 Abertau i siŵr Cymru, 7 me tierion 2018. There are no apologies. Agenda item one is consideration of an affirmative instrument, which is the Courts Reform Scotland Act 2014, consequential and supplemental provisions, Order 2018 draft. I welcome Annabel Ewing, Minister for Community Safety and Legal Affairs and her officials. Paulis Stevenson, tribunals policy branch, Jerry McLaughlin, courts judicial appointment branch, and Samantha Roar, director of legal services with the Scottish government. I refer members to paper 1, which is a note by the clerk and minister. Do you wish to make a short opening statement? Yes, thank you, convener. Good morning. The Courts Reform Scotland Act 2014 consequential on supplemental provisions order 2018 makes consequential and supplemental amendments to primary legislation, and I understand in fact that the DPLRC considered this order in 6 February and that no points were raised. The order covers two principal areas. First, further to section 130 of the Courts Reform Scotland Act 2014, the mechanism for the Scottish Tribunal Service to join the Scottish Courts Service was provided for. That then became the Scottish Courts and Tribunal Service. As a result of that transfer, amendments are necessary to make any effect the payroll function, that is the payment of remuneration, fees and expenses, the responsibility of the Scottish Courts and Tribunal Service rather than Scottish ministers. That order facilitates that by making amendments to various acts to allow the Scottish Courts and Tribunal Service to make payments to members of the Mental Health Tribunal for Scotland, to justices of the peace and to members of the Scottish Tribunals. The second area covered by the order makes provision for the remuneration of temporary sheriff's principle by adding them to the list of judicial officers, which Scottish ministers may determine the amount of remuneration for. That is to take account of the possibility that a qualifying former sheriff's principle might be appointed on a part-time temporary basis as a sheriff's principle and, of course, would need to be paid a daily fee. Although that eventuality has not yet happened to date, it is considered appropriate to rectify the anomaly whereby there is lack of any provision set forth allowing the payment of such a qualifying former sheriff's principle. To rectify that anomaly and include the possibility of making a payment in such circumstances, it has been seen appropriate to include the judicial office within the relevant list of judicial officers as set forth. Do members have any questions or comments from the minister? No, that being the case. Agenda item number two is formal consideration of the motion in relation to the affirmative instrument. The Delegated Powers and Law Reform Committee have considered and reported on the instrument and have no comments on it. The motion will be moved with an opportunity for formal debate if that is necessary. The motion is motion 10335 that the Justice Committee recommends that the Courts Reform Scotland Act 2014 consequential and supplemental provisions order 2018 draft be approved. Do members have any comments or questions? That being the case, the question is that motion 10335, in the name of Annabelle Ewing, be approved. Are we all agreed? We are all agreed. That concludes consideration of the instrument. The committee's report will note and confirm the outcome of the debate. Are members content to delegate authority to me as convener to clear the final draft report? Thank you. Agenda item number three is consideration of an affirmative instrument which is proceeds of crime. Oh yes, apologies, I need to spend for a change of witnesses way ahead of myself this morning. The number three is consideration of an affirmative instrument which is proceeds of crime act 2002, searches under part five, Constables and Scotland Code of practice order 2018 draft. I again welcome Annabelle Ewing minister for community safety and legal affairs, and her officials, Alastair Creeror, Organised Crime Unit, Alan Nicholson, proceeds of crime act policy advisor, and Carla McCloy Stevens, director of legal services with the Scottish Government. I refer members to paper two, which is a note by the clerk and minister, do you wish to make an opening statement? Yes, thank you, convener. The draft proceeds of crime act 2002 searches under part five, Constables and Scotland Code of practice order 2018, is consequential on sections 14 and 15 of the criminal finances act 2017. These provisions expand the civil forfeiture regime under part five of the process of crime act 2002. The Scottish Parliament consented to those provisions being made for Scotland on 2 March and 25 April 2017. As they extend Constables search powers under part five of the process of crime act, the Scottish ministers require to make new codes of practice in relation to the exercise of those powers in Scotland. The order therefore proposes to bring into operation a combined code of practice for the exercise by Constables in Scotland of the search powers conferred by sections 289 and section 303C of the process of crime act. Section 289 of the process of crime act allows Constables to search individuals, premises and vehicles for cash that is obtained through unlawful conduct or which is intended for use in unlawful conduct and which amounts to £1,000 or more. The combined code of practice revises and replaces the existing code of practice for cash searches. As section 14 of the 2017 act, I referred to a moment ago, widens the definition of cash to include, at the request of the Scottish Government, gaming vouchers, fixed value casino tokens and betting receipts. The order therefore revokes the order that brought that code into operation. Section 303C of the process of crime act is a new provision added by section 15 of the 2017 act. It confers equivalent search powers on Constables in respect of certain listed assets that are obtained through unlawful conduct or are intended for use in unlawful conduct. Listed assets are precious metals, precious stones, watches, artistic works, face value vouchers and postage stamps. As with cash searches, a minimum value threshold of £1,000 applies. The search powers under sections 289 and 303C of the process of crime act are subject to certain conditions and limits and their exercise generally requires a sheriff's prior approval. As they are essentially the same, it was considered simpler and more effective to issue a combined code of practice to ensure that searches for cash and for listed assets are carried out appropriately and fairly and with integrity and respect. The combined code is largely modelled on the code of practice on the exercise by Constables of powers of stop and search of the person in Scotland, which came into effect on 11 May 2017. The process of crime act-specific aspects of the combined code also align with the equivalent codes issued by the UK Government under part 5 of that act. That is to ensure greater consistency of practice and, in turn, to secure public confidence in the use of search powers under the process of crime act. I am happy to answer any questions. Do members have any questions or comments for the minister? Minister, I do not know if you are aware that the committee has received a submission from the Law Society of Scotland raising two points on accessibility, monitoring and review. In terms of accessibility, I think that the code needs to be available and accessible in all formats and languages to ensure the principle of diversity and equality. At the same point, paragraph 37, the paragraph does not clearly recognise that there is a need to respect and ensure the interests of certain specified categories of persons who may be subject to access a search. What might be better, they are saying, is to state the principles of interest of justice test rather than appear to be rather restrictive. In other words, I think that any category should be illustrative and a more wide definition in it. I am happy to give the minister the submission that you might look at later to address. There is an overriding interest of justice test that is not the wider than just those specified, but I think that they are aware that they are intended just to be illustrative. If I could give the second point, which is a lot easier to understand, that the law society considers that the code should be subject to a review of how it is working? I thank you, convener. Obviously, if the law society had seen fit to have the courtesy to submit their submission to the Government, we would have been in a better position to respond obviously to those questions. This morning, perhaps I could ask Mr Crerar to say a few words. Proceeded with the consultation and we did indeed pick up on certain points that were raised in the consultation. Sorry, I thought that there was a new submission that you had just received this morning. I did not realise that it was the submission that they had made to the consultation that we have picked up on. Perhaps Mr Crerar can further advise. I think that it sounds certainly very similar, convener, to the submission that we received from the Law Society of Scotland. We would be keen to have another look and check if there are any additional points. Officials certainly considered the points that were made by the Law Society of Scotland very carefully, including the interests of justice points, but we felt that the draft code set out the key parameters and values that Constable should be considering. We did not accept that point. In terms of accessibility, as you said, the Law Society had suggested that the code should be translated into different languages and different formats. We had some sympathy for that point, but we were conscious that the code is above all a code for constables. What we have tried to do working with Police Scotland and other key stakeholders, including a quality group, is to make it as clear as possible and available online and in police stations and ports as possible so that, if people have been searched, they can consult the code and they can share it with advocates or legal advisers and get advice on that. We have achieved the right balance on that. We noted the point, but we felt that the Law Society was suggesting a step too far, perhaps. In terms of the Law Society's point about reviewing the code, we have accepted that point and we have been in touch with Police Scotland about that to suggest that a review of the use of the code and the working of the code further down the line would be valuable. I think that that would strike the right balance then, and you could see if there were any adjustments. Thank you for that. Are there any other questions, Liam Kerr? It's just on that point, convener, because thank you for that clarification. That clarification entirely predicates upon the Law Society submission being the one that you have already seen. The substantive question that I was going to ask was, have you seen that Law Society representation? I noted in your comments that, following the few representations that had been made, you have modified the draft where appropriate. The question that I was to ask was, have you modified your draft pursuant to the Law Society's representations and the answer seems to be possibly if those are the same representations? They are definitely. Yes, clerks have just confirmed that, so we're all happy. Any other questions, no comments? Fine. Agenda item 4 is consideration of the motion in relation to the affirmative instrument. The Delegated Powers and Law Reform Committee has considered and reported on the instrument has no comments on it. The motion will be moved with an opportunity for formal debate, if necessary. The motion is 10337, that the Justice Committee recommends that the Proceeds of Crime Act 2002 searches under part 5 constables in Scotland code of practice order 2018 draft be approved. Minister, to move the motion. Do members have any comments or questions? I know that being the case. The question is that motion 10337 in the name of Annabelle Ewing be approved. Are we all agreed? We are all agreed. That concludes consideration of the instrument. The committee's report will note and confirm the outcome of the debate. Are members content to delegate authority to me as convener to clear the draft report? Agree. Thank you. Suspend briefly to allow change of witnesses. Agenda item 5 is consideration of the offensive behaviour at football and the threatening communications repeals Scotland Bill at stage 2. I would ask members to refer to their copy of the bill and the marshaled list of amendments and groupings for this item. Once more, I welcome Annabelle Ewing back to the committee, minister for community safety and legal affairs, and her officials. I welcome James Kerley, the member in charge of the bill to the committee and his supporters. I think that we just moved straight now to the marshaled list, and the question is the very first question. Is section 1 be agreed? Are we all agreed? Agreed. Thank you. Section 2, effect of repeal on offences occurring before repeal. Amendment 1, in the name of the minister, grouped with amendment 2, 3, 5, 6, 7 and 8. Minister to move and speak to all amendments in the group. Amendment 1 to 3 and 5 to 8 adjust sections 2 and 3 to deal with human rights issues in the current drafting of the bill. The amendments in group 1 are intended to ensure that persons cannot be convicted or punished for an offence under the 2012 act after it has been repealed. That is to ensure that the bill respects the principle of Lex Miteor, which is guaranteed by article 7 of the European Convention on Human Rights. Lex Miteor is the principle that a person should benefit from the application of the more lenient law where the law has changed before a final judgment has been reached in criminal proceedings. Ministers are of the view that the principle applies in the context of the repeal of the offences in the 2012 act. Section 2, subsection 3 of the bill, as it stands, provides that, after repeal of the 2012 act, a person can still be convicted of an offence under the act where there is an appeal against acquittal. Section 3, subsection 2 of the bill, as it stands, provides that the 2012 act continues to have effect after repeal for the purposes of imposing a penalty on a person and for the purposes of an appeal or a petition to the nobility of Fickeum. The fact that a person can still be convicted and punished under the 2012 act after its repeal goes against the principle of Lex Miteor and therefore raises human rights issues. Amendments 1 to 3 and 5 to 8 deal with the human rights issues by removing sections 2, subsection 3 and subsection 4 and section 3, subsection 2 and subsection 3 of the bill. Amendment 1 amends the bill to remove the reference to section 2, subsection 3 and section 2, subsection 1. Amendments 2 and 3 make amendments to section 2 of the bill so that it states that, despite section 17 of the Interpretation and Legislative Reform at Scotland Act 2010, on or after the repeal date A, no person can be convicted or found to have committed a relevant offence and B, no penalty may be imposed on a person in respect of a relevant offence of which that person was convicted prior to the relevant date. Section 17 of the Interpretation and Legislative Reform at Scotland Act 2010 would otherwise allow a conviction and penalty to be imposed after the repeal, so those amendments ousted that. Amendment 5 amends the bill so as to remove section 2, subsection 3 and subsection 4, meaning that a person cannot be convicted of or found to have committed a relevant offence on a appeal against a acquittal. Amendment 6 amends section 3, subsection 1 of the bill so as to clarify that a person who has had a penalty imposed on them prior to the date of repeal for a relevant offence is still liable to that penalty. Amendment 7 amends section 3, subsection 1 of the bill so as to remove reference to section 2, subsection 3. Amendment 8 removes sections 3, subsection 2 and subsection 3 of the bill, the result being that the 2012 act will not have effect after its repeal for the purposes of imposing a penalty on a person in respect of a relevant offence of which that person was convicted prior to appeal, nor for the purposes of an appeal, nor for the purposes of a petition to the noblia ffigurem. In light of those amendments, there is no longer any need for section 3, subsection 3. I move amendment 1. On the basis that I may come to be critical of the Government's approach in relation to later amendments, it is probably appropriate to acknowledge and welcome the approach that is taken in