Item 2 is an oral evidence session on the implications for Scotland of the proposed royal charter on the self-regulation of the press. Last week, we took oral evidence from two panels; this week, we will take evidence from a further two panels before hearing from the Cabinet Secretary for Culture and External Affairs and her officials.
We should, as journalists, be proud of the code. I was slightly concerned about some of the evidence that had been laid before the committee that pointed to the editors’ code as being almost clubbable—a kind of gentlemanly agreement, or organisation for a game of poker in a pub. That is not my experience. The code is a binding agreement that we have with our journalists; it is written into their contracts. Breaches are taken seriously, by me as an editor and, further, by our human resources department.
I agree that the code is a good document. Its biggest weakness—if it has one—is how it is perceived by the public. The public do not like it, and they do not think that it or the Press Complaints Commission works. Editors and journalists must address that problem.
I agree with my two colleagues. Andy Harries is absolutely right. The code is taken incredibly seriously by every journalist whom I know. The Herald is in contact almost weekly with the PCC over one matter or another. As Andy Harries said, the code is binding and written into everybody’s contracts.
Last week, Lord McCluskey described the PCC as “totally and utterly ineffective.” As recently as Sunday last weekend, in my Sunday paper I had to run a PCC adjudication with which I fundamentally disagreed—I thought that it was completely wrong. Nevertheless, because there is a binding arbitration process, I was obliged to run its full adjudication with its wording and a headline of its choice on a page of its choice, and I duly did that. To me, that is not a sign of something that is completely broken.
Thank you very much for those answers, gentlemen.
I think—
Just let me finish, Alan.
The problem that we have with phone hacking is that we are dealing with serious criminal activity, and the code was not designed to deal with that. I would have thought that the public’s criticism of the PCC was that it did not point the police and criminal prosecution service in the direction of taking action against people who are deemed to have broken the law. It was a bit rich of Lord McCluskey to say last week that we want to be “above the law”. Sixty journalists are currently charged with various serious offences, and Andy Coulson is charged with serious offences on both sides of the border. I do not think that there is any attempt by the press to be above the law. The press is saying that the editors’ code was not set up to deal with criminal offences and, if criminal activity is determined, the appropriate authorities should proceed to deal with it.
Phone hacking notwithstanding, a number of cases in which people felt that they had been continually harassed and that there had been continual invasions of their private lives went before Leveson. I am thinking of the McCanns in particular. Why was the PCC not able to stop the repeated harassment of such people?
As far as I am aware, laws exist to prevent harassment, and as far as I can see, the McCanns were let down by the system. That was possibly a failure of the system as much as anything else. I think that we all agree that what happened to the McCanns was completely and utterly wrong and that the PCC failed in that case.
I am not suggesting that the system is perfect and that we should not do anything about it.
No, but laws exist to deal with most of the issues that I am sure the committee will confront us with. There are laws in place to deal with criminal behaviour, invasions of privacy and harassment. Unfortunately, for whatever reason, the people who were subjected to some of that behaviour were let down by the system and not just by the PCC but by other authorities, too.
I was not at last week’s meeting, but I have read the evidence that was given. Pete Murray from the National Union of Journalists Scotland said:
I did not hear all of that.
Yes.
Yes.
Pete Murray said that there is a general consensus among
Yes, that is pretty fair.
Yes. My concern about some of the things that Mr Murray said was to do with opting in and opting out, which I think is one of the bones of contention when it comes to what Lord McCluskey proposes. In his report, he proffers something quite different from Leveson, who tried to keep things at arm’s length and to find a carrot-and-stick approach. I thought that there was some interesting detail in the report that was appended to the minister’s letter, which I got over the weekend. It suggests that there are mechanisms by which a carrot-and-stick approach could be used. McCluskey appeared to rule that out, simply because aggravated damages do not form part of Scottish law; therefore, he felt that other methodologies could not be looked at. It is quite clear from that report that there are other ways of incentivising publishers to take part in whatever system we arrive at.
I am sure that someone will mention this, but our concern about arbitration is that if a system of arbitration is brought in whereby papers could be opened up to vexatious complainants, we would be tied in knots, which I do not think would serve anyone’s purposes particularly well. The papers that I talk to are incredibly concerned about the introduction of a form of arbitration that could lead to resources that are currently used for reporting on matters of public interest being tied up in dealing with all sorts of minor complaints, which could end up costing us a fortune. That issue will probably be touched on later, but I wanted to raise it now, because almost every proposal that I look at mentions arbitration in some form, and that causes us serious concern.
I am sure that we will come on to deal with arbitration, along with other issues, in some detail, but I would like to clarify something that I am not sure that I understand. I think that Mr Harries mentioned that he had been involved in a binding arbitration process involving the PCC.
I was involved in a binding arbitration process under the PCC as it operates at the moment.
Right, so given that there is binding arbitration at the moment, what is the problem with arbitration going forward?
Every plan that I have seen for arbitration involves opening up a system whereby complainants can start a financial action against a newspaper to seek small claims damages. As my colleagues next to me will know, complaints come in all the time about certain aspects of our work. They are often highly subjective. If the system that is advocated by some were to be set up, whereby the complainant would not face any potential costs but the paper would, that would be hugely time consuming and would drain resources that are already extremely tight.
Thank you very much. As I have said, I am sure that we will come on to that issue later.
Last week, we had a very considerable discussion on whether it was necessary to have additional legislation or whether all we needed was for existing legislation to be implemented better and for something to happen to the code. Do we need an extra piece of legislation to solve some of these problems or should we simply adjust the code?
What do you mean by “extra piece of legislation”?
Can we have better regulation either by amending the current legislation or by ensuring that there are few loopholes for the press to use, or do you think that the existing legislation is satisfactory and all we need to ensure is that the code works?
As we have said, the existing legislation covers a vast range of criminal activity and I am sure that we will all agree that laws are in place to deal with that. Moreover, in civil law, there are laws covering defamation, harassment and privacy. We have all agreed that the PCC failed in some particular and very high-profile cases and, because if nothing else the public’s perception of the PCC has been very badly damaged, the industry has agreed that the PCC and that particular system of regulation need to change.
In response to Ms Smith’s question, I think that that is the important point. We are not talking about legislation; the only legislation that has been mooted is the royal charter, which is not really legislation but the sort of medieval anachronism that The Daily Telegraph normally supports. [Laughter.] There is no legislation other than criminal legislation that covers the press’s activities.
Last week, it was put to us that the phone-hacking scandal, for example, was not dealt with properly because the existing legislation was not properly enforced.
That was also a police failure. One journalist was sent to prison for phone hacking before the Milly Dowler case blew up. My view is that it was primarily a failure of the authorities to pursue the complaints that were made.
So you are very much of the view that it is a failure of the existing system.
We all agree that the system itself, be it the PCC or the forces of law and order, failed. As I have said, changes need to be made. The royal charter itself—for want of a better cliché—crosses a Rubicon and sets a very dangerous precedent. We talk about light-touch legislation but, as far as I can see and certainly in Scotland, a whole slew of legislation will have to come out of the royal charter plan in order to make it work. I see no light-touch legislation here; all I see is a great slew of changes to the law in order to make it work up here—and those changes could at some stage involve the introduction of exemplary damages, which does not exist in Scots law and would break European human rights legislation. It would also mean that my colleagues and I would be treated differently under the law than the rest of you are, which would be discriminatory if nothing else.
