Hansard

In the light of the announced reshuffle of Government ministers, I begin by registering my thanks to Michael Matheson and Annabelle Ewing. Over the time that I have spent shadowing the justice brief, we have had some notable disagreements—on police governance, the British Transport Police merger and the repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012—but there have also been some clear areas of constructive engagement on the broad issue of prison reform, on ensuring that the criminal justice system and the judicial system work and on the more specific circumstances around the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill. I thank both Michael Matheson and Annabelle Ewing and wish them luck in their new roles.

I also welcome Humza Yousaf—I am glad that he is here this afternoon on the front bench—and Ash Denham to their new positions, and look forward to engagement with them, be it constructive or, on occasion, critical, where that is needed.

I must admit that the Labour group was very excited to hear that there was going to be a debate this afternoon about prescription. Indeed, a queue lined up so that we could talk about medication, pharmacies and, on the 70th anniversary of the national health service, some very important health issues. When the truth was revealed about the debate, I am not sure that we had quite the same ease in filling the debate slots.

However, the issues around debt and the length of time for which it is reasonable to pursue debts are very important and have very real and human implications. We are therefore debating important issues this afternoon. In that regard, I thank the members and clerks of the Delegated Powers and Law Reform Committee for the stage 1 report, which provides a useful basis for the debate; and I thank the organisations that provided briefings to inform the debate. I also thank the Scottish Law Commission, whose work prompted the bill’s introduction.

Prescription is a valuable principle in civil law that ensures that people who are aggrieved face a time limit for raising a claim in court, which is important because it encourages people to enforce their rights promptly. Without that, paper evidence could become lost, damaged or destroyed and witnesses might have died or become untraceable, or simply might not remember the facts of the case.

Above all, having no time limit might lead to people being pursued for debts for a length of time that anyone would consider to be unreasonable. It is against that principle that the bill seeks to reform prescription. I will focus my remarks on the discoverability test and the exceptions to the five-year period.

The discoverability test is used to determine when the prescriptive period starts. Recently, two important cases at the Supreme Court have altered interpretation of the test, one of which has already been mentioned in the debate—David T Morrison & Co Ltd v ICL Plastics Ltd and others. The other is Gordon and others v Campbell Riddell Breeze Paterson LLP, in 2017. Those rulings held that the five-year period started when the pursuer knew, or should reasonably have known, that the loss occurred, regardless of whether they knew that it had been caused by fault or negligence.

The bill changes that test to meet three conditions: that the pursuer knew that the loss had occurred, that they knew that the loss was caused by another person’s act or omission, and that they knew the identity of that person. Labour members believe that that is a reasonable and sensible compromise position that means that pursuers are not placed in a harsh situation in which their claim could be invalid before they even knew or had discovered that they had a claim.

There are two notable exceptions to the five-year prescription period, which members have acknowledged in the debate. Those exceptions are council tax and non-domestic rates. Other members might well have been contacted by constituents, as I have, about issues arising from council tax debt, when people are frustrated that councils that have failed to enforce actively a debt for several years suddenly come down on the debtor like a pile of bricks, even when the debtor had been paying what they thought was the correct amount for years. Citizens Advice Scotland told the committee that a five-year prescription period would force all creditors actively to pursue and enforce their debt, which would perhaps put off the need for such things as sequestration by councils.

We should not let policy be led by the inability of councils to enforce debts, nor should the law encourage in councils and public bodies inefficiency in actively pursuing those debts.

The Government’s argument is that the exception retains the status quo, but that does not persuade me or my Labour colleagues. The bill, unsurprisingly, is about changing the status quo where necessary, so the justification to exempt council tax and business rates should be based on the merits of the case, not on the basis that it has always been so.

Prescription is an important principle that is in need of reform. We are happy to support the bill at stage 1, but Labour members look forward to further debate and to seeing how it can be improved at future stages.