 The next item of business is stage 1 debate on motion 15169 in the name of Ash Denham on the damages, investment returns and periodical payments, Scotland Bill. May I ask those who wish to speak in the debate to press the request to speak buttons and I call on Ash Denham to speak to and move the motion for up to 11 minutes, please minister. Thank you, Presiding Officer, and I'm very pleased to be here today to open the debate on the general principles of the damages, investment returns and periodical payments, Scotland Bill. I'd like to thank the convener and the members of the Economy, Energy and Fair Work Committee for their insightful scrutiny of what is quite a technical, detailed and in places complex bill at stage 1. I welcome the committee's positive support for the general principles of the bill as set out in their report. I'd also like to put on record my thanks to the Finance and Constitution Committee and also the Delegated Powers and Law Reform Committee for their additional scrutiny and consideration. Like the economy committee, I too am grateful to all those who provided evidence on the bill. And finally, I'd like to thank the Government's actuary's department whose analysis and expertise has been invaluable in informing the bill. For some time, the personal injury discount rate has been the subject of criticism. Prior to 2017, concerns were raised by pursuer representatives that the rate was effectively undercompensating pursuers and a judicial review had been sought. Since the latest change, criticism has come from defender representatives and insurers on the basis that setting the rate by reference to returns on index-linked guilds intrinsically overcompensates many pursuers. There have also been criticisms relating to the duration between reviews, which have contributed to the scale of impact of any change, and concerns have been expressed about a general lack of transparency in the process. When we consulted about this issue in 2017 and asked if the present law on how the discount rate is set should be changed, 78 per cent of respondents agreed that a change was necessary. Some common concerns emerged during the various consultations, which were about fairness, clarity, certainty, regularity and credibility of the method and the process for setting the rate, and the bill attempts to address those points. There were also criticisms relating to the duration between reviews, which have contributed to the scale of impact of any change, and concerns were also addressed about a general lack of transparency in the process. When we consulted about this issue in 2017 and asked if the present methodology and what the bill would do, the bill would put into place a new statutory regime for calculating the discount rate, which should be applied to future pecuniary losses for personal injury cases. In providing new methodology, the bill requires the Government actually to assume that the damages awarded for future loss will be invested in a notional investment portfolio comprising set classes of investment asset. The portfolio has been designed to match the objectives and the characteristics of the hypothetical investor, also identified in the legislation. It is very encouraging that the committee welcomes the additional clarity and transparency provided by having the method for calculating the discount rate set out in the legislation and that they note that this was a view shared by most of the respondents to their call for evidence. As the bill stands, the rate will be reviewed every three years. Currently, there is no statutory requirement for the discount rate to be reviewed regularly, and it is clear that this lack of regular reviews is detrimental to all parties. In consultation, most consultees agreed that the rate should be reviewed on occasions specified in legislation. While taking account of the use of respondents, the Scottish Government decided that review should be carried out every three years, with the possibility of a review being instigated earlier if circumstances point to the need. That would provide a significant degree of certainty tempered with a proportionate degree of flexibility. Stakeholders have suggested that a three-year review settlement of cases may be delayed if one or other parties anticipate a more favourable rate coming into force. They argue that a five-year review period would go some way to address this issue, and the Scottish Government's imperative is that reviews must be regular. In their stage 1 report, the committee set out their view that reviews every five years would be preferable to every three years. As I outlined in my response to the stage 1 report, we listened carefully to those who gave evidence and to the conclusion of the committee that, in the interests of finding the balance between flexibility and certainty, five years would be preferable to three, in the words of the committee. I agree with the conclusion of the committee on that, and we will bring forward an amendment at stage 2 to alter the frequency of review from every three years to every five years. The facility to call for an out-of-cycle review will, of course, remain. Daniel Johnson In broad times, I accept that point, but could she outline some detail around the out-of-cycle review? In a regular five-year period, assumptions around investments can change radically, such as the turn of the millennium and the stock market crash that occurred at that point. Ash Denham Yes, the member makes a good point. Obviously, the point of this in general is to create conditions that meet the hypothetical investor and make sure that they get the right amount of money. At the end of the term, the money is exhausted, they are not overcompensated, but equally they are not undercompensated. The member is quite right to say as well that economic conditions can change very rapidly, and that is why, in legislation, we have the facility to have the out-of-cycle review. Should circumstances change, the Scottish Government will be able to review either the methodology, the distance between the rates, the frequency and so on. All of that can be reviewed in order to make sure that it still meets the need of the hypothetical investor. The 2017 consultation provided options for those who might set the rate, some involving ministers and some not. Overall, although there was more support for the options that did not involve ministers, the bill provides that the rate will be reviewed by the Government Actuary. The court will continue to have the ability to apply a different rate should they decide to. The policy decision to place the duty to review the discount rate on the Government Actuary is consistent with and integral to the overall policy aim of reforming the law so as to make provision for a method and process for setting the discount rate, which is clear, certain, fair, regular, transparent and also credible. The policy approach has been to regard the determining of the rate as an actuarial exercise in which there should be no need to exercise political judgment. The legislation will provide, in an accountable way, the framework in which the rate should be set and, thereafter, the mechanics of determining the rate. That will sit with an appropriate professional. The Scottish Government thinks that that strikes an appropriate balance. Currently, courts can only make periodical payment orders for future pecuniary loss, resulting from a personal injury if the parties consent. But periodical payments can be an attractive option in certain situations, providing a guaranteed payment year-on-year for the duration of an award. The bill, for the first time, will require courts to consider imposing this periodical payment provided that the source of the funding is reasonably secure. John Mason. I thank the minister very much for giving way. The committee had some concerns about the fact that the court could impose on a pursuer who, for various reasons, might not want a continuing relationship with the defender. Can she comment on that? Ash Denham. I thank the member for raising that point. We take account of that. There are many reasons why I pursue our aura defender that a PPO may not be suitable in those cases and we do recognise that. We also think that the court will take into account those. Both parties will be entitled to put their views about whether they see a PPO as being acceptable and then the court will take that all into consideration before they make their judgment. Minister, could you remember always to speak towards your microphone? The bill also provides for variation or suspension of PPO's and similar agreements. I note that the committee would like the Scottish Government to bring forward amendments to attach more weight to the pursuer's views when a court is asked to decide whether or not damages should take the form of periodical payments. I have set out the Scottish Government's thinking on the issue in my response to the stage 1 report. I will continue to give the issue further consideration. I also note that the committee asks the Scottish Government to outline how it will promote the use of PPO's beyond the public sector. The bill does, of course, oblige the courts to consider the use of periodical payments in every case. Again, I have responded to the committee on that point and I confirm that we intend to progress the matter with the Scottish Courts and Tribunals Service. We are also going to look carefully at the Ministry of Justice