Education and Culture Committee

Meeting date: Tuesday, April 16, 2013

Official Report 601KB pdf

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Press Regulation

The next item is an oral evidence session on the implications for Scotland of the proposed royal charter on self-regulation of the press. We will take evidence from two panels this morning, and further evidence at next week’s meeting.

I welcome our first panel: the Rt Hon Lord McCluskey, chair of the expert group on the Leveson report in Scotland; Campbell Deane, a partner with Bannatyne Kirkwood France & Co and a specialist in defamation, contempt of court and Press Complaints Commission complaints; and David Sinclair, head of communications at Victim Support Scotland and a member of the expert group.

I begin with a general question for Lord McCluskey. Can you outline the nature of the work that your group did and the report that you produced, and comment on the proposed royal charter that will go to the Privy Council very soon?

The Leveson inquiry heard 630 witnesses and received submissions over a year. We were asked in three months to consider the Leveson recommendations; to accept the principles that Leveson had adumbrated after his inquiry; and, in particular, to accept the notion of statutory undertaking and to consider how that might work in Scotland.

We were appointed on 12 December, and technically reported on 15 March, as that was the day on which I signed the letter and the report was officially handed to the First Minister. We accepted the need for statutory underpinning and the essential principle that there should be a regulatory body fashioned by the industry and independent of the press and of politicians and Government in general, and that there should be a second body—a recognition body, as it was called—to ensure that the regulatory body was up to speed and Leveson compliant. On that basis, we proceeded to look at the position in Scotland.

However, we also came to the view—unanimously and early on—that the Leveson proposal that members of the press industry, however that was defined, should be asked to opt in and were free to opt out would never produce a Leveson-compliant system, because we knew that a number of bodies, such as Private Eye, The Spectator and the Daily Express group, and probably others, would not join such a system, and so would be free from regulation. In other countries, we have seen that if some people have been allowed to opt out, others have asked why they should bother to opt in and to subject themselves to regulation when others are not subject to it.

The important difference between our recommendations and the Leveson recommendations was that we came to the view that the purpose of Leveson was to examine the mischief, or rather the crimes and misdemeanours—many of them are crimes—that journalists and newspaper publishers committed, and to decide how we could curb them in some way. We looked at a number of parallels, one of which is the Contempt of Court Act 1981, under which a person who publishes—whether online or in the printed press—material that is likely to prejudice forthcoming judicial and, in particular, criminal proceedings can be found guilty of contempt of court and dealt with not by prosecution but by a special procedure. That was an example of extending jurisdiction to those who engage in activity that is harmful to the rights of others or to the rights of the state in relation to the administration of justice.

We then drafted a bill that is only illustrative but which would help to deal with the situation in which the press never come up with a Leveson-compliant regulatory body. That is the position that we are in at the moment, because the industry has not come up with a regulatory body that all significant newspaper publishers would join in with. We dealt with that in the draft bill, which is in appendix 3 to the report, which goes under my name.

In relation to funding, we accepted what Leveson said, which was that the funding should be provided by the industry. In legislation that the Scottish Parliament has passed in recent years, when the decision was taken to set up a regulatory body for lawyers, whether advocates or solicitors, the Parliament decided that the funding for that should come from advocates and solicitors as a levy. In other words, it was not a case of the polluter paying; it was decided that the whole industry should pay for the running of that industry. I could illustrate that in detail.

The first version of the royal charter was produced on 12 February, by which time we were well into our thinking. We had on our committee a number of people of different political perspectives and none, who had views about the royal charter, and we felt that we could not properly pronounce on it without extending our period of examination considerably and, indeed, obtaining evidence on it, because a royal charter is a very unfamiliar animal. I do not suppose that anyone who is present has ever seen one, and very few people will have much idea of what it means. Therefore, although I want to talk about the royal charter if I am given the opportunity to do so, we felt that we should not express a view on it without hearing evidence. David Sinclair, who was a member of the group, might take a view of the royal charter that is wholly or slightly different from mine; I think not, but he might, so we have to speak for ourselves.

I do not think that I need say more at the moment, but I hope to be able to comment on some of the inaccuracies in Campbell Deane’s article, which has been placed before the committee.

Thank you very much.

I ask members to indicate when they want to ask about particular issues as we proceed. We will begin with Liz Smith.

11:15

Lord McCluskey, in light of the comments that you have just made, why specifically do you believe that there is a need for another piece of legislation? After all, the press are already regulated by several pieces of legislation; you mentioned the contempt of court legislation, but one could also mention data protection legislation, the Bribery Act 2010 and human rights legislation.

My specific reason is the issue that Leveson identified and which formed the basis of his inquiry—namely that even without committing any crimes forbidden by the Bribery Act 2010, the Protection from Harassment Act 1997 and so on, the press can do enormous damage to others’ democratic rights. For example, under the Human Rights Act 1998 there is a democratic right to a degree of privacy. However, when one looks at the invasion of J K Rowling’s rights by the press in Scotland, Gordon Brown’s rights in relation to his hospital records, the rights of the McCanns with regard to the appalling way in which they were treated without crimes having been committed and the rights of the Watson family—as the judge at that trial, I have a degree of insight into what happened in that instance and indeed have followed the issue over the years—one sees that the press were not engaging in crime. I have to say, though, that News International was engaged in a huge amount of crime here and in Australia, but such matters can be dealt with through ordinary criminal processes as long as the police are not bribed.

The press accepted the need for regulation, which was why the Press Complaints Commission was set up. The trouble was that the press treated the commission with contempt; because they paid the piper and they called the tune. The commission was totally and utterly ineffective.

What we need is an effective body. It does not have to be statutory, although Leveson said that, unfortunately, if such a body is not made effective by the industry itself it will have to be statutory. That is the kind of statute that we are calling for: we want a statute that creates not a regulatory body but a recognition body that checks that the regulatory body is up to scratch and doing its job.

We have been advised, mainly by the Parliament’s legal office, that such a proposal comes with huge complexities, particularly in relation to issues such as exemplary damages, which exist south of the border but not in Scots law, and with regard to certain European convention on human rights difficulties. Given the discussions that you have had with your own group, are you able to comment on how we might possibly get round some of those very strong difficulties? After all, there is a very important tradition to Scots law.

First of all, there is no problem in Scots law. We do not advocate the awarding of exemplary damages; Leveson does. We are saying that the problem for Scotland is that it does not have such a provision. We would have to get the Scottish Law Commission, the Lord President, the professions, the insurance industry and so on to give evidence on whether exemplary damages should be introduced. As a result, we could not proceed in that direction quickly.

As far as ECHR is concerned, we apply it every day in the courts without any particular problem. In England, the problem with ECHR is that you cannot have exemplary damages, because it is thought that they are contrary to the convention’s freedom of speech provisions. That issue does not arise in Scotland. We are saying, “Don’t bother with these things.” Instead of proposing that we entice the press to join a club under whose rules they would be regulated, we are saying that we should identify the mischief—the interference with people’s democratic rights—and then put in place machinery to make such interference punishable.

Given that response, do you accept that going down the road of separate regulation in Scotland would take a considerable amount of time, require a very substantial period of deliberation and involve very careful examination of much of the legislation that exists in Scotland?

I do not accept that. I do not know—and I would like to—who is advising you on the matter. You have mentioned ECHR and exemplary damages, but what else is there? If someone can tell me what the problem is, I will address it and tell you what the answer is—if I can think of it.

I think that we have been advised of potential difficulties—

Such as?

Well, exactly the issue that I have just raised. You seem to be denying that the exemplary damages issue is a problem, but the committee’s most fundamental difficulty is the very short space of time that we have to deal with this matter. Making certain changes might have implications and ramifications for other aspects of legislation and we need time to think them through and to recognise how such matters might articulate with other potential changes.

The system that we advocate in the so-called McCluskey report altogether avoids any problems arising from exemplary damages or ECHR. The offence of interfering with the administration of justice under the Contempt of Court Act 1981 can be committed only by a group of people defined under the act and essentially covers the printed press and its online versions. Exactly the same provision could apply in Scotland. These people are obliged to observe the editors’ code of practice, which they wrote themselves, was largely approved of by Leveson and is contained in the royal charter and, indeed, in our bill. You simply set up a regulatory body with an obligation to entertain complaints about breaches of the editors’ code. By the way, if, like much of what News International encouraged over the past few years, the breach is also a crime, it can be dealt with in the criminal courts. However, that issue is quite separate from what we examine in our report.

