Two developments that are certainly not linked in any way

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Two

Rebekah Brooks Phone Hacking Trial Begins In London http://t.co/xR1vgyKTqQ via @thedailybeast

— Peter Jukes (@peterjukes) October 28, 2013

The News of the World: some initial thoughts

This afternoon’s announcement of the closure of the News of the World is not quite the victory for righteous indignation many would wish it to be. While it is true that the exodus of advertisers and the reluctance of newsagents to stock the paper this Sunday will have presented a considerable problem, it is unlikely that this decision will have been made with quite so much haste as may first appear. Not only was the News of the World the most profitable newspaper in the UK, after the Times of India it was one of the most-read papers in the English-speaking world.

We know that the intention to integrate the Sun’s operations with that of the NOTW had been already announced over a week ago. It is entirely possible that News International’s attempt to seize the narrative of the voicemail interception story has doubled as useful cover for the laying off of 200 editorial staff that they wanted to do anyway. It is not known who registered the domain name thesunonsunday.co.uk a couple of days back, but surely no one will be surprised to see the NOTW’s sister paper The Sun launch a Sunday edition relatively swiftly.

Those of a strategic turn of mind have speculated that getting shot of one of News International’s main media properties may also help with clearing objections to the pending Murdoch takeover of BSkyB:

https://twitter.com/#!/estheraddley/status/88996347788800000

But something has changed with the abrupt end of the NOTW’s 168 year history, something that it may not be possible to remedy. A paper that portrayed itself to its readership as one that prioritised the protection of children from crime above all else has been revealed to be one that manipulated and exploited the families it purported to champion in brutal fashion, to the extent of interfering with police investigations. That kind of trust capital is unlikely to be rebuilt easily; it may be that former NOTW readers can never quite believe what the press tells them in quite the same way again.

It is to be hoped that the terms of the recently-announced public enquiry, when they are revealed, do not shy away from examining the complicity of news organisations beyond the already named-and-shamed and the shortcomings of the Metropolitan police. And there will still be the political reckoning to come. If, as some rumours suggest, Andy Coulson is soon to be arrested then we have not seen the half of it.

Superinjunctions and the Rule of Law

Much has been written this week about the ability of social media to make the more dubious parts of the UK legal order look rather ineffective. Neither the power of social media to overturn official British secrecy, nor the desire of individuals to find out information that has been concealed from them comes as any surprise to this blogger.

Lord Neuberger’s report into the use of superinjunctions (which the media are not allowed to allude to the existence of) and anonymising injunctions (which prevent the reporting of the names of those involved) makes for very interesting reading. Lord Judge’s comments on the perceived unreliability of information that comes from outside the approved channels of mainstream journalism have been widely covered – here, clearly, is a man who has not read the New York Times recently – so I would like to turn instead to what I feel is an equally interesting part of the report.

One of the more significant events of the past few days has been the use of Parliamentary privilege to partially overturn an injunction taken out by former RBS head Sir Fred Goodwin to prevent reporting of certain events leading up to that bank being bailed out by the taxpayer to the tune of £4.5 bn. It has been reported that Sir Fred was carrying on a relationship with a senior colleague, whom he promoted twice – possibly not to the benefit of the effective management of the bank. Lord Stoneham’s actions in the House of Lords were not criticised directly in the report: indeed, Neuberger acknowledged that Parliamentarians had “an absolute right” to discuss whatever they wished within the Commons or the Lords, although he suggested an “accommodation” might be reached on sub judice issues. However, Neuberger does suggest that, should such occurences happen in future, the mainstream media should note that “unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right”, and that their existing rights to report on Parliamentary proceedings under the 1840 Parliamentary Papers Act are constrained by the need to be acting “in good faith and without malice.”

Quite apart from the practical absurdities of putting obstacles in the way of discussing events which are, in Hansard, already on the public record
(as if we hadn’t been through this already with Trafigura) – and the onus this would put on citizen journalists to risk incurring Lord Judge’s displeasure by discussing such events widely, perhaps as they are reported in Scotland – this is also an issue which strikes right at the heart of the constitutional settlement in the United Kingdom. There is an argument (one powerfully put forward by Professor Vernon Bogdanor in his 2006 Magna Carta lecture) that the traditional understanding that Parliament is sovereign and subject to no higher power is no longer the case. This issue has become particularly acute since the incorporation of the European Convention on Human Rights into domestic law with the Human Rights Act of 1998.

