 The next item of business is consideration of business motion 11847, in the name of Joe Fitzpatrick. On behalf of the parliamentary bureau setting out a timetable for the stage 3 consideration of amendments to the civil litigation expenses in group preceding Scotland Bill, I ask any member who wishes to speak against the motion to press the request to speak button. I call on Joe Fitzpatrick to move motion 11847. No member has asked to speak against the motion. The question is that motion 11847 be agreed. Are we all agreed? The motion is therefore agreed. The next item of business is stage 3 amendments to the civil litigation expenses in group preceding Scotland Bill. In dealing with the amendments, members should have the bill as amended at stage 2. That is SP Bill 14A, the martial list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press the request to speak buttons as soon as possible after I call the group. Members should now refer to the martial list of amendments. I call group 1 amendment 34, in the name of Margaret Mitchell in a group on its own. Margaret Mitchell, please to move and speak to amendment 34. For an ordinary member of the public, understanding civil litigation can be a complex and confusing process. The civil litigation expenses and group proceedings bill seeks to increase access to justice. It introduces, under success via agreements, provision whereby a lawyer, using a damages-based agreement, can take a share of their client's compensation for injury, which can include both past and future loss. Amendment 34 therefore seeks to ensure that the bill's provision gives the consumer protection by ensuring that the injured pursuer has the relevant information to make informed choice about whether to accept the terms of the success fee agreement on offer where the damages are awarded not by a court but through a negotiated settlement. The amendment ensures that, before the success fee is agreed, which can include damages-based agreement, the solicitor or provider has explained in writing to the client how the terms of the success fee agreement would determine the fee payable in relation to the different elements of damages that may be obtained. The onus is on the lawyer to state in writing that the amount being taken as part of the lawyer's fee is fair and reasonable. It also ensures that the client has confirmed in writing that they have understood and agreed to the terms of the agreement. In addition, amendment 34 ensures that, after an offer of damages is received, but before it is accepted, the recipient fully understands how much of the damages are being paid to their lawyer and, in particular, to what extent the part of the offer that relates to damages for future loss is being claimed as part of the lawyer's fee. It is important to recognise that future loss is awarded to an injured pursuer to cover their future care, which can include lost earnings, while an injured person is off work recovering, or travel expenses for expected future hospital appointments. In more serious personal injury cases, it could cover loss of all future earnings, as well as costs of future care and specialist equipment that may be needed. It is crucial that an injured pursuer fully understands, if his case is successful, how much of his future loss entitlement, which can vary from very complex care needs, will instead go towards his solicitor's fee. In addition to that, the amendment ensures that the lawyer must provide a certificate that the fee payable is fair and reasonable in the circumstances of the case and that no conflict of interest or undue influence has arisen, which also provides protection for the lawyer. In conclusion, the minister indicated that she thought that the law society should be responsible for providing, in essence, the client protection. However, as the law society lobbies for the best interests of its members, I do not believe that it is best place to set out what form that protection would take after the bill has been passed. By contrast, amendment 34 sets out now provisions on the face of the bill to ensure transparency and openness in a success fee agreement and that an injured pursuer has the necessary information to enable them to make an informed choice as to whether to accept the agreement or not. As such, the amendment provides checks and balances that serve to protect both solicitors and clients from any underlying potential conflict of interest. I move amendment 34 in my name. I share many of Margaret Mitchell's concerns. It is important to note that Margaret Mitchell's ingoing comment on the proposal set out in the bill is about increasing access to justice. As we do so, it is important that individuals who are bringing forward cases do so in the fullest possible knowledge and that their interests are protected. However, we do not support the amendment for the following reasons. First and foremost, it introduces an unnecessary layer of bureaucracy that requires arguments and reasons to be set out in writing and does not necessarily protect clients' interests in the way that Margaret Mitchell sets out. Critically, the argument that has been made by some in the legal profession is that it would prevent the so-called at the court door settlements, which are often in the client's best interests, preventing court action and arriving at an agreement that ensures that the client's interests are looked after. However, perhaps finally and indeed to the comments that Margaret Mitchell made regarding the Law Society and who is best placed to look at them, lawyers in the end of the day and in the final analysis are a highly regulated profession solicitors that undergo a great deal of scrutiny. Indeed, they are required by law in order to uphold their client's best interests. If there is an issue here, I would suggest that it would suggest a much wider issue with the profession and one that would be best looked at from a regulatory point of view, rather than through the specifics of the bill. For those reasons, we will not be supporting amendment 34. I, like Daniel Johnson, think that Margaret Mitchell very fairly identifies an issue in terms of the access to justice that is predicated on there being a level of transparency and a level of predictability in terms of what any litigant might expect from the process. However, again, like Daniel Johnson, I share some of those concerns about the proposals in amendment 34 that would be seen in practice as fairly cumbersome and not necessarily in the best interests of the individual. As Margaret Mitchell has rightly identified, the Law Society themselves are developing proposals. I think that this is probably one of those areas where with a five-year review clause built into the legislation, there will be an opportunity to keep on the review whether or not those processes that the Law Society is undertaking to bring forward are fit for purpose, but on that basis and for the reasons that Daniel Johnson has identified, we will not be supporting the amendment. At the outset, I would wish to refer members to my entry in the register of interests, wherein they will note that I am a member of the Law Society of Scotland. I do hold a current practicing certificate, albeit that I am not currently practicing. Amendment 34, in the name of Margaret Mitchell, would put on the face of the bill certain requirements for a success fee agreement to be enforceable. I would ask Parliament to reject the amendment, as it undermines the principle of an independently regulated legal profession. At the same time, the provisions that are proposed in the amendment are unnecessary, and I will deal with that second issue in a moment. Turning to the first point, the amendment would mean that substantial provisions about solicitors' professional obligations would be fixed in primary legislation rather than in law society rules, which are, aside from any other consideration, much more flexible in terms of updating and so forth. The amendment therefore appears to strike at the heart of an independent law society and does not take any account of the principle that professional rules are best made by a professional body. Chair Principal Taylor has commented that he believes that the second part of this amendment in particular is impractical. Taking into account the fact that, as Daniel Johnson mentioned, a number of cases still settle at the door of the court. Chair Principal Taylor believes that, in particular, sub-paragraphs 1 and 2 would be difficult to comply with and points out that the solicitor is already under an obligation to comply with the provisions, which the amendment calls to be certified in sub-paragraphs 3 and 4. If those provisions are inserted into primary legislation, there is also a question of who is going to be responsible to regulate them as it stands. It is not clear from the amendment that the law society would have that responsibility and, therefore, that is a matter of uncertainty as well. It is a fundamental principle of maintaining an independent legal profession that there is no state interference or influence exerted. The Scottish Government is committed to the principle of an independent profession and I would ask the Parliament to support that principle. It is, I am sure, well known that Scottish Solicitors, as I said, are already required to act in the best interests of their clients at all times and must ensure that their clients understand fee arrangements and give informed consent. Success fee agreements are not new, indeed they have been in place in some form since the 1990s and any theoretical conflicts and other issues have not prevented, in the case of speculative fee agreements, those agreements have been rolled out since that time. Where the provider of relevant services is a claims management company, of course it will fall under the regulation of the financial conduct authority. Finally, I wish to mention that the law society has set up a working party that is currently looking at success fee agreements and what provisions should be made in law society rules and guidance to govern their terms and any other relevant issues. What I can say to Margaret Mitchell is that I understand what is motivating the amendment that she has put forward, so I undertake to the right to the law society to draw the attention to the points that Margaret Mitchell's amendment raised. Of course, the Scottish Government will work with the law society as the bill is implemented to ensure that the provisions relating to success fees are implemented in a way that best gives effect to the principles of the bill in summary. Amendment 34 provides for matters that should not be set out in primary religious legislation, which risk undermining the principle of an independently regulated legal profession and which are more appropriately handled in rules and guidance provided by the Law Society of Scotland in its capacity as regulator of solicitors. Hence, I would ask Margaret Mitchell to consider withdrawing amendment 34. Thank you, Margaret Mitchell, to wind up and to press or withdraw her amendment. Thank you, Deputy Presiding Officers. There have been a number of points raised here. Daniel Johnson raised the point that it might prohibit at door court settlements, but there is nothing really to distort a written pro-former being available that the client can set there. That would only be strengthened against a background of this amendment being passed. In terms of ensuring that the pursuer has taken the decision with fully informed choice, I think that that really does outweigh anything that might be looked to be cumbersome, because let's not forget that, as it was argued during stage 1 and 2, those losses are for very often complex needs, essential care, and if those are being written into—and it's not as if the lawyers don't have another way of being re-numerated—it could have, indeed, very adverse effects for the pursuer in an injury claim. Although all lawyers have a duty to act in good faith and in the objective interests of their clients, sadly, that is not always the case. I believe that it is now important, rather than waiting some time in the future to see what the law society may or may not come up with in terms of success, fee and agreements, to put on the face of the bill the protection that amendment 34 would provide. I move. I've got to press it now, you've moved it already. The question is, amendment 34, be agreed to, are we all agreed? No. We're not agreed, there'll be a division. As this is the first division of the stage, the Parliament is suspended for five minutes. Thank you. We'll now proceed with the division on amendment 34. This is a 32nd division. Members should cast their votes now. The result of the division on amendment 34 is as follows. Yes, 29, no, 84. There are no abstentions. That amendment is therefore not agreed. I move on to group 2, amendment 5, in the name of the minister. Group with amendments 6, 7, 8, 13 and 14, minister, please, to move amendment 5 and speak to the other amendments in the group. Thank you, Presiding Officer. Amendments 5 to 8 are technical in nature. We have been working with Her Majesty's Treasury on the UK financial guidance and claims bill, which will now regulate claims management companies in Scotland. The Treasury envisages success fee caps being imposed by professional rules. Those will be rules of the financial conduct authority in the case of claims management companies or rules of a legal services regulator in the case of solicitors. It is thought at present that there is little likelihood that success fee caps and professional rules and success fee caps under section 4 of this bill will interact. Success fee caps in professional rules could, however, interact with success fee caps under section 4 if the Westminster secondary legislation on claims management companies changes at some point in the future. In addition, the current legal services review that the Scottish Government has instructed could lead to changes in legal profession regulation that change the extent or nature of professional rules applied to solicitors. Therefore, what we are seeking in effect to do here is to provide future proofing. Specifically, the Financial Services and Markets Act 2000, which is to be amended by the UK financial guidance and claims bill in order to regulate claims management companies, will allow the Treasury to make regulations to give power to the FCA to make professional rules. Such rules would be tertiary legislation. Amendments 5 to 8 amend section 4, subsection 3, subsection B and subsection 4 of the civil litigation bill to ensure that success fee caps made in professional rules in accordance with an enactment will be treated the same as success fee caps made in an enactment. The policy in section 4 has always been that where there are two sets of fee caps, it is the lower one that has effect. The amendments reflect that a fee cap in professional rules might not count as a fee