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On a point of order, Deputy Presiding Officer. I wish to raise a point of order in relation to the Non-Domestic Rates (Liability for Unoccupied Properties) (Scotland) Bill, which we are about to consider. As you will be well aware, under the Scotland Act 1998, the Parliament can pass legislation only if it complies with the European convention on human rights. I am concerned that the bill before us breaches article 1 of protocol 1 of the convention and is therefore legislatively incompetent.
The bill seeks to change the law on the liability for non-domestic rates on unoccupied properties in order to cure what appears to be a defect in legislation that the Parliament passed in 2020. There is no legal difficulty in the Parliament legislating that, from this point, liability should change, but the bill is to be retrospective in impact and is to date back to charges that have been levied since 1 April 2023. It is that aspect that causes a legal difficulty.
As matters stand, those who have paid non-domestic rates on unoccupied properties since 1 April 2023 have a clear patrimonial right in Scots law to seek repayment under the principle of unjustified enrichment. The bill seeks to retrospectively extinguish that right in order to protect the public finances. That position is stated plainly in the policy memorandum. At paragraph 29, the Government acknowledges that the revenue was collected
“without a valid legal basis”.
At paragraphs 41 and 42, the memorandum concedes that the bill retrospectively validates those payments and removes the right to repayment solely to avoid the fiscal consequences of its own legislative error.
The law in this area is clear. The retrospective extinguishing of a right of possession under article 1 of protocol 1 without compensation is a serious interference that requires the strongest justification. Case law has determined that such action can be taken without payment of compensation only in exceptional circumstances. The policy memorandum is entirely unconvincing as to whether the arguments put forward by the Scottish Government meet the test of exceptional circumstances. In effect, the Scottish Government is trying to argue that legislative incompetence amounts to exceptional circumstances under the law. I do not believe that that is a credible position that would survive a legal challenge in the courts.
I wrote to the Presiding Officer this morning in more detail to raise my concerns about the legislative competence of the bill in relation to its retrospective impact. I am grateful to the Presiding Officer for her response, which I received this afternoon. Further to that, I would be grateful if you could advise me, Deputy Presiding Officer, what mechanisms are available to members of the Parliament to test the arguments that I have made, particularly given the very shortened timetable for scrutiny of the bill before us, to try to avoid the inevitable legal challenge that will follow if the bill is passed.
I thank Mr Fraser for advance notice of his point of order. As he said, the Presiding Officer has provided a more detailed response to the letter that he sent her. For the benefit of Mr Fraser and other members, I observe that the Presiding Officer takes a view on the legislative competence of each bill at its introduction. Her statement is informed by robust advice and forms part of the information that is before the Parliament to assist with the scrutiny of a bill.
On Mr Fraser’s last point, members may raise issues that are of interest to them, including matters that are relevant to legislative competence, as part of the debate, if they wish to do so. The Scotland Act 1998 provides for further checks after a bill has been passed. Whether a provision of a bill that is agreed by the Parliament is within the Parliament’s legislative competence can be definitively determined only by the court. I hope that that is of some help to Mr Fraser and to other members.
On a point of order, Deputy Presiding Officer. I apologise for not giving you advance notice of the point of order, but it is important that members are aware that, in the past hour, Graeme Dey has had to write to the Presiding Officer and to me to correct the record of yesterday’s debate on the emergency bill motion.
In response to an intervention, Graeme Dey—the minister who is urging his own MSPs and members across the Parliament to back a piece of emergency legislation—told me that the Government was first made aware of the flaws in its legislation in August. He is now putting on the official record that that date was not in August or even in July—it was in June. The Government knew about the issue in June.
I said yesterday that people outside the Parliament will not believe that something can credibly be called a piece of emergency legislation if the Government has known about the issue since August. People will be even more confused as to why the Government thinks that something is an emergency now, at the end of November, when it knew about it in June.
That raises serious questions. First, it was bad enough that the minister was not over the detail in the chamber and gave that answer. I would be keen to know whether the minister had been briefed to say that the date was in August or whether that was just a slip of the tongue.
Secondly, I understand from my business manager and from Craig Hoy, who is leading for our party on this issue, that, in briefings with ministers, Opposition politicians were also told that the date was in August. Therefore, it was not just a minister misspeaking in the chamber and potentially reading a note wrong. When the Government tried to inform other MSPs to get them on side—I remember that some of the discussions were about getting things through as quickly as possible, with no amendments and little fuss—it told Opposition members that the date was in August.
My question is: on what date was the Presiding Officer of this Parliament told? If the Government put the case to our Presiding Officer—the guardian of what we do in the Parliament—that the date was in August, but it now turns out that the date was in June, two months earlier, that raises huge questions, not just about what the Government tells MSPs but about what it tells our Presiding Officer.
Therefore, Deputy Presiding Officer, I ask first whether you will answer that question. Secondly, in light of this new information, will you accept a motion under rule 17.2 of standing orders to suspend standing orders and allow us to rerun the debate on the emergency motion that the Government brought forward yesterday?
I believe and hope that, now that even Scottish National Party members have heard that their own Government knew about the error two months earlier than it said yesterday that it did, they could change their minds. They could say that the Government had more than enough time, before the last week of November, to deal with this issue, because it knew about it not just in the past few weeks or months but before the Parliament even rose for the summer recess. We were still sitting—we had not gone away on recess—but the Government chose to remain silent.
I genuinely think that there will now be SNP members who are uncomfortable that their minister was not over the detail yesterday and, more crucially, that their Government knew about the issue months before it told the Parliament. That is why I believe that it is important for us to have the debate and vote again. A suspension of standing orders under rule 17.2 would be the right way to do that.
Thank you, Mr Ross. That is not a point of order. Nevertheless, to respond to the questions that you asked, I am not aware of the date on which the Presiding Officer was informed.
I am not minded to accept a motion without notice. I am aware that the minister has written to the Presiding Officer to clarify the position, and I think that he copied in the business managers. That is an appropriate means of correcting the record. The other issues that Mr Ross has raised can reasonably be raised during the debate that we are about to proceed with.
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