Nick Cohen

Leveson: Don’t be frightened by the state

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If David Cameron had any sense, he would stand up in the Commons and say

“I am withdrawing the Royal Charter. The law officers have assured me that Lord Justice Leveson, though a fine judge in many respects, did not understand the Human Rights Act. He failed to see that the courts would almost certainly find that his plans to force newspapers and websites to join his regulator by hitting them with punitive fines were unlawful in practice. My problem is that too many in Parliament cannot see it either.

“There is a madness here in Westminster; a fanaticism which I, as a traditional Tory, find distasteful. I do not like officials in the Department of Culture Media and Sport drawing up lists of who must submit to censorship – the Angling Times, no, Hello! Magazine, yes, student newspapers, no, local newspapers, yes, “small-scale blogs,” no, medium-or-above-scale blogs,” yes. It's not just that these pronouncements may have no legal force, it will be up to the courts to decide how interpret the legislation, I am worried that British civil servants are sounding like officials in a banana republic producing a list of targets that the regime must monitor and those it can safely ignore..

"I don't regret seeking all-party agreement. There's nothing wrong with looking for consensus. But politicians have been caught up in a giddy rush to escape from the reality that legislating on free speech is hard and dangerous, the work of years. I once said that “the next big scandal waiting to happen” is lobbying. Well we're having that now. Hacked Off, will not name its backers. It will not say whether they include British or foreign oligarchs who want to shut down investigative journalism. Yet it sat in the Leader of the Opposition's offices, munching pizza and drawing up legislation in the middle of the night. I accept I should have supported the leader of opposition when he denounced the hacking of Milly Dowler's phone. But since then, I have lost respect for him. He's shown himself to be a weak leader, the plaything of special interests.

“I am struck how the Guardian, Spectator, Private Eye, New Statesman, Economist and Financial Times, have all expressed alarm. None of these papers was criticised by the Leveson inquiry. The Guardian indeed provided the stories which led to the Leveson inquiry.

“I am more struck by the fear that is spreading through websites, blogs, local newspapers and small magazines, which once again have broken no laws. I don't like people being frightened about what they write. Writers should not be frightened about what they write in a free country as long they write within the law.

“So I'm withdrawing the Royal Charter, and going away to think of a better idea. Labour and the Liberal Democrats can keep behaving like the Tea Party in Washington by hijacking bills and trying to force Leveson through. Who knows, they may succeed. But I can see an assault on fundamental liberties coming and an administrative disaster too, and I want nothing to do with it.”

Cameron, of course, will say nothing of the sort. He is as weak in his own way as Miliband. But all of the above remains true, particularly the point about fear spreading through what is meant to be a free country. It is outrageous that Brian Leveson and Parliament are telling magazines, local newspapers, websites and national newspapers, who have behaved honourably, that they must pay to join a regulator, which can punish them for writing within the law, or face punitive damages in the courts if they refuse.

Punitive or exemplary damages are essentially criminal penalties in civil cases. A judge can punish a publisher even if he wins a case, by ordering him to pay costs. If he loses then the sky's the limit. Judges do not like them for obvious reasons, and the Court of Appeal has severely restricted their use. In the days when Labour was in government and stuck by sensible principles, the Department for Constitutional Affairs consultation paper, The Law on Damages (CP 9/07) refused to extend their use in civil cases.

The Government … considers that there should be no further lessening through statute of the restrictions on the availability of exemplary damages. The purpose of the civil law on damages is to provide compensation for loss, and not to punish. The function of exemplary damages is more appropriate to the criminal law, and their availability in civil proceedings blurs the distinctions between the civil and criminal law.

If you are a writer or publisher – who has never hacked a phone or monstered an innocent person – and are frightened by the attempt by Leveson and the current parliament to extend exemplary damages, take some heart from this briefing from Gill Phillips, the chief legal officer at the Guardian and Observer.

It is worth noting that Lord Justice Leveson neither invited nor received submissions on exemplary damages during his Inquiry and the recommendations in the Report on exemplary damages are based on an out of date Law Commission report which was prepared before the Human Rights Act 1998 was passed.

In other words, he didn't know what he was talking about and did not take steps to remedy his ignorance. Phillips continues

What is regarded as particular objectionable is the fact that these single out for punishment a particular category of defendant, rather than a particular kind of conduct, all the more so where the category of defendant singled out includes the press. The advice here is particularly strong, namely: to punish the press for what others may do without punishment is inconsistent with the special importance that both domestic and Strasbourg jurisprudence attaches to freedom of the press under Art 10 of the ECHR.

Leaving aside the very serious concerns in principle about introducing exemplary damages, anyone reading what is proposed in the latest draft clauses and comparing them with what the Leveson Report recommended can’t but say that these current clauses are a million miles away from what the Report recommended.

In other words, the courts will strike this down. This is why no big publisher apart from the editor of the Independent is signing up to the new regulator. They know that Hugh Grant, Miliband and Clegg have got greedy and stupid. They had the old Fleet Street on its knees. It was willing to offer concessions, many of which I would have welcomed because I believe that the old Fleet Street needs a tough independent regulator as long as there is no hint of political control.. But like many another greedy and stupid man before them, they have overreached, and may end up with nothing. The first publisher to be hit with exemplary damages will be able to take a human rights case to Strasbourg if necessary. I know from private conversations that lawyers are queuing up to fight what would be one of the great free speech cases in British legal history, and that they are confident that they can win

I implore writers and small publishers to follow suit and not to be frightened by the clowns in Westminster either. You should carry on investigating and arguing and debating. As they used to say in Eastern Europe, you should behave as if you are living in a free country even when you are not. True censors in Britain's past and in today’s dictatorships are frightening. Their modern British equivalents, Hacked Off, most of the Tories and all of Labour and the Lib Dems – the celebs and the pols – are many things. They are contemptuous of human rights and the procedures of parliament. They are as willing to threaten serious journalism as malicious journalism. They are ignorant of this country's liberal traditions, and they are caught up in a cultish frenzy. But they are not truly frightening, just brutish and unthinking. They can be beaten.