09. March 2021 · 9 comments · Categories: Politics

aw_20170921

I will be a regional list candidate for the Highlands and Islands in the Scottish Parliamentary election in May 2021.

To be elected, I will need around 15,000 votes. I have launched a Crowdfunder to raise £10,000 to pay for the development of a digital campaigning platform, newsletters and media and communications support. PLEASE do consider making a donation. https://www.crowdfunder.co.uk/andy-wightman-for-highlands-and-islands

As an Independent Candidate permanently based in Lochaber (from 26 March 2021), I am offering you the opportunity to vote for experience, integrity, independent thinking, a commitment to strengthening local democracy and a track record of success.

My background is as a land rights campaigner, author, and researcher. Since the early 1990s, I have worked with communities across the Highlands and Islands supporting them to achieve more local control of land and resources. For the past 5 years, I have been an MSP for Lothian Region.

Holyrood needs more independent voices. Over the past 5 years, I have campaigned successfully on a range of issues.

As an MSP (2016-21), I led the successful legal challenge in the European Court of Justice that ruled that Article 50 could be unilaterally revoked.

I launched the Homes First campaign to better regulate short-term lets and successfully led opposition to the latest regulations that adversely affect Bed and Breakfast businesses.

I introduced a Bill to incorporate the European Charter of Local Self-Government to strengthen local democracy. It will be voted on at its final stage in Parliament within the next few weeks.

I have championed tenants’ rights and the need for more affordable housing including the desperate need to make land available at affordable prices reflecting its existing use value.

As a long-standing land campaigner (author of Who Owns Scotland 1996 & The Poor Had No Lawyers 2010), a focus of my election campaign will be a Land for the People Bill to reform Scotland’s antiquated land laws and democratise the ownership and use of land and property.

Standing for election as an Independent is extremely challenging. I have no party machine, no corporate donors, and no party members to support me.

I will be relying on a digital, grassroots campaign to win support and spread the word of my candidacy to others. I will need 15,000 votes to be in with a chance of winning a seat.

IMPORTANT INFORMATION

Donations will be made to Andy Wightman.

For the purposes of complying with electoral law, I need to collect information on donors.

Anyone donating over £50 is deemed to have made a regulated donation and will be subject to permissibility checks.

All such regulated donations will have to be reported to the Electoral Commission in my election return.

I will be putting my name forward as an Independent candidate in the 2021 Scottish Parliament election for the Highlands and Islands Region. From the end of March, my home will be in Lochaber.

Holyrood needs more independent voices. Over the past 5 years, I have campaigned successfully on a range of issues.

As an MSP (2016-21), I led the successful legal challenge in the European Court of Justice that ruled that Article 50 could be unilaterally revoked.

I launched the Homes First campaign to better regulate short-term lets and led opposition to the latest regulations that affect Bed and Breakfast businesses.

I introduced a Bill to incorporate the European Charter of Local Self-Government to strengthen local democracy. It will be voted on at its final stage in Parliament within the next few weeks.

I have championed tenants’ rights and the need for more affordable housing.

As a long-standing land campaigner (author of Who Owns Scotland 1996 & The Poor Had No Lawyers 2010), a focus of my election campaign will be a Land for the People Bill to reform Scotland’s antiquated land laws and democratise the ownership and use of land and property.

In the coming days I will launch a crowdfunder and later in March I will formally launch my campaign.

It is very hard to be elected as an Independent candidate. I will need 12-15,000 votes across the Highlands and Islands.

I will be relying on a grassroots campaign of supporters who are able to mobilise voters by word of mouth and social media.

If you support my candidacy, please tell your friends and family. Very soon I will be offering you ways to get involved in the campaign.

Meanwhile, thank you for your support.

people walking beside telephone booth during daytime

STOP PRESS:- THURSDAY 18 FEB 2021 1330hrs
The Minister has withdrawn the Licensing Regulation

I launched the Homes First campaign in 2017 to highlight problems with the legislative and regulatory regime around short-term lets (STLs). Throughout my time as an MSP, constituents in the Lothian region have contacted me to express their concern at the impact STLs have on their communities. I have published a range of papers on different aspects of the topic, including taxation, key safe deposit boxes and planning, and have proposed various solutions.

I support two key regulatory changes.

