Hugh McLachlan: No press body can enforce morals

Lord Justice Leveson delivering his findings. Picture: PA
Lord Justice Leveson delivering his findings. Picture: PA
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Setting up a body to regulate the press, as recommended by the Leveson Report, would be misguided and unnecessary, writes Hugh McLachlan

How should complaints against the press be dealt with? The status quo should be maintained.

Even if Westminster were, unwisely, to try to implement the central recommendation of the report of the Leveson Inquiry, Holyrood need not do so, whether or not we vote for independence in the impending referendum. It need not do so and should not do so.

Currently, within the UK as a whole, the Press Complaints Commission (PCC) deals with some grievances that members of the public raise against newspapers. The report of the Leveson Inquiry recommended that this should be replaced with some – as yet unspecified – sort of independent regulatory authority with statutory underpinning.

Since the regulation of the press is deemed to be an area of devolved responsibility, the Scottish Government has set up a panel of five media specialists to produce advice on how the recommendation might be specifically applied to Scotland and propelled by some appropriate new Scottish legislation. This is a misguided exercise.

The central problem with the Leveson Inquiry is apparent from its title. It was an inquiry into the “culture, practices and ethics of the press”. In this context, ethics is a synonym for morality.

Ethics and the law are different. Parliament has the role of passing laws. The police and the courts have the roles of enforcing them. However, no-one has the authority to enforce, regulate, or administer morality and no-one should be allocated such a role.

Even although there are connections between ethics and laws, and even although laws are often passed for what are considered to be moral reasons, they are different. We ought to treat people with dignity and respect. We ought to treat others as we would like them to treat us. However, it is not a criminal offence to fail to obey such moral rules.

The enforcement of the law is not the same as the enforcement of ethics. When we break the law, we can be rightly apprehended, tried and punished by those who are authorised to administer and enforce the law. It is different when we breach our moral duties.

We ought, perhaps, to give some of our money to charity. We ought to be faithful to our spouses and partners if we promise to be. If we act immorally and are mean and unfaithful, people might rightly criticise and condemn us, but none has the authority or responsibility to hold us to account and exact punishment, or redress, for our immorality.

Nick Hurd, the minister for civil society, was recently quoted as saying that he would “support, congratulate and encourage” those pensioners who gave away their annual winter fuel allowance. It might be argued by some people, although not by me, that pensioners who can afford to do so, morally ought to return their winter fuel allowance, or make a commensurate donation to charity.

It is sometimes appropriate to rely on a panel of experts to answer a particular question. Even then, different experts can often disagree as, say, when they are asked whether or not the relevant laws are such that an independent Scotland would automatically retain membership of the EU.

It is characteristic of moral claims that they are contentious and debatable. With moral questions, the very notion of expertise is dubious. Who has the relevant expertise to say, for instance, whether or not some pensioners ought, morally, to waive particular allowances?

Even if it could be established that some better-off pensioners do have a moral obligation to waive a particular allowance, it would be absurd to suppose that a panel of pensioners, or a panel of any other sort, should be given the statutory authority to enforce the surrender of their winter fuel allowance from those pensioners who were judged to be retaining it unethically.

The power authority of the PCC over newspapers derives from and is limited by the agreement of the newspaper proprietors to be bound by it. It serves some useful, although very limited, purposes. For instance, it can serve as an escape valve and a filter. It can settle some matters out of court more speedily and cheaply than the courts would do were they able to settle them.

It is clear that the PCC cannot deal with all the complaints that are raised by the public against the press. It cannot prevent journalists and other people who are associated with newspapers from acting immorally and even illegally in some cases. It cannot punish them when they do so. It cannot always provide those who feel they have been harmed by wrongful press coverage the sort of compensation they think they deserve.

However, these are not good reasons for instigating a new statutory body to control, regulate and punish the press.

It is the job of the courts, both the criminal and civil courts, to enforce the laws of the land and to mete out appropriate punishments and to exact appropriate compensation when they deem that the laws have been broken. The courts cannot be expected to prevent people from breaking the law. They cannot be expected to satisfy all those who have a complaint against alleged law-breakers. We need a more rigorous enforcement of current laws and, perhaps, a clearer indication of what is and what is not legal. That is not the business of the Press Council or any such professional organisation. To expect the Press Council to enforce the laws of the land is absurd. When the state has been unable, or unwilling, to enforce the relevant laws, it is particularly bizarre to expect the Press Council or some such other body to do so.

If citizens who happen to be, say, university lecturers or journalists break the law, it is not the business of other university lecturers or other journalists to hold them to account whether or not they break the law in the performance of their professions? It is the business of the courts to do so.

If university lecturers or, say, journalists act unethically in the performance of their duties, no-one has the authority to hold them to account if their behaviour is neither illegal nor in breach of their terms of employment. No body should assume, or be allocated the authority to hold them to account.

Should there be redress against people who say or write particular things?

If they break the law in order to get their material, they should be punished for breaking the law. If they break the law, either the civil of criminal law, by publishing or repeating the claims, they should be prosecuted.

However, it should not matter whether the individuals concerned are journalists or not. Their profession should be irrelevant. Similarly, it should not matter whether or not the claims are published in a newspaper or appear elsewhere.

There should not be specific laws that apply to members of the press. There should not be specific statutory bodies that regulate newspapers.

The ethics of the press are not the business of the state. It is not the business of the state to try to allocate a responsibility for regulating the ethics of the press to a statutory body of any sort.

• Hugh McLachlan is professor of applied philosophy at the Glasgow School for Business and Society at Glasgow Caledonian University.