Quaeritur: Pone seram, chibe. Sequis cusodiet ipsos Custodes? -Juvenal, VI, 347
Respondendum: Nisi Dominus custodierit civitatem, frustra vigilat qui custodit eam –Solomon
The Question: “Keep your wife under guard.” Yes, but who will guard the guardians?
The answer: Unless the Lord watches over the city, the watchman stays awake in vain.
(Preface to Bertrand de Jouvenel On Power: The natural history of its growth (Liberty Fund 1993))
Justice Leveson opened the inquiry into press standards with a political philosophical question: Who guards the guardians? The question goes beyond his stated terms of reference and in doing so reveals the review’s deeper moral dilemma. His question and the inquiry have opened our eyes to the moral and political corruption within the UK political establishment. We have seen politicians intimidated, police officers bribed or bought, people in protective custody potentially exposed , and personal lives destroyed. These are symptoms of a defiled democracy. The political elites have knowingly colluded in the activities that directed and benefited from the phone hacking. The various guardians of the regime benefited from and encouraging these activities because it suited their interests. All the while, the public, in whose interest the press, politicians, and the police were supposed to be acting were fed a steady diet of celebrity scandal and gossip. At the same time, the press downplayed the phone-hacking scandal, the police gave it limited attention, and the politicians feared to investigate it. Together they would have us believe that the issue was just celebrities complaining against a robust press exercising its right to free expression. The truth, though, was darker and sinister.
The scandal has revealed the sordid media market in illicit information and political patronage. It shows the corrosive effect that unaccountable power can have upon the democratic institutions. Under the News of the World, the public interest became the shield to invade a person’s life no matter how remotely they were connected to the story. In such a system, no citizen is safe or secure. All institution, even the Crown, was touched by its corrosive effect.
The press, police and politicians are supposed to act in the public interest. Yet, they lost sight of that responsibility. The corrupt trade between the press, politicians, and the police had been going on for years and now the public are becoming aware of what has been done in the name of public interest. Yet, who decides the public interest? It is ill defined in the UK because the political regime does not have a bill of rights. The government does not define the public interest. A judge does not define the public interest. The uncertainty allowed the guardians (the press, politicians, and the police) to define it according to their interests. Instead of being checked by each other, they colluded to use the public interest to their own purposes. In this regard, they reflected the residual political patronage system that still exists within the UK political culture. They would have been checked by a clearly defined constitutional order. A constitutional order here means that the majority may rule (the public interest) but only so far as the rights of the minority (the individual) are protected. Without the constraints on power afforded by a bill of rights, the individual citizen is subject to the tyranny of the majority. In this case, the guardians of the regime had power over the individual. In such a system, individuals cannot defend themselves against such power. Only the powerful, or the politically connected, can assert some equality, some protection of the law, within the public sphere.
Political corruption occurs when an individual uses the state, or the state offices, for their personal benefit. The same can be said if their failure to act serves their private or organisational interest. When they do this, they are not benefitting the common good or serving the public interest. In effect, they are violating on of the seven Nolan Principles of public service. They are serving their private interests or the organisational interests of their employer. The Leveson inquiry has shown this has happened. The extent, depth of, and variety of the corruption have corroded the political institutions designed to protect the public interest. In particular, it shows a “patronage” approach to politics and organisational responsibility that is at odds with the belief in individual rights, the rule of law, and the democratic mandate.
Police officers at the highest level have been implicated. Officers have passed information and appeared unable or unwilling to pursue investigations into the News of the World. In one case, a senior officer from the police investigating the paper went to work for it. These acts and their appearance suggest that they have put their personal interests, their professional allegiances, before the public interest, and ultimately before their duty to the Crown.
Politicians have fared no better, despite their desire to cast themselves as victims and bystanders. They have supped at the table, they have courted the attention, and they have benefitted from the access to the media. . What does it say about Parliament when a senior public official has argued that the politicians cannot investigate the issue? The corruption was such that a former news editor who admitted to a Parliament committee to paying the police for stories could become the Director of Communications for the Prime Minister. Here was an individual who had admitted to condoning behaviour that was criminal had demonstrated putting organisational and private interests over the public interest. He was placed at a sensitive role at the heart of government based on a patronage relationship that rewarded previously corrupt behaviour. What does this say about the political judgement of those involved in letting this happen?
