Damages (Asbestos-related Conditions) (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Damages (Asbestos-related Conditions) (Scotland) Bill. In dealing with amendments, members should have the bill, which is SP bill 12; the marshalled list, which is SP bill 12-ML2; and the groupings, which I have agreed. The division bell will sound and proceedings will be suspended for five minutes for the first division this afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate and 30 seconds for all other divisions.
Section 1—Pleural plaques
Amendment 1, in the name of the Minister for Community Safety, is grouped with amendments 2 to 8.
To set the context for the individual amendments that the Government has lodged, I will briefly recap what I said during the stage 2 proceedings. I made clear the Government's willingness to engage with stakeholders to ensure that the bill provides a clear and effective means of securing justice for people who have been negligently exposed to asbestos and internally scarred as a result, physically and often mentally and emotionally.
As will be recalled, after careful deliberation I reluctantly concluded at stage 2 that I could not support the amendments that Bill Butler had lodged, even though I wholly appreciated the intention behind them and admired the clarity with which they were explained. However, I reassured the committee that my intention ahead of stage 3 was for officials to seek further early discussion with stakeholders with a view to reaching a mutual understanding and agreement with those who share the Parliament's objectives. I am pleased to inform members that we have listened to stakeholders, in particular, the Law Society of Scotland and Thompsons Solicitors, which have worked with us on the further development of our thinking on the detail of the bill. We have now reached broad agreement.
Amendments 1 to 8 fulfil the undertaking that I gave the committee to introduce amendments at stage 3 that meet the Scottish Government's concerns and the concerns that Bill Butler and Robert Brown articulated at stage 2.
I now turn to specifics. Amendment 1 addresses two concerns that stakeholders had about section 1. They were unsure that section 1(2) would effectively ensure that pleural plaques would continue to be actionable in damages. There was criticism that the wording of section 1(2) could be read as creating a strict liability, which was not the policy intention. Amendment 1 introduces into the bill the concept of "actionable harm" to represent the existing legal test that must be satisfied for pleural plaques to be actionable under the law of delict. If we read sections 1(1) and 1(2) together, the bill, by providing that plaques are
"a personal injury which is not negligible",
provides that plaques constitute "actionable harm" in law. By "actionable harm" in this context, I do not mean anything different from the phrase "material damage" as used by Lord Rodger of Earlsferry in the Johnston case.
Amendment 2 is consequential on amendment 1. It replaces the wording in section 1(3),
"are not a personal injury or are negligible",
with wording that refers to "actionable harm", on the basis that "actionable harm" covers both those concepts.
Amendment 3 changes the language of section 1(4) to remove any possible inference that the bill deals only with causation issues. As amended, subsection (4) makes it clear that all other rules of law, both common law and statutory law, regarding the circumstances in which someone can be held liable to pay damages in respect of personal injury continue to apply in pleural plaques cases.
Amendments 4 and 5 amend section 2(1) to make it clear, in line with policy intent, that section 2 deals only with asymptomatic pleural thickening and asymptomatic asbestosis. That represents a departure from the bill as introduced, in which section 2, although it primarily deals with asymptomatic asbestos-related conditions, also encompasses—it could be argued—symptomatic versions of those conditions. Symptomatic pleural thickening and symptomatic asbestosis clearly remain actionable under the law of damages, so it is neither necessary nor desirable to include them in the bill.
Amendments 6 and 7 make changes to section 2 so that the provisions in respect of asymptomatic asbestos-related conditions in that section are consistent with sections 1(2) to 1(4), as amended.
Amendment 8 is consequential on the amendments made to section 2(1). It revises section 3(1)(a)(ii) so that it refers simply to conditions to which section 2 applies—those being asymptomatic asbestosis and asymptomatic pleural thickening. I hope that members have followed all that.
Having listened to all our stakeholders, I believe that the amendments that have been lodged both satisfy their concerns and continue to achieve the policy intention of ensuring that the House of Lords judgment on pleural plaques does not have effect in Scotland, so that people who have been negligently exposed to asbestos who go on to develop an asbestos-related condition may pursue an action for damages.
I move amendment 1.
Justice Committee members and the minister will recall that I lodged stage 2 amendments that were intended not to change the effect of the bill but to ensure that it was clearly achieved. I withdrew those amendments in view of the undertaking that the minister gave to consider them further and to have discussions with the people on whose behalf the amendments were lodged. They were lodged on behalf of Clydeside Action on Asbestos, with the support of the Clydebank Asbestos Group, Unite and others acting for people suffering from pleural plaques.
I am happy to say that, since then, those discussions have taken place and agreement has broadly been reached on what amendments are required for the purpose. Those are the amendments that have been lodged by the minister.
