Hansard

Congestion in the sheriff courts is likely therefore to persist for some time. We are concerned that if the requirement for corroboration is abolished, as the Scottish Government intends, more cases are likely to come to the sheriff court and exert even more pressure on an already creaking system.

The bill replaces summary cause and small claims procedures by one simple procedure for cases under the value of £5,000. We support that. However, we do not consider simple procedure to be appropriate for certain categories of cases, even if their value is less than £5,000, such as personal injury cases and some domestic abuse cases.

In part 2, the bill sets out provisions for a new appeal process. It establishes a new sheriff appeal court to hear summary criminal appeals and civil appeals from the sheriff court. While Scottish Labour supports the creation of the new appeal court, we share witnesses’ concerns about the estimate that 95 per cent of cases will be heard by a bench of one, rather than three as proposed by Lord Gill. That would mean that in 19 out of 20 cases, a single sheriff would make nationally binding decisions that could determine case law in Scotland.

We also share witnesses’ concerns about a number of other issues. First, we are concerned about the effect of section 39, which raises the exclusive competence of the sheriff courts by 3,000 per cent, from £5,000 to £150,000. Cases brought to the Court of Session automatically have the right to counsel—that is, to employ an advocate—while cases brought to the sheriff courts do not, and counsel must be applied for. The Scottish Government estimated that that limit will result in 57 per cent of cases that currently go to the Court of Session going to the sheriff courts, leaving the Court of Session with 2,000 cases.

However, three quarters of the cases going to the Court of Session are personal injury cases. The Court of Session hears around a third of all personal injury cases in Scotland. The Association of Personal Injury Lawyers estimates that, as a result of the £150,000 exclusive competence, 96 per cent of personal injury cases would go to the sheriff courts, representing a significant reduction in the business of the Court of Session and additional strain on the sheriff courts, despite the creation of a specialist court.

We believe that the £150,000 limit is too high in relation to average incomes in Scotland, where the average male full-time annual income is £29,300 and the average female income is £23,600.

Claims for loss of future income, due to an accident at work for example, are unlikely to be for five or six times the annual salary, so a case brought by an employee relating to loss of income is unlikely to go to the Court of Session and have the automatic right to counsel. Moreover, if an advocate is employed, the worker runs the risk of having to pay additional expenses out of any award that they receive.

The high figure for privative jurisdiction compounds the problems that are already caused by section 69 of the Enterprise and Regulatory Reform Act 2013, which removes employer liability for a breach of health and safety regulations. The employer, however, or their insurance company, is far more likely to be able to employ the services of an advocate or QC. The loss of automatic right to counsel could result in inequality in representation and discrimination against the employee. Amendment to the legislation is necessary to guarantee equal access to representation. We suggest that exclusive competence in the sheriff court in Scotland should be set at a level similar to that in Northern Ireland or possibly England.

We are concerned about the resources that are to be allocated to the reforms. The bill introduces a specialist personal injury sheriff court, which we support, but only two sheriffs will be allocated to that court, which is likely to sit in Edinburgh sheriff court. We question whether that will be sufficient, given the number of cases that are likely to be transferred.

The implications for commercial cases have not been adequately considered. Currently, cases with a value of £5,000 and over can be taken in the commercial court in the Court of Session. The bill does not establish a specialist commercial sheriff court, so cases whose value is less than £150,000 will be taken in the local sheriff court. Some places might have a specialist commercial sheriff, but many will not. That is likely to disadvantage rural areas such as mine.

We have serious concerns about the financial memorandum’s accuracy on the estimated fee income, the savings to the Scottish Legal Aid Board and the savings in judicial salaries. My colleague Malcolm Chisholm, who sits on the Finance Committee and has taken evidence on the financial memorandum, will give more detail on those concerns. The Government is introducing important reforms without having identified the funding to support them.

It is disappointing that the Scottish Government’s response to Sheriff Principal James Taylor’s “Review of Expenses and Funding of Civil Litigation in Scotland” was not published before stage 1. There are overlaps between the recommendations in that review and the bill, and it would have been helpful to know whether and how the Government intends to take some of the measures forward. I hear that the response is to be issued before stage 2 but, to be frank, that is too late—we should have had it before stage 1.

We will support the bill at stage 1, although we hope that it will be amended and we consider that the financial memorandum needs to be revisited.