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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

Finnie, John Green Highlands and Islands Watch on SPTV

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 “open to ‘uninhibited public criticism’ and that reputation should be protected by political rather than legal means.” What should public bodies face uninhibited criticism about? It is the delivery of services, performance and the extent to which they effectively serve our citizens. A number of bodies that deliver public services in Scotland have a statutory obligation, which is to serve their shareholders. Is it reasonable that “uninhibited public criticism” should cease just because a function is outsourced? The phrase “from time to time” was touched on by the minister—I will come back to that shortly. The committee heard from a number of people about this issue. Dr Andrew Tickell talked about following the public pound in the delivery of public services—I think that many members would warm to that theme. We heard from Guardian News and Media that “there would be considerable public interest in creating an environment in which people are able to criticize and scrutinise the actions of for profit corporations.” We also heard concerns about the matter that the minister alluded to, which is efforts made to circumvent some of the issues by initiating proceedings in a person’s name. The Minister for Community Safety said: “We need to ensure that we take a flexible approach so that courts can deal with complex and nuanced cases as things develop.”—Official Report, Justice Committee, 22 September 2020; c 10. Depending on the project—or the level of racketeering, but I cannot say that—private finance initiative and public-private partnership contracts typically last 25 to 30 years, and some even longer than 40 years; that has huge implications for public services such as schools and hospitals. The current sleeper contract, awarded to Serco, is a 15-year contract. The Scottish Prison Service has 13 publicly managed prisons and two that are run by private operators, Serco and Sodexo. Electronic monitoring of people who are on home detention curfew is undertaken by G4S. Significant public money goes on our ferries, and it would seem that Caledonian MacBrayne, which provides routes in the Clyde and Hebrides, is afforded a different approach from Serco—there is a name that keeps recurring—which provides ferries in the northern isles. I particularly want to talk about an issue that one of our witnesses alluded to in relation to North Lanarkshire. In one of my constituency cases, the provider of care-at-home services was initially a private company, but it had insufficient capacity to provide the level of care that was required; therefore, the service was supplemented by the local authority. Is it not ironic that different approaches would be taken with regard to the totality of care that was provided to the individual? In his judgment, Lord Keith of Kinkel outlined that “It is of the highest public importance that a democratically elected governmental body ... should be open to uninhibited public criticism.” If we look at PPP and PFI, and the reputation of companies in their role in the public sector, where are the checks and balances, given that several Administrations will come and go over the course of such projects? Section 2(2) contains the definition of “public authority”. The devil is always in the detail, but we did not hear any detail about subsection (6) from the minister. It would be helpful if she could cover that point in her summing up. This is not an ideological debate on the merits or otherwise of outsourcing public services. I think that my views on that issue are clearly understood. It is about our important scrutiny function. As I said, Administrations can come and go. For example, a 15-year rail contract might be overseen by many Administrations. That is a long time to give added protection to a company that provides an important public service, and which is more than capable of looking after itself. Parliamentarians have legal privilege, and it would be a source of real regret if we did not extend the right of uninhibited public criticism of the providers of public services to our fellow citizens.

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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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