 I welcome you to the 19th meeting of the Justice Committee in 2014. It can ask everyone to switch off mobile phones and electronic devices completely, and to pay the broadcast system even when switched to silent. No apologies have been received. Yes, I am a cold, I have not changed my voice. Item 1, supported legislation, is consideration of one affirmative instrument. The draft procedure of the crime 2002 amendment with schedule 4 Scotland order 2014 I welcome the President of the United Kingdom, Minister for Community Safety and Legal Affairs, and the Scottish Government officials, Dr Lucy Smith, head of organized crime strategy, and Carla McCoy, Stephen Slister, legal directorate. Minister, you would give evidence in advance of the debate, and I understand you wish to make an opening statement. Please, please. Yes, thank you, convener. I make a brief opening statement just to explain what brings this particular statutory instrument about. The order is required to fix a lacuna that has recently arisen in the Proceeds of Crime Act 2002, which I'll just refer to as POCA, throughout. Scottish courts can make confiscation orders against certain offenders under part 3 of POCA. In each case, the court must decide whether an offender has a criminal lifestyle, and if so, whether the offender has benefited from his or her general conduct. An offender is considered to have a criminal lifestyle if he or she is convicted of an offence specified in schedule 4 to POCA. Where this is the case, the court can assume that the offender's income expenditure and assets over the previous six years constitute or represent the offender's benefit from his or her general criminal conduct for the purpose of calculating the amount to be confiscated. This is unless the assumption is shown to be incorrect or would otherwise result in a serious risk of injustice, and that's basically how the Proceeds of Crime Act works. Schedule 4 to POCA lists a number of lifestyle offences that the Scottish ministers can amend by order. In 2011, the Scottish Parliament approved such an order, which added to the list an offence under section 39.1 of the Consumer Credit Act 1974 concerning illegal money lending, and this was to target illegal money lenders who profit from exploiting vulnerable individuals and communities. However, UK legislation largely repealed the Consumer Credit Act 1974 on 1 April 2014, and that included the offence provision in section 39. Consequently, it also removed this offence from the list of lifestyle offences in schedule 4 to POCA. The Scottish Government is committed to ensuring that schedule 4 to POCA continues to be an effective means of depriving criminals of the Proceeds of Crime. The order aims to reinstate illegal money lending as a lifestyle offence. If approved, it will amend schedule 4 to re-specify the offence in its new guys as an offence under section 23.1 of the Financial Services and Markets Act 2000, since the act is now authorising and regulating consumer credit-related activity. Although the current hiatus in schedule 4 to POCA has not affected any on-going confiscation proceedings, the Crown Office and Procurator Fiscal Service both welcome the amendment that the Scottish Government proposes to make by this order. A gap was opened up by virtue of some Westminster legislation, and we are simply moving now to close that gap again in accordance with what we had as a Parliament already agreed a couple of years ago. Thank you. Any questions? No questions. I therefore move on to the formal debate and motion to approve the incident, considered on the previous item. I invite Minister to move motion S4M10291. The Justice Committee recommends the draft—I get to say this but—the draft procedures of the Crime Act 2002 amendment of schedule 4 Scotland Order 2014 be approved. Does any member wish to speak in any debate on this? No. Can I ask Minister then the question is that motion S4M10291 be agreed to? Are we all agreed? Sorry, I didn't make you move it. I think I have to formally move it at least. Obviously some of my tablets are kicking in. We could have fun. Thank you very much Minister. Members are aware that we are required to report on all the affirmative instruments you therefore intend to delegate authority to me to sign off this report. Thank you very much. I am going to move on to item 2, which is a courts reform Scotland bill. I will let the parties change. Can I say to the committee we don't have a target to reach today so we can go as far as we want and we do have some time next week if needed. That's good to say. It's almost a ministerial choir. Don't feel free. I think you would breach rules if you were to burst into some kind of coral delivery. I am just going to move on. Minister is staying with us and I welcome her panel play of officials to the meetings. Can I say that officials are sitting next to us, are present strictly in a supporting capacity and members are aware that they cannot question the officials. Members should have copies of a bill, a marshaled list and groupings of amendments and I am now going to move on to the amendments. Amendment 49, in the name of the cabinet secretary and the group and its own minister, please to move and speak to that amendment. Thank you, convener. We can start gently because amendment 49 is a minor amendment to section 61, which sets out the arrangements of civil jury trials in an all-Scotland sheriff court. Civil jury trials, of course, are not particularly common any longer. It removes subsection 6, which provides that the interlocutor of the sheriff specifying the issues to be put to the jury is sufficient authority for the sheriff clerk to summon the jurors. We make this amendment following advice from the Lord President's office that such detailed regulation of the means in which jurors are summoned is better left to rules of court under section 97. I move amendment 49. Does anyone else wish to speak in this? Minister, I take you, do not want to wind up. Question is that amendment 49 be agreed to, are we all agreed? Question is that section 61 be agreed to, are we all agreed? Question is that section 62 to 66 be agreed to, are we all agreed? Excuse me, 15, the name of the cabinet secretary. Already debated with amendment 5 on day 1. Minister, to be formally moved. The question is that amendment 15 be agreed to, are we all agreed? No. We are not agreed, there will be a division. Those in favour, please show. Those against, please show. Abstentions, that's five, that's six in favour, two against one. Abstention, that amendment is agreed to. Call amendment 16, the name of the cabinet secretary. Already debated, Minister, to be formally moved. Question is that amendment 16 be agreed to, are we all agreed? No. There's not agreement, there'll be a division. Those in favour, please show. Those against, please show. Abstentions, that's six, four, two against one. Abstention, that amendment is agreed to. Call amendment 17, the name of the cabinet secretary. Already debated. Minister, to be formally moved. Sorry. The question is that amendment 17 be agreed to, are we all agreed? No. There'll be a division. There's not agreement. Those in favour, please show. Those against, please show. Abstentions, that's six, four, two against one. Abstention, that amendment is agreed to. Did I? I think I did ask section 67 be agreed to. I did. Yes, I did. I scored it out. You did. Would you like one of my pills? No. Right. Where am I now? You've knocked me off my stride. We've done 18 haven't we? No, we've done 18. Call amendment 18, the name of the cabinet secretary. Already debated. Minister, to be formally moved. Formally. Questions amendment 18 be agreed to, are we all agreed? No. There's not agreement. There'll be a division. Those in favour, please show. Those against, please show. Abstentions, six, four, two against one. Abstention, that amendment is agreed to. Questions at section 68 be agreed to, are we all agreed? Call amendment 15, the name of the cabinet secretary. Group of amendments 51 to 55 and amendment 59. Minister, please to move amendment 50 and speak to the other amendments in the group. Thank you, convener. Amendments 50 and 51 are technical amendments which clarify the categories of cases which are to be dealt with under simple procedure. Section 78, subsection 3 provides that certain types of proceedings may only be brought subject to simple procedure. Amendment 50 ensures that no other types of proceedings may be brought under simple procedure. Amendment 51 is in consequence of this making it clear that despite the rule on what may or may not be raised as a simple procedure case, cases may be transferred into and out of simple procedure through the operations of section 75 and 76. It also clarifies the relationship between the amended section 73 and the effect of section 79. Amendment 52 ensures that the court of session can make rules of court to assist in determining whether individual proceedings fall into the definition of proceedings set out in section 70, subsection 3, and therefore are one that must be brought under simple procedure. This is designed to ensure that the court of session may preserve the most useful aspects of the existing case law, which currently applies to the existing case law, which must be brought subject to summary cause procedure if there is any doubt about the application of that case law to simple procedure. Amendments 53 and 54 are technical amendments that ensure that the term simple procedure cases in part 3 of the bill is wide enough to include cases transferred into the new simple procedure and cases made subject to simple procedure under future enactments. Amendment 55 is another technical amendment that ensures that a case transferred out of simple procedure under section 76 is no longer caught by references to a simple procedure case. Amendment 59 is a technical amendment clarifying the effect of section 75. Section 75 provides for cases that are not being dealt with under simple procedure to be transferred to that form of proceedings provided they are at the time of transfer, now of a type that could be raised under simple procedure. Subsection 2b permits this transfer even if the sum sought would exceed the usual monetary limit for simple procedure cases. This amendment aligns section 75 with section 70 subsection 3 by referring to types of proceedings rather than orders sought in proceedings. I move amendment 50. Thank you very much. Any other members wish to speak in this? In the cabinet secretary was here last week, he suggested that there were some amendments to clarify the issue with regard to cases like asbestosis cases. I wonder does this the amendment in terms of excluding... No, no. This doesn't relate to those. This doesn't relate to those. No. There will be mention of that in other groups. Thank you very much. Minister, to wind up. No. Questions amendment 50 be agreed to or we all agreed. I call amendment 43 in the name of Alison McKinnis group with amendments 31 and 44. Alison, pleased to move amendment 43 and speak to the other amendments in the group. Thank you, convener, and I move amendment 43 and speak in support of that and my amendment 44 in the same group. Both of these amendments would prevent personal injury cases being considered under the simple procedure. I think like the rest of the committee I'm broadly supportive of the simple procedure and believe it should prove affecting and resolving disputes worth less than £5,000 such as single issue of consumer cases. However, for a number of reasons I do not believe it's an appropriate setting in which to consider personal injury cases. The Law Society of Scotland and the Association of Personal Injury Lawyers argue that these cases are not compatible with the fact that most litigants in this type of setting will be unrepresented or the inquisitorial and interventionist approach that sheriffs will likely adopt under the simple procedure. Personal injury cases tend to involve identifying cause of action, liability, the Consumer Protection Act and breaches of statutory duty. They can also require accident records, occupational health records, medical evidence and medical records to be obtained perhaps by court order and then presented to the court. Personal injury cases are therefore substantially different from the majority that will be pursued at this level. As Julia Clark from which told the committee these tend to ask, did you get the kitchen or did your car work? Indeed, the Cabinet Secretary for Justice acknowledged this difference in September 2007 when he removed personal injury cases from the small claims procedure. At that time he said that this will mean that anyone pursuing such a claim will be able to obtain the necessary medical evidence and the legal representation required. It is appropriate that the personal injury cases are therefore heard in the specialist court so that there is not an advocacy deficit and that we can ensure that pursuers have the assistance that they need to identify, collect, preserve and present the evidence. I am grateful to Elaine Murray for her support on this matter. Excuse me, I have called John Peltner to speak to amendment 31 and the other amendments to the group, if you wish. Thank you, convener. This is basically a similar argument to amendment 25 that I withdrew because the Cabinet Secretary promised to bring forward amendments that would cover such provisions. That relates to exclusion from the simple procedure. I do not know whether the measures that the Cabinet Secretary is bringing will also cover that amendment. If you could just remind last week I said that the Scottish Parliament has always accepted that asbestos-related conditions are something of an exceptional circumstance when it comes to legislation and the pursuit of cases through the courts. I remind you that Claysdale Action on Asbestos argued in its evidence that its members' cases must fall into the definition of the most complex and important cases, needing access to experienced advocates and solicitor advocates who have knowledge of this specialised area of law and swift access to justice at the highest level. Thank you very much. Yes, other members want to come in. Rodi, you want to come in. Just a brief point, really. I understand the concerns of APIL and others about this. I have some sympathy with Alison's amendment but I just kind of point out for the record that when we heard evidence from CAS Scotland they did not express any concerns on this point and indeed I am looking at the official report. They said in evidence with lower value claims under the simple procedure the assumption from the start should be that counsel is not involved and indeed that lawyers will not necessarily be involved. I can't see anything in their written submission that draws attention to this particular issue so I just really wanted to place that on the record but I do have some sympathy with the amendment. As you just say in support of Alison McInnes' amendment the concern really is that although the sum of £5,000 may seem to be a low value in personal injured cases but it can still be a fairly complex case and I think the very point that Roddie Campbell has just read out in terms of there wouldn't be lawyers present that it could well be when somebody has suffered a loss of earnings for example through injury at work it may actually be appropriate that they have some form of legal representation that can help them to fight that particular case and therefore I really don't think that personal injured cases are suitable for some cases. Like Alison has said the committee was supportive of the simple procedure but personal injured cases are not really suitable for that type of court. Margaret? Yes, again I got sympathy with Alison's amendment which I think makes sense removing personal injury from simple procedure and addressing a potential quality of arms issue. In terms of John Pentland's amendment then I understand completely