 Good morning and welcome to the Justice Committee's 8th meeting of 2018. There are no apologies. Agenda item 1 is the decision on taking business in private, which is consideration of our forward work programme. Are we all agreed? We are all agreed. Agenda item number 2 is continuation of consideration of the Civil Litigation Expenses Group preceding Scotland Bill at stage 2. I refer members to their copy of the bill and the marshaled list of amendments and groupings for this item. I welcome back to the committee and a valuing minister of community safety and legal affairs and her official. We will now move to consideration of the amendment, starting with group 10, pursuers liability for court fees in personal injury claims, called amendment number 11 in the name of Daniel Johnson, group with amendments 64 and 16. Daniel Johnson, to move amendment 11 and speak to all the amendments in the group. The purpose of this amendment is to look at the pay-as-you-go model for court fees. This is an issue that has been raised by trade unions and other bodies as being a not insignificant hurdle in terms of bringing forward court actions. Therefore, what my amendment seeks to do is to, rather than having those fees being paid on an on-going basis, through court action have them paid at the end. Obviously, if there is a successful action, that is a lot easier to settle once damages have been awarded. I would also like to point out that, in broad terms, it is very much in line with the amendment that John Finnie has tabled, although I think that his amendment goes further than mine, but at this stage I would be urging members to support both of those amendments. There have been some comments made, contrary to those in particular from the Scottish Court Service, who argue that the pay-as-you-go model encourages early settlement and that debt recovery would carry a cost. However, I do not think that the pay-as-you-go encouraging early settlement is a particularly strong argument. In particular, I think that what we are trying to do or what is being sought through this bill as a whole is about lowering the barriers for individuals to bring in forward court cases. I think that this proposal is very much in line with that. Likewise, I would just point out that the very nature of court action is that people are bringing those forward via solicitors. I think that that very fact that there would be an intermediary means that people are un... Well, A, it would simplify the recovery of these debts as the courts would be pursuing solicitors firms. Likewise, solicitors firms will obviously be very mindful about the people's ability to pay court fees as they go. Indeed, I think that, just because you are paying at the end of a service that you are undertaking or procuring, it does not mean that you stop looking at whether or not you can afford it, whether you are... This is court action that you are taking at or you are having work done to your house. You are always having to be mindful of the bill that you are likely to face at the end of it and simply paying at the end, I do not think, necessarily makes a significant impact on that. Just to recap, the primary reason for this is to lower the barriers for people bringing forward court actions. As I said, this is something that has been brought forward by a number of people, including trade unions, as something that they would seek to aid their work. John Finnie, to speak to amendment 64 and other amendments in the group. Thank you, convener. I would align myself with everything that Daniel Sede said. It is a concern of trade unions in this. I think that there are a few points to make, and that is the suggestion of debt recovery, I think, is a way bit off the mark. The nature of engagement in the process that takes place there, I think that means that that is extremely unlikely to be an issue. Indeed, I imagine that it would be said that the parties involved had not acted in good faith, if that was, and would have had wider implications. I think that it is potentially a barrier now, as things stand at the moment. I initially had an amendment that is very similar to Daniel's, and I am told that the amendment that I have, amendment 64, which I move, is what is required to completely bottom out the issue. I support Daniel's, and I would encourage people to support my amendment. Any other members have any comments, if not, we will move to the minister. Good morning. The main intention of amendment 11 appears to be to make court fees payable at the end of the case rather than under the present system as an action proceeds through the courts. Amendment 11 only applies to personal injury proceedings, and in practice personal injury claimants usually do not pay upfront fees because they are benefiting from a success fee agreement. Part 1 of the bill indeed encourages that practice and makes it more likely still that personal injury claimants will not be paying any upfront fees at all, including, therefore, court fees. Thus, it could be argued that the real beneficiaries of amendment 11 could well be law firms and claims management companies. A recent consultation on court fees has just recently closed, and the Government's response to the consultation was published last week together with impact assessments. I am sure that members may find it of interest because it sets out how the Government proposes to protect access to justice while retaining the current pay-as-you-go model of court fees in general terms. I have just signed new fees instruments for the period from April 2018 to March 2021, and they have now been laid for scrutiny by the committee and by the Delegated Powers and Law Reform Committee. The Scottish Government supports the current pay-as-you-go model as it promotes encouraging people to resolve their disputes outside the courts. It encourages settlement. It ensures that people value the resources of the court and use those resources wisely. It reinforces the level of financial risk if a party loses a case and it discourages unreasonable behaviour and deters weak or vexatious claims. Using a pay-as-you-go model actively supports those outcomes specifically because fees are charged in small increments as cases progress through each of the key steps in the legal process. The effect is to make the parties stop and consider whether it is appropriate for them to continue. Ultimately, under either a pay-as-you-go model or a bill at the end of the case model, the losing party will normally pay the fees of both parties. The winner will be reimbursed or not billed, although the different models affect the timing. Therefore, they do not change that eventual outcome. It is worth pointing out again that, under the proposals in the bill for success, fee agreements and personal injury actions in section 6, it is indeed the solicitor rather than the client who will be liable for all outglades incurred in the provision of the relevant services to the client, including of course court fees. The client will therefore not pay court fees in such cases, which are among the most commonly litigated in Scotland. There is no barrier under the bill to access to justice for personal injury actions as the individual pursuer will not pay fees up front. Moreover, the solicitor for his or her part will recover the court fees as part of the expenses recovered from the opponent at the conclusion of the case, assuming that it is successful. Under the provisions of the bill on quacks, the client cannot become liable for their opponent's court fees, even if they lose their case. It is worth pointing out that there are generous exemptions to the requirement for parties to pay court fees, and that means that many vulnerable and disadvantaged groups of people will not pay court fees. The consultation analysis that I have referred to just a moment ago confirms that the Scottish Government will be extending the exemptions regime to include recipients of Scottish welfare funds, people often women seeking civil protective orders, as was suggested by Scottish Women's Aid. In addition, the relevant income threshold will be increased below which fees are not to be paid. It is also worth noting that, and I am sure that members are aware of our recent Supreme Court judgment concerning fees in employment tribunals, where the court found, while striking down the fees that they were exorbitant and acted as a barrier to justice, that the Supreme Court did go on to say, and I think that it is worth quoting, that fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice. It must also be stressed, convener, that billing for court fees at the end of the case will place an immense burden on the Scottish Courts and Tribunals service. The long-standing arrangements for the payment of court fees on the pay-as-you-go principle would have to be completely revised and reformed with consequent expense and disruption to business. Furthermore, the Scottish Courts and Tribunals service will have to attempt, on behalf of the taxpayer, to seek to recover court fees due, and inevitably there will be a measure of loss through a recoverable debt. If court fees are not on a pay-as-you-go basis, that simply means that somebody else, the Scottish Courts and Tribunals service and, therefore, the Scottish taxpayer will have to pay them, and the debt may never be recovered in all cases. There will therefore be a high cost to the Scottish Courts and Tribunals service, the taxpayer and the efficient conduct of business in Scotland's courts in terms of disruption if the long-standing arrangements and court fees are fundamentally altered to make court fees payable at the end of cases rather than on an on-going basis. I appreciate the clarification that the minister has given. On the clawback provision, you have already suggested that the fees would be payable at each stage by the solicitor who would then, in turn, recover them from the litigant. It seems to me unlikely that there would be considerable difficulty in clawing back from solicitor's firms the fees due to the courts in the sense that the problem would seem to be for solicitors recovering it rather than the courts and tribunals services. Is that not a fair reflection of where the actual problem in relation to chasing down debt may lie? I think that, turning it slightly on its head, looking at it from the perspective of what is motivating these amendments, which is concerned by access to justice, we all share those. On that basis, if we take the personal injury actions, the most likely scenario is that they will be part of a success fee arrangement. In such circumstances, as Liam McArthur points out, in those circumstances, the solicitor that takes the hit in the sense of taking on the obligation to pay up front fees, including court fees. In terms of the barriers to justice that there have been concerns about, it is difficult to see how that will impede a pursuer from pursuing a personal injury action. In terms of the member's point about recovery, it is the case that court fees are paid currently on a pay-as-you-go basis. That is helping to resource the work of the Scottish Courts and Tribunals Service, as they have indicated in their letter to the committee, to take away that on-going resource. You have already a problem. At the end of the day, seeking to recover is always easy on paper, but it may not, in every single case, prove practicable for whatever reason. As I say, the key thing is that this is a pay-as-you-go system whereby this money is going into the court service and tribunals service. You take that away, you are taking away a big part of the budget of the Scottish Courts and Tribunals Service, and indeed those points are made in the relevant documentation concerning the fees instruments that were recently laid with the committee, which will be considered, I would imagine, quite shortly by the committee, where they look at the potential negative impact in terms of shortfall on the operation of the Scottish Courts and Tribunals Service, running into some £30 million over the piece. It is not a budget item that is insignificant. I understand the motivation for those amendments, but I think that if we bear in mind that, in the personal injury actions that those amendments are intended to cover, it is those cases indeed that will, in most likely circumstances, benefit from a success fee agreement, and therefore it is the solicitor as part of their package, if you like, that will be taking on the onus of paying all fees, including court fees. If I could add that, in terms of budgetary implications, of course, if there is a gap in the budget for the Scottish Courts and Tribunals Service, it will come, of course, looking to central government to fill that gap, and I would just point out that, in terms of current financial budgetary constraints, if they are looking for some money from the justice portfolio to fill that gap that will be created, I can say that something, therefore, would have to give from the justice budget to pay that, because there is not an infinite amount of money available. I know that members have referred to the letter that the Scottish Courts and Tribunals Service sent and the points that they made in terms of the impact that they say, as the ones operating the system, that such a move would have, and also the fear of the perhaps unintended consequences of the amendments being put forward this morning. In terms of a more procedural aspect, they did also recommend the use of secondary legislation for the management fees to retain the current flexibility and accessibility to a wider audience. For those reasons, I respectfully ask Daniel Johnson to withdraw amendment 11 and not to move amendment 16, as far as John Finnie's amendment 64 is concerned. That would mean that, if a pursuer had the benefit of coax, they would not be liable for court fees at all. I consider this amendment to be unnecessary if a pursuer has the benefit of coax. They are only liable to pay the success fee at the end of the case, but only if they win. All other expenses, including court fees, are, as I said, the responsibility of the solicitor to be out front and not the pursuer. It is not clear to me why a substantial benefit should be provided to those providers of the service when that benefit will come with, as I say, a substantial cost to the Scottish Courts and Tribunals Service and ultimately the taxpayer. In addition, as I say, any exemptions to civil court fees are best made in the body of court fees orders, since this is the existing enabling power in section 107 of the Courts Reform Scotland Act 2014. The new fee instruments, which I have mentioned, have exemptions within them, including, as I have set out, new additional exemptions that will be particularly relevant to women seeking civil protective orders for domestic abuse. I would also consider amendment 64, perhaps well-intentioned as it is, nonetheless for the reasons that I have given at some length. However, I felt that that was important to do so, convener, to be unnecessary and, indeed, potentially harmful to the funding of the Scottish Courts and Tribunals Service. I would ask Mr Finnie to consider not moving that amendment as well. Thank you, convener. Daniel Johnson, to wind up, presser, withdraw. I think that the arguments are relatively straightforward. In terms of the minister's response, there is a slight contradiction in her stating that the benefit would be primarily for law firms and then dismissing the point that they would be the ones liable for this and the ones requiring to recover their fees. I think that there is a significant barrier in terms of just simple cash flow, particularly for trade unions, and for those reasons, I will press the amendment. The question is amendment 11. Be agreed? Are we all agreed? No. We are not agreed. There will be a division. All those in favour of amendment 11, please show. All those against? We have 2, 4 and 9 against the amendment. Is not agreed? Call amendment 64 in the name of John Finnie, already debated with amendment 11. John Finnie to move or not move? You are not moved, convener. You are not moved. We now move to group 11, free representation. Call amendment 37 in the name of the minister. Grouped with amendment 38 and 39. Minister to move amendment 37 and speak to all the amendments in the group. Thank you, convener. Sherprins will tailor recommended in his report that, in the interests of transparency, and I'm quoting, in the interests of transparency, the arrangements as to how a litigation is to be funded must be disclosed to the court and intimated to all parties at the stage when proceedings are raised or notification given that a cause is to be defended. This applies equally to cases where legal representation is provided on a pro bono basis. Amendment 37 therefore makes this clear in the bill. The rationale for disclosure of funding arrangements is that this may facilitate earlier settlement of a case. Amendment 37 will require a party to disclose to the court that part or all of its legal representation has been provided free of charge. Section 10 already requires third party funding to be disclosed, and the new provision here will complement this. Section 9 of the bill permits a payment to be made to a charity where a party is successful in litigation and has been represented free of charge, in other words, on a pro bono basis. There is indeed a long and honourable tradition of pro bono representation in Scotland. The payment to charity would be in place of expenses being paid to the