cap in an enactment and therefore the relevant text will become by or in accordance with an enactment. To reiterate, we do not expect the Westminster fee caps as currently proposed by the Treasury to interact with those to be provided further to this bill. Amendments 13 and 14 are also technical drafting amendments. Amendment 13 combines subsections 2, B and 3A of section 10 into one subsection, which indicates the circumstances where subsection 2A does not apply. Thus, there will be a single subsection providing that the providers of success fee agreements and trade unions and staff associations will not be at risk of an award of expenses. Amendment 14 is another technical drafting amendment that ensures that the first reference to the Lord President of the Court of Session in section 13A of the bill uses the Lord President's full title. The Lord President's full title is already used in section 9, 3. Since both amendments are minor and technical, they do not make any substantive changes to sections 10 and section 13A. I move amendment 5, Presiding Officer. No member has indicated the wish to speak. Minister, do you wish to wind up? No. Thank you. The question is amendment 5. We agree to. Are we all agreed? We are agreed. Amendment 6, 7 and 8, on the name of the minister in all previous debates on amendment 5, can invite the minister to move the amendments 6 to 8 on block. Does any member object to a single question and put on amendments 6 to 8? No one. The question is that amendments 6 to 8 are agreed to. Are we all agreed? Group 3, a call amendment 1 in the name of Daniel Johnson group with amendments 2, 2, 2A, 3 and 4. Daniel Johnson pleased to move amendment 1 and speak to the other amendments in the group. I move amendment 1 and will speak to amendments 1 to 4 in my name and against Margaret Mitchell's amendment 2A. Apologies in advance, Presiding Officers. Those are complex amendments and may take some time to rehearse the arguments and issues. I would also like to declare an interest as a proud trade genius and a member of community and us-daw trade unions. I have also worked with the STUC and lawyers that work with them who work on personal injury cases with regard to those amendments. Ultimately, the decisions that this Parliament makes on this bill are around access to justice. On each amendment, we should ask ourselves one clear question, set one clear test as we vote, which is this. Does voting for the amendment increase access to justice or reduce it? Indeed, that is precisely what is at the heart of Sheriff's Principal James Taylor's proposals and at the heart of this bill. Furthermore, we must ask ourselves, does it make it more or less likely that a claimant who has been wrong will get the justice that they deserve and, importantly, where damages are awarded, does it make it more or less likely that he will get the true value of their claim? The Justice Committee at stage 2 decided to accept amendments from Margaret Mitchell's. My amendments today seek to reverse that decision and I would like to explain why. The issue at hand is whether success fee agreements known as damages-based agreements and best known as no-in-no fee are allowed to include any proportion of future losses in the fee for the lawyer. On the face of it, as I am sure Margaret Mitchell will argue, that does seem unfair. The argument goes that lawyers should not receive a single penny of the damages awarded for the cost of catastrophic injury. However, we must return to that test. Does that actually increase access to justice? Sheriff Principal Taylor, the architect of the legislation, as the author of the report that led to the bill, wrote to the committee in a surprising and extraordinary move in many ways and set out in the starkest possible terms his view of the bill as it was amended at stage 2. He wrote that the amended bill posed an existential threat to damages-based agreements being offered in higher value cases in Scotland. In other words, if you ring-fence future losses, lawyers are simply not incentivised to offer no-in-no fee agreements for those higher value cases. Sheriff Principal Taylor's report had to strike a balance, a carefully constructed balance, to ensure that lawyers would offer no-in-no fee agreements to those who have suffered catastrophic injuries. To do that, he allows lawyers to include a small and importantly capped percentage of damages. That means that lawyers will be incentivised not just to pursue catastrophic cases but to ensure that they are settled for the maximum possible value. In other words, the interests of the client and the lawyer are perfectly aligned. So what if we do not reverse the amendments that were put through at stage 2? What would the impact be? Sheriff Principal Taylor is very clear. The likely outcome is that cases will either not be raised at all or will settle for considerably less than the true value of the claim. That is a direct quote. Furthermore, the law society agrees, and again, to quote them, to ring-fence future losses from the calculation of a success fee, may mean that success fee agreements will not be offered in the higher value cases as it is simply not economic to do so and the public at large will be the poorer. The reason that we can be so sure about this is that, in England and Wales, a recent change along those lines has led exactly to the situation that was outlined by Sheriff Principal Taylor in the law society. No in no fee agreements are simply not used to fund personal injury actions and, thus, access to justice has been greatly diminished. Furthermore, ring-fencing future losses could lead to past losses and future losses being treated very differently in the courts, leading to two unintended consequences. Those with existing losses—losses already incurred—would have more opportunity to bring forward litigation than those who have suffered future losses due to the greater availability of success fee agreements. That feels inconsistent and unfair. Furthermore, it could incentivise the delaying of action so that past losses are incurred rather than future losses at the point that court action is carried forward. To Margaret Mitchell's amendment 2A, firstly and most fundamentally, it is based on an assumption that the court fees awarded to lawyers are sufficient. At present, the fees that lawyers receive for cases are simply not enough to cover their costs. If they were, no one would be going down the current damages-based agreement route, but they do so in very large numbers. They do so on the basis of lawyers taking 20 to 35 per cent cuts of the total damages amount. The bill gives ministers the ability to regulate the allowable deductions that lawyers can make as part of their agreement. Sheriff's principle James Taylor has recommended a sliding scale of 20 per cent on the first £100,000 than to 2.5 per cent on damages over £500,000. That represents a reduction on the current situation. Crucially, ministers are able to alter those scales by regulation, so that, if it comes to the past, there are unintended consequences that lawyers are taking disproportionate sums from awards, that that can be modified. Most critically, I believe that Margaret Mitchell's amendment makes a crucial error in terms of the way that it is drafted, because it simply does not allow for that flexibility. Instead, it hard-codes figures regarding the proportion and the value on to the face of the bill, removing the flexibility and the ability to make different decisions in the future. Unfortunately, those figures, which Margaret Mitchell has chosen, do not come from Taylor's carefully balanced proposals, rather they come from the insurance industry's own briefing papers. While I perfectly understand that the insurance industry is right, and it is only right that they pursue their own interests and the interests of their industry, we must take a much broader view in terms of the interests of this legislation. Clearly, it is in the insurance industry's interests to reduce the number of cases brought and to reduce the value of the final claim settled rather than increasing those things, which fails my critical test set out at the beginning. Finally, this group is not a minor point in this bill. Taylor, the architect of this legislation, says that if we do not reverse the amendments that were made at stage 2 by passing amendments 1 to 4, the bill will, and I quote, make access to justice less accessible to the man in the street than if he or she had not reported. That is a stark warning indeed, so I urge you to vote for the amendments 1 to 4, in my name, and against amendment 2A. Please move amendment 1. I move amendment 1 through 4. No, just 1. Just 1. Just 1. Apologies. Thank you. Can I ask Margaret Mitchell now to speak to amendment 2A and other amendments in the group, please? Thank you, Deputy Presiding Officer. Amendment 2A amends amendment 2 lodged by Daniel Johnson, the effect of which is to remove the ring ffencing of future loss approved by the Justice Committee at stage 2. I therefore lodged amendment 2 in the event of amendment 2 being passed in an attempt to mitigate the potential adverse consequences of future care costs loss to lawyers fees. That is because, under the terms of the bill as introduced, a success fee agreement can include damages-based award as a part of the solicitor's fee, and that can include past and future loss. In recognition of the importance of protecting future loss and the associated care and support for injured pursuers, the Justice Committee amended the bill at stage 2 and ring ffenced future loss. That was supported by the European Court of Human Rights, as well as those representatives of the insurance industry. However, Sheriff Principal Taylor subsequently wrote to the committee to express his opposition to the decision and set out reasons why Daniel Johnson has accepted lodging the amendment. In support of the view, Sheriff Principal Taylor stated that, in England and Wales, the effect of ring ffencing future loss on DBAs was that lawyers would not enter into a DBA. However, in doing so, he has not taken into account that, in Scotland, unlike England and Wales, lawyers enter into DBAs and can, in addition to those damages-based agreements, also claim judicial expenses and, potentially, an additional fee that recognises the complex nature of the cases that can take many years to conclude. That additional fee or uplift can amount to three or four times the original ward for judicial expenses. In effect... Would she recognise that the awarding of additional fees, such as she set out, and such as she is pinning such a great deal of straw by, are only awarding 5 per cent of cases? Is that sufficient grounds to rest her argument on? We are looking at a new set of legislation here, where it is clearly set out that those are very complex cases. The awards amounts that we are talking about refer to those specific cases. I rather think that the percentages that you are quoting do not reflect the amount of judicial expenses that recognise the complexity of the case. The point of amendment 2A therefore is to try and mitigate the amount that a solicitor can claim from their clients award as part of their fee to recap. If future loss remains ring fence, there is no question of an injured pursuer's future care loss being eroded as part of a solicitor's fee. However, if Daniel Johnson's amendment passes, only awards over £1 million will be the subject to conditions that are set out in the bill. There is no provision on the face of the bill for the amount of damages that lawyers can claim, as the Scottish Government has left the determination of the amount to regulations. Amendment 2A therefore seeks to cap the amount of success fee claimed in damages-based agreements to 1 per cent of any amount awarded over £500,000, which is the kind of sums that tend to be involved in complex personal injury cases. I consider that one of the least persuasive arguments that Sheriff, Principal, Taylor and Daniel Johnson deploy in opposing ring ffencing of future loss is that this might lead to unscrupulous lawyers delaying cases in order to increase the past loss amount from which they can take their fee. Surely we should not be regulating to look at a small minority of people who do not reflect the practice of the law society's members. Surely the whole point of the bill that seeks to increase access is that it seeks to increase access to justice for an injured pursuer and make sure that they receive the support for a care passage that they need for future loss. It is difficult to admit that you got it wrong, but I think that that is exactly what the committee did, all of us at stage 2. I think that they are mitigating circumstances. Undoubtedly, the issue that we are discussing is that Daniel Johnson intimated in his opening remarks was one of the most sensitive that we had to wrestle with during the course of our scrutiny of the bill, which is, after all, about increasing access to justice. Increasing access to justice for those who have been most grievously harmed or most grievously wrong, carried out a particular significance. However, ring ffencing future losses as happens in England and Wales and as we voted to support at stage 2. Although motivated, I think, still by the best of intentions, I am now convinced that we would have perverse consequences that were fairly graphically set out by Sheriff Principal Taylor in his letter to the committee post stage 2. Sheriff Principal Taylor recommended damages for future loss included in success fees if and only if the future element is to be paid in a lump sum. If future element is to be paid by periodical payment, then those damages are not to be included. I was struck going back over the official report of stage 2 by something that the minister said when she pointed to the change to the discount interest rate and the provisions in the damages bill and said that it seems to be much more likely that, in future, the element of damages payment relating to future loss will be made by means of a periodical payment order. It is also worth bearing in mind that if the future element is more than £1 million, then the court will have to agree that it is in the client's best interest for that to be paid in a lump sum. If it is agreed by settlement, an actuary would be involved in that decision as well. There is no getting away from the fact that DBAs have proved themselves popular, even where success fees of anything up to 60 per cent are being charged. As Sheriff Principal Taylor pointed out, the amended bill, as it stands without the amendments that were brought forward by Daniel Johnson, poses a potential existential threat to DBAs. Surely it would be better to cap those at 2.5 per cent, as is proposed. It is, as I say, not easy to admit that you got it wrong. I have had the experience of speaking against an amendment that I had lodged, so there are degrees of discomfort in that regard. However, I