where he's coming from but I'd be interested to hear the minister's comments. Thank you and that's your cue minister. Amendment 43 in the name of Alison McKinnis would have the effect of excluding all personal injury cases as defined in amendment 44 from simple procedure and John Pentland's amendment 31 would have the effect of excluding personal injury cases arising from exposure to asbestos from simple procedure. I understand that the basis for these amendments is that they reflect some stakeholder concerns about the treatment of complex personal injury cases and we are in the Government grateful to Clydeside Action on asbestos and to the SGEC for engaging with us directly on these issues. As the cabinet secretary emphasised at the last stage 2 session and this may be what was raised earlier the Government is committed to ensuring that these cases are treated properly. In answer to some of the comments that have been made just now so far as the generality of PI cases under £5,000 is concerned there will be special rules for dealing with personal injury cases under simple procedure. Section 76 already allows any party to a case to apply to have a case transferred out of simple procedure if that seems appropriate. I also note and this is just where the groupings are a little bit difficult that John Finnie has tabled amendments which would pave the way for cases which would otherwise have had to have been brought subject to simple procedure to be brought instead in the specialist PI court once a suitable order is made and we'll be debating these in a different group but I hope it's not premature to say that I will welcome these amendments so we still have some discussion about this area. Simple procedure is designed to be just that a simple procedure in which claims below £5,000 may be brought. Some low value claims will never be simple. We all accept that and the bill makes provision for this but to exclude all personal injury cases from simple procedure would be to throw the baby out with the bath water. I would ask that a member to withdraw. That would be a simple procedure case. That would not. I would ask the member to withdraw amendments 43 and not press 44. Regarding amendment 31 I would refer to the comments of the cabinet secretary in responding to the member's earlier amendment which would have excluded asbestos claims from the exclusive competence of the sheriff court under section 39. Now, I have the deepest concern for the victims of asbestos but it's not appropriate to make a special exception for one class of victims, however, worthy. We consider that it is undesirable to start making different rules for particular types of injury. To do so would open the door to other pressure groups seeking preferential treatment understandably and it would be invidious to try to treat asbestos cases differently from clinical negligence cases or those involving cerebral palsy, for example. So I would ask the member not to press his amendment. First of all I go to Alice McKinnis to wind up, please. Thank you. Just briefly, I've listened to Minister's explanation. I'm not persuaded and I will press the amendment. The question is that amendment 43 we agree to or we all agree to. We're not agree, there will be a division. Those in favour please show. Those against please show. Abstentions. We'll have to... We'll start again. I didn't think I would be succeeding today. We'll repeat this vote. Those in favour please show. Let's go back. Rewind. It's Alice McKinnis' amendment 43. Those in favour please show. Those against please show. Abstentions. I think you voted against it, didn't you? You voted for it, you did. Right, so it's a five. Right. I haven't infected you all already. Surely to goodness. Four, three, five against one abstention that amendment is not agreed. Call amendment 51 in the name of the cabinet secretary already debated with amendment 50 Minister to move formally. Moved. The question is amendment 51 be agreed to or we all agreed. Yes. Call amendment 135 in the name of John Finnie group with amendments 136 and 137. John, please to move amendment 135 and speak to the other amendments in the group. Thank you very much, convener. Not entirely unrelated to our previous discussions which is in part why I didn't speak there. The committee heard a lot about section 59, the Enterprise and Regulatory Reform Act which is UK Government legislation and the change there that removed the employer statutory liability in the workplace injury cases. It's certainly my view that compounded the difficulties workers already had and that's a position that was highlighted by the STUC. My amendments 135, 136 and 137 ensure that certain personal injury cases below £5,000 can be raised in the new specialist in the report. Those amendments will ensure that the right victim will be maintained and will mitigate the effect of section 169. I think if I may also project a bit forward and refer to 2 in the Sanford Council account can I unreservedly withdraw any reference to that? You've not moved your amendment however. Which one are you moving? 135. Excellent, we're getting there. Anyone else wish to come in on this? Yes, I'll take Christian in I'll take Margaret in, I'll take Elaine, please. Yes, relative to John Finlay, I may have a question to the minister he's rigging that limit of 5,000 taking it in another way we've got a consumer representative like Witch for example who has half-hast but if it was possible to help the limit to £10,000 in a few years coming. So it's just a question asking if it's a possibility of a review at one point in a few years to see how simple procedure could remain appropriate and responsive to the needs of the court. I don't think that's actually what the minister say to this amendment but the temperature seems to have got to you all so I'll let you away with it mate, Margaret. I think this is a good amendment and seems to provide the flexibility that we'd want to ensure that there is equality of arms and these cases are held in the appropriate court. Elaine. Again to say that I very much welcome these amendments I think they will help ensure equality of arms in the court. I know that one party can make the application for the proceedings to go to this simple procedure go into the simple procedure now I presume that court rules would be expected to cover the case it wasn't actually if you like the bigger party forcing the court into the you know forcing the case into the simple procedure I think I'm answering it but I'm not supposed to just really get a little bit of clarification on that and as to how that if you like that you didn't disadvantage the smaller party if you like in terms of having the consent required only of one party I take the minister first then you get to come back in John Minister. I'm just taking a note of that last comment. I welcome these amendments as I hinted at earlier the amendments 135 and 136 would be that where cases below £5,000 are brought in an all Scotland sheriff court and of course here we're really talking about the specialist personal injury court they would not be subject to simple procedure in that court it is for an order under section 41 one to define which cases may be brought in the all Scotland court under the rules which apply in that court in terms of section 75 a case may only be transferred into simple procedure to make a joint application there must be agreement amendment 137 introduces a new rule that where proceedings for payment of a sum up to the £5,000 simple procedure limit are raised in the specialist court any party may apply to the sheriff to have them transferred into simple procedure in the local court on special cause shown which I think answers some of the earlier comment and I mean ultimately that will be a decision for the sheriff ultimately it's a it isn't an application there's not an automatic transfer an application has to be considered and it will be decided on by the sheriff this again strikes me as a helpful clarification of the way in which the specialist court should operate so I'm grateful to John Finnie for these amendments which the Scottish Government is happy to support if I could refer to the point that Christian Allard made I should just point out to Christian that the Scottish Civil Justice Council already has a statutory obligation to review the civil justice system and most and must lay an annual report before the Parliament so that will be an ongoing aspect of its work and should catch the specific issue which Christian Allard raised I don't think there's anything at this stage that I need to add John, wind up I think the minister covered the point that the delay raised so I have nothing further to say press the questions amendment 135 be agreed to are we all agreed amendment 31 the name of John Pym and already debate with amendment 43 John to move or not move you're moving it the question is that amendment 31 be agreed to are we all agreed to there's not agreement those in favour please show those against please show the questions that's 245 against one abstention that amendment is not agreed call amendments 52 to 55 all in the name of the cabinet secretary and all previously debated can invite the minister to move these on block moved on block does any member object a single question you put to these amendments oh thank goodness thank goodness the question is amendments 52 to 55 are we all agreed agreed call amendment 44 in the name of Alison McKinnon excuse me already debated with amendment 43 Alison to move or not move the question is that amendment 44 be agreed to are we all agreed I don't know what's good to them today that's too hot that amendment is not agreed with those in favour please show those against please show those against please show abstentions 345 against one abstention that amendment is not agreed the question is that section 70 be agreed to are we all agreed call amendment 136 in the name of John Finnie already debated with amendment 135 John to move or not move move convener the question is that amendment 136 be agreed to are we all agreed call amendment 56 in the name of the cabinet secretary group with amendment 57 minister pleased to move amendment 56 and speak to the other amendments in the group thank you convener section 71 of the bill permits a claim for element under section 2 of the family law Scotland act 1985 to be brought subject to simple procedure if I can give you a small lesson in scots law despite what you hear on the television we don't have alimony in Scotland we have element not everyone does convener and I do like to take these small educational moments at the moment the bill provides that simple procedure may be used for awards up to £35 a week for a child under the age of 18 years and in any other case up to £70 per week we consider that after almost 30 years these values should be updated we consulted a number of key stakeholders and there was general agreement with this proposal the amendments under discussion here reflect this accordingly these amendments provide that simple procedure may be used for awards up to £70 a week for a child under the age of 18 years and in any other case up to £200 per week amendments 56 and 57 achieve this I move amendment 56 thank you very much anyone else wish to speak no minister you don't want to wind up I take it questions that amendment 56 be agreed to are we all agreed call amendment 57 the name of the cabinet secretary ready to meet amendment 56 minister to move formally moved questions that amendment 57 be agreed to are we all agreed call amendment 58 the name of the cabinet secretary in a group of its own minister pleased to move and speak to that amendment section 72 of the bill establishes an expectation that as far as possible simple procedure roles will enable an interventionist and problem solving approach the Scottish civil courts review recommended that the rules for the new procedure should be written in as clear and straightforward language as possible the rules will reflect as far as possible and will be set out in section 72 of the bill the new approach to be adopted should permit the court to identify the issues and specify what it wishes to see or hear by way of evidence or argument this is clearly a fundamental shift away from the adversarial approach where the parties control evidence and argument the intention is that the court should be able to help the parties to settle the dispute and the procedure adopted should reflect the circumstances of the case amendment 58 reflects concerns raised by representatives of the sheriffs association that although the court should be able to help the parties to settle the dispute this should not mean that the court should actually negotiate between the parties but should merely assist them to present their case sheriffs pettigrew would and little agreed that it would be more appropriate if the term negotiate with was amended to read facilitate negotiation between and that is what amendment 58 achieves I move amendment 58 thank you very much other members can I say I welcome this because I think it's much more circumspect and appropriate than what we had before I thought I'd just say that the question is minister take it you don't need to wind up the question is that amendment 58 be agreed to are we all agreed the question is that section 72 be agreed to are we all agreed the question is that section 73 are we all agreed the customer this we will22 the question is that in writing this is the issue theadors all mat and all the baby. I஻ол amendment 60, the name of the cabinet secretary a group of amendments 61. Minister pleased to move amendment 60 and to speak to both amendments in the group. At convener, amendments 60 and 61 are drafting amendments. Section 78 sub-section 2 provides that an appeal may be taken to the sheriff A appeal court on a point of law only against the decision that the sheriff constitut The final judgment in a simple procedure case. The intention of the provision is to prevent the interruption of simple procedures cases applauds against non-final judgements, but chose is presently drafted, it may have the effect of going further and preventing a decision of the sheriff appeal court in appeal from simple procedure from further appeal to court of session. The intention is that, once an appeal has been taken against the final decision of a sheriff in a simple procedure case, it should be treated in the same way as any other appeal under section 104. That is the effect of two Queues amendments. I move amendment 16. 