on what they intend to do on the same issue and see if there is anything that can be learnt from that information. The report made a number of other recommendations requiring action on the part of the Scottish Government. I intend to touch on those in my closing statement, but I very much look forward to listening to the debate this afternoon. In the meantime, I move the Damages, Investment Returns and Periodical Payments Scotland bill. I call Gordon Lindhurst to speak on behalf of the Economy, Energy and Fair Work Committee for up to eight minutes, please. Thank you, Deputy Presiding Officer. I trust that all members present have read our stage 1 report, which is a classic of the genre. Although Neil Findlay is on this occasion not present to ask me a question about that particular line. Whether or not the stage 1 report falls within Mark Twain's definition of something that everybody wants to have read but nobody wants to read it, I wouldn't comment. I am sure that the minister will have read it and I thank her and her officials for engaging constructively with the committee. Personal injury cases may seem small in number but the impact for the individuals affected and their families is considerable. We are talking about catastrophic life changing events, compensation for which should be calculated in a fair and transparent manner. That is also a matter of concern to those who pay the compensation. The Association of British Insurers said that the current system was broken and saw the bill as taking a much more modern approach. They told us and I quote, we are therefore very supportive of this legislation which changes the framework for setting the rate to one that bears much more relation to what happens in reality. The minister has helped to set out the context and content of the bill so I will focus my remarks on the findings of the committee. We welcome the additional clarity as to how the discount rate is calculated. The discount rate, I should add, being the adjustment to compensation award to cover future loss. That welcome was shared by the majority of respondents to our call for views. However, with opinions split on the detail of the bill, pursuer representatives on one side and defender interests on the other. The pursuers felt that any investment risk added to other risks, such as the cost of care or of modifying accommodation. Risks that the victim of injury would not face had they not been wrongfully injured and on top of the risk or perceived risk in seeking legal redress in the first place. The culmination of those risks could, in their view, lead to undercompensation. From the defender perspective, the concern was that of overcompensation. That any discount rate not reflecting the ordinary prudent investment was unfair. That adjustments to include higher performing assets would result in better returns. That, as they saw it, was a blunt instrument. The committee recognises that the calculation of compensation is not an exact science. The approach is of a hypothetical investor with a notional portfolio for a theoretical period of 30 years. We have little information on actual investor behaviour, but the point is not what people do in reality. The point is to provide a standardised approach that works across a range of cases. The committee asks for more detail on keeping the 30-year figure under review. We do not always receive a response to committee report before the debate, but we did on this occasion. We can only hope that the minister's final example is not lost on her ministerial colleagues. Turning to the discount rate, it has several adjustments factored in, and those are intended to reduce the risk of undercompensation. They cover inflation, tax, investment advice and underperformance. On balance, the committee is satisfied with the approach. We are also content with the role of the UK Government actuary in setting the rate. That, we heard, was a technical rather than a political exercise, with accountability to be found in the setting of the framework for the legislation. We were also told about concerns of gaming the system, holding back or pushing forward court proceedings to suit the timing of a review. One suggestion was to work from when the claim was raised rather than the date it settled. We asked the Scottish Government to consider the merits of such a change. The minister's response was reflective, if rather sceptical, although she has not ruled anything out, and we appreciate that. For this is a complex policy area, and the impact on both the pursuer and defender must be appraised carefully. Let's not lose sight of what this bill is about. The Association of Personal Injury Lawyers told us, The award of damages is not an investment pot, it is not a reward, it is a sum of damages to look after somebody's needs for the rest of their life. I turn now to the review period. A review held in 2017 was the first for 15 years, and the outcome of that was not well received by defenders and insurers. The discount rate, as the bill stands, would be reviewed every three years, with a review of the portfolio preceding every regular review, and a ministerial power to call for out-of-cycle reviews. The committee considers this to be a suitably rigorous approach, and in the interest of balancing flexibility and certainty, we recommend a five-year review cycle. I am pleased that the minister agrees and is committed, as she has said today, to bring forward an amendment at stage 2. On the matter of periodical payment orders, we ask that more weight be given to pursuer's views. Periodical payment orders, or PPO's, are regular instalments paid over the course of time rather than a lump sum paid on conclusion of a case. The minister has said that she will reflect on the matter, and that again is welcome, as is her willingness to explore how barriers to take-up of PPO's can be overcome. We thank all of the witnesses who helped inform our scrutiny. We are content that the provisions of the bill are consistent and credible, that this change in the law balances interests of pursuer and defender. We look forward to further consideration of the points that I have outlined and that the minister has undertaken to look at in advance of stage 2. The author Ambrose Beers defined the future as, That period of time in which our affairs prosper, our friends are true and our happiness is assured. His was, of course, a sadonic take-on life, but the reality is that victims of personal injury face risk and uncertainty. They contend with trauma and long-term ill health often for lengthy periods of time, resulting from catastrophic injuries that they have suffered. They encounter a legal process that can often seem long drawn out. They should have a system of compensation that is fair, that is transparent. Deputy Presiding Officer, we commend the general principles of this bill. I call Dean Lockhart for around seven minutes, please. Thank you, Deputy Presiding Officer. Let me start by thanking witnesses for providing submissions on the bill and for those who attended in person at the three committee sessions dedicated to the bill. As the minister said, the bill is technical in nature, but it is an important bill that makes provision for a new statutory regime for calculating the personal injury discount rate to be applied for compensation awards in personal injury cases. Under Scott's law, the role of compensation is to put the injured party to the extent that a financial award can, as close to possible to the position that they were in before they were injured. When assessing the amount of a lump sum award, courts take into account the net rate of investment return that a claimant might expect to receive in respect of a reasonably prudent investment of that lump sum. That is referred to as the discount rate. The committee heard evidence, as mentioned by the convener and the minister, that both pursuers and defenders want to see a more stable, transparent and fairer method for setting the discount rate. When looking at how the discount rate should be calculated, the bill takes into account a number of factors. First of all, the bill seeks to define a hypothetical investor and to calculate the discount rate by reference to the following assumptions. First of all, the hypothetical investor will invest over a 30-year period. Secondly, the hypothetical investor will invest in a notional portfolio that is a portfolio made up of investments in a fixed class of assets. In addition to those provisions, the bill proposes a series of standard adjustments to be made to the discount rate to reflect the following, the impact of inflation, a deduction of 0.5 per cent to represent the costs of tax and investment advice in relation to the investment. And a further deduction of 0.5 per cent, which is referred to as the further margin to reduce the risk of undercompensation to the party suffering loss. The bill also provides for regular reviews of how the discount rate is set and gives courts additional powers to impose periodical payment orders. Deputy Presiding Officer, there was general consensus between defender groups and pursuer groups across a number of areas, including the need to update the system, the need to increase the availability of periodic payment orders and to give courts further powers in that area, and the need for regular reviews of the discount rate. On that point, the review of the discount rate, we are grateful for the Scottish Government following