The next item of business is stage 3 of the Courts Reform (Scotland) Bill. In dealing with the amendments, members should have: the bill as amended at stage 2, which is SP Bill 46A; the marshalled list, which is SP Bill 46AML; and the groupings paper, which is SP Bill 46AG.
The division bell will sound and proceedings will be suspended for five minutes before the first division of the afternoon. The period for voting in the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call the group. Members should now refer to the marshalled list of amendments.
Section 2—Power to alter sheriffdoms, sheriff court districts and sheriff courts
Group 1 contains minor and technical drafting amendments. Amendment 19, in the name of the Cabinet Secretary for Justice, is grouped with the other amendments that are shown on the groupings paper. I call the cabinet secretary to move amendment 19 and to speak to all the amendments in the group.
In the main, the 24 amendments in the group are minor and technical in nature, and will in general improve the clarity and consistency of the bill’s provisions. However, a couple of the amendments will benefit from some explanation.
Amendment 31 will remove section 101(7)(b) from the bill. I am satisfied that the provision in the section is unnecessary. The inherent power of the court to deal with vexatious proceedings was recognised by Lord Reed in the case of the Lord Advocate v Andrew McNamara, on which he observed that
“an action might be dismissed as incompetent if it was not brought for a legitimate purpose.”
I consider that the provision in section 101(7)(b) could have been read as a limitation of that power. Its removal clarifies that the power to dismiss vexatious proceedings is not just available to the court in proceedings that are brought by a litigant who has had a vexatious litigation order made against them.
In addition, the bill will, under new sections 96(1) and 97(1), expand the Court of Session’s powers to make rules, thereby allowing the court to make provision both for and about the steps that the court may take where there has been an abuse of process—for example, the raising of vexatious proceedings—in any case.
14:30Amendment 37 will amend section 111, which will amend the Court of Session Act 1988 by replacing its section 40. The effect of the replacement is to provide that permission will be required prior to an appeal being possible from the Court of Session to the Supreme Court. The amendment is consequential on that change, and will ensure that appeals from decisions, whether final or interlocutory, in exchequer or tax cases continue to be treated in the same way as appeals to the Supreme Court from final judgments: that is, on their merits.
I am happy to answer members’ questions.
I move amendment 19.
I do not have a question on the amendments. My only question is why 24 drafting amendments are being brought here at stage 3, in addition to a number of other amendments, when the Government drafted the bill. Why do we have all these errors that must be corrected at the final hurdle?
The bill is very complicated and drafting is, by its nature, a very complicated action. We should welcome the diligence that parliamentary draftsmen have shown.
Amendment 19 agreed to.
Section 5—Summary sheriffs
Group 2 is on the number of summary sheriffs. Amendment 60, in the name of Margaret Mitchell, is the only amendment in the group.
In his written evidence, the Lord President emphasised the importance of the appointment of summary sheriffs when he stated:
“The absence of this third judicial tier ... has been a flaw in our court system for too many years.”
The introduction of summary sheriffs will fill that void and is to be welcomed.
The Lord President also confirmed in evidence at a Justice Committee meeting the vital part that summary sheriffs would play in securing the success of the court reforms when he stated:
“The key to the whole thing is the appointment and effective deployment of summary sheriffs, because that arrangement provides the opportunity to take out a huge case load from the lower end of the sheriff court and to free up that court. The reforms start at the bottom and work their way up. The key is to get the summary sheriffs system working effectively.”—[Official Report, Justice Committee, 22 April 2014; c 4533.]
However, during oral evidence on 29 April, the Minister for Community Safety and Legal Affairs emphasised that
“it will take about 10 years to make the crossover”.—[Official Report, Justice Committee, 29 April 2014; c 4567.]
She also emphasised that summary sheriffs will be phased in when it is appropriate to do so.
Amendment 60 is a probing amendment; it is not an attempt to micromanage the Scottish Court Service. Its effect would be to ensure that an adequate number of summary sheriffs would be appointed during the implementation phase of the reforms, in order to safeguard the efficient delivery and administration of justice. Furthermore, it would assist members to hold the Government to account on the reform as we conduct much-needed post-legislative scrutiny. Therefore, I would be grateful if the cabinet secretary could provide further clarification and reassurance about the appointment of summary sheriffs.
I move amendment 60.
I am happy to try to do that. Amendment 60 seeks to ensure that
“The First Minister must recommend a sufficient number of individuals for appointment to the office of summary sheriff ... in order to ensure the efficient administration of justice.”
The amendment is unnecessary, although I accept the spirit in which Margaret Mitchell has moved it as a probing amendment.
The Lord President of the Court of Session is under an obligation in terms of section 2(a) of the Judiciary and Courts (Scotland) Act 2008 to ensure
“the efficient disposal of business in the Scottish courts”.
Under section 1(2)(a), the First Minister is under an obligation to have regard to the need for the judiciary, which includes the Lord President,
“to have the support necessary to enable them to carry out their functions.”
The appointment process for judges, which will also apply to the appointment of summary sheriffs, involves a close working relationship between the Scottish Government, the Judicial Appointments Board for Scotland, the Lord President and the Scottish Court Service. That working relationship was established under the 2008 act, which the Parliament passed unanimously.
The substance of Margaret Mitchell’s amendment already forms part of the obligations that are incumbent on the First Minister under the 2008 act. I urge her to withdraw amendment 60 in the recognition that the information and requirements are already sufficient.
I thank the cabinet secretary for his explanation. It is good that that is on the record and that the point has been highlighted, which raises awareness. On that basis, I am happy to seek to withdraw amendment 60.
Amendment 60, by agreement, withdrawn.
Section 39—Exclusive competence
Group 3 is on proceedings for damages for personal injury. Amendment 61, in the name of Elaine Murray, is grouped with amendments 65 and 7 to 9.
The Parliament has always taken seriously personal injury that is caused by exposure to asbestos. Many members have raised the issue in Parliament through various mechanisms, including members’ business debates. Des McNulty promoted a member’s bill on it back in 2006 and we passed the Scottish Government’s Damages (Asbestos-related Conditions) (Scotland) Act 2009.
My colleague John Pentland brought amendments similar to amendments 61 and 65 to the Justice Committee at stage 2, when the cabinet secretary assured us that the Government believes that all cases that merit counsel will continue to benefit from counsel. The cabinet secretary also said that later stage 2 amendments to ease the test for remit from the sheriff court to the Court of Session would allay concerns.
Mr MacAskill assured the committee that he would continue to meet Clydeside Action on Asbestos regularly during the bill’s passage, to ensure that those who suffer from asbestos-related conditions and those who have lost loved ones to such conditions are supported through the court process and receive the justice that they deserve. However, I do not believe that he has reassured Clydeside Action on Asbestos because, at 4.15 last Wednesday, I was contacted with the request that we lodge the amendments again. I welcome CAA members to the public gallery to hear the proceedings.
The illnesses—many of which have been caused by occupational exposure to asbestos fibre, often many years ago—include mesothelioma, lung cancer, asbestosis and pleural plaques. The victims who suffer from those conditions are a legacy of Scotland’s industrial history and they deserve the Parliament’s full support.
I expect the Government to argue that the complexity of asbestos-related conditions will ensure that cases are remitted to the Court of Session and are not considered under simple procedure. I do not doubt that arguments will be made about the difficulties of legislating for one group of personal injuries.
However, the Parliament has already legislated for this group of personal injury sufferers by passing the legislation that the Government introduced in 2009. What has changed? Even if, because of the complexity of asbestos-related cases, it is highly unlikely that such cases would be considered under simple procedure or heard outwith the Court of Session, why not make it clear in the bill that the exclusive competence will not apply to asbestos-related cases and that they will not be considered under simple procedure? What is the harm in providing that reassurance to sufferers of such industrial disease and their families and to surviving relatives? Amendment 61 would disapply the sheriff court’s exclusive competence from personal injuries that were caused by exposure to asbestos.
Amendment 65 would exclude such cases from being heard under simple procedure. The stage 2 amendments to prevent any cases that are raised in the specialist personal injury court from being subject to simple procedure might cover that amendment’s intention; I will listen to what the cabinet secretary says about that. However, I am not sure that the entire intention is covered, and my amendment would prevent any asbestos-related cases from being heard under simple procedure.
Amendments 7 to 9 concern appeals from the personal injury court going to the Court of Session rather than the sheriff appeal court. Similar amendments were defeated by five votes to four at stage 2, but my opinion is still that there are compelling arguments for considering the amendments, so I have brought them back.
The intention in the bill is to set up a specialist personal injury court, where cases will be heard by two specialist personal injury sheriffs—not sitting together—and, unless certain conditions apply, cases will be heard by a jury of 12 people. As the bill stands, appeals against the decisions of that court could be heard by a sheriff appeal court that might consist of one sheriff sitting alone, possibly without the specialist expertise in personal injury cases that the original sheriff had. That seems inconsistent, as surely appeals against decisions that are made by a specialist court should be heard by a specialist court. The Court of Session, which, of course, will be hearing personal injury cases of values above the privative limit will have that specialism.
At stage 2, the Minister for Community Safety and Legal Affairs expressed confidence that the rules of court and the president of the sheriff court would ensure that the appropriately constituted court would hear the appeal. She also argued that section 106 allows
“the sheriff appeal court to remit the appeal to the Court of Session”. —[Official Report, Justice Committee, 17 June 2014; c 4757.]
In addition, the minister argued that section 102B, which was inserted into the bill by a very welcome amendment from John Finnie, would also help to ensure that. It applies the test that was proposed by Sheriff Principal Taylor that, in both the sheriff court and the sheriff appeal court, the court must have regard to the difficulty or complexity of the case and to what we have termed equality of arms when deciding to sanction the employment of counsel.
Finally, the argument was made that there was no justification for treating one category of case—personal injury—differently from all others. However, if that is the case, why is the only specialist court that is being set up the personal injury court? We are already treating personal injury differently.
Those arguments miss the point of the principle behind my amendment. It is not about equality of arms or what the president of the sheriff court is able to do. It is about whether it is appropriate for an appeal heard by a specialist sheriff and a civil jury to be potentially heard by a single sheriff or even three sheriffs, none of whom might be specialist injury sheriffs. I contend that it is not appropriate and that those appeal cases should be heard in the Court of Session.
I move amendment 61. [Interruption.]
