Seven international media organisations wrote to the Queen yesterday to say that she should block the Royal Charter on the press that has been endorsed by all parties in Parliament and is due to be ‘granted‘ at a Privy Council session next Wednesday. The letter is ill-informed and misguided. Below is the text with our commentary in red italics.
“Your Majesty
For more than three centuries since Britain abolished the last set of statutory controls on the press in 1695, the United Kingdom has been a consistent champion of the most crucial freedom of all – freedom of expression – and a beacon of liberty across the world.
Indeed, Britain has a proud tradition of freedom of expression. As it happens, the writers are mistaken in suggesting that 1695 saw the end of statutory restrictions on the press. To take two of many examples, a series of Defamation Acts, the most recent passed this year, prevents newspapers (among others) from publishing libels, while as recently as 1941 a British national newspaper (the Daily Worker) was banned under the Emergency Powers (Defence) Acts of 1939 and 1940. This is not to suggest for one moment that governments should act to restrict freedom of expression; it merely demonstrates that the writers of this letter are citing British history without knowing or understanding it.
Freedom of expression was central to the European Convention of Human Rights which Britain helped draft. It is part of the Universal Declaration of Human Rights to which the UK is a signatory. It is a core belief in the Commonwealth Charter which Britain inspired.
All true, and these vitally important international agreements deserve everyone’s support. Alas, a number of UK national newspapers, notably the Daily Mail, the Daily Telegraph and the Murdoch titles, are opposed to the European Convention and want the UK to resile from it. Perhaps the authors of this letter will now take that up with them.
Free speech and freedom of expression have throughout the 20th and 21st centuries therefore been at the core of Britain’s international commitments, of its leadership of the free world, and of its international reputation as a liberal democracy.
Absolutely. See above.
Yet all that is now in danger.
No it isn’t. See below for the detail. On the legal principle: if it really was a danger to free speech, the Charter could not survive a challenge in the British courts under the Human Rights Act 1998, which incorporated the European Convention into UK law. (Although if the Daily Mail succeeds in having the HRA repealed, that won’t be an option.)
No one should be in any doubt that the proposed Royal Charter which politicians are forcing Your Majesty to sign is, despite the camouflage, in reality a set of repressive statutory controls being imposed on the press against its will.
These are not statutory controls on the press, camouflaged or otherwise. The authors of this letter don’t identify any part of the document that is a control on the press, let alone a statutory one, because no such part exists. If they had read the Royal Charter (a constitutional device adopted to appease the press) they would know that it establishes a totally independent body whose only job is to conduct periodic inspections of a (totally independent) press self-regulator to ensure it meets basic, specified regulatory standards.The aim is to ensure it is capable of giving members of the public fair treatment rather than being a puppet of press proprietors like all of its predecessors (see the Leveson Report, part IV).
That should not be the function of a Royal Charter.
This is very odd. If a Royal Charter is not an appropriate device to set up such a body, why did PressBoF (aka the Daily Mail, the Daily Telegraph and the Murdoch papers) apply for a Royal Charter for just that purpose only this year? (Their application was rejected.)
Some will argue that it is just intended to establish a body to oversee an independent regulator.
They will argue that because it is true.
But by laying down rules about how that regulator must work and how the ethical Codes that bind the press should be written this toxic Charter brings Parliament for the first time ever to the heart of the newsroom.
Again this is simply wrong. After decades of press abuses, the British public is not prepared to settle for another sham self-regulator like the Press Complaints Commission. The ‘rules’ laid down in the Royal Charter have no bearing on what newspapers may or may not publish, indeed the Royal Charter states (Schedule 3, para 17) that the self-regulator ‘should not have the power to prevent publication of any material, by anyone, at any time’. The ‘rules’ relate exclusively to the process of regulation and are there to ensure the press does not once again rig the self-regulator so it serves their interests and not the public’s. The ‘rules’ were not set by Parliament but were recommended by a judge after a properly constituted public inquiry prompted by outrages committed by newspaper employees. As for bringing Parliament into the newsroom, even a cursory reading of the Royal Charter will show that it goes to great lengths to ensure politicians have no role at all (see below). It is the proposals put forward by PressBoF that would allow working party politicians to meddle in the process.
