Proposed Damages (Scotland) Bill
Bill Butler has lodged a draft proposal for a bill on rights to damages in respect of personal injuries and death and a statement of reasons for not consulting on the proposal. The Parliamentary Bureau has referred the draft proposal and statement of reasons to the committee. At present, all that the committee is asked to decide is whether it is satisfied with the reasons that the member has given for not consulting on the draft proposal.
Standing orders do not permit Bill Butler to participate as a committee member in making the decision, and Dr Richard Simpson MSP is attending in his place. As Bill Butler is not attending this item in his capacity as a committee member, I welcome him as a witness. He is accompanied by Sarah Robertson from the non-Executive bills unit. I invite Mr Butler to make a brief opening statement.
Thank you, convener. It is good to be here and to see the Justice Committee from a different vantage point.
Members will know that the legislation on damages in respect of death from personal injury is the Damages (Scotland) Act 1976. Two types of claims for damages arise on the death of a person from personal injury—the victim's own claim, which can transmit to his or her executor, and a claim by the deceased's relatives.
The Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 changed the law on claims for damages when a person dies of mesothelioma. As a result, the deceased's immediate family can now claim damages for non-financial loss, such as loss of the deceased's society, support and services, even though the deceased might have obtained damages or settled their claim before they died.
When the Scottish Parliament debated the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, the then Scottish ministers decided that some aspects of the law of damages for wrongful death merited further examination. The Scottish Law Commission was asked to review the law and particularly the provisions of the 1976 act. In its "Report on Damages for Wrongful Death", which was published on 30 September 2008, the SLC concluded that some areas of the law no longer reflect the economic realities of modern family structures and that reform is advisable. It also said that reform is necessary because the 1976 act has become overcomplicated and contains inaccuracies because of the numerous amendments that have been made to it. I therefore contend that there is a need for the proposed legislation.
On the need or otherwise for further consultation, as members know, the Scottish Law Commission published its "Discussion Paper on Damages for Wrongful Death"—discussion paper 135—on 1 August 2007. The paper attracted 15 formal responses, the majority of which supported reform in the areas under discussion. The SLC adopted those views, which informed its final recommendations. It analysed all the responses and published its "Report on Damages for Wrongful Death" on 30 September 2008. The discussion paper and report can be viewed on the Scottish Law Commission's website.
I do not believe that further consultation is required, for the following reasons. The Scottish Law Commission carried out a wide consultation that was robust, open and transparent. It ensured that the consultation paper was specifically targeted at certain organisations in an attempt to attract impartial analysis. Key stakeholders and members of the public had further opportunities to express their views on the proposed subject matter as the discussion paper has been available on the SLC's website since August 2007. There have been no developments or changes in the damages system in Scotland since the consultation ended, so there is no reason to issue another consultation paper on the same issues that were comprehensively covered in the SLC's discussion paper.
I consider that further consultation on the same proposal would duplicate effort and incur unnecessary cost and could create the impression of overconsultation. My view is that we should not send out the proposal for consultation again; that would be a public expense that would not be appropriate. We would have to start the whole process over again, and we do not need to do that.
The proposed major reform would simplify the way in which patrimonial loss to the deceased's family is calculated. The reform is sensible, would save legal costs and would result in the speedier and just resolution of cases. I therefore request that the Justice Committee considers my statement of reasons and confirms that it is satisfied with the reasons for not consulting further on the draft proposal.
Thank you, Mr Butler. Do members have any questions?
I understand where Mr Butler is coming from, but does he accept that we are dealing not only with the question of support or otherwise for the bill, but with the need to tease out the implications of some of the bill's proposals at a time when other legislation is imminent? Consultation in the normal way is laid down in the rules for a reason. I am a little concerned that even when we scrutinised the recent Damages (Asbestos-related Conditions) (Scotland) Bill, several matters came out of our discussions that might have been dealt with more easily had the Government carried out a full consultation on the bill. Do such considerations not apply many times over to the more complicated issues with which we are asked to deal in the proposed bill?
As always, Robert Brown makes an important and serious point. He prays in aid the recent Damages (Asbestos-related Conditions) (Scotland) Bill, but that bill is not comparable with my proposal. If I may say so, that bill did not arise from about two years of deliberation by the Scottish Law Commission, including a discussion paper—number 135—to which I have referred, and a report—number 213—and interested parties were not consulted on it, either directly or through their lawyers. The Damages (Asbestos-related Conditions) (Scotland) Bill did not attract a broad consensus, whereas there are indications that the Law Commission's report does. The Damages (Asbestos-related Conditions) (Scotland) Bill was not commissioned by the Scottish Executive, now the Scottish Government, from the Law Commission, whereas the Scottish Law Commission's report, which was issued in September 2008, was and is available to all, including those in the Scottish Government. Therefore, I do not think that that bill and my proposed bill are comparable.