Order. Stuart McMillan is next.
I highlight my declaration in the register of members’ interests.
I am very much aware that all cases that merit counsel will continue to benefit from it. That is true of the sheriff court, the new personal injury court and the sheriff appeal court. However, I am also very much aware of Sheriff Principal Taylor’s comments at the Justice Committee:
“a complex asbestosis case will probably be remitted to the Court of Session. However, even if it were to remain in the sheriff court, it would almost certainly merit sanction for counsel.”—[Official Report, Justice Committee, 22 April 2014; c 4527.]
Given the comments that have been made in the past, I seek assurances from the cabinet secretary that asbestos-related cases will receive the funding for counsel that they require and that they can revert to the Court of Session due to the complex nature of such cases.
I welcome Clydeside Action on Asbestos to the public gallery and pay tribute to its great campaign.
Of course, asbestos-related illness does not apply just in Clydeside and I have written to the Cabinet Secretary for Justice about one of my constituents, who is affected by asbestos in that particular way.
The answer that members want—the answer that Clydeside Action on Asbestos wants—is in the answer to three questions that were put very succinctly and effectively by Elaine Murray. First, what is the harm in doing what Elaine Murray proposes in her amendments? Secondly, what is the answer to the question about exceptional circumstances? We already treat asbestos as an exceptional circumstance and the legislation that we passed in 2009 bears testimony to that. Thirdly, if the cabinet secretary still does not accept Elaine Murray’s amendments, can he at least tell us what he has done to fulfil the commitment that he made at the Justice Committee to ease the test for remit from the sheriff court to the Court of Session?
I support the amendments in Elaine Murray’s name and I hope that, at the last minute, the cabinet secretary will have a change of mind.
I will address amendments 7, 8 and 9 first. It seems entirely logical that, if a claim is to be heard in a specialist court, an appeal from that court should be able to be heard in the Court of Session. It is then up to the Court of Session to grant disposal as it sees fit. I am happy to support those amendments in Elaine Murray’s name.
However, although I have huge and immense sympathy with the intention behind amendments 61 and 65, section 88 already allows the sheriff to remit proceedings to the Court of Session if
“the importance or difficulty of the proceedings makes it appropriate to do so”
and I think that it would be wrong to single out asbestos cases. We should not distinguish between those cases and other cases in the personal injury category, which are wide ranging.
14:45
My recollection is that the Justice Committee took the view that Margaret Mitchell just elucidated—although we have huge sympathy for asbestosis cases, we did not want to select one category from all the other kinds of injury cases that might arise from employment, in the past or in the future. That was why we did not support similar amendments at stage 2, and I seem to remember that all members agreed with that at the time.
The Scottish Government and ministers have great sympathy for those who suffer from asbestos-related diseases and for their families. We have heard similar thoughts from around the chamber. Concerns have been expressed, but we have also heard the points that Christine Grahame and other members have made. I will try to give Stuart McMillan the reassurance that he desires. I know that he, along with Clydeside Action on Asbestos, has been tenacious in looking after the interests of those who have suffered.
We have legislated to ensure that a person who is dying from mesothelioma can receive damages without preventing members of their family from making a future claim. We have also supported legislation that clarifies Scots law as it relates to damages for fatal personal injuries. The argument behind amendments 61 and 65 is that, due to the complexity of personal injury cases that are caused by exposure to asbestos, those cases should be treated differently from other cases. Amendment 61 would result in all damages claims for less than £100,000 in respect of personal injuries that were caused by exposure to asbestos remaining competent in the Court of Session. Amendment 65 would result in cases with a value of less than £5,000 being excluded from being dealt with under the new simple procedure.
I fully acknowledge that asbestos cases can be complex. However, on whether they should all be able to be raised in the Court of Session, regardless of value, I agree with Sheriff Principal Taylor, who said:
“a complex asbestosis case will probably be remitted to the Court of Session. However, even if it were to remain in the sheriff court, it would almost certainly merit sanction for counsel.”—[Official Report, Justice Committee, 22 April 2014; c 4527.]
The Government believes that all cases that merit counsel will continue to benefit from it. That is true of the sheriff court, the new personal injury court and the sheriff appeal court.
Section 102B, which was inserted by an amendment by John Finnie at stage 2, has secured that position by putting the test that Sheriff Principal Taylor recommended for sanction for counsel in the bill. The section enshrines the equality of arms principle and addresses the concerns about access to appropriate legal representation in complex cases in the sheriff court.
At stage 2, John Pentland lodged an amendment that was similar to amendment 61 and would have excluded actions for damages in personal injury asbestosis cases from the exclusive competence, but it was withdrawn on the basis that the content of the bill on sanction for counsel was improved in the way that I have outlined. Members of the Justice Committee, including Margaret Mitchell, raised concerns regarding some types of complex cases being treated differently from others. The convener stated at stage 2:
“I have huge sympathy for the amendment but if we take one group and say that it is special, another group will come along and say that it is special, too.”—[Official Report, Justice Committee, 10 June 2014; c 4663.]
Amendment 65 would result in cases with a value below £5,000 being excluded from being dealt with under the new simple procedure. Sections 70A and 75A, which again were inserted by amendments by John Finnie at stage 2, will allow cases with a value below £5,000 to be held, where appropriate, in the personal injury court and not be subject to simple procedure.
Under the bill, the Scottish Civil Justice Council will be able to make specialist rules in personal injury cases and in personal injury cases under the simple procedure. The Government believes that all cases that merit counsel will continue to benefit from the expertise of counsel. Most asbestosis-related disease cases, even those of relatively low financial value, will fall into that category. When those cases are heard in the sheriff courts or the specialist personal injury court, the sheriff, who will have all the facts before him or her, will be best placed to decide whether sanction for counsel is appropriate.
Elaine Murray lodged similar amendments to amendments 7 to 9 at stage 2. The amendments, which are a package, would mean that all appeals against final decisions by the personal injury court would be heard in the Court of Session rather than the sheriff appeal court, although decisions of the personal injury court that do not constitute final judgment would continue to go to the sheriff appeal court.
It is an important principle of Lord Gill’s review that courts have the flexibility to allocate the right judicial resources to the right courts, which is why he recommended the establishment of a sheriff appeal court to deal with all appeals from the sheriff courts. I am confident that the rules of court and the president of the sheriff appeal court will ensure that an appropriately constituted bench will hear all appeals. That bench will be made up from among the six sheriffs principal and other appeal sheriffs who will all be sheriffs of more than five years’ experience.
There may be concern about the complexity of a personal injury appeal. I understand that that might be a particular issue following section 69 of the Enterprise and Regulatory Reform Act 2013, which removes automatic civil liability for breach of statutory health and safety duties. The bill permits the sheriff appeal court to remit an appeal to the Court of Session on the application of one of the parties if it is satisfied that the appeal raises a complex or novel point of law.
I oppose Elaine Murray’s amendments and believe that we have satisfied the concerns that Stuart McMillan and others have expressed.
I will clarify what happened at stage 2. John Pentland withdrew his amendment and said that he was doing so for the time being because we were promised that other amendments would address all his concerns and, indeed, those of Clydeside Action on Asbestos. The people at Clydeside Action on Asbestos are the experts on the issue. They were not reassured and asked for the amendments to be reconsidered at stage 3 in light of the amendments to the bill.
We have, rightly, already legislated for asbestosis-related conditions separately in 2009. The Parliament has recognised that there are specific issues with that form of personal injury, which is the result of a shameful industrial legacy. The Scottish justice system must serve those who are affected justly, fairly and with the utmost efficiency. The victims of such conditions and their families are entitled to have in the bill the sort of assurances that my amendments present.
The issue with the personal injury court is still about the level of specialism that has to exist in the appeal court when it hears an appeal against a judgment of a specialist court. It is only appropriate that another court with a similar level of expertise be able to hear that appeal. Therefore, I continue to support my amendments 7 to 9 on that matter and will press amendment 61.
The question is, that amendment 61 be agreed to. Are we agreed?
Members: No.
There will be a division. As this is the first division at stage 3, I suspend proceedings for five minutes.
14:53 Meeting suspended.
We move to the division on amendment 61.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 31, Against 81, Abstentions 0.
Amendment 61 disagreed to.
After Section 41
Group 4 is on all-Scotland jurisdiction: concurrency with local jurisdiction. [Interruption.]
I ask those who are leaving the chamber to do so quickly and quietly.
Amendment 20 in the name of the cabinet secretary is grouped with amendments 22, 23, 27, 30 and 40. [Interruption.]
We will have a short suspension to allow the public gallery to clear.
14:59 Meeting suspended.
I call the cabinet secretary to move amendment 20 and speak to all the amendments in the group.
Section 41 provides that the Scottish ministers may make an order providing for the jurisdiction of a sheriff of a specified sheriffdom sitting in a specified sheriff court to extend throughout Scotland for specified kinds of civil proceedings. It allows the setting up of the specialist all-Scotland personal injury sheriff court.
As the bill stands, it is not clear that a designated all-Scotland personal injury court is, in relation to personal injury cases, still able to sit and function as a local sheriff court. Amendment 20 clarifies that, and the other amendments in the group are consequential. Thus, a designated specialist sheriff court could deal with a personal injury case in two ways: either as the specialist all-Scotland court or as the local sheriff court. Section 41(5) leaves the choice up to the pursuer. Section 41(6) preserves the sheriff’s power to overrule if the sheriff considers that a case would be better dealt with by the specialist all-Scotland court or, as the case may be, by the local court.
I move amendment 20.
Amendment 20 agreed to.
Section 46—Jurisdiction and competence
We move to group 5. Amendment 62, in the name of Margaret Mitchell, is grouped with amendments 63 and 64.
Amendment 62 is consequential on amendment 63. The effect of the amendments would be to ensure that the de facto seniority of appeal sheriffs is duly recognised when any decision that they may make in their capacity as a sheriff under section 49(4) is appealed in the sheriff appeal court. The amendment provides that those appeal cases would be heard either by a sheriff principal or a senator of the College of Justice, who also hold office as appeal sheriffs. That is to satisfy the Gill review recommendation and view that it would be
“inappropriate for an appellate court to consist of members of the same level of judicial hierarchy as those from whom an appeal is marked.”