It breaches the fundamental principle that politicians must never get involved in editorial content regulation.
To be clear: under the Royal Charter no politician may be involved even in the appointment of members of the independent ‘Recognition Panel’ set up by the Charter and no politician may sit on it or work for it. No minister may have any influence over it. And the Panel itself has no power to interfere in newspaper content. It should not normally have any dealings at all with newspapers but only with their self-regulator. The Charter also stipulates that no politician may influence or be a member of a self-regulator, which in turn cannot prevent a newspaper publishing anything (see Charter schedule 3, para 17 again). These protections for the freedom of the press are unprecedented in Britain.
And it lays the foundation for fully fledged statutory controls.
This unsupported slippery-slope assertion shows ignorance of the UK constitution and UK politics. First, the Royal Charter establishes the Recognition Panel and nothing else. Second, it does not affect in any way the ability of Parliament to legislate about whatever it likes. As a matter of plain fact there is no appetite whatever in any British political party for ‘statutory controls’ of the press, as Lord Justice Leveson pointed out in his report. If Parliament, one day in the distant future, decided to restrict freedom of expression, the Charter could make no difference to that and the only thing British people could do in response would be to vote that Parliament out and get the restriction repealed.
That will have a chilling impact on journalism throughout the United Kingdom – from the biggest national newspapers to the smallest local and regional papers and magazines in the four nations of your country – weakening democracy as a result.
Ah, democracy. The writers of the letter don’t seem to see the preposterousness of the position they have adopted. They are demanding that an unelected, hereditary monarch should block a measure that has received the endorsement of every single party in the democratically-elected House of Commons. They talk of 300 years of press freedom but the struggle to ensure Britain was not ruled by the divine right of kings goes back rather farther than that and was won at far greater cost: do these people really want to put that into reverse? As for a ‘chilling effect’ on journalism, if the writers understood the Charter system they would know it protects investigative journalism as never before from the chilling powers of wealthy individuals and big institutions. In the past such people have been able to get valid news stories spiked merely with the threat of expensive legal actions. Under the system of self-regulation underpinned by the Charter, that can’t happen.
But far more important to us is the impact of your actions across the globe. The world still follows Britain in so many areas. If the UK moves to control the press through the force of law then it will have a terrifying knock-on effect throughout the Commonwealth and much of the developing world where Britain has a key leadership role. The fact that this is being done by Royal Charter – an instrument traditionally used to grant rights, not to curtail them – will make that infinitely worse because of the respect in which You personally, and the Crown institutionally, are held throughout the world.
Since the UK is not ‘moving to control the press through force of law’ (see above) they can stop worrying. As for the use of Royal Charter, again, if it was such a disgraceful idea why did PressBoF apply for one? And remember, it is the writers of this letter who want an unelected head of state to overturn a decision made by an elected parliament. Isn’t that what dictators do?
The actions of Britain’s Parliament will be used as an excuse by those who want to muzzle the press in their own country and stifle the free flow of information – and there are many governments who would love to do so. And it is your name, Your Majesty, that will regrettably be taken in vain. “If it is good enough for the Queen, it is good enough for us.” Already we have seen the chill winds of what is happening in the UK in South Africa, Botswana and Sri Lanka. Many more will follow.
If authoritarian regimes want to misrepresent to their peoples what is happening in the UK, it is up to international media organisations such as the ones behind this letter to try to prevent and correct that. By encouraging the idea that the UK is doing something that it is not, they are actually helping the dictators.
This issue is of huge importance for freedom of expression in the UK. It is important for Britain’s standing in the world. But above all it is important for the impact on countries not nearly so lucky as the many of us in Europe who until now have enjoyed fundamental freedoms. At the Commonwealth Heads of Government meeting next month in Sri Lanka, the British Government – with The Prince of Wales as your representative – should be campaigning for the protection and expansion of free expression throughout the Commonwealth, not least in countries like Rwanda, Singapore and Sri Lanka itself, which persistently lag at the bottom of world press freedom indices alongside Syria and North Korea.
