Professor Guglielmo Verdirame: Leveson "ethics officers" - coming soon to a newspaper near you

Professor Guglielmo Verdirame, King's College London, specialises in international law, and legal and political philosophy. He is one of the founders of the Templeton-funded Freedom Rights Project which explores what has gone wrong with human rights and how we can fix it. He practises as a barrister at 20 Essex Street chambers.

In its dying days, the regime of President Daniel arap Moi in Kenya established a Standing Committee on Human Rights. Not that President Moi had suddenly become passionate about human rights; it was just an exercise in international public relations. The Chairman of this Committee, when invited to address a conference, said this: “Free speech has to be put in context and interpreted against the background of what is right and what is wrong to say.” Some members of the audience swallowed hard. When I interviewed the Chairman afterwards, he explained: “There is no free speech for inaccurate statements”. “Who decides?” - I asked. “That’s one of the functions of the Government” was his reply.

The Royal Charter on the Press, with the two statutory amendments which – pace Mr Cameron – do underpin it, is founded on a similar misconception: that speech should be free only if ‘right’ or ‘accurate’.

This misconception will spread. It will penetrate institutions and change our free habits. Aided by uncertainty about the scope of application of the new regulation, an autocratic bureaucracy will emerge, not only in newspapers and but potentially also in all other organizations running “a website containing news-related material”. “Leveson officers” will be hired. Doubtless eager to justify their existence, they will guide, monitor, regulate, and on occasion terrify.

The regulation of the press is part of a broader attack on self-regulation launched by the previous Government. The current Government first did little to reverse it. With its ‘solution’ to Leveson, it has now embraced it. From universities to the legal profession, from Parliament (think expenses) and now to the press, ancient liberties have been dismantled and replaced with government-sponsored bureaucracies. How could it be otherwise? The Government always knows better and does it more fairly.

As Tocqueville foresaw, we now live in a society “with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, so that no one can rise above the crowd.” This regulatory power, which will now extend to the press, “does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”

Small, complicated rules imposed by the government, directly or through one of the various bureaucratic armies it created, have already transformed our life. Look at what happened to universities with research excellence frameworks, teaching quality managers, student experience surveyors – layer after layer of bureaucracy put in place to gratify an insatiable Leviathan.

The latest frenzy are ethics officers. In a recent example brought to my attention, the research plan of a phd student in a leading British university was deemed ‘unethical’ unless the student could ‘provide the panel with further reassurance that the interviews will not induce psychological stress or anxiety’. The other concern of this ethics soviet was that the military personnel, whom this particular student wanted to interview, might ‘disclose details regarding illegal activities carried out by themselves or others’. They wanted assurances that this would not happen.

The number of people who finds this sort of stuff illiberal, intrusive and outrageous is dwindling. More and more of my colleagues accept it as a fact of life. Some even seem to derive comfort from all this regulation.

Why does this matter for the press? Because, after this latest constitutional outrage, it too is heading in that direction. It will not be long before journalists, like the PhD student, will be asked to provide assurance to their Leveson officers that they are not going to ‘induce stress or anxiety’. Rather than being encouraged to go out and unveil illegal stuff, they will be asked to stay clear of that.

Even more importantly it matters for all of us too. Once the free press is tamed, reversing these broader oppressive trends will become almost impossible.

How can this be happening in the homeland of liberty? Where has British liberalism gone? Labour’s liberal wing seems to have disappeared – crushed by two decades of New Labour conformism. Even left-wing intellectuals have largely gone quiet on the dangers of Leveson, perhaps reassured by the stance of The Guardian and The Independent. As for the Lib-Dems, only a handful of them say liberal things, and the party should seriously consider dropping the ‘liberal’ from its name altogether.

The legal profession and the courts have on other occasions stood up for liberal principles. But their liberalism now suffers from a deep philosophical confusion. The Human Rights Act has become the only framework for argument about liberty. The Act, like the ECHR on which it is modelled, is centred on proportionality and balancing. With a few exceptions (like torture) all ECHR rights can be limited as long as the judges consider the utilitarian calculus behind the limitation to be sound. Read the Leveson report and you will see how deeply this utilitarianism pervades it.

The Tories, who embody the Burkean tradition of British liberalism, had taken the right position on Leveson. Their instincts and their analyses were correct. Even if the vote in Parliament had been lost, they would have come out the moral winners. Why give away such an advantage? And if they do not stand up for ancient and modern liberty, who will? Alexander Herzen is believed to have said that the English invented liberty without having any theories about it. We may now be killing it in the same way.