Questions asked of Alex Salmond lawyer Peter Watson of Levy & McRae over Leveson role
A key member of the team advising Alex Salmond and the Scottish Government on new press laws north of the border is the same lawyer who acted for the first minister in a Press Complaints Commission referral against the Mail on Sunday.
As a result Scottish media sources have expressed concern that this could be perceived as a conflict of interest by some.
The issue has emerged as the Scottish Government considers the Conservative Party's plan to recognise any new press regulator via a Royal Charter which was published last week.
The Scottish Government told The Drum: "The Scottish Government set up an expert group in December to consider how the findings and recommendations of the Leveson Report could be applied in Scotland. The group, which will report later this year, may take account of this proposed draft charter as part of that work."
The setting up of this expert group was closely associated with Scotland's first minister Alex Salmond, who is thought to want tighter statutory controls of the press than the UK Government. However, industry insiders have pointed out that the expert group, which is chaired by former solicitor general Lord McCluskey, includes Peter Watson, the senior partner of law firm Levy & McRae.
They say this raises potential conflicts on a number of different levels which extend beyond Leveson, including:
* The fact that Peter Watson represented the first minister, Alex Salmond, in a Press Complaints Commission referral against the Mail on Sunday in 2010 which was not upheld.
* Peter Watson also acts for former lord advocate Elish Angiolini, who is now an independent adviser on the Scottish Government's ministerial code. She has been invited to investigate Salmond's conduct in the past. But this development means they are taking advice, in one form or another, from the same lawyer.
The fact that Watson was personally involved in the PCC case was not part of the public record. It was only confirmed last week when a spokesman for the Mail on Sunday told The Drum: “I can confirm that Peter Watson was the solicitor who dealt personally with Salmond’s embarrassing PCC complaint.”
Said Alistair Bonnington, former head of legal at BBC Scotland and an author of ‘Scots Law for Journalists’: “There is in my view bound to be a perception that Peter Watson’s participation on this ‘Scottish Leveson Implementation Committee is questionable.
“Whether it is in fact a ‘conflict of interest’ is a matter for the Law Society of Scotland and perhaps the Scottish Legal Complaints Committee.
“The test our courts apply to this kind of situation is to ask whether the general public would take the view that the decision-making process is being carried out openly and impartially. I don’t think that the public would take that view – given the number of conflicting interests represented by Levy & McRae.”
In a Freedom of Information request The Drum sought to establish whether Peter Watson had also personally offered the first minister advice when he was under investigation by Angiolini, or whether he or his firm were advising the Scottish Government on any other matters. But citing various exclusions under the terms of the act, the Government declined to answer.
Responding to the conflict of interest allegations, a spokesman for the Scottish Government said: "It is not for us to comment on others who may or may not interact with Levy & McRae, but in any event it is for a solicitor rather than a prospective client to consider issues such as possible or perceived conflicts of interests in deciding whether or not to accept work."
Law Society of Scotland guidelines on conflict of interest do make it clear that the issue is one for the solicitor as opposed to the client. However, they make a distinction between private and better informed commercial clients and include in their guidance: "Where the potential for conflict is significant you (the lawyer) must not act for both parties without the full knowledge and express consent of the clients."
Watson has faced similar questions before. As well as having a thriving criminal law practice, the firm also at one stage represented those who investigate alleged criminals, in the form of Strathclyde Police Federation, and the individual ultimately responsible for their prosecution, the lord advocate, at the same time.
The issues this poses was illustrated in the case of Steven Purcell, who appointed Levy & McRae and found himself under police investigation after quitting as the leader of Glasgow City Council in the wake of a drugs scandal.
At one point Strathclyde Police – whose officers are Levy & McRae clients – was seeking advice from the Crown Office – whose chief was a Levy & McRae client – about how a Levy & McRae client should be dealt with.
Ultimately no charges were brought in the Purcell case. Although there was no suggestion of wrongdoing, some in the legal profession expressed concern that this could be seen as a conflict of interest.
The issue also highlighted other concerns. Levy & McRae offers most of Scotland’s newspapers legal advice on what can and cannot be published.
At one stage Newsquest, publisher of The Herald and Sunday Herald, found itself in the unusual position of being asked for a right of reply by Levy & McRae over an article that had been passed for publication by a Levy & McRae representative which concerned Steven Purcell, a Levy & McRae client.
According to Bonnington this is a state of affairs that would be unacceptable in other jurisdictions: “In America, Canada and other jurisdictions practising lawyers would not act for both the media and those who make claims against the media. That would be seen as professionally improper.”
As a result a perceived conflict of interest The Herald reviewed its relationship with the firm, but reappointed it when new safeguards were put in place. It demonstrates that the firm commands considerable loyalty amongst clients.
A credo once published on the Levy & McRae website gives an insight into why this is perhaps the case:
"With a low profile we aim to keep clients off the front page and take swift and effective action where required. Being networked at the highest levels and having access to major decision makers is key to our success."
The firm did not exaggerate these links. As well as representing the first minister and his independent ministerial code adviser, Levy & McRae can also lay claim to the fact that Kenny MacAskill, the Scottish justice minister, is one of its former lawyers.
Peter Watson had not responded to The Drum’s request for comment at the time of writing.