See above. And here is what Sir Harold Evans, one of the greatest living British journalists, had to say on this subject only this week: ‘ . . . the exaggeration of some of the papers, comparing Britain to Zimbabwe, is so ridiculous, so self-interested as to destroy confidence in the very freedom of speech they claim to protect’.
Further, the British Government, which decriminalised defamation in 2009, should also take strong steps encouraging Commonwealth countries to repeal criminal defamation laws. But Britain will be in no position to do that if you have signed a Royal Charter which will be seized on by enemies of free speech everywhere eager to impose similar controls. Britain will have abrogated its rights and the world will be worse off for that. We urge you, Ma’am, as the final guarantor of freedom of expression across the UK and your Commonwealth, not to sign this Charter.
What is most striking about this letter, besides its total failure to recognise the painstaking care taken in the Royal Charter to protect freedom of expression, is that it takes no account whatsoever of the shocking background to the Royal Charter and to the Leveson Inquiry before it. For years British national newspapers have, as the judge put it, ‘wreaked havoc in the lives of innocent people’. The Inquiry concluded that behind this lay a sick press culture and a cynical abuse by newspaper bosses of the idea of self-regulation. Not a word is spared in this letter, however, to acknowledge the suffering that has been caused to British people by people and organisations who have besmirched the very idea of a free press. Where were the organisations listed below when British newspaper employees were hacking phones, ganging up to libel innocent people, intruding into private grief, bullying, blackmailing and fabricating? On the available evidence either these organisations didn’t care or they preferred to join most British newspapers in pretending it wasn’t happening. What sort of example is that to set the people of Botswana and Sri Lanka?
Signed by the following members of the Coordinating Committee of Press Freedom Organisations:
COMMONWEALTH PRESS UNION MEDIA TRUST, London,
UK FIPP – THE WORLDWIDE MAGAZINE MEDIA ASSOCIATION, London, UK
INTER AMERICAN PRESS ASSOCIATION, Miami, USA
INTERNATIONAL ASSOCIATION OF BROADCASTING, Montevideo, Uruguay
INTERNATIONAL PRESS INSTITUTE, Vienna, Austria
WORLD ASSOCIATION OF NEWSPAPERS & NEWS PUBLISHERS, WAN-IFRA, Paris, France; Darmstadt, Germany
WORLD PRESS FREEDOM COMMITTEE, Paris, France; Washington DC, USA
Hacked Off’s commentary might be misguided but it would be unfair to suggest it is something to be ashamed of. After all, it merely expresses a perfectly legitimate opinion – at least until the Royal Charter is up and running.
This is a commentary on Hacked Off’s commentary. It is long and, understandably, few if any will read it. But it also expresses an opinion.
HO = Hacked Off (obviously)
R = Reply
HO – “… the writers are mistaken in suggesting that 1695 saw the end of statutory restrictions on the press. To take two of many examples, a series of Defamation Acts, the most recent passed this year, prevents newspapers (among others) from publishing libels”,
R – Libel law has always prevented “newspapers (among others) from publishing libels.” No one has ever suggested newspapers should be exempt from the law.
HO – ” ..while as recently as 1941 a British national newspaper (the Daily Worker) was banned under the Emergency Powers (Defence) Acts of 1939 and 1940″.
R – As anyone with a passing knowledge of British history might have deduced from the dates of the legislation, there was a war on at the time. The enemy was Nazi Germany who posed quite a serious threat, not just to Britain but to the whole world, so this was considered to be an emergency in which temporary emergency measures were needed, hence the term ‘Emergency Powers’. The exceptional reasons for the Daily Worker ban are well expressed by the Guardian Leader of 22 January 1941 –
”No one likes the idea of the suppression of a newspaper even during a war, and least of all the suppression of a newspaper that is the sole organ of a legal political party. It is one if the last steps an Executive should take. Yet no one who has read the “Daily Worker” and “The Week” during the war can doubt the extreme provocation they have given and can harshly censure Mr. Morrison for his action. The “Daily Worker” began the war as a supporter of resistance to Hitler; it changed its tune when it found that Stalin wanted to be friends with Hitler. Day after day since it has vilified the British Government and its leaders to the exclusion of any condemnation of Hitler. Nothing that has happened in this country has been decent and right. Even when the United States increases its aid this is denounced not as something to be welcomed but as a malevolent exercise of wicked Yankee capitalism. More recently the paper has largely devoted its columns to derogatory accounts of Service conditions on the one hand and to the encouragement of agitation among munition workers on the other. This might be excusable if the motive were honest, if it were really desired to help the country in its struggle to keep democracy alive in Europe. But the “Daily Worker” did not believe either in the war or in democracy; its only aim was to confuse and weaken. We can well spare it”.