The amendments take on board the comments made by the cabinet secretary at stage 2 when I attempted to address this concern. In particular, the cabinet secretary questioned the availability of resources with regard to the stage 2 amendments that I lodged in an attempt to address the issue. I emphasise therefore that amendments 62 and 63 would place little or no additional burden on the resources of the court system.
Also at stage 2, the cabinet secretary emphasised that
“the bill proposes that the sheriff appeal court should hear not only civil appeals from the sheriff court but summary criminal appeals”
and that the appeal sheriffs
“will be highly qualified and experienced judges and will ... have the appropriate expertise.”—[Official Report, Justice Committee, 10 June 2014; c 4676.]
On the strength of those remarks, amendment 64 would require that candidates for the role of the appeal sheriff must
“appears to the Lord President to have a high level of legal knowledge and experience in civil and criminal law and practice.”
I move amendment 62.
I rise to support the amendments, which I believe are in the same spirit as my amendment 79. They would require an appropriate level of expertise in the sheriff court, and we will support them.
Amendments 62 and 63 would severely restrict the choice of judges in the sheriff appeal court who can hear appeals that arise from a case that was initially heard by a sheriff who is also an appeal sheriff. Although there is no suggestion that the same judge would hear the appeal, it would be a logistical problem to ensure that, in those cases, and without regard to complexity or importance, such an appeal could be heard only by a sheriff principal, of whom there are only six, assuming that all are in post, or a former appeal sheriff who had also been a sheriff principal, of whom there are not and will not be many.
The sheriff appeal court may deal with a variety of appeals, from straightforward procedural issues to weighty matters of legal uncertainty. As such, the bill empowers the president of the court to determine which judge or judges sit on the bench in any case; it also empowers the Court of Session to set out in rules of court the quorum of judges required for particular sittings of the court. Amendments 62 and 63 would cut across that flexibility and impose a rule that would severely curtail the number of judges who may be deployed. It is easy to see delays occurring.
Section 2A(c), which amendment 63 would introduce, does not make sense in terms of the bill. It purports to allow a Court of Session judge who has ceased to act as an appeal sheriff under a provision in schedule 1A to be one of the restrictive categories of judge, provided that they had been appointed as a re-employed appeal sheriff under section 50. The bill does not permit that. Schedule 1A expressly provides that a Court of Session judge is not eligible for appointment under section 50 as a re-employed former appeal sheriff.
Amendment 64 displays a lack of trust in Scotland’s judiciary that I do not share. It would require that appeal sheriffs appointed under section 49 must not only have been sheriffs for five years, as currently provided for, but also, in the Lord President’s view,
“have a high level of legal knowledge and experience particularly in civil and criminal law and practice.”
The amendment presumes that not all sheriffs have a high level of legal knowledge. That undermines the reputation of the judiciary in Scotland and I take issue with that. It suggests a lack of trust in the Lord President, in that they might appoint someone to the role of appeal sheriff who had neither a high level of legal knowledge nor a high level of experience. I trust the Lord President to appoint suitable sheriffs to be appeal sheriffs and find it worrying that Margaret Mitchell does not.
I oppose amendments 62, 63 and 64.
I have had a late request to speak from Graeme Pearson, which gives the cabinet secretary the right to respond, should he so wish.
I speak on a matter of clarity. Dr Murray indicated our support for the amendments. To be clear, we support amendments 62 and 63, but we believe that amendment 64 is unnecessary.
Cabinet secretary, do you have anything to add?
No.
I call on Margaret Mitchell to wind up and press or withdraw amendment 62.
I am not persuaded by the cabinet secretary’s argument. Rather than restricting the choice of judges, amendments 62 and 63 would address Lord Gill’s fundamental point, namely that it is
“entirely inappropriate for an appellate court to consist of members of the same level of judicial hierarchy as those from whom an appeal is marked.”
Amendment 64 would merely put in place the prerequisite that sheriff court appeal judges have the same experience as is required by sheriffs principal.
The question is, that amendment 62 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 43, Against 68, Abstentions 0.
Amendment 62 disagreed to.
Amendment 63 moved—[Margaret Mitchell].
The question is, that amendment 63 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 44, Against 67, Abstentions 0.
Amendment 63 disagreed to.
Section 49—Appointment of sheriffs as Appeal Sheriffs
Amendment 64 moved—[Margaret Mitchell].
The question is, that amendment 64 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rowley, Alex (Cowdenbeath) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 12, Against 100, Abstentions 0.
Amendment 64 disagreed to.
Section 54—President’s responsibility for efficient disposal of business
Amendment 21 moved—[Kenny MacAskill]—and agreed to.
Section 61—Civil jury trials in an all-Scotland sheriff court
Amendments 22 and 23 moved—[Kenny MacAskill]—and agreed to.
Section 70—Simple procedure
Amendment 24 moved—[Kenny MacAskill]—and agreed to.
Amendment 65 moved—[Elaine Murray].
The question is, that amendment 65 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 40, Against 71, Abstentions 0.
Amendment 65 disagreed to.
Amendments 25 and 26 moved—[Kenny MacAskill]—and agreed to.
Section 70A—Proceedings in an all-Scotland sheriff court
15:15Amendment 27 moved—[Kenny MacAskill]—and agreed to.
Section 72—Rule-making: matters to be taken into consideration
Amendment 28 moved—[Kenny MacAskill]—and agreed to.
Section 73—Service of documents
Amendment 29 moved—[Kenny MacAskill]—and agreed to.
Section 75A—Proceedings in an all-Scotland sheriff court: transfer to simple procedure
Amendment 30 moved—[Kenny MacAskill]—and agreed to.
Section 85—Judicial review
That takes us to group 6. Amendment 5, in the name of Dr Elaine Murray, is grouped with amendments 1, 6 and 2.
I draw members’ attention to the note on the list of groupings. Amendments 5 and 1 are direct alternatives, which means that I can call both. If amendment 5 is agreed to, the Parliament will still be able to decide whether to agree to amendment 1. If it does, amendment 1 will replace amendment 5. The same applies to amendments 6 and 2. I hope that that is clear.
I lodged an amendment on this matter at stage 2, arguing that the three-month time limit in the bill for applications for judicial review should commence when the applicant becomes aware of the grounds for an appeal rather than when the grounds arise. The Minister for Community Safety and Legal Affairs argued that that would be a subjective test, that it could lead to legal arguments about when the requisite knowledge had been acquired and that that could protract proceedings unnecessarily. As that approach was rejected on those grounds, my amendments 5 and 6 would extend the period of application for judicial review from three to six months.
The committee heard a range of views from witnesses on the time limit. Several argued that three months is insufficient time to put together a case and secure funding, particularly in the case of appeals from community groups. On the other hand, it is desirable that judicial review be made promptly and resolved quickly, but that should not be at the expense of fairness.
At stage 2, the minister also made the point that the three-month period operates satisfactorily in England and Wales. However, her colleague Roderick Campbell informed the committee that judicial review is much less common in Scotland than it is in England and Wales. I therefore contend that the time limit can be extended to ensure fairness to applicants when an appeal may be more complicated, in circumstances in which community groups are involved or when the securing of funding for an appeal is not straightforward.
Six months seems a sensible compromise, considering the different opinions that the committee heard from witnesses. My feeling is that 12 months would be too long and could result in a protracted review process and that, under the circumstances, six months is the appropriate time.
I move amendment 5.
A three-month limit for applications for judicial review is needlessly restrictive and will erode access to justice. As Elaine Murray said, her amendments 5 and 6 seek to raise it to six months. My amendments 1 and 2 seek to go further and extend the time limit from three to 12 months.
During the committee’s consideration of the bill, a significant number of witnesses and organisations told us that the provisions in the bill are fundamentally imbalanced. Jonathan Mitchell QC said that the proposed three-month limit would be “unique” in Scotland. It is far more restrictive than other limits such as the three-year limit for claiming after a road accident and the five-year limit for a contract dispute. It also provides insufficient time to assemble a case and secure funding.
It is reasonable to expect that community groups will take longer than is proposed to marshal a case given their need to gather, discuss options and agree on a course of action. The evidence that we received also indicated that such a short period would present real challenges to those who require legal aid or need to find a solicitor who is willing to act pro bono or for a reduced fee.
Although the time limit can be waived, it will still prevent the proper exploration of alternative dispute resolution. Pursuers will be hurried into an appeal almost immediately or will commence proceedings to preserve their position, and the presumptive limit is likely, unreasonably, to put others off exploring judicial review altogether.
The Legal Services Agency tells us that the lesson from England and Wales is that the three-month deadline that operates there is very tight—and that is in spite of the fact that petitioners there enjoy a comparative wealth of expertise and resources that simply does not exist in Scotland because of our weaker history in the area.
Rather than ride roughshod over the 12-month limits in the Human Rights Act 1998 and the Scotland Act 1998, I believe that it would be appropriate to bring the bill into line with those acts. Justice Scotland, Friends of the Earth, the Environmental Law Centre Scotland and the Legal Services Agency all agree.
Ministers have repeatedly told us that there is a public interest in judicial review challenges being made promptly and resolved quickly. However, judicial review is the public’s final opportunity to contest acts of the state and ensure that public bodies do not exceed or abuse their jurisdiction. It is certainly not in the public’s interest to risk undermining a just and proportionate process in the pursuit of undue haste.
I declare an interest: I am a member of the Faculty of Advocates.
I accept that the existing common-law situation, with the requirement to plead mora, taciturnity and acquiescence in issues to do with delay in judicial review petitions, is no longer fit for purpose. I also agree with Elaine Murray that Scotland is not overburdened by the volume of petitions for judicial review, outside the field of immigration and asylum. The climate here is different.
However, if we are to have a time limit, what should it be? Is a three-month time limit too restrictive? Clearly it will be a shock to the system for practitioners, and it is certainly short in comparison with other time limits in the system, such as we have in relation to human rights action, as Alison McInnes said.
Nevertheless, the Justice Committee heard evidence about the merits of a pre-action protocol, which is something that the Scottish Civil Justice Council can consider. We also heard from Lindsay Montgomery, from the Scottish Legal Aid Board, that when there is an issue to do with funding for a judicial review petition SLAB can
“deal with special urgency cases in 1.1 days on average.”—[Official Report, Justice Committee, 1 April 2014; c 4498.]
As we heard, there is provision in section 85 for the court to extend the period to
“such longer period as the Court considers equitable”.
