No, not the contemporary kerfuffle about whose prerogative beats whose, but rather a rather silly argument made about press regulation by those who should know better. The original impetus behind the Leveson Inquiry was that journalists had been discovered to be scurrilous bastards willing to do anything for a story, including spying on peoples’ private communications and paying coppers for juicy stories. The Public were naturally outraged about the lengths that these people were willing to go to to satisfy The Public’s lust for info-style news titillations, and demanded action through the locus of People’s Champion Hugh Grant. As a result, the XIIXVth inquiry of this Parliament was born, which made for tremendous copy.

When Lord Leveson reported that it would probably be a good idea to have some kind of statutory solution to curb the problem of journalists being dirty scumbags, some commentators stacked a donkey on top of a horse and a pony on top of that. Atop these bestial constructs, they made the following argument:

“What the journalists were doing was already illegal. We don’t need new laws, we just need to properly enforce the ones we have.”

If you have made this argument, you have missed the point by so much that in debating terms you’re standing on the Mid Atlantic Ridge. Here’s why.

Laws, to have any force in a moral argument, rely on assuming that the Rule of Law is in place and fully functional. The Rule of Law, like all human social constructs, is fundamentally fragile and liable to break as soon as someone sufficiently powerful figures out how to subvert it in their interests. It relies on a balance of power between different institutions in order to avert the possibility of someone becoming sufficiently powerful for that subversion to take place.

During this whole fandango, we’ve seen the amusing spectacle of centuries-old institutions pretending like they can be the guardians of something as fundamentally effervescent and chaotic as free speech.  In reaffirming their institutional mandate within Britain’s inchoate constitutional arrangements, they hope to distract from the fact that they’ve proven capable of subverting the rule of law by suborning other institutions (in this case, the police) to the point where they could acquire immunity to large-scale prosecution by the occasional tossing up of sacrificial lambs and arranging lovely lunches for people in a position to investigate them. What this implies is that the current state of the law is irrelevant to this issue: this is about power, and how much power any institution should have.To say that laws weren’t being enforced properly is to actively swerve out of the way of the point: they couldn’t be enforced properly because the very rule of law itself no longer applied. The very fact that Leveson was prompted by revelations in another newspaper is in itself telling; institutions should be kept in balance by other institutions, not by hoping that everyone just goes the decent thing. The rule of law does not function by hoping that everyone obeys it.

Changing institutional frameworks to prevent the press doing this again may require changes in the law, because Britain likes to have meta-laws that govern the application of other laws rather than an actual constitution. Laws about who gets what power and laws about what is forbidden to everyone are fundamentally different, and attempting to conflate them is why this argument is just wrong.