It is worth bearing in mind that, however vile and dishonest the opinions expressed by the Daily Worker, this was direct censorship of a kind that could only be justified as a temporary measure during the most extreme emergency. That Hacked Off should use this case as a general precedent is worrying.
The proposed Royal Charter is not a temporary response to the most serious emergency this country has ever faced. It is an unnecessary and draconian reaction to some, admittedly disgraceful, ‘peacetime’ behaviour of the press which mostly can be dealt with through existing legal remedies or which could, if necessary, be addressed through minor adjustments to existing legislation.
The Charter is also far from temporary. Brian Cathcart boasts that it “can only be altered by a resolution of both Houses of Parliament, passed in each case by a two-thirds vote …In effect, it puts the charter beyond the reach of a future government wishing to meddle with the text”. It is an axiom of our constitution that no Parliament should be able to bind a future parliament, yet what Brian Cathcart describes as a “sensible and modest package of reforms” (put forward by Leveson) is being used to undermine parliament itself.
HO – “This is not to suggest for one moment that governments should act to restrict freedom of expression;”
R – That’s good of you.
HO – “it merely demonstrates that the writers of this letter are citing British history without knowing or understanding it”
R – Confusing temporary emergency legislation invoked during the struggle against Nazism with a Royal Charter for the regulation of the press “protected” as Cathcart puts it “from routine Government amendment in Parliament itself” shows a far more feeble understanding of British history than the writers of this letter.
HO – “Alas, a number of UK national newspapers, notably the Daily Mail, the Daily Telegraph and the Murdoch titles, are opposed to the European Convention and want the UK to resile from it. Perhaps the authors of this letter will now take that up with them”.
R – Perhaps they will, but, given that the UK has had freedom of the press for centuries and that they believe it is about to be lost, despite being signed up to the ECHR, they might be more forgiving.
HO – “These are not statutory controls on the press, camouflaged or otherwise … the Royal Charter … establishes a totally independent body whose only job is to conduct periodic inspections of a (totally independent) press self-regulator to ensure it meets basic, specified regulatory standards”.
R – “In other words, a statute is setting up a body (the Recognition Panel), whose job it is to make sure that the press regulates itself according to “basic, specified regulatory standards”. It will be funded for the first three years (and where necessary thereafter) by “the Exchequer acting through the Lord Chancellor, and with the consent of the Lords Commissioners of Our Treasury”. According to the Royal Charter “A regulatory obligation is one that (a) regulates the manner in which the Regulator is required to operate”. So the job of the Recognition Panel is to regulate the regulator, which means the government will be funding a statutory body (the Recognition Panel) whose purpose is to exercise control over the way in which a ‘press self-regulator’ regulates. Convoluted the process may be, but these sound remarkably like “statutory controls on the press”.
According to “The Royal Charter on Self-Regulation of the Press” the members of the board of ‘the independent self-regulatory body’ must “comprise a majority of people who are independent of the press” and both the board and its chair must be appointed by an appointment panel that “should contain a substantial majority of members who are demonstrably independent of the press”.
So this is not really self-regulation at all and the idea that the appointees and their appointers drawn from ‘the great and the good’ will be genuinely ‘independent’ is laughable. An independent self-regulatory body is an oxymoron and it is this contradiction that camouflages the, perhaps unwitting, deception that lies at the heart of this Charter
The writers of the letter are not “simply wrong” to say “… by laying down rules about how that regulator must work and how the ethical Codes that bind the press should be written this toxic Charter brings Parliament for the first time ever to the heart of the newsroom.” But they are missing a more serious point. The real concern is not parliamentary interference, but that the power of unelected and unaccountable members of the establishment to ‘oversee’ the regulation of the press, will be entrenched beyond the reach of future parliaments.
