Press regulation and unintended consequence of a new UK constitution?

As the dust settles a little from the crisis over press regulation, Britain’s journalists have been contemplating the implications of the system devised between the leaders of the major parties in the small hours of 18 March. There has also been a steady stream of concerned criticism from overseas. The enormity of what has been agreed is beginning to sink in and, just maybe, bringing forward some major unintended consequences.

What started as a largely celebrity-led protest at media intrusion into private lives through such things as mobile phone hacking, as vocally expressed by the pressure group Hacked Off, has transformed itself into the issue of political control of the media. Regulation is intended to make sure that the unacceptable intrusion “can never happened again”, in the words of my MP today. It is curious that somehow the use of existing law is somehow deemed inadequate, even though these same celebrities have been agreeing substantial settlements with News International as a result of legal action. Somehow regulation is considered a means to hold the press to account, to abide by rules of conduct as contained in a code enforced by a regulator set up by royal charter. This charter is issued by the Privy Council, in theory the royal prerogative but which actually consists of politicians. The press will be encouraged to sign up, and pay for, this regulation by the threat of exemplary damages as a result of the Courts bill currently going through Parliament. Political leaders argue that political control is not going to happen as the system will somehow be independent and can only be changed by a two-thirds majority of both houses of Parliament.

The serious students of politics will however be scratching their heads, even if this move to regulation is popular given the widespread disdain for journalists and especially of the phone-hacking scandal. What is striking is the confusion of issues. The impetus for regulation is unacceptable behaviour by certain tabloid journalists. However the weapon used, regulation, impacts on a much bigger principle, one which it is very curious to see is not one of importance to our leaders, that of freedom of the press. Immediate, short-term tactical remedies can blind people to long-term strategy, and this has arguably become a characteristic of current political life, and the sign posts and the maps of overall governance are missing.

It would seem that this is a device that pretends not to be political control of the media but yet by its very precedent has become control. In this, government would appear to have crossed a constitutional Rubicon, and the analogy with Julius Caesar is not entirely accidental. There is a constitutional convention, in our “unwritten constitution,” that no Parliament can bind its successor. So a future Parliament could ignore the two-thirds requirement, since another convention is that all legislation is passed by simple majorities. Parliament is also sovereign, and so to argue for independence is misleading. Regulation by Royal Charter is political control by another means, given the Privy Council membership, and one that is not directly accountable. In all this, what is crucial is the absence of a constitutional device equivalent to the US 1st amendment protecting freedom of expression. So important is the press in US political life that it is often referred to as “the fourth branch of government”.

Indeed many political observers, as opposed to politicians, have been arguing for some time now that our institutional arrangements are in a mess and need more fundamental reform. Across the spectrum, people are now talking seriously about the need for a written constituation, and hence this is where the law of unintended consequences may lead us. For example, we now have the Human Rights Act, based on the European Convention on Human Rights, and it is in effect serving the purpose of a fundamental law, although not one that sits well with certain politicians on the right of the spectrum. Ironically it may be that the current proposed regulation of the press will fall foul of an appeal under Article 10 of the Human Rights Act, which is serving as an arbitrating point of reference in the field of rights that is currently otherwise lacking. Another issue is the complexities of devolution and the scope being provided for different levels of representation and provision of services for some parts of the UK but not others: all parts of the UK except England have devolved governments. A third is the current sense of a vast swathe of the electorate of being disengaged and excluded even from the political process, and hence the vogue for right-wing protest parties. A fourth might be a certain authoritarianism creeping into sections of public life, as seen by the recent introduction of secret court hearings even to the Supreme Court, or the attempts by government to gain access to people’s emails, or the continued application of the Regulation of Investigatory Powers Act 2000, RIPA for short, often dubbed the “Snoopers’ Charter”. We have already recently had attempts to introduce limited proportional representation and an elected House of Lords.

The crisis over the press therefore needs to be set in context, such as of the changing relationship between the citizen and the state, the pressures of a fast-paced public life today, the illusion that another act of parliament can somehow sort things out, the commercial realities of the internet age being faced by business, which of course journalism is, the relationship between politicians and media barons, and the decisions leaders make under pressure when faced with mutiple demands within seemingly limited time spans. What we perhaps have here is a hastily-made compromise that will not easily stand the test of time since it has not been well-thought through within the evolution of our political system and its changing needs. Short-term expediency has temporarily triumphed at the expense of long-term strategy.

Some links

The Economist 23 March 2013 : Over the Rubicon; A Rotten Deal

Video interview of the Editor of the Economist: Video

Index on Censorship: Leveson fiasco

 

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