Tory plan on Press control by Royal Charter is best on offer
Statutory Press regulation could put freedom of expression at risk says media lawyer Tony Jaffa.
Earlier this week, the Conservative Party revealed its proposals for implementing the Leveson Report, and in doing so, it reignited the political debate about the regulation of the press.
The Liberal Democrats are reported to be considering the proposal, the Labour Party wants further changes, and the pressure group Hacked Off is scathing and demands nothing less than full statutory control of the Press.
I am not a politician, so I will leave the politics to those who are better qualified than me. As a media lawyer (and an advisor to the WMN), what interests me is the effect these latest proposals could have on freedom of expression for all of us.
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But first – what exactly are the Conservatives proposing? Essentially, they suggest that a body, to be called the "Recognition Body", should be created by way of a Royal Charter with the remit of monitoring the performance of the new (but as yet unknown) independent press regulator. In other words, the Recognition Body will not deal with press complaints on a day-to-day basis. Rather, its job will be to make sure that the new independent press regulator is performing properly, and if that regulator is perceived to be failing, then the Recognition Body has the power to replace it.
Publishers, journalists, and the Government itself, are all set against any form of press regulation based on statute. The reason is that statutes can be changed relatively easily by future Parliaments. The concern is that the right to freedom of expression, a right developed over the centuries and enjoyed by all of us, could easily be eroded at some time in the future by politicians who do not share our views about the importance of freedom of expression.
This is why the Conservatives say they prefer a system under which the independent regulator will be accountable to a body created under a Royal Charter.
Royal Charters are granted by the Queen using royal prerogative powers. The Queen grants, or withdraws, a Royal Charter based on advice from the Privy Council, whose members are Ministers, other parliamentarians, and members of the judiciary. What's interesting in the context of the proposal for regulating the Press is that only serving Government ministers are involved in recommending and granting a Charter. The current Lord President of the Privy Council is the Deputy Prime Minister, Nick Clegg.
So from the perspective of freedom of the Press, why is a back-stop regulatory body created by Royal Charter any safer than one created by statute?
At one level, there is little difference. Parliament can change any law whenever there is a collective will to do so, and the Privy Council can recommend to the Queen that a Royal Charter should be amended or withdrawn.
And as the Privy Council consists mainly of politicians, isn't the effect just the same?
It goes without saying that I believe in the freedom of the Press, and I have yet to meet anyone who disagrees with me over this fundamental proposition.
That is not to say I am a regulation purist. I do not advocate the abolition of all regulation; I accept that some constraints are necessary to ensure that the journalism is conducted responsibly and ethically.
And although I think Lord Justice Leveson's report is flawed in many respects, I accept that our elected leaders take the view that something must be done.
That's why my reaction to the Conservatives' proposal is mainly positive. By avoiding regulation by statute, and by including a series of fail-safe provisions which are intended to prevent political intervention, it seems to me their proposal is the best on offer. And although politicians could still have some involvement because of the way the Privy Council is constituted, the safety mechanisms that the proposed scheme proposes are such as make the risk of political involvement pretty low.
I disagree entirely with the demands by some politicians and Hacked Off, for regulation to be based on statute. It seems to me that if our elected leaders were to succumb to these siren calls for legislation, then the risk to free expression, a right that we all enjoy and take for granted, could be placed at real risk.
It's significant that the number of democracies throughout the world who indirectly control the Press by statute, can be counted on one hand. Do we really want to follow the system in France, a system which prevents the Press from revealing fundamentally important information about politicians that we take for granted?
You will have gathered that I regard freedom of expression as an important issue. It's why I intend to lobby my MP on this issue – and I hope you will too!