There is therefore a fall-back position.
If I were persuaded that the three-month time limit would deny a significant number of people access to justice, I would oppose it. I am not so persuaded.
I share Alison McInnes’s concern that a three-month time limit might not give community groups adequate time in which to organise, marshal their arguments and—crucially—secure funding, and that it might therefore restrict access to justice. My preference is for a 12-month limit in relation to judicial review, but six months would be preferable to three months.
I echo what Roddy Campbell said—I did not know that he was going to speak on this group of amendments. Under section 85, proposed new section 27A of the Court of Session Act 1988 provides:
“(1) An application to the supervisory jurisdiction of the Court must be made before the end of—
(a) the period of 3 months beginning with the date on which the grounds giving rise to the application first arise, or”—
I emphasise “or”—
“(b) such longer period as the Court considers equitable having regard to all the circumstances.”
If paragraph (b) were not there, I would share the concerns of members of other parties. However, the court will always have discretion to look at all the facts and circumstances of the application.
The sets of amendments that Elaine Murray and Alison McInnes lodged would significantly extend the time limit beyond what Lord Gill suggested in his review—to six months and 12 months, respectively.
There is a public interest in judicial review challenges being made promptly and resolved quickly. Some 73 per cent of the respondents to the Scottish civil courts review consultation thought that the system needed reform. It should be possible to challenge public authorities’ decisions, but if decisions are made appropriately they should not be delayed. A balance has to be struck.
The time limit is drafted to provide fairness to applicants, while reflecting the public interest in having settled decision making. We recognise that there might be occasions on which the time limit needs to be extended, so the bill gives the court discretion to do that, having considered all the circumstances.
Lord Gill recommended a three-month time limit. Such a time limit has operated satisfactorily in England for a considerable time. The Scottish Government consulted on the matter and a majority of the respondents were in favour. In evidence to the committee at stage 1, Sheriff Principal Taylor and Lord Gill supported a three-month limit.
During stage 1, anxiety was expressed about whether legal aid could be arranged within such a timescale, but Lindsay Montgomery, from the Scottish Legal Aid Board, assured the committee that the timescale would not present a problem. Indeed, applications could be made under the legal aid special urgency provisions, if necessary.
At stage 2, Asda, supported by the Scottish Retail Consortium, campaigned for a shorter period of six weeks for planning cases and sponsored an amendment in that regard, which Margaret Mitchell lodged—the amendment was subsequently withdrawn.
We considered Asda’s case carefully before we decided to oppose the amendment; we are aware that delays in planning cases can have serious consequences for the applicant and for the local and/or national economy. In its written evidence to the Justice Committee, Asda made it plain that delays result in lost investment, delays in local job creation, financial impacts on the building industry, and uncertainty about the project’s overall viability.
We finally opposed the amendment because we were aware of the sensitivities that the committee had expressed about the period of three months and because we were satisfied that a simple, straightforward and consistent time limit should apply to all applications. The Lord President concurred. However, an increase in the time limit to 26 weeks or 52 weeks would bring all Asda’s arguments into play. It is not in Scotland’s interests to introduce further delays by longer time limits.
If members are not swayed by the argument in the case of a supermarket, they should consider the effect of delays in planning developments for schools and hospitals in their constituencies. Similar delays would affect them and the local communities that they serve if the time limit is extended.
Even at the individual level, longer time limits are a problem. An everyday example would be that a person who has been granted planning permission for an extension to their house should at some point be entitled to build it without fear that permission will be quashed on judicial review. Six or 12 months is a long time for an individual to wait for certainty. In addition, the longer the time, the higher the legal fees are likely to be.
For those reasons, I oppose Alison McInnes’s and Elaine Murray’s amendments, and I ask Dr Murray to withdraw amendment 5.
I will press my amendment 5.
The question is, that amendment 5 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Wilson, John (Central Scotland) (Ind)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 50, Against 61, Abstentions 0.
Amendment 5 disagreed to.
Amendment 1 moved—[Alison McInnes].
The question is, that amendment 1 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Wilson, John (Central Scotland) (Ind)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rowley, Alex (Cowdenbeath) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 17, Against 93, Abstentions 0.
Amendment 1 disagreed to.
We come now to amendment 6, in the name of Dr Elaine Murray, already debated with amendment 5. Dr Murray, do you wish to move or not move the amendment?
As the bill would be inconsistent if amendment 6 were moved, I will not move it.
Amendment 6 not moved.
Amendment 2 not moved.
We move to group 7. Amendment 66, in the name of Margaret Mitchell, is grouped with amendments 67 and 68.
15:30
Amendment 66 would remove the “real prospect of success” test, which was criticised by the Law Society of Scotland and other respondents at earlier stages of the legislative process. It replaces that test with a “stateable case” and is supported by the Law Society of Scotland. Amendment 68 is consequential on amendment 66.
A “real prospect of success” test is subjective in nature and crucially, as respondents have pointed out, restricts access to justice, which goes against the spirit of the bill and the Gill review. The phrase “stateable case” suggests that an applicant must have reasonable grounds for making an application for judicial review, which is a much fairer and less arbitrary test.
Furthermore, given the importance of the permission stage, which prevents unmeritorious applications from proceeding to a hearing on their respective merits, amendment 67 introduces a third test that specifically precludes cases that are
“frivolous, vexatious or wholly without merit”
from being granted permission for judicial review. Such cases use up considerable court time and financial resources.
Members may recall that, as a further safeguard against that occurring, at stage 2—the cabinet secretary referred to this—I lodged two amendments that addressed a specific concern of the business community that judicial review is frequently used by commercial rivals to delay the development proposals of competitors, which has ramifications for investment and job creation in local communities.
At the time, although members and the minister were sympathetic to the intention behind the amendments, they expressed concern that the proposed time limit of six weeks went too far. Amendment 67 has, therefore, the advantage of providing an alternative approach to preventing that problem from occurring through the exclusion of vexatious applications.
I move amendment 66.
I do not recall the matter that Ms Mitchell raises being discussed particularly at stage 2. I am also puzzled as to what a “stateable case” would be. Surely, a case could be stateable but not reasonable and without much prospect of success. I presume that Ms Mitchell’s support of the 12-month limit would be for such a requirement to be operable, but I wonder whether any assessment has been done of what the consequence would be for court time if the test was changed in the way that she proposes.
Margaret Mitchell’s amendments 66 to 68 would lower the threshold at the permission stage of a judicial review case from “real prospect of success” to “stateable” and not
“frivolous, vexatious or wholly without merit”.
Amendment 67 is unnecessary. If a case is “stateable”, it is, by definition, not
“frivolous, vexatious or wholly without merit”.
As for amendments 66 and 68, Lord Gill’s review proposed the wording “real prospect of success”, which is currently in the bill. Lord Gill’s recommendation was arrived at after careful assessment and consideration and was agreed by the Government, but Margaret Mitchell’s amendments would remove that wording. The phrase “real prospect of success” encapsulates the concept that a case should not proceed if it is unmeritorious, frivolous or vexatious. However, it goes further, setting out that a case should proceed only if it is actually, rather than potentially, arguable. It does not mean that the litigant must show that they will actually win, but it allows the court to prevent cases from proceeding that are based on fanciful arguments, assessing them as able to proceed only when there is a realistic chance that they will succeed.
As Elaine Murray suggests, Margaret Mitchell’s amendments set the permission bar too low and would allow the court to weed out not cases that were unlikely to succeed but only those that were wholly unstateable. To put that in context, the test of whether a case is stateable is the test that any lawyer would be required to apply currently prior to raising any case in court.
A refusal of permission is not an arbitrary decision of the court. The bill envisages permission being sought first on the basis of paperwork and then being reviewable at an oral hearing. If permission is again refused, the case may be appealed to the inner house. In short, the Government’s position is that, if a case is potentially arguable but, after up to three separate assessments by the court at the permission stage, it still does not appear to have a real prospect of success, the case should not be allowed to proceed to a full hearing.
The use of language is also key to ensuring certainty in the application of the law in granting permission. As Lord Gill set out, the real prospect of success test is one that has been in operation in England and Wales for some time. Further, the test is already employed in the Court of Session as part of its assessment of whether to grant a protected expenses order in certain cases. A real prospect of success is therefore an established concept with a substantial body of case law that the Court of Session can draw on in determining applications for permission, so its use in the bill gives public bodies, developers and litigants alike a degree of certainty about whether a judicial review action is likely to succeed.
Earlier, I referred to Margaret Mitchell’s support for Asda’s views on judicial review. One of Asda’s concerns was that judicial review was being used as a delaying tactic by competitors. The combination of the introduction of a time limit and a permission-to-proceed stage is a package that was recommended by Lord Gill to obviate unnecessary delays in judicial review and the associated uncertainty and costs. The permission stage, with its test of a real prospect of success, is essential as an effective tool in filtering out cases that are not actually arguable. Margaret Mitchell’s amendments would merely maintain the status quo.
For those reasons, Margaret Mitchell’s amendments should not be supported.
To answer Elaine Murray’s question, “stateable case” is a legal term and the use of the stateable case test is supported by the Law Society of Scotland because, in its view and in the view of other respondents during the legislative process, the real prospect of success test serves only to restrict access to justice—hence the reason for amendments 66 and 67.
I submit that the delays that affect the business community and impact on the local economy, investment and job creation, to which the cabinet secretary referred, will be a real prospect if my amendments are not agreed to.
Do you intend to press or to withdraw amendment 66?
I press amendment 66.
The question is, that amendment 66 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rowley, Alex (Cowdenbeath) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 13, Against 96, Abstentions 0.
Amendment 66 disagreed to.
Amendment 67 moved—[Margaret Mitchell].
The question is, that amendment 67 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rowley, Alex (Cowdenbeath) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 13, Against 96, Abstentions 0.
Amendment 67 disagreed to.
Amendment 68 not moved.
Section 101—Vexatious litigation orders: further provision
Amendment 31 moved—[Kenny MacAskill]—and agreed to.
Section 96—Power to regulate procedure etc in the Court of Session
Amendments 32 and 33 moved—[Kenny MacAskill]—and agreed to.
Section 97—Power to regulate procedure etc in the sheriff court and the Sheriff Appeal Court
Amendment 34 moved—[Kenny MacAskill]—and agreed to.
