After a summer spent reading himself into the phone-hacking scandal, Sir Brian Leveson must now be realising the magnitude of the task he has taken on. The senior judge, who sits in the Court of Appeal as Lord Justice Leveson, is well aware that coming up with the right answers is less of a challenge than keeping his public inquiry into the scandal within manageable bounds.
As he told reporters on July 28, “It is critical that we concentrate on the central and most important issues.” The inquiry team and its witnesses would have to “exercise very considerable discipline and, where appropriate, restraint”.
Their terms of reference, extended before they had even started work, fall into two sections. Part One requires Leveson and his panel of assessors to inquire into the culture, practices and ethics of the press and to recommend a more effective regulatory regime. Part Two involves an inquiry into misbehaviour by the press and police. Their initial report is meant to be delivered within 12 months — which means, in reality, by October next year. There is no point in trying to rush it out at the end of July, when the nation will be obsessed by the Olympics, and it would be right to wait until Parliament returns after the autumn party conference season.
The government’s thinking seems to be that Leveson’s initial report should cover only Part One of his terms of reference, allowing him to defer consideration of unlawful conduct within News International until criminal proceedings have been completed. And Leveson rightly says he is determined not to prejudice any police investigation or potential prosecution.
But it’s not that simple. The conduct of national newspapers is specifically mentioned in the terms of reference for Part One. And Leveson recognised that his initial report would have to focus on the extent of unlawful or inappropriate behaviour by papers — even though he would stop short of examining “who did what to whom”. Indeed, he noted that “many journalists” had devoted “many years of attention” to the “criminal, unethical and utterly inappropriate behaviour of small sections of the press”. He hoped they would send him examples. I’m not so sure about the “many” but certainly the Guardian has put considerable effort into investigating improper behaviour by the News of the World. It is equally true that one of the Guardian‘s leading reporters was not above using “questionable methods” himself — though David Leigh, now the paper’s investigations executive editor, argued nearly five years ago that “deceptions, lies and stings should only be used as a last resort, and only when it is clearly in the public interest”.
Leveson recognises that there needs to be a public discussion of when, in journalism, the end can be regarded as justifying the means — or, as he put it, “what amounts to the public good [and] to what extent the public interest should be taken into account and by whom”. As such, he is planning to hold a series of seminars in October on the law, the ethics of journalism, media regulation and investigative reporting.
Seminars are something of an innovation for a statutory inquiry, though the so-called detainee inquiry — into whether Britain was implicated in the “improper treatment” of detainees held by other countries following 9/11 — held one in June. Experts were invited to deliver a series of lectures to the inquiry panel at a meeting open to the media and invited guests. The idea of informal information-gathering sessions is a good one, although I hope the Leveson seminars turn out to be rather more interactive.
But not everything will be done on an informal basis. Leveson made it clear that he would be using the powers he has under the Inquiries Act 2005 to order people to provide evidence in the form of written statements and to hand over any documents they may have that relate to the inquiry. These are in addition to the powers he possesses to require individuals to give oral evidence on oath. Although there are exceptions covering evidence that might incriminate a witness or is privileged in some other way, deliberate refusal to give evidence is an offence, punishable with up to six months’ imprisonment. It may also be punished as a contempt of court.
Leveson has already demonstrated an impressive grasp of the issues. There is every chance he will produce his initial report on time. But the Home Affairs Committee pointed out in July that, unless the police were given more resources, it would be “at least a decade” before they notified all potential victims of phone hacking. Nobody is seriously expecting the criminal investigation to take as long as that. But if Leveson can’t start Part Two of his inquiry this time next year, he should go back to judging until he can.