3. Fuddydd y hon yw y gallu cyfrifwyr gan gyllideg. Dychynidol iawn o'r ddisident yw part 3 i y llifAN i'r anghymddol Sgoetlendag 1997. Rydyn ni'n mynd i'w ddysgwyrd gan amlwg o'r cyfrifwyr dyma, ond mae ychydig yr ysaf tarwag gyfoig o'r cymreithio ar y gyrfaeth cwmaint. Felly, mae'r serf yn gweithio yn cynharu'r ardal a'r creasio. Felly, mae'n ddigwydd o'r cyffredinol warsgol o'r amddano i'r anhygiadau sheddliadau o'r uchwm gydagogodd yn ei dd Trulya Llywodraeth. Mae wathfawr i'r bobl gydagogodd yn dweud o three-month iloed i'r anhygiadau os i'r anhygiadau dechreu i'r gydagogodd. A'r anhygiadol dd Championship of the Anhygiad sef y losion o'r anhygiadau i'r anhygiadau dechreu i'r anhygiadau cwmeriaeth o ei gwneud o fabri ac faniedored â pwysig iawn o'r gweithio, rhesiadol, gwneud o'r ffordd a gwneud a llunionedd o morhaith neu anhygoel. Felly, y bydd y cyfrifydleidiau yn ymdelygh i gwoesfyrdiadau i'n mynd i'u cael cynthymain a'u cyblwys i'r reineu cydwysoli ar yn yr hyn sylwedd y maes o phrygau awrigwyr yma, o'r cyfrifydleidau i'u cyfrifydleidau i'r cyfeint. Eryddiant have been suggested by ASDA and the Scottish Retail Consortium and will have particular implications for companies, which operate across Scotland and for the retail development and retail jobs more widely. Commercial enterprises are well placed by virtue of their access to the necessary resources to make an application within a six weeks time scale. The sixth week time limit for lodging judicial review would reduce delays… …and provide greater certainty for developers… …in terms of being able to deliver for local communities… …by making the planning process more efficient… …and time scales for delivery more accurate. To put the amendment in context… ...it's worth noting that between 2003 and 2012… y dyfodol y bydd syddd y bydd sydd ei prosiectol a chynghwysu amser, ciwch, galiant… Mae fel ar edrych o'i risg penlaen o'r perioedd o yr hyn, felly mae'r perioedd宮ai ei prosiectol o'r ripoedd sydd eu prosiectol o'r ripoedd. Mae'r rhai hyn yn fwy fyrdd o'r prosiectol ac mae'r prifysgol o'r ripos yma ar y troi'r prifysgol. Mae y fyrdd ychydig yn ddefnyddio'r perioedd yn dweud, ac mae'r prifysgol o'r ripos i'r prifysgol o'r ripos Felly mae'n bwysig iddo i ddin coordinate ting India 100 o beth의au i gweithio'r dda wneud rwyfu, yn gyhoeddurd, rydyn ni'n frech 홉nTh wild yr hyn. G Guy nhaer rwych o'i tawlinell-naid eu wasiwyr a'i трwy laith iddynt o gyflwyddwyru ac rwyfod wrth gael â atbynnaethu I've got John Finnefall by Sandra, John, and Roderick. Thank you, convener. More than one occasion we've heard, it's suggested that it's bad practice to single out a particular aspect. I certainly find it ironic as someone has previously been involved in a planning committee to have that particular company being the source of information to Margaret. I'm not at all supportive of singling out these retail concerns for any benefit at all. I was supportive regarding the community aspect, but when you actually look at it, if a community activist or a group put in for the six weeks, what's to stop a larger organisation jumping on that bandwagon? I think it causes confusion in that respect, so I'm not supportive of it. Can I just clarify? Do you mean a community group being used by an opponent? Could happen, I think. Elaine? Again, the only witnesses who actually put forward this point of view to the committee was Asda's. They didn't seem to have very much support from anybody else. I hear from Margaret that SRC also supports it, but we didn't seem to have any other supporting evidence on this position. I think that the point that Sandra makes is correct that it would be quite easy to circumvent it by getting an individual, for example, to apply for a judicial review, and the company would be supporting that individual and doing it, so I'm not sure that it would actually achieve what it wishes to achieve. Roderick? I'm just trying to reiterate the points that have been made by others. I think Asda and their written submission made particular reference to a case involving one of their commercial rivals, which went to the Supreme Court. I have to say, given current rules and comments in the Supreme Court, I think that kind of case is going to be a rarity going forward, and I really don't think that it would be appropriate to support this amendment, particularly in relation to amendment 138. It's also worth noting that there's no qualification requiring allowing a court to extend the time as provided for under section 27A1B. So, for all those reasons, I would oppose these amendments. Can I also just refer to my register of interests as a member of the Faculty of Advocates whilst I remember? Whilst you remember, yes. I know they're all forgetting themselves today, Minister. Yes, and Roderick Campbell has just reminded me that I ought to remind members of my own. We're here. I just went to get it done and I want it all. Thank you, convener. Amendments 32 and 1 for 8 in the name of Margaret Mitchell do propose a six-week rather than a three-month time limit for applications for judicial review of a planning decision unless the applicant is an individual or an environmental or community group. I should start by saying that I do welcome Margaret Mitchell's agreement that there should be a three-month time limit for the majority of cases. Having said that, it's going to come as no surprise to members to learn that we don't agree on the application of a much shorter period of six weeks for planning cases. The intention appears to be to impose a strict time limit on applications that might be brought cynically by commercial competitors. I fully appreciate the desire behind the amendment. As has written evidence to the committee at stage one referred to companies in the development industry who are looking to delay competitors and thereby retail investment and job creation. But it's perhaps worth pointing out that the amendment as it stands would apply a six-week limit not only to property developers seeking to bend the judicial review process to their own financial ends but also to small companies whose existing business might be threatened by the decision to grant permission to some large new development. As far as I'm aware of the evidence given to the committee, it was only Asda who suggested a shorter time limit than three months. That may reflect, of course, the fact that, while in Asda's case they might have been arguing for the shorter time limit because they'd been on the receiving end, if you like, but it's just equally as likely to be the other way round. Lord Gill recommended a three-month limit in his review. That was supported by Sheriff Principal Taylor. I'm satisfied that a simple, straightforward and consistent time limit should apply to all applications to the supervisory jurisdiction of the Court of Session and that three months is an appropriate timescale. I should perhaps say at this stage that the three-month time limit is itself not an absolute and inflexible rule. The Court is given discretion to extend the limit where it's considered equitable to do so and has the power to make sure that no legitimate applicant is unfairly disadvantaged. Asda's evidence is useful in highlighting the need to ensure that the judicial review process is not abused and that planning cases are not unduly delayed. It's for those reasons that we have proposed a permission stage to filter out unmeritorious cases. Therefore, I ask the committee not to agree to Margaret Mitchell's amendments. I should probably just clarify. I do still have a little bit of concern about the three-month time limit for community organisations. The point of mentioning that was just to say that the amendment didn't affect the provision and the bill. It's up to members to look at that and satisfy them between stage 2 and 3 of three months with the necessary safeguards that the minister has talked about on board will be the ones that we eventually want to take forward. To some of the other comments, it seems to me that John Finnie's opposition to it is because it's Asda, full stop, just about. Other members have mentioned that only Asda brought forward this point, but that doesn't mean that it isn't a good point of other people like Scottish Retail Consortium to see some validity in it. Also, in terms of uncertainty, would a community group be used as a kind of pawn? Maybe it's up to judicial management or judicial discretion to decide that. I do feel that there is the opportunity, if having aired this, which is, I should stress at this point, a probing amendment, if other commercial groups having heard the discussion here come forward, then perhaps that will take the balance a little, but I do absolutely take on board what the minister has said that small companies could potentially be disadvantaged by this amendment. It's not moved, convener. You've moved it. Maybe a probing, but you've moved it. You wish to withdraw it. You're agreeable. I now move on to amendment 125, namely in muddy group with other amendments that are shown in the groupings. Point out, if amendment 143 is agreed to, I cannot call amendments 114, 115 or 116 in this group. And amendments 111, 112 and 113 in the next group, because they're all preempted, right? Elaine Pleys to move amendment 125 and speak to all the amendments in the group. Thank you, convener. Section 85 imposes a time limit of three months on an application for judicial review, although we've heard that there can be some flexibility. The committee heard conflicting evidence on this matter, including no time limit, time limits of six months and one year. Other witnesses agreed that three months was appropriate. My amendment 125 does not change the time limit, but does recognise that an applicant may not know about the grounds for an appeal at the time that those grounds arise. It could indeed be some time later that the applicant becomes aware that there are grounds for judicial review. Amendment 125 therefore starts o'clock ticking at the time that the applicant first has knowledge of the grounds for their appeal rather than when they arose. I think that that would address some of the concerns around communities becoming aware of the fact that they may have grounds for an appeal. The ministers' amendments 62 and 63 appear to be drafting amendments, though they will, in my view, make the bill read more awkwardly. I think that section 2 will now read is to be made before the period of three months mentioned in that section. However, that first ending period may be expressed, which I find slightly difficult to follow. I'll be interested to learn from the minister why that particular form of wording seems to be a bit clumsy and is preferable to what's in the bill at the moment. Alison McInnes's amendments 139 and 143 get rid of the time limits altogether. I am not convinced that that is necessary. 114 to 117 make what appear to be technical amendments to the proposed amendment of our very recently passed tribunals act. I hope that committee members will agree that it is fairer to the applicant to commence a time limit for an appeal for judicial review at the point when the applicant becomes aware of the grounds for appeal. I therefore move amendment 125. Thank you very much, minister. Can I ask you to speak to amendment 62 and other amendments in the group? I wanted to start with Alison McInnes' amendments rather than immediately go into a response to Elaine Murray. Yes, yes, yes. I'm easy, Aussie. Alison McInnes' amendments would have the effect of removing a significant element of the reforms suggested in Lord Gill's Scottish civil courts review. Amendment 139 removes any changes that the bill makes to the judicial review procedure. It means that not only will there be no statutory time limits on applications, which is what we've just been discussing, but that even the most unmeritorious cases will have to proceed to a hearing on the merits. I find it strange that this amendment should be lodged and I'm not entirely clear what is behind it. All parties accepted in general Lord Gill's report of the Scottish civil courts review when it was published. His proposals on judicial review formed a significant part of that review. The bill implements his recommendations and now Alison McInnes is proposing amendments which would remove those provisions in their entirety. The result of those amendments would be that judicial review will continue on the basis of the common law plea of mora, taciturnity and acquiescence, which Lord Gill considered to be not particularly well suited to a procedure designed to provide a speedy and effective remedy to challenge the decisions of public bodies. There is a public interest in judicial review challenges being made promptly and resolved quickly. People should be able to challenge the decisions of public authorities but they should also be able to rely upon them. An appropriate balance has to be struck and we consider that the way to do that is through a time limit. The time limit is drafted in a way that is designed to provide fairness to applicants while reflecting the public interest in having settled decision making. The bill also recognises that there might be occasions when that time limit needs to be extended and the court is empowered with discretion to do that if it considers it equitable given all the circumstances. Again, we have already referred to that. Three months was chosen as being sufficient in the vast majority of cases and is a time limit that has operated satisfactorily in England and Wales for some considerable time. The Scottish Government consulted on this time limit and a majority of the respondents were in favour. During stage 1 anxieties were raised about whether legal aid could be arranged within this timescale but the evidence of Lindsay Montgomery, the chief executive of the Scottish legal aid board, was that this would not present a problem. Indeed, an application could be made under the legal aid special urgency provisions. I shall say more about time limits when I turn to deal with Elaine Murray's amendment 1-2-5 but first I must address the other reform which would be lost where Alison MacKinnon's amendments to be carried. That is the introduction of a permission stage. This again was one of Lord Gill's recommendations. Petitions for judicial review occupy a disproportionate number of sitting days. The permission to proceed stage would remove those cases which are effectively unarguable with the safeguard that an applicant who has refused permission does have a right of appeal to the inner house. Amendment 1-3-9 would mean that unmeritorious claims would proceed to a hearing on the merits taking up valuable court time at a cost to the public purse. In addition, without this permission stage judicial review can become a weapon used to delay development projects, which of course again is something that we have just been discussing. We have already heard from Margaret Mitchell in the debate on the previous grouping of amendments about the way in which judicial review applications potentially could be abused. While her proposed solution in our eyes went too far, she does highlight a real issue to which the introduction of a permission stage, as recommended by Lord Gill, is a proper part of the response. To summarise, Alison McInnes amendments will mean that there would be no reform to judicial review. If I may remind the committee, Lord Gill devoted an entire chapter of his report, which was welcomed by this Parliament, to the improvement of the judicial review process. Of the bill, he said, proposed new section 27A of the 1988 act, which is in section 85 of the bill, seems to be concisely and clearly expressed, which leaves no-one in any doubt of what is required of them if they petition for judicial review. I cannot see any way in which it could be improved on. It would certainly not be improved upon by being omitted completely from the bill and I ask the member not to press her amendments. I turn now to amendment 125. The effect of this amendment would be to change the point at which the clock starts ticking for the purposes of the judicial review time limit in section 85. The bill gives this as the date on which the grounds giving rise to the application first arise, for instance the date on which the decision under challenge was taken. Amendment 125 changes this to the date on which the applicant first had knowledge of the grounds giving rise to the application. The current test in the bill is an objective test. The grounds giving rise to the application are objective circumstances such as the taking of a decision, the date of which will be known to the decision maker and may readily be ascertained by a court. However, it is important to note that the current test in the bill has been drafted in such a way so as to allow the court to apply the principle of fairness in determining from when a particular time limit should run. The House of Lords has held that under the equivalent long-standing test in England and Wales, which is drafted in similar terms, the time limit will not start to run until the person affected by a decision would be likely to be aware of that decision. The court of session will of course find such an approach very highly persuasive, although it would not necessarily be bound by it, it would be likely to accept the decision. Elaine Murray's test would, however, be a subjective one. It would depend