Leveson Inquiry: Letting the Judges Take the Hard Decisions?

The Leveson inquiry was quick and cheap by the standards of public inquiries. Compendious in length, it was intended as a solution to the problems posed by press malfeasance – but its reception merely reaffirmed pre- existing political sentiment. Chris Hanretty reports.

n 29 November last year, Leveson: first, that the decision to breakdowns or controversies are Lord Justice Leveson pre- hold an inquiry can be understood simply more numerous. Osented his report on the cul- with reference to common theories Nevertheless, we can hazard some ture, practices and ethics of the press of blame avoidance; second, that the generalisations about the factors to Parliament. Leveson had been cost and length of the inquiry were that make public inquiries more asked to undertake an inquiry by limited compared to other similar in- likely. Using a carefully curated cata- the Prime Minister following claims quiries; third, that the nature of the logue of calls for inquiries, Raanan that a private investigator working inquiry demonstrated the increasing Sulitzeanu-Kenan has been able to for the News of the World had hacked judicialisation of British politics; and identify three factors that make an the phone of murdered schoolchild fourth, that reactions to the inquiry inquiry more likely: if the govern- Milly Dowler. Leveson concluded were strongly conditioned by initial ment is popular at the time; if the that the British press had too often attitudes towards regulation of the issue is salient; and if the original acted in an ‘outrageous’ fashion and press and party politics. This does not target of blame is remote from the that the existing system of press help us to predict the likely fate of government. These three factors all self-regulation was inadequate. Leveson’s recommendations, but it feed into politicians’ calculations. Leveson concluded that there was Politicians had should make us realise that this issue Other things being equal, politicians no evidence of widespread police developed will not go away. would rather not call public inquir- corruption, despite a sequence of ‘too close a ies, because to call a public inquiry poor decisions relating to the initial is to admit that something has gone investigation into hacking at the relationship Blame Avoidance wrong on the government’s watch. News of the World, but found that with the press’, That is, the government loses from politicians, as a group, had devel- Leveson found The initial decision, subsequently acknowledging problems. Popular oped ‘too close a relationship with revised, was to appoint an inquiry governments are happier taking a the press’. into the narrow issue of phone hacking. short-term loss by acknowledging The report made 92 recom- Understanding decisions to set up a problem. Salient issues are those mendations. Some were relatively such inquiries is devilishly difficult that are foremost in the public mind uncontroversial (for example, those because of the problem of nega- and for which immediate relief is of concerning amendments to the Data tive cases – instances where it was greatest benefit. Remote concerns Protection Act and civil damages). conceivable that an inquiry might are issues where the long-term risk Others – in particular, the recom- have been established, but where for the government of a castigatory mendation that a system of press no inquiry resulted. We know, for report is limited. self-regulation have a statutory example, that the rate at which How does this help us under- underpinning – proved far more public inquiries are established has stand Cameron’s 6 July decision contentious. increased from roughly one per to establish a public inquiry into Though the publication of the re- year until 1980, to a peak of four phone hacking? Certainly, the issue port lacked the theatre of earlier pub- per year in the period 1997–2001. was extremely salient – the media lic hearings, the inquiry as a whole From this trend, however, it is dif- likes to talk about itself, and the was an important political event. ficult to say whether we have more hacking of a dead girl’s voicemail It was not, however, sui generis. public inquiries because politicians is an act so ghoulish it is unlikely Leveson belongs within a particular increasingly favour public inquiries the issue would have dropped off genus (judicial inquiries) and species as their preferred ‘mechanism for the agenda. The primary targets of (inquiries under the Inquiries Act ascertaining the facts after any major blame – News International editors 2005). Such taxonomic rigour helps breakdown or controversy’ (Burgess, and executives – were socially close us understand several points about 2011), or because major (perceived) to the Prime Minister, but they were

