The expert group, charged with advising how Lord Justice Leveson's proposals for regulation of the press could best be implemented in Scotland, had its hands tied from the outset.
Its members were required to recommend the most appropriate means of achieving statutory underpinning. That prevented an examination of whether such legal enshrinement was necessary, advantageous or a slippery slope towards statutory control.
As a result, the group chaired by Lord McCluskey has proposed a model mirroring that outlined by Lord Leveson for an independent non-statutory regulatory body overseen by another body, also independent, but whose duties and powers are set out in law. They recognised this as a potential problem because they found it necessary to state that "all important institutions in a democracy", including charities, churches and trade unions, are subject not only to the rule of law but also to particular statutory restrictions, yet preserve their independence and freedom from political interference.
Why should the press be any different? In the simplest terms, because newspapers must be free to hold politicians and legislators to account. Press regulation is devolved to the Scottish Parliament but it is clearly advantageous when publications circulate on both sides of the Border to have compatible systems. With opinion divided at Westminster, the expert group advocates setting up a regulatory body for Scotland if there is a failure to establish a new UK-wide system. That will require general consensus and, if it is to be workable, it must take the particular concerns of the Scottish press into account. There is no argument that a new regulatory regime must put a halt to the sort of outrageous intrusions that led to the Leveson inquiry. Victims who have been defamed must have proper redress but the proposals to curb tabloid excesses will place a particularly heavy financial burden on local and regional newspapers. At a time of increasing economic pressure, they will have to fund the regulatory body and can expect legal actions from optimistic litigants motivated by talk of exemplary damages of up to £1 million.
With statutory underpinning also the sticking point at Westminster, the proposal for a Royal Charter, however, holds out the prospect of being acceptable to both the newspaper industry and politicians. Draft charters published yesterday by the Department for Culture, Media and Sport and jointly by Labour and the Liberal Democrats suggest the Conservatives appear to have moved a little towards a tougher regime but that will not be enough for Labour and the LibDems to abandon a legislative framework. Scottish MPs, whose votes will be vital, must consider the Scottish as well as the political consequences.
Lord McCluskey's report goes wider than many expected in suggesting the regulator could also have the power to censure websites and social media. This poses obvious problems. The group say they do not think a voluntary opt-in to the regulator would work for the press. That issue must be addressed but it would be impossible to require all social media to sign up to a regulator. Further regulation of such sites may be necessary but could a press regulatory body take on such a vast task? This must now be carefully considered by all parties. If the Scottish Government wants to take the industry with them, as they say they do, they must take on board its concerns over the difficulty of preventing statutory underpinning from becoming statutory control.
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