Black smoke from No10 on Thursday, as it was confirmed that the cross-party talks on press regulation with the leaders had broken down. But simultaneous white smoke from the group set up by the Scottish Government, after cross-party consultation, to look at how the Leveson Inquiry recommendations might play out in Scotland.
Set up under the chairmanship of former solicitor-general Lord McCluskey, it included two other prominent lawyers, media specialist Professor Peter Watson and constitutional expert Professor Neil Walker. Sitting with them were two journalists, myself and David Sinclair, a former president of the National Union of Journalists, now with Victim Support Scotland.
Our three-month timescale was challenging enough, but became even more so with the welter of post-Leveson developments. Hacked Off, the pressure group representing the victims of journalistic malpractice, produced a draft Leveson bill. The UK Labour Party also issued a draft bill, as did the Department of Culture Media and Sport.
Meanwhile, amendments were hastily added to three pre-existing bills in the Lords in an attempt to embed the main Leveson proposals and spook the government. The fog of war over who should regulate whom and how was becoming ever more dense.
Finally, there was a new UK Department of Culture Media and Sport (DCMS) proposal that instead of the statutory underpinning advised by Lord Leveson as a necessary backstop, there might be a Royal Charter, administered by Privy Councillors.
Confused? We might well have been! But Lord McCluskey was clear we could come up with workable proposals provided we stuck to our brief, as determined by Leveson’s report. That inquiry had, after all, exhaustively interviewed all interested parties over very many months.
And Leveson’s report favoured a new regulatory body constructed by the industry but with majority membership outside it, designed to produce a replacement for the widely discredited Press Complaints Commission, which had signally failed to stop abuses such as phone hacking.
Leveson repeatedly asserted that the body had to be free of political interference. His summary emphasises the importance of a free press “as the guardian of the interests of the public, as a critical witness to events and a standard bearer for those who have no-one else to speak up for them”.
Our group said a loud amen to that: “We wish to make it absolutely clear that we share the Leveson view that a free, independent press is a vitally important feature of democracy.”
We also shared Leveson’s bemusement at various commentators and politicians suggesting his proposals meant the end of civilisation as we knew it: an attempt to have parliament oversee press activities. As he noted: “Not a single witness has proposed that the government or parliament should be able to step in to prevent the publication of anything whatsoever … I have not contemplated and do not make any such proposal.”
However, as the legendary editor Sir Harry Evans was to observe, that didn’t stop Leveson being the subject of “gross misrepresentation”.
The “statutory underpinning” Leveson did favour was more of a long stop to ensure the new body stuck to its brief, legislating for a recognition body, whose job would be to take a periodic look at the regulators to ensure they stayed “Leveson compliant”. We accepted that, but again emphasised: “Neither its membership nor its functioning are to be subject to government influence.”
Where the McCluskey group did depart from Leveson was that we concluded, from painful recent experience, that voluntary “membership” of the new body just wouldn’t work, no matter how many supposedly seductive carrots or notionally intimidating sticks were deployed.
Instead, we plumped for universal jurisdiction – in much the same way as the press is already universally bound by a variety of laws, including the Contempt of Court Act. As we detail in the report, all our public institutions from the police and judiciary to churches, charities and trade unions are subject to binding rules, a fact of their lives which hasn’t impinged on their independence.
So, we argue for no opting in or out; rather, all news-related publishers being bound by the codes drawn up by an industry-designed regulatory body. To suggest that is tantamount to “licensing” the press is just plain wrong.
The sudden introduction of the Royal Charter option, promoted by Prime Minister David Cameron as a workable compromise, dismissed as a sellout by the Hacked Off campaigners, and viewed with varying degrees of suspicion by Labour and the Liberal Democrats at Westminster, was not something we considered in great detail, given that it played no part in Leveson.
But we do point out that a Royal Charter does not provide the statutory underpinning Leveson envisaged. In essence, a statute has to go through the democratic process; in contrast a charter would be delivered and could be torn up by Privy Counsellors, as one recent culture secretary threatened to do to the BBC variety.
Interestingly, one of the pieces of correspondence unearthed during this process was a lengthy memo from a senior executive at Associated Newspapers to Oliver Letwin, Cameron’s ministerial negotiator, thanking him for a preview of the government’s working drafts, and detailing which bits of the charter he needed to change to keep some proprietors onside. So much for wanting to avoid political collusion.
That episode also underscores one of the Scottish group’s other main observations, namely, that the meaning of press freedom needs interrogated. As sacked editors and journalists have found to their cost over their years, their reporting instincts and the commercial pre-occupations of their proprietors don’t always coincide. That is one reason why we include a recommendation protecting whistleblowers and also journalists being pressured into breaking their industry’s codes of conduct. It’s worth noting in passing that the NUJ favours statutory underpinning, as do many editors.
There are obvious differences in the Scottish legal system that make wholesale acceptance of Leveson impossible, not least over aggravated and exemplary damages. London may be the libel capital of the world, but Edinburgh, assuredly, is not.
These divergencies wouldn’t necessarily prevent a UK-wide regulatory body, but there might have to be a separate recognition body given the different legal emphases and cultures.
Equally, where Leveson talks throughout about the press, we recognise that online publishing, not least the ubiquitous use of social media such as Twitter, means these forms of publishing would need to be part of the reforms.
And, while there is absolutely no suggestion of the press being subject to the same imperative for impartiality as the BBC, the multiplicity of TV channels, some paid for, and the availability of a significant amount of printed press material freely available online, means the old dividing lines between active and passive receipt of news are now completely blurred.
Our report also comes complete with a draft bill on press standards, building on the DCMS variety, though more in the form of a guide to parliamentary drafters of any Scottish legislation.
Those folks in London hyperventilating in advance of Monday’s Westminster debate might like to note its very first line: “The Scottish ministers must, when exercising their functions, have regard to the importance of the right of the press to freedom of expression.”
• Ruth Wishart was a member of the expert group on the Leveson Report in Scotland