THE MAJOR AND THE FORTRESS
recent events strengthen the case for regulation
THE media continues its reckless policy of making itself hated. It is a matter of opinion which has done it more harm among ordinary, decent people: the hounding of Major Ferguson by the tab- loids, or the activities of television 'investi- gators' in coming to the aid of the IRA in Gibraltar. The Ferguson Affair is a classic case both of a Fleet Street stake-out and of unwarranted privacy invasion. No doubt the Major, who sounds like a character from an early Anthony Powell novel, is a foolish fellow and by no means blameless. His daughter having married into royalty, he surely owed it to his grand in-laws, who have quite enough embarrassments of their own, not to go anywhere near massage- parlours, or at any rate not to get caught at it.
But middle-aged men often enjoy doing risky things. I remember being amazed when Tony Lambton, whom I'd always regarded as a model of smooth sophistica- tion, allowed himself to be caught in a News of the World trap while a minister. But so it is: the danger is part of the kicks. Of course the two cases are not parallel. Lambton took refuge in a prompt and honourable resignation, and shoved off to Italy, like Byron. The poor Major cannot resign from his family and must go on playing polo in public. Besides, since Lambton was involved with Defence, the NoW had a case for hounding him: not an open-and-shut one by any means, but nonetheless a case. The tabloids have no case whatever for their persecution of the Major. He holds no office of profit under the crown. He is not a repository of defence secrets. No public interest whatev- er is served by exposing his personal habits to the gloating gaze of millions of readers. Nor should tabloid editors suppose that, just because readers gloat, they do not also hate themselves for gloating and hate the tabloids for providing what moral theolo- gians call 'the occasion of sin'. The Fergu- son case will prove another nail in the coffin of press licence.
But so, equally, will the Gibraltar 'trial by television' in the present system of small-screen regulation. It is perfectly clear that it is breaking down. Neither Lord Thomson nor Marmaduke Hussey knows how to handle this kind of outrage. If a television programme in search of notorie- ty, or for more sinister reasons, decides to breach all the unwritten rules of responsi- bility, what can the controlling agencies do? If they crack down hard, they are instantly accused by television's internal Rentamob of suppressing freedom and ending civilisation as they know it. If they just flap their hands, as on this occasion, the authorities are understandably cross. I have not much sympathy for Thomson, a second-rate Labour politician who has achieved an amazing career on a minimum of talent, and should have been put out to grass by Mrs Thatcher years ago. But I feel sorry for Hussey, who had been doing well at the BBC and has now made a major error of judgment. The truth is, neither man should have been asked to arbitrate in such a case. That ought to be the job of the law.
Both ITV and the BBC have now, on the face of it, prejudiced a court hearing in a crown colony. Commentators seem to be in some confusion about the true nature of their offence. Making a film about a forthcoming court case may influence the court itself (the jury and in this case the coroner). So the argument that the Gib- raltarians cannot see British or Ulster television is no answer to the charge. A far more serious matter is when witnesses are interfered with, and this may occur in many ways. A witness to an event which takes place without warning and occurs in a few seconds may well be in some doubt as to what he or she saw. It is very important indeed that such a witness should come to the court, and give evidence, in as it were a pristine state of recollection. The more the witness talks about what occurred, the more he or she is badgered about the event, the less likely it becomes that the fragile memory of things seen will be accurate. Imagination is a powerful rewri- ter of history. Ideally a witness in such a case should be isolated until the time comes to give evidence. That of course is not possible. But at least journalists ought to be prevented, under pain of severe penalties, from getting at them. That is one reason why the law of contempt exists.
It is neither here nor there whethei the television teams who descended on Gibral- tar to interview witnesses were really in search of the truth, or were trying to make a political point against the British Govern- ment. Personally I have doubts about their motives. Most television 'investigations' start with a conclusion, usually of a kind which fits in with the current left-wing agenda, and then proceed to find the evidence to substantiate it. Obviously if a television team went to Gibraltar and found that everyone agreed the SAS had behaved impeccably, they would have had no story, and would have been obliged to return home with nothing sensational to show except their expense-sheets. But even if we assume their motives and behaviour were impeccable — a big assumption these days, since television standards are now on a level with the tabloids, if not lower — the filming of witnesses saying what they are planning to tell a court is still a devastating interference with the course of justice. How can a witness, who has already committed his or herself on television, possibly after a good deal of conversation with television resear- chers, directors and interviewers, none of it carried out under Judge's Rules or rules of evidence, possibly be trusted to give untainted evidence in the actual court? It seems to me that the television people have already wrecked any chance of the Gibral- tar court reaching a verdict which is not only fair, but seen to be fair. The coroner will have to take account of this.
For those in positions of authority in a highly emotional medium like television thus to damage the free flow of justice is a serious moral offence. It is all the more serious in that such people are part of a monopoly system, receiving their power under publicly awarded privilege. This strengthens the case for turning the moral offence into a criminal offence. The public is increasingly inclined to criminalise the moral offences of the press, such as its flagrant and unscrupulous invasion of privacy. The treatment of Major Ferguson will certainly strengthen this inclination. The Gibraltar 'trial by television' will likewise encourage those who have long believed that television is run by irres- ponsible people who must be placed more firmly under the law. I suspect we are heading for a far-reaching Bill dealing with the sins of the media as a whole, which will embrace not only right of reply and privicy but the reckless conduct of current affairs television, now completely out of control. A Media Responsibility Bill could be an important feature of the 1988-89 session of Parliament — raising howls of anguish from the Fourth Estate but proving mighti- ly popular with everyone else.
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