The Scottish Law Commission's report sought, as extensively and comprehensively as possible, views from interested parties. I draw members' attention to the fact that Lord Drummond Young, who chairs the Law Commission, is a Court of Session judge, and I know that Court of Session judges ensure that analysis is as comprehensive and detailed as possible.
There is no need for further consultation on my proposal because nothing has changed since the Scottish Law Commission report was published in September last year. Therefore, the same salient issues remain.
Mr Brown was absolutely right that the question is not whether members support the policy behind the proposed bill; the question is simply whether there has been adequate consultation. If we say that there has been, why then put the proposal out for further consultation? We do not need to do that; there is enough in the Scottish Law Commission consultation.
From some of the submissions from insurers, it is clear that they have misunderstood the process, but today is not the end of that process. If the committee agrees that it is satisfied with the statement of reasons, which deals with the need or otherwise for the proposal to go out to consultation, this will be just the beginning of the process. We will have to seek the support of 18 members of the Parliament and, within the same 30-day period, the Scottish Government must say whether it agrees with the principles of the bill. Then we have to go through the call for written evidence, interrogation at stage 1, and the stage 2 and stage 3 amendments. The whole panoply of the Parliament will be engaged in the process and there will therefore be a chance for further interrogation. Although I accept that Mr Brown has made a serious and important point, I do not think that my proposal is comparable with the Damages (Asbestos-related Conditions) (Scotland) Bill.
I will pursue the point, if that is all right, convener. Mr Butler mentioned the paper that he has put before us, which says, at the end, that the new formula
"has been approved by lawyers who represent the families of deceased persons and the defenders' insurance companies."
I am not entirely certain who was involved in providing that approval, because we have a wad of papers that suggests that agreement has not been reached with the insurance companies. Approval across the board is one thing, but a situation in which there is contention about such matters is slightly different. Can Mr Butler give us any background to the apparent discrepancy between what is in his statement of reasons and the documents that we have received from the insurance companies' representative bodies?
The e-mail from the Forum of Scottish Claims Managers of 27 May 2009, which members have before them, demonstrates that the forum has been consulted. It says that it
"contributed to the consultation process by submitting a detailed written response in relation to the draft proposals."
Moreover, it fails to indicate how any submission that it might make to a further consultation might add to or differ from its original submission.
With regard to the memo from the Association of British Insurers by Briony Krikorian, I have to say that it is surprising that the ABI has not been aware of the proposed bill. Given that the Scottish Law Commission published its report together with a draft bill some time ago, I would have thought that the ABI, like everyone else, would have been aware of it.
The original response from the Forum of Insurance Lawyers shows that it has been adequately consulted on the issue. The forum's members have no doubt taken their insurance clients' instructions. The forum does not appear to be wholly against the proposed bill, but it calls for further consultation. I am suggesting to members that there is no need for further consultation at this stage. If the bill continues on its parliamentary route, the insurance lawyers can take part in the process, and I am sure that they will.
Perhaps my statement of reasons was too sweeping in that regard, but I take it from the three e-mailed submissions that the organisations concerned are not entirely against reform. They obviously have particular points that they wish to make. They made them during the consultation process and if the committee agrees to accept the statement of reasons, they will have the opportunity to make them again as part of the parliamentary procedure. Failure to hold another consultation would not prevent them from saying what they wish to say in a more finessed way or from raising points that are still of concern to them. That opportunity would still be open to them.
My response is that I am mindful of the three submissions that we have had from the insurance industry. I am not arguing that the insurance companies' representative bodies should be completely disregarded. Indeed, they are not being disregarded: they have taken part in the consultation and they will take part in the parliamentary process.
My final, brief question is about the Scottish Government's position. Given that the bill proposal emerged from the previous Government's reference of the issue of damages for wrongful death to the Scottish Law Commission, it has gone through official channels, if you like. Do you have any indication, at this stage, of the Scottish Government's attitude to your proposed bill?
I have no indication other than what Mr MacAskill said in response to an oral question that I asked about a month ago. He said that the Scottish Government was looking carefully at the recommendations that were made in the commission's report of last September and that he would comment "in due course".
I hope that the Scottish Government agrees to support my proposed bill or to take it over so that it becomes part of the Government's legislative programme, as that would be all to the good. I seek to gain the support not only of the Scottish Government, but of all parties. I do not want to stray into policy matters, but it seems to me that my proposal is about simple justice and modernising a process that needs to be modernised. If I may say so, no one disagrees that reform is necessary. There are inaccuracies and elements in the present system that need to be revised. Those revisions would also form part of the bill.
