Meeting of the Parliament

Meeting date: Thursday, April 26, 2018

Official Report 864KB pdf

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Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill: Stage 3

The next item of business is consideration of stage 3 amendments to the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill. In dealing with amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon and the period of voting for that 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 that group.

Members should now refer to the marshalled list of amendments.

Section 2—Enforceability

I call group 1. Amendment 34, in the name of Margaret Mitchell, is the only amendment in the group.

For an ordinary member of the public, understanding civil litigation can be a complex and confusing process. The Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill seeks to increase access to justice. By means of success fee agreements, it introduces provision whereby a lawyer who uses a damages-based agreement can take a share of their client’s injury compensation, which can include compensation for both past and future loss.

Amendment 34 seeks to ensure that the bill will protect the consumer by ensuring that the injured pursuer has the relevant information with which to make an informed choice about whether to accept the terms of the success fee agreement that is on offer where the damages are awarded not by a court but through a negotiated settlement. The amendment ensures that before the success fee is agreed—which can be by means of a damages-based agreement—the solicitor or provider has explained in writing to the client

“how the terms of the success fee agreement would determine the fee payable in respect of the different elements of damages that may be obtained”.

The onus is on the lawyer to state, in writing, that the amount that is being taken as part of the lawyer’s fee is fair and reasonable. Amendment 34 also ensures that the client has confirmed, in writing, that they have understood and agreed to the terms of the agreement. In addition, it ensures that, after an offer of damages is received, but before it is accepted, the recipient fully understands how much of the damages amount is being paid to their lawyer and, in particular, to what extent the part of the offer that relates to damages for future loss is being claimed as part of the lawyer’s fee.

It is important to recognise that compensation for future loss is awarded to an injured pursuer to cover their future care, which can include lost earnings while an injured person is off work and recovering, or travel expenses for expected future hospital appointments. In more serious personal injury cases, it could cover loss of all future earnings as well as the costs of future care and specialist equipment that may be needed. Therefore it is crucial that an injured pursuer fully understands how much of their future loss entitlement—which can vary, depending on very complex care needs—will instead go towards their solicitor’s fee if their case should be successful.

In addition, the amendment will ensure that the lawyer must provide

“a certificate that the fee payable is fair and reasonable in the circumstances of the case, and ... that no conflict of interest or undue influence has arisen”.

That will also provide protection for the lawyer.

In conclusion, in the minister’s remarks at stage 2, she indicated, in essence, that she thought that the Law Society of Scotland should be responsible for providing that client protection. However, as the Law Society lobbies in the best interests of its members, it is not best placed to set out what form that protection would take after the bill has been passed. By contrast, amendment 34 would set out provisions in the bill to ensure transparency and openness in a success fee agreement, and that an injured pursuer has the necessary information to enable them to make an informed choice as to whether to accept the agreement. As such, the amendment will provide checks and balances that will serve to protect solicitors and clients from any underlying potential conflict of interest.

I move amendment 34.

I share many of Margaret Mitchell’s concerns, and it is important to note her comment on the proposals in the bill being about increasing access to justice. It is important that individuals who bring forward cases do so with the fullest possible knowledge and that their interests are protected. However, we do not support amendment 34, first and foremost because it would introduce an unnecessary layer of bureaucracy. Requiring the arguments and reasons to be set out in writing would not necessarily protect clients’ interests in the way that Margaret Mitchell has set out. Critically, some in the legal profession have argued that the approach would prevent so-called at-the-court-door settlements, which are often in the client’s best interests in preventing court action and arriving at an agreement that ensures that their interests are looked after.

On Margaret Mitchell’s comments on the Law Society and who is best placed to look at the matter, in the final analysis lawyers are in a highly regulated profession. Solicitors undergo a great deal of scrutiny and are required by law to uphold their clients’ best interests. If there is an issue, it is a much wider issue relating to the profession that would be best looked at from a regulatory point of view, rather than through the specifics of the bill.

For those reasons, we will not agree to amendment 34.

Like Daniel Johnson, I think that Margaret Mitchell very fairly identified an issue. Access to justice is predicated on there being a level of transparency and predictability about what any litigant might expect from the process. However, I share Daniel Johnson’s concerns about the amendment putting in place something that would, in practice, come to be seen as fairly cumbersome and not necessarily in the best interests of the individual.

As Margaret Mitchell rightly said, the Law Society is developing proposals. With a five-year review provision built into the bill, there will be an opportunity to keep under review whether the processes that the Law Society has undertaken are fit for purpose. On that basis, and for the reasons that Daniel Johnson has identified, we will not support amendment 34.

I refer members to my entry in the register of interests. Members will note that I am a member of the Law Society of Scotland and that I hold a current practising certificate, albeit that I am not currently practising.

Amendment 34, in the name of Margaret Mitchell, would include in the bill certain requirements for a success fee agreement to be enforceable. I ask members not to agree to the amendment, as it would undermine the principle of an independently regulated legal profession. The provisions in the amendment are also unnecessary—I will deal with that in a moment.

Turning to the first point, the amendment would mean that substantial provisions about solicitors’ professional obligations would be fixed in primary legislation rather than in Law Society rules, which, aside from any other consideration, are much more flexible when it comes to updating and so forth. The amendment therefore appears to strike at the heart of an independent Law Society and does not take account of the principle that professional rules are best made by a professional body.

Sheriff Principal Taylor has commented that he believes that the second part of the amendment in particular is impractical. As Daniel Johnson mentioned, a number of cases still settle at the eleventh hour and at the door of the court. Sheriff Principal Taylor believes that paragraphs (b)(i) and (b)(ii) of the amendment would be difficult to comply with, and points out that a solicitor is already under an obligation to comply with the provisions in paragraphs (b)(iii) and (b)(iv), which the amendment would require to be certified. If the provisions are inserted into primary legislation, there is also a question of who will be responsible for regulating them. As it stands, it is not clear from the amendment that the Law Society would have that responsibility, so that is a matter of uncertainty.

It is a fundamental principle of maintaining an independent legal profession that no state interference or influence is exerted. The Scottish Government is committed to the principle of an independent profession, and I ask the Parliament to support that principle. It is well known that, as I said, Scottish solicitors are already required to act in the best interests of their clients at all times and must ensure that their clients understand fee arrangements and give informed consent.

Success fee agreements are not new; indeed, they have been in place in some form since the 1990s, and any theoretical conflicts and other issues have not prevented speculative fee agreements from being rolled out since that time. Where the provider of relevant services is a claims management company, it will of course fall under the regulation of the Financial Conduct Authority.

The Law Society has set up a working party that is considering success fee agreements, what provision should be made in Law Society rules and guidance to govern their terms and any other relevant issues. I understand the motivation behind Margaret Mitchell’s amendment 43, and I undertake to write to the Law Society to draw its attention to the points that the amendment raises. The Scottish Government will of course work with the Law Society as the bill is implemented to seek to ensure that the provisions relating to success fees are implemented in a way that best gives effect to the principles of the bill.

In summary, amendment 34 provides for matters that should not be set out in primary legislation, that risk undermining the principle of an independently regulated legal profession and that are more appropriately handled in rules and guidance that are provided by the Law Society of Scotland in its capacity as regulator of solicitors. Hence, I ask Margaret Mitchell to consider withdrawing amendment 34.

A number of points have been raised. Daniel Johnson said that the amendment might prohibit settlements at the court door, but there is nothing to prevent a pro forma being available for the client to use. That would be against a strengthened background should the amendment be agreed to.

The need to ensure that the pursuer has made a fully informed choice outweighs anything that might be seen to be cumbersome. Let us not forget that, as was argued during stages 1 and 2, these cases often involve complex needs and essential care. It is not as if lawyers do not have another way of being remunerated. If such agreements are being written in, that could have adverse effects on the pursuer in an injury claim. Although all lawyers have a duty to act in good faith and in the objective interests of their clients, sadly, that does not always happen.

I believe that, rather than wait until some time in the future to see what the Law Society may or may not come up with on success fee agreements, it is important to include in the bill the protection that amendment 34 would provide.

The question is, that amendment 34 be agreed to. Are we agreed?

Members: No.

There will be a division. As this is the first division of the stage, the Parliament is suspended for five minutes.

14:44 Meeting suspended.  

14:49 On resuming—  

We will proceed with the division on amendment 34.

For

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (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) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The result of the division is: For 29, Against 84, Abstentions 0.

Amendment 34 disagreed to.

Section 4—Power to cap success fees

We come to group 2. Amendment 5, in the name of the minister, is grouped with amendments 6 to 8, 13 and 14.

Amendments 5 to 8 are technical in nature. We have been working with Her Majesty’s Treasury on the United Kingdom Financial Guidance and Claims Bill, which will now regulate claims management companies in Scotland. The Treasury envisages success fee caps being imposed by professional rules. Those will be rules of the Financial Conduct Authority in the case of claims management companies, or rules of a legal services regulator in the case of solicitors.

It is thought at present that there is little likelihood that success fee caps in professional rules and success fee caps under section 4 of the bill will interact. Success fee caps in professional rules could, however, interact with success fee caps under section 4 if the Westminster secondary legislation on claims management companies changes at some point in the future.

In addition, the current legal services review that the Scottish Government has instructed could lead to changes in legal profession regulation that change the extent or nature of professional rules applied to solicitors.

Therefore, in effect we are seeking to provide future proofing. Specifically, the Financial Services and Markets Act 2000, which is to be amended by the UK Financial Guidance and Claims Bill in order to regulate claims management companies, will allow the Treasury to make regulations to give power to the FCA to make professional rules. Such rules would be tertiary legislation.

Amendments 5 to 8 will amend section 4(3)(b) and section 4(4) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill to ensure that success fee caps made in professional rules in accordance with an enactment will be treated the same as success fee caps made in an enactment. The policy in section 4 has always been that where there are two sets of fee caps, the lower one has effect.

The amendments reflect that a fee cap in professional rules might not count as a fee cap in an enactment and, therefore, the relevant text will become

“by, or in accordance with, an enactment”.

I reiterate that we do not expect the Westminster fee caps as currently proposed by the Treasury to interact with those to be provided further to this bill.

