Defamation and Malicious Publication (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 5th November 2020.

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Photo of John Finnie John Finnie Green

I, too, commend the work of the Scottish Law Commission, which provided the foundation for the bill, and I thank all those who provided evidence and briefings, and the staff who have helped us throughout the process of considering the bill.

The bill covers an important part of civil justice—defamation. As has been said, as we examined the bill the Justice Committee focused on two important competing elements that required to be considered: freedom of expression, which the committee has heard a lot about in relation to not just the Defamation and Malicious Publication (Scotland) Bill, but other proposed legislation that we are considering; and protection of reputation. On whether the appropriate balance has been struck, I agree with the convener that the proposed shift favours freedom of speech, but, broadly speaking, the Scottish Greens consider that the bill strikes the correct balance, subject to our comments on “serious harm”, which my colleague Andy Wightman will touch on.

The Scottish Government says that defamation law should be as clear and accessible as possible. There is an argument to be made that putting that on a statutory footing will bring some clarity; accessibility in the context of defamation law has been referred to in correspondence as “mythical”. Access to justice is important, and not just in the present context. Reference has been made to the term “ordinary persons”, but I remain to be persuaded that the bill will be accessible to ordinary people.

I have concentrated my scrutiny mainly on the Derbyshire principle, which has been touched on. It is important to say that the law lords’ decision that gave rise to that principle said that public bodies should be

“open to ‘uninhibited public criticism’ and that reputation should be protected by political rather than legal means.”

The bill creates a statutory version of that principle, which exempts businesses and charities that provide public services only from “time to time”. With regard to the principle that must be followed, the convener accurately reflected the content of our stage 1 report, to which I am a signatory, but the issue is one on which I would go beyond many members, because we must have effective scrutiny of outsourced public services.

I will give an example. It is clear that my constituents in the Western Isles have more freedom to talk about the quality of their publicly provided ferry services than my constituents in the northern isles do, whose service is provided by Serco, the website of which tells us that the company provides services in health, transport, justice, immigration, defence and so on. Only yesterday, Serco was the subject of public criticism when a prison officer in one of its private prisons in England revealed that prison staff were required to clean cells without appropriate equipment.

There is a balance to be struck. As with all legislation, the most important factor in achieving that balance is that right rather than might is the principle that applies. There is still a way to go with the bill, but the Scottish Green Party will support its general principles at decision time.