relation to those amendments. I think that ministers set out very clearly why they are necessary. We are all conscious of the need to retain compliance with ECHR, so I think that amendments 1 and 2 in this group are to be welcomed. James Kelly? Thank you, convener. Briefly, I want to indicate that I am supportive of all the amendments in this group. As the minister has outlined, they seek to address any potential human rights issue and they do so by taking the relevant sections out of the bill. I think that those are helpful amendments and I want to thank the minister for bringing them forward today and indicating full support for them. The question, minister, to wind up. Yes, thank you, convener. I welcome the support that has been expressed so far. The overarching consideration here is to ensure that the repeal bill is compliant with the European Convention on Human Rights and the various amendments that we have made seek to ensure that very thing. The question is there for the amendment 1, be agreed to. Are we all agreed? We are all agreed. Call amendment 2 in the name of the minister already debated with amendment 1, minister, to move formally. The question is that amendment 3, be agreed to. Are we all agreed? We are all agreed. Call amendment 3 in the name of the minister already debated with amendment 1, minister, to move formally. The question is that amendment 3, be agreed to. Are we all agreed? We are all agreed. Group 2, on-going proceedings, conviction for alternative statutory offence. Call amendment 4 in the name of the minister and a group on its own. Minister, to move and speak to amendment 4. Thank you, convener. Amendment 4 inserts new subsections 2A to 2B into section 2 of the bill. This amendment expressly provides that, in proceedings for an offence under the 2012 act that has not been determined by the date of repeal, the court has the power to convict the accused of a different statutory offence where the facts proved in the proceedings amount to that different offence. That means that a person charged under the 2012 act can still be convicted of a serious offence after repeal where the facts proved in trial amount to that offence. Under the current law, prosecutors can amend the libel so as to substitute an alternative common law or statutory charge for a charge under the 2012 act. The court can also convict a person of a common law offence where the facts established amount to that common law offence. However, the court does not have the power to convict a person of an alternative statutory offence unless the charge made against them has been amended to libel that statutory offence. The amendment gives the court a narrow power that it currently does not have to convict a person of an alternative statutory offence on top of the existing power that it has to convict of an alternative common law offence. I move amendment 4. I would imagine ministers that this would be a finite number of cases affected by this. There will be so many in the pipeline not connected and at some point of time then these will cease to be. It seems the sensible approach. I would also like to ask whether the amendments fail to go through whether there will be anything preventing the authorities to bring forward revised charges. I take it that there will be nothing that will prevent that. No. The principle issue here in terms of the actual substance of the amendment is to reflect circumstances in which it may not be possible to amend the libel, because if you could have the time to amend the libel, you could deal with the issue. It is circumstances in which that would no longer be possible for various technical reasons and it is to give the option to the court in the, as the convener has said, the narrow circumstances that will prove to be the case. I assume that the bill passes at stage 3, possibly next month and might be slightly later. There will also be a gap between then and royal ascent. Assuming that there is a fairly limited number of cases, given the time that is available, what would impede the libel being amended in this interim period to ensure that any cases that need to be adjusted can be adjusted? As I said, it seems to me that the number of cases is likely to be relatively small that fall within this and that it would not be captured by the court being able to proceed under common law provisions. Can I maybe ask officials to deal with that very technical point on circumstances where taking into account— I am afraid that at this stage you can't have an astrasome device. That is why the official was looking at me. I would imagine that indeed the member is correct to say that there will be a limited number of cases. I think that it is to ensure that there is an option available in circumstances where, for whatever reason, it has not been possible to amend the libel. There could be a number of reasons for that, and it is to ensure, ultimately, that the people who have committed a serious offence do not escape punishment. I am sure that we would all wish to support that. Minister, I should say that you can confer with your officials if that would be helpful, but we can't ask them directly. I see. He's agreeing with me. Liam Kerr, can I just come back on that now that I know that you can confer with officials? That's also helpful. Again, as I said, the timeframe between now and Royal Ascent and the implementation of this repeal act is repeal bill is a number of months. Obviously, the direction of travel of Parliament has at least been signalled. I'm just wondering to what extent this is addressing a problem that doesn't exist. I know that a precautionary principle should generally be adopted in such circumstances. I'm just wondering whether we're dealing with a problem that has already been addressed by people who have anticipated such an issue arising and therefore have taken steps to avoid it. Well, I think that the fact that there is already this power in the part of the court to substitute in terms of common law offences suggests that there will always be circumstances that the exercise of this power as far as common law offences is required to be an option for the courts. Therefore, in the same vein and using the same logic, there could well be circumstances where it is necessary to seek to substitute a statutory offence. I think that I take into account the points that the member has made. Nonetheless, surely we want to ensure that if people have committed a series of offences that they are brought to justice and do not escape punishment, this allows the court to have a belt and braces approach to that. If we didn't have this amendment, there would potentially be the inability of the court in specific circumstances in a time-limited period to do the necessary. It is a belt and braces approach to ensure that the court has the options open to it that it needs. After a certain period of time, this will not be an issue in terms of offences under the 2012 act, assuming that the Parliament votes to repeal. I am not convinced of the arguments in favour of amendment 4. I think that the minister is seeking to enshrine a power that, as the discussion has transpired, does not actually require. I also think that we need to be careful in terms of ensuring a consistent approach in this act. In the previous set of amendments, we tidied up the appeal provisions because of a potential inconsistency between what could be dealt with after appeal and what could be dealt with currently. That seems to be going back where the minister is seeking a power to amend charges after the repeal bill has been passed. I would also point out that prosecutors should continue to adopt a pragmatic approach in relation to potential prosecutions under the Offensive Behaviour Football and Threatening Communications Act 2016. The Parliament did signals far back in November 2016 that it was supportive of full repeal, so prosecutors should have been aware of that and should have been adopted in a pragmatic approach. I would oppose the adoption of the amendment. Is it to respond to Mr Kelly specifically or to wind up? To wind up. To wind up. Okay, thank you. I have listened to the comments that were raised. First of all, I will just deal quickly with Mr Kelly's latter points. Of course, the act still remains on the statute book and the Parliament is still to vote to repeal or not, so I think that we have to deal with the laws as we have them. The act is on the statute book. Also, I would say that the Government has no jurisdiction over the Crown in terms of charges brought. That is a matter for the independent Crown Office and Procurator Fiscal Services, as I am sure the member is aware. As I had previously stated, I believe that it is essential to ensure that those who have committed a crime do not escape punishment because the 2012 act is repealed. We need to ensure that the courts have adequate powers to achieve that and that in proceedings for an offence under the 2012 act, that have not been determined by the date of repeal, the court has the power to convict the accused of a different statutory offence where appropriate in the way that it currently would in terms of substituting a common law offence. I believe, convener, that it is simply about ensuring that justice can continue to be served if the 2012 act is indeed repealed. Thank you. The question is that amendment 4 be agreed. Are we all agreed? We are not agreed. There will be a division. Those in favour, please show. Those against. Are there any abstentions? No, that sounds the voting is. Yes. Eight in favour, three against. Amendment 4 is therefore agreed. Call of amendment 5, in the name of the minister, already debated with amendment 1. Minister to move formally. The question is that amendment 5 be agreed to. Are we all agreed? We are all agreed. The question is that section 2 be agreed to. Are we all agreed? We are all agreed. Call of amendment 6, 7 and 8, all in the name of the minister and previously debated. Invite the minister to move amendment 6 to 8 on block. Formally moved. Does any member object to a single question being put on amendment 6 to 8? No. The question is therefore that amendment 6 be agreed. Are we all agreed? We are all agreed. The question is that section 3 be agreed. Are we all agreed? The question is that section 4 be agreed. Are we all agreed? Group 3, commencement repeal of section 6, offence postponed for 12 months from royal assent. Call of amendment 9, in the name of the minister, grouped with amendment 10 and 12. Minister to move amendment 9 and speak to all amendments in the group. Thank you, convener. Amendments 9, 10 and 12 adjust sections 5 and 6, which deal with the date of commencement for the bill. The bill currently provides that repeal of the 2012 act will come into force on the day after royal assent. The effect of amendments 9, 10 and 12 is to delay the commencement of the repeal of section 6, offence, by 12 months from royal assent. When combined with amendment 11, in grouping 4, which we will come to shortly, the amendments also delay the commencement of the repeal of section 1, offence, by 2 months. The 12-month delay for section 6, offence, would allow the Scottish Government to respond to the concerns of organisations representing minority communities by preparing a new bill to reinstate the provisions of the section 6 offence of sending threatening communications in order to maintain the protection that those provisions offer and also to consider what improvements could be made to the offence, such as expanding the range of groups covered by incitement to hatred and considering whether the threshold for convictions is too high. Amendment 9 amends the definition of the relevant date in section 5 of the bill, so that it takes account of the different commencement dates for section 1 and the section 6 offences that would result from those amendments if passed. Amendment 10 amends section 6 of the bill to confine the existing default commencement provision so that it applies only to the repeal of section 1 offence. Currently, the bill provides that the default commencement provision for the bill is for it to come into force on the day after royal assent, but our amendment 11, which we will come to shortly, would have agreed to change that so that the default commencement is two months after royal assent. Amendment 12 provides that the bill, so far as repealing the arrest of the 2012 act, that is the section 6 offence of sending threatening communications, comes into force at the end of the period of 12 months beginning with the date of royal assent. I move amendment 9. Liam McArthur. Thank you very much, convener. This is where I start to get a bit grumpy. Let me firstly say that, as far as I'm aware, the email that the committee members received yesterday afternoon at 4.30 indicating that the Government's response to our stage 1 committee report had been made available via the website at that stage. I mean, I really think that, in terms of custom and practice, that sort of turnaround time is inappropriate and far too short. In relation to those amendments, the minister will recall that during stage 1 I did at least acknowledge—I think that we all acknowledge—that section 6 presented a very different set of circumstances to sections 1 to 5 in that section 6 at least had the benefit of being cast across the entire population, potentially, rather than targeted at a single group in relation to football supporters. Nevertheless, despite that and despite assurances that your door was always open, we're presented with the amendments in relation to section 6, an explanation of them now, but no attempt between stage 1 and stage 2 to come and discuss with Opposition members what the Government's intention was, which appears effectively to be to hold on for 12 months until you can reinstate those same powers again. I don't really accept that there is a gap in the law that would be created. I think that the Government is still perfectly able—and I'm sure that we'll choose to do so—to bring forward a bill in the near future to reinstate those provisions. However, as much as anything, I'm more than a little disappointed by the way in which the Government's gone about trying to deal with that. As I said, the approach in relation to the amendments in stage 1, I thought, was a very constructive engagement to address legitimate concerns in relation to the bill. The approach that has been taken in relation to section 6, however, falls far short of that. I will not be supporting the amendments in this group. I take the polar opposite view to Liam McArthur. To me, the amendments that the ministers are putting forward are vitally important, because that was something that we really teased out in the stage 1 debate. I disagree with Liam McArthur to the extent that there is going to be a gap in the law. We heard that in the evidence directly to the committee. We heard from the Crown Office three specific areas where there would be a gap in the law if that is repealed. We need to be able to have that time to make sure that there isn't a gap in the law in relation to those provisions. We heard some examples during our evidence as well. I really do not think that that is an area that we can let go. None of the concerns that were expressed in the stage 1 debate were addressed during that debate either. I think that we need to take the adequate time to make sure that we address all the concerns raised in this specific section and make sure that we do it right. That is why I will be supporting the amendments. Rona Mackay? Yes. Just to really back up what my colleague Mary Gougeon said, it is eminently sensible to have this to Lee, given the importance of section 6. I think that it will fill the gap until a new bill can be brought in. Ben Macpherson. Thank you, convener. Again, I will be supporting those amendments for similar reasons. It was almost unanimous in our stage 1 evidence that the repeal of section 6 would create a gap in the law. There was some debate around other sections of the 2012 act, but section 6 was almost unanimous that the repeal of that would create a gap in the law. For the reasons in terms of the stakeholders who were concerned about section 6, I think that this is a very sensible approach to preserve section 6 until replacement can be found. Anyone else who has comments? My only comment is that I did not accept that there was a gap in the law, and therefore I consider that the bill should be repealed in its entirety. Section 38 has been brought forward of the Criminal Justice Licensing Act as an alternative. There is also a real concern that the bar was set so high, with intent being the test that it was very