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Consumer Scotland Bill: Stage 3

– in the Scottish Parliament on 6th May 2020.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 proceedings on the Consumer Scotland Bill. Members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments.

As is usual practice, the division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, one minute will be allowed for the first division following any grouping.

Any member who wishes to speak in the debate on a grouping should press their request-to-speak button as soon as I call the first amendment in that grouping.

Members should now turn to the marshalled list.

The Presiding Officer:

Group 1 is on consumer Scotland general function. Amendment 1, in the name of Andy Wightman, is grouped with amendments 2 and 19.

Photo of Andy Wightman Andy Wightman Green

Amendments 1 and 2 arise from the productive discussions that took place with the Minister for Business, Fair Work and Skills and his officials during and in the aftermath of stage 2 of the bill.

Amendment 1 is concerned with the general functions of consumer Scotland. I was concerned in general terms that the bill was focused narrowly on a very traditional view of consumerism—one that is linear, transactional and typically about trading standards, consumer rights and so on. As we now know, consumerism and consumption are very big global problems. If society were to consume what we consume here in the United Kingdom, we would need almost three planets’ worth of natural resources.

I was therefore keen to explore whether consumer Scotland could have a general function of

“promoting a reduction in the consumption of natural resources.”

That was my starting point at stage 2, which led to an interesting discussion around the definition of “natural resources”. Happily, the minister was keen to have a conversation about the matter, as well as the view that consumer Scotland should also have as part of its general functions a broader purpose of promoting “environmentally sustainable practices” in any event.

I was very pleased to meet the minister and I think that the Government is still in agreement with my amendment 1, which means that consumer Scotland will have an additional general function of promoting the

“sustainable consumption of natural resources”,

which is a fairly well-understood term in international law.

Amendment 2 is designed to incorporate into the bill references to “wellbeing”, which is coming to the fore as a concept in economic thinking. Indeed, the Scottish Government has made several references to and is doing quite a bit of work around wellbeing. In conversation with the minister, we have agreed—at least, I think that he is still in agreement—an amendment to the bill that will provide for consumer Scotland promoting what is now referred to as

“prosperity and other aspects of wellbeing”.

I commend amendments 1 and 2 to members, and I move amendment 1.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I am pleased to support amendments 1 and 2, in the name of Andy Wightman. As I noted at stage 1 and again at stage 2, the Government has always been of the view that consumer Scotland should take a wider view of consumption than traditional ideas of buying goods on the high street.

We have always intended that consumer Scotland should have a role in considering environmental issues, and we have noted from the start that consumers will play a significant role in tacking the global climate emergency. That is one reason that the body is so important.

I thank Mr Wightman for the time that he took to speak to me about these matters. I believe that his amendments further the goals that I have laid out.

I hope that amendment 19, which is a Government amendment, is uncontroversial. It clarifies that, as was made clear in the policy memorandum, the specific functions that are set out from section 3 up to the proposed recall of goods function, are not independent of the general function of consumer Scotland, as set out in section 2. The amendment will have little impact on consumer Scotland’s day-to-day operation, but it offers useful clarity, particularly in the light of the focus that section 2 has received during the bill’s passage, and the significant revisions that it will undergo if Mr Wightman’s amendments are agreed to today, as I hope that they will be. Amendment 19 will also clarify that the product recall function forms part of the general functions of consumer Scotland.

If Jackie Baillie’s amendment, which we will turn to in a moment, is agreed to—as I hope that it will be—that clarification might be useful because, unlike the functions that are set out in sections 3 to 5, the establishment and operation of a product recall database is something that consumer Scotland must do rather than something that it may do to advance its general function. Therefore, I hope that members will join me in supporting all the amendments in group 1.

The Presiding Officer:

I have no indication that any other member wishes to contribute. Does Andy Wightman wish to make any remarks in summing up?

Photo of Andy Wightman Andy Wightman Green

No.

Amendment 1 agreed to.

Amendment 2 moved—[Andy Wightman]—and agreed to.