Amendments 13 and 14 are also technical drafting amendments. Amendment 13 combines section 10(2B) and section 10(3A) into one subsection that indicates the circumstances in which subsection (2A) does not apply. Thus, there will be a single subsection providing that the providers of success fee agreements and trade unions and staff associations will not be at risk of an award of expenses. Amendment 14 is a technical drafting amendment that ensures that the first reference to the Lord President of the Court of Session in section 13A uses the Lord President’s full title, which is already used in section 9(3). Given that both amendments are minor and technical, they do not make any substantive changes to section 10 and section 13A.

I move amendment 5.

Amendment 5 agreed to.

Amendments 6 to 8 moved—[Annabelle Ewing]—and agreed to.

Section 6—Personal injury claims

We move to group 3. Amendment 1, in the name of Daniel Johnson, is grouped with amendments 2, 2A, 3 and 4.

I will speak to amendments 1 to 4 in my name and against Margaret Mitchell’s amendment 2A.

I apologise in advance, Presiding Officer, as these are complex amendments and it may take some time to rehearse the arguments and issues. I also declare an interest, as a proud trade unionist and a member of the Community trade union and the Union of Shop, Distributive and Allied Workers. I have worked on the amendments with the Scottish Trades Union Congress and the lawyers who work with it on personal injury cases.

Ultimately, the decisions that the Parliament makes on the bill are around access to justice. For each amendment, we should set ourselves one clear test as we vote—will voting for the amendment increase access to justice or reduce it? That is precisely what lies at the heart of Sheriff Principal Taylor’s proposals and at the heart of the bill. Furthermore, we must ask ourselves whether the amendment makes it more or less likely that a claimant who has been wronged will get the justice that they deserve. Importantly, we must also ask whether, when damages are awarded, that makes it more or less likely that a claimant will get the true value of their claim.

At stage 2, the Justice Committee decided to agree to amendments from Margaret Mitchell. My amendments today seek to reverse that decision and I would like to explain why. The issue at hand is whether success fee agreements, which are also known as damages-based agreements and best known as no-win, no-fee agreements, are allowed to include any proportion of future losses in the fee for the lawyer.

On the face of it, as I am sure that Margaret Mitchell will argue, that seems unfair. The argument goes that lawyers should not receive a single penny of the damages that are awarded for the costs of a catastrophic injury. However, we must return to that test—does that increase access to justice? Sheriff Principal Taylor, the architect of the legislation as the author of the report that led to the bill, wrote to the committee—in a surprising and extraordinary move in many ways—and set out in the starkest possible terms his view of the bill as it was amended at stage 2. He wrote that the bill, as amended, posed

“an existential threat”

to damages-based agreements

“being offered in higher value cases in Scotland”.

In other words, if we ring fence future losses, lawyers are simply not incentivised to offer no-win, no-fee agreements for those higher-value cases.

Sheriff Principal Taylor’s report had to strike a carefully constructed balance to ensure that lawyers would actually offer no-win, no-fee agreements to those who have suffered catastrophic injuries. To do that, he allowed lawyers to include a small—and, importantly, capped—percentage of damages. That means that lawyers will be incentivised not just to pursue catastrophic cases but to ensure that they are settled for the maximum possible value—in other words, the interests of the client and the lawyer are perfectly aligned.

What if we do not reverse the stage 2 amendments? What would the impact be? Sheriff Principal Taylor was very clear:

“The likely outcome is that cases will either not be raised at all or will settle for considerably less than the true value of the claim.”

That is a direct quotation. Furthermore, the Law Society of Scotland agrees. It stated:

“To ring-fence future losses from the calculation of a success fee may mean that success fee agreements will not be offered in the higher value cases, as it is simply not economic to do so and the public at large will be the poorer.”

The reason that we can be so sure about this is that a recent change along these lines in England and Wales has led to exactly the situation that Sheriff Principal Taylor and the Law Society outlined. No-win, no-fee agreements are simply not being used to fund personal injury actions and thus access to justice has been greatly diminished.

Furthermore, ring fencing future losses could lead to past losses and future losses being treated differently in the courts, leading to two unintended consequences. Those with existing losses—losses already incurred—would have more opportunity to bring forward litigation than those with future losses, due to the greater availability of success fee agreements. That feels inconsistent and unfair. It could also incentivise the delaying of action so that past losses are incurred rather than being future losses at the point that court action takes place.

I turn to Margaret Mitchell’s amendment 2A. Firstly, and fundamentally, it is based on an assumption that the court fees that are awarded to lawyers are sufficient. At present, the fees that lawyers receive for cases are simply not enough to cover their costs. If they were, no one would be going down the current damages-based agreement route. However, they are doing so in large numbers, on the basis of taking 20 to 35 per cent cuts of the total damages amount.

15:00  

The bill gives ministers the ability to regulate the allowable deductions that lawyers can make as part of their agreements. Sheriff Principal Taylor recommended a sliding scale—from 20 per cent on the first £100,000, down to 2.5 per cent on damages over £500,000. That represents a reduction on the current situation. Crucially, ministers can alter that scale by regulation, so that if it comes to pass that there are unintended consequences or that lawyers are taking disproportionate sums from awards, it can be modified.

Most critically, I believe that Margaret Mitchell’s amendment 2A makes a crucial error in its drafting, in that it does not allow for that flexibility. Instead, it hard-codes figures on proportion and value into the bill, removing the flexibility and the ability for different decisions to be made in the future.

Unfortunately, the figures that Margaret Mitchell has chosen come not from Taylor’s carefully balanced proposals but from the insurance industry’s briefing papers. While I perfectly understand the insurance industry’s right to pursue its interests, we must take a much broader view on the interests of the legislation. Clearly, it is in the insurance industry’s interest to reduce the number of cases brought and the value of the final claims settled, rather than to increase those things. It thus fails the critical test that I set out at the beginning.

This group of amendments does not represent a minor point in the bill. Taylor—the architect of the legislation—said that, if we do not reverse the amendments that were made at stage 2 by agreeing to amendments 1 to 4, the bill will

“make access to justice less accessible to the man in the street than if I had not reported”.

That is a stark warning indeed. I urge members to vote for amendments 1 to 4 in my name, and to vote against amendment 2A.

I move amendment 1.

Amendment 2A would amend amendment 2, in the name of Daniel Johnson, the effect of which would be to remove the ring fencing of future loss that was agreed to by the Justice Committee at stage 2. I have therefore lodged amendment 2A in an attempt to mitigate the potential adverse consequences of the future care costs that would be lost to lawyers’ fees.

Under the terms of the bill as introduced, a success fee agreement could include a damages-based award as part of the solicitor’s fee. That could include past and future loss. In recognition of the importance of protecting future loss and the associated care and support for injured pursuers, the Justice Committee amended the bill at stage 2 and ring fenced future loss. That was supported by the European Court of Human Rights and representatives of the insurance industry.

However, Sheriff Principal Taylor subsequently wrote to the committee to express his opposition to that decision and set out the reasons why; Daniel Johnson accepted those reasons in lodging his amendments. In support of his view, Sheriff Principal Taylor stated that, in England and Wales, the effect of ring fencing future loss on DBAs was that lawyers will not enter into a DBA. In doing so, however, he has not taken into account the fact that in Scotland, unlike in England and Wales, lawyers entering into DBAs can, in addition to those agreements, claim judicial expenses and potentially an additional fee that recognises the complex nature of cases that can take many years to conclude. The additional fee or uplift can amount to three or four times the original award for judicial expenses.

Does the member recognise that the awarding of additional fees, as she has set out and which she is setting a great deal of store by, is done in only 5 per cent of cases? Is that really a sufficient ground for the member to rest her argument on?

We are looking at legislation in which it is clearly set out that those cases are very complex, and the award amounts that we are talking about refer specifically to those cases. I rather think that the percentages that the member quoted do not reflect the amount of judicial expenses that recognise the complexity of the case.

The point of amendment 2A is to mitigate the amount that a solicitor can claim from their client’s award as part of their fee. To recap: if future loss remains ring fenced, there is no question of an injured pursuer’s future loss being eroded as part of a solicitor’s fee. However, if Daniel Johnson’s amendment 2 is agreed to, only awards of over £1 million will be subject to the conditions that are set out in the bill.

There is no provision in the bill for the amount of damages that lawyers can claim, because the Scottish Government has left the determination of those amounts to regulations. Amendment 2A therefore seeks to cap the amount of success fee that can be claimed in damages-based agreements to 1 per cent of any amount awarded over £500,000; those are the sums that tend to be involved in complex personal injury cases.

One of the least persuasive arguments that Sheriff Principal Taylor and Daniel Johnson have deployed in opposing the ring fencing of future loss is that it might lead to unscrupulous lawyers delaying cases in order to increase the past loss amount from which they can take their fee. Surely we should not be regulating to look at a small minority of people who do not reflect the practice of the Law Society of Scotland’s members; and surely the whole point of the bill is that it seeks to increase access to justice for an injured pursuer and ensure that they receive the support for a care package that they need for future loss.

It is difficult to admit that we got it wrong, but I think that that is exactly what all of us on the committee did at stage 2. There are mitigating circumstances to be considered for the bill, and undoubtedly the issue that we are discussing, as Daniel Johnson intimated in his opening remarks, was one of the most sensitive that we had to wrestle with during our scrutiny of the bill. The bill is, after all, about increasing access to justice, and doing so for those who have been most grievously harmed or wronged carries particular significance. However, I am now convinced that ring fencing future losses, as happens in England and Wales and as we voted to support at stage 2—motivated by the best of intentions—would have the perverse consequences that were graphically set out by Sheriff Principal Taylor in his letter to the committee post stage 2.

Sheriff Principal Taylor recommended that damages for future loss be included in success fees if, and only if, the

“future element ... is to be paid in a lump sum”.

If the future element is to be paid by periodical payment, those damages are not to be included. Going over the account in the Official Report of the stage 2 proceedings, I was struck by what the minister said when she pointed to the change to the discount interest rate and the provisions in the forthcoming damages bill. She said that

“it seems to be much more likely that, in the future, the element of damages payment relating to future loss will be made by means of a periodical payment order.”—[Official Report, Justice Committee, 27 February 2018; c 32.]