rarely used. I certainly would not be in favour of those amendments. James Kelly. Thank you, convener. First, I will address the gap in the law in relation to section 6. I do not agree with the point that Ben Macpherson made where he tried to imply that it was almost universally accepted in the evidence to the committee. It was not the view of the law society, and it was not the view of Professor Leverick. However, I do accept that there was— Do you say anything on that? Sure, yes. I thank James Kelly. I think that the point that Ben Macpherson was making was that the committee was unanimous, but as the convener pointed out, she disagreed with it. I would accept that the committee was unanimous in accepting that section 6 presented a different set of circumstances to section 1 to 5, but that is not the same as accepting that the committee unanimously felt that there would be a gap in the law with repeal of section 6. I hope that clarification is helpful. I thank Liam McArthur for that intervention. I was going on to say that this was discussed at the stage 1 debate, and I thought that Marie Gouge made some cogent points. I did after that debate go back and reflect on some of the arguments that have been made. I looked seriously at the issue as to whether there actually was a gap in the law. In discussing it with the law society, the specific issue that Marie Gouge raised was in relation to sentencing powers for section 6, where cases can be brought forward and people can be sent up to five years, whereas under the Communications Act, that provision did not exist. In discussion with the law society, it has been pointed out that section 38 of the Criminal Justice and Licensing Act can take forward cases in relation to indictment, when sentence is up to five years in relation to threatening and abuse. There is case law that backs us up. HM Advocate versus McGinley is a breach of the peace on indictment. The second point was on cover in relation to crimes of religious hatred. It is also relevant to point out that a religious aggravation can be added to section 38, as was the case in Love versus Procurator Fiscal Stirling. I have seriously looked at the issues that were raised in the stage 1 debate, but I am content that there is not only legislation in place but that there is case law that backs up that there is not a gap in the law. That, in fact, was a point made by the law society and Professor Lerwick in evidence. In terms of the minister's point in relation to protection of minorities, the reality is that section 6 is an unused provision. There was only one prosecution in the last year that statistics are available, so I do not think that it is correct to try and advance an argument that says that the legislation offers protection to communities when it is unused. Therefore, I will take an intervention, Mr McGaggart. Would you accept that the committee heard a lot of evidence from other sources, including the Crown and Prosecution Service, that there would be a gap in the law and also in relation to protected groups and minorities that a lot of those groups came to committee and told us that they felt section 6 was a protection? In relation to protected groups, for the period that the legislation has been in place, there have been 4,655 prosecutions in relation to hate crimes and sexual orientation. Only eight of those were under the Offensive Behaviour at Football Act, and, as I said, there was only one prosecution, sorry, only one conviction in the last year, so section 6 is an unused provision. In relation to the points that the procurator Fiscal Service raised about the gap in the law, I have substantially gone through why I believe that there is legislation and actual case law in place that deals with the point about the gap in the law. There is not a gap in the law, and I do not believe that proper protection can be given to minorities for a piece of legislation that has not been used because a legal threshold is too high, and I would oppose the amendment on that basis. I would say that there is absolutely no question about the fact that there would be a gap, and I think that we just need to look and remind ourselves of the evidence of the Crown Office and Procurator Fiscal Service, where they clearly indicated what the actual factual position was. Of course, the Crown Office and Procurator Fiscal Service are dealing with those matters day in and day out. First, the repeal of section 6, without allowing any time for the Government to mitigate the negative impact of that, would take away from Scots law a specific statutory offence of incitement of religious hatred, a specific statutory offence. It would take us backwards, not forwards. It would put us out of culture with the rest of the UK. That threat was responded to very strongly by a number of organisations of which the committee would be well aware. Equality Network Scotland, Stonewall Scotland, Victim Support Scotland, Scottish Women's Convention, the Church of Scotland, the Council of Jewish Communities in Scotland, the Equality and Human Rights Commission, to name but some, and very serious concerns about this issue. Also, the Crown Office pointed out, of course, that the section 6 provision allowed extra-territorial effect. I think that the minister is absolutely right about the evidence that we heard from a range of groups. I think that it is why all of us were seized of the need to approach section 6 and the repeal of that in a different way in which we approach the potential repeal of sections 1 to 5. However, it is also incumbent upon us to test the evidence that we hear against what appears to be the case in practice. As James Kelly has highlighted in discussions with the Law Society through the statutory provisions that exist in the precedent, there appear to be protections there. Therefore, the concern that was being expressed most vividly by the range of organisations that she has referred to was about the message that was sent out that repeal would remove the protection. Is she not complicit in reinforcing that message that somehow there is a gap and there will be an absence of protection, that, as James Kelly has pointed out, will not be the case because of the other provisions that are in place in the precedent that exist? No, I do not accept that. In section 38, which has been referred to by the Criminal Justice in Scotland Act 2010, it does not provide a statutory offence of stirring up religious hatred, and it is simply wrong to say that it does. I think that it is important to perhaps remember also a very specific example that the evidence session with the Crown Office and Procurator Fiscal Service threw up. From that session, if I may convener, section 6 also provides for greater sentencing powers than those in brackets of the Communications Act 2003. We have had a case in which an accused person posted comments that were supportive of a prescribed terrorist organisation ISIS, and the view of the sentencer was that the severity of those actions should be reflected in a starting point of 24 months imprisonment. That starting point for the sentencer would not have been available in the Alternative Charge under the 2003 act. I think that that states the position very strongly indeed. The facts of the matter are that, in relation to section 38 of the Criminal Justice and Licensing Act, that provision for sentencing exists and for bringing forward a relevant charge in relation to threat and communication. Although the example that the minister quoted comparing it to the Communications Act is valid, it is not valid in relation to section 38 of the Criminal Justice and Licensing Act. Section 38 does not contain a specific statutory offence of incitement of religious hatred. That is the key issue with section 6. That is why all those equalities bodies and certain faith bodies as well put forward their very strongly held concerns. I am not complacent at all, Ms McArthur, in steering up concerns. I am saying it the way it is. As a responsible Scottish Government minister, I am doing my best to mitigate the negative impact of this move and to ensure some continuity of protection. Thank you minister. Just for the record, as the law society has pointed out, a religious aggravation can be added to section 38 offence. That gives the cover in relation to religious hatred and deals with the arguments that the minister is trying to submit. Well, as I say, what we have at the moment is a specific statutory offence of incitement of religious hatred. What Mr Kelly is proposing to do is to take that specific offence away from Scots law and put us out of Kyoto with the rest of the UK and, indeed, would be a step backwards, in my view, not a step forwards. Just to wind up, perhaps, I think that we have had a very good and thorough debate. The 12 months that we are seeking to ensure this continuity of protection, I believe, is entirely reasonable. 12 months is not plucked out of the air. I think somebody referred to earlier the fact that alternative legislation could just be drummed up just like that overnight. That is not the case. We have had advice such that it would probably, at the very earliest, be a period of 12 months that would be required to come up with an alternative legislative provision to deal with the section 6 circumstances. Of course, therefore, we would be narrowing the gap where there is not this continuity of protection by at least 12 months, if this amendment were to be agreed to. Ultimately, I would say that, in response to Mr McArthur's point, my door has been open from the outset, but sadly nobody has sought to come through my door. Finally, I would—Certainly— I am just taking you back. It now transpires that the amendments 9, 10 and 12 in this section are not about avoiding a gap being created that we have a disagreement whether or not it exists, but about narrowing the period over which a gap will be there in the law. Your argument is that, at the very least, 12 months would be needed. What you are saying is that these amendments do not actually do what it is that your intended attending should happen as a result of them, which leaves the committee in a position—I have to say—scratch in our heads. It may be that you want to bring those back at stage 3, but it seems that you are not in a position to convincingly argue for them here at stage 2. I would say to Lee McArthur that the position is that we are trying very hard to respect the will of Parliament while acting as a responsible Government. We accept that, if we had come forward with a provision today, dealing with a specific issue, seeking for that provision to remain in place for two years or something, that would have been anathema to the committee—or at least some members of the committee. What we were trying to do was to have a reasonable position. What is the period of time at the very earliest that could be required to come up with alternative legislation 12 months? We would work very hard to ensure that we met that. That is the position of the amendment. If we had come forward with a much longer period, I am sure that Mr McArthur would have come up with other arguments against that, as not respecting the will of Parliament. We are trying to respect the will of Parliament. We are trying to mitigate the negative impacts on some of our most vulnerable communities and ensure continuity of protection. I would simply conclude, convener, by saying that I really believe that it is simply foolhardy to repeal section 6 without putting an alternative in place and allowing us, through this amendment, to ensure that continuity of protection. Thank you, convener. The question is that amendment 9 be agreed. Are we all agreed? No. We are not agreed. There will be a division. All those in favour, please show. All those against. Are there any abstentions? No. 5, 4, 6 against amendment 9 is not agreed. The question is that section 5 be agreed. Are we all agreed? Section 6, amendment 10, in the name of the minister, is already debated with amendment 9 to move formally. The question is that amendment 10 be agreed to. Are we all agreed? We are not agreed. There will be a division. All those in favour, please show. All those against. Again, it is 5 in favour. 6 against the amendment is not agreed. We now move to commencement of generally postponed for two months royal assent grouping 4, called amendment 11, in the name of the minister, in a group on its own. Minister to move and speak to amendment 11. Thank you, convener. Amendment 11 adjusts section 6 of the repeal bill, which deals with the commencement date of the bill. Currently, the default commencement provision in the bill is for it to come into force on the day after royal assent. Amendment 11 changes this so that the bill would commence at the end of the period of two months, beginning with the day of royal assent. An implementation gap of two months between royal assent and commencement is, of course, the normal standard practice. The reason why an implementation gap of two months is the normal standard practice is that the date when royal assent is received is not easily predictable. Therefore, linking commencement to a specific period after royal assent provides for greater predictability as to the date of commencement, which, in turn, provides certainty and time for all of those affected by the bill to take account of its provisions and make all reasonable adjustments that are required of them before the date on which the new legislation comes into force. I move amendment 11. Any members wish to speak to this? Thank you. I would seek to oppose this amendment. Essentially, if you look at the timetable in here, I think that it is important to understand that if stage 3—obviously schedule on stage 3 no matter for the parliamentary business—pural, but if stage 3 was to be considered before the end of March, the normal time period between passing the stage 3 and royal assent is around two months, which would take us to the end of May, which is crucially the end of the football season. In actual fact, post that, there still is a two-month period for prosecutors and police to carry out any prepared work that the minister argues is necessary. I do actually think that this amendment is necessary. I think that I have argued throughout the process of this bill that the legislation has been discredited. It has been argued against not only by supporters but also legal experts. As such, I have sought to repeal the legislation as quickly as possible, and I do not support the amendment that the minister brings forward. Seeking the two-month period from royal assent is not odd or unusual. It is in fact ensuring that the bill is brought into line with accepted, tried and tested practices. Until the stage 3 debate has been concluded, it is perhaps slightly presumptuous to assume the outcome. Therefore, those affected by the changes in the law need time to take account of those changes. The date of royal assent is not certain, so a two-month period will give everyone a clear date to work to and ensure the orderly management and administration of our justice system. It is our aim to ensure that any transition from the current legal framework to a new set of circumstances is achieved as smoothly as possible. It is right that organisations on which the change will impact have time for a period of adjustment to ensure that their houses are in order and ready for the implementation of the change on a fixed and clearly identified date. The fact that the repeal bill is taking away legislation rather than adding it does not make any difference to the fact that those who need to take account of the changes need time to make sure that their policies, procedures and operations are amended in good time to fully enact the new legislation from the day it comes into force. As the date when royal assent is given is never certain, it is entirely reasonable that those who need to prepare for the repeal can work to a known date and have due notice of it. Thank you. The question is that amendment 11 be agreed to. Are we all agreed? Yes. No. We are not agreed. Therefore, there will be a division. Those in favour, please show. Those against. Five in favour, six against. The amendment is not agreed. The question is that section 6 be agreed to. Are we all agreed? Yes. Yes. The question is that amendment 12 be agreed to. Are we all agreed? No. We are not all agreed. There will be a division. Those in favour, please show. Those against. Five in favour, six against. The amendment is not agreed. The question is that section 6 be agreed to. Are we all agreed? Rwy'n rwyfbod o'r hefydol y cwestiwn yn ei ffordd, ond yn regu'r iawn. Is that the answer