do believe that ring ffencing future losses might indeed work against the interests of the very people that we are seeking to protect and provide access to justice for. For that reason, we on those benches will be supporting amendments 1 to 3, proposed by Daniel Johnson. I would align myself with the comments of my colleagues Daniel Johnson and Liam McArthur. I am prepared to say that it is important that we constantly reflect and certainly Sheriff Taylor did not let her cause me to reflect. He is the architect of the legislation. In the recurring phrase, I do not doubt that you will hear today and in the future debate, is access to justice. To me, that is at the core of it. It may very well seem entirely counterintuitive when you hear phrases like, lost to lawyers freeze to see hard fought for awards going that way. However, I want to mention two phrases that Daniel Johnson said, and that is the mutual interest. It is that joint interest of working together between the client and the lawyer that is important. I also want to point out, as Daniel Johnson did, about the role of regulation for allowable deductions. I think that that is important too. The most important thing is that, if the purpose of the legislation is to increase access to justice, then the phrase that Sheriff Taylor used, not raised at all, is something that we want to avoid. I would encourage members to support Daniel Johnson and oppose Margaret Mitchell. I rise to speak against amendments 1 and 2, but in favour of amendment 2A, if amendment 2 is passed and confirm, we will vote for amendments 3 and 4. At the outset, let me declare that I am a practicing solicitor and I hold practice certificates with both the Law Society of England and Wales and the Law Society of Scotland. Amendments 1 and 2, in the name of Daniel Johnson, seek to allow pursuers solicitors to take an element of the claimants damages for future loss when calculating their success fee. The amendment to ring-fence damages for future loss was introduced at stage 2 when calculating the success fee. It was unopposed at the time. I believe that ring-fencing of damages for future loss is the right thing to do. Where someone has been injured, damages for future loss are paid to put them back in the financial position that they would have been in had they not been injured, but also, crucially, to fund the costs of care and support. A need has been identified and a sum has been awarded to cover it. I cannot see that it is right to reduce any element of that and, thus, potentially prejudice the amount that is available to the pursuer for their future care and support in order to reward and incentivise pursuer solicitors. Yes, Mr Johnson. Just on that very point, would he not recognise that the proportion is currently being awarded as much as 60 per cent, as Liam McArthur pointed out? Is argument only ring true if judges' awards were 100 per cent accurate? I do not believe that any judges' award assessment of future losses would be accurate to within 2.5 per cent, unless he can correct me on that point. Liam Kerr. I think that the important point, just before I deal with that, because I will come back on to that, I just want to take a point that Daniel Johnson made earlier, because he criticised the insurance industry for allegedly wishing to reduce claims. In the same breath, he lionised, without caveat, the words of those lawyers who wished to ensure that their fees are enhanced. In closing, Daniel Johnson would like to address that. In terms of the level of the award, I speculated with various witnesses in the committee that it is difficult to see why a court would not, over time, as I believe has happened elsewhere, gently and understandably increase the award to ensure that the full costs of care are recovered after the solicitors have taken their fee, leading to a damages inflation or even overcompensation. I wonder what evidence the member will be able to cite to support the claim that he has just made. Obviously, he will be aware that that has been refuted by, for example, Apple, the Association of Personal Injuries Lawyers. Liam Kerr. Quite so. In committee, we had various evidence that suggested that there was a possibility of that and in other jurisdictions that had happened. I accept that there is differing evidence but, as I pressed on various witnesses during the committee, I think that it is possible. The logical progression is that we could see that happening, based on the point that Daniel Johnson made earlier. I think that the committee was right to ring-fence future losses at stage 2. We will oppose Daniel Johnson's amendments 1 and 2 to ensure that people are not being undercompensated for their future care. That being said, if Parliament is not with me on that, I urge support from amendment 2A in the name of Margaret Mitchell to cap success feed applied to future losses at 1 per cent in order that those who receive future losses have provided for their care retain as much of their award as possible. I rise to support Daniel Johnson's amendments 1, 2, 3 and 4. The bill was introduced follow-share principle Taylor's recommendation that an award for future loss in personal injury, success fee agreements should not be ring-fenced. In other words, future loss should not be excluded from the calculation of a success fee in cases taken forward under a success fee agreement in circumstances where the future loss element is to be paid as a lump sum. That is not the position of course where the future loss element is to be paid by way of a periodical payment order, as we have heard, in such circumstances ring-fencing will indeed apply. Considerable concern was expressed in the Justice Committee stage 1 report that those unfortunate claimants with catastrophic injuries would not receive the full amount awarded by the court if the part of their damages attributable to future loss was included in the calculation of the success fee to be paid to the legal representatives. That point has been made already this afternoon. Margaret Mitchell's stage 2 amendments provided that the future element in any award for personal injury be excluded from any uplift by a legal services provider in a success fee agreement irrespective of whether it was to be paid by way of a lump sum or by way of a periodical payment order. I, too, supported the amendment at that time on the basis that we believed that the amendment would, as a matter of practice, affect very few cases and that those cases would mainly involve claims relating to catastrophic injuries and no other particular cases. Since stage 2, however, the Scottish Government has been in discussions with Sheriff's Principal Taylor, the Law Society of Scotland and the Association of Personal Injury Lawyers. We have also received submissions from other bodies. Two important considerations have come to light. First, we now believe that the stage 2 amendments relating to ring-fencing future loss in all circumstances might have the unintended effect of restricting access to justice. We are, as the Scottish Government believes, that awards for future loss only affected a very few high-value cases. We are now informed that this is not the case. The Law Society has indicated that even low-value cases of, for example, some £3,000 might contain a future element to the award of settlement. The future loss element of a claim is often complicated and involves a solicitor in a considerable amount of work. As the Law Society put it in its letter to the Justice Committee of 14 March, the calculation of future losses is often the most complex and time-consuming aspect of a personal injury claim. If the solicitor is unable to be remunerated for that work through a success fee agreement, he or she might not be able to offer damages-based agreements for personal injury cases. Sheriff Principal Taylor confirmed that this was a possibility in his letter to me of 8 March, which was also copied to the Justice Committee. In that letter, he defended his decision not to exclude all future loss from the calculation of a success fee, but rather to impose such an exclusion where the settlement for future loss was to be paid by way of periodical payment order. Sheriff Principal Taylor stated, If I did not permit a sufficient percentage deduction, solicitors would not offer damages-based agreements as a funding mechanism. They would not recover sufficient in the successful cases to compensate for the unsuccessful cases. One has to remember that, should a case be unsuccessful, not only does a solicitor not get paid for his or her own time, but the firm must also meet court dues, expert witness fees, medical reports and other items out of the solicitor's own pocket. The Sheriff Principal Taylor said, I had to create an environment in which damages-based agreements were sufficiently attractive to solicitors but still fair to the injured pursuer. The amended provision and future loss may therefore represent a fair restriction of access to justice and negate some of the principles on which the bill is founded. It is thought that the failure of damages-based agreements to take off in England and Wales is, in fact, as a result of future loss being completely ring-fen south of the border and thus unattractive to legal practitioners. I do not believe that we should make the same mistake here. I heard Margaret Mitchell's comments about the issue of judicial expenses and the differing approach to that north and south of the border. We also heard evidence to the effect from Sheriff Principal Taylor himself that Lord Justice Jackson, who conducted a similar review south of the border, although he promoted the position that Margaret Mitchell was supporting today, has now got cold feet because it has led to solicitors south of the border and in Wales not offering damages-based agreements for personal injury actions. The other point that I wish to make was the issue of the unintentional consequence of ring-fencing of future loss for those with catastrophic injuries and who may paradoxically, as a result of the approach that has been put forward at stage 2, in fact, receive lower awards and settlements. In other words, stage 2 amendments intended to maximise pursuer compensation could, in practice, have the opposite effect. As I stated earlier, the future loss element of a claim is often complicated and involves the solicitor in a considerable amount of work. I am informed that it is not uncommon for a solicitor at least to be in the region £100,000 over perhaps a three-year period in such cases. Sheriff Principal Taylor recommended in his report that lump sum damages for future loss should be included in the calculation of the success fee under a success fee agreement because solicitors need to be incentivised. He recommended, as Liam McArthur rightly said, safeguards that are set forth in the bill as it was introduced. Also, Sheriff Principal Taylor recommended that future loss damages would not be included, as I have said, if they were to be paid by way of periodical payment orders. Only a small number of cases end up before a court and the vast majority are settled out of court. Discussions with personal injury solicitors have revealed that solicitor-led cases result in higher settlements, as defenders try to avoid the expense of a court hearing. In other words, having a solicitor is likely to result in the claimant receiving greater damages, possibly much greater damages. Liam Kerr? Just very briefly, in those conversations with those solicitor-serms, did many of them report back that if the future loss was ring-fenced, they would cease to act in personal injury claims? I think that we have to look at the facts before us and listen to the evidence that has been submitted to me, to the committee as well, where people are telling us that there is a very significant risk. If we look already at what has happened south of the border, in light of the similar approach that is being pursued there, and the approach that is promoted by Lord Justice Jackson, in which Sheriff Principal Taylor says that, in a conversation that Lord Justice Jackson had with Sheriff Principal Taylor, Lord Justice Jackson now has cold feet because he is in a position that is the opposite of what he had hoped the position would be in terms of solicitors operating damages-based agreements. Margaret Mitchell? Wales is not analogous with the situation in Scotland, so we are not out-companying apples and apples. I have already dealt with that point where, as notwithstanding the issue of judicial expenses, nonetheless, the architect of the policy south of the border has, to Sheriff Principal Taylor, in effect recanted because it has had the opposite effect such that solicitors in England and Wales are not offering damages-based agreements. What the bill is designed to do, which has been mentioned by Daniel Johnson, by John Finnie and by Liam McArthur, is designed to do the very opposite, is designed to improve access to justice as far as civil litigation in Scotland is concerned. Sheriff Principal Taylor said in the letter to which I have already alluded. My concern is that the recent amendment to the bill will have the same consequence in high-value cases in Scotland as has happened in England and Wales. Damages-based agreements will not be offered to pursuers who have sustained catastrophic injury. The recent amendment thus poses an existential threat, as Liam McArthur mentioned, to damages-based agreements being offered in high-value cases in Scotland. What will be the consequence of the amendment? The likely outcome is that cases will either not be raised at all or will settle, or will settle—perhaps that helps to deal with Mr Kerr's point—or will settle for considerably less than the true value of the claim. Finally, the Law Society letter to the Justice Committee reiterates two practical issues, which Sheriff Principal Taylor raised in his report. The first relates to settlement offers. At present, most of those are put forward by insurers without there being any breakdown for the different heads of claim, meaning that past loss and future loss are not broken down and separated when an offer is made. The second practical interest is that, as a legal services provider, it will be paid for past loss work and not for future loss. An obvious conflict of interest will be created as between the solicitor and the client. Margaret Mitchell is establishing what the future loss element is. Does she accept that insurance companies are doing that every day, and they have confirmed that that would not be a difficulty if it was required? Thank you, Presiding Officer. With respect, I did see a submission from one of the representatives of the insurance industry. It is a matter for the pursuer, acting on the advice of her legal adviser to decide what is best for that pursuer. It is not really a matter for the insurance company, which has an entirely different and conflicting interest in the matter to have a role in