Thank you. If we were to pursue the royal charter, would you advise that we look at regulation on a UK basis instead of having a Scottish dimension? Can you expand on why you believe that?
As an editor whose newspaper is distributed both north and south of the border, the last thing that I want is to have two different regulators and to have to deal with, potentially, two different sets of rules. We would certainly like a UK-wide regulator.
I second all the points that Magnus Llewellin has made, but in addition there is the practicality of the thing. It costs something like £2.5 million a year to run the PCC. A separate Scottish organisation would not cost anything like that, but there would be start-up costs. I have seen an estimate of £1 million, but that is probably too high; it may cost £500,000 to set up a separate body.
How do you respond to Lord McCluskey’s point last week that the problem is largely in Fleet Street and therefore Scotland should not get too wound up in that problem?
Having spent 20 years in Fleet Street and then 19 years here, in my most recent incarnation, I agree whole-heartedly with what Lord McCluskey said. I have never seen any evidence up here of the malfeasance that happened in London. It was going on to a very great extent in London but it has not happened here.
I agree. Some of the evidence that the committee has heard paints a picture of an industry that I do not recognise. I have worked in Scotland for 22 years. I have edited the smallest paper for sale in the country and I now edit the biggest. If we accept that some of the extreme cases that were examined by Leveson are damning of the industry, that is one thing; however, we have never looked at Scotland’s specific role and Scottish journalists’ behaviour.
As you say, there is an irony in the fact that the Scottish press is basically being frogmarched into a punitive new system—Eamonn O’Neill made the point last week that we are being frogmarched into a system that could put many of us out of business, which would be a bad thing for the democratic process if nothing else—as a result of alleged crimes that were committed in the south-east of England. That strikes me as bizarre. The Scottish Parliament was set up to deal with Scotland-specific problems, but we are now discussing the creation of legislation to deal with a problem that arose in the south-east of England. That strikes me as perverse.
That is as it should be.
Yes. It can be infuriating and it gets things wrong but, in the main, it upholds the law. It is ethical, open and honest and it carries out a very useful democratic function, but what is being discussed here puts all that in jeopardy. I do not see the sense in that.
An important point that I wanted to raise with the committee is the fact that, in the many pages of evidence that you have seen and in the oral evidence that you have taken, one key word seems to have been largely omitted: readers. We should not underestimate the importance of readers in the process.
We can discuss that later.
Is it compulsory? Sorry.
I will take you back a little bit because I am confused again. I apologise for my confusion. You said that you support a UK-wide system.
Yes.
You then complained bitterly about being frogmarched into changes that were caused by the activities of journalists in the south-east of England.
Yes.
You want a UK-wide system, but the UK-wide system is being proposed because of the activities of those journalists in the south-east of England.
The point that I was making was that, from what I can see, we are dealing with an alleged failure of ethical standards and we are now moving into creating new legislation to put the press into a straitjacket in some ways. The problems initially arose because of the failure of ethical standards and, in a few high-profile cases, some criminal activity. We agree that the PCC—the regulatory body—needs to be changed and, as I said, the misdemeanours were carried out in the south-east of England, so there is an irony to that, but I would much rather that the regulatory body be changed on a UK-wide basis for practical reasons.
I will come on to that. You said that there was a terrible difficulty in operating across two different regulatory regimes. Do any of your papers operate in the Republic of Ireland?
Mine does not.
Mine does.
Do you have a difficulty in operating across two regulatory regimes, Mr Harries?
It depends what you mean by “difficulty”.
Mr Llewellin seemed to indicate that there was a terrible difficulty with that. I am just trying to understand whether you find that that is the case.
I can see inherent complications in it. Bear in mind that the Republic of Ireland is a very different animal. We operate two Parliaments—we have a Scottish Parliament, which is responsible for much of our daily lives, and a Westminster Parliament with certain retained responsibilities—whereas the Irish Government is the Irish Government. It has its own constitution and subscribes to the European convention on human rights, which guarantees freedom of speech. The fact that our publisher feels able to subscribe to the Press Council of Ireland does not strike me as the best analogy for how we should move forward. There would be inherent difficulties in running two systems, not least their funding, as has already been pointed out.
The Irish Sun is fundamentally a different product. It is edited and produced in Ireland.
Yes, but it is under one company.
Yes, it is under one company, but we are talking about resource as well. The Herald, for instance, does not have specific London, Bristol, Manchester and Blackpool editions; it is simply circulated—not widely, but it is circulated—in England as well. Therefore, what we write might come under different interpretations.
One of the problems that we have is that successive political leaders—the Prime Minister, the leader of the Opposition and the Deputy Prime Minister; I excuse the Scottish Government from this—told us that there would be no statutory control. Then, suddenly, in the dark watches of the night, up comes a plan for a royal charter, which is, in effect, a form of licensing of the press. It is not possible to have a free press if it is answerable to a regulatory body that is set up by the state, which is what the royal charter proposes. Although we want a UK system, the Telegraph Media Group does not want anything that is set up by royal charter and which is, in effect, statutory control.
Before I go on, I should declare an interest as a columnist for the Daily Record. I forgot to do that at the beginning of the meeting.
I feel very strongly about this. I am very much for the church and state separation principle when it comes to the idea that a Parliament of any shape or form, in any area, should have a foothold in a free press, which I think underpins the democratic process. I do not think that Lord McCluskey is right in his conclusions. His expert group went beyond its remit; it was not asked to produce a draft bill but did so. My issue is that even if we choose to try and keep the regulatory authority at arm’s length from Parliament, and even if the appointment of what Lord McCluskey calls the recognition commissioner is under the remit of the appointments authority, that still by extension embeds or weds that person to Government.
To pick up on a point that Magnus Llewellin made earlier, one of the problems with having two layers is that if there is a complaint to the regulatory body that is not dealt with to the complainant’s satisfaction, there is nothing to stop them appealing to the higher body, which is controlled by the state or at least dependent on state control, and asking if that body can have another look at the issue. A sort of double jeopardy position is being proposed, which I do not think that the politicians initially intended.
To go back to Joan McAlpine’s point about Lord McCluskey, as Andrew Harries rightly said, there is a scenario in which if the regulator is doing a job that the recognition commissioner does not agree with or thinks it is doing badly, you could just tear that up and you guys would then decide how we would do our jobs. Personally, I think that that is pretty dangerous. We are talking about a kind of Orwellian ministry of truth, and that is wrong.
He said it, not us. [Laughter.]
He has obviously been listening to Lord McCluskey on naming papers.
Various members of the panel have referred to aspects of the royal charter, or the “medieval anachronism”, as Mr Cochrane called it—I tend to agree with him. What is your opinion on what is on offer, which is the royal charter, probably with some sort of Scottish underpinning? Where do you see the real difficulties with that? There seems to be a general acceptance of it.
Of the royal charter?
Yes.
First, the royal charter was dreamt up over pizza at 2 am by a bunch of celebrities and a very small handful of politicians, leading to a deal for the Privy Council to set it in motion. Immediately, we have something that strikes me as being pretty unaccountable. Lord McCluskey said himself that it was “undemocratic”, a “creature of the Government” and a “terrible example” to the rest of the world. I have to say that his alternative is worse. If anyone else has a better idea I would like to hear it, but what we are proposing is safer in relation to freedom of speech.