The Human Rights Act does not quite give judges the ability to overrule Parliament and strike down legislation – instead, should they judge that a piece of British legislation be in conflict with the ECHR, they may issue a “statement of incompatibility” for Parliament’s consideration. There is no outright obligation for government to review the piece of legislation concerned in the light of this, but the gentlemanly expectation upon which so much of our constitutional order rests is that they will do so. In effect, what such a judicial statement is saying is that, if a case were brought to the European Court of Human Rights on the basis of the legislation concerned, then the judgement might very well go against the United Kingdom. Judgements made in Strasbourg are binding on the British Government, however much they might try to pretend otherwise (see, for example, the recent case of prisoners’ electoral rights, an episode that does the Coalition no credit at all).

Past judgements of the Strasbourg Court have produced fundamental shifts in the UK’s observance of human rights. In 1978, the Court ruled that the way the British were treating Irish Republican dissidents amounted to “inhuman or degrading treatment” in violation of Article 3 of the Convention. Incidentally, recent observers have argued that, if the circumstances were repeated today, the Court would be much more likely to say that what the British were doing was “torture.” It is not for nothing that Gareth Peirce argues that the abuses perpetrated on those detained by the United States on suspicion of threatening their national security owe something to the example of the British in Northern Ireland a few decades before. In any case, the European judgement definitively changed British practice in this area.

More recently, cases brought by some of those detained without charge in Belmarsh prison – and subsequently held under house arrest under control orders – have conclusively determined that any attempts by the United Kingdom Government to opt out or derogate from particular clauses of the ECHR on the grounds of national security are unlikely to be judged lawful. In all three of these cases, a higher power has determined that national government has to go back and think again about what it legislates and how it applies that legislation.

This is not quite the end of the matter, however. In his excellent book on The Rule of Law, the late Lord Bingham makes a strong case for Parliamentary sovereignty remaining the overriding law of the land, with the proviso that “there are some rules which no government should be free to violate without legal restraint.” It is clear from Lord Bingham’s argument that he regards the protection of human rights, as granted in the European Convention and other international legal instruments, as being one of those rules. Superinjunctions and anonymising injunctions are usually taken out with the aim of safeguarding the personal privacy of an individual and their family – and privacy is indeed a right of individuals, one safeguarded under the eighth article of the ECHR. But these legal measures to protect privacy are not open to just anyone – they are open to those who can afford to pay a substantial amount of money in order to keep matters they find embarrassing out of the public eye.

I would argue that, precisely because they are selective in this way, the use of anonymising injunctions in itself offends one of the constituent parts of the rule of law as defined by Lord Bingham: that of equality before the law.

Most British people today would, I think, rightly regard equality before the law as a cornerstone of our society. There should not be one law for the rich and another for the poor… we would also accept that some categories of people should be treated differently because their position is in some important respect different.

There are clearly some examples of injunctions that reflect that “some categories of people should be treated differently” and I think it is significant that the public outrage against the use of superinjunctions does not typically extend to these cases. On the contrary, this outrage appears to be restricted to those who are perceived to be paying for the right to be afforded a greater level of privacy than most people enjoy. I am tempted to argue that this public discontent stems from the perception that a fundamental rule of public life has been breached and that all who are subject to the law should be equal before it. The individual’s right to privacy is important, but if additional protections are seen as necessary, and this is to come under the purview of the courts, it needs to do so as part of a legislative regime aimed at protecting the rights of everyone, not just those with the ability to take out extraordinary judicial orders.

Update

I’ve just noticed MTPT’s post, which highlights that those involved in criminal cases – even if they’re just related to the victim – do not have anything like the same expectations of their privacy rights being respected as those who can pay for access to the civil courts:

In developing the law of privacy in the UK, the civil judiciary have in practice (given the reality of the costs of civil litigation) created a privileged position for wealthy claimants, and for participants in family court proceedings. Participants in criminal cases, or those who cannot afford to spend several thousand pounds on legal advice and representation, do not have proper access to the law of privacy that has been developed.