Finally, on a different issue, I understand that the plan under the McCluskey report is for the chair of the Scottish recognition panel to be appointed by ministers; however, south of the border, that appointment would be made by a judge. Why exactly have you recommended that such a decision be underpinned by Government?

If, as Campbell Deane has suggested, the royal charter does not apply to Scotland—although I have to say that I do not know where he has got that idea from—and if Scotland decides that it has to go it alone and develop its own system, one would naturally expect a Scot to be the chair of a Scottish recognition panel—

I am sorry, but I was asking whether Government ministers should be responsible for that appointment.

It is not a ministerial appointment. If you look at what we say and what Professor Walker has very carefully articulated in various articles, we are suggesting that the ordinary procedure for appointments to public office be used. A separate independent body—not ministers—would appoint the members of the regulatory and recognition bodies.

Perhaps at this point I should ask Campbell Deane to respond to Lord McCluskey’s questions about some of the comments in his written evidence.

My understanding is that, given the way in which the royal charter has been drafted, it applies at present only to England and Wales, not to Scotland. That is why I have said that I do not think that it has any applicability to Scotland.

As it currently stands.

Indeed.

But it could be amended.

I am not a constitutional lawyer, but I presume that there will be some method of piggybacking on to the royal charter to make it applicable to Scotland.

You cannot amend the royal charter.

But it is in draft form at the moment. You could amend the draft to bring applicability to Scotland into play.

What Campbell Deane says in his paper is that the original draft was altered by the UK Parliament. That is complete nonsense—the UK Parliament had no input into it at all. It had a debate about it in which many members spoke approvingly of it, but the charter is a creature of the Government. The charter is written by three or four members of the Privy Council who are convened for that task and is signed in the name of the Queen. It is a wonderful example for Vladimir Putin, Robert Mugabe and other dictators that the UK regulates the press by not allowing the democratically elected Parliament to have a say; we do it all with the Queen signing a document that has been written for her by the Prime Minister—who, incidentally, has a lot of influential friends in the press.

I return to the evidence that you submitted, Mr Deane. Referring to Lord McCluskey’s group’s report, you state:

“his methodology is to put the cart before the horse.”

What did you mean by that?

I will expand on the matter a little bit before I go into that. The report is well structured, well reasoned and innovative in many of the things that it does, particularly in relation to the universal jurisdiction issue. My concern, however, relates to the questions of necessity and proportionality regarding the Scottish media. I have been involved in legalling newspapers for 20 years. I have undertaken activity daily and throughout the day, including in the evening and in the early hours of the morning, advising newspapers with respect to what they can and cannot report on.

Reading the Leveson report as a whole, I do not see the same London-centric issues appearing north of the border. Leveson himself makes it absolutely clear in his report that the regional press have behaved to a relatively high standard. At page 152 of his report, he states:

“I should also, perhaps, make it clear that the regulatory model proposed later in this report should not provide an added burden to the regional and local press.”

In my submission, that is possibly what the expert panel’s report would result in.

At page 718 of his report, Leveson says:

“I have already exempted the regional press from the generality of my findings”.

Scotland’s press is part of the regional press. I have been involved in the industry for 20-plus years, and I think that the Scottish press should not automatically be punished—that is how it reads to me—for sins that have been going on elsewhere. That is not to say that there is not a need for reform. Everybody accepts that there is a need for reform. The press have got it wrong to that degree.

Lord McCluskey disagrees with me regarding the issue of victims—he made that clear in his letter to The Scotsman. In particular, he draws attention to the Margaret Watson case. I do not seek to diminish in any shape or form what the Watson family had to go through, which was appalling. If there were inaccuracies in the reporting, or rather in the information on which the comments that were written by Jack McLean were based—it was not reporting, as Jack McLean was not a news reporter but a commentator—that was clearly wrong. I have no knowledge as to why the editor of the paper would not initially meet Margaret Watson to discuss all the issues that were going on but, on the matter of holding up the Watson case as a cornerstone for the need for reform in Scotland, I point out that that was more than 20 years ago, and that things have moved on.

As a general rule, the press in Scotland behave very responsibly in relation to the statutes that they must apply, including the Contempt of Court Act 1981, the Defamation Act 1996 and privacy legislation. There has been a moral and ethical diminishing, however, whereby editors will form the view that, if something is legally okay, it is ethically okay. That is where the newspaper industry in Scotland has fallen foul. Editors try to uphold their code, however, and they do so regularly.

When I am asked to legal copy, the questions are not just about whether something creates a substantial risk of serious prejudice and what the rights of the individual are; we are regularly asked whether something complies with the code of practice.

Editors try to uphold their code of practice, but they get it wrong at times. Editors have to make judgment calls. The easy situation is one in which an editor or a lawyer looks at something and says that there is a straight prohibition on publication. For example, the press cannot identify a child under the age of 16 who is an accused person in a criminal case. Those are not difficult situations. The issues become much more difficult in a situation in which the editor has to make a decision as to whether he steps over the law and ethically steps over the boundaries contained in the regulations—the press code.

For example, there is not a single piece of legislation in this country that says that editors cannot identify a rape victim, but they do not. Editorial convention dictates that they do not; they act responsibly when it comes to that. Editors form the view that it would be wrong to identify those people; there is nothing statutory that stops them doing it. In my view, editors do their utmost to uphold the code and I think that as a general rule they act ethically.

11:30

Lord McCluskey, your report differs from Leveson in not allowing an opt-out, and that is because of the absence of exemplary damages in Scotland. Did you consider any other means to encourage the press to take part that would fall short of compulsion? Were there any other carrots, so to speak, that you considered and dismissed?

The press made it plain—I do not know whether you have read the Leveson report—

I have.

You have? Congratulations, you are the first person I have ever met who has read it.

The second. [Laughter.]

The Spectator said that it would not sign up to any regulation at all. Private Eye said it would not sign up. The Express group, which includes the Daily Express, the Sunday Express, The Daily Star, OK! or HELLO! magazine—I cannot remember which—and various others, said that it would not sign up; it even dropped out of the PCC, which was a toothless tiger. Others have also made it clear that they are not going to join.

We made a judgment that the opt-in, opt-out system would not work, and if it would not work in England, in our view it certainly would not work in Scotland because we could not provide the same carrots and sticks, even in relation to expenses. The question of expenses is dealt with by Leveson under the heading of costs. We have a different system in Scotland, but that system is currently under review by Sheriff Principal Taylor and we did not want to interfere with his recommendations.

There are many, many problems in following a Leveson style opt-in, opt-out system, and we say that it is crazy to do it that way. We do not do that with lawyers; we say to lawyers that if they choose to practise as an advocate or a solicitor, they must accept the rules that we have laid down. What was just referred to as “the regulations” is the editors’ code. That is what we are talking about—the editors’ code, which was written by the editors years and years ago and which has been modified from time to time by the editors in the light of experience. What is the harm in asking the press to obey the code? If, as Campbell Deane says, the Scottish press are virtually free from the kind of wrongdoing that was revealed in England, what have they got to fear?

My final point is that it is complete nonsense to say that the Daily Record and The Scottish Sun are somehow regional press in the same way as the Yorkshire Post or something of that kind. The Scottish Sun is owned by News International and the Scottish Daily Record is owned by the Mirror Group, and I do not know that The Scotsman or The Herald would like to call themselves “regional newspapers” anyway.

I agree with that last point. I should have done this earlier, convener, but I declare an interest in that I am a columnist with the Daily Record newspaper.

It is as well to put that on the record.

I find Mr Sinclair’s position very interesting, as he has many years’ experience of the press as a journalist but now represents victims. What is your feeling about the aspect of compulsion? It would be fair to say that it has drawn quite a lot of criticism from the press in Scotland.

The timescale that we, as a group, were given to report did not allow us the benefit of hindsight. Fortunately, the panel members had the benefit of foresight.

