Chamber and committees

Absolutely. It is right that the defender, whoever they are, meets the costs of the award. For catastrophic injury, regardless of whether the defender is a business or is publicly funded, it is important to note that, in cases where they are not properly compensated and they face the prospect of their money running out, pursuers will inevitably have to fall back on the NHS and other public social and care services, which places a burden on those services during their lifetime. That surely cannot be the right outcome.

The use of periodical payment orders can, of course, mitigate the impact of the discount rate. We are working to ensure that those provisions come into force so that the courts in Scotland may, for the first time, impose a periodical payment order, which would be helpful for bodies such as the NHS, which could be deemed to secure funding for the purposes of those provisions that relate to periodical payment orders.

I do not know whether Michael Paparakis or Scott Matheson have anything further to add to that.

Good morning, convener and committee. The two Scottish statutory instruments that you are considering are routine. They concern the application of the public sector equality duty and the Scotland-specific equality duties to two public authorities: Community Justice Scotland and the Patient Safety Commissioner for Scotland.

The office of the Patient Safety Commissioner for Scotland was established by legislation that was passed by the Parliament in September last year and came into effect at the start of this month. That legislation was introduced in response to a recommendation of the independent medicines and medical devices safety review, which followed a number of high-profile instances in which harm resulted from healthcare professionals not heeding concerns that were raised by patients about the safety of medical interventions.

The commissioner will be an independent public advocate for patients on issues of safety. They will champion the value of listening to patients and holding organisations to account for their responsibility to take patients’ concerns seriously. They will bring together evidence of patients’ experiences and concerns with wider patient safety data and use that to identify potential systemic patient safety issues. They will have powers to require information from healthcare organisations and to investigate patients’ safety concerns where they feel that there is a need to do so. I understand that the Parliament is currently in the process of recruiting the first commissioner.

Community Justice Scotland is a national body for community justice in Scotland. It was established in April 2017, when the new model for community justice was introduced. Community Justice Scotland’s aim is to promote and advance the national strategy for community justice, in order to create a more robust and effective community justice system based on local planning and delivery by a range of statutory and other partners, supported and guided by national leadership and oversight. It also monitors, promotes and supports improvement in performance in the provision of community justice across Scotland.

The Equality Act 2010 (Specification of Public Authorities) (Scotland) Order 2024 will add Community Justice Scotland and the Patient Safety Commissioner for Scotland to the list of public authorities that are required to comply with the public sector equality duty. That duty requires public authorities, when exercising their functions, to have due regard to the need to eliminate discrimination, harassment and victimisation; the need to advance equality of opportunity; and the need to foster good relations between persons who share protected characteristics and persons who do not.

The Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2024 will apply the Scotland-specific equality duties by adding the bodies to the Equality Act 2010 (Specific) (Duties) Scotland Regulation 2012. Those regulations will, for example, require Community Justice Scotland and the Patient Safety Commissioner for Scotland to publish equality outcomes and report on progress towards achieving those outcomes; report on mainstreaming equality; and publish information on the gender pay gap and equal pay.

With regard to Community Justice Scotland, it is worth noting that, although the organisation has existed for a number of years, equality legislation was not updated when it was first established. The Equality and Human Rights Commission subsequently recommended that appropriate changes be made to include Community Justice Scotland. The Scottish Government agrees with that recommendation, and this legislation will ensure that Community Justice Scotland is fully subject to the provisions therein. The committee might wish to note, however, that, up to this point, Community Justice Scotland has considered itself to be under the general public sector equality duty from the outset, and it has acted accordingly.

In summary, I recognise the importance of ensuring that our public authorities have regard to their equality duties when exercising any functions. I consider these SSIs to be the best approach to ensure that that happens.

I hope that that provides a useful overview. I will be happy to take any questions that the committee might have.

The draft Scottish Tribunals (Listed Tribunals) Regulations 2024 are relatively straightforward regulations. They amend the Tribunals (Scotland) Act 2014 to include the transport tribunal in the list of tribunals listed at schedule 1 to that act, whose functions may then be transferred to the Scottish tribunals. The regulations also specify the appeal functions for the transport tribunal that may be transferred, namely the devolved appeals function.

The Tribunals (Scotland) Act 2014 created a new simplified statutory framework for tribunals in Scotland by establishing the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland, known collectively as the Scottish tribunals. The act brought the existing tribunal jurisdictions together and provided a structure for new jurisdictions. Schedule 1 to the 2014 act sets out the bodies whose functions may transfer into the Scottish tribunals.