After section 97
We move to group 8. Amendment 14, in the name of Graeme Pearson, is grouped with amendment 15.
Amendments 14 and 15 are aimed at addressing the overriding objective of the bill. Amendment 14 seeks to place court users at the centre of the rule-making process and, indeed, the overall operation of the courts. If amendment 14 is not accepted, I will move amendment 15 as a compromise for members who have argued that amendment 14 is unduly restrictive on judicial discretion, albeit that I do not agree that that is the case.
We on this side of the chamber agree with the Law Society of Scotland that the bill has the opportunity to establish the overriding objective that the civil procedure in Scotland should adopt. It would be similar to the approach taken by the Woolf review in England and Wales, and amendment 14 mirrors the overriding objective as recorded in England and Wales. We believe that a principle-based approach such as is proposed would be more effective for court users. The Law Society made the point in its written evidence that such an approach can encourage parties to resolve cases by alternative dispute resolution. I hold that that would be a good outcome.
At stage 2, the Government sought to dismiss amendments similar to amendments 14 and 15 as unnecessary. If members are of the view that the factors referred to in the amendments are already taken into account by the judiciary, then I urge them to support amendment 14 to ensure that that is the case in all cases. If we agree that those factors should underpin our justice system, why leave to judicial discretion whether they are taken into account in practice in all cases?
Our role is not to unduly fetter judicial discretion, and amendments 14 and 15 do not seek to do that. However, we do have a duty to ensure that our justice system operates fairly. It is not sufficient to defer to the Scottish Civil Justice Council responsibility for such a fundamental matter. In my view, it requires parliamentary accountability.
In the past, the Government members have supported the concept of a written constitution being necessary to set out the principles by which the people of Scotland would live. I therefore hope that they would agree with me that a similar approach would benefit our civil justice system.
I move amendment 14.
I support the intention behind Graeme Pearson’s amendment 14, but I share the concern that some of my fellow committee members expressed on a similar amendment at stage 2 that the proposed list is too restrictive.
On amendment 15, the minister reassured the committee at stage 2 that the Scottish Civil Justice Council has already adopted the principle referred to. So, in the circumstances, it looks as though the amendment is unnecessary, although I am sympathetic to the intention behind it, which is for the court to conduct proceedings justly, which is surely the essence of what it does.
15:45
Amendments 14 and 15 seek in different ways to ensure that civil court rules are made and interpreted in the light of the overriding principle that cases be dealt with justly. We agree with the principle but do not think it appropriate to set it out in primary legislation.
The act establishing the Scottish Civil Justice Council, as Margaret Mitchell said, provides that in carrying out its functions the council must have regard to the principle that the civil justice system should be “fair, accessible and efficient”. The council’s rules rewrite working group in its interim report sets out that it is considering a statement of principle in the rules to indicate that its purpose is
“to provide parties with a just resolution of their dispute in accordance with their substantive rights, within a reasonable time, in a fair manner with due regard to economy, proportionality and the efficient use of the resources of the parties and of the court, and that parties are expected to comply with the rules.”
As the council has adopted the principle, I ask the member not to press his amendments. I cannot help but agree with the Justice Committee’s convener, Christine Grahame, who said at stage 2:
“Frankly, I think that the amendments are unnecessary. In my experience ... the bench takes these matters into account; indeed, I would be most concerned if proceedings in our sheriff courts, our lower courts or the Court of Session were not conducted justly.—[Official Report, Justice Committee, 17 June 2014; c 4729.]
I fully concur with those sentiments.
I understand all the sentiments expressed in the chamber. However, it is my fundamental belief that if we wish to persuade communities across Scotland that the systems operate in their interests, having a declaration in the legislation of the principles that we adhere to and hold so dearly would add weight to our commitment.
Although I welcome the Scottish Civil Justice Council’s commitment to writing down the principles by which it will apply the standards, the council is not democratically accountable to the people of Scotland; we are. Therefore, having such a commitment in the bill would show the responsibilities that we bear in the matter.
I press amendment 14.
The question is, that amendment 14 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wilson, John (Central Scotland) (Ind)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 32, Against 78, Abstentions 0.
Amendment 14 disagreed to.
Amendment 15 moved—[Graeme Pearson].
The question is, that amendment 15 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wilson, John (Central Scotland) (Ind)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
Abstentions
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
The result of the division is: For 32, Against 65, Abstentions 12.
Amendment 15 disagreed to.
Section 102A—Power to provide for fees for SCTS, court clerks and other officers
We move to group 9. Amendment 35, in the name of the cabinet secretary, is grouped with amendments 39 and 58.
Amendment 39 will confer functions on the Scottish courts and tribunals service to pay the salary of the Scottish Land Court’s chair, to determine and pay the salaries of other members of that court and to determine and pay the expenses of members of the court. The power to carry out those functions currently lies with the Scottish ministers; the amendment provides that they will be carried out by the Scottish courts and tribunals service on its establishment.
Amendment 39 also provides for the determination and payment of the salaries of the clerks and other employees of the court, and for the payment of the court’s administrative expenses, although those functions will remain with the Scottish ministers. The Scottish Land Court differs from other courts and tribunals in that it is not currently the responsibility of the Scottish Court Service or the Scottish tribunals service. In the longer term, we will consult on an order under the Judiciary and Courts (Scotland) Act 2008 to bring the court within the Scottish courts and tribunals service’s ambit. That was discussed when the 2008 act went through Parliament.
Amendments to the administration of judicial salaries must be made in primary legislation, which is why they are included in the bill. Without amendment 39, there would be the anomalous situation of the administration of Land Court members’ salaries remaining with the Scottish ministers while the SCTS undertook that function for all other judicial offices.
Amendment 35 will add the Scottish Land Court to the list of Scottish courts in respect of which the Scottish ministers may make provision for charging fees under section 102A(1). That is linked to the transfer to the Scottish courts and tribunals service of the functions that relate to remuneration and expenses in the Land Court, and it is also linked to the longer-term aim of bringing the court wholly within the SCTS’s ambit for administration purposes.
Amendment 58 is purely technical and will amend the bill’s long title to reflect the new provisions about the Land Court.
I move amendment 35.
I have no intention of opposing the amendments, but I wonder again why such issues have come to light at stage 3, rather than being dealt with in the bill from stage 1.
Elaine Murray has asked the same question as she asked my colleague, the cabinet secretary, and the answer is basically the same. Since eagle eyes have picked up the problems, I am sure that the member would prefer that they be fixed, rather than not fixed.
Amendment 35 agreed to.
Section 102B—Sanction for counsel in the sheriff court and Sheriff Appeal Court
We move to group 10. Amendment 69, in the name of Alison McInnes, is grouped with amendments 70 to 72 and 16 to 18.
The significant increase in the sheriff court’s privative jurisdiction from £5,000 to £100,000 will have a considerable impact on many litigants who currently choose to bring their cases in the Court of Session. It will not only compel them to proceed in the sheriff court, but will limit their ability to instruct counsel.
In the Court of Session, a litigant who is awarded expenses from another party automatically recovers the expenses of instructing counsel. That is not the position in the sheriff court, where the expenses of instructing counsel are recoverable only if the sheriff sanctioned the employment of counsel.
It is therefore welcome that the Justice Committee unanimously backed John Finnie’s amendment 142 at stage 2 to introduce the Taylor test, as recommended in the committee’s stage 1 report. That means that a sheriff who is considering, for the purposes of any relevant expenses rule, whether to give sanction for counsel must employ a general test of reasonableness and have regard to equality of arms.
My amendments would gently nudge the matter a little further forward. Amendments 69 to 72, which are in my name and which the Faculty of Advocates supports, would improve the test by supporting litigants’ choice. They would cause sanction to be refused only if the litigant’s decision to instruct counsel was unreasonable. That would strike a better balance between parties’ freedom to be represented by skilled advocates and the court’s control over expenses. My amendments also make it clear that the importance or value of the claim to the party who is instructing counsel should always be relevant when a sheriff considers whether to grant sanction.
I move amendment 69 and I urge Parliament to support it.
Amendment 16 seeks to enable members to debate thoroughly the issues that surround the situation that we are debating with regard to section 102. The purpose of amendment 17 is to establish a presumption in favour of sanction for counsel for victims of work-related injuries and for all personal injury cases in which more than £20,000 is claimed, or that involve a death.
Although I welcomed John Finnie’s amendment at stage 2 and recognise that it improves litigants’ ability to access counsel in the sheriff courts, in my view it does not go far enough. We need to ensure that victims of work-related injuries have access to counsel and benefit from their expertise, particularly in order to mitigate the effects of section 69 of the Enterprise and Regulatory Reform Act 2013.
Does Graeme Pearson accept that those cases are, because of their complexity, guaranteed counsel anyway?
The absence of confidence in such a guarantee is what I seek to resolve through amendment 17. Section 69 of the 2013 act, which the cabinet secretary mentioned earlier, removed the automatic assumption that a breach of health and safety law is a breach of the duty of care that an employer owes to employees. As a result, most workers seeking compensation for injuries that were suffered as a result of accidents at work in or after October 2013 are no longer able solely to rely on a breach of health and safety regulations to establish liability. Instead, workers are able to seek compensation only where it can be shown that the employer was at fault or was negligent. That makes it substantially more difficult for every victim of a workplace accident or injury to secure just recompense, and many victims who previously would have been able to obtain compensation will have lost that right. It increases the complexity of cases.
The Scottish Parliament may not have the legislative competence to reverse section 69 of the 2013 act, but we can use the power that Parliament has to mitigate the impact of section 69 as much as possible. That is what Scottish Labour wants to do with our amendment on sanction for counsel. We therefore urge members to support the amendments, rather than allowing the bill to pass in its current form, which will potentially make the situation worse for victims.
I will speak primarily about Alison McInnes’s amendment 69, about which I have mixed feelings. On the one hand, I recognise the progress that has been made in having the test that was proposed by Sheriff Principal Taylor in the bill and I regard that as a substantial step forward.
On the other hand, I accept the argument that individuals may still be impeded in their choice of lawyer by the test as it is drafted. Therefore, I have some sympathy with Alison McInnes’s amendment 69, but I certainly do not accept the argument that the instruction of counsel per se involves a disproportionate cost, as is suggested by some stakeholders.