The press would like the public to believe that it can distance itself from the behaviour and antics of its tabloid cousins. What the inquiry has shown is that this is simply not true. The ethos that infused the editorial offices of the News of the World runs through all newsrooms. They all use the public interest to justify their stories. Some do it viciously (News of the World) while others may do it virtuously. Despite the best efforts of some newspapers and some editors, none is free of the taint of corruption. The public interest has become a shield for what is in the best interest of their organisation, selling newspapers or accumulating political advantage. Instead of serving the public good, they have served their individual, private, or corporate good.
The main regulator has not escaped this scandal. The Information Commissioner’s Office (ICO) lacked the resources or the institutional authority to restrain the press. Despite published warnings about scale of the use of private detectives by the press to obtain personal information, the ICO was unable to stop the press from continuing to use private detectives to gather confidential information illegally. The regulator lacked the resources to wage an extended legal campaign and it lacked the authority to resist the press attacks. Who, indeed, protects the regime, when the press, politicians, police, and regulators all appear unable or unwilling?
Who, then, does guard the guardians?
In a constitutional monarchy, it is the Crown or the Crown’s agents that are the guardians. Yet, the United Kingdom is no longer a pure monarchy. The political regime is changing. The UK is at a transitional stage between a political system based on patronage and one based on individual rights protected and formalized by a constitutional settlement. The people are to be the guardians and to do this; they need a bill of rights and a constitution to protect those rights. They will need this political leverage and protection to reform the erstwhile guardians.
The public confront a situation where the press, police, and politicians all have a stake in keeping this from happening. Yet, their failure as guardians shows that it must occur. The democratic deficit has been revealed. An ordinary citizen faces a surveillance society without a bill of rights and a constitution to protect them.
What then is to be done?
The public need to reform the political institutions. The scale of the reform needed goes beyond improved guidance on the relationship between the police and the press. The country needs to reform its political institutions. At a basic level, it needs to rebalance the power between the individuals and the state. At an immediate level, each of the former guardians, the police, the press and the politicians need to be reformed. The following is a high-level sketch of what needs to be done based upon what the Leveson inquiry has revealed.
Do our police reflect our society?
The police require a systemic restructuring of how they hire, train and promote officers. One change that is becoming apparent is the need for the Metropolitan Police force to give up its counter-terrorism work. A separate unit should be developed so that the force can focus on its domestic policing responsibilities. The immediate structural reform is a change in the system of governance and oversight. When senior officers have to resign because of the scandal, it reveals a flawed system that promoted them and governed them. To put it differently, but directly, hey did not fall into this pattern of behaviour upon reaching seniority. The institutional checks were not sufficient to keep them from reaching this level. The inadequacy of the internal governance system can be seen in the fact that all the senior officers involved had been previously responsible for internal affairs or ant-corruption commands. Lord Ian Blair was the head of Internal Affairs and Andy Hayman lead the anti-corruption and complaints department , while John Yates lead various anti-corruption investigations, and Sir Paul Stephenson was named an anti-corruption expert. They should have known better that their actions and decisions would create the appearance of impropriety.
What is clear from the inquiry is that the press need to be reformed. The press hired private detectives to obtain personal information illegally. In itself, this is troubling. When it is used against politicians, we have the fear of political blackmail that subverts the democratic process. At the same time, the press have used the public interest to invade the privacy of individuals. A free society needs privacy to function. The use of the public interest, on this scale, without a democratic mandate, allowed the press to pursue any individual without restraint. The threat to privacy by these means, and the general surveillance state, means that any political opponent or any person deemed to be of interest could be targeted and silenced. When the press use the public interest defence, they must be protecting the public not exploiting them. The attack on privacy has eroded democracy and eroded the rule of law. One suggestion would be for the press to publish a public interest test when they claim the public interest defence for a story they have published.
Well this is just politics
Finally, and perhaps most importantly, the political system needs to change. At one level, someone can say, well this is just politics. Is this the type of politics we want? Do we want a regime that relies upon politically corrupt practices? If a politician is unwilling to vote according to his constituents’ wishes, because of what the press might publish about their private life on his or her mobile phone, then democracy is being undermined. If the politician acts only on behalf of financial interests, where is the democratic mandate? When politicians are unable and unwilling to investigate the phone hacking scandal, we face a democratic crisis. Britain’s democratic soul is at stake. The challenge is whether the public, and the political parties that represent them, can create a system that protect the individual. The public have the opportunity to change the system, will they take it?
What is to be done?
- Need a Bill of Rights to limit state power and organised interests.
- Fundamental policing reform involving restructuring the Metropolitan Police
- Press regulation involving a requirement to publish public interest test for stories.
- The right to privacy must be easier to defend in court
- The public must be educated to their democratic rights.