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  5. Minister dismisses views of media law speciaists on legality of new crime reporting restrictions

A Scottish Government minister has dismissed the need for media law experts to be consulted on the legality new laws to restrict reporting crimes and court cases involving under 18s.

Speaking to the Education, Children and Young People Committee last Wednesday (February 7) Children and Young people minister Natalie Don said the controversial Children (Care and Justice) Bill was legally competent, adding “It is the role of the Lord Advocate to satisfy herself on legality, not media law experts.”

Under the Bill, which has now completed its committee stage in the Scottish Parliament, journalists reporting criminal incidents or court cases could face up to two years’ imprisonment if under-18 victims, witnesses or alleged perpetrators are identifiable unless permission is in place.

The Scottish Government’s explanatory notes make it clear the legislation “makes it an offence to publish information that is likely to lead to the identification of a person suspected of committing an offence at a time when they were aged under 18.”

But it also makes it an offence to “publish information that is likely to lead to the identification of a person who is aged under 18 at the time of publication as being a victim or witness in relation to a suspected offence.”

During the committee meeting, Conservative MSP Liam Kerr pointed out that concerns had been raised by media law specialists and he feared the new restrictions were “overbroad, unworkable and a significant restriction on media freedoms,” and could be non-compliant with Article 10 of the European Court of Human Rights and so inoperable.

Ms Don replied that she could, “assure the committee categorically that legal advice has been sought on all the bill’s provisions and the amendments in the normal way.”

She added, “We have sought appropriate legal advice and have proceeded on that basis. It is the role of the Lord Advocate to satisfy herself on legality, not media law experts.”

Newsbrands Scotland director John McLellan commented; “We know that no media organisations or media law specialists were included in the Scottish Government’s original list of consultees for the legislation, and it is very worrying that the minister seems not to regard the views of experts in this area of the law as important.

“It also seems quite extraordinary that the Scottish Government would prepare any legislation without speaking to those most directly affected, and as far as tightening reporting restrictions are concerned the people most affected are journalists who could find themselves imprisoned for what until now was the lawful reporting of the news in the public interest.”

The bill is expected to receive its third reading by the end of February, and media lawyers are looking at producing amendments to the legislation.

“There are very real fears that the legislation as originally drafted is not compliant with the European Convention on Human Rights because of an unacceptable restriction on the right to freedom of expression,” said John McLellan. “And this doesn’t just apply to journalists, but to the individuals involved and their families and friends.

“In fairness, the minister has recognised the problem of restricting individual freedom to self-publish, but as far as I can see not the impact on journalists,

“A timetable of the end of February to pass this bill into law seems extraordinarily fast for something so complex and with so many previously unforeseen consequences.”

A round-table discussion linked to the bill will be chaired by Justice and Home Affairs Secretary Angela Constance, but despite details claiming media organisations would be represented, it turned out only the National Union of Journalists has been invited to participate. Only after representations were made was Newsbrands Scotland able to attend.

John McLellan added, “As much as I respect the NUJ, it is a trade union, not a news publisher, but I’m glad publushers will now be represented.”

The full bill, incorporating Stage 2 amendments, can be found here