“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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The buck doesn't stop with Grant Shapps - and probably shouldn't stop with Lord Feldman, either

The question of "who knew what, and when?" shouldn't stop with the Conservative peer.

If Grant Shapps’ enforced resignation as a minister was intended to draw a line under the Mark Clarke affair, it has had the reverse effect. Attention is now shifting to Lord Feldman, who was joint chair during Shapps’  tenure at the top of CCHQ.  It is not just the allegations of sexual harrassment, bullying, and extortion against Mark Clarke, but the question of who knew what, and when.

Although Shapps’ resignation letter says that “the buck” stops with him, his allies are privately furious at his de facto sacking, and they are pointing the finger at Feldman. They point out that not only was Feldman the senior partner on paper, but when the rewards for the unexpected election victory were handed out, it was Feldman who was held up as the key man, while Shapps was given what they see as a relatively lowly position in the Department for International Development.  Yet Feldman is still in post while Shapps was effectively forced out by David Cameron. Once again, says one, “the PM’s mates are protected, the rest of us shafted”.

As Simon Walters reports in this morning’s Mail on Sunday, the focus is turning onto Feldman, while Paul Goodman, the editor of the influential grassroots website ConservativeHome has piled further pressure on the peer by calling for him to go.

But even Feldman’s resignation is unlikely to be the end of the matter. Although the scope of the allegations against Clarke were unknown to many, questions about his behaviour were widespread, and fears about the conduct of elections in the party’s youth wing are also longstanding. Shortly after the 2010 election, Conservative student activists told me they’d cheered when Sadiq Khan defeated Clarke in Tooting, while a group of Conservative staffers were said to be part of the “Six per cent club” – they wanted a swing big enough for a Tory majority, but too small for Clarke to win his seat. The viciousness of Conservative Future’s internal elections is sufficiently well-known, meanwhile, to be a repeated refrain among defenders of the notoriously opaque democratic process in Labour Students, with supporters of a one member one vote system asked if they would risk elections as vicious as those in their Tory equivalent.

Just as it seems unlikely that Feldman remained ignorant of allegations against Clarke if Shapps knew, it feels untenable to argue that Clarke’s defeat could be cheered by both student Conservatives and Tory staffers and the unpleasantness of the party’s internal election sufficiently well-known by its opponents, without coming across the desk of Conservative politicians above even the chair of CCHQ’s paygrade.

Stephen Bush is editor of the Staggers, the New Statesman’s political blog.