Amendment 19 moved—[Jamie Hepburn]—and agreed to.

The Presiding Officer:

Group 2 is on product recall. Amendment 3, in the name of Jackie Baillie, is the only amendment in the group.

Photo of Jackie Baillie Jackie Baillie Labour

As members know from the stage 1 debate, I call amendment 3 the Whirlpool amendment; I will explain why in a minute.

Amendment 3 will require consumer Scotland to establish and operate a central database of major recalled goods to help inform consumers who have been adversely affected. It will be a single, co-ordinated and trusted point of information about all the major product recalls across the country that affect consumers in Scotland.

Let me illustrate why I believe that that is an important measure for us to take by talking about Whirlpool. Almost 18 months ago, Whirlpool embarked on the recall of 1 million washing machines and tumble driers across the UK. The recall affects Hotpoint and Indesit machines. The recall was not due only to a minor technical fault—in some instances, house fires were caused and significant damage resulted. However, the pace of the recall has been far too slow. Some people have not registered their machine, but there is also a lack of easily understood information. Many more people still have the machines in their homes. Just last week, Whirlpool announced that another 21 different models also need to be recalled. The problem continues, and it is clear that not everyone is aware of it.

Four out of every five house fires in Scotland are caused by faulty white goods. That is dangerous, and it means that we should act. Creating one trusted point of comprehensive information on product recalls that will help support and protect consumers in Scotland is the right thing to do.

I am pleased that the Scottish Government has sought to work with me in developing my amendment, and the collaborative approach that the minister has taken is appreciated. I record my thanks to Electrical Safety First for its work in strengthening our legislation and reducing the number of fires, accidents and deaths that are caused by electricity.

I move amendment 3.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

As I indicated a few moments ago, I am very pleased to support amendment 3. I am very grateful for Ms Baillie’s work in lodging what will always be known as the Whirlpool amendment.

I indicated at stage 1 that I was open to the idea of consumer Scotland having such a function. As I said at stage 2, the Government recognises the significant danger that is posed by the failings of the current recall system. Ms Baillie has identified the challenge of the small proportion of consumers who respond to recall notices. There are other areas of concern. It is important to remind ourselves that this is not just an issue of products being faulty and not working, and the attendant problems that that can cause. That is bad enough, but the matter can also be very dangerous. Like Jackie Baillie, I want to record my thanks for the work that is done by Electrical Safety First.

I am grateful to Ms Baillie for discussing the issue with me in advance of both stage 2 and this final stage of the bill. I hope that amendment 3 will help to address some of areas of concern and serve to demonstrate the positive value that consumer Scotland can bring.

The amendment requires consumer Scotland to make publicly available a database of recalled goods, either by developing that database or by contracting some other body to develop it. I make that point because I have always said that consumer Scotland will be an independent body and must be allowed to make its own decisions on how it carries out its work and its functions.

I welcome amendment 3 and hope that it will be agreed to by Parliament.

The Presiding Officer:

No other members wish to make a contribution. Does Jackie Baillie wish to add any comments?

Photo of Jackie Baillie Jackie Baillie Labour

Brevity is a fine art in politics. I will not add any other comments.

The Presiding Officer:

Thank you Ms Baillie; that is hugely appreciated.

Amendment 3 agreed to.

Group 3 is on vulnerable consumers. Amendment 8, in the name of the minister, is grouped with amendments 10, 4, 17 and 5 to 7.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I will try to keep my remarks short. The definition in the bill of the word “vulnerability” has been the subject of much discussion, both here in the chamber at stage 1 and in the committee at stage 2. There were also deliberations before stage 1. I am delighted that significant co-operation across the Parliament has led to a consensus that the definition that we now have is the right one.

Amendments 8, 10 and 17 do not alter the definition of vulnerability that was agreed at stage 2. Instead, they move the agreed definition from section 6(6) to section 23, which deals with general interpretation. That move is necessary because the definition of a vulnerable consumer currently applies only for the purposes of sections 6 and 13. The Government amendments in this group will ensure that the definition will apply to all references in the bill to vulnerable consumers.

