 Felly, os yw am ydych chi'n iaith am y gwaelfaeth o'r g aztas panes y cwestiynau yma? Rydych chi'n digwydd â'r Gwestiynau? Ni'n gwaelfaeth eraill yn gyffredinol, chi'n gwaelfaeth, Cyngor yn cyflawn i gylagol ei boblau, yr hyfforddiadwch nhw dyma. Mae'r cyngor maen nhw wedi cyflawni'n cywmdraethu. Rydyn ni'n rhiwm iaith, wrth i hyfforddiadwyno'r cymser maen nhw o'r cyflawni'r cyflawni gan gweithio am fy算 pan yw'r gweithio cyffredinol yn ei gweithio ar gyfer gyfosir. Mae'r ddefnyddio ychydig yn ymgareddol. Yn y gweithio, mae yna cerddau yng nghymru yma, ac mae'r aelod y Cymru yn unigol yma, ac mae'n meddwl i'r cerddau. Mae'n meddwl i'r cerddau yn yng nghymru yma, ac mae'n meddwl i'r cerddau. Mae'n meddwl i'r cyfrifio a oedd yn cael ei gweithio ar gyfer y dyfodol, ac mae'r cyfnod o'ch leisiad o'i efo'r ffiyddio mewn cyf shrine o'r llyuns, a'r cyfnod o'i rhid minsiau ar gwn i gael y byddau o hyd. Byddwn i yo. Rwy'n nhw'n tro i ddaf ni'n ddweud yr ysgrifennu. Nid yw ysgrifennu cwmbrant, ydw i i chi'n mynd o'r gweithio. Rwy'n nhw'n gweithio ysgrifennu'n ar y teimlo i ni wedi bod ddiweddol â'i hynny oed. Ddwy'n gweithio'n. I'm calling amendment 22 in the name of Liam McArthur, a group with amendments 35, 36 and 37. I understand that Liam McArthur's unable to attend today but Alison McInnes will move and speak to these amendments. Alison, pleased to move amendment 22 and speak to the other amendments in the group. Thank you very much, convener. I'm speaking to this group of amendments as you say in the absence of my colleague Liam McArthur. He is sorry that he can't be here but yn Malawi this week, with the Commonwealth Parliamentary Association, as part of this Parliament's continuing links with the country. My colleagues Liam McArthur and Tavish Scott and myself are concerned about the impact that the proposal to abolish the position of honorary sheriffs will have upon local justice, particularly in their northern islands constituencies, but also anywhere else where there is only one permanent sheriff. I note that the committee report did touch on the concerns that they had round about this particular provision in the bill. We think that honorary sheriffs are imperative to the delivery of justice in such rural and remote areas that afforded the same power and competence as a full sheriff. They are ready to lessen the impact of the absence of the resident sheriff and take decisions that are required as a matter of urgency, often out of office hours. However, the policy memorandum notes that there may never be enough work for a summary sheriff and sheriff, so there may never be a summary sheriff deployed in some remote areas. For places such as the islands, there is little certainty on where the nearest summary sheriff might be based, so this section, as it stands, could therefore further erode locally delivered justice. Amendments 22 and 35 would remove the provision of abolishing honorary sheriffs. That is supported by the Law Society of Scotland, which believes there may well remain a need for honorary sheriffs in rural areas. Given that they are unpaid, that would not have any financial implications. Alternatively, if the Government is unable to support the removal of the clause completely, I would urge them, at least, to support amendments 36 and 37, which would make the commencement of those provisions subject to the affirmative procedure delaying the abolition of the Office of Honorary Sheriffs until the Parliament is confident that robust alternative judicial arrangements are in place, and that would provide a safeguard against ministers simply asserting that the conditions for the abolition of honorary sheriffs, for example appropriate technology, have been met, and I would urge Members to support my amendments. Can you move amendment 22? Anyone else wants to speak on this? Nope. Cabinet Secretary. Thanks. Amendments 22 and 35, in the name of Liam McArthur, supported by Toivy Scott, would emit section 26, which abolises the Office of Honorary Sheriffs and retain the ability of sheriffs' principle to appoint honorary sheriffs. Amendments 36 and 37 also as mentioned seek to make the commencement of section 26, subject to affirmative procedure. The Government recognises the contribution that honorary sheriffs have made to the justice system in rural, remote and island areas, particularly in view of the fact that the position is unpaid, and I can readily appreciate the role which honorary sheriffs have played in Orkney and Shetland over the years. Honorary sheriffs perform urgent shreval functions such as a custody court in the absence or possible illness of the resident sheriff. At present, honorary sheriffs have the same powers and competence of a full sheriff, even though there is no necessity for them to be legally qualified. Many are former sheriffs or solicitors, but some are not. The policy of the bill is, however, to abolish the position of honorary sheriffs. The use of honorary sheriffs was criticised in some consultation responses, and their abolition was supported by some stakeholders, including Scottish Women's Aid. It is considered that the need for honorary sheriffs will reduce and then disappear completely due to the advent of the new summary sheriffs, and also as a result of the greater use of technology such as video links to remote locations. I understand that some business in Stornoway has already been dealt with in Inverness via video link. It is also desirable that Scotland should have a fully professional, legally qualified judiciary, and Lord Gill gave evidence to that committee. I quote, The honorary sheriffs have fulfilled a need, particularly in outlying courts, but in a modern judicial system, all judicial work should, wherever possible, be done by professionally qualified and properly trained sheriffs. He went on to say, however, that there is a value to be had from the services of honorary and outlying courts, and I imagine that, over time, the need for those services will steadily diminish, because with the increased flexibility that will have through the use of summary sheriffs and the ability to deploy summary sheriffs over a wide area in between courts, the need to bring in honoreys at weekends, for example, would be much less. Abolition will be delayed until alternative judicial arrangements are put in place, and this may take some time as it envisies that summary sheriffs will be introduced gradually. It should, however, be possible to extend video links to a greater number of remote and rural courts more quickly. Amendments 36 and 37 would make the commencement of section 26 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. I appreciate that the reasoning behind amendments 36 and 37 is to give Parliament an opportunity to consider whether alternative judicial arrangements have been made and whether appropriate technology has been installed. The Government will work closely with SCS and the Lord President to ensure that we are content that the appropriate alternative arrangements are in place before the Office of Honorary Sheriff is abolished and amendments 36 and 37 are unnecessary, and it would ask the member to continue withdrawing these amendments, given the assurance that have been made that these are over at some particular period of time and that alternative arrangements are also being ensured. I hear what the Minister says, and I recognise the importance of ensuring that services across the whole of Scotland are over peace. However, I think that it is important for this Parliament to have the assurances that we are speaking in. I will press the amendments. The question is that amendment 22 be agreed to. Are we all agreed? Those in favour, please show. Those against, please show. There are no abstentions. That is 346 against. That amendment is not agreed. I now move on to the question that is at sections 27 to 38. Be agreed to. Are we all agreed? Thank you. I call amendment 1 in the name of the Cabinet Secretary group with amendments 2, 3, 4, 20 and 19. Cabinet secretary, please to move amendment 1 and speak to the other amendments in the group. Thank you. Amendments 1 and 2 in this grouping are technical amendments, which respond to a point raised by the Dean of the Faculty of Advocates when he wrote to the committee on 16 April in relation to the application of the exclusive competence limit by section 39 of the bill. The learned Dean suggested that the present drafting leaves room for doubt as to whether the exclusive competence limit relates to the value of each individual order sought, or whether it relates to the aggregate total value of such orders. Amendments 1 and 2 remove this doubt by providing that it is the aggregate total which applies. So, if someone seeks two orders, one of which is for payment of £200,000 and another for payment of £6,000, the addition of the crave for £6,000 will not have the perverse effect of requiring an action which clearly has a value in excess of the exclusive competence limit must be brought in the share of court. Section 89 of the bill permits remits of cases from the court of session to the share of court where the judge assesses that the value of the order sought is likely to be less than the exclusive competence of £150,000. It is therefore necessary to amend section 89 to take into account the changes made to section 39 by amendments 1 and 2 in relation to how the value of an order or orders are assessed so that section 89 operates under the same principles. Amendment 19 and 20 make the appropriate amendments. Amendment 3 is a technical amendment which is consequential on amendments 19 and 20, since these amendments introduced the term inverted commas, order of value closed inverted commas into section 89. The definition of that term in section 39 subsection 6 needs to apply also for the purposes of section 89 and this is what amendment 3 achieves. Amendment 4 amends the existing power of the court of section and subsection 7 of section 39 to ensure that it has the power to make acts of sedent governing the way in which the value of an order or the aggregate total value of orders is to be determined in a move amendment 1. Any other members wish to speak? Roddy Campbell? Just briefly, I welcome the cabinet secretary's proposed amendments. I think they deal well with the situation where there might be multiple financial claims but where one of those claims is less than the exclusive competence limit. I welcome the amendments and say that I'm also pleased to support them. I take it, cabinet secretary. I don't wish to wind up. Question is amendment 1. We agree to, are we all agreed? Yes. Call amendment 38, the name of Roddy Campbell in a group in its own. Roddy, to move and speak to the amendment, please. Thank you, convener. Can I just refer to my register of interests, a member of the faculty of advocates? Just moving on from the last amendments which we voted on, I still think there might be a problem in cases where the real purpose is something other than an order of value such as a reduction contract or an interdict of a wrong which is coupled with a claim for value which is less than the financial limit. One way around this and to avoid the necessity to have potentially multiple legal proceedings is really why I have framed the amendment in the way I've done but I'm more than happy to listen to the cabinet secretary's views on that point. You must move it first, please. Can I move that amendment? Yes, thank you. Anyone else wish to come in at this stage? Elaine Murray. I've got a lot of sympathy for the amendment. Again, like Roddy Campbell, I'm interested to hear what the cabinet secretary has to say and whether or not the previous amendments actually take out the need for this amendment but I think in the principle of the amendment I certainly would be very supportive of cabinet secretary. Rodd, grateful for Rodd for raising this and hopefully I can clarify for him and Elaine Murray. Amendment 38 would have the effect that the exclusive competence of the sheriff's court would only apply where the only order sought was an order of value. That is an order for the payment of money or an order determining rights in relation to property. Section 39 gives the sheriff exclusive competence in any civil proceedings in which an order of value is sought which does not exceed 150,000. This is the consequence in proceedings in which a number of orders