Committee
Justice Committee 26 January 2021
26 Jan 2021 · S5 · Justice Committee
Item of business
Defamation and Malicious Publication (Scotland) Bill: Stage 2
In policy terms, all these amendments relate to section 1. In the committee’s stage 1 report, members recommended “that the Scottish Government reviews the evidence we have heard and sets out a clear statement on why the serious harm test is still required.” I am not persuaded that the minister has done that in her response to the stage 1 report. My amendments seek to do three separate things in policy terms. Amendment 29 would remove the serious harm test in its entirety, and any provisions for any threshold test at all. Amendments 30, 31 and 36 would take a different approach: they would retain a threshold test but reduce the threshold from “serious” to “actual” harm. Amendment 32 stands on its own, providing what I consider to be a more appropriate qualifier to the financial test. As the committee is well aware, the serious harm test was introduced to the Defamation Act 2013 in England, for reasons that are well known, namely the volume of litigation and the vexatious nature of some of it, and because there was a muddle in English law as a consequence of the distinct wrongs of slander and libel—a muddle that we do not have in Scotland, as I think Professor John Blackie pointed out in evidence. Other arguments were presented to the committee by people such as Campbell Deane and Duncan Hamilton. The Scottish Law Commission concluded that a threshold was “desirable”, but it spent very little time considering at what height the bar should be set. Since the introduction of the bill, I, as a legislator, have come to question more and more the justification for a serious harm threshold. My concern is exacerbated by the fact that the bill, in section 1(4), introduces a statutory definition of defamation. We are therefore in the curious—and, I would say, bizarre—position of proposing to enshrine in law a statutory civil wrong, while saying, in the very same section of the bill, that there is nothing that anyone who suffers that wrong can do about it, unless they can demonstrate that the harm is serious. Who are we, as the legislature, to tell those whom we represent that they cannot pursue justice for a statutory civil wrong that we have created? Amendment 29 deals with the matter bluntly by removing the serious harm test altogether, thereby leaving section 1 as simply defining defamation. Removing the serious harm test would also remove any threshold for actionability. As members know, in an action before a court, harm is currently presumed. It has to be proven at proof, but there is no necessity to demonstrate any such harm in order for proceedings to go straight to a full proof, with all the attendant costs. An argument for a threshold test can be justified as a means of providing full reassurance to writers, publishers and broadcasters that they will be sued for defamation only if some evidence of actual harm can be demonstrated to a court in a pre-proof procedure. If it cannot, there will be no action. As an alternative, therefore, to removing the serious harm threshold in its entirety, I propose in amendments 30 and 31 to replace the word “serious” with “actual”. That would necessitate the pursuer evidencing that there had been, or was likely to be, actual harm caused to them before any case could proceed. It is an alternative to getting rid of the test altogether, which is a solution that I would be more comfortable with and which I would encourage the committee to support. I propose the replacement of “serious” with “actual” for four reasons. First, I do not think that there is any justification for a serious harm test. Secondly, the Supreme Court ruling in Lachaux v Independent Print Ltd means that the English threshold test must depend on the facts and not just the inherent meaning of words. Replacing “serious” with “actual” is therefore consistent with the decision in Lachaux. Thirdly, as I have already argued, the serious harm threshold conflicts with the statutory wrong that is created in section 1(4), and it may—it almost certainly will, in fact—exclude perfectly valid complaints. Parliament should not deny citizens recourse to the courts where they have suffered harm that falls short of serious harm. Fourthly, and more fundamentally, there is a good case for a procedure whereby the current presumption of harm is assessed according to whether people have actually been harmed. Amendment 32 would change the test of “serious” financial loss in section 1(3) to a test of “significant” loss. The reason for that is that the term “serious” does not sit well, in my view, as an appropriate qualifier for financial loss. What is serious for a small company may not be serious for a large one. The term “significant” is more proportionate and reflects more precisely the relationship between the loss and the size of the organisation’s financial strength. I have one more observation to make on section 1(3), which relates to “non-natural” persons that have as their “primary purpose trading for profit”. I invite the minister to reflect further on whether that definition is intended to capture community interest companies, which may or may not have profit as their primary purpose. I ask because, in the case in which I was involved as a defendant, the pursuer was a community interest company and, under the common law, had to show patrimonial loss. If some community interest companies do not trade primarily for profit—they still trade for profit, but not primarily—it looks to me as if they will be excluded from the scope of any action for defamation, and I am not sure that that was the intention. Finally, amendment 36 would amend section 5, which is, as the explanatory notes highlight, designed to replace the phrase “materially injure” in the Defamation Act 1952 with “serious” to ensure consistency with section 1(2)(b) of the bill. Thus, if amendments 31 and 32 are agreed to, the word “serious” should be deleted from section 5. I do not think that it would add anything to insert the word “actual” there, as the threshold test will already have been met by the time defences are being argued at proof, and in order to be consistent with the statutory definition in section 1(3). These provisions require further scrutiny, stress testing and consideration, and my amendments contribute to that endeavour. I move amendment 29.
