Damages (Scotland) Bill: Stage 3
The next item of business is stage 3 of the Damages (Scotland) Bill. Members should have the usual documents in front of them. I could tell you what will happen with the division bell, but we will cross that bridge should we come to it.
Section 4—Sums of damages payable to relatives
Group 1 in the marshalled list of amendments concerns qualifying relatives. Amendment 1, in the name of the minister, is grouped with amendment 3.
The Family Law (Scotland) Act 2006 amended the law on damages for wrongful death to provide that relatives by affinity—for instance, in-laws—would no longer be regarded as the victim’s immediate family for the purpose of claiming damages for non-patrimonial loss. That approach was replicated by the Scottish Law Commission in its report and draft bill, and by Mr Butler in the bill that he introduced. The current Administration had no intention of reversing that approach, certainly not without consultation and debate, but a technical flaw in one of the stage 2 amendments appears inadvertently to have had that consequence. Amendment 1 will bring the bill back to the status quo ante in that regard.
Amendment 3, on the other hand, will make a limited but deliberate change in the approach of the law. Currently, a stepgrandchild or stepgrandparent counts as a relative and may claim for patrimonial loss but not for non-patrimonial loss. It has been put to us that that is anomalous and that someone who had been accepted by the deceased as his own grandchild should be able to make a claim for non-patrimonial loss. Likewise, a person who had accepted someone as his own grandchild should be able to claim in the event of the child’s death. There appears to us to be merit in that argument and, therefore, amendment 3 addresses it.
I move amendment 1.
I urge members to support both amendments. I am particularly pleased that the Government has lodged amendment 3 to section 14. It will place stepgrandchildren and other children who were considered by someone who has died to have been their grandchildren on the same footing as grandchildren by marriage. The shameful anomaly that previously existed discriminated against children based on the marital status of their parents or grandparents. Given that such efforts have been made in recent years to reform Scots law to abolish any such discrimination, to have left this provision standing in damages law would have been regrettable. I approached the Scottish Government to address the point with my own amendment, which I am pleased to acknowledge it has adopted verbatim.
Amendment 3 obviates a difficulty that could arise. Overall, consideration of this matter has revealed that we can no longer operate on the basis of the nuclear family. Times have changed and the law must move with them. The amendments that are proposed by Mr Ewing are satisfactory.
Amendment 1 agreed to.
Section 7—Assessment of compensation for loss of support
14:45
Group 2 is on minor and technical amendments. Amendment 2, in the name of the minister, is grouped with amendments 4, 9 and 10.
Amendment 2 will delete the word “annual” from the phrase “net annual income” in section 7(1)(a). Its inclusion there seems unnecessary and potentially confusing, as it is only in certain circumstances that it will be appropriate for the court to have regard to the annual figure. In other circumstances, it may be more appropriate for the court to have regard to the monthly, weekly or even daily figure. In those circumstances, the reference to “annual” would seem inappropriate.
Amendment 4 aims to ensure an effective relationship with other statutes, some of which refer to common-law awards of solatium in respect of the loss of a relative that predated the Damages (Scotland) Act 1976. To ensure that they also continue to have effect, it is necessary to provide that those references should in future be read as references to awards under section 4(2)(b) of the bill.
Amendment 9 will remove a problematic provision from schedule 1 to the bill. That provision would insert an apparently inappropriate reference to the Social Security (Recovery of Benefits) Act 1997 into the Administration of Justice Act 1982. Whatever the aim, the effect seems to be to invite the suggestion that the benefits to which the 1997 act applies can be taken into account in the assessment of damages. That risks contradicting a clear statement to the contrary in the 1997 act—hence the recommendation that the provision be removed from the bill. Amendment 10 is consequential on amendment 9.
I move amendment 2.
I urge members to support all the amendments in group 2.
On amendment 2, I agree that the word “annual” should be left out of section 7, as it is unnecessary and potentially confusing. If it remains, there could be a suggestion that the loss of support should be calculated by reference to 75 per cent of only one year’s income. It is clear that that is not the intention of the bill. The removal of the word “annual” will ensure that it is 75 per cent of A’s total income that is the relevant figure. That was a potential problem that we had identified, too, and I am pleased that the Government agrees that the word should be removed.
I concur with what the minister said about the other amendments in the group.
Amendment 2 agreed to.
Section 14—Interpretation
Amendments 3 and 4 moved—[Fergus Ewing]—and agreed to.
Section 19—Short title, Crown application and commencement
Group 3 is on commencement. Amendment 5, in the name of Bill Butler, is grouped with amendments 6 to 8. I draw members’ attention to the fact that, if amendment 5 is agreed to, I cannot call amendments 6 and 7.
The one remaining area of possible dispute between the Government and me is commencement. The bill follows the Scottish Law Commission’s report of 2008, which followed years of piecemeal amendment to the Damages (Scotland) Act 1976. That act has now been on the statute books for 35 years. The law in the area needs to be cohesive and modern to benefit and properly compensate the victims of industrial disease, accidents at work and road traffic accidents. It also needs to be cohesive and modern for families, who suffer not only emotional loss but financial hardship when a breadwinner is lost. Moreover, it needs to be cohesive and modern as soon as possible because such losses are being felt every day throughout Scotland.
I understand that amendment 5 would allow for commencement within five weeks. There would be four weeks for the law officers to object on the ground of legislative competence. If there was no objection on that ground, royal assent would follow approximately one week later. My fear is that, if the amendments in the name of the minister are passed, the implementation of the legislation could be delayed until the autumn of this year.
