Yesterday the Observer decided to deleted the online version of an article by Julie Burchill printed in its edition last Sunday, together with readers’ comments on it, most of which were critical. It also apologised for publishing the piece. But you can read it on Toby Young’s Telegraph blog, where it’s since been republished.

In my view this decision is scandalous. Julie Burchill’s piece was insulting and no doubt offensive to many people. But pure offence is not a good reason to suppress writing, whether the offended are members of a religious or ideological group, or any other segment of society. Burchill’s piece does not advocate violence or irretrievably harm anyone, for instance by invading his or her privacy. It’s worrying that pressure has made the Observer buckle in this way even though quite a few critics of Julie Burchill, in their comments under her article, expressed the hope that the Observer would not delete it (wanting others to be able to see how offensive it was). You’ll have to take my word for that; I can’t link you to any of those comments, as they’ve also been deleted. You don’t have to agree with Julie Burchill or with the many critics who posted strong reactions under her piece to see that expunging both was wrong.

By the way, I think Toby Young is wrong to see this incident as a warning about Lord Justice Leveson’s proposals:

if professionally offended, Left wing lobby groups can silence a journalist for being politically incorrect before the Leveson proposals have been implemented, just imagine how influential they’ll be after a new independent regulator has been set up, particularly if it has the power to take complaints from third parties and a remit to enforce “the spirit of equalities legislation”.

The point is that this happened without Leveson being implemented, and with no regulatory intervention whatever. In reality, proper implementation of Leveson would help ensure proper distinctions are made between harmful journalistic activity on the one hand (such as spying, stalking and revealing information that ought to be private) and opinion that merely causes offence on the other. It’d help ensure decisions on apologies are made according to rules laid down by journalists, rather than the rule of clamour, and that content is suppressed only in a very small minority of cases where this is truly necessary to protect individual rights.

Where Toby Young is right, though, is in saying that

What makes this decision particularly sinister is that it was taken less than 48 hours after a government minister attacked the Observer for publishing the article in question.

International development minister Lynne Featherstone had called for Julie Burchill to be “sacked”.

Legally what’s interesting about this is that Leveson LJ recommended (see page 315) that the law should place an explicit duty on ministers to uphold the freedom of the press. Both draft bills published so far, Hacked Off’s Media Freedom and Regulatory Standards Bill and the Labour opposition’s Press Freedom and Trust Bill, would impose such a duty. Clause 1 of Hacked Off’s bill says:

(1) Ministers of the Crown and public officials with responsibility for matters relating to the media must uphold the freedom of the press and its independence from parliament and the executive.

(2) Ministers of the Crown and such public officials must have regard to–

(a) the importance of the freedom and independence of the media;
(b) the right of the media to receive and impart information without interference by public authorities;
(c) the need to secure the independence of the media.

 (3) Interference with the activities of the media by Ministers of the Crown and public officials shall be unlawful unless it is for a legitimate purpose and is necessary in a democratic society, having full regard to the importance of media freedom in a democracy.

Provisions like this certainly wouldn’t amount to a British First Amendment, since they’d do nothing to prevent Parliament limiting the freedom of the press. And it’s not easy to imagine them being enforced in any effective way. Although clause 1(3) seems to me justiciable – a decision or act that breached clause 1(3) could be judicially reviewed – it offers nothing not already provided by the Human Rights Act 1998 in relation to freedom of expression, except that it could be invoked by a wider class of claimants (the Human Rights Act is only available if you yourself are at least a potential “victim” of any restriction on free speech, whereas this clause could be relied on by other interested persons).

In a case like this, it’s difficult to see how Lynne Featherstone’s remarks could lead to any actual remedy since nothing happened directly as a result of what she said. Even if her words breached clause 1(1) or (3), all anyone could hope to achieve would be a declaration from a court to that effect. And the courts are slow to give purely declaratory relief where it serves no real purpose.

For these reasons, you could argue that this is practically pointless legislation, of the kind criticised by former Parliamentary Counsel Daniel Greenberg – who drafted Hacked Off’s bill – in his excellent book Laying Down The Law. Its main purpose is to reassure the press and public

I’m not sure I agree that a “Lynne Featherstone clause” really is pointless, though. Being advised that doing something would breach a legal duty, and the risk of being accused of doing so, does tend to constrain and check ministerial behaviour – and I’ve no doubt a clause like this would have such an effect. People already appeal to the ministerial code wherever possible when criticising ministers’ conduct. It’d be just that bit more embarrassing if they could appeal to the law instead. And as I’ve said, clause 1(3) seems justiciable in the same way as a Convention right under the Human Rights Act, so ministers would face at least some risk of being found by a court to have interfered with the media. This is one reason why Hacked Off’s draft bill is better than Labour’s – which looks almost purely aspirational in this regard.

Thanks, then, to Lynne Featherstone for giving us another reason why Parliament should legislate to implement the Leveson recommendations.