Jack McConnell - and his weans - hacked...

A scoop, and a very significant one, for the Daily Record this morning.  The Labour-leaning paper exclusively reports what has apparently been known to him for "several weeks", that former FM Jack McConnell's details - and those of his two children - appear in News of the World hacker Glen Mulcaire notebooks. 

The alleged hacking of McConnell and his two children is thought to have taken place between 2001 and 2007, when McConnell was in office as First Minister.  The article implicitly - but only implicitly - posits the following as an example of the sort of material the News of the World might have gained through unlawful access to private information.

"Lawyers for Jack McConnell’s family are now scouring stories in the shamed News of the World’s Scottish edition for evidence of phone-hacking.  The now defunct Murdoch-owned Sunday carried a front page story in 2002 that former TV presenter John Leslie had begged Lord McConnell’s daughter Hannah for a night out. The newspaper claimed Leslie had sent Hannah, then 23, a “barrage of calls and text messages” after they met at a charity dinner in Glasgow.

Their story claimed: “Lusty John Leslie bombarded Jack McConnell’s daughter Hannah with text and phone messages until she finally agreed to go out with him.” The newspaper said that Hannah initially turned him down.It claimed: “Leslie called Hannah again and again, inundating her with messages until she caved in.” The pair went on one date in London and did not see each other again."

The McConnells are all, reportedly, suing civilly.  The Record piece is overlarded with a good deal of partisanship, baiting hooks for Salmond fishing, but that shouldn't distract from the significance of this development. On all sides of Scottish politics, we've heard only banal boilerplate condemnations about the hacking scandal, or a certain diffidence about the whole affair, attributable perhaps to seeing it as a Fleet Street problem, limited to London.  

Ironically, if you read the Information Commissioner's Motorman report of 2006, one of the few Scottish titles explicitly to be ranked on its hierarchy of offenders (Scottish editions of UK papers not being disaggregated) was the Record itself, against whom the Commissioner recorded seven transactions where private information was unlawfully tafficked for by two Record employees.  One of Motorman's key investigators has already indicated that Rangers' Ally McCoist was amongst those who were Scottish victims of the "black market in illegal information".  Remember, the Motorman investigator Alec Owens has also claimed 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."

This morning's McConnell revelations - particularly those touching on his children, and their private lives - surely ought to put pay to that complacency about the Scottish dimension which will - almost certainly, even understandably - receive scanty attention at Leveson.

Salmond's astonishing naïveté...

Imagine, if you will, that you are a hoary old political warrior. Your cynicism well honed and hide scarred by innumerable past battles, you have a consuming addiction to the strategy of politics, and enjoy a reputation as an uncommonly accomplished calculator in that game. Sitting enthroned in your bastion, triumphant after having handily routed all politics foes, a queer old fellow comes knocking, professing friendship and saying he only wants a chinwag and a caramel wafer for his trouble. On closer inspection, you realise this elderly fellow is known to you. And what luck! To the rest of Britain too. 

Known, most recently, as a rapacious and reactionary corporate thuggee whose enterprises have become implicated in all manner of nefarious deeds. Perhaps not as their originator or even their accessory, but this man is certainly paymaster in all, and promoter of many of those suspected. To the rest of politics, so besmirching and risky has proximity to this character become, that all past encounters and past efforts to court him are hastily – if not entirely convincingly – jettisoned. Behind the wheezing steamship Rupe bob the flotsam of many political past friendships and courtships, hastily discarded. Sodden Labour and Tory rosettes float in his wake. 

Naturally, here’s the sort of fellow it would clearly prove politically advantageous to admit into one’s official residence for a chin-wag in February 2012. Embracing the leper may be a Christian duty, but to a politician with a speck of nous – never mind a track record of cunning application – it ought to be anathema. In that context, reconsider Johann Lamont’s remarks at FMQs yesterday, not as a partisan attempt to nail Alex to the cross – but as a matter of practical political calculation: 

“Rupert’s newspapers might be being investigated for bribery, perverting the course of justice, destroying evidence and perjury, but he is still welcome in wee Eck’s house… There are three police investigations, a judicial inquiry, and nearly 50 arrests, but Eck still puts the kettle on for Rubert.” 

