Leveson Inquiry – Lord Leveson prepares the way for the cancellation of part 2

Robert Henderson

Leveson hints at an early end to the Inquiry

On 2  May the London paper the Evening Standard let a rather large cat out of the bag. It reported that Lord Leveson,  in a ruling made very quietly on 1 May,  had  hinted strongly that he wanted to cut short his eponymous Inquiry.  (http://www.thisislondon.co.uk/news/uk/leveson-phone-hacking-inquiry-could-be-cut-short-7706894.html).  The  relevant passage on the Leveson Inquiry website is this:

Para 65  “The public concern which led to the setting up of this Inquiry is beyond argument or debate. I do not know whether there will be prosecutions but, having regard to the number of arrests and the quantity of material seized (including the 300 m. e-mails which it is said have had to be analysed), if there are, it is likely that the process of pre-trial disclosure and trial will be lengthy so that Part 2 of this Inquiry will be delayed for very many months if not longer. In those circumstances, it seems to me that it is in everyone’s interests that Part 1 goes as far as it possibly can. If the transparent way in which the Inquiry has been conducted, the Report and the response by government and the press (along with a new acceptable regulatory regime) addresses the public concern, at the conclusion of any trial or trials, consideration can be given by everyone to the value to be gained from a further inquiry into Part 2. That inquiry will involve yet more enormous cost (both to the public purse and the participants); it will trawl over material then more years out of date and is likely to take longer than the present Inquiry which has not over focussed on individual conduct. Obviously, the more restrictive in its analysis that Part 1 has been, the greater will be the legitimate public demand for Part 2. I repeat that this possibility has not affected my approach to what I perceive to be appropriate in law and, when necessary, in the exercise of my discretion but it is undeniably a sensible strategic consideration for those who have participated in this Inquiry.” (http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry-Rules-2006.pdf)

Leveson’s sudden found concern for the public purse is more than a little strange because it has been apparent from early in the Inquiry that it was going to be a lengthy and expensive process .  Nor is there any plausible  ground  for his concern about cost. To justify his new found desire to be a guardian of the public purse Leveson cited the Inquiries Act 2005, viz:

s. 17(3) :

Para 8 “In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others).” (http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry-Rules-2006.pdf)

The cost of carrying the Inquiry through may be considerable (although it would be minute in the context of overall public spending),  but it would be fanciful  to describe the uncovering of serious criminal offences involving corruption or other misconduct such as a wilful failure to investigate complaints of crimes as an “unnecessary cost”.  So why has Leveson flown this kite? It looks as though he has either  been told by his political masters to cut  the Inquiry  short because he is losing control of the official narrative, namely, the scandal is about News Corp and there is  nothing else of consequence, or  has decided to do so without being told because he understands he cannot control the Inquiry in the way he knows the Government would wish.

What would be lost if the Inquiry is shortened? 

If  Part 2 is  either dropped or seriously curtailed it would not only prevent further public questioning under oath of those suspected of having information about the various criminal behaviours,  but would also mean that evidence already submitted about such criminality would never see the light of official day, viz:

‘Lord Justice Leveson’s finding has disappointed Ian Hurst, a former British Army intelligence officer, whose computer was allegedly hacked by the News of the World. In March, Lord Justice Leveson rejected evidence provided by the former spy which claimed to have uncovered “intelligence of police corruption, including that at the very highest level”.

He told Mr Hurst the subject matter would be suited to Part Two as it would entail “lengthy and time-consuming analysis of the very considerable detail”.

However, the evidence will never be publicly-disclosed if, as expected, the inquiry wraps up early in July.”’ (http://www.thisislondon.co.uk/news/uk/leveson-phone-hacking-inquiry-could-be-cut-short-7706894.html).

What has prompted Leveson to act now?

Why has  Leveson acted in this manner now? The most likely explanation is that Inquiry has been creeping ever closer to seriously damaging evidence which could lead to senior politicians,  leading Tory politicians up to and including  Cameron himself.   In addition,  just by its terms of reference  Part 2 of the Inquiry has the potential to be much more damaging than Part 1. Here is its remit:

“3. To inquire into the extent of unlawful or improper conduct within News International, other newspaper organisations and, as appropriate, other organisations within the media, and by those responsible for holding personal data.

4. To inquire into the way in which any relevant police force investigated allegations or evidence of unlawful conduct by persons within or connected with News International, the review by the Metropolitan Police of their initial investigation, and the conduct of the prosecuting authorities.

5. To inquire into the extent to which the police received corrupt payments or other inducements, or were otherwise complicit in such misconduct or in suppressing its proper investigation, and how this was allowed to happen.