Update II

As most people reading this will know, when Ryan Giggs’ identity was revealed on Monday afternoon, this was also achieved through the exercise of Parliamentary privilege. John Hemming MP has justified his actions on radio 4 this afternoon as follows:

think there is an important point. If there is oppression going on, we should be willing to speak out about oppression … If you are jailing people for gossip … The step has started, the first step of identifying who people are has started. And there are people are jailed in secret in this country. We really have got to put a stop to jailing people in secret.

Fleet Street Fox also makes for interesting reading today.

The Politics of Disengagement

I’ve been reading John Kampfner’s book Freedom for Sale, which argues that people around the world are voluntarily trading off political liberty for a measure of economic and (perceived) physical security. Kampfner grew up in Singapore, which is where his first case study is set, and the book does read very much like an observation from that rather odd city-state extended to very different societies around the world.

Measures of purchasing power per capita put Singapore in the top five countries in the world. But it is also a virtual one-party state in which debate is stifled. In 2005, Singapore had the highest rate of executions in the world relative to size of population. Singaporean judges also regularly impose sentences that include corporal punishment. There are signs that the increased access to political debate online may be changing things, but only slowly, and most of that change seems to be happening in the private sphere (which, a generation back, was also subject to strict political control.)

Kampfner then seeks to apply his argument to a range of more (UK, US, Italy, India) and less (China, Russia, UAE) democratic states and show how, in each, similar trade-offs have been made. Despite the very wide variation between these examples, I think Kampfner does do something valuable in showing how disengagement from the political process is a problem across different kinds of societies. And I wonder if the common factor isn’t that political elites in Western democracies are now presenting themselves in similar ways to their counterparts in less ostensibly free polities.

Political elites across different kinds of states do seem to be presenting themselves in broadly similar ways – as technically competent managerial types with no ideological axe to grind. What they say distinguishes them from their opponents, typically, is that their opponents are corrupt, or at least more corruptible than they are. Hence, in practice, political competition is presented as a contest in which personal plausibility is the foremost concern. Negative campaigning, which seeks to impugn the plausibility of an opponent, has been shown to reduce turn-out at election time, particularly amongst voters without decided party loyalties.

As a result, I am not sure whether the idea of a ‘pact’ – with its implications of proposals being made and agreed to – is the best way to describe this dynamic as it applies in Western democracies. I rather suspect that accepting and perpetuating civic disengagement is actually a rational strategy for many politicians, as it is for the mainstream media outlets who rely on those politicians for the flow of negative briefings and information on inter-departmental squabbles that makes up a great deal of what we call political news coverage. And, again, I suspect that the partial flow of information downwards has a negative impact on individuals’ feelings about the relevance of the political process and their potential effectiveness within it.

How this works on the individual level is very interesting indeed as a conversation on twitter last night brought into focus for me. What we tend to call apathy must be a conflation of at least three phenomena: firstly those who are, for whatever reason, genuinely not interested in the political process. Then there is a second group whose knowledge of the political process is fully determined by the partial information which they are receiving. If the BBC tells you only about the gossip at Westminster, and tussles about the speed of public service cuts but not the advisability of cuts themselves, then you might be excused for thinking that this is in fact the entire spectrum of political debate. Any idea that exists off of this spectrum is thus, almost by definition, not to be taken seriously. There is something slightly pernicious about the way the BBC relies on the illusion of an unchanging constant to perpetuate this impression: it is no coincidence that when Radio 4 listeners get riled up, it is more often than not due to proposed changes to the schedule.

Finally, there is a cognitive resistance to processing certain sorts of information, particularly those which bring into question articles of faith or long-held affective ties. I would contend that patriotism – the identification with a particular imagined civic community and its internal narratives – is one of those fundamental affective ties for many people. The impact of cognitive bias towards the status quo should also not be underestimated: change is – after all – destabilising and stability on a psychological level is a priority for most. To have, then, a media outlet of the stature of the New York Times – which, unlike many European newspapers, professes to be objective – ignoring or arguing away such potentially destabilising information must at the very least discourage that potentially difficult cognitive process from being undertaken.

