and the police. “Statutory regulation” does not, by itself, mean either government control or parliamentary supervision; indeed, statutory provisions can entrench independence from wrongful interference by the politically powerful. In this way, statutory regulation can provide a shield as well as a sword.

Some journalists say that there is no place for any statutory regulation of the press whatsoever: the newspapers are there to hold MPs to account, the argument goes, and they cannot properly do this if they are subject to any control enacted by MPs.

However, this view is misconceived, as journalistic activity is already significantly regulated by statute, from the Contempt of Court Act and the Magistrates’ Court Act to the Data Protection Act and the Computer Misuse Act.

Indeed, the current edition of McNae’s Essential Law for Journalists lists over 85 statutes which can be applicable to a working journalist.

It may well be that some of these laws could be repealed or amended; but a journalist who does not believe themselves already regulated by statute is unaware of the legal context of what they do.

Accordingly “statutory” does not need to be a bogey word. And to sneer at “statutory” regulation, or be alarmist about it, is not enough to undermine it. The important question is what is being done with the statute.

And this also means “statutory regulation” is not necessarily a good thing either. The soundness of any regulatory regime for press will come down to how it will affect the behaviour of the regulated from that which would occur without regulation. A statutory power to obtain evidence or impose a sanction does not by itself mean a better outcome. Those in favour of a better newspaper industry cannot treat statutory regulation as a panacea. Black ink in a statute book is not enough to improve the culture which tolerated tabloid excesses.

As Lord Justice Leveson prepares to issue his Inquiry's report, the debate over press regulation risks being derailed by bluster and misdirection by vested interests.  The crucial thing is whether any proposed scheme actually works, and in what ways. And this is the case whether one thinks “statutory” to be a basis of legal power or a horse.

 

Some non-scary statute books today (pic: David Allen Green)

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.)

Photo: Bulent Kilic/Getty Images
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We need to talk about the origins of the refugee crisis

Climate change, as much as Isis, is driving Europe's migrant crisis, says Barry Gardiner. 

Leaders get things wrong. Of course they do. They have imperfect information. They face competing political pressures. Ultimately they are human. The mark of a bad leader is not to make the wrong decision. It is to make no decision at all.

David Cameron’s paralysis over the unfolding human tragedy of Syrian refugees should haunt him for the rest of his natural life. At a time when political and moral leadership was most called for he has maintained the most cowardly silence. 

All summer, as Italy, Greece, Hungary and Macedonia have been trying to cope with the largest migration of people this continent has seen in 70 years, Downing Street has kept putting out spokespeople to claim the government is working harder than any other country “to solve the causes of the crisis” and that this justifies the UK’s refusal to take more than the 216 refugees it has so far admitted directly from Syria. The truth is it hasn’t and it doesn’t.

Anyone who truly wants to solve the causes of the nightmare that is Syria today must look beyond the vicious and repressive regime of Assad or the opportunistic barbarism of ISIL. They need to understand why it was that hundreds of thousands of ruined farmers from Al-Hasakeh, Deir Ezzor and AL-Raqqa in the northeast of that country flocked to the cities in search of government assistance in the first place - only to find it did not exist.

Back in 2010 just after David Cameron became Prime Minister, the UN Food and Agriculture Organisation warned that, after the longest and most severe drought in Syria, since records began in 1900, 3 million Syrians were facing extreme poverty. In 2011 the International Institute for Strategic Studies published a report claiming that climate change “will increase the risks of resource shortages, mass migration and civil conflict”. These were some of the deep causes of the Syrian civil war just as they are the deep causes of the conflicts in Tunisia, South Sudan, Somalia, Libya and Egypt. So what about Cameron’s claim that his government has been working to solve them?

Two years after that Institute for Strategic Studies report pointed out that conflict as a result of  drought in countries like Ethiopia, Eritrea and Somalia had already claimed 600,000 lives,  the parliamentary Committee on Arms Export Controls found the UK Government had issued more than 3,000 export licenses for military and intelligence equipment worth a total of £12.3bn to countries which were on its own official list for human rights abuses; including to Libya, Tunisia, Somalia, Sudan, Egypt and Syria. That was the same year that UK aid to Africa was cut by 7.4% to just £3.4billion. Working to solve the root causes? Or working to fuel the ongoing conflict?

A year later in 2014 home office minister, James Brokenshire told the House of Commons that the government would no longer provide support to the Mare Nostrum operation that was estimated to have saved the lives of more than 150,000 refugees in the Mediterranean, because it was providing what the government called a “pull factor”. He said: “The government believes the most effective way to prevent refugees and migrants attempting this dangerous crossing, is to focus our attention on countries of origin and transit, as well as taking steps to fight the people smugglers who wilfully put lives at risk by packing migrants into unseaworthy boats.”

In fact the ending of the rescue operation did not reduce the number of refugees. It was not after all a “pull factor” but the push factor – what was happening in Syria - that proved most important. Earlier this summer, David Cameron indicated that he believed the UK should consider joining the United States in the bombing campaign against Isis in Syria, yet we know that for every refugee fleeing persecution under Assad, or the murderous thuggery of ISIS, there is another fleeing the bombing of their city by the United States in its attempt to degrade ISIS.  The bombing of one’s home is a powerful push factor.

The UK has not even fulfilled Brokenshire’s promise to fight the people smugglers. The Financial Action Task Force has reported that human trafficking generates proportionately fewer Suspicious Activity Reports (SARs) annually than other comparable crimes because the level of awareness is lower. Prosecuting the heads of the trafficking networks has not been a focus of government activity. Scarcely a dozen minor operatives pushing boats on the shores of Turkey have actually been arrested. But it is not the minnows that the UK government should be concentrating on. It is their bosses with a bank account in London where a series of remittances are coming in from money transfer businesses in Turkey or North Africa. Ministers should be putting real pressure on UK banks who should be registering SARs so the authorities can investigate and begin to prosecute the ultimate beneficiaries who are driving and orchestrating this human misery. They are not.

That image, which few of us will ever completely erase from our mind, will no doubt prompt David Cameron to make a renewed gesture. An extra million for refugee camps in Jordan, or perhaps a voluntary commitment to take a couple of thousand more refugees under a new European Quota scheme. But if the UK had been serious about tackling the causes of this crisis it had the opportunity in Addis Ababa in July this year at the Funding for Sustainable Development Conference. In fact it failed to bring forward new money for the very climate adaptation that could stem the flow of refugees. In Paris this December the world will try to reach agreement on combating the dangerous climate change that Syria and North Africa are already experiencing. Without agreement there, we in the rich world will have to get used to our trains being disrupted, our borders controls being breached and many more bodies being washed up on our beaches.