In My Opinion: Francis Shennan: Should the Scots ‘Leveson panel’ hold fire?

THIS is the 40th anniversary of Scotland starting the working year a day behind everyone else. For January 2 became an additional bank holiday in 1973.

And Scotland may this year fall behind in Press regulation too. This Thursday, UK editors and publishers are due to meet in the expectation of completing the detailed blueprint for a new regulator.

More than 100 of them met just before Christmas and agreed to practically everything the Leveson Report called for, except the statutory underpinning. Instead, they agreed to be bound by contracts subjecting them to a regulator able to fine them up to £1million.

The proposed contract does not reassure critics that there will be no backsliding into ‘bad old ways’. It appears the initial five-year contract will be subject to annual renewal thereafter, allowing publishers to pull out at relatively short notice. Press Complaints Commission chair, Lord Hunt, is reported wanting five-year rolling contracts.

Legislation will still be required if libel or privacy damages are to be increased on publishers who stay outside the new system. And all three political parties are playing with the archaic idea of a Royal Charter for the new Press regulator.

However, it is a mark of the impact of his inquiry that Lord Justice Leveson’s report has set the agenda for reform and that national, regional and local newspapers have reached agreement so quickly.

In the meantime, Scotland is effectively holding an inquiry into the effects of an inquiry, with five experts appointed to look at how Leveson’s recommendations could be applied in Scots law.

The panel of five – former High Court judge, Lord McCluskey; former Herald assistant editor and former National Union of Journalists’ president, David Sinclair; columnist and former Sunday Mail assistant editor, Ruth Wishart; Edinburgh University law professor, Neil Walker; and Levy & McRae’s head of litigation, Peter Watson – are to report by March.

By then a new system, supported by the Scottish Newspaper Society among others, could be in place without statutory underpinning. It would be funded by UK media groups, who own most of the Press in Scotland and are unwilling to pay for a second regulator north of the border.

What if the panel of five recommend the Irish model favoured by the NUJ and believed to be favoured by First Minister, Alex Salmond? That would mean paying for an ombudsman who is recognised by statute and a Press Council, independent of government and media, to decide appeals against the ombudsman.

For the last two years, the Irish Press Council has been recognised under Ireland’s Defamation Act, so judges can take into account co-operation with the council. The current press ombudsman, journalist-turned-politician-turned-journalism-professor, John Horgan, gave evidence to Leveson.

Yet he has less power than the British industry’s proposed new regulator and criticisms of the Irish system sound similar to those of the PCC. He can order publication of complaints against newspapers but can act only when victims complain and cannot initiate inquiries or report on patterns of behaviour.

The Irish Press Council’s existence has also not dissuaded Justice Minister, Alan Shatter, from pushing for a Privacy Act.

The British Press are experienced in cross-border regulation: operating under the PCC and Press Council of Ireland, for example, or under Scots and English approaches to applying contempt laws.

However, the panel of five are now being asked to examine a situation which has moved on even in the month since they were appointed. There is an argument for them to conclude quickly that they should hold fire.

If the new British regulator fails, if Ireland takes the route of privacy legislation, they will have more evidence for what might be needed in Scotland.

After all, as January always proves, Scotland is not afraid of starting a little behind others.

Francis Shennan is director of and Visiting Lecturer in journalism and law at Westminster, Stirling and Strathclyde universities.