Richard Lissack QC, barrister, Outer Temple Chambers
Opinion: No room for error in Leveson LJ’s hacking inquiry
24 July 2011 | Updated: 25 July 2011 8:49 am
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As the noise surrounding the phone-hacking issue becomes ever louder and the list of casualties ever longer, in the eye of the engulfing storm sits Lord Justice Leveson’s inquiry.
It provides the calm centre, where matters as simple and uncontroversial as the future of constitutional governance and the interaction of the executive and the fourth estate are to be mulled and answers delivered within a year, working under intense and constant scrutiny and, oh yes, please don’t prejudice any criminal proceedings. A tall order? Yes. Deliverable? Probably.
To discharge this daunting burden it is essential that the inquiry adheres to six principles vital to the efficacy of any public inquiry: #Independence: it must be beyond reproach if the chairman’s conclusions are to command any confidence. For this reason, the calls for a ’judge-led inquiry’ have been answered with the appointment of Leveson LJ, whose independence is beyond doubt. The appointment of his panel members will be interesting and will present a challenge if they are to bring expert knowledge to the inquiry while being demonstrably independent of press, police, government and so forth.
- Terms of reference: it is vital that these are drawn widely enough to satisfy all interested parties, but not so wide as to make the inquiry undoable. If this first hurdle is not cleared, the chances of the final report being branded a ’whitewash’ on the one hand, or run into the sand on the other, multiply accordingly. Under Section 5 of the Inquiries Act 2005, the Government must consult with Leveson LJ before publishing the final terms of reference, and he must insist upon the terms of reference he deems appropriate.
- The power to compel the attendance of witnesses and disclosure of documentation: such power exists under Section 21 of the Inquiries Act.
- An open approach: under the Inquiries Act the public can be excluded from hearings if the criteria of damage to national security or international relations, to the economic interest of the UK, or that caused by the disclosure of commercially sensitive information, are potentially engaged. Who knows where this drama will run next, but for now it seems none of these criteria are engaged.
- Prompt reporting: delay before the final report’s production has resulted in fierce criticism being aimed at several high-profile inquiries. Infamously, the Bloody Sunday Inquiry took many years to report, but this was perhaps unsurprising when considering the subject matter, the volume of evidence taken and the fact that European Court of Human Rights Article 2 considerations were potentially engaged by the report and its findings. On the other hand, swept along by a prime-ministerial mandate, the Hutton Inquiry was able to publish its report comparatively quickly. Ultimately, Leveson LJ must enjoy every resource necessary to maximise the chances of a prompt final report.
- Follow up: this becomes a question for the politicians and the public. Recommendations have in the past been ignored or hugely delayed (see for example Dame Janet Smith’s recommendations after the Shipman Inquiry) and the issue conjoins with the question of prompt reporting. It is far harder for the politicians to claim that things have already changed and matters have already moved on if the report and its recommendations are produced timeously.
History will judge whether the Leveson Inquiry delivered. For now it must be given every chance to do so - the issues are too important for any other outcome.
Outer Temple barrister Michael Uberoi assisted with this Opinion column