The minister has explained the amendments in detail, but it might be helpful if I add a few words on how they are perceived by those who represent victims of pleural plaques. On amendment 1, the main difficulty that I previously had with section 1 was the considerable doubt as to whether subsection (1), which provides that
"pleural plaques are a personal injury which is not negligible",
had the effect of providing that pleural plaques constituted actionable damage for the purposes of the law of delict. That was primarily because the subsection seemed to be making a statement of fact, rather than serving as a legal statement. I believe that that doubt is now removed by the amendment that is made to subsection (2) by amendment 1, which spells out the legal consequences of subsection (1). The bill will now provide that,
"Accordingly,"
pleural plaques
"constitute actionable harm for the purposes of an action of damages for personal injuries".
I consider that that achieves the same effect as the equivalent amendment that I lodged at stage 2. In particular, I do not consider that a difference exists between "actionable damage" and "actionable harm" or between
"for the purposes of the law of delict"
and
"for the purposes of an action of damages for personal injuries".
As the minister said, amendments 2 and 3 make consequential amendments to sections 1(3) and 1(4). My view continues to be that those subsections are unnecessary, because their effect is adequately achieved by other provisions in the bill. However, they appear to do no harm, in view of the proposed amendments to them.
Amendments 6 and 7 bring section 2 into line with section 1, as amended by amendments 1 to 3.
Those are the reasons why I am content with the group of amendments, as are those on whose behalf I lodged the original stage 2 amendments in the committee. I record my sincere appreciation for the Scottish Government's willingness to listen to the concerns and to co-operate with a view to reaching an agreed solution to them. Such rational co-operation has been a hallmark of the bill's process. Accordingly, Labour will support the amendments.
I will comment briefly, primarily to thank the minister for his attitude, on which Bill Butler touched. Underlying the amendments and our discussion at stage 2 was concern from the committee about the coherence of the law, how the law was expressed and the use of words that have common acceptance in different situations.
A number of words have been used in this context to describe damages, damages for personal injury and some of the concepts that accompany that in the traditional textbooks, in the House of Lords judgment in the Johnston case and in several other cases. The words tend to vary a little. One concern was that some of the phraseology that the Scottish Government's draftspeople used had to be linked in and that other words had to be introduced.
The discussion that has taken place has improved the situation. The amendments bear a distinct resemblance to those that were withdrawn at stage 2. It is appropriate to agree to the amendments, now that they have been sorted out by parliamentary draftsmen and individuals with an interest.
It is important to state the law as clearly and precisely as possible. Sometimes, that can look like fiddling about with matters—the stage 3 amendments involve an element of that. However, it is important to have precise meanings that courts can judge on and practitioners can apply and which have a common meaning to everybody who must deal with them. With these amendments, we will achieve that elegantly and coherently.
I thank Bill Butler, Robert Brown and the other Justice Committee members for the way in which these somewhat technical matters were dealt with. We all wanted to pursue a shared objective. With the assistance of the Law Society and Thompsons, we will do that when the amendments have been agreed to. For that, I thank everyone who was involved.
Amendment 1 agreed to.
Amendments 2 and 3 moved—[Fergus Ewing]—and agreed to.
Section 2—Pleural thickening and asbestosis
Amendments 4 to 7 moved—[Fergus Ewing]—and agreed to.
Section 3—Limitation of actions
Amendment 8 moved—[Fergus Ewing]—and agreed to.
After section 3
Amendment 9, in the name of Derek Brownlee, is in a group on its own.
The amendment in my name is rather tortuous to read, as things in my name often are, but it is relatively simple at heart. It would ensure that the projected costs under the bill are monitored after royal assent and that explanations are provided for any significant variance. Similar amendments have been lodged to other bills that are in progress, as the issue is of general application rather than specific to this bill.
Some might consider that the amendment is too prescriptive or that it represents overkill. However, I argue that the reporting mechanism is relatively simple. The first subsection would simply require a report to be laid before Parliament each year on the costs that have arisen under the bill, no later than six months after the end of the financial year. Given that the Scottish Government published its consolidated accounts, which cover everything that it does, within the allotted timeframe last year, there can be no suggestion that the timescale in subsection (1) of the new section that amendment 9 would insert in the bill is too onerous.
Subsection (2) sets out what the report should contain: in essence, the annual and accumulated costs incurred under the act, and their equivalents in the financial memorandum, together with the difference between the two sets of figures. The only real effort that the report would require is the identification of the actual costs that are incurred, which we might legitimately expect the Government to want to know in any case to assess the cost effectiveness of its policy interventions.
Subsections (3) to (5) set out de minimis provisions to trigger a further duty on ministers to report its explanation of why costs are higher or lower than expected and what, if anything, they propose to do in response. That duty would be triggered only if the variance met one of the thresholds in subsection (4). However, given that subsection (5) does not set out the level of detail that ministers would have to provide in explaining the reasons behind cost variances, the requirement would not be particularly onerous, even if it were to be applied in every case.
