 Welcome to the Justice Committee's 34th meeting of 2017. Agent item number one is consideration of four negative instruments. I refer members to paper one, which is a note by the clerk. The first instrument is first tier tribunals for Scotland housing and property chamber procedure regulations 2017 SSI 2017 oblique 3 2 8. Do members have any comments? Thanks, convener. Just looking at the response from the DPLR committee in relation to this amendment, I know that we've had issues, as other committees have, with drafting errors that subsequently have to be tightened up and dealt with. I can't recall having seen a comment from the DPLR committee or its predecessors that went quite as far as to say that it's highly unsatisfactory for the instrument to have been laid before Parliament in its present form. The committee's role is not to provide a substitute for internal checking by the relevant Scottish Government Department. The committee urges the Government to examine its quality control procedures to avoid laying instruments containing so many errors in future. I recognise that those have subsequently been addressed, but it is something that we should lend our support to the representations that the DPLR committee has made, because I think that this is wholly unsatisfactory. I agree to do that. It isn't a new issue. As Liam said, it's actually resulting in the Government having to lay another instrument, so it is something that must be looked at. We keep saying that, but at least the DPLR seems to be picking up on it and really being very robust on its scrutiny. If there are any no more comments, the committee agreed that it does not wish to make any recommendations in relation to the instrument. The second instrument is the first-tier tribe for Scotland housing and property chamber rules of procedure amendment regulations 2017, SSI 2017, Oblique 369. Do members have any comments? No comments. The committee agreed that it does not wish to make any recommendations in relation to the instrument. The fourth instrument is the first-tier tribe for Scotland general regulatory chamber charity appeals procedure regulations 2017, SSI 2017, Oblique 364. Do members have any comments? No comments. The committee agreed that it does not wish to make any recommendations in relation to the instrument. The fourth instrument is the first-tier tribe for Scotland health and education chamber procedure regulations 2017, SSI 2017, Oblique 366. Do members have any comments? Is the committee agreed that it does not wish to make any recommendations in relation to the instrument? We will suspend briefly to allow the minister to come in. Agenda item 2 is consideration of two affirmative instruments. Criminal Justice Scotland Act 2016, consequential and supplementary modifications, regulations 2017 draft and Criminal Justice Scotland Act 2016, modification of part 1 and ancillary provision regulations 2017 draft. I welcome Michael Matheson, Cabinet Secretary for Justice and his official Stephen Tyre, Police Power's team, Scottish Government and Louise Miller, directorate of legal services for the Scottish Government. I refer members to paper 2, which is a note by the clerk. Cabinet Secretary, do you wish to make a shorter opening statement? I hope that it will help if I can briefly explain the purpose and effect of the instruments. I begin with the Criminal Justice Scotland Act 2016 modification of part 1 and ancillary provision regulations. Part 1 of the act represents a significant change to the system of arrest and holding people in custody. The new arrest and custody processes contained within part 1 will provide a clear balance between the proper investigation of offences and the protection of suspects rights whilst in police custody. Although the majority of arrests are of people suspected of criminal offences, the police have powers to arrest for other reasons that are not related to a criminal offence. For example, an arrest for a breach of a protective court order or a witness arrested for failing to attend court. For those types of arrests, not all the provisions that are set out in the act are appropriate. For example, it would not be appropriate to take a witness arrested for failing to appear at court to a police station rather than directly to the court itself. Similarly, the requirement to tell someone that the offence that they have been arrested for clearly does not make sense for arrests that do not relate to an offence. For this reason, as I have set out during the passage of the bill, some limited modifications to the arrest provisions are needed for non-offence-based arrests. The modifications that are made by the regulations will ensure that individuals in those situations are dealt with appropriately. For example, by requiring them to be told the reason for their arrest rather than the offence for which they have been suspected and by discipling the provisions that allow people to be held in investigative custody where the person is not being held on suspicion of an offence. The regulations will also ensure that people arrested for breaches of protective orders will continue to be brought before the courts under specialist provisions that apply to those, rather than under section 21 of the 2016 act. They will also ensure that where rights given to everyone in police custody under part 1 of the 2016 act will apply, all provisions that partially duplicate those in relation to particular types of non-offence arrests are removed. For the information of the committee, a full public consultation was carried out in relation to those regulations and a draft of the regulations was included in the consultation. Although the consultation only received a small number of responses, it was positively commented on by various interest groups, including the Law Society and Scottish Women's Aid. In turn to the Criminal Justice Scotland Act 2016, consequential and supplementary modifications regulations. Those are mainly technical amendments that are consequential to the 2016 act. For example, they formally repeal all powers of arrest, which are abolished by section 54 of the act. They also remove statutory reference to detention under section 14 of the Criminal Procedure Scotland Act 1995, which is abolished by the 2016 act. Paragraph 12.3 of the schedule adds the sheriff appeal court to the list of criminal courts in respect of which the law justice general may make directions enabling certain appearances of an accused to be by live television link. All the other criminal courts, the high court, sheriff court and justice of the peace courts, are already included on the list. The mission of the sheriff appeal court is purely down to timing as the bill, which became at the 2016 act, was introduced before the bill, which established the sheriff appeal court. The amendment therefore plugs a gap in the provisions relating to live links. This gives a very brief overview of the regulations and their context, and I am, of course, happy to answer any questions that the committee may have. Do members have any questions or comments on the SSIs? No. That being the case, we will move to agenda item 3, which is formal consideration of the motions in relation to their fermentive instruments. The Delegated Powers and Law Reform Committee has considered and reported on these instruments and has no comment on it. The motions will be moved with an opportunity for formal debate, if that is necessary. The motion is motion 08837 that the Justice Committee recommends that the Criminal Justice Scotland Act 2016 consequential and supplementary modifications regulations 2017 draft be approved. Cabinet Secretary, you moved the motion. Do members have any comments? No comments. The question is that motion 08837 in the name of Michael Matheson be approved. Are we all agreed? We are agreed. The second motion is motion 08838 that the Justice Committee recommends that the Criminal Justice Scotland Act 2016 modification of part 1 and ancillary provision regulations 2017 draft be approved. Cabinet Secretary, will you move the motion? Moved. Do members have any comments? No comments. I put the question there for that motion 08838 in the name of Michael Matheson be approved. Are we all agreed? We are all agreed. Is the committee content to delegate authority to me as convener to clear the final draft report? That being the case, I thank the cabinet secretary and his officials for attending and suspend briefly to allow for a change of officials. Agenda item 4 is consideration of the Domestic Abuse Scotland Bill at stage 2. I refer members to their copy of the bill and the marshaled list of amendments for this item. I welcome back the cabinet secretary and his officials. I also welcome Linda Fabiani to the meeting. The marshaled list is section 1, relationship context of offence. I call amendment number 1 in my name, grouped with amendment 2. I move the amendment and now speak to both amendments in the group. Those amendments were prompted by evidence that the committee heard from Scottish Women's Aid at stage 1 when Heather Williams, giving an example of psychological abuse, stated. If I meet you in a shop and say, I notice that your son has got a new bike, I hope that he does not have an accident, that might appear to be a reasonable conversation. However, it could set off a lot of distress if, in the context of the relationship, you are threatening me and saying that if I leave or do anything that you are not happy with, you will hurt my son. When taken in full context, we can understand why it would cause harm and distress. I consider that evidence to be absolutely crucial, as it seems to me that in order to understand and recognise whether behaviour is deemed to be abusive or likely to cause someone to suffer psychological harm within a domestic relationship, it is absolutely essential that that behaviour is looked at within the context of that relationship. In some circumstances, behaviour may not appear to be threatening or intimidating. However, once the context of the relationship between A and B is taken into account, the behaviour may be seen as an entirely different light. Amendments 1 and 2, which have the support of Scottish Women's Aid, therefore insert in the context of the relationship between A and B into section 1 of the bill. I have already moved the amendments in my name. Do members have any comments on those two amendments? Amendment 1 and 2 relate to the new offence of domestic abuse and are, as I understand it, intended to address an apparent concern that has been raised during stage 1 scrutiny. That concern is that the operation of the offence does not acknowledge that relationships between partners are, by their nature, different and so behaviour occurring within the context of one relationship may be construed quite differently than the same or similar behaviour occurring within another different relationship. I can see that the amendments are obviously well intentioned. I would like to explain why I do not think that they are required and, indeed, may confuse how the courts should be approaching consideration of the new offence. First, I would like to briefly confirm how the new offence operates so as to explain in context why the amendments are not necessary. It is clear already in the wording of section 1 that the offence concerns a course of abusive behaviour within the context of a relationship between a person and their partner or ex-partner. It is important to consider the definition of abusive behaviour at section 2. That provides that behaviour, which is abusive, includes behaviour that is violent, threatening or intimidating, and it is hard to imagine any circumstances when such behaviour would not be abusive. The amendments are unnecessary in relation to those aspects of abusive behaviour. However, as members know, the definition of abusive behaviour also includes behaviour that is likely to have one of the effects on the complainer as listed at section 2.3. It is important to keep in mind that the question here is whether the accused's behaviour is likely to have one of those effects on the actual complainer in the case, as opposed to a hypothetical person. That means that the court is required case by case to have regard to the context of the relationship between the accused and the complainer in reaching its decision on the evidence. For example, where the accused's behaviour was likely to have the effect of frightening, humiliating, degrading or punishing the particular complainer in question. It is also important to bear in mind that the court is required to consider whether a reasonable person would consider the accused's behaviour is likely to cause the complainer to suffer physical or psychological harm and not whether it would be likely to cause a hypothetical victim to suffer such harm. Let me give the committee an example. If the court accepts evidence that the relationship between the accused and the complainer was characterised by, for example, being very argumentative and the use of strong language by both parents and partners that others might consider abusive in a general sense, the court may reach the conclusion that, given the context of the relationship between the accused and the complainer, the accused's behaviour was not likely to cause psychological harm to the complainer. Again, that turns on the likely effect on the particular complainer in question rather than a hypothetical victim. Nevertheless, that depends on what the court believes a reasonable person would conclude as likely to affect the complainer in question. That ensures the right measures of objectivity, too, as the evidence is assessed case by case. I hope that that provides reassurance that the bill, as introduced, requires a court to have regard to the whole context of the relationship between the accused and the complainer in deciding whether it provides that the offence is committed. I am happy to give way to the member. Cabinet Secretary, your examples have all related to interpretation by the court, but, of course, there is a step prior to that, and that is the involvement and the police in any instance. In the particular phrase that the convener used, where you or I to use it to someone would be seen as very innocent, the difficulty is perhaps that a woman who is the victim of such an approach may have difficulty convincing the police that this is something that is unreasonable. Is that not what the challenge is? It is not the court's interpretation that is actually getting the issue to court. No, not necessarily, because in relation to the legislation that we applied, it will be for the courts to decide on how that is to be interpreted, and that is why the balance within the actual offence is set out in the way in which it has within the bill, so that the whole context of the relationship is taken into account in considering the matter. I finish what I have to say on the rest of the amendments. The amendments reiterating that the offence takes place within the context of a relationship between partner or ex-partner are simply not needed. Let me make some further brief points on the amendments. The addition of the words in the context of the relationship between A and B in two places within section one adds no true legal effect to what is already addressed by the provisions when read as a whole. I am also concerned that the additional words are liable to cause confusion. Indeed, I am not quite sure precisely what the additional wording being added are truly qualifying in each place. The amendments also perhaps beg the question when would abusive behaviour between partners and ex-partners not be in the context of the relationship? Would it ever be possible to separate out relationship abuse from non-relationship abuse when abuse is occurring between people who have a continuing relationship or once had a relationship? Finally, if the convener is intending to provide for an objective overview of what is reasonable in a typical relationship context between two hypothetical people, the amendments do not achieve that. That is because they refer to the particular relationship between person A and person B. In any event, the nature of what amounts to abusive behaviour within the context of a particular relationship is already covered, as I have explained. In addition, it is worth reminding members that the defence in section 5 of the bill is part of the checks and balances designed to ensure that no one is unfairly criminalised by the new offence. On that basis, and in those comments, I invite the member to withdraw amendment 1 and not to move amendment 2. I take his last point first, perhaps, that it is likely to cause confusion. You cannot imagine what relationship, the type of relationship that we are looking at here, is an abusive one with the issue of psychological harm, which can be quite hard for people to get their head found. There are two types of relationships—non-abusive and those