A FREE press willing to publish and be damned is a necessary bulwark to democracy.
The key question from Lord Justice Leveson's report yesterday into the culture, practices and ethics of the press is therefore: can a body set up by statute be free of government control?
The Press Complaints Commission (PCC) had demonstrably failed as a regulator before the inquiry was set up. The inquiry into the ethics and standards of the British press revealed some extremely murky practices and disgraceful intrusions into privacy which by no stretch of the imagination could be justified as being in the public interest. Nine months of evidence confirmed that a new system with tougher sanctions is urgently required.
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Lord Leveson's proposal for independent self-regulation underpinned by statute, however, is destined to continue the febrile debate about what should replace the PCC. In Scotland, any new system of press regulation would be determined by the Scottish Parliament but so comprehensive and current is the Leveson report that it will surely be the basis for deliberation. Alex Salmond has suggested there should be cross-party talks and a Scottish judge appointed to propose a regulatory system. It is significant that he has already endorsed the Press Council of Ireland as a potential model because this has notable similarities to the Leveson proposals.
There is much to commend in Sir Brian Leveson's outline. A body whose members would be genuinely independent, with no current editors appointed, would draw a line in the sand from vested interests. The ability to conduct investigations into claims of illegality or breaches of a code of ethics and to impose tough sanctions would be a welcome bolstering of powers. And the prospect of free arbitration to settle disputes is also a positive step to achieving fair and fast redress for victims who cannot afford to take legal action against a newspaper. But there is a serious stumbling block. Lord Leveson says that the new regulatory system must be enshrined in law to guarantee its independence, long-term stability and benefits. This hand grenade has already caused ructions in the House of Commons and must be fully scrutinised at Holyrood.
Many fear passing legislation, even to ensure legal recognition for the new body, as Lord Leveson argues is necessary, would lead to state control of newspapers. The judge contends that it would have the opposite effect by imposing a legal duty on the Government to protect the freedom of the press. There appears to be a precedent in Irish system, which has been built on a similar concept whereby its Press Council is not established by statute but recognised in law. Whether that is transferable remains to be seen but it is worth pointing out that British titles which publish Irish editions have signed up. In Scotland, the First Minister is right to caution that there is a need to ensure this potential middle way can be achieved within the necessary context of a free press. The benefits must be sufficient to ensure that all publishers are on board. If not, there is a threat of ultimate control by Ofcom. That would be inappropriate for a newspaper industry whose necessary diversity includes a variety of political views, unlike broadcasters which must be neutral.
Certainly the Irish model of an ombudsman who tries to resolve disputes without recourse to the law has already proved successful in Scotland in dealing with complaints in other areas such as local government or the NHS and there is an obvious advantage in adopting a system with which people are familiar.
Other aspects of the Leveson report also require deep analysis in a Scottish context. Turning to allegations about there being too close a relationship between the press and police and politicians, Lord Leveson recommends that a record of all meetings is kept. This is intended as a safeguard against corruption or attempts by newspaper proprietors to influence policy but it could have unintended consequences for investigative journalists. "Off the record" briefings from senior police officers and other public officials are an important source of accurate information, even if the source cannot be attributed. Lord Leveson acknowledges such briefings are in the public interest. But his recommendation that they must be even-handed will cause problems for specialists. There must be close relationships between politicians and the press but they work best when there is clear understanding on both sides of the different requirements of each and respect for professional integrity.
Politicians of all parties and on both sides of the Border are united in emphasising the need to guarantee a free press. Lord Leveson has produced a detailed road map of what he believes is the best way to achieve that. But the potential pitfalls associated with statute are real and must be put under detailed scrutiny before there is any move to legislate. Newspapers across the spectrum, including The Herald, have genuine concerns about legislation proving to be the thin end of a wedge that could be misused by some future government to muzzle free speech. There is a real danger that a system of regulation based on statute would eventually morph into state registration of newspapers, the antithesis of a free press. Tighter control of newspapers could also have the consequence of boosting the popularity of social media, paradoxically an unregulated platform for unsubstantiated rumour and allegation. The Prime Minister is right to warn that legislation could lead to the Rubicon being crossed. Yet, after the catalogue of unacceptable, frequently shameful behaviour (by the few, it must be said) which could never be justified as being in the public interest, reform is urgently required.
By insisting that legislation is not necessary, Mr Cameron has thrown down a gauntlet to the press. Newspapers have been drinking in the last chance saloon for the last 20 years. Against competition from the unregulated internet, they should rise to the challenge, adopt the proposals for tighter regulation with tougher sanctions and proper redress and prove the true worth of a free press.