the recommendation of the committee to change the review cycle to a five-year cycle instead of a three-year cycle. However, the committee did hear different views in some particular areas of the draft legislation, and I would like to raise three of those areas where there was some lack of consensus in the evidence. First of all, with respect to the notional portfolio, there is some concern among defender groups that the notional portfolio is overcautious and is too highly invested in fixed assets that offer a lower return compared to higher returning investment in equities. The proposed notional portfolio assumes that only 20 per cent of the investment would be in equity investments, which is lower than a typical balanced investment portfolio. Historically, we have seen much lower interest rates on Government bonds compared to higher returns on equity investments. Daniel Johnson, I thank the member for giving way. I accept some of what he is saying, but does he also not accept that even the language that is being used to talk about a portfolio of balanced asset classes is language that many people being awarded these things will simply not be able to navigate? That also needs to be taken into consideration in terms of our so-called hypothetical investor. Dean Lockhart makes a fair point. That is why the further adjustments will come on to the 0.5 per cent to pay for professional advice in this area to ensure that the injured person has all the necessary professional advice. That is an important part of the protection mechanism that the bill puts into place. Defender groups acknowledge the fact that the Government will have to, through secondary legislation, change and update the notional portfolio on a regular basis to take into account market changes. With some time available before stage 2 of the bill, we think that it would be advisable for the Scottish Government to look again to stress test the composition of the notional portfolio to ensure that indeed it does provide the right balance of investments. The second area that attracted some different views was the further margin adjustment of 0.5 per cent. Defender groups have expressed concern that the further margin adjustment will increase compensation payments beyond the level of 100 per cent, which is the general principle. They argue that a cautious portfolio, which is already baked into the legislation, is likely to produce overcompensation, so there is no need for a further adjustment to deal with the risk of undercompensation. In the policy memorandum relating to the bill, the Scottish Government recognises that there will be a probability of overcompensation as a result of the application of this further adjustment of 0.5 per cent. While we understand the Government's approach to legislating in favour of a risk of overcompensation rather than risking undercompensation, we also have to recognise that that will come at a cost. The costs associated with paying more than 100 per cent of compensation will fall on insurers and ultimately their customers, medical professionals, the NHS in Scotland and other public bodies that self-insure. As a matter of public policy, if the further margin provision of 0.5 per cent is passed into law, we have to recognise that it comes at a cost. I will give way to John Mason. John Mason. I thank the member for giving way. Would he accept that it is inevitable that some people will be undercompensated and some will be overcompensated? It is not possible to exactly compensate everyone. Dean Lockhart. I think that that is a fair point made, although the vast majority of the evidence did side on the probability that overcompensation would be the likely result as a result of these new provisions. The third area where there has been some disagreement relates to the assumption that the hypothetical investor will hold assets for a 30-year period. A longer period of investment would increase the likely returns and therefore increase the discount rate. It was not obvious from evidence given to the committee why a period of 30 years should be used. We heard evidence to suggest that the average claim, the settled claim, could be much longer and last around 40 to 45 years. That led the committee to call on the Government to assess how the 30-year period would work in practice. We are grateful for the minister confirming that her department will keep under review the operation of the 30-year period of investment to ensure that in reality it does not produce a significant divergence in returns. I am literally about to wrap up. The Damgey's investment return and periodic payments bill is technical, but it is a vitally important one for those affected. We believe that that will provide greater clarity and certainty for everyone involved. Daniel Johnson. I would like to begin by thanking the clerks and members of the Economy, Energy and Fair Work Committee for their excellent work at stage 1 on the Damagey's investment returns and periodical payments bill. I would also like to acknowledge the many organisations and individuals who participated in the consultation process. At the outset, I would like to state that Scottish Labour welcomes the introduction of the bill. It is a bill that seeks to calculate personal awards of damages through the injury discount rate that is clear, certain, fair, regular, transparent and credible. Ultimately, what the bill is about is about providing security to those who have been injured through the actions of others, leaving them often with life-altering conditions and substantial life decisions to make. Members have already noted that this is a technical bill. At its heart, it is something fundamental and understandable. It is about protecting vulnerable people and making sure that we have a system that is in place that is fair and equitable so that they can make the decisions that they need to in very difficult circumstances. Importantly, it is also about finding the right balance so that our public bodies, in particular the NHS, do not incur unreasonable costs and liabilities. However, there is also an important point, which is that undercompensating can also lead to many of those bodies having large bills. If we undercompensate, if we give people too little in those circumstances, it is ultimate that the NHS, which often picks up the bill. While Labour agrees with the broad principles that are outlined in the stage 1 report, we recognise that there are parts of the proposed legislation that need to be robustly tested as the bill proceeds through stages 2 and 3. I would just like to outline 2 or 3 of those briefly in the debate. The first of those areas that require scrutiny is the make-up of this notional portfolio that we have already heard about. Concerns have been raised that it is too cautious, too focused on fixed assets at the expense of equities, even though equities would deliver a higher rate of return. However, I think that we need to strike a cautious note, in particular around the notion of a hypothetical investor. Although it is reasonable to assume that invulnerable people will invest, it is not reasonable to assume that they will become investment experts or that they should assume the risk, or indeed be required to be speculators. Clearly, it is not reasonable for them to put their damage award under a metaphorical mattress, but nor should we expect them to bet on the stock market and seek to base their future on that future speculation. Of course, the notional portfolio would need to be updated regularly to keep up with market changes, but it is unclear whether the Scottish Government or the UK Government's Actuary Department would be responsible for doing that. Likewise, it is unclear whether the series of adjustments that are set out in the bill would be adequate to cover the cost of inflation tax, investment advice or underpwns. Those are all the things that we need to test as the bill proceeds. I would also like to talk about the periodical payment orders, which obviously allow courts to make awards for future economic loss and make payments in a periodic manner and therefore increase their security. Indeed, we welcome that provision, which can mitigate some of the uncertainty associated with lump sums. In particular, for vulnerable individuals, that can provide welcome certainty. However, more weight should be given to the pursuer's views when a court is asked to decide on a PPO. Members have already raised that point. Ultimately, the bill should seek to empower those seeking compensation rather than taking away any more of their control. On the 30-year period, despite evidence suggesting that the average life expectancy following serious personal injury came with damages over 250,000, is 46 years, the bill assumes a hypothetical investment period of 30 years. Indeed, in our evidence, the minister stated that there is no authority on which to base that figure. It was chosen merely as a useful duration that was neither too short nor too long. It is important that the period is examined and must be carefully considered so that we reflect a payment period that is realistic. In conclusion, Labour welcomes the bill and supports the aim of creating a fair, transparent and credible personal injury discount rate. While it represents progress, the bill is far from perfect and the proposed legislation must be robustly tested and closely scrutinised as it moves forward. Changes in the areas that I have mentioned will help to