The scandal of Scotland's hacking (non)scandal...

Quoth Alex Salmond at FMQs on the 8th of March, in response to a question from Willie Rennie about phone-hacking by newspapers...

"I do not know whether Willie Rennie managed to attend First Minister’s question time last week, when I reiterated and made absolutely clear my full support for the police investigations south and north of the border and my full support for the Leveson inquiry. Since the then Government did absolutely nothing about it, he should take on board the findings of operation Motorman. I promised last week that the document would be placed in the Scottish Parliament information centre, in case the identification by the information commissioner of potential criminality in respect of data protection had not been fully understood by members. I advise Willie Rennie to read the list, which extends across the London press—there are very few Scottish examples in the analysis. Every part of that document should be analysed, and we should support the police inquiries into phone hacking and the Leveson inquiry to the hilt."

The implication being, more or less, that save for the odd chancer and scallywag amongst the Scottish hacks, the invasive practices, blagging and the illegal acquisition of private data, were more or less limited to the London media and the spangled and sorry characters, unlucky enough to catch their eye. As Scottish politicians, we needn't trouble ourselves over much one way or the other. After you, Lord Leveson.  In point of fact, if you read the Information Commissioner's Operation Motorman reports, you will indeed find few Scottish titles, but Salmond oversimplifies. For simplicity, I'll quote my summary from this piece of last summer:

The Commissioner's second document contains a breakdown of transactions showing the extent to which journalists from different media outfits had made unlawful bargains to secure private data about individuals who attracted their curiosity. The table is dominated by papers published on a UK wide basis (there is no separate record, for example, about the News of the World operation in Scotland), but includes the Daily Record, with 7 transactions where private information was unlawfully tafficked for by two Record employees. A number of other papers have (or had) Scottish wings. The Commissioner does not break down these confirmed transactions by jurisdiction, so it is impossible to say on the basis of the published data what "share" Scotland might have in the News of World's 228 positively identified transactions, nor for that matter any of the other papers (many of whom ratcheted up far, far more identified transactions than the defunct News of the World).

For that reason alone, Salmond's bluff confidence in the Scottish press is utterly unwarranted, the aggregated UK data being equally consistent with rank invasions of privacy north of the Tweed - and with saintly press observance of legal norms. On the data published by the Information Commissioner, it is impossible to tell.  

Fascinatingly, the Sunday Herald published a very important article this weekend on the hitherto hidden Scottish aspects of Motorman. And a demolition of Salmond's self-congratulatory version of Scottish press exceptionalism it proves.  Based primarily on quotes from a key investigator involved in the Motorman investigation, the paper reveals that Ally "McCoist named as victim of black market in illegal information".  The investigator, Alec Owens, claims that:

"Amongst the files there were a lot of Scottish telephone numbers for reporters, a lot of Scottish numbers like 0141, 0131. A lot of numbers I recognised as Scottish. There were a lot of victims in Motorman that could be related as Scottish."

And that:

"There was a lot of information about ... Scottish reporters. One in particular, who I can't name, came out very strongly and, had we been allowed to do the job we wanted to do, he would have been in the top 10."

A few Scottish witnesses are appearing before the Leveson inquiry today, including the Chief Constable of Strathclyde Police, Stephen House and Herald editor, Jonathan Russell, but Salmond is right in one respect. As a judicial proceeding sitting in London, presided over an English judge, under English procedure, assisted by English lawyers, Leveson has focussed pretty unstintingly on the activities of Fleet Street and the Metropolitan police. And fair enough too, to some extent.

But given the vast ambit of his terms of reference, overburdened by points of interests and questions to be examined, I'd be shocked if Leveson really has anything interesting to say about what has transpired north of the border. It simply isn't a priority among his many priorities. But shouldn't the subject interest Scottish politicians? Shouldn't this trouble parliamentarians who are generally keen to cultivate an alternative Scottish political space? Perhaps even trouble them into activity? Remember, press regulation is not a reserved matter under the Scotland Act. Devolved institutions may decide to defer to Westminster-ordained investigations, but they need not. Given this weekend's revelations from the Sunday Herald, the complacency and indifference of Scottish politicians about the implications of the hacking scandal for Scotland and in Scotland is increasingly inexcusable.

#Hackgate & the Crown Office...

In a timely development last week, neatly following my post of the standards the Court of Appeal applies to appeals against conviction based on new evidence being adduced, Tommy Sheridan's appeal against conviction and sentence was rejected at the second "sift" by the Court. As was widely reported, the Crown Office have announced that, under their direction, Strathclyde Police have launched an "investigation into alleged telephone hacking in Scotland". They informed us that...

