Now that the former editor of the Daily Mail has ruled himself out of chairing the media regulator Ofcom, a new candidate steps forward
There must be more curious ambitions but there are few more eccentric than wanting to be a regulator. It was not something to which I aspired. What could the attraction be in a whipping post which allowed others to vent their frustration, anger, disappointment and pomposity? The regulated constantly complain at the regulator’s tendency to overstep the mark, while never condescending to explain where the mark is. Those for whose benefit the regulatory system has been put in place cry out at the feeble and pusillanimous attempts of the regulator to provide protection or redress.
But as we wait with breath ever so slightly bated to hear who is to be the next chair of Ofcom, a twinge of disappointment creeps up on me. Is it too late for me to apply? To have the chance to regulate the BBC strikes me as a worthy ambition. Let me explain.
I did become a regulator, the first chairman of a new press regulator, the Independent Press Standards Organisation (IPSO), determined to be different from the Press Complaints Commission. I remained for five years. I loved some minutes of it. Young, bright and intelligent staff dealt with the anguish of the public with care and sympathy. But few of my misgivings were allayed. It seemed so complicated and so unlike the austere simplicity of my previous job, over a period of 18 years, as a judge.
Judges have the great good fortune to have the authority of the law thrust upon them; the punters, litigants, advocates, newspaper editors (a surprising number of them) bow and scrape and, above all, laugh at their jokes. It matters not whether the judgments are good, bad or indifferent, nor that most are far too long and repetitive. If you win, the judge is a pillar of justice and his judgment seminal and luminous; if you lose, he is an “enemy of the people” or was asleep. The authority he wields (and it is still a predominantly masculine authority) does not come from the excellence of his analysis, but from the status of his position. Indeed, respect for a judge which depends on the quality of his judgment is the antithesis of authority or the rule of law. Above all, judges can make people do what they say. How different the life of a regulator. Nobody laughs at their jokes.
Most regulators have no built-in authority, there is nothing about them which inherently commands respect. Some regulators, of course, like those who regulate most of the professions, have, as their source of authority, statutory powers and can impose statutory obligations which have the force of law. Typically, the regulated are compelled to obey as a condition of entry to a particular profession and to avoid breaches of the rules of conduct to prevent expulsion. IPSO had no statutory base – it was created by the regulated, the press.
This was, to those who spent too little time to think about it, a cause of criticism; self-regulation is always open to the accusation of self-interest, that it is little more than a sop to those who seek protection. But those critics never faced the only practical alternative, a system of statutory licensing. Licensing the press, last mooted by prime minister John Major in the early 90s and so sotto voce a threat in the Leveson Report as to be difficult to hear, has ever remained true to Milton’s description that it would be like a farmer erecting a gate to keep the crows from his field.
But self-regulation always remained, at least in my time, discomforting for a regulator who seeks to establish independence but is dependent on the acquiescence of the regulated. In relation to the press, the legal obligations which underpinned the regulations were derived from the willingness of the press to sign a contract with the regulator.
After Leveson, most of the national and regional press had reached the view that, to avoid some more severe but unspecified method of control, it was necessary to create a system of self-regulation. They appreciated that to do so, the system could not be, as it had always been in the past, entirely voluntary. It was necessary to confer legal power on a regulator to impose obligations which the regulated press was required to obey. The mechanism by which that was achieved was a contract which conferred power on IPSO to respond to complaints, to make decisions as to whether breaches had occurred, and to impose sanctions in the case of a breach. The regulated were required, under the contract they had signed, to co-operate, and to comply with rulings.
The great failure of IPSO – or to be honest, I fear, my failure – was a failure of persuasion. I never was able to convince those few who were interested in press regulation that self-regulation was anything other than self-interest. Freed from the pervasive clichés of those who criticised, such as they’re marking their own papers, or the last chance saloon, there was an essential truth in the accusation that the system was motivated by self-interest. So it is, but the question too rarely asked was whether that was necessarily a bad thing. It was all too easily assumed that because it was self-interest which triggered the intention to set up a system of regulation, such regulation was doomed to failure and should be derided and condemned.
Such an automatic response ignored some fundamental aspects of any system of regulation. Self-interest is a vital ingredient for such a system to be… I was about to write “successful”, though that is a concept too chimerical to be of any use. I often pondered on what the correct answer was to the all too- obvious question of whether I thought IPSO was a success. It was almost impossible to resist answering with the Professor Joad-like response (when will the BBC bring back The Brains Trust?): “It all depends what you mean by success.” Success to the reader meant a front-page splash signed by the editor and confessing to guilt. To the newspaper, it meant the evidence of the used bank notes in a brown paper bag. But to the disinterested observer …?
It works only if the regulated believe in regulation
Let me make the more limited assertion that no system of regulation will work unless the regulated believe that it is in their own interest to be regulated. Such an assertion is easier to demonstrate in the case of the professions: you can create and maintain a cadre of respected and financially rewarding expertise if entry to the profession is difficult and if breaches of the rules of conduct might lead to ignominy and expulsion. Many industries, too, saw that it was in their own interest, for their own protection, that regulations were in place to safeguard the public: the nuclear and pharmaceutical industries are obvious examples.
