Early thoughts on Leveson 4 of 4 – Devolution and Jurisdiction

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.

Interest in the implications of the Leveson recommendations in Scotland in particular was highlighted by statements from the Scottish National Party this week reminding all and sundry that the Scottish Parliament might take a different approach, particularly if the response of the UK Government was too timid or too intrusive.  I (and I’m sure others) therefore made a beeline for the discussion of the report and devolution (p 49).  It is clear that there is an awareness that while some of the issues are currently within the exclusive competence of the UK government in respect of all territories, other issues are the subject either of specific devolution or (in the case of Scotland) not being reserved to the UK.  (Compare for example media pluralism with the law of privacy).  It’s noted that it would fall to the relevant administrations to implement the report, but that it should be possible for that to happen.  “I have not been made aware of any technical reason why my recommendations should not be able to be accommodated, with appropriate adjustment, in all parts of the UK, but I have not sought detailed advice on the matter.

Possible it may be, but I think that there are three issues to watch for here.

1. Policy divergence.  This is the issue hinted at by the Scottish statement of this week.  Let’s imagine that the UK government declines to implement a particular recommendation, but there is support for it in Scotland, and it’s in an area where there is legislative competence for Holyrood to take action.  Will it do so?  Would other administrations follow?

2. The role of Ofcom.  This is not an issue dealt with in the report, but is worth thinking about.  The vast majority of Ofcom’s work falls within clearly reserved / non-devolved areas.  Telecoms, television, etc.  Ofcom is conscious of issues in ‘the nations’ including in its committee structure, its work on Welsh, Gaelic and Irish, etc.  But if Ofcom were to be responsible for oversight of the press regulatory system, that would open up an interesting type of relationship between Ofcom and the administrations.  This could be ‘solved’ by ensuring no government or legislative role in the process – which some favour and the report seems open to – but would the legislative change be done through UK legislation (applying the Sewel convention for the consent of devolved legislatures to UK legislation in devolved fields) or through the separate legislatures conferring power on Ofcom?  Would Scotland want to beef up its oversight (policy, administration and finance) of Ofcom if Ofcom has oversight on a matter in which the Scottish Parliament has legislative competence?

3. Independence.  Because by the time all of this gets up and running, it might have happened.  The Scottish Government has already taken the approach of being gently critical of Ofcom issuing long-term licences in other fields given the upcoming referendum….

4. If regulation depends in part on being linked with legal remedies (i.e. relying on subscription to a regulatory body as a defence), many of those defences will relate to devolved areas – note in particular that the matters in the current Defamation Bill is not the subject of active consideration in the (separate) defamation law of Scotland.

5. Data protection is reserved, privacy is (generally speaking) devolved in respect of Scotland and (more tentatively) Northern Ireland.  Ponder the future of the Information Commissioner in the context of devolution, particularly if it is to become an Information Commission.  (Already, the ICO does not deal with FOI for Scotland).

Of course, the bit of Scottish interest that will get more of the headlines will be the role of the First Minister in relation to Sky (see pp. 1407ff, pp. 1418ff), on which I’m not sure I have anything interesting to say right now.