Rydw i am ddechrau cerdd, ddim yn siŵr i'ch cael ei syrgu a'r newydd iawn, yn 2018. Gwchai'r gafodd Gysyllt Castlebrant, Alisyn Harris, Bill Bowman yn ddatblygu cael mewn amser yn ddod a Neil Finlayn. Be wnaeth ynddo Dr Andrew Simpson, Dr Elmer Russell ac David Wedderburn yn ei ddull hwnnw i'ch cael ei gŵr? F замos o dîmu yng nghymru advocatei, dwi'n y bobl yn rwyf i'w grwp sydd gwirio. That's a decision on taking business in private. It's proposed that we take items 5, 6, 7 and 8 in private, and those are items 5 and 6 of the delegated powers provisions in the civil litigation expenses and group proceedings Scotland bill, and the social security Scotland bill, both as amended at stage 2. Item 7 is the relevant recent developments in relation to the European withdrawal bill. Item 8 is the third quarterly report on instruments considered this parliamentary year, and then, of course, we've got item 9, which is consideration of the evidence we're about to hear. Does the committee agree to take those items in private? We'll move on to agenda item 2, which is the prescription Scotland bill. Stage 1 evidence. It's the third of our evidence sessions on the bill. We have before us today Dr Andrew Simpson, senior lecturer at the School of Law at the University of Aberdeen. Dr Eleanor Russell, senior lecturer in law at Glasgow Caledonian University, and David Wetterburn, who is described as a forensic architect.  I'm dual qualified. I have a degree in architecture from Aberdeen and a law degree from Edinburgh and a master's from Strathclyde and construction law. I'll open the evidence session. We've got a number of questions to get through. I'll start off. Probably Dr Simpson and Dr Russell, but don't all feel you have to answer all the questions. If you want to say something, just indicate that you do. The first question we've got. Under the 1973 act, five-year prescription applies to those obligations on one statutory list and not to those obligations on a second statutory list. Sections 1-3 of the bill would extend the scope of the obligations covered by five-year prescription. In particular, section 3 of the bill would extend five-year prescription to all statutory obligations to pay money. Do you agree with the general rule in section 3 of the bill applying five-year prescription to statutory obligations to pay money? Do you agree with the exceptions to that general rule set out in section 3 of the bill? Dr Russell wants to go first. The short negative prescription, as you've just explained, applies only to obligations set out in schedule 1 paragraph 1 of the 1973 act. That list is exhaustive. If a particular obligation is not stated on that list, then the short negative prescription of five years, the quenquenium, as it's known, does not apply to the obligation. There are many statutory obligations to pay money that are not included in that list, and many of those are discussed in the Scottish Law Commission's discussion paper and report. Just to give you some examples, the recipient of legal aid will come under an obligation to repay money to slab the Scottish legal aid board if he or she is successful in legal proceedings. That's clearly a statutory obligation to make payment, but it is not included in schedule 1 paragraph 1 of the 1973 act. A director engaged in wrongful trading will come under an obligation in terms of the Insolvency Act of 1986 to contribute to the company's assets. That, again, is a statutory obligation that is not included in schedule 1 paragraph 1 of the 1973 act. There are obvious omissions in the 1973 act, as currently set out. There is no principled reason why some of those obligations should be excluded. Paragraph 1 sets out particular statutory obligations to make payment that are subject to the short negative prescription, but there is no general catch-all provision at present in respect of statutory obligations to make payment. The provision in section 3 of the bill will plug a lot of gaps. It will also represent a considerable rationalisation of the law, because at present there are certain statutory obligations under particular legislation stated in schedule 1, and those can now be repealed if the general default position goes into the legislation. The new suggestion of having a catch-all obligation to make payment will obviate the need for repeated updating of the legislation as new statutory schemes appear on the statute book. It is very much to be welcomed. As far as the exceptions in paragraph 2 are concerned, I think that the reasons for exempting certain obligations from the five-year prescription and making them subject instead to the 20-year prescription is a political matter. I do not personally have any problem with any of the exceptions stated in the bill, but, as I say, I think that there are essentially political decisions for the committee and for Parliament. Dr Simpson. Again, I agree and I am very little to add to that. I think that the Scottish Law Commission was correct to talk about limiting those two obligations to make payment to statutory obligations to make payment out of the risk of catching a range of other obligations perhaps owed by public bodies that perhaps we would not want to see caught by the five-year prescription. I also think that the distinction that they draw in their report is broadly right. They say that, broadly speaking, they are aiming to capture essentially private law obligations to make payment literally down in statute as opposed to public law, but I also think that they have got it right that it would be very difficult to state a test like that in the legislation. Fundamentally, it is a political matter to determine, on a case-by-case basis, whether further obligations should be included in paragraph 2 of schedule 1. Mr Weddaburn. We do not really have much to add to that and it is not an area that exercised the RIS. That is fine. Thank you for that. The next question is from Stuart McMillan. Thank you, convener. Good morning, panel. It is on section 5 of the bill. Certainly the