successful party. Sherprins will tailor thought that it would be inappropriate to compensate a party for a liability in expenses which they have not actually incurred. Amendment 38 makes it clear that the size of the payment to charity should be decided by the court on the same basis as it would have done if the representation had not been free of charge, and this broadly follows the model of section 194 of the Legal Services Act 2007 for England and Wales. Amendment 39 disciplines the provisions of section 9 subsection 2, where a party is provided with financial assistance by the Equality and Human Rights Commission. Representation funded by the commission still has to be disclosed, as is the case for all funding arrangements. In its written evidence to the committee, the Equality and Human Rights Commission queried how section 9 of the bill was to interact with section 28 of the Equality Act 2006. That latter section empowers the commission to provide assistance and civil proceedings concerning equality law. The Equality and Human Rights Commission was concerned that under section 9 of the bill is currently drafted, it might not get the expenses to which it would otherwise be entitled under section 29 of the 2006 Equality Act. Amendment 39 therefore rectifies the situation and the EHRC will still be able to claim expenses in such cases. My officials have checked, convener, and there do not appear to be any similar special expenses resumed for other public bodies. For example, the Scottish Human Rights Commission is not in part to fund civil proceedings by third parties. I move amendment 37. I have any comments from members. They seem to prove transparency. Minister, to wind up, no, not necessary. The question is there for amendment 37 to be agreed to. Are we all agreed? We are all agreed. Call of amendments 38, 39 and 40 on the name of the minister, all previously debated and like the minister to move amendments 38 to 40 on block. Does anyone object to a single question being put on amendments 38 to 40? The question is there for that. Amendments 38 to 40 are agreed. Are we all agreed? We are all agreed. The question is that section 9 be agreed. Are we all agreed? Move now to group 12 third party funding. Call of amendment 41, in the name of the minister, grouped with amendments 42, 43, 44, 61, 45, 46 and 12. Minister, to move amendment 41 and speak to all the amendments in the group. Sherprince Botailer recommended both in his report and in his evidence to this committee that all funding in civil litigation should be disclosed to the court. The rationale for this is that disclosure has implications for how parties proceed, their willingness to settle and to settle early. Sherprince Botailer said that disclosure expedites dispute resolution to the benefit of both parties and promotes efficiency in the legal system. Section 10 has been reworked to cover all disclosure of all funding in civil litigation. In the bill, as originally introduced, section 10 only provided for transparency in the case of third party funders who have a financial interest in the outcome of a case. Amendment 41 adjusts subsection 1 so that section 10 now applies a duty of disclosure to all funding of litigation in Scottish courts. Sometimes, for example, if a pursuer is crowdfunded by people with pseudonyms or who remain anonymous, he or she will not know the identity of all the funders. Amendment 42, therefore, provides for this possibility and makes an exception to the rule that the names of all funders must be disclosed to the effect that this is only if they are known to the litigant. Amendment 44 now makes separate provision for the narrower cases where the funder has a financial interest in the proceedings, in other words, commercial funding. Subsection 2A includes the text that was formally in subsections 2C and subsection 3, which is removed by amendment 43. It allows the court to make awards of expenses against venture capitalists, commercial funders, if a case is lost. At stage 1, there was some concern that solicitors and other providers of successful agreements would also be pursued for expenses by successful defenders, albeit that, of course, such defenders would not be able to claim expenses from the litigant in personal injured cases because of the effect of qualified one-week calls shifting in section 8. A new subsection 2B, therefore, makes it clear that the provision of section 10 on liability to expenses will not apply to providers of successful agreements. Amendment 61, lodged by John Finnie, makes it clear that a trade union or similar body representing the interests of workers will also not be liable for any expenses if the pursuer whom they have supported is unsuccessful in court. Amendment 12, in the name of Daniel Johnson, is similar, but it first restricts the exemption to trade unions only, and secondly, it also exempts funding from trade unions from the general disclosure requirement. That would, however, depart from Shared Principle Taylor's recommendations about transparency. I have noted in relation to the application of section 10 to trade unions and similar bodies raised at stage 1. Sorry, I have noted the concerns in relation to that, and I am happy, therefore, to support John Finnie's amendment 61. However, I am afraid not that of Daniel Johnson, as I feel that, although it was likely that Mr Johnson was indeed seeking to achieve the same results as Mr Finnie's amendment, I think that Mr Finnie's amendment better reflects the overarching principles of the bill. Finally, convener, in its written evidence to the Justice Committee, the Family Law Association expressed concerns about section 10 in some situations. First, that might be where a pursuer, and in particular a pursuer who has been dependent on their spious or partner for support throughout the course of their relationship, requires a litigation loan to raise proceedings against that spious or partner. Second, parents may give a loan to a child to fund a deposit on a premarriage property, and it then becomes part of the dispute in the context of subsequent divorce proceedings. The association's view was that it is not helpful or appropriate to require parties to family proceedings to disclose funding arrangements of this type. The Scottish Government agrees that an amendment 45, in section 10, in family proceedings is funded by a close family member. That close family member will not therefore be exposed to any risk of an adverse award of expenses. Additionally, in the interests of family privacy, the pursuer will not be required to disclose the funding. Close family members are defined as a spious, civil partner, cohabitant, parent, child or sibling. Amendment 46 is a consequential on amendment 45 and defines family proceedings for the purposes of the exception for close family members. I move amendment 41. John Finnie, to speak to amendment 61 and other amendments in the group. I thank you, convener. I would align myself with the comments of the minister in relation to this. I think that everyone is supportive of the principle of disclosure there, but what we heard throughout our deliberations was that the intention never was that trade unions might be caught up in that. The particular wording that is in there is that trade unions are a similar body. That will cover a range of staff associations. I hope that members will support that. I also would strongly support the family privacy aspects, as outlined by the minister, which is an excellent addition to the legislation. Daniel Johnson, to speak to amendment 12 and other amendments in the group. I would just simply add that it is important that we explicitly exempt trade unions. I am minded to move the amendment at this point, but I recognise that John Finnie's amendment largely achieves the same result, so we will be mindful of that. We will come to that in due course. Yes, you can say that. Okay. Other members, Liam McArthur? I will come to the amendments here in improving the transparency, which is certainly a theme that we heard at stage 1. It was just in relation to the point that you made, Minister, regarding crowdfunding. I welcome a bit of additional clarification around what the provisions that have been put into the bill may imply in terms of what an individual who does receive crowdfunding might have to declare. Clearly, there will be individuals in any crowdfunding initiative who will not be known to the individual, and therefore those are captured in the provisions. However, in a sense, there is the prospect that there may be very many funders of small amounts that cumulatively add up to a lot. Is the expectation that all of those individuals would have to be revealed to the court under the provisions of the amendments that we are considering at this point? What I am proposing is that only those funders who are known to the pursuer need to be disclosed. The pursuer does not know who the people are, perhaps because they are using pseudonyms, and they cannot be expected to disclose that information. I am very happy to reflect further on that particular aspect as we move to stage 3, just to ensure that we are belt embraces covering what we need to cover and excluding what we need to cover. That is helpful and I welcome that clarification. As I said, I entirely support the principle. I would just be wary of having something that is proportionate in those specifics. No other comments? The question is that amendment 41 be agreed to. Are we all agreed? We are all agreed. I call amendment 42, 43 and 44. All in the name of the minister and all previously debated. I invite the minister to move amendments 42 to 44 on block. Does any member object a single question being put on amendments 42 to 44? No. The question is therefore that amendments 42 to 44 are agreed. Are we all agreed? We are all agreed. I call amendment 61 in the name of John Finnie, who is already debated with amendment 41. John Finnie to move or not move. The question is that amendment 61 be agreed to. Are we all agreed? Yes, we are all agreed. Amendment 61 is agreed. I call amendment 45 in the name of the minister, already debated with amendment 41. The question is that amendment 45 be agreed to Are we all agreed? Yes. I call amendment 46 in the name of the minister, already debated with amendment 41. Minister to move formally. The question is that amendment 46 be agreed to. Are we all agreed? We are all agreed. I call amendment 12 in the name of Daniel Johnson, already debated with amendment 41. Daniel Johnson to move formally. No. The question is that section 10 be agreed to. Are we all agreed? Yes. We are all agreed. I call amendment 47 in the name of the minister, already debated with amendment 34. Minister to move formally. The question is that amendment 47 be agreed to. Are we all agreed? We are all agreed. The question is that section 11 be agreed to. Are we all agreed? We are all agreed. I call amendment 48 in the name of the minister, already debated with amendment 34. Minister to move formally. The question is that amendment 48 be agreed to. Are we all agreed? We are all agreed. We are not all agreed, sorry. Amendment 48 to be agreed. We are not all agreed. Those in favour of amendment 48 please show. Those against amendment 48 please show. 8, 4 and 3 against amendment 48 is agreed. Question is that section 12 be agreed to. Are we all agreed? We are all agreed. I call amendment 49 in the name of the minister, already debated with amendment 34. Minister to move formally. The question is that amendment 49 be agreed to. Are we all agreed? We are all agreed. The question is that section 13 be agreed to. Are we all agreed? Yes, we are all agreed. Group 13, auditors of court, call amendment 51 in the name of the minister, grouped with amendments 52, 50, 53 and 54. Minister to move amendment 51 and speak to all the amendments in the group. Committee that this group is about auditors of court. Section 51, 3 of the Solicitor of Scotland Act 1918, section 2 subsection 2 subsection B of the legal profession and legal aid Scotland Act 2007, set out lists of auditors of court and other legal figures that are entitled to make certain complaints to the Scottish Solicitor's Discipline Tribunal and Scottish Legal Complaints Commission respectively. Those lists ought now to include the auditor of the Sheriff's Appeal Court, who has given a statutory status for the first time by section 13 of this bill. Amendments 51 and 52 therefore allow the auditor of the Sheriff's Appeal Court to report any wrongdoing or inadequate professional services discovered on the part of a lawyer to the appropriate authorities. Turning to amendment 50, this provides for situations where there is a vacancy in the office of auditor of the court of session or where, for some other reason, the incumbent auditor of the court of session cannot carry out his or her functions, for example, due to illness or maternity or other family-related leave. Amendment 50 empowers the Lord President to appoint an ad hoc office holder to act as auditor of the court of session for the relevant period. This amendment was requested by the Lord President of the court of session and has been agreed with the Lord President's office and the Scottish Courts and Tribunals Service. The person who is appointed on a temporary basis will be treated as the auditor of the court of session for most purposes, but he or she will not have any responsibility for the provision of the guidance under section 15 of the bill. A temporary auditor must, of course, comply with the statutory guidance. Turning to amendment 53, this responds to concerns raised by the Lord President and the Scottish Courts and Tribunals Service that section 15, as drafted, would require the auditor of the court of session to produce a large tome of voluminous guidance on the taxation of judicial accounts such as currently exists in England. It was feared by the Lord President and the Scottish Courts and Tribunals Service that the production of such a volume would take the auditor away from his or her normal duties, thus potentially causing delays in the taxation of accounts and even potentially inviting satellite litigation. The amendment amendments section 15 subsection 2, which is the provision requiring the auditor of the court of session as head of the auditor of court profession to provide guidance on practice and policy relating to the taxation of accounts of expenses. It is intended that the auditor will provide guidance on questions of taxation of judicial accounts as they arise. That will build into a comprehensive set of guidance for practitioners. That is more consistent with the recommendations made by the Scottish Civil Courts review headed by the former Lord President, Lord Gil. It should not, however, be such an honours task so as to interfere with the auditor's other duties. Amendment 54 makes it clear that the auditor of the court of session must nonetheless have regard when preparing guidance to the need for auditors across Scotland to exercise their functions in a manner that is consistent and is transparent. The Scottish Civil Courts review referred to the objective of guidance as being to ensure that a consistent approach is taken to the taxation of accounts across Scotland. That amendment will achieve that objective in terms of the way that we have now formulated the requirement. Amendment 51. The question is that amendment 51—oh, sorry—did any other members wish to comment? No, thank you. The question is that amendment 51 be agreed to. Are we all agreed? We are all agreed. Call amendment 52 in the name of the minister. Already debated with amendment 51. Minister to formally move. Form moved. Thank you. The question is that amendment 52 be agreed to. Are we all agreed? We are all agreed. The question is that the schedule be agreed to. Are we all agreed? We are all agreed. Call amendment 50 in the name of the minister. Already debated with amendment 51. Minister to formally move. Form moved. Thank you. The question is that amendment 50 be agreed to. Are we all agreed? We are all agreed. The question is that section 14 be agreed to. Are we all agreed? We are all agreed. Call amendment Mae ar gael wneud y tro, yn mble?! Merled gan xodwch chi am yt shymran 14, Parrion proseddiwedd O trauma iddol hipesol. Proseddiwedd Cymru 13 a i fyf contractsaidd Liam MacArthur. Proseddiewedd direct ni roi tort maen nhw a llyg idde i mewn alivebeitagnt 14. Feitio cyllidin am yr ironhau arcatau'r producale rydw i maen nhw m ôl unrhyw nhw. Br Awr am yw mleid ac mae'rmmynau yn nhw i gydaggar'd fyrdefense a gael proseddi Solidar ffordd. I do'n fy mwy fwg o wel marathod gyda'r lle ac trafodaethol a gefnod ac yn mys o'n gyflethau bod eu tyngwy o bobl, oherwydd cyflawn ni'n de heels ym gyflogau Pwgol, nid i brydol i shopfennu optin. Dydyn ni'n gweinyddd nhw'n gweithio'r pwyllfa'r pwyllfa'r pwyllfa'r fawr a'r gwa画, ond yn fwy yn ddweud yn fwy o'r pwyllfa'r pwyllfa'r o'w wirwch, a rydych i'n meddwl i gael gweithasol hwn o'r Ffynishachol, gallwn i gael i ffynishachol i chi i'n mynd i gyd, yn ymgyrchu'r wlad pan wahanol o'r dda i gael gweithio'i ddoedd ond y cwmulitatif yw'r hwn yn ei gael, ond maen nhw'n mynd i'r gweithio'i ddweud o'r ddychgyfydd i gael eich linell yna iawn? Yn y ddechrau'r gweithiau, ond i gael i gael ei shirreddau I have to say looks set to do that in a number of areas. The current lack of ambition in relation to group proceedings is a concern, that's why my amendments here seek to expand the options available, including the possibility