As committee members will know, one Parliament cannot bind its successor. We, the press, are being told, “Don’t worry, a two-thirds or three-quarters majority is needed to overturn it.” However, that would be perfectly possible to achieve, and it would also be possible that an incoming Government in a different frame of mind and facing different public opinion could easily amend the royal charter or on the back of it bring in legislation that effectively licensed the press. Actually, I consider that the proposal is already a form of licensing.
I do not hold the royal charter solution in as much disdain as do my learned colleagues beside me. I was struck by the idea that, at least from a church and state perspective, the charter kept the regulatory authority independent and at arm’s length from the Government. My primary belief is that those two things should be separate.
You clearly have deep concerns. How, specifically, would the royal charter constrain you in doing your job?
One problem is that we do not know what the royal charter is going to say. We will not know that until 8 May, when it finally goes before the Privy Council and we see whether the draftsmen accept the amendments proposed by Fiona Hyslop. We will then see specifically how the charter will affect our daily lives. In essence, it creates a press licensing body. The regulatory body that we are trying to set up will be answerable in every respect of its daily life to the recognition body. I keep wanting to say that the body will be set up “by statute”, but it is not by statute; it is by royal charter. The situation would amount to potential control of the press. We will not know how it is working until it works.
Do you think that taking the royal charter approach would mean a democratic deficit for Scotland?
That is an excellent question.
Lord McCluskey certainly thought so. However, as I said, his solution to that was worse.
I am not sure what John McCluskey was saying. He said that the royal charter gives a sort of nod to the Mugabes and Putins of this world, but he is also veering away from statutory control by Parliament, so I am not sure which option he preferred. There is no doubt that, in a democratic situation, control by Parliament would be preferable, but not as far as we are concerned.
You ask why the royal charter would make life difficult for us. From what I have read, it seems that the charter includes plans for arbitration, which, as I said before, leaves us open to claims farming, third-party complaints—we have not touched on those, but they are a nightmare—and exemplary damages. You ask why we would object to the charter in our day-to-day job: it is because it is discriminatory and probably illegal. It would hamper our role, and that is not a good thing.
I should probably declare an interest as the son of a sometime contributor to The Herald. Looking at some of the stuff that he has published in Fishing News, he has probably sailed fairly close to the wind in terms of defamation.
I am trying to argue the case for no Parliaments getting involved in regulation of the press. That is the position that the press should adopt in a free society.
That was not the position of the National Union of Journalists last week, it must be said.
The NUJ must speak for itself. I used to be a member of the NUJ, but I am not any longer—I will go into the reasons for that later if you like.
The recognition panel would be a creature of the Government, at the end of the day. It would be created by the Government, and the Government—albeit with a large majority—could change the basis under which it was set up. Therefore, that Rubicon is being crossed. The Blair Government did its best to suspend habeas corpus. What you are doing is setting in motion a chain of events that could potentially have catastrophic consequences for free speech.
We have heard acknowledgement this morning that there is a problem with public perception with regard to the legal sanctions, particularly in relation to allegations of phone hacking and, beyond that, the treatment of the McCanns and other high-profile instances of similar behaviour. Alan Cochrane testified, from his time in Fleet Street, that the phenomenon is not new. There have been problems with the approach of the press over very many years.
I think that it was David Mellor who said that the press is drinking in the last chance saloon, but he said that in about 1987, and closing time has been a long time coming. There is no doubt that the public believes that the press should get a kicking, and we accept that. However, I do not think that you can weigh in the balance the effective licensing or state control of the press as a way of resolving the problem of the criminal activities of some journalists. That is too big a price to pay.
Do you not accept that, given the scale of the public perception problem that exists on the back of the Milly Dowler case and indeed the Leveson inquiry, something more significant than simply amending the PCC is needed?
Mr McArthur is absolutely right. We have to jump through hoops on this one to prove that what we are proposing to put in place of the editors’ code and the PCC will really work. I thought that Guy Black’s proposals were pretty good, but some of the other papers in Fleet Street—Alan Rusbridger in The Guardian is an example—did not. We have to come up with something incredibly good to sell to the public or we will be faced with legislation—I accept that.
I think that we are conflating part of the industry’s self-flagellation over the issues that were brought up by Leveson with the idea that there is a public out there that is hungry for retribution and wants to see us reined in. That is simply not my experience. Although Scottish newspapers have declining circulations and declining revenue, they are still incredibly popular among readers and we provide a valuable service to them. The idea that there are armies of angry people marching with pitchforks towards our offices to try to rein us in is wrong. That is simply not my experience. In the whole post-Leveson period, I did not get a single letter from a reader to say that they had a view on Leveson or that they wanted a particular course of action to be taken. I fear that, in relation to the idea that we are all terribly contrite and the industry is something that we should be ashamed of, which is simply not the case either—
You made the point about readership again—you mentioned it earlier. I suppose the concern that that gives rise to is that the public choosing what to buy and what not to buy was, to some extent, the driver behind the problems that gave rise to alleged phone hacking. There was competition between the papers to get a different angle on the story that was not available through fair and acceptable means. Is not the danger in pursuing that line of argument that, in a sense, it seems to condone activities that did not just sail close to the wind but stepped over the line?
That is a valuable perspective. I was not trying to suggest that we should not try to proceed on the basis that our industry collectively is under pressure from the Leveson report. The point that I am trying to make is that we just need to be a little bit careful about the notion that there is a hugely angry public looking to you people—our parliamentarians—to do something about the out-of-control press, as Lord McCluskey put it, trampling over the democratic rights of ordinary citizens. Is that my experience of the way in which newspapers in Scotland behave, given all the good things that they do? Ultimately, I believe that newspapers are a force for good.
Any Government will tell us that, when it consults on something, it hears only from the people who are opposed to what it is doing. In a sense, as long as the public are persuaded that the UK Government or the Scottish Government is moving in the direction of considering the Leveson findings and trying to do something about them, they are hardly likely to be marching with pitchforks to your door, my door or anybody else’s door.
I do not think that that was a question. It was a point.
I have a follow-up comment on that. The fact that someone has a continued allegiance to a newspaper does not necessarily mean that they are satisfied with the way in which it has conducted itself over the years. Some people buy a paper for the bingo, the racing tips, the football or whatever, so I think that that is a pretty difficult argument to make.
Sorry—we do want regulation. We live with regulation day in, day out. What we are concerned about is legislation. There is a big difference.
Can you then explain to me in a few syllables what you want that would have provided protection to those people who were wronged and prevented the wrongs that were exposed during Leveson?
First, I want the existing laws to work. Laws exist to deal with all the alleged crimes and misdemeanours that we have touched on. Secondly, I mentioned Guy Black’s proposals to create a new regulatory body that would impose fines of up to £1 million on papers that transgress agreed ethical standards. His contract proposal ticks all sorts of boxes, as far as we are concerned, in that it would create a UK regulatory body with no statutory underpinning. That is what we want.
Would newspapers have the option whether to join that scheme?
Every main trade body has agreed to it, and every paper has already signed up for it. As far as I am aware, under the Black proposals, papers would be given a kite mark if they joined, and if they did not get that it could damage advertising revenues, which are already under pressure. If a publisher quit, that would break the contract and the publisher would face costs, which could be fairly substantial. There will be some publications that do not join, such as Private Eye.
I disagree with Andy Harries, as I think that the public are concerned about the behaviour of the press—I think that they are very concerned. However, whether they are right or wrong, it is incumbent on us as journalists—as the press in general—to redeem ourselves, in the light of the horrendous stories that emerged during the Leveson inquiry.