SLC consulted on four options for section 5 before deciding to use option 3. As a matter of policy, which option do you favour and why? Are there any drawbacks to the option now set out in section 5 of the bill? If you want to provide any examples or any specific types of cases to illustrate your points, that would certainly be very helpful. There we are. I am happy to endorse the Scottish Law Commission's proposal and the approach adopted in the bill to go for option 3. Just for the benefit of all those present, I am sure that everyone is aware, but option 3 proposes to return the law to the pre-Morrison and ICL position but add in a requirement of awareness or constructive awareness of the identity of the defender. I would wholeheartedly endorse that approach for a number of reasons. Firstly, there is a logical reason. David Johnson, who is one of the commissioners behind the commission's bill, notes in his book. He is undoubtedly the leading authority on prescription limitation in Scotland. He points out quite rightly that there is something odd about saying that an obligation is enforceable before one knows against whom it can be enforced. There is that logical argument, first of all. Secondly, I think that there is a comparative argument. The third option is adopted by many jurisdictions across the world. It is adopted down south in England and Wales. It is adopted in France, Germany, New Zealand and South Africa. Although we need not blindly follow what is happening in other jurisdictions, I think that we can learn from what is happening in other jurisdictions. We have to ask why are these other jurisdictions so many of them adopting option 3. I think that, essentially, it is on grounds of fairness, which leads me into the third point. It is not fair that time should run when one does not know who is responsible for the act or omission. Morison, Morison and ICL undoubtedly is harsh on creditors as, two, is the more recent decision in Gordon's trustees and Campbell Riddle. Another reason for my preference for option 3 is that it will reduce expense and administrative costs, because at present creditors or pursuers are often forced to litigate against a multiplicity of defenders, simply because they do not know which one is at fault. I think that this problem is particularly acute in the construction industry, where it might not be clear whether it is a construction defect or a design defect, which is the root of the problem. You may well find that actions are raised against a panoply of defenders, main contractor, various subcontractors, designer, architect, engineer, surveyor and all these people are put to the trouble, time and expense of having to investigate the claim against them, intimate the claim to their insurers and there is an awful lot of wasted resource there. I think that option 3 is preferable on that ground, two. Another point that I would like to raise is a matter of symmetry. In terms of the limitation provisions in the 1973 act and those are the provisions that apply to personal injury actions, the identity of the defender is one of the things of which the pursuer must be aware before time runs against him. So, for example, the victim of a hit-and-run accident, time won't run against him until he knows who was driving the car basically. I think to introduce this requirement of awareness in terms of the prescription provisions will introduce an element of symmetry. So that a solicitor advising a client will know that regardless of whether he or she is dealing with the prescription provisions or the short negative prescription provisions or the limitation provisions, awareness, actual or constructive of the identity of the defender is going to be required. I think this is a fairer approach. It certainly favours pursuers, but of course there is the additional element that it's also going to benefit all those people who potentially could be sued at the moment where there is really no merit in the claim against them. A lot of people are being sued, like in these construction disputes that I mentioned, needlessly. So that will avoid, this option 3 will avoid that happening. As far as drawbacks are concerned, the obvious drawback is that the actual wrongdoer is going to be exposed to the risk of liability for a longer period. I think that that's got to be looked at in the round. This particular provision is going to favour pursuers or creditors, but there are other proposals in the bill that are going to favour defenders and we have to look at the overall balance of fairness in the scheme as a whole. So for all these reasons I would support option 3. Who wants to go there? Mr Wedderburn, you must have something to say on this. Well, yes. The architects, the RIS, were in favour of option 3, again for certainty to give the people that are likely to be in the frame. And it not only does it then allow people to make provision, but it does mean that the insurance industry, PII cover, is a little more certain, because at the moment you have to insurance companies are the risks associated with potential claim are much broader and indeterminate. And I think this would allow, especially once an action is commenced and people have discovered who the identity of the relevant people is, then other parts of the team can get on with their lives and they can notify their insurers, which is a benefit. Okay, Dr Simpson. Yes, again I agree with option 3. I would just add that I think Dr Russell is absolutely right to draw attention to the fact that this is fair within the scheme of the bill as a whole, because of course what we're seeing in section 11, 3 as proposed to be amended, is a sort of exception to the more general principle that an obligation becomes enforceable, an obligation to pay damages becomes enforceable on the date when the loss ends. And what we see in 11, 3 is an exception that is saying that knowledge is relevant where the tests would be satisfied, the three limit tests that the Scottish Law Commission proposes. It's also worth