Should the Crime and Courts Bill become law it looks likely that some publications, perhaps led by the more independent spirits, will decide not to be regulated under the Royal Charter recognition scheme. The Spectator has said it won’t sign. Ian Hislop has said that Private Eye is unlikely to.
Not to join the voluntary Charter club of officially respectable news publications would be a brave decision, since it risks a heavy penalty: exemplary damages if found liable for a Charter-related claim (defamation, privacy and some others); or an order to pay an unsuccessful litigant’s legal costs even if the publisher wins.
Will a non-signatory then refuse to pay? At this point it gets quite interesting. Human rights arguments may possibly take the sting out of sanctions for a Charter refusenik. But if it comes to it, when a publication’s assets are seized - not for breaking hacking laws, or for bribing public officials, or for doing anything else unlawful, but in the final analysis simply because it refused to join the official club - the State coercion that lurks in the shadows behind this scheme steps blinking into the light.
The notion that this is a voluntary arrangement, that there is some fundamental difference between State regulation and statutory underpinning, is then exposed for the fiction that it is. We are back in the territory of village Hampdens, Milton, John Wilkes and the rest. Some courageous little journal (or perhaps, if the clauses remain in their current form, some unfortunate smalltime blogmeister) will have the opportunity to become a Charter martyr.
The last time something comparable happened was not in the 17th century, but 40 years ago. A plan with remarkable similarities to the Charter, devised to tempt an unruly and irresponsible bunch of institutions into joining a State approved scheme, failed spectacularly when said bunch of irresponsibles refused to play the game that the government of the day had designed for them.
The scheme was the 1971 Industrial Relations Act. The irresponsibles were the trade unions. At the heart of the Act was a voluntary registration scheme. The purpose of registration was, according to Employment Secretary John (later Lord) Carr: “to make trade unions responsible organisations and with freedom upon that foundation of responsibility to conduct their activities in the ordinary way as responsible representative bodies.” (Hansard, 26 November 1970). Familiar stuff.
A registered union had to have its rule book approved by the Registrar. Unions had a choice whether or not to register. But if a union didn’t register it was at risk if its members went on strike. Unlike a registered union it had no immunity from liability for inducing a breach of contract. It was thus exposed to injunctions preventing strike action.
Behind all this were teeth, in the shape of the specially created National Industrial Relations Court, to which the Act gave jurisdiction over labour disputes.
The corporatist-minded Heath government, whose brainchild the 1971 Act was, never seriously considered that the unions would not register. But that is what happened. Many unions, determined to maintain their independence from the State, refused to accept State regulation of their activities and deregistered either from the start or later on during the lengthy saga of resistance to the Act. They took the loss of immunities on the chin.
Things got worse for the government. Strikes, NIRC injunctions, disobedience, refusal to pay fines for contempt of court, strikers queuing up for martyrdom, imprisoned strikers rescued by the Official Solicitor. The government’s pet industrial relations scheme finally lay in shreds.
This time around hold-outs will come as less of a surprise, and will not be backed by an organised mass labour movement. Seizure of assets to pay exemplary damages or costs orders, rather than imprisonment or fines for contempt, are the more likely end-point of the Charter scheme.
Once the scheme is in place the government will have no way of determining who is on the receiving end of sanctions. Politically that is a massive hostage to fortune. Like the 1971 Act and its imprisoned shop stewards, will the Charter eventually founder under the weight of public opinion when the might of the state is deployed not against a multinational publishing empire, but some small magazine or refusenik blog?