‘Public Interest’. It sounds like an ill-advised side project where George Osborne and Mark Carney attempt to rap about fiscal policy. Thankfully, it isn’t. So what does it actually mean? Nothing. It’s a misleading phrase and we need to be wary when it is used. Here’s why.
It’s one of those phrases I’d hear constantly in the news and never really thought about what it meant. I’d seen it so often that I assumed it had a definition that had been agreed upon. I assumed that when something was said to be in the public interest, it was something that the public wanted and that would be of benefit to society.
Then in September 2014, the Department for Energy and Climate Change (DECC) issued a response to a consultation that they had held over changes to existing trespass laws.
(Before we go any further, be warned: This piece is around 1500 words, two or three times the length of my usual blogs. However, I believe it’s important and I hope you stick with me.)
The purpose of the consultation was to gauge the public’s views on proposed changes to trespass laws. The changes would allow companies to drill under people’s homes without permission. This was to make it easier for companies to extract energy sources such as shale gas, oil, and geothermal heat. Shale gas is a source of more controversy than the artistic merit of Kanye West’s ‘Bound II’. It is extracted through a process known as hydraulic fracturing, though you’ve probably heard it being referred to as ‘fracking’. There are a number of concerns around fracking, not least because it has been known to contaminate water supplies and have an adverse effect on house prices. A number of countries, cities and states around the world have banned the practice.
The consultation had an overwhelmingly negative response. There were 40,647 respondents, and 99% of those said that they opposed any changes to the law. The DECC’s reply?
Responses simply stating an objection to hydraulic fracturing, use of fossil fuels or changes to trespass laws did not provide sufficient commentary to enable us to change or refine the proposals in the consultation.
(UK Government, Underground Drilling Access: Government Response to the Consultation on Proposal for Underground Access for the Extraction of Gas, Oil or Geothermal Energy, page 8)
In other words: they weren’t interested if you didn’t want drilling to take place under your home. They were just interested in finding out how you would like them to write the proposal to allow drilling to take place under your home. Oh, I see. If I’d have known that, I’d have suggested that the proposal should contain as few semicolons as possible. While I’ve used them before, I had no idea what I was doing. No one knows how to use a semicolon, and anyone who says different is lying.
Getting back to the consultation. In summary, the DECC’s response to the public consultation was ‘Nah. You’ve not changed our minds.’
Taking all factors into consideration, we consider that there is a strong case that these proposals will be in the public interest.
Reading this made me feel confused and queasy. How can the DECC say that the proposals are in the public interest after a huge majority of people responded saying that they were decidedly not interested in allowing drilling under their homes? Well, it’s because ‘public interest’ doesn’t really mean anything, not from a legal standpoint.
I’m not the only one who’s been trying to establish the meaning of ‘public interest’. It was a key factor in the Leveson Inquiry. When The News of The World had been found to be hacking into the voicemail of a murdered schoolgirl, among others, an ex-NOTW journalist defended the practice by saying that the stories were ‘in the public interest’. But what is ‘public interest’? It’s clear that journalists don’t know. Here’s an excerpt from what The Guardian’s Nick Davies said at the Inquiry:
If I’m working on a particular story in particular circumstances, do I or do I not have the public interest on my side? The answer very often is: I don’t have the faintest idea because we don’t know where the boundary lines are.
Nobody else has a clear idea, either. The same question has been asked in studies published by the media regulator OFCOM, the Carnegie Trust, and, somewhat bizarrely, The Institute of Chartered Accountants of England and Wales. None of them propose a strict definition, but all agree that having a framework in place would help clear up the ambiguity.
I’ve tried to establish the boundary lines of ‘public interest’ myself, and it’s hard work:
- Should it describe something that the public is interested in?
- Should it describe something that is in the public’s best interests?
- What if the public are largely opposed to an idea, but it is for the good of society in the long run? For example: homosexuality was decriminalised in the UK in 1967, but an opinion poll conducted around the time showed that 67% of the public supported the criminalisation of homosexuality.
Last year’s Sainsburys ‘kiss in’ would have definitely been frowned upon by the general public of 1967. (Image credit: Evening Standard)
So why am I getting so hung up on this idea of ‘public interest’? Firstly, because it’s everywhere. Perhaps it’s a case of the Baader-Meinhof phenomenon, but since reading the DECC’s response I’ve been seeing ‘public interest’ all over the place. Secondly, despite it having no fixed definition, it’s a key aspect in a lot of decision making processes. It’s an abstract concept and everyone has a different understanding.
When Google receive a request to remove an article from their listings, they say they have to take ‘public interest’ into account:
When you make such a request, we will balance the privacy rights of the individual with the public’s interest to know and the right to distribute information.
When News Corporation wanted to fully take over BSkyB, George Osborne said that ‘public interest’ was of the utmost importance:
We would never allow the public interest to subjugate to the commercial interest or the vested interest.
Since 2011, the letters that the royal family write to ministers and government departments have been exempt from the Freedom of Information Act under Section 37. Before the 2010 election, the Conservative Party made democratic accountability and transparency a key focus of their campaign. This, apparently, didn’t extend to the royal family.
Freedom of Information Act, Section 37, introduction
However, it also states that it isn’t an ‘absolute exception’:
In considering whether or not to use this exemption Departments should consider whether or not the public interest in withholding the information outweighs the public interest in disclosing it.
Freedom of Information Act, Section 37, chapter 3.1.
To be clear: when responding to Freedom of Information requests relating to the royal family, government departments should consider the ‘public interest’ (an ambiguous concept) in keeping the information secret, and weigh that against the ‘public interest’ (again, an ambiguous concept) in revealing the information. But rejoice! Somehow, through all that ambiguity they were able to establish that the majority of decisions should fall in the royal family’s favour. Funny, that.
[I]t is likely to be in exceptional circumstances only that the public interest will come down in favour of disclosure of this information.
Freedom of Information Act, Section 37, chapter 3.8.
While the royal family are said to not have much constitutional power, they write a lot of letters behind the scenes. Prince Charles has been accused of lobbying the health secretary to support homeopathic remedies (this Mitchell and Webb sketch sums them up) being provided by the NHS. Prince Andrew has allegedly written to US Government officials in support of his friend Jeffrey Epstein—who is now a convicted sex offender. Thanks to section 37 we have no idea how the royal family are using their influence on our government, and this is said to be in the ‘public interest’.
In his opening address to the Leveson Inquiry, Robert Jay QC put it perfectly:
Put simply, the public interest is very often deployed as some trump card.
(Carnegie report, p.13)
What is ‘public interest’? It’s a nice sounding phrase with very little meaning, often used to suit the ends of whoever is claiming to have the public’s well-being at heart. It’s a comforting concept that invites little further thought. It’s a dangerous piece of rhetoric. Beware.