Damages (Scotland) Bill
The next item of business is a debate on motion S3M-8028, in the name of Bill Butler, on the Damages (Scotland) Bill. I call the Cabinet Secretary for Justice to signify Crown consent.
For the purposes of rule 9.11 of the standing orders, I advise the Parliament that Her Majesty, having been informed of the purport of the Damages (Scotland) Bill, has consented to place her prerogative and interests, so far as they are affected by the bill, at the disposal of the Parliament for the purposes of the bill.
Thank you, cabinet secretary. I call Bill Butler to speak to and move the motion.
14:59
I rise to speak to the motion in my name that the Damages (Scotland) Bill be passed.
The bill, which was introduced on 1 June 2010, has the clear purpose of implementing the recommendations of the Scottish Law Commission’s “Report on Damages for Wrongful Death”, which was published in September 2008.
In Scots law, when an individual suffers an injury or contracts a disease as a result of the actions or omissions of another person or of a legal entity such as a company, damages can be claimed from the wrongdoer. The law makes specific provision for cases of personal injury that result in premature death, whether the death is immediate or more protracted. The Law Commission concluded that the extant 1976 act
“has become over-complex and, indeed, contains inaccuracies as a consequence of the numerous amendments made to it”
and therefore
“should be repealed and replaced by new legislation which will restate the current law with greater clarity and accuracy.”
The reforms that are contained in the bill seek to achieve that greater clarity and accuracy, and reform is urgently needed because of the nature of the cases and the number of people who are affected. Every year, hundreds of people in Scotland are wrongful death victims or become ill with fatal work-related diseases. On average, 30 people in Scotland die in workplace accidents every year. In 2008, 272 people died on Scottish roads. Between 1 January 2009 and 20 April 2010, 210 people with mesothelioma and 58 people with asbestos-related lung cancer sought assistance from Clydeside Action on Asbestos. In numerous other fatal accidents that were unrelated to work or road traffic accidents, the deceased person was the victim of another’s negligence.
Most such deaths become claims and then court actions. Year on year, they add to the volume of wrongful death cases in which claims are made. It is generally accepted that wrongful death cases are among the most difficult and anxious cases with which personal injury practitioners deal. Cases tend to be hard fought by insurers and defenders, which can mean that they take longer to resolve. As well as dealing with their bereavement, families have the practical burden of financial hardship to shoulder and the unknown and often daunting legal process to face.
If the bill is passed today, the uncertainty and delays to which families and victims are subjected can be reduced and the Parliament will have met a need that has perhaps been understood only by victims and those who have assisted them.
Members will recall that, during the stage 1 debate, I pledged to work constructively with the minister and all members to seek agreement on aspects of the bill that still troubled members and the Government. I am happy to report that constructive engagement has continued to be the order of the day since 15 December and throughout the latter stages of the bill. Both informally in discussions with the minister and his team, and formally during the stage 2 process, there were two interrelated issues that, above all others, required to be resolved in a way that was both practicable and durable. They were matters that the Justice Committee raised specifically in its stage 1 report, with the admonition to the Government and me to come up with an acceptable, resilient compromise on the provisions relating to the fixed percentage of 25 per cent used to calculate the victim’s living expenses in the context of the victim’s claim for damages and its obverse, the fixed percentage of 75 per cent used to calculate the amount that the victim spent on supporting his or her family in the context of the relatives’ claim for loss of support. The committee’s clear advice was that a rebuttable presumption was necessary if it
“could be drafted in such a way that it provides flexibility only when it is needed, without undermining the benefits of a fixed deduction in the majority of cases”.
Despite my reservations about a rebuttable presumption, which I expressed at stage 1, I believe that the compromise that is expressed in the Government amendments that were agreed unanimously at stage 2 places the onus on those who wish to challenge the fixed percentages.
The phrase that was agreed—“manifestly and materially unfair”—forces those who wish to challenge the normal fixed percentages to make the argument for why their client’s case is “genuinely unusual”. That is a much higher and more focused test than if the provision were simply to be phrased as “on special cause shown.” That would have been far too wide. As I said at stage 1, the words employed must not be so wide as to provide
“an open door to all defenders”.—[Official Report, 15 December 2010; c 31568.]