are sought. For example, orders for reduction, interdictor declarator, as well as an order of value than notwithstanding the nature and significance of the other order sought if the order of value is less than 150,000, the case must be heard in the sheriff's court. Roddick Campbell's amendment would mean that it would only be cases where only an order for value is claimed would be subject to the exclusive competence limit of the sheriff's court. It's not difficult to imagine that parties may seek to avoid the effect of the new exclusive competence limit by simply adding an extra crave or request to the court in addition to the claim for an order for value. In this way, the 150,000 limit would be avoided. For example, if one had a claim for contractual damages of 25,000, the exclusive competence limit could be avoided by adding a claim for reduction of the contract. This would enable parties to frustrate the policy behind the exclusive competence. Roddick Campbell's amendment would simply provide a way of avoiding the new exclusive competence, which I would remind committee members is intended to ensure that the resources of the courts are used efficiently. I can understand where the member is coming from, but it is for that reason that, as I say, I would ask him to withdraw his amendment. Secretary has had to say, I'm happy to withdraw my amendment. The amendment wishes to withdraw my amendment. Are you content? Thank you. The question is, but it's not. Call amendment 2 in the name of the cabinet secretary, a resident based amendment 1. Cabinet secretary to move formally. Moved. The question is amendment 2. Be agreed to. Are we all agreed? Call amendment 39 in the name of Roddick Campbell, group with amendments 24, 40 and 23. Can I draw committee members' attention to the preemption and direct alternatives? I point out that, if amendment 39 is agreed to, I cannot call amendments 24, 40 and 23. They are preempted. I hope he's taking notes on this. I point out that amendments 24, 40 and 23 are direct alternatives. Don't ask me to explain it again. Roddick Campbell first to move amendment. I'll do it again. No. Does that mean that if amendment 24 is passed, then the other two fall? If amendment 39 is agreed to, I can't call 24, 40 and 23. What I'm interested in is... Because they are direct alternatives. Yeah, because if, say, 24 was agreed to, I'm going to say... Yes, these are being explained to you. And you are getting it wrong. Right. We'll start again. I should have had a bigger breakfast. We understand the preemptions. Amendments 24, 40 and 23 are direct alternatives, therefore they can be called. Even though when it's been... Say, 24 was passed, there would no longer be £150,000 in the bill. Yes. And you can still call them. Right. I think you should. Would you like to sit here making it a lot easier for me? Are we all happy now? Right. I've lost my point on... Sorry, sorry. I'll go back to the beginning. Roddie Campbell, please, to move amendment 39 and speak to the other amendments in the group. Thank you, convener. First of all, can I just apologise to members of the committee who might be slightly confused by my amendment? But if I can clarify, this amendment's not really about the limits which we're about to discuss. It's really about the focus on whether commercial non-personal injury cases should be considered in exactly the same way as personal injury cases. I can refer to another history of fair court reform. In the GIL review, as far as I can see, there was no real discussion about different privative limits, the different types of claim. However, paragraphs 104, 105, 131 and 132 in chapter 4 of the review certainly dealt with statistics of business in the general department of the court of session. It's notable that paragraph 105 picked up that in the initial audit there were very few commercial cases, so a different audit was then carried out. And the final statistics showed that 49% of cases of commercial cases contained a conclusion for more than 150,000 and only 9% contained a conclusion for less than 50,000. So, at the end of the day, we move on to the situation where approximately 26% of commercial actions would be transferred to the sheriff's court in accordance with the draft bill's provisions. So, the policy memorandum and the financial memorandum obviously take the GIL review forward. It's noticeable that the financial memorandum has scenarios reflecting different scenarios for personal injury cases shifting from the court of session, but there is no scenario as to the impact on non-personal injury cases. So, the information we really have is that about 700 cases would be transferred if the exclusive competence limit was kept at 150,000. We know to questioning from myself to Eric McQueen, the Scottish court service that there is in fact no geographic breakdown as to where these transferred cases might come from. So, in effect, we have very little information about the impact of these changes other than what's actually said in the GIL review. I've no doubt that there are disproportionate costs incurred in commercial cases, as well as in personal injury cases, but at six figures, I would have thought that cases where there are disproportionate costs incurred are not particularly numerous in numbers. And I certainly believe that there are reasons why some of these cases end up in the commercial procedure in the court of session in the first place. I do feel that some of the arguments that we're hearing have been really, as a result of the necessity to fix the personal injury problem, if I put it that way. More importantly, although the bill provides for the possibility of a specialist national commercial sheriff's court, there are no plans in the short term to that degree to set up a national commercial sheriff's court. Indeed, also, if you then consider the argument that there is the possibility of specialist sheriff's hearing matters locally, Lord Gill did in fact say on the 22nd of April that specialisation will be heavily concentrated in major courts in the cities. That's at paragraph 4530 on 22nd of April. So whilst I accept also Sheriff Principal Taylor's argument that the evidence was that commercial cases were heard and dealt with properly in Glasgow Sheriff's Court, I don't think it quite deals with the point I made at the stage one debate about cases in Wick and Stranraar. So whilst I accept what's been said about capacity in the evidence to the committee and that these cases will no doubt be able to be heard at various courts throughout Scotland, I do have concerns as to whether, particularly in remote areas, they're going to quite provide the access to justice for some people that might be provided in the cities. We're obviously going to hear a debate coming on on the appropriate jurisdiction limit for personal injuries. I don't want to get too drawn on that for the moment. I'll listen carefully to what Sandra and the others have to say on that. But I would just invite the Government to consider this position further and also to consider what further information might be provided on the impact of whatever limits are agreed before stage three. I move that amendment. Thank you, and I take you don't want to speak in the other amendments in the group from what you've said. Thank you. Sandra, I'm quite pleased to speak to amendment 24 and other amendments in the group. Thank you very much, convener, and can I thank Roderick Campbell for his explanation on amendment 39? It does start off by saying confused, but I think you have clarified for a number of us exactly what the amendment is looking to do, or maybe probing to do, obviously regarding the pestle injury and the sheriff court system as well, regarding commercial injury courts. Can I speak to amendment 1423, which is a new... Have you spoken to amendment 24 yet? Did you want me to speak to that first? That's your one. Yes, I can speak to it after, though. I just wanted to... Up to you. Absolutely. I'm just fair to go down that way, first of all. Thank you very much, convener. Alison's and Elaine's amendments, basically. I do think of too low a threshold for the limits selected, for example, 30,000 and 50,000. The reforms that we're looking at will not be delivered. The reduced cost and great efficiency, I don't think, will be delivered also. And I also believe that the case for the new specialist pestle injury court, which is supported by the STEC, would be undermined if we went down to such a lower figure. So that's my comments on amendments 40 and 23. To speak to my own substantive amendment, convener, amendment 24 proposes an increase in the exclusive competence of the share of, quote, 200,000 rather than 150,000, which was suggested by Lord Gill and the Scottish Government. I think we have heard lots of evidence at this committee from stakeholders who have suggested that 150,000 is too high. We need to recognise that, I think, and that's why I propose that we lower the limit to 100,000 pounds. As I mentioned before and speaking to the other two amendments, a limit of 50,000 or 30,000 will not deliver the changes to vastly improve the civil court system. And I think we should remind members also that the Scottish Government was under Labour at that particular time, Cathy Jimison. They asked Lord Gill and his team to do this. And look at that. They were asked to produce an independent report to improve access to civil justice by reducing the cost of litigation and reducing delays. And, as I said, their advice was to raise exclusive competence to 150,000. I think the whole point is that the system has to be improved and should be improved for people who need to use it. A lower limit, as been proposed earlier, is not going to do that. Too many cases will still continue to be raised in the Court of Session. And I think that will just clog up that court. The Court of Sessions should be dealing with complex cases, such as bestosis cases. And we've heard about that at this committee also. And I think with this amendment, personal injury cases below 100,000 will get their own specialised personal injury court, or they could even be dealt with local sheriff courts by specialist sheriffs. And I think this is surely an improvement on the current system that we have. And we would give stakeholders such as Clyde side action more options to meet the needs of their members to settle their claims swiftly and, I think, effectively. And a move amendment 24. We don't need to move it. Order, to move it. Alison, please, to speak to amendment 40 and the other amendments in the group. Hi, thanks, convener. Amendment 40 would decrease the proposed privative jurisdiction of the sheriff court to £50,000. I think we're probably all agreed that the current £150,000 limit sets the bar far too high. It is a very significant leap from the existing £5,000 threshold and would be considerably higher than the equivalent limit elsewhere in the United Kingdom. My amendment to instead increase the privative jurisdiction of the sheriff court to £50,000 is supported by the Law Society of Scotland and it would bring Scotland broadly in line with England and Wales. I believe that this would go some way to allying the concerns of many organisations regarding the automatic right to council, the impact on the bar and the possibility of attaining early and efficient settlement of cases. This bill is an opportunity for us to ensure that disputes are litigated at the most appropriate level with low-value litigation predominantly removed from the court of session. The committee has been presented today with a number of options on how best to achieve this, but in closing, I would note that our deliberations on the appropriate limit have been hindered by the Scottish Government's inability to provide robust evidence in support of its proposal, something that has been widely criticised and that would of course have been evidence that could have helped us in our consideration of these alternatives today. Thank you very much. Elaine Murray, pleased to speak to me. Thank you. Thank you very much. Thank you. Thank you very much. Thank you very much. Excuse me. The stage 1 report of the Justice Committee considered that the preventive limit of £150,000 was too high. We heard that it constitutes a 3,000% increase in the current limit. It's five times the limit in Northern Ireland, three times that in England and Wales for personal injury claims and six times for other claims. The increase was criticised by the STUC, the EIS, the Scottish Police Federation, Clyde-Tide Action and Investors, the Association of Personal Injury Lawyers, the Faculty of Advocates of the Law Society of Scotland, to mention just a few. My amendment 23 is supported by the Faculty of Advocates and proposes the limit of £30,000 and I will go through how that has been arrived at. The argument is that the figure of £150,000 was based on a week analysis in the GIL report of old and limited data, 93 cases over a three-year period, representing less than 1% of cases. The Faculty of Advocates and the Association of Personal Injury Lawyers have conducted two separate and more robust analyses of a total of 1,001 cases over 2011 and 2012 and these figures were provided for me by the gentleman whom the Cabinet Secretary referred to as the learned dean so hopefully he would have some confidence in the figures he has provided to me. This demonstrates that a much lower limit would achieve the aims of the GIL review. Indeed, at 70% of all personal injury cases settled for 20,000 or less and 80% for less than 50,000. The two analysis suggests that a limit of 100,000 would leave only 13% of personal injuries with the court of session. If the intention is to retain 20% of cases in the court of session, the privative limit needs to be between 30,000 and 50,000. 