The first is to clarify and tighten up the planning system so that there is better and more effective oversight on the change of use from residential dwellings to commercial short-term lets – when a home stops being a home and becomes a commercial STL.

The second is to give local authorities the powers to licence STLs to ensure that they comply with basic fire, electric and gas safety; have appropriate public liability insurance in place; and that the operators are fit and proper persons.

These two regulatory changes have been the focus of my campaigning. They allow local authorities to regulate STLs in their area as they see fit, reflecting local conditions. Planning and licensing reform are NOT about imposing a uniform solution across Scotland but giving councils the powers that they need to do what they think is appropriate in consultation with the people they represent.

That, in short, is the job of Parliament – to pass regulations that deliver on the above.

The regulations

However, we have instead, two regulations that are in their own ways flawed.

The Town and Country Planning (Short-term Let Control Areas) (Scotland) Regulations 2021 provides for planning authorities to create Short Term Let Control Areas. Within these Control Areas, all STLs must seek planning consent for a change of use from residential to commercial short-term letting.

The Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2021 grants powers to councils to establish a licensing regime for STLs.

It is worth bearing in mind that such regulations (or Scottish Statutory Instruments) are secondary legislation. That is to say, there is primary legislation (Acts) that give explicit powers to Ministers to introduce secondary legislation. In the case of the planning regulations, this is 26B(5) and 275 of the Town and Country Planning (Scotland) Act 1997. The licensing order is introduced using sections 3A(1), 44(1)(b) and (2)(a) and (b) and 136(2) of the Civic Government (Scotland) Act 1982.

The primary legislation from which the powers to introduce these regulations derive stipulates that the regulations must be subject to the affirmative procedure. That means that the statutory instruments become law only if Parliament approves it.

Importantly, however, there is no opportunity for Parliament to amend such legislation.

Parliamentary scrutiny

The regulations were debated at a meeting of the local Government and Communities Committee on Wednesday 3rd February. The Official Report of proceedings can be read here and the Committee’s report to Parliament is available here.

I opposed both regulations and urged the Minister to withdraw them and come back having considered the objections.

I object to the Planning Regulation because it requires Scottish Ministers to approve Short Term Let Control Areas before they can be designated. It’s a power of veto over a matter that should be wholly and exclusively within the competence of local authorities. In the Scottish Government’s consultation on this question, it was claimed that this is similar to the process of designating Conservation Areas. Section 61 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, however, only requires Councils to notify Ministers and when I challenged the Minister on this at Committee, he was forced to write to the Committee and apologise for the error.

I object to the licensing regulation because bed and breakfast businesses are within its scope despite it never having been intended that they would be. The Scottish Government denies this and says that they have always been included, pointing to a rather ambiguous sentence in the 2020 consultation paper.

There is a way round both of these objections if the Minister was prepared to withdraw the regulations and reconsider, but so far he has refused to do so. [see STOP PRESS above- the Licensing Regulation has been withdrawn]

I believe that legislation should be based on informed consultation with those who it affects and that powers for local government should not be subject to central government vetoes.

Thus, despite having campaigned hard for these measures, I find myself in the odd position of voting against the regulations. I would prefer not to be in this position, but without action from the government to improve the legislation, I have little choice.

Below is a statement from the Scottish Parliament in response to the votes this morning in the Committee on the Scottish Government Handling of Harassment Complaints on the publication of written evidence from Alex Salmond on the Ministerial Code.

I agree with this statement.

BEGINS
The default position for the Committee has always been that it would publish as much information as possible. However, the work of this Committee must respect relevant legal obligations, including court orders made in relation to a judicial review and a criminal trial, which are aimed at protecting the anonymity of complainers. Whilst the issue of publication is ultimately a matter for the SPCB, the majority of the Committee is in agreement that it cannot publish given the legal constraints on it.

The Committee’s statement on the handling of information and evidence has been made clear to all witnesses giving evidence to the Committee, and this was highlighted to Mr Salmond when the Committee first wrote asking him to contribute to its inquiry on 7 July 2020 and again in October and November 2020.

The Committee would have been able to publish Mr Salmond’s submission, in line with the Committee’s statement, as it has his other submissions to the Committee. However, publication of the full submission in a manner that is readily accessible has made it impossible for the Committee to make the redactions needed to meet its legal obligations. This is clearly regrettable and something outwith the Committee’s control, but the Committee will not breach its data protection obligations or the court orders. This reasoning has been made clear to Mr Salmond on numerous occasions.

