The Guardian, Financial Times and Independent agreed with the parliamentary route. It is unclear why Milton, Wilkes or Orwell would be happy to bequeath freedom of expression to the government of the day in collaboration with the Lord Chamberlain — currently an hereditary peer, the third Earl Peel.
The second cause for alarm is more real — the insistence on imposing exemplary, or punitive, damages on those who do not join the regulator (and, in some circumstances, even those who do).
This is a seriously bad idea that will create martyrs and is probably incompatible with the free speech clauses of the Human Rights Act and the European convention. It means a magazine such as Private Eye or Web sites for which regulation was never intended could face crippling damages which could put them out of business.
It should be sufficient to offer the cost benefits of an arbitration service — even to those outside regulation, who can show that they acted to the professional standards of industry. More carrot, in other words, and less stick. Unlike exemplary damages the “carrot” of costs can be achieved without statute — though the cost clauses are also flawed.
The press has other reasonable grounds for concern. It is fair for the regulator to have powers in relation to the prominence and wording of corrections and adjudications, but not even the courts have the power to insist on apologies.
Similarly, the press have quite understandable worries about ambulance-chasing lawyers misusing the arbitration service in ways that could add disastrously to the costs of an industry already reeling from the existential disruptive threat of new technologies and competitors. A nominal fee — similar to a small claims court’s — may be necessary to make the system work and avoid a flood to compensation as opposed to other forms of redress.
The same is true of third-party complaints — a reasonable idea within limits, but potentially crippling if the floodgates open in an uncontrolled way.
The difficult question now is how to sort out these remaining issues without the crushing time pressure that leads to botched drafting which, in a royal charter world, become inscribed on vellum and extremely difficult to modify.
The race against the clock is largely due to the guerrilla action that has seen at least three government bills — including the defamation bill — held hostage by campaigners and factions who are, understandably, mistrustful of the private negotiations that have got us to this pass. It would allow much calmer discussion of the remaining issues if the campaigners dropped these hostage clauses. Let Cameron have his bills back — including defamation — so that everyone can get the future of press regulation right.
The Liberal Democrats, Labour and campaigners for press victims will counter that they cannot entrust the press and Cameron with any future negotiations. They point to Cameron’s broken promises and to the way in which some of the press have abandoned any pretense at reporting the issues fairly, or indeed at all.
A royal charter was supposed to be unifying — politically and with other stakeholders. It would be wrong to rush it through at this stage if it enshrines some things that are still far from fully worked out. The advocates of reform — including the Guardian — should be unenthusiastic about endorsing a messy compromise with unintended consequences, and with the prospect of years of stalemate in the courts and with the regulator itself.