30,000 is a compromise which would bring Scotland into line with Northern Ireland. Although the GIL review considered cases worth 150,000 to be quote of low value, this sum is more than the average annual wage and the limit of 30,000 would allow people resident in Scotland with serious life limiting injuries to access the court of session and to have the benefit of advice by council. It will help to ensure equality of arms in more serious cases as most insurance companies will be in a possession to afford to instruct council and the proposal will not incur costs to the public purse as most personal injury cases are pursued on a no-win-no-free basis. I asked representatives from organisations arguing for a lower limit for examples of cases where the proposals in the bill would have disadvantaged clients and I'll briefly run through some of these examples by way of illustration. It's why victims need these limits to be substantially reduced and we're not talking about victims of crime here but we are talking about victims of injustice and just as a such as industrial injury or accident at work. May this year a mother claimed for the loss of her 19-year-old son she was awarded £86,000 by the court of session and comparison with similar cases in the sheriff's court suggests that if the case had been taken there the award would have been around half of that sum. Last month also a school girl injured when a bus she was travelling and was blown over was awarded £30,000 by a jury in the court of session against a bus company. This again was a complex case which was won for her by an experienced advocate. Three cases brought to the court of session 2010 against the MOD by parents who had lost sons who were servicemen in the Nimrod clack crash in 2006 resulted in awards between £90,000 and £100,000. The parents would in all likelihood have received considerably less in the sheriff's court possibly as little as £15,000 or £25,000. A wood worker who contracted nasopharyngeal cancer due to wood dust exposure in what was an extremely unusual case lost several years' pay and he was awarded less than £150,000 by the court of session but if he had not had specialist representation in the court of session for what was a very rare case of a catastrophic injury he probably would not have received anything at all. So the privative limit to my view must be substantially lowered for a number of reasons. The calculation on which £150,000 is based have been proved by analysis of data from two independent sources to be incorrect. The number of cases likely to be retained by the court of session will be too low to maintain experience in that court or to provide adequate opportunity for the training of young advocates. The high privative limit would also have consequences for commercial cases and I have shared some of Roddy Campbell's concerns about this because the bill does not propose a specialist commercial sheriff court. Businesses would be therefore offered the choice in having cases arise to value less than £150,000 heard by sheriff who in many parts of the country, as Mr Campbell has said, may not be a specialist commercial sheriff or writing into their contracts at any disputes will be heard under English law where cases above £25,000 can be heard in a high court. It is also the very important issue of equal access to justice. Most people earn well under £30,000 and significant levels of personal injury could result in claim for much less than the privative limit but rather than just being low value cases they may still involve catastrophic injury with life changing consequences. They may also be complex and require specialist representation. The bill as it stands risks creating greater inequality and the privative limit must be substantially reduced in my view. I am providing a limit of £30,000 but if the discussion appears that the committee would prefer the limit that, as McInnes is proposing £50,000, I would be prepared to support that with the so long as we can actually reduce this limit because I seriously believe that it must be reduced. I am looking forward to hearing the views of committee members in terms of whether or not I press my amendment or we go for lessons. John Finlay then John Finlay Thank you convener. I think there is sometimes a difficulty looking at one section in splendid isolation and I have to say at my intention is to support Sandra's amendment and that is not a position I would necessarily have thought I would have found myself in at the outset. I have sought to understand the wider implications of this and the percentage shift of workload I think is important of the whole process is to work this part of the wider package. I do not recognise some of the stuff that Elaine says in relation to low value. I certainly would not be party to anything I thought would disadvantage any victim be it a victim of whose issues would be dealt with by the criminal court or the civil court. And I think there are aspects of reassurance that people would quite understandably seek regarding representation that can and then hopefully are going to be dealt with elsewhere. So I am reassured that we can get everything that I think many people would seek. If I say that I am always minded to follow the STUC's position on that. And this is not an issue that they are now concerned with. They are relaxed with the proposal that has been suggested with Sandra. So that is a position I will be adopting. 150,000 limit really is too high. The question is where do we base the threshold? I am not persuaded by the 100,000. Again, there is a real lack of any empirical evidence to support why it should be 100,000. Nor am I persuaded by the argument that personal injury cases and people like Clyde asbestos action would be really pleased with 100,000 threshold rather than having the opportunity to take their case to the court of session where of course council is guaranteed and there is inequality of arms and representation. I am attracted by Alison's proposal of 50 which I think is a consequence though I have to say if that fails I would most certainly for support Aileen's for 30,000. And I am very concerned about some of the cases and the evidence that she's brought to committee today. And there is an argument here I think convener for taking more evidence on this very, very important issue which affects access to justice. So I'm happy to support Alison's 50 which would give parity with England and Wales and avoid any unintended consequences of the different levels there. That failing then I certainly would support Aileen Murray's a menu. I'm going to take Christian first on myself and then I'll have you with your point of information. Yes, Christian. Thank you convener. I just wanted to make my point clear after the debate and after the committee has stage one that I'm not the only one thinking that 150,000 is the right way to have this limit at other examples like organisations like which and Citizen Class Vice Bureau did say they're very relaxed with 150,000. Not only this but they thought that 150,000 what was the best way to address this court reform particularly if cases coming before the new personal injury court are limited. The specialism of the court will be on the mind sell on wood of cars Sheila Clarke of which did say that it was about proportionality in the system which is what consumers require when it comes to access to justice and Lord Guild and so Sheriff Principal Teller made it very very clear but 150,000 is what they thought was the best way to address that change in the court's reform and making sure that all reform are working and are working properly. I'm quite disappointed that a lot of the members are thinking that 30,000 or 50,000 pounds will not cause a lot of damage to the spirit of the bill but I will go down to 200,000 pounds I think in and I will encourage every members to to back the 100,000 pounds that Central White that Central White have brought forward even if I would have preferred it to stay at 150,000 and regarding Ellen Murray examples a kind of thing and we heard that during the evidence that most of these examples anyway will go to the court of session because we have very complex cases like Ellen Murray said and complex cases whatever the value of them attached to them will have to go to the court of session and we will go to the court of session and I'm quite reassured by that. Yes I have to say I didn't quite I think it's important John Finlay what you said about later sections that are coming up because we have to embrace it all together and that we will as you have said Christian they'll still be remit the court of session and what kind of test the committee field should be applied there whether it's the bill as lodged or with amendments and similarly with availability of council I think that's an issue this is perhaps a problem at stage two that we'll see how these mesh together after stage two I would say to Ellen Murray I don't know how she got the figures the contrast between the share of court awards and the court of session awards because unless a case is actually tested at a proof how can you have such a disparity now I'm happy to hear if there's some academic research or you know where these differences came because you make quite substantial claims of huge differences in award at the court of session to an award at the share of court and I didn't know where that had come from they were provided to a member from a QC they may have been provided by a QC but what was the evidential basis for it you know I mean we have to look at and the only thing that tells you at the end of the day what a court will award is what a court awards and in my view any court looking at the even a sheriff sitting on his or her own will look at previous cases and looks at the awards they would not be so far out because if they were so far out there would be an appeal to the sheriff principal so that kind of I just wondered about that that's just my comment by way of that so I think the difficulty is I'm sympathetic to 100,000 currently when we see how the rest of the bill pans out at the other sections with availability of council remit to the court of session those tests which are very important to make sure that complex cases do not remain in the sheriff court but are in an easy way put forward to the court of session and where QCs will be available and testing is specific and perhaps novel areas of law or even of difficulties and evidence Roddie, you'd a point of information Just picking up on what my colleague Margaret Mitchell said about the position in England 50,000 limit technically I think the position in relation to non-personal injury cases money cases in England was changed by statutory instrument on the 22nd of April and the limit in England for the non-personal injury cases is now 100,000 About the other cases? It remains at 50,000 Thank you, that's it so thank you for the point of information and I'll now