“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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Why the past 12 months have been the worst of my lifetime

We desperately need a return to calm and moderation.

Twitter is a weird phenomenon: a deeply selective, wholly unreliable Survation or YouGov in your pocket, with an even bigger margin for error. I’ve been tweeting for a year now, but I’m still useless at guessing what is likely to attract attention; so I was taken completely by surprise at the end of last week when a comment I jotted down received thousands of Likes and retweets. “It’s a year since Jo Cox was murdered,” I wrote: “the worst year for Britain in my lifetime. We badly need a return to Jo’s concept of moderation now.”

Fairly anodyne, you would have thought, but it seems to have touched a nerve. Clearly many other people feel that the past year, with its violence and disasters and wholesale political instability, has been a bad one. For days afterwards, my phone kept buzzing as more people retweeted it. There were, as always, a few contrarians who objected that other years since 1944 must have been worse; some said “much worse”. But that isn’t really true.

After D-Day, we knew the war was going to be won. Despite the bombs, the country was proud of itself and pulling together, and the likes of my father were hoping for a better world as soon as it was finished. The year of the Suez crisis, 1956, was pretty bad, but Anthony Eden was gone directly, and Harold Macmillan’s phoney self-confidence convinced people that things would be all right – and anyway the economy was growing impressively.

The period of the Heath government had awful moments: 1972, the year of Bloody Sunday and IRA attacks, was especially bad. Yet there was nothing like the appalling Grenfell Tower fire to divide the nation. And 1974 was humiliating for the government, but our membership of the European Economic Community offered a certain stability. We had a different, more forelock-tugging relationship with our political leaders then. The news bulletins used to talk reverently of “the prime minister, Mr Wilson”; now they just say “Theresa May”.

Today we have a prime minister who is held to have been mortally wounded by a series of personal failures and miscalculations; a governing party that has been self-harming for years over the question of ­Europe; an opposition that, until just recently, was regarded as hopelessly incompetent and naive; an economy that could be damaged by an ill-judged Brexit agreement; and a new vulnerability to terrorism, in which one atrocity quickly overlays the memory of the last.

There’s a newly hysterical tone in British society, which had always seemed so reassuringly reliable and sensible. The crowd that stormed Kensington Town Hall as though it were the Bastille or the Winter Palace mistook a man in a suit for a Tory councillor and beat him up. It transpired that he was an outside contractor who had spent much of the week helping the Grenfell Tower victims.

Above all, what was until recently the world’s fifth-largest economy has suddenly found itself on the edge of a trapdoor in the dark. “Back to the Thirties”, some people are saying. “Venezuela”, say others. Even Brexiteers who feel liberated and excited at the prospect of getting out of the EU can’t know if it’s going to work. Friends of mine who voted Leave because they were fed up with David Cameron or thought things needed a shake-up now show a degree of buyer’s remorse. Perhaps, like Boris Johnson in the BBC2 drama Theresa vs Boris, they thought the country was so stable that nothing bad would actually happen.

We’ve entered a period of sudden, neurotic mood swings. The opinion polls, unable to cope, tell us at one moment that Jeremy Corbyn is regarded as dangerous and useless, and at the next that a growing number of people see him as the national saviour. The Prime Minister’s “safe pair of hands” are now deemed too shaky to carry the country’s china. Ukip polled over 10 per cent in 450 seats in 2015, and in only two seats in 2017.

If any further evidence of neuroticism is needed, there is the longing that people have to be enfolded in the arms of a comforting authority figure. For some, it was the Queen, calming everyone down with a message of unity, or Prince William, hugging a grieving woman after the Grenfell Tower fire. For others, it was Corbyn doing the right human things while Theresa May walked past the tower ruins awkwardly, not knowing what to say.

It feels like being back in 1997, with the huge crowds in the Mall or outside Kensington Palace demanding to be comforted after the death of Diana. Then, the Queen was blamed for not being the mother figure we seemed, disturbingly, to want. Tony Blair had the right words at that time, and no doubt he would have had the right words after Grenfell Tower. But is it merely words and gestures we need?

It’s a bad sign when countries feel that they need an individual to sort them out. It’s because of its system, based on openness, inclusiveness and the rule of law, that Britain has grown strong and wealthy. Jo Cox said in her maiden speech in June 2015: “While we celebrate our diversity, what surprises me time and time again as I travel around the constituency is that we are far more united and have far more in common than that which divides us.”

She was murdered by a fanatic who screamed, “This is for Britain! Britain will always come first!” The year that those words ushered in has indeed been the worst in my lifetime. The government slogan “Keep calm and carry on” was invented in 1939, when all-out German bombing seemed imminent. It is easy to lampoon but when it was rediscovered a few years ago it became popular, because it spoke directly to our national consciousness. We’ve never had more need of calmness than now.

John Simpson is World Affairs Editor of BBC News, having worked for the corporation since the beginning of his career in 1970. He has reported from more than 120 countries, including 30 war zones, and interviewed many world leaders.

This article first appeared in the 22 June 2017 issue of the New Statesman, The zombie PM

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