Meeting of the Parliament 27 June 2018
I join colleagues across the chamber in paying tribute to Annabelle Ewing. I had the privilege of being the parliamentary liaison officer to Michael Matheson and her earlier in the parliamentary session. I wish her the very best and I congratulate him on his new post.
I welcome the opportunity to speak in support of the bill at stage 1. As the bill originates in the work of the Scottish Law Commission, it is—naturally—more technical than many other matters that we debate in the chamber. Given that the Delegated Powers and Law Reform Committee was also appointed as the lead committee, the proposals that the bill contains are situated closer to the consensual end of the spectrum of political debate.
However, given the implications that the law of prescription has for a range of areas, the bill has provoked some broader questions, particularly on the recovery of debt by public bodies. The two areas of contention that emerged from the committee’s deliberations are reflected at paragraphs 111 and 144 of the committee’s stage 1 report and concern council tax and benefits respectively. I will focus my remarks on the issue of debt to local authorities.
Currently, the prescription period as it applies to council tax and non-domestic rates is uncertain. It is probable that the 20-year prescription period applies, but there is no decided case on the point that could offer more certainty, as has been noted. I believe that there is consensus in seeing the bill as an opportunity to bring clarity, but there is contention as to whether the period of prescription should be five or 20 years. Both the advocates of five years and those advocating 20 years have offered strong arguments.
Those who advocate a five-year prescription period include the Law Society of Scotland and Mike Dailly from the Govan Law Centre. The Law Society contends that a 20-year period is unfair. Its reasoning is set out in paragraph 86 of the committee report, which states that
“non-payment of council tax attracts a high penalty charge so that the value of the debt grows over time, and”
there are
“situations where people in good faith believe that they have paid their council tax yet are chased for the debt many years later, particularly in situations where joint and several liability applies.”
Mike Dailly argues that the position in Scotland should equate with that in England, where action to recover council tax debt must be initiated within six years. Mr Dailly offered a further nuance to his position by suggesting a compromise through having—I quote from paragraph 90—
“five year prescription with an exceptional circumstance test to establish whether there had been deliberate behaviour on behalf of the debtor to create delay in enforcing debt.”
Those who advocate retention of 20-year prescription include SOLAR and COSLA, although COSLA’s response to the committee had not been politically endorsed. Both organisations highlight the importance of local taxation to councils and the need for a legal regime that allows effective collection of debt. A further argument that the committee considered was on there being parity between local and national Government with regard to the prescribed period for debt recovery.
Although I am sympathetic to the arguments that have been made by the Law Society and Mike Dailly, I am not yet convinced that the bill that is under consideration today is the appropriate vehicle for delivering significant reform of local authority debt collection. There are three reasons that have led me to that view. First, there has so far been insufficient consultation with relevant stakeholders regarding the implications of any reform. However, as my colleague Stuart McMillan said, efforts have been undertaken in that regard.
Secondly, on a practical level, the process of council debt recovery is normally commenced swiftly, and the consequential issuance of a summary warrant creates, in effect, a 20-year prescription period. It should be noted that that compares favourably with the English equivalent—a liability order—which, as an instrument of English law, is indefinite due to the lack of prescription in that jurisdiction.
Thirdly, I believe that there is a risk of the bill going beyond its SLC-inspired remit and trespassing into policy areas that should be the concern of other committees in the Parliament beyond the DPLR Committee.
Time limits me from going into further detail on benefits, but I look forward to hearing the Government’s response to the issues that have been raised in the debate.
16:08