It is also worth bearing in mind that, if the future element is more than £1 million, the court will have to agree that it is in the client’s best interests for that to be paid in a lump sum; and if it is agreed by settlement, an actuary would be involved in that decision. There is no getting away from the fact that damages-based agreements have proven to be popular even where success fees of anything up to 60 per cent are being charged. As Sheriff Principal Taylor pointed out, without Daniel Johnson’s proposed amendments, the bill as amended at stage 2 could pose an “existential threat to DBAs”. Surely it would be better to cap those fees at 2.5 per cent, as is proposed.

As I said, it is not easy to admit that we got it wrong. I have had the experience of speaking against an amendment that I had lodged, so there are degrees of discomfort. However, I believe that ring fencing future losses might indeed work against the interests of the very people whom we are seeking to protect and provide access to justice for, so for that reason the Liberal Democrats will support Daniel Johnson’s amendments 1 to 3.

I associate myself with the comments of my colleagues Daniel Johnson and Liam McArthur. I am prepared to say that it is important that we constantly reflect on what we are seeking to do. Sheriff Principal Taylor’s letter caused me to reflect on our proposed approach, and he is the architect of the bill. “Access to justice” will undoubtedly be a recurring phrase in today’s proceedings and the stage 3 debate, and the issue that we are discussing lies at the core of that. It might well seem entirely counterintuitive to hear phrases such as “loss to lawyers’ fees” being used in the context of hard-fought-for awards.

Daniel Johnson talked about “mutual interest”. It is important that the client and the lawyer have a joint interest in working together. He also talked about the role of regulation in relation to allowable deductions, which is important, too. However, if the purpose of the bill is to increase access to justice, what is most important is that we avoid the possibility that Sheriff Principal Taylor raised that such cases will

“not be raised at all”.

Therefore, I encourage members to support Daniel Johnson’s amendments and to oppose Margaret Mitchell’s amendment 2A.

I will speak against amendments 1 and 2. If amendment 2 is agreed to, we will support amendment 2A. I confirm that we will vote for amendments 3 and 4.

At the outset, I declare that I am a practising solicitor—I hold practising certificates with the Law Society of England and Wales and the Law Society of Scotland.

Amendments 1 and 2, in the name of Daniel Johnson, seek to allow pursuers’ solicitors to take an element of the claimant’s damages for future loss when calculating their success fee. At stage 2, the amendment to ring fence damages for future loss and to exclude them when success fees are calculated was unopposed. I believe that the ring fencing of damages for future loss is the right thing to do. When someone has been injured, damages for future loss are paid to put them back in the financial position that they would have been in if they had not been injured and, crucially, to fund the costs of care and support. In such circumstances, a need will have been identified and a sum awarded to cover it. I cannot see that it is right to reduce any element of that and thus potentially prejudice the amount available to the pursuer for their future care and support in order to reward and incentivise pursuers’ solicitors.

Would Mr Kerr not recognise that the proportions that are charged under success fee agreements at the moment can be as high as 60 per cent, as Liam McArthur pointed out?

Mr Kerr’s argument would ring true only if judges’ awards were 100 per cent accurate, but I do not believe that any judge’s assessment of future losses is accurate to within 2.5 per cent, unless he can correct me on that.

I will come back to that point, but I want to deal with a point that Daniel Johnson made earlier. He criticised the insurance industry for allegedly wishing to reduce the number of claims, but in the same breath, he lionised, without caveat, the words of those lawyers who wish to ensure that their fees are enhanced. Perhaps he could address that in his winding-up remarks.

With regard to the level of the award, I put it to various witnesses who appeared before the Justice Committee that it is difficult to believe that, over time, a court would not—as I believe has happened elsewhere—gently and perhaps understandably increase the award to ensure that the full costs of care would be recovered after the solicitors had taken their fee, thereby leading to damages inflation or even overcompensation.

What evidence can the member cite to support that claim? He will be aware that it has been refuted by, for example, the Association of Personal Injury Lawyers.

That is quite so but, in committee, we received a variety of evidence that suggested that there was a possibility of that happening and that it had happened in other jurisdictions. I accept that there is differing evidence, but as I said in exchanges with various witnesses in committee, I think that it is possible that that would happen—that would be a logical progression, given what Daniel Johnson said earlier.

I think that the committee was right to ring fence future losses at stage 2. We will oppose Daniel Johnson’s amendments 1 and 2 to ensure that people are not undercompensated for their future care. That said, if Parliament is not with me on that, I urge members to support Margaret Mitchell’s amendment 2A, which seeks to cap success fees that are applied to future losses at 1 per cent, so that those who receive future losses to provide for their care retain as much of their award as possible.

15:15  

I rise to support Daniel Johnson’s amendments 1 to 4. The bill as introduced followed Sheriff Principal Taylor’s recommendation that an award for future loss in personal injury success fee agreements should not be ring fenced—in other words, future loss should not be excluded from the calculation of a success fee—in cases that are taken forward under a success fee agreement in circumstances where the future loss element is to be paid as a lump sum. That is not the position, of course, where the future loss element is to be paid by way of a periodical payment order. As we have heard, in such circumstances, ring fencing will indeed apply.

Considerable concern was expressed in the Justice Committee’s stage 1 report that those unfortunate claimants with catastrophic injuries would not receive the full amount that was awarded by the court if the part of their damages that was attributable to future loss was included in the calculation of the success fee to be paid to their legal representatives. That point has already been made this afternoon.

Margaret Mitchell’s stage 2 amendments provided that the future element in any award for personal injury would be excluded from any uplift by a legal services provider in a success fee agreement irrespective of whether it was to be paid by way of a lump sum or by way of a periodical payment order. I supported the amendments at that time on the basis that we believed that they would, as matter of practice, affect very few cases and that they would mainly involve claims relating to catastrophic injuries and no other particular cases. Since stage 2, however, the Scottish Government has been in discussions with Sheriff Principal Taylor, the Law Society of Scotland and the Association of Personal Injury Lawyers—and we have received submissions from other bodies—and two important considerations have come to light.

First, we now believe that the stage 2 amendments relating to the ring fencing of future loss in all circumstances might have the unintended effect of restricting access to justice. The Scottish Government believed that awards for future loss affected only a few very high-value cases, but we are now informed that that is not the case. The Law Society has indicated that even low-value cases of, for example, £3,000 may contain a future element to the award or settlement. The future loss element of a claim is often complicated and involves a solicitor in a considerable amount of work. As the Law Society put it in its letter to the Justice Committee of 14 March,

“The calculation of future loss is often the most complex and time consuming aspect of a personal injury claim”.

If the solicitor is unable to be remunerated for that work through a success fee agreement, he or she might not be able to offer damages-based agreements for personal injury cases. Sheriff Principal Taylor confirmed that that was a possibility in his letter to me of 8 March, which was copied to the Justice Committee. In that letter, he defended his decision not to exclude all future loss from the calculation of a success fee, but rather to impose such an exclusion where the settlement for future loss is to be paid by way of periodical payment order.

Sheriff Principal Taylor stated:

“If I did not permit a sufficient percentage deduction, solicitors would not offer DBAs as a funding mechanism. They would not recover sufficient in the successful cases to compensate for the unsuccessful cases. One has to remember that should a case be unsuccessful not only does the solicitor not get paid for his or her own time but must also meet court dues, expert witness fees, medical reports etc out of the solicitor’s own pocket. I had to create an environment in which DBAs were sufficiently attractive to solicitors but still fair to the injured pursuer.”

The amended provisions on future loss may therefore represent a severe restriction of access to justice and negate some of the principles on which the bill was founded. It is thought that the failure of damages-based agreements to take off in England and Wales is in fact a result of future loss being completely ring fenced south of the border and thus unattractive to legal practitioners. We should not make the same mistake here.

I heard Margaret Mitchell’s comments about the issue of judicial expenses and the differing approaches to that north and south of the border, but we heard in evidence—indeed, from Sheriff Principal Taylor himself—that although Lord Justice Jackson, who conducted a similar review south of the border, promoted the position that Margaret Mitchell is supporting today, he now has cold feet, because it has led to solicitors south of the border and in Wales not offering damages-based agreements for personal injury actions.

The other point that I want to make is that, as an unintentional consequence of the approach of ring fencing all future loss that was proposed at stage 2, those with catastrophic injuries could paradoxically receive lower awards and settlements. In other words, stage 2 amendments that were intended to maximise pursuer compensation could, in practice, have the opposite effect.

As I stated earlier, the future loss element of a claim is often complicated and involves a solicitor in a considerable amount of work. I am informed that it is not uncommon for solicitor outlays to be in the region of £100,000 over a three-year period in such cases. Sheriff Principal Taylor recommended in his report that lump-sum damages for future loss should be included in the calculation of the success fee under a success fee agreement, because solicitors need to be incentivised.

As Liam McArthur said, Sheriff Principal Taylor recommended in his report the safeguards that were set forth in the bill as introduced, and he also recommended that future loss damages would not be included if they were to be paid by periodical payment orders. Only a small number of personal injury cases end up before a court and the vast majority are settled out of court. Discussions with personal injury solicitors have revealed that solicitor-led cases result in higher settlements, as defenders try to avoid the expense of a court hearing. In other words, having a solicitor is likely to result in the claimant receiving greater damages—possibly much greater damages.

In those conversations with solicitors firms, did many of them report back that, if the future loss was ring fenced, they would cease to act in personal injury claims?

We have to look at the facts that are before us and listen to the evidence that has been submitted to me as the minister and to the committee. People are telling us that there is a significant risk. We should look at what has already happened south of the border, in light of the similar approach that is being pursued there. That approach was promoted by Lord Justice Jackson, and Sheriff Principal Taylor has said that he had a conversation with him in which Lord Justice Jackson admitted that he now has cold feet, because solicitors operating damages-based agreements in England and Wales find themselves in a position that is the opposite of what he had hoped it would be.

Does the minister acknowledge that the situation in England and Wales is not analogous with the situation in Scotland, and that we are not comparing apples with apples?

I have already dealt with that point. Notwithstanding the issue about judicial expenses, the architect of the policy south of the border has effectively recanted in his conversation with Sheriff Principal Taylor, because the policy has had the opposite effect, such that solicitors in England and Wales are not offering damages-based agreements. As mentioned by Daniel Johnson, John Finnie and Liam McArthur, the bill is designed to do the very opposite of that. It is designed to improve access to justice as far as litigation in Scotland is concerned.

