Press freedom for whom?

Lord Shawcross

The recent controversy about the transfer of the ownership of the Observer from an American oil conglomerate to Lonrho illustrates the development in recent years of a new concept of freedom of the press. This used to be conceived as the right of any and every man to write, and if he could afford to, publish whatever he chose, subject only to the constraints imposed by the law of the land in such matters as libel, Contempt of Court, sedition, blasphemy and the like. It is a long time since Stanley Baldwin in a sweeping and unjustified generalisation referred to the newspapers as exercising the privilege of the harlot throughout the ages, power without responsibility. But it was against the proprietors that he was hitting, not their paid servants the editor and journalists. It is, indeed, only in recent years that editors, whilst still I hope paid, have themselves claimed, although not in those terms, what seems to amount to a similar privilege — namely that they are entitled to write whatever they please, without responsibility to anyone and perhaps least of all to the proprietor who pays them and sometimes subsidises their loss making publications. Nay more, say the journalists: the law imposes on us too onerous restraints. Contempt of Court should be almost abolished, the law of libel greatly relaxed in favour of the press. And so on. In some of these matters I have supported the journalists but I have never quite adhered to the view that there is some divine dispensation which ensures that journalists (provided of course they belong to the correct Union) are always right and the rest of the world always wrong.

Nor have the various Royal Commissions on the Press felt that journalists are so omniscient that they ought not to be subject to some control and responsibility. Thus the first Royal Commission referred to the danger that the journalist 'might present his personal opinion as the ascertained truth of a matter admittedly in dispute' and to 'the doctrine (which we cannot accept) that the truth for newspaper purposes is whatever an editor believes to be the truth'. That was in 1949: subsequent Royal Commissions have re-echoed that view. With the knowledge that political allegiance, sometimes of owners, sometimes editors, may be bought or rewarded by the conferment of honours, with the not infrequent examples of bias and selective reporting, with the scandals of cheque book journalism resulting in the publication of so called memoirs of criminals, pimps, prostitutes and perverts usually 'ghosted' by journalists, with the gross invasions of privacy and many other complaints it is not surprising that three succes sive Royal Commissions have had to call for further strengthening of a still stronger Press Council. Yet the Trade Union mainly concerned which is seeking, with some success, to establish a closed shop has repudiated the membership and authority of the Council.

The conduct of the Observer has certainly not attracted major criticism and those who found it dull and sanctimonious when they read it in the absence of the Sunday Times reverted to their more lively Sunday reading when the latter paper reappeared. It is the oldest Sunday newspaper and derives its tradition very largely from an editor who was brought in by Sir Alfred Harmsworth (later Lord Northcliffe) in 1905, he having bought it for £4000. This was the famous J.L. Garvin, who had with him a brilliant news editor, Robert Bell, and who built the circulation up from 4000 to 200,000, a good figure in those days. This he did by his own signed articles and giving the public not what they wanted but what he thought they ought to have. It was his proud assertion that the paper was without bias or party political attachment. He remained editor of the paper until 1942, a remarkably long time. Alas, there is no personality like J.L. Garvin in the newspaper world today.

It is the transfer of the paper which he created which has aroused again keen interest in the question who should, in the public interest have final control over newspapers? It is not unnatural that editors should be jealous to assert that they should and as a correspondent said in a recent letter to The Times, 'The British Press has for some weeks been wallowing in a premise which, so far unchallenged, seems to be taken as given: newspaper proprietors are by definition wicked beasts and must not be allowed to intimate to an editor by as much as a raised eyebrow their own views on public affairs.' It was largely because the Monopolies and Mergers Commission in their eventual closely reasoned and careful report mildly challenged that premise by stating that they 'saw nothing wrong in the making of comments or suggestions by the owner of a newspaper to the editor' that the unbridled wrath of Messrs Trelford and Harold Evans descended upon them.

It is perhaps worthwhile to examine the doctrine of exclusive editorial responsibility in the light of what actually happened in the Observer case, a matter not clarified by the bias of the reports and animadversions in the press.

It is of course obvious almost ex hypothesi that a transfer of ownership of almost any paper 'might' (not 'will') be contrary to the public interest. That being the statutory criterion, the Secretary of Trade referred the matter to the Monopolies Commission and Lonrho, guided by what happened in the case of The Times when the ownership of that paper was recently transferred, decided to put forward proposals to ensure that the tradition and editorial independence of the paper would be fully maintained. They invited me, as independent (but pace Mr David Astor I hasten to add paid) adviser to assist them in so doing.

