Today I watched the evidence given to @SP_Justice on Tuesday on behalf of @Lawscot and @FacultyScot on the Defamation and Malicious Publication (Scotland) Bill. Lots of really good points from both witnesses. Firstly, on the issue of serious harm and why we're simply adopting an

English solution to an English problem. As was pointed out the Scottish Parliament started in 1999 with the idea of finding Scottish solutions to Scottish problems. The nuisance that the serious harm test in English and Welsh law was seeking to address simply doesn't exist in

Scotland. Indeed, one of the reasons why the Bill may be necessary is that there is a lack of cases in Scotland which is hampering the development of the law. If the problem is a lack of litigation, why are we then inserting a provision designed to deal with a problem

of meritless and vexatious cases? This goes back to comments I made last week on evidence given on behalf of BBC Scotland where not being aligned with England and Wales was identified as a problem for no discernible reason other than it just was. This is an interesting point

because the Policy Memorandum accompanying the Bill recognises that the law in Scotland and England and Wales "has different conceptual origins" and that " the English jurisprudence is not always a perfect fit" This also then feeds into a question raised by the Convener of the

Committee on the jurisdiction provision within the Bill. There are already rules about jurisdiction of actions. (Indeed, Scots law is widely credited with being where the concept of "forum non conveniens" originated). If an issue is a lack of cases why are we looking to place

further restrictions on who can litigate in Scotland? It's a solution without a problem. Moreover, as Duncan Hamilton, Advocate, pointed out in his evidence why should Scotland be "terrified of having litigation". You don't see that attitude in other countries; indeed, a lot of

work is going in to convincing people that London is still a place that people should litigate. Why are we not pushing Edinburgh (or elsewhere in Scotland) as an attractive place to litigate? Of course, a balance has to be struck; however, when it comes to defamation actions

there is no issue with the courts being over-run with them, let alone with actions with nothing but the most tenuous connection to Scotland. Both the Faculty and the Law Society suggested that the Bill is shifting the balance in favour of Freedom of Expression over the right to

a private life and the protection of reputation. I agree that this is what the Bill appears to be doing; that may or may not be a bad thing: both positions are legitimate. I agree though that Parliament has to be aware that this is what the effect of the Bill is. It's ultimately

a political decision, but it's an effect that should not be arrived at by accident or in circumstances where Parliament is under a misapprehension of what the Bill is doing.