6. To inquire into the extent of corporate governance and management failures at News International and other newspaper organisations, and the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International

7. In the light of these inquiries, to consider the implications for the relationships between newspaper organisations and the police, prosecuting authorities, and relevant regulatory bodies – and to recommend what actions, if any, should be taken.”  (http://www.levesoninquiry.org.uk/about/terms-of-reference/).

Apart from the potential danger to politicians and  police officers contained in the remit,  the concentration on News  International stands out.   They might be the obvious target in the case of phone hacking because of the evidence which came out before the Inquiry began, but there is no reason to believe they would be any more likely than any other press publisher engaged in similar journalism to have bribed police, politicians or public servants  or corrupted them in other ways. It is clear that the narrative  the Inquiry is meant to portray the  News International and Murdochs are the font of all serious press evil  with no other press group being put in a position of serious difficulty.  

Politicians and Judges

A senior judge is above political direction or collusion you say?  Sadly no. To begin with there is no proper separation of powers in Britain between the executive and the judiciary. British politicians have their hands on the justice system in a very intimate way. Three members of the government act as law officers – the Secretary of State for Justice now (combined with the office of  Lord Chancellor) who sits in the cabinet;  the Attorney-General (who on occasion attends cabinet meetings) and  the Solicitor-General have considerable influence on the operation of the  justice system in England and Wales, including  in the case of the Lord Chancellor,  the oversight of judges’  behaviour and roles in the appointment of judges and the dismissal of all but the most senior judges, despite   these powers being reduced substantially by the Constitutional Reform Act 2005 (http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-03792.pdf).

To these very direct hands on the justice tiller is added the fact that Parliament – both Lords and Commons – is heavily littered with lawyers, most  of them barristers with a good sprinkling of  QCs.    This is important because the  legal world from which judges are drawn is a very small one. The vast majority of judges were barristers before their elevation  (the most senior judges are all barristers) and they are in practice drawn from a pool of just a few thousand .  There are around  15,000 barristers working in the UK, but  only a thousand or two at any one time would possess  the experience  to have even a theoretical chance of being appointed  to the bench at any level (http://www.chambersstudent.co.uk/Articles/197) .  The  upshot  is that judges, and especially senior judges, will almost certainly know  socially many of the barristers in Parliament and will quite probably have  had a social relationship with one or more of the Government’s law officers.   The re is a fair chance they will have  also  have socialised  with politicians who are not lawyers.  Moreover, a senior judge  will almost certainly  have  a sense of unconscious class solidarity with Government ministers because judges and politicians often  share a broadly similar social background.  This social familiarity provides any government  with ample  opportunity to  appoint someone who is judged to be  well enough  known to members of the Government  for them to be sure in their own minds that  someone appointed to an official Inquiry will  not do anything to rock the establishment boat .

There is also the normal human response to the powerful in play.  Powerful men do not have to spell out what they want done. Often  circumstances can be relied on to suggest what behaviour is required of those subordinate to him. Where the circumstantial prod is deemed insufficient by the powerful, they will let their views be known either by stating them publicly or through intermediaries.

All these forces acting on a  judge appointed to a public inquiry will almost invariably ensure that whatever evidence comes out the conclusions drawn by the Inquiry it will be favourable to the Government’s position –  provided the government which commissioned it is still in power  when the Inquiry  report  is published. The Hutton Inquiry into Dr David Kelly’s death  is a prime example of how an Inquiry can come to conclusions which are utterly at odds with the available evidence.   The Inquiry  unearthed much which  suggested an unnatural death,  but produced a report which concluded exactly what the Blair Government wanted it to conclude, namely, that Kelly had committed suicide.

Why has Leveson failed to do what Cameron expected him to do?

If Leveson was committed to controlling the Inquiry to protect politicians (and possibly senior police officers) why has he failed to be successful to the extent that the Inquiry itself is in danger of  being closed down early?  The answer is simple: the Inquiry became impossible to control because  Cameron  and  those  politically close to him were too closely wound into the News International story.  Because of that the remit of Part 2  of the Inquiry holds  considerable dangers for senior Tory politicians. Suppose, for example, Ian Hurst’s evidence showed senior police officers engaged in not only run-of-the-mill corruption but also political interference in police investigations of  News International.