of an opt-out route being taken. As colleagues will see amendment 13, which I have a pleasure in moving, does not require opt-out rather than opt-in, rather it seeks to introduce discretion to the court, taking into consideration the nature and circumstances of a case. That reflects the approach taken in the 2016 Consumer Rights Act and seems a pragmatic and reasonable way of addressing the concerns that the committee had at stage 1 from which and others. For the sake of completeness, amendments 14 and 15 go on to lay out what would be required for a proficient opt-out mechanism, including the need to provide a description of a group of persons whose claims are eligible, as per the Consumer Rights Act 2015. An additional condition of the court's assessment that reasonable measures have been taken by the representative party to identify and notify any eligible person so that they can choose whether or not they want to opt-out. I think that those additional measures should help address some of the concerns that have been raised. That an opt-out proceeding might disadvantage any person or be an administrative burden on the court for providing definitive boundaries and leaving responsibility for identification and notification with the representative party. After the 1998 competition act introduced an opt-in clause, just one action was brought in 17 years. Only with the introduction of an opt-out provision in the 2015 Consumer Rights Act, have we seen a move forward in consumer protection illustrated by the successful case brought against JGB sports in 2007 over price fixing for football shirts. I believe amendments 13, 14 and 15 provide a pragmatic solution to reinforcing the measures in this bill around group proceedings. They have the potential more effectively to incentivise corporate social responsibility on the part of businesses and underpin the rights of consumers. I move amendment 13 and look forward to hearing the contributions of colleagues and the minister. John Finnie. I speak in support of Liam McArthur's amendments here. I think that the key word that he used for me was opportunity. We deal with complex legislation. This should not be about the ease of which this can be applied. I think that we heard some very compelling examples of practice which these amendments would support. I think that it is important that we try to make it better for the future, so I support the amendments in Liam's name. Daniel Johnson. I think that we would just like to speak strongly in support of Liam McArthur's amendments. I think that they would be extremely useful. I think that the examples that he set out and also the impact of opt-in legislation that we have set at the border leads you to the conclusion that opt-out would be extremely useful. I think that the situations where there are a large number of people suffering from a very low-level cost makes it quite compelling. For those reasons, I strongly support his amendments. I also welcome this amendment. I think that along with Liam McArthur and John Finnie, there is an opportunity here. I think that the amendment strikes the right balance in giving the court the discretion to go to the opt-out procedure if they deem that to be the best option. I am pleased, indeed, that the proposal to introduce group proceedings and otherwise one of those class actions to the Scottish courts has broad support. Picking up on Mr McArthur's description of my position, I too do not lack ambition, but I perhaps am more of a pragmatist as a Government minister. Perhaps I can now flesh out the reasons why I take that view at this stage. Of course, it is the position that it is not just the Scottish Government, but most stakeholders, including the Faculty of Advocates, the Law Society of Scotland, the STUC and the Association of Personal Injury Lawyers, are convinced that the best way forward is to proceed at this time by way of an introduction of an opt-in system. This principle is because it will be more straightforward to implement easier to understand for potential litigans and easier to administer for petitioners. It will also not be undue delay in commencing the procedure. The Scottish Government does not have any financial or political objections to opt-out, and the decision to go for opt-in at this stage has been for purely, as I say, practical reasons. It is, to be more in mind, of course, that group procedure notwithstanding the clever drafting of Mr McArthur's amendment at number 13 and referred to by the convener, but, of course, the discretion of the court still has to be court rules in place, and that is where we get to one of the nubs of the matter, because group procedure will require, of course, new court rules from the get-go, whatever procedure it is, will require new court rules to be drafted by the Scottish Civil Justice Council. Some of the issues relating to opt-out, the opt-out option, are much more complicated than those for the opt-in option. To mention perhaps just two issues, opt-out will imply that people may become part of litigation without their consent and possibly without their knowledge, and that would have to be addressed in court rules. Also, the concept of aggregated or global damages sits uneasily with Scott's law, which adheres to the compensatory principle. No stakeholder has yet proposed a scheme that would ensure that individual claimants are not under or overcompensated. Moreover, members will have seen that the Lord President has written to the committee commenting that any extension of the group proceedings provisions in the bill should be approached with considerable caution. He went on to say that the practical and legal challenges presented by an opt-out model are significantly greater than those presented by an opt-in model. The Government therefore believes that it would take the Scottish Civil Justice Council far longer to draft rules for both the opt-in and opt-out procedures from the same starting point, and that would be required, as I say, if amendment 13 were to be accepted by the committee, because we would still need to have court rules in place in order to follow a procedure and whether or not the court exercised discretion to follow an opt-out procedure. You would still need to have court rules in place, and it has been explained why, from a starting point, it would take longer to formulate those court rules, certainly. If your view ultimately is going to be that you would not be supportive of this, when would you think it would be appropriate time to move to this system? I think that that is a very practical question. I think that where we are with this is that, first of all, if we proceed as proposed in the bill as it currently stands, we start with opt-in because it is starting somewhere, as was highlighted by several of those who gave evidence before the Justice Committee, then it will take some time even to get the opt-in procedures going, but it may well be there for that, and I think that we are getting on to discuss post-legislative scrutiny provisions in the next grouping of amendments, but it may well be that that would be the perfect time to see where matters have got to. There is no question of kicking this into touch forever. My view is simply inspired by the pragmatic considerations that have been raised with me about the need to get on with this, given that we heard in committee that this has been the subject of discussion for many decades now, and we need to get on with it and start somewhere. If we make it too complicated from the start, we risk delaying the whole thing. Instead of being able to start at least with some opt-in proceedings, we may find ourselves—and I am sure that that is not the intention of Mr MacArthur at all—but we may, as an unintended consequence, find ourselves in a position where we have no class actions possible for a considerably longer period of time because we are trying to be too ambitious at the outset. It could delay class actions per se would be my concern. As I say, a number of people before the committee did give evidence effectively to that effect, taking a more pragmatic view, not that they did not wish to see opt-out. They did, but they took a more pragmatic approach. For example, Paul Brown of the Legal Services Agency and his evidence to the committee. It is a simultaneous joint introduction of the two processes, one of which is extremely complex because, as I say, it introduces into Scots several procedure elements that we do not currently wrestle with. I think that there is a fear of delay to all class actions. Mr MacArthur, just to pick up on one point—or maybe Mr Johnson, sorry—there was a reference to the experience of the UK competition appeals tribunal where class actions have been possible, and I think that it was which that flagged this up. We are not sure that the experience of that tribunal is typical, since before that tribunal there are a particularly large number of claimants in competition actions. Competition law is highly specialised and a technical area of law, and we therefore believe that it would be much more straightforward to introduce opt-in, as the starting point, an opt-in scheme in Scotland where we have a much smaller jurisdiction, so that is perhaps something to bear in mind as well. For all those reasons, convener, I would therefore ask the committee not to support Liam MacArthur's amendment 13. As I say, in response to Mr Finnie's point, I recognise that that is absolutely an area of the bill that would be right for post-legislative scrutiny, assuming that the grouping of amendments that we are shortly to get to is approved by the committee. I would be happy to support Liam MacArthur's amendments 14 and 15, which are potentially useful additions to the proposals for opt-in group proceedings. Of course, we are not closing the door in opt-out. I simply am guided by pragmatism, whereby I wish to see class actions as a possibility in Scotland as soon as we possibly can. Court rules need to be drafted. It would be easier to start with opt-in and then move to opt-out. Post-legislative scrutiny would give members, I hope, the assurance that this is not an attempt to kick this into touch. If we are to start from a starting point of having to come up with court rules for both opt-in and opt-out, I really fear that we will see no class actions for years to come because of the complexity of that approach. Liam MacArthur, to wind up. I thank the Minister and colleagues for their contributions and I thank the self-convener John Finnie and Daniel Johnson for their strong support for these amendments. I think there seems to be a tussle over who has greater claim to the badge of pragmatism. Let me stake my claim again. I think the amendments in the way that I have sought to cast them do strike the balance, recognising some of the complexities, recognising the need for court discretion and taking these forward. The minister fairly pointed out that we still require amendments to rules of court. Given the strength of the evidence that we have heard from which, and I do not entirely dismiss the concerns of the opponents cited by the minister, I think that, as a representative of the consumer's interests, we need to ascribe a suitable amount of weight to the concerns that have expressed. I think that, although direct comparisons between the situation north and south of the border are probably fraught with difficulties, and I hear what the minister said in relation to the actions of the tribunal. Nevertheless, it has taken 17 years south of the border to move from the 1998 competition act to the 2015 consumer rights act. We should also be able to draw some optimism from the fact that the consumer rights act 2015 demonstrates that an opt-out model is not beyond the wit of man to construct in a way that allows group proceedings to come forward. As Daniel Johnson pointed out and reminded us, that affects high numbers but has a low impact. Therefore, unless we address that, we miss the opportunity that John Finnie raised in his contribution and say on that basis and wind it to move. On that point, how do you respond to the minister's point about the delay that it sounds as though from what the minister was saying that by making this amendment we would potentially kick the whole thing quite a long way into the future? If I am here in the minister right, is it not better to get the opt-in going and then look at the opt-out, perhaps at the post-legislative scrutiny stage, rather than potentially put the whole thing back for potentially some considerable time? It is not an unreasonable point at all. I think that the question of the counter to that is that I dare say that which have no interest in seeing group proceedings delayed unduly, but there is an opportunity at this stage to introduce a mechanism that embeds opt-in but also leaves open the option for courts to decide on an opt-out mechanism that we saw the delays in what happened south of the border that stretched for some considerable time, as I say, 17 years. I think that there is a bit of a risk that we hang our hat on post-legislative scrutiny as somehow allowing us to return to this and address it at that stage. I dare say that there will be those at that stage in five years' time who suggest that it is still awfully complicated and it will be terribly difficult to amend the rules of court and that we kick the can further down the road. I think that we have an opportunity here, while there is pressure in the pipe to introduce group proceedings under an opt-in model, to take that further step, take additional time to come forward with a mechanism that allows opt-out proceedings in certain circumstances and in accordance with the court discretion. On that basis, I am minded to press ahead with amendment 13. The question is that amendment 13 be agreed to or will be agreed. Yes. We are not all agreed. There will be a division. All those in favour, please show. All those against. Six in favour, five against. Amendment 13 is agreed to. Call amendment 14, in the name of Liam McArthur, already debated with amendment 13. Liam McArthur to move or not move. The question is, amendment 14 be agreed to. Are we all agreed? Yes. We are all agreed. Call amendment 15, in the name of Liam McArthur, already debated with amendment 13. Liam McArthur to move or not move. Move. The question is, amendment 15 be agreed to. Are we all agreed? Yes. We are all agreed. The question is that section 17 be agreed to. Are we all agreed? We are all agreed. The question is that section 18 be agreed to. Are we all agreed? We are all agreed. Now move to group 15, the final group, post-legislative review. Call amendment 55, in the name of the minister, grouped with amendments 62 and 56. Minister to move amendment 55 and speak to all amendments in the group. Thank you, convener. During the stage 1 debate, a number of calls were made for post-legislative scrutiny of the legislation in five years. The committee, in its stage 1 report in the bill, also asked the Scottish Government to commit to post-legislative scrutiny of the bill within five years of its provisions coming into force. In particular, it was concerned that the review should look at the impact of qualified one-way cost shifting. I have listened to the arguments and I am persuaded that post-legislative scrutiny is appropriate for the special circumstances of this particular bill. That does not, however, mean that the Government accepts that a statutory requirement for post-legislative scrutiny is appropriate for all legislation passed by this Parliament. The Government continues to believe that there is a need to take a flexible and proportionate approach to post-legislative scrutiny so that time and resources are targeted effectively. We look forward to working with the Public Audit and Post-legislative Scrutiny Committee in that regard. Government amendment 55 provides for post-legislative scrutiny of each of parts 1 to 3 of the bill five years after each part is fully commenced. In the case of part 4, on group proceedings, the five-year period will commence from the day in which the first rules of court for group proceedings come into force. That different arrangement is considered to be required because the detail of the procedures for group proceedings will be provided in rules of court to be brought forward by the Scottish Civil Justice Council, which will draft a consult on the rules of court that are to govern group procedure. Group proceedings cannot take place until such rules are enforced. There is therefore arguably no point in triggering the five-year period for post-legislative scrutiny of group proceedings until they have actually taken place and had a chance to bid in over the proposed five-year period. The post-legislative reports envisaged in the bill will require consultation with appropriate stakeholders. They will have to be laid before the Scottish Parliament as soon as practicable after the relevant report has been prepared and then published. The post-legislative scrutiny will provide an opportunity to look at how various key parts of the act are operating and whether amendment is necessary. For example, the part 1 provisions, as amended on the future element of damages, are taking into account the likely addition at that time of specific damages legislation. The post-legislative scrutiny of part 2 will allow, as the committee has requested, a review of the operation of qualified one-week cost shifting and how the grounds in which quarks protection are lost are operating in practice, since