Free speech, in case anyone needed reminding, is one of the cornerstones of our democracy. So it is not just the media who should be interested in the Leveson report and its aftermath. There is no guarantee that the report’s recommendations will find their way into law, but either way they deserve close scrutiny. The Prime Minister has already indicated he does not accept all of the recommendations, and as is well known could not even agree with the deputy Prime Minister enough to make a joint statement, so we can expect to hear a good deal more in the coming months on the relationship between the press, the politicians, Parliament, the police and the public.
One general question concerns the appropriate composition of this sort of inquiry. Here the inquiry was conducted by a single judge. The report explains that it was hoped that the inquiry would proceed on judicial lines, involving the calling of witnesses and the adducing of evidence, followed by factual findings and conclusions. Certainly a judge or senior barrister would be the obvious choice in those circumstances, but the recommendations and conclusions are not at all confined – nor was it ever expected they would be – to forensic findings. It was not simply a matter of which politician and which policeman had done what with which journalist. The ongoing regulation of the press and others cannot be syllogistically extracted from a set of factual findings about what they have done in the past. Rather, we are into the realm of principle in determining proper limits of free speech, and also the realm of pragmatism in how those limits might be best enforced.
For that reason, for all his undoubted experience of the media reporting litigation over the years, Lord Justice Leveson would, I venture to suggest, have been assisted by others along the lines of a Fleet St grandee and perhaps some retired police and politicians. If it was too difficult to find someone with expertise who was fully independent of any remaining interests in this country, then perhaps assistance could have been found from elsewhere in the Commonwealth.
By way of comparison, in my book I criticise the Chilcott inquiry into the Iraq war for having no lawyers at all and thus no-one experienced in cross-examination. Appropriately there was military expertise on that inquiry but the conduct – and cross-examination of witnesses – would have been enhanced by counsel being added as well. In other words, a better composition could have been found with both Chilcott and Leveson.
Another prior question regarding the Leveson report is whether there was a need for an inquiry at all. The casus belli was the apparent hacking of the mobile phone of the murdered teenager Milly Dowler, but the story turned out not to have been true. Leveson states in forthright fashion that an inquiry was still justified because of ongoing concern about the place of the press. But it does not follow from bad behaviour of the press with other parties that it is the former and not the latter who should be regulated in future.
For example, where the press have been shown to have entered into inappropriate relations with the police, then the answer is tighter controls of police. A police officer leaking information about an inquiry is (potentially) committing a criminal offence. Indeed, the journalist might too if he or she acted in a way that prejudiced a trial. There might also be a civil remedy arising from breaches of the right to privacy, having regard to Art 8 of the European Convention on Human Rights.
The same applies with politicians and civil servants: if they are too close to journalists, or are found leaking information improperly, then they may breach codes of conduct for their respective roles or, again, face both civil and criminal proceedings depending on the circumstances.
In other words, the answer to many of the questions posed by Leveson may well be better enforcement of the existing law, not new laws or new enforcement mechanisms.
The most controversial suggestion in Leveson comes from his suggestion of a statutorily-underpinned but still “independent” regulator. Some reaction has been frankly naïf: one blog suggested the only statute should be an almost verbatim reproduction of the US First Amendment. This is absurd for the simple and trite reason that short of complete anarchy there will always be restrictions on free speech.
That does not mean, however, that a statutory regulator – a stronger restriction in theory than ad hoc laws protecting such things as privacy, state secrets and intellectual property – is necessary or desirable. An independent regulator “underpinned” by statute looks like a statutory regulator at one remove, if not a statutory regulator by any other name.
Leveson conceded that much of the wrongdoing with which he was concerned was already unlawful or, in some cases, illegal, but then suggested an arbitration process which parties would be compelled to follow on pain of not receiving costs in the High Court even if they won. The justification for such a process is the usual objection to litigation of it being too slow and too expensive for the general public. But that applies to all litigation, and it is not clear at all why some form of exemption should be carved out in one area of law and not others.
Secondly, arbitration proceedings are usually confidential, because they constitute a process chosen by parties to a commercial contract as part of their private bargain. The resolution of any disputes arising out of those private affairs is (generally speaking) no-one else’s business. With the press printing stories about individuals without the latter’s consent, any resultant dispute is not part of a consensual bargain. Moreover, there may be a public interest in the proceedings and their outcome which is not present in commercial bargains, so the justification for confidentiality will be much weaker.
Further, commercial arbitration in London is done under the purview of a long-established system of commercial law. By contrast, the law of privacy and the press is in a state of flux. Arbitration proceedings have no precedent value and so will not develop the law at all.
The final point is the elephant that was in the room throughout the Leveson inquiry, in the form of the internet. As I have written before (see Cases, Causes & Controversies: fifty tales from the law (Wildy, Simmons & Hill, 2012), p 151):
… the reality is that since the law (for present purposes) has no reach beyond these shores, it has become – for better or for worse – very much harder indeed to suppress information than ever before. Someone outside the jurisdiction might publish something on the internet that would then be easily accessible to British citizens. It would still be an offence for a British citizen to download and disseminate the information, but readers will need no elaboration of the reality of such a situation.
The only recourse for the government in those circumstances would be to try and censor internet search engines, in the manner of a few largely non-admirable totalitarian regimes elsewhere. I trust such a step is not likely to occur in this country ...
Only today we have seen what modern communications enable overseas media to do, and there is nothing whatsoever that any British statutory body could do about it ..