We have taken that step in the light of Ms Baillie’s amendments. If those amendments are agreed to—as I hope that they will be—references to vulnerable consumers will also be introduced to section 16 and schedule 1, which will make a bill-wide definition desirable. The Government supports Ms Baillie’s amendments, which I believe are a useful additional means of allowing consumer Scotland to demonstrate that the interests of vulnerable consumers are central to its work. I am, again, grateful to Ms Baillie for taking the time to discuss those matters with me.

The Scottish ministers will play their part in that as a result of amendment 6. It is right that the board should include representation from those who know what it is to be a vulnerable consumer. I am pleased that Ms Baillie lodged the amendment, having refined her stage 2 amendment on the topic. I make a commitment that when the bill is passed this evening—as I hope that it will be—the Scottish ministers will take that duty and responsibility very seriously.

I move amendment 8.

Photo of Jackie Baillie Jackie Baillie Labour

I am pleased to speak to amendments 4 to 7 in my name, and to support the minister’s amendments. This area was subject to discussion with the minister and his officials following stage 2, and I am grateful to him for that.

The set of amendments seeks to ensure that consumer Scotland includes somebody who has had experience of being a vulnerable consumer, so that we benefit from their lived experience and so that their considerations are at the heart of the new organisation. We know that organisations are more likely to get things right from an early stage in their operation if they listen to and involve people who have lived experience.

As we have heard, amendment 4 will require ministers to produce a report to set out how the interests of vulnerable consumers have been considered.

I thank the Scottish Co-operative Party for its advocacy in this area, and I thank the minister for his support. I hope that members throughout the chamber will support all the amendments in group 3.

Amendment 8 agreed to.

The Presiding Officer:

Group 4 is on inclusive communication. Amendment 20, in the name of Ruth Maguire, is grouped with amendment 21.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

I thank Inclusion Scotland, Camphill Scotland and the Royal College of Speech and Language Therapists Scotland—in particular Kim Hartley Kean—for their support in campaigning for inclusive communication.

One of the bill’s aims is to safeguard consumer interests and ensure that consumers can play a part in building a more inclusive and sustainable economy, and amendment 20 is about including people. Inclusive communication is communication that enables the largest number of people in the population to be included. For an organisation, that is about encouraging, supporting and enabling people to use whichever ways of expressing themselves they find easiest.

Who is inclusive communication good for? It is good for everybody. Communication disadvantage is strongly associated with socioeconomic disadvantage, and many people who are living with disabilities and long-term conditions will also experience communication disadvantage. That includes 100 per cent of people who have autistic spectrum disorder; 100 per cent of people who have dementia; around 80 per cent of people who have a learning difficulty; and around 30 per cent of people who have had a stroke. However, as I said, inclusive communication benefits everybody, because no one has ever complained that a public service was too easy to understand or made it too easy for them to get their point across.

The main question might be why we should put inclusive communication in the bill rather than leaving it for guidance. There has been Scottish Government guidance on inclusive communication for 10 years, but it is not broadly applied across the board. I lodged a similar amendment to the bill that became the Social Security (Scotland) Act 2018, which set out in law a requirement for Social Security Scotland to implement inclusive communication approaches. That has worked really well, because it was in legislation from the beginning and it is not open to interpretation or duplication as it would be if it had been left to guidance.

I move amendment 20.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I am very supportive of amendment 20. As Ruth Maguire observes—and as has been my own experience—no one complains when a public body communicates very clearly. Of course, the converse is also true, and members will all have received complaints and concerns where that has not been the case. On that basis, it is vital that consumer Scotland reaches as many consumers as possible, and amendment 20 will help to achieve that.

I thank Ruth Maguire for meeting me to discuss the objectives that her two amendments seek to achieve. Amendment 20 would mean that

“Consumer Scotland must have regard to the importance of communicating in an inclusive way” when it publishes its annual reports and its consumer welfare reports. Indeed, the emphasis on the necessity of communicating in an inclusive way is laid out using a similar approach in the Social Security (Scotland) Act 2018, which I believe Ms Maguire was instrumental in developing.

