It might be helpful if I said just a few words. First, it is a pleasure to be back here and I thank you for the opportunity to come along today and brief the Justice Committee on our recently published report on defamation. Graham McGlashan is the project manager and a solicitor seconded from the Scottish Government legal department. He and I have been the team on this project.
I will keep my opening remarks as brief as I can so that we have the maximum possible time for questions and discussion. I am very happy to try to answer any questions that members might have about the law of defamation, what our proposals entail and the overarching themes that have informed our work. As the committee will know, we have set out the background to the project, the case for law reform and a summary of our main proposals in the written submission that the convener mentioned.
I reiterate that the project was inspired by a number of responses that we had to the public consultation on our ninth programme of law reform. We have just come to the end of that and are about to start the 10th programme. From stakeholders such as the professional legal bodies—the Law Society of Scotland and the Faculty of Advocates—media stakeholders such as BBC Scotland and campaign groups such as the libel reform campaign, there were quite a number of suggestions that we should examine the law of defamation. They were all supportive of a project to examine potential reforms in that area of the law.
One of the main reasons why respondents suggested examining the law of defamation was that major reforms, as members will know, had been made to the law of defamation in England and Wales by the Defamation Act 2013. Those reforms were largely, but not entirely, excluded from Scots law. The message that we got from stakeholders was that the law of defamation was an area of Scots law that was in need of review to establish whether similar reforms or, indeed, different ones might be appropriate here.
As we have explained in the written submission and in the report, much of Scots law in this area is contained in the rather antiquated decisions of the courts and a number of statutory provisions—not very many, as it happens—scattered across the statute book, all from a time that predates the modern era of mass communication and the internet. As the committee will have seen, that has thrown up particular challenges for the law of defamation.
In terms of our approach, most members will be aware of the way in which the Law Commission works in practice. Early on, we established an advisory group consisting of legal practitioners, academics, media representatives and others to assist us in understanding how the current law works in practice and in developing and shaping our ideas for possible reform of the law. It is a very important aspect of the Law Commission’s work that we try to understand and take account of the law in other parts of the world. That is something that we looked at in this project as well. Although our closest comparator was the reforms that were made to the law of England and Wales in 2013, there is also a recent body of work comprising a consultation paper and subsequent report on reform of the law in Northern Ireland.
We published a discussion paper for public consultation in March 2016. More recently, with the assistance of parliamentary counsel, with whom we work closely, we prepared a working draft of a bill, which is appended to our report. We had a second round of public consultation on the bill provisions, which attracted a very high level of interest and response—we had 111 responses, including a significant number from members of the public.
The theme that runs through our ideas—I suggest that this will be the litmus test for the committee when it is assessing what it makes of our proposals and how it wants to go with them in due course, assuming that there is a bill—is striking the right balance between two values that sometimes pull in opposite directions. The first is freedom of expression; the second is protection of reputation. We have made 49 recommendations, and I suggest that the report and draft bill constitute the most substantial proposed reform of defamation law in Scottish legal history. They include proposals to introduce a serious harm threshold, to give greater protection to secondary publishers, to reduce the limitation period for defamation actions from three years to one and to introduce a statutory defence of publication in the public interest.
If they are implemented, the proposals will set out the law in this area in clear and straightforward terms in modern and accessible statute.