In his response to Lord Justice Leveson’s report and recommendations, David Cameron expressed ‘some serious concerns and misgivings’ about the recommendation – crucial in Leveson’s view – that the new independent self-regulatory body be underpinned by statutory legislation. These concerns, Cameron states, ‘break down into issues of principle, practicality and necessity’. Now obviously one might take a purely cynical line about Cameron’s motivations for these reservations but irrespective of his motivations, it is worth considering the merits of these misgivings and their grounds. So let’s take them in turn.
- ‘The issue of principle is that for the first time we would have crossed the Rubicon of writing elements of press regulation into the law of the land.’ Well, note first that the press is already subject to regulation by, for example, criminal and civil law, so the objection has to be that legally underpinning the independent regulation of media ethics is the problem. But note that the legal underpinning of independent regulation of professions is a widespread process for dealing with other important areas of life were the professions in question have the capacity to cause serious harm to members of the public. Thus, for example, the ethical standards of both the legal profession and the medical profession are regulated in this way. Does this amount to political regulation of the ethical conduct of lawyers, judges and doctors? It is hard to see why one would think so. We are not concerned that we don’t have a ‘free judiciary’ on these grounds. So we would need to be told what is special and distinctive about the press. Such an argument, to be a principled one, would have to show that statutory underpinning of independent regulation is necessarily incompatible with the press performing the functions for which it is rightly valued in a democratic society – and it is hard to see what such an argument would be.
- ‘On grounds of practicality, no matter how simple the intention of the new law, the legislation required to underpin the regulatory body would I believe become more complicated.’ But the fact that a constructing a simple body may need complex legislation is not itself an objection at all. One’s local cricket club may have a very complex constitution that commands the consent of its members and actually enables it to run smoothly and fairly. The type of response that Cameron is making only serves as an objection if we think that complex underpinning legislation allows for political manipulation that effects, in some systematic way, the decisions of the independent regulator. So here it is sensible to look at examples like Ireland and Denmark to ask whether we can discern such effects. The mere abstract logical possibility of such a problem does not itself amount to a significant objection.
- ‘Third, on grounds of necessity – I am not convinced at this stage that statute is necessary to achieve Lord Leveson’s objectives.’ It is obviously hard to conclusively show that statute is necessary but unless the objections from principle and, particularly, practicality can be made considerably more compelling than they are, this is not a serious objection in the face of the clear evidence that previous non-statutory forms of regulation have failed. To make this objection stick, it needs to be shown that there is a credible alternative. Absent such a demonstration, the appeal to necessity does no work.
So is Cameron muddying the waters or walking a fine line. It is too early to tell. But it seems that the last chance saloon is still open – so, for the moment, Fleet Street can still say ‘Doubles all round.’