I hope that by agreeing to amendment 20 we will send a clear message that the Government, and indeed the Parliament, values inclusive communication and that we are committed to encouraging it wherever and whenever possible. I am grateful to Ruth Maguire for lodging these important amendments, and I urge Parliament to support them.

Amendment 20 agreed to.

Amendment 21 moved—[Ruth Maguire]—and agreed to.

The Presiding Officer:

Group 5 is on consultation with designated regulators. Amendment 22, in the name of the minister, is grouped with amendment 18.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

The amendments in group 5 relate to consumer Scotland’s information-gathering powers. Designated regulators are given a role in helping to ensure compliance with those powers. Jackie Baillie’s amendment 18 and my amendment 22 are both about ensuring consultation when regulators, or those whom they regulate, are specified in regulations made under section 8.

I am grateful to the Law Society of Scotland for raising the issue of consultation, and I am also grateful that Ms Baillie intervened to ensure that it could be considered in the debate. I am fully supportive of the intent behind Ms Baillie’s amendment 18. As a matter of course, we will always consult those who would be named in regulations. Nonetheless, I can see the value in putting such a requirement in the bill. However, as it is drafted, Ms Baillie’s amendment imposes a requirement for ministers to consult designated regulators whenever there is a proposal to designate a new regulator. When regulations are made for the first time, there will, of course, be no existing designated regulators. Amendment 18 therefore does not guarantee proper consultation with those who are about to be designated.

I believe that amendment 18 presents another challenge, in that it requires consultation with all designated regulators every time. That means that if there are already a number of designated regulators, each and every one of them must be consulted on the proposal to designate someone new, even if that new regulator operates in an entirely different field. I am, of course, open to the possibility, and am cognisant that there might be—indeed, it is likely that there will be—cases in which designating a new regulator could impact on a regulator that has already been designated under section 8. However, I believe that such a situation is also likely to be rare. In my view, it would therefore be unnecessary to require, as standard, consultation with all designated regulators.

The Government’s amendment 22 maintains the consultation requirement that Ms Baillie’s amendment 18 seeks to establish. It also notes that those whom it is proposed to designate must be consulted, but it removes the additional blanket requirement to consult all existing designated regulators.

I hope that I have reassured Ms Baillie that her intent in lodging amendment 18 is encompassed in my amendment 22. I therefore urge her not to move amendment 18.

I move amendment 22.

Photo of Jackie Baillie Jackie Baillie Labour

I rise to speak in favour of the minister’s amendment 22 and to explain why I intend not to move amendment 18.

Amendment 18 arose from an approach from the Law Society of Scotland, which I shared with the minister because time was extremely tight—we were up against the deadline. I am delighted that the Scottish Government has agreed that there is a gap in the legislation and has lodged its own amendment, which has the same intention as my amendment 18. As the minister has confirmed, the Scottish Government’s view is that amendment 18 would have the unintended consequence of imposing an obligation to consult all designated regulators whenever a new single regulator was to be designated.

I accept that the Scottish Government’s amendment 22 makes the position clearer. On this occasion, and for that reason, I am therefore content not to move my amendment 18 in favour of amendment 22 in the name of Jamie Hepburn.

Amendment 22 agreed to.

The Presiding Officer:

Group 6 is on information gathering and exemptions. Amendment 9, in the name of Jackie Baillie, is the only amendment in the group.

Photo of Jackie Baillie Jackie Baillie Labour

Amendment 9 arises from a further discussion with Electrical Safety First. From my early days of seeking to understand it, I recall that “may” and “must” have the same effect in legislation. However, I note that the minister has previously said that he was allowing for consumer Scotland to outsource the creation of the database if it wished to do so, although that would be a matter for it to consider.

