Form over substance?

Preserving the status quo will not be an option for Lord Justice Leveson, says Kevin Bays


Kevin Bays
Kevin Bays

In addition to denouncing the unacceptable and unlawful behaviour of some elements of the press, the Leveson Report is undoubtedly expected to recommend change to the current self-regulation system.

The main question is whether the recommendation will be for statutory based regulation or a tougher voluntary regime, with the former considered to be most likely. In light of the length, expense and revelations of the inquiry, preserving the status quo will not be on Lord Justice Leveson’s list.

But although there will be a call for changes to the procedure and body responsible for dealing with allegations of misconduct, will there will be any recommendations for changes to the existing substantive law, the breach of which led to the inquiry?

The existing law already provides what seem to be perfectly adequate criminal and civil remedies for the type of excesses we have listened to in recent months. Phone hacking, harassment, corruption and misuse of private information were unlawful before the inquiry.

Is it really the fault of the Press Complains Commission that those laws were not utilised or enforced sufficiently? What are the reasons that proceedings were not successfully brought earlier for what are now referred to as gross invasions of privacy? Will a change in the industry body charged with responsibility to investigate allegations of unlawful conduct and to enforce the law fare any better than the courts in dealing with invasion of privacy by phone hacking or otherwise?

Secondly, whatever new regulatory system is introduced, it will still be necessary for a complaint to be brought and an investigation carried out. At the end of the day, a judgment will have to be reached in each case that attempts to strike the proper balance between the right to freedom of speech and the rights of the individual – whichever tribunal is appointed to carry out the task.

Is there a danger that Leveson L J will be focusing on form rather than substance?

Kevin Bays is a partner at Davenport Lyons