Leveson and the power of the press
By failing to follow the recommendations of the Leveson inquiry and launching tabloid attacks on the judiciary, the press is undermining the rule of law, writes Steven Heffer
The Leveson report was published in November 2012 after (for the seventh time in less than 70 years) a report had been commissioned by the government which dealt with serious concerns about the press. It was sparked by public revulsion about the hacking of the mobile phone of a murdered teenager. The inquiry covered the culture, practices, and ethics of the press. In nearly nine months of oral hearings, 337 witnesses gave evidence in person and the statements of nearly 300 others were read.
The task set by the then prime minister, David Cameron, was that Lord Justice Leveson should make recommendations based firmly on the evidence about the way in which things should be done differently in the future. Leveson LJ found that voluntary newspaper self-regulation had failed once again and he recommended that the government must ensure that any new regulator set up by the press should be accredited as ‘independent and effective’ by a recognition panel ‘which would be wholly separate from both parliament and the industry’ (the Press Recognition Panel).
The prime minister personally promised victims of press abuse that he would implement the Leveson recommendations.
The recommendations dealt with how to provide incentives for newspapers to join an accredited self-regulator. Section 40 of the Crimes and Courts Act was an integral part of a package set out in a cross-party agreement reached in March 2013. It was a formal agreement, including the royal charter, which was signed by the prime minister and the leaders of the Labour and Liberal Democrat parties. It offered protection on costs for victims of press intrusion. The costs penalties would not apply to publishers who were part of a royal charter-backed press regulator.
Section 40 was to be commenced in a way often provided in bills ‘on a day appointed by the secretary of state’. It was to work in this way: where a claim is brought against a publisher which is not a member of an approved regulator, the court must make a costs order against the publisher even where it has successfully defended the claim – unless the court is satisfied that the issues could not have been resolved by the regulator, or it finds that it is just and equitable in all the circumstances to make a different award of costs.
The carrot to the legislative stick is that publishers who are members of an approved regulator will not be liable for a claimant’s costs unless the claim could not have been resolved by the regulator, or the court finds that it is just and equitable in all the circumstances to make a different award of costs.
In the way that it has done before, a defiant newspaper industry, instead of following what Leveson LJ had recommended, set up its own body yet again (as with the Press Complaints Commission (PCC) and its predecessors). This is the so-called Independent Press Standards Organisation (IPSO). IPSO did not and does not meet the recommendations made by Leveson LJ for press self-regulation.
Despite the promises made to the victims of press abuse, the government has failed to implement the Leveson recommendations (four years after the report) and has not commenced section 40. The culture secretary, John Whittingdale, indicated before he left office that this was ‘not the right time to do so’, presumably under pressure from the press industry. There is a strong argument that the use of non-commencement to defy the legislative will of parliament is unprecedented and anti-democratic.
In the meantime, an organisation called Impress applied for and was recognised by the Press Recognition Panel as an independent regulator, complying with Lord Justice Leveson’s requirements. Impress says it will provide an arbitration scheme which is free to the public and will protect member publishers against the risk of court costs and exemplary damages.
In October 2016 amendments were tabled to the Investigatory Powers Bill with the intention of encouraging the government to commence section 40. This was after the House of Lords became frustrated with the government’s failure to commence the provision, which was then already a year overdue. This amendment went back and forth between the Commons and the Lords but has now been defeated.
Recently, the government suddenly announced a ten-week consultation on section 40 and on the second stage of the Leveson inquiry. Some have argued that this was no more than a cynical attempt to avoid a possible earlier defeat in parliament. The latest consultation continues until 10 January 2017.
Leveson part two
Readers may recall that part two of the Leveson inquiry related to the relationship between the press and the police. This came about because of public concern that the police had become too close to the press in general, and News International in particular, with the result that the investigation of phone hacking had not been conducted with the rigour that it deserved and calls for reconsideration of the allegations were ignored. That part of the inquiry was to take place after all the criminal proceedings had been concluded. This meant that inevitably there were serious restrictions around the evidence that could be called or investigated in the Leveson inquiry part one.
It appears that the government has bowed yet again to pressure from the press industry both in relation to section 40 and part two of the inquiry. These matters should have followed as surely as night follows day, as indicated by Leveson LJ, and enacted by parliament with all-party agreement. Instead, we now have a further consultation on those matters, which will inevitably be another opportunity for the industry to complain about the self-regulation which Leveson had recommended and which all parties had agreed to.
Leveson LJ said in his report that he considered what was needed was a ‘genuine independent and effective system of self-regulation’. His report quoted the then prime minister and then leader of the opposition, who believed that the ‘PCC has failed and that a new body is required’. Cameron had described the PCC as ‘ineffective and lacking in rigour’, while Ed Miliband called it a ‘toothless poodle’.
It is hard to see how IPSO has improved matters. It does not have the necessary independence and just does not comply with the Leveson recommendations. It has not applied for recognition by the Press Recognition Panel.
Leveson LJ had described the PCC as not being a regulator at all, but in reality a complaints-handling body. Can IPSO make any greater claim than this?
‘Enemies of the People’
That was the headline of the Daily Mail on 3 November in an article expressing fury over ‘out of touch’ judges who have ‘declared war on democracy by defying 17.4 million Brexit voters and who could trigger a constitutional crisis’.
The article not only attacked the decision of the three senior judges but their personal associations, and, in one case, a judge’s sexuality.
Similar headlines appeared in other tabloid newspapers. The complaint was that judges had made a decision that the government does not have power under the Crown’s prerogative to give notice pursuant to article 50 for the UK to withdraw from the European Union. It could only do so with the authority of parliament.
The Lord Chancellor has a statutory duty to uphold judicial independence and the rule of law. The office is one of the oldest in the British constitution, but relatively recent changes have changed the role considerably.
Some, including the Bar Council, felt that the current Lord Chancellor, Liz Truss, did not adequately respond to the criticism from some MPs and newspapers over the decision. Eventually, she did back the independence of the judiciary but stopped short of condemning the attacks on the judges over the Brexit ruling.
There are strong feelings in some quarters that there is a continuing and unprecedented attack on the judiciary by certain newspapers which undermines the rule of law. The government and the Lord Chancellor’s response was thought to be the bare minimum in the circumstances where there had been such a vitriolic attack. The former Conservative attorney general, Dominic Grieve QC, compared coverage in one newspaper to the Nazi party’s newspaper.
There have been many other recent reasons for concern about the press, including Hillsborough, the convictions of a number of public officials following payments by newspapers for stories, and the jailing of tabloid journalist Mazher Mahmood for conspiracy to pervert the course of justice.
It is a sign of the enormous power of the press that despite a lengthy and expensive inquiry, promises from the government to victims, and an all-party agreement, press self-regulation is still the subject of continuing debate some four years after the Leveson report was published.
As Leveson LJ said in the summary of his report, ‘the press, operating properly and in the public interest, is one of the true safeguards of our democracy’. Of course, when it is not operating properly and in the public interest, the opposite is true.
Steven Heffer is a partner and head of the media and privacy team at Collyer Bristow