Justice 2 Committee, 18 Mar 2003

Meeting date: Tuesday, March 18, 2003

Official Report 179KB pdf

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Petitions

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Asbestos (PE336)

I will go through each of the petitions to establish their status. However, first we need to discuss the important matter of petition PE336, which concerns asbestos poisoning. To find out what progress has been made on that petition, committee members should refer to a note on last week's meeting with the Lord President and to the final practice note that has been issued.

Bill Aitken, the clerks and I met Lord Cullen and others over the past month to convey the committee's support for the principles behind the petition. I think that we have made some progress, although it is up to the committee to determine whether that is the case. I will set out the main points, after which Bill will no doubt want to add some comments. I would appreciate it if we could then discuss the matter so that I can hear the committee's views about the petition's progress.

I should point out that, although the matter was first raised in the petition, it has now been the subject of a committee report and is therefore part of the committee's general work load. In its report, the committee recommended that the timetable for diets of proof should be shortened to six months and that a judge should preside over proceedings six weeks before proof.

Members will have a copy of Lord Cullen's letter, which explains his attitude towards those recommendations. He says:

"I have carefully considered the Committee's recommendations in regard to the procedure in mesothelioma cases and other cases with similar characteristics. I entirely agree that, in view of the short life expectancy of the pursuers, such cases should be brought to a conclusion, whether by settlement or judgment, as speedily as possible."

He also recognises the amount of time and effort that the committee has devoted to the matter. Although he has some doubts about our recommendation on shortening the timetable to six months, he has taken our points on board and has produced the practice note accordingly.

Members will be aware that, under new rules, a diet of proof has to take place 12 months from the date on which the case is raised and that rule 43.8 allows for either party to apply for the variation of the timetable. However, it has been made clear that any extension beyond those 12 months is unlikely.

It is important to point out that the proposal in question centres on rule 43.8. As a result, we sought clarification from the Lord President about what the rule would mean in practice. He made it clear that references to cases of terminal illness have been introduced as a matter of policy and the factor should weigh significantly in the court's decision. He also explained that as each case will vary it would not be appropriate to take anything away from the judge's responsibility by specifying a particular timetable. For those reasons, he did not agree to our recommendation for a six-month timetable. I should make it clear that we strongly emphasised that the committee wanted to achieve such a timetable. We still feel that a judge should be involved in the proceedings to ensure that the parties are ready.

I refer members to the practice note itself, which if accepted sets out the rules that judges will adopt. One departure from our suggestions is that the procedure is to be adopted for all parties who have a terminal illness who apply for a variation to the timetable, even where the illness is not necessarily related to the action. The Lord President felt that we could not distinguish between those who have a terminal illness that is related to the action and those who simply have a short life expectancy. I agree that that is a fair way in which to proceed.

Members can read through the rules. Rule 43.1 is about application and interpretation, rule 43.2 is about summons and pleadings and so on, but the heart of the matter is the variation of the timetable. We pressed hard on what will happen when parties apply for a shortening of the timetable. We wanted to know whether it will be possible to achieve a six-month timetable and were told that it will be. However, if the judge determines that the process might take a bit longer, it will be their prerogative to say that a seven or eight-month timetable is required. It is important that members read the Lord President's notes, but I wanted to let members know that we pressed strongly on that issue. I believe that we are near to achieving our objectives. The practice note will allow for the possibility of a six-month timetable, although where it is shown that that cannot be achieved, the timetable might be slightly longer—that will depend on the complications of the case.

I have a doubt at the back of my mind about whether, given the short timetable, there should be a point at which parties go to the judge to ensure that they are prepared for the proof. We pressed that point with the judges, but they are not keen on it for several reasons. One reason relates to the resources of the court; another is that judges feel that, as the timetable will accelerate all the processes, the judges will be hard on parties who are not prepared. If a six, seven or eight-month timetable is agreed, the parties will be expected to adhere to it.

The petitioners and the committee are concerned about parties who will not be affected by the new rules and who will have to undergo the procedure under the old rules because we cannot change the rules halfway through proceedings. It is the judges' view that, by dint of the dynamics of the new rules—both the Coulsfield rules and the new shortening of the timetable where a terminal illness is involved—the existing cases will be accelerated. Lord Mackay will continue to conduct the by order hearings for a certain period to ensure that the systems are fast tracked.

The matter is to do with policy. We questioned the wording of the practice note, because at first read it seems to be in casual or loose language—for example, it states that the court must

"look with considerable sympathy on"

such requests. However, we have been assured that no judge would contravene such phrasing in a practice note because it is deemed to be policy and is instructed by the Lord President. We mentioned that, to a lawyer, the wording does not mean anything, but we were assured in lay person's terms that the wording is the language of the judiciary for saying, "This must be done."

We had a hard discussion and I believe that we achieved a lot—although that is for the committee to determine.

The process has been interesting and a lot has been achieved. When the matter first came to the committee, there was tremendous sympathy for the people who were in such an unhappy position. The committee was determined to ensure that something was done and I am convinced that we have achieved that.