strengthen the bill to provide greater security to those who have been injured through wrongful action while also protecting public bodies from unreasonable costs and liabilities. It will make sure that we have a justice system in place, a system that is fair and equitable. I look forward to following its progress as we proceed through second and third stages. Thank you, Deputy Presiding Officer. Thank you, Mr Johnson. Open debate, generous four-minute speeches. I call on John Mason to be followed by Maurice Corry. Mr Mason, please. Thank you very much, Presiding Officer. That has actually been a more interesting bill than I think some of the members of the committee might have anticipated. It may be a relatively small number of people who are affected, but how compensation is calculated is of immense importance. The whole question of a lump-sum settlement and how that will be invested is a very tricky one. There seems to be widespread agreement that the present system based on index-linked guilts needs modernising while keeping intact the fundamental principle of 100 per cent compensation so that neither party should gain nor lose. As an aside on the question of guilts, it seems to me that there is something fundamentally wrong when a saver gets a lower rate of interest than inflation. However, I accept that as a wider question beyond the scope of this bill. Overall, I certainly agree with the Government approach that we should move towards a cautious but low-risk portfolio. We have heard evidence from defenders, which includes insurers and the NHS, of the risk of overcompensation, and clearly that would hit the premiums of others taking out insurance or would hit the public purse in the case of the NHS. However, evidence from pursuers spokespeople raised the risk of undercompensation, and that is certainly not desirable when a person may have suffered horrendous life-changing injuries. In practice, a perfect balance with no risk of over or undercompensation is impossible to achieve, as there are always going to be uncertainties in those cases, for example with someone living longer and some shorter than had been expected. The Government has argued that we need a standardised approach, and I think that most witnesses and the committee agree with that. However, there are always going to be disagreements as to how a hypothetical investor will invest their lump sum, and whether the assumption of a 30-year period is reasonable, as others have indicated. I think that it is welcome that the Government has indicated that it is open to more than one rate if that seems to be needed, for example by having a 50-year and a 50-year rate as well. Particularly contentious, as others have mentioned for the defenders, has been the further margin adjustment of 0.5 per cent on the discount rate. On the one hand, that is seen as reducing the risk for the injured party, but on the other hand it is seen as moving away from the concept of 100 per cent compensation. We heard that the injured party or pursuer does take on a range of risks, including living longer than expected, higher inflation or stock markets plunging, as they did in 2008. On the other hand, if investments do very well, the pursuer might gain. Another very interesting area that my colleague Angela Constance is going to touch on is periodical payment orders, or PPOs. The discussion focused on whether we should move away from the current position where PPOs only happen when both parties agree. As an outsider looking on, PPOs can seem to be a very attractive option as they take away some of the injured party's risk, for example, of living longer than expected. However, we did hear arguments against PPOs, including the pursuer not wanting an on-going relationship with the defender, the financial solidity of the defender or the lack of it, possibly restricting the pursuer's need to spend more up front, for example, in relation to accommodation. Defenders may not like them as they add uncertainty to their own financial position, particularly to their financial statements. I think that the committee was reluctant to go the full way of giving the courts complete autonomy on this, which is why conclusion 10 suggests an amendment that would provide for statutory presumption in favour of the pursuer's preference. I note the minister's reluctance to limit the courts' ability to make the best decision, and I think that this is a point that we need to consider more after today's debate and at stage 2. In conclusion, I think that there is general support for this bill, the economy committee supports the general principles of the bill and I am happy to align myself with that position. I, too, along with my colleagues welcome stage 1 of this bill to Parliament. Suffering person injuries is never expected and no-one ever wants to be in the position where they must claim compensation for industry injuries caused by wrongful behaviour. Through no fault of their own, those individuals can find themselves in the midst of a confusing legal framework that does not always work in their favour. But it goes without saying that the framework for these cases must not only be in place but operate as clearly and fairly as possible, most definitely for the pursuer but also for the defender. That is how we can ensure that these individuals are treated sensitively and by a credible system. We can see that the current personal injury discount rate needs improvement. With a lack of frequent reviews, we have a process that can seem ambiguous and unclear to pursuers and defenders in these civil action cases. I hope that the introduction of this bill will see a helpful adaption of how the personal injury discount rate is calculated with careful consideration of periodic payment orders and how best to set the rate of return. I offer my appreciation for the work of the Economy, Energy and Fair Work Committee and its work generally. Its insightful analysis of the bill has offered the scrutiny that is needed. I hope that its recommendations will help to further mould this bill and make an end result of the works for everyone. I am in no doubt that the elements contained within the bill are well intentioned. The aim to make the current calculations of allocating compensation fairer and more efficient is clearly a necessity. Indeed, it can be a technically murky process for claimers, especially when they are facing what can be a very stressful period of uncertainty. We know that a few personal injury cases need a discount rate applied, but it is fundamentally still that the legal framework is absolutely clear for individuals and their family members, not to mention for defenders and their representatives. Making the legislation as clear as possible is in everyone's interest. I support the ways in which the bill will modernise exactly how compensation is calculated. It allows for adjustments to be made to the discount rate and opens the possibility for periodic payment orders or PPO's to be changed in certain circumstances. Whilst there are varying opinions on how beneficial this will be, the principle behind the method is most welcome. I believe that the bill will be better attuned than current legislation as to how pursuers behave, especially regarding how compensation is invested. Indeed, the idea of hypothetical investor, as stated in the bill, should encourage a more modernised framework that allows for greater flexibility for the injured party and also clarity. Of course, I believe that there are aspects that are worthwhile to examine in further detail. For example, the 30-year period for holding a pursuers asset is, for some, a lot long enough. Yet I recognise that this measure is designed to cover a broad range of cases and will regularly be revisited, which I hope will be this case as necessary. There is also a question of the extent to which the proposed investments and reductions can lead to under-or-over compensation. Indeed, the principle aim is to reward full compensation, not more, not less. The importance of that for those involved should never be underestimated. Neither is a pursuer nor a defender should be placed at disadvantage. With that in mind, I hope that the end result of the bill will allow the adjustments that accommodate the needs of each individual. That will lessen the potential risk for pursuers and will reduce the likelihood of being under-compensated. To conclude, Deputy Presiding Officer, I welcome stage 1 of this bill. While further insurances and examinations of certain aspects of the bill will be beneficial, I echo the support given by the committee. Finding a standard that can be implemented across the board, one that works for each case, despite their differences, is quite rightly our goal. Therefore, I hope that the proposed calculations for setting a discount rate will lead to a more credible and fair outcome for those who are affected by personal injury and giving clarity that each party deserves. The number of people directly affected by the bill is small. It is nonetheless crucial legislation, and we should always remember who's interests are at the heart of the bill. It is the people who have suffered an accident at work or a birth that did not go to plan or other. A lack of care or negligence by an individual or organisation means that they live with the tragedy of no longer being who they were meant to be or leading the life that they had worked for or had dreamed of. The minister helpfully puts the legislation