It is important to say that nobody has been prosecuted yet. As somebody pointed out, Lord McCluskey was casting all sorts of aspersions about News International. He is a judge; he should know better and wait until those people stand trial, rather than use parliamentary privilege to try and hang them before they are in the dock.
I want to make it clear that I am not suggesting for a minute that there is not public concern in a post-Leveson world; there absolutely is. I am just asking for a sense of perspective and proportion when people consider these very serious matters. We are at a turning point for press control.
In her letter, the Cabinet Secretary for Culture and External Affairs raised the issue of
The case in question is pretty new to me; it happened before I came to work in Scotland. I have huge sympathy for the family, given the horrendous events that they have gone through with one child murdered and the other committing suicide, but the proposal is asking for defamation claims for the deceased. If there were errors in how a case was reported, they can be corrected, but I simply cannot see how we can have legal redress for the deceased. After all, the principal witness is dead. With all due respect to and sympathy for the family, I do not see how we could have such redress.
There is also a supposition that in our day-to-day workings we do not care about the dead. That is fundamentally wrong; we are, in general, an ethical industry. We do not go out of our way to hurt people unless those people need to be hurt by being exposed for wrongdoing or what have you. We do not go out to traduce or undermine the reputations of people who have died unless their reputations need to be investigated.
I do not think that any human being could fail to be moved by the Watsons’ compelling evidence to the Leveson inquiry. They fought a brave and lengthy battle for a cause in which they truly believe. However, much like Alan Cochrane, I have reservations about introducing any change to the Defamation Act 1996 that might preclude newspapers from saying things about the deceased that others might not want to hear. I certainly do not think that the issue has a place in a framework of self-regulation or the regulation of newspapers.
If the law was different, how would we have reported Robert Maxwell’s death? We all knew that the guy was a crook.
Can I just clarify something? You seemed to suggest that something that the cabinet secretary suggested would lead to you being taken to court if you wrote things about—
No, I did not say that. What she has proposed would be under a new regulatory body. A level of respect for the dead is taken into account.
The cabinet secretary’s letter used the phrase “appropriate respect”.
Yes, but what does that mean? As I have said, we ensure that already on a daily basis. Fiona Hyslop seems to propose putting something down in black and white that people who have an interest in not allowing the truth to be published could interpret in a way that would, in effect, gag the press.
That is what I have been struggling with. How would
Because the letter from the cabinet secretary states that
I am sure that we will come to that when we ask the cabinet secretary for her views on the issue. I am not sure whether we hold the same view as you do of what the proposal is supposed to be. However, I am sure that we will ask the cabinet secretary about that.
Will you give me your thoughts on Fiona Hyslop’s possible amendments? You have touched on the idea of defamation of the dead. In her letter, she said that the other amendments are “largely technical”. If you have had a chance to consider them, what are your thoughts on them?
The approach to what is on offer down south looks sensible, although nothing has been agreed and it is simply a proposal for a framework. I was interested to see that the idea that there may be a carrot-and-stick approach has at least been set in motion; it goes against McCluskey’s opt-in-only approach, which states that, if publishers are not compelled to join a system of regulation, there is no other solution. It is evident from Fiona Hyslop’s letter and the background stuff attached to it that there are other ways, which function specifically in Scottish law, that we can look at. It is a job for Parliament to look at that. I know that the committee must respond fairly rapidly to what is on the table down south, but nonetheless it seems to me that it is Parliament’s job to decide what the carrots and sticks might be. I am perfectly easy with that.
In general terms, I think that these are technical, explanatory notes. I do not understand any of them, but they all look fine to me. [Laughter.]
They look fine to you, Alan. Thanks for that.
In the sense that they mean that the cabinet secretary accepts that the royal charter can apply to Scotland and that we do not need a separate body.
I agree with that point. I note that she talks about carrots and sticks and that she is certainly sympathetic to some elements of how the press operates, which is a good thing.
One of the cabinet secretary’s proposed amendments is to include the phrase “experience of Scotland”. Have you any ideas about what that should mean?
I took it to mean that she has taken cognisance of some of the witness statements that were given to the Leveson inquiry and of some of the cases that Lord McCluskey touched on.
Mr Llewellin mentioned Robert Maxwell. A friend of mine was involved with the Scottish Daily News in the 1970s, when Maxwell took it over. My friend wrote a book called “The Trade Unionist and the Tycoon”. He then received a lawsuit from Mr Maxwell, banning him from publishing the book until after Mr Maxwell’s death—which he did. Would the proposed change, if it covered the defamation of the deceased, change such a situation?
It depends on what a book says. I assume that the book that you named was not terribly flattering. As far as I recall—it was a long time ago—Mr Maxwell’s family were still pretty rich, thanks to the money that he had creamed off people’s pensions and what have you. They could have used that money to tie a journalist or writer up in knots and to prevent them from publishing something that they felt needed to be published. That is dangerous. It is often part of our job to publish material that people do not want to have published. Sometimes, that will involve folk who are related to or associated with people who are dead.
One thing that we have not covered, which Magnus Llewellin raised, is the arbitration procedure that would allow third parties the right to complain. He suggested that there were deep concerns about that. Will you elaborate on those concerns?
My concern is that the proposal would make what is a difficult and complicated job—as you know—even more difficult and complicated. I have deep concerns about opening up a system of arbitration, which would lead to an additional burden on our role. Opening up to third parties makes the system almost abstract—again, that adds to the burden.
Could you give me a hypothetical example of what might happen?
As a columnist, Joan McAlpine will know that people often take exception to our views—although not many, I am sure. That is where third party complaints could easily come in. I would hate columnists to be subjected to such a draconian measure.
It could give the green light to any aggrieved party to collect issues and then complain about them. The weight of complaints that newspapers would suffer from would burden them to an extraordinary degree. I was thinking about a scenario involving the British meat council, let us imagine, which could act collectively in relation to the horsemeat in beef scandal. That could apply to every aggrieved party in every circumstance. Football fans who read match reports or stories that they do not like could complain under umbrella organisations.
We get lots of reaction to our coverage of the current problems at Rangers, and I am sure that The Sun does, too. Thousands of third parties could tie us up in knots for years. Such people have a lot to say, because the issue is particularly important to them and they will disagree with some of the stuff that is written about it. A paper such as The Herald could become involved with literally thousands of third party complaints about one particular issue.
Even if complaints were not upheld by the regulator, the paper could be left in a position—as we are with the PCC at the moment—where the first step in answering a complaint is to get a memo on the report in question. If it was a news story, that would be from the reporter or the agency, the photographer, possibly the subeditor and perhaps the editor of the day. All that information would then have to be collated before a response was drafted.
We have not really discussed digital publishing. A small local paper could write something that, although it was a good piece of journalism, was controversial. It could end up attracting hundreds of complaints from people hundreds of miles away—not in the immediate circulation of the paper concerned—and those complaints would have to be dealt with.
We have got the point about the issue.
Much of the issue is about ethics. Is there anything in your existing code that you would seek to change?
The code’s wording is very specific. It touches on ethics, on fair and reasonable behaviour and on not bringing one’s paper into disrepute. From what I can remember—I do not have the code in front of me—I do not see much that needs to be changed, although its implementation perhaps needs to be changed in the light of the perceived failures of the PCC.
Ethics are in the eye of the beholder and are difficult to quantify. Was it ethical for The Daily Telegraph to talk about how much money MPs spent on furnishing their houses? I would say that that was entirely ethical, but some politicians might not have thought so. Does the member have something in mind?