8 Political Insight The Leveson inquiry into the culture, practices and ethics of the press was established following claims that the News of the World had hacked the phone of murdered schoolchild Milly Dowler. Reuters more remote than a minister. In terms of has now placed him in a rather more dif- If we assume that Part Two of the inquiry popularity, the combined vote share of ficult position. The initial instinct to avoid is a dead letter, then we must conclude both government parties was above the or deflect blame generated pressures that, it that the inquiry has completed its work average for the period Sulitzeanu-Kenan seems, were difficult for the Prime Minister at breakneck pace. The average duration investigated. So, based on the factors that to resist. of inquiries under the Inquiries Act 2005 have been found to explain the establish- (including on-going inquiries, but exclud- ment of public inquiries, it would have ing ‘converted’ inquiries) is two years and been perfectly understandable for Cameron Cost ten months. The shortest inquiry (into to have set up a narrow inquiry into phone an explosion at the ICL plastics factory in hacking. Strictly speaking, the Report is incomplete, Glasgow) concluded in one year and seven Of course, we did not get an inquiry into since it deals only with the first part of the months. This compares with one year and phone hacking, but rather an inquiry into Inquiry’s terms of reference (‘to inquire six months for Leveson. The costs of the something broader: the culture, practices into the culture, practices, and ethics of inquiry (approximately £6 million) are ap- and ethics of the press. This mission creep the press … and make recommendations’). proximately half those of the long-running arose in the week following the PM’s initial Leveson himself was ‘quite unable to say inquiry into the Mid Staffordshire NHS decision to grant an inquiry. Both the terms when it might be possible to even consider Foundation Trust. The speed with which of reference and the assessors to the in- Part Two’, which deals more narrowly with Leveson reported is certainly unlikely to quiry were agreed between the three party criminal conduct at News International and deter politicians from calling for similar leaders. Clearly it was in the opposition’s its investigation by the Metropolitan Police. inquiries, a process that seems to invite interest to broaden the scope of the inquiry The lack of a Part Two is perhaps for- ever-greater judicialisation. to include more general matters, since it tunate, given that this instalment is over believed that this would have embarrassed one million words in length. This is three- the government and led to the resignation fifths of the length of the final report of the Judicialisation of Jeremy Hunt. It is less clear why the decade-long Bloody Sunday Inquiry, but Prime Minister should have agreed to an still four times longer than last year’s long- The Leveson inquiry demonstrated the inquiry along these lines – particularly since est court judgment (the hugely expensive increasing judicialisation of British poli- a broader inquiry with a prospective remit Berezovsky v Abramovich). tics. Judicialisation, in this context, means

April 2013 9 50 Leveson, something only satisfied by the 45 Negative latter. Politicians, indeed, seem fonder of the phrase than judges or legal academics: Positive 40 one author, writing in 1940, described it 35 Neutral as ‘one of a number of pseudo-analytical expressions deriving from false premises as 30 to the separation of powers’. Legal senti- 25 NEWS ment has not warmed over time. Leveson raises issues about judicialisation 20 that are different from common lamenta- 15 tions about human rights jurisprudence. Number of editorials If difficult decisions involving normatively 10 sensitive issues are systematically turned 5 over to judges, what do we need politicians for? 0

April 11 May 11 June 11 July 11 March 11 Reactions January 11 October. 11 February. 11 September. 11 November.December. 11 11 Figure 1 Editorial attitudes towards the Leveson inquiry. The reception given to the Leveson Report Source: Noelle De Guzman, ‘Leveson Editorials: Defending Press Freedom – or Press Interests?’ LSE Media Policy Blog. by newspapers was more negative than the reception given it by politicians; this in turn was more negative than the recep- both the ‘expansion of the province of elements at play, it is difficult to imagine tion given to the report by the public (see the courts or the judges at the expense of anyone other than a judge having the level Figure 1). As far as the national newspapers the politicians’, and ‘the spread of judicial of trust necessary to resolve competing nor- were concerned, the Guardian and the Fi- decision-making methods outside the ju- mative claims without giving the appear- nancial Times (combined daily circulation in dicial province proper’ (Tate & Vallinder, ance of doing anything other than finding October 2012 of approximately 493,000) 1995). The first aspect of this can be seen a sensible solution to a technical problem. endorsed Lord Justice Leveson’s approach. in the decision to entrust to Leveson not Other newspapers aired ‘grave reserva- just the task of investigating what went tions’ (Daily Mail), ‘deep alarm’ (The Sun) or wrong and who did it, nor even the task warned of slippery slopes (Daily Telegraph). of recommending fixes to the system that These negative judgments – shared by allowed that wrong-doing. Instead the task All of Westminster, it regional newspaper editors – were mixed of recommending changes to the structures with blandishments for Leveson’s conduct governing an important component of pub- seems, has become of the inquiry. lic life was entrusted to a single individual There was no full frontal assault on (Lord Leveson), with the presumption – familiar with the Leveson per se. The London School of not, as it turned out, a reliable one – that Economics Media Policy Project has found those recommendations would be faithfully requirements – that the press has generally held fire on implemented. Leveson: the tone of most editorials writ- This kind of undertaking – tricky, thank- psychological, political, ten on the subject during the period in less, liable to result in unpalatable solutions which the inquiry was hearing evidence – used to be given to Royal Commissions, practical or pedantic was neutral. Negative evaluations were a tool of government which now seems rare, and only arose once victims of hack- moribund, with the partial exception of the – of acting in a ‘quasi- ing had already been heard by the inquiry. Dilnot Commission. Other single-authored Whilst there were some exceptions – a inquiries have typically been exclusively judicial’ manner rather strange Daily Mail piece on one of retrospective (Hutton, the Laming inquiry the Leveson assessors, Sir David Bell, and into the death of Victoria Climbié). Inquiries a promise from the Spectator to engage in or reviews that have attempted to identify civil disobedience should any new statute lessons or issue recommendations for the be passed – any rancour on the part of the future have either been joint efforts (the This judicialisation of British politics is press was transmuted into praise for David Committee on Standards on Public Life, evident not just in the frequent recourse Cameron, who in the eyes of many edito- the Iraq inquiry) or have been restricted to to ‘judge-led inquiries’, but also in the rialists became an overnight champion of issues that do not raise such obvious and conduct of MPs and ministers themselves. hard-won liberties. pressing normative issues as the regulation All of Westminster, it seems, has become Given that the Prime Minister had in- of the press (Sir Hayden Phillip’s Review of familiar with the requirements – psycho- dicated that he was minded to implement the funding of political parties, for example). logical, political, practical or pedantic – of Leveson’s recommendations as long as they Whilst the appointment of a judge was acting in a ‘quasi-judicial’ manner: some- were not ‘bonkers’, his mixed reaction to probably over-determined in the Leveson thing demanded of Vince Cable and Jer- the proposals in the debate immediately fol- inquiry given the criminal and civil law emy Hunt but, according to Lord Justice lowing the launch of the report might come

