Sunday, 2 December 2012

Alea iacta est - Brief thoughts on crossing the Rubicon

David Cameron mentioned 'crossing the Rubicon' several times in his speech in the Commons, saying that it would be enacting legislation to regulate the press for the first time in three hundred years. Yet this actually rather runs against what he presumably was trying to convey. Parliament is sovereign / supreme, and it is able to enact any legislation the Government wishes at any time, and is not bound by previous parliaments, provided there is a majority. So if there is such a danger of Government trying to muzzle the press, why has it, in his view, never done so in three hundred years, for most of which Britain was not particularly democratic?

And if that danger exists, why does it become more likely, or more dangerous if regulations already exist backed by statute? Assume that Leveson was implemented and a statute existed according to his criteria, if a subsequent Government then wanted to expand on this, by demanding changes which would genuinely reduce the freedom of the press (unlike the current proposals), are we to assume the press, which has been unrelentingly aggressive in attacking Leveson up until now, and which has access to millions of voters, would suddenly roll over and allow it?

Even assuming our politicians wanted to control the press, which so far they have shown no desire to do, as long as this remains a democracy, the press and we as citizens are quite able to consider any future changes as and when they happen-- if they do.

And again, as no parliament can bind its successors, we can actually cross the Rubicon in the other direction. There's no point of no return. If the situation was unworkable, it would be entirely possible to change things, if sufficient will existed.

Furthermore, in so far as there is an exception to the supremacy idea, it is this: That there is a thoburn constitutional character to the Human Rights Act, which requires the courts to interpret subsequent legislation as compliant unless it explicitly derogates or abrogates, and requires public bodies to comply with the ECHR, which includes a right to freedom of expression subject to certain ordinary limitations, which permit normal regulation, defamation law. The main way Parliament isn't entirely supreme, is that it has given some power away in respect of European courts for the purpose of these issues. At least for the time being.

His other concerns revolving around producing simple, workable law are simply absurd. There are many topics on which legislation is not simple, and Governments rarely avoid legislating simply out of fear that it might be difficult. And if they did, we might wonder why we had legislation on the health and social care bill, which many commentators were not convinced was even necessary. Indeed, quite a few lawyers have suggested Government has a tendency to either over-legislate, or under-legislate, depending on the politics of the issue.

I suspect this is a more accurate reflection on the Prime Minister's statement.

On a slightly different note, it is not true as Fraser Nelson suggested that you cannot have partial freedom of the press and still have freedom of the press. All freedoms, all liberties, all rights are partial in the sense that they are contingent on corresponding duties, and may be limited by conflicting rights and freedoms. We see this with the right to privacy vs freedom of expression, or the rights of women vs the rights of unborn children. As was famously said: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic". And freedom of the press is not freedom of speech, it is a pulpit, whose access to the public grants it power which over-rides that of ordinary speech or expression, and carries with it the responsibilities which a democratic society requires of its media.

To suggest freedom encumbered is no freedom at all, is to cast reality as an impossible conflict between dangerous absolutes.

Our press is already not free to break the criminal law. Regulation would merely ensure it was not free to ignore its own code.

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