Leveson and his lawyers have certainly done their level best  to ensure that they have created no  really serious trouble for national politicians,  press owners  and their senior employees, not even for News International and the Murdochs.    The questioning has been  so feeble  and generally incompetent that it is difficult to believe that it has not been so on purpose – see (http://livinginamadhouse.wordpress.com/2012/02/29/leveson-inquiry-the-killer-question-robert-jay-qc-is-not-asking/). There has been sleaze unearthed and embarrassment  generated for politicians and journalists,  but to date nothing which might lead to criminal charges has emerged during the Inquiry. (Mediafolk have been arrested during the Inquiry’s existence  but not as a consequence  evidence unearthed by the Inquiry).  To this general ineptitude can be added the  blatant concentration on News International and the Murdochs to the virtual exclusion of the rest of the British national press.

To what is publicly obvious I can add my own experience of  just how determined Leveson is to not go  beyond News International  when it comes to revealing serious press abuse.   I supplied  the Inquiry with  evidence of  serious misbehaviour by  politicians, the press and the Metropolitan Police. (http://livinginamadhouse.wordpress.com/2011/11/25/the-leveson-inquiry-the-blairs-the-mirror-the-police-and-me/). All of  this  falls objectively within the remit of the Inquiry.

The misbehaviour included at hate campaign against me by the media generally in 1995;  a severe libelling of me  by the Mirror in 1997 in a story linking me with the Blairs to which I was given no chance to answer (http://livinginamadhouse.wordpress.com/2010/10/26/when-tony-and-cherie-blair-tried-to-have-me-jailed/);    plentiful evidence of the wilful refusal of the PCC to investigate cast-iron and most serious complaints and collusion between the press and politicians to suppress stories (http://livinginamadhouse.wordpress.com/2012/05/03/leveson-inquiry-politicians-and-the-press/).

Amongst the evidence  I sent to the  Inquiry was a letter sent  by Piers Morgan to the PCC when he was Mirror editor (http://livinginamadhouse.wordpress.com/2011/12/20/piers-morgan-lied-to-the-leveson-inquiry/).  In the letter he admitted receiving information (about me) from a police officer in circumstances which can only have been illegal, viz: “The police source of our article (whose identity we have a moral obligation to protect…”.

Leveson both  failed to question Morgan about the letter when he gave  evidence  and refused  to investigate the matter when I pressed the Inquiry to do so after the failure to put the letter to Morgan (http://livinginamadhouse.wordpress.com/2012/02/17/leveson-inquiry-wanted-people-who-have-had-their-evidence-ignored/).

Despite the general strength of the evidence I supplied,  Leveson refused  not only my application to be a Core Participant, but has also failed to  use me as a witness or utilise in any way  the evidence I have supplied .

Leveson’s   utter determination not to let the Inquiry stray from the narrow  narrative concentrating on  News International  to the exclusion of other parts of the press  is shown by his cavalier  behaviour when I applied to be a Core Participant  – this would have allowed me not only to give evidence but, amongst other things,  become involved in what questions were asked of witnesses under oath.

I was asked to provide details reasons why I should be a Core Participant (http://livinginamadhouse.wordpress.com/2012/01/27/leveson-inquiry-robert-hendersons-application-for-core-participant-status/).    At the Directions Hearing  which dealt with my application Leveson announced that he had not read my submission and would not be doing so, but, rather, he  would make his decision based on what I could say in  five minutes. I did this and my application was  turned down in the most peremptory fashion at the end of the Directions Hearing.  I never received any  written reasons for the refusal. (http://livinginamadhouse.wordpress.com/2012/01/11/leveson-inquiry-the-response-to-robert-hendersons-application-to-be-a-core-participant-2/)

Why did Cameron set up the Inquiry?

Bearing in mind the close relationship Cameron and other  Tory politicians had with News International it might be thought more than  a little strange that Cameron set up the Inquiry.  He could have  quite legitimately refused an inquiry on the grounds that there was a massive and ever growing police investigation into the relationship between the police, politicians and the press and a public inquiry would jeopardise this.

As with every other government instituted inquiry, Cameron probably  imagined he could control the outcome by choosing a judge who could replied on not to come to any disagreeable (for the government or any member of it) conclusions and  by designing the remit of the Inquiry to steer it away  from anything which might embarrass (or worse) himself ,  his ministers or his party.  But even if Cameron thought he could control the Inquiry this could be post facto wishful thing because there  is good circumstantial evidence that he was panicked into setting up the Inquiry.

On  5 July 2011 the police released details of those whose phones may have been hacked, including  9/11 victims and relatives and the murdered teenager Millie Dowler  after she had been reported missing and before her body was found.  (http://www.telegraph.co.uk/finance/newsbysector/mediatechnologyandtelecoms/8619373/News-of-the-World-bereaved-relatives-of-77-victims-had-phones-hacked.html).   The general public had not been tremendously exercised by the phone-hacking up to that point, seeing it  as a parade of celebrities  whose lives were normally on public view.  Come the revelation that the practice had extended to “ordinary people” – and in particular to the Millie Dowler case – public outrage was created.

