Hansard

Section 2 aims to place on a statutory footing the common-law principle that public authorities cannot raise defamation proceedings. Public authorities have a reputation, but they need to protect it using political means and not defamation law. The public interest is best served by allowing unrestrained comment on the actions of democratically elected bodies. That is the fundamental rationale behind the Derbyshire principle. The committee accepted that it is an important principle that should be codified in the bill, but recommended that the section be redrafted to make clearer the Scottish Government’s intention. The four Government amendments in the group will do that. The Scottish Government has been clear about what it considers to be caught by the Derbyshire principle. The amendments seek to insert an expanded description of what constitutes a public authority. The types of bodies that should be caught by the principle are the various forms of local government and central Government institutions, and include those institutions that they own or control. A court or tribunal is also included. Section 2 will retain, in proposed new subsection (2)(d), the catch-all definition of what constitutes a public authority. Defamation law is very sensitive to the facts of individual cases, and public service delivery has changed significantly over the past two decades and continues to do so. Having that catch-all definition will provide the required flexibility to ensure that all public authorities that should protect their reputation at the ballot box do so. The Scottish Government considers that listing all the specific bodies that are prohibited from raising defamation proceedings would, in the long run, be too restrictive. As I have said, models of public service delivery may change and new bodies will be created, while others will become owned or controlled. To have a list in the bill would make it challenging to keep up to date with all such changes and would not allow the law to develop in a satisfactory way. It might be that some governmental institutions that should be prohibited are not, because they have not been added to the list. I will nonetheless commit to providing in the explanatory notes a number of specific examples of the bodies that the Scottish Government considers to be prohibited. The bill as introduced allows the Scottish ministers to specify persons who are not to be treated as a public authority. The amendment to section 2(6) would allow the Scottish ministers to specify persons who are to be considered a public authority. The power is to be subject to the affirmative procedure, after consultation. That amendment would add flexibility to deal with marginal cases or cases where changes to public service delivery justify a different approach. That is a sensible and proportionate power to take if the narrow list of types of institutions to be prohibited is adopted. Two minor amendments are to be made to sections 2(4) and 2(5). The first reflects that there is now more than one reference in section 2 to ownership and control and the second clarifies that, in addition to an office-holder, employees can raise defamation proceedings in their own name. That latter issue was raised by some stakeholders during stage 1, and the Scottish Government decided that it was best to put the matter beyond doubt. On amendments 33 to 35, John Finnie has said that the Derbyshire principle, which section 2 codifies, should be wider than prohibiting governmental bodies from raising defamation proceedings and that private companies and charities that deliver public services should also be prohibited. The Scottish Government does not agree with that approach. A public authority has the ability to protect its reputation at the ballot box, and a private company can protect its reputation by raising defamation proceedings where its reputation has been unfairly damaged. That right is recognised by our courts and by the European Court of Human Rights. If amendment 33 were agreed to, a private company or charity that delivers public services would no longer be able to protect its reputation. It would not have access to the courts and it would not have the ballot box. How, then, could such a company remedy false and damaging statements that were published about it? It is not right to strip a private company of its right to raise defamation proceedings on the one hand without at the same time providing it with an alternative way to protect its reputation. Amendment 33 does not achieve the necessary balance between protection of reputation and freedom of expression that the bill tries to seek overall. It is hard to understand why two private companies should have different rights based solely on who they sell services to. However, the bill makes a number of important changes that will allow individuals to rightly and fairly criticise the delivery of public services even when they are provided by a private company or a charity. It does that while continuing to allow such companies or charities to protect their reputation where necessary. Amendment 33, in removing subsections (3) and (4), would remove the presumption that bodies that exercise public functions sporadically are not to be considered a public authority. Use of the words “from time to time” is intended to reflect the fact that such entities may operate on a contractual basis but does not preclude the possibility of their being found to be public authorities. Instead, that finding may not be made solely on the basis of their carrying out functions of a public nature from time to time. With that presumption removed, anyone who contracted with a public authority—any large or small company or charity—would risk being considered a public authority. Given the importance of reputation to such businesses or other operations, would they continue to contract to deliver those services? Would they price such risk into their contracts with local or central Government? If so, that might have a financial impact on local authorities. 10:30 Even if amendment 33 is agreed to, it is possible that the courts may interpret section 2 narrowly and exclude those bodies anyway. That would be in line with the decisions of the courts to date in relation to what constitutes a public authority under the Human Rights Act 1998. Also, the section is supposed to codify the Derbyshire principle, which is primarily concerned with governmental bodies. As we are all aware, that would mean that it is unlikely that private companies would be included, because they are not governmental bodies, even if they occasionally exercise public functions. Finally, the drafting of amendments 34 and 35 creates an anomaly. As amended, the regulation-making power would leave it open to the Scottish ministers to exclude governmental bodies and companies owned by Government but not private companies owned by the Government. That seems to create entirely the wrong impression, given the underlying purpose of the provision. I move amendment 1 and encourage members to support my other amendments in the group.