The crux of the matter is defined in rule 43.8 of the practice note that the Lord President proposes to issue. The convener was correct to point out that she and I were a little dubious about some of the language that was used. We felt that it could have been more specific and harder, to ensure that applications for an acceleration of the timetable would be dealt with in the manner that we would have wished.

However, I draw the committee's attention to the wording, which states that the court would

"look with considerable sympathy on"

any such applications. The word inconceivable is perhaps too strong to describe the situation but, frankly, having heard the Lord President's explanation, I think that it would be extremely unusual if the process did not go on along those lines. It should also be highlighted that any individual or party opposing an application for acceleration must

"demonstrate that their opposition is well founded"—

to use the words that are contained in practice note number 2. There is also an appeals provision in the event of either party feeling that they have not received satisfaction in that respect.

This issue is also likely to remain live in the Court of Session. One of the procedures that was outlined in the Coulsfield rules was that a users committee could be set up. Such a committee will obviously keep the situation under constant review, particularly in the early months when people will necessarily be finding their feet.

That leaves simply the outstanding cases that are already in the pipeline. As members are aware, on separate occasions the convener and I attended Lord Mackay's court to see what happened there. From our observations it is clear that he is making every effort to expedite matters. Delays were not exclusive to the defenders; the pursuers also had to take responsibility for delays from time to time.

All in all, our work on this petition has been worth while. Clearly, and ideally, we would have wished to see all those cases disposed of within six months, and some of them may well be. We have achieved a result that will in turn inevitably mean that those cases will be dealt with on a fairer and more expedient basis than has previously been the case. That is as a result of subtle pressure that was recognised as being worth while and that received a receptive hearing from the Lord President and the others whom we met.

The convener, Bill Aitken and the Lord President are to be commended for what they have done on this petition. We have reached the point that is precisely where we would have wanted to end up, and we have the commitment that matters will be expedited as quickly as possible.

Practice note number 3 states:

"Practitioners are reminded that in any personal injury actions which have been raised under the existing procedures … it is possible for a party to seek an early or accelerated diet of proof or jury trial, where there is good reason for doing so."

Does that relate to cases prior to April?

Yes.

What is the difference between that position and the new procedure?

The difference is that the new procedure will apply under rule 43.8. The judge must consider that as a matter of policy and must look with sympathy on applications and on the applicant's circumstances. It is a stronger provision.

Once that policy has been decided different procedures do not necessarily mean that those cases prior to April will be leapfrogged in the process. Is that correct?

No.

Just for clarity, the other difference for the cases before 1 April is that the Coulsfield provisions will not apply. Those cases will not automatically be timetabled and the procedure will not be truncated in that way. There will not be things like the meeting between the parties prior to the hearing. All the procedures that have been put in place to accelerate things in the Coulsfield provisions will not exist for those cases.

But for those who are in the pre-April category, the fact that the other cases will take place on a truncated time scale will mean that the queue is shorter and the wait is shorter so everybody will benefit. However, there is no possibility of changing the pre-April regulations.

That is right.

Inevitably, the fact that the more recent cases are being dealt with in this manner will have a knock-on effect.

The by order hearings conducted by Lord Mackay can still proceed for the cases that are pre-April, so that has been successful so far in shortening the timetable.

Okay. That is fine.

Ultimately, what we detect—we can get only a sense of what we think is going on—is that the will is there to speed up the pre-1 April cases. However, the provisions do not back that up if parties are dissatisfied.

I appreciate that. My other question is about the dispute that might surround an application for an accelerated diet and Bill Aitken's comments about rule 43.8, which states:

"Any party opposing such an application will be required to demonstrate that their opposition is well founded."

Do we have any greater understanding of what that means? What is the most likely scenario?

We spent a lot of time asking what that meant. A flavour of what was said to us is that judges would expect a damn good reason from the defence if it did not believe that a short timetable could be achieved, given that the policy is about applying a short timetable for a reason—that the person's life expectancy is so short.

That is fine. I was just curious.

You have asked the same questions that we asked.

I do not doubt it.

I have one final question on whether the process works. Is there any facility for keeping a note of the statistics? Is there on-going research so that we know whether the process works and whether we need to review it further? I do not know whether such research would be done in conjunction with the Executive and the courts.

The Executive has offered to do that. I think that, in concluding the matter, we should make it clear that the committee expects to work with the Scottish Executive and the judiciary to review the practices. I do not know whether we want to suggest a timetable, but that must be our strongest point. We currently have to trust that the legal process will work. At an appropriate point, someone must examine the process and consider the relevant statistics.

Who is responsible for the collation of the statistics?

The Scottish Executive has offered the services of its research department to help with that, but it is a matter for the court.

The users group is also involved. It will be representative of all parties and will have the figures before it. We should be able to tap into that.

Is this part of our legacy paper? Does the paper already state that there will be an on-going review?

The legacy paper will have to be updated in the light of this discussion.

In that case, I am happy to support that approach.

We will state in the paper in the strongest possible terms that there will be an on-going review.

We are trying to arrange a meeting this week to make the petitioner aware of both what the Lord President had to say to us in his letter and what the committee has now agreed. The meeting is likely to be on Thursday. We are clear that we must now talk to the petitioner. It is helpful if committee members feel that the objectives in the report have been achieved.