that very important client-legal adviser relationship. I would say, Presiding Officer, that, without Daniel Johnson's amendments today, the solicitor could have a financial interest in apportioning as much as possible to the past law element, rather than to the future element. Even a solicitor acting in good faith, and we hope that that is the case, with regard to all solicitors, would have to deal with this important conflict. I have considered those matters long and hard since stage 2, as has Daniel Johnson, John Finnie and Liam McArthur. For the reasons that I have stated, I am now persuaded that it is the right position that we see the reintroduction into the bill as per Daniel Johnson's amendments. I am also not able to support Margaret Mitchell's amendment 2A. I mean no criticism of Margaret Mitchell, since I know, as I said in the first grouping, that her amendments are motivated by the aim of maximising pursuer compensation, but the balance of evidence on the matter, submitted following stage 2, is, in my view, compelling. The bill has the objective, as I said, of increasing access to justice and civil litigation. Its goals are to make the cost of litigating more affordable and more predictable to the citizens of Scotland. I am now convinced that the bill has originally drafted better services, objectives and goals, and that Margaret Mitchell's amendment 2A, the well-intentioned, will not in fact result in enhanced access to justice, rather the reverse. At stage 2, for understandable reasons, we focused on those who have suffered catastrophic injury receiving all the money that is awarded to them by a court. I am now persuaded that by allowing the solicitor to take a small percentage, and that it is important to point out, it would be for some over £500,000, 2.5 per cent. At the present time, an example could be where a claims management company might charge, say, £33,000. An award of damages of £1 million at the moment, the sum of £330,000 is being awarded in terms of the success fee. Under the sliding cap proposed in the bill, in this carefully crafted package of interlinking provisions, the amount of damages on the same sum of £1 million will be £72,500. Ring-fencing all future loss may result in very few personal injury claims of any value being taken forward under success fee agreements that will restrict access to justice. Put it plainly, surely it is better to have 97.5 per cent of something rather than 100 per cent of nothing. I therefore support Daniel Johnson's amendments. On Margaret Mitchell's amendment, I have explained why it is the case that it would not seek to maximise the amount available to the pursuer, particularly in cases of catastrophic loss. It is also the case that has been referred to that there is provision in the bill to ensure that, by regulations to be dealt with by affirmative procedure before this Parliament, that any changes to the figures in the sliding cap of fees proposed would be dealt with in accordance with affirmative regulations. I support Daniel Johnson's amendments 1, 2, 3 and 4, and I do not support Margaret Mitchell's amendment 2A. Daniel Johnson to wind up and press or withdraw your amendment, Mr Johnson. I think that the fundamental points regarding those amendments were best made by John Finnie and by Liam McArthur. John Finnie said that, fundamentally, what this is about is making sure that Solicitor's interests and those of the people on whose behalf they are making claims are aligned. I think that, by making sure that, where there are no caps and there are no limitations in that regard, that their interests are perfectly aligned, because otherwise there will be a clear incentive if there is a cap for Solicitor's to settle early. Likewise, I think that Liam McArthur is absolutely right that we must recognise current practice, and DBAs are very popular. What is more, it is not 2.5 per cent of the awards that are being claimed by those who are representing claimants, it is as much as 60 per cent, with a typical figure being 30 per cent. Therefore, the bill will reduce that. It will introduce a sliding scale from 20 per cent to 2.5 per cent, more cases and more of the damages going to clients. While I very much understand the motivations behind Margaret Mitchell's amendments, the desire to give the fullest possible amount to clients, the reality is that, under her amendments, clients will have fewer opportunities to take their case forward and limit their access to justice. Liam Kerr suggested that I was criticising the insurance industry. I was doing no such thing. What I was saying was that we must recognise that the arguments that are made by the insurance industry are legitimate arguments, and they are right to pursue the interests of their industry. However, those arguments, as the minister alluded to, run contrary to the interests of clients, because it is in the insurance industry's interest to reduce the number of claims that are brought forward and to reduce the amounts that are settled upon. My criticism is not of the insurance industry, but of those who copy and repeat those arguments without qualification and criticism, because I think that they ignore the wider public interests in favour of corporate interests, and I do not think that that is acceptable. Ultimately, we must return to the clear test. We must return to the test. Does this proposal increase access to justice? Do those amendments allow more people to take forward claims and achieve the highest possible value? My amendments do exactly that, and, unfortunately, I feel that Margaret Mitchell's failed that test. Sheriff Principal James Taylor has come forward with a balanced and well-thought-through set of proposals, and we should stick to those. The amendments in his own words that were laid down in stage 2 would reduce access to justice and make it less accessible. My amendments are required to effectively save the bill from the misguided attempts to qualify and put safeguards into it. I urge Parliament to support my amendments and to reject Margaret Mitchell's 2A. I press the amendments. The question is that amendment 1 be agreed to. Are we all agreed? We are not agreed that there will be a division. It is a 62nd division. Members should cast their votes now. They voted yes. Amendment 86 is no 29. There are no abstentions. That amendment is therefore agreed to. Amendment 2, in the name of Daniel Johnson, ready to wait for amendment 1. Mr Johnson, move or not, move. Amendment 2A, in the name of Margaret Mitchell, ready to wait for amendment 1. Ms Mitchell, move or not, move. The question is that amendment 2A be agreed to. Are we all agreed? We are not agreed that there will be a division. This is a 32nd division. Members should cast their votes now. They voted yes. Amendment 29 is no 86. There are no abstentions. That amendment is therefore not agreed. Daniel Johnson, to press or withdraw amendment 2. I press. The question is that amendment 2A be agreed to. Are we all agreed? We are not agreed that there will be a division. It is another 32nd division. Members should cast their votes now. Amendment 2A, in the name of Daniel Johnson, ready to wait for amendment 1. Mr Johnson, move or not, move. The question is that amendment 3A be agreed to. Are we all agreed? We are agreed. Amendment 4, in the name of Daniel Johnson, ready to wait for amendment 1. Mr Johnson, move or not, move. The question is that amendment 4A be agreed to. Are we all agreed? We are agreed. I now move on to group 4, power to modify section 7. I call amendment 35, in the name of Daniel Johnson and the group on its own. Mr Johnson, to move and speak to amendment 35. I move amendment 35, in my name. This is an amendment that was suggested by the Delegated Powers and Law Reform Committee. At stage 2, this was amended by the Government to reduce the power of ministers so that they could not, by regulation, modify any part of the part on success fee agreements. This was changed to limit it so that to just allow ministers to change by regulations anything in section 7. That has the odd effect of being able to add by regulations the kind of things that ministers could regulate on, which is circular. In the words of the DPLR committee that this is an unusual power and very wide in scope, it is not one that they recommend as being necessary. Therefore, I move amendment 35, in my name, to bring effect to the committee's recommendation and hope that Parliament will agree with it. The Delegated Powers and Law Reform Committee report on the bill at stage 1 expressed indeed concern about the breadth of the power given to Scottish ministers by section 7 subsection 4 to modify part 1 of the bill. The Government brought forward an amendment at stage 2 that responded to those concerns by restricting the power so that it would apply to just section 7 rather than part 1 of the bill as a whole. The amendment also restricted the power so that the regulations could be added to section 7 or modified texts added by the regulations but not otherwise altered. In other words, none of the texts of section 7 that the Parliament agrees to at stage 3 may be removed by regulations. Furthermore, the delegated power proposed cannot, as it has been suggested, be used to modify itself. That goes against basic principles of administrative law. As the Government explained in its response to the DPLRC, the purpose of section 7 subsection 3 and 4 is to augment the current provisions of the bill in relation to success free agreements, where it is considered to be desirable to have future provision about the mandatory terms of success free agreements or their enforcement. Such provision however would only be brought forward after consultation on the regulation of success free agreements with stakeholders and thus cannot be included in the bill at this stage. The regulations would mean that any new provisions could be set out in section 7 rather than set out in freestanding regulations. That would mean that all of the mandatory terms relating to success free agreements would be found in the primary legislation. The DPLRC, in its further report, has stated that it continues to be concerned that subsection 4 is amended at stage 2 and continues to be wide in scope. The Government continues to believe, however, that the power in section 7 subsection 4 would be beneficial and would permit all the relevant provisions, as I said, on success free agreements to sit together in primary legislation rather than have them sit separately in regulations. For that reason, I would ask Daniel Johnson to consider withdrawing the amendment. Thank you and no one else wishes to speak. I call on Daniel Johnson to wind up to press or withdraw. Thank you very much, Presiding Officer. As the minister said herself, the DPLRC has said that subsection 4 is, when I quote, very wide in scope. The very purpose of the DPLRC committee is to act as a safeguard—a check—on the power of the executive. Therefore, it would be odd if not—indeed, I would suggest that it is outrageous for the Government not to heed those warnings. They are specifically to prevent those sorts of overreach of power. Therefore, we should listen to them and I will continue to press my amendment. Thank you very much. In that case, we will go straight to the question. The question is that amendment 35 be agreed to. Are we all agreed? No. We are not agreed. We will move to division. Members may cast their votes now. This is a one-minute division. The question is that amendment 35 be agreed. One minute. The result of the vote on amendment 35 in the name of Daniel Johnson is, yes, 52, no, 63. There were no abstentions. The amendment is therefore not agreed. That brings us to the end of that particular group. Members may have noted that we have passed the agreed time limit for the debate in this group to finish. I exercise my power under rule 9.8.4ac to allow debate on this group to continue beyond the limit in order to avoid the debate being unreasonably curtailed. We move on now to group 5. I call amendment 9 in the name of John Finnie, grouped with amendments 9a, 10, 11 and 12. I would point out that, if amendment 9 is agreed to, I cannot call amendments 10 and 11. They will be preempted. John Finnie, to move amendment 9 and speak to all amendments in the group. Thank you, Presiding Officer. Sheriff Taylor's report was long awaited and there are significant changes in law. The purpose was to bring a level playing field in respect of personal injury litigation. That speaks to Sheriff Taylor. I recognise something that is very important, which is that the balance of power had gone too far in favour of the insurance companies. The solution was to qualify one-way cost shifting. That is not a phrase that we have heard much today. I think that we will hear some more about coax as it was shortened to. That was a restriction on the pursuer's liability for expenses and personal injury claims. If the test for when people benefit from coax and most importantly lose the benefit of coax is flawed, then the intention of the bill will be frustrated. My amendment seeks to address that flaw because for coax to be effective legislation must ensure two issues, certainty and that a sufficiently high bar is set. Claimants and those financially supporting claimants such as trade unions and staff associations must be able to bring difficult but meritorious cases without fear of financial ruin if the case is lost. If there is not a high degree of certainty about the cases that will benefit from coax and those that will not, then the fear that currently serves as a barrier to justice, which we all want to see removed, will remain and the current barriers will only be raised with certainty. Accordingly, if the statutory test for removing the benefits of coax is vague, that will serve as an open invitation to ensure that it is to challenge a claimant's right to coax in a large number of cases and the purpose of the bill will be lost. It will also lead to satellite litigation. That is a phenomenon known in England and Wales and it is a result of the vague language and legislation there and a desire to push back against advances in the rights of personal injury claimants. That has led to large, long and expensive litigation, not about the subject matter but instead about the legal costs. Satellite legislation is very expensive, time-consuming and in England has clogged up the legal system and this is to be avoided at all costs. Vagan and certain language in relation to test the test shall undoubtedly result in satellite legislation whereas the courts grapple with what Parliament intended and that certainly would be a very disappointing consequence of the legislation. The high bar that we talked about, Sheriff Taylor, was very clear in his report and in the evidence that he gave to the Justice Committee that the bar for removing coax must be set at a high level. The benefit of coax must be not be lost lightly or easily. The wording