Amendment 9 therefore seeks reassurance on that point. Although I hope that consumer Scotland would not outsource the creation of the database, the amendment would make it clear that it would have a duty to publicise and disseminate information about major product recalls. That is, of course, consistent with the committee’s recommendation in its stage 1 report. Even if consumer Scotland were to decide to do the database itself, we could still find ourselves in a situation in which it published the details of major recalls on its database but then was not required to publicise them any more widely—hence the replacement of “may” with “must” to put that beyond all doubt.

I will, however, as I always do, listen carefully to what the minister says and I hope that he can either provide me with some reassurance that consumer Scotland will publicise the details of major recalls irrespective of whether we use “may” or “must”, or just support my amendment.

I move amendment 9.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I respect the fact that Ms Baillie is advocating for clarity and certainty. However, if amendment 9 was agreed to, it would have wider applicability than what she is seeking to add. On that basis, I am somewhat concerned by what is laid out in the amendment. In my view, the bill already provides the clarity and certainty that is required.

The requirement could stray into areas related to information that could be withheld in court. Section 12(1) of the bill clearly states that notices requiring information cannot cover anything that could be withheld in court. I know that the Law Society of Scotland raised that issue, which is a matter that it should be familiar with. Framing the exemption in terms of information that could be withheld in court has precedent in other legislation as well.

On the points that Ms Baillie has raised, I feel that it is still important that we provide the organisation that we seek to establish with the scope and the ability to determine its work. Of course it is important that the organisation considers that in the context that Ms Baillie laid out but, across the board, I am concerned about the applicability of this amendment in relation to information that can be withheld in court. There are precedents for that in a raft of other legislation. On that basis, I urge Ms Baillie not to press her amendment 9, with the assurance that I think that the bill already achieves what she is seeking.

Photo of Jackie Baillie Jackie Baillie Labour

I understand what the minister is asking. I am not altogether clear that he gave me the assurance that I am looking for so I will try again, because I want to be helpful. In order for me not to press the amendment, I need the minister to agree—and I am happy for him to intervene to clarify this—that he expects consumer Scotland to publicise the details of major recalls that it publishes on its database. Before I sit down, if the minister would like to intervene and say yes—

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

Within the parameters whereby consumer Scotland is an independent body, yes, that would be the expectation.

Photo of Jackie Baillie Jackie Baillie Labour

I have heard very clearly from the minister what his intentions are, which was much more helpful than the note provided to him by the civil service. On that basis, I will not press amendment 9.

Amendment 9, by agreement, withdrawn.

The Presiding Officer:

Amendment 10, in the name of the minister, was debated in group 3. I ask the minister to move amendment 10.

The Presiding Officer:

You just need to formally move it. It was debated earlier.

The Presiding Officer:

Group 7 is on minor and technical amendments. Amendment 11, in the name of the minister, is grouped with amendments 12 to 16.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

Thank you—I was getting somewhat ahead of myself when I rose to my feet just then. Let me find the right speaking note. These amendments are very much minor and technical in nature, so I will seek to keep my remarks short.

At stage 2, amendments from Jackie Baillie were accepted that require consumer Scotland to set out in its investigation reports and in its annual reports how it has had regard to the activities carried out by other bodies with similar functions.

At the same time, Government amendments were accepted to broaden the principal duty on consumer Scotland under section 6(3). Consumer Scotland will now be required, when carrying out its functions, to have regard to activities carried out by

“specified persons and any other persons” with similar functions, which could be a body or an office-holder. I noted at the time that, if both sets of amendments were accepted, the bill would need to be tidied up at stage 3 so that it referred throughout to

“specified persons and any other persons”.

That is what amendments 11 to 14 now do.

Amendments 15 and 16 alter section 23 to ensure that the list of definitions in that section is in alphabetical order, which is in line with best practice for the layout of legislation and allows for more straightforward reading of an act of Parliament, which I hope the bill will become. However, the amendments do not make any changes to the definitions. The key definition of “consumer” was previously at the top, in order to give it prominence, but that is no longer necessary now that it is in a section on its own.

I move amendment 11.

Amendment 11 agreed to.

Amendment 12 moved—[Jamie Hepburn]—and agreed to.