they are intended to facilitate meritorious claims whilst discouraging spurious claims. The post-legislative scrutiny of part 2 will also allow consideration of whether quarks should be extended to other areas of civil litigation in addition to personal injury actions. As regards post-legislative scrutiny of part 4 of the bill, most stakeholders have agreed that opt-in is the practical option for the introduction of group proceedings, however we have heard the committee's view on that just a moment ago. Amendment 55 would seek to link the post-legislative scrutiny in effect to the timing of the entry into force of the various parts, not to belabor the point. Amendment 56 convener will mean that the whole of the new part will come into force automatically two months after royal assent. Your amendment number 62 appears to have much the same purpose as the Government's objective in amendment 55. Although it embodies differences from the Government's proposal, I am willing to support the convener's amendment number 62. As with other non-Government amendments, we are supporting at stage 2, the Government will consider whether any refinements are required and bring them forward at stage 3 if necessary. That may indeed be necessary for us to reflect. Therefore, if market Mitchell's amendment is due, we may nonetheless be required to reflect on the rationale of the timing of the review as it pertains to particular parts of the bill. That is where we are, on the basis that I need to move the amendment in order for the group to be considered. I believe that I do move amendment 55 at this time, though that is only to allow debate to take place on the rest of the group of amendments. I thank the minister for that. Amendment 62 is in my name, which I now speak to. I think that it actually comprehends the minister's amendment 55. Both amendments insert provisions for post-legislative review of the operation of the act as soon as practical after five years until the before-parliament report on the review. However, in the stage 1 report, the committee specifically asked the Scottish Government to commit to post-legislative scrutiny of the bill within five years of its provision coming into force, and in particular to review the impact of introducing qualified one-way cost shifting in section 8 of the bill. Amendment 62 therefore specifically calls for a review of the effect and operation of section 8, which represents a radical departure from the traditional looser-pays principle. It also specifically calls for a review of the effect and operation of section 17 on group proceedings, including the group proceedings opt-in approach. Now that the committee has agreed Liam McArthur's amendment, it would include a review of the opt-out provision as well, and how section 8 and section 17 affects access to justice and administration of Scottish courts. Amendment 62 states that the report must include a statement by Scottish ministers setting out whether they intend to bring forward proposals to modify any provision in this act, and where no such proposals are brought forward, the reason for not doing so. As such, the amendment covers all provisions in the minister's amendment, but specifically provides for co-oxits as the most contentious aspect of the bill to be reviewed with further scrutiny of its operation, together with the section 17 group proceedings. Are there other members to comment? No? If there are no other ministers, do you wish to wind up? To say briefly that post legislative scrutiny will permit a number of complex and technical aspects of the bill, as you have highlighted, to be reconsidered. In the light of five years of operation of the bill, I must emphasise again that the Government does not believe that post legislative scrutiny is necessary on every single piece of legislation, but we will, as I said, work with the Public Audit and Post legislative scrutiny committee in this regard. To summarise, in light of the convener's comments, I will not press amendment 55 in my name. I do support amendment 62 in the name of Margaret Mitchell and will reflect. As with all stage 2 amendments, if the committee accepts that amendment, I will reflect whether any refinements may be required when we come to stage 3. Does anyone object to amendment 55 being withdrawn? No objection. Thank you for that. Amendment 62, in my name, is already debated with amendment 55, which I now move. The question is that amendment 62 be agreed to. Are we all agreed? We are all agreed. Amendment 16, in the name of Daniel Johnson, is already debated with amendment 11. Daniel Johnson, to move or not to move. The question is that amendment 16 be agreed to. Are we all agreed? We are not all agreed. There will be a division. All those in 5 of amendment 16, please show. All those in favour of amendment 16, please show. Oh, sorry. I did all in favour, did I? Did we have to show off and just do it again? All those in favour of amendment 16? Right. All those against? Apologies. Five, four, and we couldn't release. We couldn't see who was voting. Can we take it again? All those in favour, please show. All right. All those against, please show. That's six in favour, five against, so the amendment is agreed. The question is that section 19 be agreed to. Are we all agreed? The question is that section 20 and 21 be agreed to. Are we all agreed? Call amendments 56, in the name of the minister, is already debated with amendment 55. Minister to formally move. The question is that amendment 56 be agreed to. Are we all agreed? We are all agreed. Call amendment 17, in the name of Liam Kerr, is already debated with amendment 34, Liam Kerr, to move or not move? Moved. The question is that amendment 17 be agreed. Are we all agreed? Yes. We are all agreed. The question is—sorry, we're not all agreed. Sorry. We're not all agreed. There will be a division. Those in favour, please show. All those against? Four in favour, seven against. Four in favour, seven against. The amendment is not agreed. Call amendment 65, in the name of Gordon Lindhurst, is already debated with amendment 18, on day 1. Gordon Lindhurst, to move or not move. Moved. The question is that amendment 65 be agreed to. Are we all agreed? No. We are not agreed. There will be a division. Those in favour, please show. Those against? Three in favour, eight against. The amendment is not agreed. The question is that section 22 be agreed. Are we all agreed? The question is that section 23 be agreed. Are we all agreed? The question is that the long title be agreed to. Are we all agreed? We are all agreed. That ends stage 2 consideration of the bill. An amended stage 2 version of the bill will now be printed. The Parliament has not yet agreed when stage 3 proceedings will take place. Members can, however, lodge stage 3 amendments at any time with the clerks in the legislation team. The deadline for lodging stage 3 amendments will be announced as soon as it is known. Minister, can I thank you and your officials for attending and suspending briefly to allow the minister and our officials to leave. Agenda item 3 is an evidence session on alternative dispute resolution. I refer members to paper 1, which is noted by the clerk and paper 2, which is a private paper. Welcome to the meeting. Nicolaus Collarius, secretary of CAMHS Scotland, Isabella Ennis, chair family law arbitration group Scotland, Roseanna Cewbett, head of practice mediation, relationship Scotland and Dr Marshall Scott, chief executive of Scottish women's aid. Can I thank all the witnesses who did provide the committee with written evidence? That is always tremendously helpful to the committee before we hold one of these evidence sessions and we now move to questions, starting with John Finnie. A question to maybe start us off, please. Outlining types of, if we call it ADR right at the start, alternative dispute resolution that I used in family law cases in Scotland, and describe the key features of the methods used, please. If we are talking about alternative dispute resolution in the legal sense, then the alternative is alternative to litigation. Aside from litigation, family law arbitration is a litigious process in that it is adversarial. There is a joint appointed decision maker, both parties agree on who the decision maker is, in flags that decision maker is a specialist family lawyer, either a solicitor or an advocate. They have had arbitration training specific to family law. They are a member of flags, which is an organisation that has produced its own rules and has its own committee. The parties with their legal representatives enter into a contract, the agreement to arbitrate, and that governs the matter of the dispute. If they are in dispute about where the children should be spending time, they contract that that is the scope of the arbitration and they enter into it with solicitors and the clients and the arbitrator. The manner in which the dispute is resolved is a matter again of agreement so that they can resolve it by evidence, by written submissions, they can resolve it in any location that suits them. If they are in a remote location, they can enter into the process by Skype or telephone. The arbitrator can go to them. There is a huge amount of flexibility, but it is a process that engages you having generally your own legal representative and an independent decision maker with a specialisation in family law. The alternative will be mediation. I think that you have already had discussions around that, so you probably have a sense of what that is. In Scotland, family mediation is provided by Relationship Scotland and calm primarily. There are a couple of private providers, but that is the main issue. Do you want me to explain how that works? Yes. Parties can choose to meet an independent mediator. They will initially have a one-to-one meeting to find out about mediation and explore whether that is appropriate for their circumstances. Then they would meet the mediator and the mediator would basically help them to have a conversation and to explore what the issues are and to reach agreement, but it would be the party's agreement. The mediator does not impose a decision on the parties. It is quite a creative process, particularly for family cases where there are children. A lot of the issues are quite nuanced around where the children might live and how they can manage their arrangements going forward. It is a very flexible and creative process to explore options. Family mediation in Scotland is also protected from a confidentiality point of view. What is said in mediation is not taken to court. If the case collapses and it goes to court, what happens in mediation is protected and is not confidential. That allows parties to try things out and feel free to talk about things without feeling like it is going to be used against them in court. It is a very productive and creative process. Cal mediators are experienced family law solicitors who have trained to become mediators. We have that dual qualification of being solicitors in family law and trained to become mediators. The process that is offered is similar to what Roseanne has outlined. When a case is referred to mediation, it is referred to a calm mediator. We would first meet with the parties individually, obviously, to assess suitability for mediation but also to obtain a bit of background before they are after engaging with the parties jointly in joint mediation sessions. I have been a solicitor for 35 years and an mediator in excess of 20 years. From a very early stage, personally, I recognised that the courts were not always the best place to try and resolve disputes, particularly in relation to family disputes. I deal with contact cases, residence cases primarily in mediation but also with a number of cases involving financial aspects arising from separation. More recently, I have dealt with wider types of cases, relocation cases in mediation and more recently cases involving family members but in other areas such as disputes over estates or even family businesses. I am an enthusiast for mediation being a solicitor as well. I still think that mediation is far and away the best way to resolve most disputes but particularly family disputes. It offers the parties the opportunity to be heard first and foremost. We use the words empowering parties. One of the comments that I frequently hear at mediation when people go to court is that they do not feel that they have been properly heard. Mediation gives them a chance to speak. Not just for a few minutes but an hour or two-hour sessions, they can very much have their say as to what is concerning them. It very much puts the parties front and centre of the resolution of the dispute. It gives them the power and the permission to consider solutions that suit them, not solutions that are imposed on them. In particular, the mediation process is a problem with the court. It gives people the time to drill down and look at much detail that is required in the circumstances arrangements for children, for example. Generally, mediation will last as long as it takes. We have two individual joint sessions. Individual sessions have joint sessions. The number of joint sessions will vary from perhaps two or three to perhaps longer, very much dependent on the parties. The facility is there for the parties to return to mediation and to review and adapt to any changing circumstances that may be required. I think that one of the important points about mediation is that opportunity to try things out and then to come back and maybe tweak the arrangements a bit. Or, as is often the case with families further down the line, something will change. One of the parties might get a new partner or a new baby, so they can come back. Children, obviously, their needs as they get older change. It is good to have that opportunity to explore what to do. If I could just add one other thing about the benefits of mediation, we very much look for longer-term solutions. The court system is designed to give a decision on a particular set of circumstances. Obviously, we have to address any short-term requirements, any short-term issues that are in mediation situations that have to be resolved. We tend to look particularly when we are dealing with families where there are younger children. One of the points that we try to get across to the parties is that you may no longer be partners and you may have separated yourselves, but if you have children that are two or three years of age, you will be parents for a very long time and you will have to co-operate. We try to encourage parties to take a longer-term view on their problems. Again, on numerous occasions when I deal with mediation, I hear relatively young people in their 20s who relate back to the unfortunate experiences that they had when they were younger with broken families and realise that they do not want that to happen again for their children. That is where we can encourage them to think longer-term. It is not just all about taking out their heart or their anger on the other person. It is trying to overcome that and to think longer-term for the benefit of the children. That is another point that we try to emphasise greatly in mediation. The children are the most important people here. It is what is in their best interests and we constantly have to remind parties that they really have to put the children first, not their own feelings. Thank you very much. Can I ask Dr Scott about the appropriateness of whether there are women involved in violence? You make a specific comment on your evidence that we are aware that there will be times for women to participate in the mediation process because they are unaware of the right not to. Absolutely. I will frame my remarks by saying that in general Scottish Women's Aid supports alternative dispute resolution and mediation, just not in the context of domestic abuse. We know that this discussion has been had before in Scotland. It has been going on for many years and in part I think it has been difficult to resolve because there is quite a sizeable evidence base that says that women and children can be put at risk and in fact harmed in the context of mediation when domestic abuse is part of the picture. We very much welcome the input from relationship Scotland around mediation not being appropriate in the context of domestic abuse. Our concerns are if you think about the prevalence of domestic abuse it is one out of four women in Scotland. If you think about the number of relationship breakups to use the phrase that is common that might involve or do involve domestic abuse that are not evident in the public eye and those come from a variety of places. They come from the fact that women are routinely and we have some research that is just about to come out again to confirm empirically that this is true advised by their lawyers not to mention domestic abuse when they are involved in a court case especially around child contact and we are very concerned at the fact that mediation is going on in Scotland at the moment with women who are experiencing domestic abuse and it is not because there are ill-intentioned mediators who wish to just put domestic abuse aside although I think it has been put aside it is because the system is not competent around domestic abuse and it is a very scary thought for us as we know have some proposals some proposals have been made about having even just mandatory meetings about mediation because we are very well aware that women's voices are not equal in a mediation relationship