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Leveson – Is the battle already lost?

What are the chances of being able to write a 2,000 page report on press regulation and walk away with all-party support (or even all-Party support)? Plainly, not very high. This final stage of the inquiry could have been – should have been – handled differently.

The judicial model is to make findings of fact and reach a judgement at the same time. The regulatory model is different.

Leveson has proposed an independent regulator of the press, set up by the press themselves. The focus of the storm swirling around this recommendation is the addition of a statutory body to validate the new regulator (on an ongoing basis) and to act as a backstop regulator of any press bodies who decline to join the system.

Having proposed this very idea myself several months ago, I am obviously a big supporter of it now. But, after months of increasingly strident voices speaking out against any form of statutory intervention, was it reasonable to hope that the anti-statute lobby would suddenly drop their objections when they saw the nature of the proposed statute? It appears not.

The Prime Minister has described legislation as “a Rubicon” he refuses to cross. In doing so, he has made it very difficult for himself to change his mind. Historically, of course, the famous crossing of the Rubicon was by Julius Caesar. In Caesar’s case, it was a deliberate message, to be interpreted as an act of war. Leveson’s proposal is intended as an act of peace. But peaceful intentions aren’t always enough to avert a war. Something more was needed.

The problem is, I think, with the process of problem-solving. The judicial model is to make findings of fact and reach a judgement (or, in this case, a recommendation) at one and the same time. The regulatory model is different: it is to publish the findings of fact before moving on to discuss remedies.

Yesterday’s report revealed Leveson’s conclusions that, amongst other things, the press had wreaked havoc with the lives of innocent people and that politicians and the press had been too close (whilst also clearing Jeremy Hunt of bias over the BSkyB bid). There was plenty in the report to form a backdrop to discussions over a way forward; to identify options; to draw out the objections and then figure out how to sidestep them. Instead, the proposals were developed in secret.

See also:  Moses and the Culture Secretary

For example, by suggesting Ofcom as the body to validate the new system and act as a backstop regulator, Leveson gave the Prime Minister an opportunity (which he took) to make the cheap point that the chair of Ofcom is a government appointment. But it is no more than a debating point which sounds good in the House. The new body doesn’t have to be Ofcom (or a new mechanism could be found to appoint its chair). This is the sort of detail that could have been ironed out in advance with more open discussion about the remedy once the findings of fact had been laid before us.

As matters stand on the morning after the afternoon before, it is looking distinctly possible that David Cameron has declared a key part of the proposals to be toast. It didn’t have to be that way. I still hope, fervently, that a way out of the impasse can be found.

[Update: In the original version of this blog, I quoted Shami Chakrabarti of Liberty, in the final paragraph above, as a strong supporter of the proposals, together with my source. I have since seen a press release from Liberty which makes it clear that her support – strong though it is – does not extend to the role of a backstop regulator, so I have removed the sentence referring to Ms Chakrabarti.]

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