Members indicated agreement.

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Paedophiles (Sentencing) (PE490)

Petition PE490 is on sentencing of convicted paedophiles. The committee did not invite any further action on that petition. I guess that the committee does not want to refer it back to the Public Petitions Committee.

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Fishing Industry (Fixed Quota Allocations) (PE365)

Petition PE365 is on a review of fixed quota allocations and property rights in respect of Scotland's fish stocks. Do members want to refer that petition back to the Public Petitions Committee?

Members indicated agreement.

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Judiciary (Freemasons) (PE306)

Petition PE306 is on freemasonry and the judiciary. The committee decided that it did not want to take further action, but invited the petitioner to provide more information, which has now been provided. What is the committee's view on whether the petition should be referred back to the Public Petitions Committee?

I am content that the issue has been exhausted.

I concur.

Unless any other member is otherwise minded, I do not propose to refer the petition back to the Public Petitions Committee.

There is one question that I need to put to the committee on this issue, which is whether the committee is minded to publish Mr Minogue's evidence, given that we invited him to submit it. I have been advised that our legal department has some concerns about the contents of that evidence. The petitioner is pressing for his evidence to be made available on the web, but, having read through the evidence, the committee might want to take a view on that.

On whose shoulders would the liability lie in law if we were to publish the evidence in its entirety?

My understanding is that a number of issues arise, one of which is possible defamation. The Parliament is protected in relation to that. Nevertheless, it would be for the committee to decide that it was happy to publish. There is a separate issue to do with the Data Protection Act 1998. My understanding is that the Parliament will be liable if it publishes something that breaches that act, and that there would need to be some editing of the submission to comply with that act.

I therefore propose that, based on the legal opinion, the evidence be edited or those parts that relate to potential breach of the Data Protection Act 1998 be excised, but that otherwise it be published. If the petitioner, having been apprised of the legal opinion that there may be defamation, persists in wishing to publish the evidence, it is for him to consider the consequences. I propose that we publish.

To be clear, my understanding is that if the evidence is published as a parliamentary proceeding, the protection extends to the petitioner as well.

In that case, I recommend non-publication.

We have to be careful about this. My take on it is that to publish half the paper would be to stoke the fire still further. I suspect that we should simply say that if the petitioner wishes to publish the evidence, distribute it or put it on his own web page, so be it, but it is not something with which the Parliament should be associated.

I am sympathetic to the principle of the petition, but the committee decided that it was not, and that is the status of the petition at the moment. We invited the petitioner to produce information. I have an open mind on that, but the evidence that has been produced is not the kind of information that I was looking for. I was quite surprised to read some of it.

The point is that if we make an active choice to extend parliamentary privilege to something that we are sceptical about, we do a disservice.

So the committee is agreed that we will not publish the evidence.

In closing our last meeting, I wish to put on record my thanks to all members of the committee. I have enjoyed my time here. I know that you have all worked really hard and have really thought about all the pieces of legislation that have been before us. It has been a small committee. It has been a bit hairy at times, in terms of getting everybody here. I know that tremendous pressures have been placed on members, because we have met twice a week at times—we have done so more than any other committee—but it has worked well.

It goes without saying that I speak for all the committee in thanking the staff and the clerks.

Hear, hear.

They have managed to do the impossible sometimes in deciphering all the decisions that we have made. I thank them very much. Perhaps when the meeting closes we will discuss when we can show our appreciation to them over a drink. I wish them all the best of luck for the future. They have all done a great job.

Before we close the meeting, it would be appropriate to associate myself with your comments. This has been a tremendously good committee. We have frequently disagreed—that is political life—but no one could doubt the commitment of individual committee members to apprising themselves thoroughly about what they are doing. Every member of the committee has made significant input into every matter that has come before the committee. It has been a personal pleasure for me to work with you all.

In conclusion, some word of praise inevitably is due to you, convener, for the way in which you have conducted proceedings. You have done so in a professional and fair manner. When the Faculty of Advocates records within its letter that it sent us on our legacy paper that the committee has been impressive, much of that reflects on you. This has been a very good committee, which has contributed a great deal to the Parliament. It has been a success story.

Thank you.

I would like to reflect on what has been said by my two colleagues and political rivals, and agree with them that the committee has worked well. I have thoroughly enjoyed my time here. I still have not quite worked out why my party managers put me on this committee, based on my previous experience and knowledge, but the committee and its work has greatly expanded them. I thoroughly enjoyed it. As I do not wish to see myself quoted in anyone's election address, I will stop short of personal praise, but you know how much I admire my colleagues and their efforts.

It is amazing the things that we have learned about one another, and the things that I have learned about you, Stewart, and all the jobs that you have had. Sometimes I listen to you and think, "How could you possibly have done all those jobs?" but I was grateful that you were an advanced driver when you took us down to Stornoway.

I was always just worried that he had a problem holding down a steady job.

I also thank the official report. I cannot imagine what it must be like keeping up with what members say. Thank you.

Meeting closed at 12:31.