Karen Bradley, our newish secretary for culture, media and sport, has an infernal December dilemma to solve. No, not the relatively simple business of seeing Rupert gobble all Sky TV. She’s over halfway through her 10-week consultation on the future of section 40 of the Crime and Courts Act: the currently dormant provisions that could land an outraged press with the full, crippling costs of libel actions even when they win. Does she stick or does she twist?
Activate those provisions and an overwhelming majority of Britain’s newspapers – every national from the Sun to the Guardian, the Star to the FT – will be up in arms. So, perhaps even more worryingly, will be the local papers that serve MPs’ constituencies – papers which fear that a furious 40 will drive many of them out of business.
And what if she lets the section lie? Then Hacked Off, not to mention a swath of vocal opponents on the opposition benches at Westminster, will be after her blood. For 40 is the pressure point left by Leveson to drive newspapers to sign up with a royal charter-sanctified regulator (Impress) rather than stick with the industry’s own construction (Ipso) – never forgetting the in-house codes and complaints handling at the Guardian, FT and Standard, papers that fear the charter model because, at the end of the day, it leaves politicians in charge of press freedom.
Put section 40 to sleep – maybe even in some cryogenic chamber – and the chances of the Royal Charter that the previous parliament voted for reaching fruition are slim to vanishing. And it will be goodbye too, £3m of taxpayers’ money later, to the great and good “recognition panel” that eventually deemed Impress a fit-for-purpose regulator whose very existence makes implementing 40 possible. There are more effusions of fury along that path.
But, equally, delivering the outcome that Hacked Off wants can’t guarantee peace and harmony. The thousands of papers and magazines who’ve chosen Ipso won’t scuttle quietly into the Impress fold. They’ll raise a rare old ruckus. They’ll fight. There will be messy court cases and appeals that may shred the force of 40 along the way – not to mention casualties when small papers collapse. It’s a forbidding prospect as human rights watchdogs such as Index on Censorship or Reporters Without Borders take to the barricades. Who wants to be freedom’s pariah figure in your first cabinet job?
Yet Bradley seems doomed to choose one course or the other. Rock or hard place territory. Unless, of course, there’s a third way: a road of give, take and moving on. Which indeed there is.
Sir Brian Leveson, remember, did not advocate some government-imposed statutory regime of press regulation. Just the opposite. Governments may frame contentious legislation to make certain practices – say internet snooping for journalists’ sources – part of the rule of law. But state-enforced general regulation of the press is a different matter. It may please people who don’t like the tabloids, who roll their eyes when you say the word “Murdoch”; people who, in today’s terms, prefer to live in their own bubbles of civility. But it doesn’t have anything to do with freedom.
So, what can Karen and her Mother Theresa reasonably conclude as they examine the fruits of this consultation?
That the probabilities of newspaper extinction, especially at local level, have changed woefully. That the overall strength of the press is being sapped by social media (as one of Bradley’s juniors, Matt Hancock, observed only a few days ago). That Leveson, a mere three years past, did not remotely foresee the rise of fake digital news in full Trump mode. That unregulated or under-regulated online activity is the future anyway. And thus that inflicting a full-Monty regulatory regime on the press seems perversely out of time.
The better question, therefore, is: what can be done to deliver the kind of broadly consistent solution Leveson wanted? Sir Brian argued that one system must cover all, except maybe Private Eye and a few special cases. In fact, now, we’ve got three separate, often hostile, systems. But bringing them much closer together ought to be relatively easy.
One code of conduct covers all? Well, Impress has been using the Ipso code while it gets its own (very similar) act together. The FT/Guardian codes have similar roots. Ipso has just announced a widespread public consultation on possible changes to its own draftings. Things are on the move. There’s no reason why – perhaps with a little independent mediation – one basic complaints code shouldn’t cover every regulatory base (with separate appendices if required). In short, if you have a complaint, a single code steers you through.
And arbitration, the most difficult section 40 sticking-point? That’s soluble, too. Ipso is – wisely – mounting arbitration test runs. Impress has its own embryo scheme but hasn’t reached that stage yet. The FT/Guardian third force offers external review of complaints at this stage, but doesn’t go further. Yet one arbitration plan, covering all again, surely makes sense. More trials before adoption? Of course. And with an opt-in rather than blanket membership, so that the national press and big magazine companies offer arbitration, but local papers can stand aside if they wish: an answer that fits experience in any case.
The same commonsense approach could operate wherever you look. Ipso would gain further autonomy if it raised its industry-support funds from the press direct, to an agreed formula. Manifest independence. Impress has huge long-term financing problems until it can break free from Max Mosley’s controversial beneficences (dismayingly extended by millions more over years at a twitch of Max’s fingers, as though they were puppets on his string). Manifest problems. And then there’s the question of independent monitoring of a regulator’s performance (though all sides have notably distinguished and clearly independent board members who could do the job).
But, you may ask, why should anyone want to broker some compromises when there seems absolutely no wish for peacemaking across the trenches of mutual hostility? The Daily Mail is not about to fall in love with Evan Harris of Hacked Off (and it’s mutual); the House of Lords is still voting for a Leveson 2 inquiry into police-press relations (as though Leveson 1 plus the Filkin report hadn’t killed any actual relations stone dead); busy national newspaper lawyers are predictably challenging the recognition of Impress; and, though David Cameron and Oliver Letwin have retreated into the shadows, their royal charter notion still snoozes on the statute book.
Last week, moreover, committees in both the Commons and Lords were in full countering mode, giving the various regulators a tough time. Memories of phone hackings long ago haven’t died. Civil court cases drag on. It doesn’t seem a propitious time to try a more peaceable tack.
Yet the reasons to stop snarling and start thinking are equally cogent. Journalists aren’t exactly revered by their readers: down to a 24% trust and veracity score on the latest Ipsos Mori polling. They can dig in with Ipso but they can’t make it a game-changer for public opinion. They need one regulator, not three, so that the room for confusion and contention fades. They want sensible, coherent reform.
And maybe – just maybe – that will prove easier now Paul Dacre of the Mail has retired from his leadership of the editorial code committee. It’s easy to love or hate Dacre. That’s how he runs his paper. But, like David English, the Mail’s chief before him, he’s worked formidably hard to try to unite a fractious industry behind self-regulation. The question is whether he’s convinced the public along the way. Without him, the question is whether a more measured approach might work better in ranting Trumpian times.
Bradley needs to do no more than speak softly and put aside any stick; to broker some kind of rational, non-Charter peace deal that serves the public (and Leveson) best. Leave trench warfare in the pits. And, while she’s at it, set up a working party to do what Sir Brian couldn’t: try to navigate a way through the jungles of online fakery that deceive, confuse and corrupt. New problems, not old festering ones, for a politician whose breed boasts a 15% trust rating.