is the question? Is that section seven is agreed to? Are we all agreed? Rwy'n rwyfbod o'r hefydol y cwestiwn y cwestiwn yn ei ffordd, is that the long title is agreed to? Are we all agreed? Rwy'n rwyfbod o'r hefydol yn regu'r iawn. I just now suspend briefly to allow for a change of witnesses. Item six is consideration of the civil litigation, expenses and group preceding Scotland Bill at stage 2. I'd ask members to refer to their copy of the bill and the markaloedd o ymgyrchu i'r cyfreuwyllion i gynnig i niw. Felly, rydyn ni'n defnyddio, Cymru i'r Gweithio Cy smiling Minister o Gweithlétraeth Cymru, Peyfynionol Cymru, Cyfinatingaiddol Gweithio ac Gweithlétraeth Cymru. Gwaith would now be, to the amendments. Group 1's success fee arrangements claims management services is called amendment eighteen in the name of the minister grouped with amendments as shown in the groupings. Minister, to move amendment 18 and speak to all amendments in the group. Thank you, convener. At the outside, I would wish to refer members to my entry in the register of entries wherein they will find the time a member of the Lost Society of Scotland that I hold a current practice certificate, albeit that I am not currently practicing. Amendments 20 and 22 are intended to clarify that the provisions of part 1 on success fee agreements apply to claims management companies, as well as to solicitors as providers of relevant services. Concerns have been expressed that this was not clear. There are a wide range of different ways in which claims management companies operate or may operate in future, sometimes in association with firms of solicitors. It is claims management companies, rather than law firms, who are currently offering damages-based agreements in Scotland, though the bill now provides for solicitors to also offer damages-based agreements. The approach taken is to define success fee agreements as agreements for the provision of relevant services, rather than just relevant legal services, and to define that master concept as including legal services and claims management services, respectively. Amendments 20 also defines legal services and claims management services in a similar way to section 419A of the Financial Services and Markets Act 2000, which is to be inserted by the Westminster Financial Guidance and Claims Bill. It seems appropriate to draw on the definition of claims management services that will be applied by the Financial Conduct Authority, which the Parliament has agreed through a recent legislative consent motion should be the regulator of claims management companies in Scotland in the near future. The definition of claims management services includes advising claimants as to funding options, for example success fee agreements or commercial funding for commercial cases. It also includes services in relation to legal representation, which means getting everything in place in terms of paperwork and witnesses, so that when the case is handed over to a lawyer, the amount of time and cost spent by lawyers doing non-legal work is minimised. The purpose of amendment 20 is to ensure that part 1 applies to claims management companies. However, amendment 20A, in the name of Daniel Johnson, amends the definition of claims management services in amendment 20. That would mean that only regulated claims management services are caught by the definition. It would mean therefore that the provisions of part 1 on success fee agreements would not apply to claims management companies as providers of relevant services until claims management companies are regulated by the financial conduct authority. In other words, it would not stop claims management companies offering success fee agreements in the regulatory gap. Instead, it would negate government amendment 20, which brings such companies within the ambit of part 1 of the bill. So they would have a free-for-all, because none of the restrictions and protections under part 1 of the bill would in fact apply. It would mean in particular that claims management companies would not be subject to the cap on success fees, which will be brought forward in regulations. As I understand, Daniel Johnson will not have intended this amendment to have that effect if the inspiration for the amendment was to be clear that providers of success fee agreements would all be regulated persons. I am happy to put on the record that a provider of a success fee agreement under the government's amendments will either be a regulated law firm or a regulated claims management service provider once a financial conduct authority assumes it is full rather than its transitional powers. For this reason, I asked Daniel Johnson not to move amendment 20A. Amendment 65, in the name of Gordon Lindhurst, delays the commencements of parts 1 to 4 of the act until claims management companies are regulated by the financial conduct authority. Members should be clear that the amendment would not delay the commencement of cox only, but every single provision set forth in parts 1 to 4 of the bill. There is a balance that needs to be struck between the benefits of increased access to justice and the risk of increased unscrupulous operations of claims management companies in Scotland during the so-called regulatory gap. The Scottish Government does not consider that there will be a flood of road claims management companies moving north from England in the period between commencement of the provisions of parts 1 and 2 of this bill and the commencement of full regulation by claims management in Scotland by the FCA. Sheriff Principal Taylor was quite clear in his evidence that he did not believe that this would happen. Although there will be a gap between the implementation of the bill and full FCA regulation, the gap is expected to be relatively short. There have been certain developments since stage 1. Specifically, the financial guidance and claims bill, as now amended and going through the House of Commons, has transitional clauses that will give the FCA the power on a transitional basis to obtain reports, information and documents from claims management companies operating in Scotland in advance of full commencement of the FCA's regulation. Further, the UK bill has also recently been amended to ban cold calling for claims management services, and this provision is to apply in Scotland. In fact, I wrote to the convener on 8 February about these important amendments at the Palace of Westminster, and hopefully that is information that all committee members have had an opportunity to look at. Although that does not mean immediate regulation, the FCA will be able to clamp down on errant companies the moment regulation starts. Any road companies contemplating a move to Scotland will know that regulation is coming and that any such operations will be short-lived. Any delay to implementing the civil litigation bill will delay its access to justice benefits to anyone in Scotland contemplating civil litigation. Kim Leslie, the convener of the Civil Justice Committee of the Law Society of Scotland, was very clear that the Law Society did not want to delay implementation until there is full regulation of claims management companies in Scotland. Gordon Lindhurst will be unsurprised to hear that I am unable to support his amendment to delay commencement of all of the substantive provisions of the bill until FCA regulation of claims management companies is in place. That does not take into account the latest developments that I have referred to in some detail with respect to the amendments to the UK financial guidance and claims bill. To do so would be to delay the real access to justice benefits that the bill delivers. I reiterate again that the amendment would not only delay quacks but would also delay the other provisions of the bill, such as group procedure, third party funding, solicitors being able to offer damages-based agreements, sliding cap on success fees and so on. Consequently, I asked Mr Lindhurst in light of the latest developments not to move amendment 65. Amendments 18, 19, 21, 23, 24, 25, 26 and 30 are all consequential on amendments 20 and 22. I move amendment 18. Thank you, minister. Daniel Johnson to speak to amendment 20A and other amendments in the group. Thank you, convener. I would like to begin by saying that I tabled this amendment as a probing amendment because I fully acknowledge the comments that the minister made and, indeed, I recognise that if I were to press this that it might have the consequences. I think that what is important is that we address the possibility of a regulatory gap for claims management companies. Indeed, that was something that the committee asked the Government to look at in our stage 1 report and I think that it continues to be a concern. I fully recognise the point that, in the fullness of time and as the UK legislation comes forward, that that would cease to be an issue at the moment. There is a gap that is not clear or certain at this point and, therefore, it is important that the Government looks at how it could take a precautionary principle and provide for interim regulation of claims management companies in the period of time that there is a gap. For those reasons, I think that it was important to tabled this probing amendment, but I also fully recognise and fully supportive of this bill. While I acknowledge that Gordon Lindhurst's amendments may well be in the same broad space and broad intent as mine, I would not support delay of the bill overall. I hope that that explains and clarifies my intentions behind amendment 28. Gordon Lindhurst, to speak to amendment 65 and other amendments in the group. Thank you, convener. First of all, I should refer to my register of interests and the fact that I am a member of the faculty of advocates and a practicing advocate. I do not think that I need to go into the detail of the actual wording of the amendment in light of the fact that the minister has already covered that. The purpose of the amendment in my name is to ensure that protection for those seeking access to justice in terms of the bill by regulation of claims management companies is in place before the bill is brought into force. This would in particular anchor in statute in the bill itself. This committee's recommendations stated in its stage 1 report at paragraph 326, and I quote the committee's report, the committee considers that the bill's provisions should not be brought into force until such regulation is in place. End quote. The committee members will be aware that my amendment has the support of the Association of British Insurers, as stated in their stage 2 briefing to the committee. To quote their words, I think that it's worthwhile doing this, they say that this would ensure that there is no regulatory gap to the detriment of Scottish consumers and safeguard against further increase in claims management companies activity in Scotland. End quote. So I take on board the minister's comments, but in terms of the urgency of bringing the provisions of this bill into force, the principle provisions, immediately I would point out that the Taylor report was published in October 2013, so there's been a number of years quite properly in getting to this stage, and in my submission there's not an urgency to bring the principle provisions into force immediately in light of what the minister has said about the minimal delay that this will cause. So the comment that regulation is coming is not, in my view, good enough in light of the minimal delay that this would cause, and I think it's important considering that quite a number of years have been spent bringing the bill to this stage, that the claims management company regulations is in force and the bill is brought into effect in tandem with that in my submission properly. Thank you. Liam McArthur. Thanks very much. It seems to be a happy coincidence of timetable in that we've moved from the Offensive Behaviour at Football and Threatening Communications Act, where we were debating the existence or not of a gap and how desirable it was to close that gap to this instance where the minister's position seems to be slightly more relaxed. I think that in this instance I would certainly accept not only the point that she makes about the wider benefits of the provisions in this bill and the desirability of not delaying their implementation. I would also acknowledge the steps that she and her officials have taken to link in with the process at a UK level to try to address the problem that was raised with us right at the outset of stage 1 in relation to claims management companies. I think that in relation to the amendments within this section I was probably more taken by Daniel Johnson's approach to trying to address this, which I'm sure he would be quite happy to accept was an idea originally from Sheriff's Principal Taylor himself to address that hiatus, rather than the approach that Gordon Lindhurst has brought forward for very genuine reasons. I accept some of the shortcomings or the problems that are inherent in the approach that Daniel Johnson's amendment brings forward, but I think that that may be something that we need to look again at stage 3 just to ensure that we are doing everything possible to make sure that the benefits of the wider bill are delivered. However, the very serious concern that was raised with us pretty much across the board and from the get-go is dealt with as best as possible. I would only answer minister that we did raise the concern that there would be a period where these claims management companies were not covered by the regulation in the fear in that interim time that they may gravitate to Scotland as it being a less stringent regime. So, if you could address that, that would be very much appreciated. First, the purpose of the Government amendments in this group is to ensure and remove any doubt that the provisions of the bill will apply to both solicitors and claims management companies as providers of success fee agreements. As I said earlier, those providers will be regulated either by the Law Society of Scotland in the case of solicitors or by the financial conduct authority in the case of claims management companies dealing with the specific points raised. Gordon Lindhurst quite rightly referred to the committee stage 1 report, but, of course, the developments that I was talking about at the Palace of Westminster have post-dated the committee stage 1 report. That will allow the FCA on a transitional basis to be able to have the power to demand information and reports and documents from claims management companies. Also, very importantly, it will introduce a ban on cold calling to apply to Scotland. As I said, it is now for us to weigh up, given the further moves to ensure that claims management companies operate in a reasonable fashion, that we weigh that up with where we have reached, and that we also weigh up where we are with regard to the important provisions of the bill. That, indeed, emanate from Sheriff Principal Taylor's excellent review dated 2013, but that perhaps would be a reason to, I would have thought, crack on and ensure that the very important provisions concerning, as I say, group proceedings, concerning the fact that solicitors will be able to offer damages-based agreements, and not just the purview of claims management companies, that there will be a sliding cap on success fees and, of course, a qualified one-way cost shifting, and many other provisions as well, that we allow the bill to go ahead to ensure that individuals in Scotland feel that they can have a remedy to enforce their rights in terms of civil litigation. Thank you, convener. Okay. The question is that amendment 18 be agreed to. Are we all agreed? Yes. We are all agreed. Call amendment 19, and the name of the minister already debated, with amendment 18 minister to formally move. Formally moved. The question is that amendment 19 be agreed to. Are we all agreed? We are all agreed. Call amendment 20, and the name of the minister already debated, with amendment 18 minister to formally move. Formally moved. Call amendment 20a, and the name of Daniel Johnson already debated, with amendment 18. Daniel Johnson, to move or not move? I won't move it. Not move. Thank you. The question is that 20 be agreed to. Are we all agreed? Yes. Minister, will you press and withdraw amendment 20? Formally moved. Formally moved. The question is that amendment 20 be agreed to. Are we all agreed? Yes. Call amendments 21, 22, 23 and 24, all in the name of the minister and all previously debated, and invite the minister to move amendments 20 and 24 on block. Formally moved. Does any member object to a single question being