But there are other more subtle, or, let it be admitted, more insidious reasons why self-interest is important to regulation, whether the system of regulation is underpinned by statute, contract or is even purely voluntary (like the former systems of press regulation in the UK). Unless there is a willing acceptance of the authority of the regulator, there is a natural tendency towards resistance and secrecy. The regulated find it all too easy to be obstructive and obscurantist; it is inevitable that when rules are drafted, they will fail to foresee and therefore fail to cover situations arising in the future. Indeed, rules should not be too precise for fear they will become too rigid and inflexible within the straitjacket of precise definitions. They become fertile battlegrounds for disputes as to interpretation and application. Investigations lead to secrecy and, sometimes, concealment and destruction of evidence. A miasma of resentment wafts over the disputes. These elements of the relationship between regulated and their regulator exist whether the regulation is imposed by Parliament under statute or by the will of the regulated.
What, then, of the BBC and Ofcom? How often I have envied the fact that public service broadcasting was not only controlled under a system of statutory licensing but that the rules themselves contained highfalutin concepts, so strange to the world of the press, of, for example, “fairness” and “taste”. I grew to understand at IPSO that the worst aspects of the press were often those which were the least susceptible to control and regulation. How do you regulate against cruelty, bullying and offensiveness, particularly when directed against those who find it almost impossible to protect themselves? Yet these were features that individuals and the public as a whole most disliked and feared.
Each generation of reader lacks historical perspective. It believes that media behaviour is deteriorating. That is not true. The hounding by the Northcliffe press of Lord Haldane during the First World War is an early 20th century reminder of what was rumoured to be the then-Lord Rothermere’s answer to the question as to why his newspapers were so successful: “I give the people someone to hate every day.” No one has yet come up with an answer as to how regulation might control press cruelty or bullying.
And yet, and yet. Of course they have. Why cannot we emulate Ofcom? Why cannot we be all like the BBC or other public broadcasters, controlled by licence and required to avoid anything which might be thought tasteless and offensive (unless you are too Guardian-like to require control and your piety makes even an angel’s wing droop)? The question needs only to be asked for the answer to become apparent. Balance leads all too soon to lack of controversy, and lack of controversy to a world of master-cooking and mistress-dancing; there is often a feeble imprecision in the BBC’s ability to hold politicians to account, an absence of stringency and gravity. The public broadcaster’s belief that balance means equal air-time, coupled with the fear that the governmental purse-keeper will starve them into submission, leads to a grey and damp cloud hanging over the broadcaster. It is no accident that managers proliferate in inverse proportion to newsgatherers and reporters. Fear drives them to kow-tow. There is, I suggest, far too much time given to allow those answerable to the public to refuse to answer. And it is, to a major degree, the result of the content and application of the rules, imposed by statute and now administered by Ofcom, which leads to the bland leading the bland.
Perhaps my envy of a statutory regulator is misplaced. My aspirations would be better focused on my belief that we might do better with no regulation at all. The newspaper proprietor’s credo that he is giving the public what it wants carries with it the danger and the sanction that a newspaper must be fearful of offending its adherent reader. The Sun was forced to dismiss its former editor when he spewed a thoughtless insult about a popular footballer; no newspaper dares to be offensive about the Queen. This is not the result of regulation but because the readers would not buy either the insults or the newspaper.
Why not give zero regulation a limited trial?
What is required is to induce into the few who read newspapers a sense of empowerment, the notion that they can take control, that the newspaper proprietor is not as powerful as he thinks he is. I believe that there is a solution.
It would be worth trying a period without regulation; no regulation for anyone, neither broadcasters nor the press. I doubt whether they would behave worse, they are far too conscious of the need to attract readers, listeners and viewers. Of course, they might resort to more all-baking, sousvide excursions into vox pop but even they might weary of their tendency to safety. Would it not be worth a try for a limited period? The depressing feature which both legislation and regulation share is the inability to change direction. Too often, once brought into force, laws or regulations are never abolished, or once abolished are never revived.
But what is wrong with a trial? We need to introduce the notion of experiment into regulation and legislation. The leviathan of Ofcom might welcome a release of its ponderous duties for a period and do we really believe that will change the behaviour of the BBC, make it better or worse? It is a realistic possibility that it will become less flabby and adopt a more Nick Robinson-like approach to cross-examination of our leaders. (Do not think I am being over-critical; the feebleness of the totality of broadcasters and press in their cross-examination of Dominic Cummings was almost unwatchable).
So too, in the case of newspapers, I believe we would be no worse off and might receive greater advantage from a period without regulation at all. So here, late in the day as it is, is my application (CV and references to follow): to become chair of Ofcom and then remove from its responsibility the regulation of all public service broadcasting.
I don’t think I’ll get the job.
Sir Alan Moses was a Court of Appeal judge and the first chairman of the Independent Press Standards Organisation (IPSO).
This piece is reprinted from What’s the Point of Ofcom?, edited by John Mair and published by Bite-Sized Books. An updated, second edition of the book is out next month.