I share some of Robert Brown's concerns, but not those about the policy issue or whether the proposed bill has merit, which is a discussion for another time. Does Mr Butler consider that outside consultation by a non-parliamentary body is acceptable pre-legislative consultation? Does he believe that there is perhaps a profile difference from a parliamentary consultation, when more people might get to see proposals who would not necessarily be—I hate to use this phrase—the usual suspects who are targeted for consultation responses? Does he think that putting a request for responses on the Scottish Law Commission's website is, in and of itself, insufficient in that regard?
Mr Maxwell has raised serious and important points, to which I will try to respond. The Scottish Law Commission is of course a body that is outwith Parliament, but it is a creature of Parliament under the Law Commissions Act 1965. The commission published its report last September, but it was asked to consider the law on damages by the previous Scottish Executive, which felt that there were gaps in the law. At the time, we were dealing with the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, which was addressing a gap. The then Minister for Justice thought that there were also gaps in other areas, such as road traffic accidents and industrial accidents, which needed to be considered. Provision for such gaps could not be made in the 2007 act, so the Scottish Law Commission was given the job of examining the gaps in the law and whether reform was needed.
The current Scottish Government has not demurred from that process or said that it is against the Scottish Law Commission report—there would be no reason to be against it. The Government has said that it is an interesting report that is full of recommendations that must be treated seriously. I am paraphrasing Mr MacAskill, but I believe that I am expressing the import of what he said.
The situation is unusual in a sense, because—I can be corrected if I am wrong about this—I believe that it is the first time that a Scottish Law Commission report has produced a proposed member's bill: appendix A of the report is the draft bill. That is the novelty, and Mr Maxwell is right to point that out. However, although that route has not been followed previously, it can be followed under the Parliament's rules and procedures.
On the question of the usual suspects, I would always hope to have as wide a consultation and range of responses as possible. Mr Maxwell will be aware that the consultation on possible changes to the law with regard to smoking had thousands of responses. There were about 30,000 responses to the consultation on the Government's subsequent Smoking, Health and Social Care (Scotland) Bill. For my previous member's bill, which was the Direct Elections to National Health Service Boards (Scotland) Bill, there were about 165 consultation responses—I would not have expected 30,000. The proposed damages (Scotland) bill obviously covers a much narrower policy area because, although it is about an issue of justice that applies broadly across the country, it is more esoteric, in the sense that it is about damages, the law of delict and insurers, and about lawyers seeing the need to modernise that part of the law of Scotland.
I therefore believe that, although the Scottish Law Commission is an outside body, its consultation has been as comprehensive as practicable in relation to the subject that it was asked to examine. It was asked to examine that subject by the previous Government, and its report continues to inform the thoughts of the Cabinet Secretary for Justice, Mr MacAskill. I hope that there is support for the recommendations in the commission's report.
Let me make one other small point. I would not disagree with, or seek to undermine, any work that the Scottish Law Commission has done, but there is clearly a difference between the Government implementing the commission's recommendations and an individual member picking up bits of a Scottish Law Commission report.
Bill Butler said that the full panoply of the parliamentary process would still be available, but that will obviously not be the case if we do not require the pre-legislative consultation, which is part of that full process. Obviously, pre-legislative consultation might not be required for a proposal that, after being consulted on, is introduced as a bill that then falls, either because there is an election or because the member in charge is appointed as a minister, and which is then picked up by another member.
Another possibility, as Robert Brown mentioned, is that consultation might not be required for an uncontentious proposal. However, given the amount of correspondence that we have received from a variety of lawyers and insurance bodies, it sounds as if Bill Butler's proposal is more contentious than one on which a consultation period might be avoided. Given the contentiousness of the issue, how can we be sure that we dot every i and cross every t in introducing the bill?
I do not know that we can dot every i and cross every t, given that any bill can arouse differences of view and contention. I cannot predict what will happen if the proposal proceeds, but the committee will obviously have time to amend, discuss and interrogate the bill.
The proposal has already been the subject of comprehensive consultation by the Scottish Law Commission but, although this is a new and novel procedure, the consultation is certainly not the worse for that—quite the contrary. My fear is that further delaying the measure by requiring a prolonged period of consultation could prejudice outcomes for those who are the victims of wrongful death, who include not only the persons who have died but their families. I believe that the statement of reasons on why no consultation should be required makes the reasonable case that the Scottish Law Commission's consultation was adequate, comprehensive and detailed. Not requiring further consultation on the proposal would not preclude others who have difficulties with the recommendations—as some do—from taking a full part in the parliamentary process.