ask the cabinet secretary for your comments please Well thank you and I was grateful to Rodd Campbell for that point of information discussions that the Lord President had indicated that to me With regard to his amendment I think it's clear to us that there is a desire and it was mentioned in the civil court's review to see whether specialisation can take place Aberdeen is getting a new commercial in civil centre the bill allows the Lord President to designate categories of specialisms so that opportunity is there that's why I'm happy to say that I think the Lord President and the Civil Justice Council will reflect upon that but I do think that his current amendment would ensure that personal injury cases of 150,000 or less may only be raised in the share of court but in other cases the limit would be 100,000 this would have the effect of setting the bar higher for personal injury cases and other cases to be able to raise in the court of session so I don't support this amendment although it could be said that the amendment goes through the grain of our policy to return low value personal injury cases to the share of court including sending many cases to the new specialist special injury court we said in our stage one response that we do not consider appropriate to introduce different exclusive competence limits for different type of cases but specialisation will be for the SCJC figures from the Scottish court service in 2011-12 show for example that there were only 146 commercial cases in the court of session so given that relatively few cases would be affected we don't think there's a case for different limits Sheriff Principal Taylor said in 22nd April in his evidence that many actions for considerably more than 150,000 are raised in the commercial court in Glasgow Sheriff Court amendment 24 in the name of Sandra White will ensure that cases of 100,000 or above may only be raised in the court of session this would have the effect of lowering the exclusive competence limit on the face of the bill from 150,000 to 100,000 as the minister said when she gave evidence to the committee in 29th April we were listening to stakeholders on this issue and while the committee has heard from organisations such as which who support 150,000 limit many of those who appeared in front of the committee thought that 150,000 was too high a figure for the exclusive competence and this point was highlighted to a lesser degree during the consultation of the bill we have had recent discussions with the STUC who also voiced concerns about the appropriate level of the limit taking all of this in board I think that this amendment strikes a balance between the original exclusive competence figure of 150,000 suggested by Lord Gill and the views of certain stakeholders while still being able to deliver the more efficient and affordable system intended by the Scottish civil courts review and I'm happy to support this amendment amendment 40 in the name of Alison MacKinnis will ensure that cases of 50,000 or above may only be raised in the court of session and amendment 23 in the name of Elaine Murray ensures that cases of 30,000 or above may only be raised I don't support either of them I don't accept as I think you convener were alluding to that cases would be given a lower award in the share of court I don't think there's any evidence of that and certainly in any event there is a specialist personal injury court I think that would ensure that balance equally I think it's also important to point out that the whole purpose of Lord Gill's review was to ensure access to justice which he indicated was not being provided but I think you've put in appropriate caveats about further amendments to come on remit and sanction so I would remind the committee that both Labour and the Conservatives signed up to the principle in the SCCR of delivering a justice system with fewer delays and costs which is what I believe has been delivered by the Lord President some stakeholders such as the Faculty of Advocates Association of Personal Injury Lawyers and the Law Society have asked that there be a lower exclusive competence with the faculty referring to limits in place in other UK jurisdictions this doesn't compare like with like and indeed Rod Campbell has helpfully pointed out the recent changes in personal injury matters south the border one of the major issues that the Scottish Civil Courts Review pinpointed was that the sum sued for in claims is being inflated by around three times in order to bring claims in the court of session this means that it's highly misleading for APIL and others to quote the settlement figure in the context of setting an appropriate exclusive competence figure in the current circumstances applying the finding of the SCCR a settlement figure of 30,000 or 50,000 could likely be the result of a claim being brought for 90,000 or 150,000 to put it another way if we reduce the exclusive competence to 50,000 the likely settlement figure would only be around 17,000 pounds in terms of the money awarded at the end of the case we need to choose the level of the exclusive competence based on the sum sued for as that is what is used to decide in which court to raise the claim if people's cases are heard in the right courts in a more efficient civil justice system it will allow them to reach settlement and get the rewards more swiftly Lord Gill's aim in proposing their forms is to make justice more accessible to more people and lower the cost of getting justice not to disadvantage people an exclusive competence as low as 50,000 or even 30,000 will fundamentally fail to achieve this so it urge the committee to reject amendments 39, 40 and 43 and I'm happy to support the amendment 29 in Sandra White's name Roderick Campbell to wind up please Just to clarify for the record what I was saying about the change in England is it's non-personal injury cases the limit is 100,000 personal injury cases remain at 50,000 but I'm not going to press my amendment convener well you're not you're with seeking to withdraw it seeking to withdraw it is that agreed agreed right I think cabinet secretary you intended to say Sandra White's amendment was amendment 24 unless you've changed your tune due to this no right okay I call amendment 24 name of Sandra White already made amendment 39 to move or not move it move convener the question is amendment 24 be agreed to are we all agreed no there will be a division those in favour please show oops that could have been a real oops moment those against please show the five four four against that amendment is agreed call amendment 40 name of Alison McInnes already made an amendment 39 Alison to move or not move move the question is amendment 40 be agreed to are we all agreed agreed no there will be a division those in favour please show those against please show four four five against that amendment is not agreed I call amendment 23 in the name of Elaine Murray already made an amendment 39 to move or not move moved the question is that amendment 23 be agreed to are we all agreed yes yes there's not an agreement there'll be a division those in favour please show those against please show four four five against no abstentions that amendment is not agreed I now call amendment 25 in the name of John Pemmond in the group on its own John please to move and speak to that amendment thank you convener the Scottish Parliament has always accepted that as best as related conditions are something of an exceptional circumstance when it comes to legislation and the pursuit of cases through the courts that was clear in 2011 when the damages as best as related conditions Scotland Bill was agreed and I also note that asbestos has singled out in Stuart McMullen's muted private members' bills recovery of medical costs for asbestos diseases now in their evidence the Clyde side action on asbestos argued that their 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 the specialised era of law and swift access to justice at the highest level they also pointed out that 95% of these cases the value of damages is lower than £150,000 but that the complexity is shown by the proportion that have been appealed to the Supreme Court Sheriff Principal Taylor argued that many would end up in the Court of Session anyway because of their complexity but of course the process would be more drawn out so prom consideration of asbestos cases is important and my amendments seek to recognise that and the complexity and by excluding such cases from the changes proposed in the bill I move the amendment Thank you very much Sean anyone else wish to speak in this Yes, Margaret Thank you I have some sympathy with John Pentland's amendment the difficulty of course is always in the detail by legislating for one particular group then it makes it unclear who else would fall into this category Yes, I think I myself would support Margaret and that I'm huge sympathy for it but again if you take one group and say you're special then another group should come along and say we're also special and again we still have the option within the Sheriff Court Parthenia special with Sheriff Court an option with complexity for remits to the Court of Session and then when there's decisions at the Supreme Court of course these are valuable in determining what our complexities and what value should be placed on matters so on that basis but really on the basis of principle that to make one group weren't they very worthy though they are special against any other group that is now or may come along presents difficulties I think if you legislate in that way Is there anyone else we should say John Fent oh sorry Elaine I think the way in which the discussion is divided up goes back to the problem to which John Finnie referred because there may be other amendments which come later which would clarify some of the issues around making a special case out of one because there are amendments which would enable you by or enable ministers to alter the special or what comes in is a special case so I think that's part of the problem is that we're only looking at this one amendment today and there are other amendments which will likely come up next week which would actually make which would overcome some of the difficulties which the convener refers and there are options that stage for you in that case John do you want to come and John Finnie Thank you convener yourself and Elaine have largely covered it I wouldn't want the opposition to this to be seen as not being sympathetic or recognition of the complexity of asbestos cases and it's for that reason I think they won't be picked up later on in the legislation Like I was I'm sympathetic to this but I do find it difficult to just single out one particular type of claim obviously clinical negligence for example raises other issues so I think on balance I think we should oppose this amendment Cabinet Secretary Yes I think the government like other members who are spoken sees where John Pentland has come from and we all have a great sympathy there that's why we've taken action to assist all of those harmed by an excellent negligent exposure to asbestos we've legislated to ensure that person dying from mesothilmioma can achieve damages without preventing members of the family making a future claim for damages and we've also supported legislation that clarifies Scott's laws that relates to damages for fatal personal injuries reducing requirements for potentially intrusive protracted and costly investigations and making the settlement of Cames quicker and fairer The courts reform Scotland bill will ensure that cases are herded in the appropriate court reducing unnecessary delays and disproportionate costs to all litigants this is an important and sensitive area and I've listened carefully to the evidence given to the committee at stage one on the subject and particularly what was said by Phyllis Craig of Clyde Side Action and Asbestos and Sheriff Principal Taylor and I've also met with Phyllis Craig of Clyde Side Action amendment 25 seeks to keep all asbestos cases in the court of session and our evidence the committee and Ms Craig said I would prefer them to be heard in the court of session however if they had to be moved we would want them to be moved into the sheriff court with all solicitors and advocates fees paid and with the procedures that ensure efficiency in the court of session