has acted fraudulently in connection with the claim or proceedings or makes a fraudulent representation, so a view that formal words are vague and will lead to satellite litigation. Proportionality is at the heart of everything and the loss of coax would be extremely harsh and significant sanction. Particularly as claimants and trade unions and staff associations who financially support claimants begin the process believing that coax will apply. The significant sanction must only be imposed when it is proportionate to the wrong committed by the claimant. There can be occasions where the claimant's conduct is inappropriate but where it would not be proportionate to remove the benefit of coax. The fundamental position is that for the claimant to lose the benefit of coax, the conduct must be materially wrong and must have the potential of having a material impact on the litigation. I would not bring forward that if I did not believe that the highest standards of conduct and integrity should apply to our legal process, including that aspect. However, as things stand, the court has the power—of course, it is not to say that it would exercise that power—but, nonetheless, it has the power to remove the benefit of coax where the claimant does little more than overriding the pudding. That is to say that the court could remove the benefit of coax where the claimant does no more than exaggerate to a very small extent an issue fairly peripheral to the case. It may be entirely reasonable to assume that that would not happen, but that is what the courts could do based on the current wording. The point is not whether or not the court would use its powers in those circumstances. The point is that it is an open invitation to ensure us to challenge and that will lead to a higher level of satellite litigation which none of us want. Over egg, but 100 per cent accurate on everything else, insurers would move to withdraw. No one, least of all, me, supports fraud. We must have a fraud test. Currently, the phrase makes a fraudulent representation that is open to defeating the spirit and intention of the bill. Our rules, of course, are robust and unambiguous and I am proposing a robust wording. A robust wording in relation to qualified one-way cost shifting would not be available when—this is the amendment—and I quote, where the claim is found to be fraudulent or dishonest. There is absolute clarity about that and I hope that members will lend their support to it. Thank you very much. I call Daniel Johnson to move amendment 9A and to speak to the amendments in the group. Thank you, Presiding Officer. I am very mindful of the length that I spoke at in the previous groupings, so I will be brief in this one. I would like to move amendment 9A and to speak in support of amendment 9 in John Finnie's name. Fundamentally, John Finnie has summed this up very well. The key feature of the solicitation is about improving and increasing access to justice, but it cannot be abused and we must have safeguards with regard to that. However, there is some concern about the terminology of a fraudulent representation that was introduced at stage 2. That is fundamentally about making sure that that is qualified and clarified so that people who are simply overregging their case, exaggerating but not making a fraudulent representation as such, are not caught up in the safeguards that are introduced here. With that in mind, that is why we are supporting amendment 9 and 9A. We note that many of the problems persist with the Government's amendments 10 and 11. However, if amendment 9 and 9A were to fall, we would be supporting those. I will leave it there. I call the minister to speak to amendment 10 and the other amendments in the group. The proposal for a qualified one-week-hose shifting in section 8 of the bill has indeed been the subject of much of the scrutiny at stages 1 and 2. Section 8 subsection 4A of the bill was amended at stage 2 by two amendments in the name of Liam Kerr. I stated at that time that I was willing to support those amendments, but I may come back at stage 3 with some tidying up drafting changes. As a result of that consideration, I have lodged amendments 10 and 11. Those are technical drafting amendments. There is no intention to change the effect of the provision as amended at stage 2. The policy is that a pursuer who has acted fraudulently, whether by fraudulent representation or by other fraudulent act, should lose the protection of qualified one-week-hose shifting. The legal test for fraud is a high one to satisfy and because it is a high bar, even a single fraudulent act in civil litigation should lead to coax protection being lost. Sherprinsville-Taylor has been clear that a court finding a pursuer to be simply incredible should not by itself mean that there has been fraud. As with Sherprinsville-Taylor, the Government is of the view that the relevant meaning of fraud is the time-honoured definition from Erskine's institutes in the 18th century and I quote, a machination or contrivance to deceive. Therefore, an innocent or isolated example of minor exaggeration is not ever going to be fraud. Amendment 10 puts the reference to fraudulent acts in the present tense consistent with the rest of subsection 4. This amendment, together with amendment 11, makes it clear that making a fraudulent representation is an example of acting fraudulently. Amendment 12 amends section 8 subsection 4b by including a reference to the claim as well as to the proceedings. Although we consider that a reference to behaviour in connection with the proceedings would indeed cover pre-litigation conduct, we think that paragraph sub b ought to be consistent with paragraph sub a because they are both intended to cover pre-litigation conduct. Turning to amendment 9 in the name of John Finnie, I hear that of course he is seeking to, in light of his position throughout the passage of the bill, to make sure that the benefit of coax is not lost if there is a single fraudulent or dissonant act in relation to a claim. I have already pointed out that under the Government's preferred wording, a pursuer would not lose the benefit of coax for an isolated instance of exaggeration. That does not come close to fraud, as defined in Scott's law. The Government and I hope that the chamber cannot support the proposition that pursuers, or we should not forget their lawyers, should be able to act fraudulently in civil litigation without consequence. I consider that amendment 9 would have a number of particular consequences. First, it attaches the fraud and the dishonesty to the actual claim itself rather than the behaviour in the pursuit of the claim. Sheriff Principal Taylor considered that fraudulent behaviour by pursuers or lawyers in connection with the claim should result in the loss of coax. Also, it should be noted that the approach of John Finnie's amendment 9 does not technically work in the context of section 8 as drafted. Secondly, the introduction of the word dishonest, which has not been discussed in relation to section 8 at either stages 1 or 2, does in my view lower rather than raise the bar required for the loss of the benefit of coax, which I suspect is not the intention of John Finnie. Introducing the concept of dishonesty, which is not found in Sheriff Principal Taylor's report, would introduce new uncertainty to the qualified one-week cost shifting. Indeed, it would be very likely to invite the satellite litigation that Mr Finnie was rightly concerned about. Introducing the concept of dishonesty, which is not found in Sheriff Principal Taylor's report, would introduce new uncertainty to the qualified one-week cost shifting provisions. Therefore, I cannot support John Finnie's amendment 9 in regard to Daniel Johnson's amendment 9A. It does, by seeking to remove the word dishonest, seek to improve amendment 9, and for that reason, the Government will support amendment 9A in order that amendment 9, if it is passed, will not introduce the concept of dishonesty. However, my amendments achieve what Sheriff Principal Taylor recommended, and therefore my vote for amendment 9A should not be taken to suggest that the Government is supporting amendment 9. I consider that the wording in section 84A, as amended by Liam Kerr, at stage 2 and by my amendments 1011, achieve the desired result. I would ask Mr Finnie to consider withdrawing his amendment, and Mr Johnson not to move his having regard to my strong reassurance that an isolated incident of exaggeration is not going to be deemed to amount to fraud, as far as Scott's law is concerned. Liam Kerr, who is in the group for amendment 9A, but just for the avoidance of doubt, will vote in favour of amendments 10 to 12, in the name of Annabelle Ewing, which seems sensible for the reasons that are set out in the purpose and effect notes and the ministers' remarks just now. In relation to amendment 9A, in the name of John Finnie, and thus amendment 9A, in the name of Daniel Johnson, in brief, if those amendments were to pass, we believe that it could encourage unmeritorious claims. John Finnie talks of his robust wording, and I respectfully point out to him, as I think the minister was just trying to do, that I am not convinced that the wording as drafted actually makes sense with the section that is being amended into. As we shall hear on Tuesday, we believe that that is to be a good bill, and the end game of access to justice is a good one. However, it is a delicate balancing act in which Parliament must seek to increase access to justice, but not go so far as to create a compensation culture with pursuers seeking inflated and unjustified awards. By limiting the fraud or dishonesty to the claim, Mr Finnie's amendment risks exactly that. To lower the bar to simply say that protection is lost where the claim is fraudulent means a genuine claim, bolstered by perhaps overestimates of vehicle repairs, care costs, lost wages or such like, would maintain protection with no sanction. Under Mr Finnie's amendment, it would be open to a claimant to perhaps lie repeatedly about a claim or to act fraudulently, but, as long as the fundamental claim was not fraudulent, it would retain the benefit. Mr Finnie talks of Sheriff Principal Taylor quite rightly, but Sheriff Principal Taylor was explicit that the benefit of coax should be lost whether the pursuer has acted fraudulently in connection with the claim or proceedings or makes a fraudulent representation. He is right. Let us be clear—at the point that the minister was also making—that acting fraudulently or dishonestly is not the same as a mistake. As drafted, there is no risk to a pursuer who mistakenly claims to something to which they are not entitled. On the contrary, fraud is a deliberate act. It is designed to cheat the system, to cheat the defender. The committee heard that over-egging the claim was not considered a concern by some witnesses, and it seems some closer to home. It very much should be if we are to avoid award inflation and increasing claims. For those reasons, amendments 9 and 9A should be rejected. Thank you very much. I call John Finnie to wind up on amendment 9 and to suggest whether he is continuing to move amendment 9. I particularly like to make remarks about Mr Kerr's last contribution. I certainly would not be party to encouraging unmeritorious or fraudulent claims. I know that he is not suggesting that, but I think that language is important. Phrases such as compensation culture I find unhelpful in the context of this debate when we are talking about access to justice. It is irrefutable that there will be a challenge from insurance companies who are trying to rail back against the culture. I have far greater confidence in our existing rules of court than perhaps Mr Kerr does. I think that some of the conduct that he alluded to would be picked up in court and responded to accordingly. I have taken real reassurance from what I have heard from the minister in a particular relation to it, because we all want the highest standards of integrity to be. We do not want a situation where an element of misunderstanding or someone carried away by events means that there are significant financial consequences for them. In light of what I have heard from the minister, I would ask permission not to press amendment 9. Does any member object if Mr Finnie withdraws amendment 9? No. Amendment 9A therefore falls. We move to amendment 10. Thank you very much. The question is that amendment 10 be agreed to. Are we all agreed? We are not agreed. We will move to a vote. Members may cast their votes, and this is a one-minute division. The result of the vote on amendment 10 in the name of the minister is yes, 96, no, 19. There were no abstentions. The amendment is therefore agreed. I call amendment 11 in the name of the minister. Minister, move. I move. Thank you. The question is that amendment 11 be agreed to. Are we all agreed? We are agreed. Can I call amendment 12 in the name of the minister to move? I move. Thank you very much. The question is that amendment 12 be agreed to. Are we all agreed? We are agreed. We turn now to group 6, and I call amendment 36 in the name of John Finnie, grouped with amendments 37, 38 and 39. John Finnie to move amendment 36 and to speak to all amendments in the group. Thank you, Presiding Officer. This is about the important issue, as ever, of finance. The Scottish Government and members will be perhaps cited in an STUC briefing paper on this issue, which talks about the Scottish Government issued a response to the three-year review of court fees on 26 January this year, and in the response they stated in a quote, paying court fees on behalf of litigants is not an unreasonable burden to place in trade unions. There is the question that needs to be considered, and whether I believe that the legislation is the vehicle to address the issue about the who should bear the cash flow burden of running the Scottish court service while a case progresses through the court system. People will know that the successful party in a court action recovers the legal costs from the unsuccessful party, and it is the unsuccessful party that is all at the conclusion of the case. At various points throughout the case, fees are required to be paid. There is a view that successful litigants therefore effectively lend the Scottish Government money while their claim progresses. Now, repeat players such as trade unions and staff associations who support hundreds of personal injured claims each year through the Scottish courts lend the Scottish Government therefore significant sums of money each year. In relation to a freedom of information request done on respect of this, the total court fees in 2015-16 were £3.8 million. It was 14 per cent of them that related to personal injury cases. That was £1.9 million. The court fees that were paid by claimants in trade union supported cases were roughly £1 million. That is a significant outlay. I think that people may