Scottish Parliament
Justice 2 Committee

Meeting 32, 2001

Scottish Parliament

Justice 2 Committee

Tuesday 20 November 2001


[THE CONVENER opened the meeting in private at 09:45]


Meeting continued in public.

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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.

Subordinate Legislation

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 committee business.

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.

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Meeting adjourned.


On resuming—

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.

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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 us—we 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 getting—in particular from some legal firms—that 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.

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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 concerns—which I share—that 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, procedures—including timetable procedures—of 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

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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 try—without breaching confidentiality—to 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

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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.