No, I am just interested—
I am sorry; I should not really be asking the questions.
You are supposed to answer the questions.
I am in no way an expert in this field and I am certainly not a lawyer, but I feel strongly from all that I have heard that a lot of the issue is about ethics. Is it your gut instinct that aspects of the code could be improved, amended or even removed to make the workings of your industry slightly better?
Issues such as reporting in relation to children, the use of clandestine devices and the paying of witnesses are already dealt with in the code. In financial journalism, for city journalists to engage in share tipping, as they used to, would be a breach of ethics—it is also a criminal activity—that is dealt with in the code. Intruding on grief or shock is also dealt with in the code.
Incidentally, the measures on intrusion into grief or shock would have applied in the Watson case if we had had the current code when that occurred. There would have been a cast-iron adjudication against the newspaper concerned if the code had existed in its present form at that time.
An important point is that regulation must be about holding the press to account for failure to uphold our standards. That is fair enough, and the PCC failed to uphold our standards in certain cases. However, we must remember that regulation should not be about the breach of existing legislation, which is different. As Alan Cochrane pointed out, the PCC code is very wide ranging. In general, I do not see anything particularly wrong with the existing code, although how it is implemented and enforced is perhaps where it failed.
I need to bring the evidence session to a close, but I have one final question, which I know is hypothetical. If the Government put in place a UK-wide royal charter, with the necessary amendments to make it applicable to Scotland and with a separate independent regulatory body, what stories that you published in the past—for example, the MPs’ expenses story or any corruption or other stories that have exposed wrongdoing—would you not be able to publish in the future?
That will be impossible to know until we see the substance of the royal charter next month. You are asking us to measure something when we do not know how long—
You seemed to be fairly clear about what you were against and the fact that Lord McCluskey’s proposals would cause problems. Two of you have suggested that there are also problems with the royal charter. Given that you had come to that conclusion, I assumed that you would be able to answer my question.
It is a question of principle—I know that, when editors talk about principles, people should count the spoons—and of having a free press. The press cannot be free, in the worldwide acceptance of that expression, if it depends on state regulation of any description, which is what the royal charter proposes. Frankly, it has been a shoddy bit of work up to now. As Andy Harries said, we will have to wait and see what comes out of the Privy Council. Imagine that—the issue is decided by just half a dozen people with the Queen signing a bit of paper.
I would have thought that you would be in favour of that.
Normally, I like all that stuff.
The phrase that keeps coming up concerns the chilling effect of exemplary damages. Newspapers already face pressures from all sides. If we face the prospect of being treated differently under the law from anyone else simply for trying to expose wrongdoing, that may well have a chilling effect when investigations are being carried out.
No one in Scotland is suggesting exemplary damages at the moment.
Not as yet, but who knows?
I think that Lord McCluskey raised the possibility of loading the expenses—I do not remember the expression that he used.
Thank you all very much for coming along this morning to give evidence. I will suspend the meeting briefly.
I welcome to the committee our second panel of witnesses this morning. We have Alan Miller, commissioner at the Scottish Human Rights Commission, and Margaret Watson, a witness in the Leveson inquiry. Good morning to you both.
I would like to make three very quick points about what the regulation of the press needs to consist of.
I just feel that the press are unaccountable when they write stories about people who are deceased, whether through murder or other circumstances. The deceased’s good name should not be dragged through the mud without good reason. I hope that the Scottish Parliament will ensure that a provision is put in to give some protection and rights to families who have lost someone. I hope that the Parliament will take the issue seriously.
Thank you both very much.
Margaret Watson, I do not know how much of the session with the editors you heard. It was acknowledged that you and your family were very badly treated, but one of the points that was made was that the editors’ code that has been put in place since your family’s experience specifically states that journalists should not intrude on private grief and that respect should be shown. Your family would now be covered by that. Is that your understanding?
No. I do not agree with that at all. They are good at saying things when they come to Parliament. I am not used to coming before committees, so excuse me if I make a mess of things. As far as I am concerned, the editors want to keep the status quo and do not want any regulation.
I understand that you have since received an apology from The Herald.
I have not received an apology from The Herald.
Have you not?
No. Are you talking about the wee bit that it put in? That is not what I am looking for. I am looking for my daughter’s name to be reinstated. Why should I have to put up with this? It is not for me; it is for my daughter—she was the innocent party.
So you still feel that you have not had adequate redress, even after all this time.
No, I have not. Jack McLean could have been held accountable at the time, as could Meg Henderson of Marie Claire magazine. That article was worse. We keep going on about Jack McLean, but what about Marie Claire? That article was not factually correct at all, and Meg Henderson has never been held accountable for that, because we cannot do anything, as we have no legal standing.
What kind of response did you get when you contacted the editor of Marie Claire about the article?
Jim and I had to go down to London. It should be remembered that we had lost both of our children at the time, and both of us had lost our jobs. To be perfectly honest, our electricity and phones had been cut off, because nobody helped us at all—that is the usual for victims, right enough. We managed to get the money together to go down to London to see the editor of Marie Claire, and we presented evidence to her. Her lawyer was there, and they had a wee conference for around half an hour while we were left sitting in a wee room. The lawyer then came in and verbally apologised to us, but they did not put in a retraction; it was just a clarification, as they would say. It was not an apology.
So you would like to have had more space to put your side.
Why should we have to have gone through that in the first place? That is what we are trying to say. If the press get it wrong, people should make a complaint. We made the mistake of going up to The Herald. We were immediately turned away. How dare we go up and ask to speak to a journalist or editor? We did not know who to turn to. There is no official body for victims to turn to.
The current editor of The Herald, who obviously was not there at the time, told the committee that he did not think that that would happen nowadays and that practice is much better. What is your response to that?
What about Soham? A columnist in The Herald published an article about the Soham murders, blaming the parents for not taking their children to church instead of letting them walk about the streets. Was that not an insult to victims? I have a copy of it if anyone wants to see it.
I should declare an interest in that I was the deputy editor of The Herald when that was published, although not on the day that the column was published. The columnist was sacked. Do you not think that that was adequate?
Yes, for him.
He was sacked by the editor as a result.
But you may recall that a lot of Scottish newspapers jumped to the columnist’s defence and offered him a job because they thought that it had brought him attention. He was held up as a hero within journalist circles instead of being condemned. Editors in Scotland were after him to have him on their newspapers. I think that he is working on a Scottish newspaper at the present time. Where are the morals there? Where are the ethics?
In his opening remarks, Professor Miller raised three points that he thought were important. One of them was about the burden that falls on the victim, which is an important point for us to consider. You mentioned that a tribunal process would help with that. However, that would come into play only once the problem had occurred. Could other things happen to prevent journalists behaving in that way in the first place? What would you like to see put in place to help with that?
If you approached the newspaper—if you wrote to it, phoned it or went to speak to the editor or the journalist concerned—that would put an end to it as long as you had the evidence. I am not saying that newspapers should not report cases, as long as they stick to the facts. If they want to defend the accused, they should do that by all means, but they should not twist the facts to fit their agenda, which is what they did.
Would you like to see more regulation put in place?
Yes. I would like to see stronger regulations.
Do you have any recommendation for what those would cover?
Yes—defamation of the deceased.
Thank you.