and that they are often pressured into that through a variety of mechanisms from their partner, from their lawyer, from the way the whole civil justice system works we have consistent reports from our services that this is an ongoing issue and I just got one last week and I'm going to share a bit of it with you. Dear Marsha, sorry to bother you but I need to escalate an issue in here. I'm not going to tell you where it is because the manager of the service has quite a good relationship with Relationship Scotland. They manage cases together sometimes in the contact centre and they would like to preserve that. One of our clients who has interdicts for her children in a non-harassment order in place against her husband for 100 years so you can imagine the level of abuse there must have been in that case by our local court has received an invitation to come to mediation with her husband. We have had our local PF in the office this morning and he is shocked that this is happening as are we. It was a high profile case here and we feel the perpetrator is still trying to get to her. We feel that family mediation is totally inappropriate and our client is very disturbed to have been invited to it and most worried because she has multiple children and she is worried that they will also receive letters of invitation as they come from age, come to age and she will have no way to protect them. Again I have to just underline that this is an issue around competence across the piece, family lawyers, mediators, all kinds of folks in the system and as we heard in the debate around the new domestic abuse law the understanding about the actual dynamics of domestic abuse across the public sector can be very shallow and I think it is really important that we understand what the unintended negative consequences of privileging mediation in the system are until we change that. So very much following on from those comments and if I hear the opening statements that the advantage of mediation being the flexibility and about making sure that the voices are heard but also hearing the point that it being predicated on both sides having access to representation does make me wonder to what extent it is predicated on the notion that there is a symmetry between both parties, both in terms of power, resource and ability to articulate their situation. I am just wondering what the issues are with arbitration because not even the points around domestic abuse are very well made and are obviously at one end of the spectrum but there are a lot of scenarios where there is just an asymmetry of the ability to really state one's case where you could see that mediation or arbitration would have some issues if one party was just able to put their points forward better than the other side. I am just wondering what the panel would say to that observation. Who would like to hear that? In family law arbitration, the purpose of the arbitrator as an expert family lawyer is to ensure that the process is fair, the arbitration Scotland act. The first obligation is to ensure that the process is fair, efficient, meets all the requirements of natural justice. Now in family law arbitration you would generally have each side represented also by a family lawyer. The imbalance in representation and power would only occur if one party could afford the arbitration process and the other party couldn't. At the moment the Scottish legal aid board does not fund family law arbitration, which means that access to efficient, expert, tailored family law justice is not available if you are not financially capable of funding it. That is a big problem but aside from that fiscal imbalance, if you are appearing before a family law arbitrator you have the protection of the arbitrator and the protection of your legal representative in the same way that you would if you were in court. The advantage of family law arbitration is that the arbitrator brings to the table an enormous wealth of experience in family cases so that they understand not just the point in dispute but the raft of reasons that lie behind bringing that point to an adjudication, the enormous amount of backstory, the understanding that there are subtle issues that are at play that might not be evident because they have the experience that a sheriff or a judge might not have. In mediation there is no direct representation in the mediation process however we do frequently advise parties in mediation to still consult with their own solicitors so the solicitors are there in the background to provide advice and it's certainly my practice and I think the practice of all calm mediators and I'm sure the same with Relationships Scotland. Nobody would ever be forced to make a decision there and then in the context of mediation without first being given the opportunity to seek advice so the representation is slightly different in mediation. The other point I would make, I think the question you're asking primarily is about power imbalances and that is something we are trained on to recognise power imbalances and there are various ways we can deal with that if we feel that one party is being dominated, we can separate the parties, we can speak to parties individually, there are different models, there is flexibility to address such power imbalances. If we as mediators feel that power imbalances is too great then we would probably stop the mediation process, we are very very conscious of these particular issues. I think I would say that there's a sort of generic equality impact assessment that would shine some light on these issues. I think particularly women and women, whether they're experiencing domestic abuse or not, we know are more likely to be poor, much less likely to have access to a solicitor. Their access of legal aid is often quite problematic, their access to legal aid is often quite problematic and I think that they in general walk into those kinds of negotiations at a disadvantage. I think that mediation is intended to try and redress some of those disadvantages but I suspect that it is only partially successful in doing so. In terms of cases where domestic abuse is an issue then absolutely I agree with Marsha that mediation wouldn't be appropriate. I agree with Nikos, what he's saying about the mediation process is that part of the job of the mediator is to give people an opportunity to speak and to be heard. Some of the research for not in domestic abuse cases but for some women actually creates the opportunity for them to have a voice because you can slow things down and you can... It's often that one party is more articulate than the other, not necessarily that way around always but the role of the mediator is to allow that conversation to happen and for the one that's less articulate to have the opportunity to speak and for many people that actually is giving them an opportunity and empowering them so you're giving them power where maybe they didn't have it before so that's a really important part of the role of the mediator. Can I just add one thing? I am... As a children's rights organization Scotland, Scottish Women's Aid is constantly worried about the lack of children and young people's voices and decisions that are made about their lives and I think in the context of mediation we have a lot of exploration to do about how is it that children's voices not as a one-off but as actual participants in decision making can be reflected and I'm not clear that we know the answer to that. Relationships Scotland mediators, some go on to do additional training where they can meet with children if that's appropriate, if the parents agree and if the child, if it seems like that would be a good opportunity for the child then mediators can meet with the child and feed their views back into the mediation process so there is that facility to hear children's voices within the mediation process. Again if I could just add in the family law arbitration a decision about the welfare of a child has to be determined in terms of scots law and the children's scotland act imposes an obligation to take into account the views of the child so the arbitrator is obliged to do that so the voice of the child would be heard but it's important to note that the power imbalance in mediation can't exist because slab funds mediation and so the less ffiscally flush might feel forced to go to mediation because that will be funded and an alternative dispute resolution service like arbitration which may be more suitable for them is not open to them because of the lack of funding so we are not serving all of the community fairly if we prohibit through economic imbalance the access to alternative dispute resolution through family law arbitration. Okay we've got two more supplementary folks in Lorna and then we're going on to Liam McArthur. Thanks convener and good morning panel. I suppose there are questions for Dr Scott mainly do you think given the prevalence of domestic violence in the passing of the new legislation which I think has sent out quite a clear message of what we think of such offences and behaviour in this country do you think that there should be a robust screening process about whether people are suitable for mediation or similar types of processes firstly because if it's appropriate at all if there's been domestic violence and secondly the point that Roseanne was making whether then yes if there's been that behaviour there then is it actually still within the interests of mainly women to go forward but a more robust screening process to detect it early what was your thoughts being that? I think it's really important to avoid a binary here of you know yes no mediation nothing else kind of question and I think Isabel raised a really good point which is that women may well in fact feel like it's their best option given a limited set of very bad options and part of the you know the two hard box involved here is that women do not have access to legal advice and support and representation when they need it routinely in Scotland I would say that part of our concerns is not only do we have ample as I mentioned empirical evidence that women are being coerced into mediation or in many places in Scotland we don't we're very concerned that a one meeting assessment given that that evidence is clearly not an adequate assessment process and from so much of the the evidence it was given during the bill the consideration of the bill we know that women's voices are discounted around their experiences all the time and it is highly unlikely that a woman who has has few resources and is being assessed for whether there's domestic abuse is going to disclose in a one one off meeting from somebody who probably has not an enormous amount of training for assessing that and when we're talking about coercive control and we're not talking about physical violence and we probably are not talking about a police record that can be referred to in most of these cases then it is highly unlikely that that system is going to be sensitive enough to to to establish safety in the mediation does that answer your question it does i think you've made the point very very clearly could i have an additional point for the members we're on to supplementaries just now and there'll be a probably an opportunity further on rona thank you convener yes can i ask doctor scott whether women's aid think it's acceptable for mediation to be used in for child contact where there's no domestic abuse involved and i'm talking in relation to the issues with child contact centers when there's no domestic abuse involved we don't have an opinion okay um the it's that's a really big when though and um as i've mentioned prior to this we you know we know that so many cases wind up um contact cases wind up where domestic abuse has not been flagged up where it exists very clearly um so we're we are quite concerned and we think the way to solve the problem is not to to to just keep filtering an infinitely smaller number of cases into the mediation and then the others we don't have a solution for i think we really need to to to take a look at the fact that um the system at the moment really coerces women into being quiet and how do we address that so you're seeing an alternative solution should be found yes okay thank you can i pick up on some of the points that marcia has made i don't think that anybody in this room would underestimate the impact of domestic abuse and the seriousness of it um i would however like to slightly differ i don't think that it should be discounted in all cases um i think that there are many cases where women who are subject to domestic abuse still need to get matters resolved whether it's to do with children and child contact or financial issues and i think mediation talking from the mediation perspective can certainly offer some assistance with that subject to the right model being being chosen and the appropriate safeguards being put in place i think calm as an organisation has engaged with scottish women's aid we've had some of their members come to our training and give us training on domestic abuse i think that can be further enhanced and i agree that maybe the screening process needs to be looked at to maybe more robust we're happy to engage with the scottish women's aid in that respect but i just have a slight concern about closing the door fully on mediation as an option in all domestic abuse cases i wonder just before i bring Liam in if we could get an idea of the size of perspective on the size do women's aid have any statistical evidence regarding the percentage of civil family law cases that include evidence or allegations of domestic abuse no no you don't we can you know there's there's a lot of evidence about um so for instance if you look at the child protection evidence and you can see many many cases um of child protection cases um that cross that are intersecting with contact disputes um in which domestic abuse isn't identified until post criminal justice and civil justice proceedings and there's there's lots of statistical and empirical evidence around that but in terms of civil you know the the body of civil law cases in scotland i'm not aware that that number is available but i'm happy to look for it that that would be helpful yeah Liam McArthur thanks very much i think the questions i was going to pursue you generally um covered fairly well so i was just going to pick up a couple of points from from what's already been said in relation to the availability of of legal aid when we had the round table there was a bit of an exchange um with Colin Lancaster who was giving evidence at that stage around forthcoming meetings to discuss legal aid in the context of arbitration now if those negotiations are on going and there hasn't been a resolution to them then um that's fine but there seemed to be a recognition there that this was um potentially an anomaly that needed to be addressed so if there's any update you can provide us on those discussions and and any further discussions that may be planned with slab around arbitration in legal aid that'd be helpful i don't have any information to update you on flags has always tried to engage with slab historically and with mr Lancaster's predecessor on this issue i know that the faculty of advocates and some other bodies are engaging in the strategic review and i understand that the strategic review has said that the availability of arbitration particularly in contact cases ought to be looked at as funding through legal aid because it would be quicker more efficient more appropriate but it's my understanding that it will take primary legislation to allow arbitration to be funded by legal aid and until that happens there's not a lot we can do but flags is always keen to have a dialogue so far as slab or the Scottish Government want to have that with us i should also declare our interest as my wife is a trained mediator with relations relationship scotland orney i think in relation to the discussion around whether or not the domestic abuse cases in all circumstances should be kept away from from mediation i was interested in the point about the voice of children and i'm certainly aware of cases that been brought to me where it would appear there is evidence that while domestic abuse possibly of a controlling coercive nature rather than violent violence towards the mother has taken place but actually the the voice of the children in those discussions appears for whatever reason to still have a loyalty and a desire to to make contact with the father how in those circumstances possibly without some form of mediation can contact arrangements be arrived at that give i suppose a due weight to the to the interest and the wishes of the of the child i mean i appreciate and hypothetically it's difficult to answer that but these situations do seem to arise reasonably routinely and therefore kind of trying to find a way of getting through that is certainly something that i suspect you're all wrestling with i think it's um it there's a piece of research that was funded by the children's commission um a couple of years ago looking at court reports in the in the context of domestic abuse in contact and heartily recommend that and absolutely you know i think it's we our position is often mistakenly identified as being opposed to contact in all cases and that is not the case we are we think part of the problem in the system is that um the the decisions are being made without without consultation and participation of children and young people whether they want contact