The Crown had previously asked Strathclyde Police to make a preliminary assessment of the available information and the evidence given by certain witnesses in the trial of Tommy Sheridan following allegations made against the News of the World newspaper. The preliminary assessment has concluded. Strathclyde Police have now reviewed the available information and following liaison with the Area Procurator Fiscal at Glasgow the Crown has instructed an investigation should commence. The investigation will be progressed expeditiously and in close liaison with the Area Procurator Fiscal and Crown Counsel. Significant resources will be deployed though these will vary with the needs of the investigation.  The investigation will cover the following:

1. Allegations that witnesses gave perjured evidence in the trial of Tommy Sheridan.

2. Allegations that, in respect of persons resident in Scotland, there are breaches of data protection legislation or other offences in relation to unlawful access to personal data.

3. Alleged offences determined from material held by the Metropolitan Police in respect of 'phone hacking' (Contraventions of the Regulation of Investigatory Powers Act 2000) and breaches of data protection legislation in Scotland.

4. Alleged instances of police corruption linked to items 2 and 3 above, in respect of the unlawful provision of information or other personal data to journalists or persons acting on their behalf.

Having investigated these matters Strathclyde Police will report to the Area Procurator Fiscal at Glasgow and Crown Counsel.

Politically, interest has primarily been piqued by the first of these fourfold points of investigation. In context, it clearly speaks to those witnesses in H.M. Advocate v. Sheridan who were asked about the issue of phone hacking, which includes David Cameron's former communications director, Andy Coulson. Perjury is popularly conceived as simply giving false evidence under oath, whatever the nature of that evidence, however trivial or peripheral to the case being examined.  Curiously, in Scots Law, perjury is more narrowly defined than that. So "what is perjury, and what isn't?". Scots Law Thoughts has composed a mammoth post on the subject, reviewing the legal authorities, their definition of the offence of perjury, and their applicability to the News of the World Sheridan trial witnesses. Paul writes...

"If a person, having sworn the oath or having affirmed, wilfully makes a false statement in evidence, such evidence being competent in the case in which given and relevant to proof of the charge or credibility of the witness, then perjury is committed under the Law of Scotland."

The potentially interesting and problematic question is whether Coulson's answers about phone-hacking at the Sheridan trial, even if wilfully falsely given, can be said to be relevant to the proof of the charge, or the credibility of witnesses? To put this as starkly as possible, if Coulson's evidence was not held to be relevant by the Court, in law, even if the testimony was false, he has not committed perjury.  Most would, I fancy, find this to be a pretty shocking conclusion and ill fit with the idea that one should tell our courts the truth, under fear of severe penalty. I profoundly sympathise with that view.  

Despite the individual interest of the investigation of potential perjuries these Sheridan trial witnesses, in many respects, the rest of the Crown Office press notice is arguably more important. As I have observed before, we really have no idea about the extent to which the media in Scotland may have used or solicited others to use unlawful means to secure private data, nor for that matter to what, if any, extent Scottish police officers may have corruptly facilitated this seeking after personal information.  I have already noted that the Information Commissioner's second report - What Price Privacy Now? - which enumerates the discoveries of Operation Motorman, does not break down its findings by jurisdiction, leaving Scotland's position unclear. What is clear, however, is that the Scottish press is not inoculated against the sharp practices which, once revealed, vilified and destroyed the News of the World. Of the Scottish title, the Daily Record, the Information Commissioner recorded seven confirmed instances of transactions to unlawfully secure private data, with two journalists implicated.  Points (2) and (4) of the Strathclyde Police investigation are clearly exceedingly broad - you might think implausibly so - apparently examining all potential breaches of data protection with respect to Scottish residents, and extending to pan-Scotland police corruption and press mischief in that context. 

While I can absolutely see a role in the police in an investigation of criminality, I'm not wholly convinced that, given this investigation's very diffuse goals, and the public interest in finding out any conclusions reached, that criminal justice processes can adequately serve all of these goals. For example, where no charges are brought against individuals in court, we tend to learn very little about evidence uncovered by the police in the course of their enquiries. Take the Information Commissioner's report. Needless to say, he identifies a far, far greater number of unlawful transactions than have ever been prosecuted.  Cases might not proceed in court for a number of reasons - criminal standard of proof, limited evidence, exclusionary evidential rules, prosecutors determining proceeding is not in the public interest - this does not mean that offences were not committed.  In this, as in other areas, taking non-prosecution and non-conviction for evidence that offences have not been committed is exceedingly problematic. While Lord Justice Leveson's inquiry does extend to Scotland, given its already bloated terms of reference, I would be wildly surprised if they took a significant interest in events transpiring north of the Tweed. We know that the Scottish Government commented on the inquiry's draft terms of reference, and wanted Her Majesty's Government to include the findings of Operation Motorman in Leveson's remit. Pete Wishart said...

