Salmond prepares to let Westminster take the hit over post-Leveson press regulation

It may surprise you to learn that a separate Scottish response to the Leveson report on press regulation is looking unlikely. Stage One  was a separate report by an “expert group” headed by  the former Scottish judge Lord McCluskey who recommended “draconian “ powers and a regulator appointed by the Scottish government.

If the London negotiations fail to produce the necessary statutory

underpinning for a Leveson-compliant Regulatory Body with universal jurisdiction,

then Scottish Ministers may consider introducing legislation separately to ensure that

those resident in Scotland can be adequately protected from abuse of the kind that

the Inquiry identified and examined. We believe that it would be possible for the

Scottish Parliament to achieve that object by legislating for the regulation of news–

related material circulating in Scotland by any means including electronic publishing.

Scottish legislation could provide for a separate Scottish Recognition Body

This interpretation of  the McCluskey Report is by a former Daily Record journalist, now a Scottish Labour adviser   

Under the terms of the devolution settlement, Salmond has no power over the broadcasters. But there is no law stopping Holyrood from regulating the press: protection wasn’t included because back then press regulation was not on the agenda. Salmond found himself with some power, which he used as a bargaining chip with the press. He called for all party talks (which I attended) and then put to the respected retired judge, Lord McCluskey, a remit the group had not agreed.

The result? Incredibly draconian measures. If adopted, Scotland would not just be importing pandas from China – it’d be importing its internet laws. McCluskey recommends state regulation of the Internet, Twitter, indeed anything which publishes ‘news content’ which includes comment. Perhaps worst of all, regulation would be compulsory and Scottish ministers would have the power to appoint the regulator…

At first Salmond welcomed the McCluskey report as ‘admirably clear’. Now he appears – appears mind you – to be in full retreat. For once Westminster’s action is giving him a way out of a disastrous situation by agreeing with them.

But is that true?  Will  Alex Salmond accept Westminster’s late night solution? He himself has given a surprisingly temporising  first reaction.  UK ministers will come to Edinburgh to explain how the royal charter arrangements could work : “ We have a few weeks to get this right for Scotland. “ Why does he seem so uncharacteristically willing to toe the Westminster line? Could it be that the separate Scottish solution on offer would heap ignominy upon his head and he would prefer Westminster to take the hit?

Stage Two The Royal Charter solution sets up the  recognition panel which in fact appears to rule out a separate  solution for Scotland, according to Iain Jamieson writing in the influential blog of the UK Constitutional Law Group    

The Scottish Parliament can legislate to regulate the press in Scotland. This is because this matter is not made a reserved matter. In principle, therefore, it would be competent for the Scottish Parliament to legislate to give effect to the Leveson Report in whatever way they thought fit.

It was for this reason that the Scottish Government appointed an Expert Group under the chairmanship of Lord McCluskey to consider what was the most appropriate way of giving effect to that Report in Scotland. The Expert Group has now published their report but it has been met with an almost universal hostile reception by the press.

However, the Expert Group Report may, to a large extent, now be irrelevant. This is as a result of the way in which the UK Government is proposing to give effect to the main recommendations in Leveson regarding the setting up of the Recognition Panel to recognise the independent regulatory body for the press. The UK Government propose to do so by means of a Royal Charter. This will be contained in an Order in Council made under the Royal Prerogative. There is nothing in the Royal Charter to indicate that it is not intended to extend to Scotland. In the absence of any such indication, it will extend to Scotland.

By implementing the Leveson Report in this way, the UK Government has, in effect, bypassed the need to obtain the consent of the Scottish Parliament to the terms of the Royal Charter in so far as they extend to Scotland.. This is because the consent of the Scottish Parliament is only required, under the Sewel Convention, to approve any Bill proposed in the UK Parliament which deals with devolved matters or affects the legislative competence of the Parliament. Neither the Royal Charter nor the Order in Council will constitute such a Bill. The Scottish Parliament will, therefore, have been deprived of having any say in the provisions of that Royal Charter.