Nonetheless, for the avoidance of doubt and the guidance of those who at some future date may have to opine in respect of this provision in the bill, I would be grateful if the minister in his speech could place on record the Government’s support for such an interpretation of the bill’s intent in this regard.
During stage 2 discussions, there also arose the issue, in relation to a relative’s claim for loss of support, of the requirement in the bill to disregard the income of the person making the claim. Mr Ewing will recall that I expressed my concern at the time about the deletion of section 7(1)(b). He will also recall that the matter was the subject of considerable debate. The minister assured me at the time that
“The formula in section 7(1)(a) already provides for the amount available to support the relatives to be 75 per cent. It is clearly implicit in that section that no further calculation is to be made to disregard a relative’s income”.—[Official Report, Justice Committee, 1 February 2011; c 4128.]
For the avoidance of doubt, I ask Mr Ewing to reiterate what I understood him to say at stage 2—namely, that the matter of the disregard would arise only in exceptional cases in which the 75 per cent figure would result in manifest and material unfairness. In other words, will the minister be good enough to confirm in Parliament that the principle of the disregard in respect of the income of the person making the claim remains intact?
I look forward to the debate.
I move,
That the Parliament agrees that the Damages (Scotland) Bill be passed.
15:06
I begin by belatedly responding to Robert Brown’s earlier point by advising him that, under section 17, nothing affects proceedings that are commenced before section 16 comes into force. The legislation will apply only to court actions that are raised after its commencement.
The Parliament has a proud record on modernising the law on damages, although the need for further reform is well recognised. I had announced plans for a programme that covered three Scottish Law Commission reports—those on psychiatric injury, time bar and wrongful death—but when Bill Butler lodged his final proposal for the bill to address wrongful death issues we adjusted to focus on those first.
I hope and believe that Bill Butler agrees that we have maintained a good and constructive dialogue in the past year. We have engaged fully over a long period to good effect. We worked at all times with the members of the Justice Committee as a team who had one objective: to improve the terms of the original bill to meet the matters that arose in evidence. In particular, I thank the former convener of the committee for his excellent convenership. [Applause.]
The Scottish Government issued a consultation paper last July so that we could contribute constructively to proceedings. Our objective is legislation that ensures that the victims of wrongful death and their relatives get a fair deal and that they have the right, without unnecessary aggravation or delay, to secure a reasonable level of compensation for their financial, physical and emotional losses. The Law Commission concluded that, for patrimonial loss, the best approach was a fully standardised one that, disregarding relatives’ income, works on the basis that fatally injured individuals would have been spending 25 per cent of their income on themselves and 75 per cent on their family’s requirements. That was a central feature of the recommended regime and, with some qualifications, it remains at the heart of the bill.
I should recap the main qualifications that were introduced at stage 2, on which Bill Butler has touched. The first related to the proposed standard 25 per cent/75 per cent assumption. Although that was supported by many stakeholders—including Aviva and the Forum of Scottish Claims Managers from the defenders’ perspective—there were concerns that a one-size-fits-all approach could lead to instances of injustice. The Justice Committee concluded:
“If a rebuttable presumption could be drafted in such a way that it provides flexibility only when it is needed, without undermining the benefits of a fixed deduction in the majority of cases, it might still offer the best way forward.”
It was agreed that the standard assumption could be set aside in those few cases in which its rigid application would lead to a “manifestly and materially unfair” outcome. That should allow some flexibility, but it requires a very high test to be met.
A second qualification related to the disregarding of the surviving spouse’s income. Let me make it crystal clear that we agree that a relative’s income should generally be disregarded. It should be taken into account only in those truly exceptional cases in which ignoring it would lead to a manifestly and materially unfair result—and then only in relation to fixing the appropriate percentage. Otherwise, it should be of no account at all.
The bill now directs that, whenever a qualifying partner or dependent child survives the deceased, 75 per cent of the deceased’s net income or, in very exceptional circumstances, such other percentage as the court may fix, must be taken as having been spent in supporting family and relatives. That is the measure of the relatives’ loss; no further account can be taken of the income of a surviving spouse in calculating the level of support. It can no longer be argued that the Brown v Ferguson formula is relevant.