put on amendments 21 to 24? No. The question is therefore that amendments 21 to 24 are agreed. Are we all agreed? We are all agreed. The question is that section 1 be agreed. Are we all agreed? We are all agreed. The question is that section 2 be agreed. Are we all agreed? The question is that amendment 25 be agreed to. Are we all agreed? The question is that amendment 26 be agreed to. Are we all agreed? Felly, y cwestiynau cynlluniwyr 3 wedi yn digwydd i'r ddflennu ar gwell. Felly, y cwestiynau cynlluniwyr 4 wedi yn digwydd i'r ddflennu ar gwell. Felly, mae'n gweithio'r ddflennu ar gwell. Diolch yn fawr ddflennu ar hynny. Mae Ynrych 27 y mynd yn y wneud y ddflennu mwy meddwlol, IW 28 yn y ddflennu ar gwell yn y ddflennu mwy meddwl 27, ac mae'n ddflennu ar gwell yn y ddflennu. the exclusion of family proceedings for successful agreements generally. However, amendment 28 permits a more nuanced approach by allowing the Scottish ministers to make regulations setting out what kinds of successful agreement will be prevented from being used in certain kinds of litigation. The Scottish Government agrees with Sheriff Principal Taylor that family proceedings should not be financed by damages-based agreements. However, section 5 of the bill currently prevents any type of successful agreement from being used to finance family proceedings. Successful agreements can be either speculative fee agreements or damages-based agreements. Those terms are not defined in the bill, and the Scottish Government does not propose to introduce definitions to the bill since, in our view, that would add unnecessary complexity. The faculty of advocates submitted evidence to the justice committee that speculative fee agreements were sometimes, though rarely, used in family proceedings and argued that this funding option should remain available to litigants where appropriate. Amendment 28 therefore would extend the existing power of the Scottish ministers to provide by regulations the kinds of litigation that may or may not be financed by certain types of success fee agreements. The risk in dealing with this matter on the face of the bill is that either too many types of funding arrangements are excluded, which is what the bill currently provides for, or too few. Primary legislation could indeed prove inflexible in that regard. The approach that we are suggesting will allow for future proofing since the regulations can change as practice changes. The regulations that I referred to would be the subject of public consultation before being presented to Parliament and would be subject to the affirmative procedure in Parliament. Amendments 27 and 29 remove from the face of the bill the exclusion of family proceedings. The Government remains committed to prohibiting the use of damages-based agreements in family proceedings, as recommended by Chairprincipal Taylor, but equally is concerned to ensure that speculative fee agreements should continue to be available where those are appropriate and will assist litigants in pursuing their case. Those amendments will permit that to happen and the expanded delegated power will ensure that there is sufficient flexibility to react to changes in successful agreement practice in the years ahead. I move amendment 27. I understand the rationale, but it is helpful that the minister is setting that out further. There is always a slight anxiety in moving things from primary legislation off the face of a bill into subsequent regulation, but, as I said, I can understand the rationale. Is it her understanding that the amendment that will be turning to later in the morning in relation to post-legislative scrutiny of the bill will capture those provisions as well and allow us an opportunity at a later stage to review how the provisions are working in relation to this specific matter? Yes, my understanding is that the post-legislative scrutiny proposals are sufficiently wide to allow a look at how the act, assuming it is passed, is operating in practice. Minister, to wind up, I think. The question is, amendment 27 be agreed, are we all agreed? We are all agreed. Call amendment 28, in the name of the minister, is already debated with amendment 27. The question is that amendment 28 be agreed to, are we all agreed? We are all agreed, and call amendment 29 in the name of the minister, it is form Ill Floor Planet 18, already debated with amendment 27. Minister, to move formerly? Form Ill removed. The question is amendment 29 be agreed to, are we all agreed? We are all agreed. The question is LIKE that, section 5 be agreed to, are we all agreed? Yes. We all agreed. Call amendment 30, in the name of the minister, already debated with amendment 18 minister to formally move. Form Ill moved. The question is that amendment 30 be agreed to, are we all agreed? Rwy'n arweinydd â Gruff 3. Yn ymgeiswyr ondol, daeth ei ddarmach a'r effeithiol yn gallu'r ffordd a'r cael ymateb. Ieithiol ymgyrchu 57 yn fy ni, gyda'r grossfyniad ar y 50, 58, 59, 31. Ieithiol yn gallu ei ddarmach a'r effeithiaswyr 57 yn fy ni, yn gallu ddarmach a'r effeithiol are effectively ring-fenced and cannot be included in a success fee agreement. They will therefore not form part of the overall damages awarded in acclaim for the purpose of calculating a success fee agreement. Amendments 58 and 59 are consequential to amendment 57. The committee heard evidence at stage 1 that the term future loss can cover damages awarded for lost earnings, while a injured person is off work recovering, or travel expenses for expected future hospital appointments, and in more serious personal injury cases it could cover loss of all future earnings, as well as the cost of future care and specialist equipment that may be needed. The bill currently allows for those damages awarded for future loss to be included in calculating the solicitor's fee provided certain conditions are met. In summary, those conditions state that the damages are paid in a lump sum. Thereafter, if the future loss element is a lump sum exceeding £1 million, then damages will only be included if the solicitor has advised the client to accept the lump sum. Either the court, where damages are awarded by the court, or an independent actuary, where damages are obtained by settlement, has confirmed that it is in the client's best interest that the payment be in a lump sum. It is fair to say that there were conflicting views from witnesses. The Association of British Insurance and the Forum of Insurance Lawyers both argued that, as this money for future loss is awarded to pay for the pursuer's care and support, including accommodation and equipment, that they may need for the rest of their lives should not be included in the fee agreement. Taking the opposite position, pursuers' representatives argued against string-fencing damages for future loss, saying that they thought that the bill struck the right balance between protecting the pursuer and ensuring that a solicitor is paid fairly for the work involved. The committee in its stage 1 report voiced its concerns if damages for future loss were to be included. Therefore, it asked the Scottish Government to reflect on the evidence and to consider whether damages for future loss should be ring-fenced when calculating a solicitor's success fee. Having considered the evidence heard from both defender and insurer and pursuer representatives, I am persuaded that damages for future loss should be ring-fenced from the calculation of a solicitor's success fee. Quite simply, this money has been specifically awarded to the pursuer for their future care and support in whatever form that may take. Some aspects may, for example, not be necessary immediately at the time of the award, but it is evident that they will be required over time. Furthermore, the pursuer's representatives can still be paid through a variety of methods, including recovering judicial expenses, claiming from any part of the award that does not include damages for future loss, and looking at the possibility of claiming an additional fee in complex cases. The committee heard that those fees can be in a multiple of three or four times judicial expenses. In conclusion, I believe that amendments 57, 58 and 59 not only strike the right balance in calculating a success fee, but are necessary to ensure that appropriate measures are in place to protect pursuer's entitlement for an award for future loss. I move amendment 57 in my name. Amendment 31 is in support of amendment 31. Minister to speak to amendment 31 and other amendments in the group. The group is about damages for future loss. It is important at the outset to say that we are considering people who have been victims of very tragic circumstances, who have received catastrophic injuries through no fault of their own and that we should not lose sight of that. Sections 6, section 4 to section 8 of the bill make provision for the future element of damages awards. The system in the bill, as introduced, would be a shared principle that Taylor recommended that damages for future loss would be included in the amount of damages from which the success fee will be calculated if, but only if, the future element is to be paid in a lump sum. If the future element is to be paid by periodical payment order, then it will not be included in the calculation. In other words, in terms of the bill that is currently drafted, it will be being defenced. Following the change to the discount interest rate and in the light of the provisions of the forthcoming damages bill, it seems much more likely in the future that the element of damages payments relating to future loss will be made by means of a periodical payment order. Shared principle Taylor considered the position in England where all of the future element of the award is ring fenced, i.e. not included in the calculation of the success fee. The bill faithfully implements shared principle Taylor's recommendations on the issue of success fees and lump sum payments, including future loss when calculating the success fee. Alongside that, however, the bill contains a number of safeguards in section 6, subsection 5, 6, subsection 6 and 6, subsection 7. If the future element is above £1 million, the court will have to agree that it is in the client's best interest, that the payment is made by lump sum rather than by periodical payment order. If the award is agreed by settlement, then an actuary would have to agree that the payment relating to future loss should be paid by lump sum. Margaret Mitchell's amendment 57 and the consequential amendments 58 and 59 go further than the recommendations of shared principle Taylor. Amendment 57 changes the effect of the provisions in section 6, subsection 4 of the bill in relation to the calculation of a success fee. It would mean that no success fee could be taken from the future loss element of an award if it was to be paid as a lump sum. Under the existing provisions of the bill, the future element of an award is already excluded from the calculation of the success fee if the future element of an award of damages is to be paid by periodical payment order. In light of that, and having considered the issues raised by the committee in their stage 1 report, the Government is prepared to support those amendments, which will make the position the same when the future element of an award of damages is paid by a lump sum. If the committee supports the amendments, then the Government will consider whether any changes may be needed as a consequence and will bring forward appropriate amendments at stage 3 if they are. Amendment 31 in fact responds to concerns raised by Stuart Stevenson from a member of the committee at stage 1 about the need for an appropriate definition of actuary in section 6. However, the intent of the amendment is overtaken in fact by the changes made by amendment 58. At this point, I do not intend to move amendment 31 convener, and, of course, I wait to see the result of the discussion on your own amendments. However, since I will not get a further opportunity to speak in this group, I will quickly explain the intent of amendment 31, just in case the committee votes against amendment 58. I hope that that is all clear. In his evidence, Sheriff's principle Taylor suggested that the actuary should be a chartered actuary. The amendment provides that the references to actuaries in section 6 subsection 6 subsection b will now mean that associates are fellows of the institute and faculty of actuaries. The institute and faculty have advised that this approach should be future proof, since even if the concept of chartered actuary emerges in the future, the concept of associates and fellows would be retained. To conclude, convener, I am not moving at this point amendment 31, since the intent of that amendment is overtaken by the changes that were made by the convener's amendment 58. I am, of course, waiting to see the result of discussions on that amendment 58. John Finnie. Thank you, convener. I wish to speak very briefly in support of your amendment. One of the phrases that the minister used there was the client's best interests. I think that that should be at the forefront of our deliberations. It is sometimes very dry—a lot of what we do here—and we have to think of the practical implications of it. I do not doubt for one second that the very able people who deliver the important sums of money regarding personal care and that there will be methods for which they are properly remunerated. However, I think that it is wholly appropriate to ring fence in our lifeline with support here. Thank you. Liam McArthur. Thank you, convener. As I like John Finnie, we are all seized of what appeared to be an incongruity in terms of the approach in relation to lump sum payments, as opposed to periodic payments. I certainly welcome the minister's agreement to accept those amendments, which I think address that concern. I am slightly concerned that she is not moving amendment 31, which I did see as an attempt to stave off attempts by Stuart Stevens to set himself up as an actuary, but I am reassured that she thinks that 58 will achieve the same objective and will therefore wholeheartedly support that amendment, too. For me to wind up, just in response to the minister, I note that you hope that the damages bill is likely that that will cover payments for future loss being made in installments. It is no mean certain. In the meantime, lump sums will still be recommended and will still be awarded. Also £1 million is a colossal amount of money. £1,000 is a colossal amount of money to some pursuers. There is the danger that, including future loss, even for £1,000, the pursuer would lose out. On that basis, I press the amendment. The question is that amendment 57 be agreed to. Are we all agreed? We are all agreed. I call amendment 58 in my name, already debated with amendment 57, which I now move. The question is that amendment 58 be agreed to. Are we all agreed? We are all agreed. I call amendment 59 in my name, already debated with amendment 57, and I move amendment 59. The question is that amendment 59 be agreed to. Are we all agreed? We are all agreed. I call amendment 31 in the name of the minister, already debated with amendment 57. Minister, have you formally moved? Not moved. Not moved. Okay. The question is that section 6 be agreed to. Are we all agreed? Thank you. We now move to section 4, which is independent advice about success of the agreements. I call amendment 63 in my name, in a group on its own, and I'll move amendment 63 and now talk to it. Amendment 63 seeks to address potential conflict of interest in success fee agreements. That was raised by Professor Allan Paterson during stage 1. Professor Paterson stated that success fee agreements had to be subject to appropriate protections and that in some cases there may be a need for the client to receive advice independent from the client's original solicitor on the terms of the success fee agreement. That, he considered, would protect both solicitors and clients for underlying potential conflicts of interest. Although that is not necessary for every speculative fee agreement and every damage-based award, there is an argument for it in some situations. Amendment 63, therefore, allows further discussion to ascertain from the minister her views on the independent review issue and how best to ensure the necessary protections are in place. The amendment as drafted allows Scottish ministers to make regulations for the circumstances in which a provider A must ensure that, prior to the agreement being entered into, the recipient receives the advice from another independent provider as to whether the agreement is in the recipient's best