We should remember that recent changes to practice enable counsel to appear in the sheriff court without solicitors—a change that was introduced shortly after Sheriff Principal Taylor reported. It is certainly my understanding that, even in the Court of Session at present, in legally aided judicial review cases, counsel now routinely appears without a solicitor.
However, on the other side of the argument, it seems that section 102B(4) of the bill provides an opportunity for the court to take into account “other matters”. One such matter could be that it might be relevant—when a sheriff is considering whether to grant sanction for counsel and the application has been made by a solicitor—to take account of the argument that has been put forward by the solicitor that, if the application is granted, he himself will not be present at the hearing. It seems to me that the bill gives the opportunity for a court to consider that as an appropriate matter when considering the question whether to give sanction for counsel.
I accept, however, that this is perhaps not the right time to take that debate further. I hope that the matter will remain under review whether by the Scottish Civil Justice Council or otherwise.
16:00
In the bill as amended at stage 2, the provision on sanction for counsel in the sheriff court and sheriff appeal court mentions
“the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel.”
That was an important addition to ensure equality of arms. One of my concerns with Alison McInnes’s amendments is with amendment 72, which would insert after “proceedings” in section 102B(3)(a)(ii)
“including its importance or value to the party instructing counsel”.
Everyone who goes to court thinks that it is valuable to them—of course they do, no matter what the issue is. Therefore, I think that that test is not really appropriate.
On Graeme Pearson’s amendment 17, subsection (5) in the proposed new section states that “relevant proceedings” would include
“all work related personal injury proceedings, or ... any other personal injury proceedings in which the damages claimed, exclusive of interest and expenses, exceeds £20,000.”
The important word there is “claimed”. As we know from evidence and as I know from experience, the claims will be substantially higher than the amount that is settled on at the end of the day, which might just be £5,000. My issue is that that test of a claim exceeding £20,000 is not really a practical test in law.
Amendments 69 to 71 would create a presumption for sanction for counsel in the sheriff court, which would strengthen the principle of equality of arms and ensure that pursuers are not dissuaded from raising an action because of the fear of unaffordable and often disproportionate costs. I am therefore happy to support the amendments.
Although I am sympathetic to the intention behind amendment 17, I once again feel that it is too prescriptive in nature and quite limited in scope. Alison McInnes’s amendments relating to sanction for counsel are preferable in this instance. In particular, amendment 72 would ensure that the “importance or value” of any claim to the party that is instructing counsel would be taken into account when decisions regarding sanction for counsel are made. That seems to me to be a fair provision, so I am happy to support the amendment.
I strongly support Graeme Pearson’s amendments 16 and 17. John Finnie intervened on Mr Pearson to say that victims of workplace accidents and disease would be “guaranteed counsel anyway”. I presume that he means that that is the case in practice—which the minister might want to comment on—but it certainly will not be guaranteed in law. Therefore, that seems to me to be an argument in favour of Graeme Pearson’s amendments rather than an argument against them.
I am sure that most, if not all, members are concerned about the way in which the scales of justice have been tipped against the victims of workplace accidents and disease in favour of defending employers or insurers by section 69 of the Enterprise and Regulatory Reform Act 2013. As Graeme Pearson said—this must be an argument that appeals to Government party members—surely the least that we can do in this Parliament is use the powers that we have to tip the scales in the other direction and lessen the impact of section 69. I therefore hope that the Government will accept Graeme Pearson’s amendments.
At stage 2, John Finnie lodged an amendment that has become section 102B and which put in the bill the test that was recommended by Sheriff Principal Taylor in his “Review of Expenses and Funding of Civil Litigation in Scotland”. The committee agreed to that without division, yet here we are considering two sets of amendments, the first of which would set the presumption for counsel on its head and the second of which would replace it.
Alison McInnes’s proposed amendments to section 102B(2) would totally distort the test that Sheriff Principal Taylor recommended from one in which sanction must be granted if the court considers it reasonable to do so, to one in which sanction must always be granted unless it is unreasonable. I believe that amendment 72 would introduce to the test a subjective element that is not currently there. The value of the test is that the court will have to assess the case objectively and not from the point of view of one of the parties. The amendments would make it very difficult to dislodge a presumption in favour of counsel in all—I emphasise “all”—cases, which I consider would be to go too far.
I continue to believe that the tests that are set out in section 102B will ensure that those who require access to counsel will receive it, and that the best person to decide whether sanction is appropriate is the sheriff. By allowing changes through an act of sederunt, we have ensured that the test can be easily and quickly amended if it is felt that the system is restricting access to justice.
Reducing the cost of litigation to parties is one of the main aims of the reforms. I do not believe that Alison McInnes’s amendments will fulfil that aim.
Graeme Pearson’s amendment 17 is the same as one that was lodged by John Pentland at stage 2. That amendment was not agreed to. Further, Graeme Pearson’s amendment 16 would remove section 102B from the bill, despite unanimous agreement to it by the Justice Committee.
Amendment 17 would establish in primary legislation a presumption in favour of sanction for counsel in specified types of personal injury cases in an all-Scotland specialist court. One such type, which is set out in the amendment, is work-related personal injury proceedings. I am concerned that that could place part 3A of the bill outwith legislative competence, given the reservation on health and safety in the workplace.
Amendment 17 would provide that the presumption in favour of sanction for counsel could be rebutted only where special cause is shown that the case is
“(a) is straightforward,
(b) involves settled law,”
and
“(c) involves a small number of witnesses whose … evidence is not expected to be … complex”.
That is a very high test.
The Scottish ministers are to be given a power by order to vary the list of relevant proceedings to which sanction will automatically be given. Amendment 18, which is also the same as one that was lodged by John Pentland at stage 2, would make that order subject to affirmative procedure. The rules are otherwise inflexible—precisely the kind of rule that the Scottish Government considers should not be placed in primary legislation.
I ask Alison McInnes and Graeme Pearson to respect the decision of the Justice Committee and to seek to withdraw or not move their amendments.
The minister has made much of the fact that the Justice Committee unanimously accepted the amendment that introduced section 102B at stage 2. Indeed we did, but that was because it was a step forward and an improvement on there being nothing in the bill about sanction for counsel.
My amendments 69 to 72 are reasonable and would better strike the balance between the freedom to choose to be represented by skilled advocates and being controlled by the court over expenses. Without the amendments, individuals will still be constrained in their ability to instruct counsel. We need to strike a fairer balance. Roderick Campbell acknowledged that my approach would not necessarily be costly.
To respond to Christine Grahame’s point, it is important to acknowledge that my amendment 72 recognises that more than the monetary value should be taken into consideration, and that the importance of the claim to the party needs to be considered.
I will press amendment 69.
The question is, that amendment 69 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
Abstentions
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
The result of the division is: For 15, Against 64, Abstentions 31.
Amendment 69 disagreed to.
Amendment 70 moved—[Alison McInnes].
The question is, that amendment 70 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
Abstentions
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
The result of the division is: For 15, Against 64, Abstentions 31.
Amendment 70 disagreed to.
Amendment 71 moved—[Alison McInnes].
The question is, that amendment 71 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
Abstentions
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
The result of the divisions is: For 13, Against 64, Abstentions 31.
Amendment 71 disagreed to.
Amendment 72 moved—[Alison McInnes].
The question is, that amendment 72 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
Abstentions
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
The result of the divisions is: For 14, Against 64, Abstentions 31.
Amendment 72 disagreed to.
Amendment 36 moved—[Roseanna Cunningham]—and agreed to.
Amendment 16 not moved.
After section 102B
Amendment 17 moved—[Graeme Pearson].
The question is, that amendment 17 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the divisions is: For 31, Against 80, Abstentions 0.
Amendment 17 disagreed to.
16:15Section 104—Appeal from a sheriff to the Sheriff Appeal Court
Amendment 7 moved—[Elaine Murray].
The question is, that amendment 7 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 46, Against 63, Abstentions 0.
Amendment 7 disagreed to.
After section 107
Amendment 8 moved—[Elaine Murray].
The question is, that amendment 8 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 46, Against 64, Abstentions 0.
Amendment 8 disagreed to.
Section 110—Effect of appeal
Amendment 9 not moved.
Section 111—Appeals to the Supreme Court
Amendment 37 moved—[Roseanna Cunningham]—and agreed to.
Before section 116A
We come to group 11, on the appointment of judges, et cetera. Amendment 38, in the name of the cabinet secretary, is grouped with amendments 53, 54 and 57.
Amendment 38 substitutes sections 21 to 23 of the Judiciary and Courts (Scotland) Act 2008 with new sections 20A to 20G. The new sections make provision for the appointment of judges, temporary judges and re-employed retired judges of the Court of Session and for the remuneration and expenses of temporary and former judges. Amendments 53 and 54 are consequential amendments required as a result of amendment 38.
Effectively, amendment 38 repeals and re-enacts without significant policy modification the current law relating to the appointment of judges, temporary judges and re-employed retired judges of the Court of Session, modernising the law and placing the provisions in a more accessible part of the statute book—they are currently referred to in the Law Reform (Miscellaneous Provisions) (Scotland) Acts of 1985 and 1990.
Amendment 57 is a purely technical amendment that amends the long title of the bill to reflect the new provisions on the appointment of the judiciary that are added by amendment 38.
I move amendment 38.
I query—yet again—why the amendments were lodged two days before the deadline. In this case, it is not just a moan; I raise that query because, had the proposed provisions been in the bill at stage 1, we might have wanted to consider amending them.
Proposed new section 20A(1)(a)(ii) of the 2008 act, which amendment 38 would insert, states that the person has to have
“held office as either sheriff principal or sheriff throughout the period of 5 years immediately preceding the appointment”.
I query whether that is discriminatory, in that it would exclude women who had been on maternity leave, or fathers who had been on paternity leave, within that five years, or someone who had been absent from work because of caring responsibilities.
I am therefore disappointed that we are considering the amendments only at stage 3, when issues around whether the proposed new provisions are discriminatory cannot properly be explored. I seek the minister’s advice on the issue, because I think that it is an important point of principle.
I regret to say that we are where we are. Amendment 38 was intended purely as a tidying-up amendment to repackage what is in currently in two separate Law Reform (Miscellaneous Provisions) (Scotland) Acts, which is precisely the kind of legislation that we wanted to get away from when the Scottish Parliament was set up. There is very little to add to that.
Amendment 38 agreed to.