that the legislation seeks to address. That is where the context is all important, and I think that it greatly adds to the understanding of the bill. In all your explanations, cabinet secretary, you have mentioned context constantly, yet it is not on the face of the bill. The amendment merely serves to make the legislation the best it can possibly be and to aid the understanding of psychological abuse, which, by referring to context, suddenly makes it quite clear and makes it totally evident what psychological behaviour is. I am going to ask the cabinet secretary to reflect on that before. I will give an example on the trafficking bill, in which we constantly asked for amendments on it, and it is statutory. Eventually, we got those amendments for the very purpose of strengthening and making the bill a better bill. I am not going to move them, but I would very much welcome further discussion with them to see whether we can come to a meeting of minds. For me, context is all important to making sure that the bill is going to achieve what we all desperately want to see it achieving. I just say to him that, having had a very lengthy discussion with Women's Aid, who brought that evidence up, they are very much of the same opinion. If the cabinet secretary is happy to discuss the issue further with me, I will not press the amendment at this stage. I am always happy to discuss matters with the committee members in relation to improving legislation. However, the nature of the discussions that we have had with Scottish Women's Aids is slightly different from those that the member expresses, but I am more than happy to have a discussion with her before stage 3. The cabinet secretary said that I have had the same discussion as earlier, half an hour before we came into committee. Obviously, there is some mis-in-communication. I will not press the amendment. Is the committee content to accept that I would draw amendment 1? Thank you. And call amendment 2 in my name, already debated and not moved. The question is that section 1 be agreed. Are we all agreed? The question is that section 2 be agreed. Are we all agreed? Right. Moving on to extra territorial jurisdiction, call amendment 3, in the name of the cabinet secretary and a group on its own. Cabinet secretary, to move and speak to amendment 3. Amendment 3 inserts a new section into the bill, which provides the Scottish courts with extra territorial jurisdiction in respect of offences of domestic abuse. Members will recall that the issue was raised by Scottish Women's Aid in their evidence at stage 1. They emphasised that, in their view, it was necessary to provide Scottish courts with extra territorial jurisdiction over the domestic abuse offence to comply with the Istanbul Convention on Violence Against Women. The effect of our amendment is to provide that where a UK national or habitual Scottish resident commits the offence wholly or partly outside the United Kingdom, the Scottish courts have jurisdiction to deal with the offence. That is particularly important, given that the offence is constituted by a course of behaviour that can occur over time in various places. The amendment also provides for which sheriff court is to have jurisdiction if the offence is committed wholly outside the United Kingdom. Existing jurisdictional rules will apply where the offence is committed partly abroad and partly within Scotland. Simply put, the offence can be tried in a sheriff court district where the Scottish part of the course of conduct took place. The amendment does not make provision where the offence is committed in other jurisdictions of the UK. That is because where an offence occurs partly in another jurisdiction of the UK, there are common law rules concerning offences committed across the different jurisdictions of the UK that will enable those elements of a course of conduct, which happens in another part of the UK to be included in the charge. For the avoidance of doubt, where the behaviour occurs wholly in another jurisdiction of the UK, we think it appropriate that it should be prosecuted in a court in that jurisdiction. I move amendment 3. Do members have any comments? Perhaps I could ask the cabinet secretary for an example of the kind of extraterritorial jurisdiction behaviour that might be covered by this amendment? It could be, for example, say for a partner or a couple where in holiday in Spain, and a course of abusive behaviour took place there. They then returned back to Scotland, and when they made a complaint to the police that was being investigated, they made reference to the behaviour that took place that occurred out with Scotland. In that case, it would be allowed to be, they could then take it into account when they were considering the complaint and how that would then be presented within court. And the jurisdiction would be worldwide? In what sense? Where are we looking at extraterritorial jurisdiction? Yeah, it doesn't have to be anywhere in the world where that course of behaviour happened. It doesn't matter where it happens if it's out with Scotland or the UK, so it's not specific to any particular country. Yeah, you mentioned a country that was within the EU, that was all I was asking about. Any other comments from...? This is not dependent on where they remain within the EU or not. Well, that's good to know, will I have an ex-secretary? Of course, it's Dan Bull, a committee that's not part of the EU, so... Good morning. I just have a slight concern about the status of A, the perpetrator, so we've set out two categories. We have habitually resident in Scotland or a UK national. I completely accept that there needs to be a very real connection to Scotland and so I'm perfectly comfortable with the habitually resident in Scotland piece. However, it's my understanding and I'd be interested in your thoughts on this, cabinet secretary, that the modern statutes tend, if there's a nationality category at all, to limit it to British citizens. In other words, not the slightly wider definition of UK national that is in this, the British overseas territory citizen, British national or overseas citizen. Certainly my view would be that the best option is just to narrow this down to the to those habitually resident in Scotland at the time of committing the offence with a caveat that if it's going to be wider it should just be British citizens and I would just be interested in your thoughts on that. My understanding is that in order to comply with the convention has to apply to those who are habitual resident within the UK or UK nationals and that's the reason why it's being drafted in the way in which it is in order to comply with the requirements of the Istanbul convention. I see and that would include the so you've said habitually resident and British nationals and UK nationals and to comply with the convention that's why it needs to include the overseas territory citizen. Just following that up and for the purposes of clarity, in terms of that jurisdiction, if you're talking about a UK national as defined here, they may not be habitually resident in Scotland as subsection 3A refers to habitually resident in Scotland or is a UK national. We're not dealing with circumstances where somebody who is a UK national but resides habitually somewhere else in the UK commits the offence overseas either in whole or in part and then is subject to the jurisdiction of sheriff courts in Scotland. How is that delineated through this provision? I'm sorry, I'm not entirely with you, but what's up personally in your country? Somebody who's habitually resident somewhere else in the UK who commits the offence overseas either entirely overseas or in part overseas returns to the UK and finds themselves subject to a complaint. So if it's a UK national that commits the course of offence entirely out with the UK, then that can still be prosecuted within Scottish courts. If it's a UK national that commits the majority of that offence in another part of the UK out with the Scottish jurisdiction, then it can be prosecuted through the domestic courts. I'm probably not explaining this clearly. It was more in relation to that first example that you have a UK national who commits the offence overseas and the entire sequence of action takes place overseas, but that UK national is not habitually resident in Scotland. Presumably, that provision isn't about prosecuting an individual from, I don't know, Manchester or London or wherever in Scottish Sheriff Courts. If it was, for example, someone who was, say, for example, an ex-pat staying overseas who committed offence against someone who resided here in Scotland, and that was their habitual residence here in Scotland, then they could be prosecuted here in Scotland for that offence. If that clarifies the type of person who is thinking about it. Any more comments? This has been more of a Q&A because it's a technical point. Normally, we would take all the comments in a winner and then ask for the cabinet secretary's view. Anything further you want to say, cabinet secretary, in winding up? No, that's all. Okay, the question is that amendment 3 be agreed. Are we all agreed? Yes. We are all agreed. The question is that section 3 be agreed. Are we all agreed? Yes. We are all agreed. Aggregation in relation to a child, call amendment 4 in the name of the cabinet secretary grouped with amendments 5, 6, 7, 8 and 9. Cabinet secretary to move amendment 4 and speak to all amendments in the group. Members will be aware that the bill contains a statutory aggravation in section 4. This aggravation provides that if the accused in committing the offence involves a child in committing the offence then aggravation applies. A child can be involved in three ways. The accused directly directed behaviour at the child, the accused made use of a child in directing behaviour at their partner or ex-partner, and a child saw, heard or was present during incidents of behaviour forming part of the course of abusive behaviour, which constitutes the offence. The aggravation is intended to ensure that the harm caused to the children when they witnessed or are involved by the perpetrator in the abuse can be reflected by the quote when sentencing the perpetrator. Members have heard stakeholders representing children affected by domestic abuse express some concern that the aggravation as it stands in the bill does not reflect the harm caused to children by growing up in an environment where their parent or carer is being abused. That criticism has focused on those types of cases where a child is in the environment where the abusive behaviour is being carried out but is not directly involved as such and so the current aggravation would not apply. Examples of the kinds of harmful effect of domestic abuse on children that are not covered by the aggravation at present include coercive and controlling behaviour, which has the effect of isolating a child, as well as the primary victim from friends, family or other sources of support, or abusive behaviour that undermines the non-abusing parent or carer's ability to look after the child, for example by restricting their access to transport, limiting their ability to get a child to a doctor's appointment, or restricting their access to money, limiting their ability to provide essentials for a child or the harm caused when a child is unaware that the abuse is taking place, even though they never see it here or are present when the abusive behaviour is taking place. The stage 1 report noted those concerns and asked the Scottish Government to respond to evidence that the reference in the current approach to the aggravation being established where a child sees or hears or is present during an incident of abusive behaviour, which was too narrow. It was argued in this evidence that children in the care of victims of abuse are likely to suffer trauma as a result of that abuse, whether or not they directly witnessed abusive behaviour or abusive incidents, and that there is therefore an aggravation. Amendment 4-9 responds to those concerns by widening the scope of the aggravation. Amendment 5 provides that in addition to the existing ways in which the offence can be aggravated, the offence is also aggravated if a reasonable person would consider that the perpetrator's course of behaviour or an incident that forms part of that course of behaviour is likely to cause a child who usually resides with the victim or the perpetrator to be adversely affected. Amendment 9 adds to that by providing that reference to a child being adversely affected, including causing the child to suffer fear, alarm or distress. That is a non-exhaustive definition, so other ways in which a child is adversely affected could be taken into account if the court is satisfied by the evidence in a particular case. For example, if a perpetrator controls a victim's movement to such an extent that they are unable to leave the house to ensure that their children get to school or to get them to a doctor's appointment, the court could determine that that could amount to behaviour likely to adversely affect a child. As with other aggravations, evidence from a single source is sufficient for the aggravation to be proven. That is provided for in section 4 already. The aggravation uses a reasonable person test, so there is no requirement for the prosecution to prove that the child was actually adversely affected. Providing the court is satisfied that a reasonable person would consider it lightly that the child would be adversely affected by the perpetrator's actions. The aggravation is limited to children who usually reside with the victim or the perpetrator. That reflects the feedback that it is living in an environment where domestic abuse is perpetrated that can most adversely affect a child. Amendment 4 paves the way for amendment 5. At the two current limbs of the aggravation will be split between the present section 2 and a new subsection 2a to sit alongside the new subsection 2b in amendment 5. Amendment 6 to 8 are technical and are really just for the avoidance of doubt in the operation of the aggravation as a whole. Amendment 6 provides that it is not necessary to prove that a child had awareness of the accused's behaviour, understood the nature of the accused's behaviour or was adversely affected by the accused's behaviour for the aggravation to be proven. Amendment 7 ensures that the three limbs of the aggravation are capable of being applied separately but that they can also be used in combination with each other where more than one applies in a particular case. Amendment 8 ensures that nothing in the formulation of the aggravation prevents evidence from being led on certain impacts on a child, even though such impacts on a child are not essential to prove the aggravation in a move amendment 4. I start by warmly welcoming the amendments in this section, as the cabinet secretary rightly said at his address. I concern that we heard from a number of witnesses at stage 1 in so far as the aggravation is being limited to children who had heard or seen abuse taking place, which did not give effect to the full range of the effects that abusive behaviour can have within a household and children within that household. I suppose that the one question that I had was in relation to amendment 6, and you touched on that, cabinet secretary, in your comments. However, that allows for an aggravation in circumstances where there is no evidence that a child has been adversely affected by a perpetrator's behaviour. I can understand why the provisions there touched on the reasonableness test. I wonder whether there needs to be a reference made to perhaps recklessness on the part of the perpetrator. Even with the best of intentions, I suppose that we need to be clear that we are not setting the parameters of any offence too broadly, but it may well be that I am missing an aspect of the way that this amendment is to be read or interrelates with other parts of the bill, so I just would welcome any comments on that, particularly on that point in relation to the recklessness of a perpetrator's behaviour. We are having the formal debate now, and we will bring the cabinet secretary in once everyone has had their say. Liam Kerr? Just to take Liam Kerr's point and echo everything that he says, I had a slight concern when I was looking at this. I am going to argue against myself, cabinet secretary. In the amendment 6, you talked about the child not necessarily ever having any awareness of A's behaviour. I did have an initial concern that we end up setting an aggravator where there is almost a hypothetical child who can know nothing and yet aggravate the offence. I will now argue against myself, because I was also going to bring in amendment 5, the part about usually residing with A or B. Is that unnecessarily restrictive on the offence? Presumably, you will counter-argu that, by putting in the residents' criteria, that is why the awareness becomes acceptable. I