It has been another of those weeks when much of the news has been about newspapers. As the backwash from the Daily Mail ’s attack on Ed Miliband’s father subsided, it was the Mail’s sometimes equally strident historic enemy, The Guardian, that came under fire.
After the head of MI5, Andrew Parker, claimed the paper’s GCHQ surveillance leaks had caused “enormous damage” to national security, the Mail made a determined effort to match the 17,000 words devoted by The Guardian to the Miliband horror. By yesterday, the battlefield was strewn with the heaviest artillery of the trade: thundering front-page news stories, stirring leader-page denunciations, and dozens of shell-blackened quotes from rival politicians.
The Right-wingers demanded state action against The Guardian for, in a Tory backbencher’s words, “threatening our agents and their families”. The Left-wingers demanded state action against the Mail for being nasty and Right-wing. (Mr Miliband insisted he wasn’t asking for that, but when he talked of “what the British people have a right to expect of newspapers in this country”, it is hard to see what else he could have meant.)
And the tragedy is that last week, the Government in effect gave both sets of politicians their wish. The Culture Secretary, Maria Miller, announced that the newspapers’ own response to the Leveson inquiry into press misconduct – a royal charter setting out principles for regulation that politicians cannot change – had been rejected because it was “unable to comply… with government policy”.
Instead, she said, the Government would be pressing ahead with its own royal charter, drawn up over late-night snacks in Mr Miliband’s office by the three main political parties and the pro-regulation Hacked Off campaign, but nobody from the press itself.
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Late on Friday, in yet another session from which press representatives were excluded, Mrs Miller and the other parties produced the final version of their charter. There were a few small changes, but crucially nothing to address the newspapers’ central concern, which was that the charter could be amended by politicians, effectively at will. (In theory, a high bar – a two-thirds majority of Parliament – is needed, but in practice this requirement is not entrenched and could be changed by a simple majority of MPs.)
Any new press regulator would not itself be part of the state, but it would have to conform to the criteria set down by the state in the royal charter. These are fairly prescriptive already – but if they can be changed by MPs in future to make them tighter still, a decisive line has been crossed in political control of the press.
It is possible, for instance, that a future government, angered by future security leaks in The Guardian, might change the charter to say that the newspaper regulator must have regard to national security and public safety. A good thing too, you and most MPs might say – but such a provision would effectively give Mr Parker and the intelligence agencies, as the arbiters of national security, a veto over any story about them that they had not authorised.
That could have prevented the publication of dozens of stories in the public interest, such as how the intelligence on Iraq was manipulated. The risk that The Guardian has revealed technical weaknesses in this country’s capabilities must be taken seriously. But other claims by the security establishment are clearly overwrought and a repeat of past scaremongering – such as the contention by Oliver Robbins, the deputy national security adviser, that the revelations could “threaten the internal stability of the UK”.
As the saying goes, news is something that somebody doesn’t want published; all else is advertising or public relations. But even as it stands, the politicians’ charter carries the real risk that many newspapers will effectively only be able to publish with the permission of the people they are writing about.
Any worthwhile piece of investigative journalism will, by definition, upset the subject of the story; it will usually be denied, disputed and denounced; it will often lead to a complaint. But, in two ways, the politicians’ charter massively raises the stakes, and the risks for newspapers, in any complaint. It forces them into an external arbitration process – which must, in the words of the charter, be “free for complainants to use”, but will most certainly not be free for newspapers to answer. Faced with soaring costs for arbitration, impoverished local and regional titles may end up taking the line of least resistance – never running any story that carries a risk of upsetting anyone or causing any complaint.
Let us not forget, either, that the charter gives “third parties” – that is, anyone – the right to complain about any story, whether or not they are personally affected by it, opening the sluices to a Niagara of complaints by pedants, commercial lobbyists, pressure groups, angry people on Twitter, or anyone with an axe to grind, particularly since they have nothing to lose by doing so.
Last week’s modified version of the charter allowed complainants to be charged a “small administrative fee”, but that will not stem the flood, especially once ambulance-chasing lawyers scent profit. The BBC reported that local and regional papers would be offered an “opt-out” of the arbitration requirement, but this is untrue; they would be subject to it for at least the first two years, and it would be the regulator, not them, who decided whether they could leave. In the press version of the royal charter, arbitration is optional from the start.
The regulator would also have the power to “direct the nature, extent and placement of corrections” of any story found to be inaccurate. What’s wrong with that? Surely wrong stories should be corrected, and with equal prominence? But it’s not always so simple. Let us say that a newspaper publishes a front-page story – a “splash” – containing 11 facts, one of which later turns out to be wrong. Should that mean that it has to run a correction as the splash the next day?
Journalism is not, and never can be, an exact science. Nearly all of history’s most celebrated investigative stories, including Watergate and The Guardian’s exposé of phone hacking itself, included small – or, in The Guardian’s case, not so small – mistakes. If prominent corrections and apologies had been required, those broadly valid stories would have been discredited on narrow points and vital public services would never have been performed. The fear of having to run “directed” corrections for any error – having, essentially, to let a regulator write the newspaper – will make editors reluctant to run stories that carry any risk of correction. The requirements in the press charter are less draconian.
