It is a delicious irony that the case brought against the government by victims of press misbehaviour is itself based on a covert recording apparently made in a breach of trust and quite possibly the law. In Jefferies and others v Secretary of State for the Home Department  EWHC 3239, Lord Justice Davis and Mr Justice Ouseley yesterday dismissed an attempt to reverse the government's decision not to pursue the second part of Lord Justice Leveson's inquiry into the behaviour of the press, the so-called phone-hacking inquiry.
Leveson part 2, intended to find out 'Who did what, to whom, when?' had been announced in 2011 put on hold pending the outcome of criminal trials. However in March this year, Matt Hancock, then culture secretary, announced that the inquiry would not go ahead. He cited the massive changes in the media landscape since the inquiry's first report in 2012 (which itself was woefully out of date on the impact of the web) and the fact that a 'clear message' had been sent that misconduct by the press, police and public officials would be dealt with robustly. As a result, Leveson 2 was no longer in the public interest, especially on top of the £5.4m spent on part 1.
I agree. The president of the Queen's Bench Division surely has more urgent business than trawling through the history of an industry that even now is utterly transformed from the period in question, however amusing his findings might be. But, understandably enough, victims of unethical and illegal practice by newspaper publishers are upset about losing their day in court. The judicial review was bought by four victims likely to attract public sympathy: Christopher Jefferies, wrongly pilloried for a 2010 murder, Gerry and Kate McCann, appallingly libelled over the disappearance of their daughter Madeleine and Jacqui Hames, a former police officer subject to 'sustained surveillance, harassment and intrusion'.
The claimants argued that, by going back on a promise made by a former prime minister, David Cameron, the government had failed to protect 'legitimate expectations' as defined in public law. They did so, as Davis LJ dryly notes, 'in rather unusual circumstances'. These included the fact that the claimants' legitimate expectations were raised by what they said was a promise given by Cameron at a private meeting organised ahead of the Leveson report's publication by the campaign group Hacked Off.
Opening the meeting, Hacked Off's director Dr Evan Harris assured the prime minister: 'We've made it clear to people that, and to colleagues here, that what is said in this room stays in this room... no verbatim record is being kept and - so we want to speak freely'. We can quote these exact words because, contrary to this assurance, a transcript was made, based on a recording which Harris says he was not aware of being made at the time. In best journalistic tradition, he declined to name his source. Extraordinarily, the government raised no objection to the transcript's admissibility - less from a principled commitment to open government than because it felt the recording supported its interpretation that nothing was promised at the meeting. The judgment goes into some detail of what was said, but in the end rules this irrelevant.
In Davis LJ's words: 'The court should not... as a matter of public law lend itself... to deployment of, let alone enforcement of, statements made on a "what is said in this room stays in this room" basis - indeed to do so would be thoroughly counterproductive and would tend to discourage frank and open discussion (cf. without prejudice discussions between lawyers and litigants).'
Quite so. The judges found 'further insuperable difficulties', indeed that the claim 'fails at almost every level'. But the central point must be that it is absurd to bind a current government to a claimed promise made behind closed doors by a predecesssor. Apart from anything else, if every broken political promise were subject to judicial review, the courts would soon have little time for anything else.