I will listen carefully to what the minister says in response. I am looking for a firm assurance from him that the legislation will commence as soon as is humanly possible, whatever the complexion of the Government of the day is. If he can assure me of that, I will take his word for it.
I move amendment 5.
I say at the outset that I share Bill Butler’s sentiments about the importance of bringing the legislation into effect as soon as possible, so I make it clear that I want to see and am determined to ensure that it is commenced at the very earliest practical opportunity. I am happy to give that absolute assurance to Mr Butler and I am grateful to him for the way in which he has moved amendment 5 and for the prior discussions that we have had there anent. With that in mind, amendment 5 is a temptation. It would result in the legislation coming fully into effect on the day after royal assent, perhaps in early April. Unfortunately, that is not a course that I can recommend, but I will set out in a little detail the reasons why I have to say that as minister.
The key consideration is that, as is normal, we need to ensure that proper provision is made for the legislation to come into force. That includes making transitional and saving provisions to ensure that the move from the old regime to the new is smooth and that nothing and no one falls between the legislative cracks. I am sure that Mr Butler will agree that that is important, particularly when we are dealing with people’s rights and obligations. I do not want to see any bereaved relative losing out or being involved in an unnecessary dispute simply because, in our eagerness to legislate, we missed a trick. We in the chamber have heard before that some defendants will exploit any loophole and that is one reason to ensure that we take no undue risks.
If amendment 5 were accepted and the act commenced immediately after royal assent, an order under section 18 would be needed for such transitional arrangements. The order would have to come into force immediately and would have to be made during the election purdah period. If that happened, we would be denying Parliament its scrutiny function and breaching the requirement in section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 for the Parliament to have 28 days to consider a negative instrument before it comes into force.
I should also say that acts do not ordinarily commence earlier than two months after royal assent has been given as it is recognised that the public, lawyers and other interested parties need time to prepare for the new law coming into force.
There are reasons why it would be better for the act to come into force by a commencement order two months after royal assent has been given, when Parliament will be in session. Although commencement orders require to be laid before Parliament only as a courtesy, Parliament is normally given 10 to 14 days’ notice. Of course, the Scottish Law Commission’s draft provides for the act to come into force by commencement order and recognises that transitional and supplementary provisions might be required by the inclusion of section 18. Indeed, amendment 8 improves the position for quick commencement by enabling transitional and saving provisions to be made in the commencement order itself.
The amendments in my name allow for the implementation of the bill to be as speedy as reasonably possible and should enable the act to come into force as early as two months after royal assent has been given. Amendment 8 will enable the commencement order to contain transitional provisions without the need for a separate order to be made under section 18.
Amendment 6 provides that the separate order-making power in section 18 comes into force on royal assent. Both amendments will enable ministers to expedite commencement and they have been lodged at my express behest in order to achieve that objective.
I hope that what I have said, which I am sure will have received the closest of attention from all members, will have persuaded colleagues to support amendments 6 to 8. During yesterday’s stage 3 debate on the Wildlife and Natural Environment (Scotland) Bill, I heard Peter Peacock say that, when he was a minister, he was sometimes required to read out technical arguments with which he might not necessarily have fully agreed. This is not one of those occasions, regretfully. Were there any way that I felt would be safe to commence the legislation more speedily than we can, I assure Bill Butler that I would have pursued that avenue. Unfortunately there is no such way. However, we have taken measures to expedite the time of commencement.
I conclude by saying that I hope that Bill Butler will have taken some comfort from my assurances about our intention that the law will come into force at the earliest possible and practical date.
Bill Butler has spent a lot of time and put a lot of commitment into getting the bill through the Parliament and his enthusiasm for having it implemented as soon as possible is entirely understandable. However, certain dangers could arise if we proceeded as he has suggested in amendment 5. The last thing that we want to do is to spoil the effectiveness of a very fine piece of legislation by taking precipitate action. I listened very carefully indeed to the minister’s arguments and believe that he has come up with the solution; he has also made quite clear his commitment to implementing the legislation as soon as possible. On that basis, I think that Bill Butler can be satisfied.
I am using my power under standing orders to extend the time limit for the debate on this group to prevent it from being unreasonably curtailed.
This is an important issue, but I am not sure that I fully understand all the implications. However, I am clear that the legislation needs to be implemented smoothly and effectively but not necessarily speedily—although we do want it to be brought into force as speedily as possible.
I will make two points to supplement the comments made by the minister and Bill Aitken, both of whom I substantially agree with. First, I emphasise that the professionals involved need to know about the legislation. It needs to be discussed in law journals and so on to ensure that the lawyers who advise clients, the judges who make the decisions and the clerks and others who have to deal with these matters know about the provisions and can assess and deal with things.
Secondly, I should know the answer to this, but I am not sure that I do. How will these provisions apply to actions that have been raised before the legislation is commenced? As far as I can see, there is no specific reference to that in the bill, so it must be a matter of interpretation. I assume, however, that the bill will not apply to actions that have already been raised. If that is not correct, I would like some clarification on what the exact implications are for actions that have been raised and are going through the court before the commencement of the legislation.
The minister’s detailed exposition of the effects of amendments 6 to 8 is convincing and his assurance gives me significant comfort. I concur with his wish to ensure that no bereaved person misses out as a result of something that we do inadvertently. His case is compelling, especially with regard to the parliamentary scrutiny function. I have found the minister to be a man of his word. I accept it and seek leave to withdraw amendment 5.
Amendment 5, by agreement, withdrawn.
Amendments 6 to 8 moved—[Fergus Ewing]—and agreed to.
Schedule 1—Minor and consequential amendments
Amendments 9 and 10 moved—[Fergus Ewing]—and agreed to.
That ends consideration of amendments.