will throw that up just as all— Just before we finish the debate, because we should get all the comments first, anyone else wants to comment on that. Amendment 6, I had similar concerns to Liam McArthur, but the one thing that reassured me was that it is ECHR compliant. I did understand that perhaps the purpose of the amendment was to catch children who, although they have an awareness or an understanding or are being affected, are potentially at risk. That was my understanding. Any more comments, if not Cabinet Secretary? I am grateful to the comments that were made by members. I deal with Liam McArthur's point, first of all, on the reason that we have set out in this way is because it is dealing with the aggravation rather than the offence in itself. That is why we have set it out in amendment 6. The offence deals with issues such as recklessness in itself, but the aggravation is about the impact that it can actually have on the child that may be affected by this behaviour. That takes me to Liam Kerr's point to answer his own question in the course of his question to me, because they are both interrelated in that they would normally be resident with the perpetrator or the complainer in those particular cases. The other part is that, in relation to the reasonable person test, you could, for example, have a baby that is one or two years old that may have no understanding of the impact that the abusive relationship is having on its parent who is unable to take them to the doctor for an appointment for any good reason. That is where the reasonable person test kicks in so that the court can then consider well on a reasonable person. We would assume that that would have an adverse impact on the child. That is the reason why we have applied the provision within amendment 6 to make sure that the reasonable person test is applied in testing this at the time when the court is considering it. The question is that amendment 4 be agreed or we all agreed. Amendment 5, 6, 7, 8 and 9, all in name of the cabinet secretary or previously debated, invite the cabinet secretary to move amendments 5 to 9 on block. Does any member object to a single question being put on amendments 5 to 9? No objection. If no member objects, the question is that amendments 5 to 9 are agreed. Are we all agreed? We are all agreed. The question is that section 4 be agreed or we all agreed. The question is that section 5 to 10 be agreed or we all agreed. We are all agreed. Now turning to restriction on bail and solemn cases, call amendment 10 in the name of the cabinet secretary group with amendment 11. Cabinet secretary to move amendment 10 and speak to both amendments in the group. Amendment 10 and 11 are important additions to the protection. This bill offers to victims of domestic abuse. They are consistent with the approach taken elsewhere in the bill, where we have extended protections already offered by our legal system to the victims of sexual offences, to the victims of domestic abuse and related offences as well. At present, in solemn proceedings, where an individual is accused of violent or sexual offences and where that individual has been convicted on indictment of sexual or violent offences, bail is to be granted only in exceptional circumstances. That is under section 23D of the Criminal Procedure Scotland Act 1995. We want to ensure that the availability of bail for repeat offenders accused of domestic abuse is limited in a similar fashion. We also want to ensure that the link between domestic abuse offences and sexual or violent offences, which we have made elsewhere in the bill, is made here as well. Amendment 11 is the main amendment that constructs a group of offences, including violent offences, sexual offences and domestic abuse offences. The effect of amendment 11 is that where an individual is accused in solemn proceedings of any violent or sexual or domestic abuse offences and had been convicted in the past of any violent or sexual or domestic abuse offences, bail would be granted only in exceptional circumstances. Domestic abuse offences include both the new offence of domestic abuse in this bill and any offence charged where the domestic abuse aggravation contained in the abusive behaviour and sexual harm Scotland Act 2016 have been attached. When an accused is accused in solemn proceedings of an offence of any of these kinds and has been convicted on indictment of an offence of any of these kinds, bail is to be granted by the court only if there are exceptional circumstances to justify it. That includes previous convictions for equivalent offences in other parts of the UK and in the rest of the EU. Amendment 10 adds reference to those changes into the list of procedural changes that we are making to this bill. I move amendment 10. Thank you, cabinet secretary. Do members have any comments or questions? Liam Kerr. I have just thrown up the possibility. It seems to me that there is a possibility here that we end up tying the hands of the court in circumstances that perhaps have little prospect or where there is little evidence of guilt. I wonder whether there is a human rights angle to that or whether it would fall foul of any human rights issues. Any other comments from members? That is the reason why we give the scope for the court to determine any exceptional circumstances and not be for the court to determine that at a given time in what is presented to it. The member may reference to any human rights aspect to it. The member will also be aware that the jurisprudence of the European Court of Human Rights has been very clear about the need to make sure that the courts have the final say in matters relating to bail and that they must have discretion in making decisions relating to bail, and that amendment continues to ensure that that will be the case. We are confident that it complies with the jurisprudence of the European Court of Human Rights in these matters by making the provision for exceptional circumstances. The question is that amendment 10 be agreed to. Are we all agreed? The question is that section 11 be agreed to. Are we all agreed? We are all agreed. Colla amendment 11 in the name of the cabinet secretary already debated with amendment 10. Cabinet secretary, to move formally. Thank you cabinet secretary. The question is that amendment 11 be agreed. Are we all agreed? We are all agreed. Colla amendment 14 in the name of Mary Gusion, grouped with amendment 15 to 25. If amendments 18, 19 and 20 are preempted by amendment 31, the group mandatory non-harassment orders. If amendment 24 is agreed, I cannot call amendment 23 in this group because of the preemption. Mary Gusion, to move amendment 14 and speak to all the other amendments in the group. Amendments 14, 15, 16, 19, 21 and 24 are key amendments that I believe will further improve and strengthen the bill by increasing the protections that are afforded to children affected by domestic abuse. I am pleased to have lodged those amendments, which relate to issues that both I and other members of the committee have raised during our stage 1 scrutiny. I would like to thank Assist Children First, Barnardo's, the NSPCC and other stakeholders for raising those issues with the committee and with the Scottish Government too, and thank them for their briefings and the support that they have given the group of amendments. Amendments 16 is the main amendment. It provides that certain children can benefit from the protections of a non-harassment order in a way that they cannot under current legislation. At the moment, an NHO is available as a disposal to a criminal court following conviction. The court can impose such an order for offences involving misconduct towards another person, and that is namely the victim. An NHO can therefore only be made in respect of victims of an offence. While it is absolutely the case that children, as we have heard through the scrutiny of the bill, are victims of domestic abuse, the bill that is currently drafted does not recognise that in relation to the granting of NHOs. Under criminal law and as NHOs currently operate, children would generally not be classed as victims of domestic abuse offending for the purposes of consideration of imposition of an NHO. Amendments 16 and the other associated amendments would change that. The benefit of those amendments will be that the children who are residing with the perpetrator of the domestic abuse and children residing with the partner or ex-partner who has been abused can receive the protection of an NHO. Any child who is the subject of the child aggravation in section 4 of the bill will also be able to be given the protection of an NHO, and that particular aspect does not depend on where the child lives. That will be in addition to the court having to consider whether to make an NHO in respect of the partner or ex-partner. It will, of course, be for the court to consider and decide in any given case whether to impose an NHO, but amendment 16 will empower our courts for the first time to be able to impose an NHO for a child harmed by domestic abuse offending in a criminal court. Amendment 19 is a consequential amendment on amendment 16 and provides for the requirement on the court for an explanation as to why it has or has not imposed an NHO in respect of children in any given case. Amendment 15 is a restating of some material already provided for in the bill, but with the addition of the necessary definition of a child. That makes the provisions as a whole unfold better in light of amendment 19. Amendments 14 and 24 are consequential on amendment 15, and amendment 21 is a technical amendment removing a word that is no longer useful. I know that Liam McArthur has lodged amendments that are similar to my own, but I think that the amendments that I have put forward really strengthen and are more powerful in the sense that they provide the protections of NHOs to be available for a wider range of children. In particular, NHOs will be available for children usually residing with the perpetrator of the abuse or the victim of the abuse through my amendments, which I do not think is the case with the amendments of Liam McArthur. I encourage members of the committee to support my amendments and to help to achieve what I think is our common policy goal, namely the better protection for children that is affected by domestic abuse. I move amendment 14. Thank you, Liam McArthur, to speak to amendments 17 and other amendments in the group. Thank you very much, because I thank Mari Gougeon for her comments in relation to her amendments. She and I were left commiserating together last week as we lost out in the community MSP category of the Politician of the Year awards. I am delighted, however, that we have shown great fortitude, picked ourselves up, dusted ourselves off and joined forces in trying to improve the bill in relation to the protection that affords children affected by domestic abuse. I would also pay tribute to the organisations referred to by Mari Gougeon in her comments. In effect, my amendments 17, 18, 20, 22 and 23 seek to ensure that, where an offence of domestic abuse is found to have been aggravated by the presence of a child or children, that must be taken into account by the court, specifically in its consideration of an NHS. That is in keeping, as I say, with the evidence that we heard throughout stage 1 and seems to be the only reasonable response for the committee to take in such circumstances. In relation to amendment 25, like those lodged by Mari, it provides an alternative means of achieving the same outcome through giving ministers an order making power. Ultimately, I am entirely relaxed about how the committee chooses to go about addressing this gap in the current bill, but I look forward to us doing just that, as well as to the comments from the minister and colleagues in relation to those amendments. Thank you. Do members have any comments or questions? If not, then Cabinet Secretary. Amendment 14, 15, 16, 19, 21 and 24, in the name of Mari Gougeon, are important amendments that will further improve the protections that are afforded to children affected by domestic abuse in this bill. As the member has indicated, this set of amendments will provide that children can benefit from the protections of non-harassment orders in a way that they cannot under present legislation. We know that children are too often the victims of domestic abuse, too, and while this bill is largely focused on domestic abuse between partner and ex-partners, stakeholders indicated that the fact that non-harassment order provisions in this bill would not extend to children was unfortunate. The benefits of those amendments will be that children residing with the perpetrator of domestic abuse and children residing with the partner or ex-partner who has been abused can receive the protection of a non-harassment order. Any child who is a subject of the child aggravation in section 4 of the bill can also be given the protection of a non-harassment order. This particular aspect does not depend on where the child lives. This will be in addition to the court having to consider whether to make a non-harassment order in respect of the ex-partner or partner. Without those amendments, it would be necessary for applications to be made through the civil courts if non-harassment orders were to be considered for the children covered by those amendments. Those amendments will therefore reduce the trauma and inconvenience for families affected by domestic abuse and ensure that a criminal court can consider whether protections are needed for children affected by domestic abuse. The Scottish Government is pleased that those amendments have been brought forward and asked the committee to vote for them into the bill. Turning now to Lee MacArthur's amendments, I have considerable sympathy for what he is seeking to achieve with many of them. However, I will explain why I think that the amendments lodged in the name of Mary Gougeon are preferable. As I have indicated, Mary Gougeon's amendments will mean that non-harassment orders will be available more widely in respect of children in the following ways. Children residing with the perpetrator of domestic abuse, children residing with the partner or ex-partner who has been abused and children involved in the committal of the abuse by being subject of the child aggravation in section 4 of the bill. Lee MacArthur's amendments only cover children who are subject to the aggravation in section 4 of the bill, and so, in our view, they do not go far enough. Separately, amendment 25 seeks to provide an order-making power for the Scottish ministers to make further provisions about non-harassment orders. It is limited to circumstances that affect cases where the statutory child aggravation in section 4 has been proven. The amendment provides that regulations may provide for circumstances in which the court must consider making a non-harassment order in order to protect a child. Where we can understand the intent that lies behind this particular amendment, it does seek to provide the Scottish ministers with a wide power to, in effect, legislate by regulation so that it requires certain sentencing decisions to be imposed by the court in a given case. The Scottish Government supports judicial discretion as judges hear all the facts and circumstances of a case before a decision is made on sentencing. As a matter of general policy, the Scottish Government is not supportive of seeking to remove judicial discretion in the manner suggested by the enabling power. In addition, if the Scottish Parliament were to legislate to remove judicial discretion to determine sentencing decisions on the basis of the facts and circumstances of a given case, we consider that that should be done on the face of the bill rather than through secondary legislation. We consider that it is not a step that should be taken lightly and full parliamentary consideration should be given. On this basis, we would ask Liam McArthur not to move his amendment 17, 18, 20, 22, 23 and 25 and, for the committee to support amendments 14, 15, 16, 19, 21 and 24 in Mary Gougeon's name. Mary Gougeon, to wind up, press or withdraw. Sorry, press or withdraw. Any comments you want to make and just wind up? No further comments, so just press the amendments. The question is that amendment 14 be a great or are we all agreed? We are all agreed. The question is that amendment 15 be a great or are we all agreed? Call amendment 16 in the name of Mary Gougeon already debated with amendment 14. Mary Gougeon, to move or not move. The question is that amendment 16 be a great or are we all agreed? We are all agreed. Call amendment 29 in the name of Linda Fabiami, grouped with amendments 30 to 36. If amendment 31 is agreed to, I cannot call amendments 18, 19 and 20 already debated in group non-harassment orders as to children as it is a preemption. Linda Fabiani, to move amendment 29 and speak to all amendments in