On the News International side, this seems to me to be a pretty fair summary of the context, after all. It is an engulfing scandal, which may yet see a number of people adjudged guilty and clapped in irons. Above all, how it will unfold remains uncertain, so cultivating – intentionally or unintentionally – any perceptions of closeness to very visible figures entangled in it is profoundly risky. Which makes you wonder, at what point did Alex’s political acumen – or caution – desert him, and why? What the devil was he thinking, in admitting this man to Bute House last February, recognising as he did the political impact of “the revelations about phone hacking and Milly Dowler”? 

Alex’s defence is that it was all about jobs. And indeed, this account certainly finds some support in the evidence submitted to Leveson (Exhibit KRM 28), where Salmond's 12th of February lunch meeting with Murdoch is described as concerning “News Corporation’s investments in Scotland”. This is corroborated by a remark made by Salmond at First Minister’s Questions on the 1st of March 2012. Pressed by Lamont, Alex Salmond described the 12th of February meeting as:

“… a meeting to determine jobs and the economic footprint of Scotland”.

That well before the stated rationale of the encounter became a matter of generalised political controversy.  Seen as a matter of bare calculation, meeting Rupert in February was colossally risky – and indeed, is so obviously colossally risky , that one really has to wonder what possessed Salmond or his advisers to permit it to proceed. Here was a man recently pulled before parliament, whose organisation was already implicated in extensive and organised phone-hacking, including of the phone of a prominent victim of murder, the corruption of police officers, and several high profile former employees had been arrested and may yet be charged.  While the Motorman report seems strongly to support the thesis that this wasn't a Murdoch-paper problem, but an industry problem, nevertheless, with the closure of the News of the World, Murdoch has been the emblematic figure.  

Ah, but those jobs. Remember those jobs. A First Minister is under an obligation to strain every sinew to secure investment in Scotland. It would be remiss, negligent even, to do otherwise. 

Up to a point, Lord Copper. But what this argument implies – and implies none-too-convincingly – is that the only way Salmond could hope to emphasise the importance of BSkyB’s employment operations in Scotland was personally to invite the indicted figure of Murdoch over to his public residence. All of which smacks of, I’m afraid, a familiar piece of politician’s whimsy. That sense of your indispensability, fondly fancying yourself a grand man of action at the centre of it all, making all the vital directions and interventions. This is politics in the West Wing line, where the majestic charisma of the central character of the drama and their personal relations are pompously fetishised. Let us sit down, and talk, as men. 

In the past, I’ve railed against the complacency implicit the First Minister’s answers on phone-hacking, which have implied – against the grain of the available evidence – that the whole imbroglio could safely be confined to Fleet Street, and that Scottish politicians needn’t trouble themselves too much about it. I wonder now if that sense of complacency about the Scottish dimensions – and a sense of London as a different political world, and its controversies as inapplicable north of the Tweed – contributed to the insensitivity which saw Salmond serve up shimmering bar of Tunnock’s finest to one of the most embattled and maligned figures in British public life, apparently without a twinge of apprehension about how this would be perceived, or the narratives and potentially discrediting accounts of himself which it may - and now has - contributed to. 

This Salmond’s tu quoque defence, and reasonable invocation of Labour hypocrisy and mutual incrimination simply won’t – can’t – answer. While it is certainly true that Labour leaders and Prime Ministers and their Tory successors were slithering supplicants, worldly men engaged in worldly business in Rupert's court, that cannot account for Salmond's strange unwillingness to make the obvious political calculation, and like the rest, contrive to put some political distance between himself and this lighting rod of hostile commentary.  Not to have done so has demonstrated either astonishing naïveté or foolish complacency. Even accepting the First Minister’s account of his motivations in meeting Murdoch, and the economic interest at stake, keeping in so visibly with Rupe after this scandal broke was, in that cunning old dog Fouché’s phrase, “worse than a crime, it was a blunder”. 

If this is “canny” political operating, then I’m a turnip.

The latest Operation Rubiconia...

"Operation Rubicon mothballed?" I wondered last month, after the Chief Constable of Strathclyde Police appeared before the Leveson Inquiry.  This wasn't a piece of wild speculation on my part. Lord Leveson himself implied (or at least seemed to me to imply) that the force's investigation into phone hacking, unlawful access to data and police corruption in Scotland had shrunk to encompass only the first point of the Crown Office's four-point term of reference for the operation:

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.

Leveson said the following to the Chief Constable at an early stage of his evidence:

“Your operation, I understand it is very specific, and covers one particular incident. I have no intention whatsoever to – of – impeding or affecting any criminal investigation or inquiry.”