or don't want contact now that research shows that contact is often is ordered when children about 80 of the time agrees with what children want when they want contact and about 20 of the time when they don't want contact so the system is very much skewed towards a certain outcome i think which is part of our concern but the other issue for us is um we have been working with the children's commission on trying to look at alternative models so for instance in westlothian um they have a position of a specialist domestic abuse children's rights officer who um does reports for the sheriff the local sheriffs comes from a children's rights perspective spends time with children as young as four years old to talk to them about what they would like and then makes an independent report to the court um uh we think that there are a variety of ways of feeding children's voices in and and we know because i was working there when we set that post up you know that the that sheriffs would say to the to the children's rights officer well what do you think we should decide and and what she would say is that's not my job my job is to is to communicate to you the the views and experiences of the children i mean it's that and that's helpful the um didn't seem to me any reason why that input couldn't be factored into mediation or indeed arbitration as well i mean obviously you've got a skilled individual who's trained in those in those specifics and in articulating the the views of the child is there any reason why that couldn't be i i think that we should be very creative and i don't see any reason why that couldn't work i guess the the point that i really want to underscore here is and we have this in legislation sadly not in practice is that the safety of the children and of their mother needs to be paramount and and if in fact there there is an assessment that the the safety can't be guaranteed then then you know that's the trump as far as we're concerned and so often in these cases given that we have libraries of evidence that say in the context of visitation and contact children and women experience revictimization that you have to be very robust in your assessment of whether it can be safe and that is not the case in the way the system operates now but i mean it's i'm right in saying that there are mediations that take place entirely with each individual not actually sitting in the the the same room i mean that that is not uncommon i would say it's it does happen but certainly in relationship scotland that would be unusual not unheard of but unusual because i think the point is if there is a course relationship then mediation isn't going to work mediation the way we operate it is a voluntary process both parties have to be prepared to engage in a discussion and be able to engage in that discussion freely so if there is a course of control situation then mediation isn't going to be appropriate and that decision will be made by the court and then it's around whether the contact centres supervised or supported contact can take place but that's a whole kind of other argument i kind of was thinking that this was around mediation in civil disputes generally and with learning from family and my experience in 15 years is that mediation has been around in family as an option since the mid 1980s but the uptake of it is still pretty poor so although i understand what marsh is saying around being wary of any requirement for people to go to an information meeting unless something changes there isn't there going to be this cultural shift towards a more collaborative working together approach to resolving disputes so i think there does need to be some change to make sure that people fully investigate all their options so mediation is a big one but there's also arbitration collaborative law so i think there does need to be a more formal need for people to investigate all of those options but still make an informed decision about what's appropriate and the court might well be the appropriate option so i'm not saying we shouldn't have the court absolutely we need to have the court but we also need to do something to make a step change shift towards people because it's been around as an option for families since the 80s there's a rule of court referral and in some areas some sheriffs will use that in other areas they don't some family lawyers are very good at explaining the options to clients others not so good so i suppose i would just bring it back to there does need to be some form of requirement for people or something that compels them to at least investigate all those options thoroughly but if you're to get legal aid for a court case you need to have demonstrated that you've at least explored the option of mediation or some alternative so those rules changed in a couple of years ago yes you do the legal aid board have been more proactive in asking about any attempts to negotiate or resolve that the matter and the question of mediation would be asked but it's still not in our view i think enough and in this i think calm in relationship scotland share views as to what what is required i noticed reading the minutes from the last meeting there were a couple of points particularly highlighted one was information about mediation and other forms of dispute resolution and i think there is a great need to to expand on that to make sure that everybody is well informed as to what their options are at the moment as lawyers we are obliged to talk about alternative dispute resolution but there's no no overview of that there's no checking of that and as rosanna said i think it's fairly patchy as to the extent in which it's being discussed but there has to be a bit of a sea change in attitude and approach and this really has to come from above unfortunately we are offering these dispute resolution mechanisms in the context of an adversarial system that is still the default mechanism for resolving disputes in this country and access to that adversarial system is in my view and i speak as a solicitor as well as a mediator it's still too easy there has to perhaps be some and i hesitate to use the word compulsion because i appreciate that's a whole whole different discussion but there maybe has to be some compulsion to at least make people stop and think and to explore other options before they jump into this adversarial process our relationship scotland and calm joint proposal to the legal aid board and scotch government to pilot information sessions for people in particularly in contact cases in four court areas to trial out a more kind of structured requirement to go to an information meeting to find out what all those options are so that proposal is i think sitting with the slab policy committee at the moment you mentioned the legal aid board and the steps they take and clearly that perhaps helps but only in respect of people who are eligible for legal aid it doesn't create any sort of a hurdle or a cause for pause for those who are not eligible for legal aid they still have straight access into the courts into the adversarial system i can't comment about the voice of a child in mediation but i think it's important for me to again say in arbitration when the arbitrator is making a decision about a child the welfare of the child is the paramount consideration in making that decision and before that decision can be made the arbitrator must have explored whether the child has a wish to express a view and if that child does have a wish to express a view what that view is and then to determine the weight that's attached to that view and that's all dependent on the age and stage of the child and the circumstances in which the view is expressed and the arbitrator has the ability to have a report or an expert child psychologist an independent court reporter obtain those views so we have as arbitrators a whole range of ways of obtaining the voice of the child in the dispute I think the same applies in mediation as well and Isabella has very very properly outlined the fundamental concepts about how we deal with this the rights for the child the need to in law to to hear the voice of the child and certainly in mediation we seek to do that as well whether it's by discussion with the parents who ultimately are probably best placed to know what their child is going through but where appropriate more directly by speaking to to a child in mediation as well and gaining his or her views so there's certainly an option to do that we would probably all agree that there isn't one solution that's right for every family in every circumstance but it's about people making an informed choice about what's the best option for their dispute is I think what we we should be moving towards I think it's quite interesting that me Ireland have introduced a mediation act for all civil disputes and so I think that is definitely a route that many jurisdictions are going down and I think it's important that we explore that properly here I think it's absolutely right you ought to be able to make an informed choice about the best method for resolving your dispute but your choice should not be tramled by your economic wealth just to add I welcome the support for the voice of the child but I think it's really important for us to understand how much change needs to happen in our system for that to actually be taken seriously and I encourage the committee to take a look at the the joint project that the Scottish Women's Aid did with the Children's Commission in speaking to children and young people and finding out their experiences of intersections with court reporters their stories were pretty compelling and it was put together in a film that's available on the website please do take a look at it I think it expresses the the difficulties of taking a system design for adults and then pasting it on top of children and young people very briefly thanks convener the we've heard a lot about the court perhaps might be appropriate and an adversarial system it's a slight tangent but since we're generally looking at ways in which we might be able to improve on what we've got at the moment does anyone in the panel have a view on the one family one judge idea being this idea that you could have the same sheriff to hear all criminal and civil matters is that something at least worth the trialing Dr Scott considering that that was something that I hoped the committee would take up quite some time ago when we were talking about the domestic abuse bill I have to say I'm heartily in support of it we know we've had some conversations with a retired Supreme Court judge in the US in New York who was part of instituting it there she's very enthusiastic about it said it's efficient it's more efficient in terms of court time and resources it certainly would help address the the problem that we've discussed which really under underpins a lot of the the civil law discussions we've been having here which is the gap between criminal and civil law in Scotland and we've spoken with a number of sheriffs who who also would would consider it I think the problem in the system perhaps might be having to restructure how the court schedules cases and some other issues but we would heartily recommend a very good look at doing that putting that model in place I think it's in the gift of sheriff principles at the moment so thank you for that I'm going to call Rona and after that Maurice Corry thank you convener um yeah we have touched on this and I don't want to leave labour a point but just to give us a perspective um can you tell us how often in practice a sheriff or judge does refer a case to mediation and do you think that the court system is working well in that respect um you know or is it not not doing it enough can you answer to that is it's fairly it's fairly patchy I don't have particular numbers for referrals but you will find certain sheriffs are more favourable towards mediation or perhaps ex mediators themselves and and can see the benefits whereas others perhaps see fewer benefits and perhaps try to to some extent mediate themselves in the context of child welfare hearings I think sheriffs should certainly be encouraged to to use the mediation option more even within the context of a court case to go back to the comment about the one family one judge I think I think certainly in the context of family law having more specialist sheriffs who deal specifically with family cases and I know they do that in in the bigger courts but there's obviously a resource issue in other courts but that clearly has to be better somebody who is experiencing the family law who can more proactively manage a case and perhaps involve other forms of dispute resolution as part of that case what would certainly be helpful I don't think the up take on alternative dispute resolution within family cases that go to court is sufficient in my view and as a solicitor do you see it as a solicitor's role to advise their the family or their clients that that's available to them most good family lawyers will seek to find a resolution court very much his last option and and other other options would be explored certainly Just on the one family one judge plan of course that's what you get if you go to family law arbitration you choose your arbitrator who is an expert family lawyer and they see your arbitration through from beginning to end so you don't have a different sheriff or judge dealing with perhaps a different aspect of the case at different stages now in Glasgow Aberdeen and Edinburgh we have designated family sheriffs and we now have a judge and a half in the court session but that doesn't mean that they are able always to see a case through every aspect of its procedure interim decisions most of them try very hard but they don't always achieve that you get that in family law arbitration so what I'm not sure because I don't understand is whether that links the criminal and the civil no arbitration family law arbitration is in civil only there is no arbitration in crime so that is an issue that Ecos alluded to which is that there is a disconnect between criminal and civil so a case can be considered in the civil court without any knowledge about previous or or other criminal convictions so and that's an issue for our contact centres that we get cases referred to us and we have no information about other works so unless they happen to disclose it to us then so there is a disconnect I think that's a whole other topic but there which I'm not an expert on but there is a bit of a disconnect between the criminal and civil way in which cases are managed so I'm not sure if that what I don't know enough about the one family one judge but if that was to resolve that that would be ideal just thank you okay or is correct thank you can I ask Mrs Ennis and also Rosanna cuba this particular question what weight do you give the child contact centre as evidence work with children in the ADR process bearing in mind that they are not regulated which concerns me greatly what your question is what weight do we give bearing in mind that they're not regulated okay so relationships Scotland runs most of the child contact centres as well as I'm more on mediation side so child contact centres are a great place for people to it's kind of like a bridge from if there's no contact to establishing a better system many families who use our contact centres will also as relationships improve potentially access family mediation and then that's an opportunity for them to talk about the issues that they've got and try and find a way of moving that contact on so that they don't rely on the contact centre so they might then use it just for drop-off and then ultimately have their own arrangements out with the contact centre so contact centres play a really important role in helping establish and re-establish relationships with for children with the parent that they don't live with and I am I know of the concerns about regulation and we would support regulation I think one of the issues is the funding that's been around historically for child contact centres but they play a really important role as a stepping stone many many cases for families where one parent hasn't had a relationship with increasingly we're seeing families that maybe never did live together and there's a child and then some years later the parent who hasn't been living with the family who's most often the dad but not always so it's about actually getting to know their child this suddenly we're talking about here's another adult who's your parent but you've never met them before so actually there needs to be a safe place for that relationship to develop for that parent to learn parenting skills so I think we're we're quite off topic but but contact centres play a really important role and mediation can support that process particularly in relationships Scotland because the two are very closely there many centres are running both of those services so the families can move between the two can I ask something to this one of the things that sounds great is there is sometimes a forced situation where a child in a domestic abuse situation is forced to meet the abuser okay as part of the the goodness of mediation within the contact centres there's something seriously wrong with that because that then can evade the child does that not concern both of you absolutely what are you doing about where there is domestic abuse absolutely children need to be safe and they need to not be exposed to further abuse I would agree with Marsha that the way in which these