The result of all this work is, I believe, a much improved piece of legislation—one that, as Bill Butler has argued, will deliver a better approach to claims for wrongful death. On behalf of the Scottish Government, I am pleased to commend the bill to Parliament.
15:11
I begin by paying tribute to Bill Butler for bringing the bill before the Parliament. Without his intervention, the bill, following the excellent work by the Scottish Law Commission, would not have proceeded in the Parliament. That would not have been right, as someone who is facing death because of the actions or negligence of others or someone who is seeking damages for the loss of a loved one should not have to endure an unnecessarily protracted and demanding legal process in order to obtain damages to which they are entitled.
It is right to recognise the work that the Justice Committee did on the bill, and I entirely associate myself with the minister’s words in relation to the former convener. I also congratulate Thompsons Solicitors, which worked with Bill Butler in providing advice throughout the process. That dialogue has been all about securing legislation that will be effective and which can be passed today with cross-party support. Once again, the Scottish Parliament can take action to protect the rights of people seeking damages.
We must recognise two difficult issues that the minister spoke about. The first concerns the proposal for the standard 25 per cent deduction for living expenses. In the Labour Party, we were eager for that proposal to be adopted as it appeared in the bill as introduced. In particular, we believed that it would help to address undercompensation in instances in which, for example, a dying victim is unwilling or unable to extend negotiations or take the matter to court—in effect, when they are forced by circumstances to accept a larger deduction for living expenses than is fair or appropriate. Given that most fatal damages claims involve people suffering from mesothelioma, such situations are not, unfortunately, uncommon.
The Scottish Government was concerned that applying a rigid standard 25 per cent reduction might not produce an accurate or fair result in absolutely every case, and that it could result in undercompensation—in what I feel would be rare circumstances. However, that concern resulted in dialogue on the issue, from which came the proposal that the 25 per cent reduction should apply, but with an exception for cases where it would be “manifestly and materially unfair”.
We previously expressed concerns that such an exception could open the door to further delay in court, due to routine challenges to the 25 per cent figure, but we have been reassured by the minister that the term “manifestly and materially unfair” sets a high enough bar, ensuring that such cases will be exceptional. The great majority of cases will benefit from speedier progress through the courts with the application of a 25 per cent deduction. We are comforted on that point, which we believe is crucial for the victims in such cases.
The second key issue is that of disregarding spousal income when determining compensation. As we have discussed, concerns were expressed at committee that stage 2 amendments have made the provisions not quite as explicit as we might have hoped. For the avoidance of doubt, the minister has made it clear today that, in the vast majority of circumstances, spousal income will indeed be disregarded. We can be confident that we have been properly reassured on that point, too.
I hope that we can also be confident that, although the bill might have changed, the central ambition behind it remains intact. I hope that we will pass into law today provisions that ensure not only fairer damages for what victims have suffered due to the negligence of others, but an easier and less protracted legal process by which damages are awarded. Those who seek such damages deserve no less, and I congratulate Bill Butler once again on fighting their corner in our Parliament.
15:15
When someone is killed or dies as a result of an industrial accident or illness or in the short and fairly traumatic circumstances of a road traffic accident, and where there is negligence and liability, the settlement should be achieved firmly, fairly and expeditiously.
Bill Butler is right to say that the law is in need of clarity. It has become diluted over the years and is not as clear as it should be, and, as we know, some of the case law is confusing. It was perfectly appropriate for the Scottish Law Commission to begin a study of how matters were to be changed, and it was entirely appropriate that Bill Butler, with his customary commitment and energy, picked up the bill from the SLC and put it through the parliamentary process. The way in which that was done was an exemplar. Sometimes this Parliament behaves as it should, and the willingness on the part of the Government, the various parties and Bill Butler to compromise to get a result for those who have been bereaved in the most difficult circumstances reflects very well on all concerned, and all are worthy of congratulations.
