Justice 2 Committee,

Meeting date: Wednesday, May 12, 2004

Official Report 190KB pdf

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Petition

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Public Bodies (Complainers' Rights) (PE578)

Petition PE578, which is from Mr Donald MacKinnon, concerns the position of young and vulnerable people reporting abuse, and whether the right of absolute privilege that is available to those who complain about the conduct of a range of public bodies should be extended to such young people. When the petition came before us previously, we agreed to seek information from the Executive on the number of defamation actions that have been raised against young and vulnerable people who have reported abuse.

We have a response from Hugh Henry dated 23 April in which he states that he is not aware of any similar cases and that he considers the case of McKellar v MacKinnon to be highly unusual. Apart from saying that the Executive is currently considering

"how best to address the possibility that children and young people may be deterred from making genuine complaints because of the prospect of a subsequent defamation action",

there is no specific further comment.

The committee must decide what should be done with the petition. Members are invited to decide whether a change in the law appears necessary or whether a programme of guidance and information is sufficient. It might be helpful to ascertain views from members on that before we come to any further decision.

I am undecided about whether we need to change the law—I am not completely convinced that it will not be necessary to make changes. My preference is for the committee not to close the petition completely, but to await the Scottish Executive's deliberations on the matter and to ask the Executive to keep the committee advised of progress. We can consider in future whether the course of action that the Executive decides to take addresses the petitioner's concerns. We should not decide now whether we think legislation is necessary, given that the Executive has stated in the letter that it is considering the matter.

If the committee is minded to follow the course that you propose, would that imply that we adjourn our consideration of the petition, perhaps for six months, so that it does not die? We could then revert to it.

Yes.

Are there any other suggestions?

I support Karen Whitefield's suggestion. As there is something in the petition, we should keep it open and allow the Executive to consider the matter. I hope that we will reach something akin to a satisfactory position for the petitioner, the Executive and the committee.

I agree. I do not want the petition to disappear because I have a lot of sympathy with it. I am no lawyer—although there are lawyers present who might be able to comment—but I am sure that the matter will create a considerable amount of discussion among the legal fraternity in the Scottish Executive. I suspect that the matter is complicated and therefore we should give the Executive time to consider it. We should not dismiss the petition now, but consider it again once the Executive has had a full opportunity to take on board what might be the serious or difficult legal consequences.

Karen Whitefield has made a helpful suggestion. Members agree that we should keep the petition on our agenda. For the benefit of Mr MacKinnon—I do not want him to be anxious about what is happening and when—we should decide on a suitable period of continuation. It is now May—the recess is coming up and I do not imagine that the Scottish Executive will respond in detail in the near future. Would a six-month continuation period be suitable?

Members indicated agreement.

Will we let the Scottish Executive know of that decision?

We will continue the petition for six months and we will write to the petitioner to explain that the petition has not died, but remains a viable consideration. I see no reason why we should not copy to Mr MacKinnon the letter that we received from the Scottish Executive—that information should rightfully be made available to him. We shall also intimate our decision to the Scottish Executive and request to be kept informed of proposed developments at the Scottish Executive end.

I am informed that the Lord Advocate, who is to attend for the next agenda item, has not quite made it yet. As there are no other agenda items that we can take in advance—the others will be taken in private—all that I can do is suspend the meeting briefly until the Lord Advocate appears.

Meeting suspended.

On resuming—