well ask, is it reasonable that the Scottish Government receives these monies from the trade unions when there is an opportunity to take a different tack? £1 million is not a lot of money to the Scottish Government, it is a significant sum of money to those who are representing front-line workers and indeed all workers. Clearly, the proposal to boob away from this would have some implications for the Scottish Government, but within a two or three-year period, the cost of transition to defer payment of court fees will be eradicated by any issues of the cash flow problems. The Scottish Government talks about two of the issues that it gives rise to, that it encourages pre-legislation, and that there are also concerns that there may be issues around bad debt. The people who are involved in that are not people who you would construe as being likely to be bad debtors. I think that this is the opportunity to, as has been raised on a number of occasions, to look at this important issue. I would encourage people to support amendment 10. I'm sorry, the amendment is in my name. I call Daniel Johnson to speak to amendment 37, and other amendments in the group. Thank you, Presiding Officer. I move amendment 37 in my name and speak in favour of similar and not contradictory amendments 36 and 38. I urge colleagues to support all three amendments. Indeed, I too would like to give thanks to the STUC for the briefing paper that they circulated. The group focuses on when payments to a court should be made. At present, court fees are paid on a pay-as-you-go basis, which means that for each individual court action, the pursuer must pay up front. For example, the fee for an initial writ in a personal injury court is £219, lodging a motion is £55. My amendment changes the law from payments being paid on a pay-as-you-go basis to one where those payments would happen at the conclusion of a case. The effect of that would be to shift the burden of debt while a case is on-going from the pursuer and, by extension, potentially the trade union and other professional body or other funder to the courts. The STUC, through freedom of information requests, as John Finnie has already pointed out, would assess the impact to be around £1 million. Just as John Finnie said, this amount says that, in essence, a short-term loan from trade unions and other bodies to the court service. So, why would that be a positive step? Because of the cash flow implications in personal injury cases for trade unions and other bodies has become a real issue, with money tied up in the court system, much of which will ultimately be returned to the pursuer or their funder at the conclusion of a case. That could prevent cases from being taken forward and act as a barrier to justice. However, that is also an opportunity cost of doing the things that we expect from trade unions, organising education and industrial relations. Effectively, as I said, that works out as a £1 million loan from trade unions to the Government. So, the question boils down to this. Who should bear the burden of running the Scottish court service while cases progress? Trade unions who could be spending that money on supporting their members and pursuing their interests, or the state. I would suggest that it is the latter. The minister to speak to amendment 39 and other amendments in the group. Thank you, Presiding Officer. The main intention of John Finnie's amendment 36 and Daniel Johnson's amendment 37 would be to make court feebles payable at the end of a personal injury case rather than, as under the present system, as an action proceeds through the courts. In the case of John Finnie's amendment 36, that would only be in cases where financial assistance is being provided by a trade union or similar body. In the case of Daniel Johnson's amendment 37, that would apply in all cases where qualified one-way cost-shifting applies, irrespective of which body it may or may not be providing financial assistance. Similar amendments were debated at stage 2 and were not supported then. It is worth reiterating for the benefit of members who are not present at that debate that the reasons why pay-as-you-go is the current system for court fees includes the following objectives, encouraging people to resolve their disputes outside the courts, encouraging settlement, ensuring that people value the resource of the court and use those resources wisely. John Finnie. I am grateful for the minister for taking intervention on that point. The issue of early settlement has come up previously, but I wonder if you would agree that personal injury cases are subject to compulsory pre-action protocol, and that is an important aspect in shaping when the case will be concluded. Annabelle Ewing. Thank you, Presiding Officer. I agree with the member on cases up to a value of £25,000. They are subject to compulsory pre-action protocol, but that is the current position in terms of the threshold. Cases above that are not. There is therefore the important issue that the member has just raised of encouraging frivolous claimants to settle and not use public resources unwisely. The pay-as-you-go model actively supports the court system. It supports objectives of the reasonable management of the courts, of non-frivolous claims being pursued, and it allows the fees to be paid in small increments as cases progress through each step of the process. The effect is, of course, to make parties stop and consider whether they will proceed to the next stage or not, and that is an important element of the negotiation process that is inherent in personal injury proceedings. Of course, in personal injury proceedings, part 1 of the bill will make it much less likely in terms of damages-based agreements offered by solicitors that there will be any upfront fees paid by pursuers. It is worth pointing out again that, in section 6 of the bill, for personal injury actions, it will be the case that the pursuers' solicitor will be required to meet all outlays. Of course, we should also note that the share principal, Taylor, made no recommendations on changing the position regarding fees in his report. The solicitor will pay the outlays, will recover the court fees as part of the expenses recovered from the opponent at the conclusion of the case, assuming that it is successful. In terms of the qualified one, we call shifting provisions. For personal injury actions in the bill, the pursuer will not be liable for the opponent's court fees, even if they lose the case, assuming that the benefit of coax is not lost. I think that those points are all very important to be borne in mind in the context of those amendments. All other expenses, including court fees, as I say, are the responsibility of the solicitor. It is not clear to me why a substantial benefit should be provided to the providers when that benefit will come with a substantial cost to the Scottish Courts and Tribunals service and, ultimately, the taxpayer. I know that Justice Committee members are aware that there was a recent consultation on court fees. Of course, what we sought to do was to widen the circumstances in which people would be exempt from court fees. I understand that those regulations went through the committee without any particular note being taken. Some of the exemptions in terms of the widening include increasing the income threshold below which fees will not be paid, including extending the exemption regime to include recipients of Scottish welfare funds and those seeking civil protective orders, as was suggested by Scottish Women's Aid. Billing for court fees at the end of the case will place an immense burden on the Scottish Courts and Tribunals service. Of course, that is ultimately a cost for the taxpayer. I think that the figure referred to in the letter from the SCUC and I will be hoping to meet with them further to their letter to me. However, I think that the figure mentioned was a cost of some £1 million to the trade unions. It was not entirely clear how that figure was arrived at, but it was suggested that that was somehow a loan to the Scottish Government. That cannot really be characterised as a loan to the Scottish Government. That is an amount of money that pays for a service that the Scottish Courts and Tribunals service provides. There will be a cost. It will have to come from somewhere. If it is the case that the figure of £1 million is correct, that has to come from somewhere else in the justice budget. Members of the committee will be aware that the Scottish Courts and Tribunals service wrote to the committee on 22 February to express concerns about any move away from the page-ago model for court fees, specifically advising against any proposal to introduce a system whereby court fees are paid at the end of the process, given the unintended impact on the Scottish Courts and Tribunals service budget. Of course, they recommended secondary legislation for the management of fees to retain current flexibility and accessibility to a wider audience. Therefore, I have problems with both amendments 37 and 36. There is a slight difference in scope, as I said at the outset. However, the end result is the same. I think that it is also instructive to recall the ruling of the Supreme Court recently with regard to employment tribunal fees where the Supreme Court took the view that they were exorbitant and presented a barrier to justice. However, in striking them down, they also said that fees paid by litigants and I quote, fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available to the justice system and so securing access to justice. I think that that explains the position very well. I would ask that members do not support amendments 36, 37 and the consequential amendment 38. Finally, amendment 39, in my name, simply removes wording that would result in regulations under amendment 37 being subject to the affirmative procedure. That amendment was introduced at stage, was agreed at stage 2, notwithstanding that it was, in fact, an amendment that was consequent to a substantive amendment that had, in fact, fallen if you are still following me, Presiding Officer, at stage 2. I would ask members to support amendment 39. Thank you. It's at times like this that you're glad you've got a script. And before I call Liam Kerr, can I say, there's been quite a lot of background noise at times, so please have some care to that. Liam Kerr. Thank you. The Scottish Conservatives will vote against amendments 36 and 37. I think that the minister makes some important points in relation to the pay-as-you-go system and there's no need to reiterate those. In brief, we see no reason to provide a special category of exemption in relation to amendment 36 and for both. We don't think that the impact of this change has been fully assessed and understood. Mr Finnie is right. This is about finance and Mr Johnson is right that this shifts the burden on to the courts, but I'm not persuaded that the ramifications, particularly in relation to the public purse, have been sufficiently thought through, nor if in fact the case has been adequately made out and so accordingly we shall vote against. I call John Finnie to wind up and to press or withdraw his amendment. Thank you, Presiding Officer. I thank the members for their contributions to that debate there. I don't know if Mr Kerr availed himself of the STUC briefing on the paper there because it does actually mention figures and it talks about a transition from the system. So this is not and the figures arrive from a freedom of information there. So it is an informed position and you don't see the requirement for a particular approach to be adopted in respect of trade unions well. Of course, we did that at stage 2 when my amendment to exclude them from some of the elements of the bill was passed and lent support. So as I understand it I mean this issue is not going to go away. I think that's the important thing to say. This are significant implications for trade unions and staff associations. It's not going to go away. It's a simple casual programme in some respect there and in the scheme of things I don't think this is unreasonable to ask but there's talk of a three-year transition to retigate again as the minister confirmed there is provision for early settlement and also on the issue as I understand of one or the other arguments against this that's been put forward in the past with the Scottish Government about inheriting bad debt. Well, that's not the nature of people that we're dealing with here. So I would encourage people to support my amendment and indeed support Daniel Johnson's. Thank you. Are you... Can you confirm your pressing your amendment? I'm pressing the amendment. I'm saying no. Thank you very much. The question is that amendment 36 be agreed to. Are we all agreed? No. I heard no. There will be a division. You can cast your vote now and it's a one-minute division. The result of the vote on amendment 36 is yes, 25, no, 90, and there were no abstentions. The amendment is therefore not agreed. I call amendment 37 in the name of Daniel Johnson. Already debated with amendment 36, Daniel Johnson to move or not move? Move. The question is that amendment 37 be agreed to. Are we all agreed? No. There will be a division. Cast your votes now. The result of the vote on amendment 37 in the name of Daniel Johnson is yes, 25, no, 90, and there were no abstentions. The amendment is therefore not agreed. I call amendment 13 in the name of the minister. Already debated with amendment 5, minister to move formally. Move. The question is that amendment 13 be agreed to. Are we all agreed? No. I call amendment 14 in the name... Oh, sorry. The amendment is therefore agreed. I call amendment 14 in the name of the minister. Already debated with amendment 5. Could the minister please move formally? Formally moved. The question is that amendment 14 be agreed. Are we all agreed? No. The amendment is therefore agreed. And we now move on to group 7. I call amendment 15 in the name of the minister. Grouped with amendments 16 and 33. Would the minister please move amendment 15 and speak to all amendments in the group? Thank you, Presiding Officer. Part 3 of the bill has been the subject of less discussion in the parliamentary proceedings for the bill, but it does contain important legal reforms to refresh and codify the arrangements for auditors of court. The key policy proposal is that there will be a transition from self-employed auditors to the position where all auditors of court are employed by the Scottish Courts and Tribunals Service. There will be occasions when an employed auditor of court is not in a position to tax an account. That might be because that auditor has a conflict of interest or does not have the capacity to undertake the taxation in those circumstances. The Scottish Courts and Tribunals Service will allocate the taxation to another auditor in its employ. The proposal is that there will be a pool of employed auditors just as there