Scotland set for ‘draconian press controls’

Scotland should have a compulsory regime of press regulation that is underpinned by law and has the power to censure newspapers, magazines, websites and social media, according to a government-appointed panel of experts.

Social networking sites such as Twitter and Facebook would be covered by the new set-up outlined by the group, led by former judge Lord McCluskey, which was tasked with considering the implications for Scotland of the recommendations of the Leveson Report on press standards.

The proposed Scottish regime goes further than the measures set out by Lord Justice Leveson, who did not propose a mandatory system. But the McCluskey report says a voluntary system, where publishers sign up to a new regulatory system, as laid down by Leveson, will not work.

• Read the report from the Expert Group

However, the proposals came under fire from opponents who branded them “unworkable” and warned they could leave Scotland with “the most draconian press controls in the western world”.

Scottish Government sources indicated the prospect of a compulsory regulatory system was unlikely, while First Minister Alex Salmond said only that he was hopeful of finding “an acceptable way forward”.

The expert group was set up by the Scottish Government in the wake of the Leveson Inquiry, which heard from victims of phone hacking and press intrusion. Victims included the parents of murdered schoolgirl Milly Dowler and Kate and Gerry McCann, whose daughter Madeleine disappeared in 2007.

Prime Minister David Cameron walked out on talks between the main party leaders on implementing Lord Leveson’s recommendations south of the Border, and a vote is to be held in the Commons on Monday.

Mr Cameron is against the Leveson Report’s recommendation of statutory underpinning of any regulators and is proposing a system underpinned by royal charter.

The Scottish system proposed by the McCluskey panel would see a regulatory body set up by the industry. It would be policed by a “recognition commissioner” appointed by ministers, and this role would be enshrined in law.

If the newspaper industry fails to come up with its own regulatory body, the expert group says such an organisation could be set up by ministers.

The regulator would have the power to censure newspapers, magazines and websites, while the expert group said further regulation of social media might also be required.

The McCluskey report says Scotland could have a separate “recognition body” from the rest of the UK, with stricter controls, but still operate with a UK-wide regulator. Alternatively, it could go its own way if the Scottish recognition body was not persuaded the UK regulator was fulfilling the principles of Leveson.

Scottish Conservative leader Ruth Davidson said: “The expert group was instructed by Alex Salmond to find ways of implementing a law to control the press, and that’s exactly what it has done.

“Its remit was so narrow it was inevitable a proposal for a new press law would be the outcome.

“It is unacceptable that both the operation and funding of the new regulator would be overseen by a ‘recognition commissioner’ appointed by Scottish Government ministers. This is not statutory underpinning but statutory control, which would give Scotland some of the most draconian press controls in the western world.”

The report insists that, under such a system, both the regulatory body and commissioner should be free from interference by politicians. It states: “It must be as independent of political and government influence as is the judiciary in this country.”

Scottish Labour leader Johann Lamont accused Alex Salmond of instructing the expert group to “rework and build upon” the Leveson recommendations, instead of simply implementing them in Scotland. “That in itself appears to be bad faith on the First Minister’s part,” she said. “We hope he will take forward the recommendation that Scotland would be best served by having a UK-wide solution.

“Leveson is about addressing the rights of victims and protecting the public. It should not be used by politicians as an attempt to control the press.”

Scottish Green party leader Patrick Harvie backed the implementation of the Leveson proposals. But he added: “The McCluskey report appears to go much further than anyone had expected.

“To include every source of news coverage would result in a torrent of complaints about every website, every blog, even every single tweet. I cannot see how this is remotely practical, even if it was desirable.”

The McCluskey report contains draft legislation, the Press Standards (Scotland) Bill, which says Scottish ministers would have the final say on appointing the “recognition commissioner” with responsibility for overseeing the regulator. He or she would be appointed in a “fair, open and transparent way”.

It says the press should not be subjected to restrictions, such as the legal requirement to be politically impartial, faced by public service broadcasters.

The new system would probably be funded by the newspaper industry, but it is unclear how this would work in practice.

A compulsory system extending to electronic and social media, which would be underpinned in law, means Scotland would have a stricter system than south of the Border. Regulation in other countries extends to social media sites such as Twitter, the report noted.

Mr Salmond has previously said he supported an ombudsman-style regulatory system, similar to that in the Republic of Ireland.

He said yesterday: “I am hopeful that, in Scotland, all parties in the parliament can continue to work together to find an acceptable way forward.

“Lord McCluskey’s group has delivered an extremely thorough piece of work looking at how the proposals made by Lord Justice Leveson could be applied in the context of Scots law, including draft legislation. We will now take the time to consider all of their suggestions in full and discuss the proposals with the other political parties and other stakeholders.”

He added: “The report is admirably clear. It is for the parliaments in London and in Scotland to establish a recognition process. It is for the press to bring forward a voluntary regulatory body compliant with Leveson principles. I hope that this is still possible.”

Who’s who: the expert panel on press regulation in Scotland

RUTH WISHART

A columnist for The Scotsman and veteran broadcaster with extensive experience of the media, Wishart has held many high-ranking editorial posts in Scottish newspapers throughout her career. She has also presented series for both Radio Scotland and Radio 4.

DAVID SINCLAIR

Head of communications at Victims Support Scotland since 2006, he is a former assistant editor of the Herald newspaper, having worked there from 1975-2006. President of the National Union of Journalists in 1990-91.

LORD MCCLUSKEY

Chairman John Herbert McCluskey – Baron McCluskey – was solicitor-general for Scotland from 1974 to 1979.

He worked on the then Labour government’s proposals for devolution. Lord McCluskey entered the judiciary in 1984 and was a High Court judge for 16 years.

He retired in 2000. In 2011, he chaired the Independent Review Group examining the relationship of the High Court of Justiciary and the United Kingdom Supreme Court, whose recommendations were accepted both by the Scottish Parliament and the UK government. He was for many years chair of the judges for the Bank of Scotland Press Awards and vice-president of the West of Scotland Press Fund.

PETER WATSON

Senior partner and head of litigation at Levy & McRae with expertise in areas such as media, licensing, employment law and tax and revenue investigations. Part-time sheriff and visiting professor at the school of law, University of Strathclyde.

NEIL WALKER

The regius professor of public law and the law of nature and nations at the school of law, University of Edinburgh, has also taught in Aberdeen and Florence, Italy. His main area of expertise is constitutional theory and in 2008 he conducted a review of final appellate jurisdiction in Scotland

McCluskey’s proposal: How it would work

The Scottish Government Ministers in the government of the day will be responsible for appointing the recognition commissioner who will be responsible for policing the regulatory body with the power to censure the press.

Public Appointments Commissioner for Scotland

The independent watchdog charged with ensuring the process used by the Scottish Government to select the people who serve on the boards of Scotland’s public bodies is fair and open. It would also ensure the appointment of the commissioner is fair and transparent.

Recognition Commissioner

The commissioner would check and oversee the regulatory body to ensure that it complies with the Leveson recommendations on its make-up, functions and powers.

Regulatory body

The new body – independent of both the press and government – to be devised by the industry itself which would have a range of sanctions available to it, including fines and direction of the prominence of apologies and corrections. But if the industry in Scotland fails to agree such a body, the McCluskey recommendations indicate a quango could be appointed by ministers to fill the role.

Publishers

The media covered by the new regime would include newspapers, magazines and websites, as well as a surprise call for social networking sites like Twitter to be included.