In the letter to which I have alluded, Sheriff Principal Taylor said:

“My concern is that the recent amendment to the Bill will have the same consequence in higher value cases in Scotland as has happened in England & Wales; DBAs will not be offered to pursuers who have sustained catastrophic injury. The recent amendment thus poses an existential threat to DBAs being offered in higher value cases in Scotland. What will be the consequence of the amendment? The likely outcome is that cases will either not be raised at all or will settle for considerably less than the true value of the claim.”

Perhaps that helps to deal with Mr Kerr’s point.

Finally, the Law Society letter to the Justice Committee reiterates two practical issues that Sheriff Principal Taylor raised in his report. The first relates to settlement offers. At present, most of those are put forward by insurers without there being any breakdown for the different heads of claim, meaning that past loss and future loss are not broken down and separated when an offer is made. The second practical interest is that, as the legal services provider will be paid for past loss work and not for future loss, an obvious conflict of interests will be created between the solicitor and the client.

In relation to establishing what the future loss element is, does the minister accept that insurance companies do that every day and that they have confirmed that it would not be a difficulty if it was required?

With respect, I saw a submission from a representative of the insurance industry, and it is really a matter for the pursuer acting on the advice of his or her legal adviser to decide what is best. It is not really for the insurance company, which has an entirely different, and conflicting, interest in the matter, to have a role in that important client-legal adviser relationship.

Without Daniel Johnson’s amendments, the solicitor could have a financial interest in apportioning as much as possible to the past loss element rather than to the future loss element. Even a solicitor acting in good faith—which we hope is the case for all solicitors—would have to deal with that important conflict.

I have considered the matters long and hard since stage 2, as have Daniel Johnson, John Finnie and Liam McArthur. For the reasons that I have stated, I am now persuaded that it is right to reintroduce into the bill the measures that are in Daniel Johnson’s amendments.

I am unable to support Margaret Mitchell’s amendment 2A. I mean no criticism of Margaret Mitchell, as I know that her amendments are motivated by the aim of maximising pursuer compensation, as I said in our debate on the first grouping. However, the balance of evidence on the matter that has been submitted following stage 2 is compelling. The bill has the objective of increasing access to justice and civil litigation. Its goal is to make the costs of litigating more affordable and more predictable to Scotland’s citizens. I am now convinced that the bill as introduced would better serve those objectives and goals and that Margaret Mitchell’s amendment 2A, although well intentioned, will not result in enhanced access to justice. Rather, it will result in the reverse.

At stage 2, for understandable reasons, we focused on people who have suffered catastrophic injury receiving all the moneys that are awarded to them by the court. I am now persuaded that we should allow the solicitor to take a small percentage. It is important to point out that that would be 2.5 per cent of damages over £500,000. At present, a claims management company could receive a success fee of, say, £330,000 for an award of damages of £1 million. Under the sliding cap that the bill is proposing—a carefully crafted package of interlinking provisions—the success fee for the same award of damages of £1 million will be £72,500.

Ring fencing all future loss may result in few personal injury claims of any value being pursued under success fee agreements, which would restrict access to justice. To put it plainly, it is surely better to have 97.5 per cent of something than 100 per cent of nothing. Therefore, I support Daniel Johnson’s amendments 1 to 4. I have explained why Margaret Mitchell’s amendment 2A would not maximise the amount that is available to the pursuer, particularly in cases of catastrophic loss. Also, as has been mentioned, there is provision in the bill to ensure that any regulations proposing changes to the sliding cap on fees would be dealt with by the affirmative procedure.

I support Daniel Johnson’s amendments 1 to 4 and do not support Margaret Mitchell’s amendment 2A.

The fundamental points regarding amendments 1 to 4 were best made by John Finnie and Liam McArthur. John Finnie said that it is about ensuring that the interests of solicitors and of the people on whose behalf they make claims are aligned; ensuring that there are no caps or limitations will mean that their interests are perfectly aligned. Otherwise, there will be a clear incentive for solicitors to settle early.

Likewise, Liam McArthur is absolutely right that we must recognise current practice. DBAs are popular. What is more, the people who represent claimants are claiming not 2.5 per cent of awards, but as much as 60 per cent, with a typical amount being 30 per cent. The bill will reduce that; it will introduce a sliding scale from 20 per cent to 2.5 per cent. There will be more cases and more of the damages will go to clients.

Therefore, although I understand the motivations behind Margaret Mitchell’s amendment 2A—the desire to give the greatest possible amount to clients—the reality is that, were the amendment to be agreed to, clients would have fewer opportunities to pursue their cases, which would limit access to justice.

Liam Kerr suggested that I was criticising the insurance industry. I was doing no such thing. I was saying that we must recognise that, although the arguments that the insurance industry makes are legitimate—the industry is right to pursue its interests—they run contrary to the interests of clients, as the minister said. It is in the insurance industry’s interests to reduce the number of claims that are made and the amounts that are settled on.

15:30  

My criticism is not of the insurance industry, but of people who copy and repeat its arguments without qualification or criticism, because they ignore the wider public interest in favour of corporate interest. That is not acceptable. Ultimately, we must return to the clear test: will the proposal and the amendments increase access to justice? Will the amendments allow more people to make claims and achieve the highest possible value? My amendments will do exactly that. Unfortunately, I feel that Margaret Mitchell’s amendment fails that test.

Sheriff Principal James Taylor has made a balanced and well thought-through set of proposals, to which we should stick. The amendments that were lodged at stage 2, in his words,

“make ... access to justice less accessible”.

My amendments are required to save the bill effectively from misguided attempts to qualify and put safeguards in it. I urge Parliament to support my amendments and to reject Margaret Mitchell’s amendment 2A. I will press my amendments.

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (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) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The result of the division is: For 86, Against 29, Abstentions 0.

Amendment 1 agreed to.

Amendment 2 moved—[Daniel Johnson].

Amendment 2A moved—[Margaret Mitchell].

The question is, that amendment 2A be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (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) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The result of the division is: For 29, Against 86, Abstentions 0.

Amendment 2A disagreed to.

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (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) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The result of the division is: For 86, Against 29, Abstentions 0.

Amendment 2 agreed to.

Amendments 3 and 4 moved—[Daniel Johnson]—and agreed to.

Section 7—Form, content etc

Group 4 is on the power to modify section 7. Amendment 35, in the name of Daniel Johnson, is the only amendment in the group.

Amendment 35 was suggested by the Delegated Powers and Law Reform Committee. At stage 2, the Government amended the bill to reduce the power of ministers so that they cannot, by regulations, modify part 1 on success fee agreements. That was changed to limit it to allow ministers just to change, by regulations, anything in section 7. That has the odd effect of making it possible to add, by regulations, the kind of things that ministers could regulate on, which is circular. In the words of the DPLR Committee, that is an “unusual power” and “very wide in scope.” The committee does not recommend it as being necessary.

In order to give effect to the DPLR Committee’s recommendation, and in the hope that Parliament will agree with it, I move amendment 35.

I call the minister to speak to amendment 35.

The Delegated Powers and Law Reform Committee report on the bill at stage 1 expressed concern about the breadth of the power given to the Scottish Ministers by section 7(4) to modify part 1 of the bill. The Government lodged an amendment at stage 2 that responded to those concerns by restricting the power so that it would apply just to section 7, rather than to part 1 as a whole. The amendment also restricted the power so that regulations could be added to section 7, or modified text could be added by the regulations, but they could not otherwise alter it. In other words, none of the text of section 7 that the Parliament agrees to at stage 3 may be removed by regulations. Furthermore, the delegated power that is proposed cannot, as has been suggested, be used to modify itself. That would go against the basic principles of administrative law.

As the Government explained in its response to the DPLR Committee, the purpose of sections 7(3) and 7(4) is to augment the bill’s provisions on success fee agreements, where it is considered to be desirable to have future provision about the mandatory terms of success fee agreements or their enforcement. Such provision could be introduced only after consultation on the regulation of success fee agreements with stakeholders, and thus cannot be included in the bill.

The regulations would mean that any new provisions could be set out in section 7, rather than in free-standing regulations, which would mean that all the mandatory terms relating to success fee agreements would be found in the primary legislation.

The DPLR Committee in its following report stated that it continues to be concerned that section 7(4), as amended at stage 2, is “wide in scope”. However, the Government continues to consider that the power in section 7(4) will be beneficial and will permit, as I have said, all the relevant provisions on success fee agreements to sit together in primary legislation, rather than have them sitting separately in regulations. Therefore, I ask Daniel Johnson to consider seeking to withdraw amendment 35.

As no one else wants to speak, I call Daniel Johnson to wind up, and to press or seek to withdraw amendment 35.

As the minister has said herself, the DPLR Committee said that section 7(4) is “very wide in scope.” The very purpose of that committee is to act as a safeguard and a check on the power of the Executive. Therefore, it would be odd—indeed, it would be outrageous—for the Government not to heed those warnings. The committee is there to prevent such overreaches of power, so we should listen to it. I will press amendment 35.

The question is, that amendment 35 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (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)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The result of the division is: For 52, Against 63, Abstentions 0.

Amendment 35 disagreed to.

That brings us to the end of group 4. Members might have noted that we have passed the agreed time limit for the debate on the group. I exercised my power under rule 9.8.4A(c) to allow the debate on the group to continue beyond the time limit, in order to avoid the debate being unreasonably curtailed.

Section 8—Restriction on pursuer’s liability for expenses in personal injury claims

Amendment 9, in the name of John Finnie, is grouped with amendment 9A and amendments 10 to 12. If amendment 9 is agreed to, I cannot call amendments 10 and 11, as they will be pre-empted.

Sheriff Taylor’s report was long awaited, and concerns significant changes in law. The purpose was to bring about a level playing field in respect of personal injury litigation. That is because Sheriff Taylor recognised something very important, which is that the balance of power had gone too far in favour of the insurance companies. The solution involved qualified one-way cost shifting—QOCS. We have not heard much about that today, but I think that we shall hear more of it. It involves a restriction on the pursuer’s liability for expenses in personal injury claims.