upon the actual knowledge of each particular applicant and it could well lead to legal arguments about when the individual applicant actually had the requisite knowledge. That would greatly reduce the certainty of the time limit, since even after three months have passed from the date upon which a decision was publicised, it would be possible for an application to be brought by a person who was, for whatever reason, unaware of it until more recently. The aim of the section 85 time limit is to balance the need for access to judicial review with the interests of certainty in decision making. To take an everyday example of this latter interest, a person who has granted planning permission for the extension of her house should at some point be entitled to build the extension without fear that the decision to grant that permission will be quashed on judicial review. This interest in certainty would be undermined by adopting Elaine Murray's test. It should also be noted that there is already the flexibility in section 27.1b for the court to extend the time limit where equitable, having regard to the circumstances, giving further comfort to claimants that where good reasons arise the court is fully empowered to allow claims to be made out of time. I would hope that I have been able to give some comfort to Elaine Murray on this point and would ask her not to press her amendment. Finally, let me turn to the Government amendments, which are relatively minor and technical. Amendments 62 and 63 are minor drafting amendments, which clarify how the time limits are expressed in section 27a2 of the Court of Session Act 1988, inserted by section 85 of the bill. They make it clear that any time limit that might be imposed by another enactment will apply only if it in fact ends before the three months time limit applied by section 27a1. Amendment 65 introduces a time limit that was recommended by Lord Gill but which was inadvertently omitted from the bill as introduced. The bill permits an applicant who has been refused permission to proceed after an oral hearing to appeal to the inner house against this refusal. Lord Gill recommended that there be a seven-day time limit for such an appeal and amendment 65 introduces that limit. Finally, amendments 114 to 117 are technical drafting amendments to the provisions inserted into the Tribunals Scotland Act 2014 by paragraph 24 of schedule 4, which governs the procedural steps to be followed when the Court of Session remits a petition for judicial review to the upper tribunal for Scotland under section 572 of that act. I would therefore urge the committee to support amendments 62, 63, 65 and 114 to 117 in the cabinet secretary's name and not to support amendments 125, 139 and 143. Thank you very much. You may now take a breath. Alison McInnes is pleased to speak to your amendment 139 and other amendments in the group. Thank you. I table amendments 139 and 143 because I believe that the arrangements around judicial review need further exploration and explanation because it is a significant review. I remain concerned that the three-month time period might erode access to justice and a number of witnesses and organisations in their evidence to express the view that the provisions are needlessly restrictive and fundamentally unnecessary. Alison Mitchell QC said that a three-month limit was unique and far more restrictive than others that already exist in our system, such as the three years that are allowed to claim after a road accident or the five years that are around after a contract dispute. Tony Kelly from Justice Scotland pointed out that just 20 per cent of respondents to the GIL review supported the introduction of a time limit. The Law Society, which supports those amendments, argued that introducing a limit is disproportionate given the comparatively small number of applications made in Scotland. There is concern that the three months is insufficient time to assemble a case and to secure funding. That is particularly true for community groups who will likely take longer to marshal a case given the need to meet and to understand their options and agree a course of action. It would present real challenges to those who require legal aid or find a solicitor willing to act pro bono. We do not have a significant problem, as I understand it with unmeritorious cases, but I do recognise that there can be an abuse of the current system. We would also like, if it is possible for the minister to explain further the detail, that just before the stage 1 debate, the Government told SPICE that it was their understanding that the three-month limit will supersede the 12-month limits contained in the Scotland Act 1998 and the Human Rights Act 1998. I thought that that was a substantial change and one that the committee did not consider when taking evidence or producing its report. The judicial review does allow citizens to contest acts of the state and ensure that decision making is just, reasonable and proportionate. I think that I would like to hear a bit further from the minister. What I'll do is, while the minister looks at that particular question, I'll take members because I'll let the minister back, although it will be Elaine, you will wind up Roddy. Thank you, convener. I just wanted to comment briefly. The minister dealt with most of the issues very comprehensively. I think we would have to accept that judicial review north of the border is a rarity in comparison to judicial review south of the border. Obviously, these provisions do represent a significant change in the culture of judicial review north of the border. That said, I think we do want to move away from the common law mora problems, mora tastonion aqueasence, which give lawyers a lot of fun, but I'm not sure really help the public generally. I would be concerned were it not for the equitable provisions in the proposed 27A1B, and I think for these reasons some of the concerns should be expressed by witnesses are slightly overdone. Yes, Margaret. I think Alison's amendments have been good in flushing out more information on how the judicial time limit would apply. Also that there is some provision for an extension is good. I don't know if I'm altogether just satisfied that three months is the appropriate time, even with these assurances, but certainly I couldn't support no time limit. I think good points are made about the 12 months and the human rights. In terms of the minister's response to Elaine Murray's amendment, I was certainly persuaded by that argument. I have to say I'm a bit confused, Margaret. I thought you wanted a shorter time for some cases, but in any event I think the position about judicial discretion is often overlooked in all cases that come before the court, that if there is merit in somebody saying they didn't know they had a right and there's real merit in it, my judicial discretion is a very handy thing. I don't quite know why Jonathan Mitchell was trying to compare the triennium with the period for judicial review. It's not apples and apples, it's apples and pears, completely different thing, and I think that's even subject to some kind of review. I think we sometimes overlook judicial discretion through the sheriffs and through the senators when they meet somebody with real merit who has a real case but missed some kind of deadline, and we're prepared to let the case go ahead in any event. Minister, before I have Elaine and you, you might have some points to make in answer to Alison. One or two small things. Alison Kinnis raised the issue about the fact that the time limit will supersede the time limits in the Scotland Act and the Human Rights Act, and that is correct. They will. Both the Scotland Act and the Human Rights Act, while reserved, do permit stricter time limits to be imposed, so there is no difficult issue in respect of us doing this. It is something that is envisaged and encompassed within those acts. The interesting issue raised about comparison with the triennium, what we're talking about with judicial review is about public decision making. Public decision making needs certainty. We can't have long running periods of complete uncertainty about the application of a public decision. I don't believe that the question that is raised is comparable to the time limit for, for example, personal injury cases. The convener used that we're not talking apples and apples here, and that is absolutely correct. We're talking about two very different things. The need for public decision making not to be snarled up for very long periods of time unnecessarily when we could be moving things through a little bit faster, because that kind of public decision making does need certainty. I think that people are entitled to know for sure about the decision making process when it becomes about public decision making. Personal injury cases are privately taken. The public decision making process is a very different one. While judicial review is absolutely a useful tool for people to test those decisions, we've always got to watch that it doesn't become what I think we're talking about earlier, a way of effectively, quite cynically, just stalling public decision making process. I now call Elaine Murray to wind up. Please, Elaine. Thank you, convener. I had listened carefully to what the minister was saying, and I accept that there is potentially a problem with legal argument about when somebody actually had knowledge of the grounds for complaint. I see your illustrative planning permission cases, one in point, where possibly this could be used in a vexatious fashion, in terms of trying to delay when a planning permission could be proceeded with. I feel like the application could be proceeded with. I'm prepared to withdraw the amendment at the moment. I think I want to have a little bit. OK, I will ask the question. I should have said something about 65 when I was introducing my amendment. I'm still a bit concerned about the period of seven days for that appeal following an oral hearing. I understand that the normal time limit for appeals is 21 days, so it seems very short in comparison. I should raise this in the opening speech, but I'm concerned about that. It's really not much more than I can add to what I've already said. It was Lord Gill's recommendation, so since this piece of legislation is effectively about enacting Lord Gill's review, we've had the opportunity to hear from him. I will seek permission to withdraw. Are we all agreed? Thank you, convener. Members will be relieved to know that this is considerably more brief than my last intervention. This is another technical group of amendments that simply update references in the bill to sections in the Tribunals Scotland Act 2014 to take account of changes in the numbering of those sections when the Tribunals Bill was enacted. Yes, you're only moving one of them, though, aren't you? Sorry, I will move amendment 64, so I'll get carried away there. How we all wish we could do that tomorrow, I'll get carried away. Does anybody else wish to come in? Minister, I take it you don't want to wind up. Questions amendment 64 would be a greater. Are we all agreed? No. We're not agreed. There will be a division. Those in favour, please show. Did you get them all? Those against, please show. Abstentions. Six in favour, two against, one abstention. That amendment is agreed to. I'll call amendment 139, the name of Alison McKinnis, already debated. Amendment 125, Alison, to move or not move. Not moved. Thank you very much. I now go to the amendment 64. I'll go to the amendment 64. I'll go to the amendment 64. I'll go to the amendment 64. I'll go to the amendment 64. I'll go to the amendment 64. I'll go to the amendment 64. I now go to what the question is that section 85 be agreed to. The question is that sections 86 and 87 be agreed to. Are we all agreed? I'll tell you what I'm going to do, actually, just because I'm getting weary here, is that I'm going to get to sections 995 and have a five-minute break and then we can all sort of adjust our temperature. That'd be correct. Thank you. I'll call amendment 66, the name of the cabinet secretary group with amendments 67 to 69, 140, 70 and 71. Minister, please, to move amendment 66 and speak to the other amendments in the group. Thank you, convener. I will go on to speak about specific amendments to remits in a moment, but firstly I would like to say that these amendments are being brought as a result of Lord Gill's evidence to the committee at stage 1 on 22 April and my letter to the committee of 30 April, making a commitment to amend certain provisions in the bill on remits in line with Lord Gill's comments. As the committee recognised in its stage 1 report, the ability to remit a case to the court of session, which would otherwise be within the exclusive competence of the sheriff court, is a necessary and competent and important tool. The provisions on remits set out in section 88 are intended to ensure that the system is not abused by requests to remit a case from the sheriff court becoming the norm in an attempt to circumvent the raising of the exclusive competence of the sheriff court to £100,000. It is, however, important that we get the balance right so that cases are able to find their appropriate level in the system. There are currently two different tests in the bill which govern the remit of a case from the sheriff court. One test in section 88, subsection 2, applies to cases where the monetary value is above the exclusive competence of the sheriff court and another test applies to cases where the value is within that exclusive competence and this is in section 88, subsection 4. Lord Gil stated in his stage 1 evidence that he now thought that the second test of exceptional circumstances in section 88, subsection 4 for cases within the exclusive competence was too high. He also stated that a single test for remit, the same one is in section 88, subsection 2, was desirable in principle and in practice. The Government has considered and agrees that it is desirable that there should be a single test for remit to make the rules and procedures of the courts easier to understand. Amendment 66 therefore amends section 88, subsection 4 to bring the test in line with that in section 88, subsection 2. There are also currently two different mechanisms which govern the remit of a case from the sheriff court where the monetary value is above the exclusive competence of the sheriff court. If the sheriff remits that case, it transfers automatically to the court of session under section 88, subsection 2. The value is below the exclusive competence. A request from a sheriff to the court of session under section 88, subsection 4 may be refused by the court of session under section 88, subsection 5. The difference in treatment between remits of cases above and below the exclusive competence is deliberate in order to prevent attempts being made to circumvent the new level of the exclusive competence. Lord Gil believed that the test of special cause shown in section 88.5 presented an additional hurdle at an applicant for remit must clear, but he considered this threshold too high and suggested a test of cause shown would provide an adequate safeguard to prevent any abusive process. Amendment 67 makes this change. The Scottish Government remains of the view that the provisions of the bill, including those in section 88, 6, which would allow the court of session to take account of the business and other operational needs of the court in deciding whether to accept a remit from the sheriff are compatible with the European Convention of Human Rights. I think we said we didn't envisage that being an issue. However, we have noted the Lord President's comments on the desirability of this provision and amendment 68 does in fact remove subsection 6. Amendment 69 makes appropriate provision for appeals following the easing of the test for remit by amendment 66 and 67. It removes the appeal provisions in section 88, subsections 9, 10, 