Central to their proposals was the appointment of a group of independent directors who alone would have the power to appoint or dismiss the editor or to settle disputes between him and the shareholders: to me was allotted the task of putting forward suitable names. I should make clear that those who were public spirited enough to allow their names to go forward were in no sense 'chosen' by Lonrho. Of course it would have been better if they had been selected in consultation with the interested parties in the Observer, as has now been done. At that time, unhappily, the editor was in violent dispute with his proprietors and with Lonrho and there was no contact. The Lonrho submission had to be made without delay and the Monopolies Commis sion wanted accepted commitments, not vague suggestions. I had hoped that the existing non-executive directors, Lord Bul lock, Lord Goodman and Mr David Astor, would remain but they felt obliged to decline my invitation. Accordingly after taking advice in various quarters I selected a number of public figures as names for the Commission to consider. Lonrho took exception to two names but loyally accepted my decision to submit them and the Com mission approved them. Mr David Astor in a subsequent unworthily snide comment said they would be paid. It is hardly to be thought that such people who besides being in Mr Trelford's phrase 'free men and women' (as! hope he and I although both of us is paid still remain) are distinguished public figures representing a fair cross section of opinion would be susceptible to improper influence in the discharge of what they would regard as a public responsibility. It was the institutionalisation of these 'independent' directors which was the car dinal feature of the Monopolies Commis sion's Report, and the Secretary for Trade 'in response to the recommendations of the Commission' as he expressly said, and far from 'consigning the Report into oblivion' as Mr Trelford suggested, imposed a similar system to that recommended when he sanctioned the transfer. Indeed the only significant alteration was to reduce the number of independent directors from a minimum of six to a constant five, of whom two were in fact named in my original submission. For the rest the conditions are much in line, as Lonrho had originally suggested, with those which were agreed when the ownership of The Times was recently transferred and closely follow the views of the Commission.

The affair of the Observer now being agreed and settled, we must all join with the Secretary for Trade in wishing the newspaper well and I am myself confident that overcoming its recent vicissitudes it will go forward to a future of increasing success and influence. Certainly the new proprietors will not seek, as The Times in a singularly ill favoured leader suggested on 10 July 'to override the Observer's creators': rather their hope will be to restore the paper to the influence it possessed under Garvin but has long since lost.

The general problem of the rights of newspaper proprietors as against editors to control the general policy of the paper, as distinct from its day-to-day content remains of at least philosophical interest. Should he who pays the piper call the tune? Nobody really suggest that. Or should the editor and his journalists have exclusive control? This must be looked at against what the Secretary of State called 'the reflective judgment of the Monopolies Commission'. I believe with the Commission that neither view will protect the public interest in a free and responsible press.

Of course, in the past, and often still today, many newspapers have avoided the difficulty by both ownership and editorship of the paper being held in the same family. That was to some extent the case with the Observer when Garvin held a third of the equity: it became completely so when Mr David Astor, occupying in effect both chairs, was able more or less at his whim to change the policy of the paper from conservative to radical and anti-colonialist. The Manchester Guardian was long owned and edited with great distinction by the Scott family: the same was true of the now sadly defunct Daily News and Chronicle and the Cadbury family. Many of the provincial newspapers, whose standards generally compare very favourably with the nationals, have a similar history. The same has been true in the USA, Mrs Graham at the Washington Post and the Ochs-Sulzbergers at the New York Times — America's greatest papers. And so here today the Daily Telegraph has as its managing editor the chairman of the largely family company who have long published an excellent newspaper if one somewhat predictable in its political stance. Many other nationals avoid the dilemma by the way that the proprietors make very sure that they employ only editors who share their general view.

The problem arises in the main on the transfer of ownership from one proprietor to another. In such a case Parliament has, I think rightly, intended as far as may be to preserve the general tradition and political balance of the paper by the imposition of conditions which have given the journalists greater control. But this doctrine is comparatively recent. The 1949 Royal Commission on the press, set up by Mr Attlee had no doubt 'that those who conduct these hazardous enterprises must determine how the paper is to be conducted: and not only must they be the ultimate authority on broad questions of policy but they must have a considerable voice in the application of that policy . . . from day to day'. Those were the days of the Daily Herald, largely financed by the trade union movement. One can see the manifest absurdity of the situation which would have arisen, had the editor appointed as a 'sound' Labour man suddenly decided that the Party had gone too far left and switched the policy of the paper to support for the Liberals or the SDP. Would the Labour owners not have been entitled to control him?