If the test for when people benefit from QOCS and, most importantly, lose the benefit of QOCS is flawed, the intention of the bill will be frustrated. Amendment 9 seeks to address that problem. For QOCS to be effective, legislation must ensure two things: certainty; and the setting of a sufficiently high bar. Claimants, and those who financially support claimants, such as trade unions and staff associations, must be able to bring difficult but meritorious cases without fear of financial ruin if the case is lost. If there is not a high degree of certainty about the cases that will benefit from QOCS and those that will not, the fear that currently serves as a barrier to justice, which we all want to be removed, will remain. The current barriers will be raised only with certainty. Accordingly, if the statutory test for removing the benefits of QOCS is vague, that will serve as an open invitation to insurers to challenge a claimant’s right to QOCS in a large number of cases, and the purpose of the bill will be lost.

It will also lead to satellite litigation. That is a phenomenon that is seen in England and Wales and is a result of the vague language in legislation there and a desire to push back against advances in the rights of personal injury claimants. That has led to large, long and expensive litigation not about the subject matter but, instead, about the legal costs. Satellite litigation is expensive and time consuming and, in England, it has clogged up the legal system. We want to avoid that happening at all costs. Vague and uncertain language in relation to the test will undoubtedly result in satellite litigation as the courts grapple with what Parliament intended. That would be a disappointing consequence of the legislation.

With regard to the high bar that we have talked about, Sheriff Taylor was clear in his report and in the evidence that he gave to the Justice Committee that the bar for removing QOCS must be set at a high level—the benefit of QOCS must not be lost lightly or easily. The wording

“has acted fraudulently in connection with the claim or proceedings”

is vague and will lead to satellite litigation.

As a matter of proportionality, which is at the heart of everything, the loss of QOCS would be an extremely harsh and significant sanction, particularly as claimants and the staff of the trade union or staff association that is financially supporting the claimant will have begun the process believing that QOCS will apply. This significant sanction must be imposed only when it is proportionate to the wrong that has been committed by the claimant. There could be occasions when the claimant’s conduct is inappropriate but it would not be proportionate to remove the benefit of QOCS. The fundamental position is that, for the claimant to lose the benefit of QOCS, their conduct must be materially wrong, and must have the potential to have a material impact on the litigation.

I would not introduce amendment 9 if I did not believe in the highest standards of conduct and integrity in our legal process, including with regard to this aspect. As things stand, the court has the power—which, of course, it might not use—to remove the benefit of QOCS in situations in which the claimant does little more than overegg the pudding—that is to say, the court could remove the benefit of QOCS when the claimant does no more than exaggerate, to a fairly small extent, an issue that is fairly peripheral to the case.

It may be entirely reasonable to assume that that would not happen, but it is what the courts could do, based on the current wording. The point is not whether the court would use its powers in those circumstances but that it is an open invitation to insurers to challenge claims, which will lead to higher levels of the satellite litigation that none of us wants.

15:45  

Insurers would move to have claims withdrawn that have been overegged but which are 100 per cent correct and accurate on everything else. No one—least of all me—supports fraud: we must have a fraud test. Currently, the phrase “makes a fraudulent representation” is open to be used to defeat the spirit and intention of the bill. Our rules of court are robust and unambiguous, and I am proposing robust wording, which is that QOCS would not be available

“where the claim is found to be fraudulent or dishonest”.

There is absolute clarity about that, and I hope that members will lend their support to it.

I move amendment 9.

I am very mindful of the length at which I spoke on the previous grouping, so I will be brief on this one. I will shortly move amendment 9A, in my name, and will now speak in support of amendment 9, in John Finnie’s name.

As John Finnie has summed up very well, QOCS, which is one of the key features of the legislation, is about improving and increasing access to justice. It cannot be abused and we must have safeguards against that. However, there is some concern about the terminology—“a fraudulent representation”—that was introduced at stage 2. Amendment 9 is fundamentally about making sure that that is qualified and clarified so that people who simply overegg their cases and exaggerate but do not make fraudulent representations as such are not caught up in the safeguards that are introduced here. With that in mind, we support amendment 9.

We note that many of those problems would persist if the Government’s amendments 10 and 11 were to be agreed to. However, if amendments 9 and 9A were to fall, we would support them.

I move amendment 9A.

The proposal for QOCS in section 8 has been the subject of much of the scrutiny at stages 1 and 2. Section 8(4)(a) was amended at stage 2 by two amendments in the name of Liam Kerr. At that time, I stated that I was willing to support Liam Kerr’s amendments but that I might come back at stage 3 with some tidying-up drafting changes. As a result of that consideration, I have lodged amendments 10 and 11. They are technical drafting amendments, and there is no intention to change the effect of the provision as amended at stage 2. The policy is that a pursuer who has acted fraudulently—whether by fraudulent representation or by another fraudulent act—should lose the protection of QOCS.

The legal test for fraud is a high one to satisfy and, because it is a high bar, even a single fraudulent act in civil litigation should lead to QOCS protection being lost. Sheriff Principal Taylor has been clear that a court finding a pursuer to be incredible should not, by itself, mean that there has been fraud. Just as Sheriff Principal Taylor has been, the Government is of the view that the relevant meaning of “fraud” is the time-honoured definition from Erskine’s “An Institute of the Law of Scotland” from the 18th century:

“a machination or contrivance to deceive”.

Therefore, an innocent or isolated example of minor exaggeration is not ever going to be fraud. Amendment 10 puts the reference to fraudulent acts in the present tense, which is consistent with the rest of subsection (4). Together with amendment 11, it makes it clear that making a fraudulent representation is an example of acting fraudulently.

Amendment 12 amends section 8(4)(b) by including a reference to the claim as well as to the proceedings. Although we considered that a reference to behaviour in connection with the proceedings would cover pre-litigation conduct, we think that paragraph (b) ought to be consistent with paragraph (a), because they are both intended to cover pre-litigation conduct.

I turn to amendment 9, in the name of John Finnie. In light of his position throughout the passage of the bill, he seeks to make sure that the benefit of QOCS is not lost if there is a single fraudulent or dishonest act in relation to a claim. I have already pointed out that, under the Government’s preferred wording, a pursuer would not lose the benefit of QOCS for an isolated instance of exaggeration—that does not come close to fraud as it is defined in Scots law.

The Government and, I hope, members cannot support the proposition that pursuers or their lawyers—we should not forget them—should be able to act fraudulently in civil litigation without consequence.

I consider that amendment 9 would have a number of particular consequences. First, it attaches the fraud and the dishonesty to the claim rather than to the behaviour in the pursuit of the claim. Sheriff Principal Taylor considered that fraudulent behaviour by pursuers or lawyers in connection with a claim should result in loss of QOCS. It should also be noted that the approach in amendment 9 does not technically work in the context of section 8 as drafted.

Secondly, the introduction of the word “dishonest”, which was not discussed in relation to section 8 at stage 1 or at stage 2, lowers rather than raises the bar required for the loss of the benefit of QOCS. I suspect that that is not John Finnie’s intention. Introducing the concept of dishonesty, which is not founded in Sheriff Principal Taylor’s report, would introduce new uncertainty to the QOCS provisions and, indeed, would be very likely to invite the satellite litigation that Mr Finnie is rightly concerned about. Therefore, I cannot support amendment 9.

Daniel Johnson’s amendment 9A seeks to improve amendment 9 by seeking to remove the word “dishonest”. The Government will support amendment 9A in order that amendment 9, if it is passed, will not introduce the concept of dishonesty. However, my amendments achieve what Sheriff Principal Taylor recommended, so my vote for amendment 9A should not be taken to suggest that the Government supports amendment 9.

I consider that the wording in section 8(4)(a), as amended by Liam Kerr at stage 2 and my amendments 10 and 11 at stage 3, will achieve the desired result, and I ask Mr Finnie to consider seeking to withdraw his amendment and Mr Johnson not to move his amendment, having regard to my strong reassurance that an isolated incident of exaggeration will not be deemed to amount to fraud as far as Scots law is concerned.

I rise to speak against amendments 9 and 9A. For the avoidance of doubt, I say that I will vote in favour of amendments 10 to 12, in the name of Annabelle Ewing, which seem sensible for the reasons that were set out in the purpose and effect notes and in the minister’s remarks.

We believe that, if amendment 9, in the name of John Finnie, and amendment 9A, in the name of Daniel Johnson, were to be agreed to, that could encourage unmeritorious claims. John Finnie talks about his robust wording. I respectfully point out to him that I am not convinced that the wording as drafted makes sense with the section that it relates to. I think that the minister pointed that out, too.

As we shall hear on Tuesday, we believe that the bill is a good one and that the end game of access to justice is good. However, there is a delicate balancing act in which Parliament must seek to increase access to justice but not go so far as to create a compensation culture, with pursuers seeking inflated and unjustified awards. By limiting the fraud or dishonesty to “the claim”, Mr Finnie’s amendment risks exactly that. To lower the bar and simply say that protection is lost where the claim is fraudulent means that a genuine claim that is perhaps bolstered by overestimates of vehicle repairs, care costs, lost wages or suchlike would maintain protection with no sanction. Under Mr Finnie’s amendment, it would be open to a claimant to perhaps lie repeatedly about a claim or to act fraudulently but, as long as the fundamental claim was not fraudulent, still retain the benefit.

Mr Finnie quite rightly talks about Sheriff Principal Taylor. Sheriff Principal Taylor was explicit that the benefit of QOCS should be lost where a pursuer

“has acted fraudulently in connection with the claim or proceedings, or makes a fraudulent representation”.

He was right. Let us be clear: acting fraudulently or dishonestly is not the same as making a mistake. I think that the minister made that point, too. As the bill is drafted, there is no risk to a pursuer who mistakenly claims for something to which they are not entitled. On the contrary, fraud is a deliberate act that is designed to cheat the system and the defender.

The committee heard that overegging the claim was not considered to be a concern by some witnesses. It seems that some closer to home think that too. However, it very much should be if we are to avoid award inflation and an increase in claims.

For those reasons, amendments 9 and 9A should not be agreed to.

I want to make remarks about Mr Kerr’s contribution in particular. I certainly would not be party to encouraging unmeritorious or fraudulent claims. I know that he is not suggesting that, but language is important, and I find phrases such as “compensation culture” unhelpful in the context of a debate in which we are talking about access to justice. It is irrefutable that there will be a challenge from insurance companies, which are trying to row back against the culture. However, I have far greater confidence in our existing rules of court than perhaps Mr Kerr does, and I think that some of the conduct that he alluded to would be picked up in court and responded to accordingly.