The Committee has corresponded extensively with Mr Salmond and his legal representatives since July (when he was first asked to make this submission by early August).  In addition to the issues around Mr Salmond’s submission, there are a number of conditions to his appearance that the Committee simply could never meet, including waiving threat of all legal prosecution. It is simply not within the Committee’s gift to make such a commitment.

The Committee will use the detailed submissions he had already made to the Committee, all of which have been published by Parliament in line with the Committee’s statement on written evidence, as well as the over 130 pages of documentation from his solicitor, to help complete its vital work. All of this can be used to question the First Minister and can be published in the Committee’s report.

 

Extract of decisions

Murdo Fraser proposed that the Committee agrees to publish Mr Salmond’s submission on the Ministerial Code phase of the inquiry with appropriate redactions.

The proposal was disagreed to by division: For 4 (Jackie Baillie, Alex Cole-Hamilton, Murdo Fraser, Margaret Mitchell), Against 5 (Alasdair Allan, Tom Arthur, Linda Fabiani, Maureen Watt, Andy Wightman),   Abstentions 0.

Maureen Watt proposed that the Committee agrees that, given the legal constraints on it, it is not able to publish any version of Mr Salmond’s 31 December 2020 submission on the Ministerial Code.

The proposal was agreed to by division: For 5 (Alasdair Allan, Tom Arthur, Linda Fabiani, Maureen Watt, Andy Wightman), Against 4 (Jackie Baillie, Alex Cole-Hamilton, Murdo Fraser, Margaret Mitchell),   Abstentions 0.

Margaret Mitchell proposed that given the committee cannot reach a unanimous position on the publication of Mr Salmond’s submission it should now go to the SPCB for decision.

The proposal was disagreed to by division: For 4 (Jackie Baillie, Alex Cole-Hamilton, Murdo Fraser, Margaret Mitchell), Against 5 (Alasdair Allan, Tom Arthur, Linda Fabiani, Maureen Watt, Andy Wightman),   Abstentions 0.

Andy Wightman asked to record in voting that he is a member of the Scottish Parliamentary Corporate Body.
ENDS

three silver keys

In July 2019, the First Tier Tribunal issued an eviction order for a tenant living in a small studio flat in Edinburgh. The ground for eviction was that the landlord – along with his wife and daughter – wished to move from their 3 bedroom house into the studio flat.

Schedule 3 (4) of the Private Housing (Tenancies) (Scotland) Act 2016 states that a landlord wishing to recover a property to live in is a mandatory ground for eviction – in other words, the Tribunal must issue an eviction order.

Relations between the landlord and tenant had been strained for some time. It was the tenant’s belief that the landlord wished to evict the tenant and was using eviction ground 4 – an intention to live in the property – as an excuse. The Tribunal found, as they had to, that the test of establishing ground 4 had been met and issued an eviction order.

The tenant left in January 2020. In February, a new tenant moved into the property. The landlord remained in his three bedroom house.

The evicted tenant applied for leave to appeal the Tribunal decision. This was rejected. With the support of the Community Help and Advice Initiative, the tenant then applied for a Wrongful Termination Order. This in itself is an unusual step.

Even more unusually, in November 2020, the Tribunal granted it.

Wrongful Termination Orders were introduced by sections 57 to 60 of the 2016 Act. A tenant who has been evicted but believes that the landlord misled them can apply to the Tribunal for a Wrongful Termination Order. A tenant can apply whether they were issued an eviction order by the Tribunal or if they simply left the property when asked to.

(And most tenants do simply leave – because they have found another home, or it suits them to do so, or they do not want to kick up a fuss, or they are wary of entanglement in the court system.)

There have been previous applications for Wrongful Termination Orders. Although Scottish Housing News reported that the November 2020 decision was the first successful application for a Wrongful Termination Order, an earlier decision in December 2019 saw the Tribunal award £1,200 to a tenant it judged to have been wrongfully evicted. In that case, the landlord evicted the tenant on the ground that they wished to live in the property – but then took Airbnb bookings instead of moving in.