I appreciate that consultation is not just about quantity and must also take qualitative factors into consideration, but I want to find out how many responses—perhaps Mr Butler will know this—the Scottish Law Commission's consultation received. Also, was any consultation carried out on the conclusions that the commission reached? Would not a consultation on the bill proposal—whose introduction I am generally supportive of—provide an opportunity to consult on the commission's recommendations?
Angela Constance makes an important and serious point, but my argument is that the consultation has been as wide, comprehensive and detailed as it possibly could be, given the rather specialised nature of the subject matter. The Scottish Law Commission has gathered in as many responses as possible in what is a fairly narrow area of public policy. I refer members to paragraphs 7 and 8 of my statement of reasons, which state:
"A Discussion Paper on Damages for Wrongful Death (no.135) was published by the Scottish Law Commission on 1 August 2007 … The discussion paper produced 15 formal responses and the majority of these expressed support for the idea of reform in the areas of the Bill under discussion. These views … informed its final recommendations."
I do not think that, with the best will in the world, we would get more than 15 responses if we consulted on the issue again. We might get one or two more, or one or two fewer, responses than the Scottish Law Commission got.
I concur with Ms Constance's phraseology when she referred to the qualitative nature of the responses. I do not think that the quantity could be inflated to much more than the level that the Law Commission achieved, so I feel that the consultation so far, on this narrow but important area of public policy, has been detailed and comprehensive.
In paragraph 19 of my statement of reasons why further consultation is not required, I say that
"we should not send the proposal out for consultation in the public domain again—at public expense—and start the process again."
I argue that the consultation has already been done. The quantity of responses could not be improved on, and I do not believe that the quality of the consultation could be improved on, either.
The recommendations in the SLC report have informed the bill. If the bill comes before Parliament, it will go through the full parliamentary process, as Stewart Maxwell has said. There will be calls for written and oral evidence; there will be interrogation at stage 1, followed by a stage 1 report; and there could be amendments at stages 2 and 3. I therefore urge members not to go down the road of consulting again on an issue that has already been fully consulted on.
Obviously, going out to consultation would lead to additional costs, but would there also be an impact on the timing of the bill?
I will hand over to Sarah Robertson of the non-Executive bills unit.
Sarah Robertson (Scottish Parliament Chamber Office):
If Bill Butler had to consult again, there would be a mandatory 12-week period during which he would have to run his consultation. Before that, we would have to consider how to draft the consultation document, which might take a couple of weeks. Then, after the 12 weeks of consultation, there could be a further four weeks of analysis and summarising before we published the results of the consultation. Therefore, the delay could be around four or five months in total.
From my previous experience of a member's bill, I know that a consultation period can add a little more than even the figure that Sarah Robertson has given. That figure was the absolute bare minimum.
I take it that there is no accelerated process that could be followed.
No, there is not.
It would not be unprecedented for a Government to use a Scottish Law Commission consultation process as a substitute for a new consultation process. For example, I think that a previous Executive used a Scottish Law Commission report as consultation on a sexual offences bill.
I am uncertain about that. However, what I am attempting to do is novel, in the sense that I am taking a draft bill from a Scottish Law Commission report and trying to adopt it as my member's bill. I am doing that to expedite what needs to be expedited if we are to deal with injustices, and also because I believe, albeit as a layperson, that the issue has been so fully consulted on that the bill is pretty good to start off with. I think that Lord Drummond Young would agree.
I am sure that he would find that exceptionally comforting.
I do not know about that, but I am comfortable with the fact that Lord Drummond Young agreed, as did all the members of the Scottish Law Commission, with the recommendations contained in the commission's report.
In response to earlier questions, I think that you said that those who responded to the Scottish Law Commission's consultation generally agreed on the need to modernise and update the law.
That is correct.
We have received a written submission from the Forum of Insurance Lawyers. The forum accepts that the Scottish Law Commission's discussion paper was full and helpful, but it says that your bill is identical to the bill that was drafted by the commission. Is that correct?
That is correct. The draft bill is appendix A of the report—I am attempting to take it off the shelf.
Now that those facts have been established, do you agree that the issues that the Forum of Insurance Lawyers and the Forum of Scottish Claims Managers have raised with us today in writing would be better dealt with as part of the process of scrutinising any bill that you introduce, as they relate more to detail than to the consultation process? Both organisations have said that they took part in the consultation, which was full and detailed.