This alone might not have  panicked Cameron into setting up an Inquiry, but his  reckless employment of a one-time News of the World editor Andy Coulson as his  director of communications brought the question of press misbehaviour and phone-hacking in particular uncomfortably close . Coulson  was arrested in connection with phone-hacking  in July  2011. (http://www.bbc.co.uk/news/uk-11195407).  He was not  charged (and has  not been charged)  in relation to any  phone-hacking,  but his arrest  was enough to persuade Cameron to set up the  Inquiry.  Coulson was arrested on 8 July (http://www.dailymail.co.uk/news/article-2012540/ANDY-COULSON-ARRESTED-Camerons-ex-aide-quizzed-phone-hacking.html ) and the Inquiry announced on  13 July http://www.levesoninquiry.org.uk/).

As the extract  from the Inquiry’s remit quoted above shows,  the Inquiry was clearly intended to be directed at  News International and nothing else.  This was a colossal   blunder from Cameron’s point of view. He did not take properly into account the extent to which he and other senior Tories had been compromising themselves by their closeness to Murdoch and other senior News International and News Corps figures. This may have been to some extent through ignorance of what his fellow  Tory politicians had been up to on Cameron’s part, but his own  very close relations with News International should have been enough to set the alarm bells ringing in his head.

The problem for  Cameron is that he , along with the rest of the Tory hierarchy, were and are in a Mexican stand-off  with News Corp generally  and the Murdochs in particular. The latter have presided over newspapers which have  engaged in highly  immoral and,  in some instances ,  serious criminal behaviour.  Against this News  Corp and the Murdochs in particular will have a good deal of information about Cameron and other leading Tories which at best could be very embarrassing and at worse point to criminal collusion.

That Cameron (and those close to him) could not see the dangers suggests either a disconcerting  obtuseness on his part  or a monumental arrogance which persuaded him that , regardless of any  unpalatable facts  which might come out, the Inquiry could be controlled by the Government.  He may have been misled by the experience of the Hutton Inquiry, but if so he was remarkably naïve.   There is a great deal of difference between his and his government’s position and that of  Blair at the time of David Kelly’s death.  Cameron does not have a healthy Commons majority;   he is hamstrung by being in coalition which makes him look weak and hypocritical; the economic times are radically worse now and the country is already weary and increasingly contemptuous  of him after two short years.

Even if Part 2 of the Inquiry does not take place it will not get solve  Cameron problems.  Part 1 still has the capacity to bring a good deal of damaging material into the public fold, not only from the Inquiry but generally as the Inquiry and the response to what it uncovers prompts other information to be given public prominence  .  Yesterday (9 May) an updated biography  of Cameron  revealed that he had sent one time NoW editor and News International chief executive Rebekah Brooks a supportive text two days before she resigned from News International (http://www.telegraph.co.uk/news/politics/9253633/David-Cameron-sent-supportive-text-to-Rebekah-Brooks-biography-reveals.html).  This morning (10 May)  stories  appeared showing that Andy Coulson  attended meetings which required high security vetting which Coulson did not possess. (http://www.telegraph.co.uk/news/uknews/leveson-inquiry/9256111/Government-admits-Andy-Coulson-attended-high-level-security-briefings.html)  and the failure of Cameron to declare  two meetings with Rebekah Brooks days after Andy Coulson quit his No 10 post (http://www.telegraph.co.uk/news/uknews/phone-hacking/9255030/David-Cameron-failed-to-declare-meeting-with-Rebekah-Brooks-two-days-after-Andy-Coulson-quit.html)

The cancelling of Part 2 would of itself create a scandal in the public mind because the natural conclusion for any disinterested party to draw would be that it has been done simply to protect Cameron and other senior Tories.  That would increase the  already considerable contempt in which politicians are generally held and the dislike and  anger at the performance of the Coalition. However, that would not mean either a change of Prime Minister or an early election.

The only things going for Cameron  are the fact that the LibDems are largely silenced on the matter by their  position in the Coalition and their dire position in the polls; Labour’s own considerable involvement with News International  makes attack by them on the Tories on the subject of Murdoch  very difficult and the general reluctance of by  Labour and LibDems to go into another election soon because of the poor state of their party finances.  Because of these considerations it is likely that if  nothing  utterly damning about the relationship between News International,  the police and  Cameron and other senior Tories comes out the Coalition will stagger on for a year or two even if the Inquiry is cut off at the knees.

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