10 Political Insight Politicians’ reactions to the Leveson recommendations were mixed but a majority of the public expressed support for a statutory underpinning to press self-regulation. Press Association as some surprise. That reactions should be Outcomes given to their subjects. Who will give odds strongly structured by party is perhaps less on a Son of Leveson before 2025? of a surprise. Of those interventions ex- No research can predict the likely outcome pressing a position on statutory underpin- of Leveson. Past research can tell us that ning, three of 14 Conservatives favoured self-regulation in other countries has pro- Selected References statutory underpinning, compared to 12 of ceeded under the threat of more coercive 13 Labour MPs and all Liberal Democrat state measures, and thus that newspaper Burgess, Adam. (2011) ‘The changing character MPs. proprietors might be able to cobble something of public inquiries in the (risk) regulatory Public reaction was more favourable. together. Opposition bills have a vanishingly state’, British Politics 6(1), 3–29. According to a YouGov poll, 58 per cent low chance of success – Labour’s draft bill is Sulitzeanu-Kenan, Raanan (2006) ‘If they get it of adults believed that new laws should be a bargaining chip or ‘proof-of-concept’, and right: An experimental test of the effects of the passed to encourage newspapers to a join should be evaluated as such. And, since the appointment and reports of UK public inquir- a self-regulatory scheme (i.e. to provide median legislator favours statutory underpin- ies’, Public Administration 84(3), 623–653. statutory underpinning), whereas 26 per ning, statutory underpinning of some kind is Sulitzeanu-Kenan, Raanan (2007) ‘Scything the cent opposed the passage of new laws. likely. Past research cannot tell us anything grass: agenda-setting consequences of appoint- Excluding ‘don’t knows’, support for new about the detail of that underpinning, al- ing public inquiries in the UK. A longitudinal legislation was strongest amongst Liberal though it can debunk certain claims about in- analysis’, Policy & Politics 35(4), 629–650. Democrats, ABC1s, and those in the North dependent regulation and legislative process. Sulitzeanu-Kenan, Raanan (2010) ‘Reflection in and Scotland, but even a plurality of Con- Newspaper editors have been surprised to the Shadow of Blame: When Do Politicians servative voters favoured new legislation. find that the House of Commons can amend Appoint Commissions of Inquiry?’, British This support is conditional on politicians’ most agreements, potentially even including Journal of Political Science 40(3), 613–634. role in any future regulatory scheme be- Royal Charters. Conservative MPs have been Tate, C. Neal, and Vallinder, Torbjörn (1995) The ing as small as possible. The predictabil- surprised to find that Ofcom, an imperious Global Expansion of Judicial Power. New York: ity (in retrospect) of these reactions has unelected quango in most instances, becomes New York University Press. been foreshadowed by previous research. a servile toady to ministers when recognising Sulitzeanu-Kenan (2006) has shown that press self-regulatory schemes. Chris Hanretty is Lecturer in Politics at the Univer- reactions to public inquiry findings are Whatever outcome is arrived at, the issue sity of East Anglia. His research interests include the conditional on these inquiries giving the will likely rumble on: most public inquiries independence of non-majoritarian institutions and ‘right’ answer. are not followed by a decrease in attention the politics of the judiciary.

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