After section 116B
Amendment 39 moved—[Roseanna Cunningham]—and agreed to.
Section 122—Subordinate legislation
I call Graeme Pearson to move or not move amendment 18, which was debated with amendment 69. [Interruption.]
Mr Pearson is not here.
Amendment 18 not moved.
Group 12 is on exclusive competence and simple procedure: commencement. Amendment 10, in the name of Elaine Murray, is grouped with amendments 11 and 13.
I rise to speak to amendments 10, 11 and 13. Similar amendments were defeated by five votes to four at stage 2—[Interruption.]
Will members settle down a wee bit, please?
However, I believe that the case for the introduction of a sunrise clause remains pertinent, despite the Government’s arguments that such provisions are very unusual.
There was an unusual degree of concern about the financial resolution on the bill, which three Opposition parties took the unusual course of voting against.
During the stage 1 debate, Malcolm Chisholm explained the concerns that the Finance Committee heard when it considered the financial memorandum. There was uncertainty regarding the loss of fee income to the Scottish courts due to the transfer of cases from the Court of Session to the sheriff court. There were also concerns about the implications of an increased workload on already overburdened sheriff courts, and about the suggested savings to the legal aid budget, which were not explained satisfactorily. It was stated that the Government had relied heavily on figures from third parties, which, when the financial memorandum came to be debated at the Finance Committee, officials were unable to substantiate.
The cabinet secretary’s letter to the convener of the Justice Committee of 23 September revised the financial memorandum in light of the reduction of the exclusive competence of the sheriff court to £100,000.
The Scottish Legal Aid Board seems to have undertaken more rigorous modelling of its savings. Oddly, although it initially estimated a saving of £1.2 million through the transfer of an estimated 80 per cent of cases from the Court of Session to the sheriff court, it has now decreased that saving to between £550,000 and £750,000 with only a 70 per cent transfer. It seems strange that a reduction of 10 per cent of cases should reduce the estimated saving by at least 38 per cent. That suggests that some of the calculations around the financial memorandum remain somewhat dubious.
The dubiety regarding the level of savings that the bill will achieve is matched by concerns over workload in the sheriff courts as the court closure programme takes effect. This weekend, there was a report in my local press that Dumfries sheriff court resolves only 64 per cent of its cases within 26 weeks, yet the Scottish Government’s target is that 100 per cent of cases should be resolved within that period. Similar problems have been reported at Hamilton sheriff court, following the closure of Motherwell sheriff court.
The possibility that funding shortfalls might be met by increasing court fees was flagged up as a concern in the Justice Committee’s stage 1 report.
All those things support the argument for a sunrise clause. The bill will work only if it is adequately resourced, and the provisions on exclusive competence and simple procedure should be introduced only when sufficient provision has been made for staffing, resources, technology, courtroom space and judicial appointments, on which other members have touched in the course of debating amendments today.
The Government will argue that a sunrise clause is not necessary, but it is important. It is in nobody’s interests for those provisions to be commenced before resources are in place. We should not simply accept the reassurance that somehow everything will be all right on the night when they come into force.
The issues are so important to Parliament that we must be satisfied that the provisions in question can be introduced successfully. I am not making a case for re-debating the entire bill, but when we introduce such important and radical changes to the civil justice system in Scotland, we must be sure that they can be introduced without detriment to court users.
I move amendment 10.
I support Elaine Murray’s proposal for a sunrise clause. I am a member of the Finance Committee, and members may remember that many in the Parliament voted against the financial resolution on the bill, which is fairly unusual.
As Elaine Murray said, the proposals must be adequately resourced and the technology must be available. On the subject of technology, perhaps the minister or the cabinet secretary can comment on information technology for the specialist court. We were told that only £10,000 has been set aside for that, which was a concern, and we are now told that the new system will not be in place until autumn 2016, which is obviously a concern too.
The cabinet secretary’s letter to the Finance Committee and to Christine Grahame, which contained some revised costings, did not substantially alter the concerns that I and others expressed at stage 1, which included concerns about the loss of fee income and the increase in the sheriff court workload; the letter addressed neither issue.
The change in the legal aid costings was perhaps an admission that the previous estimates had been overgenerous, but it is still a bit of mystery as to where even £0.75 million of legal aid savings will come from. The Scottish Legal Aid Board already supports the most complex and difficult cases—the savings will come from not having counsel, yet we are told that those complex cases will still have counsel. In addition, most costs are recovered in any case. There is still a great deal of mystery, and many questions, around the financing of the bill, and I believe that Elaine Murray’s proposed sunrise clause is the correct response to those problems.
Amendments 10 and 11, in the name of Elaine Murray, would make the commencement of sections 39 and 70 subject to the affirmative procedure in the Parliament, which would be very unusual indeed.
Amendment 13 would place another set of procedural hurdles in the way of the commencement of those sections, which relate to exclusive competence and simple procedure, by requiring the Parliament to have approved a draft order under section 41(1), on setting up an all-Scotland sheriff court, and to have considered a report on the resources of the court system in general, including the prospective resourcing of the specialist court, before orders bringing those sections into force could be laid.
Elaine Murray lodged equivalent amendments at stage 2. The equivalent of amendment 10 was not agreed to, and the other two amendments were not moved at that stage.
I appreciate that the reasoning behind the amendments is to give Parliament an opportunity to consider whether the time is right to introduce the changes that are envisaged in sections 39 and 70. However, those questions have already been asked in committee, and the Lord President, the chief executive of the Scottish Court Service and Sheriff Principal Stephen have all given evidence to the effect that plans have been made and resources have been allocated.
It would be in no one’s interest to commence the provisions in section 39 or section 70 before the time was right. The argument for reform has been made eloquently in the “Report of the Scottish Civil Courts Review” and the matter has been extensively debated in committee.
With regard to the report that would be required under amendment 13, I remind members that, under the Judiciary and Courts (Scotland) Act 2008, which was passed unanimously by the Parliament, the Scottish Court Service is now an independent, judicially led corporate body that runs the Scottish courts. Under section 2(2) of the 2008 act, the Lord President is responsible for making and maintaining arrangements to secure the efficient disposal of business in the Scottish courts.
If a report on staffing, resources, IT, court capacity and judicial capacity were to be desired, it would be for the Lord President to provide it. In fact, no such report is required. As I have mentioned, evidence has already been heard in committee that resources have been allocated and that the reforms will permit the courts to work more efficiently.
16:30The chief executive of the Scottish Court Service highlighted that sheriff courts face less pressure today than they did two years ago due to a general downward trend in demand for civil court services. Sheriff Principal Stephen told the Justice Committee that the proposed reforms would allow the courts to work more efficiently, thereby freeing up current resources.
Sheriff Principal Stephen also highlighted that, if the bill is passed,
“cases will start in the sheriff court and there will be a gradual build-up of the volume.”
She added:
“There will not be a tsunami of work descending on the sheriff court.”—[Official Report, Justice Committee, 1 April 2014; c 4482.]
That point bears repeating. Many have spoken of a “transfer” of business from the Court of Session, and I have used that shorthand myself, but the bill will not transfer existing cases from the Court of Session to the sheriff court. All that it does is provide for the future, and the build-up of work in the sheriff court will be a gradual one that takes place over time as new cases are raised. There is, therefore, no need for a report to be done before commencement.
I ask Elaine Murray to withdraw amendment 10 and to not move amendments 11 and 13.
I am not going to argue against the reforms that the bill will bring in. I think that there is agreement that they are all necessary. However, the important point is that they must go along with resources: the resources have to be there.
I note again the unusual circumstances in which a large number of members had sufficiently serious concerns to vote against the financial resolution. That is a most unusual step in this Parliament, and it shows the need for us to take on our responsibilities. We are responsible as a Parliament for ensuring that the legislation that we pass is properly resourced, and the bill contains particularly important reforms of the Scottish civil justice system. Surely we have a responsibility to ensure that, when we bring it in, it will work and it will not overburden our court system to the detriment of court users.
I also remind the Parliament that we do not see the level 4 budgets of organisations such as the Scottish Court Service. We are not able to interrogate those budgets when it comes to the budget process in the way that we interrogate those of the Scottish Government’s directorates, and we have less opportunity to ensure that the money is following requirements and the need for resources.
I say to members that we should not just let the implementation of the legislation be an operational matter for the Scottish Court Service. Far too often, things are operational matters for somebody else. Let us take responsibility as a Parliament.
I press amendment 10.
The question is, that amendment 10 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 46, Against 65, Abstentions 0.
Amendment 10 disagreed to.
Amendment 11 moved—[Elaine Murray].
The question is, that amendment 11 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 46, Against 64, Abstentions 0.
Amendment 11 disagreed to.
Section 125—Interpretation
Amendment 40 moved—[Kenny MacAskill]—and agreed to.
After section 126
Group 13 is on a report on the operation of court functions. Amendment 12, in the name of Elaine Murray, is the only amendment in the group.
Amendment 12 is concerned with a report to Parliament on the operation of court functions. At stage 2, I suggested that the Scottish Government should report annually to the Parliament on how the bill works in practice. I have altered my approach since stage 2; amendment 12 would require biannual, rather than annual, reporting. That would be less onerous for the Scottish Government, which would have to lay a report before the Parliament only twice per parliamentary session.
At stage 2, Ms Cunningham argued that my proposed approach would duplicate the requirement under the Judiciary and Courts (Scotland) Act 2008 for the Scottish Court Service to produce an annual report to the Scottish ministers, which is laid before the Parliament. I therefore withdrew my amendment, so that I could consider her argument.
At stage 3, I have lodged amendment 12, which would place a less onerous requirement on the Scottish Government, because, on reflection, I do not think that my proposed approach duplicates the approach in relation to the Scottish Court Service report. I am requesting information specifically about the operation of the legislation that we are considering and not about the operation of the Scottish Court Service generally.
Amendment 12 would require ministers—not the Scottish Court Service or the Lord President—to report on the number and types of cases and on the average length of time that is taken to dispose of each kind of case, which is important. I refer members to what I said in the context of other amendments: at a time when Dumfries sheriff court manages to get only two thirds of its cases through in the required time, there is an issue that the Parliament needs to take seriously. It is important that the average time that is taken to dispose of cases is reported to the Parliament, along with information on the provision of resources to meet the demand for court services, given that we do not see level 4 data on the Scottish Court Service.