interest. However, I am aware that the question thereafter would be what are those circumstances. Having spoken further with Professor Paterson since lodging the amendment, he has pointed out that all lawyers are required in good faith and in the objective best interests of their clients to act in the best interests of their clients. Currently, in fee agreements regarding property transactions, if there is either an actual or potential conflict of interest, such agreements are voidable unless the transaction was fair and reasonable in the circumstances and there was no undue influence. The client gave his or her informed consent following disclosure of all the relevant facts and another independent solicitor would have advised it. Those tests are applied in property cases but not at present in the basic lawyer client fee contact. To ensure that vulnerable potential clients have a level of protection that success fee agreements are fair, I propose that those tests be applied to success fee agreements in personal injury cases. That is on the basis that a success fee agreement involves the lawyer taking a share of the client's damages, i.e. property. It therefore follows that in certain success fee agreements cases we need more than the normal protection in a client retainer contract. The onus should be placed on the lawyer to show that the two tests that are fair and reasonable with no undue influence and that informed consent has been met and that if those tests are not met are provided then the agreement would be voidable. I look forward to hearing the minister's comments and I would be grateful if there was a commitment from the minister to work with me to look at those tests with a view to putting them on the face of the bill but I await your comments. Amendment 63 Amendment 63 in your name in terms of the way that it is currently drafted, which is all that I can really deal with in terms of what is in front of me today, but it provides that the Scottish ministers may make regulations about the circumstances in which a services provider must furnish a pursuer with advice from another independent provider before the pursuer enters into a success fee agreement. I find it difficult to know when this check might be required and I take into account what the convener has just said, but many providers will be solicitors and they are professionally required to act in the best interests of their clients at all times. It is difficult to see whether there is any need to provide the pursuer with the second opinion if that is still what is being contemplated with attendant costs and who is to bear those costs and the process and what steps will be required, how long will that all take. Of course, one of the overarching objectives of the bill is to make costs more predictable in terms of a pursuer being able to go to a lawyer who can offer a damages-based agreement, for example, and no upfront costs and so forth and cocks in terms of personal injury actions. That is the kind of straightforward approach of the bill and it does seem to me that this process could perhaps lead to a more cumbersome approach for circumstances in which the solicitor is duty bound in terms of their practising certificate to act in the best interests of clients. I would say in terms of the theoretical conflict that, of course, speculative fee agreements have been offered by solicitors since, I think, the early 1980s and 1990s. Although there has been a theoretical conflict of interest with respect to the provision by solicitors of speculative fee agreements, nonetheless that has not presented any problem in practice. I think that therefore we can take some comfort from that fact that that has been in operation for some decades now without any need for this extra additional process. I would also say to the member that, of course, the setting of professional standards rules, for example for solicitors, is a matter for the Law Society of Scotland as its professional regulator and it is not for the Government to direct. I think that I made that point during the stage 1 evidence session that I was at. It is not for the Government to direct the Law Society of Scotland in terms of particular actions. Of course, we can be in discussion with it and it perhaps may be there for it that the concerns that the member may have could more properly be addressed by having further discussions with the Law Society of Scotland as regulator to see what its view might be. I hope that that is helpful. The minister for those comments. There are potential conflicts of interest in those success fee agreements and the bill, as it currently stands, does not address them. I do believe that the two-test provision that Professor Patterson set out in our discussions, where the lawyer, the solicitor, must prove that it is fair and reasonable and that no unduins influence was exerted and that the client has informed consent been met. I think that even Professor Sheriff Taylor did say that that provision, in particular informed consent, would, for example, allow the solicitor to say, well, I charge X amount per hour for the following reasons. I am aware that there are other rates available and therefore that would allow an informed choice on the part of the client if they wanted to engage that solicitor or if they wanted to look elsewhere, all in the client's best interest, all in the interests of access to justice. I am aware that the amendment that is addressed as tabled at present does not do what I seek the review of the successful fee arrangement agreement to do. For that reason, I will not be pressing it, but I will, as the minister suggests, speak to the Law Society and I hope that she would engage with me to look at what could be brought forward at stage 3 to ensure that vulnerable clients and others are not disadvantaged by successful agreements not benefiting from the two tests suggested. Does any member object to me withdrawing the amendment? That being the case, we shall move on. Group 5, success fee agreements, multiple providers, call amendment 32, in the name of the minister and a group on its own, minister to move and speak to amendment 32. Amendment 32 is intended to address a potential problem identified by members of the committee, in particular John Finnie and Rona Mackay, during stage 1 evidence that attempts may be made to charge more than one success fee in relation to the same case, thus circumventing the caps to be imposed on success fees under section 4 of the bill. The suggestion was that a firm of solicitors and declaims management company might both take a success fee and the combined charge to the client might exceed the proposed caps on success fees to be paid out of damages awarded or agreed. Pursuer representatives gave evidence to the committee that that does not happen in practice. Nevertheless, we wish to ensure that that can never happen in practice. The amendment will give ministers the power to ensure indeed that it will not. It will allow regulations to be made under the existing delegated power in section 7 subsection 3, which will prevent a pursuer from being liable to pay two or more success fees. Those regulations engage the affirmative procedure. By referring to more than one provider rather than more than one agreement, we intend to allow that to deal with cases firstly, where there is more than one party to an agreement, and secondly, cases where there are multiple agreements. In addition, you will be pleased to learn that the Lost Society of Scotland's working group on success fee agreement proposes to develop a model success fee agreement that should make it clear that only one success fee is payable, further reducing the risk of abuse. I move amendment 32. Question is that amendment 32 be agreed to. Are we all agreed? We are all agreed. Group 6, power to make further provision about success fee agreements, call amendment 33 in the name of the minister in a group on its own, minister to move and speak to amendment 33. Thank you, convener. 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 subsection 4 to modify part 1 of the bill. Amendment 33 responds to those concerns by restricting the power so that it will apply to just section 7 rather than to part 1 as a whole. Amendment 33 also contains a further restriction so that the regulations can add to section 7 or modify text added by the regulations but 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. It may be helpful if I try to explain the kind of addition or modification that is envisaged. As the Government explained in its response to the DPLRC, the purpose of section 7 subsection 3 and subsection 4 is to augment the current provisions of the bill in relation to success free agreements, where it is considered to be desirable to have future provision about the mandatory terms of success free agreements or their enforcement. Such provision would only be brought forward after consultation on the regulation of success free agreements with stakeholders and thus cannot be included in the bill at present. The regulations would mean that any new provisions could be set out in section 7 rather than set out in freestanding regulations. That would mean that all of the mandatory terms relating to success free agreements would be found in the primary legislation. I move amendment 33. The question is that amendment 33 be agreed to. Are we all agreed? The question is that section 7 be agreed to. Are we all agreed? Section 7, restricting or restriction of pursuers liability for expenses in environmental proceedings. Amendment 60, in the name of John Finnie, in a group on its own. John Finnie to move and speak to amendment 60. Thank you, convener, and I do wish to speak on the implications of that House convention, which is now 20 years old. It is not all that intervening period. I have talked about the subject, but I have certainly talked about it with frequency, both with the minister and her predecessors, both in this position and in the environmental portfolios. It is certainly the case that, as it all stands, it gives personal injury cases, including those with an environmental aspect, so-called toxic torts, a qualified one-way cost shiftings, and that is seen as a first-class protection. We do know that costs are a huge barrier to justice, and we also know that the Scottish Government has consistently been criticised on its perceived failure to comply in full. I accept that that is not the Government's position on this, and this amendment would go some way to addressing this, not completely to addressing this. I would be very keen to hear what the minister had to say in relation to this. I am always very keen to engage on the subject, and I will leave it there just now. I move amendment 60. No one else wishes to speak, minister. Amendment 60, in the name of John Finnie, is intended to give pursuers or petitioners in environmental cases following under the Arhus convention the protection of qualified one-way cost shifting under section 8. At present, protective expenses orders, or PEOs, limit a party's liability to pay the expenses of an opponent or third party to a particular sum, whatever the outcome of the case. That gives a degree of certainty and predictability in relation to litigants' potential exposure to an opponent's expenses. Rules of court currently regulate the award of protective expenses orders in judicial review cases and statutory reviews, which fall within the scope of the public participation directive broadly at Arhus cases. The Scottish Civil Justice Council consulted and further draft court rules in relation to protective expenses orders last year. Following the consultation, the Scottish Civil Justice Council has set up a working group to look at protective expenses orders and we await its final conclusions, and it would be premature to pre-empt them now. Sheriff Principal Taylor, during his two and a half year review considering expenses and civil litigation, examined in some detail the need to restrict certain litigants' liability for expenses in judicial review applications, which again covers most Arhus cases. He stated that, to an extent, the judiciary is already embracing the concept of cox, albeit under the guise of protective expenses orders. Sheriff Principal Taylor rejected an extension of cox to other types of cases, which he considered did not always involve a weak pursuer against a powerful defender. The Scottish Government considers that this argument would apply to environmental cases. For example, it may be well-funded charities, wealthy landowners or businesses that seek to judicial review Scottish ministers' decisions on, for example, energy at consent. The Post-legislative Review paper on the legal aid sentencing and punishment of offenders act 2012, which introduced cox in England at Wales, did not suggest that cox should be extended to any other areas of civil proceedings beyond personal injury. It should also be recalled that there has been no consultation on the matter, given that such an extension of cox beyond personal injury claims was not a recommendation of Sheriff Principal Taylor in his two-and-a-half-year review. Furthermore, no environmental NGO made any submission to the consultation on this matter, nor did any other respondent to the consultation on this bill suggest any such an extension of cox beyond personal injury claims. I consider therefore that the best approach is for the Scottish Civil Justice Council to continue to keep the matter of cost in environmental proceedings under review as part of its civil justice remit. As I have pointed out already, Sheriff Principal Taylor did not recommend cox from environmental cases or indeed any other types of civil litigation beyond personal injury actions. The Post-legislative scrutiny of the legislation in England and Wales that had introduced cox did not recommend extending cox to anything other than personal injury. Further, we will come to debate today or perhaps next week a group of amendments that will provide for post-legislative review of the bill of the act, including cox. That will naturally include the question of whether cox is sure, certainly. I am grateful for the minister for taking the intervention. I did not know what you were coming towards then and I wanted the opportunity for you to comment on the criticism that there has been, legitimate or otherwise, on how you would address that. Most recently, First Minister spoke in Paris and there was criticism about what was seen as a shortfall in the Scottish legal systems compliance with that house. Could you comment on that, minister? What I would say is that it has been recognised on implementation of our house in general that, in fact, Scotland has made progress and that should be recognised. To be fair, the member did in his first intervention this morning on the matter. Also, there have recently been certain changes to the protective expenses order regime. Obviously, for the member, those do not go far enough. However, what I am saying is that this matter is properly a matter for the Scottish Civil Justice Council and that it is. It has a working group on the matter, and I think that it would be premature to pre-empt the result of that. In conclusion, I would reiterate that the consultation on the bill was not about coax and environmental cases, it was about coax and personal injury cases. No respondent suggested that there be an extension and no NGO in terms of the consultation on this bill. The one that we are dealing with before us made any submission at the time suggesting the extension of coax to environmental cases. I appreciate the member's long-standing interest in this matter and I quite fully expect him to raise this matter with me on many other occasions. I am always in that context happy to discuss that or any other issue. However, I would ask him to consider whether he would perhaps not press his amendment today to ensure that we allow the Scottish Civil Justice Council to continue with its work. I thank the minister for the comments and note what he said that it would not be my intention to press if that is the case. Does any member object to John Finnie withdrawing the amendment? I know that that being the case is withdrawn. Group 8 pursuers liability for expenses and personal injury claim circumstances of pursuer and defender call amendment 1 in the name of Liam Kerr grouped with amendments 2, 3 and 9. Liam Kerr to move amendment 1 and speak to all the amendments in the group. Thank you convener. I do move amendment 1 and all the amendments in the group. The amendments 2 that I have proposed to section 8 1 fundamentally boil down to what I would suggest is making the