In the same item of business
The Convener (Adam Tomkins)
Con
Good morning, everyone, and welcome to the third meeting of the Justice Committee in 2021. We have received no apologies this morning. We are joined by Andy ...
The Convener
Con
Amendment 29, in the name of Andy Wightman, is grouped with amendments 30 to 32 and 36. If amendment 29 is agreed to, I cannot call amendments 30 to 32, due ...
Andy Wightman (Lothian) (Ind)
Ind
In policy terms, all these amendments relate to section 1. In the committee’s stage 1 report, members recommended “that the Scottish Government reviews the...
Annabelle Ewing (Cowdenbeath) (SNP)
SNP
In my contribution to the stage 1 debate on the bill, I asked the minister to further reflect on whether the balance struck in the bill between freedom of ex...
John Finnie (Highlands and Islands) (Green)
Green
I will make a brief contribution in support of Mr Wightman’s amendments. I remind members of the phrase “access to justice”, which is frequently referred to...
The Minister for Community Safety (Ash Denham)
SNP
Good morning. The threshold test of serious harm is an important reform of the current Scots law of defamation, and it has been the cause of sharply divided...
The Convener
Con
I invite Andy Wightman to respond and to wind up on group 1.
Andy Wightman
Ind
First, I want to follow up on what Annabelle Ewing said. I acknowledge that I had a very productive meeting with the minister on the topic at hand, but we ha...
The Convener
Con
I take it that you are pressing amendment 29, Mr Wightman.
Andy Wightman
Ind
I will not press amendment 29. I doubt that there is any appetite for it and the minister mentioned that it unhelpfully deletes one word. Amendment 29, by a...
The Convener
Con
The question is, that amendment 30 be agreed to. Are we agreed? If members do not agree, they should type N in the chat box. Members are not agreed. There w...
The Convener
Con
The result of the division is: For 3, Against 6, Abstentions 0. Amendment 30 disagreed to. Amendment 31 not moved. Amendment 32 moved—Andy Wightman.
The Convener
Con
The question is, that amendment 32 be agreed to. Are we agreed? Members: No.
The Convener
Con
There will be a division. For Finnie, John (Highlands and Islands) (Green) Grant, Rhoda (Highlands and Islands) (Lab) McArthur, Liam (Orkney Islands) (LD...
The Convener
Con
The result of the division is: For 3, Against 6, Abstentions 0. Amendment 32 disagreed to. Section 1 agreed to. Section 2—Prohibition on public authorit...
The Convener
Con
Amendment 1, in the name of the minister, is grouped with amendments 33, 2, 3, 34, 4 and 35. If amendment 33 is agreed to, I cannot call amendment 2 due to p...
Ash Denham
SNP
Section 2 aims to place on a statutory footing the common-law principle that public authorities cannot raise defamation proceedings. Public authorities have ...
The Convener
Con
I invite John Finnie to speak to amendment 33 and the other amendments in the group.
John Finnie
Green
Thank you, convener. Inaudible. What we do know is that the rationale for the decision behind the Derbyshire principle was that public bodies should be “ope...
Rhoda Grant (Highlands and Islands) (Lab)
Lab
I speak in support of John Finnie’s amendments. If a company or organisation is carrying out a public service, it is important that it is properly scrutinise...
The Convener
Con
Thank you. No other member has indicated that they wish to speak in this group, so I ask the minister to respond and wind up.
Ash Denham
SNP
Most of the comments were about the right to criticise the delivery of public services, which is an important right that the bill already takes seriously. Ou...
The Convener
Con
The question is, that amendment 1 be agreed to. Are we agreed? Members: No.
The Convener
Con
There will be a division. For Ewing, Annabelle (Mid Scotland and Fife) (SNP) Kerr, Liam (North East Scotland) (Con) MacGregor, Fulton (Coatbridge and Chr...
The Convener
Con
The result of the division is: For 7, Against 2, Abstentions 0. Amendment 1 agreed to. Amendment 33 moved—John Finnie.
The Convener
Con
The question is, that amendment 33 be agreed to. Are we agreed? Members: No.
The Convener
Con
There will be a division. For Finnie, John (Highlands and Islands) (Green) Grant, Rhoda (Highlands and Islands) (Lab) Against Ewing, Annabelle (Mid Scot...
The Convener
Con
The result of the division is: For 2, Against 7, Abstentions 0. Amendment 33 disagreed to. Amendment 2 moved—Ash Denham.
The Convener
Con
The question is, that amendment 2 be agreed to. Are we agreed? Members: No.
The Convener
Con
There will be a division. For Ewing, Annabelle (Mid Scotland and Fife) (SNP) Kerr, Liam (North East Scotland) (Con) MacGregor, Fulton (Coatbridge and Chr...