Hansard

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.