“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.)

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"Labour are as pro-Brexit as the Tories": what do Sinn Fein's MPs really want from Westminster?

Its seven MPs are much less sympathetic to Corbyn's party than popularly imagined, and won't ever take their seats.

Should the Conservative minority government fall, what is Jeremy Corbyn’s route to power? The counterfactual as popularly understood goes like this: Corbyn would pick up the phone to his old pal Gerry Adams and convince Sinn Fein’s seven MPs to abandon the habit of a century and take their seats.

There are countless reasons why this would never happen, most of them obvious. One is more surprising. Despite Corbyn’s longstanding links with the republican cause, the Labour party is not all that popular among a new intake, which is preoccupied with one thing above all else: Brexit.

No wonder. Sinn Fein’s long game is an all-Ireland one, and the party believe the UK’s departure from the EU will hasten reunification. In the meantime, however, its priority is a Brexit deal that gives Northern Ireland – where 56 per cent of voters backed remain – designated status within the EU.

Pioneered by the moderate nationalist Social Democratic and Labour Party as an antidote to Brexit, designated status would allow the six counties in the North to continue to enjoy the EU’s four freedoms. But the idea is anathema to unionists and the UK government, and Sinn Fein sees little evidence that the Westminster establishment will make it work – not even Labour.

“They are as pro-Brexit as the Conservatives are,” says Mid Ulster MP Francie Molloy. “We’re anti-Brexit. We want to see the right of the people in the North who voted to remain in Europe respected.”

Simmering resentment over what the party perceives to have been broken promises on Tony Blair’s part – especially over legal protection for the Irish language, a key stumbling block obstructing the resumption of power-sharing – makes the already implausible deal even less likely.

“The Irish language act was something that Blair agreed to,” says Molloy. “So when people talk about us taking our seats, they don’t realise we would be backing a Labour government that wouldn’t be living up to its commitments either, and would be just as pro-Brexit as the Conservatives are."

That criticism may well surprise a lay audience whose working assumption is that Adams and Corbyn work hand in glove. But it is perhaps the best illustration of Sinn Fein’s parliamentary priorities: its seven MPs will not in any circumstances take their seats but use their Westminster presence to lobby ministers and MPs of all stripes while running constituency offices at home (they are unsalaried, but claim expenses).

Crucially, its MPs believe abstentionism strengthens, rather than weakens their negotiating hand: by their logic other parties need not and do not fear them given the fact they do not have voting power.

They will use their leverage to agitate for special status above all else. “Special status is the biggest issue that we are lobbying for,” says Molloy. “We feel that is the best way of securing and retaining EU membership. But if we get a referendum on Irish unity and the people vote for that, then the North will automatically join the EU.”

But that wasn’t always the received wisdom. That assurance was in fact secured by Mark Durkan, the former deputy first minister and SDLP MP beaten by Sinn Fein last week, after an exchange with Brexit secretary David Davis at the leaving the EU select committee. The defeat of the three SDLP MPs – two of them by Sinn Fein – means there will be no Irish nationalist voice in the commons while Brexit is negotiated.

Surely that’s bad news for Northern Irish voters? “I don’t think it is,” says Molloy. “The fact we took two seats off the SDLP this time proves abstentionism works. It shows they didn’t deliver by attending. We have a mandate for abstentionism. The people have now rejected attendance at Westminster, and rejected Westminster itself. We’ve never been tempted to take our seats at all. It is very important we live by our mandate.”

If they did, however, they would cut the Conservatives’ and Democratic Unionist Party’s working majority from 13 to a much more precarious six. But Molloy believes any alliance will be a fundamentally weak one and that all his party need do is wait. “I think it’ll be short-lived,” he says. “Every past arrangement between the British government and unionist parties has always ended in tears.”

But if the DUP get its way – the party has signed a confidence and supply deal which delivers extra cash for Northern Ireland – then it need not. Arlene Foster has spoken of her party’s desire to secure a good deal for the entire country. Unsurprisingly, however, Sinn Fein does not buy the conciliatory rhetoric.

“They’ve never really tried to get a good deal for everybody,” says Michelle Gildernew, who won the hyper-marginal of Fermanagh and South Tyrone back from the Ulster Unionists last week. “The assembly and executive [which Sinn Fein and the DUP ran together] weren’t working for a lot of groups – whether that was the LGBT community, the Irish language community, or women...they might say they’re going to work for everybody, but we’ll judge them by their actions, not their words.”

Molloy agrees, and expresses concern that local politicians won’t be able to scrutinise new spending. “The executive needs to be up and running to implement that, and to ensure a fair distribution. If there’s new money coming into the North, we welcome that, but it has to be done through the executive.”

On current evidence, the call for local ministers to scrutinise the Conservatives’ deal with the DUP is wishful thinking – Northern Ireland has been without an executive since February, when the late Martin McGuinness resigned as deputy first minister and triggered a snap election.

The talks since have been defined by intransigence and sluggishness. James Brokenshire, the Northern Ireland secretary, has had to postpone the talks deadline on four separate occasions, and has been criticised by nationalists for his perceived closeness to the DUP.

The final deadline for the restoration of an executive is 29 June 2017. Sinn Fein has called for Brokenshire to recuse himself in favour of a neutral chair. “His hands are tied now, completely,” says Molloy. “The Conservative party were always questionable on where they stood – they’ve always been unionists. The issue now is whether they can act neutrally as a guarantor to the Good Friday Agreement.”

He believes that question is already settled. “Legally, they have to act to ensure that nothing happens to damage that agreement – but we’ve already breached it through Brexit. There was no consultation. The people of the North voted to remain and it hasn’t been recognised. It totally undermines the consent principle.”

Just how they and Brokenshire interpret that principle – the part of the Good Friday Agreement that specifies the constitutional status of the North can only change by consent of its people – will be key to whether they can achieve their ultimate goal: Irish unity.

Molloy and Gildernew say the fact that 11 of Northern Ireland’s 18 constituencies voted to remain in the EU is enough for Brokenshire to call one within the next five years (though polling consistently shows that a clear majority of the province’s electorate, including a substantial minority of nationalists, would vote to stay in the UK). They are confident they can win, though, failing that, Molloy envisages it as the first in several referenda on unification.

But beneath the optimism lies the knowledge that the British government are unlikely to heed their calls. And, willingly absent from the Westminster chamber, they say the UK government’s discussions about Brexit are illegitimate. They see their real powerbase as elsewhere: in Dublin’s Dail Eireann, where Sinn Fein is the third largest party, and the chancelleries of Europe.

“That’s where most of the negotiation will actually happen,” says Molloy. “The EU27 will make the decisions. They won’t be made in Westminster, because the British have already set out what they’re doing: they’re leaving.”

But with seven MPs already lobbying ministers and a united Ireland unlikely to happen in the immediate future, Sinn Fein itself won’t be disappearing anytime soon.

Patrick Maguire writes about politics and is the 2016 winner of the Anthony Howard Award.

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