the group. I come to amendment 29 and the consequential amendments from a background of many years of us dealing with victims of domestic abuse who feel they have been let down by the courts, by the non-granting of a non-harassment order. Certainly, I can understand that position because it has been backed up by written parliamentary questions over the years, where there certainly seems to be fewer non-harassment orders issued by the court than should be the case. That often results in fear, dread of the victim. Sometimes people have to go down the civil route, and I understand that the committee has heard some evidence in that regard. Amendment 29 is quite straightforward. What it does is to delete the words, consider whether. Therefore, the court must, without an application by the prosecutor, make a non-harassment order in the person's case. Thus, it would be mandatory. It seems to me that it is a very fundamental principle that the onus should not be on the victim to justify the need for a non-harassment order, but it should be on the convicted perpetrator to justify why such an order should not apply. When we then go on to amendment 30, it is more or less consequential on what has happened in amendment 29. Under the section about the reasons for the decisions that have been reached, it deletes, including by explaining why there is a need or no need for the victim to be protected by such an order and inserts the need to look at the terms of the order and the period for which the order is to run. The other amendments that are in my name are more or less directly consequential to those that I have talked about and make the section of the bill operable. I have to say that I, in asking a parliamentary question orally last week of the cabinet secretary, I do recognise that the cabinet secretary is very keen to consider ways in which the bill could be strengthened. When you look at the evidence given by those who support it, that would include Scottish Women's Aid, Scottish Violence Reduction Unit and Victim support, but most of all the evidence and testimony of those who have been directly affected both physically and mentally in other cases by the fact that there was no non-harassment order granted by the court. That is the most compelling of all, and just to quote one quote from someone that I know rather well. A criminal conviction for my husband was of absolutely no use to me as a victim, since that conviction on its own contained no provision to protect me, keep him away from my home and family and protect me from further abuse. With legal consequences, should he choose to ignore the court order? I think that that is a great problem within the system and I would therefore say that I find the case for mandatory non-harassment orders compelling. Do members have any comments? Liam Kerr? Simply that it seems to me that the decision should always rest with the court rather than being mandatory irrespective of the circumstances or the strength of the allegations. I am also concerned that such a mandatory nature might have consequences in regard to the ECHR, as we discussed earlier. Liam McArthur? I am conscious that having just spoken to an amendment that removed judicial discretion, I am now about to raise concerns about one, which I think largely has a similar effect. I think that Linda Fabiani set out very well the frustration that is felt and the impact that is had by the failure to put in place non-harassment orders, whether that can be addressed through Lord Advocate guidance or some other mechanism. I think that is certainly something that we might even want to look at further in the context of the bill, but I would have concerns about the mandatory nature of the provision under amendment 29. I think that Linda Fabiani laid out very clearly some of the consequences of the present system. I know that that enjoys the support of Scottish Women's Aid and I certainly support it. I certainly think that there is an issue here and I understand why Linda Fabiani seeks to introduce a mandatory non-harassment order. There has been a problem about non-harassment orders not being granted when they should be. However, I do feel that the bill has addressed that in terms of ensuring that a non-harassment order must be considered—that is mandatory—and if it is refused, there must be a reason for doing that. I would hope that that would go some considerable way to addressing what is a very realistic and actual problem without necessarily preaching the concerns or raising the concerns under ECHR. If there are no other comments, cabinet secretary, to wind up. I am aware of Linda Fabiani that she has shown a long interest in the issue of protection for victims of domestic abuse and has raised those issues with me over an extended period of time. No one doubts her determination to try and improve the system of non-harassment orders on how they are operating. However, I consider the amendments that she has lodged go too far in terms of removing discretion from our courts to consider what might be in best interests of an appropriate disposal when dealing with domestic abuse offenders. Members will be aware that the bill, as introduced, includes provisions warmly welcomed by stakeholders and others in respects of non-harassment orders. Those provisions have the effect of requiring a court in every domestic abuse case to consider whether to impose a non-harassment order and for the reasons to be given as to why a non-harassment order has or has not been imposed, including explaining why there is or is not a need for the victim to be protected by such an order. The provisions in the bill, as they stand, will very much ensure that the court in every domestic abuse case has to consider the need for protection for the victim as they need to consider whether to impose a non-harassment order. In addition, the new sentencing provisions in the bill also mean that when sentencing and domestic abuse cases, the court must have particular regard to the safety of the victim. Taken together, those changes will enhance the operation of the system of non-harassment orders so that more victims can be protected. While I am certain that Linda Fabiani's amendments have the best of intentions, I think that it is important to highlight the potential effect that they may have. Those amendments would remove all discretion from the court so that, whenever someone is convicted of domestic abuse and a non-harassment order had to be imposed, that would be, with no exception, a blanket requirement as a matter of law. While it is certainly true that non-harassment orders have a key role to play in protecting victims of domestic abuse, it is also true that they may not be appropriate in all cases. For example, take a case where the parties wish to reconcile following a prosecution. In that situation, a non-harassment order may not be appropriate. While there will also be other cases where there is no reconciliation but the victim may indicate that they do not feel that a non-harassment order is necessary and would prefer to have on-going contact with the accused, perhaps in relation to issues around children. It is also the case that the Crown Office prosecute a very wide range of domestic abuse cases and non-harassment orders would not necessarily be appropriate or necessary in every case. While non-harassment orders may well be appropriate in cases involved in the court, is that correct? I will come to a decision on a land of Fabianian's proposal. Do you think that in practical terms once a new legislation is implemented, there will be more non-harassment orders issued as a result of the legislation than has been currently, and perhaps a change in the culture of how the courts look at those particular orders? I believe that that will be the case because of the requirement now at the time of sentencing attention for the courts having to consider it and also to state an open court if they are issuing an on harassment order or not issuing an on harassment order what the reasons are for doing so or not doing so as well which will help to change that culture around to focus on making sure that the time of sentencing, safety of the victim is at the centre of the court's mind at that particular point in making that decision. While non-harassment orders may be appropriate in cases involving a sustained course of conduct and repeated abusive behaviour or cases where re-offending was likely, they may not necessarily be appropriate in cases involving isolated incidents or conflict provoked by situational factors. In any event, it should be for the court to make that decision, not simply have to apply the law in a blanket fashion. There are potential human rights concerns around these amendments in that they require the court to impose a non-harassment order. Remembering that a non-harassment order can restrict someone's freedom with no discretion whatsoever to assess whether it is actually necessary in a given case. While I do absolutely sympathise with the member and others in terms of their determination to enhance protection for victims, our courts are there to use their judgment in making decisions of this sort day in, day out. I think that we should trust them to do so while taking into account the specific facts and circumstances of each case and this is what the bill does as it stands. The steps that we have taken to make it mandatory for a non-harassment order to be considered in every case and for reasons to always have to be given in open court are a significant step forward and provide a very clear message to the court of the importance of utilising non-harassment orders in appropriate cases. While those amendments are well intentioned, they go too far by removing the ability of judges to assess each case that they deal with and make decisions based on the facts and circumstances of the case. I am also concerned that they could bring the system of non-harassment orders into dispute. If non-harassment orders are being imposed in cases where there is no justification for them on the basis of considering a specific case, then that runs the risk of credibility of non-harassment orders as a disposal being diminished in the eyes of the court and others too. I do not think that that is desirable, given the important role that non-harassment orders play in protecting victims. I have made clear my objections to the amendments as they stand. However, I do absolutely sympathise with Linda Fabiani and others who seek to see if any further steps could be taken to strengthen the system of non-harassment orders. I am happy to work with Linda Fabiani and others ahead of stage 3 to see if there are ways that the provisions in the bill could be improved while leaving appropriate discretion to the court. On that basis, I invite the member to withdraw amendment 29 and not move amendment 30 to 36. I have listened to what my colleagues in the committee have said and I understand the concerns. I also listened carefully to what the cabinet secretary said and again understand the concerns. What I would say is that the present system clearly does not work for the victim. Although the bill is excellent in moving forward, I am not convinced that it goes far enough. However, in light of everything that has been said today, I will withdraw that amendment with a view to looking at stage 3 of how we could strengthen that bill. I welcome the opportunity to talk that through. I wonder whether, considering that further, the cabinet secretary could, with his team, look quite clearly at the idea of presumption of a non-harassment order being the case rather than just a consideration. On that basis, I will withdraw that amendment. Is the committee content for this to be withdrawn? Thank you. Amendment 17, in the name of Liam McArthur, has already been debated with amendment 14. Liam McArthur, to move or not to move? Not moved. Not moved. Question 13, in the name of Linda Fabiam, has already been debated with amendment 29. Linda Fabiam, to move or not to move? Not moved. Thank you. Amendment 31, in the name of Linda Fabiam, has already been agreed with amendment 29. Linda Fabiam, to move or not to move? Not moved. Thank you. Call amendment 18, in the name of Liam McArthur, has already been debated with amendment 14. Liam McArthur, to move or not to move? Not moved. Not moved. Call amendment 19, in the name of Mary Gusion, has already been debated with amendment 14. Mary Gusion, to move or not to move? Move. The question is that amendment 19 be agreed. Are we all agreed? We are all agreed. Amendment 20, in the name of Liam McArthur, is already debated with amendment 14. Liam McArthur to move or not move. Not moved. Not moved. We call amendment 21 in the name of Mary Gougeon, already debated with amendment 14. Mary Gougeon to move or not move. Move. The question is that amendment 21 be agreed. Are we all agreed? We are all agreed. Amendment 32, in the name of Linda Fabiani, was already debated with amendment 29.pox whatever is not moved.AUDIENCE is already debated with amendment 14. Not moved. What is called amendment 32 in the name of Lyon MacArthur? Is already debated with amendment 14. Not moved. Rwyf, maen nhw Mae notwr 53 yn ddwyngol Lendif Abbiannu oeddennw'n gwych, aaso 22 yn ddwylen nhw mae White House gyrdwysol yn dd以oliol Lendif Abbiannu trelygu? No, Byrboda사�, Rwyf, maen nhw airport awesome.] Rwyf, maen nhw этоr 34 yn ddwylen nhw Mae notwr olanllyff aaso 23 yn ddynion gwislwACK ers rained Baie Unle inni'r Sm hourly Porters festival表 crew year oedde Uniolaire? No, rwyf wedi ddysgu Rwf 9 inspiration you add do anwjolten ar gwrth strategy amendment 36, the name of Linda Fabiani, already debated with amendment 29, Linda Fabiani to move or not move? Not move. Not move. Call amendment 24, in the name of Marie Gougeon, already debated with amendment 14, Marie Gougeon to move or not to move? Move. The question is that amendment 24 be agreed to, are we all agreed? We are all agreed. We go straight to amendment 25 in that case, as the pre-emptions move in, and the question is that amendment 25 be agreed to, are we all agreed? It's not moved. It's not moved. Oh, sorry, we're sorry. It's not moved. I'm a way ahead of myself. I'm either going to ignore you completely or make sure you move it. No, convener, really. Right. The question is that the schedule be agreed to, are we all agreed? We are agreed. Right. Call amendment 37, in the name of Clare Baker, grouped with amendments 27 and 28. Clearmaker to move amendment 37 and speak to all amendments in the group. Thank you, convener. I'll move amendment 37 and speak to other amendments. There are three reasons I would like to set out why I've brought forward these amendments. First, I think that there's frustration at the slow progress that we have on the development of specialist domestic abuse courts. The one in Glasgow was established in 2004, which resulted in a positive evaluation followed by Edinburgh in 2012. We have four courts that cluster Dunfermline, Aire, Livingston and Falkirk. While I do recognise that other courts operate a fast-track system, it means that our large areas of the country that are not served by any kind of specialist court are cases of that type. Aberdein, Dundee and I know members from across the Highlands have raised this issue in the chamber with the cabinet secretary previously at the borders. Those can be seen as areas where we see a postcode lottery operating in terms of victims' access to justice. I think that in those type of cases we need the appropriate expertise and sensitivity in dealing with those cases, and there's evidence to show that the specialist courts can deliver that. Secondly, I think that there are concerns over consistency in decision making and confidence in the decisions that are being made. Members may be aware that there have been a couple of recent cases where there have been multiple convictions for the individual, often crimes committed against different partners, and those cases have resulted in community sentences being given out. I've been contacted by the victims in those cases who have been very distressed by the sentence that has been given out. Those sentences weren't given out in domestic abuse court cases. I did feel that if the victims had been through a specialist domestic abuse court, I'm not saying that the decision of the sheriff would have been any different. However, I think that the victim would have felt more confidence in the way in which the decision was made. There was also the case last year where a sheriff decided to send the alleged victim, who was a mother, to jail for two weeks on contempt to court, because she didn't, according to the sheriff, fully participate in the court proceedings. I did feel at the time that if that case had been heard in a specialist domestic abuse court, I don't imagine that that would have happened. I think that there is an issue here about consistency in decision making and the confidence