It is probably not widely known but, in a collegiate way, I was responsible for the National Union of Journalists returning to the original Press Council in the late 1980s. I sat on the Press Council for one year, and I can assure members that one year was more than enough to make me realise that everything that I had ever heard about it and about the reasons for the NUJ having pulled out some eight years earlier was fully justified.

The council was genuinely a toothless tiger where complaints were listed and senior figures from national newspapers went off to have a lengthy good lunch—to which we were never invited, which very much upset me—and returned to present the outcome to us. That is not the way that it should work, nor is it the way in which anybody would want it to work. Anyone who has worked in or been associated with the media over many years knows the problems with the Press Council and the Press Complaints Commission.

Campbell Deane was not quite correct in saying that newspapers do not identify rape victims. Every member sitting around this table will probably be able to recall cases in which rape victims have been identified. There may be an argument about the stage at which they are identified, but there are laws that limit when they can be identified.

Is the Scottish press free from guilt? Certainly not. Everything that has been reported in the case of the McCanns, the Dowlers and, more recently, the Riggi family—including the pictures that have been presented from inside prison of a convicted person in relation to the Riggi family—constitutes abuses that cause enormous hurt not just to the direct victims but to their wider families and does not represent the best interests of the Scottish or the national press. The Scottish press consists of papers such as the Daily Mail, the Express and all the other tabloids that circulate nationally and across Europe, and all those reports are repeated in them.

I have been a journalist for more than 50 years and, sadly, I have experience—from the NUJ perspective, as a working journalist, and now as someone who is trying to represent the interests of the victims and witnesses of crime—of some of the abuses that those people suffer in the newspapers. I have come to the realisation that the press will never put its own house in order and that it requires a very firm conviction from Government to determine that the press should be treated in much the same way as solicitors when it comes to dealing with complaints.

The UK Government intends to proceed with the royal charter. Lord McCluskey, you have said that you have points to make on that. I and other members are concerned about the fact that there would need to be a two-thirds majority in the UK Parliament to change it and the fact that the Scottish Parliament would have no input to it at all. Is that a concern of yours as well?

I have a number of points to make on the royal charter, although they have already been explained in some ways.

Leveson sat for a year and had 635 witnesses and submissions, but the words “royal charter” were never used in the entire inquiry except, in passing, in relation to the BBC. He never considered the merits and demerits of the idea; it suddenly emerged on 12 February in circumstances that are well known to the press, after the pressmen laid down a number of red lines for the Government negotiator—the Conservative Party negotiator, I should say. A royal charter does not go through Parliament and is not subject to the Sewel convention or legislative consent motion in Scotland, so you would be denied a voice.

Let us take, for example, the important question of who should be brought within the jurisdiction of the body. We have said that it should be the printed press and the online versions. We have pointed to various definitions in other countries and various other statutes. The decision on who is to be within the range of the administrative body ought to be taken by an elected Parliament, not through a royal charter. In the draft bill in our report, we adopted the same definition as is in the royal charter—we all took it from the Department for Culture, Media and Sport—but the issue ought to be looked at by legislators and not decided in the smoke-filled rooms—I think that it is pizza-filled rooms nowadays—of the Privy Council, which consists of those to whom the Prime Minister says, “Come to the meeting.”

I have already made the point that Putin and Mugabe must be rubbing their hands with glee at the idea that they can just issue a decree in which they determine all the rules. What a terrible example for us to offer to the world: we bypass the legislature in all these matters and let them be decided instead by the unelected head of state.

In relation to Scotland, I should have mentioned the Daily Mail and the Daily Express. The idea that the Scottish press is immune from what happened in England is complete nonsense. Of course, as David Sinclair has said, the words of Glenn Mulcaire, Goodman and all the other fellows who have been identified in England, whether they worked for News International or simply sold the proceeds of their crimes to News International, were printed in Scotland. I cannot emphasise enough the importance of the four cases that figured—the Brown, Rowling, Watson and McCann cases. The idea that the Scottish press is somehow free of blemish is hogwash.

Given those comments, how should Scotland proceed? Should Scotland opt out of or ignore the royal charter?

If Campbell Deane is right, as he might well be, that the charter is not written in Scottish terms or, in other words, that Scotland is not mentioned in it, apart from the fact that the Scottish ministers cannot be members of the recognition body, it probably does not apply to Scotland. As the regulation of the press has been devolved to Scotland, if the royal charter does not apply Scotland has no regulation at all. Our advice plainly is that we can do it in Scotland. To that extent, we have drafted a provisional bill. Through a bill you, as elected members, can define to whom the jurisdiction should apply. You can enact that.

By the way, in Ireland, where the same process was gone through, the Daily Express, The Spectator and everybody else conforms to the code because, otherwise, they would not get into Ireland. The Irish Government made it plain—I have quoted the stuff in various places—that if the press did not sign up it would introduce legislation to make that compulsory.

The answer is that, in Scotland, we should not by statute write the regulatory code—we let the editors do that—but in the background there has to be an enforcement mechanism that says, “If you do not behave in the right way, we will have to move in and regulate you ourselves.”

I have two questions. The first is a quick one about the drafting of the royal charter. Will it, in conjunction with the editors’ code, prevent future defamation of a deceased victim?

No, I do not think that it would.

The royal charter does the right thing, which the original DCMS draft bill did not do, in that it picks up the first 23 recommendations of Leveson. The 23rd recommendation does not concern us, because it is to do with opting in and opting out. The charter gives the possibility of an ultimate enforcement mechanism—an effective mechanism for enforcing the editors’ code. There is no such mechanism at the moment.

Members ought to read Tom Watson’s book. I dare say that, if you have read the Leveson report, you will have read that. When you read about how Nick Davies was treated by the press when he exposed phone hacking, you realise that there is a problem that has to be grasped.

11:45

My second question is on how the opting in or opting out would work in Scotland. You made a comparison with the regulatory body for advocates and solicitors in Scotland, but how would you define journalism as such? Would it include online communication, such as people’s blogs and tweets? How would that be controlled?

If I may respectfully say so, that is an excellent question. We do not define that, but we say that it is possible to write the definition in such terms that it includes blogs—we do not advise that, but we say that it is possible to do it. For example, under the Contempt of Court Act 1981, if in your private blog you write something that prejudices the interests of justice, a complaint can be made to the court and the court can deal with that as contempt of court.

The short answer is that we do not define journalism in that way. We say that it is possible for the definition to be very broad, but in our bill, which adopts the same definition as in the royal charter, the definition is much more limited.

I would be happy to exclude blogs and so on with the knowledge that, if, as might happen, blogs become a huge and growing problem—Leveson talked about this as the elephant in the room—and if the kind of thing that happened to Lord McAlpine becomes commonplace, it might be necessary to extend the jurisdiction.

By the way, if the jurisdiction is created by an act of Parliament, you can amend the act of Parliament. However, if it is created by a royal charter, you can forget it, as you need a two-thirds majority in both houses and, apparently, the agreement of each of the leaders of the three political parties.

One other point is that Scotland was not consulted about the royal charter. We were not invited to attend—the Prime Minister knew that we were sitting, as I have seen a letter from him to that effect—and the Scots editors were not invited to attend. Scotland was totally ignored in all the deliberations, even by the Labour Party, which is strong in Scotland in some regards. There was no reference to Scotland at all in the drawing up of the so-called royal charter.

Lord McCluskey referred earlier to what happens under the regime that is in place in Ireland, and members’ papers for today’s committee meeting make reference to the situation in Denmark and Iceland. It would be helpful if Lord McCluskey and Mr Sinclair could elucidate the experience in those three countries, or in any others that they looked at, in addressing the concerns that have been raised about political interference, the nature of the stories that can be broken and what redress victims have through the relevant mechanisms in those countries.

The system in Ireland has been in place for some time and it works exceptionally well. No newspaper publisher has excluded itself from the operation of the system in Ireland. Most cases are dealt with in a mediation process and, if a retraction is required, that can be done. From memory, I think that only two or three cases have actually proceeded during the time in which the system has been in existence.

As for continental countries, although some of those countries have press controls that I would not advocate to anyone—press freedom is a fundamental issue for me, as I am sure it is for everyone here—some of the Scandinavian countries have imposed controls that are working well and that publishers participate in. Of course, in some cases, there is a requirement on publishers to participate, which is exactly what we are advancing to you.