appropriate balance. Qualified one-way cost shifting is to be introduced as a means of improving access to justice. That is a good thing, but it should not apply in cases where there is no David and Goliath relationship. We heard a great deal about the importance of mitigating any such David and Goliath relationship and what I am proposing is that where there is no such relationship the coax amendments should not be applying. My view is that there is, as originally drafted, a lack of protection for defenders who are uninsured and or of limited means. Therefore, it is my view that, and these are the amendments that I am proposing, that coax should not apply where there is a funder and amendment 9 clarifies what a funder would be. Coax should not apply where a defender is uninsured. It should not apply where a defender is not a public body, where the person is legally aided and where the person gets third-party funding. That is what my amendments seek to achieve and I move amendment 1, 2, 3 and 9 in my name. Anyone else wants to speak to this, Liam McArthur? Thanks, convener. I welcome Liam Kerr's clarification of the amendments and certainly recall the debate that we had through stage 1. My anxiety around trying to limit the coax provisions or where they apply in this instance is that we I think need to guard against setting unhelpful incentives into the system. Thereby, I suppose, in one example providing an incentive for people not to seek a few insurance in order to escape liability or the prospects of personal injury cases being brought. I will listen carefully to what the minister has to say, but I think that there were some concerns raised with us during stage 1 about where we would get to in trying to define the provisions in the way that Liam Kerr quite legitimately sought to do, but I will listen to the minister with interest. Daniel Johnson Likewise, I hear what Liam Kerr was saying regarding David and Goliath's situations, but I am worried that the nature of those amendments does not strike the right balance. I would question whether the indicators that he is using such as whether or not the defendants have insurance or if the pursuer has third-party funding would exclude the sort of the situations that he is concerned about. In particular, I think, with regard to third-party funding, I would be particularly concerned that that would exclude people pursuing these claims with the backing of a trade union, which clearly, I think, would not be right. I think that that is a relationship that is useful and indeed enhances, I think, the intent behind this legislation. Therefore, while I understand the intent, I would not support those amendments. Minister Thank you, convener. During these stage 1 evidence sessions, there was some concern raised by the faculty of advocates and defender solicitors about the operation of coax in what was termed, excuse me, a David vs David case, in other words, where the defender was, for example, ostensibly an uninsured individual. I will return to the points that Mr MacArthur made a moment ago. Amendments 1, 2 and 3 in the name of Liam Kerr attempt to address that issue, but go further in a way that risks seriously undermining the operation of qualified one-way cost shifting in Scotland when it is introduced. Indeed, the amendments appear to have the intention of watering down coax from what Sheriff Principal Taylor proposed to the point that it would offer little benefit to personal injury pursuers. The effect of amendment 1 is that section 8 would only apply if the pursuer has no funder. We wonder if that is an attempt to remove pursuers benefiting from successful agreements from the effect of section 8. That would be a significant departure indeed from Sheriff Principal Taylor's proposals, because successful agreements and coax were intended to be complementary measures for personal injury pursuers. Section 8 would also apply under this amendment only where it appears to the court that the defender is insured in respect of the claim, or the defender is not insured but the motor insurer's bureau is liable to make payment, or the defender is a public body, in other words. Qualified one-way cost shifting would only be available if the pursuer had no funding and the defender was insured, or if not insured, the MIB would pick up the tab or a public body. The committee heard evidence from Sheriff Principal Taylor and Patrick McGuire of Thomson solicitors that pursuers do not in practice sue uninsured defenders, as Sheriff Principal Taylor said. If the defender is a man of straw, the pursuer will not raise proceedings. After all, there is no point in obtaining a court award that cannot be enforced. In his stage 1 evidence, Sheriff Principal Taylor also pointed out some of the drawbacks of further restricting coax saying. The difficulty with that is that you could end up with parties not bothering to insure themselves when they ought to or with parties taking on a much higher excess in order to pay a much lower premium and thereby making themselves in effect self-insured. He went on to say that you could find parties who have policies so coax would apply, but who would have breached the terms of their policy with insurers such as the obligation for fidelity? As a consequence, one-way cost shifting would not be available in circumstances in which it should be available. I think that Liam McArthur was picking up on those points that he had heard Sheriff Principal Taylor give in evidence. Coax is part of a raft of measures convener introduced by the bill to provide more certainty about the cost of litigation for those with a meritorious claim. It makes it clear that the pursuer will not be liable for the expenses of the defender if the case is lost. Sheriff Principal Taylor quoted statistics from England where it was noted that defender insurers only claim expenses when they win cases in 0.1 per cent of those cases. Sheriff Principal Taylor had no doubt that the situation was the same in Scotland. Amendments 2 and 9 would have similar effects in restricting coax where the pursuer was separately funded. I think that that deals with Daniel Johnson's concern as well. The effect of amendment 3 would be to disapply coax where the pursuer was legally aided. It is not, however, envisaged that personal injury claimants will be legally aided if they have a success-free agreement. It is, of course, absolutely right that there should be no benefit if the claim is pursued inappropriately. We will discuss shortly fraud and other grounds on which coax protection may be lost. To add those further restrictions, as Liam Kerr is seeking to do in his amendments, just adds uncertainty about cost into the process of litigation in direct contradiction to the overarching principle of the bill, which is to increase the predictability of the cost of civil litigation, such that we can promote access to justice on the part of the citizens of this country. It will also reduce the effect of the bill and will remove an essential element of the carefully constructed framework of recommendations made by Sheriff Principal Taylor. Again, I would cite the fact that coax was introduced in England and Wales in the legislation that I referred to in the previous section in 2012, without such restrictions being in place. Further to the post-legislative scrutiny that was only very recently carried out of that legislation in England and Wales, no problems in that regard were identified. I would say in conclusion that a number of stakeholders have cautioned against any reforms that could invite satellite litigation. I fear that Liam Kerr's amendments could increase the likelihood of such disputes. It is for the foregoing reasons that I asked Liam Kerr to consider withdrawing amendment 1 and not moving amendments 2, 3 and 9. Liam Kerr, to wind up, press or withdraw. Thank you, convener. I am grateful to the various members for the arguments made. Just in response to some of the points, in terms of the England and Wales situation, I think that I am right in saying that there are some significant differences. It is not to say that I disagree with the minister simply that I think that there is more to be investigated in that regard. I think that Mr MacArthur's point about the insurance is certainly concerning, and the minister made the point as well. Again, I would be interested in looking at that further, although I am not convinced that it is a reason to withdraw. In response to the minister, this is not an attempt to remove success-free agreements, although, again, I am interested in the point. Some evidence suggested that pursuers do not pursue the uninsured as a matter of practice. Whether or not that is a good basis on which to legislate a person with an interest, on which note, by the way, I declare my own interest as a registered member and practicing solicitor of the Law Society of England and Wales and of Scotland. The minister talks about introducing uncertainty around cost, but arguably, if we are relying on a practice in which a pursuer does not pursue an uninsured, that is even worse uncertainty than were my amendments to be agreed to. I would like to put this to the vote, so I will press amendment 1, 2, 3 and 9 in my name. The question is that amendment 1 be agreed to. Are we all agreed? We are not agreed. There will be a division. Those in favour, please show. Those against, please show. 3, 4, and 8 against amendment 1 is not agreed to. Call amendment 2 in the name of Liam Kerr. Already debated with amendment 1, Liam Kerr to move or not move. The question is that amendment 2 be agreed to. Are we all agreed? We are not agreed. There will be a division. Those in favour, please show. Those against. The division is 3, 8. The amendment is not agreed. Call amendment 3 in the name of Claire. Already debated with amendment 1, Liam Kerr to move or not move. Move. The question is that amendment 3 be agreed to. Are we all agreed? We are not agreed. There will be a division. Those in favour, please show. Those against, please show. The division is 3, 8. The amendment is not agreed to. Grounds in which pursuer may be liable for expenses in personal injury claim. Call amendment 34 in the name of the minister grouped with amendment amendments that are shown in the groupings. Minister to move amendment 34 and speak to all the amendments in the group. Liam Kerr to speak to amendment 4. Sorry, minister first. Thank you, convener. This group of amendments provides for the circumstances in which the protection of qualified one-way cost shifting or coax will be lost by a pursuer in personal injury proceedings. Amendment 34 makes it clear that failure to conduct proceedings in an appropriate manner by the pursuer's legal representative as well as by the pursuer may lead to the loss of benefit of coax. When Sheriff Principal Taylor gave evidence to this committee, he indicated that fraudulent representation involved word of mouth, but as he said, fraud can also take place through actions. That amendment faithfully reflects Sheriff Principal Taylor's suggested wording for the test of fraud in relation to coax. It ensures that actions as well as representations will be considered by the court in deciding whether the benefit of coax should be lost. Amendment 4, in the name of Liam Kerr, is very similar to Government amendment 35, but relies on a further amendment amendment 5. While the Government amendment is simpler from a drafting point of view, I think that the amendments have the same aim, and I am therefore willing to support Liam Kerr's amendments 4 and 5, as they have the same effect as amendment 35. If the committee supports amendment 4, therefore, I would not intend to move amendment 35. If amendments 4 and 5 are passed, the Government will of course consider whether any changes may be required in drafting at stage 3. Amendment 36 makes it clear that the test of reasonableness in section 8 subsection 4 subsection B is tantamount to that of weddynasbury unreasonableness. The original drafting was intended to reflect the weddynasbury test, but it was clear that stakeholders wished the Government to revisit its drafting approach. The amendment broadly follows the wording suggested to the committee by Samuel Rowley QC of the Faculty of Advocates on 26 September. It was endorsed by Sheriff Principal Taylor in his evidence to the committee on 31 October. It means that any manifestly unreasonable behaviour by the person bringing the proceedings or a legal representative results in coax protection to being lost. The concept of manifest unreasonableness delivers in substance the weddynasbury test, which Sheriff Principal Taylor said in his review, had to be a high test, as otherwise the benefits of coax might be lost as pursuers might not have the confidence to litigate. Amendment 6 in the name of Liam Kerr would mean that the benefit of coax would be lost if the pursuer fails to beat a tender made during the court proceedings or an offer of compensation to settle made before the court proceedings start. The question of tenders is whether a pursuer should lose the benefit of coax was raised in written submissions by much of the insurance lobby. Other groups who responded to the call for evidence, for example the Law Society of Scotland and Brodies, considered it the kind of issue that may be dealt with in rules of court. I agree with Sheriff Principal Taylor that the benefit of coax should be lost if a pursuer fails to beat a tender. However, I also agree that it is more appropriate to deal with tenders through secondary legislation. Members will have noted that this is indeed the firm position of the Lord President who has written to the committee very recently on this issue. If, as the Lord President has indicated, tender and settlement offers are to be dealt with in rules of court, that is the appropriate place for any provision on failure to beat a tender or a settlement offer. Section 8, subsection 6 of the bill, clearly states that coax is subject to such exceptions, as may be provided for in an act of sederant, i.e. in court rules. The Lord President has stated that the reference to tenders in primary legislation, which would be the effect of Mr Kerr's amendment 6, would restrict the court's ability to regulate in this area. Indeed, it would preclude the Scottish Civil Justice Council from coming up with a more straightforward terminology, aside from using the word tender, which might have other connotations. Liam Kerr's amendment 7 is similar. The benefit of coax would be lost if the pursuer is, in the opinion of the court, being unreasonable in refusing to accept an offer under a pre-action protocol. Again, I consider that this should be left to rules of court. Lord Carlyway, the Lord President, commented in his letter to the convener last week that the committee might take the view that amendment 7 would be anomalous in both its operation and in its effect. I agree with the Lord President. Pre-action protocols are a matter for rules of court. Amendment 8, in the name of Liam Kerr, would mean that the pursuer would be deemed to have acted in an inappropriate manner and so would lose the benefit of coax if the proceedings are summarily dismissed by the court. I am not aware that the term summarily dismissed is, in fact, used in primary legislation, and there appears to be some doubt about whether the court of session currently has powers to dismiss a case summarily. I am aware that the Scottish Civil Justice Council is considering this and that rules are likely in the foreseeable future. Whether those rules will use the term summary dismissal or some other phrase like strike out as in England and Wales is not yet known. Again, the Lord President has emphasised that the Parliament should be slow to tie the Scottish Civil Justice Council's hands. Lord Carlywe noted in his letter also that the general part of summary dismissal referred to in amendment 8 will be considered as part of the current rules rewrite project. Amendment 10, in the name of Liam Kerr, defines what is meant by proceedings in section 8 subsection 4 to the effect that it means all actions of the pursuer in a damages claim both before and after proceedings have been served. This amendment is unnecessary if the Government's amendments succeed. Since the phrase in connection with the proceedings will cover behaviour by the pursuer or their lawyer in the pre-litigation period as well as in the civil proceedings proper, amendments 40, 47 and 49 are consequential drafting amendments. Amendment 49 inserts a new section after section 12, which provides the definition of legal representative for the whole of part 2 of the bill. Amendment 40 is a