decisions are being made in the court process needs significant review we would argue that there needs to be a proper risk assessment done prior to an order for contact being made because what we do is we we get cases coming to us they've got a court order for contact we do a risk assessment in terms of can we facilitate that contact to be safe but whether in the bigger picture of that family it was appropriate or not we are not the decision makers in that so I do think there needs to be a much better risk assessment done where domestic abuse is a concern prior to them coming to the contact centres we haven't heard sorry I mean it mrs ennis what you don't comment on my questions well if a decision has been made about contact that it should happen then the arbitrator or the sheriff or the lord ordinary will have made that decision in a particular context they don't make the decision in a vacuum and so they would have heard how that contact was proposed whether that be in a contact centre and if so what the facilities in the contact centre were how that was to be managed whether it was to be supervised or unsupervised or monitored and all of those would have been evidence that would be before the decision maker before the decision was taken so if the decision was taken it had taken into account all of those issues and nonetheless considered that ultimately the welfare of the child was best protected and promoted by contact in that environment or an alternative environment so the decision maker has heard about how the contact centre works and generally the decision maker well a flags decision maker will have had professional interaction and experience with contact centres in any event so you'd agree with me that the non-regulation is a concern to you as well non-regulation in what respect I mean it's basically the choice of the sheriff in whatever areas in as that sounds a good place to go and this is evidence given to us from petitions committee which I was on and it really concerned us in this building well it's not the choice of the sheriff or or the flags arbitrator or the lord ordinary it they will have been presented with the evidence of a particular contact centre and the facilities available at that contact centre and if it's in the decision maker's view that the welfare of the child is best promoted by that model that they have before them then that's the decision taken having regard to the welfare of the parliament consideration they don't get a buffet of options and and they choose independently their choice is based on the evidence that's put before them by by both parties one of whom will often want unsupervised open-ended contact on the other who will want supervised or monitored contact at a particular contact centre so it's not a decision that's made in a vacuum it's a decision that's made having evidence before the decision maker that is tested and explored and with the flags decision maker they also bring to that their own insight and experience as family lawyers so you have no concern I don't know that I have no concern but I think that it's been expressed that there can be incerns but the checks and balances are there as far as possible it doesn't mean there won't always be improvements. Okay, I agree with everything that Isabella and Roseanna said about the process, a decision is being made with all appropriate evidence hopefully having been presented and duly weighed. Contact centres play an extremely important role in contact with children and to some degree it also addresses the concerns where there has been some level of domestic abuse it is a safe environment it can be a way of reintroducing a parent to a child so they're absolutely crucial in contact cases where there hasn't been a particularly good relationship previously I do share concerns about standards you use the word regulated I think standards is perhaps better but there has to be an appreciation as well that these contact centres are pretty much charities and they rely on donations and they are usually grossly underfunded so if there's a concern about about standards and contact centres then there's a funding issue there as well they have to be better supported because they play an essential part in facilitating contact between a child and a parent. We have kind of gone off topic on the area where we are exploring so can I ask if witnesses have a view on whether the English requirement to attend a mediation information assessment meeting before proceeding to court in a divorce case is a model which should be considered in Scottish cases and I believe there's an exception there if there's been any question of evidence of domestic violence or risk of domestic violence. In broad terms we would support an information meeting for people to explore all their options prior to deciding how they're going to take forward and resolve their dispute so I'm aware that there have been some issues with the introduction of MIAM's mediation information and assessment meetings in England I think it in England was impacted by the fact that they took away legal aid at the same time so there was quite a confusing message out there so I think it's difficult to work out what the impact of the introduction of MIAM's was because it can't be looked at discreetly from all the big changes in the legal aid system down there so I think there's things that we can learn from that and we can look and see what's worked and what hasn't worked but I think in broad terms ourselves and calm would support some form of requirement to attend an information meeting to find out and explore all the options so not just they've called it a MIAM so that narrows it down to mediation whereas we would we were keen to talk about family dispute resolution information meeting which isn't a really easy acronym either but it's more about a family dispute resolution information meeting find out what your options are and then an absolutely domestic abuse or other or you can just decide I don't want I want to go to court that's still so we would retain that as one of the options. Dr Scott? Yeah, we took a look at the arrangements around mediation information and assessment meetings in England and Wales and the exemptions for domestic violence are indeed there. However, in order to access that exemption what has to be provided to the judge is evidence such as a police report that domestic violence has taken place and that's a really big circle back to all the problems that we mentioned at the beginning which is that the systems are not competent for assessing that. Okay, any other questions? Yes, if I can come back into that because I mentioned earlier the issue of an element of compulsion. CAM and Relationship Scotland conducted a number of meetings and engaged with Scottish Government representatives and legal aid board representatives and put together a proposal for a family dispute resolution pilot and that can be presented to the committee if deemed appropriate. That's probably the level of compulsion we felt was appropriate. We're not saying that people have to be compelled to attend mediation or other forms of dispute resolution before they can enter the court system. The compulsion was that this would be a requirement but not an absolute requirement and there were certain safeguards built in. If somebody refused the option of this meeting, they could give reasons such as domestic abuse. There wouldn't be the same requirement as Marsha has mentioned about producing evidence by way of a police report. I think that our general feeling is that if we want to try and actually affect some significant change, people have to be given a bit of a push. My question is a large answer, but I am interested in the relationship between mediation and the court. Courts can refer to mediation. What happens then? Do they maintain any sort of oversight? What requirement is there for mediators to consider whether they are not actually appropriate to refer back to the court? Is there any sort of way that the court can then step in? Do they go their own paths and never return? Or is there some sort of oversight and communication that continues after that point? It depends on what stage a case is referred to in mediation and it does vary. Sometimes we have parties approaching us directly before they even consult solicitors before a court action has been raised. Other times we have cases referred to as after three or four years' worth of litigation, perhaps at the very last stage of the process. When a sheriff refers to mediation, at the moment a sheriff is only allowed to do so where there are issues of parental rights and responsibilities, contact or residence, not in relation to financial matters. The case will be referred to a mediator through the auspices of the solicitors involved in the case. As mediators we will conduct a mediation process as far as we can, hopefully to a successful conclusion. If not, we would end the mediation process and refer back to solicitors. However, because of the confidentiality issues, we do not produce any form of reports as to what has happened, what has been said, who has acted improperly within the mediation context. If we deem it, it has run its course and a solution cannot be found, it is referred back to solicitors and then the court process is picked up. If a sheriff refers to mediation, very often he will assist or suspend the process to allow mediation to take place. If it is successful, that hastens the early conclusion of the court process, if it is not successful, then the sheriff would pick up the process again with the solicitors. Just following on from that, I am just wondering whether there is scope for improvement, not just at the start of the process but at other points as well to consider whether mediation might be appropriate. Your points about the pilot are understood and well made, but are there further points in the process that the mediation could be brought in and that could be improved? It is very difficult, because most cases are very different. They are quite unique and this is where the sheriffs have a very important role. A lot of contact cases, there will be numerous child welfare hearings where the sheriff will have the parties and the solicitors in court in a more informal setting than a final hearing. There are always options at that particular time for representations to be made or for the sheriff to consider a referral to mediation. It is quite difficult to impose a hard and fast rule to say that we are obviously suggesting that before the whole process starts, there should be some form of mediation information meeting. We think that that is a good opportunity to invite people to stop and pause while appreciating that there will be certain circumstances where a pause is not appropriate, if there are some protective measures required or issues that have to be dealt with. To introduce a pause at a later stage, I am not quite sure where that would take place. Perhaps before a final hearing is assigned a final proof where witnesses have to attend, perhaps, but it is quite difficult to be hard and fast on that given the differences with each individual case. I think that, by that point, a lot of views will be very entrenched through a very adversarial process, so actually the earlier people consider alternatives, the better, the more likely it is to be successful. A lot of damage could have been done by the time you get to that late stage of process. Fulton supplementary, very brief. Thanks, convener. I think it's as if I were not from Daniel Jonas's point there, I'm keen to hear what you would have. I've talked a lot about domestic abuse and jail welfare, but I'm keen to hear what would actually happen as a specific example, if during the process of mediation, for example, you become aware for the first time of a domestic violence situation. What do you do, just as you reported to Daniel Johnson there, that it would be referred back to the solicitor and no report would be made or would in circumstances like that, given the issue of domestic violence that we've talked about earlier, would there be other mechanisms in place? When we undertake mediation through CAM, we send out an introductory letter with a referral form and there are questions asked about issues of safety and whether there has been any domestic abuse. I think that when a case is referred to us, it's more likely that these issues perhaps have been aired already by advisers and the case is still thought appropriate for mediation. When we have an individual session with the clients and we speak to each separately to begin with, these sessions can last an hour to an hour and a half, and we do fairly thoroughly go through a background. I think that we have very experienced family lawyers and obviously experienced mediators. You would pretty much get a sense of whether there is a significant issue here with domestic abuse and whether that would prevent. But what about during the actual process itself? Given the passing of the new law—I do appreciate the new law that's just in place—what about your witnessing coercive control and behaviour during the process of mediation? I would stop the mediation straight away. I would stop it and I frequently do and I frequently separate the parties. That's where you have to rely on the experience and judgment of the mediator, whether it's simply a case of somebody who's got a bit hot-headed and perhaps a lot of the angst arising and the separation is spilling over or whether there is a more serious underlying problem. I have experienced both and where I feel that it is a more serious issue, I will stop the mediation. I will separate the parties and say, sorry, this cannot continue, not in its present format at least, but you would very quickly stop that. You cannot expose people to any form of coercive control or verbal or other abuse in the context of mediation. We have really clear policy and practice procedures and if that arose in a joint session, we would stop the session and we would take responsibility for the mediation, not continuing. We wouldn't make a report about any party being more or less responsible, we would just say that the mediation is not progressing and that the parties are going to resolve their dispute. There wouldn't be a report submitted even in the event that a claim had been... No, because we are not investigating that situation, we are not investigating whether, we are just saying, mediation can't go ahead, sorry, because it's inappropriate. Mediation, both parties have to be able to negotiate and if that's not possible then mediation can't progress so we wouldn't, we would just say that it's not possible, we wouldn't pass any view on that party's situation beyond the mediation room. Dr Scott? I think I've probably said pretty much what we think about mediation where domestic abuse might be involved. I think that we do have... Again, it becomes this problem of this binary of mediation or no mediation and I think women wind up in that position often because they have really limited choices and they may not be able to just fall back on paying a solicitor to protect their interests and I think that points at the larger problem that we have with women not being able to reliably access legal support but I think that when we have to be really careful about not creating a system that further privileges alternative dispute resolution so that women find themselves in those situations because if a woman has made the decision that the safest thing for her to do is to try and find some resolution to the contact issues because otherwise she'll be seen as disputatious or non-compliant. We've really put her in a box and her children at great risk and I can't... There is no good solution to that except, yes, I absolutely agree with stopping the mediation but it's really unfortunate when it gets to that point because she has vanishingly small options. Liam, on that point. Referred a couple of times to not further privileging alternative dispute resolutions in the system. I think that, as we've heard, there's a fairly patchy deployment of these options today so in a sense would you see more consistency in the way that the options that are currently available are being applied as further privileging or as it is your concern more that they would be, as Scholarius was suggesting earlier, more of a requirement on individuals to demonstrate that they had gone through a process of these considering those options. I'm just interested in what you're describing when you talk about further privileging ADR. I think that the fact is that our system, we're all well aware of the problems with overcrowded courts and over litigious approaches to resolving disputes and that often then what happens is that women caught up in that system who are experiencing domestic abuse, who may or may not have been well advised by a family lawyer, are sometimes unintentionally but sometimes quite explicitly pushed in the direction of mediation because they don't have other alternatives and I think what we need to do is to solve the problem that they don't have other alternatives and instead of expecting mediation to solve that. It's obviously in the context of victims of domestic abuse. If you do not offer alternatives as a way of resolving the particular issues that have to be resolved, the default situation is a court case which is horrendous to put people through that. If you think mediation might be bad, going through a court case where your former partner, perhaps the abuser