Subsection (6) would place a general duty on ministers to consult bodies in preparing information for the report in the same way that they consult in preparing for a financial memorandum. However, as most relevant bodies would have been identified in the process of preparing the financial memorandum, the duty would be less onerous on external bodies and Government than the preparation of the estimates in the financial memorandum.
Subsection (7) is permissive and not prescriptive. Subsection (8) deals with situations where the financial memorandum includes no figure for later years. Subsection (9) details the groups of bodies other than central Government on whom relevant costs might fall. I have used the same headings that rule 9.3 of the standing orders for financial memorandum uses. Subsection (10) would allow the Parliament to suspend reports without repealing the entire bill after a period of five years following royal assent. Subsection (11) is on the interpretation of subsection (10) and subsection (12) deals with terminology.
As I said, the general principle is a simple one. It is that routine examination of cost estimates should be made after, and not only before, a bill has been passed. The aim of doing that is not only to learn lessons on the effectiveness and cost effectiveness of the policy intention for a bill but to ensure improvement in the process of making future cost estimates. Such a process need be neither time consuming nor unwieldy. Indeed, it is easier and cheaper to collect such information from the outset and not to have to go back through records in response to parliamentary questions or freedom of information requests.
Routine examination of the accuracy of cost estimates and the questions that such examination raises would offer a further level of financial scrutiny to legislation that would allow any emerging problem to be dealt with more speedily than would otherwise be the case. If agreed to, the section would mark a new approach for the Parliament. If it were adopted more generally, it would lead to a much more robust system of legislative scrutiny than exists at present either in the Scottish Parliament or at Westminster. That makes it a tempting proposal for the Government.
I move amendment 9.
The bill has enjoyed unanimous support so far and I hope that that continues to be the case today. However, I am afraid that I cannot support the amendment in the name of Derek Brownlee, even though he made his case in an unusually reasonable manner.
Amendment 9 looks to the wider issue of post-legislative scrutiny, particularly the impact of costs once a bill has been passed. The issue is one that parliamentary committees can take up at any point in time. There is no need to amend the bill to do that. This is not the most appropriate way for the Parliament to engage in this level of scrutiny.
There has been a lot of debate on the costs of the bill. In this case, we have to accept that we cannot come up with an exact figure for the resource that is required to implement the bill. Amendment 9 addresses not only the cost on Government and local authorities but the cost on individuals and businesses. In those cases, surely insurers will be responsible for meeting the majority of costs, as they have been in the past. I do not accept the predictions of future costs that the insurance industry has produced. In my view, they are significantly overinflated. Based on the information that was available to them, Scottish ministers have done their utmost to come up with the most realistic estimate of costs.
The amendment does not make it clear what would happen to the report or what its intention would be. If passed, the amendment would create further uncertainty for victims of pleural plaques, which is not a desirable outcome.
Given that the best indications that we have are that costs are not extraordinary and that the level of payments to victims of pleural plaques is not unreasonable, I believe that the best way forward is for us to pass the bill without the amendment, and I will vote accordingly. I am not saying that Mr Brownlee has not made reasonable general points about post-legislative scrutiny and the costs of legislation once it is in place, but those are matters for parliamentary committees, rather than for an amendment to legislation.
I agree entirely with Richard Baker's remarks, especially his last comment. Scrutiny of the costs of legislation is a matter for the Public Audit Committee and, before legislation is passed, for the Finance Committee.
Derek Brownlee said that the amendment was tortuous, and it is. I would go further—my eyes closed before he reached the end of his speech. The amendment could have been drafted only by a chartered accountant or someone in that general area of employment. The central point that the member made about the need for close scrutiny of the financial implications of parliamentary legislation is correct—no one would dispute it—but the mechanism that he proposes is complex. It would be an interesting exercise to have someone cost the cost of the amendment.
I agree that it is relatively easy to present in a suitable way the costs incurred by the Scottish Administration—the matter could also be addressed by the Public Audit Committee asking the appropriate questions at the right time. However, as Richard Baker indicated, subsection (9) of the new section that the amendment would insert in the bill includes
"other bodies, individuals and businesses."
I am not entirely sure what the restrictions would be, but identifying which bodies, individuals and businesses would be affected is a complex task. Some of the information might be complex business information—I do not know—but it would certainly not be easy to get from the multitude of bodies that would be affected. That is the case even with this bill, but I am given to understand that from now on Derek Brownlee will seek to include such provisions in all bills, which is a worrying thought. The cost of doing that across the board would be very significant.
The Parliament has set up processes, which have been refined from time to time, to examine in advance the costs of and the financial memoranda to bills. Financial memoranda have their limitations; in the case of this bill, issues have arisen in relation to the costs of damages and the number of pleural plaques claims. However, as a result of that exchange, we have secured much more accurate and usable information about the cost of the bill than that with which we began. It is up to each committee, when examining bills, to identify the priorities that ought to be pursued.