“The hacking activities by News of the World were reprehensible, but we cannot assume they were confined to just one newspaper or form of media. It is disappointing therefore that the Prime Minister has rejected the Scottish Government’s call to include an investigation into the findings of the Information Commissioners 2006 report on Operation Motorman within its terms of reference.”

Pete need not be too disappointed. The Inquiries Act 2005, under which the Leveson investigation was constituted, affords Scottish Ministers the power to order inquiries into matters that relates to Scotland and are not a reserved matters [s28 2005 Act]. Scottish ministers must at least be dimly familiar with this piece of legislation, since UK Ministers are obliged to consult them, if any inquiry concerns a "matter that relates to Scotland and is not a reserved matter within the meaning of the Scotland Act 1998". While there may be some legal hurdles to be overcome, it seems to me to be well within the powers of Scottish Ministers to hold their own inquiry on these matters concerning Scotland, if they believe such an investigation would be needful and beneficial, even dictating their own terms of reference. If minded to do so, disappointment could give way to action.  Otherwise, Strathclyde's police investigation continues. While we can expect the press to take a great deal of interest in the fates of Bob Bird and Andy Coulson one way or the other - those like me, curious about the currently totally opaque implications of "Hackgate" in Scotland, should be sure to attend to any developments, under points two and four of the Crown Office investigation.

Does Scotland need its own Operation Motorman?

Last week, Love and Garbage composed a post provocatively entitled "Salmond's failure on press regulation".  The Maximum Eck has issued the following trimming pronouncement on the ongoing hacking scandal...

“What has surfaced this week is the huge controversy over the total, abject failure to regulate the press in any effective way. We now know that the information commissioner presented evidence in November  2006 covering our major publications – thousands of instances of potential breaches of the law – and yet the Westminster government did absolutely nothing to bring the range of houses into order.”

Salmond presents us with an image of the virtuous devolved authority, faces writ with concern, looking on as Westminster authorities did sod all. It's beyond my control, it says, with a sorrowful shrug.  It wisnae me, he implies, and on press regulation suggests - or near as damn it - that the SNP would haven regulated differently, but couldn't, so didn't. You can almost hear the distant refrain our opponents find so tiresome ~ "in an independent Scotland..." In fact, in terms of Scottish press regulation, the proper formulation is that the SNP could have done something and didn't - in large part because like (almost) everybody else, the party wasn't wildly interested in the Information Commissioner's (2006) report What price privacy? The Unlawful trade in confidential personal information and the follow-up six months later, What price privacy now? To imply otherwise is understandable but clearly dexterous positioning in the prevailing political atmosphere.
 
There are number of dimensions to this. Firstly, the devolution settlement. Is press regulation within Holyrood (and thus the SNP's) powers or not? Secondly, what does it tell us that most folk (even one suspects in the parliament) might be surprised to discover the answer to my first question is yes? Thirdly, what are the implications of Holyrood's freedom to act here? What actions might it consider taking, and why?

Can Holyrood regulate the press?

Firstly, the issue of powers. Nobody expects the SNP to regulate Fleet Street, but what about Scottish titles and their journalists? For reasons Love and Garbage clearly outlines, from a Scottish perspective, for Salmond to take a tackety-boot to the Westminster Parliament is misleading and none-too-subtly self-serving...

"Salmond has been the First Minister of Scotland for the past 4 and a bit years. The government he has led, and leads, can act within the powers set out by the Scotland Act 1998. At times the government has suggested legislation that some of us feel push the boundaries of legislative competence. So proposing to act outwith competence does not usually hamper Mr Salmond and his party. However, on this topic press regulation is firmly within the competence of the Scottish Parliament.

The issues on which the Scottish Parliament (and Scottish government) cannot act are broadly set out in Schedule 5 to the Scotland Act 1998, which includes a reservation in relation to certain topics regarding culture and the media in Head K. The reservations include broadcasting, public lending right, a government indemnity scheme, and tax related transfers of national heritage. The press and regulation of the press does not appear in Head K. Regulation of the press does not appear anywhere in Schedule 5. This is a devolved topic. And if the SNP government had the will to do anything about the potential implications of press behaviour in Scotland after Operation Motorman they – and not Westminster – could have acted. In fact if Westminster had acted across the Uk the Scottish Parliament would have required to pass a Sewel motion to assent to Westminster dealing with devolved territory."

This analysis must be correct. Unlike Wales, the Scotland Act 1998 is structured by the explicit reservation of powers, rather than explicitly granting them. Thus climate change fell within Holyrood's purview, as it was not explicitly reserved to Westminster under Schedule 5, which sets out the list of reserved matters beyond Holyrood's competence. Some of these have a clear purchase on the political consciousness. For instance, the defence of the realm [Schedule 5, Part 1, s9] and international relations and foreign affairs [Schedule 5, Part 1, s7] - and curiously enough, treason [Schedule 5, Part 1, s10]. More specific reservations follow under a range of headings, from Misuse of Drugs to currency; immigration to firearms; betting, gaming and lotteries to consumer protection; time and space - and so on. The list is long and includes many profoundly important areas of public policy. However, it categorically does not include press regulation, though the Data Protection Act 1998 is reserved [Schedule 5, Part 2, sB2].

