John McLellan: Press law proposal is a charade

The government seems to be under the mistaken impression the Leveson Inquiry itself was a consultation with the industry. Picture: PA

We all know governments have an uncanny ability to waste time and public money, so this week’s decision to forge ahead with a politically-driven system of press regulation should come as no surprise.

Why is it a waste of time? Because the publishing industry will not sign up to the system the government wishes to create and there is nothing to force them to do so. Yet.

Why is it a waste of money? Because a robust and tough system of press regulation is already ready for introduction, funded entirely by the industry.

I know from more than three years as a Press Complaints Commissioner that the new system bears little resemblance to the old PCC. The successful complaints handling function will remain, but there is so much more to the new Independent Press Standards Organisation which will replace it – far greater independence from the industry, a pro-active investigations arm and the ability to impose fines of up to £1 million.

And let no-one be under any illusion this is all just a sop to public opinion. It has been very hard for most of the industry to swallow and what a few years ago would have been viewed as unacceptable, are corner-stones of the industry’s proposal.

To borrow from the Prime Minister’s ignominious retreat over Syria, we get it.

But neither should anyone be fooled by the politicians and their celebrity chums that Westminster’s plan to impose its own controls on newspapers and magazines represents anything other than state intervention in what, until now, has been the relatively free British press.

Don’t forget that even without state regulation, journalists are not beyond the law. The Bribery Act, Regulation of Investigative Powers Act, Data Protection Act, Contempt of Court Act and the Official Secrets Act all apply to us.

At the heart of this dispute is the new ability for politicians – either in Whitehall or Holyrood – to vote through changes to the way publications operate in their totality without consulting the industry. And we know they don’t feel the need to consult as the plans pushed through the Privy Council this week were constructed without any direct reference to publishers.

Similarly, the industry’s own proposals were dismissed without so much as a by-your-leave. With astounding arrogance, the government’s view is that the Leveson Inquiry itself was the consultation and there is therefore no further need to take any representations from those it seeks to control. If that’s not high-handed and autocratic I don’t know what is.

This week’s events have only added to the sense of a political stitch-up. In a complex series of legal moves, the industry first sought a judicial review of the way in which the decision to throw out its proposals was handled and to question the UK government’s plan to go ahead with its own scheme.

Then, when it was clear a small group of Privy Councillors – four of them, led by Culture Secretary Maria Miller – would be pressing ahead on Wednesday, an injunction was sought to create the time for a proper application for a judicial review to be heard.

What happened next poses some serious questions. The injunction application was heard by two judges, both of whom were former senior government officials.

First of all they decided to deal with the entire judicial review application without any notice.

Secondly, after only one morning’s submissions over something as fundamental to an open society as a free press they threw out both the injunction and judicial review applications after only 15 minutes.

Thirdly, after only that amount of time they were able to produce a written ruling running to 3,000 words. This article runs to about 1,000 words and I can tell you it took me a lot longer than 15 minutes to write.

The decision to reject the judicial review will now go to appeal and we can only hope the process at least is far more satisfactory.

So where does all this leave us? The Privy Council has put the Queen in the ridiculous position of giving approval to political control of the press by the back door, a system to which few, if any, will adhere.

Just because there is a Royal Charter doesn’t mean you have to sign; the Institute of Journalists was approved by Royal Charter in 1890, but in my time at Scotsman Publications I don’t recall any journalist working there being a member.

There are a number of questions which only Maria Miller can answer: Who is going to set up this new government system? Who is going to join an organisation with no members or customers? Who is going to pay for it? My guess is the answers will be: civil servants, no-one, and the tax-payer.

Is the tax-payer going to welcome the prospect of footing the bill? Is the government going to pass laws forcing not just to join but to pay? It’s political dynamite. And there are problems in Scotland.

The UK government is insisting on a compulsory system of arbitration to reduce expensive defamation cases, and it has to be said there are some in Fleet Street who see an advantage in that. But the Scottish Government is equally insistent that any arbitration system should be voluntary and the Scottish Newspaper Society supports it in that. The carrot for arbitration is the avoidance of exemplary damages which do not exist under Scots law. And in any case, there are very few defamation cases in Scotland.

The danger is that an arbitration system will open up publishers to spurious cash claims for every small inaccuracy, damaging or not.

And I know from my time as an editor such claims will not be few and far between. Thanks to marketing-savvy lawyers, everyone believes where there’s blame there’s a claim.

For now, we in the publishing industry will press ahead with setting up our system, which we will fund to the tune of £2.5m a year.

Through an independent appointments panel, a separate funding company and a regulator without any serving industry figures, it will be fast, fair, free, and tough.

The government would do well to follow the advice of John Whittingdale MP, chair of the culture, media and sport select committee, and get round the table with the press to thrash out a mutually acceptable solution.

If politicians can do so with our opponents, as they infamously did over cozy late-night pizzas, they can do so with us.

• John McLellan is director of the Scottish Newspaper Society and a former editor of The Scotsman