is a pool of employed sheriff clerks in the sheriff courts. There may, however, be rare occasions when the pool cannot deal with a particular account. That might be exceptionally because none of the auditors employed by the SCTS have the capacity to take on the taxation. Amendment 15 therefore inserts a new section into the bill that provides the circumstances in which no auditor employed by the SCTS is able to undertake a taxation for whatever reason. I should emphasise that I see those circumstances arising only exceptionally. There should not be frequent recourse to the provision given the pool of employed auditors referred to. We will, of course, continue to monitor the situation going forward as the new arrangements bed in. Subsection 1 provides that the account must be returned to the quarter tribunal involved and that the quarter tribunal must allocate it to another suitable person for it to be taxed. The suitable person might be, say, a law accountant, solicitor or a retired auditor of court. Subsection 2A provides that the person taxing the account must be treated as though they were an auditor of court. Thus, the person would have to comply with the statutory guidance under Subsection 15 as if they were an employed auditor. Subsection 2B provides that the remuneration and expenses of a person appointed to act as auditor are to be determined by the Scottish Courts and Tribunals Service. I mean that 16 is consequential on amendment 15. Section 16 requires the Scottish Courts and Tribunals Service to publish an annual report on taxations. This amendment provides that that report includes details of any accounts taxed by a person who is not an auditor of court. This is restricted to information in relation to the account remitted under the new section to avoid catching any other work carried out by that person. Amendment 33 relates to section 3 of the court of law fees Scotland Act 1895 which provides for certain accounts of expenses to be remitted to the auditor of the court of session. The accounts concerned are those found due in the High Court of Justiciary or in any inferior court whose judgment has been brought under the review of the High Court unless the amount of the expenses is determined or modified i.e reduced by the High Court. The auditor of the court of session has to examine and tax those accounts of expenses in the same way and subject to the same rules as accounts of expenses and civil actions in the court of session. There are in fact only limited cases in which taxation of accounts can arise as regards criminal proceedings. For example, as regards failed bail appeals by the prosecutor. Those cases are quite exceptional and are provided for in the 1995 Criminal Procedure Scotland Act. The usual practice is for the criminal court to fix or modify the amount of any award of expenses itself. It is still competent for the matter to be remitted to taxation. The 1995 act does not state who is to carry out the taxation and so the 1895 act applies. Section 3 of the 1895 act therefore continues to have relevance to the exceptional cases where a taxation of accounts arises out of criminal proceedings in the High Court. Amendment 33 modifies and modernises section 3 to make it relevant to the new auditing regime. It replaces the reference to regulations with a reference to rules of court since the regulations meant were acts of sedent under section 32 of the Court of Session Act 1821 which is to be repealed by paragraph 1 of the schedule of the bill. The amendment preserves the requirement that the auditor of the Court of Session should tax accounts arising in the High Court in the same way as accounts of expenses in relevant civil proceedings in the Court of Session it extends this requirement to accounts of expenses in criminal proceedings in the Sheriff's Appeal Court which will be taxed by the auditor of that Court under the rules applicable to civil proceedings in the Sheriff's Appeal Court. The same rules of court and common law principles will apply as in civil taxations in the Sheriff's Appeal Court as will the statutory guidance to auditors of court now required by section 15 of the bill. The Lord President's private office and the Scottish Courts and Tribunals Service have approved the amendments in this group which emphasises that whilst technical these are important refinements to the new statutory regime for auditors of court I move amendment 15 Presiding Officer As no one else has requested to speak does the minister wish to wind up? I think I probably comprehensively The question is that amendment 15 be agreed to are we all agreed? Yes I call amendment 16 in the name of the minister already debated with amendment 15 minister to move formally I moved The question is that amendment 16 be agreed to are we all agreed? Yes The amendments therefore agreed and that takes us on to group 8 and I call amendment 17 in the name of the minister grouped with amendments 17, 18, 19, 20, 21, 22, 23 and 40 and I call the minister to speak to 17 and the other amendments in the group Thank you, Presiding Officer At stage 2 of the bill the Justice Committee voted by majority to support amendments to section 17 lodged by Liam McArthur which specified on the face of the bill that group proceedings should be either opt in or opt out proceedings The intention was that the type of proceedings to be used in any particular case would be specified by the court As I have previously indicated the Scottish Government has no financial or political objections to opt out proceedings rather we wished to flag up concerns arising as a result of the obligation on the Scottish Civil Justice Council implied in the amendments to draft a consultant rules for both opt in and opt out procedure simultaneously as this risk delaying the introduction of group proceedings in Scotland per se Lord Guild's Scottish Civil Courts Review drew attention to the fact that opt out procedure might be appropriate in a consumer case where a large number of consumers are affected but it also noted that where the potential class membership may be small and easily identifiable opt in procedure may be much more likely to be appropriate in order that only those who make a positive choice to opt in are bound by the outcome At stage 1 evidence the Justice Committee heard about the possible benefits of opt in procedure for community groups in Scotland from a number of those submitting evidence We would not wish small groups to be denied the advantages of opt in group proceedings whilst opt out rules are drawn up which may be more appropriate for larger scale consumer actions Our concerns were shared by the Lord President who wrote to the Justice Committee prior to stage 2 to ensure that members were aware of the complexities of the opt out procedure The Lord President noted that practical and legal challenges presented by an opt out model could be significantly greater than those presented by an opt in model The amendments that I am bringing forward today, Presiding Officer, would permit the Scottish Civil Justice Council to develop rules separately for the opt in and opt out procedures whilst at the same time not preventing it from developing the rules concurrently In other words, the Scottish Civil Justice Council will decide how best to timetable the drafting of the rules Indeed, it would be open to them as the independent rule making body to decide to proceed with opt out rules first but the key issue is that it is the Scottish Civil Justice Council that will determine its programme of work and at the same time it is clear therefore on the face of the bill that there will be a duty on it to provide rules for both procedures The Scottish Civil Court's review noted that it would be necessary to amend the legislation relating to prescription and limitation to take account of a group litigation procedure which permits opt out It also pointed out that it would be necessary to confer powers on the court to make an aggregate or global award of damages and for the disposal of any undistributed residue of an aggregate award Opt out will also give rise to new issues of general principle in that for the first time in Scotland's law individuals could become party to litigation without their consent and possibly without their knowledge In the face of all those issues if the Scottish Civil Justice Council is obliged to produce rules and both opt out at the same time as opt in then because of the extra complexities involved with opt out this risk delaying the introduction of any kind of group proceedings in Scotland The SEJC of course is an independent body headed by the Lord President of the Court of Session and whilst the Scottish Government cannot dictate its work programme or the timing of production of its rules the Scottish Civil Justice Council has already made the public commitment that the implementation of this bill will be one of its priorities for 2018-19 We expect that the Scottish Civil Justice Council will set up a working group to consider rules and group procedure as it did, for example, on fatal acts and inquiries and that representatives of consumer bodies will be represented on that body It is worth noting that the Scottish Law Commission has previously produced a draft act of sederant on opt in proceedings and it is there for to be hoped that the Scottish Civil Justice Council will be able to produce rules on opt in relatively quickly enabling it to move on without delay to the more complex issue of opt out proceedings I have spoken with Liam McArthur about the need for expeditious progress to be made on group procedure and I can give him the assurance that the Scottish Government will use all levers of influence to support the most expeditious introduction of group procedure Turning to the detail of the amendments replacement subsection 7A introduced by amendment 21 allows the court of session to make rules providing for group proceedings to be brought as opt in proceedings opt out proceedings or either of them The intention is to allow the court flexibility to provide for all proceedings to be opt in or for there to be a choice but also for the court to be able to make different provision for different purposes Replacement subsection 7B defines opt in and opt out proceedings opt out is defined as a group proceedings where all Scottish domiciled persons within the group description are automatically opted in and therefore must opt out to leave the group However, persons domiciled outside of Scotland must opt in to such opt out proceedings and that is because one of the difficulties identified by the Lord President in relation to opt out was the potential extraterritorial effect of orders granted in opt out proceedings particularly when a deemed member of a group would otherwise have had the option of raising proceedings in a different legal jurisdiction and the Government's amendment seek to address that particular concern and draw in that regard from the UK competition appeals tribunal provisions in the competition act 1998 and the consumer organisation which has very much been supportive of the group proceedings provisions has helpfully noted that this is a relevant precedent Subsection 7B is a replacement for subsections 3, 3 and 3B in the bill as amended at stage 2 which are removed by consequential amendment 17 care however has been taken in the drafting of the replacement provisions to carry across the relevant wording as introduced by Liam McArthur at stage 2 because new subsection 7B small b provides for the court to specify a description of the claims which are eligible to be brought in in opt out proceedings and because this is not relevant to opt in proceedings amendment 8 removes subsection 6A this does not alter the effect of what was subsection 6A other than to restrict its application to opt out proceedings section 17 7A has inserted at stage 2 as inserted at stage 2 places the duty and members of the group as a whole to identify and notify all potential group members we consider it inappropriate that this duty should be placed in all members of the group with the possible cost and delay which would be involved and so amendment 19 places the duty to identify group members on the representative party only in practice the Government expects that the law firm supporting the representative party would carry out the necessary administrative work amendment 20 simply adds some words of clarification to the end of section 177 small double A amendment 22 adds to the illustrative list in section 182 of the things which the court of session may include in group procedure rules the additions are rules about how a person may give consent for their claim to be brought in opt in group proceedings and how a person may give notice that they do not consent to their claim being brought in opt out group proceedings in other words how people are to opt in opt out as appropriate. amendment 23 inserts a new section into the bill after section 18 it enables the Scottish ministers to make further provision about group proceedings in regulations among other things those will permit Scottish ministers to make necessary amendments to the substantive law as envisaged by the Scottish civil courts review which will therefore facilitate the introduction of opt out group proceedings the amendment also gives examples of how that power might be used for example with regard to the provision for aggregate or global damages including potentially the involvement of an assessor or actuary and also provision for the distribution of any surplus damages. That would largely be done through the modification of common law rules perhaps in the case of prescription limitation primary legislation would require to be modified. I have been mindful of course picking up in the earlier conversation of the fact that the delegated personal law reform committee discourages the introduction of new delegated powers at stage 3. In that regard the minister for parliamentary business wrote to that committee in 16 April making them aware of the need for the new power given that this had arisen specifically as a result of an amendment at stage 2 voted on by the committee. Presiding officer amendment 40 makes the new power in amendment 18 subject to affirmative procedure ensuring therefore that there will appropriately be full debate and scrutiny for regulations proposed by the Scottish Government. Presiding officer I think having dealt with all of the key amendments in this group I would move amendment number 24 I'm ahead of myself as I'm sure many people in the chamber might be wishing they were at that stage which we have not yet reached. So I move therefore amendment 17 in my name. Thank you Presiding Officer I take a glass of water I call Gordon Lindhurst Deputy Presiding Officer may I opt in to this debate at this stage by mentioning my entry in the register of interests as a practicing advocate? Excuse me Mr Lindhurst there's an awful lot of chatter going on