Chamber and committees

I suggest that, in view of the detailed and helpful response of 22 January 2024 from the Scottish Government civil law and legal system division—aided and abetted, I suspect, by the keeper of the Registers of Scotland—we should close the petition under rule 15.7 of standing orders, on three bases: first, the requirement to validate documents is because the register of deeds is a Scottish public register, so members of the public in Scotland, who might not be familiar with the laws that govern documents in other jurisdictions, should be able to view the register with confidence that the documents that are registered therein are valid; secondly, where an individual chooses to lodge a will in the register of deeds, the requirement to confirm the document’s validity lies with the applicant; and, thirdly and finally, it might be possible for confirmation of validity to be obtained electronically rather than by posting the physical documents to the relevant jurisdiction, which deals with the question that the petitioner reasonably raised initially about what happens if original documents get lost in the post.

I asked because she cancelled an engagement to give evidence elsewhere.

If I might pursue the theme of that last question, convener, is it not the case that there is no doubt whatsoever that SLAPPs are a huge problem and that the number of SLAPPs raised or threatened is enormous? We have heard that time and time again in evidence from lawyers who practise in that area. Earlier this morning, I was reading Graeme Henderson’s submission to the Scottish Law Commission from some years ago. It referred to the huge number of interdict cases that never come anywhere near court because the pursuer—or, more often, the petitioner, because such cases are usually heard in the Court of Session—is financially so much less strong than the defender that they have not a cat’s chance in hell of affording the litigation. That is the whole point.

The Government must surely accept that that is a serious problem, which it cannot measure simply by counting the number of cases that go to court. You must know that, like an iceberg, most of the picture is submerged. You cannot measure it exactly, because there is no record of cases such as those of an oligarch who owns a Russian oil company or a mine owner from Kazakhstan—to pick two of the litigations that are quite prominent in the history of SLAPPs. I just want to establish, minister, that you accept that this is a very serious problem.

Will you answer a further question? It is good news that you have agreed to consult. We all recognise that. However, this is an ancient petition—it is becoming the pensioner of petitions. I am a pensioner myself, so I should not be rude about them, but it is not acceptable that these matters just go on and on. My questions to you are these. Can you say that the Government is supportive of taking action and not just that you will conduct a consultation? Can you say when the consultation paper will be issued? What is your target date? Is it July? Alternatively, is the answer a vague one—“sometime never”—in which case, we might be back here in a year, perhaps with another minister?

I have one last question. One of your predecessors made a reference that I thought was really not apt, which was that it does not really matter because the cost of pursuing an action in the sheriff court is only £25,000. Argument A is that that is £25,000 more than most people have got to pay for a court action and that most people therefore cannot afford that amount, so the idea that people would be able to afford such a sum is ludicrous. Argument B is that almost all of those actions will be raised by way of an interdict in the Court of Session anyway, so it is completely irrelevant to look at the cost of the sheriff court.

I do not raise that to be smart or to criticise anyone, but does the Government accept that that argument should be pushed to one side? The cost of action in the Court of Session is colossal. We are talking about hundreds of thousands of pounds, and no individual, unless they are a millionaire or a multi-millionaire, will go to court. Having practised law for 20 years, I know that. People will not go to court even if they think that they have a cast-iron defence. That is the whole point. It does not really matter whether brilliant defences are set out, as was the case in the Defamation and Malicious Publication (Scotland) Act 2021. That was a good piece of legislation in that regard, as it created a range of defences and protections, but they are not good enough to protect against the real mischief here, which Mr Mullin and his colleagues have clearly pointed out.

I just put that thesis to the minister to get some reassurance for the petitioner that the consultation paper will not duck those questions and that it certainly will not repeat that particular argument.

I know that we are due to take evidence from Nicola Sturgeon a bit later—I think, towards the end of May. Do we have any information about whether she has indicated that she still plans to attend on that date?

Thank you very much.

I suggest that we write to the Minister for Green Skills, Circular Economy and Biodiversity to highlight the petitioner’s evidence, to which you have alluded. In that, as I recall from having briefly re-read some of it, he not only asked for a ministerial statement—which I will come to in a moment—but postulated that the good work that his members and others do in the control of predators in order to encourage biodiversity and a reduction in the number of other species being lost should, perhaps, be recognised financially in the forthcoming decisions about the restructuring of agricultural support in Scotland. I mention that because I think it is an innovative suggestion and one that deserves to be considered.

I would invite the minister to consider that specific suggestion, and I have four other points for her.

First, if she gives a ministerial statement, as Mr Hogg suggested—in which he would like her to recognise predator control and the value of gamekeepers in addressing the biodiversity crisis—I would like to know whether information is available about the costs and outcomes of each conservation method. In her statement on 28 November, the minister dealt with various conservation methods, but I got the impression that she did not prefer predator control, at all; that screams out from the page. Therefore, I would ask the minister to commission research to compare the costs of each method against the outcomes. That would surely assess whether we are getting value for money.

The other points are these: what financial support is available for predator control activity? What is the minister’s view on whether more funding should, as alluded to, be made available for keepers to carry out that work to support conservation aims? Has consideration been given to area zoning to allow for targeted predator control while preventing the widespread removal of species?

First, I wonder whether we might close the petition under rule 15.7 of standing orders on the basis that the Scottish Government is actively considering next steps following the consultation on proposed rules to tighten existing restrictions on the advertisement and promotion of vaping products. Secondly, UK-wide legislation has been introduced to the UK Parliament, and it would extend the powers that are available to Scottish ministers on the regulation and distribution of nicotine products and give them the power to introduce regulations on the display of vaping and other nicotine products.

I thought that it would be useful, in seriousness, to refer to the Government’s response to the petition because of what it said, and now we are 19 months on. Would it not be a completely impossible task for an ordinary individual who is threatened with such a legal action to defend it? As Mr Borg-Barthet quite rightly said, most individuals would just fold, even if they think that they are absolutely innocent of any charge and have a perfect defence against it.

I have one final question. Let us assume that the Scottish Government—which, to be fair, said in its first submission that it was not ruling this out—were to say, “Right, we’re going to solve this problem.” Would it be able to do so through a legislative consent memorandum, or something close to it? In other words, could it rely on, borrow, plagiarise or copy the approach being taken down south, bearing in mind, of course, that it would have to be adapted to Scottish circumstances? In other words, is it a fairly simple task—well, perhaps not simple, but reasonably straightforward—because the work has already been done by others and can largely be translated into Scots law? Is that fair?