Section 15—Annual report:

Amendments 13 and 14 moved—[Jamie Hepburn]—and agreed to.

Section 16—Consumer welfare report:

Amendment 4 moved—[Jackie Baillie]—and agreed to.

The Presiding Officer:

Group 8 is on the meaning of “consumer”. Amendment 23, in the name of Richard Leonard, is the only amendment in the group.

Photo of Richard Leonard Richard Leonard Labour

The purpose of amendment 23 is straightforward. The bill contains a number of references to “consumers”, in the plural, but in section 22A, which is on the meaning of “consumer”, the term is defined as either

“an individual … who purchases, uses or receives, in Scotland, goods or services”,

or

“a business … no larger than a small business”.

It is fundamentally important that the new body, consumer Scotland, should not be able to represent only individuals and small businesses; it should be able to take a class action or collective action and represent a community perspective. After all, there is obviously a community dimension to the consumption of services such as broadband or public transport or to the surcharging of parcel deliveries, and to the quality, price and frequency of services that communities receive. It would be frustrating if local collective community interests sought guidance and intervention from consumer Scotland only to be told that the body was not empowered to assist in that dimension of real consumer interest because the Scottish Government or the Parliament had blocked amendment 23.

The Parliament has a proud track record of backing a community perspective, whether that is through the Land Reform (Scotland) Act 2003 and community ownership or community rights under the Community Empowerment (Scotland) Act 2015. Communities are affected by markets operating well or failing badly, and the bill should expressly recognise that. I am bound to say that, if we can define businesses as consumers, surely we can define communities of people as consumers. The consumer is more than the individual and should not materialise in the legislation only as an individual figure. Let us therefore amend the bill with amendment 23 to reflect that.

I move amendment 23.

Photo of Gordon Lindhurst Gordon Lindhurst Conservative

Although we have much sympathy with Richard Leonard’s position on amendment 23, which certainly has merit, I think that the minister will set out reasons why he will not support it. Part of the difficulty with it is that it would extend the scope of the bill too much. We need to see the bill in operation and see whether it is working well. The bill has already been expanded to apply to organisations such as small businesses and certain social enterprises, which is welcome, but the extension that Mr Leonard is looking for might be a step too far at this stage. I will wait to see what the minister has to say about the amendment, but there is a lot of sympathy for it among Conservative members.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I apologise that, despite this amendment being in the last group of amendments, albeit that it is in a group on its own, it is likely to be the one that I have to speak to the longest.

I agree with Gordon Lindhurst’s sentiments and do not demur from the points and principles that Mr Leonard has laid out with regard to the necessity of considering communities of consumers. I would have been very happy to have discussed this matter in more detail with Mr Leonard to ensure that his concerns were addressed. I think that I made that offer but, unfortunately, we did not have that opportunity. I would have been happy to speak to Mr Leonard.

The bill identifies the consumer as an individual and the small business as an individual small business. Inevitably, when Consumer Scotland takes forward its work, it will look at it on the basis of how it impacts individuals and small businesses plural. The concerns that Mr Leonard has laid out are already encompassed in the definitions that are set out in the bill.

In the amendment’s literal interpretation, I believe that there are significant challenges. In brief, they are as follows. First, the bill has already been significantly amended to widen the definitions of “consumer” and “business”. As I have said, in doing so, that will already capture many of the community bodies that are included in the amendment. Secondly, almost as a direct consequence of the first point, there is a risk that we will send a confusing message that other small organisations are not captured, precisely because we have carved out a particular reference to community bodies, when small community bodies are already caught by the existing provisions. Thirdly, by including community bodies regardless of their size, it potentially privileges medium-sized community bodies over other comparable organisations, such as medium-sized charities, without a clear rationale for doing so. Finally, and linked to my first point, the definition of “consumer” has already been significantly altered and we run the risk of overcomplicating and diluting it to the point of being difficult to exercise meaningfully.

