andersen-ottaway lecture

1995 Andersen Lecture
Lord McGregor of Durris
Chairman of Reuter Trustees

Rights, Royals And Regulation - The British Experience

Edward, Prince of Wales, Queen Victoria’s eldest son and heir to the Throne, was married in 1863. The Daily Telegraph’s reporter described how "the authorities showed the greatest consideration and courtesy to the representatives of the press." A dozen were allowed into the chapel and a carriage-full into the Lord Mayor’s procession. Despite what has been written about Queen Victoria’s withdrawal from public life after her Consort’s death in 1861, her advisors "were actively seeking favourable publicity" by giving newspapers full access to royal events at home and abroad.

Journalists were just as favourably treated then as were their successors at the Coronation of the present Queen 90 years later. The mutual dependence of royalty and the press was recognised early. At the time of the wedding of the Prince of Wales, sales of The Times increased to 108,000 copies compared with its average of around 60-65,000 during the 1860s. In 1864, the Prince and Princess visited Denmark accompanied by Lord Spencer who wrote to England that he had little news because "the newspapers with their Special Correspondents seem to know everything;" he went on to complain that court officials with their "adulation of reporters show great want of dignity."

Developments of this sort were reflected in the frequently quoted aphorisms of Walter Bagehot’s account of the role of the monarchy in his The English Constitution that appeared in hard covers in 1867. Bagehot was a political journalist of genius and editor of The Economist for seventeen years. His analysis laid down guidelines and practice for the management of a constitutional monarchy which quickly acquired an authority that shaped the outlook and behaviour of succeeding generations of monarchs and politicians.

Bagehot held that one advantage of "a family on the throne" is to

"Bring down the pride of sovereignty to the level of petty life. . .No feeling could seem more childish than the enthusiasm of the English at the marriage of the Prince of Wales. They treated as a great political event, what, looked at as a matter of pure business, was very small indeed. But no feeling could be more like human nature as it is and as it is likely to be. The women. . . care fifty times more for a marriage than a ministry. . .A princely marriage is the brilliant edition of a universal fact, and, as such it rivets mankind."

Bagehot held that monarchy strengthens the government with the power of religion because the Queen’s subjects believe that she rules by ‘God’s Grace’ and that they are under a mystic obligation to obey her. Moreover, she regarded herself as head of society’s morality, and confided to her Journal in 1844, "They say no Sovereign was ever more loved than I am and this because of our domestic home. The good example it presents."

Throughout her life she maintained that her popularity depended on "hard work and domestic purity."

Bagehot introduced psychological considerations to his analysis of the utility of British royalty. He believed that "its mystery is its life. We must not let in daylight upon magic." But in a polity creeping towards democratic habits, the monarchy could not ignore public opinion as expressed in newspapers which were becoming part of the normal furniture of life for all classes. The duty of serving the country as an exemplar of the values of religion and family life carried the inescapable embarrassments arising from the imperfect match of precept and actual behaviour which were not fully revealed to the reading public until the tabloid press grew to maturity in our own day.

The Prince of Wales, heir to Victoria’s throne, was singularly ill-equipped to serve as a model of rectitude. The Prince of Wales was an obese, vulgar philistine; a glutton of such formidable capacity that contemporaries called him ‘Tumtum’ behind his back. He never read a book or cultivated intellectual or artistic interests; save that he might be said to have turned adultery into a royal art-form.

As heir to the throne, he had magical opportunities for the seduction of young married women. His attractions as ‘King-in-Waiting’ easily overcame his more obvious short-comings as a lover because the power derived from the social status of the monarchy was an irresistible aphrodisiac. Deference to the throne also ensured the compliance of cuckolded husbands at a time when divorce carried greater stigma and shame than infidelity. Accordingly, the Prince helped to make adultery more generally fashionable. He took up with married beauties who served in succession as long term official mistresses; first with Mrs. Lillie Langtry, followed by an ardent socialist, Lady Warwick, and then, Mrs. Alice Keppel.

There were no tabloids in those days and the sexual activities of the Prince and his acquaintances were not recorded in newspapers although the memoirs, diaries and autobiographies of the time show that they were common gossip in the Royal circle and beyond. Occasionally the Prince’s way of life landed him in the law courts, for example, as a witness, in a sordid divorce and a squalid scandal involving cheating at baccarat by a fellow guest at a country house party. Both cases were widely publicised in the press and damaged the Prince’s reputation with the general public. One newspaper Reynold’s wrote editorially of the Prince "if unbridled sensuality and lust have led him to violate the laws of honour and hospitality. . .then. . .[he] should not only be expelled from decent society, but is utterly unfit and unworthy to rule over this country." Popular journals purveying republicanism and sometimes scurrility like Fun and Tomahawk lampooned the Prince.

