It is not difficult to see why Lord Leveson’s refusal to assist MPs with their latest questions over the future of press regulation is regarded as unhelpful and, by some, the wrong call.
Assigned on 20 July 2011 by Prime Minister David Cameron to lead an inquiry into the culture, practices, and ethics of the press, the 64-year old president of the Queen’s Bench Division’s remit was ‘in the light of these inquiries, to consider the implications for the relationships between newspaper organisations and the police, prosecuting authorities, and relevant regulatory bodies – and to recommend what actions, if any, should be taken.’
Written submissions to the inquiry were filed as far back as August 2011, with evidence given throughout 2012 leading to Lord Leveson’s report on 29 November 2012, which proposed tougher self-regulation and a new press standards board backed by statutory teeth. Quite simply, there is no-one who knows more about the inquiry than Leveson.
More problematically, the report has been met with little consensus – with Labour and the Liberal Democrats and campaign groups such as Hacked Off backing stringent regulation, in the face of opposition from the Conservative Party and much of the national media who fear the impact of statutory oversight on independence and freedom of speech.
The compromise? A self-regulating body backed by a more palatable Royal Charter, an instrument used to recognise bodies like the BBC and the Bank of England.
This week Lord Leveson was called before the House of Lords and subsequently MPs in the Culture, Media and Sport Committee (CMSC) to answer questions on the merits of the latest version of Royal Charter currently being examined by the Privy Council, after the Privy Council rejected earlier proposals on the basis they did not comply with certain principles of the Leveson report, including independence and access to arbitration.
Leveson’s response? That ‘judges simply don’t get involved in these issues’ and that it would inappropriate for a serving judge to comment on what is now a politically contentious issue. To put it mildly, this smacks of shutting the stable door after the horse has bolted.
On one level, Leveson is garnering sympathy for becoming something of a political football. And, as he pointed out to the CMSC, a Royal Charter was not once raised in the inquiry or mentioned in his report. But his response: ‘I examined the facts, I set them out in what might be described as extremely tedious details. I reached a series of recommendations which was my very best shot,’ seems better suited to a court judgment than a national, by its very nature highly politicised inquiry.
Niri Shan, a partner and head of IP at Taylor Wessing, comments: ‘I have some sympathy with his argument but he’s not giving evidence in his capacity as a serving judge. He’s not talking about an active case. Surely he’s in a better position than anyone. This is a properly constituted committee. It’s legitimate for him to answer questions.’
There are sympathisers on both sides. Graham Shear, a disputes partner at Berwin Leighton Paisner, says: ‘I can understand why he doesn’t want to be drawn in. This is a matter that is sitting before both the Privy Council and Parliament. There are still decisions obviously outstanding from those who were elected. I can understand why he doesn’t want convergence between the judiciary and parliament in relation to this.’
Addleshaw Goddard’s David Engel goes further: ‘Lord Justice Leveson’s report is completely apolitical. In Britain, we have an important constitutional separation between the executive, the legislature (i.e. Parliament) and the judiciary. It’s desirable that those key functions are kept separate. That’s why he can’t stray into the political domain and criticise the executive for not implementing his recommendations. Judges are quite constrained in what they can comment on in the public arena.’
However, one can’t help but wonder if the time to have decided that was in 2011, when he accepted the role as head of an inquiry that was always going to be a political hot potato.
Leveson’s response smacks more than a little of wanting to have his cake and eat it.
On the other hand, if his response is right – and there are many who believe he is in the right – it may sound a death knell for judge-led inquiries.