11 and 12 with the effect that section 104, subsection 2 of the bill will apply for the purposes of appeals against decisions of sheriffs under section 88, subsections 2 and 4. That means that a sheriff's decision not to remit the case under section 88, subsection 2 or to request the court of session to do so under section 88, subsection 4 may be appealed to the sheriff appeal court with the permission of the sheriff. The amendment would ensure that these appeals are treated consistently with other appeals from the sheriff. Amendment 140, in the name of Roderick Campbell, proposes an alternative approach to such appeals. His amendment would replace the right of appeal to the sheriff appeal court against a sheriff's decision on remit with the right of appeal to the court of session. Where a Government amendment 69 would make these appeals consistent with the rule which applies throughout the bill that appeals from the sheriff go to the sheriff appeal court, Roddy Campbell's amendment would make an exception for decisions on remit. There is, in my view, no justification for making an exception to this principle for appeal against a decision not to remit a case to the court of session. I would ask that the member not press his amendment. In view of the changes to the rules on upwards remit to the court of session in section 88, the rules on downwards remit from the court of session in section 89 also need to be amended. In the light of the amendments made to section 88 by amendment 66 to 69, there would be a disparity between the test in section 89 subsection 2 and the new tests to be provided for in section 88. There would therefore be a real risk of an attempt by litigants whose case is remitted down in terms of section 89 subsection 2 to immediately try to have their case remitted back up under section 88. Amendment 70 replaces the test in section 89 subsection 2 to mirror that in section 88 subsection 5. That means that the court of session must remit proceedings to the sheriff court unless it can be demonstrated that there is cause shown that the proceedings should stay in the court of session. The adoption of the same test will make it unlikely that the court of session would remit any case to the sheriff court which would have a good chance of being accepted by the court of session with the sheriff to remit it back. We're trying to avoid a ping pong process. Amendment 71 deletes section 89 subsection 7 so that, as with section 88, the court of session should no longer be able to take into account its business or operational needs in coming to a decision on whether to remit to the sheriff. I move amendment 66. Thank you very much. Roderick, please to speak to amendment 140 and other amendments in that group. Thank you, convener. Perhaps it would be helpful if I just started by saying I very much welcome amendment 66 to 68 and understand the minister's comments. In moving amendment 140 I was really kind of taking on board some of the other comments by Lord Gill on the 22nd of April when he referred to the question of the court of session having some kind of safety net. He said in his evidence it might be a sheriff made a decision based on inadequate information or an incorrect understanding of matters so it would be helpful if there was a fallback that the court of session could take a second look at the matter rather than someone's claim being ruled out forever. I still think his comments had some validity. I hear what the government has to say about it. It's not my intention to press into the course of time. You're not moving any wages now, just speaking to it. Any other members wish to come in, Elaine? To say it, the majority of the amendments in the government has put forward here are welcome. I think that they lower the bar in terms of remit to the court of session and I think that that's to be welcomed. The only... I mean, I'm sorry in a sense to hear that Roddie Campbell does not intend to push his amendment because I saw some merit in the amendment to allow the decision to be taken by the court of session and I would have preferred amendment 140 to amendment 69 if that had been possible, but there's probably a little point in doing it if you're not actually intending to press the amendment. Well, actually... Minister may not like it, but you can move it. If he says not moved, you can move it. You should know that by now. You've been here 15 years, women. So I shouldn't have to tell you procedures, but I thought, well, I'm not leaving you out. It's the heat, darling. It's the heat. Any other members coming in, Alison? Were you waving your hand to say that? Yes, I just wanted to welcome the government's amendments in this section because they are an improvement in the situation. Yes, in particular, not taking business into account. I think that was something we would have found very unsettling. Minister, to wind up, please. I don't think there's anything I want to add. Questions that amendment 66 be agreed to. Are we all agreed? Yes. We are. Call amendment 67, 68, 69, only in the cabinet secretary and all previously debated. Invite your minister to move these. Do you not have to agree that we want them all to take them together? I'm just coming to that. Definitely a tea break. Minister, I invite you to move these amendments on block. Move on block. Does any member object to a single question that we've put on these amendments? Well, there you are, you see. First of all, I'll call amendment 66. I'll take your pardon. What am I calling? 67. I've even ringed 67 and I'm ringed 66. I call amendment 67. You move 67. Is the amendment 67 agreed? Agreed. Call amendment 68. Moved. Is amendment 68 agreed? Yes. I call amendment 69. Moved. Is amendment 69 agreed? No. Last. Right. The we are division. Those in favour of amendment 69 please show. Those against please show. Abstentions. That's six in favour to against one abstention that amendment is agreed. I call amendment 140 in the name of Roderick Campbell Roddie to move or not move. I'll move it instead. You have to shout move. Tearing me. The question is amendment 140 be agreed to. Are we all agreed? No. Those in favour please show. Those against please show. Abstentions. Sorry, but against please show. Six. No abstentions. Four, three, six against. There are no abstentions. The question is that section 88 be agreed to. Are we all agreed? I call amendments 20, 19, 70 and 71 all in the name of minister of all previous debated. Invite you minister to move these on block. Moved on block. Does any member object a single question to report on these amendments? The question is amendments 20, 19, 70 and 71 are agreed to. Are we all agreed? The question is that section 89 be agreed to. Are we all agreed? The question is that sections 90 to 95 be agreed to. Are we all agreed? I'm going to suspend till 11.30 because we're rattling. It gives you a little break, which you will need. Let's get started. Thank you very much. Now move on. I'll call amendment 72 in the name of the cabinet secretary. Group with amendments 73, 76 to 79, 119 and 120. Minister pleased to move amendment 72 and speak to all the amendments in the group. Thank you, convener. Amendments 72, 73, 76, 77, 78, 79 and 119 are all technical amendments to the court rulemaking powers. They do not change the substance of those powers, but ensure that the rules made for the court of session will be interpreted in terms of the interpretation and legislative reform Scotland Act 2010 in the same way as the rules to be made for the sheriff court and sheriff appeal court. Those amendments move the court of session rulemaking powers into the body of the bill rather than placing them into the court of session act 1988, as it is currently provided for. That will ensure that court rules for the court of session and the sheriff court and sheriff appeal court will be subject to the same interpretive regime. That is in keeping with the aims of the rules rewrite project that the Scottish Civil Justice Council is undertaking to provide a consistency of approach across the breadth of both the sheriff court and court of session rules with clear rules that are easy to understand. Amendment 120 is a technical amendment that amends the powers of the SCJC to put beyond doubt their role in being able to propose rules of court relating to the setting of fees. I move amendment 72. Thank you very much. No member has indicated the wish to speak. Minister T, you do not want to wind up. The question is that amendment 72 be agreed to. Are we all agreed? I call amendment 73 in the name of the cabinet secretary. I have already agreed with amendment 72. Thank you. The question is that amendment 73 be agreed to. Are we all agreed? The question is that section 96 be agreed to. Are we all agreed? I call amendment 74 in the name of the cabinet secretary. A group with amendments 75, 80, 81, 91, 108, 108 and 124. Minister, please do move. Amendment 74, go and speak to the other amendments to the group. Thank you, convener. Amendment 91 inserts a new section which re-enacts the existing power. Are we in the right group? Yes. That re-enacts the existing powers of Scottish ministers to set court fees. Those powers are currently exercised by the Scottish ministers under section 2 of the Court of Law Fees, Scotland Act 1895. The amendment consolidates this 19th century provision, setting out the powers in clearer modern language. It reflects, for example, the reality that it is now for the Scottish ministers rather than the Secretary of State to set court fees and that those fees should generally be payable Cymru i ddedigledig diolch yn drwyddog wedi sicr mae'n ymwneud o ddatterfwy o'r cyffredinol penchiol. Cyfwiliau 1808 i 1808 erioed, gyda'r ddatterraff ddydylau cyfwiliau mwy o'r Cymru eich weld y 1895 ac yr awdoddiad iechyd dros provinces cyacioedol a'r cyffredinol i ddedig faintol. diyorsun fwy cysyllt ar gyfer bod gyda'r cyffredinol yw'r cyffredinol paenol drwy gyda'r cyffredinol a'r cyffredinol ar gyfer bod gwaith o ddaterfwy o'r cyffredinol i ddedigledig. As this is a power to make a textual modification to primary legislation, it is appropriate that it be made subject to affirmative procedure and amendment 124 makes this provision. Amendment 74, 75, 80 and 81 move the sections conferring powers to make rules and procedure and fees sections 96 to 99 into a new part along with the new power inserted by amendment 91 so that all the powers and procedure and fees can be located together. I move amendment 74. Thank you very much. Any members? No indication. I want to minister to take it. I want to wind up. The question is amendment 74 be agreed to. Are we all agreed? And you know that we're coming shortly to yours, Mr Pearson. I don't know. I'm the one that's not well today, but I've concerns about you. Thank you. Call of amendment 21 in the name of the Cabinet Secretary. I already agreed to amendment 5. The question is amendment 21 be agreed to. Are we all agreed? Yes. questions at section 97 be agreed to. Are we agreed? Call of amendment 75, the name of the Cabinet Secretary. I already agreed to amendment 74. The question is amendment 75 be agreed to. Are we all agreed? 1. Amendment 126—name of Graham Pearson Group with amendment 127. Graham, please, to move amendment 126 and speak to the other amendments in the group. Thank you, convener, for allowing me to speak to these two amendments. They look at the ability of the bill to instruct once an act to conduct proceedings justly and tries to explore some of the reservations that were expressed by witnesses during the evidence-taking minus committee. The power to regulate procedure by act of seredin under sections 96 and 97 is to be exercised with a view to enabling the court to conduct proceedings justly. Acts of seredin under section 96 and 97 are to be interpreted by the court with a view to enabling the court to conduct proceedings justly. For the purposes of subsection and as guidance, I've listed a number of items that should be considered when trying to arrive at a just outcome, ensuring equitable treatment of parties to the proceedings. That tries in some way to put minds at rest in terms of this notion of equality of arms and the notion that both sides of proceedings have fair access to treatment before the courts. Being mindful of the expense of proceedings is to acknowledge what government has indicated as intentions for the legislation to reduce the costs of proceedings within the court procedures, conduct proceedings in a manner proportionate to the value of orders sought in the proceedings and again to help as guidance to the court that one would not want to see disproportionate use of legal advice which is costly and adds to difficulty in deciding a just outcome. Nature and complexity of the proceedings, again although some proceedings might not have a high value in terms of the kind of resolution that's being sought, often there are complexities in the arguments that are being developed within the court and that complexity the court should take acknowledgement of when deciding the level of representation for each of the parties concerned and taking account of financial position of the parties to proceedings. Often it's been explained to us during the evidence that some parties have very limited access to financial support and a court in my view should take some acknowledgement of that and try and assist in the pursuit of justice support for parties in those circumstances. Ensuring the proceedings are conducted fairly intimuously, again that notion of moving cases on rather than allowing them to languish over long periods of time but taking due account of fairness to both sides, ensuring that proceedings are conducted in a manner which is mindful of resources available to court and other proceedings progressing through the courts and that's an acknowledgement in a practical sense that although one would like to fast-track every case quite evidently judges need to take account of the court calendar. It's not without precedent that such a direction has been given in legislation, UK legislation has had similar approaches when dealing with tribunals and the likes and I think it would be helpful to the general public in approaching this new legislation to understand the approach which is to be taken by the courts. Equally I think it's been acknowledged in the past that those external to parliament have criticised the quality of some of the legislation that's gone through all parliaments not simply our own and that there was a lack of guidance to assist judges in weighing up the various processes that lay before them. Section 127, the amendment 127 attempts to achieve a similar outcome but if it's deemed that 126 is overly complex or too difficult to deal with then 127 would attempt to achieve the same outcome but leave it with the Scottish judicial council to determine how justly is to be understood in the making and interpreting of acts of certain. Could I ask you to move 126, please? I so move. Thank you. Thank you. Any other members? I think these amendments address an important point. Certainly there's nothing I could take exception to on 126. It's certainly setting out the stall of what we'd all like to see achieved and it may be however 127 does that without micromanaging exactly what must be taken into account so I'd be interested to hear the minister's views. Well I would also like to add I think that this is you know it's unnecessary frankly my view that in fact the bench in my experience so I'm no longer a practiser if I don't have to declare an interest did take these matters into account I'd be most concerned if proceedings were not conducted justly within our courts either sheriff or lower courts or in fact the court of sessions so you know generally again back to flexibility in my experiences if a sheriff feels that things are not going fairly maybe we're party litigant they intervene and have done so and at the same stage may in fact seek adjournments and have