I have taken reassurance from what I heard from the minister. We all want the highest standards of integrity, and we do not want a situation in which an element of misunderstanding or someone being carried away by events results in significant financial consequences for them. In the light of what I have heard from the minister, I seek permission to withdraw amendment 9.

Amendment 9, by agreement, withdrawn.

Amendment 9A therefore falls.

Amendment 10 moved—[Annabelle Ewing].

The question is, that amendment 10 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)

The result of the division is: For 96, Against 19, Abstentions 0.

Amendment 10 agreed to.

Amendments 11 and 12 moved—[Annabelle Ewing]—and agreed to.

After section 8

We turn to group 6. Amendment 36, in the name of John Finnie, is grouped with amendments 37 to 39.

Amendment 36 is about the ever-important issue of finance. Members will perhaps have seen the Scottish Trades Union Congress briefing paper on the issue, which refers to the Scottish Government’s response to the three-yearly review of court fees on 26 February this year, in which the Government stated that paying court fees on behalf of litigants

“is not an unreasonable burden to place on ... trade unions”.

There is a question about whether the bill is the vehicle to address the issue of who should bear the cash-flow burden of running the Scottish court service while cases progress through the court system. Members will know that the successful party in a court action recovers the legal costs from the unsuccessful party. That is all at the conclusion of the case but, at various points throughout the case, fees are required to be paid. There is a view that successful litigants, in effect, lend the Scottish Government money while their claim progresses. Repeat players such as trade unions and staff associations, which support hundreds of personal injury claims each year through the Scottish courts, therefore lend the Scottish Government significant sums of money each year.

16:00  

A freedom of information request revealed that the court fees related to personal injury cases in 2015-16 totalled £3.8 million, which was 14 per cent of all court fees. The court fees paid by claimants totalled £1.9 million, and in trade union-supported cases the figure was roughly £1 million. That is a significant outlay, and people might well ask whether it is reasonable that the Scottish Government receives those moneys from the trade unions when there is an opportunity to take a different tack. The sum of £1 million is not a lot of money to the Scottish Government, but it is a significant sum of money to those who represent front-line and other workers. The proposal to move away from that model would have some implications for the Scottish Government but, within a two-year or three-year period, the costs of transition to deferred payment of court fees would be eradicated, including any cash-flow problems.

The Scottish Government talks about two of the issues that that gives rise to: the fact that it encourages pre-litigation, and the possibility of bad debt. The people who are involved in the process are not people whom one would consider as being likely to be bad debtors and, as has been mentioned on a number of occasions, this is an opportunity to look at that important issue. I encourage members to support amendment 36.

I move amendment 36.

I speak in favour of amendment 37, in my name, and in favour of the similar and not contradictory amendments 36 and 38. I urge colleagues to support all three amendments. I thank the STUC for the briefing paper that it circulated.

This group of amendments focuses on when payments to a court should be made. At present, court fees are paid on a pay-as-you-go basis, which means that the pursuer must pay up front for each individual court action, the fees for which are, for example, £219 for an initial writ in a personal injury court and £55 for the lodging of a motion.

Amendment 37 would change the law so that payments were no longer paid on that basis but were paid at the conclusion of a case. The effect of that would be to shift the burden of debt while the case was on-going from the pursuer and potentially, by extension, their trade union, professional body or other funder to the courts. As John Finnie pointed out, following a freedom of information request, the STUC assessed the impact as being around £1 million. As John Finnie also said, that amounts to, in essence, a short-term loan from trade unions and other bodies to the Scottish Courts and Tribunals Service.

Agreeing to amendment 37 would be a positive step, because the cash-flow implications of personal injury cases for trade unions and other bodies have become an issue. Although much of the money is ultimately returned to the pursuer or their funder at the conclusion of the case, money is tied up in the court system, which could prevent cases from being taken forward and could act as a barrier to justice. There is also an opportunity cost with regard to the things that we expect trade unions to do, such as organising, education and industrial relations.

In effect, the money works out as a £1 million loan from trade unions to the Government. The question boils down to who should bear the burden of running the Scottish Courts and Tribunals Service while cases progress. Should it be trade unions, who could spend that money on supporting their members and pursuing their interests, or should it be the state? I suggest that it should be the latter.

The main intention of amendment 36, in John Finnie’s name, and amendment 37, in Daniel Johnson’s name, is to make court fees payable at the end of a personal injury case rather than, as is the case under the present system, as an action proceeds through the courts. In the case of amendment 36, that would happen only in cases in which financial assistance was provided by a trade union or a similar body. In the case of amendment 37, that would apply in all cases to which qualified one-way costs shifting applied, irrespective of which body, if any, was providing financial assistance.

Similar amendments were debated at stage 2 and were not supported. It is worth reiterating, for the benefit of members who were not present for that debate, the reasons why the pay-as-you-go system is the current system for court fees. Their objectives include the following: encouraging people to resolve their disputes outside the courts, encouraging settlement and ensuring that people value the resources of the court and use those resources wisely.

The issue of early settlement has come up previously. Does the minister agree that personal injury cases are subject to a compulsory pre-action protocol, which is an important aspect in shaping when a case is concluded?

I agree with the member regarding cases up to a value of £25,000, which are subject to a compulsory pre-action protocol. That is the current threshold—cases of above that value are not subject to such a protocol. There is, therefore, the important issue that the member raises of encouraging frivolous claimants to settle and not use public resources unwisely.

The pay-as-you-go model actively supports the courts system. It supports the objectives of reasonable management of the courts and of non-frivolous claims being pursued, and it allows the fees to be paid in small increments as cases progress through each step of the process. The effect is to make parties stop and consider whether they will proceed to the next stage. That important element of the negotiation process is inherent in personal injury proceedings.

Part 1 of the bill will make it much less likely in personal injury proceedings that, in respect of damages-based agreements offered by solicitors, any up-front fees will be paid by pursuers. It is worth pointing out again that, under section 6, the pursuer’s solicitor will be required to meet all outlays for personal injury actions. We should also note that Sheriff Principal Taylor made no recommendations in his report on changing the position regarding fees. The solicitor will pay the outlays and will recover the court fees as part of the expenses recovered from the opponent at the conclusion of the case, assuming that it is successful. Under the provisions on qualified one-way costs shifting for personal injury actions, the pursuer will not be liable for the opponent’s court fees even if they lose their case, assuming that the benefit of QOCS is not lost.

It is important to bear all those points in mind in the context of these amendments. All other expenses, including court fees, will be the responsibility of the solicitor. It is, therefore, not clear to me why a substantial benefit should be provided to those providers when that benefit will come with a substantial cost to the Scottish Courts and Tribunals Service and, ultimately, the taxpayer.

I know that Justice Committee members are aware that there was a recent consultation on court fees. We sought to widen the circumstances in which people would be exempt from court fees. I understand that those regulations went through the committee without any particular note being taken. The exemptions in relation to widening those circumstances include increasing the income threshold below which fees will not be paid, and there will be an extended exemption regime to include recipients of Scottish welfare funds and those seeking civil protective orders, as was suggested by Scottish Women’s Aid.

Billing for court fees at the end of the case will place an immense burden on the Scottish Courts and Tribunal Service, which is ultimately a cost for the taxpayer. The figure referred to in the letter from the STUC, which I hope to meet further to its letter, was a cost of £1 million to the trade unions. It is not entirely clear how that figure was arrived at, but it is suggested that it was somehow a loan to the Scottish Government. It cannot really be characterised as a loan to the Scottish Government; it is an amount of money that pays for the service that the SCTS provides.

There will be a cost that will have to come from somewhere. The £1 million—if that figure is correct—will have to come from somewhere else in the justice budget. Members of the committee will be aware that the SCTS wrote to the committee on 22 February, expressing concerns about any move away from the pay-as-you-go model for court fees and specifically advising against any proposals to introduce a system whereby court fees are paid at the end of the process, given the unintended impact on the SCTS budget. It also recommended secondary legislation for the management of fees to retain the current flexibility and accessibility to a wider audience.

I therefore have problems with amendments 36 and 37. As I said at the outset of my remarks, there is a slight difference in scope between the two; however, the end result is the same.

It is also instructive to recall the Supreme Court’s recent ruling on employment tribunal fees. The Supreme Court took the view that they were exorbitant and presented a barrier to justice but, in striking them down, it also said:

“Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice.”

I think that that explains the position very well, and I ask members not to support amendments 36 and 37 or the consequential amendment 38.

Amendment 39, in my name, simply removes wording that would result in regulations under amendment 37 being subject to the affirmative procedure. That amendment was agreed at stage 2 notwithstanding the fact that it was consequent on a substantive amendment that had fallen at stage 2—I hope that you are still following me, Presiding Officer. I ask members to support amendment 39.

It is at times like this that I am glad I have a script.

There has been quite a lot of background noise at times, so I ask members to please have some care to that.

The Scottish Conservatives will vote against amendments 36 and 37. The minister makes some important points on the pay-as-you-go system, and there is no need to reiterate those. In brief, we see no reason to provide a special category of exemption in relation to amendment 36 and, for both amendments, we do not think that the impact of the change has been fully assessed or understood.

Mr Finnie is right to say that the proposal is about finance, and Mr Johnson is right to say that it shifts the burden on to the courts. However, I am not persuaded that the ramifications—particularly in relation to the public purse—have been sufficiently thought through or that the case has been adequately made. Accordingly, we shall vote against the amendments.

I thank members for their contributions to the debate. I do not know whether Mr Kerr availed himself of the STUC briefing, but it mentions some figures and talks about a transition from the current system. The figures were arrived at through a freedom of information request, so it is an informed position. Mr Kerr does not see that there is a requirement for a particular approach to be adopted in respect of trade unions; of course, we did that at stage 2, when my amendment to exclude them from some of the elements of the bill got support and was agreed to.

The issue is not going to go away—that is the important point. It has significant implications for trade unions and staff associations, and it is not going to go away. It is a simple cash-flow problem in some respects, and, in the scheme of things, I do not think that what we are asking for is unreasonable. There is talk of a three-year transition but, as the minister confirmed, there is provision for early settlement. I also understand that one of the arguments against the proposal that was put forward by the Scottish Government in the past was about inheriting bad debt. However, that is not the nature of the people we are dealing with here, so I would encourage people to support my amendment and, indeed, Daniel Johnson’s amendment. I press amendment 36.