As I pointed out, no reading of the Crown Office remit for Strathclyde could support this proposition. So what was going on? Had the Operation been quietly scaled back, focussing solely - or "very specifically" on aspects of H.M. Advocate v. Sheridan? There have been a couple of interesting developments on this score I wanted to flag up, in case you missed them. 

Last week, Steven Raeburn published a piece headlined "Exclusive: Sources claim police corruption and phone hacking investigation in Scotland scaled back".  The nub of the piece was that sources "close to the investigation" had confirmed those suspicions "that the operation has been restricted to probing a single item on its remit, the Tommy Sheridan perjury case."  A day later (Thursday April 5th), the Firm published a second story on point: "No arrests, but police say Operation Rubicon not scaled back".  Confuting those anonymous sources, and the impression made by Lord Justice Leveson in his remarks to House, Christine Allison of Strathclyde Police told the magazine that "Operation Rubicon has not been scaled back nor has its original intention been changed" and confirmed that "The enquiry is not solely restricted to matters arising from the Tommy Sheridan case." The police source also confirmed that no arrests had yet been made.

But what do you know? Uncannily coincidental though it may seem, this morning investigative journalist Charles Lavery reveals that a Glasgow-based police officer was apparently arrested last Friday (6th of April) as part of the Rubicon operation.  Writes Lavery:

"The officer was based at Govan police office in Glasgow and is believed to work in an intelligence capacity. His home was raided and searched on Friday morning and he was arrested over alleged breaches of the Data Protection Act. He was held in custody over the weekend. It is unclear at this stage whether he appeared at court on Monday, either on petition or from custody."

Read his full story here. 

UPDATE

Curiouser and curiouser. According to the Firm,  they've been told that the police officer referred to in Lavery's story "was not arrested as part of Operation Rubicon."

Strathclyde polis: Operation Rubicon mothballed?

Yesterday, Chief Constable Stephen House was giving evidence before Lord Justice Leveson in the High Court in London. Before House got to the substance of his evidence, Leveson interrupted to make the following observation:

“Could I make it clear that I’m aware that the Strathclyde are presently involved in an investigation which raises a number of the issues with which this inquiry is concerned. And I want it to be understood by all. I am not merely not inviting you to deal with that inquiry. I’m positively requiring you not to. It has been a very important aspect of this work, that – of this part of the inquiry – that I am not trespassing on individual investigations. I’ve learned a fair amount about Operations Weeting, Elveden and Tuleta but only in the most general and not the most specific sense. Your operation, I understand it is very specific, and covers one particular incident. I have no intention whatsoever to – of – impeding or affecting any criminal investigation or inquiry.”

The interesting question being, where did Lord Leveson acquire this understanding, and what might he know that the rest of us don’t? The first thing to note is: Leveson’s estimation of Operation Rubicon's confines is quite unsupported by the material about the Strathclyde investigation in the public domain. Take yourself back to the July of last year, when it was launched. The Crown Office published the following press notice, detailing Rubicon's ambit:

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.

These terms of reference could give nobody who had diligently read them the impression that the investigation was going to be exclusively limited to some offshoots of the Sheridan case. Certainly, that line of inquiry is the most concrete one specified, but the overall impression is that Strathclyde was being more generally mandated to investigate these matters. According to reports in the Scottish press during August last, a “well-placed source” indicated that Strathclyde had assigned as many as fifty officers to the investigation.

So what’s the explanation? Has – heaven forfend – Leveson only skimmingly consumed Operation Rubicon’s terms of reference and misapprehended its compass? If that was true, and his understanding was wrong, isn't it curious that House took no steps to correct His Lordship's blip? Alternatively, and perhaps more plausibly, might Leveson’s remarks suggest has that Operation’s effective scope has now collapsed solely into examining matters arising from HM Advocate v. Sheridan, Leveson having been pre-briefed, off camera, to this effect?

I commend to your judgment, which explanation seems most likely. If the latter, it adds to the depressing evidence that what may or may not have gone on in Scotland - the phones hacked, data illegally accessed, or bought from officers of the law - (a) won't be a priority for Leveson (understandably); (b) was investigated by the Information Commissioner in the middle 2000s, whose findings have been largely ignored; (c) that they continue to be ignored by Holyrood politicians, who instead favour us with misleading tales about Fleet Street villainy, contrasted with Scottish press sobriety (with the evidence pointing the other way mind you) - and if that cheering troika wasn't enough, (d) that potential breaches of the law beyond HM Advocate v. Sheridan are not now being seriously investigated by the Scottish police.

