Citizen Participation and Public Petitions Committee

Meeting date: Wednesday, December 21, 2022

Official Report 724KB pdf

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New Petitions

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Limit on Claims on Estates (Estranged Couples) (PE1965)

Item 3 is consideration of new petitions, the first of which is PE1965, on limiting estranged couples’ claim on an estate after seven years of non-medical separation. The petition, which was lodged by Mark MacLeod, calls on the Scottish Parliament to urge the Scottish Government to limit married but informally separated and non-cohabiting couples’ claim of prior right over descendants of the deceased after seven years of separation.

The Scottish Government’s response states that it has carried out consultations on the matter in recent years. It notes concerns with the proposals, including potential unintended consequences and difficulties in stating when any period of formal separation began. The Government indicates its intention to undertake further research on the law on intestate succession and confirms that it will continue to keep the law of succession under review in the light of its findings.

The Trusts and Succession (Scotland) Bill has been introduced. Members might wish to note that section 72 of the bill proposes reforms to the effect that, when someone dies without leaving children, the spouse or civil partner should inherit the whole estate. Under the proposals, a spouse or civil partner is defined as including the situation in which the couple has separated.

Members might also wish to note that the petition is substantially similar to PE1904. We closed that—as recently as March—on the basis that the Scottish Government had indicated its intention to carry out further research on intestate succession. At that time, the committee also noted that unfortunately, from the point of view of our consideration, the legal experts did not support the action that was called for on the matter.

In the light of that, do colleagues have any suggestions on how they would like to proceed?

Given that the petition is substantially similar to PE1904, which was closed in March on the basis that the Scottish Government indicated its intention to carry out further research on intestate succession, I suggest that the committee considers closing the petition under rule 15.7 of standing orders.

Are there any other suggestions? Could we perhaps couple that with a suggestion to the petitioner that the Trusts and Succession (Scotland) Bill is currently live—it is only at stage 1—and that it might be sensible to engage with that consideration?

I inform the committee that the Delegated Powers and Law Reform Committee, of which I am a member, will be the lead committee on the bill, which is the result of work carried out by the Scottish Law Commission. If the petitioner wants to engage with that committee or he wishes to make any submissions for consideration, I would be happy to speak to that.

That is noted.

Does the committee agree to close the petition and to take that action?

Members indicated agreement.

We thank the petitioner. We are closing the petition for the reasons that we have set out. However, we understand the issues underpinning it, and we believe that there is a forum in which those issues might yet be taken forward.

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Local Knowledge (Conservation Policy) (PE1966)

PE1966, which was lodged by Helen Ferguson on behalf of the Scottish Gamekeepers Association, calls on the Scottish Parliament to urge the Scottish Government to formally recognise local knowledge and ensure that it is given full consideration alongside scientific knowledge throughout consultation and decision-making processes and in policy development, specifically in the conservation arena.

The United Nations Educational, Scientific and Cultural Organization defines local knowledge as

“the understandings, skills and philosophies developed by societies with long histories of interaction with their natural surroundings. For rural and indigenous peoples, local knowledge informs decision-making about fundamental aspects of day-to-day life.”

Helen Ferguson has argued that local knowledge is often considered inferior to scientific knowledge and that the conservation arena is dominated by academia and the scientific elite, which is distanced from the practical daily routine and reality of rural practitioners.

Helen also suggests that the board and leadership of NatureScot have little representation from individuals who have experience of day-to-day land or water management. She also raises concerns about accessibility issues in relation to poor broadband connection in rural areas, leading to challenges when engagement is something that they would wish to pursue.

The Scottish Government’s response to the petition sets out its co-design approach to developing a new Scottish biodiversity strategy, its delivery plan and its work on consulting the public on proposed legislation.

Do members have any comments or suggestions?

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It is imperative that we write to the Scottish Government to ask for its view on whether there are differences, as the petitioner indicates, in the considerations that are given to local knowledge and scientific knowledge. We should also ask how it ensures that people with poor internet access, particularly in rural areas, are given the opportunity to respond to public consultation and what changes the Government intends to make in its practices, including the development of the delivery of conservation policy, following the representations in the report of the independent working group.

Could we also write to NatureScot to seek details on the membership and skills of its board?

How very apposite after our deliberations this morning.

It is, considering what we heard earlier.