The Royal Commission of 1961, of which I was chairman, was however also concerned to protect journalists. We thought it 'generally bad business for proprietors not to allow their editors a considerable degree of independence and latitude' — not, it will be observed, to allow them carte blanche. The last Royal Commission presided over by Professor (now Lord) McGregor in 1977 did not do that. Whilst agreeing that the editor should have the right to determine content, this was subject to the important qualification that it was to be 'within the bounds of the established policy of the paper' and whilst endorsing the editors' right to make changes McGregor said that this was 'within its agreed editorial policy'.

Writing for myself I do recognise the dangers (of which there have been and are many examples) that where a newspaper is owned by a commercial company, especially one which may have other activities besides newspaper publishing, conflicts of interest may arise and the editorial staff should be protected against improper pressure. What then is the right course in the public interest? The Freedom of the Press belongs to all of us. If! may paraphrase the late Monsieur Briand, it is far too serious a thing to be left to the journalists.

I believe the answer to lie in the appointment of people of standing as independent directors representing a fair cross-section of opinion. Mr David Astor in a letter to The Times accused me of 'inventing' this system which he described as a 'device', and later as a 'farce'. He should have known better. The system had an earlier origin; there were the Daily News Trust in 1911, the Scott Trust 1936 and the Observer Trust in 1945 but as the Royal Commission said in 1949 'of the three concerns sometimes described as Trusts only the Economist gives the editor formal safeguards: the editor of The Times, far from having his independence guaranteed, is on paper entirely in the hands of his Chief Proprietors, Colonel J.J. Astor and Mr John Walter. . . who are specifically empowered to control policy.'

It was, indeed, not me but, as Mr Astor should have known, his own most distinguished relative Gavin (now Lord) Astor who instituted the system of independent directors when the ownership of The Times was transferred to the Thomson Organisation. I had the honour (and I considered it a great one) of being appointed one of the first National Directors as they were then called. It was at that time, I think, around 1966, before the system had been tried in practice that the then Monopolies Commis sion suggested it might involve 'windowdressing'. It turned out to be nothing of the kind. It developed as a very useful and smoothly working arrangement. So much so that when Times Newspapers was recent ly transferred to new ownership it was repeated at the insistence of the Secretary of State and with the agreement of all concerned, Lord Astor himself becoming one of the many and most distinguished outside directors none of whom would be likely to participate in a farce, as Mr Astor should very well know.

Nonetheless, at the height of the recent controversy, The Times in its astonishing leading article, whilst having to give a grudging recognition to the existence of their numerous independent directors on its own Board and admitting that they had a valuable role, suggested that they were not 'an operating part of the Board'. The Times must speak for itself: it may have a cosy arrangement by which its directors gather only quarterly for a good lunch and short meeting. I suspect that Mr Murdoch is a stronger personality than the editor and knows very well where he is going. Nonetheless in law, all directors have the same responsibility for the operations and publications of their company and, as intended in the Observer, the independent directors have a full role to play. All are equal. But some are more equal than others! So the independent directors whilst avoiding none of their ordinary responsibilities have these additional ones of ultimate control over the editor by settling disputes or dismissal.

Yet these systems do not in themselves ensure the smooth and successful running of a newspaper. I agree with the view that however 'smoothly . . . arrangements of this kind may work . . . a compulsory divorce of managerial and editorial functions would. . . be unworkable'. Certainly I agree for that is what I wrote in the Report of the 1961 Commission. 'Moreover' we then said, no doubt having in mind the strictures of Lord Goddard who had said that the next time a certain newspaper committed a comtempt of court it would be the directors who would go to prison, 'the proprietor of a newspaper has responsibilities which normally oblige him to concern himself with editorial policy'. Lord McGregor's Commission said much the same: 'there was broad agreement that in reality editorial and managerial decisions were inseparable and must be made within a framework which gave the editor freedom within recognised constraints.' I have no doubt that it is in this sense and in the light of what the Secretary of State called the 'reflective judgment' of the Monopolies Commission that the Observer will operate, and that so operating in realisticallyhandlingtheeconomic problems of its production it will have a new lease of useful life.