a word with somebody. So sheriffs can be pretty good when I was appearing in the sheriff court letting you know if they weren't happy about the way proceedings were going in the interests of justice so I while I see your argument I think the practice in court since I have certainly experienced it has been that and I wouldn't want to have to put this down into writing and let them when the judiciary are quite capable of doing it themselves and do it regularly well you're getting to wind up Roderick. Just briefly I kind of have instinctively concerned about kind of prescriptive lists I understand why the procedure has got some prescriptive lists but these are a bit wider than procedure go to the whole nature of justice and there are things like natural justice I don't know where that features I'd be concerned about having something like this on the face of the bill I don't know if there are issues that might benefit from being discussed by the civil justice council that's a slightly wider issue that I have concerns about it. Christian. Yeah I just wanted to add that like Friday I don't think that it should be in the face of the bill you know it's some of some of the arguments are quite vulnerable but I've no place in the face of the bill. I can now call the minister. Thank you convener I'm grateful to Graham Pearson for his explanation of the intended effect of his amendments 126 and 127 which in effect seek in different ways to ensure that civil court rules are made and interpreted in light of an overriding principle that cases be dealt with justly although I have to say that one would presume that that is the overriding principle of the entire justice system without having to be written into every single piece of legislation I would find that a rather strange way of proceeding it will come as no surprise that the Scottish Government agrees with the principle which changed the overall purpose of this bill and indeed is the whole purpose of the Gail review Taylor review and the bill bringing it all up into modern language and to suit modern times but it's about ensuring that that principle of justice is in practice being carried through so the Scottish Government does not think that it's appropriate to set it out in the face of primary legislation. Roles of court are a matter for the Scottish Civil Justice Council which was established only last year and in a sense is part of this entire arc of reform. In terms of its founding statute the council is obliged to have regard to a number of principles the first of which is that the civil justice system should be fair, accessible and efficient. The SCJC has already started a major project to modernise and rewrite the rules applying in the court of session and sheriff court and in doing so I understand that it proposes to adopt an overriding principle which strongly resembles that argued by Graham Pearson. The interim report of the SCJC's rules rewrite working group states and I quote, we are of the view that there should be a statement of principle and purpose in both the sheriff court and court of session rules to which the court should have due regard but that it should not override the other rules of court. The statement should be founded on the recommendation of the Scottish civil courts review and should indicate that the purpose of the rules is to provide parties with a just resolution of their dispute in accordance with their substantive rights within a reasonable time in a fair manner with due regard to economy, proportionality and the efficient use of the resources of the parties and of the court and that parties are expected to comply with the rules and I'm informed that this proposal has been endorsed by the civil justice council which will consider the content of such a rule in due course. The adoption of such a principle is properly a matter for the SCJC and indeed amendment 127 recognises this by leaving it to the council to define what is meant by justly. I'm happy to be able to inform the committee that the SCJC already has the adoption of a relevant principle in hand and I would ask the member not to press his amendments. I've heard all that's been said by members of the committee and by the minister and take due consideration of them. I think that the changes that are proposed in this bill are very significant as we all appreciate and they will affect many ordinary people in the years ahead, many of whom will have no previous experience of our justice system or understand how the courts go about the processes of judicial decisions. I thought and still think it would be useful to have such a statement within the legislation in order that those external to the courts, those who don't have the experience that our convener has of the way sheriffs weigh these matters that they would be able to read for themselves the kinds of matters that would be weighed in deciding what justly means in fight. So I do believe it's helpful. I'm grateful that the minister indicates that these matters may be dealt with by another means. I would like to know if I would draw at this stage I'll be able to rein live in it next stage. That's a matter for the Presiding Officer but I think it's quite likely. I can't give any undertaking because amendments lodge but if you ask the committee to withdraw it's up to whether a PEO exists. Could I ask the minister in the meantime if I could get some detail of the alternative that she indicated in terms of the processes? We need to know now whether you're going to press or withdraw it. I'll withdraw at this stage. He seeks to withdraw. Is that satisfactory? Yes. Call of amendment 127, the green person already debated with amendment 126. Move or not move? I'll move. Thank you. Questions? Call of amendment 76 to 79 all on the day of the cabinet secretary and all previous debated. Minister I invite you to move these amendments on block. Is any member to object to a single question that we put in these amendments? The question is that amendments 76 to 79 are agreed are we all agreed? Questions at section 98 be agreed to are we all agreed? Call of amendment 80 in the name of the cabinet secretary already debated with amendment 74. Thank you. Questions at amendment 80 be agreed to are we all agreed? Questions at section 99 be agreed to are we all agreed? Call of amendment 81 in the name of the cabinet secretary already read the ice cream must be calling. The question is amendment 81 be agreed to are we all agreed? Call of amendment 45 in the name of John Perlin group with amendments 141, 142, 147 and 144. John please to move amendment 45 and speak the other amendments in the group. Thank you convener. We have heard a lot about the equality of arms from witnesses particularly in the context of complexity of personal injury cases. In such circumstances the expertise of one side in terms of both legal representation and of the experience of such cases that employers and insurance companies have cannot be hoped to be matched by the other without at very least access to counsel. Now I have submitted to alternative amendments, amendment 45 and amendment 141, to achieve equality of access to justice in such cases. In many ways an automatic right would be better as it would be simpler and quicker and these gains would offset any cases where it could be argued that counsel was not strictly necessary. If that is a step too far the other is just a presumption so that if there was a case where there was a good reason why it should not be granted it could be contested. My other amendments in this group are consequential to these. Can I ask you to move amendment 45, John please? I'll move amendment 45. Thank you very much. John please, John Finnie to speak to amendment 142 and the other amendments in the group. Thank you very much indeed convener. Both are simply with what John says, it's in line with the concerns that the committee expressed earlier on. The concerns that John outlined are ones that we did consider at stage one and have a great deal of sympathy for and that was that there no longer would be an automatic sanction for counsel if the issue wasn't taken to the court of session. What I propose with amendment 142 is to put the Taylor test on to the face of the bill to provide certainty for people without resources that they will not be outgunned by larger organisations and that's again in line with what we said at stage one. Now there clearly there will be detailed discussions to take place with the Scottish Civil Justice Council around how that's progressed but that's the proposal simply put forward and I hope I'll gain support for that. Thank you very much. Anyone else wishing to speak in this section? Minister please? I beg your pardon Roderick, sorry. Just briefly say that obviously I've found this particular issue quite difficult but I welcome the fact that the Sheriff Taylor's comments are to be placed on the face of the bill. I think that's a step forward. Thank you minister please. Thank you convener. When I gave evidence to this committee previously about the Government's response to the Taylor report I expressed the view that given the rapidly changing legal landscape it was appropriate that detailed provision about matters such as sanction for counsel should be dealt with in court rules. A large part of the purpose behind the present bill is to ensure that the courts have appropriate powers to regulate their practice and procedure. The Scottish Civil Justice Council established by an act of this Parliament last year is already embarking on a complete overhaul of the rules in both the Sheriff Court and the Court of Session. I argued that it would be very odd for the Parliament to set up an independent body with the express purpose of considering court rules and then a year or so later to fossilise matters that are properly the subject of court rules in primary legislation and I remain off that view. John Pentland's amendments 45 and 141 would establish in primary legislation a presumption in favour of sanction for counsel in specified types of personal injury cases in an all Scotland specialist court. In one version amendment 141 the presumption in favour of sanction for counsel could be rebutted where special cause is shown that the case is straightforward involves settled law or involves a small number of witnesses whose evidence is not expected to be complex. In the other amendment 45 the presumption would be non-rebuttable it would be in effect a rule that sanctioned for counsel must be granted. In relation to each amendment the Scottish ministers are to be given a power by order to vary the list of relevant proceedings to which sanction will automatically be given but the rules are otherwise inflexible set in stone. This is precisely the kind of rule which the Scottish Government considers should not be placed in primary legislation. However welcome it might be at present and I agree with John Pentland that many of the cases which he identifies will merit sanction for counsel it is unwise to fix the test on the face of the bill in this manner. I am on the other hand happy to welcome John Finnie's amendment number 142. The effect of this amendment is to enact the test proposed by Sheriff Principal Taylor which prescribes that the court shall have regard to what might broadly be a termed equality of arms in considering an application for sanction for counsel. The committee in its report on stage 1 recommended that the Taylor test should be placed on the face of the bill. The Scottish Government was reluctant for the reasons that I have already mentioned not because we disagree with the test which Sheriff Principal Taylor said in evidence that he regarded as reflecting current best practice but because we considered that the test should not be fixed in primary legislation. However John Finnie has hit upon a solution to this problem. His amendment places the Taylor test on the face of the bill while providing that the test is subject to rules which might be made under the powers in sections 97 and 99. We believe that this neatly squares the circle and I'm happy to support amendment 142. John Finnie, please to wind up. I'll just press amendment 45. You're pressing your amendment. Thank you very much. The question is amendment 45, we agree to, are we all agreed? No, there will be a division. Those in favour please show. Those against please show. Abstentions? None. So it's seven against four, two, seven against that amendment is disagreed. I call amendment 141 in the name of John Pentland. I've already debated amendment 45. John to move or not move. You're moving it. The question is amendment 141, we agree to, are we all agreed? Those in favour please show. Those against please show. No abstentions. Four, four, five against that amendment is disagreed. Question is section 100, we agree to, are we all agreed? I call amendment 82 in the name of the cabinet secretary group. The amendment is 83 to 90. Minister, please to move amendment 82 and speak the other amendments in the group. Amendments 82, 83, 84, 85, 86, 87, 88, 89 and 90 are technical amendments which clarify references to court in the provisions on vexatious behaviour where a court is granting an order relating to a person who has behaved vexatiously. They ensure that where a court is referred to in these sections it is clear whether the references to the court granting an order, the court where the order will have effect or the court giving permission required under the order. I move amendment 82. Sounds technical, so I don't think I'm going to get any bids in here. Nope. Minister, you won't need to wind up, I take it. The question is amendment 82, we agree to, are we all agreed? Questions at section 101, we agree to, are we all agreed? Call them in, it's 83 to 90, all in name of the cabinet secretary in all previous debated. Minister, I invite you to move these on block. Is any member object to a single question being put? The question is that amendments 83 to 90 are agreed to, are we all agreed? Questions at section 102, we agree to, are we all agreed? Call amendment 91, the name of the cabinet secretary already agreed to, amendment 74, minister to move formally. Questions at amendment 91, we agree to, are we all agreed? Call amendment 142, the name of John Finnie already debated with amendment 45. John, to move or not move? Move, convener. The question is amendment 142, we agree to, are we all agreed? The question is that section 103, we agree to, are we all agreed? Call amendment 128, in the name of Elaine Murray group, with amendments 129 and 130. Elaine, please, to move amendment 128 and speak to the other amendments in the group. Thank you, convener. Amendments 128, 129 and 130 deal with appeals from the sheriff court in personal injury cases. Section 104 of the bill deals with appeals against the decision of a sheriff being taken to the sheriff appeal court. My amendment 128 removes the application of this section to appeals against the decision of a sheriff in personal injury cases, where Scottish ministers have, by order, provided that the jurisdiction of a sheriff or specified sheriff sitting in a specified court extends throughout Scotland for the purpose of dealing with specified types of civil proceedings. In other words, the personal injury sheriff court, which will, as the bill now stands, deal with claims for under £100,000. Amendment 129 and 130 sets a section after 107 enabling appeals against decisions taken in the personal injury court to be taken in the court of session, without the need for permission, and gives the court of session powers to determine the appeal by upholding the decision, recalling it, paying it. Can I just suspend, please, just put my headphones off? No, no, it's on me. We'll wait till 12. Start again, thank you very much. Elaine, back in part 2 of amendment 128, off you go. Amendment 129 and 130 sets a section after 107 enabling appeals against decisions taken in the personal injury court to be taken in the court of