There were issues that caused some concern. The first was the question of the 25 per cent deduction in respect of the deceased person’s personal outtake from the family budget. When someone dies, whether after a long illness or very suddenly, as in a road traffic or industrial accident, the last thing the family needs to do is carry out a tawdry accounting exercise, going through the household budgets and expenditure.
The 25 per cent figure seems to be pretty accurate. There will be occasions—very few in number, I suspect—on which that might not be the case. However, the rather subtle wording that has been agreed, which states that we should avoid
“a manifestly and materially unfair result”,
will to my mind, once it has been interpreted—very robustly, I hope—by the court, prevent defenders from seeking to procrastinate and delay the payments for those who seek them at a very difficult time in their lives.
Many of us have been, like Bill Butler, strongly influenced by our experience in dealing with the sufferers of mesothelioma. As I have said in debates in the chamber before, the industrial heritage of the west of Scotland and Glasgow in particular has left us with a tremendous cost. The vast majority of the cases in which people will benefit from this legislation will concern the families of mesothelioma sufferers.
We recognise that nothing can ever restore a relative to their family, but we can seek a fair and humane approach to dealing with the claims that arise. I am convinced that the bill that is before us, which I suspect will go through at decision time with acclamation, goes down that route. The Parliament should be grateful to Bill Butler for bringing the bill to the chamber, and I very much hope that when it is voted on at 5 o’clock, it will deservedly receive the support of every member in the chamber.
15:19
When I was in professional practice, I dealt with cases of this type across the board, including injury cases and some death cases. We must remember, as Bill Butler said, that at the heart of all these cases lie not just legal principles and legal issues, but real people, relatives and families who are affected by the way in which the law and the legal system operate. That is the fundamental motivation behind the bill that Bill Butler has brought forward.
It is the law’s job to try to sort out contending legal issues and to give justice in individual cases. As a caveat, it is probably true to say that there is no single right answer to all the issues that emerge—a range of answers applies across the board and they change from time to time. The process for death cases has been the subject of piecemeal amendment, change and interpretation over several years in an attempt to get the system right. The bill is another stage in that process, which I hope will lead to some finality.
As we debate the bill, I am conscious of what we in the Parliament have looked at. Even today, I was involved in launching the Scotland Bill Committee’s report, which was highly political; chairing a cross-party group meeting at lunch time; and dealing with this all-party, non-party bill. In some ways, we do our most effective work in the Parliament when we take a consensual but—I hope—critiquing approach to matters on which we have no party line or political stance. The bill is an example of that.
Several disputes arose as we dealt with the bill. It is noteworthy that the bill has not been accompanied by the flurry of representations that we usually receive at stage 3—I have received two or possibly three representations on relatively small aspects of it. That suggests an acceptance out there that the committee, the minister and Bill Butler have got the bill right.
It is certainly true that the fixed deduction of 25 per cent was the most controversial issue. Deciding on the right approach to that gave me, the committee’s former convener, committee members and others considerable difficulties. In association with Bill Butler, the minister has produced a reasonably elegant solution that works to achieve the policy objective that Bill Butler and the rest of us sought. To that extent, the bill will do significantly more justice than has happened in the past.
It is true that many cases that involve death claims arise from the tragic circumstances of people who suffer and die from mesothelioma. Nevertheless, other cases can involve a different range of age groups or different family compositions. Road traffic accidents are no respecter of age or family distinction and do not reflect one’s previous industrial history. The same is true of industrial accidents in which people are killed or injured in their workplace or elsewhere. The bill must provide justice across the board in all the different cases, and it will do so successfully.
I pay considerable tribute to Bill Butler, who has done a good job as a parliamentarian—an occupation that is sometimes underrated. He has taken forward his bill with sensitivity and commitment, which are necessary if one wants significant changes, albeit in smallish parts of the legislative framework.
Against that background, I am delighted that we have reached the end of the bill process. I look forward to the motion to pass the bill being agreed to at 5 o’clock.
15:23
I am content with the Parliament’s scrutiny of the bill, on which the committee has done a tremendous job. I commend Bill Butler for his work on bringing the bill to the Parliament. He worked with others outside the Parliament, such as Thompsons Solicitors and Clydeside Action on Asbestos, which I am sure will be delighted with the result at 5 o’clock. I hope that everyone in the chamber will vote for the bill.
