Committee
Citizen Participation and Public Petitions Committee 17 April 2024
17 Apr 2024 · S6 · Citizen Participation and Public Petitions Committee
Item of business
Continued Petitions
Strategic Lawsuits against Public Participation (PE1975)
Professor Justin Borg-Barthet (University of Aberdeen)
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In addition to the points that have already been made, there are a couple of things that we need to consider. First of all, the comparison being made is a little unfortunate, in that we are constantly looking at what is going on in England and saying, “Oh, we’re not as bad,” or, “There’s just this SLAPP hub, so it must be a fringe issue in Scotland.” The better question to ask is not what is different about Scotland compared with England and Wales but what is unique about Scotland compared with every other legal system in Europe. I suggest that, in this specific respect, the answer to that is: nothing. Therefore, the onus should shift to showing whether Scotland is immune to problems that every other legal system is not immune to. I cannot see how it could be. I also suggest that this is not a prospective problem of Scotland becoming isolated as the only jurisdiction without anti-SLAPP laws, but a current problem that we perhaps do not see, given that most SLAPP practice never makes it to court. We know from discussions with lawyers on the side of the media that, even in Scotland, stories are changed or are not published, because of threats of lawsuits. Currently, then, we do not know things that we should know, and things go unreported that should be reported. As for the legislative environment, Roger Mullin spoke to the important political point. That is an issue for politicians, but there is also the legal point that what is being addressed here is the basis of a functioning legal system. We are talking about a system without a free press or a fully functioning rule of law, and it is incumbent on legislators to ensure that the rule of law is advanced in every legal system.
In the same item of business
The Convener
Con
Agenda item 2 is consideration of continued petitions, the first of which is PE1975, which is on reforming the law relating to strategic lawsuits against pub...
Roger Mullin
Thank you, convener. First, I thank the committee for the opportunity to discuss the need for anti-SLAPP legislation in Scotland. When I was a member of Parl...
The Convener
Con
Thank you, Mr Mullin. I see that Mr Ewing has arrived. You have not missed anything, Mr Ewing. We have just heard the introduction to our evidence session o...
Fergus Ewing (Inverness and Nairn) (SNP)
SNP
My apologies, convener.
The Convener
Con
We have a series of areas to explore in detail, but my first question is just meant to ensure our broad understanding of the issue. The committee was engaged...
Roger Mullin
I will allow my colleagues who are legal experts to respond on the detail of the issue, but I will respond from a more political perspective. The reason why...
The Convener
Con
Is a governmental position of taking a reactive rather than a proactive approach to that possibility not a reasonable one?
Roger Mullin
I do not think so, because that would mean that you are allowing people to exercise those threats first, before you start to respond. That would be a complet...
The Convener
Con
I hear what you say there. Might not the Government argue that, in an otherwise congested legislative environment, to act and to prioritise that when other m...
Roger Mullin
I do not know what its arguments will be, but I cannot think of anything that is more important than protecting the good name of Scotland internationally and...
The Convener
Con
It is good to have that on the record.
Graeme Johnston (UK Anti-SLAPP Coalition)
Good morning. I used to work as a litigation solicitor in one of the big international firms and did a lot of cross-border type litigation—not about defamati...
The Convener
Con
It is as if you are suggesting that our legal profession always has an eye to the main chance. That is the conclusion that I am drawing from that.
Graeme Johnston
I would not wish to imply that.
Professor Justin Borg-Barthet (University of Aberdeen)
In addition to the points that have already been made, there are a couple of things that we need to consider. First of all, the comparison being made is a li...
The Convener
Con
Is there anything that you would like to say, Mr Mustafa?
Ahsan Mustafa (Law Society of Scotland)
Yes, thank you, convener. The Law Society of Scotland believes that a justice system that maintains the rule of law and ensures public confidence should not ...
The Convener
Con
Yes, that aspect is at the heart of the petition. Mr Borg-Barthet, I want to understand—you alluded to this—the extent to which the issue is a problem about...
Professor Borg-Barthet
Court action is the tip of the iceberg with SLAPPs. The core problem is the credibility of a threat. If somebody were to threaten me with a lawsuit that was ...
The Convener
Con
Although we cannot talk about live cases, colleagues who were members of the Scottish Parliament in the previous parliamentary session will remember the case...
Roger Mullin
Yes. The ones that I am most familiar with are used, first of all, against the journalistic community, and that is mostly in relation to investigative journa...
Graeme Johnston
In addition to what Roger Mullin said, another angle is that there is an increasing number of private individuals who get threatened or sued, for example, fo...
The Convener
Con
There are other applications. I was just trying to understand where the centre of gravity is in relation to their use.
David Torrance (Kirkcaldy) (SNP)
SNP
Looking at other legal systems across the UK, do you think that the action that is being taken in England and Wales goes far enough to adequately protect jou...
Roger Mullin
From my perspective, I doubt that it does at the moment, but I would rather defer to people who are legally trained to give a more detailed response.
Graeme Johnston
The main issue with the bill that is before the Westminster Parliament is that it has a subjective standard that applies to an intention to harass, for examp...
David Torrance
SNP
Does the Council of Europe initiative put pressure on the Scottish Government to do more on the issue?
Roger Mullin
I will give a very short answer to that: yes. I think that Justin Borg-Barthet, in particular, is aware of what has been happening on the European front, so ...
Professor Borg-Barthet
I am not sure that it is necessary to expand a huge amount on your “yes”. To be clear, I was involved with the European Union law-making process rather than ...
David Torrance
SNP
Thank you for that. In drafting anti-SLAPP legislation, what are the key factors that will make it successful?