The proposed approach would facilitate parliamentary scrutiny of the legislation that we pass and would provide transparency. It would ensure that there was ministerial responsibility, rather than leaving the implementation of the bill to become an operational matter for the Scottish Court Service or the Lord President.
I move amendment 12.
Amendment 12 would facilitate post-legislative scrutiny as we move to implementation of the bill. A requirement to produce, every two years, a report on the time that is taken to dispose of cases and on resourcing issues would enhance accountability to the Parliament, which is important in view of the delays that are currently being experienced in the context of the requirement for courts to hear cases within the 26-week target. I support amendment 12.
The Government’s position is that the approach in amendment 12 continues to be unnecessary. The Lord President and the chief executive of the Scottish Court Service emphasised in their evidence to the committee that the sheriff court will be able to cope. As the reforms will take pressure off the Court of Session, there should be no problems there, either.
Section 67(1) of the Judiciary and Courts (Scotland) Act 2008 provides:
“As soon as practicable after the end of each financial year, the SCS must—
(a) prepare and publish a report on the carrying out of its functions during that year,
(b) send a copy of the report to the Scottish Ministers, and
(c) lay a copy of the report before the Scottish Parliament.”
I remind members that the 2008 act was unanimously passed by the Parliament and rightly places on the Scottish Court Service and not on the Scottish ministers the responsibility of preparing an annual report. For those reasons, I ask Elaine Murray to seek leave to withdraw amendment 12.
Yet again, the minister says that the approach that is proposed in amendment 12 is unnecessary. However, we are talking about two different types of report. The Scottish Court Service report will not contain information on the operation of this bill once it is passed. It will not enable us to carry out post-legislative scrutiny in that regard. It will contain information on the functioning of the Scottish Court Service, but that is not what the amendment asks for; it asks for information on how the legislation is operating and whether the necessary resources are there to ensure that it is functioning properly.
Requiring ministers to do what is asked for twice in the course of a session is not a huge burden to place on them. When we have reformed our judicial system, it is important that we know that the reforms that we have brought in are working properly. There is no point in bringing in further reforms if we find out that the reforms that we brought in are being held up because of a lack of resources and so on.
I still think that it is important that Parliament is given that information, so I press my amendment 12.
The question is, that amendment 12 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Wilson, John (Central Scotland) (Ind)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 47, Against 64, Abstentions 0.
Amendment 12 disagreed to.
Section 127—Commencement
Amendment 13 moved—[Elaine Murray].
The question is, that amendment 13 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 45, Against 65, Abstentions 0.
Amendment 13 disagreed to.
Schedule 1—Civil proceedings, etc in relation to which summary sheriff has competence
Group 14 is on summary sheriffs: civil competence. Amendment 3, in the name of Alison McInnes, is grouped with amendment 4.
Amendments 3 and 4, which are supported by the Law Society of Scotland, propose removing adoption and forced marriage proceedings from the list of civil proceedings in which a summary sheriff has competence, as set out in schedule 1. That is due to their distinct complexity.
Last week, it became a criminal offence to force someone into marriage, punishable by up to seven years in prison. Given that new criminal liability, the continuing civil remedies for those who are at risk of forced marriage and those who have already entered into a forced marriage—forced marriage protection orders—will become even more multifaceted and sensitive. We know that those cases can be further complicated by challenging international, cultural and ethical dimensions.
Similarly, the Law Society of Scotland says that adoption and the grant of authority to adopt are the most serious form of interference in family life, and as such should not be the responsibility of the most junior tier of the judiciary. The society tells us that such cases are among the most demanding that are heard in the sheriff court. In establishing the facts, sheriffs regularly consider a wealth of reports and records and hear from a number of witnesses. It can be a difficult balancing act to satisfy the requirements of domestic and international law, such as the European convention on human rights.
Indeed, during stage 2, the cabinet secretary told the Justice Committee:
“The rationale for the introduction of summary sheriffs is that they should undertake work in the sheriff court to relieve sheriffs of the burden of dealing with the more legally straightforward civil cases and to thus permit sheriffs to be available for more complex casework.”—[Official Report, Justice Committee, 10 June 2014; c 4667.]
He made my case for me. Both forced marriage and adoption cases require a greater level of shrieval competence than other cases that are listed in schedule 1, such as the consideration of warrants and interim orders and the extension of time to pay debts. Sheriffs and specialist family sheriffs are best placed to respond to the complexity of those cases and to take into account their far-reaching consequences.
I move amendment 3.
16:45
As I stated at stage 2, Alison McInnes makes a compelling case. Such cases are complex and emotive, and it makes sense to move them from the competence of the summary sheriffs’ jurisdiction. I, too, am mindful of the cabinet secretary’s statement at stage 2, on 10 June, which Alison McInnes just quoted. It seems entirely logical to remove those complex cases from the remit of the summary sheriffs.
Amendments 3 and 4 would remove adoption proceedings and forced marriage protection orders from the competence of summary sheriffs. The summary sheriffs will be highly qualified and will have at least 10 years’ legal experience—the same as sheriffs. All judicial officers, at whichever level of the courts system, will be recommended for appointment by the Judicial Appointments Board for Scotland and trained as required by the Judicial Institute for Scotland.
The assignment of cases in order to ensure the efficient disposal of the business is for the local sheriff principal. If a case is particularly complex, the sheriff principal may assign it to a sheriff, as opposed to a summary sheriff, and, where family specialists are appointed in a sheriffdom, sheriffs principal should have regard to ensuring that such cases are dealt with by those specialists.
Giving evidence at the Justice Committee on 18 March, the Sheriffs Association said that it welcomed the jurisdiction of the summary sheriffs and that the summary sheriffs will be “perfectly competent” and “comfortable” in dealing with family cases. Drawing summary sheriffs from areas of specialist expertise and bringing practical experience is seen by some solicitors, including experienced family practitioners, as a good opportunity. The Family Law Association told the committee that
“it does not really matter whether they are summary sheriffs or sheriffs as long as they are experienced and have knowledge of family cases. That is the most important thing.”—[Official Report, Justice Committee, 25 March 2014; c 4411.]
Amendments 3 and 4 do not divide cases up along lines of importance. They would, for example, leave domestic abuse proceedings and children’s hearings within the competence of the summary sheriffs, neither of which matters is, I respectfully suggest, less important than adoption or forced marriage. The Government believes that the amendments would lead to incoherence in the summary sheriffs’ jurisdiction.
For those reasons, I oppose the amendments.
It is not about other cases being less important; it is about the complexity surrounding the particular issues that the amendments deal with. I will press amendment 3.
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 44, Against 65, Abstentions 0.
Amendment 3 disagreed to.
Amendment 4 moved—[Alison McInnes.]
The question is, that amendment 4 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 45, Against 65, Abstentions 0.
Amendment 4 disagreed to.
Amendment 41 moved—[Roseanna Cunningham]—and agreed to.
Schedule 3—The Scottish Courts and Tribunals Service
Group 15 is on the Scottish courts and tribunals service: tax tribunals. Amendment 42, in the name of the cabinet secretary, is grouped with amendments 43 and 44.
Amendments 42 to 44 are technical in nature and provide for transitional arrangements that relate to the merging of the Scottish tribunals service into the Scottish Court Service to form the Scottish courts and tribunals service.
Amendment 42 will add both the tax tribunals—the first-tier tax tribunal for Scotland and the upper tax tribunal for Scotland—to the list of tribunals that are to receive administrative support from the Scottish courts and tribunals service in advance of being transferred into the Scottish tribunals.
Paragraphs 3(3) and 3(4) of schedule 3 to the bill make transitional provision that allows the presidents of various existing tribunals to be appointed as judicial members of the Scottish courts and tribunals service under paragraph 2(2)(g) of schedule 3 to the Judiciary and Courts (Scotland) Act 2008, as inserted by paragraph 1(8)(c) of schedule 3 to the bill, in place of a chamber president. Amendment 43 provides that the president of the Scottish tax tribunals will be eligible to be appointed to that position.
I turn to amendment 44. Section 58 of the Revenue Scotland and Tax Powers Act 2014 is intended to allow Scottish Government officials acting under the badge of the Scottish tribunals service to provide administrative support to the Scottish tax tribunals in their initial guise as free-standing tribunals. It is similar to section 77 of the Tribunals (Scotland) Act 2014, which it is proposed will be repealed by paragraph 8 of part 3 of schedule 3 to the bill. I consider that section 58 of the RSTP act ought to be equivalently repealed in part 3 of schedule 3 to the bill, and amendment 44 provides for that.
I am sure that all members followed that with interest.
I move amendment 42.
No member has asked to speak, so do you wish to wind up, minister?
No.
I did not think so.
Amendment 42 agreed to.
Amendments 43 and 44 moved—[Roseanna Cunningham]—and agreed to.
Schedule 4—Modifications of enactments
Amendments 45 to 54 moved—[Roseanna Cunningham]—and agreed to.
The final group—group 16—is on citation of jurors. Amendment 55, in the name of the cabinet secretary, is the only amendment in the group.
Amendment 55 will remove the current restriction on how the Scottish Court Service cites persons for juries in order to permit a choice of methods. In England and Wales, for example, citation is by means of first-class post rather than recorded delivery. The proposal was part of a package of efficiency measures in the Criminal Justice (Scotland) Bill. The reason for lodging the amendment at stage 3 of the Courts Reform (Scotland) Bill is simple: it will save the Scottish Court Service up to around £169,000 per annum. At a time when budgets in public organisations are under pressure, it seems wholly appropriate to ensure that this cost-saving measure can be implemented as soon as possible. The savings will arise as a result of the SCS being able to choose first-class post, or perhaps even electronic citation, rather than being compelled to use recorded delivery.
I move amendment 55.
I understand what the minister is saying, but I seek assurances from her that there will be safeguards to appeal if there is non-delivery of the item, because failing to turn up when cited can lead to a fine of up to £1,000. So, what kind of appeal process will there be to cover that?
My understanding is that what is proposed will have to be dealt with by a Scottish statutory instrument. I think that the issues to which the member refers would be discussed at that point.
Amendment 55 agreed to.
Amendment 56 moved—[Roseanna Cunningham]—and agreed to.
Long Title
Amendments 57 to 59 moved—[Roseanna Cunningham]—and agreed to.
That ends consideration of amendments.
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