I commend Bill Butler, the committee and other members for the collegiate manner in which they have dealt with the bill. That constructive engagement shows what can happen in the Parliament when parties decide to work together. Post the Scottish election, I hope—and am sure—that the Parliament can continue that constructive approach to damages issues with whoever is in power.
In the stage 1 debate, I—along with other members—raised two issues: the 25:75 split in calculating compensation, and the income of surviving relatives. I am sure that the flexibility that is built into the bill on the first point will enable our citizens to achieve a sensible outcome, and I am convinced that the committee has fully addressed the second point.
The Parliament has a strong record in dealing with damages issues. It is a typical Scottish trait not to be too self-congratulatory but, when it comes to damages issues, we can set that aside for a moment. We know that there are still inequalities and injustices out there—there will be more for us to deal with when we leave the chamber—but, with the bill, the Parliament, the Justice Committee, Bill Butler and the Scottish Government have done a tremendous job, and I look forward to the motion to pass it being voted for unanimously at 5 o’clock.
15:25
Like others, I congratulate my neighbour Bill Butler on his outstanding work in introducing the bill. Like me, he has a very strong interest in asbestos issues, on which the Parliament has already passed two bills. The Damages (Scotland) Bill will extend some of the improvements that have been achieved for sufferers of asbestos-related conditions to a wider range of victims of industrial diseases and accidents, which is greatly to be welcomed.
Mention should be made of Dave Scott, Bill Butler’s excellent researcher, and Thompsons Solicitors, which, as ever in this field, has done an outstanding job. I make particular mention of Frank Maguire. Although other members of staff of Thompsons have made a contribution, he has been the great champion in taking forward legislation on asbestos and damages. In addition, the campaigning groups Clydebank Asbestos Group and Clydeside Action on Asbestos have made use of the Parliament to progress significant issues that they are concerned with. I think that they can now chalk up their third bill, which is a record of achieving significant improvements that is unequalled by any set of campaigning organisations in any field.
The bill, which deals with a specific set of areas of injustice, will give significant reassurance to those people who will benefit from its passage, and it will provide clarification of the law in an important area. On all those counts, it will be good legislation, and I will be delighted to support it at 5 o’clock, along with—I hope—the rest of the chamber.
We move to the wind-up speeches. You have a very tight four minutes, Mr Pringle.
15:27
I join everyone else in congratulating Bill Butler on all the hard work that he has done on the bill. Anyone who has put forward a proposal for a member’s bill will know just how much work and effort has to go into the process, so I again congratulate Bill Butler on his work in bringing to Parliament a bill on a very important issue.
The Liberal Democrats support the bill’s aim and agree
“that the law on damages for wrongful death needs to be modernised and consolidated.”—[Official Report, 15 December 2010; c 31555.]
That is exactly what I said at stage 1, when we supported the bill but highlighted some changes that needed to be made at stage 2. I think that the bill has been significantly improved, and I know that Bill Butler worked extremely hard to achieve that, with the minister.
Bill Butler’s member’s bill was introduced to implement the recommendations of the Scottish Law Commission in its 2008 “Report on Damages for Wrongful Death”. The law makes specific provision for cases of personal injury that result in premature death, whether that death is immediate or more protracted. Currently, the Damages (Scotland) Act 1976 is the main piece of legislation that addresses damages for wrongful death. It was the focus of the SLC’s report and the bill. Much of the bill is a restatement of the existing law of damages for wrongful death, but there are a number of areas in which it proposes substantial changes to the existing law, as recommended by the SLC.
As many have said, the bill as introduced proposed that the victim’s reasonable living expenses should be taken to be 25 per cent of their projected future net income. The aim of that provision was to reduce the expense and time that it takes to negotiate such amounts, and I understand that it was one of the main issues that the committee looked at during stage 2. In my speech in the stage 1 debate, I said that I thought that the adoption of a fixed figure of 25 per cent for the proportion to be deducted from a victim’s income for the lost period would be too simplistic and inflexible. The Liberal Democrats support the changes that have been made, which introduce some flexibility to depart from that figure when that is necessary to avoid
“a manifestly and materially unfair result”.