Joan McAlpine raised an interesting point in relation to the case that you are talking about, Mrs Watson. I do not know whether this is in order, convener, but it is a question for Joan McAlpine as well about the process of dismissing the journalist. How did the story get past the editor and into the paper? What is the process? I have never worked in the newspaper industry. How would the article have been sifted?
I can explain that to you.
That would be helpful.
I had a meeting at The Herald after I had stood outside its offices for six weeks with a banner demanding to meet the editor. I met Mr Kemp and Jack McLean, who had their lawyers there, as usual. Remember that we are normal people and do not have access to lawyers. In the meeting, Mr Kemp admitted that he did not edit his journalists’ material—he trusted them to write whatever they wanted to write. I do not know whether that has changed. I cannot speak for what happens now, but he said that. Because we could not afford to have a solicitor with us, I asked for permission to have a tape recorder with me. I was allowed to have that and I have the tape recording of that being said. Jack McLean was caught out with his lies, but still the editor kept him on his newspaper.
What seems to be on the table at the moment is a royal charter, probably with Scottish underpinning to make it applicable here. What is your opinion of that? Is it sufficient? The question is for both witnesses.
I prefer Lord McCluskey’s recommendation. I know that the Scottish Parliament as a whole does not, but I do because it takes in the internet. Since we gave evidence to the Leveson inquiry, seven or eight articles have been published on Kenneth Roy’s website, “Scottish Review”. To be fair to Kenneth Roy, he has always admitted that Jack McLean got his facts wrong, which is fair enough. However, he has always condemned us for being allowed to give evidence to Lord Leveson—how dare Lord Leveson allow us to give evidence? One of those articles was picked up by The Guardian and was splashed all over it. It is only his opinion but we have no redress.
Do you have an opinion, Professor Miller?
Yes. One of the remedies in international law for victims is the guarantee of non-repetition of what happened to them. In my experience—and as Margaret Watson has been saying—that is what many victims want; they do not necessarily want money or anything else. One of the tests of whatever system is brought in, whether it be self-regulation of the press or the royal charter approach that it seems will be put in place, will be its effectiveness in ensuring that where misconduct is found, it is not repeated and that the culture that has clearly developed in certain parts is not sustainable. Time will tell whether whatever is put in place is effective, but those should be the criteria against which it is tested.
Witnesses from the newspapers have suggested that this is basically a south-east of England problem and that in Scotland the press tends to be much cleaner, to adhere more to the code and all the rest of it. Is such a view valid?
I have not compared what has happened north and south of the border over the past 20 to 30 years, but I have heard that comment. One can take a view on whether it is completely accurate. However, even if it were the case, what I find difficult to understand is that people still have a problem with making the process subject to greater transparency and accountability through the system that is about to be put in place. I am not clear about what new burden in respect of standard of conduct newspapers north or south of the border would be under with what has been proposed. You were trying to probe that question with the previous witnesses and I did not hear from them—nor, indeed, have I heard from anyone else—what the additional burdens are in that regard. I understand that there are cost issues and so on, but that is where I would be seeking further clarification.
Do you have a view on that, Mrs Watson?
I do not have much to add. The Government has to make up its own mind, but I hope that it takes into account the evidence of the victims. As for the comment that this kind of thing is not prevalent in Scotland, I used to run a support group called Families of Murdered Children. Obviously we dealt with people who had been bereaved as a result of murder and on a few occasions we had to represent the family to newspapers because the papers got their facts wrong and then said, “Let’s do an interview with you.” Instead of correcting what they had got wrong in the first place, the newspapers just wanted to get more out of the victims and find a different angle to the story. When we ran Families of Murdered Children, I went to three or four newspapers. These things cause unbelievable pain to people; after all, they cannot cope with everyday life, without having that burden on top of everything else.
I think—and this is more of an observation than a question—that there are great difficulties with the claim that this is a south-east of England rather than a Scottish problem. After all, newspapers are published nationally and the person whom the journalists are writing about might be a Scottish citizen.
Professor Miller, you mentioned the European Court of Human Rights. You will have heard the evidence from the newspaper editors, who would argue that some of the investigative journalism carried out and some of the stories produced have been in the public interest and of human interest, too. How can we strike a balance between ECHR and the type of investigative journalism that the editors referred to?
With all due respect, I have to say that the balance is not between having a free press and what has been promoted as good journalism, and human rights.
There was a lot of talk of ethics from some of the editors who give evidence today. They would say that their editorial ethical code would cover some of what you just said. Do you agree with that? They said that there were a couple of times when things did not work but, on the whole, the code is the correct one for them to follow.
Do you mean the editors’ code?
Yes.
I said at the outset that, from what is happening in London and the cabinet secretary’s letter that we all got yesterday, it looks as if we are going down the road of the royal charter with sticks and carrots and the editors’ code being the value base in that. That would be broadly compliant with the European convention on human rights. The test would be whether it is implemented—that would be determined by particular cases and experiences that came up—and then what happens. Would there be effective redress for a victim so that they did not have to go through everything that Mrs Watson and many others have gone through, and would it therefore not be repeated in other instances? The jury will be out on that for a number of years.
You will have heard or read Lord McCluskey’s comments last week on whether exemplary damages are ECHR compliant. What is your view on those comments?
It is the typical lawyer’s answer: it depends on the case. If the amount of damages or the amount of costs was regarded by the court as excessive, it could be considered to have a chilling effect on the free press and be a breach of the right to freedom of expression under the European convention. It depends very much on how much the damages are and what circumstances of the case are.
Professor Miller, you spoke about proportionality and whether exemplary damages would be ECHR compliant. Another aspect of the potential discriminatory effect of exemplary damages is the idea that those who chose to sit outwith the scheme would be treated in a different way from those within the scheme. Is that a real concern? Is it likely that exemplary damages on that basis would fall foul of the ECHR?
There has not been any identifiable case law on that point yet; it may well come from the UK in the years that lie ahead. I would have thought that a court’s view—whether it is the European Court or a court in the UK—would be that it is legitimate to take the conduct of the defendant into account, as courts do in other non-press-freedom related cases.
Clare Adamson, is your question on the same area or is it different?
No, it is different.
Before we move on, then, I will ask Mrs Watson a question that I should have asked earlier.
I would not agree with that at all. You can publish anything that you want as long as it is factually correct—that is all that we are saying. We are not saying, “Don’t publish anything about Diane”. Even if, after all these years, some journalist wants to publish something about Diane, there is no argument if it is factually correct. We are talking about defamation of the deceased. That is the only thing.
What do you think about the point that was raised that an individual who is deceased cannot be a party to a case? They cannot be a witness and give evidence in any way.
I understand that argument. I really and truly do. However, it is a question of being given proof, because what these people were writing was based on the trial. It took us over a year but eventually we managed to get the transcript of the trial. That is another injustice—that victims of crime have to pay for the transcript of the trial, but the accused does not if someone says something about them.
Thank you for that.
Good morning. You touched briefly on internet publication. Although Lord McCluskey has said that it could be a compulsory element, he did not define in his evidence what would be considered to be journalism in internet publishing. Do you have a view on that issue? Is there a reasonable difference between online newspapers and individuals’ publishing at a private level?
I am not taking the issue that seriously—although I like the idea of its inclusion—because more and more newspapers are publishing on the internet and in some cases stories that they do not put in the papers are put on their websites. At present, I am not too concerned about the issue. As time goes on, it might have to be addressed, but I am not asking you to take it too much to heart.
