Press challenge

In her evidence to the education and culture committee on 23 April, Cabinet secretary Fiona Hyslop asserted that the 
expert group that I chaired “went
beyond its remit in terms of the compulsory system”.

If I had been given notice of that assertion I would have dealt with it when I gave evidence to the committee last week.

Our terms of reference required us to accept the main Leveson principles on which the recommendations were based, “including in particular the need for statutory underpinning of a newly created, genuinely independent and effective system of self-regulation”.

That was exactly what we did. We accepted Leveson’s clear conclusion that the new system would not be “effective” unless the new regulatory body had jurisdiction over all those whom Leveson described as “all significant news publishers”.

Leveson hoped that all significant news publishers would accept that jurisdiction on a voluntary basis; and he suggested technical – English legal – methods of encouraging publishers to sign up.

The methods suggested were not available in Scots law and were seriously challengeable under European law.

Not only that: a number of “significant news publishers” had already made it clear that they would not join a voluntary scheme, whatever the incentives.

We had no sound basis for suggesting that Scots law could provide effective incentives to make them all join voluntarily.

So we suggested that the legislature should define which publishers should be classified as “significant”, and give the new regulatory body jurisdiction to apply the “Editors’ Code” to them.

That code contains the rules written by the press to govern their own conduct.

The Cabinet secretary has not shown how she will deal with the likely situation that some “significant news publishers” will not voluntarily accept 
the new regulatory jurisdiction, thus rendering the system
non-Leveson-compliant and 
ineffective.

Nor has she identified any convincing incentives. She has also departed from the fundamental Leveson principle of “statutory underpinning” and proposes to proceed instead by a Royal Charter, thus bypassing the legislature, especially in relation to defining which
publishers are to be regarded as “significant”.

I believe we faced up to the real problems. In doing so, we did not go beyond our remit.

John McCluskey

House of Lords

London