That will, of course, have to be decided by the courts.
A number of other changes were made at stage 2. Perhaps the main one, to which others have referred, relates to the relatives’ claim for loss of support. The removal of the requirement in the bill to disregard the income of the person making the claim was a positive step forward.
Once again I congratulate Bill Butler on introducing the bill and bringing it to what I know will be a successful conclusion at 5 o’clock. We are likely today to have a unique event in the Scottish Parliament because, subsequent to this debate, we will debate a bill that Bill Butler’s wife has introduced. Today the Parliament will consider on the same day bills introduced by a husband and wife; I do not think that that has happened before. I am sure that they will be extremely successful and that the bills will be passed at 5 o’clock.
Few members’ bills ever reach stage 3 and become law. Perhaps that is to be regretted. In future, the Parliament may look at encouraging more members to introduce legislation and to reach the conclusion that Bill Butler has reached today.
15:31
Like other members, I begin by stating that we should congratulate Bill Butler on his hard work and commitment and on bringing the bill to its final stages today. I, too, am pleased that consideration of the bill has fostered a constructive approach at all stages from members from all parties. That has continued to be evident during stage 3 proceedings this afternoon and in this final debate. There has been a strong consensus that the Damages (Scotland) Act 1976 should be reformed, but it has taken a great deal of work to arrive at where we are today. The bill was far from perfect at stage 1, but I am pleased that most of the issues have been addressed.
The present system for damages has a number of flaws, perhaps most notably the delays that families can experience in receiving compensation. One of the bill’s most important results is that, by and large, relatives who have recently been bereaved will not have to face lengthy court cases at a time when the last thing they need is further undue strain on their families. The bill, which I hope will be passed tonight, will help to speed up the process and allow individuals to rebuild their lives as quickly as possible.
Mr Butler’s bill largely implements the recommendations of the Scottish Law Commission’s 2008 “Report on Damages for Wrongful Death”. However, we should not lose sight of the fact that a large number of organisations and individuals—not least the Justice Committee, the Scottish Law Commission and those who gave evidence to the committee at stage 2—have contributed to the progress of the bill. Although the bill predates my time on the Justice Committee, as the current convener of the committee, I thank my predecessor Bill Aitken, the other committee members and the clerking team for their hard work on it.
The aim of the bill is to modernise and simplify the law in this area and to ensure that people are entitled to fair compensation. A number of changes were made at stage 2. Generally, those changes make the bill better. The first relates to the provision for calculating an award for damages in relation to non-patrimonial loss. At stage 1, the bill proposed a fixed 25 per cent deduction of the amount that the victim could have been expected to earn or to receive in benefits over the lost period, to represent their living expenses during that time. Concerns were raised that the arbitrary nature of the figure might not allow individual circumstances to be taken into account. I am therefore pleased that a degree of flexibility has been applied to the figure.
In the stage 1 debate last year, a number of members expressed concerns about the definition of those entitled to a recovery. The bill as introduced would have removed the existing right of certain relatives, beyond those defined as “immediate family”, to claim for damages, if they could show that they had been supported by the victim. As was stated during the stage 1 debate, we recognise that a line needs to be drawn to ensure that compensation is directed towards family members, rather than family acquaintances. I am pleased that the definition has been widened to take into account the fact that the nuclear family is not necessarily the norm and that others, such as partners’ children, are now included.
This has been an informed and mature debate. Again I congratulate Bill Butler on his work and the progress that he has made on the bill. I am pleased that the Scottish Conservatives will support the Damages (Scotland) Bill tonight at decision time.
15:34
Like others, I would like to congratulate Bill Butler on bringing this bill through to stage 3. I am sure that it will be passed at 5 o’clock. Bill has shown himself to be a complete parliamentarian, and he has been dogged and determined in pursuing the issue. When it becomes statute, the bill will make a real difference.
I compliment the minister on his constructive attitude in working with Bill Butler; I pay tribute to Thompsons Solicitors for the work that they have done and I pay tribute to the members of the Justice Committee, under the assured and competent stewardship of Bill Aitken, for the work that they did during the passage of the bill.
