by Atul Hatwal
Did you know Leveson was sitting yesterday? Thought not. But away from the high political drama of Jeremy Hunt or low criminality of hacking, this was one of the most interesting sessions.
Inquiries are defined by the character of their principals. The decidedly establishment mores of Lord Hutton became clearer throughout the progress of his investigation into death of David Kelly just as the more challenging approach of Lord Macpherson was increasingly evident in his conduct of the inquiry into Stephen Lawrence’s murder.
In this latest phase of the Leveson inquiry, which has moved on to deal with the future of press regulation, Brian Leveson’s character is emerging. And most pertinently, his thoughts on what he will propose seem to have crystallised.
The key witness yesterday was Sir Charles Anthony St.John Gray.
Gray is notable for three reasons: his background, suggested approach to regulation and Leveson’s interventions.
First, as Leveson acknowledged, Sir Charles Gray is one of his long standing friends. Both served at the bar and as judges in the House of Lords, until, in the words of Leveson, Gray, “decided that he’d had enough”. The professional experiences and social environment that shaped Gray’s outlook have equally moulded Leveson.
Second, Gray runs an organisation called Early Resolution (ER). It is a body that adjudicates on press disputes without having to go through the time and cost of a full court case. ER is voluntary but Gray was up before Leveson proposing a mandatory incarnation of his organisation as the new press regulator.
Given Leveson’s respect for Gray, it’s difficult to think of a more powerful advocate for a new model of regulation.
Leveson’s professional warmth towards Gray was evident towards the end of his testimony when Leveson entreated Gray to suggest further ideas on the operation of a future regulator,
“If something occurs to you, I would be very, very interested to hear it…By all means, if you would just write me a letter, I would be very grateful”
Third, and most importantly, Leveson’s interventions revealed his thinking. As Gray was describing his proposals, Leveson interrupted him and virtually defined his own vision of the regulator,
“…one of the things that I have been thinking about, and raised with a number of people, is that actually if your arbitral system is our normal mechanism for resolution of disputes, then there could be inequality because one side could bring along the most fashionable silk in the area, and the other may not be able to afford such representation; which is why I have toyed with the idea of an inquisitorial type mechanism that permits the arbitrator, or whatever you want to call him, to control precisely what’s going on…”
In other words, Leveson’s proposed regulator would be, well, something that looks a lot like a permanent Leveson inquiry.
The critical development would be that the new watchdog would be inquisitorial rather than adversarial and backed by statute.
Under the adversarial system, the adjudicator sits in judgement as counsels make their case for each side. In contrast, the inquisitorial system is driven by the judge, just like the Leveson inquiry.
And unlike the old voluntary press complaints commission (PCC), statute would make compliance compulsory, again, just like the Leveson inquiry.
At the start of this phase of the inquiry, Leveson wondered out aloud on the merits of a small “inquisitorial regime, which can be done without lawyers” to tackle privacy and small libel cases, but his comments here go further.
The way Leveson intervened on Gray to cite the dangers of arbitration where costly QCs were involved, shows how his preference for this approach is hardening.
Most revealing of all, his phraseology illustrated the level of power to be vested in his inquisitorial regulator. He wants a regime that “permits the arbitrator, or whatever you want to call him, to control precisely what’s going on (emphasis added)”.
These are the words that will ring alarm bells with the papers.
An activist judge or QC in the role of statutory regulator, with the level of control that Leveson describes would be able to define their remit almost as they saw fit. Their complete power over the process would mean it was for them to determine what was in scope and out.
If and when Leveson proposes this regime, the papers’ reaction will be visceral. Until now, the non-News International majority have rapaciously devoured each detail on hacking and the politicians.
This will change when a permanent version of the Leveson inquiry, sitting in perpetual judgement on press behaviour, is proposed.
There will be near unanimous opposition to something which presents such an existential threat to newspapers’ already ailing fortunes – both because of the skeletons in non-News International closets that might be uncovered and the impact such a regime would have on their future ability to run their business.
For the politicians this will present the biggest challenge of the inquiry so far.
It was easy when the political response was just to condemn the hacking of Milly Dowler’s phone and attack News International. The press regulation proposals it will be different.
When all the press stand against Leveson’s new model, which side will the politicians choose? There will be costs whichever way they jump.
For Labour, given Ed Miliband’s positioning, it would be difficult for the party to oppose the proposals. But the Labour leader’s insurgent approach might not play so well publically when the entire fourth estate is condemning him for ending free speech.
For the government, the obvious danger from blocking Leveson is to be seen to back their sleazy friends in high places. It’s a potent threat. But, there is also an opportunity for the Tories.
Thanks to their epic incompetence over the past few months, the public already think of the government as interested in the privileged few rather than the majority. There’s not that much further to fall in popular esteem. Refusing to back Leveson would confirm public perceptions, yet little more.
There would however, be a major upside. Standing against Leveson, with the papers, could reset their relationship with the print media.
Jeremy Hunt got such a tough ride from the Telegraph and Daily Mail as much because of their parent groups’ opposition to the Murdoch takeover of BSkyB as the evidence in all of those texts and e-mails.
Backing the print press against Leveson would inevitably result in a hit in the polls, but this could be outweighed by the benefits of uniting the print media behind the government once again.
Leveson publishes his report in Autumn. He has boldly stated that he wants political consensus on his proposals for press regulation. Given his direction of travel on regulation, the good judge is likely to find that much easier to say than achieve.
Atul Hatwal is editor at Uncut