Current Petitions
We now turn to consideration of current petitions. We are starting to get responses to some of them, which are in the associated papers that have been issued.
Petition PE46, if you remember, was from Mr Alexander Stobie, about fireworks. It was referred to Dr Kim Howells, the UK Government minister responsible for consumer issues, who has now responded to the petitioner. Members have a copy of that letter, thanking Mr Stobie for his petition. Are there any questions on that?
The letter seems to address the concerns that were raised in the petition. A fact sheet on the issues of concern to the petitioner has been drawn up. It deals with the issues most commonly raised—including Mr Stobie's suggestion that fireworks should be restricted to organised displays—and explains the Government's position on those issues. Can we regard this petition as closed, given that a response has been received from the UK minister?
Members indicated agreement.
The next response—to petition PE83, from Concern for Justice—is more complicated. We agreed to seek legal advice on the issues raised in the petition. We have now received that advice, which is summarised in the briefing paper that was handed out to members. For the record, I shall read out the important point:
"The committee originally considered this petition at its meeting on 15 February, when it agreed that legal advice should be sought on the issues which it raises. This advice has now been received.
Legal team colleagues have advised that the principle which appears to be referred to in the petition is the principle of absolute privilege. This is the protection from the law of defamation given to communications made in certain circumstances. Where a statement is protected by absolute privilege it is protected from actions of defamation and other verbal injury. Among the categories of statements which are protected by absolute privilege are those made by a judge when he or she is acting judicially.
It is statements made by a judge acting judicially which are protected by absolute privilege and not any statements made by a judge. If in a particular statement a judge crossed the boundary of what might be said to be acting judicially, his or her statement would not be protected by absolute privilege.
As far as action which might be taken by an individual who considers himself to have been defamed by a statement of a judge, it is suggested that such a person could take legal advice as to whether any action can be taken in respect of the statement in question or whether it is protected by absolute privilege. In addition, we understand that a member of the public wishing to make a complaint about a sheriff should take it up with the Sheriff Principal or with the Scottish Executive Justice Department.
Certain Members raised concerns at the meeting on 15 February that this petition was an attempt by those involved in the Donald Macleod case to raise the profile of the case and obtain publicity. However, it is suggested that it is not appropriate for Members to make such assumptions and it is recommended that this petition should be treated no differently to any other.
If the PPC decides that this petition should be passed to the Justice and Home Affairs Committee, it could be suggested to that Committee that it should not examine the particular facts and circumstances surrounding the statements made by the sheriff in Professor Macleod's case. It could be suggested that the JHA Committee might examine the more general issue identified by the petitioners. It is for the JHA Committee to decide whether to examine this matter at all—the Committee would be free to decide not to examine this matter at all (rule 6.2.1).
It is therefore recommended that the petition should be passed to the Justice and Home Affairs Committee to consider what further action would be appropriate."
The petition should be sent to the Justice and Home Affairs Committee. As you said, convener, legal team colleagues have advised that the petition appears to refer to the protection from the law of defamation given to communications made in certain circumstances. That is the same as the protection that is extended to members of the House of Commons, who can say what they like about people when subject to parliamentary privilege. I was not the person who mentioned Donald Macleod. The point that I was trying to make was that anyone should be able to submit a petition on this subject, as any of us could be affected. The phrase "acting judicially" is just legal jargon.
No.
It is not legal jargon to you, but it is to me—I am not a lawyer. We may explain that if a judge is acting judicially such behaviour is okay and that if he is not it is not okay, but a lay person would need to find out whether the judge was acting properly and whether they could get legal aid to take forward a case involving character assassination. It is very difficult to get legal aid in such circumstances. With the greatest respect to Christine Grahame, lawyers and the law sometimes seem to think that they are above the law that applies to ordinary people. I feel very strongly about this. I would not like to think that my name or anybody's else's could be bandied about in the name of the law without my having any recourse.
I agree, but the petition referred to statements made by the judge during a trial. That is why we have taken legal advice about absolute privilege as it relates to judges and courts. The absolute privilege that applies to members of the House of Commons allows them to say anything. That is different from the protection that is afforded to judges.
I have a comment on the action that is suggested. I do not agree with the statement
"it is suggested that it is not appropriate for Members to make such assumptions".
What was being made was more an observation; Pauline McNeill made it, not I, and she was quite right to raise the issue. We cannot go into the specific details of a case, but we can extract from it a principle that needs to be examined. We did that in a previous case on sequestrations. The public have difficulty finding out what they can do in law, and there is a problem with availability of information. However, if a sheriff behaves in an unsheriffly way, people can go to the sheriff principal about that, as he is in overall control of the sheriffs within the sheriffdom. Similarly, if a Court of Session judge behaves in an unsuitable manner, people can contact the senior Court of Session judge, whose name escapes me at the moment. If a comment that is made about an individual is made not judicially, but in a gossipy way, people can insist on a response and follow up that response if they are not happy with it.
You challenged the statement that
"it is not appropriate for Members to make such assumptions".
However, this is legal advice that we have been given by the legal team.
I do not agree with it.
We are not under any obligation to accept it.
I do not agree with the legal team—lawyers are there to disagree with one another.
Ultimately, it is for the committee to decide what should happen to petitions.
Do you agree with the advice?
No, I do not.
Thank you.
Christine Grahame talked about sheriffdom, justices, ministers and so, which is great lawyer-speak. That is fine for lawyers, who know that their name is being taken in vain if the judge is speaking in a gossipy way. However, it is not right that every time people's names are mentioned in court they should have to write to somebody to ask how a comment was made. That is why the petition should be referred to the Justice and Home Affairs Committee—so that the issue can be clarified.
Is it agreed that the petition should be referred to the Justice and Home Affairs Committee?
Members indicated agreement.
We also have a response to Mr Frank Harvey's petition about door-to-door salesmen. It related to energy contracts, and members will recall that we referred it to Scottish Power. The company has now replied to Mr Harvey—its letter is to be found under F in the additional papers that have been issued to all members. I think that it deals with the concerns that Mr Harvey raised in his petition. Now that Scottish Power's reply has been copied to members of this committee, it is suggested that the petition now be closed. Is that agreed?
Members indicated agreement.