THE FATAL FLAW IN LEVE­SON

The Bulletin - - Front Page - IAN MOORE Ian Moore is a for­mer ed­i­tor of The Sun­day Tele­graph and the found­ing ed­i­tor of the Sun­day Her­ald Sun

THERE are valu­able lessons to be learned from the con­tor­tions Bri­tain finds it­self in through its at­tempts to reg­u­late the me­dia, which are as ill-con­ceived as the failed at­tempt at op­pres­sion pro­posed by the for­mer La­bor gov­ern­ment in Aus­tralia.

Th­ese are not to be found in the es­o­teric points buried deep in the Royal Char­ter to es­tab­lish a recog­ni­tion panel, or the pow­ers of the reg­u­la­tor – but in a tenet of all democ­ra­cies based on the West­min­ster sys­tem. It is sim­ply this: if the state has a hand in its reg­u­la­tion, it is no longer a free press.

This is in­her­ent in the cur­rent cross-party Royal Char­ter and the role of politi­cians in its es­tab­lish­ment and man­age­ment – let alone its con­tent. As a for­mer ed­i­tor of The Scots­man, John McLel­lan ob­served in re­sponse to the Char­ter: “Any sys­tem cooked up by politi­cians, which only politi­cians could con­trol and change would not be self-reg­u­la­tion; it would be state con­trol of the press.”

While the Char­ter rep­re­sents the hand of state in­ter­ven­tion, it is the na­ture of the in­quiry by Lord Jus­tice Brian Leve­son that brought it into play. This is where the car­a­van was headed from the day Bri­tish Prime Min­is­ter David Cameron ap­pointed Leve­son to con­duct an in­quiry that ex­am­ined “the cul­ture, prac­tices and ethics of the press”. If th­ese were found to be lack­ing, who was to de­liver the fix?

The mo­ti­va­tion for the in­quiry was ques­tion­able from the out­set, de­spite the na­ture of what had oc­curred at the for­mer News of the World.

The first part of the in­quiry was to deal specif­i­cally with the re­la­tion­ships be­tween the press, the pub­lic, po­lice and politi­cians, sparked by uproar over mo­bile phone hack­ing by jour­nal­ists at the Sun­day tabloid, and – as it was later es­tab­lished by po­lice – its Fleet St coun­ter­parts.

Iron­i­cally, it was the re­ac­tion of the ri­val Bri­tish press to the way­ward News of the World and the op­por­tu­nity to give its owner Ru­pert Mur­doch the kick­ing they be­lieved he de­served that forced Cameron’s hand. In the back­ground, of course, was the Bri­tish Labour Party, which has a loathing for Mr Mur­doch that dates back to the days of Wap­ping in 1986-87.

Now they are reap­ing what they had sown.

The in­quiry swung on the pub­lic re­ac­tion to the hack­ing of the mo­bile phone of mur­dered Bri­tish school­girl Milly Dowler, in a dis­play of in­sen­si­tiv­ity that con­tra­vened any com­mu­nity stan­dard. Prior to that – de­spite the il­le­gal­ity of the be­hav­iour – the pub­lic was largely dis­en­gaged with com­plaints over invasion of pri­vacy by the likes of Hugh Grant, whose moral pos­tur­ing on be­half of the Hacked Off group served lit­tle more than his own self-in­ter­est.

This is not to say that the be­hav­iour of of­fend­ers was any­thing but de­plorable; the ac­tions of Mr Mur­doch with his apol­ogy to the Dowler fam­ily and his clo­sure of the News of the World is tes­ti­mony to that.

How­ever, it is at this point that the plot was well and truly lost. The prob­lem lies in the fact that what was the prov­ince of the crim­i­nal ju­ris­dic­tion was judged to be a fail­ure of the sel­f­reg­u­la­tory sys­tem.

The hack­ing of mo­bile phones is cov­ered by crim­i­nal statutes. The 90-odd prose­cu­tions since the po­lice in­ves­ti­ga­tion be­gan were launched un­der ex­ist­ing stat­ues, not laws in­tro­duced as a re­sult of Leve­son rec­om­men­da­tions. Charges of com­plic­ity by ex­ec­u­tives and man­agers at the for­mer News In­ter­na­tional also were laid un­der ex­ist­ing laws. Even the ag­grieved had rights un­der cur­rent leg­is­la­tion for com­pen­sa­tion or other re­dress through the courts.

So why was such a widerang­ing in­quiry nec­es­sary, when ex­ist­ing laws had the ca­pac­ity to pun­ish wrong-do­ers? The an­swer is, it wasn’t. While there was merit in Leve­son’s brief to in­quire into the ex­tent of any im­proper re­la­tion­ship be­tween mem­bers of the press and po­lice, the overly moral­is­tic ex­am­i­na­tion of the cul­ture and ethics of the press at the in­sti­ga­tion of the gov­ern­ment was a po­lit­i­cal fix that set the course for the cur­rent dis­as­ter.

It is im­por­tant here to re­mem­ber the po­lit­i­cal cli­mate. Bri­tish MPs – and in par­tic­u­lar the Labour Party – were deeply con­cerned over me­dia con­cen­tra­tion, with a pro­posal be­fore a par­lia­men­tary com­mit­tee to al­low News Corp to pur­chase the stock it did not own in BSkyB, as well as the close­ness of some News fig­ures to the gov­ern­ment.

As Leve­son said of the in­quiry in his ex­ec­u­tive sum­mary: “In­clu­sion of the press and politi­cians fol­lowed not only be­cause of the po­lit­i­cal con­sen­sus from the Gov­ern­ment and Op­po­si­tion par­ties that politi­cians had been too close to the press, but also be­cause of con­cerns about the bid by News Cor­po­ra­tion for the re­main­ing shares in BSkyB plc. The op­er­a­tion of the wider reg­u­la­tory frame­work in re­la­tion to data pro­tec­tion, to­gether with con­sid­er­a­tion of is­sues of plu­ral­ity of own­er­ship and its ef­fect on com­pe­ti­tion came to be in­cluded.”

The prob­lem lies in the fact that what was the prov­ince of the crim­i­nal ju­ris­dic­tion was judged to be a fail­ure of the sel­f­reg­u­la­tory sys­tem.’

The irony is that Leve­son ac­knowl­edges the role of a free press in main­tain­ing a vi­brant democ­racy. He says in his re­port: “Over 40 years as a bar­ris­ter and a judge, I have watched the press in ac­tion, day af­ter day, in the courts in which I have prac­tised. I have seen how the press have as­sisted the in­ves­ti­ga­tion of crime and seen the way that the pub­lic have been in­formed about the op­er­a­tion of the jus­tice sys­tem.

“I know how vi­tal the press is – all of it – as the guardian of the in­ter­ests of the pub­lic, as a crit­i­cal wit­ness to events, as the stan­dard bearer for those who have no one else to speak up for them. Noth­ing in the ev­i­dence that I have heard or read has changed that. The press, op­er­at­ing prop­erly and in the pub­lic in­ter­est is one of the true safe­guards of our democ­racy.”

Yet de­spite those as­sur­ances, pub­lish­ers are now left with a Royal Char­ter that has been en­dorsed by the Privy Coun­cil and the Queen which no re­spectable publisher should sign.

‘We shouldn’t have a bar of reg­u­la­tion. I may have been trashed year in and year out by the me­dia but that’s the price you pay’ FOR­MER AUS­TRALIAN FOR­EIGN MIN­IS­TER

Alexan­der Downer: Page 20

EXIT STAGE LEFT . . . Lord Jus­tice Leve­son af­ter de­liv­er­ing a state­ment fol­low­ing the re­lease of his re­port

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