"We believe there is nothing whatever between Mrs. Langtry and the Prince of Wales. . ." Tomahawk assured its readers. . ."Not even a sheet!"

I have prefaced what I shall say about the present treatment of the Royal Family by the press with this account of the fairly distant past, partly in order to give perspective and a sense of proportion in judging the present-day behaviour of some members of the Royal Family, and partly because the culture of secrecy in Britain is so pervasive that it may take fifty years or more for some of the relevant knowledge of the lives of today’s royal personages to pass into the public domain.

Edward VII’s successor, George V, was very different in many respects from his father. He was admirably equipped by temperament and personal preference to serve as an exemplar of religious observances and of the sanctities of indissoluble marriage as preached by the Church of England of which the monarch is head. His eldest surviving son became Edward VIII in 1936. In some ways he was a true successor to his grandfather "pursuing women, . . ." according to his official biographer, "with hectic abandon." until he took up seriously with a married, but later divorced, American, Mrs. Wallis Simpson. Ironically the King insisted on marriage and refused a morganatic union offered by the politicians who would have put up with an adulterous relationship of the sort that had suited his grandfather. The governments of Britain and the Dominions compelled Edward VIII to abdicate because they would not yield to his desire that Mrs. Simpson should become Queen. Reluctantly, his brother ascended the throne as George VI with the full support of all his kin.

The new king shared his father’s religious beliefs and family values. He and his Queen, Elizabeth, now the Queen Mother, projected a new and dutifully conscientious image which restored respect and, ultimately, affection for the royal family which played a significant and much publicised role in sustaining national unity during the Second World War. George VI died prematurely, being succeeded by his young daughter, the present Queen Elizabeth. Throughout her long reign her personal life has not provided a single word of copy for the tabloid newspapers that have been parasitic on her children.

The potentially divisive political and social consequences of the abdication were mitigated by an agreement between two press barons, the Lords Rothermere and Beaverbook, to keep the story off their pages until the whole business had been concluded. Other publishers followed suit so that most British citizens whether they read a ‘popular’ or a ‘quality’ paper remained ignorant of what was happening. The deplorable consequence of this first peace-time venture of the British Press into self-regulation was to deny the public any influence in shaping the future of their monarchy which was determined exclusively by the political and Church of England Establishments.

No schemes for regulating the press in peacetime were floated between the abdication and the end of the Second World War. A voluntary Press Council was set up in 1953 following a recommendation of a Royal Commission on the press set up by the Labour Government under pressure from the journalists’ trade unions.

*  *  *

During the 1980s, the unethical conduct of a small number of newspapers reinforced the belief of many Members of Parliament and other politically influential people that the protection of the public required the enactment of a law of privacy and a right of reply as well as a statutory Press Council wielding legal sanctions against delinquent papers.

These concerns alarmed far-sighted people within the industry resulting in a declaration in 1989 by the editors of all national newspapers that:

"We, having given due consideration to criticism of the Press by Parliament and public, accept the need to improve methods of self-regulation. Accordingly, we declare today our unanimous commitment to a common Code of Practice to safeguard the independence of the Press from threats of official control."

The Government appointed a Committee under a senior lawyer, David Calcutt, to examine:

". . .recent public concern about intrusions into the private lives of individuals by certain sections of the press. . ."

Calcutt’s Report was published in June 1990. Its recommendations included setting up a Press Complaints Commission in place of the Press Council.

The Government gave the new Commission only eighteen probationary months to demonstrate "that non-statutory self-regulation can be made to work effectively."

The press acted with great speed and co-operation contrary to the normal practice of one of Britain’s most competitive industries. Within three months by the beginning of 1991 the Press Complaints Commission had been set up and I was appointed its Chairman with responsibility for making it work and above all securing the industry against threats of direct intervention by the Government. A levy was raised on the newspaper and periodical industries to finance the Commission and enable the industry to support a full self-regulatory system. All publishers and editors made a public commitment to observe the Code of Practice and to maintain secure funding for the new disciplinary body. They saw the Complaints Commission as their last bulwark against direct governmental intervention in the British press.

