Judges struggle to understand the culture of newspapers.

Britain's Lord Justice Brian Leveson has given newspapers everywhere a good prescription for an independent ethical authority. More importantly, he has given politicians an elegant model of legislation that need not intrude on the essential independence of the press.

He proposed an act of Parliament that would not itself set up an independent authority but would offer legal benefits to newspapers that voluntarily submitted to an authority they could set up as long as it met the statute's broad terms.

Then he went too far, giving Britain's regulator of broadcasting and telecommunications, Ofcom, power to decide whether such an authority measured up to the law. Newspapers don't want Ofcom.

This week Prime Minister David Cameron summoned editors to Downing St and invited them to find an "unimpeachable, impartial verifier". The job would suit a person of impeccable judicial credentials who understands why newspapers' independence of political authority really is important.


Leveson, oddly enough, does not understand, and nor do the fine legal minds behind similar proposals for press regulation in Australia and New Zealand this year. As judges, they work under an act of Parliament and have no difficulty maintaining their independence of public power.

In his report Leveson makes an attempt to understand the "line of argument put to the inquiry from time to time, that a statutory framework for press standards would be repugnant to a proper view of the freedom of the press".

The argument, as he understood it, was based on "a mistaken conflation of state censorship with the ordinary democratic processes of making and applying statute law", and an equally mistaken belief that parliaments lack a commitment to the importance of press freedom.

No freedoms, he points out, are absolute. All must be balanced with other freedoms and public interests and Parliament is the proper forum for that balance to be debated.

Maybe the culture of newspapers wasn't explained to him very well. It is not a fear of censorship or argument in Parliament that makes a statutory regulation repugnant, it is the detachment we need to keep from the community we live in and care about, so that we might be observers, not participants, in its politics and power.

Newspapers are not creatures of Parliament and do not want to be answerable to it for their ethics, organisation and standards. Leveson's proposal would let them write their charter as long as they consulted the public in some way.

If they shun that suggestion, Parliament should enact a charter of press standards and set up an adjudication system. As long as newspapers' submission to it was voluntary, no harm would be done.

Some papers might decide it enhanced their credibility, some might decide the opposite. It would depend on the public's attitude to those that comply. I wouldn't like to predict it. Freedom is not always people's first instinct.

Nor, surprisingly, was it the first principle of the jurists who have reviewed press regulation. To read the Leveson report, or the Australian equivalent, or the NZ Law Commission's preliminary paper, is to be struck by their need to find a practical use for press freedom.

All find a ready justification in democracy. They decide a free press is vital for informing voters at elections, though it is probably not.

Leveson writes, "Freedom of the press ... is celebrated not simply because of any intrinsic value of a free press, but because of the public benefits associated with a free flow of information and debate."

I find that view extraordinary. Freedom has intrinsic value, utilitarian benefits are not its primary justification. If a newspaper ceases to take an interest in politics and devotes itself to subjects its readers find more interesting, it deserves no less freedom than a journal of political debate.

The utilitarian view of freedom seems especially strange in a judicial mind where I would have thought liberty was the default setting and it was its restrictions that had to be justified.

Newspapers have always imagined themselves to be just another instrument of free speech exercising the same rights individuals enjoy. Not so, says the Lord Justice.

"Press organisations are not human beings with a personal need to be able to self-express ... an argument for free speech for the powerless will not make a case for free speech for a powerful organisation."

Inside newspapers we don't feel particularly powerful. We feel like ordinary people who think we know what interests other people. We do nothing more than ask questions and tell stories that are true as far as we can find out.

We sell them to people who wouldn't pay for them if they didn't find it necessary or enjoyable to know what is in the paper that day. We are a business that needs nothing from the law or the state except the freedom of speech.