A rude, sometimes nasty, but essential watchdog: Government must be scrutinised and the press left free to perform its proper role in a democracy, says Andreas Whittam Smith

BRITAIN has no laws that apply only to the press. Acts of Parliament that have a special relevance to newspapers - official secrets, defamation, contempt, copyright - apply to every person and every corporate body. If Clive Soley's Freedom and Responsibility of the Press Bill became law, it would be the first example of specific legislation. Likewise, there are no press courts. Again, turning the Press Complaints Commission into a statutory tribunal, as it is believed Sir David Calcutt proposes, would be a fundamental change.

Nowhere is press freedom defined. This is all of a piece with Britain's constitutional arrangements. We have nothing written down, we have no entrenched rights, we are subjects rather than citizens. Parliament's power is unlimited. None the less, the British non-system has, until recently, allowed the press sufficient freedom to play its proper role in a democracy. 'Publish and be damned' means that editors know, or should know, the law; they judge, without prior restraint, whether their actions are lawful and take the consequences if they are wrong.

The Spycatcher case in the late Eighties marked the moment when a self-confident government, by now long in office, began to restrict the space in which the press works. It asserted the principle of the gagging writ. An injunction preventing publication that had been precisely drafted to apply to a named newspaper could be extended to every other newspaper in the land - even though the rest of the press knew nothing of the original case and was not represented at any hearing in front of the judge who made the order. Now the Government is clearly tempted to go further and to narrow again the ambit of press freedom. We shall soon see whether a Cabinet composed of ministers who themselves break the law (see the pit closures) or pervert the course of justice (see the certificates claiming public interest immunity in the Matrix Churchill case) feels any qualms about trying to impose its will on one of the institutions that most effectively checks the power of central government.

The state, when opposed, invariably acts aggressively and ruthlessly. That is how it has behaved for hundreds of years - as the man who didn't serve Norman Lamont, the Chancellor of the Exchequer, with champagne, and may also be an illegal immigrant, will shortly find out. And Members of Parliament and civil servants will take any chance that comes their way to insulate themselves from public criticism. Yet the experience of the editors of national newspapers and the statistics published by the Press Complaints Commission both point to the same conclusion - public disquiet with the press is at a low level. Between January 1991 and July 1992 the commission received just 1,041 complaints against national newspapers, and the volume has remained stable as the commission has publicised its work more widely. Even more striking, only 9 per cent of complaints concerned invasion of privacy.

Yet Sir David has somehow persuaded himself to give the Government what it must always have wanted. It is not as if the state would suddenly become gentle and fair-minded when presented with the extra powers. As well as seeking to help ordinary people obtain redress for newspapers' errors, omissions, misjudgements and lapses of standards, the state would also use the new machinery vigorously to impose the Government's view of 'facts' on newspapers. Nor would the judge, who would be chairman of Sir David's tribunal, and his two lay assessors, provide more than the flimsiest barrier to this extension of state power. Most judges instinctively accept what the government of the day says - just as they used to believe that what policemen stated in court was invariably the truth. And most lay assessors would instinctively believe in the wisdom of judges.

What the Government should bring forward is legislation to make electronic eavesdropping illegal, whoever does it, not just newspapers; and there should be parallel legislation banning peeping-Tom photographs and films. This would be another law, or laws, that editors would have to consider before publication; but it would not imply prior restraint or diminish the essential freedoms of the press.

Anything more than this, along the lines of Mr Soley's Bill or Sir David's statutory tribunal, would be exceedingly dangerous for the liberties of the subject. One by one other centres of power have crumbled - mainly, it must be said, as a result of their own ineptitude, misjudgement and sometimes because of overreaching. Local authorities have been emasculated. The trade union movement still pays the price for its arrogance in the Seventies.

This is why the press - rude, rough, and sometimes nasty as it is - must fight on. The same political party is likely to have been in power for 17 years when we reach the next general election. The press cannot get ministers to resign any longer, but it shows why they should. It relays and magnifies movements in public opinion. It patrols every area of government activity. It is rich enough to do its own investigations. It is as well informed as ministers, and as capable of penetrating analysis as civil servants. It is still powerful - and its freedom is more than ever necessary.