Meeting of the Parliament 27 June 2018
I thank my colleague Graham Simpson, the convener of the Delegated Powers and Law Reform Committee, and the committee clerks for their work on the bill. Having substituted on the committee for my colleague Alison Harris while the bill was being discussed, I am grateful to be able to add my voice today.
The bill enjoys support inside and outwith the Parliament, and the convener recognises the general contentment among stakeholders. The Law Society of Scotland summed the bill up by noting that it would modernise and bring greater clarity to our law of prescription.
It will do so through a series of changes to the five-year and 20-year prescription periods. It is not an attempt at wholesale reform but rather aims to address specific issues that have caused, or might cause, difficulty in practice. More fundamentally, it aims to bring clarity, certainty and fairness while balancing the law between creditors and debtors.
With that in mind, the committee has recognised the need to address various issues before the bill reaches stage 2, such as cases involving council tax, benefit overpayments and situations in which 20-year prescription can mean harsh results for individual cases.
The committee was split on whether council tax should be exempt from the five-year rule. The disagreement came down to balancing perceptions of fairness with public policy. No one wants to see individuals treated unfairly, but we have a public duty to treat taxpayers fairly by recovering their money, because that serves a wider public good. I hope that the issue receives the attention and review that it deserves as the bill progresses.
That process is already under way. The committee will write to local authorities to ascertain how many still have council tax and business rates debts outstanding after five years and how often payment has been sought using the 20-year prescription. I welcome that engagement, but we must ensure that the process is kept on track and that responses are acted on.
In a similar vein, more discussion is needed about whether overpayment of benefits should be subject to five-year or 20-year prescription. Avoiding overpayments is the best solution, but, when it happens, there is again the question of fairness versus the wider public good. Some people regard 20 years as too long, but, to paraphrase a clever man, time is relative. Public finances do not obey neat demarcations of time and we must retain flexibility in safeguarding public money.
On the 20-year rule, there will always be a need for longer prescription periods, even though we recognise the problems that they can create, such as with gathering evidence after a number of years. The bill balances that necessity by strengthening the hand of defenders through much earlier prescription starting points in many cases and by preventing court proceedings from resetting the clock on the 20-year period. That measure, in particular, is a welcome boost, as it offers greater certainty to defenders.
Certainty is a fundamental point. People must be able to live their lives without fear that they will be open to lawsuits for evermore. Even if individual cases might throw up some unwelcome developments, there is a wider public interest in legal certainty that must be served. Of course, as the Law Society points out, individual cases can also be better served by claimants taking early action.
People have a right to claim what is lawfully theirs, but they also have a right not to be dragged through the courts to settle decades-old debts. The reforms before us help achieve that through increased clarity and better balance between parties. However, as we move towards stage 2, I hope that ministers will pay heed to the concerns that have been raised by the committee and will seek to address them in a manner that carries the Parliament with them. That will allow the bill to continue to focus on the substantive issues and ensure the continuation of the broad support that we see here today.