“Statutory” is not a bogey word
Why statutory regulation of the press is itself neither a good nor a bad thing.
By David Allen Green Published 11 October 2012 13:32
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.
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8 comments
These are points ignored time and time again by the majority of the press, who have no interest whatsoever in engaging in a debate about press freedom, instead choosing the tactic of beating their readers repeatedly over the head with the party line. One of the most interesting days at the Leveson Enquiry saw a suite of philosophers appear to dismantle the whole mythos of 'freedom the press' and what it entailed.
It seems likely to me that tomorrow's report will essentially recommend that statutory powers back up a regulatory body whose composition will be entirely safe from political interference (or as safe as anything can be). This will actually enable that body to carry out enquiries into press misbehaviour, issue fines and commit papers to printing prominent apologies in the way that the PCC and all past bodies have been entirely unable to do so. It will be a body through which ordinary members of the public will, for the first time, be able to take on newspapers who have overstepped the mark without trying to find the money and time to launch a court case.
No journalist who isn't a flaming idiot is genuinely afraid of political interference; this is just a line they're using to engender sympathy. What they're afraid of is ending up with a hefty fine and being forced to print an apology every time they slander someone, tell outright lies or invade people's privacy without just cause.
Solid and sensible piece. However, I worry that opening the UK press to statutory regulation gives politicians a narrow sliver of a very important wedge. Once given it will never be recovered. Regulation of newspapers, online services and non-TV services by politcians or statute other than the criminal law is a risky slope to go down. Ofcom regulates television on the well-understood but sometimes arguable theory that spectrum is a finite national asset. The BBC Trust regulates the BBC because of the unique system of a compulsory licence fee. None of these characteristics apply to newspapers or the Net [other than the Trust regulation BBC activities on the Net]. In the case of Hacking and the alleged criminal behaviour of some journalists in paying civil servants, the criminal law looks like it will perform as it should. There's no evidence greater press regulation would have stopped it. The fact the initial police response was pathetic and implied a far too cosy relationship between the Met and News International is nothing to do with regulation of the media and all to do with the Police. That too is now being dealt with by forces other than media regulation.
While it is clear newspapers behaved arrogantly and abused their readers and the weak unconscienably and have to improve self-regulation, much of that can be dealt with in the civil law provided the government guarantees greater access in defamation cases -- perhaps twinned with some sort of "first amendment" protection for free speech. I worry that statutory regulation means bodies akin to the increasingly grandstanding select committees will be empowered to interfere even more and effectively suppress stories such as parliamentary expenses and even some of the work the Guardian has done to expose the wrongdoing of individuals and papers.
Peter
I accept your point entirely. However, if we cannot say that a choice of newspaper is a democratic one, how can we say that our choice of the people who would regulate them is a democratic one?
I have never cast an electoral vote that has stood a hope of making a difference. At least my decision to buy (or, more usually, not buy) a newspaper has some effect.
Say what we might about market democracy, when it is fair and uncorrupted (which it often isn't, but with newspapers it comes as close as it needs to) it's far more effective than it's parliamentary brother.
Oh, and your 1,000,000 newspapers argument is an irrelevance. If someone loves a newspaper so much that he wishes to by 1,000,000 copies, then he's free to do so. The rest of us are still free not to buy it. The influence of money over the media agenda is, of course, widespread... from Murdoch setting his own agenda, to the Scott Trust subsidising a paper that hardly anyone wants to buy. Again, this is a better state of affairs than the the influence of money over politicians.
Just a brief reply to TTG who redeploys the old Murdochian canard that 'we vote for our papers everyday.... I have an election every morning'
Purchasing a newspaper, or subscribing to a cable channel, is not the same as a democratic choice. This is a libertarian fallacy that market power equals voting rights.
When someone buys the Sun, are they voting for the crossword, Page Three, sports news, or the editorial line? Most Sun subscribers believe it is a Labour supporting newspaper.
And even if purchasers of a newspapers did somehow, through their expenditure, indicate support for one political line or another, where did we get the idea that money spent=votes cast?
On that basis, someone who buys a million copies gets a million votes: a clear breach of the fundamental democratic principle that money doesn't buy you votes.
If the last few years have taught us anything, let it at least relieve us of the ridiculous 80s fallacy that market power is the same as democratic choice
Is the Leveson Inquiry a threat to press freedom? I for one would dearly love to be able to argue that our robust media culture was to be defended because it guaranteed a plurality of voices, reflecting the country. But is that still true?