session, without the need for permission, and gives the court of session powers to determine the appeal. I brought these amendments because cases in the personal injury court will be taken by specialist, we heard by specialist personal injury sheriffs, and unless both parties agree, otherwise our specialist court is shown, proceedings will be tried by a civil jury of 12 people. It does seem inappropriate that judgments in such cases would be appealed to a sheriff court, possibly consisting of only one sheriff, who may not even be a specialist in personal injury cases. As the judgment will have been made by a jury and the decision made by a sheriff who specialises in these often complex and difficult cases, it seems to be much more sensible for appeals against the judgment to be taken in another specialist court in the court of session, and I move amendment 128. Thank you very much. Does any other member wish to come in? No, minister. Thank you. Amendments 128 and 130 are a package. The effect of amendment 128 would be to prevent appeals from the final judgment of an all-scotland personal injury court from going to the sheriff appeal court, though decisions of that court, which did not constitute final judgment, would continue to go to the sheriff appeal court. The effect of amendment 129 would be to make such an all-scotland personal injury cases subject to an equivalent right of appeal to the court of session. The result would be that all appeals against final decisions by the personal injury court would be heard in the court of session rather than the sheriff appeal court. Lord Gill recommended the establishment of a sheriff appeal court to deal with all civil appeals from the sheriff court. That includes personal injury appeals from the personal injury court. The reasons why I oppose this are as follows. Firstly, if there is concern about the bench being comprised of a single appeal sheriff, as the cabinet secretary said last week, the bill deliberately leaves such decisions on quorum and on who will preside at sittings of the court to rules of court. I am confident that the rules of court and the responsibility of the president of the sheriff appeal court, a sheriff principle for the allocation of appeal sheriffs, will ensure that an appropriately constituted bench will hear personal injury appeals from the personal injury court. If there is concern about sanction for council, John Finney's amendment 142 puts on the face of the bill the test proposed by sheriff principal Taylor, prescribing that the court shall have regard to what might broadly be termed equality of arms in considering an application for sanction for council should address it. There may be concern about the complexity of a personal injury appeal and I understand that this may be a particular issue following section 69 of the enterprise and regulatory reform act 2013, which removes civil liability for breach of statutory health and safety duties, ironic in the circumstances. If so, it will be possible to have an appeal remitted to the court of session in appropriate circumstances since section 106 of the bill permits the sheriff appeal court to remit the appeal to the court of session on the application of one of the parties if satisfied that the appeal raises a complex or novel point of law. Finally, as the cabinet secretary said last week, it is an important principle of Lord Gill's review and therefore throughout the bill that courts have the flexibility to allocate the right judicial resources to the right courts. The consistent policy of the bill is that appeals should lie from the sheriff court to the sheriff appeal court and not directly to the court of session. There is no justification for treating one category of case personal injury differently from all others. There is no basis for suggesting that appeals from a specialist personal injury court could not be dealt with perfectly competently in the sheriff appeal court for the reasons that I oppose Eileen Murray's amendments. It seems to me that we take quite a lot on trust in terms of the way in which the rules of court are going to be applied. That seems to be the answer to everything that is going to be dealt with by rules of court. Through the evidence that we have seen, what our witnesses have said to us, there are particular issues around personal injury cases that make them more complex. It still seems to me to be inappropriate that an appeal against a decision taken by a specialist sheriff and a jury would go just to the sheriff appeal court to maybe even three of the sheriffs. It would seem more appropriate that it is heard by a similar type of specialist court in another court. I am going to go and continue to press 128. I will watch the questions amendment 1 to be agreed to. Are we all agreed? There is not agreement. Those in favour, please show. Those against, please show. 4, 4, 5 against. That amendment is not agreed. Questions at section 104 be agreed to. Are we all agreed? Questions at sections 105 to 107 be agreed to. Are we all agreed? 1, 2, 9, the name of Elaine Murray, already debated with amendment 128. Elaine, we will not move. The question is that amendment 129 be agreed to. Are we all agreed? We are not agreed. There is a division. Those in favour, please show. Those against, please show. It was your turn to fall by the wayside. Can we just do that vote again please? Those in favour, please show. Those against, please show. 4, 4, 5 against. That is not agreed. The question is that sections 108 to 109 be agreed to. Are we all agreed? 1, 3, name Elaine Murray, already debated with amendment 128. Move or not move? Not moved. Not moved. Not moved. Call amendment 92. Name the cabinet secretary group with amendments 93 to 97. Minister, please to move amendment 92 and speak to the other amendments in the group. Thank you, convener. Amendments 92 to 95 are technical drafting amendments that ensure consistency of language in the provisions governing the effect of an appeal to the sheriff appeal court, the Court of Session and the Supreme Court. They make it clear that in each case the appeal court may review any prior decision in the proceedings, including where relevant any prior decision on appeal. Amendments 96 and 97 are minor drafting amendments that bring the wording of the test for permission to appeal to the Supreme Court in started section 40a of the Court of Session Act into line with that contained in the Supreme Court's practice direction. I move amendment 92. Thank you very much. No one else has indicated, minister you won't want to wind up. The question is that amendment 92 be agreed to. Are we all agreed? Call amendment 93. Name the cabinet secretary. Already debated. Thank you. Question is amendment 93. Be agreed to. Are we all agreed? Call amendment 94. Name the cabinet secretary. Already debated. The question is that amendment 94 be agreed to. Are we all agreed? The question is that section 111 will be agreed to. Are we all agreed? Semur iawn cosyn am aston 95, 96, 97 no bobl, y maen nhw'n dweud digon hawddol, ne angular glaciad y gall motive ar butynt ar was bydd gäsirri'r ystyr, acref wallol, daout do easyniad ar y dom mRNA eistedd bobl y croes yn eich teulu tenartologyr am ddiwg hefyd yn yr ysgrifennid nog yn coreiadau. Rydych chi'n iddych chi'n amser ei hefyd yn ddigwydd jest lovely ac yn y pwysigol yn ôl, ond mae'n mynd i siar bod i'n mynd i chi'ch bod i'ch ansiwn i'ch bethau gallai cyfleid i'r prosesion y Pwysigol Cymru. Felly byddwch yn ddigwyddio dda wedi bwysigol, mae'n fwylo sy'n cyfleid hynny o gwyddon o hetoeddoch ac yn y cyfleid y fwysigol fel nhw'n byw sydd yn dod am gweithio yn ein ffagurau i ddargarfodau ihad i gael i gael i gael i gael a gael i gael i gael i gael, is that? Maewd ar gyfer hwnnaad gan mwy yng Nghymru? Maewd ar gyfer hwnnaad gan fwyfod yng Nghymru? Margaret Scott. Felly yn gweithio, rydyn ni wedi gweld i'n clirio i'r yw methu. Yn yma fwyfawr ar gyfer Yng nghymru yw John Pentland iawn y pethau, y dylaiwyr cyhoeddóy ffordd yn brofiwn ar gyfer gyflawn i 14 nysg y gallu ydweud y cerdennol i wneud awdd y ddalparu iedd o'r cymau ffordd ar gyfer yr awdd y dylaiwyr cyhoedd y cyflawn i wneud fyddai ar gyfer cyflawn. Fyddiw i'r effeithiwn y dylaiwyr cyhoedd, oherwydd mae yw'r yn dysgu o'r cyfrifuig yn cael ei ddweud i gydag y dylaiwyr cyhoedd ar gyfer argymellsal ymlog ei awdd er mlyneddol. Felly, yr cael ei ystafell wnaeth wnaeth yn cael eu cael'u wneud o'r gwaith bwysig ar hyn bendrach, ac mae'n gwneud i'ch ei wneud o'r gwaith bwysig o'r gwaith. Felly, mae'n bwysig a'r gwaith bwysig yn festu'r amgylchau gyda'r gwaith cases cyhoedd. Felly, mae'n tu pedw y peth bwysig ddaeth ygaf i John Pentland o'r cael peth o bwysig. Mae'r gwaith bwysig o bwysig o bwysig o bwysig o bwysig o bwysig o r kabinol ddau cymru ac mae Gwelthg perdreidwyr aysig yn ddullus i'r bynnag ienu ei ddweud mewn fyddon gweithio yma wrth gwrs. Felly hynny'r Cadw'r bynnag i himnwyr hwn yn yng ngwrdd neu'r dda 17 yma am gyfyrdd cyfwun i ddweud i gydweithio'r bynnwyr, ond ond mae'r gweithio hefyd yma yng Ngwyngwmp i'n gweithio'r bynnwyr hwn yn ei bwrdd. Gwelthgawaredd ac mae'n gweithio'r bynnwyr? Does the Committee-of-Doc show that? That's 346 against that amendment. Does it not agree? Questions at section 113 be agreed or are agreed? Questions at sections 114 to 116 be agreed or are we all agreed? Amendment 19, the name of the cabinet secretary group with amendments 99, 1-2-1 and 1-2. To the minister, please to move amendment 98. prettier than the other amendments in the group. 7. 11. 11. Subsection 12 of the bill provides that the Scottish Courts and Tribunals Service will will have the responsibility for paying the salaries for all the judiciary of sheriffdoms, including sheriff's principle, as well as for paying their expenses. This creates an anomaly in that the Scottish Government would retain the responsibility for paying the salaries and expenses of senators, whilst the Scottish Courts and Tribunals service will have that role for the other judicial office holders. To remedy this, amendment 98 inserts a new part and section into the bill to provide for the Scottish Courts and Tribunals service to be responsible for paying the salaries of senators. Amendment 99 provides a new power for the Scottish Courts and Tribunals service to pay senators' expenses. Amendment 121 is a consequential repealing section 9, subsection 5, judicial salaries of the Administration of Justice Act 1973 that charges the salaries of senators on the Scottish Consolidated Fund. Subsection 2 of the new section replicates this and so it isn't needed. Amendment 122 is a consequential repealing of the judicial officers' salaries, etc. Act 1952 provides for the expenses of high court judges on circuit and for sheriffs. It can be repealed in consequence of section 17 and the new section inserted by amendment 99. These amendments affect the administrative function of payment of salaries only. Determination of the level of the salaries of sheriffs principle, sheriffs and senators remains reserved to Westminster. I move amendment 98. I move amendment 98 to the delegated powers and legislative law reform committee's stage 1 letter of 11th March. The Scottish Government agreed that orders under section 2 1, which are to do with reorganising courts etc, should be subject to affirmative rather than negative procedure and amendment 123 provides for this. Amendments 100 and 101 make similar provision for orders under section 59, subsection 2 or 6 of the criminal procedure etc reform Scotland Act 2007, which deals with justice of the peace courts. I move amendment 100. Thank you. Nobody else has indicated they wish to speak and no minister don't want to wind up. The question is that amendment 100 be agreed to, are we all agreed? Call it amendment 101, the name of the cabinet secretary already debated. The question is that amendment 101 be agreed to, are we all agreed? The question is that section 117 be agreed to, are we all agreed? The question is that sections 118 to 120 be agreed to, are we all agreed? Call it amendment 102, the name of the cabinet secretary already debated with amendment 64. Thank you. The question is that amendment 102 be agreed to, are we all agreed? Call it amendment 103, the name of the minister already debated with amendment 64. The question is that amendment 103 be agreed to, are we all agreed? The question is that schedule 3 be agreed to, are we all agreed? Call it amendment 104, the name of the cabinet secretary and a group in its own minister. Please to move and speak to that amendment. Thank you. The Tribunals Scotland Act 2014 gives the Judicial Appointments Board for Scotland, JABS, the role of making recommendations to Scottish ministers for appointments to the new Scottish Tribunals. In addition, the courts reform Scotland Bill will give them the role of making recommendations for appointments to the new office of summary sheriff. Currently only JABS board members may participate in recruitment exercises. For Tribunal recruitment, the 2014 act gives JABS some additional flexibility. In anticipation of the increase in their level of work, JABS has requested a power to appoint people who will be able to assist board members with the recruitment process by, for example, interviewing candidates or sitting on JABS recruitment panels. The power will be available to them in all recruitment exercises, whether for the courts or tribunals judiciary. Amendment 104 provides the board with the power to appoint non-board members to assist it in carrying out its functions. In so doing, it provides rules as to what kind of person may be appointed and makes provision for any fees and expenses for those assistants to be determined and paid by the Scottish ministers. PowerGraph 13A deals with its appointment, and PowerGraph 13B enables its assistants to do everything that its equivalent board member can do, short of taking part in recommendation decisions. Where the board is making a recommendation in relation to a position in the Scottish Tribunals, the amendment also ensures that a member of the tribunals is involved in proceedings leading to that recommendation. Effectively, it is just about ensuring that the judicial appointments board is properly resourced to do the job that we are expecting them to do. I move amendment 104. Thank you. Nobody has indicated they wish to come in, nor that you wish to wind up. Therefore, the questions of amendment 104 be agreed to. Are we all agreed? Questions at section 121 be agreed to. Are we all agreed? Call of Amendment 135, the name of Liam McArthur, already debated with amendment 22. Alice in mute, not moving. Call of Amendment 105, the name of the cabinet secretary group with amendments 106 and 107. Minister, please, to move amendment 105 and speak to the other amendments in the group. Convener, this is a technical grouping of amendments which is consequential to the Judicial Pensions and Retirement Act part-time sheriff's dependency magistrate and justice of the peace order 2014, which will be fresh in committee members' minds, because it was before the committee in May, and therefore has only recently been agreed by the Parliament. Did that, you know, but I don't think that's going to happen. Are those amendments to remove provision from the bill in relation to the retirement age of part-time sheriffs, as equivalent provision has been made in the order? It also repeals provision made in the order about the retirement age of stipendary magistrates, as that office is being abolished by the bill. I move amendment 105. No members indicated they wish to come in and new minister don't need to wind up. Questions at section 105 be agreed to. Are we all agreed? Call of amendments 106, 107 and 108. All in the name of the cabinet secretary and the minister, I am pleased to invite the minister to move on block. Moved on block. Does any member object to a single question being put? I check here to the my right. The question is that