of victims. Thirdly, I think also that the bill introduces the new offence, which I'm very supportive of, and includes coercive and controlling in psychological abuse within that. I am aware that, in the stage 1 report, there was evidence to the committee, a minority set of evidence, but it was from legal experts who expressed some concerns about the challenges that might be to this legislation within the courts and the discussion that will be around introducing coercive behaviour. I would rather that the bill was tested in a specialist court rather than in an ordinary court. I think that it would have better understanding and expertise of what the Parliament is seeking to achieve here. The amendments that were brought forward this morning are looking to give full effect to the bill. Amendment 27, at the moment, is the sheriff's principle who can decide whether to create a specialist court. That would give the power to Scottish ministers to take that forward and be able to designate domestic abuse courts. I recognise and respect the independence of the judiciary in those areas, but I think that there is a frustration at the lack of progress that there is in establishing specialist courts. Amendment 37 looks at the regulations that the Government can introduce and encourages that to be used to advance specialist courts. Amendment 28 is about a review of the operation of the act once the act has passed to see how the comparison between how decisions are made in regular courts and how they are made in specialist courts. The amendments this morning are an attempt to push progress in this area to recognise the advantages of specialist courts and to look at how the new legislation can be best implemented and to provide equal access to specialist courts to women and all victims across Scotland. Do members have any comments, John Finnie, followed by George Adam, Rona Cymru? I fully support Clare Baker and she is right to identify both myself and Rhoda Grant have consistently raised issues about that. The one word that probably would throw people off as specialists, because if there was judicial training that covered or there was the frequency of case use, some of those very insensitive disposals that have been referred to would not have taken place. This is not about new buildings, this is about case management, this is about clustering cases, this is entirely about collaborative working between the public sector and the third sector on issues. It is very important that we spread out and there is not any lesser quality of service for victims of domestic abuse just on the basis of geography. I believe that you are next, George, then Rona. I have a lot of sympathy for Clare Baker's input, but I cannot envisage any situation where Scottish ministers would be better placed than the Lord President with that decision, but I simply say that I believe that all courts should be specialist domestic abuse courts. I think that it backs up from what John Finnie was talking about there. I think that the current legislation has put through going back to my previous intervention on the Cabinet Secretary. I hope to see a culture change around that and every court should be a specialist court in this regard. Rona, sorry, George. Thank you convener for following on from what Fulton said there as well. I take on more everything that Clare Baker and John Finnie brought up with regard to the issue itself. I am just going to ask a question more than anything else, so hopefully the Cabinet Secretary could possibly answer and Clare Baker herself is summing up. Under the Judiciary and Courts Act of 2008, the Lord President is the head of the Scottish judiciary. Are we changing that? Are we jumping ahead and putting that in the act and the act making the decision as opposed to what the current courts are decided on by the Lord President himself? I would also ask, has Clare Baker spoken to the Lord President with regard to her amendments here at this stage as well? That is me. Rona, Mary and Liam Kerr followed by Ben. Thank you convener. I just wanted to say that I totally agree with Clare Baker about the slow movement of the creation of domestic abuse courts across the country. I think that is a concern and I agree with John about the need for more specialist training in this area. However, I think that it compromises the independence of the judiciary and it is not for ministers to have the power over the courts and the Lord President in that way. Mary, Liam Kerr and Ben. Thank you convener. I fully support the amendments that are being brought up by Clare Baker this morning. If I cast my mind back to some of the quite disturbing and distressing evidence that we heard while we were taking the evidence on this bill, we heard from victims who had requested special measures, who arrived in court, the special measures were not in place, the support that they had been assured they would be given was not there and quite often the victims were left feeling further traumatised by appearing in a court and the support was not there for them, the things that were promised that would be there were not. A name of this bill is to support people who prosecute domestic abuse correctly. I think that by going down the road of specialist courts it would send out a signal to victims of domestic abuse and witnesses that are coming forward that everything that they want will be automatically provided for them when they arrive in court and it will remove almost a barrier or an obstacle that they may have in their mind to appearing in court. Thank you. Liam Kerr followed by Ben, then Liam McArthur. Thank you convener. I think that the approach of a specialist court is definitely interesting and worth exploring. I think that it certainly moves towards a system that perhaps we would all like to get to. I am not convinced however that the amendments as draft did work on a practical level. I am not necessarily convinced that practically this is going to work in more rural areas and I am also not convinced that this reflects the realities of the resources available at sheriff court level. My significant concern is that you end up potentially inhibiting justice by creating a too rigid, a too inflexible structure. Ben. Thank you convener. I also commend Clare Baker for bringing forward the important point of specialist domestic abuse courts. I share the concerns of colleagues George Adam, Fulton MacGregor and Rona Mackay about the independence of the judiciary. I would also like to add as a supplement that perhaps if Clare Baker's amendments fall today that we as a committee undertake a commitment to write to the Lord President on that point, expressing the views that were made today and asking for an update and persuading with an intention to seek to propose the implementation of more domestic abuse courts as reasonable and prudent within financial constraints. Liam McArthur. Thank you. I also thank Clare Baker for lodging the amendments allowing the discussion this morning to take place. I think that in relation to the frustration she expresses about the progress that has been made in this, I think that that is one that we all would share. From a personal perspective, I look at this not just in relation to the islands but the islands as well and how such a provision might be given effect to. I think that we are in the fortunate position in Orkney that we have a Procurator Fiscal and a sheriff who understand domestic abuse. I think that in some respects it points to the absolute need, as others have referred, for training in this area, not to be a specialism but to be absolutely central to the training that is provided across the board. Ultimately, it is about timely local access to justice and the concern that I would have is that we put in place something that is not necessarily going to be straightforward to make work in the parts of the country that I represent. That would be a concern to me because it is about providing the timely and appropriate support and access to justice that Mary Fee in particular was stressing in her remarks. Thank you, convener. Amendment 27 and 37 seek to provide the Scottish ministers with a power to require the sheriff principle of a sheriffdom to designate one or more court in their sheriffdom as a specialist domestic abuse court. Amendment 27 is framed so that this order making power can only be used where the Lord President has consented to the order being made. However, despite that, I have some concerns with the amendments and let me explain why. The Judiciary and Courts Scotland Act 2008, which was passed unanimously by this Parliament, provided that it is the responsibility of the Lord President as head of the independent judiciary and of sheriff principle to ensure the efficient disposal of business through Scotland's courts, including sheriff courts. In addition, that act provides the first minister, the Lord Advocate and the Scottish ministers and members of the Scottish Parliament must uphold the continued independence of the judiciary. I am clear that the statutory responsibilities, independence of the judiciary and the Lord President being responsible for the management of the courts and those amendments have implications for this. Alongside the very important constitutional principle, there is a very good practical reason why the 2008 act operates in this way. The independent judiciary knows better than anyone else than anyone how best cases can and should be managed through the courts. When the Lord President, in consultation with the relevant sheriff principle, considers that it is appropriate to establish a specialism in domestic abuse cases in a particular sheriffdom, it is able to do so. For example, as we have heard in Glasgow, where a specialism in domestic abuse cases operates, such cases are heard together, as also happens in Edinburgh too. The Lord President can therefore do so without the requirement for the involvement or approval of the Scottish ministers or the Scottish Parliament. In other words, in line with the principles that have been outlined from the 2008 act. It is difficult to envisage a situation in which the Scottish ministers or the Scottish Parliament would be better placed to assess whether such a specialist sheriff is required in a particular area than the Lord President and the sheriff principle. As such, it is not clear that this power would ever be used by the Scottish ministers. I am clear that specialist domestic abuse courts are one way in which the justice system's response to domestic abuse has improved and can continue to improve in the future. Will the level of case volumes mean that it is not practical to have a dedicated court? The Scottish Court and Tribunal service provides specific ring-fen slots in the court programme to deal with domestic abuse cases. This approach happens in places such as Falkirk, Dumfermyn, Livingston and Eir. The delays in dealing with domestic abuse cases were in this year-round four years ago. That is no longer the case. In each of the last three years, the Scottish Government has provided additional funding of £2.4 million per year to the Scottish Court and Tribunal service and the Crown Office and Procurator Fiscal Service to support their work to reduce domestic abuse cases in all courts across Scotland. As a consequence, cases involving domestic abuse across Scotland are now having trial days set within the optimum time scale of 8 to 10 weeks. There is a clear expectation that court staff and the judiciary in all courts are able to deal appropriately and sensitively with cases involving domestic abuse. The Scottish Court and Tribunal service recently engaged with Victim Support Scotland to design and run victim awareness training events for staff. The training was provided to all front-line staff in the share of courts and high court who come into contact with victims and witnesses during their attendance act court, with 264 members of court and tribunal service receiving training over 30 sessions during 2015 and 2016. Judicial training is the responsibility of a Lord President and training on domestic abuse for members of the judiciary is provided by the Judicial Institute for Scotland. In addition to training, provisions within the Victim and Witnesses Scotland Act 2014 ensure that automatic access to specialist measures such as screens and video links are available in all courts for vulnerable witnesses, including victims of domestic abuse. I also have some concerns that the President said that involving the Scottish Ministers and Arrangements for the operation of the courts could set a precedent for all specialist courts. I do not think that it is within the intent of the Judiciary and Court Act 2008. I am grateful for taking into mention Cabinet Secretary. Cabinet Secretary, you will recall that, with the closure of certain share of courts, remote facilities were put in place. One of the major beneficiaries of that was intended to be victims of domestic violence. That is not the experience in the highlands that there has been the benefit. What assessments has been made of that? You also comment on judicial training, but you know of examples of a recent appeal court last year, where it was quite apparent that there was a dearth of training or understanding of the issue from the appeal was upheld. I cannot comment specifically in relation to a particular disposal that was made by a court, including the appeal court, for obvious reasons. There is training package that is provided by the judicial institute, which is available to all sentences on domestic abuse, as it is with a whole range of other sexual and violent offences. Family law matters as well. There are a whole suite of training packages that are available for sentences. The issue in relation to, for example, I know that there has been issues in the highlands, and it is an issue that has been discussed directly with the share of principle there, which has made it clear that the way in which they try to operate is by clustering cases together, where there are a number of cases that they can bring together to be considered at the court in Inverness relating to domestic abuse to try to do so. The challenge they would have is that, given the number of cases that they are dealing with, they would have difficulty in being able to sustain a specialist court in its own right. That is part of the challenge of being able to meet some of the needs within remote and rural areas, as was highlighted as well, I think, from the comments made by Liam McArthur in island communities and how they would be sustained and be maintained. I now turn to amendment 28. To understand, it is intended to require the Scottish ministers to publish a report on the operation of new domestic abuse offence and of offences aggravated under section 11 of the Abusive Behaviour and Sexual Harm Act. The report is required to publish at the end of the two-year period after this legislation has received royal assent. I agree that it is important that we monitor and evaluate what effect changes that we make in legislation have to ensure that those changes have the effect that we intend. That is true whether the legislation in question is creating a new criminal offence or criminal offence aggravation or making changes to criminal procedures or the powers of police or prosecutors. However, much of the information that amendment 28 requires to be included in the report will be routinely published by the Scottish Government. When a new offence or aggravation is created, existing publications such as those concerning courted crime and criminal proceedings will collect information on the new offence or aggravation, as is already happening with the new intimate images offence and domestic abuse aggravation contained in the Abusive Behaviour and Sexual Harm Act, which came into force earlier this year and will happen with this legislation as well. This means that figures on the number of cases brought under and people convicted of offences at section 1 of the bill or where the aggravation concerning partner abuse at section 1 of the Abusive Behaviour and Sexual Harm Act will be included in annual statistics on criminal proceedings. Information about the length of time it takes, the court to dispose of particular categories of cases, is not routinely published. However, work is on going to consider what additional data it may be useful to collect when the domestic abuse offence comes into force. It is important not to rush to lay in statute the specific details of what data must be recorded and published. It is better to consider that in the round in consultation with key interests. I would be happy to meet Clare Baker and others to discuss what may be possible ahead of stage 3 if that would be helpful. I do not think that amendment 28 in its current form is necessary. Such a reporting requirement would set us down a path of creating separate reports for different offences whenever a new offence