Lord McCluskey: Pressing need to set record straight

By LORD MCCLUSKEY
Published on 22/03/2013 00:00

Misinformation about the report of the Expert Group on press regulation needs cleared up, writes Lord McCluskey

Brian Wilson’s article in this newspaper on Wednesday (“Salmond hoist by his own petard”) is inaccurate in three important respects.

The First Minister did not want the McCluskey Report to be “rushed out” last Friday. The decision to publish the report then was taken unanimously by the members of the Expert Group, not by Mr Salmond. We asked officials to tell him that we intended to publish on 15 March. Through officials, he asked us to delay publication until the end of the month. We refused because we had completed our work. The First Minister then telephoned me personally on Wednesday 13 March and again asked if we would delay publication until 25 March, as he understood that the London talks were making progress. I declined to authorise any delay, as our decision was clear and unanimous: incidentally we had not been invited to take part in the London discussions. The First Minister reluctantly accepted our decision recognising that we were an independent expert group and the decision was for us to make.

The second misleading error in the article is the suggestion that the First Minister set up the Expert Group because of his view that the Scottish press should be subjected to a fundamentally different form of regulation from the rest of the UK. That is simply not true. The reason why it was essential for the Scottish Government to obtain separate Scottish expert advice was that Lord Justice Leveson himself said so in Vol I, page 49 of his report. Leveson was right, because, as he acknowledged, Scots law differed from English law in several vital respects. In particular, the “carrots and sticks” that he suggested as inducements for publishers to subscribe to the proposed regulatory system were not available in Scots Law. There was no suggestion or hint to us from the First Minister, or anyone else, that we should recommend a separate, different Scottish system for press regulation. Nor did we do so.

We said expressly that the legal differences did not make it necessary to have different regulatory frameworks for different parts of the UK. We added, however, that, “If the London negotiations fail to produce the necessary statutory underpinning for a Leveson-compliant Regulatory Body, then Scottish Ministers may consider introducing legislation separately to ensure that those resident in Scotland can be adequately protected from abuse of the kind that the (Leveson) Inquiry identified and examined.” Incidentally, the press abuses affected many resident in Scotland, not all well-known victims. Perhaps the most disgraceful example was the treatment by the Glasgow Herald newspaper of the Watson family after the murder of their young daughter, Diane, in 1991: Leveson refers to it only briefly.

The third error is the assertion that the Expert Group recommended that the new regulatory system required “compulsory registration and regulation of every significant publisher of news, both in print and online”. On the contrary, we reached the view that Leveson’s hope – that “all significant news publishers” would voluntarily sign up to regulation – was unrealistically optimistic, not least because some had already stated publicly that they would not “register” with the new body.

So we suggested that the better way to achieve what Leveson recommended, namely coverage of “all significant publishers”, was to follow the normal legislative method, illustrated by the Contempt of Court Act, or even the Road Traffic Acts. That method is (1) to identify the behaviour that is to be curbed; (2) to make it unlawful for certain persons to engage in that behaviour; (3) to specify the persons or bodies that are prohibited from engaging in that behaviour. In the case of the Contempt of Court Act, the rules are against prejudicing the administration of justice; they apply to “publications”, in whatever form, addressed to the public. In the Road Traffic Acts, the rules apply to those who drive motor vehicles on public roads.

Because we believed that the Leveson voluntary “opt in/opt out” system would not work, we recommended that the better course was enact a general law (1) to make it effectively unlawful to breach the Editors’ Code of Standards, and (2) to impose on “news-related publishers” a legal duty to observe that Code. The Editors’ Code is devised by the newspaper Editors themselves. The new Code is to be the same as the old Press Complaints Commission Code.

The defining of “news-related publishers” for this purpose is difficult. So we gave examples of how it was done in other countries, including Ireland. In our draft Bill we adopted virtually the Department of Culture, Media and Sport definition that now appears in the agreed draft Royal Charter, but we made it absolutely clear that it was for the legislature, not us, to decide how wide or narrow the definition should be. So there is no question of “compulsory registration” as Brian Wilson maintains. Nor is it “just a question of semantics” as the editor of this newspaper, Ian Stewart, described it to me personally.

The point can be illustrated by looking at the regulation of complaints against practising lawyers enacted by the Scottish Parliament. Parliament decided there should be a new system for dealing with complaints, a system that the public could have faith in. So Parliament created a new independent system applicable to all lawyers. Practising lawyers can’t opt out. They all have to pay the cost of running it.

The new press regulatory system that Leveson – and we – recommended is effectively a complaints system to replace the one operated by the failed Press Complaints Commission. Why should press publishers notoriously guilty of atrocious behaviour have the right to opt out of a system that applies a Code written by the press themselves?

It was not the McCluskey Report that said the new system should be “compulsory”: it was the Prime Minister, David Cameron, who said, on oath, to Leveson on 13 June 2012: “What we actually have to deliver is that it is compulsory and has all those things that I said [ie independence, penalties, compulsion, toughness, public confidence and all the rest of it]”

• Lord John McCluskey is a former Senator of the College of Justice and chaired the Expert Group on the Leveson Report in Scotland, which was set up by the Scottish Government