into the context of a wider programme of reform, abiding by the principles of clarity, transparency and fairness, and I will return later to the importance of principles. The time that I have, I principally want to focus on periodical payment orders. The committee heard substantial evidence about the risks that victims of personal injury bear when compensation, particularly if received in a lump sum. No matter how good the legislation is, calculating an award for damages, particularly for future loss, is not and never will be an exact science, so the risk of undercompensation can be minimised but never removed. We also have to remember that damages are not surplus funds, they are meant to replace loss of earnings in future care costs. Professor Vass's advice committee of inflation-busting care costs and the unpredictability of life expectancy and the cost of specialised accommodation points to the advantages of a periodical payment order. The bill gives the courts for the first time the power to impose without the consent of either party PPOs, crucially where the continuity of payments is secure. However, evidence from Patrick Maguire from Thomson solicitors expressed concern about a victim potentially being forced to accept a PPO and how disempowering that could be for someone who has already suffered a catastrophic injury. The committee recommended that the Government bring forward amendments to give more weight to the views of the injured person and suggested a statutory presumption. The minister in her transparent and clear response to the committee said that she did not want to undermine the courts ability to make the best decision and the courts would inevitably weigh up the views of both pursuer and defender. Far be it for me to be disrespectful to our learned friends of the judiciary but neither should we be too differential either as we know that little in life is inevitable. That brings me back to the importance of principles. If we can't do a presumption and I'm not convinced that we can't, we should at least put some robust principles in the legislation relating to the views and voice of the injured person. The precedents are there, with the Adults Within Capacity Act and the Mental Health Care and Treatment Act, among many other pieces of legislation, where in this instance the Court of the Tribunal, after weighing up all the evidence, taking all the views, makes decisions, again in this instance, to infringe people's liberty but do so under the very clear obligation to listen to the views of all those impacted and demonstrate a wide range of principles. Let's not add to the feelings of powerlessness and of not being listened to that are all too frequent in the lives of those with significant disabilities, illness or injury. The minister went some way to recognise that when she acknowledged that periodical payment orders would not be for everyone as some people do indeed need that clean break from those responsible for their injury. I'm glad that she gave the commitment in chamber this afternoon to continue to consider this matter. Thank you, Presiding Officer. Thank you very much, Ms Constance. I call Jackie Baillie to be followed by Stuart Stevenson. Ms Baillie, please. Presiding Officer, as a member of the economy committee that scrutinised the bill, I'm grateful to have the opportunity to speak in this debate. Four minutes isn't a lot of time to develop elegant arguments, so I'll just... I can give you five. My goodness, I can't guarantee there'll be any more elegant, but let me cut to the chase and focus on two areas. Firstly, the discount rate and secondly, periodic payment orders. I appreciate the Scottish Government's intention, as other members have pointed out, is that there should be neither over nor under compensation for people made awards of personal injury. To the principle of 100 per cent compensation is right, albeit it might be difficult to achieve absolutely in practice. Those responsible for paying out compensation, the defenders, believe that the Government is being over generous in their calculations of what people with an award would do with their lump sum. Their view is that the Government is too cautious in their assumptions and investors should perhaps invest more in equities rather than fixed assets. Thereby, potentially maximising their return. Of course, that clearly carries with it a level of risk that, given the volatility of markets, might be considered to be much too high. Those representing pursuers, on the other hand, say that any portfolio should be based on no risk investment. Although I am minded to agree, I think that the Government's approach is sufficiently low-risk and cautious that I think that it strikes the right balance between the two competing interests. If we are being honest about that, most normal people with a personal injury award have probably never considered an investment portfolio before. They will naturally err on the side of caution, wanting to be sure that they have a secure return for their money and that the money needs to meet their needs well over their lifetime. I do note, however, that investors will do so based on expert financial advice. However, the Association of Personal Injury Lawyers welcomed the inclusion of standard adjustments on the face of the bill but noted that the amount for financial advice and tax was underestimated. It would be helpful, I think, for the minister to review that before stage 2. The second area that I want to cover is periodic payment orders. I welcome this, because many people with personal injury awards may have to live with the consequences of their injury for many, many years and will require varying degrees of long-term care. It is a useful way of dealing with someone's needs over their whole lifetime but is also flexible enough to be reviewed and adjusted if a person's condition deteriorates significantly. However, for some people with personal injury awards, the preference is to take a lump sum. That might be because they want to buy a house, they want to adapt an existing home, which all costs money, but it might also be because they have no faith in the organisation making the payment because they may have caused the injury in the first place. Whatever the reason, it is important for the court to be flexible and a combination of lump sum and periodic payment might be the best option for some. I would ask the minister to give thought to the committee's recommendations about giving more weight to a pursuer's views when the court decides on whether to award a periodic payment order. I am entirely with Angela Constance on that. I think that it is disempowering to somebody who has faced that degree of personal injury to have that choice removed from them. I heard and listened carefully to what the minister said to John Mason, but I am not convinced that the Government cannot go further in meeting the committee's recommendation. It would also be helpful if she would ensure that, if there is a requirement to vary a periodic payment order due to a change in circumstances, the pursuer does not need to bear the court costs of doing so. I think that that is an important principle that we would want to clarify. Presiding Officer, as others have said, this is a technical bill, but I think that the Scottish Government has by and large taken that balanced approach and in the main made the right policy choices. I am not letting them off the hook quite so easily because there are, however, always areas that can be improved. I look forward to the minister co-operating with the committee to ensure that we have a fair and transparent system of compensating those who have suffered personal injury. I call Stuart Stevenson to be followed by Gordon MacDonald. Mr MacDonald will be the last speaker in the open debate. I have not been involved in this bill thus far, but a number of aspects of it, and Jackie Baillie has touched on some of them and I will develop some of those points later. Gordon Lindhurst, as the convener, indicated the balance between the pursuer and the defender and the different views that there can be. It is worth saying that the phrase hypothetical investor is quite a good one because most people who will be in receipt of the kind of compensation that we are talking about here are not knowingly investors in anything. They are investors, of course, very often via their pension, but with realising they are. Many people have industrial life insurances, which were traditionally sold door-to-door, the money collected every week or they might have a life policy. I myself had one that I took out in 1975 and took the money out of 31 years later, almost exactly the period that we are talking about. The discount rate of just under sums was just under 6 per cent, but I have not taken account of the value of the insurance part of that, which would make the discount rate a little bit higher. Of course, that was before the crash and the discount rates now look rather different, but the bottom line is that the hypothetical investor about which we are talking is a pretty cautious beast and rightly so. Looking at the construction of the bill itself, Jackie Baillie used the phrase no faith in relation to periodic payments in the person paying. I think that that is a fair observation to make. The bill does talk about a court may not make an order unless it is satisfied continuity or payment can be reasonably secure. It then goes on below that to say