This is a window of opportunity. Nobody is convinced that there is insufficient evidence that, since the creation of the Press Council in the early 1950s, the press has failed to police its own activities. If we as a country—and you as MSPs in the Parliament—miss this opportunity, we know that we will be sitting here again in five, 10 or 15 years’ time saying that we wish that we had grasped that opportunity.

Let me give the committee the specific reference. The matter is dealt with in a mere 26 pages in Leveson: volume 4, chapter 5, pages 1708 to 1733. All the countries are looked at. In Denmark, the press and journalists are strong and insist that, when wrong reporting is corrected, the wrongdoing must be published in the newspaper with the same degree of prominence and not as a footnote on page 93. It is important that it should be noticed.

Practice in different countries is summarised in Leveson and, more particularly, in a marvellous paper on international comparisons by Lara Fielden, which the committee should look at if it has time and of which Leveson greatly approved. Lara Fielden said that there are countries in which the press are good at regulating one another but that that is not the case in this country.

I have been censored by a newspaper only once in my life; I was censored by The Times. I wrote an article for The Times, which included a criticism of the News of the World—a short, one-sentence criticism. When the article was published, the sentence had been excised without my permission and contrary to our understanding that columns would not be edited. When I complained, The Times wrote back and said, “We can’t criticise a newspaper in the same stable. Even a columnist in the paper cannot do that.” I phoned up and spoke to Magnus Linklater, who said, “John, dog does not bite dog.” The press are incapable of regulating one another and still less capable of regulating themselves.

Does experience elsewhere—whether we are talking about Ireland or Denmark—suggest that the public interest defence, or whatever it might be, is sufficient to enable journalists to operate in the way that we would all wish to safeguard, as Mr Sinclair said, whatever emerges at the end of this process?

That is the experience. I cannot think of a single major news story in the past 20 years whose publication would have been affected by what has been advanced by the McCluskey group’s report. Every major news story, from MPs’ expenses to the McCanns, could be reported; the only significant difference would be that the story would have to be accurately reported. What happens in so many stories—I keep mentioning the cases of the McCanns and the Dowlers—is that the fundamentals of the story are there but the add-ons to the story create the damage.

I am a single journalist, but almost every journalist that I know is ashamed of what happens in newspapers these days. However, they have no control. That is why we flagged up the NUJ code of conduct, which is an unusual thing for an independent group to do. It is important to working journalists that they have some defences, because they are ordered to do things and if they refuse they are effectively dead in the water. Their careers could well be over. That is why the whistleblowing clause is of fundamental importance if we are to move forward, so that a journalist—man or woman—can know that in extreme circumstances there is someone to whom they can go and say, “I fundamentally disagree with this in principle and I do not want to do it, but I am being forced. Help.”

I differ from David Sinclair on one point. It is about not accuracy but fairness, ultimately. We cannot compel a newspaper to be accurate, but we can compel it to be fair. If it tells an untruth, we can say, “This is the truth: please acknowledge it”, and so on. Accuracy is something entirely different.

As you know, the Office of Communications has rules for the BBC and ITV that run to 135 pages—the editors’ code goes on one sheet of A4, incidentally. That is the difference in relation to the regulation of journalists such as Jim Naughtie and John Humphrys, who work under a code. Does it affect their ability to do their job? Not at all.

Is there anything in the international experience that would raise concerns about the future viability of the regional and local press? It has already been accepted that the regional and local press is a key feature of the press market in the UK. As Leveson himself acknowledged, it is seen to be above some of the main criticisms that he levelled at the industry. Has a financial burden from a compulsory system of oversight led to a diminishing of the regional and local press in, for example, Ireland or Denmark?

There is certainly nothing about that in Lara Fielden’s report or others.

I am sure that most people will realise that a principal problem for the press is that technology has moved on and the press did not recognise at a sufficiently early stage how to apply its product to that technology to maintain its sale.

The ready online availability of alternative products is what is causing the damage to the newspapers. We have come across no evidence to suggest that forcing the press to be part of a system of regulation has any impact on its ability to fund its operations.

The cost of running the PCC was about £2 million per year. The cost of paying off Rebekah Brooks was £10.9 million. The cost to News International of fighting years and years of battles in the courts in England was well over £10 million.

There is a huge amount of money splashing around in the press and the cost of running the PCC is quite modest. On this, our position is exactly the same as that of Leveson, which the industry did not challenge: it can afford to pay.

As far as I can tell, the local press has not been guilty of the kind of activity that disfigured the run-up to the Leveson inquiry. It has nothing to fear. Of course, it has real problems in relation to the competition, as all the printed press has, but that has nothing to do with regulation or applying the code.

Lord McCluskey, you mentioned earlier that you handed the report to the First Minister on 15 March. I know that you had a telephone conversation with him about the publication date. Have you discussed your proposals with him?

No. I have to say—I hope someone will tell him—that he has not even written me a thank you letter yet. No doubt he will. I will wait until Christmas before I come to a final conclusion about that.

There has been no communication whatever with the Scottish Government or the First Minister since I spoke to him on the phone on 13 March.

Has there been no contact even with his officials or the Cabinet Secretary for Culture and External Affairs?

The officials have done a kind of tidying-up job. They told us that the committee would meet and would ask us to give evidence—that is all. We have not met them. We are going out to dinner with them on Friday night because they did an excellent job for us. We are happy to entertain them; I hope that that is not illegal.

We have had no contact at all with our own officials, who were excellent, or the First Minister’s officials.

Do you have any idea whether the First Minister or the Scottish Government support your proposals?

I have not the slightest idea. The First Minister is often a wise and astute man, so he probably does.

I have a quick supplementary on Clare Adamson’s question on the inclusion of different kinds of electronic media, which as has been mentioned has not yet been decided on.

One of the industry’s criticisms was that, if it funded the regulatory body and the body passed judgment on misdemeanours by a website that was not signed up, the industry would be paying for the regulation of electronic media that are outside it. Do the witnesses recognise that as a difficulty? I think that Mr Deane does.

Absolutely. In such a situation, the Scottish industry would have to pay. To be fair to Lord McCluskey, he has mentioned that he does not necessarily think that bloggers should be brought into the equation. However, if there was a blogging site that was large enough to become involved and that individual blogger was brought forward to answer before the regulator as to a certain practice that had fallen foul of regulation, the industry would pick up the costs of that. The individual concerned can post whatever he wants.

At a time when the industry as a whole is suffering financially, that seems to be an especially strong hardship—in particular, as I said earlier, given that the regional press and the local press came out of the Leveson report if not in a shining light then certainly in a much better light than the mainstream press.

12:00

On a point of information, Leveson deals with that issue at some length and in particular by reference to the marvellous paper by Lara Fielden. If you want to know about regulation in relation to online stuff, Lara Fielden gives an answer to every question that you can think of. Please look at that paper, because there is regulation by Ofcom and by Europe as well as several other things and she details all that regulation in her paper, which is available online. Just look up “Lara Fielden” and “press regulation” and you will see the answers. You can get your officials to summarise the paper.

Can I make one point? Is that possible just now?

I was about to ask you a question so perhaps you can include your point in your answer—or is your point in relation to what we have been discussing?

It is to do with the Leveson principles more than anything else. The point that I raised at the outset in relation to necessity and proportionality was that the panel were invited to consider how the recommendations would need to be modified to take account of the Scottish context. I do not see that happening here; I see a considerable extension of Leveson.

I said at the outset that the McCluskey report is an innovative report. Things come into play that Leveson did not recommend or did not suggest. Leveson states in his report:

“I recognise in the result that my Report may be less helpful to those with decision-making responsibilities in Scotland, Northern Ireland and Wales, but I have sought to set out my analysis and conclusions in a sufficiently explicit and reasoned way to enable the experts within the devolved jurisdictions to see as readily as possible how they could be made to fit.”

My reading of that is that the panel was asked to propose a system that fits within the existing framework, but the McCluskey report goes considerably further than that. For example, Leveson did not recommend compulsion. Lord McCluskey’s view on that is that the press is going to fail anyway, but that is not Leveson’s view. Leveson has clearly given the press a last opportunity to get its house in order. He is not saying that the press is going to fail. He is saying, “Follow my regulatory system and there will be no need to come back before me ever again.”