Brian Cathcart, Hacked Off’s director, welcomed the new politicians’ charter, saying it would provide “better protection for the public from the kinds of abuses that made the Leveson inquiry necessary”. One thing we can be quite certain of is that it will do nothing of the sort. In the unlikely event that the crimes of The News of the World were ever repeated, their exposure and investigation would still have to be a job for the police, not a press regulator.
No regulator could have the powers to kick down doors at newspapers, seize emails or interrogate journalists under caution. No regulator, and certainly not the one proposed, could give the McCanns, Chris Jefferies or other victims of tabloid lies much swifter redress than they have already achieved through the courts.
Once the McCanns decided to launch libel actions (even though they were at the time still formally police suspects), it took little more than a month for them to win £550,000 in damages and front-page apologies. Mr Jefferies was released from police bail in March 2011; within four months, he too had won massive payouts and apologies (interestingly, it took a further two years to wring a grudging admission of “regret” from the police).
Hacked Off knows all this perfectly well, but has cleverly used victims to further its agenda, which is to force the press to the Left. In March, The Sunday Telegraph revealed how the campaign was closely intertwined with the Left-wing Co-ordinating Committee for Media Reform (CCMR), sharing key personnel and organising joint meetings.
The CCMR, now renamed the Media Reform Coalition, believes, in the words of its founder, Prof James Curran, that the problem with newspapers “goes further than” journalistic misconduct, namely that “the press was the principal cheerleader of the deregulatory politics that landed us in the economic mess we’re in”. As well as tackling “individual grievances”, Curran said at a Hacked Off meeting last year, a new press regulator must correct the “national conversation” and change the “terms of public debate”.
That view also underlies the overwhelming support for regulation in the Labour Party, some of whose members appear to believe that they would have no trouble winning elections if only the Right-wing newspapers no longer existed. Failing that, the hope, no doubt, is that a constant barrage of “third-party complaints” to a new regulator by Left-wing pressure groups will keep the Tory tabloids’ heads down.
The Mail was right to critique Mr Miliband’s father. However, it was wrong to claim that he “hated Britain” as a fact, rather than a question. This has allowed Labour to enter this dangerous territory more fully, with Mr Miliband consciously echoing Lord Justice Leveson in his call for an examination of the “culture, practices and ethics” of the newspaper.
Last week, Labour took it further, with its health team attacking a “disgraceful” and “stigmatising” front-page story in The Sun claiming that 1,200 people had been killed by “mental patients” in 10 years. The tabloid’s headline was wrong – not all of the killers were patients – but it called attention to a real problem, the disproportionate number of homicides committed by the mentally ill and the failures in NHS mental care that allow this to happen.
Like Muslim grooming, the Staffordshire hospital deaths, or the growth of the Islamic far Right, mental health homicide is one of those scandals that much of the Left wants to exclude from public debate. Hacked Off affiliates have said newspapers should be forced to “respect vulnerable groups” and “stand up for the health service”. It shows why the country needs The Sun as well as The Guardian, needs newspapers that will scrutinise the NHS as well as GCHQ, and retain the right to cull sacred cows across the political spectrum.
Press regulation’s increasingly party-political nature is what may scupper it. As it becomes ever clearer that it is essentially a project of the Left, Tory enthusiasm seems to have waned. Strikingly, 10 of the 11 Tory MPs who spoke in Tuesday’s debate on the rejection of the press royal charter did not support the Government’s position. Ministers’ attempt to split the local press from the nationals, with the supposed “opt out” from the arbitration scheme, appear not to have worked either; not a single newspaper, local or national, Left or Right, has agreed to the proposals.
Some papers, as the Government desperately hopes, may still sign up to its royal charter. Likelier, however, is that none of them will; that most, perhaps all, will establish their own regulator and not seek recognition through the royal charter process. Mrs Miller has threatened that if the papers do boycott her charter, she may be unable to stop Labour and the Lib Dems ganging up to pass a full-blown state press law. Given the Government’s control of the legislative timetable, that is probably an empty threat.
But there remains the nuclear weapon: section 40 of the Crime and Courts Act 2013, proud baby of Hacked Off’s chairman Hugh Tomlinson QC and already on the statute books, which provides for savage financial penalties against any newspaper that is ever sued, unless it has joined a royal charter-recognised regulator. The penalties apply whether the newspaper wins or loses the case, which is the civil equivalent of saying that you will always go to jail, whatever the jury decides. Section 40 may, in the end, be ruled unconstitutional, but it will be a brave newspaper that volunteers to be the guinea pig.
The shellfire between the Mail and Guardian conceals the fact that they are essentially on the same side. Left-wingers were rightly outraged when the partner of a Guardian journalist on the GCHQ story was detained under counter‑terror laws, though he was plainly not a terrorist. But they do not seem to have drawn the obvious lesson – that powers granted to the state for one reason often get abused for other purposes. Press regulation is not just about taming the Mail – it will end up being used against the rest of us, too.
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