transferred to the sheriff court and let me address some of these points and the question of whether all asbestos related disease cases she automatically raised in the court of session I actually agree with Sheriff Principal Taylor he argued that decision to grant sanction for counsel should be dependent on the merits of each case he went on to say though and I quote a complex asbestosis case will probably be remitted to the court of session however even if it were to remain in the sheriff court it would almost certainly merit sanction for counsel that's certainly not just my experience as a Government minister but my experience as a practicing lawyer so whiles there will not be automatic sanction for counsel on the specialist special injured court or the sheriff courts the Government believes that all cases that merit counsel will continue to benefit from the expertise of counsel most asbestos related disease cases even those of a relatively low financial value fall into this category and where these cases are heard in the sheriff court so the specialist special injured court the sheriff who will have all the facts before him or her is best placed to decide whether sanction for counsel is appropriate that takes us into and doubtless be discussion next week as you alluded to convener in terms of the equality of arms position that has been put forward by sheriff principal Taylor which I agree and have great sympathy for in addition complex cases what you understand or the majority will be able to be remitted to the court of session where the sheriff in the court of session agrees that is the most appropriate course of action and to add further comfort will be bringing an amendment next week to ease a test for remit from the sheriff court to the court of session which I think is some of the changes referred to by John Finnie and others relating to the STUC so I meet regularly with Clyde side action asbestos and I will continue to do so through the passage of this bill the aim of these meetings is to ensure that all those who suffer from all and all those who have lost loved ones on account of this distressing disease are supported throughout the court process and receive the justice that they deserve I think that is shared by the committee but I can give the committee an assurance that we think there will be the appropriate options in terms of remit in terms of sanction in terms of quality of arms to ensure that the requirement for asbestos is met with and indeed as I say the complexities about what other categories of victims would also have to be considered so in these circumstances sharing the committees as I say sympathy for asbestos I think we can provide a solution through other changes and in the bill and therefore I oppose amendment 25 It's not possible for you cabinet secretary to tell us how you're going to ease the test because I don't know if the amendments lodged but it would be helpful but perhaps not don't want to put you on the spot but if I'm going to have a vision to do so at the moment what I can say I'm discussing matters with the STUC and indeed I will be keeping Phyllis Craig appraised but we have already had discussions on is it that particular is that the one that we signed off no I'm not sure no no yeah but amendments will be lodged at noon today so they are happening at the no you can tell us it well I don't have it in front of me unfortunately right so wait but it would be fair to say that the amendment has been run by many of the organisations that we've read to and as I say that there are further ongoing discussions because you do your priests that the committee had concerns about the test as was in the bill lodged John Pentland please to wind up they can be done unlike what has been said I'll withdraw the amendment just now John seeks leave to withdraw this you agreed thank you very much a call amendment 3 in the name of the cabinet secretary I already read amendment 1 cabinet secretary to move formally moved questions amendment 3 be agreed to are we all agreed call amendment 4 in the name of the cabinet secretary I already read amendment 1 cabinet secretary to move formally amendment 4 thank you questions amendment 4 be agreed to are we all agreed questions at section 39 be agreed to are we all agreed the question is at sections 40 to 43 be agreed to are we all agreed thank you very much call amendment 41 yn y name of Alison McInnes Group with amendment 42. Alison, please to move amendment 41 and speak to both amendments in the group. Thank you very much, convener. Amendments 41 and 42 would remove adoption and force marriage proceedings from the list of civil proceedings in which a summary sheriff has competence as set out in schedule 1. Supported by the Law Society of Scotland and the Faculty of Advocates, those amendments reflect a fact of adoption and force marriage proceedings can be particularly complex. Following a parliamentary approval of an LCM earlier this year, it will shortly become a criminal offence to force someone into marriage and it will be punishable by up to seven years in prison. We are still struggled with the interaction between the civil remedy and the criminal proceedings that we will pursue. In the context of this new criminal liability, the existing civil remedies for those at risk of force marriage and those who have already entered into force marriage protection orders will become even more sensitive. The international, racial and ethical dimensions of such cases can also cause them to be extremely complicated. Similarly, the Law Society of Scotland argues that adoption and the grant of authority to adopt are the most serious form of interference in family life and as such should not be the responsibility of the most junior tier of the judiciary. The society argues that those are amongst the most demanding cases that are heard in the sheriff court. In seeking to establish the facts, they consider a wealth of reports and records and hear from a number of witnesses. It can be a difficult balancing act to satisfy the requirements of both domestic and international law, primarily the European Convention on Human Rights. The society therefore maintains that those cases should continue to be heard by specialist family sheriffs who are best placed to respond to the complexity of those cases and consider their far-reaching consequences. To put it into perspective, those cases strike me as requiring a greater level of shrievo competence than, for example, the consideration of warrants and interim orders and extensions of time to pay debts. A move amendment 41, sorry. Yes, Margaret Mitchell. I think Alison McInnes makes a compelling case. These are very complex cases, very emotive cases too and I think it does make sense to remove them from the competence of the summary sheriffs' jurisdiction. I'm back to where I was, I think. I think you're part of the lane, and I'll come in and say a few words about you. It was so good to me early on when I hadn't proud of my feet. I too am very sympathetic to both his amendment and Alison McInnes' name. The only thing I would say in passing, actually, is that I think a case could be made that some domestic abuse proceedings would not be appropriate to be dealt with by simple procedure either, so I don't know whether we need to return to something like that. I'm back to blanket removal because I think, when we're hearing the evidence, the sheriff principle would be looking at the allocation of cases to sheriffs, so as we go through this process over the coming years, the sheriff principle would be looking at whether or not it would be appropriate to be a summary sheriff, so I'm always very cautious about taking something completely out of the remit. I mean, I hear your argument, there are complex, some might have to be remitted to the court of session if there's special case, and there's also, I think, flexibility within which sheriff hears something, which court hears something, is always terribly important. Anyone else? Nope, Cabinet Secretary. Thank you, convener. I think that the initial point I make is somebody's sheriffs are going to be highly qualified, at least 10 years professional standing, and as you were alluding to assignment of businesses for the sheriff principle, and indeed particularly complex cases, the sheriff may choose to assign it to a sheriff as opposed to a summary sheriff, because jurisdiction is concurrent, but amendments 41 and 42 in the name of Alison McKinnis would remove adoption proceedings and force Mary's protection orders from the competence of summary sheriffs. The rationale for the introduction of summary sheriffs is that they should undertake work in the sheriff court to relieve sheriffs of the burden of dealing with the more legally straightforward civil cases, and to this permit sheriffs to be available for more complex case work. The review suggested that the advent of summary sheriffs will help to promote the development of specialisation at both shrievel and summary sheriff level, while maintaining where practicable the principle of access to local justice. These reforms are about a proportionate use of the judiciary in line with the complexity and are by no means about devaluing the importance of specific cases. We recognise that all cases are important to resolve for those involved, and although the intention is that cases should be dealt with at an appropriate level in the court hierarchy, which means that some cases will be heard by summary sheriffs, this does not mean that the quality of justice will be lowered. All judicial officers at whichever level of the court system will be recommended for appointment by the judicial appointments board of Scotland and trained as required by the judicial institute of Scotland. Summary sheriffs were drawn from the ranks of practitioners who have been legally qualified for at least 10 years, the same as sheriffs, and have experience of the kinds of cases which will fall within their competence. And I would also point out that there will be some considerable time before summary sheriffs are deployed widely following recruitment and training, and in rural areas there may not be enough work for both a summary sheriff and a sheriff, so there may never be a summary sheriff deployed in some remote areas. All of the cases will remain with the resident sheriff in those areas. It's for those reasons that the policy is that summary sheriffs should have concurrent civil competence with sheriffs. Giving evidence at the Justice Committee on 18 March, the Sheriff's Association said that they welcomed the jurisdiction of the summary sheriffs and that the summary sheriffs will be, and I quote, perfectly competent and also quote, comfortable doing family cases, drawing summary sheriffs from areas of specialist expertise and bringing practical experience as seen as a good opportunity by some solicitors, including experienced family practitioners. The role also creates an excellent opportunity for the diversification of the Scottish judiciary. When asked whether he would prefer a summary sheriff or sheriff to do with family law cases, Karen Gibbon of the Family Law Association told the committee that, and I quote, in fact it does not really matter whether there are summary sheriffs or sheriffs as long as they are experienced and have knowledge of family cases. That is the most important thing, end quote. Following consultation, concurrent jurisdiction between sheriffs and summary sheriffs was extended to adoption and permanence cases and all relevant provisions within the Children's Hearing Scotland Act 2011 relating to court procedures arising from the children's hearing system. This decision has been taken to address concerns unless summary sheriffs were given full current competence in these areas with sheriffs, it would mean that although some procedures might be dealt with by a summary sheriff, some closely related procedures could still have to be heard before a sheriff leading to confusion among court users and inevitably greater expense to litigants and to the court system through duplication of proceedings. By giving a wider concurrent competence, it will be possible for the whole of a case to be heard by either a summary sheriff or a sheriff in the possibility that some parts of proceedings are heard before a summary sheriff and some before a sheriff will be avoided. The Lord