The vast majority of eviction cases lead to a successful eviction order for the landlord. This has been true even during the pandemic, although it is not yet clear what effect the Scottish Government’s temporary transformation of mandatory grounds to discretionary grounds will have. Applications for Wrongful Termination Orders are rare, and success is rarer still.

How many tenants have access to the help and support needed to apply? How many tenants are even aware that this is an option? The vast majority of tenants do not even attend Tribunal hearings when summoned. Organisations like CHAI and Living Rent do phenomenal work, but their resources are stretched. There is a chronic lack of awareness among tenants about their rights.

There is also a fundamental flaw in the legislation. As the Tribunal pointed out in the decision notice, the bar set by the Scottish Government for proof of the landlord’s intention to live in the property is very low indeed. Coronavirus changes aside, you can legally evict your tenant by providing an affidavit stating that you intend to live there.

The reforms of the last few years have strengthened the rights of tenants in Scotland. Yet it remains the case that a landlord who wishes to be rid of a tenant can evict them on the strength of a promise that they are telling the truth. There is no follow-up. Nobody checks that they were telling the truth. It takes a tenant who has both the willpower to push ahead and the support of a charity to uncover a wrongful eviction. It goes without saying that most tenants do not have these resources.

The maximum penalty that can be imposed by the Tribunal in the case of a wrongful termination is six months’ rent. In the November 2020 case, £1,350 was awarded to the tenant – three months’ rent. The Tribunal took both the landlord’s continued dishonesty and the tenant being in rent arrears into consideration.

When a Wrongful Termination Order is issued, the Tribunal sends it onto any local authorities who have the landlord on their landlord register. This is significant because of the fit and proper person test that local authorities should conduct on prospective landlords. Clearly, a landlord who has deliberately misled the Tribunal is not a fit and proper person to hold a landlord registration. It is worth noting in this context that the landlord who was the subject of the 2019 WTO referred to above (who let the property as AirBnB despite claiming that they intended to live there) remains on the Landlord Register.

The rarity of successful Wrongful Termination Orders reveals the flaws in the 2016 act. A priority for the next government should be fixing this legislation so that the rights of landlords and tenants are properly balanced. The private rented sector is crying out for reform. The starting position of any reform should be that housing is a human right, that a tenant’s home is in fact their home and that they should only be evicted in the most exceptional circumstances.

In response to reports of Marine Scotland challenging Irish fishing boats in the 12-mile territorial seas around Rockall, I have lodged the following motion in Parliament. For more information on the legal backgound, see this blog by Richard Collins of University College Dublin and this guest SPICe blog by Richard Harrison. Further background is contained in Chapter 9 of The Poor Had No Lawyers.

Motion Number: S5M-23827
Lodged By: Andy Wightman
Date Lodged: 06/01/2021

Title: Rockall

Motion Text: That the Parliament notes reports of the recent actions by the Marine Scotland patrol boat, the Jura, in boarding the Irish fishing vessel, the Northern Celt, and asserting authority over fishing in the 12-mile zone around the island of Rockall; understands that Rockall was annexed by the British Crown following advice from the Colonial Office and exercise of a royal warrant by Captain Connell of HMS Vidal on 18 September 1955, and that this was the last annexation of territory in the British Empire; further understands that the Island of Rockall Act 1972 incorporates Rockall as part of Her Majesty’s Dominions into that part of the UK known as Scotland as part of the District of Harris in the County of Inverness; considers that colonial annexation by the British Crown is not an internationally recognised means of establishing sovereignty over any territory, and calls on the Scottish Government to formally disclaim sovereignty over Rockall and invite the UK Government to initiate international dialogue under the auspices of the UN to establish the status of Rockall in international law.

 

I have resigned from the Scottish Green Party. My resignation letter can be read here and is outlined below.

Lorna Slater & Patrick Harvie MSP
Co-Leaders
Scottish Green Party
19b Graham Street
EDINBURGH
EH6 5QN

cc. Membership Secretary 18 December 2020

Dear Patrick and Lorna,

I am writing to tender my resignation from the Scottish Green Party with effect from Friday 18 December 2020.

For some time now, since I was admonished for attending a public meeting at Edinburgh University in June 2019, I have been saddened by the intolerance shown by some party members to an open and mature dialogue about the tensions and conflicts around questions of sex and gender in the context of transgender rights and women’s rights.