All of which is to say that civic engagement in democracies – where engagement is, in theory, possible – appears to be dependent on the willingness of the individual to confront certain difficult truths about the society in which they live. Given that this process can sometimes be difficult, a free (or free-ish) flow of accurate information is an essential prerequisite, as are media outlets willing to cover and contextualise that information in a way that does not play down its significance. When John Kampfner can write – fairly accurately – that “the dividing lines between countries deemed to be authoritarian and countries deemed to be democracies are not as clear as people in the West believe them to be,” it is hard not to conclude that we are looking at a systemic failure in the relationships between government and governed and the mainstream modes of communication between the two.

The Dangers of “Patriotic Journalism”

Two recent examples being selective with the facts – and their likely impact.

1. The Patriotic Narrative of the New York Times – Why are people protesting in Iraq?

Tim Arango, NYT bureau chief sounds incredibly peeved in his response to Dan Hind’s weekend blog post, so much so that he completely forgets to address the issue at hand.

The eagerness of the NYT to comply to the PR directives of the US Government has become increasingly evident in recent months. The paper’s response to the Raymond Davis affair was a particularly egregious example and this isn’t all that impressive either:

2. The British broadcast media response to the release of the Guantánamo Files: stay afraid

From Craig Murray’s blog:

I have just witnessed the most remarkable operation in orchestration of propaganda in the UK in my lifetime. As I posted yesterday, the leaked Guantanamo files revealed a remarkable amount – that most detainees were completely innocent, that many were plainly fitted up by informants for cash, that people will say anything under torture, that ludicrous assertions were made by the US military, eg the possession of a watch was a clear indicator of bomb-making, and above all that nothing whatsoever could be proved against the vast majority of those held.

Today, with a quite amazing unanimity the mainstream British broadcast media have decided that none of the above analyses exist and the only thing worth reporting in the files is the assertion that 35 suspects received terror training in the UK. Both the BBC and Sky News were leading their broadcasts with the assertion of this highly dubious fact: here it is in Rupert Murdoch’s super soaraway Sun.

Given that the much more obvious lesson from the files is that this kind of information is untrue and from torture, informants, ridiculous deductions and prejudice, it really is an extraordinary thing that the entire British mainstream media today decided on this absolutely uniform presentation of the information. Nor has any of the outlets gone on to point out that not a single one of these 35 has actually been convicted of anything, and that many of them, like Moazzam Begg and the Tipton Three are demonstrably innocent, and that the British government is going to be paying quite a few of them compensation.

This potentially scary but substance-free non-story was touched on by Clive Stafford Smith in his Guardian webchat yesterday, which I have covered elsewhere on this blog. Stafford Smith was here criticising the Telegraph, for covering this angle (and to a lesser extent the Guardian for this)  – but at least this was just one of a number of tacks each paper took in what was rather extensive coverage of the released information in both cases.

Of course, had you been watching how the story had been developing online – and maybe taken the opportunity to dip into the primary material yourself – you would have been able to develop an even more comprehensive view of what had been going on in Cuba for almost 10 years. I’m guessing that, given an insight into just how dismal the quality of evidence presented in the reports is, and how heavily based on the unreliable testimony of a very few detainee informants and others extracted by torture, most online news consumers wouldn’t have taken the allegations of terror training facilities in London all that seriously. I’d also guess that those relying on TV, radio and – to a lesser extent – print media for their information might have been less able to make this judgement.

The British media landscape today consists of three distinct communities of information (broadcast, press, internet) – and at least one of them is seriously impoverished.

Update

Coverage of what happened in Bristol last Thursday also appears to be a fine example of the mainstream media in the UK making a ‘useful’ story out of events on the ground – although, in this case, it’s probably the case that (like most of us) they hadn’t much idea about what was actually going on.

Update II

There is now a very interesting discussion of protest in Iraq and the reporting thereof going on here.