Does Scotland need Leveson-style press regulation?

Rupert Murdoch and Alex Salmond during the opening of News International's Eurocentral printing plant in Motherwell in 2007. Picture: PA
Rupert Murdoch and Alex Salmond during the opening of News International's Eurocentral printing plant in Motherwell in 2007. Picture: PA
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Alex Salmond wants a distinctively Scottish answer to the Leveson Inquiry, but is that possible or desirable?

IT WAS a tale of two leaders. Down at Westminster, an hour and a half after Lord Justice Leveson had offered his withering verdict on the abuses of power by Britain’s printed press, ­David Cameron was reining back. The judge whom he had expressly put in charge to come up with a verdict on how to curb the excesses of Britain’s newspapers had recommended that new regulations be written into law. But to the ­echoes of cheers from newsrooms around the UK, the Prime Minister declared that politicians should not be writing laws on how “free” a free press should be. There would be nothing written into law.

An hour or so later, however, in Edinburgh, Alex Salmond was putting a very different slant on things. Of course the principle of a free press would have to be watched over, said the First Minister. But, he declared: “I am supportive of the conclusions of Lord [Justice] Leveson.” The plans looked like Ireland’s scheme – under which press standards and a watchdog are “recognised” in statute. That, said Salmond, looked like “a good template for the way forward”.

Among Scotland’s legal and journalistic community, cue widespread puzzlement. On the one hand, the Prime Minister, under whose writ the inquiry had been set up, appeared to have ruled out the newspapers’ feared new press law. Wary of the slippery slope – and to the fury of families whose lives had been torn up by the ­tactics of the press – Cameron was now ruling it out. On the other hand, for Scotland, this was not to be the case.

Today, Salmond makes his point unambiguously: the case for a “Scottish solution” is “unarguable”, he declares. And, tipping his hat to Ireland, he looks set to argue the case for a Scottish Press Council and Ombudsman who, as Lord Justice Leveson wanted, would have their powers anchored in law. This weekend, the questions are flooding in. How might a dual system across the UK operate? What about the internet? And in a country whose most popular paper is the Scottish Sun, under whose jurisdiction would ­papers that print in Scotland and England be based anyway?

Above those questions, another set is emerging. For, with Scotland preparing to go to the polls in two years’ time to decide whether or not to back independence, this latest turf war over who controls what ­offers a useful case study on the Big One. On the one hand, is the case for a separate Scottish system, respectful of Scotland’s distinct laws and traditions. On the other is a complex and borderless landscape in which new Scottish-only rules are deemed unnecessary. The ­question remains a ­familiar one for the First Minister: what, exactly, is the point of independence?

The fact that Salmond is in a position to decide on the matter has come about as a result of the way the devolution settlement was enacted. Passed in 1998, the Scotland Act which created the Scottish Parliament was based on a “presumption of competence” – in other words, whatever the act didn’t specifically reserve to Westminster would automatically be for Holyrood to handle. Press laws don’t exist, so press regulation wasn’t mentioned. Consequently, as the law stands, if press regulation legislation were to be introduced, it would presently be for ­Holyrood to do so on Scotland’s behalf, not Westminster (unless Westminster were to get Holyrood’s consent to reserve it – a “snowball in hell’s chance” scenario). “If it had existed in 1998, it might well have been reserved. They reserved broadcasting,” says one figure involved in the 1998 Act. But it didn’t, so it isn’t. (The same principle has seen a series of new medical professions, unknown in 1998 and, therefore, not reserved, automatically devolved to Edinburgh.)

It has thrown Salmond into the hot seat. Leveson’s solution to the abuses of press freedom was to create a new independent body to oversee press standards which would be “underpinned” by legislation. The statute, he said, would enshrine a legal duty on the government to protect a free press. It could give Ofcom, the UK’s communications industry regulator, the job of reassuring people that it was “independent and effective”. And, by enshrining it in law, it would “validate” its code of standards and the new system of arbitration he proposed for complainants.