that they must assume that it is secure when it is a Government that is paying the money out. However, the one thing that might not usually be added to the bill is that when the court decides that it is satisfied with a continuity payment, it should explain why it is satisfied so that if there is a different view, that view can be challenged. That is a technical point that protects the person who is in receipt of the compensation payment. There has been some discussion about the costs of tax and investment advice. I am a little bit dubious. I have the feeling that quite often it might be a bit higher than that in the real world. I am not quite sure that the 0.5 per cent is adequate to cover that. I do not speak directly and certainly, but I think that it is a question that would usually bear some. I will to somebody who I think is more than I. John Mason. John Mason. I was just to point out to him that we did have evidence to the committee, I do not know if you would agree with this, that perhaps the investment cost at the beginning would be higher and then less later on. Stuart Stevenson. I am absolutely sure that the member is correct, but that goes to the heart of how the compensation is provided in a lumped sun at the front or in periodical payments. Of course, the actual risks associated with the two is fundamentally different. Indeed, when Dean Lockhart said that a longer period's discount rate goes up, I felt that I did not agree. I think that the discount rate is what it is and that is the actual review, but certainly the discount cost goes up as the period increases rather obviously because there are more years over which the discount will imply if the Presiding Officer permits. Jackie Baillie. Just to helpfully supply him with the discount rate that he was looking for, the Association of Personal Injury Lawyers supplied us with that that it is between 1.5 per cent per annum. Stuart Stevenson. That is broadly what I would have expected, so I am obliged to the member for that. I just conclude, Presiding Officer, by saying that investors do come in all shapes and forms. I have over the years with my wife been an equity investor. We have twice lost all our money on a particular investment and in 2008 my bank investment dropped by 96 per cent. So being in the equities market does carry substantial risk. Indeed, ultimately, the investor in equities is the very last creditor to get paid and in fact may find themselves paying in if the shares are not paid up in value. Presiding Officer, I think that this bill strikes a very measured balance between the various options. It is one that I have looked at only in the last 36 hours for the first time. It strikes me as a very sensible piece of legislation, which I shall be very happy to support. Thank you very much, Mr Stevenson. I call Gordon MacDonald and then we move to closing speeches. Thank you Presiding Officer. As the stage 1 report states, a person can claim compensation if they are injured through the wrongful behaviour of another person or organisation. The role of compensation is to put the person to the extent that a financial award can as close to the position they were in before they were injured as possible. The damages bill is necessary, as the Association of British Insurers explained. The current framework for settling the discount rate is broken because, as a result of the damages framework and decision making by the courts, the way in which the rate is set bears no relation to what pursuers do in reality. We think that, broadly speaking, the old framework is broken and this new framework is a significant improvement. However, there are issues that need further consideration in this bill, especially in relation to lump-sump payment adjustments and periodic payment orders. It is a legal principle that a successful pursuer should receive 100 per cent compensation, no more and no less. However, in order to do so, broad assumptions are being made in relation to life expectancy, future care costs and economic conditions. The vast majority of claims are settled by a lump-sump payment that has to support an individual for 30 years or more. As a result, the bill requires a series of set adjustments to be made to the rate, calculated on the basis of the hypothetical investor investing in the notional portfolio. Those are the impact of inflation, a deduction of 0.5 per cent to represent the cost of tax and investment advice, and a deduction of 0.5 per cent to reduce the risk of undercompensation. The Association of Personal Injury Lawyers highlighted that, on the standard adjustment rate, two rates are proposed in the bill, one to reflect investment charges in tax and the second to reflect other contingencies. The suggestion in the bill is 0.5 per cent. The committee needs to look at this area in more detail, because the information that we have received suggests that the investment charges and the tax costs could be anything from 0.5 per cent up to 1.5 or 2 per cent. Part 2 of the bill gives quotes the powers to impose periodic payments. Currently, PPO's are only used in the most serious of personal injury cases, where compensation for future loss makes up a significant part of the award. There are only a few such cases per year in Scotland. Thomson's solicitors expressed concern about a periodic payment order being forced on an injured person. They stated that, when a person does not want a PPO and wants the choice of a lump sum but the court makes a decision for them, it can often be very difficult for somebody at the end of what is often an extremely wrong road to compensation as catastrophic injury cases inevitably are. The process of finally getting compensation is ultimately empowering, and a decision that is forced on a person in many ways disimpowers them, a caution against creating a situation whereby the decision can be forced on a victim. That is not necessarily the case for insurers, but a victim wants a PPO, they ought to be able to argue for that and a court can make a decision irrespective of an insurer's view. In future, if more personal injury cases result in PPO's being awarded, then consideration must be given to how people's changed housing circumstances can be funded. A person seriously injured may be forced to move home or require an extension to be built to their existing home. If they remain in their existing home, they may require adaptations to their house from ramp access, wider doors, lower kitchens or the installation of a wet room, all of which require a capital sum. If a periodic payment order is being imposed, depending on the size of the PPO award, they may not have the funds to meet the cost of the alterations. As Jackie Baillie has already stated, there may be a need to have a combined financing model in order to meet up-front housing costs. While I welcome the provision of the bill, including the greater use of PPO's, the concerns of pursuers or the representatives must be considered in moving forward. I now move to closing speeches. I call Daniel Johnson. Mr Johnson will give you six minutes, please. Thank you very much, Deputy Presiding Officer. I apologise for members. They are getting a double whammy from me this afternoon, and I hope that they do not seek damages as a result. I am working on the humour, Deputy Presiding Officer, in my new year's resolution. I would like to make a few brief remarks, reflecting on the comments of this afternoon's debate. First and foremost, I think that what we have heard loud and clear right the way across the chamber is the need for us to understand the requirements of the individual. The circumstances that people find themselves when they are awarded these damages are very often life-changing. The considerations that people are having to make, such as what we just heard from Gordon MacDonald in terms of changes to their homes or, indeed, we also heard from Angela Constance thinking about, essentially, having to consider not living the life that they expected to live. I think that that was very well put. The question, therefore, is what is reasonable for that individual to have to consider? What is reasonable in terms of the decision making that we are asking them to make? That is why I would like to touch on the hypothetical investor. I think that Dean Lockhart set out well the rational considerations that we might expect someone to make in terms of that notional investment portfolio and the balance that that might take. I think that we need to ask ourselves both in terms of what is the general understanding of investment and what decisions might people make. I would gently put it that people in these circumstances might not always make the most rational decisions. They are certainly going to be cautious, and we heard that from a number of members. However, the hypothetical investor in this situation is quite different. I think that we need to consider, as the bill progresses, whether we are dealing with the average or reasonable investor or whether we need a portfolio that also accommodates the unreasonable individual, the vulnerable person who might not make quite the right decisions. We have discussed a great deal this afternoon in terms of getting the balance right between under and overcompensation. I gently suggest that we should be seeking to err on the side of overcompensation rather than under to accommodate those things. I know that that is part of the calculation process, which brings me on to that point. John