Justice 2 Committee
Tuesday 20 November 2001
[THE CONVENER opened the meeting in private at 09:45]
Meeting continued in public.
The Convener (Pauline McNeill): I welcome everyone to the 32nd
meeting of the Justice 2 Committee in 2001. I have received apologies
from George Lyon. I have nothing to report as convener.
Draft Small Claims (Scotland) Amendment Order 2001
Draft Sheriff Courts (Scotland) Act 1971 (Privative Jurisdiction
and Summary Cause) Order 2001
The Convener: Agenda item 1 concerns two draft orders. I refer
members to the note by the clerks, J2/01/32/3, which summarises the
submissions received and the applicable procedure.
Members will note that we have received several submissions other
than those requested by the committee last week. In the intervening
period we have received submissions from the Scottish Council on
Deafness, Pain Association Scotland, Grigor and Young, Govan Law
Centre, the Transport and General Workers Union and the Association
of Personal Injury Lawyers. We have also had late submissions from
the Graphical, Paper and Media Union and from the Union of Shop
Distributive and Allied Workers. Under exceptional circumstances, in
order to assist members' consideration of the orders, the clerks have
managed to summarise those late papers at very short notice. I am
minded to point out that this is not the best way to conduct
It is unusual to refer subordinate legislation for a further meeting,
but we all agreed that we had not been given enough time to consider
the orders. I note that the minister is not yet here, although I am
informed that he is on his way. I propose to adjourn the meeting for
a few minutes to allow the minister to join us.
The Convener: I welcome the minister and his team to the
Justice 2 Committee. I know that Iain Gray has not been very well and
we are grateful that he could be here this morning. The committee's
comments this morning could be of great importance.
I have listed the organisations that made submissions to the
committee on their views on both statutory instruments. The time
scale has been extremely short. I am sure, like me, that members are
doing their best to plough through all the submissions, which contain
complex issues that we have not been able to examine fully. Last
week, we agreed that we would try to clarify questions from committee
members as far as that was possible.
Thompsons has clarified that the GMB, the petitioner, was consulted
through the offices of the Scottish Trades Union Congress. To be
fair, owing to the time lapse since 1998, many people have become
confused about whether they were consulted. They were consulted, but
it was a long time ago. The committee should note that the Executive
has to undertake consultation. As a committee, we have to consider
whether we can recommend the orders to the Parliament.
It is also clear that, given the short notice, Thompsons is unable to
provide the statistics that the committee wanted about the number of
cases that would be excluded from the Court of Session were the
orders to be passed. I am unhappy that we do not have that information.
Because of the complexity of the orders and the short amount of time
that the committee has been given for their consideration, it is very
difficult for us to recommend that they be approved by the
Parliament. The matter is ultimately one on which the Parliament will
decide. Our view will, of course, carry a lot of weight.
The committee has a choice: it can debate the merit of the issues
that have been put in front of us, ascertain whether we are able to
clarify the points and make a decision about a recommendation; or,
owing to the complexity of the issues and the shortage of time, it
can decide that we are not in a position to make a recommendation. I
do not feel in a position to make a decision as to whether the
passing of the orders would create a major impact. I would like more
time to decide on what the issues are.
Scott Barrie (Dunfermline West) (Lab): I am inclined to agree
with the convener. As she rightly said, one of the major difficulties
has been the delay that has followed from the original consultation.
People have forgotten or are no longer aware that the consultation
was done or whether current references are to that consultation.
Given that the minister is with us, is it possible for the Executive
to further consult, discover what the current position is and get
answers to some of the questions that have been raised? If the
Executive remains certain that it is desirable to pass the orders,
they can be reintroduced at a later stage. Is that one way out? In
consequence of the delay between the consultation taking place some
18 months ago and the laying of the orders, people have forgotten
that they were taken away and are now being reintroduced.
The Convener: I suggest that the minister hears what the
committee has to say before he responds.
The Deputy Minister for Justice (Iain Gray): Yes, by all means.
Bill Aitken (Glasgow) (Con): I am
concerned at the way in which the matter has been dealt with. Some
important and substantive issues have to be addressed. The minister's
contribution last week was extremely helpful, as it cleared up some
of my concerns, but I am far from satisfied that individual committee
members and the committee as a whole have had sufficient opportunity
to look at the matter in the depth that is required.
As the convener said, the matter is complex. That should not concern
uswe expect to deal with complex matters, but to do so within a
time scale that is reasonable. Given all the last-minute submissions,
we do not have sufficient time to make a measured judgment of the
orders. I would be unhappy about being placed in a position whereby
we recommend positively to the Parliament that the orders be
approved. At the end of the day, it may well be that the orders
should be approved, but I want to be satisfied that that is the
correct course of action.
