That takes us to the last of the new petitions, PE578 from Mr Donald Mackinnon. The petition is about young and vulnerable people's exclusion from the right of absolute privilege. Members might recall that Michael Russell lodged an amendment to the Protection of Children (Scotland) Bill on the matter, but he withdrew it when the minister agreed to act on the matter. The petitioner calls for the Scottish Parliament to take the necessary steps to extend the right of absolute privilege that is available to those who complain about the conduct of a range of public bodies to young and vulnerable people who report abuse to an appropriate authority.I am pleased to welcome David Mundell to the meeting. I take it that he will say a few words in support of the petition.
Official Report · Committee
New Petitions
Public Bodies (Complainers' Rights) (PE578)
Speakers
Choose an MSP to read only their contributions- Helen Eadie Lab 6
- David Mundell Con 6
- Phil Gallie Con 4
- Dorothy-Grace Elder Ind 3
- Dr Winnie Ewing SNP 1
- Donald Mackinnon 1
The record
21 contributionsYes, but given the lateness of the hour I will say very few words. Mr Donald Mackinnon is present and it is important to say at the outset that his son was involved in a case, although Mr Mackinnon does not seek in any way for the committee or the Parliament to comment on or become involved in that case. He wants to highlight a point where, it appears to me, public policy and the existing civil law of Scotland are not totally consistent. I think that we would all agree with the position to which we have moved, whereby we encourage young people to report incidents of abuse and violence against them. However, that is not wholly consistent with civil law, which allows statements made during the investigation of allegations to be subject to defamation proceedings. Members will probably be aware that legal aid is not available for such proceedings.The situation appears to be wholly inconsistent with a number of other areas of the law. For example, if I were to make a complaint to the ombudsman about the actions of the British Potato Council, nothing that I said about the council or its employees could be used as part of a defamation action. However, statements made by a pupil before a local authority hearing in relation to alleged abuse or violent conduct could be used in a legal action. It seems that the message of public policy on such issues is inconsistent with the basic civil law.As the convener said, the issue has been raised with the Education, Culture and Sport Committee, but on that occasion, the matter was considered in a fixed context. I agree with Mr Mackinnon that the petition would allow the issue to be considered in a wider context rather than within the narrow parameters of a particular bill. The issue is worthy of further consideration.
I absolutely agree that there must be absolute privilege in such cases. Of course, if the allegation is made by a young person to the press and is published, and the young person has not gone through the correct procedures that are available to them, one would have to say that there was evidence of malice.There are many cases of child abuse that we never hear about. If we want more children to report abuse, we must remove the fear that they might have that they will end up being prosecuted in court because of their allegation. When I was at school, there were teachers who should have been reported to the authorities, but we all agreed that we would not do so. We should encourage children to report cases of abuse.When legal aid was introduced in Scotland—since 1424, court practitioners of Scotland had worked for the poor for nothing—defamation cases were excluded for reasons of expense. I believe that that was a bad decision. The saying goes:"Who steals my purse steals trash … But he that filches from me my good name"robs me. It is wrong that we do not have legal aid for defamation cases.On the matter of the children, Mike Russell withdrew his amendment because he believed that he had secured an undertaking from the Executive. Therefore, we should seek to ensure that what Mike Russell tried to achieve is delivered and that there is absolute privilege in cases involving reports of abuse by children.
Is not it the case that a defamation case can be accepted only if it is shown that a deliberate untruth has been told?
There is a difference between the balance of proof that is required in a legal situation and that which is required in an internal inquiry. The civil court requires a different balance of proof and different evidence. Often, young people do not come forward because there was no witness to the act, although a civil action could succeed on that basis.The criteria that people are asked to apply in the civil legal system and in reporting incidents are different. It is important to get the balance right. As Dr Ewing indicated, we should ensure that if evidence and statements are given privilege, malicious attacks are not also protected, and there must be a basis on which malicious attacks can be weeded out. However, at the moment, it seems that the system is set up so that virtually any suggestion that does not meet civil evidential standards makes someone who complains liable to a defamation action.
