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The Lords and Leveson are as bad as each other


It wasn’t only the EU nomenklatura who had their noses put out of joint in June 2016, when the British people rudely reminded the Euro-emperor of his embarrassing lack of clothes. Many members of the House of Lords, one suspects, equally resented the ordinary electors’ failure to vote as instructed by their betters, and the backing given to them in this refusal by a raucous, outspoken and undisciplined press that didn’t give two hoots for the views of established politicians.

All of which doubtless explains why their Lordships defiantly voted on last Wednesday to revive the Leveson proposals for press regulation. More specifically, they amended the Data Protection Bill to mandate a further inquiry into press intrusion, as recommended by Leveson in November 2012, and also to require any newspaper not signed up to an officially-approved regulator to bear all legal costs of both sides in any claims against them for misuse of data, even if the claimant is unsuccessful.

Both these demands amount to mischief-making, and both need to be resisted.

The first demand is simply pointless. Enough high-profile cases have reached the courts to give us a perfectly good idea of what went on. A further inquiry might unearth more of the same: but so what? Unless (perish the thought) the idea is that further revelations about the press might soften up Parliament and make it more receptive to serious curbs on the press’s ability to annoy the establishment, it is difficult to see that it would do anything other than cause needless expense, both to the press and to the public purse.

That leaves the second. It parallels an earlier proposal, enacted as part of the Crime and Courts Act 2013 but never brought into force and commendably rejected by the Conservative government in 2015, which would have done the same thing with claims for libel and breach of privacy. Unless signed up to an approved regulator, which among other things would make it mandatory for publishers to accept arbitration of such claims, a paper would have to pay both parties’ legal costs of any suit even if unsuccessful. This new move to shovel costs on to newspapers in data protection cases is objectionable for all the same reasons.

For one thing, it practically, if not legally, requires newspapers to belong to an organisation set up to sanction what they say and approved by a third party – a category at present containing only one body, the Max Mosley-sponsored Impress. (All respectable national newspapers are already members of the trade self-regulator IPSO, but this is not regarded as enough, despite the fact that it lays down strict standards and provides facilities for inexpensive arbitration). The alternative is a ruinous and entirely unfair liability to pay other people’s lawyers to bring proceedings against them even if those people have no case. To say, as did Earl Attlee and Lord McNally, that this does not amount to governmental regulation of the press because the organisation itself may be free of outside control is disingenuous in a way only the Left can be, and misses the point. For government to subject any news medium willy-nilly to an organisation with the power to pass judgment on what it prints amounts, as Index on Censorship pointed out, to governmental control.

For another, papers would be required to accept the jurisdiction of a body which not only provides arbitration for legal claims against them, but also has the power to fine or otherwise sanction them for acts that are not otherwise illegal. Impress, for example, has requirements for the reporting of matters relating to children; on the handling of issues of age, disability, mental health, gender reassignment, and for that matter any characteristic that makes someone vulnerable to discrimination, and so on. Any breach is potentially sanctionable. It is true that IPSO also has this power; but signing up to IPSO is voluntary. To make it essentially compulsory, on pain of potentially crippling legal liability, for a news medium to go beyond the strict requirements of the law and face fines for not doing do is unacceptable and incompatible with a free press.

For a third, papers would have to agree to abide by the recommendations of a body that can receive complaints not only from those directly affected by what it says, but from groups like charities or NGOs who claim to be their representatives. In short, they would have to agree to being potentially fined for saying things that offend pressure-groups rather than directly affect individuals or corporations. The chilling effect of this is easy to see on papers thinking of running articles or op-eds on controversial matters such as feminism, transgender rights or the alleged problems created by Islam (or fundamentalist Christianity).

It’s worth bearing in mind that many members of the House of Lords today have more in common with the discredited EU establishment than they might care to admit. Forgetting the rump of hereditaries, membership of the House today is by appointment, without election, the selection being made from among those who have done moderately well for themselves and are skilled at catching the eye of dispensers of political favour. With honourable exceptions, the result is a curious congeries of talkative technocrats and politicians past their best, all of them used to being taken at their word and resentful when anyone questions what they say. They might perhaps reflect on whether the movement that said no to their colleagues across the water in Brussels might some day move across to engulf them too.

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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