British journalists have long looked with envy on the First Amendment to the Constitution of the United States. Adopted in 1791, this states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That ‘or abridging the freedom of speech, or of the press’ offers a general legal protection from political interference for American journalism of a kind that does not exist in Britain.
Lord Justice Leveson, in his report on the press published in November, proposed creating something similar in English law. His recommendation 33 states that:
In passing legislation to identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press.
The judge explained his reasoning for this on page 1780 of his report. He had heard evidence from a number of witnesses expressing concern that if there was any legislation relating to the press it would be the beginning of a slippery slope by which other, more restrictive legislation would inevitably follow. He rejected this idea:
There is no foundation in the suggestion that it is easier to amend an existing Act than to bring in a new one. Any statute only gives Government, or anyone else, the powers that are stated on the face of the legislation. If a statute simply provides for a recognition process for a press regulatory body then it can only be used for that purpose.
Even though he saw no foundation in the argument, Lord Justice Leveson said he recognised the concern of witnesses and wanted to do something to allay it. And so he suggested a British First Amendment. The new law which he envisaged, which would implement his press self-regulation recommendations, should also ‘enshrine, for the first time, a legal duty on the Government to protect the freedom of the press’.
He even tentatively suggested some wording for this measure:
Guarantee of media freedom
(1) The Secretary of State for Culture, Media and Sport and other Ministers of the Crown and all with responsibility for matters relating to the media must uphold the freedom of the press and its independence from the executive.
(2) The Secretary of State for Culture, Media and Sport must have regard to:
(a) the importance of the freedom and integrity of the media;
(b) the right of the media and the public to receive and impart information without interference by public authorities;
(c) the need to defend the independence of the media.
(3) Interference with the activities of the media shall be lawful only insofar as it is for a legitimate purpose and is necessary in a democratic society, having full regard to the importance of media freedom in a democracy.
The judge clearly believed that this should be enough to reassure the press that he had no desire to curb their freedom to operate without political constraint.
It was a belt-and-braces idea. He proposed a new, voluntary, independent self-regulation system for the press, and he also proposed a new independent body that would be set up in law to carry out periodic inspections of the self-regulator and ensure it didn’t turn into another Press Complaints Commission. None of this, he was sure, would place journalism under government influence in any way, but just in case anyone doubted it he suggested a press freedom law as well.
Things did not turn out as he planned, and under this week’s cross-party agreement the new inspection body is to be set up under royal charter, but there will be no complementary clause of legislation enshrining press freedom in general terms. Why not?
No one speaking for the press really wanted it. Even when it was clear that the charter would be underpinned by a clause of charter to protect it from Privy Council (ministerial) interference, there was no appetite for adding what would have been a historic ‘First Amendment’ provision to that clause. And so the chance was lost.
Brian Cathcart is director of Hacked Off. He tweets at @BrianCathcart.