HO – “After decades of press abuses, the British public is not prepared to settle for another sham self-regulator like the Press Complaints Commission”.
R – “As a member of the British public I resent being told what I am or am not prepared to settle for. I am certainly not prepared to settle for this Royal Charter.
HO – “The ‘rules’ laid down in the Royal Charter have no bearing on what newspapers may or may not publish, indeed the Royal Charter states (Schedule 3, para 17) that the self-regulator ‘should not have the power to prevent publication of any material, by anyone, at any time”.
R – Although standards of conduct, intrusions of privacy and matters that are already mostly covered by defamation law appear to be the primary concerns of the Charter, the specific criteria are sufficiently vague to be open to wide degree of interpretation. There is enough flexibility within the Charter for future interpretations of it to seriously threaten free speech. Furthermore, the full quotation from Schedule 3, para 17 offers a qualification that strongly suggests the potential for control. “The Board should not have the power to prevent publication of any material, by anyone, at any time although (in its discretion) it should be able to offer a service of advice to editors of subscribing publications relating to code compliance”.
To describe the board telling editors how to follow an unwanted code they are imposing upon them as “a service of advice” is plain creepy. It’s not unlike the Mafia offering ‘protection’. The “service” is even backed up by a threat – “the self-regulatory body should make it clear that subscribers will be held strictly accountable under the standards code for any material that they publish, including photographs, however sourced.”
But we don’t even know what the code is yet, other than it “must take into account the importance of freedom of speech, the interests of the public …”. The phrase “Take into account …” is worryingly weak. It is not exactly “I will defend to the death …”. As for “the interests of the public”, there are few phrases capable of such wide interpretation or so beloved of an oppressor.
HO – “The ‘rules’ relate exclusively to the process of regulation and are there to ensure the press does not once again rig the self-regulator so it serves their interests and not the public’s”.
R – That old ‘public interest’ mantra is trotted out once again. The case has not been made for a regulator of any kind.
HO – “The ‘rules’ were not set by Parliament”.
R – It would be better if they had been because at least parliament is accountable.
HO – “To be clear: under the Royal Charter no politician may be involved even in the appointment of members of the independent ‘Recognition Panel’ set up by the Charter and no politician may sit on it or work for it. No minister may have any influence over it”.
R – This is theoretically true, although the ‘independent’ ‘Recognition Panel’ is funded by the Exchequer and it is conceivable that ministers might ‘bump into’ members of the panel from time to time.
HO – “And the Panel itself has no power to interfere in newspaper content. It should not normally have any dealings at all with newspapers but only with their self-regulator”.
R – But its influence over the ‘self-regulator’ is considerable and the ‘normally’ is ominous.
HO – “The Charter also stipulates that no politician may influence or be a member of a self-regulator, which in turn cannot prevent a newspaper publishing anything (see Charter schedule 3, para 17 again).
R – See above.
HO – “These protections for the freedom of the press are unprecedented in Britain”.
R – These are freedoms we already take for granted, and there is certainly scope within the Charter for leaning very heavily on newspapers.
HO – “This unsupported slippery-slope assertion (“it lays the foundation for fully fledged statutory controls) shows ignorance of the UK constitution and UK politics”.
R – It does not. See above again.
HO – “First, the Royal Charter establishes the Recognition Panel and nothing else”.
R – But the recognition panel exists to recognize the ‘independent-self regulators’ so the Charter establishes the mechanism for controlling the press.
HO “Second, it does not affect in any way the ability of Parliament to legislate about whatever it likes”.
R – Wrong. Introducing an unprecedented requirement for a two-thirds majority in both Houses to dissolve this Charter does exactly that.
HO – “As a matter of plain fact there is no appetite whatever in any British political party for ‘statutory controls’ of the press, as Lord Justice Leveson pointed out in his report. If Parliament, one day in the distant future, decided to restrict freedom of expression, the Charter could make no difference to that and the only thing British people could do in response would be to vote that Parliament out and get the restriction repealed”.
