Tim Luckhurst: ‘Statutory regulation of British newspapers would create a constitutional absurdity’

Professor Tim Luckhurst above), from the University of Kent, makes the case against any statutory involvement in the new post-Leveson press regulator. This is an extract from his pamphlet, Responsibility Without Power, which was published this week by Abramis (price £3.50). It is also available to download for free here from the Free Speech Network.

Leveson has responsibility without power. He can only recommend: Parliament must decide.

He may be tempted towards a solution that three Royal Commissions since 1945 have rejected.

A unique alliance of celebrities, academics and innocent victims of atrocious journalism is urging him in that direction.

My pamphlet (Responsibility Without Power) has sought to remove the debate from the atmosphere of crisis in which it was framed.

By taking the long view, it shows that state involvement in the regulation of journalism does not engender public trust.

In the world before the internet, newspapers were trusted most when they stood apart from the state and spoke on behalf of their readers.

Today the internet is cherished for the same reason. And, cherish it or not, pragmatists should certainly note that its power and reach renders statutory regulation of professional newspapers an almost absurdly old-fashioned idea.

Supporters of state regulation castigate its opponents as ‘first amendment fundamentalists’.

They mean that we support the US Constitution’s categorical guarantee that government may make no law abridging the freedom of the press.

But our history suggests that if Britain had a written constitution this country might long ago have adopted a similar guarantee.

Best intentions

It might reasonably have done so because state supervision of newspapers offends their readers and journalism serves democracy best when its ethics are those the public consider decent.

Regulation underpinned by statute might satisfy a short-term appetite to avenge the suffering of innocent victims.

It might please the few misguided MPs who still imagine that the press was wrong to shine light into the murky world of parliamentary expenses.

But no matter how benignly intended or carefully designed it would have consequences infinitely worse than any good it could do.

Britain’s democracy is distinctive because executive and legislature are not legally separate as they are in the United States of America and other constitutional democracies.

Our ministers sit in the House of Commons and lead a parliamentary majority. This hybrid arrangement gives a British government unparalleled power to ensure its legislation is passed; a level of executive power that is absent from other democratic traditions.

To balance that power this country has evolved a system in which additional checks and balances are exercised in the public interest by the courts and the press.

Statutory regulation of British newspapers would create a constitutional absurdity: parliamentary scrutiny of a body the electorate depends upon to scrutinise parliament.

The danger could not be reduced by the false compromise of statutory underpinning.

Any state involvement in the regulation of newspapers would restrict their capacity to play their historic role as a bulwark of our fundamental freedoms.

The details of statutory regulation are infinitely less important than this precious British constitutional principle.

The Times made this plain in a leader column published on the day its editor, James Harding, gave evidence to the Leveson Inquiry.

“If any future regulator is run, overseen, empowered or appointed by government,” it explained, “then politicians will loom over the press…And even a rewriting of the regulatory system recognised by an Act of Parliament has its dangers: a Leveson Act would give Westminster a mechanism for legal control over the press.

“If MPs decide they do not like the press they are getting, they could easily amend the Act. It gives politicians a foot in the door.”

As Sir Christopher Meyer (pictured right), former British Ambassador to the United States of America, explained in his admirably combative testimony to the Leveson Inquiry: “Once you allow the state into this area, whatever the best intentions may have been, you are by definition standing on the top of a slippery slope. Twenty, twentyfive years later, things change, politics change.

“It is quite possible a less permissive and liberal state, less conscious of our freedoms, might try to take advantage of that legislation to do things that would be offensive to the principle of freedom of expression.’

Soldiers call it mission creep, and statutory regulation would not just provide a tool for illiberal politicians at home. Authoritarian rulers everywhere would exploit the slightest hint of state involvement in the regulation of the British press.

The authoritarian right and the ideological left

Westminster’s statutory backing for a Press Ombudsman would become President Putin’s State Censorship Committee, Robert Mugabe’s Ministry of Truth or Mahmoud Ahmadinejad’s Board of Righteousness. Look, they would gloat, the mother of democracy understands the need for the state to ensure that journalists behave.

We agree. Surrendering to the alliance that favours the maximalist position would be easy.

There is almost someone for everyone in this unique coalition of good intentions, fringe activism and Hollywood glamour.

And Hugh Grant has been impressive in his role as celebrity front man for the Hacked Off campaign.

But, beyond noting that this is among the most incongruous pairings since Quasimodo met Esmeralda, it is important to remember that he is an actor who has not hesitated to use popular newspapers for publicity when the deal suited him.

In the debate this pamphlet hopes to inform, nobody should be astonished to see emerging alliances of convenience in favour of censorship.

The authoritarian right and the ideological left hold several prejudices in common; though their similarities are rarely as apparent as on the question of press regulation.

Potentially shocking though is the possibility that sincere liberals may soon find themselves blamed for an outcome they would despise.

Were the superb work The Guardian did to expose phone-hacking to result in state-supervised regulation of British newspapers, the injustice would be grotesque. An outcome that great newspaper deplores in every corner of the world could never be described as a fitting conclusion to its most courageous and laudable campaign.

An officially regulated press is the glib, easy, dangerous solution. It would spell the slow, painful death of a raucous, audacious and impertinent press able to speak truth to power on behalf of its readers and entertaining enough to secure their loyalty.

A few individuals who already have our collective sympathy and who have received or will receive richly deserved compensation might enjoy the spectacle. We would all be the losers.

Hacked Off’s Brian Cathcart on why stricter regulation is a medicine we have to take

Why Press Gazette opposes state regulation

Publishers step up fight against state regulation