Mason illustrated some of his remarks on the challenge. If you look at in the past 20 years what a reasonable investor might have done, that has altered quite dramatically in quite short spaces of time. There was a time when gilts were absolutely seen as rock solid, a no-brainer investment, and that has been turned on its head in quite short periods of time in the last 20 years. Likewise, the equities market has been back and forth within my adult life. The requirement for the calculation to reflect those things would be agile and important. While I understand the arguments that have been made by the committee in terms of three years versus five years, it is important that we test that flexibility so that, when circumstances do change, black swan events, alterations in terms of those underlying market assumptions about what a reasonable investment looks like change, that it can reflect that change. In all of our living memory, we have seen those changes. That brings me on to the adjustment factors. I understand that it is impossible to put exact science behind it, but we need to test the amounts that are factored in for investment and tax advice that seems to be on the low side at 0.5 per cent. Again, that can change. We are seeing changes in the market as we speak with the increase of technology and the lowering of costs, so that needs to be reflected. I would also just like to touch upon the arguments that were made by both Angela Constance and Jackie Baillie about PPO's. I think that this is a really important point. It is something that has an awful lot of benefits and advantages for a great number of people, but we need to be sure that we are not being overly paternalistic. The presumption towards the pursuer's wishes is hugely important, but, as with much of the bill, it is clearly something that has to seek balance. I also instinctively feel that PPO's have huge advantages for people with particular vulnerabilities and the need for that certainty, which a lump sum might not be able to provide. I would also like to make the point that, for self-insured organisations and institutions, public bodies in particular quite often find themselves—again, there are advantages to them in terms of PPO's, as opposed to lump sum awards. My final point is just about gaming, which Gordon Lindhurst raised. That is possibly one of the key points that I would like to end on. That is a bill that seeks balance. It is one that seeks to speculate and understand against the myriad of different considerations, and some of those are not going to be predictable or understood. Above all else, what I think is important is that this bill does strike that balance and has the flexibility to continue to strike that balance in the future. I will end at that point. I understood what you meant if others did not. I would first like to join other members of the committee in thanking our clerking team for their typical diligence in preparing and supporting the drafting of this stage 1 report. I would also like to acknowledge the range of written and oral evidence that we have received as part of the process. The evidence has proved extremely useful in scrutinising the technical aspects of the legislation and providing members with an understanding of how the current law operates in practice. The bill has two major components, provisions relating to the application of the discount rate and those relating to a period of payment orders. Near the beginning of our report, the committee recognises a very simple concept that remains an important principle of our law. It is that the law requires that, where a person or body has acted wrongfully, they are liable to compensate anyone who suffers loss as a direct result. The straightforward maxim has global appeal, while it is intrinsically linked with Scotland and our legal system. It also has considerable influence across the English-speaking world and even beyond. In many ways it gets to the very essence of what we have been asked to consider in relation to damages. Many of the people who these provisions will touch on have been wronged, often significantly, and suffered considerable in the way that Daniel Johnson highlighted, often life-changing injuries and harm. In many cases, these individuals cannot work or have their ability to earn impaired. In the most extreme cases, they may be entirely dependent on care and support for the rest of their lives. There is a clear fundamental principle, the compensation of loss. How that compensation is exercised can be opaque. The pursuer, as the wronged party, is probably up at most in all our considerations. As Maurice Corry highlighted, no-one wants to be in a position where they must claim compensation for injuries or accidents caused by wrongful behaviour. However, it is incumbent for the reasons that members have highlighted that this Parliament insures an end result where the law will, insofar as it is possible, neither overcompensate nor undercompensate. We understand compensation to be a fair reflection of loss, but equally the committee has heard the dangers that overcompensation can cause. This is not a perfect science when we are considering a lifetime of injury, but we should at least begin with a solid regulatory framework that attempts to find that balance, because overcompensation will have an impact. In a successful personal injury action against the National Health Service, for example, compensation is necessary part of writing a wrong. To overcompensate, however, is not about making a required payment, but about a direct transfer of funds away from front-line services. We know that there are millions of pounds paid out in these cases by NHS Scotland every year, and as claims often take many years to process, the backlog of open cases against the NHS is expected result in payments of hundreds of millions of pounds over the years. Daniel Johnson, I thank the member for giving away, and given that he has got 78 minutes to speak, he may be able to thank me for it. On that point, would he also accept that the NHS does end up picking up the bill if there is undercompensation, because it has to bear the brunt of the additional health costs that may be incurred when the individual comes back to them if there is an undercompensation? I thank the member for that intervention, and I think that he is right in a number of cases that it can be the NHS that picks it up, not in all cases but certainly in some. In actions against business, the effects often extend wider. Inevitably, insurance bears the burden of payment in these cases, spreading the consequences beyond the defender and rippling through the wider economy. We should be rightly cautious in how the discount rate is applied in principle and in practice. Our recommendations readily acknowledge the importance of the rate to individuals and their families. The bill sets out the means by which it will be calculated. As some members have touched upon, we have considered the impact of a 30-year assumed period, as well as the assumptions around investor prudence. The minister's responses in those areas have been welcome. The committee recognises that almost all respondents to our call for evidence were supportive of the provisions around periodic payment orders. As Jackie Baillie and Angela Constance highlighted, we looked at the flexibility available to pursuers and recommended that the Scottish Government consider approaches that will offer a greater reflection of the pursuers' views. The minister has suggested that this will impact the ability of courts to look at the situation in the round. It will be interesting to see how those issues are considered at the latter stages of the bill. I have already touched on some of the openings given by my colleague Gordon Lindhurst, but it was interesting to hear both him and Dean Lockhart comment on some of the areas where both the defenders and the pursuer groups agreed and also disagreed on the bill as it went forward. Gordon Lindhurst, as convener of the committee, also highlighted that there is little evidence of what the actual investor does, but we are based on a hypothetical investor all the way forward on that. Presiding Officer, the committee has made our recommendations that the general prince of the bill be agreed to. However, I recognise that there has been a significant divide in the evidence that the committee has heard. This, we have recognised, can be crudely divided into arguments in the pursuer's interest and those in the defender's interest. I mentioned this solely as a caution, assuming the bill proceeds today that as an effective balance will have to be struck in any future amendments. In the minister's response to the report that the committee received last week, there is clearly areas still to develop. Notably, I welcome her commitment to further careful consideration in relation to calculating the discount rate with reference to when a settlement is reached. While I accept some of her reasoning, there is still potential to remain scope for gaming actions by extending out timescale for claims. I will watch with interest how the Government approach develops. I gently remind members to use full names when referring to other members in the chamber. I now call Ash Denham to wind up half of the Government minister if you can, but you do not have to until decision time please. I will try my best to get the timing right. I have listened with great interest to the debate this afternoon