Its job, under the chairmanship of Lord McCluskey, was to consider the findings and recommendations of the Leveson Report and “accepting the main principles on which those recommendations are made… offer advice and recommendations as to the most appropriate means of achieving such statuary underpinnings in Scotland”.
To some extent, events have already charged on regarding new regulation of the press, leaving the Expert Group behind. The first real test of new proposed press regulation will take place on Monday, when David Cameron will lay before the House of Commons his vision of press regulation underpinned not by law but by a Royal Charter. He personally has called any involvement of politicians in the regulation of the press a “crossing of the Rubicon” and a threat to press freedom that is beyond the pale.
Lord Justice Leveson was of the view that his proposed system of a new body that regulates the press set up by the industry but overseen by a body set up by statute, which would also have targets for the new regulatory body enshrined in that statute, was the creation of an independent regulator in which the terms and conditions of press regulation were not set by politicians.
There is no doubt that the illegal actions of a few journalists have damaged the reputation of the press and there is a genuine public appetite for a system in which the press is held more accountable. It is also true that those illegal actions were the depths, the worst physical embodiment of an arrogance and a hubris that were the hallmarks of the prevailing attitude in larger parts of the press. It had become too powerful. It is a matter of fact that the rights of some individuals were trampled over and it is right that society as a whole puts measures in to place that safeguards individuals’ rights.
There is no point saying those safeguards were in place and we should stay as we are, the fact is that the current safeguards were not sufficient so we need to find ones that are. It is vital to a healthy press, as much as society in general, that the public has broad confidence in the press.
So it is right that Leveson was set up to find a way to redraw that covenant, and the Scottish Government is to be commended for setting up its expert panel to see exactly what issues could arise in its implementation in Scotland.
In particular, Leveson’s incentives for publishers to sign up to the new regulatory body involve aggravated damages being awarded in the courts, and this poses problems under Scots Law.
But in its report yesterday, the McCluskey panel goes well beyond its brief of seeing how Leveson could be introduced here. It comes to the view that Leveson’s proposals are flawed and that it needs to amend them in a massively significant, impractical and costly manner.
It was Leveson’s view that signing up to the new regulatory body had to be voluntary and that “all significant news publishers” would sign up and adhere to the new system. But Lord McCluskey’s panel thinks that Leveson is mistaken and proposes to make adherence to a new system obligatory under statue.
They go further than that, saying that membership of the new regulatory system should not just be compulsory for “significant news publishers” but for “all news-related publishers” and this would include lone bloggers and postings on social media like Twitter.
And they say that if London does not realise Leveson’s error then the Scottish Parliament could go its own way and make it compulsory in Scotland for all publications distributed in Scotland be subject to the jurisdiction of the new Regulatory Body.
It does not say how the regulatory body would, in practice, go about ensuring every tweet complies with the editors’ code of practice, or every blog, but it does give a nod to the fact that it understands the cost implications of such a massive bureaucracy saying “that does not necessarily mean that all who publish for example on-line news blogs must subscribe to the running costs of the regulatory system”.
The clear implication being that the rest of the economically challenged industry will pick up the bill. And although the McCluskey report says it is confident the new regulatory body proposed would be independent of government, it recommends that the commissioner in charge is appointed by Scottish ministers.
There are many issues to be debated on the Leveson proposals, not least the fundamentals of statutory underpinning, the make up of new regulatory body and the incentives and disincentives for publishers and ensuring the public have confidence in the outcome.
The McCluskey report has simply proved itself to be a distraction. The Scottish Government has so far said that discussions will be ongoing. That is to be lauded, and let us hope this report does not form too large a part of the sensible discussions to follow.