The question is, that amendment 36 be agreed to. Are we agreed?

Members: No.

There will be a one-minute division.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The result of the division is: For 25, Against 90, Abstentions 0.

Amendment 36 disagreed to.

16:15  

Amendment 37 moved—[Daniel Johnson].

The question is, that amendment 37 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The result of the division is: For 25, Against 90, Abstentions 0.

Amendment 37 disagreed to.

Section 10—Third party funding of civil litigation

Amendment 13 moved—[Annabelle Ewing]—and agreed to.

Section 13A—Temporary Auditor of the Court of Session

Amendment 14 moved—[Annabelle Ewing]—and agreed to.

After section 14

We come to group 7. Amendment 15, in the name of the minister, is grouped with amendments 16 and 33.

Part 3 of the bill has been the subject of less discussion in the parliamentary proceedings on the bill, but it contains important legal reforms to refresh and codify the arrangements for auditors of court. The key policy proposal is that there will be a transition from self-employed auditors to the position where all auditors of court are employed by the Scottish Courts and Tribunals Service.

There will be occasions when an employed auditor of court is not in a position to tax an account. This might be because that auditor has a conflict of interest or does not have the capacity to undertake the taxation. In those circumstances, the Scottish Courts and Tribunals Service will allocate the taxation to another auditor in its employ. The proposal is that there will be a pool of employed auditors, just as there is a pool of employed sheriff clerks in the sheriff courts.

There may, however, be rare occasions when the pool cannot deal with a particular account. This might be because, exceptionally, none of the auditors employed by the SCTS has the capacity to take on the taxation. Amendment 15 therefore inserts a new section into the bill that provides for circumstances in which no auditor employed by the SCTS is able to undertake a taxation for whatever reason. I should emphasise that I see this circumstance arising only exceptionally, and there should not be frequent recourse to the provision, given the pool of employed auditors referred to. We will of course continue to monitor the situation, as the new arrangements bed in.

Subsection (1) of the amendment provides that:

“the account must be returned to the court or tribunal”

involved and that the court or tribunal must allocate it to another suitable person for it to be taxed. The suitable person might be, say, a law accountant, solicitor or a retired auditor of court.

Subsection (2)(a) of the amendment provides that the person taxing the account must be treated as though they were an auditor of court. Thus, the person would have to comply with the statutory guidance under section 15, as if they were an employed auditor.

Subsection (2)(b) of the amendment provides that the remuneration and expenses of a person appointed to act as auditor are to be determined by the SCTS.

Amendment 16 is consequential on amendment 15. Section 16 requires the SCTS to publish an annual report on taxations. This amendment provides that the report must include details of any accounts taxed by a person who is not an auditor of court. This is restricted to information in relation to the account remitted under the new section, to avoid catching any other work carried out by that person.

Amendment 33 relates to section 3 of the Courts of Law Fees (Scotland) Act 1895, which provides for certain accounts of expenses to be remitted to the Auditor of the Court of Session. The accounts concerned are those found due in the High Court of Justiciary, or in any inferior court whose judgment has been brought under the review of the High Court, unless the amount of the expenses is determined or modified (that is, reduced) by the High Court.

The Auditor of the Court of Session has to examine and tax these accounts of expenses in the same way, and subject to the same rules, as accounts of expenses in civil actions in the Court of Session.

There are, in fact, only limited cases in which taxation of accounts can arise as regards criminal proceedings; for example, as regards failed bail appeals by the prosecutor. Those cases are quite exceptional and are provided for in the Criminal Procedure (Scotland) Act 1995. The usual practice is for the criminal court to fix or modify the amount of any award of expenses itself, but it is still competent for the matter to be remitted to taxation. The 1995 act does not state who is to carry out the taxation, so the 1895 act applies. Section 3 of the 1895 act therefore continues to have relevance to the exceptional cases where a taxation of accounts arises out of criminal proceedings in the High Court.

Amendment 33 modifies and modernises section 3 of the 1895 act to make it relevant to the new auditing regime. It replaces the reference to “regulations” with a reference to “rules of court”, since the regulations meant were acts of sederunt under section 32 of the Court of Session Act 1821, which is to be repealed by paragraph 1 of the bill’s schedule. The amendment preserves the requirement that the Auditor of the Court of Session should tax accounts arising in the High Court in the same way as accounts of expenses in relevant civil proceedings in the Court of Session. It extends that requirement to accounts of expenses in criminal proceedings in the Sheriff Appeal Court, which will be taxed by the auditor of that court under the rules applicable to civil proceedings in that court. The same rules of court and common law principles will apply as in civil taxations in the Sheriff Appeal Court, as will the statutory guidance to auditors of court now required by section 15 of the bill. The Lord President’s Private Office and the Scottish Courts and Tribunals Service have approved the amendments in group 7, which emphasises that, although technical, they are important refinements to the new statutory regime for auditors of court.

I move amendment 15.

As no one else has requested to speak, does the minister wish to wind up?

I think that I have probably comprehensively set out the position.

Amendment 15 agreed to.

Section 16—Reports

Amendment 16 moved—[Annabelle Ewing]—and agreed to.

Section 17—Group proceedings

We move to group 8. Amendment 17, in the name of the minister, is grouped with amendments 18 to 23 and 40. I call the minister to speak to and move amendment 17, and to speak to the other amendments in the group.

At stage 2, the Justice Committee voted by majority to support amendments to section 17 that were lodged by Liam McArthur, which had the bill specify that group proceedings should be either opt-in or opt-out proceedings. The intention was that the type of proceedings that would be used in each particular case would be specified by the court.

As I have previously said, the Scottish Government has no financial or political objections to opt-out proceedings. Rather, we wish to flag up concerns arising from the obligation implied by Liam McArthur’s amendments at stage 2, on the Scottish Civil Justice Council to draft and consult on rules for opt-in and opt-out procedures simultaneously, which risks delaying the introduction of group proceedings in Scotland, per se.

Lord Gill’s Scottish civil courts review drew attention to the fact that opt-out procedure might be appropriate in a consumer case in which a large number of consumers are affected, but it also noted that where the potential class membership might be small and easily identifiable, opt-in procedure is likely to be much more appropriate, in order that only those who make a positive choice to opt-in are bound by the outcome.

During stage 1, the Justice Committee heard, from a number of those who submitted evidence, about the possible benefits of opt-in procedure for community groups. We would not wish small groups to be denied the advantages of opt-in group proceedings while opt-out rules are drawn up that might be more appropriate for larger-scale consumer actions.

Our concerns are shared by the Lord President, who wrote to the Justice Committee prior to stage 2 to ensure that members were aware of the complexities of the opt-out procedure. He noted that the practical and legal challenges that could be presented by an opt-out model are significantly greater than those that could be presented by an opt-in model.

My amendments in group 8 would permit the Scottish Civil Justice Council to develop separately the rules for the opt-in and opt-out procedures, while not preventing it from developing those rules concurrently. In other words, the Scottish Civil Justice Council will decide how best to timetable drafting of the rules. Indeed, it would be open to the SCJC, as the independent rule-making body, to decide to proceed with opt-out rules first. However, the key issue is that it is the Scottish Civil Justice Council that will determine its own programme of work. It is clear, therefore, that there will be a duty on it to provide rules for both procedures.

The Scottish civil courts review noted that it would be necessary to amend the legislation relating to prescription and limitation in order to take account of a group litigation procedure that permits opt-out. It also pointed out that it would be necessary to confer powers on the court to make an aggregate, or global, award of damages, and for the disposal of any undistributed residue of an aggregate award.

Opt-out would also give rise to new issues of general principle in that, for the first time in Scots law, individuals could become party to litigation without their consent, and possibly without their knowledge.

In the face of all those issues, if the Scottish Civil Justice Council is obliged to produce rules on opt-out at the same time as it produces rules on opt-in, because of the extra complexities that are involved with opt-out, that will risk delaying the introduction of any kind of group proceedings.

The SCJC is an independent body that is headed by the Lord President of the Court of Session. Although the Scottish Government cannot dictate its work programme or the timing of production of its rules, it has already made the public commitment that implementation of the bill will be one of its priorities for 2018-19.

We expect that the SCJC will set up a working group to consider rules on group procedure, as it did on fatal accident inquiries, and that representatives of consumer bodies will be represented on that body.

It is worth noting that the Scottish Law Commission has previously produced a draft act of sederunt on opt-in proceedings, so it is to be hoped that the SCJC will be able to produce rules on opt-in relatively quickly, thereby enabling it to move on without delay to the more complex issue of opt-out proceedings.

I have spoken to Liam McArthur about the need for expeditious progress to be made on group procedure, and I can give him the assurance that the Scottish Government will use all levers of influence to support the most expeditious introduction of group procedure.

I turn to the detail of the amendments. Proposed replacement section 17(7A), which amendment 21 seeks to introduce, will allow the Court of Session to make rules that provide for group proceedings to be brought as opt-in proceedings, opt-out proceedings or either. The intention is to give the court the flexibility to provide for all proceedings to be opt-in proceedings, or for there to be a choice, but also for the court to be able to make different provision for different purposes.

Proposed replacement section 17(7B) seeks to define “opt-in proceedings” and “opt-out proceedings”. Opt-out proceedings are defined as group proceedings in which all persons within the group description who are domiciled in Scotland are automatically opted in and therefore must opt out to leave the group. However, persons who are domiciled outside Scotland must opt in. That is because one of the difficulties that the Lord President identified in relation to opt-out is the potential extraterritorial effect of orders that are granted in opt-out proceedings, particularly when a deemed member of a group would otherwise have had the option of raising proceedings in a different legal jurisdiction.

The Government’s amendments seek to address that concern. In doing so, they draw on the UK Competition Appeal Tribunal provisions in the Competition Act 1998. The consumer organisation Which? has been highly supportive of the group proceedings provisions and has helpfully noted that that is a relevant precedent.

Proposed new section 17(7B) is a replacement for sections 17(3), 17(3A), and 17(3B) in the bill as amended at stage 2, which will be removed by consequential amendment 17, but care has been taken in the drafting of the replacement provisions to carry across the relevant wording that was introduced by Liam McArthur at stage 2.