amendments 106, 107 and 108 are agreed to. Are we all agreed? Call of amendment 109, the name of the cabinet secretary and the group in its own minister, please to move and speak to that amendment. Amendment 109 is a technical amendment consequential on the transfer of summary criminal appeals from the High Court to the Sheriff's Appeal Court. The effect of the amendment is to give the Sheriff's Appeal Court power to require the provision of legal aid and proceedings before that court, just as the High Court may presently do under section 25 of the Legal Aid Scotland Act 1986. I move amendment 109. No members indicated they wish to come in. Questions at amendment 109 be agreed to. Are we all agreed? You notice this? It's going on. I'm tricating everything. All in the name of the cabinet secretary and the group in its own minister to move and speak to that amendment. Section 112. Section 112 transfers the existing jurisdiction of the High Court to hear appeals and summary criminal proceedings to the Sheriff's Appeal Court. Amendment 110 makes consequential amendments to part 1 of the Criminal Justice and Licensing Scotland Act 2010, which ensures that the provisions of that part, dealing with sentencing guidelines and the publication of appeal decisions relating to sentencing, continue to operate correctly following that transfer. I move amendment 110. No members indicated they wish to speak. The question is that amendment 110 be agreed to. Are we all agreed? Call amendment 143 in the name of Alice McKinnon. It's already debated. Amendment 125. Can I remind members if amendment 143 is agreed to? I cannot call amendments 111 to 117. It's preemption. Alison, to move or not move. Not moved. I go to this. I now call amendments 111 to 117. All in the name of the cabinet secretary in all previously debated. I invite the minister to move these on block. Moved on block. Does any member object to a single question being put? No. The question is that amendments 111 to 117 are agreed to. Are we all agreed? Call amendments 118 to 122. All in the name of the cabinet secretary. I invite the minister to move these on block. Moved on block. Is any member object to a single question? The question is that amendments 118 to 122 are agreed to. Are we all agreed? The question is that schedule 4 be agreed to. Are we all agreed? Call amendment 123 in the name of the cabinet secretary. Already debated. Thank you. The question is that amendment 123 be agreed to. Are we all agreed? Call amendment 47 in the name of John Pinto. It's already debated with amendment 45. John, to move or not move. Call amendment 144 in the name of John Pinto. It's already debated with amendment 45. John, to move or not move. Call amendment 144 in the name of the cabinet secretary. 1, 3, 4, lame, please, to move amendment 1, 3, 1, and speak to the other amendments in the group? Thank you, convener. Many witnesses express grave concerns about whether the sheriff courts had sufficient resources to deal with the additional cases coming down to them and the provisions of this bill. As we know, a number of other pressures, either already on the sheriff court or being planned, 10 district sheriff courts have either been closed or in the process of being closed, and there's no guarantee that more closures will not follow. I understand that there are plans to direct more criminal cases to the sheriff court, and the sheriffs are to be given the power to impose longer sentences for these more serious cases. If indeed the requirement for corroboration is abolished, as the Scottish Government intends, more cases will come to the courts. Summary sheriffs are being introduced in this bill, but this will only be by appointment on the retirement of an existing sheriff. We have been told by the Scottish Court Service that it will take 10 years for the entire complement of summary sheriffs to be in place. 1.3.1.1.1.3.2 and 1.3.4 are linked to amendment 133, which we will discuss in the next section. Section 39 of the bill, which gives the sheriff courts exclusive competence over actions for under £100,000, and section 70, which introduced the simple procedure, will be enacted by an order of the Scottish ministers under affirmative procedure under this amendment. Those amendments are in effect a summarised clause. Amendment 134 specifies conditions that must be met before making the order. Those are that ministers must have prepared and laid before Parliament, a report demonstrating that sufficient provision has been made for staffing, resources, technology, courtroom space and judicial appointments to ensure that court users will have at least the same access of justice as previously. The reforms laid out in this bill will not work if they are insufficiently resourced. The financial memorandum to the bill was inadequate. It was criticised by the finance committee for being too reliant on third party estimates which Scottish Government officials were unable to justify. There has been considerable dispute about the accuracy of the estimates of a number of the cases that will transfer from the court of session to the sheriff court, and about the savings that were claimed in the financial memorandum, for example, to the legal aid budget. The committee itself expressed concerns that court fees may have to rise to pay for these reforms. It would therefore be eminently sensible to allow Parliament to be reassured that everything is in place to make these reforms work before enacting sections 39 and 70 of this bill. If the resources are not in place, our sheriff courts could be in chaos. I move amendment 131. Thank you very much. Any other members wish margots? Yes, I just wish to speak in support of this. There has been real concern about these proposals being adequately resourced and about the effect of the closure of the sheriff courts. In fact, we have passed something already today that is looking at affirmative procedure before another JP court can be closed. We have also passed amendment 104, which makes a new appointment to the judicial appointment board. For all those reasons, I very much support the amendment to Elaine Murray's name. No one else is indicated, minister. Amendment 131 and 132, in the name of Elaine Murray, would make the commencement of sections 39 and 70 subject to affirmative procedure in the Parliament. Commencement orders are not normally subject to any parliamentary procedure and such a provision would be very unusual. Amendment 134 would place another set of hurdles in the way of the commencement of sections 39 and 70 by requiring the Parliament to have approved a draft of an order under section 41 subsection 1 setting up an all Scotland sheriff court and to have considered a report on the resourcing of that specialist court before orders bringing the exclusive competence and simple procedure into force could be laid. I appreciate that the reasoning behind those amendments is to give Parliament an opportunity to consider whether the time is right to introduce the changes in visits in sections 39 and 70. Those provisions are fundamental parts of the reforms proposed by the Scottish Civil Courts Review, and it is legitimate to ask whether the sheriff court has sufficient resources to be able to assimilate and absorb both the casework that will be raised in the sheriff court rather than the court of session as a result of the raising of the exclusive competence of the sheriff court and the advent of the new simple procedure. However, the committee has already asked those questions and the Lord President, the chief executive of the Scottish court service and sheriff principal Stephen have all given evidence to the effect that plans have been made and resources have been allocated, so it is difficult to avoid the conclusion that the result would simply be that the opportunity would be used to entirely rerun the arguments. It would be in no one's interest to commence the provisions of sections 39 or 70 before the time was right, but I would suggest that the question does not require to be debated further in Parliament before the relevant sections are commenced. The arguments for reform have been made eloquently in the Scottish Civil Courts Review, and the matter has been extensively debated before the committee. In relation to the report that was required by amendment 134, I would remind the committee that under the Judiciary and Courts Scotland Act 2008, which was passed unanimously by this Parliament, the Scottish court service is now an independent, judicially led corporate body that runs the Scottish Courts. Under section 2, subsection 2 of the act, it is the Lord President who is responsible for making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts, not the Scottish ministers. If a report on staffing, resources, IT, court capacity and judicial capacity were to be desired, it would therefore be for the Lord President to provide it. In fact, no such report is required, as the committee has already heard evidence from the Lord President and the chief executive of the Scottish court service, and both have confirmed that the resources are in place, that there is capacity in the sheriff courts and that the reforms will permit the courts to work more efficiently. The Lord President said and I quote from the work that has been done by the Scottish court service and the Scottish Civil Justice Council, that I am absolutely satisfied that the reforms can be adequately funded. They are part of the long-term planning of the Scottish court service, end quote. The chief executive of the Scottish court service highlighted that, in fact, sheriff courts face less pressure today than two years ago due to a general downward trend in demand for civil court services. The Lord President also told the committee that he was absolutely certain that the capacity exists in the sheriff courts to absorb all the business, even with the closure of the outlying courts. He also said that he was confident that the proposals would ensure that civil actions could be dealt with in one diet unless there is some special reason not to do that. Sheriff Principal Stephen told the committee that the proposed reforms would allow the courts to work more efficiently, thus freeing up current resources. She also highlighted that if the bill is passed, cases will start in the sheriff court and there will be a gradual build-up of the volume, adding that there will not be a tsunami of work to sending on the sheriff court. That point bears repeating that many have spoken of a transfer of business from the court of session. I have used that shorthand myself, but the bill will not transfer existing cases from the court of session to the sheriff court. All it does is provide for the future and the build-up of work in the sheriff court will be a gradual one, taking place over time as new cases are raised. There is therefore simply no need for a report to be done before commencement, either into the sheriff courts generally or the new specialist personal injury court in particular. I would ask the member to withdraw her amendments. I listen to what the minister has said. However, it is still in and I accept it as unusual to have a sunrise clause in a bill. However, the financial memorandum many of us felt was inadequate. A number of witnesses raised concerns about that. There was conflicting evidence. There was evidence, obviously, from those concerned with the Scottish court service to say that everything was going to be fine, but we were not actually told what the plans were, just that they were in place. Although the court service may be responsible for running the courts, we are responsible as a Parliament for passing legislation and for passing legislation that can be implemented effectively. This allows us to again scrutinise whether or not it is possible for it. It may well be that we get our reports that, yes, everything is in place and we can demonstrate that everything is in place. In which case, I'm sure, we'll all say fine that these sections can go ahead. However, I am not yet convinced that these will not be enacted before the sheriff courts are able to cope with them, and I intend to press them. Thank you very much. The question is amendment 131. We agree to or we all agree. There will be a division. Those in favour, please show. Those against, please show. That's 4, 4, 5 against that amendment is not agreed. Call amendment 37, the name of Lane MacArthur, or ready to wait with amendment 22, Alison, to move or not move. Not moved. Call amendment 132, the name of Lane Murray, or ready to wait with amendment 131, move or not move. The question is that section 122 be agreed to or we all agreed. The question is that sections 123 to 126 be agreed to or we all agreed. Call amendment 133, the name of Lane Murray and a group in its own. Elaine, pleased to move and speak to that amendment. Amendment 133 requires ministers to report annually to Parliament on the functioning of this act. This report would contain information on the number of types of cases dealt with by each of the Scottish courts, average length of time taken to dispose of each type of case and the provision made for staffing, resources, technology, court room space and judicial appointments. This will enable Parliament and this committee to monitor the way in which the act is working. It would provide a degree of post-legislative scrutiny and I would, I believe, assist with the annual budget process by indicating whether additional resources are required or indeed whether and where savings have been made. It would allow Parliament to assess, for example, whether the privative limit has been set at the correct level. This provision could easily be repealed in future legislation if Parliament considered that such reports were no longer required. However, I believe that this would provide an important safeguard during the period when these reforms are coming into effect. Now, therefore, move amendment 133. Can I appreciate the reasons behind amendment 133 in the name of Elaine Murray? However, it is unnecessary. Section 67 of the Judiciary and Courts Scotland Act 2008 requires that, as soon as practicable after the end of each financial year, the Scottish court service must prepare and publish a report on the carrying out of its functions during that year, which is sent to the Scottish ministers with a copy of the report to be laid before the Scottish Parliament. The 2008 act rightly places on the Scottish court service the responsibility of preparing an annual report and not on the Scottish ministers. If the Scottish ministers were asked to also put a report before Parliament, it would simply replicate what the Scottish court service was already doing. For this reason, I ask Elaine Murray not to move her amendment. I am prepared not to move the amendment at this point, just to look into the issue about whether it should be the Scottish withdrawal of the amendment, to ask to leave to withdraw the amendment at this stage in order to consider the point that the minister has just made in regard to whether it should be the Scottish court service rather than the Scottish ministers. If the member is asked to withdraw it, I take it that's allowed. Right, that's that one gone. We're nearing the end of this marathon. Call amendment 134 in the name of Elaine Murray. I already made the amendment 131. Elaine, move or not move? Not move, it's a consequence. Questions at section 127, we agree to, are we all agreed? Questions at section 128, we agree to, are we all agreed? The question is that the long title will be agreed to, are we all agreed? And that, in stage 2 consideration of the bill, can I thank the minister and officials for attending today? And can I tell members our next meeting is on 24 June when we'll consider, excuse me, four negative SSIs, two new petitions on police and fire control rooms. And I thank members for their tolerance of the heated, which has nothing to do with us this time, the heated atmosphere. That's it.