President suggested that forced marriage protection orders should be included in the competence of the summary sheriff. Amendments 41 and 42 do not divide cases up along the lines of importance. They would, for example, leave domestic abuse proceedings, children's hearings within the competency of the summary sheriff, neither of which I would respectfully suggest that the committee are less important than the adoption or forced marriage. The Government believes that these amendments would lead to incoherence in the summary sheriff's jurisdiction, and for that reason, I would ask the Member to withdraw her amendments. Can I, Alison, to wind up, please? I'm a little confused because I think when the Cabinet Secretary opened his remarks, he almost made the case for me. He said that the summary sheriff should be dealing with the more straightforward cases. I was not suggesting that these were more important cases than domestic abuse or other child protection. I was saying that they were most likely more complex. They are without a doubt not straightforward cases, and I will press my amendment. The question is amendment 41. We agreed to it. Are we all agreed? There will be a division. Those in favour, please show. Those against, please show. That amendment 44 against 5, that amendment, is disagreed. Call amendment 42 in the name of Alison McInnes already debated with amendment 41. Alison's move or not move. The question is that schedule 1 be agreed to. Are we all agreed? Questions at sections 44 and 45 be agreed to. Are we all agreed? I don't know if you're still here. Yes, you are. I move on to call amendment 5 in the name of the cabinet secretary group with amendments 29, 9, 10, 30, 11, 12, 15 to 18, 21 and 34. I do understand this, but to tell you the point of amendment 30 is agreed to, I can't call amendment 11, it's preempted. Cabinet secretary, please to move amendment 5 and speak to the other amendments in the group. Let me begin by addressing Elaine Murray's amendments. The purpose of amendment 29 is to ensure that an appeal in the sheriff appeal court is heard by a bench consisting of three or more appeal sheriffs. In addition, at least one of those appeal sheriffs on the bench must be a sheriff principal and at least one must be considered by the president of the sheriff appeal court to be a specialist in the type of case to be heard. This is surely overkill. I appreciate that important appeal should be heard by a bench consisting of three or more appeal sheriffs, but minor procedural matters hardly warrant such an army of judges. The Lord President gave an example of such a minor procedural matter when he gave evidence saying and I quote, a common situation is an appeal where a decree has been taken in absence because through some blunder the defenders did not enter appearance on time. A single appeal sheriff would be perfectly capable of dealing with such an appeal. Furthermore, as there are only six sheriffs principal, at most only six sheriff appeal courts will be able to run at the same time. There will therefore be problems in running the sheriff appeal court that would be caused by Elaine Murray's amendments. Currently Scotland's six sheriffs principal deal with some civil appeals from their own sheriff team. However, the new sheriff appeal court will, in addition to those appeals, deal with all the civil appeals which currently go direct to the court of session. Further, the new court will require to deal with all summary criminal appeals which currently go direct to the high court, meaning that all appeals which come from the justice of the peace court and all summary criminal appeals which come from the sheriff court will require to be dealt with. It is important to note that the sheriff appeal court will have to prioritise summary criminal work restricting the court to a maximum of six sittings at any one time that could lead to delays in the delivery of civil appeals. What if there's no specialist judge in the type of appeal? Elaine Murray's amendment would mean that the sheriff appeal court could not be constituted and the appeal court could not be heard. Instead of tying the court's hand in this way, it is vital instead that the court be empowered with the flexibility to adapt the size and constitution of its bench is appropriate to deal with variety of types of cases which will come before it. Moving to amendment 30, this has the effect that if the bench of the sheriff appeal court consists of an even number of appeal sheriffs and they're equally divided and they're verdict in any matter of factor law, they cannot appoint the appeal to be re-heard at another sitting of the court with a larger bench comprising an odd number of appeal sheriffs. I presume that this amendment is to be read with amendment 29, but as amendment 29 states that there must not be fewer than three appeal sheriffs, that allows for four or six appeal sheriffs in the possibility of an evenly split decision, result being that there would be nowhere for such a case to go for disposal. Amendment 34 would repeal the section of the Criminal Procedure Scotland Act 1995 which governs a quorum in summary criminal appeals. At present this provides for three appeal sheriffs for appeals against conviction and two for appeals against sentence only. Taken together with Elaine Murray's amendment 29, the effect would be that the quorum for summary criminal appeals would be three in all cases of whom one would have to be a sheriff principal and one would have to be a specialist in criminal law. This would increase the judicial resource required to consider summary appeals against sentence beyond the status quo and in tandem with the limit on the number of sheriffs principal in the system could lead to case backlogs. Amendments 5, 9, 10, 11, 12, 15, 16, 17, 18 in my name are a group of drafting amendments. The policy intention is that the court will sometimes be constituted of a panel of appeal sheriffs for important cases but may comprise a single appeal sheriff for appeals on minor procedural matters. Lord Gill stated in his evidence this committee on 22 April that, in appellate work in the sheriff court, the great bulk of the appeals are not appeals on the merits of the case at all but procedural appeals against the refusal by a sheriff to allow a party to amend a case. I close quotes. We envisage that the vast majority of such cases would be heard by a single appeal sheriff. However, the bill deliberately leaves such decisions on quorum and who will preside its sittings of the court to rules of court. We have taken the view that any attempt in primary legislation to go further and micromanage the size of the bench or manage who is to preside in every circumstance would be impractical. That is why we have provided clear and unambiguous powers for the court of session to do so. Instead, through flexible rules of court proposed by the Scottish Civil Justice Council, in addition we have empowered the sheriff appeal court to react in real time to live case and convene a larger bench under section 56. Further, it will be for the president of the sheriff appeal court to decide which of the appeal sheriffs are on the bench in any specific appeal. It is an important principle of Lord Gil's review and therefore throughout the bill that courts have the flexibility to allocate the right judicial resources to the right courts. I would urge you therefore not to accept the late Murray's amendments in this case which could have the effect of constraining the new court into an inflexible and administratively burdensome set of procedural obligations with regard to the size of bench and its constitution, stifling its ability to adapt to the circumstances before it. Turning to my amendments, the wording in the bill has introduced required to be clarified to be consistent with the fact that the sheriff appeal court may, if rules so provide, be constituted by a single appeal sheriff in some cases. This set of drafting amendments make it clear that the court can be constituted by a single appeal sheriff and I move amendment 5 in my name. Thank you very much. Ilein, please to speak to the amendments. Thank you very much, convener. These amendments really are probing amendments at the moment to try to address the concerns that the committee voiced about the fact that appeals against judgments of the sheriff court might be heard by an appeal consisting of only one sheriff and the judgment of that sheriff would be binding on the appeal, would be binding right across Scotland. I think that committee members had concerns about the purpose of amendment 29 and it may not be worded absolutely correctly would be to require an appeal to be heard by three sheriffs, one of which should have to be a sheriff principal and where relevant one must have a specialism appropriate to the matter of the appeal and the Lord President would decide whether that was required. The current process of appeal to the sheriff principal can be considered to be anomalous as it replaces one judge's decision with another judge's decision. That would be compounded if, as suggested in the policy memorandum, the vast minority of appeals are to be decided by a single sheriff in the appeal court and that the appeal sheriff would not actually have to be a sheriff principal. There is also a risk in the bill as it stands a judgment could be made by a specialist sheriff but the appeal heard by a sheriff with less expertise in that area. Even if the appeal were to be held by a sheriff principal the sheriff principal could have left his experience than the original specialist sheriff and that is why I include the provision where relevant that a sheriff of the necessary specialism should be part of the appeal court. The jurisdiction of the sheriff appeal court could will be more significant than the current appellate jurisdiction of the sheriff principal as the exclusive competence of the court is being increased and the judge will no longer be able to appear directly to appeal directly to the inner house of the court of session and decisions are binding on sheriffs throughout Scotland. The sheriff appeal court will also take over the current jurisdiction of the court of criminal appeal and summary criminal appeal cases. The provision of section 107 also severely limits the opportunity for further appeals to the inner house and in most cases the decisions of the sheriff appeal court will be final. My amendment 29 introduced a safeguard at the appeal court consisting of three sheriffs and that was the intention anyway and amongst them they will have sufficient experience and specialism to ensure that appeal judgments are consistent. Amendment 30 was consequential to amendment 39 if the sheriff appeal court consists of three sheriffs there is no possibility of the court being equally divided and the bill does not need to make provision for this eventuality with regard to further appeal and the amendment would remove that clause. Amendment 34 is also consequential as schedule 2 makes changes to section 173 of the criminal procedure Scotland Act 1995. This section as amended shows the applies to the sheriff appeal courts and appeal sheriffs instead of the high court judges and judges. The bill does not alter the position with regard to criminal appeals. Amendment 29 however sets the court amendment 3 for both civil and criminal cases and if passed or precedes the need to amend the 1995 act and that section could simply be repealed. Section 97 gives a court of session the power to make various provisions by act of sedent including the court and for sittings of the sheriff appeal. Court however that's beyond today's finishing point and a further amendment could be brought next week to make alterations to section 97 to P. Thank you. Any other members? Margaret. I have some sympathy with Eileen Murray's amendment in that it tries to improve the provision in the bill and looks at the issue of just a single sheriff hearing another sheriff appeal. However, I think it would require, well it would require a panel to be heard by three judges and that wouldn't in my opinion be necessary in every case. But we have the same concerns about the provision in the bill and I hope when it comes to amendments, my name should be sympathetic to them. I was just to add also, I just want clarity from the cabinet secretary about I think it was a very helpful