Meeting of the Parliament 27 June 2018
Like Daniel Johnson, I start by acknowledging the contribution that was made by the new justice secretary’s predecessor, Michael Matheson, and by Annabelle Ewing. I am sure that the new justice secretary will have advised his predecessor that despite his move to the transport portfolio, he has not got rid of me yet, because I will beat a path to his door first on ferries and thereafter on many other issues. I look forward to working with Humza Yousaf in his new role.
I am conscious that unlike most colleagues in the chamber, except Daniel Johnson, I do not have the advantage of having listened to the stage 1 evidence. That is never ideal and—as Graham Simpson acknowledged—we are discussing a highly technical bill, so it makes me rather nervous. I am sure that the justice secretary feels that, too.
Nonetheless, having read the committee’s report—I pay tribute to the work that was done by the committee—and the many briefings from stakeholders, for which I am more than usually grateful, I wish to raise a small number of points in this brief contribution to the debate.
First, it is worth my while to confirm that the Scottish Liberal Democrats welcome the bill, which is a welcome attempt to modernise and to bring greater clarity to the law on prescription. It seems to be self-evident that establishing a cut-off point for claims to be raised or rights to be asserted has the advantage of providing certainty, so that individuals and businesses have some prospect of being able to organise their affairs and to plan for the future. Even prospective pursuers will benefit from the enforced discipline of making timely claims. The Law Society pointed out that
“many years after the fact, evidence will have deteriorated or disappeared and relevant individuals may no longer be traceable, or indeed have passed away.”
Although that does not preclude the possibility of unfairness arising in individual cases, the principle that underlies the bill appears to be sound.
I will touch on a couple of specifics. I note the lively debate around whether council tax and business rates should be exempt from the five-year prescription. In its briefing, the Law Society outlined half a dozen reasons why it believes that that is not justifiable and might produce unfair results. Although I think that councils, like others, should be required to do everything possible to pursue debts in a timely fashion, I struggle to accept that the 6 per cent penalty charge that attaches to unpaid council tax would act as a disincentive on the collecting council. I cannot see a council adopting a strategy, which is what it would have to be, to deliberately delay collections in order to rack up penalty charges. The Law Society seemed to acknowledge that, and it undermined its own argument when admitting that
“uncollected sums are quite small and if the council has not sought to enforce within 5 years, there may be little practical appetite to pursue them many years later.”
I have more sympathy with the concern of the Convention of Scottish Local Authorities that introducing a five-year prescription would
“dis-incentivise payment and would lead to a decline in in-year collection.”
That said, I note that the committee was unable to reach an agreed position on that—I also note Daniel Johnson’s comments on the matter—and that the committee is looking for further rationale for the exception in advance of stage 2. That seems to be a sensible strategy. Like other members, I will look with interest at the forthcoming responses.
In relation to the discoverability test, the bill’s proposal to start the five-year period only when a pursuer knows that they have suffered a damage, injury or loss, that it was the fault of someone else by act or omission, and that they can identify that party, offers on balance more upsides than downsides, particularly for legal certainty.
I want to flag a concern that was highlighted by the Law Society, again, about the treatment of existing obligations that might be affected by the new law. In a bill that is aimed at delivering clarity, the confusion around claims that are prescribed under existing law but not under the new law is unhelpful. I hope that the Government will be able to address that at stage 2.
For now, I thank the committee and those who gave evidence, and confirm that the Scottish Liberal Democrats will support the bill at decision time.
15:51