Can we ask NatureScot when it will invite someone from the Scottish Gamekeepers Association to join its board? It is strange that there is a group that represents the people who work daily on the land but that is completely unrepresented on NatureScot, as far as I understand? Those people are not sitting clattering keyboards—they are not keyboard warriors. They are actually managing nature and looking after animals for which they care deeply. NatureScot is denied the opportunity of the centuries of experience of people who care deeply for the countryside and the animals of Scotland.

I think that we agree that we will ask that question as well.

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A82 Upgrade (PE1967)

PE1967 is on protecting Loch Lomond’s Atlantic oak wood shoreline by implementing the high-road option for the A82 upgrade between Tarbet and Inverarnan—I am tongue twisted now. The petition, which was lodged by John Urquhart on behalf of Helensburgh and District Access Trust and the Friends of Loch Lomond and the Trossachs, calls on the Scottish Parliament to urge the Scottish Government to reconsider the process for selecting the preferred option for the planned upgrade of the A82 between Tarbet and Inverarnan, and to replace the design manual for roads and bridges—the DMRB—based assessment with the more comprehensive Scottish transport appraisal guidance.

I am delighted that we are joined by Jackie Baillie for our proceedings on another nature-related petition, as it happens.

Absolutely; I make clear that I am nothing to do with NatureScot, if that pleases the committee.

On that basis alone, we welcome you to our proceedings.

The petitioners tell us that they have engaged in a campaign to inform officials, politicians and the wider public about the issues that are posed by the proposal to upgrade the A82 between Tarbet and Inverarnan, and have highlighted what they view as the advantages of pursuing the high-road option.

In response to the petition, Transport Scotland has outlined the process that was undertaken to assess the options and identify its preferred option to improve road standards on the A82. Transport Scotland considered that the approach that it has taken is rational and proportionate, and has confirmed that detailed development and assessment of the preferred route option is on-going.

The petitioners have responded to the information provided by Transport Scotland, highlighting concerns that the route analysis that was undertaken appears not to have followed the STAG assessment framework and has ignored costs associated with delays and diversions during construction, maintenance and after serious accidents.

The petitioners also note the approaches that have been taken to other road infrastructure projects, such as the M74 extension in Glasgow and the A9 upgrade at Killiecrankie, as positive examples of where the economic and environment impacts were more fully explored during the appraisal process.

Before we open this up for discussion, I ask Jackie Baillie whether she would like to contribute her thoughts in support of the petition.

I thank the convener and committee members for allowing me to speak. I am joined by the petitioners; they are in the public gallery, so I am sure that, if I get anything wrong, they will be passing me notes.

As you rightly point out, at the heart of the issue is the replacement of the A82 between Inverarnan and Tarbet, much of which runs through my constituency. As you rightly highlight, the problem is that the design was undertaken using the design manual for roads and bridges rather than the more formal and more comprehensive STAG process, which we are all used to.

The context is important, because it will be the key capital expenditure in the national park. It is probably the biggest project of its kind and the most significant. Over the years, the Helensburgh and District Access Trust has worked with the national park to develop paths and walkways throughout some of our most iconic countryside. For example, they have developed the three lochs way, which runs from Balloch to Inveruglas and is one of the great Scottish trails. The hope is that we might be able to join it up with Ardlui and create a round-the-loch trail. The potential is enormous, but I do not need to remind any of you—I am sure that you have all visited Loch Lomond—of the heritage of the area and of what an outstanding environment it is. I believe that it is the most beautiful part of Scotland, but I am biased.

Transport Scotland has simply ignored the idea of giving consideration to an alternative option rather than just pushing ahead with the existing road. It has not considered that to the extent that we think possible. If we adopted a high-road option, rather than the existing route, we would protect oak woods and preserve the shoreline, we would have a walking and cycling route on the old road, and people would be able to access that northern part by foot to see some of the forest and woodland on the shoreline. We would have a great walking trail, the road safety issues at Arrochar primary school would be resolved, and we would have a faster and more direct route. All those benefits seem to have been ignored by the appraisal process.

That is a real opportunity but, when you look closer at this, it looks as though the appraisal of the shoreline route—the existing route—and the high route was not done in an unbiased manner. For example, not that I would know much about this, convener—I am sure that you do—but three tunnels were proposed and were costed, whereas no tunnels are required or appear on the diagrams and plans. The three tunnels that do not exist were costed at £90 million per kilometre, whereas PricewaterhouseCoopers estimates that cost to be £30 million per kilometre. I hesitate to say this, but it looks as though somebody was trying to stack the consideration against the alternative route so that they could stick to their engineering plans as they stood. That inflated the cost by £146.55 million. It is unrealistic to suggest that these costs match in some way.