It is a problem that we will all wrestle with for years to come until we get a handle on how to strike a balance. As I said earlier, I would not have thought that we would want to interfere disproportionately with small operators—either private individuals or online news publishers—if it would render them unable to continue legitimately expressing opinion. However, we must not be blind to the fact that this is a developing part of the industry and one that has increasing importance, and we therefore need some way in which to ensure that it does not bring about the situations that we are trying to avoid in the activities of newspapers. That point needs to be addressed. However, I do not have an answer, and I have not heard anyone else say that they have one.
What do you think of some of the carrots and sticks that were mentioned earlier? In particular, what do you think of the idea of a fair, quick and inexpensive arbitration route? Arbitration is mentioned in the cabinet secretary’s letter, which you mentioned earlier, Professor Miller. What is your view of that proposed solution?
Broadly, I think that the carrots and sticks approach is something that is best decided on through what went on this morning—a dialogue between Parliament and the publishing industry. I do not profess to have any expertise in the relative merits of different carrots and sticks that have been proposed. I have made comments about an amber light with regard to exemplary damages.
You will have heard the evidence from some journalists and editors that they felt that any kind of system of regulation would be—I will use some of their words—a straitjacket and something that they would be frogmarched into. You yourself used the term “chilling effect” earlier.
There is no risk at all. I do not know what those journalists are on about. They have a big printing press; we have nothing. If they are going to write stories, all that we are asking them to do is check their facts and, if they get them wrong, at least to correct that wrong and publish a full apology of the same length and prominence as the original offending article. I would like a leader on the front page on the complaint and the apology. To me, that would be enough.
As I asked at the outset, where do we want to get to? We want to get to a place where freedom of the press is a foundation but is exercised responsibly and does not disproportionately interfere with the privacy rights of individuals and families and to achieve that through a form of regulation—it now seems that we might have a form of self-regulation—that broadly is compliant with a human rights framework.
As members have no other questions, I thank both witnesses for coming this morning. We are very grateful for your time, and I very much appreciate the effort that you have made to be here today.
I welcome Fiona Hyslop, Cabinet Secretary for Culture and External Affairs; Peter Willman, head of branch for broadcasting and creative industries at the Scottish Government; and Greig Walker, solicitor in the economy and transport division of the Scottish Government legal directorate. Good afternoon to you all. I invite the cabinet secretary to make an opening statement.
Thank you, convener. I am grateful for the opportunity to give evidence to the committee. I read the transcript of the evidence given last week and I listened to the evidence this morning. I am sure that you will have been moved by the evidence of Margaret Watson, whom I will meet after the session for a further discussion.
Thank you very much, cabinet secretary. I ask members to indicate whether they would like to ask any questions. I will begin with a question on the cross-party talks that took place. I would be grateful if you could expand on what you have said by describing the sequence of events and the position that we have reached after the talks between the First Minister and the other party leaders.
It might be helpful if I take us back. On 29 November 2012, Lord Leveson published his report and, on 4 December, we had a debate in the Scottish Parliament. The first meeting with party leaders took place on 6 December. There have been a number of cross-party meetings since then with other leaders in the Scottish Parliament. On 12 December, we met the representatives of the press. On 6 March, we met the representatives of victims and, on 14 March, party leaders met representatives of the press. The report from the expert group on the Leveson report in Scotland was published on Friday 15 March.
Thank you. I am sure that we will discuss many of these issues as we go through the evidence.
Cabinet secretary, on the second page of your letter of 19 April you mention the issue of incentives. Could you share your ideas on what those might be?
If we are to operate a Scottish-compliant royal charter, we will need Scottish-compliant incentives that suit the Scottish legal system and which complement how we engage the media. The expert group on the Leveson report did not give detailed attention to incentives because it proposed a compulsory scheme. However, the group secretariat’s briefing note gave a range of options to deal with that issue, of which some were suitable and some were not. I have indicated our interest in two of the options.
One of the key discrepancies or differences between Scots and English law that have been highlighted is the question of exemplary damages, which are a concept that we do not have in Scotland. Have you considered having a level playing field with south of the border by bringing in some form of exemplary damages in Scotland, or something similar that will act more as a penalty?
We do not necessarily need to have a level playing field. As you know, the playing field is not level just now because of the different systems. Under Scots law, different expenses and claims can be met north of the border. However, you are right to say that we do not have the exemplary damages system in Scotland; we have not had it since the 1920s. There are issues with it to do with compliance with human rights. The committee might have heard about that; I did not listen to the earlier evidence session as fully as I would have liked to.
The cabinet secretary is right to highlight that, when they are embarking on litigation, a lawyer will look at the potential level of damages and the potential for costs. It is right that the Government should look for the outcome of the Taylor review and see what his position will be on expenses more generally.
I am more interested in arbitration and public information notices than exemplary charges as a route for incentives.
This morning, the editors gave two different views of arbitration. One was quite robust about the current arbitration system, but the editor of The Herald indicated that he is concerned that there will be speculative complaints and that arbitration will tie the press and local press into dealing with far more complaints. Will you address that concern?
I should make it clear that there is nothing in the royal charter about third-party arbitration. It mentions third parties only in relation to complaints, which are separate from arbitration. We should clear that up. There is nothing about third-party rights to arbitration in the royal charter as it is presented.
So only complaints from those directly involved would be considered in the arbitration process.
Yes.
The editor of The Herald felt that there was an imbalance in the system in that it would allow people to make complaints without having to take on any financial burden, while a financial burden would fall on the newspaper.
That refers to the complaints system, not the arbitration system.
How will the public information notice incentive work? Does it mean that you will not place public information notices in publications that do not sign up to the regulatory body?
Or, alternatively, they would be placed only with publications that are recognised in the media’s self-regulatory system.
On the issue of defamation of the deceased, which you touched on in your opening remarks, I know that you were unable to hear the previous panel’s evidence, although I understand that you are meeting Mrs Watson this afternoon. Her testimony was extremely moving and I think that everyone will accept that the circumstances of the case are grotesque in the extreme. The various newspaper proprietors and editors have told us that the editors’ code has been tightened up since then and that some provisions with regard to intrusion on private grief would now prevent an editor from allowing the publication of the original article. However, Mrs Watson disputed that in her evidence. What provisions in the royal charter would go some way to addressing the concerns that have been raised by Mrs Watson and others without falling into the trap of not allowing journalistic licence to comment on deceased figures, however recently deceased they might be?
This is a very important point. I think that we in Scotland are more acutely aware of concerns about the defamation of the deceased precisely because of the Watson case and the evidence that the Watsons gave to the Leveson inquiry. However, the question is whether the code of the industry’s self-regulatory body takes into account how people in such a situation should be dealt with. I sincerely hope so, but the issue, then, is whether we make it a requirement in the royal charter that the self-regulatory body’s code address the issue. All parties in Scotland agree that such a requirement should be in the code.
That is helpful. We have been provided with a note about the Scottish Government’s earlier consultation on the issue, which I think dates back to January 2011. What does not appear to emerge, though, is consensus around what any change may be. I wonder why that is. Clearly, it is a terribly complex area in which the pitfalls are fairly obvious. However, have any conclusions arisen from the consultation process and the responses that you received that would provide assurances that the pitfalls can be avoided and that the policy intent that I think we would all wish to see can be safely achieved?