I will say a little about each of those points in turn, and I will be as brief as I can. I will set out broadly what the term “community body” means under the Land Reform (Scotland) Act 2003. Section 34 of the act defines it as a body whose main purpose is consistent with furthering sustainable development and is a limited company; a Scottish charitable incorporated organisation; a community benefit society; or a body of such other description as may be prescribed.

At stage 2, the Consumer Scotland Bill was amended to widen the definition of “consumer” to include a business that is no larger than a small business. The definition of “business” in section 23 of the bill was also amended to include “a not for profit enterprise”. For the purposes of the bill, that means an organisation that a person might reasonably consider to exist wholly or mainly to provide benefits for society. A Scottish charitable incorporated organisation and a community benefit society therefore ought to already fall within the definition of a “not for profit enterprise”, and a limited company would ordinarily fall within the broader definition of a “business” anyway.

Therefore, provided they are small, all those bodies are already covered. If small community bodies are already captured, there is no value in an amendment to clarify that they are captured. Indeed, doing so with a definition that limits community bodies to those with purposes that are consistent with sustainable development has the potential to have the opposite effect. It could suggest that charities and other small community bodies with a different purpose will not be caught by the existing definition of them as businesses by virtue of being “not for profit enterprises”.

It is important to remind ourselves that we are making law here. It is always subject to legal interpretation, and that could be an unintended consequence were this amendment to be passed.

I turn now to the next difficulty that I have with the amendment. It does not limit the definition to small organisations, in contrast to existing provisions around small businesses. The definition of community bodies that the amendment uses requires that the bodies must have a minimum of 10 members, but it sets no upper limit.

The fact that membership has to be confined predominantly to a community does not guarantee that the organisation will be small. As an example, under the Community Right to Buy (Scotland) Regulations 2015, a community defined by a postcode could include everyone who is entitled to vote in Edinburgh with a postcode beginning “EH”. I am not picking on Edinburgh particularly; that would also stand for other postcode areas.

I of course understand the point—and I reemphasise it—that consumers within a geographical area could have a common interest, and they are already encompassed within the definition in the bill, as amended at stage 2. However, it is important to note that, when we apply what is laid out in Mr Leonard’s amendment, we are talking about organisations rather than communities per se. Whether or not it is intended to, the amendment therefore allows for the inclusion of bodies that are not small, which is also problematic. It would mean that medium-sized organisations would be considered consumers, but only if their purposes are consistent with sustainable development. That would privilege medium-sized bodies with that goal over many medium-sized businesses and charities with other equally laudable objectives. There is, I believe, no clear rationale for doing that.

Finally, as I have noted, amendments at stage 2 already significantly expanded the definition of consumers. Amendment 23 would be a further expansion, which could give weight to the argument that we have moved away from the idea that was originally consulted on prior to the introduction of the bill.

It is important to remind ourselves that the amendment, if agreed to, would also apply to the consumer duty. Public authorities, including local authorities, would have to consider community bodies—regardless of size—as part of discharging the duty. That has not been consulted on, and its timing now means that there has been very little opportunity to understand the practical impact of adding that to the definition. For all those reasons, despite recognising the good intent behind it, I urge Mr Leonard to withdraw his amendment at this stage.

As I have laid out, I believe that many of the organisations that Mr Leonard seeks to protect would already be covered by the bill and that the idea of community interest, which I agree with, is already encapsulated within the applicability of the individual consumer being multiplied to consumers, plural, as it will be in consumer Scotland’s interpretation of its work. I hope that that provides Richard Leonard with some reassurance, and that he withdraws his amendment. However, if he presses it, I urge members to vote against it.

The Presiding Officer:

I call Richard Leonard to conclude in this group, and to press or withdraw amendment 23.

Photo of Richard Leonard Richard Leonard Labour

I have to say that I find the argument that the fact that the bill has already been amended means that we cannot lodge another amendment about the weakest argument that I have heard in this Parliament in four years.

