Two victims of phone hacking, Jacqui Hames, an individual (“HJK”) protected by anonymity, and investigative journalism website Byline, have brought a claim for Judicial Review against the Government over the recent Leveson consultation exercise the Government has undertaken with respect to a key Leveson-recommended part of the cross-party agreement which guarantees access to justice for victims (“Section 40”) and completion of the Leveson Inquiry (“Leveson Phase Two”).
Commenting, Hacked Off Joint Executive Director Dr Evan Harris said,
“The Government’s decision to capitulate to corporate press interests by failing to commence the agreed section 40 access to justice provision, and backtracking on completing Leveson Phase Two – and then to retrospectively legitimise it through a blatantly biased and misleading consultation – was always going to put the Government on dubious legal grounds.
“The Government’s decision to intervene in the settled will of Parliament in this way, agreed following a lengthy public inquiry, is an injustice to the victims of press abuse and is bad news for responsible journalists who were relying upon the section 40 for protection from “chilling” by rich litigants, so it is no wonder they have sought to challenge it.
“It is even more concerning that the Government have launched this rotten consultation on Leveson Phase Two after a meeting just a few months ago between the new Prime Minister and Rupert Murdoch, the owner of one of the corporations who would be under the spotlight of Leveson Two.
“Meanwhile, Rupert and James Murdoch are seeking to grow their media empire with the proposed Fox acquisition of Sky, and senior executives may now never have to answer for the total failure of corporate governance and management that occurred under James Murdoch’s stewardship of News International, which Leveson Phase Two is due to investigate.”
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Judicial Review Claim: Summary of Grounds
- Claimants are:
- Jacqui Hames, a former police officer and presenter of Crimewatch, a victim of phone hacking, unlawful surveillance and allegedly of police/press corruption. Grounds for her claim include that she was personally promised by the previous Prime Minister that Leveson Phase Two (which would look at corruption between the police and the press) would proceed, and has a legitimate expectation that it would take place.
- Byline, and investigative journalism website. The outlet has a legitimate expectation, after repeated Government commitments, that section 40 of the Crime and Courts Act 2013 would be commenced, which would provide them with new cost protections when defending media claims.
- “HJK”, an anonymous victim of phone hacking who gave evidence at Leveson Part One but whose experiences of press abuse were due to be investigated by Phase Two of the Leveson Inquiry.
- The claimants argue that the current consultation on section 40 and Leveson Part Two is unlawful, because:
- Both section 40 and Leveson Phase Two were previously promised and legitimate expectations were created that they would be proceeded with.
- The consultation document carries such significant biases regarding bith section 40 and Leveson Phase Two, that it cannot reasonably be concluded to carry any other intention than an attempt to validate a subsequent decision of the Government to fail to commence section 40 in full and to cancel Leveson Phase Two.
- The Statement of Facts and Grounds includes several examples of commitments made by the Prime Minister of the time and other representatives of the Government to section 40 and Leveson Part Two.
- The Statement chronicles:
- The announcement of the Leveson Inquiry, to be broken into two parts so that all areas could be properly examined;
- The findings of Leveson Part One about the ineffectual state of press regulation prior to his Report;
- Leveson’s explicit rejection of the “Hunt/Black” blue-print for continued self-regulation [later adopted by much of the press as IPSO];
- The commitment of all party leaders to the Leveson reforms and the signing of the Cross-Party Agreement, which contained section 40 as it became of the Crime and Courts Act 2013;
- The Government’s agreement to withdraw its proposals for delayed commencement of “section 40” so that section 40 could be in force as soon as a first regulator became Recognised;
- Sealing of the Royal Charter with cross-party support;
- The industry’s own failed Royal Charter which did not receive Privy Counsel Seal and the industry’s subsequent persistence with the un-Recognised regulator IPSO;
- The Government’s change of policy in respect of the audited system of regulation, section 40 and Leveson Two, and the fact that such changes were not formally announced;
- The verdict of the Press Recognition Panel in its first State of Recognition Report, that the Government had failed to bring the Leveson system into effect as promised by not commencing section 40.
- The Consultation is unlawful because:
- It is misleading;
- Is factually inaccurate;
- It does not present the information in a fair and balanced manner;
- Omits important information.
- The Consultation in respect of Phase Two of Leveson presents an option which is substantively unlawful (cancellation).
- No reference to the Government’s decisions to resile over previous commitments on this are set out.
- In contrast to suggested reasons for cancellation, not a single reason for continuing Phase Two is given; as such the document is biased.
- A number of plainly available arguments in favour of continuing Leveson Phase Two are omitted.
- A number of the arguments made against Leveson Phase Two in the document are farcical.
- In respect of section 40:
- It presents the decision on s40 commencement as starting as balanced between commencement or non-commencement. This is misleading because the decision had previously been taken to enact s40, following a painstaking judicial inquiry – the recommendation of which was accepted by the Government when the Cross-Party Agreement was signed. Therefore, to be presenting relevant information, the consultation should note that the Government has in fact taken a decision on section 40 and has since reneged on that.
- The consultation does not refer to the extremely relevant fact that the s40 provision had been committed to by the Government on 25 occasions in Parliament. The Government may have changed its policy and decided to renege on its previous commitments, but it is imperative that the consultation should note that fact.
- S40’s introduction is presented as being “at large”, but in reference to R v Secretary of State for the Home Department ex p Fire Brigades Union  2 AC 513, points to the fact that a Minister given the power to appoint a day has to bring legislation into force unless it is appropriate not to do so: Lord Browne-Wilkinson at 551C-D; Lord Lloyd at 570H-571A.
- The consultation document, throughout consideration of various options of commencement, fails to recognise the interests of the victims of press abuse.
- The lack of equal weighting of arguments for and against section 40 commencement.
- In general, and in other places, the consultation document is clearly biased and appears designed to elicit a specific response.
- The claim seeks a declaration of unlawfulness of the consultation and an order quashing the consultation.
The Govt have 21 days from service (December 15th) to respond. That is by 5th January.
That response either says they will not resist the claim, or provide summary grounds for resistance.
They will also say (if the latter) whether they will ignore the Judicial Review* and proceed unaffected or if they will agree not to act on the consultation until the application has been heard.
*if they say they will ignore, claimants may seek an injunction.
A judge will decide “on the papers” whether to give permission.
In a case like this one (where the Government are prevented from acting due to the Judicial Review) an expected hearing (assuming permission is granted) would be early in 2017.
A brief guide to section 40 is available here.
Hacked Off is the campaign for a free and accountable press. The Campaign works with victims of press abuse to achieve those aims.