I apologise that, despite this amendment being in the last group of amendments, albeit that it is in a group on its own, it is likely to be the one that I have to speak to the longest.
I agree with Gordon Lindhurst’s sentiments and do not demur from the points and principles that Mr Leonard has laid out with regard to the necessity of considering communities of consumers. I would have been very happy to have discussed this matter in more detail with Mr Leonard to ensure that his concerns were addressed. I think that I made that offer but, unfortunately, we did not have that opportunity. I would have been happy to speak to Mr Leonard.
The bill identifies the consumer as an individual and the small business as an individual small business. Inevitably, when consumer Scotland takes forward its work, it will look at it on the basis of how it impacts individuals and small businesses plural. The concerns that Mr Leonard has laid out are already encompassed in the definitions that are set out in the bill.
In the amendment’s literal interpretation, I believe that there are significant challenges. In brief, they are as follows. First, the bill has already been significantly amended to widen the definitions of “consumer” and “business”. As I have said, in doing so, that will already capture many of the community bodies that are included in the amendment. Secondly, almost as a direct consequence of the first point, there is a risk that we will send a confusing message that other small organisations are not captured, precisely because we have carved out a particular reference to community bodies, when small community bodies are already caught by the existing provisions. Thirdly, by including community bodies regardless of their size, it potentially privileges medium-sized community bodies over other comparable organisations, such as medium-sized charities, without a clear rationale for doing so. Finally, and linked to my first point, the definition of “consumer” has already been significantly altered and we run the risk of overcomplicating and diluting it to the point of being difficult to exercise meaningfully.
I will say a little about each of those points in turn, and I will be as brief as I can. I will set out broadly what the term “community body” means under the Land Reform (Scotland) Act 2003. Section 34 of the act defines it as a body whose main purpose is consistent with furthering sustainable development and is a limited company; a Scottish charitable incorporated organisation; a community benefit society; or a body of such other description as may be prescribed.
At stage 2, the Consumer Scotland Bill was amended to widen the definition of “consumer” to include a business that is no larger than a small business. The definition of “business” in section 23 of the bill was also amended to include “a not for profit enterprise”. For the purposes of the bill, that means an organisation that a person might reasonably consider to exist wholly or mainly to provide benefits for society. A Scottish charitable incorporated organisation and a community benefit society therefore ought to already fall within the definition of a “not for profit enterprise”, and a limited company would ordinarily fall within the broader definition of a “business” anyway.
Therefore, provided they are small, all those bodies are already covered. If small community bodies are already captured, there is no value in an amendment to clarify that they are captured. Indeed, doing so with a definition that limits community bodies to those with purposes that are consistent with sustainable development has the potential to have the opposite effect. It could suggest that charities and other small community bodies with a different purpose will not be caught by the existing definition of them as businesses by virtue of being “not for profit enterprises”.
It is important to remind ourselves that we are making law here. It is always subject to legal interpretation, and that could be an unintended consequence were this amendment to be passed.
I turn now to the next difficulty that I have with the amendment. It does not limit the definition to small organisations, in contrast to existing provisions around small businesses. The definition of community bodies that the amendment uses requires that the bodies must have a minimum of 10 members, but it sets no upper limit.
The fact that membership has to be confined predominantly to a community does not guarantee that the organisation will be small. As an example, under the Community Right to Buy (Scotland) Regulations 2015, a community defined by a postcode could include everyone who is entitled to vote in Edinburgh with a postcode beginning “EH”. I am not picking on Edinburgh particularly; that would also stand for other postcode areas.
I of course understand the point—and I reemphasise it—that consumers within a geographical area could have a common interest, and they are already encompassed within the definition in the bill, as amended at stage 2. However, it is important to note that, when we apply what is laid out in Mr Leonard’s amendment, we are talking about organisations rather than communities per se. Whether or not it is intended to, the amendment therefore allows for the inclusion of bodies that are not small, which is also problematic. It would mean that medium-sized organisations would be considered consumers, but only if their purposes are consistent with sustainable development. That would privilege medium-sized bodies with that goal over many medium-sized businesses and charities with other equally laudable objectives. There is, I believe, no clear rationale for doing that.
Finally, as I have noted, amendments at stage 2 already significantly expanded the definition of consumers. Amendment 23 would be a further expansion, which could give weight to the argument that we have moved away from the idea that was originally consulted on prior to the introduction of the bill.
It is important to remind ourselves that the amendment, if agreed to, would also apply to the consumer duty. Public authorities, including local authorities, would have to consider community bodies—regardless of size—as part of discharging the duty. That has not been consulted on, and its timing now means that there has been very little opportunity to understand the practical impact of adding that to the definition. For all those reasons, despite recognising the good intent behind it, I urge Mr Leonard to withdraw his amendment at this stage.
As I have laid out, I believe that many of the organisations that Mr Leonard seeks to protect would already be covered by the bill and that the idea of community interest, which I agree with, is already encapsulated within the applicability of the individual consumer being multiplied to consumers, plural, as it will be in consumer Scotland’s interpretation of its work. I hope that that provides Richard Leonard with some reassurance, and that he withdraws his amendment. However, if he presses it, I urge members to vote against it.