and the contributions from across the chamber, which I think were very reflective and thoughtful as well. I welcome the general support that has been expressed for this bill. The fundamental aspiration of the bill is to ensure that the fairness, clarity, certainty, regularity and credibility of the method and the process for setting the rate. I am very pleased that the committee supports those general principles and that the committee is content that the provisions in the bill have been framed in the interests of achieving that fairness and regularity across a range of cases and for both sides of the argument. As the faculty of advocates have commented, the bill balances the interests of parties. It is clear that the committee and also in the chamber today in its scrutiny has recognised that the process is not an exact science. Although much has been made of actual investor behaviour, I very much welcome the view that I share with myself, the point that it is not what pursuers actually do but providing a standardised approach that can work in the interests of fairness, regularity and credibility across a whole range of different cases. Fortunatly, there will be very few people in relative terms who will be affected by either the discount rate or periodical payment orders. For those who have suffered often catastrophic injuries, which changed their lives forever, this bill is incredibly important. I mentioned in my opening statement that, if time allowed, I would like to turn to some of the other recommendations that are contained in the stage 1 report and I will just address a few of those now. I note that the committee believes that there is merit in applying the personal injury discount rate, which was enforced at the time of the claim was raised, rather than the discount rate at the time the claim is settled. That was raised by Gordon Lindhurst in his speech. In this way, the committee would hope to avoid the deliberate delaying of a settlement on either the part of the pursuer or the defender that is sometimes known as gaming when a change to the rate is anticipated in order to obtain a more advantageous outcome. I have to say that I am not entirely convinced by this at the moment, but I listened carefully to what the member said. He is right to note that I have not ruled anything out at this stage. I will reflect further on this. I will give it some careful consideration and see if there is a potential way forward on this matter. The Motor Insurers Bureau was also raised in the report. In terms of undertaking to report back to the committee in 12 months on the outcome of our consideration of whether the Motor Insurers Bureau can be designated as a reasonably secure body, as I indicated in my response, I would be happy to do so. The committee also wanted to know more about what would trigger a move to more than one personal injury discount rate, and John Mason raised that in his very reflective speech. As I set out in my response to the committee ahead of each review, the Government, Actories, Department or GAD will check the returns on the portfolio over the different time periods, probably at 10 to 15 years and also a time period of 50 years. If the outcome of that exercise demonstrates a significant divergence in returns, that would point to the use of more than one rate for different lengths of award being more appropriate in the pursuit of the goal of 100 per cent compensation. Is she still committed to that principle? There have been some suggestions. Dean Lockhart feels that overall we are heading towards giving more to the pursuer. Daniel Johnson suggests that we are going the other way and there is too much risk for the pursuer. Does she feel that we are still getting this balance right? I thank the member for that question and the Government. We are committed to 100 per cent compensation and some of the other points that the member has just raised I will come on to address later in my summing up. For both the choice of assumed investment period and the potential use of split rates, GAD have cautioned against setting out an approach that is too formulaic in this point, as that would be what they call—this is their word—spurious accuracy. The interpretation of the outcomes will therefore require the use of judgments rather than the application of a formula, but I would like to reassure the chamber that, if the evidence points to the need for it, I am open to considering that option. Some of the other issues that were raised during the debate, which was raised by both Dean Lockhart and Daniel Johnson, was the mix in the portfolio or the notional portfolio. In the 2017 consultation, a small majority were of the view that the most suitable investment approach was that of the mixed portfolio, balancing a number of low-risk investments. They believed that it was closest to actual pursuer behaviour in the real world. It has been the result of extensive analysis, both by GAD and by an investment research firm, so I would like to assure the chamber that it has already been looked at carefully and tested extensively and that it will be kept under review. Daniel Johnson I very much appreciate the minister giving way. I wonder what her reflections are on my point. Is it all well and good coming up with a portfolio for a reasonable investor? What about the unreasonable investor and safeguarding vulnerable individuals? I think that the member is right to raise that, but I think that the member must also accept that this is a proxy. It is intended to apply across a very broad range of cases. We also do expect that the hypothetical investor—in fact, we expect them to do this—will take investment advice when they are looking at their lump sum, so we expect them to be advised and we expect them to take that advice and to use the notional portfolio for that purpose. Another issue that was raised by a number of members was on PPO's. That was mentioned by Angela Constance in a speech that reminded us all of why this bill is so important. It was also raised by Jackie Baillie in her contribution as well. I would like to assure the chamber that I listened carefully to the points that were raised by both those members and other members on the point of PPO's what more the Government could do in order to increase their uptake. The point that Jackie Baillie made about putting extra weight on the pursuers' views on PPO's, I will reflect on those points and see what the Government is doing could possibly be strengthened for stage 2. There have been not unsurprisingly polarised views on the shape of those reforms, which are essentially split along the lines of the pursuer or of the defender interests. It is clear that, although the principle of 100 per cent compensation must and does remain key, there are many issues aside from the personal injury discount rate that can impact on achieving it. Any investment comes with a degree of risk and the Scottish Government accepts that there is always a possibility of under or over compensation. I am glad that the committee is satisfied with our approach, which is to apply adjustments to the aim at reducing the risk of underperformance and reducing the probability of undercompensation. The bill will also remove the exercise of determining the rate from the political arena, where there is the potential for pressure for external interests to attempt to influence the outcome. The review of the discount rate will be firmly focused on ensuring that those who have suffered loss and are awarded damages for future pecuniary loss receive the full compensation, neither more nor less. That should provide fairness to all parties involved. The Government actually will publish his reasoning in pursuance of professional standards, along with a rate ensuring the transparency of the process. As the Association of Personal Injury Lawyers in their written evidence to the committee said, we agree entirely with the Scottish Government's approach of removing the possibility of political influence over the setting of the rate. There is no legitimate reason or necessity for political involvement. Setting the discount rate should be an actuarial task and not a political one. At the most fundamental level, the bill will ensure that reviews are carried out regularly, which should in turn ensure that the impact of change is minimised. Finally, the provisions around periodical payments, we hope, will encourage the use of periodical payment orders, as well as provide the courts with powers to impose them where they consider the circumstances to be right. I thank the members for their contribution to what has been an interesting and informative debate. I also thank them for their support of the principles of the bill. That concludes our debate on the damages, investment returns and periodical payments Scotland bill. It is now time to move on to the next item of business. After decision time, we will move on to a member's business debate on motion 14126, in the name of David Torrance. Before that, we will come to decision time shortly. There is one question to be put as a result of today's business. The question is that motion 15169, in the name of Ash Denham, on the damages, investment returns and periodical payments Scotland bill, be agreed. Are we all agreed? We are agreed, and that concludes decision time. We will move on to members' business in the name of David Torrance, but we will just take a few moments for members and ministers to change seats.