They would have the opportunity to participate in the scrutiny process. They have also conceded that they had the opportunity to take part in the consultation process, which they said was helpful. If the statement of reasons is accepted today and the parliamentary process gets properly under way, they will have many opportunities to submit written evidence; the committee might also decide to take oral evidence from them, which would allow them to raise issues that are of concern to them. I am in no way seeking to prevent those with a valid interest in the proposed legislation from making their views known.
There are two fundamental questions. First, is the bill necessary and desirable? That question seems to have been answered—the SLC process appears to indicate that it is. Secondly, what issues might arise in relation to the bill? It is important to identify those issues in a consultation. Are you aware of any new issues that have arisen on the SLC's discussion site since the publication of its report in 2008? I take it that all the issues raised by FOIL, the ABI and the Forum of Scottish Claims Managers in their submissions were raised previously and that there are no new issues for the committee to address.
Your assumption is correct. I believe that no new issues have arisen since the report was published in September last year. On that basis, the extant recommendations and proposed bill remain to be dealt with. There is no need for further consultation; I argue that the previous consultation was wholly adequate and that there is no new material.
Good morning. One legal point that emerges in much of the evidence that we have received is the question whether damages should be calculated using a formula or whether each case should be decided on its facts. I understand that the draft bill proposes a formula, which can be and has been criticised. Is that part of the general principles of the bill?
I will take direction from the convener, as I do not want to stray into policy areas. At the moment, in cases in which damages are claimed on behalf of a relative or spouse, the court must determine the level of financial support that they have lost through their partner's death. That causes a great deal of wrangling and distress. Under the reforms that the commission recommends, the courts would apply a rule that assumes that 25 per cent of the deceased's income was spent on their own living expenses, thus avoiding the need for litigation. That means that damages would be set at 75 per cent of the deceased's income.
That is entering into a policy point that might be debated fully at a later stage.
I am with you, convener, but we are looking at a bill that seems to be pushing towards a formula instead of allowing everything to be considered on its merits. If we had been talking about the Arbitration (Scotland) Bill, which was discussed in another committee last week, that would have been fine. However, if we are talking about the substantive law for every case, I am worried.
Getting back to the process, not the policy, I am concerned that if we are moving towards a rough-and-ready numerical approach rather than an approach that considers everything on its merits, we need to ensure that we have considered every possibility. We are not looking for a rough-and-ready answer; we are looking for good, accurate, substantive law. I am therefore inclined to feel that if we have any doubts about the level of consultation, we should move towards ensuring that we have consultation.
This might be the first time that a set of recommendations presided over by Lord Drummond Young has been called rough and ready.
I do not agree with Nigel Don. The bill is not simply about the formula—other modernisations, or tidying-up measures, are being suggested for the 1976 act, although I do not want to stray into those now. I argue strongly that further consultation is unnecessary. A full, detailed analysis has been carried out, and no new matter has been introduced following the publication of the Law Commission's report. We would be drawing the matter out, when justice needs to be served as quickly as possible.
As the convener will know, there are numerous deaths every year in industrial accidents and road traffic accidents and in more high-profile cases, such as the tragic overturning of the tug, the Flying Phantom, on the Clyde. The resolution of civil damages in all such cases would be delayed if people's personal circumstances were delved into, and people's earnings would be unjustifiably reduced. The challenge, which the bill deals with, is to avoid all of that. Such delay is unnecessary. The consultation has been full, detailed, analytical and impartial. That does not mean that there is no debate to be had, but I ask the committee to accept that there is no need to go out for further consultation. In my view, the consultation has been adequate.
The FOIL statement, which I am sure that Mr Butler has seen, refers to a case in which the 25 per cent reduction in damages was changed to 30 per cent, and in which the judge—another lord—took into account something that would otherwise not have been taken into account. I merely make that point in order to assure Mr Butler that there are other views.
I do not want to stray too much into policy, but I suggest that if the recommendations in the SLC report were taken into account and put into law the need for cases to be heard in court would be obviated. That would be a very good thing. However, I realise that I have inadvertently strayed into policy matters.
Indeed. It is important to stress that we are not talking about the merits or demerits of the bill. One way or another, the matter will go through the parliamentary process.
I propose that we move to the question, which is whether the committee agrees that it is satisfied with the reasons given by the member for not consulting on the draft proposal. Are we all agreed?
No.
There will be a division.
For
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Brown, Robert (Glasgow) (LD)
Constance, Angela (Livingston) (SNP)
Don, Nigel (North East Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
The result of the division is: For 3, Against 5, Abstentions 0. Therefore, the proposal falls.
Meeting suspended.
On resuming—