The proceedings of the Scottish Parliament, unlike those of Westminster, are subject to the law of contempt of court. No express provision is needed for this because the law of contempt of court and particularly the strict liability rule in the Contempt of Court Act 1981 will apply automatically unless expressly disapplied.
The strict liability rule is defined by section 1 of the Contempt of Court Act 1981 as that whereby conduct may be treated as a contempt of court regardless of intent to interfere with the course of justice in particular legal proceedings. In terms of section 2 of that Act the rule only applies to a publication which creates a substantial risk that the course of justice in active legal proceedings will be seriously impeded or prejudiced. Section 5 of the Act provides that the rule does not apply to publications made during a discussion in good faith of public affairs if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.
Paragraph 1 of Schedule 3 requires standing orders to include provision “for preventing conduct which would constitute ... a contempt of court” and a sub judice rule. This is contained in the Standing Orders of the Parliament.
The present section is intended to ensure that the Scottish Parliament is not prevented from legislating on any matter simply because anything said or done in the proceedings for the purposes of considering a Bill or subordinate legislation might be treated as a contempt of court under the “strict liability rule”.
This section forms part of a group of sections which afford some protection to proceedings in the Parliament. It is possible for the Parliament to modify sections 40-43 and to make its own provision about such protections - see paragraph 4(2) of Schedule 4.