On Thursday last week it was made clear to me that if (as I was minded to), I voted for amendment 28 to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, I would face complaints and disciplinary action leading to possible suspension, deselection or expulsion. On the evidence of the reaction to my attendance at the June 2019 public meeting, I took this prospect seriously.

I understand that the Scottish Green Party has a strong commitment to equalities and trans rights. However, some of the language, approaches and postures of the party and its spokespeople have been provocative, alienating and confrontational for many women and men.

It has become evident to me that the sort of open-minded public engagement I would like to see take place on this topic is incompatible with a party that has become very censorious of any deviation from an agreed line.

Put simply, I cannot operate in this kind of environment and Thursday’s vote and the discussions that took place around it were the final confirmation of that.

I remain committed to Green politics and will endeavour to work constructively with the Green Group in Parliament until dissolution. I also have important work to do on tenants’ rights, the climate crisis, land reform, local democracy and taking forward my European Charter of Local Self-Government (Incorporation) (Scotland) Bill.

I wish you well in the May 2021 Elections.

Best wishes

Andy

Photo Credit: Patrick_Down Flickr via Compfight cc

Rising private rents across Scotland reveal the failure of the SNP’s flagship rent pressure zones policy and the need for proper rent controls, Scottish Greens housing spokesperson Andy Wightman has said.

New stats published by the Scottish Government  show that over the last year, struggling tenants have seen average rents rise above inflation in 11 out of 18 areas.

In 2016, Scottish councils were given the power to ask Scottish Ministers to designate a Rent Pressure Zone (RPZ) to give them limited powers over rent rises. Despite rising rents and a global pandemic, councils have been unable to use that power.

A new paper by Lothian MSP Andy Wightman exposes the difficulty councils have had in gathering evidence to support a RPZ. It also evaluates what actions councils have taken to collect data and protect tenants from rent rises.

In response to an FOI, 18 councils did not provide any information on work on rental data or RPZs. Ten councils held basic information on private rents and 4 councils had gone further by commissioning their own research or initiating work on establishing a RPZ.

Commenting, Andy Wightman said: “Rents have outstripped inflation over the past decade. Councils have been unable to act to protect private tenants, even during a global pandemic.

“Clearly, giving councils the power to establish a RPZ without having to seek permission from Ministers would be a start, but Scotland needs a comprehensive system of rent control in order to protect private tenants from eye-watering rent rises.”

Read the Rent Pressure Zones research paper here.

Edinburgh from the Pentland Hills
cc-by-sa/2.0 – © Jim Barton – geograph.org.uk/p/3343260

In September 2020, the Scottish Parliament held a debate on ‘dirty camping’. Many MSPs spoke out against the poor behaviour their constituents had witnessed over the summer. This behaviour was caused not only by a lack of understanding about how to interact with the land, but also by a lack of outdoor facilities. In a blog at the time, I commented on Scotland’s woeful outdoor infrastructure. Our public outdoor spaces often lack public toilets, basic camping facilities, access for disabled people and safe active travel routes.

Our country parks, regional parks and national parks are vitally important landscapes.

The Pentlands is just one of three regional parks in Scotland (the others being Lomond Hills and Clyde Muirshiel) set up under the Countryside (Scotland) Act 1981. Scotland has established no new regional parks since 1990, despite the powers still being in place to do so. Setting up a regional park signals an intention to manage the land for public recreation as well as conservation.

Christine Grahame MSP introduced a Member’s Bill in 2015 proposing to extend the boundaries of the Pentland Hills Regional Park, to include 100% of the range instead of 45%. The Scottish Parliament disagreed to the general principles of the bill and it fell – largely on the grounds of cost, a perceived lack of demand and a feeling that it was inappropriate for central government to concern itself with the operation of regional parks given that this responsibility rests with local authorities.

The City of Edinburgh Council manages the park on behalf of the three local authorities whose boundaries cross the park area. The Council is currently asking the public for views on access and camping in the Pentland Hills Regional Park.