I think that the pitfall that people are concerned about is whether we would have enshrined in law the defamation of deceased persons. There was no consensus on that point in the 2011 consultation. The Scottish Government responded by saying that we would like to see what Lord Justice Leveson said in his report, but he did not recommend legislation in this area. Therefore, there is certainly no consensus on the issue. I think that that is because of the pitfalls that you heard about in the earlier evidence session around what could be defined as defamation.
I am not sure that there is anything to add, but I emphasise that there is a distinction between the sort of legal claims that can go to courts and that in future may go to arbitration, which was what the consultation was about, and Ms Hyslop’s proposal of what should go into the charter about the ethical code—that sort of soft law. The debate has moved from the courtroom, as it were, into what may or may not be in the standards code.
One of the few points of agreement among the three editors from whom we heard this morning is that they do not want to see different approaches being taken north and south of the border. Notwithstanding that anxiety, if it proved to be impossible to open up the royal charter to the policy change that you have mentioned, would the Scottish Government consider with the other parties’ leaders at some sort of soft-law provision for Scotland?
I would not want to pre-empt discussions with the party leaders on that until we get a response from the UK Government on whether it agrees to opening up the royal charter in that way. That is an issue for further and separate cross-party discussion, so I would rather wait to hear from the UK Government. It is not my place to speak on behalf of the other party leaders.
Is the matter enough of a red-line issue that you will, if a solution at UK level proves to be impossible to find, explore options for doing that outwith how the royal charter might apply to Scotland?
The issue would be for dialogue and discussion with the UK media—and with the Scottish media in particular. I have already embarked on discussions with them on how we might deal with the issue in the editor’s code, although we do not have conclusions on that. However, it is important that the issue be reflected in the code, whether or not it is included in the royal charter. The royal charter is about trying to ensure that the content of the code has effect. From what we are hearing from the media, the issue would be covered on a voluntary basis in the voluntary code. The subject is part of the discussions that we are having with the media.
Is Clare Adamson’s question also on that area?
My question is slightly on the same area. As has been said, there was consensus among the editors about having a UK solution. In some respects, I suppose, that pushes us towards having a royal charter because that is what has been proposed by Westminster. If the royal charter failed to bring about the changes in the press that we all want, would that in any way preclude Scotland—or, indeed, the UK—from taking a different view and introducing legislation at a later date?
No. Perhaps the million dollar question is whether agreement will be achieved on establishing a media recognition body. Everyone is trying to work to achieve consensus but—the UK Government will be in a similar situation—nothing precludes us, a future Government or a future Parliament from doing something different. However, on such an important issue, it is important to try to get cross-party agreement.
Thank you for clarifying that. If we assume that the royal charter will apply UK wide, could the Scottish Parliament in the future still decide to do something differently? To use a phrase that was kicked around last week, would there be no democratic deficit?
Currently, the royal charter would apply only to England and Wales. As a Parliament, we could decide—we will have an opportunity to do so during a debate next week—to agree to it for Scotland as well, for which we would be informed by the committee’s views. Alternatively, it is open to us to decide not to take part in the royal charter but instead to come up with a different scheme.
Perhaps my question was not clear enough. I understand that we could choose the royal charter or something different, but if we choose the royal charter, what will be the situation after its implementation? Could we choose something different at some point further down the road?
Under the draft, in article 9, “Charter Amendment”, which is on page 4, and in article 10, “Dissolution”, which is on page 5, the charter is drafted for England and Wales. If we want to make the charter technically compliant for Scotland—again, this is to do with the two other amendments that I want to share with the committee—we would propose as an amendment to add a new article 10.1.a) as follows:
Thank you.
You talked about cross-party consensus—I would like a bit of clarity on that. Have the possible amendments that have been put to the UK Government been agreed across parties?
The amendments were sent to the party leaders at the same time as I sent them to the committee. We are in the middle of those discussions and I hope to achieve that agreement during the course of this week.
The amendments have not been agreed as yet?
The amendments that I sent have not been agreed. Most of them are technical amendments. The one that relates to the situation of recently deceased people reflects what the party leaders wanted when we met them on 4 April. That is what they asked us to do and that is what we have presented.
Okay.
In your opinion, did the expert group go beyond its remit?
Yes—the expert group definitely went beyond its remit in terms of the compulsory system. It produced a valuable report because the background and the points about Scots law are well presented. However, the report strayed beyond a Leveson-compliant voluntary scheme.
Initially, there appeared to be enthusiasm from the Government for what was coming out of the expert group. What has changed?
I am not sure that I agree with that reflection of the Government view. My response when I first read the report was concern about the compulsory element. The arguments are well made and consistent with one position that could be taken, but we did not respond by saying that we were endorsing the report. Indeed, to be fair to the expert panel, page 1 of the report makes it clear that the views are the views of the expert panel, and not the views of the Scottish Government. I agree with that.
Has the Government had further meetings with the expert panel since the publication of the report?
It has not, that I am aware of.
The cabinet secretary has pre-empted some of my questions by saying that she has already been in discussions with the Scottish media, but I will go just a wee bit further.
As Cabinet Secretary for Culture and External Affairs, I have regular and on-going dialogue with the media through the Scottish Daily Newspaper Society and through other bodies, but as regards specific meetings on this issue, the most recent one—I am just checking the date—was on 14 March.
Professor Miller said in evidence that there is a fine balance to be struck between having a free press, which is an intrinsic part of a democratic society, and ensuring that people have a right to privacy, and that support must be provided to victims and that they are not left feeling that they are the poor relations in such considerations.
I suspect that it will come from the recognition body recognising the self-regulatory press body. The recognition body must recognise the self-regulatory press body. If that body is recognised, that is when the carrots and sticks—the incentives—come in. If it is not recognised, the carrots and sticks cannot be applied as incentives.
I think that Professor Miller was making the point that the best possible scenario would be if the press acknowledged their responsibilities, engaged with them and were accountable.
In legal terms, it does complicate matters. In relation to interpretation, the expert panel is quite helpful in identifying which parts of internet presentation of news stories—as opposed to other matters to do with the internet—would be devolved issues.
An issue was raised this morning that I want to ask you about. If the royal charter comes into effect and the recognising role is established, will the industry have to set up a regulatory body?
To be recognised, it would need to do so. The industry wants to set up its own self-regulatory body; the question is whether it puts it forward to be recognised.
The point was made by one of the editors—I struggled slightly to understand it, so perhaps you can clarify it for me—that if the hacked off campaign, for example, set up a regulatory body that met the criteria, it would have to be recognised. Is that correct?
I will ask Greig Walker to check the legal reading of that. The point is that it would have to meet the criteria, which are clear about the content of the regulatory body, and it might be a challenge for a campaign such as hacked off—or, indeed, anyone else who was not of the industry, for the industry—to meet the criteria. The Leveson report also indicated that there might be more than one body seeking recognition, which is the other issue. That is why the criteria are critical.
That is helpful in explaining the point that was made this morning. Thank you for pointing that out.
Different mechanisms can be used; for example, notices can be placed on the internet. That is what a number of councils have done. Indeed, the Convention of Scottish Local Authorities has made representations to the effect that instead of spending their budgets on local newspaper notifications councils could instead publish such notices on the internet. I am not sure whether it was taken by this committee or its predecessor—I think that it was the previous committee—but evidence has certainly been taken on the reach of the internet and whether non-internet users are satisfied with their access to public information.
I just wanted clarification of whether the option is feasible and whether there are alternatives. Your response was helpful.
I thank the committee for its promptness on this matter and for the time and attention that it is giving it.
The committee has agreed to hold the next item in private.