It may be that I am reading too much into a brief aside by Leveson, and House kept mum out of courtesy, but the implications of their exchange are seriously discouraging.

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.

Holyrood to tell Westminster to sod off on welfare reform?

One of the reasons I'm such a bore about the Scotland Act 1998 (in addition to my own inveterate tendencies in that direction) is that perceptions of what Holyrood can and can't do will inevitably effect what Holyrood will and won't do. A bland saw if ever there was one, but there is, I think, a neglected point hiding within it. Sometimes, there is legislative will but the relevant powers are reserved. Sometimes one is tiptoeing along the line of reserved and devolved matters, or touching on EU law or fundamental rights, and trying not to lose one's balance and take a damaging and delaying tumble into the courts. Although we tend to associate Nationalists are being natural aggrandisers of their own jurisdiction, keen to collect any power over matters Scottish going begging - there is also the curious phenomenon of treating devolved matters as if they were reserved. One example, discussed on this blog, concerned the summer's News of the World scandal, and the Information Commissioner's Operation Motorman report.  Although  risking obnoxious and extended self-quotation, this excerpt articulates just the sort of thing I'm getting at:

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.

This phenomenon popped into my napper as I read this piece by the Burd at Better Nation, talking about Holyrood's examination of Iain Duncan Smith's Welfare Reform proposals, debated later today on the following motion from Nicola Sturgeon:

"That the Parliament notes the Welfare Reform Bill that is currently being considered by the UK Parliament; regrets that the far-reaching proposals contained in the bill are being pursued against the backdrop of substantial cuts to welfare benefits announced in the June and October 2010 UK budgets; further regrets the impact that these cuts will have on some of the most vulnerable individuals and families in society and on the local authority and third-sector organisations committed to supporting vulnerable people, and calls on the UK Government to pursue a welfare system that is properly financed, simple to understand, lifts people out of poverty and makes work pay."

Hardly a ringing endorsement of the Her Majesty's government's approach to welfare reform, you might well think, but tone is more in sorrow than in anger. To regret is not to deplore, nor is to lament to oppose. How then is Sturgeon's motion to be understood? Does it suggest that a consent motion would be passed by the SNP majority - albeit with rhubarbs about the policies of the Westminster government - or insofar as devolved consent is required, imply refusal? Labour's Jackie Baillie is clearly interested in the same topic, and has proposed the following, flushing-out amendment to Nicola's motion, adding...

“... and is otherwise minded, subject to consideration by the appropriate committees, to oppose the forthcoming legislative consent motion pertaining to the Welfare Reform Bill.”

Baillie's amendment certainly puts the Scottish Government on the spot, and it'll be interesting how the SNP representatives vote on it. The fatal moment is not now, however. Like the Scotland Bill, the Welfare Reform issues fall to be considered by a committee of the Parliament, before a final decision is taken. The Bill itself is a dizzying mix of devolved and reserved matters. What if, as Baillie commends, Holyrood said - no thanks chums, we're not giving our consent? In strict law, Westminster is the sovereign parliament, able to exercise its will however it wishes, untrammelled and unfettered. In theory, the Tory-lead government could just inflict the whole scheme on us, consent or no consent, powers devolved or reserved. However, as many of my readers enthusiastically remind me - and here I very much agree with them - often, politics trumps law.  The Burd rightly talks about the potential for a constitutional crisis; not a crisis in the constitution per se, which is tolerably clear, but a political scandal with constitutional ramifications: the dull thump of political discord, conflicting mandates, and differences of opinion.  Although a subset of blimpish bloviators on the Tory benches - the priapic devotees of Westminster sovereignty - might conceivably call for such a stuffing if Holyrood rejected their Bill, the political trickiness of the thing is obvious. Perhaps most significantly, if such cavalier sensibilities prevailed, the commitments of the Sewell Convention - that Westminster won't pass Bills that provisions on devolved matters without first obtaining the consent of the Scottish Parliament - would be revealed as watery, insubstantial. "Standing up for Scotland" is a familiar Nationalist refrain. Nicola Sturgeon's assessment of Duncan Smith's reforms is hardly sympathetic, but is bedevilled by a certain gingerly-does-it passivity. The question to be asked of the SNP majority is, will they do more than oppose in word and concede in deed?

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.