sitting next to you in court being cross-examined by a solicitor who is acting for that person, that is not a pleasant experience. There have to be other options available and by all means let's look at the models that are available, let's design models that are more robust to perhaps address some of the points that Marcia is making, but there have to be other alternatives offered rather than the default adversarial court system. Can I just say that there are worse outcomes than court? I agree with your description of court but there is much evidence around re-victimisation and violence and coercion that happens in the context of dispute resolution so I think it's really important for us, I mean you know women and children get killed in these situations and I don't want to overdramatise, it's very very rare you know but I do think it's really important that we remember that that's what we're talking about when we're talking about re-victimising. I was going to say that I think it's important when we look at alternative dispute resolution that people have families in dispute know what all of the options are, that all of those options are available to them regardless of their income and that they have good information to pursue the best options for their family. No one size will fit all, mediation will not suit everyone, arbitration or litigation or collaboration will not suit everyone but what is vital is that all families in a dispute know that there is a range of options and one of them will be best for them or a combination will be best for them and they have access to choice. Has your question been answered, Fulton? No thanks, I'm going to take some of the line of question I was doing. I think that there is consensus among the panel that many women will choose to use ADR and I think that ADR is appropriating many situations and maybe for women that have experienced domestic violence as well but I do feel reassured with some of the things that you said about what's in place if you come across a domestic violence situation but I suppose I would be more reassured if each of the three panelists on the right were to commit to increasing their training and awareness given the new legislation, it's an ideal time in this area because I suppose it's actually no different from women experiencing domestic violence and men but mainly women experience domestic violence regularly just now, there's a new legislation passed, when we were doing the evidence session here we were looking at what the police would do to learn and respond, we were looking at what social work would do, what courts would do and I suppose your organisations are no different to that so I wondered if you could give me that training in domestic abuse and we had someone from Scottish Women's Aid come and look at the training that we provide for our mediators in that respect and they felt it was robust so we are keen to do more, we run training every year for our practitioners around the whole area of domestic abuse and the emerging kind of thinking in that area so absolutely committed to it and I acknowledge that there's more we can learn and there's absolutely more we can do but we are really committed to doing that and we have worked with Scottish Women's Aid around our policy and practice procedures and our training for mediators so we will continue to do that. Flags is absolutely committed to maintaining the training of its already trained arbitrators, we have local training pods across Scotland and we have annual training events and in addition all of our arbitrators, our solicitors or advocates are obliged to engage in their own continued professional development and training annually. There's a set number of hours that must be undertaken in addition as part of our professional requirements and Flags has its own training and its own training convener and undertakes local training too. I think from Cam's respect I would pretty much echo what's been said, we also have domestic abuse training for our mediators, we've engaged with Scottish Women's Aid as I've said previously and this will be recurring training on an annual basis and we're looking at perhaps introducing an element of that in the core training, the initial training as well but we are certainly open to further co-operation and we do not take lightly the comments that the march has made on behalf of Scottish Women's Aid and I think also to echo what Rosanna said, you can always learn more, you can always learn more about processes, you can constantly review processes, you can take advice from those who are more expert in that particular field and that's essential but it's a commitment to training absolutely from Cam's perspective. That a lot of the cases where there's domestic abuse, the decisions being made by the sheriffs and the sheriffs are basing their decisions quite often on a child welfare report, more than 90% of child welfare reports are written by family lawyers and there's no requirement for them to have become experts in domestic abuse so my concern is that for the domestic abuse cases that the decisions that the sheriffs are making is being based on a report that's being written by someone so I suppose the issue of child welfare report or training is the one that I would like to have noted, I think there is a requirement, there is a need, a real need for better training and domestic abuse for the reports that the sheriffs are making their decisions on. Thank you, convener. Some of the points that I was going to raise have already been touched on so thank you for all your evidence so far. I guess two main queries if you'll let me. First of all, there was some discussion earlier around funding going forward in terms of legal aid for ADR providers and provision however there was more discussion around greater regulation of the sector and perhaps new regulation to encourage uptake, to create a cultural shift, a sea change, I think the class scholars you said that this is required from above as we have an adversarial system at present in order to create a more collaborative problem-solving approach. In essence, I would just be really interested if you could elaborate on any regulatory reform that you see as perhaps necessary, a potential remediation act was suggested earlier, perhaps you'd like to elaborate on that. Secondly, we've had a discussion around training but I also want to consider training within the legal profession in general. Do we need to think more seriously around legal education and as well as CPD in the sector in order to encourage and facilitate any increased usage of ADR so that we have the experienced judgment of the mediator or arbitrator that's required? I'm not sure about legal training but also, and this comes from some case work that I've received as a constituency MSP but it's also important considering ADR in the round, do we need to consider whether we have enough psychologists and therapists trained in the area of relationship counselling for families? I appreciate that there are several questions wrapped up in that but that's intentional in order to give you a chance to respond on those theoretical points as well as the practical. Who would like to tackle it first? Dr Scott? I won't bang the same drum too much but I will say that I get quite nervous when I hear compulsion and I understand the sense in which that's being used in terms of trying to create a more a system that's a bit more influential about decision making but I think that anytime you have any kind of regulation that's compulsory there is a sanction involved for people who do not comply and imposing a penalty on a failure to undertake mediation would really place women in an impossible position and I just need to underscore that. I think in terms of training I just need to say that I absolutely accept the really good intentions of this entire panel about training and I think that the problem is that the proof and the pudding at the moment is that whatever is being done is not obviously consistently delivering the outcomes that we would like and so I think we need to scrutinize really carefully whether training is delivering competence and where and and I think you know this won't be the first time that this committee has heard us talk about the need for training not only for family lawyers very much so but also for judges and and sheriffs and and I know that's not in your gift at the moment but if we can keep the conversation going in Scotland that would be quite helpful and I suspect my colleagues to the left would support that and finally in terms of counseling I think one of the services that our groups often say they would like to be able to provide is access to counseling both for children and for adults. I think it's really critical though that we be careful about how we think about this that that that counseling often implies or the use of counseling implies that there is a person who's damaged and that that's the the problem to fix rather than the abuse itself and counseling and perpetrators is not an appropriate response to perpetration so while I think in general counseling probably needs to be more available to people who who need it in Scotland I would be very cautious about recommending it as a response in the context of domestic abuse. Okay, any sense? So I was going to say in looking at whether we need a regulatory framework like a mediation act I'm not sure the rush to regulation is the best first step I think as Mr Scolara said earlier what we need to do is raise awareness make sure that the availability of ADR is known about the range of options are known about and that they're all funded. The training and education point for lawyers the point of a law degree is to learn the law of Scotland and that would include the arbitration Scotland act is is a piece of Scottish legislation the diploma legal practice is where those who have learned the law learn how to apply it in a practical way so I think the ability to know how to advise and access for your client ADR would best be at the diploma stage and at the recent flags annual conference annual general meeting we had representatives from Edinburgh University at that and flags would welcome any input that any university wanted to its diploma course on arbitration in a family law context so far as the availability of psychologists and therapists is concerned I don't know what the numbers are available I think the accessing of them again is a funding issue I think if you have the funds to access that sort of expertise to assist the case then you can find one and if you are in a difficult position or you are legally aided then the finding of an expert available to do it at legal age rates is problematic and so I was going to just comment on those points I think it's interesting around the regulatory framework and whether we need a mediation act I suppose just as a punter looking in I think that we often bring about cultural change by having a change in legislation so things like the smoking outdoors seat belt legislation until you have some intent clearly in legislation you don't or at least if you do have that then you're more likely to bring about cultural change so a mediation act would show an intent to mediation towards alternative dispute resolution I think I've said what I needed to say about training but for the legal profession particularly around issues to do with domestic abuse and some of the more children and the impact on children of domestic abuse that's kind of the area I totally appreciate that they're well trained in the legal areas but some of the more children domestic abuse and perhaps could be improved and Relationship Scotland also provides relationship counselling and some children and young people's counselling and some family therapists but actually there are very few family therapists in Scotland trained to provide that so I think that that would be good if there were more available but at the moment there just aren't so even at the the slab legal aid board have put in their new guidance that they will consider paying for family therapy the challenge at the moment is that there aren't actually people in Scotland able to provide that service okay and this serves Calarys thank you the regulatory framework is a very big issue I think to affect the kind of significant change we're talking about you would need primary legislation there's no question of that what we have tried to look at as ways of encouraging the greater uptake of alternative dispute resolution through this pilot scheme that CAM and Relationship Scotland had had proposed long term I think my position I think has been very clear I'm a great fan of alternative ways of resolving disputes rather than the adversarial system we have so certainly from my perspective anything that moves towards that would be would be very positive training in the legal profession I agree with what Isabella said about the appropriate time would be when students have completed their law degree and are doing their diploma prior to entering into practice but that training has to be extended once they have qualified as well into cpd and the more training that is available not just in edr but obviously on the effects of of domestic abuse as well and the impact that has is is priceless it is very very valuable I don't think I can really comment further on the issue about therapists or psychologists I don't have any particular specialist knowledge in that area just very quickly you mentioned that primary legislation would be required for the sort of cultural shift that could be envisaged do you have any particular I appreciate I'm putting you on the spot here so if the answers aren't forthcoming at the moment that's totally understandable but do you have any idea what sort of primary legislation would encompass well you really are looking at the court process and in some respects embedding mediation arbitration or any other form of dispute resolution within that whole process at the moment the access is still straight to the courts so you would have to look at court rules you'd have to look at how the courts are structured it's a big big issue obviously thank you thank you all okay and concludes our questions thank you very much that's been an excellent section we will now suspend briefly to allow the witnesses to leave or is consideration of a negative instrument this is the premises license scotland amendment regulation 2018 I refer members to paper three which is not by the clerk if the committee wishes to report to the parliament it has to do so by 29 of march do members have any comments yes mark knowing the pub industry quite well in this state um you this this is actually got a contradiction in paragraphs two and three because it goes on to say it was the festivals paragraph two it says the forms must the application must be uh it have provided disabled access and facilities management statement in the form prescribed by Scottish ministers that's fine and then paragraph three it says however uh the facilities disabled access and facility state does not form part of the application so we need to just clarify that yes okay now it might be indicating that if there's an adjustment to the the the the disabled access which I know many pubs of course they're very traditional have had a lot of problems sorting out then that may be a get out for the people not to worry about any alterations made but I think it's something should be clarified um Daniel yes did you just a very brief one just saying that I mean I think this is this is very welcome I mean it's 10 years sorry it's the best month for decades since the act actually passed and this is something that the barred campaign mark coopering capability scotland campaign long and hard for and I just think it's just worth noting that this is uh uh you know they will be very pleased with that that this will be coming into force at the end of the month although I do know more scory's comments I support the fact that it's a good thing but there needs to be a check on that we've got two options um we can seek clarification and either bring this back or agree to make no recommendations but seek clarification nonetheless so I'm entirely in your hands I think it may be just a combination of the words it's just been clearer yeah it's a it comes at first instance there's somebody out there as a as a contradiction yeah I'm sure the intent is is is yes I think it's more drafting is it it's not so much bomb if we redraft it yeah would you want to lame yeah um I mean I hear what both Daniel and Murtz have said and certainly agree with the sentiment that um we've waited a long time I think on the basis that there doesn't appear to have been consultation but only focused discussion around this um as long as we weren't going to delay the the implementation I'd be more inclined to seek the clarification fairly urgently with a view to then passing once we have that because I think that the worst thing would be that we we nod it through get the clarification that illustrates there's more of a problem that Morris is identified and well we have ample time to do this if the committee's so minded we'll bring it back once we've got the clarifications up yeah that's fine thank you very much that concludes the public park of today's meeting our next meeting will be on Tuesday 13th of march where our main business will be to take evidence on the use of remand in Scotland and we now move into private session and I suspend briefly to allow the public gallery to clear