Stewart Stevenson (Banff and Buchan) (SNP): I cannot support
recommending these orders to Parliament at this stage. I am not
opposed to raising the claim limits. That is quite proper. My concern
is about the further input that we are gettingin particular
from some legal firmsthat is at odds with the Law Society of
Scotland's submissions. I am not sure why that should be so. It might
be useful to have a period of time for the Law Society of Scotland to
consult its members and for them to give direct input if they want to.
I also think it would be useful if the deputy minister could tell us
who would be disadvantaged by our not passing these orders at this
stage, so that we can understand the implications of postponing their
implementation. We understand many, if not all, of the benefits, but
it would be useful to put on the record, if the minister can, the
disadvantages of not proceeding at this point and who might suffer,
so that we have a balanced view and Parliament, if it debates the
matter in the near future, has the benefit of that information.
Mrs Margaret Ewing (Moray) (SNP): I want the minister, in
responding to the concernswhich I sharethat were raised
by other members, to say what he sees as the implications of
postponing this recommendation. What would be the knock-on effect for
people who are looking for summary claims or who are going through
the small claims courts? Also, when did the Scottish Executive last
advertise information about these orders in the Scots Law Times and
the Journal of the Law Society of Scotland? I am concerned about the
fact that I am receiving letters from legal companies who claim that
they are unaware of this matter. When was it last advertised that the
claims limit was being reviewed?
Iain Gray: I appreciate the opportunity to come back this
morning and take part in the continuation of the discussions that we
had last week. It seems fairly clear to me that the sense of the
committee members is that they neither support nor oppose the orders
that are before them. They do not feel that they can make a reasoned
and reasonable decision. I must take cognisance of that fact. We are
keen to move these orders and the proposed claim limits forward on
the basis of a consensus. We do not think that there should be
dissension about the matter.
The purpose of the orders, which we discussed last week, is to
improve the system of civil justice. I was asked who might be
disadvantaged if we maintain the status quo for a period. Our view is
that there is a potential disadvantage to litigants who under the new
orders, if they are passed, would have access to the simpler, more
straightforward, proceduresincluding timetable
proceduresof summary court procedure. I must acknowledge,
however, the opposite argument that that would not be a real
advantage. Some of those who have made submissions to the committee
argue that case. There seems to be no distinct group of people who
will be clearly disadvantaged if the committee feels that the
proposed change to the claim limits must be considered further.
The limits have not changed since 1988 and we believe that they
should now be reviewed. We expect to return to that debate at some
time in the future. However, taking account of the feeling of
the committee, the most sensible way forward is to withdraw these
orders and return to them at a later date. That will allow the
committee more time to consider the arguments and allow the Executive
more time, perhaps, to produce further information that will address
some of the points that have been made.
I was asked whether we will undertake to have another consultation,
given that it is some years since the initial consultation. We are
reluctant to commit to the expense of a full-scale consultation, but,
following last week's and today's debates, it is incumbent on the
Executive to produce further evidence for what we believe to be the
beneficial effect of the changes. Last week, I mentioned the
commissioning of research and undertook to seek ways of producing
evidence on cases that settle and on those that are defended in court.
I hope that the committee is willing to accept the withdrawal of the
orders. In the time that is created by doing that, we will seek
co-operation from appropriate firms to trywithout breaching
confidentialityto find harder evidence about the number of
cases that are involved and the way in which they settle. The lack of
evidence is the basis for the committee's difficulty in trying to
ascertain what the situation is.
I propose that we withdraw the orders and return to them at a later
date. That will allow us to garner further information and will allow
committee members, if they wish, to pursue the matters for which they
need more time to investigate.
The Convener: I think that the committee finds that response helpful.
Members indicated agreement.
The Convener: The minister can see that members find it
helpful. The suggestion will allow time for the committee to consider
taking evidence on the matter. He does not need our agreement on the
withdrawal of the orders, but I am pleased that we have reached a
consensus on the need for more time. Is the minister in a position to
give an approximate time scale?
Iain Gray: If the committee is prepared to bear with us, we
will take some time to consider the time scale. It would be helpful
to have an indication from the committee on the course of action that
it seeks to pursue. The debate has moved quickly and, rather than
tying ourselves to a time scale, we must take a little time to
consider how to pursue the matter.
Mrs Margaret Ewing: I appreciate that, but an open-ended time
scale might cause concern among the people who made representations
to the committee. You said that you are unwilling to commit the
Executive to further full consultation. Will you tell the committee
about the consultation
that the Executive will undertake?
Iain Gray: If it is acceptable, I
will respond to that in writing after I have taken time to consider
the best way forward.
The Convener: It would be useful if we kept in touch by letter
so that we know the eventual time scale and can consider the action
that we wish to take.