The premise of this engagement exercise is that there has been “a rise in irresponsible wild camping, antisocial behaviour and a significant rise in car park usage” in recent months and years. Quite rightly, the Council have identified the provision of proper infrastructure as the solution. They are proposing:

  • Enhanced parking facilities at the four main car parks
  • Development of active-travel alternatives
  • Creation of Warden position with formalised camping area and toilets at Harlaw
  • Provision of improved toilet facilities
  • Introduction of parking charges

Unfortunately, the touted development of active travel alternatives appears to be little more than minor upgrades to the footpaths around the car parks and scenic areas. It is not clear whether the City of Edinburgh Council – which is the managing authority for the park – also has plans to create the kind of joined-up active travel network that would truly encourage people to choose walking or cycling over driving. The planned expansion of the car parks at Harlaw, Flotterstone and Threipmuir only underline the extent to which those wanting to access the Pentlands are encouraged to depend on their cars.

Prioritising active travel routes to the Pentlands would not only reduce congestion on access roads, but also benefit local businesses – the research is clear that people spend more when they leave their cars at home.

The council says that there has been an increased number of cases of anti-social camping at the reservoirs. It proposes a twofold solution. First, a warden to prevent camping around Harlaw Reservoir between March and October. Second, the establishment of a basic camping area for 8 – 10 groups on the north-east side of the reservoir. Those wishing to camp there would need to pay a “small charge”. Toilets and bins would be provided. The revenue from this would pay for the employment of the warden.

If we are to have camping permit zones at all in Scotland, they should be a last resort once all other methods of addressing poor public behaviours have been tried. Basic facilities such as toilets and waste disposal, funding rangers, investing in outdoor education – these are all ways to enhance how people use and relate to land. Drawing a line between which land can and cannot be accessed by the public undermines our statutory rights.

The provision of toilets is vital in enabling access to outdoor recreation opportunities – as well as preventing the obvious problem of mess. Proper toilet provision is even more important for marginalised groups in society – particularly women or people with gastrointestinal disorders. So of course I welcome the 10 additional toilets the council is proposing for the Pentlands.

However, I find it astonishing that these toilets will come with a charge. Years of cuts to council budgets have left us in a situation where even the most basic of facilities must be paid for at point of use. Proper financing of Scotland’s outdoor public spaces is essential – now more than ever.

Public parks in other parts of Europe provide better facilities; better habitats for wildlife; better cycle routes; and better access by foot or bike. Proper outdoor infrastructure opens up the countryside for everyone. Our impoverished and underpowered local authorities are simply unable to meet demand. Without action and fair funding from the Scottish Government, local authorities like the City of Edinburgh Council will simply have to do what they can with what they have.

The survey closes on 4 December 2020 and I encourage anyone who is interested to share their views:

https://consultationhub.edinburgh.gov.uk/sfc/pentland_hills_regional_park/

Speech in Stage One debate (to see subtitles, switch them on in icon below vide)

9 minute read.

The Defamation and Malicious Publication (Scotland) Bill was debated at Stage One in the Scottish Parliament on Thursday. I was given 3 minutes to speak and I used them to articulate my concerns about the serious harm threshold. The text of my speech is appended at the foot of this blog.

This blog is designed as a stimulus to further discussion and debate over the serious harm test set out in the Bill. It will be followed by a further blog exploring some of the possible options to amend the Bill. Feel free to comment below or send your views directly to myself. Before proceeding, however, I should make a few things clear.

Firstly, I supported Scottish PEN and others who have been campaigning for a serious harm test but I write this as a lawmaker and not a campaigner and I want to get this right.

Secondly, the proposal for such a threshold was adopted early on in the Scottish Law Commission’s work on the Bill and has become an established part of the evolving proposals. Now that the Bill is in the process of becoming law, we need as a matter of principle to properly evaluate the arguments for and against and stress test the provisions as set out in the Bill.

Thirdly, my speech appended below is a speech is thus rhetorical in style. It was in part designed to ensure that the opposing view to the general consensus was given an airing on the public record in Parliament before the detailed Stage 2 amending process. I should add that the one other MSP who spoke and expressed reservations about the proposed test was Annabelle Ewing MSP who was a Minister responsible for civil law until June 20128.

The Bill creates a statutory definition of defamation but then states that in order to be actionable the harm has to be serious.

The Defamation Act 2013 in England and Wales, by contrast, defines defamation as causing serious harm to ones reputation and this by exertion, only serious harms can be pursued.

We need further debate on the three key questions which form a logical progression of consideration.