There is a wider point in all of this. If you are a sovereign parliament, there are still going to be complexities when drafting, scrutinising and enacting Bills. Existing statutory regimes are often fearfully knotty, some of them with difficult European Union law dimensions to be contended with and mammoth processes of consequential amendment. Legislation in Westminster is by no means easy.  However, its members and its government are at least mostly relieved of the difficulty of asking: is doing policy X within our powers at all? They enjoy a basic liberty of action. Not so, with Holyrood. To use a picturesque phrase sometimes deployed, the Scottish Parliament was not born free. The limits of the Scotland Act - and the way powers are implicitly granted rather than explicitly enumerated - call for a high level of legal sophistication if the full extent of the parliament's powers are to be understood. This can be particularly challenging if you stray outside the familiar, well-trodden areas of Holyrood legislation. Unfortunately, there are not many signs of such sophistication, either in the press, or on the benches of the parliament. 

Paradoxically, as with press regulation, this limited understanding of the full extent of the Scottish Parliament's existing powers results in an SNP government and parliamentarians treating issues which are within their powers as being concerns properly limited to Westminster only.  Alex Salmond issues statements of the sort quoted at the beginning of the piece, which leaves the profound but erroneous impression that he and his Ministers and the Scottish Parliament are fettered and tied. They can only sit back, pull constructive faces, demand better consultation with Westminster authorities - and wait for Sewel motions, which are passed on the nod. It is worth remembering what these legislative consent motions are all about. Conventional instruments rather than mandated by strict law, at their most basic, these motions are used where Westminster legislates concerning devolved matters. Although many pieces of legislation emerging from Westminster might concern commingled reserved and unreserved issues - when you see a Sewel Motion, the proposed Westminster Bill before you addresses, at least in part, devolved powers and consent is simply not solicited in areas reserved to the London Parliament.

Moreover, it is simply absurd to imagine that the SNP's masterly inactivity on press regulation in Scotland was a policy consciously adopted, better to cultivate the impression that Holyrood wants powers it should otherwise have - and that it would be a better custodian of those responsibilities than Westminster has proved. Salmond's response is one governed by events. And understandable it is too. Given the current predicament, for Scottish nationalists blessed with low animal cunning, it is an obvious calculation that it does the independence argument no harm to cultivate the impression that London is a new Babylon, whose public life, manners and creatures are degenerate, decadent and corrupt. No political benefit accrues from an honest response, which concedes that the party's attitudes to these matters is ultra-mundane at best.  However, as the Burd has reminded us this week, it is vital to keep in mind that amid the viscera-spilling in the British political sphere, Scotland is not excepted from the toxic soup of cronydom, elite capture and cosy corporate connections. Nationalists may be minded to rail against the British establishment of which they are resolutely not a part, however, that's no excuse not to give Scottish establishments their own rattle. It is a matter of taking sides in Scotland, as well as taking Scotland's side, as someone once said. 

Which brings me back to the Information Commissioner's reports in the light of Operation Motorman. The Commissioner's second document contains a breakdown of transactions showing the extent to which journalists from different media outfits had made unlawful bargains to secure private data about individuals who attracted their curiosity. The table is dominated by papers published on a UK wide basis (there is no separate record, for example, about the News of the World operation in Scotland), but includes the Daily Record, with 7 transactions where private information was unlawfully tafficked for by two Record employees. A number of other papers have (or had) Scottish wings. The Commissioner does not break down these confirmed transactions by jurisdiction, so it is impossible to say on the basis of the published data what "share" Scotland might have in the News of World's 228 positively identified transactions, nor for that matter any of the other papers (many of whom ratcheted up far, far more identified transactions than the defunct News of the World).

Scottish legal magazine The Firm have a poll on their site, asking, "Should a Scottish judge be appointed to inquire into the relations between media, Government and the police in Scotland?" Although those are hardly exacting terms of reference - and politicians of a particular stripe are unlikely to be happy about the including the government in this - prima facie, it seems to me that we do have good grounds to consider some sort of general and independent investigation of practices of the Scottish press and police in this area. The present turmoil in the press is, understandably, focussed on London and the metropolitan police, both as investigators and participants in unlawful escapades at the expense of the public. Given the apparent scope of hacking and blagging behaviours in the press (and not just the tabloid press), and the indeterminacy of the Commissioner's reports with respect to these things in Scotland, there seems to me to be no good reason at all blithely to assume that villainy respects the banks of the Tweed.