can we have some quiet please and please listen very carefully I'll say it only once As we say in court Deputy Presiding Officer I'm much obliged for that plaudit for the comments I'm about to make which will be very brief Well let me start by saying that the Scottish Conservatives will vote for all of the amendments in this group with the exception of amendment 23 section 181 in the bill already provides for the court of session to make rules by act of sederant in relation to group proceedings and that would seem sufficient Now I would hesitate to use the words power grabbed by the Scottish ministers in this context or indeed in a debate such as this However we are not persuaded on these benches that the powers to be given to the Scottish ministers by amendment 23 relate to matters appropriate to be dealt with in this way That is because it gives a power to Scottish ministers to make regulations defining what are substantive matters which are more appropriate to primary legislation For example in relation to domicile of a person in Scotland or indeed the prescriptive and limitation periods in relation to claims and for these reasons we will vote against amendment 23 I call Liam McArthur Thank you Deputy Presiding Officer I somehow feel a bit responsible for this section of amendments what I think during the minister's speech came to appear a bit like the Hokey Cokey proceedings I think it's probably worth and I'm sure the chamber is desperate for me to elucidate the justification behind the opt-out approach but I will do so as briefly as I can but can I also thank the minister for the constructive way in which she's engaged with me in addressing I think what were legitimate concerns on the back of the committee's decision at stage 2 to back an opt-out approach and I think the group of amendments here do address those concerns while also respecting the decision of the committee as I said at stage 2 enabling group proceedings under Scots law is a big step forward in expanding consumer protection however limiting ourselves to an opt-in model would have been a missed opportunity as which pointed out to the committee breaches of consumer law often have a relatively small impact on a large number of people so the cumulative impact is high but the incentive for any one individual to participate in court proceedings is low to properly widen access to justice in this area therefore the availability of an opt-out procedure is essential they should and will be left to the discretion of the court taking into consideration the nature and circumstances of a case I fully accept there will be instances where it would be problematic and indeed inappropriate for an opt-out procedure and that's why it should only ever be an option however as the experience south of the border shows although an opt-in model was introduced in the 1998 competition act it wasn't until the opt-out became available under the 2015 consumer rights act that real advances were made it's clear we can't afford to wait a further 17 years for this to happen in Scotland I'm confident that having a reference to opt-out proceedings on the face of the bill will ensure that that doesn't happen and look forward to significant progress being made ahead of the review in five years time for now can I thank the minister again for her constructive approach to committee colleagues who supported the amendment that is staged to it in particular the team at which for their perseverance on this issue and on behalf of consumer rights thank you very much would the minister like to wind up yes thank you presiding off just very briefly on the point that Mr Lindhurst raised of course whilst as I said the position for opt-in proceedings is such that that can proceed fairly straightforwardly obviously that's not quite the same with regard to opt-out because there are a number of issues that must be sorted out some of them being for example the provisions on aggregate and global damages for example on the what we do with the residue just to name but two the mechanism proposed is through amendment 23 to do these by affirmative regulations so that the Parliament is duly involved in that and of course the minister for parliamentary business did raise this issue directly with the DPLRC and as far as I'm aware and including at their committee meeting this week there was no issue raised about what we were proposing to do here and finally Presiding Officer I would just say that a broadly it may interest the member to note that a broadly similar approach has been proposed by the UK Government in its data protection bill in terms of which the Secretary of State may make provision for opt-out collect proceedings for England, Wales by regulations thank you Presiding Officer the question is that amendment 17 be agreed to are we all agreed the amendment is agreed to and I call amendments 18, 19, 20, 21 and 22 all in the name of the minister and all previously debated with amendment 17 minister to move amendments 18 to 22 on block does any member object to a single question being put on amendments 18 to 22 the question is that amendments 18 to 22 are agreed to are we all agreed these amendments are agreed and I now call amendment 23 previously debated with amendment 17 can I ask the minister to move that formally thank you and the question is that amendment 23 be agreed to are we all agreed there will therefore be a division a one minute division and you can place your vote now the result of the voter amendment number 23 in the name of the minister is yes 85 no 28 and there were no abstentions the amendment is therefore agreed we now move on to group nine and I call amendment 24 in the name of the minister grouped with amendments as shown in the groupings please minister to speak to move amendment 24 and speak to all the other amendments in the group thank you Presiding Officer section 18a of the bill was inserted into the bill at stage two as a result of an amendment lodged by Margaret Mitchell it requires the whole act to be reviewed as soon as practicable following a period of five years with that five-year period starting on the day of royal assent amendments 24 to 31 form a grouping of amendments that make only one substantive change to section 18a although there are eight amendments in this grouping I should like to emphasise that there is no intention to interfere with the main thrust of Margaret Mitchell's amendments the Scottish Government does not however believe that there is any point in triggering the five-year period for post legislative scrutiny of part four of the bill in group proceedings until rules are actually in place allowing group proceedings to to take place and indeed have had a bit of a chance to bed in over that five-year period that is being proposed different arrangements are required because the detail of the procedure for group proceedings will be provided as has just been discussed in rules of court to be brought forward by the Scottish Civil Justice Council which will draft a consult in the rules of court which will govern group procedure group proceedings cannot take place until such rules are in force as previously discussed will take some time for the Scottish Civil Justice Council to develop group procedure rules in the previous grouping the chamber indeed has agreed that it will be for that body to decide whether opt-in and opt-out proceedings are introduced at the same time or if one type of proceeding is to come first but the principle remains in any event that some time will be needed for there to be due deliberation and consultation on the detailed rules this in turn means that the review report envisaged if the five-year period is to run for more than a cent of the act itself may only be able to consider a relatively short period of group procedure operation I'm not convinced that that is what members intended rather I believe what is being sought is meaningful post legislative scrutiny on the group proceedings the government considers therefore that as far as post legislative scrutiny is concerned part 4 needs to be dealt with separately from parts 1 to 3 and so amendment 24 separates the requirement to review and report on the operation of the act into two separate reviews and reports amendments 25 and 26 apply subsection 2 to the reviews of parts 1 to 3 and adjust it so that the report on that review does not need to consider section 17 on group procedure amendments 28 and 29 are minor consequential amendments amendment 27 replicates subsection 2 but only for the review of part 4 which includes section 17 on group proceedings amendment 30 starts the review period for parts 1 to 3 as running from the day of royal assent amendment 31 starts the review period for part 4 as running from the day on which the first rules of court about group procedure come into force I move amendment 24 I call Daniel Johnson Thank you, Presiding Officer I would like to reassure members that my contribution at this point will be measured in seconds rather than minutes The more they heckle the longer I'll take First of all, can I welcome this proposal for a five-year review I think it is a welcome innovation Secondly, that we will be supporting the amendments in the minister's name but finally I would like to make a small plea that some of the proposals which were made but fell both at stage 2 and stage 3 and namely the inclusion of environmental cases in group actions and also the pay-as-you-go fees that have been discussed PVC be reviewed if that is possible in the review document and that is all I'd like to say Thank you Minister to wind up Yes, just very briefly to respond to Daniel Johnson's point and I welcome his support for what is really a pragmatic reflection of what happened at stage 2 It will be for those conducting the post-legion of scrutiny to set the parameters of that and I would imagine there would be a number of issues that have been discussed in the passage of the bill that they will wish to pick up upon at that time The question is that amendment 24 be agreed to Are we all agreed? Yes The amendments they have for agreed and I call amendments 25, 26, 27, 28, 29, 30 and 31 all in the name of the minister and all previously debated with amendment 24 I would ask the minister to move amendments 25 to 31 on block Moved on block Does any member object to a single question being put on amendments 25 to 31? The question is that amendments 25 to 31 are agreed to Are we all agreed? Yes The amendments are therefore agreed and we move on to follow on to section 19 I call amendment 38 in the name of John Finnie already debated with amendment 36 John Finnie to move or not to move Not moved, Presiding Officer Does anyone not sorry I'm getting my withdrawals and my not moveds mixed up I call amendment 39 in the name of the minister already debated with amendment 36 minister to move formally Moved The question is that amendment 39 be agreed to or are we all agreed? Yes No Did I hear or no? There will therefore be a division and cashier votes now The result of the vote on amendment 39 in the name of the minister is yes 108 no 5 There were no abstentions and the amendment is therefore agreed I call amendment 40 in the name of the minister already debated with amendment 17 minister to move formally Moved The question is that amendment 40 be agreed to or are we all agreed? Yes The amendment is therefore agreed and I call amendment 33 in the name of the minister already debated with amendment 15 minister to move formally Moved The question is that amendment 33 be agreed to or are we all agreed? Yes The amendment is therefore agreed and that ends consideration of amendments Yes As members will be aware at this point the proceedings the Presiding Officer is now required understanding orders to decide whether or not in his view any provision of the bill relates to a projected subject matter that is whether it modifies the electoral system and franchise for Scottish parliamentary elections In the case of this bill the Presiding Officer has decided that in his view no provision relates to a protected subject matter therefore the bill does not require a supermajority to be passed at stage 3 As agreed by Parliament yesterday the stage 3 debate on civil litigation expenses and group proceeding Scotland bill will take place on Tuesday 1 May The next item of business is consideration of motion number 11787 in the name of Kezia Dugdale on the appointment of a member of the standards commission for Scotland I call on Kezia Dugdale to move the motion on behalf of the Scottish Parliament corporate body Thank you Presiding Officer with colleagues permission I'll try and get through this as quickly as possible I speak to the motion in my name as a member of the corporate body appointment panel to invite members of the Parliament to agree to the appointment of Paul Walker as a member of the standards commission for Scotland The standards commission was established by the Ethical Standards and Public Life Act 2002 and its role is to encourage high ethical standards in public life by promoting and enforcing the codes of conduct for councillors and members of devolved public bodies It issues guidance to councils and public bodies and adjudicates on alleged contraventions of the codes referred to it by the Ethical Standards Commissioner Under the act the members of the commission are appointed by the corporate body with the agreement of Parliament The corporate body sat as a selection panel on 26 March The members of the panel were the Presiding Officer Liam McArthur and myself On behalf of the corporate body I would like to thank Louise Rose the independent assessor who oversaw the process and has confirmed by the way of a validation certificate that the appointment process was conforming to good practice Turning to the candidate from a very strong field of candidates we are seeking the agreement of the Parliament to appoint Paul Walker as a member of the standards commission We believe that Paul Walker will bring to the post a strong commitment to promoting and encouraging high ethical standards in public life I'm sure that the Parliament will want to wish him every success in his new role and Presiding Officer I move the motion in my name I thank you very much Mrugdale and the question in this motion will be put at decision time I'd like to invite the Minister for Parliamentary Business to put forward a motion without notice to bring decision time forward to now Happy to move Is that the question is that we move decision time forward until now Is the question agreed? Yes Thank you, it's there for agreed There's one question to be put as a result of today's business and the question is that motion 11787 in the name of Kessie Dugdale on behalf of the Scottish Parliamentary Corporate Body on the appointment of a member of the standards commission for Scotland be agreed Are we all agreed? Yes The motion is there for agreed and that concludes decision time and I close this meeting