Are you aware of other incidents whose outcome was similar to the outcome of the Dumfries incident? My constituency experience suggests that the outcome is usually the reverse. Allegations are made, a person is left with a stain on their name and they are never able to prove that the allegations were untrue. People who have had allegations made against them have ended up as victims. Do you have examples of people who have made a complaint being found guilty?
Such cases do not often come to court, as defamation proceedings in the circumstances that you have narrated require to be funded by individuals. If a person goes to court with a defamation action, they must fund it.There are time bars. In the Dumfries case, the time bar was three years. The young person was 15 so when they were 18, they were brought within the legal parameters. There is no suggestion that an eight-year-old child, for example, could be sued, but youngsters in their vulnerable teenage years are open to such proceedings, as they could be brought back within the court system within the time bar.
I want to clarify something. In referring to young and vulnerable people who report abuse to an appropriate authority, are you talking about under-16s?
Yes, because there is a three-year time period in which legal actions must be brought. Often, there is a delay between an allegation being reported to a head teacher and it being reported to the education authority and then going before another body. Each time that the report is repeated counts as the last time from which the three years run.
Are we certain that in other reported abuse cases, adults or over-16s currently have absolute privilege?
No, they do not.
I did not think so. It is obvious that the issue has been raised because of younger people's vulnerability. The case is good. Interruption.
We are bemused by the range of mobile phone tunes. We have just heard the theme tune to "Mission: Impossible".
Is that appropriate for a member of the Conservative party?
You must be a born optimist, especially in the light of today's headlines in the national papers. The Tory party is at its lowest ebb in four years. I am sorry—I did not want to bring politics into this. If members have finished asking questions, we will turn to the action that has been suggested. In view of the recent discussion of the issue in the context of Mike Russell's proposed amendment to the Protection of Children (Scotland) Bill at stage 2, the committee may wish to write to the Executive. We could ask the Executive to comment on concerns that have been expressed by ChildLine, among others, that, in the absence of absolute privilege, pupils may be deterred from raising legitimate concerns about bullying by teachers or other pupils. We could also ask the Executive to indicate whether it is willing to lodge an amendment to the Protection of Children (Scotland) Bill at stage 3 to ensure that children are able to raise concerns about their treatment without the fear of legal action being brought against them, or whether it will consider other appropriate legislative change to address the issue.The committee may agree to pass a copy of the petition to the clerk to the Education, Culture and Sport Committee—for information only at this stage. Do members agree to those recommendations?
It is easy to agree to them, but David Mundell kept using the word "balance", and that is very much on my mind. I know of several cases in which adults appear to have been wrongly accused. I sympathise with the petition's aims, but we must remember to strike a balance. We cannot deal with the matter simply by having the Executive rush through a change to legislation.
That is a fair comment. We could ask how the Executive intends to deal with malicious claims.
Mr Gallie makes a very good point. The issue that he raises should be addressed through rigorous assessment of allegations by the body that is carrying out the statutory function or that is responsible for conducting the investigation and deciding whether disciplinary procedures should be initiated. That is the point at which names should be cleared and at which it should be decided that a false allegation has been made. The disciplinary body can then take whatever action it considers appropriate. That could include reinstatement with an apology to a suspended member of staff and the imposition of whatever penal sanction is available on someone who is found to have made malicious allegations. If that person is a school pupil, they could be transferred to another school or suspended. However, it is not an appropriate public response to have the threat of bankruptcy hang over young people for six years and to have them incur costs of about £80,000.
I sympathise with Donald Mackinnon and recognise that his objective is fair. I have in mind a slightly different situation, in which allegations are made about incidents a number of years after they are supposed to have occurred. Perhaps I am confusing two issues. I accept the point that Donald Mackinnon makes about financial obligations, which are entirely unrealistic.
In our letter, we can ask the Executive what it plans to do in the event that malicious claims are made. Do members agree to the recommendations?Members indicated agreement.
We have reached the end of consideration of new petitions. I thank David Mundell and Mr Mackinnon for their attendance. We will advise them of the outcome of the petition.
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