Proposed new subsection 17(7B)(b) provides for the court to specify a description of the claims that are eligible to be brought in opt-out proceedings, and because that is not relevant to opt-in proceedings, amendment 18 seeks to remove section 17(6A). That does not alter the effect of that subsection, other than to restrict its application to opt-out proceedings.

Section 17(7)(aa), which was inserted at stage 2, places a duty on members of the group as a whole to identify and notify all potential group members. We consider it inappropriate that that duty would be placed on all members of the group, with the possible cost and delay that would be involved, so amendment 19 will place the duty to identify group members on the representative party only. In practice, the Government expects that the law firm supporting the representative party would carry out the necessary administrative work.

Amendment 20 will simply add some words of clarification to the end of section 17(7)(aa). Amendment 22 will add to the illustrative list in section 18(2) of things that the Court of Session may include in group procedure rules. The additions are rules about how a person may give consent for their claim to be brought in opt-in group proceedings, and how a person may give notice that they do not consent to their claim being brought in opt-out group proceedings. In other words, they deal with how people are to opt in or opt out, as appropriate.

16:30  

Amendment 23, which will insert a new section after section 18, enables Scottish ministers to make further provision about group proceedings in regulations. Among other things, it will permit Scottish ministers to make necessary amendments to the substantive law, as envisaged by the Scottish civil courts review, which will facilitate the introduction of opt-out group proceedings.

Amendment 23 also gives examples of how that power might be used. For example, it will allow for the provision of aggregate or global damages, including potentially the involvement of an assessor or actuary, and the distribution of any surplus damages. That would largely be done through modification of common-law rules, whereas in the case of prescription and limitation, primary legislation would require to be modified.

Picking up on an earlier conversation, I point out that I have been mindful of the fact that the Delegated Powers and Law Reform Committee discourages the introduction of new delegated powers at stage 3. In that regard, the Minister for Parliamentary Business wrote to the committee on 16 April, making it aware of the need for the new power, which has arisen specifically as a result of amendments that the Justice Committee agreed to at stage 2.

Amendment 40 will make the new power in amendment 18 subject to affirmative procedure, thereby ensuring that there will, appropriately, be full debate on and scrutiny of regulations that are proposed by the Scottish Government.

Presiding Officer, having dealt with all the key amendments in the group, I move amendment 24.

It is amendment 17.

I am ahead of myself. I am sure that many members wish that we were at that point, but we have not reached it yet.

I move amendment 17.

I opt in to the debate at this point by mentioning my entry in the register of members’ interests as a practising advocate. [Interruption.]

Excuse me, Mr Lindhurst. There is an awful lot of chatter going on. Can we have some quiet, please? Please listen very carefully—he will say this only once. [Laughter.]

As we say in court, Presiding Officer, I am much obliged for that plaudit for the comments that I am about to make, which will be very brief.

Members: Hooray. [Laughter.]

The Scottish Conservatives will vote for all the amendments in the group with the exception of amendment 23. Section 18(1) already provides that the Court of Session

“may make provision by act of sederunt about group procedure”,

and that would seem sufficient.

I would hesitate to use the words “power grab” in speaking of the Scottish ministers in this context, or indeed in a debate such as this. However, Conservative members are not persuaded that the powers that amendment 23 will give to Scottish ministers are appropriate to be dealt with in this way. The amendment will give Scottish ministers the power to make regulations that define substantive matters that are more appropriate for primary legislation. Examples include the domicile of a person in Scotland and the prescriptive and limitation periods in relation to claims. For those reasons, we will vote against amendment 23.

I somehow feel a bit responsible for this group of amendments. The minister’s speech started to sound a bit like the hokey cokey.

I am sure that the Parliament is desperate for me to elucidate the justification behind the opt-out approach, and it is probably worth while for me to do so. I will be as brief as I can be. I thank the minister for the constructive way in which she has engaged with me in addressing the legitimate concerns on the back of the committee’s decision at stage 2 to back an opt-out approach. The amendments in the group address those concerns while also respecting the committee’s decision.

As I said at stage 2, enabling group proceedings under Scots law is a big step forward in expanding consumer protection. However, to limit ourselves to an opt-in model would have represented a missed opportunity. As Which? pointed out to the committee, breaches of consumer law often have a relatively small impact on a large number of people, so the cumulative impact is high but the incentive for any one individual to participate in court proceedings is low. To properly widen access to justice in that area, therefore, the availability of an opt-out procedure is essential. It should and will be left to the discretion of the court, taking into consideration the nature and circumstances of the case.

I fully accept that there will be instances when it will be problematic and inappropriate for an opt-out to proceed. That is why it should only ever be an option. However, as experience south of the border shows, although an opt-in model was introduced in the Competition Act 1998, it was not until the opt-out became available under the Consumer Rights Act 2015 that real advances were made. It is clear that we cannot afford to wait a further 17 years for that to happen in Scotland. I am confident that having a reference in the bill to opt-out proceedings will ensure that that does not happen, and I look forward to significant progress being made ahead of the review in five years’ time.

I thank the minister again for her constructive approach. I also thank my committee colleagues who supported the amendment at stage 2, and particularly the team at Which? for their perseverance on the issue and on behalf of consumer rights.

I would like to make a brief comment on the point that Mr Lindhurst raised. Although the position for opt-in proceedings is such that those cases can proceed fairly straightforwardly, it is not quite the same for opt-out proceedings, because there are a number of issues that must be sorted out—for example, provisions on aggregate and global damages, and what we do with the residue, to name but two. The mechanism that is proposed in amendment 23 is to do that by affirmative regulation, so that the Parliament is duly involved. The Minister for Parliamentary Business raised the issue directly with the Delegated Powers and Law Reform Committee and, as far as I am aware, including the meeting of that committee this week, no issue was raised about what we were proposing to do.

Finally, it may interest the member to note that a broadly similar approach has been proposed by the UK Government in its Data Protection Bill, under the terms of which the Secretary of State may make provision for opt-out collective proceedings for England and Wales by regulations.

Amendment 17 agreed to.

Amendments 18 to 21 moved—[Annabelle Ewing]—and agreed to.

Section 18—Group procedure: rules

Amendment 22 moved—[Annabelle Ewing]—and agreed to.

After section 18

Amendment 23 moved—[Annabelle Ewing].

The question is, that amendment 23 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (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)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)

The result of the division is: For 85, Against 28, Abstentions 0.

Amendment 23 agreed to.

Section 18A—Review of operation of Act

We move to group 9. Amendment 24, in the name of the minister, is grouped with amendments 25 to 31.

Section 18A was inserted into the bill at stage 2 as a result of an amendment lodged by Margaret Mitchell. It requires the whole act to be reviewed as soon as practicable following a period of five years that starts on the day of royal assent. Amendments 24 to 31 form a group of amendments that make only one substantive change to section 18A. Although there are eight amendments in this group, I emphasise that there is no intention to interfere with the main thrust of Margaret Mitchell’s stage 2 amendment.

However, the Scottish Government does not believe that there is any point in triggering the five-year period for post-legislative scrutiny of part 4 of the bill on group proceedings until rules are in place allowing group proceedings to take place and have had a chance to bed in over the proposed five-year period. Different arrangements are required because the detail of the procedures for group proceedings will be provided in rules of court to be introduced by the Scottish Civil Justice Council, which will draft and consult on them. Group proceedings cannot take place until such rules are in force. It will take some time for the council to develop group procedure rules.

In the previous group, the chamber agreed that it will be for the council to decide whether opt-in and opt-out proceedings are introduced at the same time or if one type is to come first. In any event, the principle remains that some time will be needed for there to be due deliberation and consultation on the detailed rules. That, in turn, means that, if the five-year period is to run from royal assent, the review report that is envisaged may be able to consider only a relatively short period of group procedure operation.

I am not convinced that that is what members intended. Rather, I believe that they seek meaningful post-legislative scrutiny on group proceedings. Therefore, the Government considers that, as far as post-legislative scrutiny is concerned, part 4 needs to be dealt with separately from parts 1 to 3, so amendment 24 separates the requirement to review and report on the operation of the act into two separate reviews and reports.

Amendments 25 and 26 apply section 18A(2) to the review of parts 1 to 3 and adjust it so that the report on that review does not need to consider section 17 on group procedure. Amendments 28 and 29 are minor consequential amendments.

Amendment 27 replicates subsection (2), but only for the review of part 4, which includes section 17 on group proceedings. Amendment 30 starts the review period for parts 1 to 3 running from the day of royal assent. Amendment 31 starts the review period for part 4 running from the day on which the first rules of court about group procedure come into force.

I move amendment 24.

I reassure members that my contribution will be measured in seconds rather than minutes. [Interruption.] The more they heckle, the longer I will take.

I welcome the proposal for a five-year review. It is a welcome innovation. We will support the amendments in the minister’s name. However I make a small plea that some of the proposals that fell at stages 2 and 3—namely, the inclusion of environmental cases in group actions and the pay-as-you-go fees that were discussed—be included in the review if that is possible.

I welcome Daniel Johnson’s support for what is really a pragmatic reflection of what happened at stage 2. It will be for the people who conduct the post-legislative scrutiny to set its parameters. I imagine that they will wish to pick up on a number of issues that have been discussed in the passage of the bill.

Amendment 24 agreed to.

Amendments 25 to 31 moved—[Annabelle Ewing]—and agreed to.

Section 19—Regulations

Amendment 38 not moved.

Amendment 39 moved—[Annabelle Ewing].

16:45  

The question is, that amendment 39 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Crawford, Bruce (Stirling) (SNP)
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Finnie, John (Highlands and Islands) (Green)
Greer, Ross (West Scotland) (Green)
Harvie, Patrick (Glasgow) (Green)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Wightman, Andy (Lothian) (Green)

The result of the division is: For 108, Against 5, Abstentions 0.

Amendment 39 agreed to.

Amendment 40 moved—[Annabelle Ewing]—and agreed to.

Schedule

Amendment 33 moved—[Annabelle Ewing]—and agreed to.

That ends consideration of amendments. As members will be aware, at this point in the proceedings, the Presiding Officer is required under standing orders to decide whether, in his view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. The Presiding Officer has decided that, in his view, no provision of this bill relates to a protected subject matter. Therefore, the bill does not require a super-majority to be passed at stage 3.

As agreed by Parliament yesterday, the stage 3 debate on the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill will take place on Tuesday 1 May.