The draft regulations are part of a wider suite of regulations that are required to transfer certain appeal functions of the transport tribunal under section 39 of the Transport (Scotland) Act 2001 to the Upper Tribunal for Scotland, and to allocate new appeal functions in relation to bus service improvement partnerships under the Transport (Scotland) Act 2019 to the Upper Tribunal for Scotland. It is intended that the respective transfer and allocation of these appeals functions to the Upper Tribunal occur at the same time. The Scottish Government is currently working towards a transfer and allocation date in December 2024. Further regulations to effect that transfer and allocation will follow.

The Scottish Tribunals (Listed Tribunals) Regulations 2024 support the Scottish Government’s policy intention to transfer devolved appeal functions into the Scottish Tribunals.

Finally, I understand that the Delegated Powers and Law Reform Committee considered the draft regulations on 23 April 2024, but raised no queries in respect of them.

I will be happy to answer any questions.

The GAD analysis suggests that the current further 0.5 per cent margin remains applicable, and it is probably worth reiterating that that margin broadly results in a 30 to 35 per cent chance of undercompensation. It is impossible to ensure that no one in receipt of damages to which the discount rate applies will ever be undercompensated or overcompensated, but we can reduce the likelihood of pursuers being undercompensated through that important protection on the further margin.

Historically, there is a very fine balance between overcompensation and undercompensation, which is hard to determine specifically. Do you want to add anything to that, Michael?

We have seen an increase in all insurance premiums since the cost of living crisis—every household has been impacted. I do not know whether the decision will increase insurance premiums specifically.

Yes. No issues or financial complications have been raised. Although Community Justice Scotland has not needed to demonstrate that it follows that duty until now, it has been doing so since it was established in 2017.

I do not know whether my officials have any insight on the concerns that have been raised.

My understanding is that more information has been requested for the relevant committee. I will bring in Michael Paparakis, who has been corresponding.

The personal injury discount rate is the rate by which an award of damages for personal injury, which includes future loss in the form of a lump sum, is adjusted to reflect the fact that the injured person can invest the money. The way in which the discount rate is calculated was reformed in 2019 by the Damages (Investment Returns and Periodical Payments) (Scotland) Act 2019. Under that legislation, the current discount rate is 0.75 per cent.

The legislation requires a statutory review of the rate every five years, and a review is therefore required to begin on 1 July 2024 and to be completed within 90 days. Ahead of the review, the Scottish ministers must consider whether the factors to be used in that review continue to meet the needs of the hypothetical investor. That consideration is now complete, and the draft regulations before you amend some of the factors that the Government actuary must use in reviewing the personal injury discount rate.

The factors that are being amended are as follows. The index for impact of inflation will change from the retail prices index to the average weekly earnings index, and the standard adjustment for tax and costs will change from 0.75 per cent to 1.25 per cent. The period of investment will change from 30 years to 43 years.

Those amendments have been informed both by consultation carried out last year with stakeholders and by work that we have commissioned jointly with the Northern Ireland Executive in the form of a report from the Government Actuary’s Department. I am happy to take any questions.

In May last year the Scottish Government invited views on the need or otherwise to adjust any of the statutory factors, and it requested any evidence to support those views. In addition, we invited views and evidence on whether a single or multiple rate should apply, and a total of 24 responses were received, including from all the key stakeholders.

The Scottish Government has asked GAD to consider those responses and other available evidence and to provide advice to the Scottish Government. As I said, the consultation was carried out in consultation with the Northern Ireland Executive.

I will bring in Michael Paparakis regarding any further evidence.

Thank you, convener. I know that you have taken a great interest in the situation with McClure Solicitors, and you have discussed that with me and with the Law Society. The Law Society’s position on that is on the public record, because it was given to the committee in an evidence session in the past couple of weeks.

I am aware that the matter has been reported to Police Scotland, and I understand that Police Scotland has commented that an assessment of the information is on-going. Therefore, it would be inappropriate for me to comment much further on the individual circumstances of the case.

However, in general, a judicial factor appointed under the Solicitors (Scotland) Act 1980 does not carry out any legal work in the way that an incoming firm is able to. In many cases, it might be preferable for another firm to take over the business of a failing firm rather than for a judicial factor to be appointed, provided that there are no concerns as to any misdeeds.

Ultimately, the Law Society is the regulator and will be best placed to decide whether to seek the appointment of a judicial factor to a solicitor firm. However, I am also working closely with you and other MSPs in relation to the regulation of legal services.