Should there be a statutory threshold for initiating legal action for defamation?

My view is that yes, there should be a threshold. Currently anyone can initiate legal action for alleged defamation and the allegations are presumed to be defamatory. Whether they are in fact depends (in contested cases) on an evidential hearing (a proof) to establish whether in fact the statement complained of was ever made and in what context, whether the statement bears the meaning alleged by the pursuer, whether it carries a defamatory imputation and whether there are any defences available to the defender.

The purpose of a threshold is to filter our frivolous, vexatious or malicious actions and give some measure of confidence to those who receive legal letters threatening action as to what tests will need to be met before an action can proceed.

In setting any threshold, one needs to be mindful of the need to ensure that it is not set too high and does not exclude those with legitimate complaints who feel that they have been defamed and wish redress. On the other hand it should not be set so low as to have no practical effect.

2. If there should be, what should that threshold be?

This is a critical question. There should in my view be a threshold but if we are going to define defamation as a statement that causes harm to someone’s reputation then is that not a sufficient threshold to be demonstrated at an evidential hearing before a full proof can take place?

3. If there should be, how should such provisions be framed in law?

Should such a threshold be incorporated into the definition as in England and Wales or should the threshold for actionability be separate from the definition? Should the kind of procedure to asses whether such a threshold has been met be left to the rules of procedure for civil cases to determine or should there be some statutory provision? Should there be statutory criteria for assessing whether the threshold has been met or should it be left to the Courts to determine in each case depending on the facts and circumstances?

The written and oral evidence from a number of witnesses during Stage Ione reflected on some of this questions in a broad sense as the debater at Stage One is focused on general principles. However, in my view we need further debate on both the principles in some more details and how the law is framed as we head to Stage 2.

SPEECH

Thank you Presiding Officer – I want to focus my remarks on the serious harm threshold because it is a significant change.

It exists of course in England and Wales in section 1(1) which states that
(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

The Bill before us, by stark contrast does not follow that straightforward formulation but instead defines a statement as defamatory if it causes harm but then in addition states that for it to be actionable that harm must be serious. In that respect I disagree with Adam Tomkins that Scots law is being brought into line with England and Wales and I’ll return to that.

Following the Supreme Court ruling in Lachaux, liability in defamation cannot be established by reference to inherent tendency of the words alone but has to have regard to the facts and circumstances.

And thus the Court will need to hear evidence on whether the alleged words written or spoken were indeed ever written or spoken, whether they bear the meaning alleged by the pursuer, and the reasons why, if defamatory, serious harm is or is likely to be caused

And that does requires an evidential hearing and thus there will need to be significant procedural rule changes to Scottish civil procedure to accommodate any pre proof evidential hearing.

I have four arguments against the serious harm test as

First, as matter of principle, we should not be shutting down civil law remedies for people without good reason. Someone for example who is defamed but only suffers harm is now to be denied redress as is someone who suffers repeated harms over perhaps a long period of time but where the threshold may never be met by any one instance.

Secondly, as a caution to those who think this may act as some kind of procedural hurdle – this will involve evidential hearing and associated expense.

In my recent £750,000 action I would still have been in Court for 6 days trying to thrash out whether in fact serious harm had ever been caused to the pursuer.

Thirdly, a serious harm threshold will not deter a litigant determined to damage someone. That’s what happened with me. It took a full proof to conclude that no harm at all had been caused and no financial loss had accrued to the pursuer.

And finally but very importantly, let us ponder what Parliament is being invited to do. Section 1(4)(a) states that a statement about a person is defamatory if it causes harm to their reputation. Incidentally this was not in the draft Scottish Law Commission Bill and the Scottish Government has never published an analysis of responses it got to its own consultaiton. But any such statement is only actionable if the harm is serious.

Presiding Officer, We are defining a civil wrong in statute then saying there nothing you can do about it. We are now seeking to deny civil justice to our constituents whose reputation has been harmed.

Is this even compatible with Article 6 of the ECHR?

Presiding Officer The threshold does little for defenders as full proof will still be required.

The threshold on the other hand does a lot for pursuers but in a wholly negative way and without any justification. This Bill risks denying legitimate pursuers their human right to a civil remedy for a wrong that we are defining as harm but about which they can do nothing unless they can prove that it is serious.

Why?