When looking at the carrot-and-stick argument, for example, Leveson recommended alternative dispute resolution, the costs issue and exemplary damages. I whole-heartedly accept that exemplary damages cannot play a part because they are not part of Scots law. Unless we amend Scots law, we cannot bring in exemplary damages, but why throw away everything on the basis of that one issue? We have costs and we have alternative mechanisms. If exemplary damages are the overriding factor, they need to be looked at, but if they are not, why throw away everything with them?

Why do we not proceed on the basis of a royal charter, if we are able to do that, with the removal of the issue of exemplary damages? Why not bring in other aspects? Why not bring in provision in relation to costs whereby the rules of court can be amended? For example, in cases where a pursuer is entitled to an uplift in their costs in the event of success—as they are entitled to in the current regime—why do we not include in that entitlement that, if there is a media news-related defendant who has not joined the regulatory body, additional costs can be awarded?

Likewise, in relation to damages, why do we not make it a provision that, if a newspaper or a news organisation has not signed up to the regulatory code, that is a matter that the trial judge can take into account in assessing damages? As a general rule, our damages are not that much lower than damages in England in relation to libel cases. Since the 1990s and the Elton John case, the English courts have been required to look at the level of damages on the basis of damages for personal injuries, and the level of damages in England has gone down.

There are mechanisms. Our costs in relation to libel cases are nowhere near as high as they are in England, where they are completely out of control. If the fear is that the costs are going to eat into the award that an individual gets, we should just allow the costs to be increased.

You have moved into the area that I was going to ask you about. I was going to ask you, given that you do not agree with the McCluskey expert group’s recommendation on press regulation, what you believe the solution is. It seems that you believe it is a kind of royal charter plus.

It is a royal charter plus or a royal charter excised. You have to excise the issue of exemplary damages.

Under the proposal that Leveson put forward, exemplary damages are important in terms of the royal charter because they represent, if you like, a motivation for joining the body in the first place. We do not have exemplary damages.

We do not, but we could provide another motivation by saying, “You’ll get increased costs awarded against you in the event that you do not—”

I am no expert on the law, but how could costs be increased in this context?

An individual is entitled, under the rules of court, to apply to the court for an uplift in relation to their costs.

Yes.

In those circumstances, if an individual sues a newspaper and it has not joined the code, the courts could say that the costs that the newspaper has to pay will be higher because of their failure to join the code.

Maybe it is the definition of the word “costs” that I am struggling with.

Their legal expenses.

Would it be reasonable, then, for a court to say, “You can apply for your legal expenses—your costs—but that would include the fact that you have not joined the regulatory body”?

No, this is against the press. It is an encouragement for the press.

Lord McCluskey wants to comment.

First of all, it is possible to get an uplift for expenses, as we call them in Scotland, if the case is of exceptional complexity, difficulty or importance. No doubt you could by statute, but not by rules of court, amend that so as to make it a penalty. However, that would instantly run into problems with the ECHR—exactly the problems that have been identified by counsel on behalf of the press in relation to costs and exemplary damages. This is not a solution to the problem, and I have yet to hear what the carrot is.

I have one other point on the costs of expenses. A company that can dismiss one of its ex-editors and pay her £10.9 million as a golden goodbye is not going to be frightened by an award of £50,000 of extra expenses in Scotland.

But a local newspaper almost certainly would be. If a local newspaper was concerned about running a particular story, it might ask whether it is worth running it given the damage that could be sustained.

I thought the question was whether it should opt in or opt out, and not whether it should run a story.

The evidence has been very interesting, but I have one final question that I suppose is more for Mr Deane than for the other panel members, although I am happy for everyone to respond to it. Hypothetically, if it is not compulsory to join the regulatory body and certain individual newspapers, groups, online publications or whatever else is covered simply turn around and say, “Well, we’re not joining”, what do we do?

Leveson has made it perfectly clear that if they continue to breach on that basis the only solution is statute.

Do Mr Sinclair or Lord McCluskey have anything to add?

We came to the same conclusion. What always rings in my mind are the words of Leveson himself, who said that he was not prepared to allow the media to continue to drink at the last chance saloon.

Our report refers to—and the Leveson report fully covers—the fact that the Irish made it plain that, if the press did not sign up, it would be made compulsory to sign up. As a result, all of the press has signed up. The Daily Express, which did not sign up to the Press Complaints Commission, The Spectator, Private Eye and so on circulate in Ireland as members of the Irish body. Do you think that they would stop selling newspapers in Scotland if we had a separate regime? Certainly not. It is absurd to suggest that the press is really frightened of this. As Lara Fielden has pointed out, the press is united about only one thing, which is to preserve its uniquely privileged position of being above the law.

On that point, I draw this evidence session to a close. I thank the panel very much for their evidence and I suspend the meeting briefly to allow a changeover of witnesses.

12:11 Meeting suspended.

12:15 On resuming—

I welcome our next panel of witnesses: Pete Murray, a journalist from NUJ Scotland, and Dr Eamonn O’Neill, lecturer in investigative journalism at the University of Strathclyde. Good morning, gentlemen, and thank you for coming.

I will begin the session by asking you both for a general overview of your opinion on the situation with regard to, first, the Leveson report; secondly, the royal charter; and lastly, the McCluskey report. I know that that is a lot to cover, but I would appreciate it if you could do so in one or two minutes. I would like to establish your view on those three pieces of work and where you think the strengths and weaknesses are.

I will kick off and be as brief as possible. The picture is obviously complex and, from the perspective of someone who practises investigative journalism nationally and internationally and who teaches it, it seems that the issue of how we go about our business and our trade has become very foggy and muddy.

Some interesting, innovative and clever ideas have come out of the Leveson report. The notion of arbitration and shared costs and the idea of using a carrot-and-stick approach are innovative and could be taken forward. On Leveson’s stance on compulsory membership of a regulatory body—which we heard about from Campbell Deane, Lord McCluskey and David Sinclair—I would go along with Campbell Deane’s interpretation, which was that it is very much the last chance.

Bringing a royal charter into being is an interesting manoeuvre. I note Lord Leveson’s suggestions and provisions, and the way that he talked about how Scotland could fit in with them. That was interesting, and he was mindful that the situation with the law is different north of the border.

I welcomed many aspects of Lord McCluskey’s report. I am not entirely sure what people who practise investigative journalism would think of the notion of compulsory membership—I am not sure how that would work in practice. I am mindful of the notion that local newspapers would be impacted for the reasons that the committee has already heard about in detail this morning, so I will not go on about that. However, I note that local newspapers—especially in Scotland, and throughout the United Kingdom—do not do much investigative journalism, so curiously it is not an area that would apply to them. The situation is different for tabloids, which are a completely different sector.

I am not entirely in agreement with Mr Deane on the notion of damages. Scotland has been a sensible example in the past, with the notable exception of the Tommy Sheridan case up the hill, in which the figure of £200,000 was awarded, although I am assured that not a penny actually changed hands. An award of that degree was a watershed in Scotland—before then, and certainly since, there have been very few cases in which such figures have been mentioned.

The convener did not ask me about my reaction to the Irish example, but I will speak about it briefly. The Irish system has been interesting where it has worked. I suppose that it could apply to Scotland, which is a smaller geographical jurisdiction. All the editors know one another very well, so they took on board very quickly the notion that, if they did not sign up, they would be dealt with severely.

The situation in Ireland is not quite as great as the Irish think when they congratulate themselves on how perfectly their system works. In broadcasting, there have been brutal breaches within investigative journalism in the past 18 months. A particular case, which involved RTÉ, ended with enormous damages having to be paid out and the Broadcasting Authority of Ireland levying a huge fine on RTÉ.

For us as investigative journalists, the picture is complex. It applies in some ways to investigative journalism but so many investigations now involve cross-border co-operation that the jurisdiction situation is getting complicated and it will be interesting to see how it plays out.

The horsemeat scandal is a classic example of something that does not recognise political boundaries or borders. If Scotland brought in a marginally different or completely different system from that in the rest of the UK, how would that cause difficulties that do not already exist for investigative journalists who operate across borders on the kind of story that you are talking about?