R – This is the problem. If this Charter proves to be a Trojan Horse through which freedom of expression is restricted as many believe, the British people would have to vote for a minimum two thirds majority of MPs in favour of restoring freedom of expression and hope the Lords followed suit, but, of course, in the absence of free speech, even campaigning for its restoration would be difficult.
HO – “Ah, democracy. The writers of the letter don’t seem to see the preposterousness of the position they have adopted. They are demanding that an unelected, hereditary monarch should block a measure that has received the endorsement of every single party in the democratically-elected House of Commons”.
R – Well yes that is a paradox but then so is the spectacle of MPs restricting the right of future parliaments to vote the measure out.
HO – “They talk of 300 years of press freedom but the struggle to ensure Britain was not ruled by the divine right of kings goes back rather farther than that and was won at far greater cost: do these people really want to put that into reverse?
R -That is childishly irrelevant.
HO – “As for a ‘chilling effect’ on journalism, if the writers understood the Charter system they would know it protects investigative journalism as never before from the chilling powers of wealthy individuals and big institutions”.
R – That is an extraordinarily fanciful claim.
HO – “In the past such people have been able to get valid news stories spiked merely with the threat of expensive legal actions. Under the system of self-regulation underpinned by the Charter, that can’t happen.
R – You mean some people will be denied their legal rights?
HO – “As for the use of Royal Charter, again, if it was such a disgraceful idea why did PressBoF apply for one?”
R – Who cares? PressBoF were wrong too. But would it have required a two-thirds majority in both Houses of Parliament to get rid of it?
HO – “And remember, it is the writers of this letter who want an unelected head of state to overturn a decision made by an elected parliament. Isn’t that what dictators do?”
R – Childish again.
HO – “By encouraging the idea that the UK is doing something that it is not, they are actually helping the dictators”.
R – Nonsense. The dangers are real but even if they were mistaken, they would not be helping dictators. This is descending into a really low level of debate.
HO “… here is what Sir Harold Evans, one of the greatest living British journalists, had to say on this subject only this week: ‘ . . . the exaggeration of some of the papers, comparing Britain to Zimbabwe, is so ridiculous, so self-interested as to destroy confidence in the very freedom of speech they claim to protect’”.
R – And? How many serious opponents of the Charter are comparing Britain to Zimbabwe? It is Sir Harold Evans who is exaggerating. Has he actually read and understood the charter? (He probably has, to be fair.) Alan Rusbridger, on the other hand, says the Charter has “hideously complicated things”, but sound-bites get us nowhere. What we need is detailed scrutiny of the charter and a serious consideration of the possible unintended consequences that might flow from it.
HO – “What is most striking about this letter, besides its total failure to recognise the painstaking care taken in the Royal Charter to protect freedom of expression”,
R – Not painstaking enough I’m afraid.
HO – “For years British national newspapers have, as the judge put it, ‘wreaked havoc in the lives of innocent people’”.
R – True, but this is the wrong way to deal with the problem.
HO – “Where were the organisations listed below when British newspaper employees were hacking phones, ganging up to libel innocent people, intruding into private grief, bullying, blackmailing and fabricating? On the available evidence either these organisations didn’t care or they preferred to join most British newspapers in pretending it wasn’t happening. What sort of example is that to set the people of Botswana and Sri Lanka?”
R – This is not really relevant. They are trying to prevent a wrong, not explain it in the context of other wrongs. The point is, there are other ways of curtailing the crude and heartless excesses of the media without introducing a great unwieldy expensive and bureaucratic job creation scheme for the ruling elite that threatens freedom of opinion in Britain, and will be almost impossible to get rid of because its authors have seen fit to disregard the fundamental constitutional principal that no parliament can bind its successors.
The Royal Charter on Self-Regulation of the Press simply has not been thought through. It must be scrapped. The grotesque excesses of the media do need to be curbed but this is not the answer. Freedom of opinion is sacrosanct and must not be put at risk by the careless drafting of this false panacea.