The Consultation was launched on 1 November 2016 and sought views from the public on “the different options for commencement of section 40 of the Crime and Courts Act 2013” and “whether proceeding with Part 2 of the [Leveson] Inquiry is still appropriate, proportionate and in the public interest”.
In their Statement of Facts and Grounds, the claimants (Jaqueline Hames, Byline Media Holdings Limited and HJK), contend that that the Consultation is misleading and unbalanced in fundamental ways which render it plainly unfair. It is said that it omits or misstates plainly relevant information, and fails to acknowledge Government promises. Further, it is said that it is not properly open to the Government to consult on failing to proceed with Leveson 2 as this option would be unlawful [5].
The Statement of Facts and Grounds set out the detailed factual background, covering the establishment of the Leveson Inquiry, its recommendations, their implementation, the newspaper industry’s own proposals and the Government’s change of position ([6] to [38]).
In relation to section 40 of the Crime and Courts Act 2013, the letter identifies five fundamental flaws in the Government’s approach ([54] to [62])
- It begins from the assumption that the Government has not taken any decision as to whether section 40 should be commenced, ignoring the fact that the section was enacted following a judicial inquiry and a cross party agreement. The Government’s position was as stated by the Prime Minister in Parliament; the debate on the new regulatory system (including the need for section 40) had concluded, and it was now up to the press to “get on and make this new system work’.
- The Consultation fails to mention the numerous assurances made by Government ministers that section 40 would be brought into force.
- A failure to recognize the legitimate expectations of the victims of press abuse, notwithstanding the fact that this was the central justification for the new regulatory system.
- There is a striking lack of balance in presenting arguments “for” and “against” the implementation of section 40. The Consultation fails to mention important arguments in favour of commencement – including the interests of victims of and the Press Recognition Panel’s independent view.
In relation to Leveson Part 2, it is said that this is presented in way which is flawed:
- The Consultation fails to mention that the Government has repeatedly promised to complete Leveson Part 2 so again does not acknowledge that it has made a decision to resile from its previous position.
- The Consultation only gives one side of the argument – not mentioning a single reason for continuing with Leveson 2. There are substantial reasons for continuing with the Inquiry, including the Governments promises, the fact that no detailed investigation has taken place into the cover up of phone hacking, the absence of investigation into the unhealthy relationships between press and police and the concerns of victims.
- The Consultation is clearly biased in several respects in including
- The implication that police investigations are a substitute for the Inquiry
- A failure to address the fact that police investigations were not thought to be a substitute for Leveson Part 2 when the Inquiry was set up and nothing has changed.
- It does not acknowledge the view that the size of the police investigations reinforces the need for a systematic examination of improper conduct by newspapers
- It does not acknowledge the way in which Leveson Part 1 was circumscribed by the continuing police investigations.
- It fails to mention that IPSO does not comply with the Leveson recommendations.
The Statement of Facts and Grounds gives a number of further examples of unfair presentation of the facts and lack of balance in the Consultation Paper.
It concludes by contending that the Consultation Paper wholly fails to meet basic standards of fairness and balance and suggests that there is some further motive behind the Government’s actions (for example, wishing to maintain good relations with the press).
The Claimants argue that they have a substantive legitimate expectation that Leveson Part 2 will proceed. This is based on unequivocal commitments given by the Prime Minister in 2012.
Now that the Claim Form has been served it seems unlikely that Government will act on the Consultation until the claim has been determined by the Court.
The procedure for dealing with this claim is set out in Part 54 of the Civil Procedure Rules:
- The defendants must serve an “acknowledgment of service” setting out a summary of their grounds for contesting the claim (CPR 54.8(4)).
- A single Judge will then consider whether to give the Claimants permission to proceed with the claim. This is likely to happen within a few weeks.
- If permission is given, the Court will give directions for a hearing of the claim and the Defendants must serve full grounds for contesting the claim within 35 days (CPR 54.14)
- The claim will then be heard by a judge of the Administrative Court. The date of this hearing will depend on the directions given by the Court. It is likely to take place in the first half of 2017.