consequential amendment that removes the definition from its previous place in the bill in section 9 subsection 4. The definition is not changed. That change is necessary because the definition of legal representative is now relevant to section 8 coax as well as to sections 9, third party funding and section 11 award of expenses against legal representatives. Amendment 47 is another consequential amendment that removes the reference in section 11 to the definition of legal representative in the now defunct section 9 subsection 4. Amendment 48 is a minor consequential amendment to the Court Reform Scotland Act 2014. It relates to section 81, subsection 5, subsection B of that act, which provides that only in the case of unreasonable behaviour will a party lose the benefit of fixed expenses in similar procedure cases in the sheriff court. Amendment 17, in the name of Liam Kerr, requires the court of session to make rules for a new pre-action protocol for clinical negligence cases. The amendment also provides that clinical negligence cases would not have the benefit of coax until those rules come into force. We consider that the extension of pre-action protocols to medical negligence cases is for the Lord President and the Scottish Civil Justice Council to consider. We do not consider appropriate that there should be a delay in extending the benefit of coax to pursuers in such cases. We do not consider that that would be in accordance with the spirit of the bill. Amendment 34, in the name of Liam Kerr to speak to amendments 4 and other amendments in the group. Thank you, convener. My amendments deal, as you have heard, with the benefit of coax, should be lost pursuant to section 84. First of all, I am grateful to the minister for clarifying that the Government amendment 35, or my intention in amendment 4, is in the same vein as the amendment 35. If mine is passed, I am grateful for the clarification that 35 will not be pressed. The benefit of coax should be lost, in my view, on the balance of probability that a claimant has acted fraudulently in connection with the claim or the proceedings. Again, I am grateful for the clarification that later on is a wider category of proceedings. Given that many claims will never reach court, the test should include the behaviours and actions prior to litigation, because I think that that will deter more spurious claims from being brought forward. That accords with Sheriff Principal Taylor's recommendations. Moving on to amendments 6 and 7, as the minister said, these rather go together, the provisions in the bill on coax do not take account of the tender process. Tenders, as we have heard throughout the evidence, form a very important part of the type of litigation. It is my view that there should be a specific reference to this in the bill. If I recall correctly, that was a recommendation of the Taylor report. It is certainly Sheriff Principal Taylor stated in evidence to the committee that I am persuaded that qualified one-way cost shifting should not be available and should be specified as not being available in the event that the pursuer has failed to beat a tender. At present, where a defender fails to beat a pre-litigation offer, they must beat the offer at the conclusion of the action or be liable for the defender's judicial expenses from the date of the offer. It is my view that this discourages unnecessary litigation so that courts and parties' resources can be focused on claims that genuinely cannot be settled. However, if coax protection was not lost, then where a pursuer fails to beat a defender's tender, this would seriously undermine the tender process and dilute the current incentive to resolve cases before going to court. My proposed amendment includes tenders made prior to the commencement of court proceedings to encourage an early settlement of claims to the benefit of the parties. In terms of amendment 8, this was about the summary dismissal. I do not necessarily agree that it should not be in there. What I have tried to make clear is that coax protection should be lost, where a pursuer's claim is summarily dismissed. I think that that is in line with Sheriff Principal Taylor's recommendations and, indeed, his evidence to the committee. I think that this would be a key protection against frivolous claims being brought. Moving on to amendment 10, the minister has clarified, if I heard correctly, that if the Government amendments are made, then there will be no need for amendment 10, in which case I would not seek to press that. In terms of amendment 17, this is about proposing that clinical negligence claims will not fall into section 8 until there is a pre-action protocol in place. Sheriff Principal Taylor recognised in his evidence that there was vital importance to pre-action protocols in so far as Interalia incentivise settlement and allow a focus on the claims that cannot be settled by the court. Members will remember that I was concerned in committee as to the cost of clinical negligence claims. It is my view that a pre-action protocol is required before implementing something, clocks, which, by its own definition, will increase claims. On that basis, I move amendment 4 and the attendant other amendments. Liam McArthur Thank you very much. I start by welcoming the progress that we have been making in relation to ensuring that the provisions do here to the Wendsbury principle. The minister said that Liam Kerr's amendments 4 and 5 do that. I think that 36 reinforces that and I very much welcome the progress that is made there. In relation to the points that Liam Kerr rightly makes about pre-action protocols and tenders, I read with interest the Lord President's submission, given that he raised his questions about my amendments. I have some reservations about siding with him in this instance, but I think that the concerns that he raises are perhaps legitimate. I think that the point that the minister made in relation to orders of court, again, seems to be not unreasonable. Obviously, we have got the potential should amendment 55 passed for post-legislative scrutiny of this. I think that there may be an opportunity there to say to the Lord President and colleagues that there is an opportunity over the coming years to have, through those orders of court and through subordinate legislation, an addressing of the very legitimate concerns that not just Liam Kerr but Sheriff Principal Taylor made. I think that, if the minister, in winding up, could be more explicit in that regard, it would give some of us that have sympathy with what Liam Kerr is trying to drive at through amendments 6, 7 and 8, that those will be addressed not just in the fullness of time, but in a time span that I think recognises the importance of getting this right. Thank you, convener. As I said, I am happy to support Liam Kerr's amendments 4 and 5, but I cannot support his other amendments in this group. I appreciate that the provisions of section 8 of the bill do not include on the face of the bill some of the criteria which Sheriff Principal Taylor recommended should lead, indeed, to a person losing the benefit of qualified one-way cost shifting. However, as the Lord President has clearly indicated in his letter to the committee, matters relating to tenders, settlement offers, pre-action protocols, summary dismissals are much better dealt with in rules of court, and that, indeed, is the normal practice. I hope that the committee agrees with the view of the Lord President in that regard. Responding to Liam Kerr's point, I am fairly confident that, if the provisions on post-legislative scrutiny, which are particular to this bill—we will get on to that when we get to that section—I am fairly confident that that perhaps will serve as a spur to action in perhaps a timetable that was maybe not the initial timetable scheduled. The question is that amendment 34 be agreed to, are we all agreed? We are all agreed. Call amendment 4, name of Liam Kerr, already debated with amendment 34. Liam Kerr to move or not move. The question is that amendment 4 be agreed to, are we all agreed? Yes, we are all agreed. Call amendment 35, name of the minister, already debated with amendment 34, minister to move or not to move? Not moved? Not moved. Call amendment 5, name of Liam Kerr, already debated with amendment 34, Liam Kerr to move or not to move. The question is that amendment 5 be agreed to, are we all agreed? We are all agreed. Call amendment 36, name of the minister, already debated with amendment 34, minister to move formally. The question is that amendment 36 be agreed to, are we all agreed? We are not agreed. Therefore, there will be a division. Those in favour, please show. Those against, please show. The question is that amendment 4 be agreed to, are we all agreed? No, we are not agreed. Therefore, there will be a division. Those in favour, please show. Those against, three in favour, eight against, amendment is not agreed. Call amendment 7, name of Liam Kerr, already debated with amendment 34, Liam Kerr to move or not to move? Move. The question is that amendment 7 be agreed to, are we all agreed? No, we are not all agreed. There will be a division. Those in favour, please show. Those against, three in favour, eight against, amendment is not agreed. Amendment 8, name of Liam Kerr, already debated with amendment 34, Liam Kerr to move or not to move? Not move. Call amendment 9, name of Liam Kerr, already debated with amendment 1, Liam Kerr to move or not to move? Move. The question is that amendment 9 be agreed to, are we all agreed? No, we are not all agreed. There will be a division. Those in favour, please show. Those against, three in favour, eight against, amendment is not agreed. Call amendment 10, name of Liam Kerr, already debated with amendment 34, Liam Kerr to move or not to move? Forgive me, convener. I can have some clarification. The minister was clear that if certain sections were accepted previously, I would not need to move this section. Have we already accepted the minister's amendments? I'll get some advice. I was looking for my actual physiology, but I understand that it's not now necessary in terms of what has just gone before, if that's any. That's what I'm trying to get at, so in which case not moved? Not moved, okay. The question is therefore that section 8 be agreed to, are we all agreed? Yes. I'm going to stop the consideration of the bill here and we will continue next week. Just suspend now for a change to allow the witnesses to leave. The appointment of an EU reporter. I refer members to paper 3, which is a note by the clerks. Pargraf 5, paper 3, outlines the role of the reporter and I now ask members if there are any volunteers or nominations to take up this appointment. I'd like to nominate Marie Gougeon. Marie Gougeon nominated. Are there any other nominations? There are no other nominations. I'm very pleased to say that Marie Gougeon is now the Justice Committee's EU reporter. Agenda item 8 is feedback from the Justice Sub-Committee on placing on its meeting on 22 February 2018. Following the verbal report, there will be an opportunity for brief comments or questions. I refer members to paper 4, which is a note by the clerk, and invite John Finnie to provide feedback. Thank you, convener. The Justice Committee met last Thursday, the 22nd, and we took evidence on Durham Constabulary's report and its investigation since the Police Scotland's former counter-corruption unit. We heard that evidence from the chief constable, Mr Michael Barton, and from Daniel Ellis, the senior investigator of Durham Constabulary. Mr Barton told the sub-committee that he had concerns about Police Scotland changing the remit from an investigation to an inquiry and concerns about obstruction, particularly from the legal department, and that he expressed the view that Police Scotland was risk aversed and endopped in relation to this had adopted an unnecessarily prolonged process. It's the intention of the sub-committee to hold further evidence, and we'll hear on the 15th of March from Police Scotland on this particular issue. We also took the opportunity to write to Police Scotland and the Scottish Police Authority to seek an urgent assurance that Police Scotland will not destroy any evidence or data until the applicants have consented. That relates to the information underpinning much of what we were discussing. I'm happy to take any questions. Thank you. Do members have any questions or comments, Daniel? To make a very brief comment, I thought that the evidence that we took was quite extraordinary, and I think that there are three key regards. First of all, it was refreshing to have such blunt and straightforward evidence that we received. Secondly, I think that there were a number of issues around prior police conduct. I think that there was the observation that evidence had simply been invented, which I think was quite extraordinary. Thirdly, I think that the conduct of Police Scotland with regard to the help or otherwise of the work that was being carried out by Durham I think was quite extraordinary. For those reasons, I would encourage all members who aren't members of the police sub-committee to look at the official report and look at the evidence that we took, because I thought that it was very significant. I wholeheartedly agree with Daniel Johnson. I think that we went in there with the impression that the evidence that we were going to receive was striking, but not only what we heard but the way in which it was presented took many of us a bit by surprise. Future witnesses will now be judged by the barterometer in terms of the evidence that they give, but I think that there are very serious questions for Police Scotland in the first instance, but probably by extension SPA as well. I think that, as Daniel Johnson says, it would be useful for other colleagues who aren't members of that committee to have sight of the responses that we get from Police Scotland and SPA in due course, because I am sure that that will be of interest to me. Can I add to the comments then? The most concerning of all was that it was an inquiry that was set about, and it turned out to be a review at the end of the day because of police interference, and clearly that wasn't acceptable. To the fact that the complainers who were the very essence of the probe to begin with seemed to be an afterthought in how Police Scotland dealt with it is a matter of huge concern, and there are, obviously, multiple areas to review, to look at and for the sub-committee to look at following the evidence session. John, do you want to come back and see it? Yes, it was on the particular expectation that the chief constable of Durham perhaps reasonably felt that the scope of what he was doing. I think that it's fair to record that that's not the position of Police Scotland, nor has it been indeed. That was the role, ultimately, undertaken by the Police Service of Northern Ireland. I think that there are issues to understand whether that is an unduly cumbersome operation, but the comments that have been made, certainly in relation to risk aversion, and what I took from it was the impact that that had on the victims of what was acknowledged of illegal behaviour by Police Scotland is an aspect that we have to look at. I think particularly the comments about the lack of co-operation from the legal department rather than because, as we know, the main people involved are no longer part of Police Scotland, and we have a new regime there, but we want certainly going forward to have full and frank disclosure of all the information, not selective, as we had historically. The points that John Finnie makes are entirely reasonable, and the additional concern in you, in a sense, is reference to the pastoral care for those who were, as Mike Barton suggested, gravely wronged by what happened. I don't think that there seem to have been any steps taken in the interim to engage with them, provide them or identify what support might be appropriate for them that had been left to Durham. I think that, when we've heard consistently from DCC Livingston about the issue around police wellbeing, being a priority and a concern laced through the policing 2026 strategy, it's difficult to reconcile that with what we've seen in this particular instance. I think that all of these issues will have an opportunity to return to in June. Thank you for those comments, which are duly noted. Formally, close the meeting. It concludes our seventh meeting of 2018. The committee will be meeting on 6 March 2018, when it will continue stage 2 of the Civil Litigation Bill and take evidence on alternate dispute resolutions. We now move into private session.