John Mair, a journalism lecturer at Coventry University, declares: “A new independent self-regulatory [system] for the British press, underpinned by some light-touch regulation from Ofcom, is the perfect solution. This is not a threat to the freedom of the press but a good sense view of the crisis of trust facing it.” Last week, it appeared Salmond agreed. He announced he wanted cross-party talks (although opposition party leaders are so far refusing to meet him, on the grounds he is “tainted” by his dealings with News International). And he proposed handing the matter over to an “Independent Implementation Group”, chaired by a Court of Session judge to examine Leveson’s plans “in the context of Scots law”. He believes that the “compromise” of independent self-regulation, recognised in law, is the way to go.

But the questions over how it would work – especially if the rest of the UK decides not to go down that path – are multiplying. The legal difficulties are already being pored over. Scott Milne, managing partner of Thornton’s law practice in Dundee, said he supported Leveson’s plans. “We are experiencing a wholesale correction in standards of conduct which is probably long overdue and very welcome to ensure the long-term protection of press freedom.” But on the idea that the UK could have two different standards, he added: “I can’t see how two systems could work effectively. This would apply to the printed media and electronic media. Something written in England might pass muster but not up here. How do you do that? You can’t draw a line on the internet at Berwick.”

Media lawyer Campbell Deane notes that the growing online readership of the press creates major difficulties. “If an individual in England reading a piece online wished to pursue The Scotsman or the Herald in relation to the arbitration system would they be prohibited from doing that in England?” he asks. There is also the question of the status of London-based titles such as the Times, Telegraph and Daily Mail which have Scottish editions. In Ireland, those titles, which operate as Irish subsidiary companies, have signed up to the Irish system and operate accordingly with those rules. But would the same be possible here for titles which remain much more strongly linked to their London editions?

Angus MacLeod, editor of the Scottish edition of the Times has a specific query: “In the case of the Times, five nights a week we are printed at Eurocentral [in North Lanarkshire]. But our Saturday edition is printed in Knowsley near Liverpool. If we erred in the Saturday paper, could Mr Salmond tell me who would deal with it?” As we report today, the president of the Law Society, Austin Lafferty, declares he would prefer a UK-wide system to reflect this interwoven facet of the British press.

There is some support for special Scottish treatment – although it comes from the opposite angle to pro-regulators. Deane, who represents both media groups and clients seeking redress from press abuses, ­argues that Scotland’s press (and the UK regional press with it) is being made to suffer for the excesses of London’s super-charged, cash-rich papers. “The corrupt and illegal actions of some within the press were Londoncentric and had certainly not filtered into Scottish practice,” he argues. The Leveson-style system of regulation and instant arbitration will now pile an “added burden” on newspapers whose circulation is falling. This is hotly disputed by other sources – with Strathclyde Police still engaged in Operation Rubicon, an investigation following on from the Tommy Sheridan perjury trial, which is examining allegations of data protection breaches and phone-hacking in Scotland.

But whether it is to enforce a stricter or more lenient code for the Scottish press, forcing home that case may pose political difficulties for Salmond. Scottish Labour leader Johann Lamont has now declared she does not see the need for a separate Scottish system. Labour believes Salmond has made a rod for his own back. A source close to her declares: “If there ends up being two separate systems, we can either say that there is more press freedom in England. Or we can say that there is more protection for the public in England.”

And if Salmond chooses to opt for the statutory framework, he can expect a rough ride from the press – in its leader last week, the Scottish Sun, the paper whose support last year helped him to a landslide, declared that “from being an admirable beacon of democracy, we’d run the risk of being seen as a repressive, backward-looking country”.

An equally blunt message today from the Scottish Newspaper Society declares: “The First Minister needs to rethink his initial response to Leveson. At a time when he is seeking international recognition of Scotland as an entity the last thing he needs is to demonstrate that he is taking the Scottish news industry further back into the Dark Ages.”

In his letter to opposition parties today, the First Minister calls for cross-party consensus on the way forward. Instead, he is likely to face accusations from them that he is pursuing a power grab aimed at intimidating newspapers with the threat of curbs to their freedom, and a major new regulatory burden.

Leveson has now retreated to the background, refusing to say anything more on his findings. But both at Westminster and Holyrood, the fall-out goes on. As it is said in the trade, this one will run and run.

Twitter: @EddieBarnes23