There would be very little difference, frankly. The majority of the serious investigative journalists whom I know tend to adhere to the excellent NUJ code of conduct; they would already be signed up to that. You have to remember that such serious and sober investigative work is legalled to within an inch of its life anyway. Investigations that are seen in the press or are broadcast have sometimes been conducted carefully to the point of absurdity.

The horsemeat example is a good one. The majority of the journalists whom I know would be responsible within their own jurisdictions, and on top of that they would take into account the fact that their work could be published across different platforms, as well as digitally. To answer the question, there would not be much difference.

Thank you.

It was useful to be able to listen to Lord McCluskey and his colleagues. We agree with an awful lot of it and it is particularly encouraging for us to hear about the Irish model and the ombudsman model. The NUJ presented that model during its evidence to the Leveson inquiry, because we were involved in setting up the ombudsman model in Ireland—we operate in the UK and Ireland.

There is a danger that the royal charter is now seen as being the only game in town because it is the option that has been pushed forward at Westminster. However, if this committee and Parliament were to consider other options—as laid out in the appendix to the McCluskey report, perhaps—you might want to take a more detailed look at how an ombudsman system might apply as a way of regulating the press in Scotland.

The crucial thing for the NUJ is that the press regulator should have teeth. That was mentioned earlier. The regulator should have teeth, and it must be independent. When it comes to applying codes of conduct and so on, we would recommend—of course we would—our own code of conduct. We think that it is informed, and it has been built up on the basis of years of practice and of people working in newspapers, broadcasting and elsewhere. It also has the additional conscience clause, which David Sinclair mentioned when he was talking about the fact that an editor can apply pressure on a working journalist to go off and do a story that they might find obnoxious, immoral or potentially illegal, and their career might be under threat if they refuse to undertake that job. The conscience clause is a crucial rider to all that. Indeed, when Lord Leveson asked Rupert Murdoch whether he thought that it was a good idea, he said that it was quite a good idea. There is no reason why other editors should not apply it.

Having worked at the BBC for a long time, I am familiar with how royal charters operate and how they govern the BBC. I also worked in Zimbabwe for a long time, so I am familiar with how the press operates there. That was before the worst of Mugabe’s regulations took effect, I have to say, but I know how both situations operate.

One of the concerns that the NUJ has expressed—I expressed it to this committee a couple of months ago when I was talking about the BBC—is that media proprietors such as Rupert Murdoch had put the Government under considerable pressure in 2010 when the renegotiation of the BBC licence fee was being discussed. That does not directly affect the BBC charter, but it shows how some powerful forces can influence how the BBC operates. We are concerned that, unless the regulator is genuinely independent of Government, the proprietors and the editors, its operation might come under undue influence.

We welcome the tone of what Leveson has said, and the tone that Lord McCluskey has struck in the appendix that contains the draft bill: press freedom should be at the core of all this work. We absolutely reject the suggestion that Rupert Murdoch’s son, James, made in Edinburgh a couple of years ago that press freedom is guaranteed by the search for profit. We think that the search for profit is one of the reasons why many of the newspapers got into trouble in the first place.

I hope that we might have a chance to discuss the financial underpinning of not the regulator but the press in Scotland, because we think that a serious problem underlies the reasons why the press got into difficulties and we are concerned about what might happen in the future. We do not think that regulation of the press in Scotland can be separated from our wider concerns about the way in which the Scottish media are being forced to operate and the lack of support for quality journalism at the moment.

Members should indicate when they want to ask a question.

Lord McCluskey raised concerns about the royal charter, with regard to its undemocratic nature and the fact that the Scottish Parliament will have no say in its wording and will be unable to amend it later. As journalists, how do you feel about that?

The regulator needs to be independent, and that means independent from politicians as well. It is important that the model that is set up is underpinned by statute. That must involve democratic oversight of the whole procedure. If there is to be a separate Scottish model, MSPs should have considerable input into that.

The important point is that, although the model should have statutory underpinning, it should then be absolutely independent of politicians and proprietors. Of course, that is a difficult operation to undertake. I have no view on the matter other than that. It has to be independent of politicians as well as proprietors.

You say that it must be independent of politicians but, as Lord McCluskey said, only certain politicians have drawn up the charter—only the Prime Minister and those whom he deemed worthy of being let into the inner circle. In that sense, it is very much a political creature, is it not?

It is, yes. That is one of the points that we have consistently criticised since the publication of the Leveson report. We have consistently argued that the royal charter is not sufficient as it is at the moment, and that there should be opportunities for politicians—yourselves included—to amend it if possible. If the Scottish press refuse to take part in the system, because it is unsatisfactory, we recommend that you and the press adopt a sort of ombudsman model, such as the one that exists in Ireland. It is reassuring to hear that that might still be on the cards at some point. That was inherent in what Lord McCluskey was saying.

Dr O’Neill mentioned arbitration. If we were to adopt a royal charter plus or a royal charter minus—whatever you want to call it—what role, if any, do you see arbitration taking thereafter?

The process is very complex. In considering the issue over the weekend and from speaking to some lawyers in London, I suppose that there is a sense that arbitration is central and very important, but my own take on the issue, which echoes views that I have received, is that arbitration would work only with difficulty. Obviously, everyone would need to be signed up to the idea, so allowing people in any shape or form to opt out of taking part in arbitration would have an impact on how the process would work. I could go on about this at length, but the summarised version of my take on the issue is that arbitration is central; how it would work in practice remains to be seen.

12:30

Does Mr Murray want to respond as well?

Of course, arbitration would be a complicated procedure to operate and draw up. In some cases there might be binding arbitration and in other cases there might be more a process of conciliation, so there are several different models that one could adopt. The regulator might wish to apply binding arbitration in some cases and a more conciliatory approach in others. In a sense, that is the beauty of the Irish model and one of its successes, in that it is flexible. We would like to see that applied here as well.

My second question relates to the McCluskey recommendation for a whistleblowing option. You have mentioned some of the pressures that are put on journalists, and the NUJ evidence is quite brutal in its description of some of those instances. Is provision for whistleblowing necessary? Why does employment law not cover journalists in that context?

I will be brief, because I know that Pete Murray will have a lot to say on this. The reality is that, in practice, that just does not work. Journalists often consider that they undertake what is as much a vocation as a job. In the workplace, they are often put under the most extraordinary pressure—especially, I am sorry to say, in the tabloids—to do things that they would not normally do. Over the 25 years in which I have been in the business, I have heard innumerable examples, including of young journalists being told to pretend that they are policemen to get photographs of the deceased after an accident. Things like that are just appalling, absolutely horrific and horrendous. People are put under that kind of pressure by bullying individuals, who tell them, “I can stop your career from advancing.”

One of the few lights at the end of the tunnel has been the NUJ stance on the issue. I have seen people who have been reduced to wrecks, for whom the only place where they could seek any recourse, or even a fair hearing, has been by going to the union. Even non-members have approached the union to say, “Look, I never thought that this would happen, but it has happened.”

The worst thing is that such things often happen at the beginning of a journalist’s career, perhaps when the journalist has come through the route of applying for a very junior position at the age of 18 or 19—although that does not happen as much now—or at the age of 22 or 23 or when they are doing work experience while at university. When people are at their most impressionable and at their most ambitious, they might encounter someone who is literally bordering on psychotic in forcing them to do something that goes against every shred of their conscience, both professionally and personally.

When we gave evidence to the Leveson inquiry, our counsel had to argue that some of our evidence could be given anonymously because it involved testimony and witness statements from a number of working journalists. They said that things had become impossible: they had breached the code; they had breached wider ethical codes; and, in some cases, they had been asked to break the law in search of a story. They did not want to do that, but the reason that such things happen is because there is a bullying environment in the newsrooms where they operate.

We do not think that it is a coincidence that many of those workplaces are places where the NUJ is not recognised. Some people might say, “Well, we would expect the NUJ to say that”, but in practice, where the union is visible and strong and where people feel that they can approach a union rep for support if they feel that they are being bullied or being forced into doing something that they do not think is right, those things are stopped or are at least not as bad as elsewhere. At Leveson, we argued the case that recognition of trade unions such as the NUJ should be part of the regulatory code. It was perhaps a step too far for a judge of Lord Leveson’s stature to recommend union recognition, but it is important to restate that it is not a coincidence that the worst abuses happened in places where the NUJ is not recognised.