explanation of why we don't want to have always three sheriff principles sitting on indeed a sheriff principle and two other sheriff sitting but you made the point I think cabinet secretary that the size of the appeal court well I think was in rules of court and on what who would comprise the appeal court we have a matter for the president I think of the sheriff appeal court I may have gone that wrong who or who would that be? The president of the sheriff appeal court would be the person that would ultimately decide the rules of court will clearly be. Who would that be? Would that be the Lord gil? Who would make that decision? Ultimately the court of session. The president is one of the appeal sheriffs so it would be ultimately all these things will ultimately fall within the domain of the Lord president he will have the ability to the president of the appeal court will be a sheriff principle. So a sheriff principle will decide the composition of a sheriff appeal court. Whether it's a single sheriff on a minor amendment or whether we need something with more to see sheriff principles because it's a major matter so I'm just trying to understand I like the idea of the flexibility but I just want to know how it works. Rules of court will be designed by the Lord president since he presides over that the presiding of who actually constitutes the bench will be for the president of the sheriff appeal court who will be a sheriff principle. Right, well I've got that but I don't know if that's it anyway. I move on, I appreciate it was a probing amendment I think it was very important so can I ask you cabinet secretary to wind up please? Well I think what we've already said is that the vast majority of appeals are minor and procedural and it would be a huge waste of resources to have three sheriffs there. We do understand the point that Elaine Murray is making and that's why section 56 allows the court to convene a larger bench if and when needed and I think clearly a case where the presiding sheriff principle will seek to get the appropriate expertise but I think is the point that has been made certainly by yourself. We have the ability to convene a larger bench for the complex cases but I do believe that it would also be best for the bench himself to decide which would be the appropriate specialists to sit on it given the particular case. Thank you very much. The question is amendment five be agreed to are we all agreed? We're not agreed 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. Questions at section 46 be agreed to are we all agreed? Question is that section 47 and 48 be agreed to are we all agreed? Call amendment 26 and then with Margaret Mitchell group of amendments 27 and 28. Margaret please to move amendment 26 and speak to the other amendments in the group. Thank you convener. Amendments 26, 27 and 28 provide for all appeals in the sheriff appeal court being heard by sheriffs principle instead of sheriffs. The girl review recommended that appeals generally be heard by three judges chaired by the sheriff principle of that sheriffdom. It recommended only appeals from cases heard under the simplified procedure should normally be heard by a single sheriff. The effect of my amendment would be that this single sheriff would be a sheriff principle level of judiciary. That is because appeals under the reforms affect not only the sheriffdom in which they are heard but the law Scotland wide. Furthermore, it addresses the following concerns from the girl review namely that it would be inappropriate for an appellate court to consist of members of the same level of judicial hierarchy as those from whom an appeal is marked. As a consequence of the amendments as the girl review noted a sheriff appeal court would require an increase in the number of sheriff principles and this could be done by appointing a number of judicial officers of equivalent rank to a sheriff principle to sit as members of the court with the status and powers of a sheriff principle but without the specific responsibility for the administration of business that the current sheriff's principle have. Amendment 26 removes the provision allowing sheriffs to be appointed as appeal sheriffs and amendments 27 and 20 are consequential to this amendment. I move amendment 26. The other member wishes to speak. Elaine Murray. I think Margaret Mitchell is addressing some of the same issues as I was trying to address with my amendments. The only problem that I have with Margaret's amendments is that they would remove the possibility of a specialist sheriff being appointed as an appeal sheriff and I think there could be cases where actually having a specialist sheriff as an appeal sheriff could be very important particularly if it was against a decision of another specialist sheriff so for that reason I wouldn't be able to support the amendment is it? Does that sound? No other members have indicated cabinet secretary. Thank you, convener. In the debate in the previous group of amendments members stressed the importance of having a sheriff appeal court constituted by three experienced judges and I argued that it was important that there should be flexibility to set the quorum of the court to reflect the nature of the appeal and it would be disproportionate to require minor procedural appeals which raise no general points of law to be decided by a three judge court but serious and difficult appeals should continue to be heard by a bench of three and the sheriff appeal court will sometimes have to overrule itself which could only be done by a larger court so the court will often have to sit with three judges and sometimes even with five more. Section 49 allows a Lord President to appoint sheriffs of at least five years standing as appeal sheriffs. Those appointed as appeal sheriffs would be experienced judges perfectly capable of handling appeals in the sheriff appeal courts and I think that this sensible and will result in a suitable pool of appeal sheriffs available to the president of the sheriff appeal court for the efficient disposal of business. The effect of these amendments emitting section 49 would be that the only judges who could become appeal sheriffs would be sheriff's principle. There are six sheriff terms there are six sheriffs principle. If these amendments were carried out there would only be six appeal sheriffs. The bill proposes that the sheriff appeal court should hear not only civil appeals from the sheriff court but also summary criminal appeals and appeals against conviction require three judge appeal courts so to do civil appeals raising difficult or important issues of law if these amendments were carried either type of case would involve half the available judges. There is no simple way that this system could operate with only six judges and as I argued in relation to the previous grouping of amendments it would be wrong to treat sheriffs principle differently from other appeal sheriffs all of whom will be highly qualified and experienced judges and has as Elaine Myrrae and Mary had alluded to those with the appropriate expertise and consequently I pose amendments 26, 27 and 28 in the name of Margaret Mitchell. Margaret to wind up. I regret that the cabinet secretary didn't listen to what I said in my opening statement which made quite clear that there would be more sheriff principles appointed and they wouldn't necessarily have to have this specific responsibility of administration of business that the current sheriff principle have in the six sheriffs of them so it wouldn't be restricted to merely six sheriffs principle. In terms of the specialised nature of some of the sheriffs being included in the appeal then I think that that could be quite clearly up to the sheriff principle in the appeal court to look at the other sheriff principle specialisation and include them within a certain appeal. But instead what the Scottish Government is proposing is that appeals would generally be heard by a single sheriff albeit maybe as the cabinet secretary has said with five years standing although the bill doesn't leave it open for appeals to be heard by sheriff principle or larger benches. The financial memorandum assumes 95% of appeals will be heard by only one judge. Now the cabinet secretary has said in previous comments that he feels a lot of these cases will be procedural but at the same time he says that he can't micromanage various appeals so clearly we don't know what these 95% of appeals really would consist of. And I repeat I'm particularly concerned that the bill's approach would result in the situation that appeals from decisions by a sheriff would be heard by a single judge of the same seniority. And the conclusion of the Gill review was that it would be inappropriate for the appellate court to consist of members of the same level of the judicial hierarchy as those from whom an appeal is marked. And again, I make the point, we're not just talking about decision affecting one sheriffdom it affects the whole of Scotland. More worryingly still the government appears to have taken the decision to depart from the Gill review recommendations not because it will improve the justice system but because of financial considerations and the financial memorandum certainly recognises that the make-up of the appeal court has financial implications. Now, where there are justifiable costs to be saved here it cannot be at the expense of access to justice or having the proper appeal heard by the proper panel of appeal court judges. The Scottish Government responds to the Justice Committee stage 1 report stated that if appeals had to be heard by a sheriff principle then this would negate some of the advantages to be derived from the establishment of the sheriff appeal court as, for instance, there may not be an appeal sheriff here's a sheriff principle available to hear the appeal. This response does not reject the advantages of having sheriff principles sitting in the appeal court it merely points out that the changes and the rules require additional resources. So, if the committee supports amendments then at stage 3 I would intend to revisit to whether further amendments would be necessary to permit to permit the appointment of additional sheriff principles as recommended in the GIL review. As you... What pressing are we throwing? Press amendment. The question is amendment 26. We agree to... Are we all agreed? Yes. There's a division. Those in favour, please show. Those against, please show. There are no abstentions. Two in favour. Seven against that amendment is not agreed. And I move to amendment 27 in the name of Margaret Mitchell. Readied Bate of amendment 26. Margaret to move or not move. Not moved. Thank you. Questioner, oops. Call amendment 28. The name of Margaret Mitchell. Readied Bate of amendment 26. Margaret to move or not move. Not moved. Call amendment 6 in the name of the cabinet secretary in a group on its own. Cabinet secretary to move and speak to this amendment. Please. Section 50, the Bill, permits the re-employment of appeal sheriffs who have ceased to hold that office but have yet to reach the age of 75. Appeal sheriffs who are sheriffs principal and sheriffs will not be paid additional remuneration for acting as such though they may be paid expenses. Since such deployment is and will be considered development opportunity, this is in accordance with normal practice in this area. For example, sheriffs who act up as temporary court of session judges are not paid extra. Amendment 6 will however permit the payment of remuneration to former appeal sheriffs who are re-employed under section 50 of the Bill. It is expected that former appeal sheriffs will normally be retired and therefore in such an instance payment for their time is appropriate. The Lord President may consider that such re-employment is necessary in order to facilitate the disposal of business in the sheriff appeal court. This will mean that re-employed appeal sheriffs are remunerated in the same way that re-employed sheriffs and summary sheriffs are paid by the Scottish courts and tribunal service under section 16 of the Bill. And I move amendment 6. I wish to. No. Elaine, I beg your pardon. Just a brief question, I was wondering, I presume that former appeal sheriffs have been admitted from section, should have been in section 16 and have been admitted in error. I just wondered why we