The amendments in the group are all quite significant, so there is a lot to address. The convener will need to forgive me—I will get through this as quickly as I can.
I will set out my thinking on amendment 10, which is in my name, and on the key differences between the definition of vulnerability in that amendment and the alternative definitions that have been set out by Ms Baillie and Mr Wightman. I will then turn to Ms Baillie’s amendment 40.
How we define “vulnerability” or a “vulnerable consumer” is at the heart of the bill and of the aims of the new body. That is why it is so important that we get it right. The Government’s amendment 10 responds to calls for us to be more open by reflecting the fact that vulnerability is not fixed. We took on board the reality that it is not dependent on characteristics alone and that we cannot assume that a particular characteristic will always result in vulnerability. Instead, vulnerability is based on context and individual circumstances, and can vary for people over time. Indeed, almost all of us will be vulnerable at some point—for example, because of bereavement or because of lack of expertise in complex matters.
I thank everyone who made those points in evidence to the committee or during the stage 1 debate. I am especially grateful to Jackie Baillie for pointing us in the direction of the Scottish Legal Complaints Commission’s definition of vulnerability. My amendment 10 utilises that definition as the basis of what we seek to define as a “vulnerable consumer” in the context of the bill. In doing so, amendment 10 makes it clear that vulnerability can be about a consumer’s characteristics, their circumstances or both. It also recognises that circumstances and characteristics can be permanent, long term or short term.
On Andy Wightman’s point, I have seen the Competition and Markets Authority’s suggestions in relation to what a typical consumer, in contrast to a vulnerable consumer, might look like. Members could reflect on the fact that the CMA also suggests that it could be left to consumer Scotland to define that in the course of its activity. However, I am happy to look further at the matter.
On amendment 2, although Ms Baillie and I have sought to achieve similar aims, I believe that the Government’s amendment 10 responds more closely to the committee’s recommendation. In particular, Ms Baillie’s amendment would maintain the list of circumstances, such as age and disability, that gave rise—rightly so, I have concluded—to some of the initial criticisms. I believe that providing a principles-based definition of vulnerability, without prejudging the types of vulnerability that it might cover, is the neater solution.
Beyond the list, the Government’s amendment 10 differs in two other significant ways. First, my amendment does not include the criterion that defines a “vulnerable consumer” as one who is
“less able ... to protect or represent their interests in the market”,
which is in the Scottish Legal Complaints Commission definition, and is included in Ms Baillie’s amendment 2. I chose to remove it on the ground that it is quite limiting. A consumer who struggles to represent their interests might experience harm as a result, but that represents only one possible cause, when there might be many.
Therefore, I moved away from the causes of harm, and instead included the harm that consumers are most likely to experience: having “fewer or less favourable options”. To ensure that consumer Scotland can act pragmatically, amendment 10 will require only that circumstances or characteristics “may” mean that the person has
“significantly fewer or less favourable options”
than the “typical consumer”. That means that consumer Scotland will be able to act without needing to prove that harm is definitely occurring. We have also included a catch-all provision for harm that is not captured by that most likely cause.
The second difference is that my amendment 10 will also work with the possible extension of the definition of “consumer” to include small businesses, which we will come on to discuss later. In contrast, Ms Baillie’s amendment 2 lists only individuals as examples.
For those reasons, I believe that the Government’s amendment 10 represents what stakeholders and—if I have correctly interpreted what the committee sought from a new definition in its stage 1 report—the committee want.
Andy Wightman’s amendment 25 seeks to change the label “vulnerable consumers” to “consumers experiencing vulnerability”. I fully appreciate and understand why he has proposed changing the language. By changing the emphasis as he suggests, he is—I think—seeking to send a message that consumers are not defined by vulnerability, and that they are not vulnerable at all times. However, although I support the motivation, I must note that the term “vulnerable” is used throughout the statute book, including very recently—in the short title, no less—in the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019. We should not upend that convention without a very good and clear reason for doing so. If changing the label were the only way to clarify our view of vulnerability, we might have such a reason. However, it is clear from the definition that I propose that the bill refers to circumstances and context, which are crucial.
However, if there is a strong feeling across the committee that more needs to be done to clarify that consumer vulnerability can fluctuate, that can be included in the explanatory notes, and I am happy to commit to doing that.
I cannot, in any event, support amendment 25 because it directly conflicts with my amendment 10, which continues to define “vulnerable consumers”. There is also reference to that term in section 13. I therefore urge Mr Wightman not to press amendment 25. However, if he is minded to explore the matter further in conjunction with the Government in order to find a way that would work, and which would adopt consistent language throughout the bill, I would be happy to work with him to that end.
Mr Wightman’s amendment 26 includes a different and very thoughtful list of examples of what might be felt to constitute vulnerability. However, the central criticism still applies: a list runs the risk of encouraging expectations—within and outwith consumer Scotland—of what “vulnerability” means. In contrast, the Government’s amendment 10 makes it clear that vulnerability is about a comparison with the typical consumer, and does not make assumptions that people in particular categories will, or will not, definitely fall within the definition of “vulnerable”.
Amendment 10 will also remove the perception that listed characteristics will be privileged over others, and it will leave equal space for a range of foreseeable and unforeseeable circumstances. That is not to say that we cannot supplement the explanatory notes with examples of vulnerability, if that is considered to be desirable. Mr Wightman’s list would be an excellent starting point for that. That might strike the right balance through ensuring that the bill is not prescriptive and that guidance exists.
Finally, on Jackie Baillie’s amendment 40, I am fully supportive of everything that Ms Baillie is seeking to achieve, so I commit to ensuring that she is successful at stage 3. With that assurance, I urge her not to press the amendment and to relodge it in a slightly different form.
I will explain why. I would be happy for subsection (b) in amendment 40 to apply to the consumer welfare report; indeed, if that suggestion had been presented as a specific amendment on its own today, I would have urged the committee to support it. It is extremely sensible for a body that has been asked to pay particular attention to the interests of vulnerable consumers to demonstrate how it has done so. When we come to stage 3, I will support such an amendment to section 16.
However, in relation to the proposed subsection (a) in amendment 40, I do not think that the welfare report is the correct place for ensuring that consumer Scotland’s board reflects the views of vulnerable consumers, nor is that something that consumer Scotland is obliged, or even able, to ensure. As such, asking it to report on how it has done that will not achieve the desired results.
Instead, because ministers will approve appointments to the board, I argue that they should be responsible for ensuring that membership aligns with the priorities that we have established for the body in legislation. I note that there is already precedent for that: paragraph 14 of schedule 1 of the Social Security (Scotland) Act 2018, for example, sets out criteria that ministers must have regard to when making appointments to the Scottish Commission on Social Security.
If Ms Baillie does not move her amendment 40 today, I will work with her before stage 3 to ensure that we find wording on the board’s membership that will ensure the outcome that she seeks. As I said, I will also support her if she lodges another amendment to section 16 that ensures that the consumer welfare report will set out how consumer Scotland has had regard to the views of consumers with vulnerabilities.
I apologise for taking some time there; however, the convener will appreciate that the matters are fairly detailed and complex.