We also think that it is a function of overwork that so many people are being put under such stresses and strains. Again, that links into the wider problem of lack of staff on newspapers and so on. The committee will be familiar with that, but it is worth restating.

I declare an interest, as previously noted, as I am a member of the NUJ.

It is wise of you to do so.

There are those who argue that some of the worst excesses around phone hacking happened because existing legislation was not appropriately applied and that there are as many questions to be asked about the police, for example, as there are about the press. Do you accept those views or do you still think that something extra has to happen?

Laws are useful only as long as they are enforced. Nick Davies uncovered phone hacking in his stories stretching back years and before that in his book “Flat Earth News”, when he discovered it almost by accident when someone came to him. The answer to your question is that the journalists who embarked on phone hacking and the police—some at the highest levels—who were involved in that corruption just did not give a damn what the law was. They thought that they were completely above the law and, in full knowledge that they were breaking the law, they went about doing that regularly because of the cash involved. They put their personal profit above any respect for the law of the land.

Is that because the existing legislation is either badly drafted or not adequate, or is it because the people who are interpreting that law are not doing their jobs properly?

I think that it is both. It also comes down to the individuals and the editor involved. In any investigation that I have ever been involved in, if I turned up with a very good story and spoke to my editor, the first questions that a responsible editor would ask are, “Where did you get this? Who did you speak to? What did they have to say? What exactly took place at the meeting?”

From what I have read and have been told, what seems to have happened with phone hacking and so on is that those questions were simply never asked because it was an endemic part of the recognised culture in the workplace at those publications that corruption took place morning, noon and night. They simply thought that they were above the law, because it was all about getting as many readers as possible to buy the newspapers. The approach was damn the law, and if they got into trouble with the law, that was a problem for Tuesday morning, 48 hours after the story had been published, and anyway they had very deep pockets to handle those problems. It was very cynical and very black and white; there was no debate about it as far as I could see.

What makes you confident that if we were to have another piece of legislation to ensure that the whole situation was tidied up, it would not be ignored in the same way that the existing legislation was?

I see where you are going, but it has all come out now, it has happened and the Leveson inquiry has reported. In other words, we know what was going on and it would not just be a case of the new legislation or charter coming into effect without the public knowing what has happened. Such was the shock and depth of feeling, even to journalists such as myself—I was talking to Nick Davies on Saturday in London and he was saying the same thing—that we were absolutely floored by what was going on.

In case any member of the committee thinks that that kind of stuff was widely known among people who do investigative journalism, I should say that I had never heard of it in my entire career and I know that Nick Davies was exactly the same. That was why for him it was an investigation into almost a foreign culture.

Finally, if there was to be another piece of legislation, would you recommend that regulation should be mandatory rather than voluntary?

That is complicated. I need to give you a longer answer on that. As journalists, we are not keen on anything that would abridge any more freedom of the press; we do not want that. The whole strange academic question that has to be wrestled with is how to regulate a free press. That does not in itself work, even intellectually, but in this particular case any approach would have to be based on what I mentioned earlier when we talked about arbitration. It would have to be a carrot-and-stick approach and it would have to be worth while for the press to get involved, for the right reasons as opposed to more cynical ones. I like to think that we could end up in a situation, as Pete Murray said, such as they have in Ireland with the ombudsman, but I am not entirely sure that the legislation can make that come about. There has got to be a will as opposed to the press just following the way.

I want to follow on from that on the difference between the royal charter proposals and the McCluskey report proposals. In essence, it boils down to the one difficulty about compulsion versus carrot and stick. On a level playing field, there might be an easier choice, but we are not operating in the same legal context. Given that we do not have exemplary damages, if we accept the royal charter model, what is the motivation for publishers to join any regulatory body?

That is an interesting question. We agree with Leveson when he says that, if the publishers do not accept a voluntary regulatory regime, it will be forced on them, and it will then be up to Parliament to decide how to enforce that.

We think that there needs to be a system of regulation. Since well before the hacking inquiry, we argued that the PCC was not working and could not work under a configuration in which the regulator did not have the power to enforce a lot of its decisions and the press proprietors and editors were able to opt in and opt out.

The system has to be underpinned by statute so that there is a difference between regulation and legislation. Eamonn O’Neill and Liz Smith discussed the police, and there was an issue around whether the Metropolitan Police applied the law in time. It was mostly the probing work of Nick Davies and, for example, the Financial Times that made the police take some of the issues a bit more seriously before the Leveson inquiry began.

The phone-hacking scandal and the Leveson inquiry have exposed a great deal of what is going on in the press. There is a unanimous view among the editors, proprietors, politicians and working journalists that a new system of regulation will have to be enforced and that there is no option to do otherwise, regardless of whether there are punitive damages.

This week, the Westminster Parliament will consider new defamation legislation. We are encouraged by some elements of that. In relation to punitive damages, the Scottish libel laws might be coming closer to the position of the defamation law south of the border.

One of the elements that could be taken into account is that, as is the case in Ireland, we could say to a newspaper editor or publisher that it is worth their while being involved in the regulatory regime because the fact that they are a member—that they signed up to the principles whole-heartedly and for the right reasons—will be taken into account if, for example, a case for defamation comes to court and the judgment goes against them and damages are awarded. Also, if it were hinted that legal costs would be involved, that would act as part of the carrot, as it were.

On whether the regulatory regime should be compulsory or voluntary, it is ironic that, although Scotland played very little part in the phone-hacking mess, which was predominantly a south-east of England problem, Lord McCluskey’s report goes down the compulsory path and Leveson leans towards voluntary membership. That irony has not been picked up on too often.

Have you a view on the local and regional press being involved in the regulatory regime at UK or Scotland level? I know that Leveson excluded local and regional press—

He also excluded online journalism, to an extent. It was dealt with in a hasty way, which is ironic, given that most investigative journalism these days is conducted online. Certainly, the majority of it is presented in a multi-platform digital way.

As far as local press goes, very little investigative journalism is done at that level. That is the case usually for the most straightforward of reasons—for example, editors do not know what that kind of journalism entails, so they do not touch it with a bargepole; or there is some sort of verbal code that is never written down that says, “We don’t do this because it might cost us money in court.”

The local printed press across the UK has been contracting and withering in recent years, so I suppose an argument could be made that it would be unfair to require local press to sign up to something at a time when it is being brutalised economically. That said, it might be to its benefit ethically to sign up. I can see the arguments on both sides. It is a complex picture for the local press across the UK, including in Scotland.

12:45

It was useful that, when Lord McCluskey spoke to the committee, he mentioned the fact that The Scottish Sun is part of the News International stable. Johnston Press is a cross-border operation, and Newsquest is an international proprietor. There is a danger of complacency among some elements of the Scottish press. There is a view that, because they were not named and shamed in the Leveson inquiry and the evidence to Lord Leveson, they are somehow better than that, and that they have their own ethical code that has not been breached in the past five years or so. It would be a mistake to see the situation in those terms.

We in the NUJ believe that all parts of the press, including the national press—I include The Herald and The Scotsman in that category—and regional and local newspapers, should be subject to regulation, and we would like it to be the kind of regulation that the NUJ is involved in. That is the model that the Irish ombudsman operates and we believe that it would be a useful model to adopt for the whole UK—not just for Scotland.

I am intrigued by Mr Murray’s observations. I think that you are right about the unacceptability of the status quo—there is unanimity on that. Nobody believes that it is not necessary to make some form of change, but that appears to be where the consensus breaks down.

I accept everything that has been said about the importance of having some form of protection that allows those who feel under pressure in the workplace to express that in a safe and secure environment—whether through the whistleblowing route or something else. However, I have yet to find a journalist in this institution who has many good things to say about the recommendations of Leveson, and journalists have even fewer good things to say about the recommendations of Lord McCluskey.

I am finding it difficult to get a handle on precisely how the journalism profession, from its perspective, believes we can protect free speech and investigative journalism while accepting that the status quo is not working as it should. Dr O’Neill has testified that the legislation and the safeguards that are in place have been routinely—and, in many cases, systematically and cynically—disregarded. I am struggling to understand where the journalism profession thinks we ought to go in order to strike the most appropriate balance.