There was insufficient consultation with the local community, and the groups behind the petition, including Friends of Loch Lomond and the Trossachs, were not consulted. They have had to dig away to find out that information. We have a once-in-a-lifetime opportunity to get this right. I understand the frustration of engineers who just want to get on and build the road on its current configurations. I have to say that that would cause traffic chaos, and the opportunity for a new route absolutely needs to be grabbed.

I know that the committee likes to get out of Holyrood, so may I invite you all to visit the area? We will walk you round the route and the potential options. However, you might also want to consider taking evidence from Transport Scotland; from the national park authority, which has a significant say in the matter; and from the minister, because our judgment is that there has been no political oversight of the issue. We have an opportunity to do the right thing, and if the committee suggested a STAG appraisal, we are confident that the high road would emerge as the preferred option.

Thank you. You have outlined circumstances that are familiar to us in our consideration of petitions on many and diverse issues.

Colleagues, we have a bit of work ahead of us in relation to the petition, and some of Miss Baillie’s suggestions might figure at another stage as we go along the route. It might even be that we come and visit. There is no election campaign in the immediate future for us to come and participate in, but it would probably be quite useful to have a look at some stage.

I ask colleagues how they think that we might take things forward.

I support the proposal that we carry out a further inquiry into the matter. It is a broader national consideration as well, because I know—certainly from previous representations that I have had from Railfuture Scotland—that there is a deep concern that Transport Scotland is attitudinally predisposed to heavily overengineering solutions for trunk-road building, and that it has an attitudinal dislike of rail development. It will, for example, overly analyse and put onerous requirements on rail programmes but will take forward elaborate schemes for trunk-road construction.

There is a general consideration with regard to how transparent Transport Scotland is in developing such projects, and a broader national consideration about policy and how accountable the agency is. In this particular instance, there is deep concern about the coastal route along Loch Lomond side being damaged.

I am mindful that Sir Robert Grieve, who, along with Tom Weir, was one of the masterminds of the national park project back in the 1970s, said that he did not want the area to end up like the Italian lakes, built up from end to end. It would be a real travesty if the project were to go ahead and destroy the spirit in which the national park was created.

You are not as young as you look, Mr Sweeney.

I am just a fan of “Weir’s Way”—that is all.

Was there a proposal for us in there? I know that you support the petition.

We should go forward with the proposal and invite Transport Scotland to make representations on the process that it has followed. We might also want to pursue a site visit.

We can perhaps ask for a STAG assessment from Transport Scotland. Are there any other views?

I wonder whether we could write to Argyll and Bute Council and to Loch Lomond and the Trossachs National Park Authority to seek their views on what is planned for the A82.

Okay—so we are writing to Transport Scotland on the issues that we have identified, writing to Argyll and Bute Council and writing to Loch Lomond and the Trossachs National Park Authority. Are there any other suggestions?

I have two points. First, I note that Jackie Baillie referred to a PWC report on the cost of the tunnels. I am looking in our papers to see whether there is specific reference to that; perhaps there is, and I have missed it. I would be keen to get more details on that, and copies of the documents, in order to look into the points that Ms Baillie made about the relative costings, which we need to look at carefully.

Secondly, I know from when I formerly represented Lochaber a rather long time ago—when Mr Sweeney was even younger than he currently is—that, among people living in the Oban and Argyll area who are also served by the A82, there is huge support for upgrading the A82 along Loch Lomond side. Sadly, that has been the case for many decades.

I wonder whether, for fairness, we might reach out to the community—perhaps to the chamber of commerce. I know that some individuals in Lochaber and Argyll were involved, because they have strong views about the importance of proceeding with the upgrade of the road.

Yes—I think that I saw some engagement from the gallery there, so I suspect that the petitioners will be able to assist us on one or two of those issues, if the clerks wish to liaise further with them.

We are interested in taking forward the issues that the petition raises, and we have identified a fairly comprehensive range of agencies and individuals from whom we will seek further evidence that we can consider in due course. Are members content with that?

Members indicated agreement.

I thank Jackie Baillie, and I thank once again our petitioners, who have joined us this morning.

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Early Learning and Childcare Funding (Online Accounts) (PE1970)

PE1970, which was lodged by Sharon Fairley on behalf of the Scottish Private Nurseries Association, is on the creation of an online account for parents to manage the 1,140 hours of early learning and childcare funding. It calls on the Scottish Parliament to urge the Scottish Government to reform the funding model for the 1,140 hours of early years learning and childcare to allow parents to have direct control of childcare funding via an online account.

