Roger Smith, in his new column looking at the media and access to justice, takes a look at Leveson
No question about the biggest justice story over the last few weeks. Nothing could beat the acres of coverage given to Lord Leveson’s report. The Guardian even gave us a breathless timeline: ‘Leveson report published – as it happened’. This rather charmingly reported the FT’s editor (9.06am) forbidding staff tweets as commentary would ‘take more than 140 words’. The Leveson report is, indeed, long, dense and subtle. It also raises a range of issues going well beyond the narrow issue of press regulation which was, of course, its core.
The day of Leveson’s publication was somewhat overshadowed by a mischievous Mail and a less than usually sure-footed Shami Chakrabati. Though it took a few days to emerge clearly, the question arose as to whether statutory regulation of the press (which Leveson did not favour) would ipso facto be a breach of the European Convention of Human Rights. Liberty and Ms Chakrabati said that it would: a number of respected lawyers that subsequently included a blogging Ben Emmerson QC, who in any sane world would have been our next judge in the European Court of Human Rights, begged to differ.
The issue raised by the Chakrabati-Emmerson debate is every bit as important as Leveson’s main concern. As a nation, we have ultimately to get to a position where our time-honoured respect for Parliamentary sovereignty is stitched into a similar regard for the constitutional framework provided by the European Convention on Human Rights. At the moment, human rights are under severe attack, led by cheerleaders that include David Cameron and the Daily Mail.
Let us be clear. There is nothing in the Convention that restricts Parliamentary determination of the balance between rights of freedom of expression and privacy. Of course, the courts are the overall guardians of the Convention but, provided Parliament legislates within its framework, then the courts should be hesitant to intervene. We should be allowed a measure of appreciation on the balance that we wish to make. Parliament’s views, for all that they may come under judicial scrutiny, are an important part of the constitutional determination of that balance. To say otherwise is to play into the hands of those who argue that human rights are inimical to democracy.
Leveson’s report also raises a narrower (but not unimportant) issue, picked up earlier by Judith Townend on www.thejusticegap.com (HERE). It is the form to be taken by what Leveson calls the ‘arbitration process’ to replace the Press Complaints Council’s current conciliation service. Leveson records the various options that were put to him. Max Moseley, on the one hand, wanted a statutory tribunal. Lord Prescott, on the other, favoured an ombudsman. Leveson was careful on his precise model: ‘It is not for me to make specific organisational recommendations about how the body should be structured or the mechanism whereby disputes might be capable of resolution.’ However, he was clear as to principle: ‘The process should be fair, quick and inexpensive, inquisitorial and free for complainants to use’. He also had some suggestions as to who might be employed as arbitrators, suggesting those ‘retired from the Bench but also… the most senior ranks of the legal profession’.
Leveson’s general approach to complaints is surely right. At the earliest stage, he wants the press itself to deal with them properly. At the last, he wants implementation of Jackson recommendations to protect individual litigants from the impact of costs orders. He also wants to provide incentives through the level of costs and damages to encourage diversion of otherwise court-bound complaints. It is the important bit in the middle where there are more difficulties.
The introduction of eminent retired judges or Queen’s Counsel into the arbitration process is all too likely to lead to a hopeless judicialisation of a process that will fail to meet Leveson’s requirements of speed and cost. Everyone (except the poor) will get lawyered up; costs will rocket and the process will get bogged down. The Irish seem to have got quite far with a model that deploys an ombudsman. The British and Irish Ombudsman Association snipe that this post is insufficiently independent in its form, if not its practice.
But, if we are to move to a world where legal aid is highly restricted or unavailable (as, indeed, it always has been in defamation cases), then we cannot hang on to the wonders of an adversarial system of trial that fundamentally depends on equal representation. That would be a triumph of principle but a defeat for justice.
The press was right to give Leveson such coverage. This, of course, reflected their direct interest in his recommendations. But, his report also demands wider consideration than will be given by those with other interests such as the future of the constitution and methods of adjudication in an age of austerity.
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