is created. That risks increasing the burden on colleagues who collect criminal justice data while only providing information that is already available in existing publications. I know that the committee is keen to undertake post-legislative scrutiny of legislation that has passed and I would expect and hope that the committee, within the years to come, will revisit this important piece of legislation should it be passed by Parliament. Adding more bureaucracy and a way that this amendment would do is unnecessary to allow Parliament and committees to undertake what is an essential part of your role, holding government and those who operate legislation to account. Amendment 28 also raises similar issues as amendment 27. It requires the Scottish ministers to directly involve themselves in matters that are appropriately the responsibility of the Lord President and Sheriff's principle, namely the programming of our courts. While I understand why the member may be interested in the issues surrounding the use of domestic abuse courts and clustering of cases in domestic courts, given the impact that this has on the independent role of the Lord President, his office should be fully consulted on this before agreeing any changes. For those reasons, I would be happy to discuss the matter further before stage 3 in order to consider this issue in more detail and to ensure that Lord President's office has been given an opportunity to engage in this matter and to consider the issues that come from that. I therefore like to invite members to withdraw. They invite members to withdraw amendment 37 and not move amendment 27 and 28. I thank all members for their contributions this morning and for the Cabinet Secretary for Justice. I think that it has been interesting to discuss how we can make progress here. I will try to cover some of the points that have been raised. I agree that the cultural change has been slow and members have made good points about judicial training and the gaps that are identified within that. Within the legislation, it is not possible to address that issue. That is why I have looked more specifically at the domestic abuse courts. Amendment 27, although I recognise the Cabinet Secretary for Justice's reservations around that, as he pointed out himself, the order could only be made with the consent of the Lord President, so that is specified within it. Also, although I recognise and welcome the fast-tracking that happens in certain cases, I do not think that it is unreasonable to expect a specialist sheriff to be operating in all areas across Scotland. I think that that is necessary. I am disappointed that we have not reached that point given that we had a pilot in 2004 that was positively received. Understanding the points that the Cabinet Secretary has made, I still intend to press amendment 27. I also hope that ministers could reflect on the need for post-legislative scrutiny for a review. Although the cabinet secretary has outlined reservations around the amendment that has perhaps been too specific and that the information has always been published, sometimes it can be difficult to find this information, but it is published. I think that a report that gathers together the case would be more... We have not reached 27 yet. We will ask you if you are going to... It is 37 that I will be asking you about directly. I have indicated the intention that, once I am called, I will make it clear what I am telling to you, but just let members know at this stage that I would still be quite keen to press forward to that amendment. My intention is not to move amendment 37, which will be no question. Thank you for that, and members are content that 37 is withdrawn. Thank you. The question is that section 12 be agreed or we all agreed. That concludes our consideration of amendments at stage 2 thus far. The committee will conclude consideration of the remaining stage 2 amendments on December 5. I thank the minister and officials for attending. We will now have a brief suspension for 10 minutes and a comfort break to allow the next panel to come in. Section 5 is our sixth and final evidence session on the Civil Litigation Expenses and Group Proceedings Scotland Bill. I refer members to paper 5, which is a note by the clerk, and paper 4, which is a private paper. I welcome Annabelle Ewing, Minister for Community Safety and Legal Affairs, and her officials, Hamish Goodall, Civil Law and Legal System Division, and Greg Walker, Solicitor, Directorate of Legal Services, Scottish Government. I believe that you wish to make an opening statement. Good morning, convener and committee. I am grateful for this opportunity to make some opening remarks. Before doing so, I felt that it would be appropriate on this occasion to remind members of my entry in the register of interests. If they were to look there, they would find that I am a member of the Lost Society of Scotland and that I hold a current practicing certificate, albeit that I am not currently practicing. We know from Sheriff Principal Taylor's review of the expenses and funding of civil litigation in Scotland that the potential costs involved in civil court action can deter many people from pursuing legal action, even where they have a meritorious claim. There is therefore a need for more certainty as to the cost of exercising their rights. Three major reforms proposed in this bill will make the cost of civil litigation in Scotland more predictable and so increase access to justice. Sliding caps on success fees, allowing solicitors to offer damages-based agreements and qualified one-way costs shifting. The first of those reforms, the introduction of sliding caps on success fees, has been generally welcomed and I am minded initially to set the levels that those suggested by Sheriff Principal Taylor in his report. The second of those reforms will allow solicitors to offer damages-based agreements directly rather than through claims management companies. Damages-based agreements are very popular as they are simple to understand. Basically, the client will pay nothing up front and will pay a percentage of the damages awarded or agreed to the provider of the legal services. The solicitor will be responsible for all outlays in personal injury actions. As Sheriff Principal Taylor stated in his evidence, one solicitor-owned claims management company has entered into some 17,600 new damages-based agreements in the last three years and 23,800 in the last five years. That perhaps would go some way to explaining the rise in the number of claims in Scotland over the last five years about which others giving evidence have flagged up. On the subject of claims management companies, I appreciate that there has been concern that the bill does not make provision for the regulation. I am pleased therefore to be able to tell the committee that appropriate amendments to the financial guidance and claims bill currently being considered at Westminster have been tabled and are expected to be voted on later today at the Lord's Third Reading. Claims management companies will therefore be regulated in Scotland more quickly than was first anticipated. The third major reform is the introduction of qualified one-way cost shifting for personal injury cases. Qualified one-way cost shifting will level the playing field as the vast majority of defenders are well resourced and the majority of pursuers are of limited means. Although very few claimants are pursued for expenses by successful defenders, there is always a risk that a pursuer may be liable for considerable expenses and possibly bankruptcy if they lose. Sheriff Principal Taylor confirmed that there is real fear, which stops too many meritorious claims from getting off the ground. Qualified one-way cost shifting removes the risk as long as the pursuer and his or her legal team have conducted the case appropriately. The test of when the benefit of qualified one-way cost shifting can be lost has been the subject of varying views as witnessed by the evidence already given. Defender groups have suggested that the bar is too high and pursuer groups have contended that the bar is too low. Both groups have expressed concerns that the provisions that are drafted in section 8 subsection 4 will lead to satellite litigation. We will consider amendments at stage 2 to make it clear that it is the test envisaged by Sheriff Principal Taylor that are to be applied. The bill also makes provision for third-party funding. Sheriff Principal Taylor recommended that all third-party funding should be disclosed. However, only venture capitalists whose only interest in the case is commercial will be liable for awards of expenses. There have been concerns that awards will be made against trade unions and legal service providers. Trade unions do not have a financial interest in the proceedings, so they will not be subject to the award of expenses under the bill as drafted. We are considering whether an amendment is necessary to make it clear that providers of success fee agreements will not be subject to the provision. Finally, convener, I would wish to mention briefly the issue of group proceedings. As the committee will have seen, the proposal to introduce class actions to the Scottish courts has broad support. I am convinced that the way forward is to introduce an opt-in system as it is prudent when introducing a new procedure in the Scottish courts to select the option which will be easier and quicker to implement. However, that does not rule out introducing the opt-out procedure at a later date, and we will keep the issue under review. That concludes my opening remarks. I look forward to questions from the committee. Thank you, minister. We now move straight to questions starting with John Finnie. Good morning, minister. Thank you for your opening statement. Minister, we are told that the objective of the bill is to increase access to justice. We have also heard from a number of witnesses the suggestion that access to justice is not a problem. Can you outline why you think the bill is necessary, please, and how you believe it will improve access to justice? I think that it is important to go back to its first principles, if you like, and to reiterate what happens when you would be trying to bring in particular personal injury action. You would first of all want to know what your own solicitor was going to charge you, what that cost was going to be, and you would also, very importantly, want to know what your potential liability could be for the defender's expenses if you were to lose. That introduces considerable unpredictability in terms of what the bill will be for you trying to, in your view, assert your legal rights, and what the bill is designed to do is to deal with each of those areas of unpredictability in turn, and also to increase the funding options available to a pursuer seeking to take a claim through the courts. In terms of the greater predictability and certainty as to what your own solicitor could charge you, in terms of the approach that we have taken up from Sheriff's Principal Taylor, we would propose to have a sliding cap on the percentage that can be taken by way of success free from any award received. That is on the basis, as is described by Sheriff's Principal Taylor in his report, which we have taken up in the bill, that for the first 100,000, the maximum cap, now this would not be a requirement on the solicitor to charge a maximum cap, but this would be what the maximum would be, 20 per cent of 100,000. Between 100,000 and 400,000, the cap proposes 10 per cent, and above 500,000, the cap proposes 2.5 per cent. That gives some clarity there as regards outlays and personal injury actions that we have proposed in the bill that has been met by the pursuer's solicitor. Again, that is clarity as regards the issue of liability for defenders' expenses and what has been called the David versus Goliath asymmetric relationship between the pursuer and the defender in personal injury actions. What we have proposed, again taking up Sheriff's Principal Taylor's recommendation, is that in the case of personal injury actions, there could be what is called qualified one-way cost shifting, and I know that the committee is now an expert on this term of art, so I do not need to belabor that point, but we would propose that that happens for personal injury actions. Of course, the important word here is qualified, because it is not an absolute, but if assuming that the pursuer and their legal team have acted appropriately, then the benefit of the qualified one-way cost shifting should not be lost, and therefore there is predictability, uncertainty and removal of the fear that by seeking to raise a court action you could be sequestrated if you were found liable for the defender's expenses. As to why there should be this desire to create some equity and funding as between the pursuer and the defender, it is, as I mentioned, my opening remarks, seen as in the vast majority of cases it is very much a David and Glythe battle involving a defender who is an insurance company or is backed by an insurance company, and therefore these are the kind of key principles underpinning this legislation that we expect. Sorry, in one other issue I would mention here, of course, is that the solicitor profession will be allowed to pursue into damages-based agreements for the first time. All in all, we feel that that will allow potential pursuers to consider carefully whether they wish to pursue their rights in the courts by way of a civil claim, and not to not pursue that simply on the basis of worry about the cost to them and potential sequestration. Okay, thank you for that detailed answer. I think that there will be very specific questions on my now-fellow experts on the subject. Can I stick with the generality, please, minister? That is that we have had a lot of anecdotal evidence about the issue in this much-used phrase, access to justice. There seems to be a dearth of up-to-date research on that. I wonder whether you commit to doing some up-to-date research on the issue. What I would say is that I have read carefully the committee evidence thus far. First of all, on the issue of statistics, it has been brought out in the evidence thus far that the number of claims recorded has risen, but the number of cases being litigated has remained more or less the same since 2009-10. From the civil justice statistics, a slight drop in the number of cases raised, a personal injury case was raised, for example, in 2015-16 as compared with 2009-10. I think that that is important to bear in mind so that the number of cases before the courts in terms of personal injury claims has more or less remained constant, albeit that there have been an increase in claims. Many claims do not go anywhere or they are settled long before you get to the courts. On that basis, the suggestion that the world is very different to when Sheriff Principal Taylor was conducting his two and a half year long review is not necessarily convinced of. Of course, he did conduct a very long and thorough review and had a very impressive reference group who assisted him with his work. We also did proceed with a consultation on the bill as we are required to do. The consultation was in the first half of 2015, which is more recent. The majority of the responses, more of the responses, favoured proceeding with the bill in terms of the key provisions that we are proposing today than opposed those. Therefore, we do feel that we have as reasonable a picture as we can get because, of course, in the end of the day, raising a civil action is a permissive choice on the part of the pursuer. I can anticipate in any great numbers. Finally, I would say to the member that I think it was the representative from the Law Society of Scotland when giving evidence and discussing whether there should be a delay to wait for regulation of claims management companies through some vehicle, which we probably will get on to. I think that she felt rather let's just get on with the bill. I think that there is a feeling that we just want to make some progress with this amongst key stakeholders. The minister, if you could be quite brief in just asking the specific points because we will get on to more of the detail in our questioning. John Finnie. One final question, and I'll make this briefing. This was an area highlighted by trade union respondents who felt that this would remain a barrier for members pursuing personal injury claims, and that was the issue of court fees. They propose a cox-like solution where court fees would only be paid at the end of a case where the defender loses. Is this something that the Scottish Government will commit to investigating, please? What I would say is that you may be aware that there is an on-going consultation on court fees. I think that it was started in October, and it is due to close on 12 January, so that might be an opportunity for those who wish to have a look at that. On