The Commission has sixteen members; an independent chairman, eight independent lay members and seven senior editors. Their first aim is to judge complaints arising under the industry’s Code of Practice speedily and fairly through procedures which ensure that all final decisions on complaints are taken by Commissioners at their monthly meetings and not by their staff. Procedures are kept simple: all complaints are published in full and dealt with on paper without oral hearings. For example, the Code’s first Article demands from newspapers accuracy and "care not to publish inaccurate, misleading or distorted material." Whenever this rule has been breached significantly "it should be corrected promptly and with due prominence. An apology should be published whenever appropriate." Throughout the Commission’s existence, seven out of ten complaints have concerned such material. The Commission handles them in order to promote quick and amicable resolutions directly between complainants and editors and achieves this in more than three-quarters of the cases. Only if persuasion fails, does the Commission make and publish a formal adjudication.

The authority of the Commission rests upon acceptance by the public and editors that the Code of Practice is being enforced and observed. "Any publication. . .criticised by the Commission (under the Code) is duty bound to print the (resulting) adjudication in full and with due prominence." Since the Commission was established, no editor has refused or failed to print a critical adjudication. Making decisions is simplified and lengthy exegeses upon the text avoided by the rubric that the Code "applies in the spirit as well as in the letter." Even though allegations of intrusion on privacy constitute fewer than 15 percent of all complaints, the task of protecting the private lives of individuals, in cases where the public interest is not involved, is at the heart of public and political concern with the Commission’s performance. One of its members was appointed Special Commissioner to investigate and make special reports on privacy cases.

The Commission is vigilant over complaints of invasion of privacy and brings instances of gross or calculated breaches of privacy to the attention of publishers in order that they may consider disciplinary action against the editor responsible. This sanction is available only because many publishers, like News International, have incorporated observance of the Code in the contracts of employment of editors and journalists. Intrusions into privacy can be justified only if they are in the public interest defined as detecting or exposing crime, protecting public health and safety and protecting the public from being misled. Unsavoury methods of obtaining pictures or information such as long-lens photography without consent on private property or the use of clandestine listening devices are prohibited.

A committee of editors chaired by Sir David English, Chairman and Editor-in-Chief of Associated Newspapers, and representing all parts of the industry, meets regularly to review the Code in the light of public and parliamentary comment as well as advice from the Commission about inconsistencies or ambiguities discovered in applying and interpreting it.

The Commission has to ratify changes to the Code. It is not set in stone. Unlike a parliamentary statute the code can be amended quickly and has evolved considerably since it was first framed.

*  *  *

My opinion of the security of press freedom in the hands of politicians was formed when, as chairman of the last Royal Commission on the Press, I interviewed more than 100 members of Parliament on the subject. The conversations varied little from member to member whatever their Party. Each told me that they yielded to no one in their high devotion to an independent press as a fundamental institution of democratic politics. It took most of them a long time and too many words to reach their final "but" which may best be summarised "I am bound to say that, in my experience, newspapers are biased and regularly distort what I have said in my speeches as well as the policies of my party." They mostly added the opinion that "Newspapers do not hesitate to print sensational stories in the interests of circulation and put few limits on irresponsibility." The duty of the Royal Commission, they advised, was to recommend curbs on the irresponsibility of the press. To my murmured question, ‘How can a press free to behave responsibly, be prevented from behaving irresponsibly in a free society with no censorship?’ I received no persuasive answer.

I emerged from these interviews convinced that the phrase ‘responsible press’ is one of the most insincere incantations in English political speech and with a deep suspicion of the honesty of any politician who affects to uphold freedom of expression. Accordingly, it came as no surprise when, two years ago, the British Government published a serious proposal to introduce a law of privacy with legal sanctions to protect citizens from invasions of their "seclusion, anonymity and secrecy" but with no protection for free speech. This British Government paper relies heavily on the article on ‘The Right to Privacy’ by Warren and Brandeis in the Harvard Law Review of 1890 which is referred to approvingly "as the most influential legal article ever written."

If the press in a democracy discharges its chief political function of scrutinising the performance of concentrations of power, of which the Government is the most important, relations between politicians and the press will always be uneasy, suspicious and fretful. This was admirably stated in the pithy adage of an English editor, Sidney Jacobson, who said "relations between Government and the press have deteriorated, are deteriorating and should on no account be allowed to improve." I know of no better definition of the proper relation between press and government.

I referred earlier to the British Government’s decision to allow the new Press Complaints Commission a probationary period of no more than eighteen months. They again chose as their assessor Sir David Calcutt, a lawyer whose dislike of the press is matched only by his distrust of self-regulation. His earlier Report of 1990 which had recommended that a Commission should replace the old Press Council, was produced by a committee. Sir David’s examination was undertaken on his own without the restraints upon his personal opinions that might have resulted from the presence of colleagues. His examination was perfunctory; he refused to discuss it with members of the Commission; he declined to examine the office procedures; he did not trouble to conceal his dislike for the whole enterprise or his skepticism about what had been accomplished. Material that he requested be sent to him in confidence was leaked to the press through his Office. His ‘thumbs down’ appeared in his Review of Press Self Regulation and was so hostile and overstated that it aroused neither political enthusiasm nor support. Calcutt explicitly recommended that the Commission be replaced by a statutory tribunal with powers to restrain publication of information and impose fines on newspapers.