In short, the device that is proposed in the amendment is extremely bureaucratic and the Liberal Democrat group does not support it. However, we support careful and proper scrutiny by the appropriate committees of the on-going costs of the public administration, in particular, of bills of this sort.
Derek Brownlee might wish that I were not the person to back him up, but it is about time that someone did. From time to time, parliamentary committees have questions about the information that is provided in the financial memorandum to a bill during committee scrutiny. On the face of it, what Derek Brownlee is seeking to achieve seems entirely rational. He is asking the Government to provide financial information in a regularised form at the post-legislative stage. I am interested in that general argument, although I am not convinced that amendment 9 is the right way of achieving what he seeks.
Before Derek Brownlee closes, I would like him to consider why we should focus purely on the financial aspects of legislation. During parliamentary scrutiny of a bill, we consider issues of human rights compliance, the bill's policy objectives and its impact on equalities issues and the environment. We have already asked the Government to subject its spending plans—its budget—to a carbon assessment. During pre-legislative and legislative scrutiny, we also look at the financial consequences of bills, as best we understand them. It is for committees to set their agendas, but if our intention is to formalise or regularise post-legislative scrutiny in some way and to have Government provide the information that will enable committees to carry out such scrutiny better, why should we focus only on the financial aspects of legislation, rather than on its wider impact on equalities, the environment and policy objectives? I would be interested to hear the comments of both Derek Brownlee and the minister on that issue.
I thank Derek Brownlee for clearly outlining his thinking on the purpose that he sought to achieve by lodging amendment 9. He has raised an important issue about post-legislative scrutiny and the opportunity to compare the actual costs of bills with the costs that were provided in financial memorandums. Mr Brownlee will not be surprised to hear that I have a great deal of sympathy with the aims that he seeks to achieve, given that I was deputy convener of the Finance Committee during the previous parliamentary session.
Issues of post-legislative scrutiny of finance such as Derek Brownlee raises are, of course, familiar. His proposal would help all members to achieve a better understanding of the costs of legislation, which is an entirely reasonable and sensible aim. The Government accepts that there should be routine examination and reporting of the costs that arise as a result of legislation such as the bill that we are considering today, and we undertake to do that for this and other new legislation.
However, there are opportunities for a simpler and more flexible approach, which would achieve the same laudable objective as the approach that is envisaged in amendment 9. Members of different parties—Mr Baker and Mr Brown—set out technical objections to the way in which Mr Brownlee seeks to achieve his objective. The Cabinet Secretary for Finance and Sustainable Growth has indicated that he wants to meet Mr Brownlee to discuss and agree the appropriate mechanism to handle the issue. He will report back to the Parliament on the steps that will be taken.
I thank Patrick Harvie—the list of people to thank is not as long as it might have been. I will resist the temptation to rebut Robert Brown's comments about chartered accountants, although I note that he is perhaps the only lawyer in the country who is opposed to complex legislation.
The substantive point that Robert Brown raised, which Richard Baker also mentioned, is whether proposed new subsection (9) refers to too broad a group of bodies. I simply point out that amendment 9 uses the same wording as the rule in the Parliament's standing orders that sets out which groups must be considered in relation to financial memoranda. Therefore, to suggest that the approach in amendment 9 would be too broad for post-legislative scrutiny might also be to suggest that it is too broad for pre-legislative scrutiny. As far as I am aware, the approach in standing orders has operated since financial memoranda were first provided. Although Mr Brown's objection appears superficially accurate, closer examination reveals that there is less substance to it.
Patrick Harvie asked why we should scrutinise only financial matters. He made a valid point about the need to extend post-legislative scrutiny to other areas. I am a member of the Finance Committee, so perhaps it is inevitable that I have a bias towards financial aspects of post-legislative scrutiny. The member made a reasonable point.
Robert Brown suggested that the proposed reporting mechanism might be incredibly costly. I point out that, in relation to the Climate Change (Scotland) Bill, the Government estimates that to map all Scotland's carbon emissions and progress against targets in the bill would cost only £60,000. Given the volume of proposed legislation that the Parliament is considering, it would be surprising if significant additional costs were incurred as a result of the Parliament agreeing to amendment 9. Indeed, additional costs might be prevented by the provision of an early warning system that would alert us to costs that were going awry.
I acknowledge the minister's constructive tone and, in particular, his acceptance of the principle of routine post-legislative scrutiny, which is key. I am happy to explore the potential for a non-legislative solution to the problem so, on the basis of what the minister said, I seek leave to withdraw amendment 9.
Amendment 9, by agreement, withdrawn.
That ends consideration of amendments.