Hacking at Justice

Hacking at Justice

By Dr Karl Mackie CBE, Mediator and Chief Executive, CEDR

Yesterday British Prime Minister, David Cameron, announced the launch of a Public Inquiry into the phone hacking scandal that has engulfed News Corp, having already claimed one sizeable scalp in a national newspaper; the News of the World. The Inquiry is however not going to sit in public – until after the criminal investigations have been resolved into the allegedly nefarious goings-on at the News of the World, in the police and the activity of the main players. Yet this scandal is not new. In reality these rumblings and mutterings of clandestine figures in darkened rooms listening in to the personal messages of the victims of atrocities and celebrities were being discussed in the corridors of Whitehall as early as 2003, when Prince Williams unreported knee injury was given an exclusive in the News of the World and suspicions were raised around the security of royal communications.

The proposed inquiry is to be modelled on the 2003 Hutton Inquiry into the death of David Kelly, and directed under the 2005 Inquiries act.  It appears that under the scrutiny of ‘Joe Public’ and the press and with the closest of attention from politicians, that the Government have decided on a wide scope for this Inquiry, and appointed Lord Justice Leveson to set the terms of reference for it.

This is not to be just an inquiry into phone hacking.  In the wake of the allegations of corruption and further political scandal seeping out of News Corp as the drawstrings tighten around them, it will take the opportunity to look at the relationship between the media and police, in addition to the media and politicians.  Indeed even those at the highest offices of government could be affected through the scandal; speculation about whether Gordon Brown and Tony Blair will be asked to take the stand to give evidence is growing.  There is also the question of the impact on the lives of those who were subject to hacking, as well as national security and criminal law questions.

One cannot underestimate the power of the media in the construction of an inquiry, and many inquiries appear to have been initiated through the newspapers themselves.  It is fitting then that reporting from media outlets such as the Guardian and BBC on the alleged scandal has led to the initiation of this new Inquiry, but we must remember that whilst newspapers might be thought to mislead, they are in their conception intended as a representation of their readers views and therefore public opinion, not the other way around despite what some might argue.

Having a process fit for purpose

CEDR is currently looking at the process of public inquiries and asking whether we, as specialists in the development of processes that facilitate better and effective dialogue, might have an opportunity to run the process differently and more efficiently?  Timing plays an important role in this.  Once the terms of reference have been set down, there is an understandable reluctance to go back and change them as it is potentially more taxpayers money spent, which is something that politicians have been keen to keep to a minimum, particularly since the financial cost of the long-running Bloody Sunday Inquiry emerged.  This is key as the nature of an inquiry is a reactive force; it is in response to events and is a mechanism with which to investigate whilst appeasing public dissent or discontent.

To this extent, if an inquiry is set up to meet the needs of the public, where will these interests be addressed in the process?  Having appointed a Judge to lead, and following the same model as the Hutton Inquiry, it appears that our political leaders are intending to run the inquiry as a quasi-trial, seeking to apportion responsibility and make recommendations to ensure this does not happen again.  Whilst these are important and do represent some of the needs expressed by public opinion, a mediator could suggest that there was more room for dialogue between those who have been affected by the actions and those who acted them out, between the media’s victims, the media, the police and the political class as well as the public.

Those familiar with the mediation process know there are effective ways of addressing the needs of the different groups of people other than those traditional mechanisms, specifically using the tools and skills of a neutral to facilitate on-going discussions.  Similar to the approach taken by CEDR’s Commission on Settlement in International Arbitration, the development of Alternative Dispute Resolution processes within the design, implementation and execution stages of public inquiries could hold great value in actually addressing the needs of those people affected by the hacking or other public scandals.  This could work alongside an inquiry or as a prelude to formal evidence.

Recently CEDR has gathered a group of senior figures who have been involved in the setting-up and carrying-out of a raft of different inquiries.  With this interested group we will track this newly established Inquiry into phone hacking, with the intention of considering whether the process of public inquiries is capable of evolving into a more sophisticated process that can engage with the many layers of complexity in such a landscape.

[To find out more about the CEDR Inquiry into Public Inquiries please email Daniel Kershen, CEDR Foundation Project Co-ordinator; dkershen@cedr.com.]

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