No doubt, some Members of the Government and of Parliament would have welcomed such intervention in the press but were not prepared to risk supporting, openly, what a respected legal commentator described as

"one of the most ill-conceived ideas to come from a public policy advisor in many years. The potential for censorship. . .[is] incompatible with any freedom of expression in a democratic society."

And so the Press Complaints Commission survives with Lord Wakeham, a former leader of the House of Lords and a senior Minister in the Conservative Government’s Cabinet, as my successor.

*  *  *

Seven years ago, the Andersen Lecture was delivered by Andrew Neil, then the Editor of The Sunday Times of London, under the title Britain’s Free Press - Does It Have One? Like his predecessor on that paper, Harry Evans, Neil gave the answer "half free" and said that he would like:

"to see a Bill of Rights in the United Kingdom. Failing that the European Human Rights Convention should be written into British law."

As some people would regard a Bill of Rights as tantamount to giving Britain a written constitution, I doubt if it would be politically practicable in the foreseeable future. I am happy to report that there have been recent, encouraging moves towards assimilating the European Convention on Human Rights into British law.

The Press Complaints Commission was, and is, vulnerable because it is not enveloped within any framework of law guaranteeing freedom of expression or the rights of the media. This gap would be filled by the incorporation of the Convention into British domestic law. Article 10 gives a right of freedom of expression subject to certain restrictions which the European Court of Human Rights in Strasbourg has interpreted narrowly. In a landmark decision in 1976 the Court stated the basic philosophy it has always applied in Article 10 cases.

"The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a ‘democratic society’. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress. . .it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population. . ."

Article 8 confers a right to privacy. These two Articles provide the basis for a balance between press rights and responsibilities. Several Bills to incorporate the Convention have been promoted in parliament since Britain signed it. One was debated a few weeks ago in the House of Lords. Despite British governments having bound themselves by treaty to observe the Convention, they have resolutely opposed proposals for incorporation. This year, for the first time, it has secured the approval of the Labour Party. Significantly, too, there was powerful support from many of the senior judiciary, including all the serving Law Lords, the members of the British Final Court of Appeal. As there is also strong support in the House of Commons, the question is no longer whether parliament will incorporate the Convention but how soon.

It would be interesting to speculate about the effects upon the monarchy had the private life of the Prince of Wales who became Edward VII been subject to the same obsessive coverage by the media of his day as that experienced by his great, great grandson, the present King in waiting, after his heavily publicised marriage to Diana in 1981. I stress that all newspapers be they quality or popular titles have used the same material and printed similar stories about the royals. The coverage has been universal.

One certain effect of such media exposure has been to destroy the institution as Bagehot described it. "Its mystery is its life," he wrote. "We must not let in daylight upon magic". The media have been a solvent that has eaten away the bonds of magic that used to hold the institution of monarchy together and sustained the deference and admiration in which citizens held it. Relentless publicity has let in the daylight upon some young members of the royal family, who seem unacquainted with the prudent and discreet conduct urged in the maxim of Mrs. Patrick Campbell, an Edwardian experienced in the ways of the high social world. "It doesn’t matter what you do in the bedroom as long as you don’t do it in the streets and frighten the horses." The trouble is that the irresistible scrutiny of the media has now shifted the bedrooms of some young royals into the streets; so that we cannot judge yet if, or when, the horses may stampede. I shall give you no more than a few random examples of media reporting that stripped magic from royalty in 1992, a year when the Prime Minister told Parliament that Charles and Diana had decided to separate but not to divorce and that the Queen, herself, described in an unusually frank public speech as annus horribilis .

Also in 1992 the forthcoming end of the marriage of Charles’s younger brother, Andrew, Duke of York, was announced. The tabloids printed many long-lens colour photographs of his Duchess topless in a garden in the South of France being caressed by her Texan friend, John Bryan, described as her financial adviser. Then, media interest shifted to The Princess of Wales, and the serialisation by Andrew Neil in The Sunday Times of Diana Her True Story. Its author described the book as "unusual in that it is independent of control by Buckingham Palace. . .yet many of the Princess’s family, friends and councillors agreed to be interviewed. . .about her private and public life. . .it meant laying aside the ingrained habits of discretion and loyalty which proximity to royalty engenders."

