10th Report, 2012 (Session 4): Legislative Consent Memorandum on the Defamation Bill

SP Paper 188 (Web Only)

JUS/S4/12/R10

10th Report, 2012 (Session 4)

Legislative Consent Memorandum on the Defamation Bill

Remit and membership

Remit:

To consider and report on:
a) the administration of criminal and civil justice, community safety and other matters falling within the responsibility of the Cabinet Secretary for Justice; and
b) the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Roderick Campbell
John Finnie
Christine Grahame (Convener)
Colin Keir
Jenny Marra (Deputy Convener)
Alison McInnes
David McLetchie
Graeme Pearson
Sandra White

Committee Clerking Team:

Clerk to the Committee
Peter McGrath

Senior Assistant Clerk
Joanne Clinton

Assistant Clerk
Andrew Proudfoot

Committee Assistant
Christine Lambourne

Legislative Consent Memorandum on the Defamation Bill

The Committee reports to the Parliament as follows—

BACKGROUND

The UK Bill

1. The UK Defamation Bill was introduced to the House of Commons on 10 May 2012. The Bill aims to reform the law of defamation in England and Wales to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation.1

Legislative Consent Memorandum and Motion

2. The Bill, as introduced to the UK Parliament, only applied to England and Wales. On 21 June, at the request of the Scottish Government, amendments to extend certain provisions on privilege relating to scientific and academic activities to Scotland were lodged by the UK Government. These amendments were agreed to by the Public Bill Committee on 26 June and, as a consequence, the consent of the Scottish Parliament was required to enable the UK Parliament to legislate in this area. On the same day, the Scottish Government lodged a Legislative Consent Memorandum (LCM) on the Bill, in the name of the Cabinet Secretary for Justice, in terms of Rule 9.B.3.1(a) of Standing Orders.

3. The Scottish Government states in the LCM that “parity of protection across the UK is desirable given that much scientific and academic research is done collaboratively and without reference to national borders”2. It added that “limiting these provisions to England and Wales only could potentially inhibit constructive and robust scientific and academic exchange”.

4. The LCM includes a draft legislative consent motion in the following terms:

“That the Parliament agrees that the relevant provisions of the Defamation Bill, introduced in the House of Commons on 10 May 2012, relating to the privilege which might apply in respect of peer-reviewed material in scientific or academic journals and reports of proceedings of scientific or academic conferences, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.”3

Outline of Committee consideration

5. On introduction, the LCM was referred by the Parliamentary Bureau to the Justice Committee for consideration. The Committee considered its approach to the LCM on 4 September and agreed to hear evidence from the Cabinet Secretary for Justice on 18 September. The Cabinet Secretary was notified in advance of this evidence session that some Members also wished to question him on reform of the law of defamation in Scotland more generally.

ISSUES ARISING FROM EVIDENCE-TAKING

6. In his opening statement to the Committee on 18 September, the Cabinet Secretary clarified that the law of defamation falls within the competence of the Scottish Parliament and that “the Scottish Government has no plans for wholesale reform in this area”.4 He explained that the main reforms contained within the Bill are “designed to address widespread concern about defamation law in England and Wales” and involve amending the Defamation Acts of 1952 and 1996 which apply to England and Wales only.5

7. The Cabinet Secretary went on to argue that, “given that much academic research is done collaboratively across the border and, given that conferences are held throughout the UK with delegates attending from across the UK, the Scottish Government takes the view that it is desirable to extend to Scotland the provisions on qualified privilege”.6 He also added that there was no suitable opportunity for the Scottish Parliament to legislate in this area in the near future.

8. The Cabinet Secretary was asked to respond to the following comments which challenge the assertion in the LCM that Scots law of defamation is sufficiently robust:

  • Professor Elspeth Reid of the University of Edinburgh Law School stated in the Scots Law Times that “the time has come for a fundamental review of the interests that defamation should seek to protect”;7 and
  • Alistair Bonnington, former principal solicitor at BBC Scotland in a recent article for the Telegraph wrote that he “practised defamation law in Scotland for over 30 years and attended many conferences all over the world where expert media lawyers discussed the problems experienced when domestic law curtailed free speech”. He went on to say that “the Scots law of defamation was one of the worst offenders found anywhere”.8

9. The Cabinet Secretary responded that the law of defamation “has been relatively robust” and that “we do not have the same issues that are arising south of the border”.9 He went on to suggest that the Committee should pursue any concerns it has regarding the law on defamation with the Scottish Law Commission.

10. In response to a question on why consistency of protection across the UK was needed for scientific and academic research but not for other published material, the Cabinet Secretary reiterated the comments he made in his opening statement that “much of what is dealt with in scientific and academic journals is pan-UK” and therefore, the Government “recognise that there is a gap that needs to be addressed”. He added that the Bill “responds to the needs of the academic and scientific communities so that there is peer review and free and frank exchange at conferences”.10

11. Furthermore, the Cabinet Secretary confirmed that, notwithstanding the comments made by Elspeth Reid and Alistair Bonnington, the Scottish Government had not received any representations, such as from the Law Society of Scotland or Faculty of Advocates, in relation to Scots law of defamation.11

RECOMMENDATIONS

12. The Committee recommends that the Parliament approves the forthcoming legislative consent motion on the UK Defamation Bill to be lodged by the Scottish Government.

13. The Committee also agreed to draw the Scottish Law Commission’s attention to the issues considered in this report and to seek its views on whether it considers that the law of defamation in Scotland requires to be reviewed.


1 UK Parliament website. Summary of Bill. Available at: http://services.parliament.uk/bills/2012-13/defamation.html [Accessed 20 September 2012].

2 Legislative Consent Memorandum on the UK Defamation Bill. Available at: http://www.scottish.parliament.uk/LegislativeConsentMemoranda/DefamationBill-lcm.pdf

3 Legislative Consent Memorandum.

4 The Scottish Parliament. Official Report, 18 September 2012. Col 1737.

5 The Scottish Parliament. Official Report, 18 September 2012. Col 1737.

6 The Scottish Parliament. Official Report, 18 September 2012. Col 1737.

7 Professor Elspeth Reid (2012). English defamation reform: a Scots perspective. Scots Law Times [18. 111 at 114]. Scots Law Times available by online subscription.

8 Alistair Bonnington (2012). Scottish Libel Law stuck in the past. Telegraph, 17 August 2012.

9 The Scottish Parliament. Official Report, 18 September 2012. Col 1738.

10 The Scottish Parliament. Official Report, 18 September 2012. Col 1739.

11 The Scottish Parliament. Official Report, 18 September 2012. Col 1740.

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