The turn to the Labour Party of Ed Miliband is the turn by those opposed to the crippling of provincial economies through the slashing of the spending power of public employees, to the breaking up of the National Health Service with a view to its piecemeal privatisation, to the deregulation of Sunday trading, to the devastation of rural communities through the sale of our postal service and of our roads, to the abolition of Gift Aid, and to the imposition of VAT on church repairs. Among other attacks on the things most valued by conservative Britain, which rightly looks to the State to safeguard those values. Miliband has never threatened to whip any vote on the redefinition of legal marriage. But he and Jon Cruddas have as good as announced a commitment to a referendum on EU membership, specifically ruled out by William Hague.
It is no wonder that the local elections proved a triumph for a de facto alternative Coalition embracing all parts of the United Kingdom, all of their respective internal regions, all ethnic groups and social classes, all living generations of voting age, town and country, conventionally left-wing and conventionally right-wing, Labour and Independent. Economically social democratic. Sanely conservative socially and culturally. Patriotic against all comers: the EU or the US, Israel or the Gulf monarchs, China or the Russian oligarchs, money markets or media moguls, separatists or communalists. Which newspaper is participating in that? Which newspaper is leading it?
The new seven-day Mirror is to be edited by Lloyd Embley, under whom The People alone endorsed Ed Miliband for Labour Leader. That is a start. But Mail and Telegraph readers want to vote for a party which fights for Post Offices while fighting against flogging off the roads to oil-rich foreign states or the hospitals and the surgeries to American healthcare corporations. A party which would never consider turning Sunday into just another shopping day, or taxing charities and churches out of existence. A party which, since civil partnerships already exist, does not compel its MPs to support redefining marriage. A party which promises a referendum on continued membership of the EU.
In 2015, they will have the option of voting for such a party. Will their newspapers declare for it? Or will they expose themselves as off the books campaigning arms of the party that wants to close the Post Offices, flog off the roads and the NHS, force people to work seven-day weeks, and deny an EU referendum, having also wanted to tax the churches and charities into oblivion while forcing its MPs to redefine marriage? If the latter, then Britain will stand exposed as having no press freedom to threaten. A press like that is not a free press.
A statute to create a regulatory body is unnecessary. A statute to set out a structure, constitution, or remit.. is unnecessary. A statute becomes necessary if a body is to have any power to compel.. and once that power is given, then we have allowed parliament to interfere. If parliament does not wish to exert some influence, then why does it need to involve itself?
My feeling is that we need no new body, no new power for any regulator, and no 'independent' arbiter of what the media may and may not say. Or, I should say, we cannot afford to pay the true price of that.
The media is at the mercy of democracy.. far moreso that the parliament that would seek to control it. Each one of us has the power to vote on the media each and every day.. we can starve them of their livelihoods if we desire (except, laughably enough, the BBC) by not giving them our money. It was, lest we forget, the power of the people that brought down the News of the World... after it finally did cross a line. If the media acts in a way that we truly deem unacceptable (based on our revealed preferences, not on what people *say* they believe) then we've got plenty of power to regulate them ourselves.
I would ask for one thing to be passed into law, and that would be an obligation (enforceable by law) on all who publish something (be they a national newspaper, or a humble blogger) to publish their retractions and corrections with absolute equal prominence. That is all. Let the public be made fully aware of the mistakes of those who, intentionally, negligently or inadvertently, mislead us.
Let the media say what it wishes to say, provide it stays within the laws as they are and as they apply to everyone. Just enshrine the appropriate sanction for when they get it wrong.
I agree with your point that retractions and corrections should be given equal prominence as the original article (preferably headed with the words "we were wrong") but who would police this, enforce it and decided what was worthy of retraction?
The PCC is currently in charge of this but has no power to enforce it.
This is (I think) what David was trying to say, a statutory body can be as little as giving the PCC the power to enforce its decisions. Yes, that power is moved somewhat closer to Whitehall but that doesn't mean its MPs who run it or even civil servants.
With respect to voting vs buying there is are similarities but remember you can only vote once and it records as much how many people didn't vote and when a party was voted against.
I cannot help but feel that statutory regulation specific to the press is a bad thing. Of course the press have to operate within the law of the land, and much of what is in the Leveson enquiry was about activities that would have been illegal whosoever carried them out. Not least of the objections to statutory regulations specific to the press will be defining what the "press" actually is. Just where is the boundary, and who will define it? Does David Allen Green writing for the New Statesman fall within the compass, whilst anything he puts on his Jack of Kent blog fall without, even though the readership is much the same?
I can't help but feel that if, for instance, we need a clarified "law on privacy", then it shouldn't be specific to "the press". Essentially I don't see "the press" as being a well defined group. Inevitably statute regulations will leak into areas unanticipated by the original legislators.
However, I await whatever proposals come about before passing judgement, but I feel any statutory regulation which is specific to the press will be an ugly construct hedged about by complicated qualifications as to who it applies to. Finally, there is the obvious point that statutory regulation of the press can only apply in the UK (or, perhaps even only England and Wales).