the issue of court fees, if they are not paid as you go, then somebody else is paying them, and that would be the Scottish Courts and Tribunals Service and the Scottish Taxpayer. That is something to bear in mind. When I read Sheriff Taylor's report, the point was made that the issue of 100 per cent cost recovery was not really something that, and quoting Lord Justice Jackson in England, was not really something that was ever an accepted principle of the law in terms of the law of cost, because it was felt rather that there should be some discipline instituted in the system such that it could act as a deterrent against frivolous claims and invoke discipline in keeping costs to a minimum. As I say, there is an on-going consultation on court fees, and I would imagine that some of these points will be raised in the context of that. Thank you very much. Thank you. Rona Mackay. Thank you, convener. In your opening statement, minister, you said that you were minded to approve the caps on success fees recommended by Sheriff Principal Taylor. Can you clarify whether that would be done through secondary legislation? Yes, we feel that that would be the better course. It would allow flexibility to keep these under review and to be able to amend where appropriate in due course rather than having to amend primary legislation, so it would be our intention to proceed by way of secondary legislation. As I indicated, at the levels proposed by Sheriff Principal Taylor, that would be an affirmative instrument and there would be a consultation on that instrument. Thank you. Can I move on to damage-based agreements and Solicitor's Conflict of Interest? Sheriff Principal Taylor recommended that a solicitor should be required to write to a client. It's outlining all those funding options and giving reasons for that recommendation. It's a bit unclear about how those matters will be taken forward, so can you outline what additional steps the Scottish Government is taking to address this issue of conflict of interest in damages-based agreements? Would that be either through secondary legislation or with the Law Society? That would, as far as damages-based agreements are concerned, be a matter for the Law Society to look at as far as the solicitor profession is concerned to look at in terms of practice rules applicable. I understand that it was referred to by Professor Alan Patterson that there is a working group of the Law Society that has been set up to look at that issue. I know that you have asked about damages-based agreements, but it is worth pointing out briefly that, as regards speculative fee agreements that have been in place for some 25 years, it is accepted that there is a theoretical conflict possible, but nonetheless that has not precluded the operation and practice of speculative fee agreements. Therefore, it would be fairly straightforward to come up with practice rules that have secured the objective that has been sought here. Just on a general level, what influence does the Scottish Government have over the Law Society in this area? Can you direct them or influence them more? They are an independent body, so it would not be appropriate, I do not think, for me as minister to direct the Law Society on this matter in terms of the practice rules. By the same token, I meet regularly with representatives of the Law Society, the chief exec and the president of the Law Society. We have wide-ranging discussions, so I would always be happy to raise issues, but I do not think that it would be for the Scottish Government to direct the Law Society on particular practice rules that they would be considering. Fulton MacGregor? My question is on the compensation for future loss, and we know that that can be important in meeting pursuers' future killings. Minister, do you think that we have struck the right balance in this particular bill in Allun, as part of that board to be taken as a success? I remember reading part of the Taylor review and then the bill very carefully. Of course, it is important to recall why Sheriff Principal Taylor felt that this would be a sensible way forward. The fact is that the consideration was that there could be a potential incentivisation of delay because you could argue that you would seek to delay settlement or the case coming to a conclusion because more loss would be attributable to the past than the future. I think that it was felt in terms of trying to make civil litigation more predictable, to simplify it, to ensure greater access to justice. I think that it was felt that, in many cases, particularly in settlements, if you were to spend time trying to attribute past loss and future loss in cases where you are not at your £2 million mark, I think that Sheriff Principal Taylor referred to where it was very clear that you are talking about future loss, then again you are using up a lot of time in coming to that conclusion. Also, it is important to say that there are safeguards. You are talking about a balance being reached and it is recognised that it is necessary to reach a balance and therefore there are safeguards such that where the future loss element of the damages exceeds £1 million, you would require to have the court approval to treat that as a lump sum from which you could take the success fee or, alternatively, in settlement situations, you would require to have an independent actuary to conclude that the payment should be made by way of a lump sum. In that regard, there are safeguards written into the bill. Finally, I understand from reading Sheriff Principal Taylor's evidence to this committee and his report that although Lord Justice Jackson, who proceeded with that in an equivalent, looked at cost and funding of litigation in England and Wales, had concluded that the future loss element should be ring-fenced, Sheriff Principal Taylor suggested that, in fact, he had understood that Lord Justice Jackson perhaps had some cold feet after that decision and felt perhaps he had responded to a particular lobby at the time. I think that we have struck the right balance between the two imperatives here and that is the way that we have drafted the bill. In following on for that, just briefly, minister, do you see any merit at all in the solution that the Faculty of Advocates put forward in terms of suggesting a taper in the amount that can be taken as a success fee? We do, in fact, have a taper and it is quite a straightforward one, such that in cases where it claims over 500,000 and up to a million, where you would not get into this necessity quite rightly for court approval or independent actuarial approval, the rate is 2.5 per cent. That is quite a good safeguard in that regard and I think is a more straightforward approach, the one that we have set forward and the one that I think the Faculty of Advocates were suggesting. My questions relate to qualified one-way cross-shifting and I know that you touched on some of that in your response to John Finnie earlier. That was a really interesting element to take evidence on because we had heard in evidence that one of my fears personally had been that you are not hearing about the David and Goliath scenario and that there will always be the case in personal injury cases where you are up against a larger body. We had evidence from the Faculty of Advocates who had suggested limiting coax to cases where the defender is insured at a public body. I wonder how you would respond to that evidence and if that is something that you have taken cognisance of. I have noted that debate with interest and, again, what Shared Principle Taylor said in his evidence session at the end of October. I think that it is an important point that he made that if there is a straw man, so if you have a defender who is not the insurance company or backed by an insurance company, then if you have a straw man, what is the point in raising the action because you won't be recovering any money? I think that that was one factor to bear in mind. If we go back to the fundamental objective of introducing qualified one-way cost shifting, that is to introduce predictability into the cost equation for a person considering taking an action and enforcing their rights. The predictability element is that if it is a no-win, no-fee and a damages-based agreement basis, then you go in and if you lose, you don't pay anything. If you win, then the arrangements are, as we know in terms of the provisions of the bill and that the pursuer would meet the outlays. I think that in terms of the predictability objective of the bill, it is important that we maintain the position as suggested. I think that it was suggested by Shared Principle Taylor that if you were to seek to make any qualification here, it could perhaps not preclude circumvention by the defender, so it may be a defender who should be getting insurance but has chosen not to be insured or seeks a much bigger excess when that would not be the normal commercial approach. I think also that it is important to remember here the evidence that was cited in Shared Principle Taylor's report where he referred to work done under Lord Justice Jackson's report such that in the samples of tens of thousands of cases cited, only 0.1 per cent of cases involved cases where the defender had recovered any expenses in those circumstances, so I think that that is important to bear in mind. Finally, of course, there is qualified one-way cost shifting. In England and Wales, that was introduced in legislation in 2012. Actually, there has recently been a UK Government's post-legislative scrutiny of that legislation, I think, tabled at the end of October of this year, and no significant concerns were raised about qualified one-way cost shifting. I think that taking all those factors into account and being them in mind, I think that we have struck the right balance in the bill. Thank you very much. The post-legislative scrutiny in England and Wales was something that I hadn't been aware of yet, so thank you for highlighting that. We'd also heard from witnesses that there was a concern that the test for losing the coax protection lacked clarity and may lead to further litigation. I was just looking to get your thoughts on that as well, because there was a particular concern that it didn't implement the Taylor recommendation of Wednesday's Unreasonableness. We have listened to the evidence presented and, of course, in the recent submissions. We would be intending to reflect on that further for stage 2. Obviously, we want the bill to be as clear on its basis as we can possibly ensure that it is. We do accept that there could be certain clarity introduced. As far as the general thrust of the amendments, which have still to be framed, our commitment was to introduce the test as envisaged by Sheriff Principal Taylor, and that would include with regard to the Wednesbury case. Suggestions have been made in the course of your evidence about what the phraseology would be, but at this stage today I am not in a position to say exactly, but we would be definitely seeking to implement what Sheriff Principal Taylor had in mind in that regard. Very helpful. Thank you. I just have one final question. Sheriff Principal Taylor had recommended that coax protection was also lost in an additional scenario when a case was summarily dismissed, and he saw that as being a protection against spurious claims. Is that something else that you have also taken into consideration and will be looking at? Yes, we will look at that. I think that it was a fair point that he made, and we will reflect on that as to how best that can be secured. Thank you very much. Liam Kerr. I would like to carry on in the line that Mary Gougeon is taking. The bill does not deal with tenders. When he appeared before the committee, Sheriff Principal Taylor suggested that the bill should make clear that the failure to beat a tender would be an exception to coax. Does the minister accept that recommendation, and will he be bringing forward amendments to deal with it? The issue of tenders, in fact, is normally dealt with as a matter of court rules. What I understand has been happening is that the cost and funding committee of the Scottish Civil Justice Council is reflecting on this and is actually to have a meeting on 4 December. I understand that we will get a better idea of what their thinking is in terms of potential court rules to deal with the issue of tenders as far as qualified one-week cost shifting is concerned for their meeting on 4 December. I take that as a potentially obvious amendment. It is clear that there was a desire to have a clearer picture of what would happen in such circumstances of a tender where a tender is not beaten and the impact vis-a-vis qualified one-week cost shifting. What I am saying is that, thus far, the issue of tenders has been dealt with by way of court rules, and it is the relevant court rules bodies that are currently looking at this, so we will be very interested to see what they propose further to the work that is currently undergoing. Thank you. The defender representatives to this committee have suggested that coax would encourage a compensation culture. They highlighted various additional steps that could be taken to protect against this and highlighted such things as fixed costs and pre-action protocols, which I think that I might be saying is something that is different in England and Wales in relation to that review that you alluded to. Can you outline whether the Scottish Government is going to take any action in these areas? Also, did you consider those in the drafting of the bill? If so, if they were considered, why were they not included? On the issue of the fixed costs, if one looks at Sheriff's Principal Taylor's report, he did refer to the issue of fixed costs and had recommended that that be introduced with regard to the new simple procedure, so the amalgamation of summary costs and the small claims. I also felt that that should be given time to bed down to see how that works as a matter of practice. On the issue of the pre-action protocols, there is a mandatory pre-action protocol in place for claims up to £25,000 in the Sheriff's Court. Obviously, the pre-action protocols are again a matter for the court rules and the Scottish Civil Justice Council as the body designated by the 2014 act to deal with those matters. It would be open to the Scottish Civil Justice Council and its sub-committees to look at the issue of extending the mandatory pre-action protocol to different levels of threshold of claim, but that would be a matter for them. On the issue of the compensation culture, it is fair to say that not all witnesses felt that there was a compensation culture in England Wales. They did not feel that there was one in Scotland and they did not feel that this bill would lead to one in Scotland either. It is important to reflect that part of the evidence as well. If I might just remain on compensation culture and what witnesses were feeling. We have heard various witnesses from various NHS boards suggest that there could be an increase in claims, which in some ways is the point of the legislation. Certain boards have suggested that they do not have insurance to cover such claims. Some have suggested that the increase in costs for clinical negligence claims would be very difficult to cover. Ultimately, pressures on the budgets as a result of an increase in claims could have an impact on healthcare delivery. Do you have anything to say to those NHS boards about their legitimate concerns? I am not aware of any NHS board that does not have insurance in place. That would be quite worrying. We will go and check that with colleagues. I would have thought that all the NHS boards would have insurance in place. We will check that point. Obviously, there are many factors here. The committee is aware of the damages bill that was referred to in the Scottish Government's programme for government. We will look at that forward early 2018. One of the elements of that will deal with mandatory periodical payment orders, which is circumstances where you have a catastrophic case and you need to make an arrangement for future loss and future caring arrangements. The periodical payment orders will allow that to happen. The provision in the bill will require that to be mandatory, to override the parties' views to the case, because, at the moment, both parties require consent to a PPO being granted. If one recalls that the bill provides already for the fact that, where you have a future loss element, if there is a PPO to be recommended, the damages cannot be taken from that element of the future loss, because there is a PPO element in consideration. That is an important safeguard in that regard. In general terms, going back to some of the points that I was relating to in my opening remarks, if a client comes to see a lawyer and there is no prospect of recovering any money, including for the lawyer, they are not going to take on the case. Also, a