were not amending section 16 rather than this section here. Parts on the sheriff appeal court together in the Bill, that's the technical reason so it's all part of that appropriate section. So it's easier to discover it. One hopes. I love the way that was passed along business. At least it wasn't Chinese whispers and we ended up with the right, I presume the right piece. I take it, cabinet secretary, don't wish to wind up. Questions amendment 6, we agree to, are we all agreed? Questions section 50, we agree to, are we all agreed? Section 51, we agree to, that's the question, are we all agreed? Amendment 8, cabinet secretary, move amendment 7 and speak to both amendments in the group, please. Thank you, this group of amendments is intended to assist with the successful establishment of the sheriff appeal court. Amendment 7 is required to introduce amendment 8, which will permit Senators of the College of Justice as Court of Session and High Court judges are formally known to be appointed to act as appeal sheriffs in the new sheriff appeal court by the Lord President in order to assist the appeal sheriffs, both sheriffs and sheriff principal with the appellate work in that court. The arrangement would, however, be restricted to a period of three years to permit the Senators to pass on the benefit of their practical and legal expertise in dealing with appellate work. Senators are to act as, but not be, appeal sheriffs, however they are to be treated as appeal sheriffs. Accordingly, just as in the same way a sheriff's principal are not given greater powers in the sheriff appeal court than sheriffs who are also sheriffs the same as to apply for Senators. I'm aware that concerns have been expressed by a sheriff's principal hearing appeals while sitting alone. I believe that the assistance of Senators in the early years of the sheriff appeal court will allow appeal sheriffs, both sheriffs and sheriff's principal to build up the expertise of that court in handling and deciding upon appeals. Most of the business of the sheriff appeal court will be minor and procedural when the Government's there for confident that appeal sheriffs sitting alone will be perfectly capable of dealing with such appeals. Particularly after they've had the benefit of the assistance and expertise of Senators sitting beside them as appeal sheriffs in the early days. Under the provisions of the bill it will be for the court rules made by the Lord President to decide upon the quorum of the court in particular kinds of cases that would be wrong for the bill to restrict this flexibility. The Lord President will be able to appoint as many Senators to act as appeal sheriffs as the Lord President considers necessary for the purposes of the court during the three-year transitional period. A Senator will only be appointed to act as an appeal sheriff if they have held office as a Senator for at least one year. The appointment of a Senator will not affect the Senators capacity as a court of session judge or as a high court judge and they may continue to act in those capacities. The provisions permitting Senators to act as appeal sheriffs are to be active for a transitory period of three years after the sheriff appeal court becomes operational. After that period all the appointments of Senators under this temporary provision will cease. A Senator who acts as an appeal sheriff will however be able to continue to give judgment or deal with a matter relating to a case they are involved in with which began before the expiry of that period to make it permanently possible for the Lord President to appoint Senators to act as appeal sheriffs would go against both the rationale for having a sheriff appeal court and the principle of the bill generally, which is to ensure that cases are dealt with at the lowest level in the court structure at which they can competently be dealt with. The sheriff appeal court will deal with most of the several appeals before it will be procedural in nature, neither of which merit the attention of the High Court or the Inner House of the Court of Session. But it is right that in its early years the new court should benefit from the assistance and experience of Senators of the Court of Session and a move amendment 7. I welcome the fact that the traditional arrangements are being brought in and I think it's a sensible thing to do. My question really is that given that these reforms are expected to take over a period of 10 years before the summary sheriffs are all in place and so on, how the period of three years for the transitional period was arrived at and why three years is appropriate rather than perhaps a longer period. Roderick. No, I just wanted to comment that I do believe this is a sensible move to take advantage of the judicial experience of the Senators and I think it will assist. I'm sure that as to the question whether it's three years or longer I shouldn't have thought it's anything more than a considered view as to how long it was necessary to get the sheriff appeal up and running so I don't have a problem with the three year period. The experience of the judicial senators is of course welcome. It's a temporary measure and in my view it muddies the waters and makes the bill quite unclear in what it's doing and trying to achieve. Right. Cabinet Secretary, muddies the waters? No, I don't believe so. I think there's two separate parts of the bill. Some sheriffs are distinct and separate and they won't be sitting in the sheriff appeal court. The period of three years was the suggestion of the Lord President and I think it's a proportionate measure to ensure that when we do establish this court that we have the appropriate experience that can be shared clearly as we've already indicated in earlier discussions and earlier amendments. The vast majority of appeals are minor procedural would be relatively straightforward and they won't require that assistance but for that transitory period I do think it's appropriate that if the Lord President feels it's appropriate that there should be an experienced senator who can give their counsel and wisdom to ensure that in the complex cases it will require to be supported by more than one member of the judiciary that they have that experience there but it was a timescale chosen by him and we are happy to accept that as a Government. Questions amendment, thank you. Questions amendment, somebody agree to it? Are we all agreed? There's a division those in favour please show. Those against please show. You glory sometimes Margaret being the only one, I know. Four, eight against one no abstentions, that amendment is agreed to. Call amendment eight and name the cabinet secretary, ready to wait amendment seven, cabinet secretary to move formally. Questions amendment eight be agreed to are we all agreed? There's a division, there's a disagreement. Those four at the amendment eight we show those against the show you go for it Margaret. Four, eight, one against no abstentions that amendment is agreed to. The questions at sections 52 to 54 be agreed to, are we all agreed? Call amendment 29 the name of Elaine Murray, ready to wait amendment five, Elaine to move or not move. The question is at section 55 be agreed to, are we all agreed? Call amendment nine the name of the cabinet secretary, ready to wait amendment five, cabinet secretary to move formally. The question is amendment nine be agreed to, are we all agreed? We're not agreed, there'll be a division. Those in favour please show. Those in favour please show if you did your hand up. It's up, it's up. One, two, three, six. Those against please show six, four, three against no abstentions that amendment is agreed. Call amendment 10 the name of the cabinet secretary, ready to wait amendment five, cabinet secretary to move formally. The question is amendment 10 be agreed to, are we all agreed? There'll be a division. Those in favour please show. Those against please show. Six in favour three against no abstentions that amendment is agreed to. Call amendment 30 the name of Elaine Murray, ready to wait amendment six. I get to say something. If the amendment 30 is agreed to I cannot call amendment 11 preemption now. Your cue is not moved. Call amendment 11, I'm busy scribbling things out, it's all right mother. Call amendment 11 in the name of the cabinet secretary, ready to wait amendment five, cabinet secretary to move formally. The question is amendment 11 be agreed to, are we all agreed? We're not agreed, there'll be a division. Those in favour please show. Those against please show. Four, six against three no abstentions that amendment is agreed. Call amendment 12 the name of the cabinet secretary, ready to wait amendment five, cabinet secretary to move formally. The question is amendment 12 be agreed to, are we all agreed? Those in favour please show. Those against please show. There are no abstentions. Six, four, three against that amendment is agreed to. Question is at section 56 be agreed to, are we all agreed? Question is at section 57 to 59 be agreed to, are we all agreed? Call amendment 13 name the cabinet secretary group of amendment 14, cabinet secretary to move amendment 13 and speak to both amendments in the group please. Thank you, this group of amendments is intended to provide for the records of the amendment 13 will permit the sheriff appeal court to keep records electronically and be able to authenticate a record or a copy of a record by means of an electronic signature. Amendment 14 defines what is meant by an electronic signature. Given that one of the key aims of the bill is to modernise a justice system and bring it into the 21st century it is appropriate to make provision ensuring that the sheriff appeal court may from the outset keep and authenticate its records electronically. Provision already exists elsewhere for electronic signatures. Amendment 14 permits electronic signatures on specific documents relating to summary criminal proceedings. The Scottish Government digital strategies investigating with the Scottish Court service the possibility of greater use of electronic signatures in the context of court proceedings, for example warrants and interim orders. If these advances are to happen in the sheriff courts we agree that they should also happen in the sheriff appeal court as that court will receive records of the sheriff appeal court to be authenticated by being signed by an appeal sheriff or a clerk of the court. A record means an interlocutor, decrement minute or other documents relating to the proceedings and decisions of the sheriff appeal court. A clerk of the court may also authenticate a copy of such a record as a true copy. Amendment 13 will make clear that such records can be produced in electronic format and that such records or copies of them can be authenticated electronically. In the case of records by an appeal sheriff or a clerk of the court, in the case of a copy by the clerk of the court. Amendment 14 defines the meaning to be given to electronic signatures by reference to the meaning given to that phrase in the electronic communications act 2000 and includes in that definition a printed version of that electronic signature. Further in conjunction with amendment 13 the court may specify another form of authentication by Act of Sederent, made by the court of session allowing the court to process or procedural requirements. Ongoing developments in ICT which we cannot perhaps envisage or contemplate now may mean that some other definition of electronic authentication should be added in the future and the court should be able to use our powers to flexibly adjust for any such development. It is essential that our courts are enabled to use technology to help them appropriately process the business and move amendment 13. No one has indicated, I don't think that's a controversy so far so we're quite technological on here these days and I take, cabinet secretary, you don't want to wind up. The question is that amendment 13 be agreed to, are we all agreed? Call amendment 14, the name of the cabinet secretary, I've already agreed to amendment 13 cabinet secretary to move formally. Questions amendment 14 be agreed to, are we all agreed? Questions at section 16 be agreed to, are we all agreed? And that ends consideration of amendments for today. I thank the cabinet secretary and his officials and we now move into private session. Thank you.