The Scottish Parliament information centre briefing highlights:

“The Funding Follows the Child approach is intended to be ‘provider neutral’”,

which allows

“families ... to choose their preferred ELC setting”.

It notes:

“Submissions to the Education, Children and Young People Committee ... argued that some PVI providers’ funding from local authorities was not meeting the full cost of the place.”

The Scottish Government states in its submission that it consulted on the delivery of ELC and received

“some support for ELC accounts”,

but it notes that the limitations were a

“lack of certainty for private providers and local authorities; and risk of parents using funds for other things.”

The submission also notes that investment and time would be required to deliver a new system.

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The National Day Nurseries Association has written to the committee and has stated its support for the action called for in the petition. It highlights discrepancies in funding between local authority ELC and other providers, and it argues that a childcare passport would provide parents with choice, flexibility and affordability. It notes that

“it is difficult for local authorities to be both funder and provider”.

Do colleagues have any comments to make or suggestions for action?

There are many merits in the petition, convener, and it is important that we write to seek the views of stakeholders on the action that it calls for. Those might include COSLA, Early Years Scotland, the Scottish Childminding Association, and the National Parent Forum of Scotland. They could all give us a good indication of views about the petition.

Are colleagues content with that?

Members indicated agreement.

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Motorcycle Theft (PE1971)

PE1971, which was lodged by Kenneth Clayton on behalf of the Motorcycle Action Group, calls for robust action to stop motorcycle theft. The petition calls on the Scottish Parliament to urge the Scottish Government to increase the actions available to prevent and reduce motorcycle theft by empowering the police to pursue and tactically engage thieves and by reviewing sentencing policy to allow the courts to implement tougher punishment for those who are convicted of motorcycle theft, including the use of mandatory custodial sentences for those who carry weapons or groups who threaten individuals with violence.

Kenneth Clayton tells us that there has been an increase in the number of motorcycles that are being stolen in cities, with Edinburgh being particularly affected. He goes on to highlight concerns that the current police policy not to pursue or engage means that thieves behave with impunity, a position that is out of sync with that of other police forces across the UK.

The Scottish Parliament information centre briefing notes that Police Scotland has taken targeted action to tackle motorcycle theft and associated antisocial behaviour in Edinburgh through operation Soteria, which saw police recover £600,000 of stolen motorbikes.

In responding to the petition, the Scottish Government states that there is

“a wide range of effective actions currently available to Police Scotland to prevent and reduce motorcycle theft”.

As the use of those actions would be an operational matter, however, the Scottish Government has indicated that the committee might wish to explore them further with the chief constable or the Scottish Police Authority.

In relation to the petition’s call for mandatory custodial sentences, the Scottish Government has indicated that judges are best placed to decide on the appropriate sentence for each offender. The Scottish Government also notes that the Scottish Parliament has previously rejected calls for mandatory sentencing on the basis that it removes discretion from the court.

Do members have any comments or suggestions for action on the petition? We could do with some clarification in the first instance.

Perhaps the committee might like to write to Police Scotland and the Scottish Policy Authority to ask how many incidents of motorcycle theft have been recorded in each of the past five years, what further action they are taking to tackle motorcycle theft now that operation Soteria has concluded, and whether they plan to roll out similar initiatives across the rest of Scotland.

It would also be useful to write to the Crown Office and Procurator Fiscal Service to seek information about the number of cases of motorcycle theft in each of the past five years and the outcomes of those cases.

Are members content with those proposals?

Members indicated agreement.

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Assisted Dying (PE1972)

PE1972, which was lodged by Kevin Sutherland, is on allowing assisted dying for people with long-term mental illness and consenting capacity. The petition calls on the Scottish Parliament to urge the Scottish Government to ensure that all future legislation on assisted dying includes provision for access to assisted dying for anyone of adult age who is suffering from a long-term mental illness and/or who has compelling philosophical reasons for wanting to terminate their life, provided that they have sought psychological or psychiatric assistance that resulted in no change to their condition and that they continue to have consenting capacity.

Kevin Sutherland tells us that the mental suffering that people endure can be just as torturous and painful as any physical condition and that, in the event that assisted dying is made legal in Scotland, people with incurable mental health issues should be able to make the case for ending their lives. Kevin also tells us that many people travel abroad to end their lives in a controlled environment. He intends to take that option, but he is concerned for those who do not have the resources to undertake such a journey and who, he feels, are being left to suffer in silence.

