A local government watchdog dropped its attempt to force a journalist to hand over notes which could have disclosed a confidential source of information after lawyers argued that he was protected by the rights to freedom of speech under Article 10 of the European Convention on Human Rights.
The case arose as officials at the Standards Commission for Scotland, which promotes and enforces Codes of Conduct for councillors and those appointed to devolved public bodies, investigated a complaint by the leader of North Lanarkshire Council that a specific councillor had leaked a copy of a report on the case to Mike McQuaid, deputy editor of the Motherwell Times and Bellshill Speaker newspapers.
The Public Standards Commissioner had sought to make McQuaid hand over his notes in relation to a story from a confidential source about a planner on the council having been sacked for corruption.
McQuaid was warned that failing to comply with the request would amount to obstruction of the inquiries and could be a contempt of court which would be dealt with by the Court of Session.
But a panel of the Commission dropped the request after solicitor Campbell Deane, of Glasgow-based law firm Bannatyne Kirkwood France and Co, for McQuaid and the newspapers’ owners Johnston Press, told a hearing that McQuaid was entitled to protect his journalistic sources, and that that right could be overcome only by a pressing social need.
He pointed out that under section 10 of the Contempt of Court Act 1981 no court could require a journalist to disclose a source unless the disclosure was “necessary in the interests of justice or national security or for the prevention of disorder or crime”.
While section 17 (5) of the Ethical Standards in Public Life (Scotland) Act 2000 gave the Commission the right to require a person to attend a hearing and produce documents, section 17 (6) provided that nobody could be compelled to produce documents when they could not be compelled to do so in civil proceedings in the Court of Session.
Deane told the panel hearing that whether the councillor was or was not McQuaid’s source was irrelevant – the issue was the journalist’s right to protect his sources.
But in any event, even asking McQuaid what a source had said ran contrary to the journalist’s right not to disclose a source.
Section 10 of the Contempt of Court Act established qualified circumstances in which someone might be compelled to disclose a source – but Article 10 of the European Convention, and the jurisprudence of the European Court of Human Rights set the bar higher on the issue of protection of journalists’ sources, and required there to be a pressing social need if the presumption in favour of anonymity for a confidential source was to be overturned.
It was not for McQuaid to defend his rights under Article 10 – rather, the Commission bore the burden of demonstrating why those rights should be overridden, which it had failed to do.
The panel rejected the Commission’s claim that no issue about the disclosure of a source arose, because it was seeking notes and documents, rather than the source’s identity.
The fact that obtaining McQuaid’s notes would help decide the complaint against the councillor was not sufficient to establish an overriding requirement in the public interest.
The panel said: “We do not doubt that disclosure of McQuaid’s notebook would be expedient in the context of pursuing the current complaint, but are not persuaded that, in all the circumstances, the high test to be met to justify disclosure of the journalist’s source is satisfied.”
McQuaid would not be compelled to produce his notes in civil proceedings in the Court of Session, and thus could not be compelled to produce his notes for the Commission.