Of course we have scope as a Parliament to make amendments to the bill if we think that its definitions and scope do not sufficiently recognise the challenges that this new body, which is being created for the first time, will face.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I would have hoped that Richard Leonard heard that I spoke extensively, and that that was not the core part of my argument. Nonetheless,

I hope that he will reflect on the fact that both Ms Baillie and Mr Wightman were able to say that we worked together very closely to draft amendments that were consistent with the purpose of the bill and which enhanced it. That opportunity was available to Mr Leonard, which I made very clear, and I would have been very glad had he taken it; sadly, he did not.

Photo of Richard Leonard Richard Leonard Labour

For the record, Mr Hepburn and I met in his office after the stage 1 debate in this Parliament and we spoke explicitly about the need—[

Interruption

.] We spoke explicitly about the need to alter the bill to reflect—[

Interruption

.] If Mr Hepburn wants to intervene, I will take his intervention.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I am happy to intervene, because it is important that we are accurate on these matters. It is correct that Mr Leonard and I met in advance of stage 2, and that he had the opportunity to lodge an amendment at stage 2, when we could have tested these ideas and then—perhaps—finessed them. It is important to note for the public record that Mr Leonard failed to lodge an amendment at stage 2.

Photo of Richard Leonard Richard Leonard Labour

Let me move on to the other arguments—[

Interruption

.] I want to make it absolutely clear for the record that Mr Hepburn and I have met to discuss this amendment. In the interest of consensus, he could have offered to meet to discuss it in more recent days, not least because the stage 3 proceedings were postponed a few weeks ago.

The other point that I want to make is this. As I said, if we as a Parliament are in favour of extending the definition of “consumer” to include small businesses, it seems rather odd that we cannot extend it to include communities. I listed some examples of legislation that this Parliament has passed where the entity of a community is seen as an important part of the fabric of our society.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I totally agree with the notion that a community of consumers must be considered, and the definition that we have, as laid out in the bill, already encapsulates that perfectly. It refers to an individual consumer, but consumer Scotland, in taking forward its work, is clearly going to consider those consumers on a collective basis, ergo as a community of consumers.

It is important to reflect that Mr Leonard’s amendment talks not about communities but about “a community body“. That has perfect application in many pieces of legislation, but it would have inherent problems within the confines of the bill. As I have laid out, there is a danger that it would cause confusion and perhaps pervert some of the very interests that Mr Leonard seeks to advance, with small charities being interpreted as not being encompassed. That could cause real problems. On that basis, I urge him to withdraw his amendment.

Photo of Richard Leonard Richard Leonard Labour

I will finish on this point. I think that, if we do not agree to amendment 23, there will come a point in the not-too-distant future when a community seeks to prosecute its interests through consumer Scotland and, by dint of our not agreeing to the amendment today, if that is the way that Parliament votes, that community will ask why on earth it is that a small business has access to advocacy from consumer Scotland but a community interest does not.

The Presiding Officer:

I assume that Mr Leonard is pressing his amendment. The question is, that amendment 23 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

As this is the first division of the afternoon, I will suspend the meeting for five minutes while I call members to the chamber.

15:47 Meeting suspended.

15:52 On resuming—

We move straight to the division on amendment 23.

Division number 1 Consumer Scotland Bill: Stage 3

Aye: 14 MSPs

No: 38 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

Abstained: 16 MSPs

Abstaineds: A-Z by last name

The Presiding Officer:

The result of the division is: For 14, Against 38, Abstentions 16.

Amendment 23 disagreed to.

Section 23—Interpretation:

Amendments 15 to 17 moved—[Jamie Hepburn]—and agreed to.

Section 24—Regulations:

Amendment 18 not moved.

Schedule 1—Consumer Scotland:

Amendments 5 to 7 moved—[Jackie Baillie]—and agreed to.

The Presiding Officer:

That ends our consideration of amendments.

At this stage in the proceedings, members will be aware that I am required, under the standing orders, to decide whether any provision of the bill relates to a protected subject matter—that is, whether it will modify the electoral system and franchise for Scottish parliamentary elections. The bill will do no such thing, therefore it does not require a supermajority to be passed at stage 3.