Misleading anti-Nationalist invective, Vol. 56...

Someone’s been nibbling the bitter almonds. In the Telegraph this morning, BBC lawyer Alistair Bonnington has written an extraordinary gouge-piece attacking the SNP, and Kenny MacAskill, under the headline “SNP’s arrogance leaves Scottish libel law stuck in the past”.   

My interest was piqued by the queer combination.  There has been little to no commentary on the fact that the Defamation Bill currently wending its way through Westminster means only means to apply in England and Wales.  As usual, the press commentary has tended to forget that we live in a union state, not a unitary state, and that the Bill’s provisions as introduced – limiting defamatory statements to those whose publication has or is likely to cause ‘serious harm’ to reputations, enhanced protections for writing published in peer-reviewed academic journals, for operators of websites attracting potentially defamatory comments – would only reform the English and Welsh law of slander and libel, leaving Scotland’s defamation law intact. Back in June, I speculated on the consequences which these English reforms might have for Scottish courts.

In his piece this morning, Bonnington sketches an ugly picture.  For him, the Defamation Bill is ‘a reasonable set of rules for the modern world’. Rules which Bonnington believes the SNP have conspired to defeat for suspect reasons.  He writes:

“Scots media lawyers have noted with some disquiet that Kenny MacAskill, the Scottish Justice Minister has decided to reject almost all of the Bill’s liberalising provisions and include only one minor subsection.”

“In libel, Scots law is miles behind English law.  That gap is about to become wider still courtesy of Mr MacAskill.” 

He buttonholes this with the suggestion that...

"... the Legislative Consent Memorandum announcing this decision came out in June at a point when the parliament at Holyrood was going on holiday – a ploy possibly aimed at preventing any opposition MSPs from having the effrontery to ask questions about this daft decision."

Bonnington then goes on to summarise the measures proposed in the Bill in warm terms: various new defences and the welcome reframing of definitions of defamation. The sting:

“MacAskill’s policy seems to be to deprive Scots law of these important liberalising and modernising measures – for no other reason than to be different from England.”

Reading this, I thought I’d been seriously remiss.  Bonnington’s trenchantly accusatory piece makes three critical allegations and insinuations. Firstly, he implies that comprehensive defamation reform was put to the Scottish Government by Westminster, to liberalise the law on both sides of the Tweed, to protect freedom of speech and melt the perceptible "chilling effect" of the current law on defamation. Secondly, that the Scottish Government knocked back this request from Westminster, grudgingly instead accepting only a peripheral subsection in their legislative consent motion.  Thirdly, Bonnington suggests that that the Cabinet Secretary’s motives for this limited motion were scurrilous, allowing atavistic legal nationalism to trump a sensible and liberalising reform. As neatly as these allegations fit with certain cherished suspicions of Scottish Nationalists, and as satisfying as Mr Bonnington clearly seems to find it to fulminate and froth against such perfidy, there doesn’t seem to be a breath of truth in any of these claims.

Pick up the Defamation Bill which Ken Clarke introduced to Westminster in May this year on behalf of the UK government. Bounce your eyes down the page, to section sixteen, “short title, commencement and extent”: “This Act extends to England and Wales only”. That seems tolerably categorical. So when and how did Scotland get roped into this, you might well wonder? Bonnington’s brain is haunted by reactionary SNP ministers, haughtily rejecting the overtures of Westminster’s solicitous, sensible modernisers.  If that were the case, a dip into the House of Commons' Public Bill Committee records should surely uncover a word or two about them and their activities, and critically, an amendment proposing that the whole Bill be extended to Scotland. You won’t find one. You can’t. It doesn’t exist. 

Here’s what Jonathan Djanogly, Tory MP Huntingdon and Parliamentary Under-secretary to the Ministry of Justice, contributed on Tuesday 26th June 2012, lodging government amendments which would extend the Bill’s protection for academic publications to Scotland.  Djanogly said:

“Amendments 1, 2 and 3 extent certain provisions of the Bill to Scotland.  The civil law on defamation is generally a devolved area, and the Bill reforms the law in relation to England and Wales only.  However, we have been requested by the Scottish Government to extend certain specific provisions to Scotland, and these amendments are intended to fulfil that request.  The Scottish Government have confirmed that a legislative consent motion will be put before the Scottish Parliament on a timely basis following these amendments being moved in order to secure their consent.”(Col 170)

One doesn’t have to be an honorary professor to see that asking for sections of the Bill to be extended to Scotland isn’t easily constructed as rejecting “the Bill’s liberalising provisions” for the idle sake of being different from the English. To double-check, I rummaged around Holyrood’s archive for June, and up popped the pertinent legislative consent memorandum, from Kenny MacAskill’s hand. The Scottish Government don’t see reform of the Scots law of defamation as a priority, he writes, but having considered extended privilege to scientific and academic activities, it was concluded that:

“…the parity of protection across the UK was desirable given that much scientific and academic research is done collaboratively and without reference to national borders. Therefore, limiting these provisions to England and Wales only could potentially inhibit constructive and robust scientific and academic exchange.” [para 26].

Despite Bonnington’s preferred narrative of nationalist mischief, I can find no evidence whatsoever suggesting that Westminster has ever proposed to Scottish ministers that the Defamation Bill should simultaneously reform Scottish and English law, nor that they ever enjoyed the formal opportunity to accept or reject such a proposal.  You might well think that this is for the bad, and that it would be preferable if Scots law mirrored the English proposals, which will substantially shrink the scope of defamatory speech, and enlarge on the defences available to those sued in particular scenarios.  I have some sympathy with that perspective.

Each man may be guilty of the good he does not do, and the inactivity of the Scottish Government on defamation reform may well be complacent, but the scenario which Bonnington so ill-temperedly promotes in this Telegraph piece is simply fictional. To avoid Bonnington’s wroth, MacAskill would presumably have been obliged unilaterally to ask Westminster to pass defamation legislation for us. The distinction between acts and omissions may be of philosophical interest, but the impression aggressively cultivated by this piece of invective is seriously misleading.