Hansard

First, I will simplify the meaning of “prescription”. Prescription and Scots law on prescription encourage people to enforce their rights swiftly, and before it becomes too difficult for a person—or, indeed, an organisation—who is defending a claim to gather the appropriate evidence. As we heard from Graham Simpson, delay can cause the quality of vital evidence that might be available for use in a court case to diminish. The Prescription (Scotland) Bill aims to amend the law relating to the extinction of civil rights and obligations by the passage of time.

For negative prescription, the Prescription and Limitation (Scotland) Act 1973 established five-year and 20-year prescriptive periods. Twenty-year prescription applies to all obligations other than those that are specifically excluded from it by other provisions in the 1973 act. Five-year prescription applies to obligations on one statutory list and not to obligations on a second statutory list in schedule 1 to the 1973 act. In practice, most obligations in Scots law end after five years.

If enacted, the bill would implement the Scottish Law Commission’s recommendations on the law of prescription and amend the 1973 act in relation to negative prescription only. That means that a person has a certain timeframe in which to do something or it will become time barred. With positive prescription, the person needs the time to pass in order to claim the right to something.

The bill contains three main proposals in technical areas of law. However, what I am about to say is just a general guide.

Section 1 of the bill relates to obligations to pay damages and obligations under the law of delict. “Delict” refers to Scots law that relates to types of civil law, apart from breach of contract. It covers a group of wrongful behaviours in relation to a person who has been wronged and can obtain a legal remedy in the civil courts. It includes the common law of negligence and other specific types of delict, such as defamation and occupiers’ liability. It is separate from the law of contract.

Section 2 will extend the scope of the five-year prescription to include certain obligations that are associated with contracts.

Section 3 sets out the general rule that statutory obligations to pay money are covered by the five-year prescription. However, there are some statutory obligations that are covered only by the 20-year prescription.

The committee not only took oral evidence; written evidence was also taken from the legal profession, academics, the welfare rights sector, the Scottish Law Commission and the then minister in charge of the bill, who was Annabelle Ewing MSP. All those who responded to the committee’s call for written evidence and who gave oral evidence agreed that the bill is necessary. In its written evidence, Shepherd and Wedderburn LLP agreed, and said that

“the Bill will improve clarity, certainty and fairness”

and that

“overall resources will be more efficient and costs reduced. It is likely that advising clients on potential prescription will be less complex whilst still not straightforward.”

Under the 1973 act, the five-year prescription applies to obligations on one statutory list and not to obligations on a secondary statutory list, as detailed in the act. The lists have been amended many times over the years, which makes the law extremely complex.

Section 3 of the bill will extend the five-year prescription to all statutory obligations to pay money, with some exceptions that will remain within the scope of the 20-year prescription. Those exceptions are taxes and duties that are recovered by Her Majesty’s Revenue and Customs and Revenue Scotland; council tax and non-domestic rates, as well as the sums that are connected with enforcement of obligations; the obligation to pay child maintenance; and sums that are recoverable under the legislation relating to social security benefits and tax credits.

There is some debate about those exemptions. For example, there appears to be some uncertainty under the current law about the prescription period relating to council tax and business rates debts. Under the current law, council taxes and business rates are probably covered only by the 20-year prescription, although there is no decided case on the point, which leads to some uncertainly in practice. It is not as clear cut as the time simply being five or 20 years, when we consider joint and several liability in situations in which people genuinely believe that they have paid but discover that a debt is outstanding and is significantly more than the original amount. Joint and several liability is a general principle of Scots law, but people do not always appreciate the meaning or severity of its implications.

The committee has recommended that the Scottish Government give further consideration to the exception for council tax and business rates, and that it provide a more detailed description of the public policy arguments for the exception, ahead of stage 2. The committee also recognises that there are wider policy considerations in the bill, particularly in relation to welfare rights.

Overall, the committee welcomes the greater certainty that the bill will provide for users of the law, agrees with the bill’s aim of increasing clarity, certainty and fairness for the law on negative prescription, and considers that the bill, as drafted, generally meets its aims.

I thank the four committees that responded to the questions that were put to them on the wider policy areas, and I thank the committee clerks for the time, patience and effort that went into guiding the committee members through the bill.