Robert Brown said that the important thing about this bill is that it affects real people. When there are wrongful deaths—for example, in accidents at the workplace—it is very stressful for the families who are left behind. That stress is compounded if the legal process is lengthy, with contentious issues being fought out in the courts by both sides. As Bill Butler said, the purpose of the bill is to create a cohesive and modern approach to achieving settlements. I believe that the bill will substantially improve the current situation: it will give greater clarity; it will reduce the time required; and it will mean less stress for the relatives. People will receive compensation more quickly, which will allow them to move forward, regain an element of stability and try to rebuild their lives.
During this stage 3 debate, members have drawn to our attention two main issues that have changed since our stage 1 discussions. First, there is the 25 per cent deduction for living expenses—and the corollary of that, which is the 75 per cent available for family support. At stage 3, that has become the default position, which will change only if the settlement is “manifestly and materially unfair”. The Parliament must be clear that that will apply only in exceptional cases, and I am glad that so many speakers in the debate have pointed that out.
A similar principle applies in relation to spousal disregard. The minister again made the position absolutely clear: he said specifically that it would be in only truly exceptional cases that the default of spousal disregard would not be followed—that is, only when something was “manifestly and materially unfair”. It is clear that the Parliament speaks with one voice on those issues, giving a clear signal to the courts.
In politics, it is important to make a difference. In passing this bill, the Parliament will make a difference and we should congratulate Bill Butler on pushing the issue forward and on seeing the bill through to completion. It will make a difference to people who have to endure the processes involved in reaching settlements in court.
15:38
I believe that in its approach to the bill this Parliament has done itself what Donald Dewar might have described as a modicum of credit. In a cross-party show of purpose, colleagues have been focused on doing what is right for the ultimate victims of wrongdoing—those who lose their lives, or who lose their loved ones.
However, the Parliament has not done this in a starry-eyed way. There has been no writing of blank cheques, either on our own bank account or anyone else’s. We have not simply rubber-stamped the recommendations that came from the Scottish Law Commission; still less have we taken those recommendations and loosened them. Instead, we have remembered that there is a balance to be struck and, with input from stakeholders from all quarters, we have taken a compassionate, but also a hard-headed look at the commission’s recommendations, and strengthened them where it appeared appropriate. We have sought to consider the interests of the taxpayer and the insurance policy holder, as well as the interests of the wrongfully killed and their relatives.
Of course, the bill is about money. It is about using money, as far as is possible, to put someone back into the financial position that they would have been in had the fatal injury not occurred. The bill’s financial implications were always going to be a source of contention. Some people might think that the bill gives them too little; others might think that the bill takes too much from them.
On the latter category, I am disappointed by the tone of the representations from the Forum of Scottish Claims Managers during the past few weeks. I do not have time in the debate to respond to all the forum’s complaints, but I have written to it in some detail. The forum’s estimated price tag for the bill—at least £52 million a year—appears to lack a firm foundation and is wholly out of line with other predictions that I have seen. Also, unlike the estimates that Mr Butler provided to the Finance Committee, the forum’s estimate seems not to be based on detailed assessment of real-world casework from any of its many member companies.
I am sure that members are aware that nearly six months ago the Scottish Government responded to the Finance Committee’s request for commentary on the financial data that Bill Butler had provided. The worked assessment, which has been in the public domain since then, suggested tentatively that the data indicated annual costs in the region of £4.7 million to £5.9 million. That is not an insubstantial amount, but it is hugely below the £52 million estimate of the Forum of Scottish Claims Managers.
As members of all parties said, the bill’s purpose is to provide fair compensation in an efficient manner, where death has been wrongfully caused. It is, in essence, about putting people back into the financial position that they would have been in if there had been no fatality. It is the cost of doing the right thing.
I am not persuaded by suggestions that the cost of doing the right thing is too high and that people who have the misfortune to suffer the ultimate loss should not be properly supported. The Government’s view is that even in these financially challenging times—perhaps especially in these financially challenging times—we should not be kicking people who are already down and desperate through no fault of their own. The bill will provide financial justice for the bereaved.