Morton’s book gave a most unflattering and damaging portrayal of the Prince of Wales detailing descriptions of the Princess’s desperate unhappiness in the marriage, including her suicide attempts. From then on their relationship has been foundering on the front pages of every British newspaper. As the date of serialisation approached, other papers in competition ran spoilers in the course of which the industry’s ethical code was grossly breached. The Commission and I were put under powerful pressure by the public, Churches and members of parliament demanding that the Commission denounce these intrusions into the privacies of the spouses in a collapsing marriage. The royal press office was pleading, informally, for action by the Commission. I had asked a small group from the Commission, which included two special editorial advisors, to examine a press statement that I had drafted for publication on the day following the first serialisation. We agreed the following:

"The most intrusive and speculative treatment by sections of the press (and, indeed, by broadcasters) of the marriage of the Prince and Princess of Wales is an odious exhibition of journalists dabbling their fingers in the stuff of other people’s souls in a manner which adds nothing to legitimate public interest in the situation of the heir to the throne.

Such prurient reporting must add to the burdens borne by children whose lives are affected, and greatly increase the difficulties for members of the Royal Family in carrying out their obligations to the public.

The state of the marriage has been put into the public domain in part at least by the outward behaviour of the spouses and it is therefore a legitimate subject within the public interest for report and comment by the press. And the industry’s own Code of Practice affirms the manner in which information is reported and the tone in which it is discussed often matter as much as the substance of the stories themselves. Frequently, the manner and tone of the reporting of the private lives of the Prince and Princess of Wales has beyond doubt been in breach of the Code of Practice.

The Commission have been distressed by this reversion by some newspapers to the worst excesses of the 1980s and are bound to state publicly their view that the continuance of this type of journalism will threaten the future of self-regulation just at the time that it appears to be succeeding."

As I had picked up rumours that Princess Diana had been in touch with certain editors, I telephoned the Queen’s private secretary, in the presence of my colleagues, and read the statement to him. I mentioned these rumours about the Princess having spoken directly to editors and asked for an assurance that they were untrue before the Commission issued the statement. Sir Robert Fellowes gave me that assurance which I accepted without demur, knowing that he was also the Princess’s brother-in-law.

Shortly after the statement had been published, I was telephoned by Andrew Knight, at that time Executive Chairman of Rupert Murdoch’s News International, publisher of The Sunday Times. He told me that, to his certain knowledge, the Princess was in direct communication with some editors and suggested that I should look at all the tabloids the following morning because Diana had arranged with some editors for photographs of herself and her children to be taken as she left the house of one of her friends who had been a principal contributor to Morton’s book. Andrew Knight was right. The tabloids did indeed carry photographs of Diana and her children which, so editors told me, had been taken with the assistance of her security guards.

The Queen’s private secretary was a victim of events and conduct that demonstrated his assurance to me to have been unfounded. His personal integrity as a high official occupying a central position in Britain’s constitutional arrangements had been impugned. He and I had both been trapped in a web of manipulation. I was shocked and raised immediately this most damaging issue for the Commission with a senior member of the government who spoke to Sir Robert. He apologised to me though I had never doubted his good faith. His honour required him to offer his resignation to the Queen. It was not accepted.

This episode was also a disaster for the Commission. The attempt to enforce the industry’s Code of Practice in relation to the Royals collapsed in the ensuing ridicule. Members of Parliament used this incident as an argument for statutory legal sanctions against the press.

I know that most people in and outside the media of the United States will regard the British model of a Complaints Commission as completely unacceptable. My defence has to be that it is the only presently available means of preventing direct government intervention in the press.

Never forget that we have no Bill of Rights and no First Amendment. If we had, there would never have been a case or justification for a Complaints Commission. Do not forget either that in Britain we have preferred self- to legal regulation for the last 150 years, relying upon it for the successful regulation of many activities that are the subject of law in other countries.

Last year, Prince Charles confirmed on BBC Television his already widely reported adultery. Very recently, Princess Diana followed suit on the same channel with her account of the collapse of the marriage, the separation and her own adultery. This abandonment of the traditional royal reticence about personal relationships is likely to result in a hardening of his and her parties among the media. In my opinion, we are at the beginning of a no holds barred conflict from which only the media will profit. Nobody can measure the extent to which British commitment to the monarchy will be undermined by these destructive exhibitions or by the effects of the divorce which is likely to follow.

Finally, in a free society with independent media, the only protection for the privacy of public persons is the prudence and discretion with which they conduct their private lives.