The answer depends on whom you ask. Journalism is a broad church, as I am sure you appreciate. Oddly enough, those of us who do serious investigative work and are involved in it at various levels regard the phone-hacking scandal as a triumph for investigative journalism because of the fantastic work of Nick Davies. He was routinely threatened and put under pressure. It was a really harsh and harrowing experience for him, as he told me recently.

At the—if you like—serious end of the business, colleagues whom I know have, to put it simply, abided by the rule book for decades. The reality is that the phone hacking was happening at the tabloid end of the business. I have great friendships with colleagues who work at that end and they deliver fantastic work that reaches a lot of people and tells a lot of important stories.

That said, the reality that emerges from the phone-hacking scandal is that one part of the industry—in fact, it is almost exclusively a part of the business that is owned by one proprietor—had, for reasons that are still not entirely clear, fostered a prevailing attitude in the workplace that allowed and encouraged regular phone hacking. If those people had not been caught, outed, arrested and so on, I have no doubt that this morning they would be getting on with that, that money would be changing hands and that private investigators—who have nothing to do with the profession that I love dearly—would be making cash off the back of it. I am sure that there would be more Milly Dowler stories and more breaches along the lines of what happened to the McCanns and all those awful things.

The committee will not hear much from that end of the business or from the people who are still in a way tied to that approach and are still using it. They are still trying to massage their way out of it and to say that it was not so bad, and so on.

Other colleagues whom I know, who are in the majority, would say that they are keen for the industry to be helped and assisted. They want legislation or any other measure to be proportionate and thorough, and to involve an understanding that it was not the entire profession that was at fault. One part of the profession, because of the egregious acts of a very small number of people, has caused ructions. The majority of the colleagues whom I know went about their business and actually reported on the issues in a proportionate, detailed and factual way. Anything that the committee can do to show cognisance of that, and to be delicate but thorough, would be good.

As journalists, we greatly value our freedom and independence, but we are aware that, in reality, unless we make it tough for some people, they will routinely push hard at the edges, and will break the law if they think that they can get away with it. I am sorry to say that, no matter what is brought in and no matter what arrangement this Parliament or Westminster eventually comes to, I have no doubt that, the minute that it is passed, certain sections of the press will try to find ways to get round it in the name of a story. That is because, unfortunately, the corruption was not at the low levels but at the highest levels and involved senior figures in the press industry as well as senior officers in the Metropolitan Police. I have no doubt, given the amounts of money that we are talking about, that as far as those people are concerned, laws are there to be tested, because money has to be made.

Members will be familiar with the cliché that, if you put two economists in a room, you will get three different opinions. It is much the same with journalists and in the National Union of Journalists. I have spoken to colleagues in the Parliament and attended a couple of NUJ meetings here, as well as many other meetings throughout Scotland, the rest of the UK and Ireland, and in all cases there have been frank, honest and full exchanges of views. There was considerable debate in the NUJ about what attitude to take towards the Leveson inquiry when it was first set up and what our attitude should be to any system of regulation. Debate is continuing inside the NUJ on issues such as regulation of online media, which is one of the issues to which Lord McCluskey refers in his report.

That debate is continuing, but I can tell you that our views on regulation are informed partly by our experience of the ombudsman in the Republic of Ireland and partly by the experience of my general secretary, who worked at the Daily Express. Although she did not experience some of the more recent troubles, she has certainly clashed with editors and news editors on a regular basis when asked to do things that she did not approve of and that she felt went against the code of conduct. Our view is also informed by a number of academic members of the NUJ who consider ethics and how to apply the code of conduct.

At the moment, that is broadly our settled view within the NUJ about how we should proceed. It is not cast in stone, but the fact is that we are not fearful of regulation per se; we welcome it.

I have worked for many years under a system of regulation at the BBC—partly under Ofcom, partly under the BBC’s producer guidelines and partly under the BBC trust. Being subject to that system of regulation does not affect the work of Brian Taylor, Jackie Bird or John MacKay. We believe that a system of regulation can help the press in Scotland and the rest of the UK to work better.

Is there any evidence that journalists in countries that have compulsory regulatory systems are unable to do the kind of investigative work that we have been talking about, to uncover wrongdoing, to expose corruption and to do all the other things that we want the press to do?

I am involved in an expert panel that has been set up by the European Parliament to consider the funding of international investigative journalism. As part of my remit on the panel, I have looked across the 27 member states, and the picture that has emerged is complicated. The situation in each country depends on its individual historical culture. Some of the original 12 or 15 member states that signed up in the 1970s and 1980s—France, Portugal and Spain—which would be regarded as being highly developed western economies, have a fairly brutal track record when it comes to investigative journalism. The issue concerns not so much signing up to compulsory bodies but how the courts handle investigations, with some extremely high damages being awarded. That seems to frighten people away from engaging in investigative journalism.

In other countries, including those in the Scandinavian region, there is a robust culture of investigative journalism that is well funded and well legalled, with legal checks coming at the beginning of the process of investigation, throughout the process and at the end of the process, which means that projects very rarely end up in court. Poor investigations can end up in court, of course. We must also bear in mind the situation that we had in the 1980s and 1990s when, because the libel laws were so punitive against the press, someone such as Robert Maxwell could issue writs left, right and centre—even if the story were demonstrably true—which could have a chilling effect on investigations.

The evidence is so complicated that I cannot give a straight answer to the question; I cannot say whether signing up to a compulsory body makes it more or less likely that good investigative journalism will take place. We simply cannot consider that question without considering the wider legal context and the historical backdrop of individual countries.

I accept that, but you seemed to indicate at least twice during that answer that, irrespective of the regulatory system, the fear of being sued is a bigger fear than the regulatory system itself.

I indicated that it was one of the factors. It depends on the country and on the publication. Some papers have deeper pockets than others and can better withstand that kind of environment. I was trying to say that you cannot look at the situation out of context. If there is a harsh legal environment in place and libel laws are way too strict, it is difficult to do serious journalism, no matter how truthful it is, because that would be no defence if a journalist were tied up with writs.

My second question concerns compulsion or, rather, the threat of compulsion. Am I right in thinking that that is the situation in Ireland—that the press was threatened with compulsion, and everybody signed up to avoid that?

Yes.

We have heard this morning, and on other occasions, that the Leveson report says that this is the last chance saloon and that, if the press does not sign up, compulsion is the only place left to go. However, in the UK, all sorts of groups have indicated that they are not going to sign up to the regulatory regime. What is the difference between the threat that Ireland made and the threat that seems to be present in Leveson? Is it the case that people here do not treat the threat seriously? Do they not really believe that that is where we will end up?

13:00

That seems to be the case at the moment. Literally, nobody knows. In Ireland, the threat worked and was, along with the Government’s input, sufficient to achieve the desired result. The picture in London is complex because there have been political divisions about the right way to move forward, and manoeuvring is taking place—quite openly in some cases—by people who do not want to sign up to any regulatory regime. There does not seem to be such a harsh threat hanging over them, even after Leveson. The threat seems to have been watered down and the impact of Leveson seems to be starting to dissipate—today’s meeting of this committee notwithstanding. In Ireland, there was a quick and coherent process and everyone took the threat seriously. I am not entirely sure that that is what is happening in London at the moment.

I hesitated to answer your question initially, but Eamonn has cleared the ground a little bit.

It comes down to political decisions and, to a large extent, to the fact that David Cameron blinked first in the negotiations that have led to where we are now. It is a question of political will. If politicians and people like us believe that regulation is the way forward, we can argue about the form of that regulation, but it will have to be binding regulation. It is not surprising that lobbying was carried out before and during Leveson and is continuing now, but it is alarming that the Westminster Government has caved in and that we have lost the bridgehead that we had immediately after Leveson. We have also lost the cross-party consensus to which David Cameron said he wanted to hold. It seems that he and the Conservatives have broken that consensus, which is disappointing. We might be able to create consensus again in a way that might allow a regulatory system with a statutory underpinning to be placed back on the agenda.

Thank you both for your attendance. Obviously, we have only two weeks to come to a view on the matter, given the timetable for the royal charter.

13:03 Meeting suspended.

13:05 On resuming—