Last Friday I heard Lord Hoffmann give the annual Neill lecture in Oxford, talking about the separation of powers. One of his points was that there had been too much fuss about the ‘breaches’ of the separation of powers that existed prior to the Constitutional Reform Act 2005. Lord Hoffmann argued that the old role of the Lord Chancellor sitting in Cabinet did not threaten judicial independence.
Quite the reverse, he thought, as the old role for the Lord Chancellor allowed a member of the judiciary to remind the other members of the executive of their obligations to adhere to the rule of law. Those who complained that the institutional overlap breached the separation of powers had adopted a prophylactic rule which, Hoffmann argued, showed a misunderstanding of the concept. Instead, Hoffmann argued the important thing is to look at whether an arrangement places the whole power of one branch in the hands of another (following Madison’s definition) on a case by case basis, rather to have a blanket rule forbidding any institutional overlap.
I am not sure I agree with his views about the Lord Chancellor, but while writing an article for Renewal I have had similar thoughts about the response to the Leveson report. The opposition to the statutory underpinning is also based on a type of prophylactic rule – that is David Cameron’s Rubicon, in which he argues that no part of press regulation should be enacted in statute. This is also based on a separation of powers type of argument.
The argument runs that the primary function of the press is to act as a check on government and Parliament, exposing abuses of power. If government or Parliament exercise control over the press, then there is a danger that the press will be muzzled and suppress their criticisms. Most people would agree with the argument so far. However, the critics of statutory underpinning go a stage further. The argument goes that we need to guard against those laws targeting the press that do not appear to threaten the watchdog function, for fear that it may set a precedent or that the law may be amended in future. It is therefore a prophylactic rule in so far as it over-protects press independence from legislative intervention to prevent the slightest risk of government and parliamentary control.
Of course, some commentators have pointed out that there are already legislative controls on the press. For example, in the Defamation Bill, MPs have decided what standards journalists must fulfill to rely on the responsible publication defence. Furthermore, it has been noted that the proposal for underpinning the new regulator by Royal Charter poses at least as much of a threat to the separation between government and the press as legislation. However, putting these points aside, there are a couple of further points we can make about the separation of powers arguments for press freedom.
First, the prophylactic rule assumes that legislative power is the central threat to press independence. However, we might respond that there are other threats that the press may face, which come from private sources of power, such as pressure from advertisers or from a newspaper’s parent company. In some cases, legislative action could help protect the press from such private influence. For example, in his discussion of media plurality, Leveson suggests that those newspapers with a ‘substantial market share’ might be required ‘to ensure editorial independence both from the proprietor or owner’. While such a measure might bolster the press independence, a prophylactic rule would appear to rule out such a measure if it is imposed by law.
Furthermore, the private power of the press is open to abuse. The statutory underpinning proposed by Leveson seeks to provide an effective channel of accountability to deal with that problem. The prophylactic view appears to rule out statutory measures (or if we are to take the separation of powers argument seriously, any government powers) that might address these concerns for fear that it might provide a channel for pressure from the politicians. It therefore treats the possibility of government influence as so great as to automatically outweigh private threats to press independence and the abuse of press power. While I don’t believe the government would follow a prophylactic rule to such an extreme, that is where the logic of the argument takes us. By contrast, a case-by-case approach to press freedom would allow those interventions that improve press freedom, while guarding against those that would unduly inhibit the watchdog function.
If we are concerned to keep the press free from government influence, then attention needs to be paid to Leveson’s recommendations on the press and politicians. The concern is that press is less likely to act as a check on government if it effectively becomes an insider in relation to certain areas of policy. Just as we might be concerned about government lobbying judges through any special access (see s.(5) of the Constitutional Reform Act 2005), we might worry that the informal relationship between senior press figures and politicians opens the door to some forms of collusion. While he finds no evidence of express deals between the press and government in relation to media policy, Leveson concludes the two got too close. Even in the absence of express deals, the influence of one on the other may operate in a more subtle way that potentially undermines the independence of the press. In addition, the close relations between press and politician have the potential to undermine public confidence in both the press and the policy-making process.
Given the need for politicians to speak with the industry in relation to media policy, Leveson does not seek to restrict lobbying by media companies. Instead he calls for increased transparency in the communication between senior media figures and politicians. Yet others have complained that communications between the industry and government concerning the implementation of Leveson have not been sufficiently transparent and this raises questions whether the lessons have been learned. If the media want to maintain their claim to quasi-constitutional status and receive protection beyond that given to any other industry, then it should conduct its relations with politicians with the degree of caution and transparency that befits a constitutional actor.
Ultimately, there are a number of difficulties with a prophylactic rule against the input of legislation. First, it is not clear whether it is possible to follow such a rule, given the existing legislation that relates to the press. Secondly, a prophylactic rule emphasizes the fear of abuse of legislative power, but does so in a way that might inhibit steps that actually protect press independence from private sources of power or address press abuses of its own power. Finally, if we want to protect press independence, then our concern should not solely be at the legislative stage, but should also deal with contacts between press and government that relate to both the formulation and implementation of policy.
‘Leveson, Press Freedom and the Watchdogs’ will appear in Renewal, vol. 21, no.1.
Jacob Rowbottom is a Fellow of University College, Oxford