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Justice Committee 26 January 2021

26 Jan 2021 · S5 · Justice Committee

Item of business

Defamation and Malicious Publication (Scotland) Bill: Stage 2

Wightman, Andy Ind Lothian Watch on SPTV

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 have not concluded anything as a consequence of those discussions. I am glad that the minister acknowledges that we need a threshold test, and I think that the committee is agreed that we need one. A threshold test is useful to counter the chilling effect. The question is whether that test should be whether the harm is “serious”. I have two points to make. As the minister said, there was a stark division in the evidence that the committee received on the topic. The Scottish Law Commission was clear that there should be a threshold test, but it did not spend a great deal of time considering whether the test should be whether the harm is “serious”. It took that as a default position, because that was the position in England. The minister raised the issue of whether the Scots law of defamation should be different from the law in England and Wales when it comes to the actionability test. The argument that we should be entirely consistent with what happens in England and Wales is never made by ministers in many other areas. The Scots law of defamation should develop and evolve on the basis of its own needs. One of those needs is that people in Scotland want access to justice, which they should have. The reasons for the introduction of a serious harm threshold in England are absent in Scotland. I mentioned two of them, and the committee heard about a few more in the evidence that it received. I come back to my principal concern, which is that section 1(4)(a) creates a statutory wrong whereby “a statement about a person is defamatory if it causes harm to the person’s reputation”. What is being said is that if that wrong is committed against someone, they have no redress—they cannot bring any action whatsoever—unless they can demonstrate, possibly at some cost, that that harm is serious. I do not think that that is good law—I think that there is a stark internal contradiction in the bill—and I do not think that it is fair to the people of Scotland, many of whom suffer harm as a result of untrue malicious statements that are made against them. I think that they are entitled to some redress. Therefore, my purpose in amendments 30 and 31 is to allow evidence of actual harm being caused—in other words, to deal with the problem that people allege exists, which is that lots of frivolous threats are made to people when no harm at all has been caused. The point is that, at the stage at which people write legal letters to one another, they can make any allegation they like about harm. Therefore, there is a good argument for a threshold test, but in my view a test involving “actual harm” is much more appropriate. If the argument continues beyond stage 2 because my amendments on “actual” are dismissed, I will come back suggesting the word “significant”, perhaps. We need to consider carefully both the justification and the impact of using the word “serious”. There is little justification for its use in Scotland, and it sets up an internal contradiction by creating a statutory wrong and then saying to people, “Your Parliament has created this wrong. You have suffered it, but there is nothing you can do about it.”

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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 ...

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Justice Committee 26 January 2021

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