Chamber and committees

Good morning. In the evidence that we took from Alex Neil last October, which you mentioned that you have read, he said that money was not the problem. In fact, he said that there was an assessment of the budget and that

“£14.7 billion of capital was not allocated to any project ... between 2015 and 2030.”—[Official Report, Citizen Participation and Public Petitions Committee, 4 October 2023; c 13.]

We are trying to find out why the target of 2025 for dualling the A9 was not achieved. Was it lack of money, lack of political will or lack of the right companies willing to do the work, or was it a combination of all those things? As the convener said, I do not think that we really feel that we have quite got to the bottom of that yet, although we have had a lot of useful evidence.

You described the Cabinet meeting that took place in Inverness. Will you talk us through who was involved and how the decision was made that the A9 would be given priority, and that the funding was available? Which people in the Cabinet were involved? Are you able to say, without breaching any rules of protocol, if there were any doubting voices from any of your cabinet secretaries, who urged caution, or not? It would be helpful to get the background to understand how you and your Cabinet saw the funding issue at that time.

Finally, you mentioned—well, the convener described—the business team that you had, which was you, Alex Neil, John Swinney and Jim Mather. Did they all remain absolute supporters of the project? Did the finance secretary have any questions or doubts about the affordability or viability of the project during your tenure as First Minister?

I echo Edward Mountain’s sentiments about safety.

I take the former First Minister back to something that he remarked on—namely, that people might not understand the scale of the planned public and private investment in the Highlands and in Aberdeen and the north-east over the next 10 to 20 years. In the Highlands, over the next 10 years, investment of £40 billion or £50 billion will be made in the grid, renewables, pump storage, water, roads and so on. All of that will involve potentially thousands—possibly tens of thousands—of jobs over 10, 20 and 30 years.

What impact would there be on Scotland realising its potential, especially in renewables, were the slow pace—the snail’s pace—in dualling the A9, with zero progress on the A96, to continue? If that pace remains for the next 10 years, what impact will that failure have on the ability to realise the potential that could transform Scotland’s economy over the next couple of decades?

Convener, that reply is as much as I could reasonably ask of any minister, so I am grateful for it. Minister, if you want a useful form of words to ensure that you are never really on any particular hook as to the timescale within which you do something, the legal terminology is, “We will do it on or around between X.”

That is just some free advice. [Laughter.]

I think that I agree with the first part of that. On the second part, there is no legal aid for defamation.

I thought that the chap from the Law Society in our last meeting said there was no legal aid.

I agree with Mr Torrance’s recommendation. I reassure the petitioner that the point that he has raised is an extremely valid one. Given that we will be closing the petition today, I repeat for his benefit what I might have said in a previous meeting. I played a part in proceedings on the bill that became the Family Law (Scotland) Act 2006. The act is extremely vague about the division of property between unmarried couples who live together, in effect, as man and wife, because it does not incorporate the very detailed provisions in the Family Law (Scotland) Act 1985 that apply for divorce. Those very detailed rules contrast markedly with the complete vacuum of rules in the 2006 act. To be fair to me, I made a speech to that effect at stage 3 in which I said that we did not really know what we were doing, and we did not provide sufficient clarity.

Any petitioner whose petition is closed will always feel a bit disappointed, but the petitioner has done a good job in raising an important topic. I feel slightly uneasy that the Government has not given a clearer commitment, and I hope that it will bear that in mind. Perhaps we could write to the Government to say that we feel that that is the case. There needs to be clarity, with the Government being more specific about when the corrective work will be done, whether that is through one of the devices that Mr Izatt mentioned or through primary legislation, which I suspect will probably be necessary.

If I might pursue the theme of that last question, convener, is it not the case that there is no doubt whatsoever that SLAPPs are a huge problem and that the number of SLAPPs raised or threatened is enormous? We have heard that time and time again in evidence from lawyers who practise in that area. Earlier this morning, I was reading Graeme Henderson’s submission to the Scottish Law Commission from some years ago. It referred to the huge number of interdict cases that never come anywhere near court because the pursuer—or, more often, the petitioner, because such cases are usually heard in the Court of Session—is financially so much less strong than the defender that they have not a cat’s chance in hell of affording the litigation. That is the whole point.

The Government must surely accept that that is a serious problem, which it cannot measure simply by counting the number of cases that go to court. You must know that, like an iceberg, most of the picture is submerged. You cannot measure it exactly, because there is no record of cases such as those of an oligarch who owns a Russian oil company or a mine owner from Kazakhstan—to pick two of the litigations that are quite prominent in the history of SLAPPs. I just want to establish, minister, that you accept that this is a very serious problem.

Will you answer a further question? It is good news that you have agreed to consult. We all recognise that. However, this is an ancient petition—it is becoming the pensioner of petitions. I am a pensioner myself, so I should not be rude about them, but it is not acceptable that these matters just go on and on. My questions to you are these. Can you say that the Government is supportive of taking action and not just that you will conduct a consultation? Can you say when the consultation paper will be issued? What is your target date? Is it July? Alternatively, is the answer a vague one—“sometime never”—in which case, we might be back here in a year, perhaps with another minister?

I have one last question. One of your predecessors made a reference that I thought was really not apt, which was that it does not really matter because the cost of pursuing an action in the sheriff court is only £25,000. Argument A is that that is £25,000 more than most people have got to pay for a court action and that most people therefore cannot afford that amount, so the idea that people would be able to afford such a sum is ludicrous. Argument B is that almost all of those actions will be raised by way of an interdict in the Court of Session anyway, so it is completely irrelevant to look at the cost of the sheriff court.

I do not raise that to be smart or to criticise anyone, but does the Government accept that that argument should be pushed to one side? The cost of action in the Court of Session is colossal. We are talking about hundreds of thousands of pounds, and no individual, unless they are a millionaire or a multi-millionaire, will go to court. Having practised law for 20 years, I know that. People will not go to court even if they think that they have a cast-iron defence. That is the whole point. It does not really matter whether brilliant defences are set out, as was the case in the Defamation and Malicious Publication (Scotland) Act 2021. That was a good piece of legislation in that regard, as it created a range of defences and protections, but they are not good enough to protect against the real mischief here, which Mr Mullin and his colleagues have clearly pointed out.

I just put that thesis to the minister to get some reassurance for the petitioner that the consultation paper will not duck those questions and that it certainly will not repeat that particular argument.