Defamation Bill
Item 3 is consideration of a legislative consent motion for the Defamation Bill, which is UK Parliament legislation. I thank the cabinet secretary, Colin McKay and Felicity Cullen for staying to give evidence on the LCM and invite the cabinet secretary to make a short opening statement.
I thank the committee for the opportunity to discuss a draft legislative consent motion in relation to the UK Defamation Bill, which was introduced in the House of Commons on 10 May 2012 to reform aspects of the law of defamation in England and Wales and followed a consultation that was carried out, again in England and Wales only. As the main reforms are designed to address widespread concern about defamation law in England and Wales, they involve amending Great Britain-wide legislation—the Defamation Acts of 1952 and 1996—for England and Wales only.
In Scotland, the law of defamation falls within the competence of the Scottish Parliament. It has not attracted the same criticism as the law south of the border and the Scottish Government has no plans for wholesale reform in this area. That said, the UK bill’s reforms include provisions for qualified privilege for a limited range of academic activity, one of which was included in the bill only at introduction following a recommendation by the UK Parliament Joint Committee on the Draft Defamation Bill in its report.
The bill seeks to extend the defence of qualified privilege in relation to a defamation action to fair and accurate reports of what is said at a scientific or academic conference, and to create a new defence of qualified privilege for peer-reviewed articles in scientific or academic journals. Given that much academic research is done collaboratively across the border, and given that conferences are held throughout the UK with delegates attending from across the UK, the Scottish Government takes the view that it is desirable to extend to Scotland the provisions on qualified privilege. After all, parity of protection in this sphere will facilitate robust and constructive scientific and academic exchange.
The extension of the provisions to Scotland is the subject of the legislative consent motion. Although the Scottish Parliament is able to legislate for this devolved matter, there will be no suitable opportunity for it to do so in the near future. The Minister for Community Safety and Legal Affairs, Roseanna Cunningham, wrote to Lord McNally, the UK minister who is responsible for the bill, and he has agreed in principle to extension of the provisions. I therefore ask the committee to support the draft legislative consent motion that has been laid before it and am happy to answer questions.
First of all, I acknowledge that it was David McLetchie who felt that we should examine the matter further. He would have been present this morning, but for other very pressing matters.
Recent press reports seem to call into question some of the points that you have made in your opening remarks. In particular, the justification that Scots law in this area is sufficiently robust has been challenged by Alistair Bonnington, who said that, having
“practised defamation law in Scotland for over 30 years and attended many conferences all over the world where expert media lawyers discussed the problems experienced when domestic law curtailed free speech”
he had found that the
“Scots law of defamation was one of the worst offenders found anywhere”
and feels that it is time for reform. His view seems to be somewhat in sympathy with the view of Professor Elspeth Reid of the University of Edinburgh law school. She said in a recent article that, although matters are not as urgent in Scotland as might be the case in England,
“the time has come for a fundamental review of the interests that defamation should seek to protect”.
As a standard grade examination would say, “Discuss”. What is your view, minister?
Alistair Bonnington has challenged many aspects of Scots law, on not all of which I share his opinions.
The law of defamation in Scotland has been relatively robust. We do not have the same issues that are arising south of the border with libel tourism and an array of other problems. However, we should never rest on our laurels.
The primary organisation to pursue the issue should be the Scottish Law Commission. I meet the commission regularly, but it has not raised defamation as one of the matters that it currently wishes to consider, although perhaps it will come to that in due course. If there is a desire to consider the law of defamation, it might be appropriate to discuss with the commission whether it thinks that the issue is urgent or should be addressed in due course, and whether it is prepared to consider a matter for which it would, ultimately, be responsible.
I suggest engagement with the commission to see whether it shares the concerns of Professor Reid and Alistair Bonnington, and perhaps to see whether defamation—although it is not on the commission’s current work programme—might be factored in by Lady Clark for the commission to examine in the future.
When you say that the commission should be engaged in discussion, are you suggesting that the committee or you should do that?
Either of us could do that. I can go back to the commission and say that the committee has raised the issue with me, or the committee could write to say that the issue has been raised and to ask whether the commission has a view. I am in your hands with regard to what you would prefer.
It might, however, be better for the committee to do that so that the commission hears directly from you, rather than getting the information second hand from me. I have always found the commission to be perfectly happy to engage. It is not part of Government as such—indeed, when I was in opposition I met it just to be apprised of matters. I think that the commission will be perfectly happy to engage with the committee. There may be some merit in asking not only about the question of defamation, but about what other plans the commission is considering.
Okay. I am grateful for that suggestion.
My new phrase today is “libel tourism”, which is very contemporary.
Why do we need consistency for scientific and academic material, but not for other published materials?
I do not think that there is a problem in that area. The reason why we need consistency for scientific and academic material is that the subject is being addressed in the UK bill. We could introduce primary legislation here in Scotland, but we can access the UK bill’s provisions. Given that much of what is dealt with in scientific and academic journals is pan-UK, we as a Government recognise that the bill is sensible and that there is a gap that needs to be addressed.
The other aspects of the bill relate to the English law of defamation, which is not the same as the Scots law of defamation, which we think is fine. The bill responds to the needs of the academic and scientific communities so that there is peer review and free and frank exchange at conferences, but some protection is provided so that people will not be unjustly defamed or libelled.
Just for clarity—contributions from Alistair Bonnington and Professor Reid notwithstanding—has the Scottish Government received any representations from the Law Society of Scotland or the Faculty of Advocates on the matter?
No. The major on-going discussions have related to defamation of the deceased, which was addressed by the Public Petitions Committee with engagement from my ministerial colleagues. Matters have been examined, but they are to some extent being held in abeyance, pending the outcome of the Leveson inquiry, given that defamation of the deceased has in many instances related to newspapers. It has been decided that we will await the outcome of the inquiry before we decide what to do thereafter. The matter has not been raised with me by the Faculty of Advocates or by the Law Society of Scotland.
I read Professor Reid’s views and have some sympathy with some of her points. However, I would not put myself in the same bracket with regard to Alistair Bonnington’s views, but there we go.
Some of us might share that view. If there are no further questions, I must declare an interest—I have a son who engages in scientific and academic exchanges and research, and it is a dog-eat dog world. I have decided that it is far tougher than being a politician.
That concludes the evidence session, and I thank the cabinet secretary.