lawyer is an officer of the court and are subject to various rules and regulations, not to clogging up court time with vexatious cases and having stateable cases. The mandatory pre-action protocol will act as a help in that regard. Finally, the benefit of the cost-shifting can be lost but only in certain circumstances, but nonetheless it is not an absolute. Those are important factors to bear in mind. Forgive me, minister. I do not think that my question was sufficiently clear. Effectively, what I am saying is that more clinical negligence claims, more costs to the NHS, more pressure on budgets, do you have any response to the NHS in relation to that? I think that starting from first principles, if people have got a right to bring a claim, they have got a right to bring a claim and it will be for the court to determine or the parties to settle in advance of that, what the rights and wrongs of that case are. Therefore, if there has been a wrong and a failure to act, I do not think that you would be suggesting that there should not be a remedy for the citizens of this country. I think that it is fair to say that if you have a right, you should be entitled to seek enforcement of that right through the courts and have access to justice. As I say, the periodical payment element in terms of the proposed damages bill should play a role here because, of course, the success fee cannot be taken from the PPO, so I think that that would help matters here as well. Thank you. Maurice Corry. Good morning, minister. In respect to the regulation of claims management companies, would the minister make a comment that there will be no gap between the provisions of the current bill coming into force and the regulatory regime for the claims management companies being in place? I do not think that I would be in a position to do that because, as I indicated at the outset, we have had amendments tabled and they will be considered today in the Lord's further to the UK financial guidance and claims bill. If they pass and the legislation passes, then this arrangement will be set up by way of secondary legislation. I am not in charge of secondary legislation on the part of the UK Government. I do not have any control over the timing of that, but I would not anticipate that, if there is any gap, it would be unduly long. I would also make the important point that, when it becomes clear that regulation is coming down the line, coming imminently down the line, I think that that will have a significant impact on any pretensions of any claims management companies in that regard. Thank you. Minister, you have control of when this act goes on. Absolutely. I do have control over that. What I am saying is that there are two pieces of the picture here. One is what happens with secondary legislation in London and what happens here, but I am making the point also that, even if there were to be a short gap, nonetheless, there would be a clear signal that regulation was coming very shortly down the line and I think that that would be a big game changer in that regard. Maurice Corry. Thank you. I refer to the claims management companies who have been recognised as a significant source of news and calls and bear in mind that a significantly greater number in Scotland than the rest of the UK has been determined. The Taylor review made recommendations including a ban on cold calling and a requirement that only regulated bodies could receive referral fees. What steps are you taking to implement those recommendations? On the issue of referral fees, again, I would imagine that that is something that the Law Society would wish to be looking at in its working group. Obviously, for other regulated bodies being the claims management companies that will be a matter for their regulatory system under the FCA assuming that those regulations pass and the legislation passes as a whole Westminster. In terms of Scottish Government action, obviously the power jurisdiction for cold calls and techs is still a reserve matter to Westminster but I know that the Scottish Government has been active in this area and set up a nuisance commission and have been looking at a number of pragmatic measures that can perhaps help and also have set aside some funding to assist with call blocking units for vulnerable groups. There has been activity in the part of the Scottish Government but in terms of the referral fee issue that would be a matter for the Law Society and presumably for the FCA. Thank you. Mary Fee. Thank you, convener. I want you to explain a bit more detail about the issue of third party funding and I am grateful for the comments that the minister made in your opening remarks and you will know from our evidence sessions that unions particularly have raised concerns that they will be caught up in third party funding. To understand correctly from your previous remarks you intend to bring amendments. I wonder if you can give us any further detail about how those amendments will be framed so that there is absolute clarity on who will be caught up by this. Okay, I'm afraid I can't give you the chapter and verdicts exactly what the amendments will say because those are still as far as we are to be drafted but yes, we will seek to do that at stage 2 because we do accept that we need to introduce further clarity here. The view that actually as far as trade unions are concerned the current language wouldn't catch them but we will still reflect on all the points made just to be 100 per cent sure that our reasoning of this is correct. As regards legal services providers we do feel that there is an obvious lack of clarity there and we'll be looking at that. We understand the points being made and it's absolutely not the intention to have caught trade unions here or legal service providers. There are also commercial third party funders that this is about and that is what we want to ensure that the legislation achieves. So there will be a clear definition as to who you are meant to be catching and not and will we also in relation to the requirements on third party funders will you make it clear what their requirements are in comparison to general funders? Okay, on the first point as I say the drafting is still to be done but I do fully understand the concerns and these will be absolutely reflected in the drafting. Second on the issue of transparency that was to be an obligation on all third party funders so that the court and the other side knew what was going on in terms of funding and that will be again I think there was a concern that had been conflated a bit with the liability issue so again we will have a look at that and make it clear that that is an obligation that is Erga Omni's prerans the liability issue is for the commercial funders the venture capsules. It's helpful, thank you. Thank you Maurice Cork. Minister, in respect to the appointment of auditors of the court why does the Scottish Government consider that employment by the Scottish courts and tribunal service is a better guarantor of independence OK Is it a better guarantor? At least it provides the same guarantee as far as independence is concerned but I think the issues here in terms of my reading have been issues to do with accountability so for example the FOI process is not available at the moment so issues of transparency issues of better consistency because I know that a number of practitioners have concerns that this can from time to time be a bit of a lottery and clear guidance would be helpful also in terms of the status we advocate there should be salaried positions within the Scottish courts tribunal service we feel that the auditor should not be making a private profit out of a public service which is the position at the moment and we feel that the provisions will ensure the greater transparency and consistency of the very important part of the court process Can I also give us assurances that the current sheriff court auditors will be retained to work under their present regulations and arrangements until they choose to retire or until they reach a pacific age Okay In general terms I'm not sure if the point is to deal with the issue of security of tenure because the auditor of the court of session has security of tenure and that has been explained in the documents we've put forward and they will remain in tenure until they reach 65 which I think is 2022 or until they decide to go earlier if that is the case the position is not the same to the sheriff court auditors and for them they would be perfectly able to apply to be a salaried auditor in the Scottish Court and Tribunal system and that would be an option open to them Obviously it won't happen overnight that we will be able to get these new auditors in place and trained up and in operation so there will be a bit of breathing space but they will be entitled to apply to become a salaried auditor So there will be some overlap there will be some overlap until the system is in place There will be transitional provisions because we're dealing with existing situations and we have to reflect that in the work that we're doing here so there will be transitional arrangements in place Thank you convener As the minister did I remain the committee that I am I registered Scottish Solicitor Good morning minister I just want to bring a number of questions with regard to part 4 We heard a variety of evidence particularly last week on this matter and you touched on it at the beginning about the implementation of an opt-in system being more easier to implement and more efficient in the short to medium term but with an openness to potentially making it an opt-out in the future Initially could you perhaps explain why and more give a further explanation as to why the Scottish Government has chosen to reject the option of an opt-out procedure at this stage Okay, this has been a debate that's gone on for many decades actually group proceedings in Scotland which I hadn't appreciated until I did all my homework and it's I think 30 years so I think we're quite keen to make some progress and to do that it was felt that it would be more straightforward to start with opt-in this is a new procedure for the courts in Scotland we don't have group proceedings as such at the moment so this would be entirely new and we felt that the prudent course of action the more pragmatic course of action would be to start with opt-in which of course is more straightforward because there is a defined group that would be opt-out and to proceed on that basis I think it was Paul Burns of the legal services agency who made the remark that whilst his preference would be opt-out nonetheless if it was going to take five years he'd rather just start with opt-in so that we could make some progress with this and I think that is driving our pragmatic approach to this that it is more straightforward to start with opt-in one of the other issues that have been raised in reference to this issue by way of a comparison and it would be straightforward to do that there will be court rules that require to be drawn up and that is not an overnight process but it would be more straightforward to have a package of court rules dealing with opt-in over a shorter period of time than to try to then come up with a package of rules for opt-in and opt-out over that would take a much longer period of time in terms of looking at how long it has taken various court rules to arrive at final conclusion obviously there would be a consultation there would be a consultation on those court rules so there would be an opportunity for people to comment so that was really our thinking behind why we have put forward the opt-in procedure at this point and as the member says it is important to start somewhere and make progress on that basis That pragmatic management is very important and what was striking in the evidence was that the opt-in procedure for communities is clearly more accessible but there may be an administrative burden when it comes to consumer and environmental cases and it is reassuring that the Government will keep an open mind going forward but I agree that there was a welcoming of the opt-in procedure last week as well as a sense of idealism that an opt-out in the longer term would be preferable Witnesses also highlighted that funding group proceedings could be a problem and can be a problem historically Could you comment on whether the Scottish Government has a plan to develop any support mechanisms in order to tackle this a specific fund? The funding arrangements would be legal aid or success fees that would be the general approach and in terms of legal aid obviously there would be requirements to amend current rules and that would be that the legal aid review currently on-going may have certain views on Going back briefly to the issue of the general view about opt-in opt-out Reading the evidence it seems to me that every single stakeholder has supported opt-in including the Law Society of Scotland which changed its mind and the one that hasn't supported opt-in is which organisation prefers opt-out so I think that's important that the weight of stakeholder involvement suggests that they would perhaps for pragmatic reasons how they would wish to proceed in a long term but would accept proceeding with opt-in in the first instance You mentioned as well earlier about the detailed rules on group proceedings and that those will be developed by the Scottish Civil Justice Council Does the Government have any control over this process at all going forward? Well, not as such because you've got the separation of the courts but we have input on the Scottish Civil Justice Council and its various sub-committees we have representation and indeed on the Scottish Civil Justice Council you have wider representation Government, consumers others stakeholders, various stakeholders so you have a fairly wide representation and so we have input into the process but we don't control it because we are it's not really appropriate for us to control the courts and such because there is the separation of powers Indeed, indeed but just to provide some reassurance to stakeholders and all of us in the interests of access to justice given that there have been calls to develop a group proceedings element in Scots law for over 35 years but this is when it's happening and we all, I'm sure, welcome that if the Government doesn't have as you said rightly because of separation of powers direct control over the process are you confident that this latest initiative won't be bogged down in detail or kicked into the long grass? Okay, on the latter point I don't believe it would be kicked into the long grass at all, I mean I think people want this to happen and now you're seen as the moment in time that we should really get a shifty on here and sorry, that's not perhaps what the official report so what we would do is we would issue, as we have done before a policy note so that would give a really clear idea of the Government's general sense of direction here and their thinking on that and happy to reflect if on the face of the bill there may need to be some other language to land effect just to give a clearer steer here but absolutely this is not going to be kicked into the long grass we want this to happen and I think the stakeholders want this to happen as well Thank you minister, thank you Liam Kerr, did you have a declaration? Yes, forgive me minister just before putting my questions on intended to declare an interest as a solicitor with the current practice certificate with the Law Society of England, Wales and the Law Society of Scotland Just one final question minister is concerned about the unusually wide scope of section seven four of the bill which would enable amendments to be made to part one through secondary legislation could the minister perhaps provide specific examples to explain why the modification of part one under this delegated power would be necessary and proportionate? Okay, I think I can say that where the officials are aware of these issues I don't know if you'd want to say something just now, hey, make sure perhaps we could write to the committee on this perhaps more technical quite technical, I'm getting advised it's quite technical and if we could maybe write to the committee on that fairly It's certainly of concern the unusually wide scope Okay, we're happy to write to the committee convener we'll do that in short order happy to receive that and there are no further questions of the bill and the minister and her officials for attending that concludes our 34th meeting of 2017 our next meeting will be on Tuesday 5th of December when we take closing evidence from the minister on the offensive behaviour at football on threatening communications through pill and consider a draft report on stage one of the civil litigation bill and also because we didn't complete the stage 2 amendments on the domestic abuse bill we'll complete these on 5th December I now close this meeting of the justice committee