I am pleased to have worked with Bill Butler throughout the passage of the bill and I echo all members’ remarks about the hard work that he undertook, with his advisers, to help to pilot through a bill that was not exactly straightforward. We thank him for that effort. The Government has been pleased to play a part in helping to turn the bill into what I hope and expect will be a good piece of legislation. I thank all members of the Justice Committee, most particularly the former convener, Bill Aitken.
I support the bill. It is a good bill and this is a good day for the Scottish Parliament.
15:43
This has been a good debate on an important area of the law of Scotland. The bill’s objective, as Mr Ewing succinctly put it in the stage 1 debate,
“is about trying to facilitate fair compensation”.—[Official Report, 15 December 2010; c 31545.]
It is indeed about fair compensation, delivered as speedily as possible for victims and their loved ones in cases of wrongful death, without the need for unnecessarily long procedures and distressing court cases.
I very much appreciated members’ thoughtful speeches and the positive tone of all the speeches. On the two interconnected provisions of the bill, on which I asked the minister to comment, I greatly appreciate Mr Ewing’s remarks with regard to fixed percentages and the precisely drawn rebuttable presumption, which was added to the bill at stage 2. Anyone who reads the minister’s words in the Parliament today and who applies their critical faculties objectively can be left in little doubt as to the intent of the bill. The minister has made it crystal clear that the flexibility to depart from fixed percentages is a high test, precisely drawn, which does not invite a challenge except in very rare—some people might say hypothetical—circumstances in which it could be claimed that the result would be “manifestly and materially unfair”.
I also thank the minister for his remarks on the requirement in the bill to disregard the income of the person who is making the claim for loss of support. It is clear to me and, I hope, any fair-minded observer that deletion of section 7(1)(b) does not, in the Government’s considered view, mean that the principle is undermined and that, in fact, it remains intact, other than in what I choose to call the hypothetical cases in which manifest and material unfairness can be claimed and substantiated.
Lest it be thought that stage 2 consisted of matters on which agreement was always difficult to achieve, I state for the record that many of the matters that were highlighted at stage 1 were disposed of by consensus at stage 2.
Instances of that include the reinstatement of the approach that is currently contained in the Damages (Scotland) Act 1976 in relation to the categories of relatives. They also include the deletion of the term “grief and companionship award”, which followed the correct conclusion of paragraph 123 of the Justice Committee’s stage 1 report, which favoured
“retaining the established approach of not fixing a name in statute”.
A final example is the removal of a statement in the bill on the issue of mental disorder, which is wholly correct. Colleagues were right to decide that such a complex, weighty matter should wait until separate legislation on damages for psychiatric injury could be considered in a more measured, prolonged way.
Members have been kind in their remarks on the bill, for which I thank them. However, thanks should be extended to many other people: the Scottish Law Commission for its detailed work that formed the basis of the bill; those who made written submissions to the committee and those who gave oral evidence; the Scottish Parliament information centre for its sterling support; Dave Scott—the ubiquitous Mr Scott—in my constituency office; the Justice Committee clerking team for its usual high standard of work; my colleagues on the Justice Committee and its longstanding, inimitable convener, Bill Aitken; the non-Executive bills unit for its contribution; Tracey White and the Parliament’s legislation team; my advisers at Thompsons—Laura Blane, Frank Maguire, Patrick McGuire and lain Jamieson—without whose experience and expert advice I would have been left floundering, to tell the truth; and the minister, Fergus Ewing, and his officials. Mr Ewing’s constructive approach at all stages has proved that, where the subject demands it—where it is serious—party political differences can and must be set aside.
Above all, I record my appreciation and admiration for the members of groups that represent victims and their loved ones, including Clydeside Action on Asbestos and the Clydebank Asbestos Group, many of whom are in the public gallery. We would not be discussing the modernisation of damages legislation and justice for victims and their loved ones today if it were not for the commitment and dedication of those groups of devoted activists over many years.
At 5 o’clock, let us vote for a bill that will deliver fair and speedy compensation for victims of wrongful death and their loved ones. Let us change the law of Scotland and, in doing so, make our society a more just, more humane place in which to live and work.