Members will be aware that Liam McArthur has now earned the right to introduce his proposed assisted dying for terminally ill adults (Scotland) bill. As the SPICe briefing notes, although the bill is currently limited by what was included in the final proposal, other members could lodge amendments at stages 2 and 3 that would seek to alter the scope of the bill. In its response to the petition, the Scottish Government has indicated that it

“would not support any legislation or amendment”

with regard to allowing

“Assisted Dying for people with long-term mental illness and consenting capacity”

and that it would be very opposed to that.

Do members have any comments or suggestions? Under rule 15.7 of standing orders, I am tempted to suggest that, although the issues that are raised in the petition are important, it would not be right for the committee to set up a parallel inquiry or investigation when Liam McArthur’s proposed member’s bill on the issue appears to have the ability to proceed and be considered by the committee in due course. In any event, the Scottish Government, in respect of this particular petition, has said that it will certainly not support any legislation in that regard. However, the issue might be considered in due course, when the bill is progressing through Parliament. I do not know whether other members are minded to agree with that proposal.

I support Liam McArthur’s proposed bill, so I am happy to agree with that proposal. If any member wants to lodge amendments at stage 1, 2 or 3, in order to test the Government, they can do so. I am quite happy to close the petition under rule 15.7.

In making that suggestion, I should declare that I, too, am a supporter of Mr McArthur’s proposed bill in principle.

I agree with the proposal to close the petition, and I think that we should advise the petitioner of the methods through which they can engage with the legislative process.

I think that we can do that.

We thank the petitioner for the issue that he has raised.

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Cohabiting Couples (Division of Assets on Separation) (PE1973)

PE1973 is about ending the use of sheriffs’ discretion when ruling on civil cases and providing clear legal guidance on division of assets. The petition, which was lodged by Sandy Izatt, calls on the Scottish Parliament to urge the Scottish Government to review the Family Law (Scotland) Act 2006 and provide greater clarity on the division of assets in cases of cohabiting couples who are separating, by removing the use of sheriffs’ discretion rulings in civil cases; providing clear legal guidance to the Law Society of Scotland on the division of assets for cohabiting couples; allowing appeals to be heard when it is determined that a sheriff has the rule of law wrong but has used their discretion to prevent an appeal at no cost to the appellant; and publishing information on what resources have been allocated to provide clear legal guidance.

Sandy Izatt tells us that a “lack of clarity” in the law regarding the division of assets for cohabiting couples has resulted in cases proceeding to court and taking up “valuable court time”. He suggests that the provision of clear legal guidance would offer clarity on that issue and enable matters to be resolved without the need for a court hearing.

In responding to the petition, the Scottish Government states that the Family Law (Scotland) Act 2006

“introduced legal protections for cohabiting couples should their relationship come to an end by separation or death.”

The Scottish Government also highlights that the Scottish Law Commission is carrying out a review of aspects of family law. Following the Scottish Government’s response, members might be aware that the Scottish Law Commission has now published its report and draft bill on cohabitation.

We have also received a written submission from Mr Izatt, who raises concerns that, where the division of assets has not been clearly defined in law,

“there is too much room for argument by competing solicitors,”

which leaves sheriffs with discretion

“to rule on how they feel, rather than what is fair, true and just.”

That is interesting. Do members have any suggestions?

I think that further information is required in order for us to continue with the petition. I suggest that we write to the Scottish Government to seek its response to the recommendations that are proposed by the Scottish Law Commission in its report on cohabitation and the timetable for bringing forward legislation in that area. I also suggest that we write to the Scottish Law Commission to seek information on what consideration has been given to the use of judicial discretion as part of the review on aspects of family law. In addition, I suggest that we write to the Law Society of Scotland and Family Law Association to seek their views on the issues that are raised by the petitioner. I think that all of those suggestions have some merit.

Since there are no further suggestions from members, are we content to proceed on that basis?

Members indicated agreement.

That concludes consideration of new petitions. We will move into private session to consider item 4. As noted in the agenda, the committee will move back into public session in approximately 20 minutes, in order to hear from the Cabinet Secretary for Health and Social Care on our final petition. Although that is not our normal practice, we have agreed to do so in order to facilitate our ministerial guests’ giving evidence this morning.

11:10 Meeting continued in private.  

11:30 Meeting continued in public.