mentioning and emphasising that creditors have to exercise reasonable diligence in trying to work out whether they've had this knowledge or not. We're not just asking would the creditor have had knowledge that loss, injury or damage has occurred, loss, injury or damage was caused by a person's actor mission and the identity of the person. We're asking did the creditor exercise reasonable diligence, would someone who had exercised reasonable diligence have known these things? That is what causes the prescription to run in relation to obligations to pay damages. In some ways, it's quite a limited exception to a general rule that knowledge is not relevant across the board to start prescription running. It provides an exception that respects fairness. Have you got any follow-ups on that? That does take me into the next question. Certainly the faculty of advocates expressed concerns, including that the new wording might increase litigation on the meaning of the words in particular amendment. They just wanted to have any thoughts on the faculty of advocates concerns about this. Should we say what wording we're referring to? It's in sections 5, 2 and 3 of the bill to introduce the drafting change compared to the 1973 act. It specifically would change reference to an act, neglect or default by defender to an act or omission of the defender. I'm aware that the faculty of advocates has expressed concern about this proposed change from the terminology act, neglect or default to act or omission and that there's been some concern about how omissions might be interpreted. I think that it's useful to point out that the terminology of act or omission is already found elsewhere in the act. It appears in relation to the limitation provisions in relation to personal injury, which I've referred to already. Time runs from the date of injury or in the case of a continuing act or omission from the date on which it ceased. The act or omission ceased. This is not going to create any new problem. The courts are familiar with dealing with acts or omissions. There are cases just to name one, Kennedy and Steinberg, a medical negligence case, where what was the issue was an on-going omission of a doctor to take a patient off a drug. This is nothing new, this terminology, act or omission, and I think it would introduce a degree of symmetry and consistency across the prescription and limitation provisions. I do accept that the courts are familiar with the terminology of act, neglect or default, but I think that increasing consistency can only be a good thing. You're all nodding. Can I just put something to you? Let's say that you used Dr Russell as an example of the cases in the construction industry. Let's say, for example, that foundations are not put in properly and some years later they start to sink or it all goes wrong. You could argue that that is neglect, but it might not be an omission, which in layman's terms is just forgetting to do something or just not doing something. Doing something wrong is different to an omission, is it not? I think that that's something that the courts would just have to address in a case-by-case basis, to be honest. I don't know if any other panellists have a good idea. Certainly when, as an inspecting architect, it's what you miss, that's regarded as neglect, but it is an omission to see things. Would you easily be picked up by that wording? That would be my feeling as well, that the wording is actually slightly broader potentially than the wording that we've seen act, neglect or default. So I think that it would catch that as what you're describing as being essentially an omission to observe proper standards. So legally it's not an issue? I don't think so. Certainly Dr Simpson, in your earlier comments you mentioned the issue of the loss, injury or damage as a curtain. This is something that was picked up by the Law Society in their submission. The first requirement in the test set out in section 5 is that the loss injury or damage has occurred, and its submission Law Society identifies the potential uncertainty in relation to this requirement. In particular it says that it is unclear whether this requirement would be treated as satisfied when there has been expenditure and professional fees. But not at the same time an awareness that this can be constituted as a loss, it refers to the case of Gordon v Campbell in this regard. Do you agree with the Law Society that this is a potential issue and is there a need for greater clarity on the face of the bill? I'm not convinced that there's a need for greater clarity on the face of the bill to be honest. The Scottish Law Commission has looked at the Gordon case. It did look at it before the decision was handed down by the UK Supreme Court on the appeal, and it's expressly mentioned that it can't take that into account. The appeal, of course, upheld the decision of the extra division of the Court of Session for broadly the same reasons. On one level it looks likely that the problem will be dealt with, as the Scottish Law Commission thought by the insertion of that wording. The only slight caveat that I would add is that, in the Gordon v Campbell case, the key questions—obviously we preserved the test that was used in that case that loss of injury or damage has occurred, so that's the first thing that is preserved in the revised wording of subsection 3A. The key question, if the case were to be decided again today, would be whether or not the trustees in that case, the pursuers who were making the claim, had also the sufficient awareness that the loss injury or damage was caused by a person's actor omission in late 2005 when the claim started to run. I'm not sure how familiar the members of the committee are with the sort of detailed facts of the case, so if it would be helpful I could say a little bit about that. Briefly that would be useful. That's fine. Essentially in this case what happened was a defective notice to quit certain agricultural land had been served on tenants. The notice was served, I think, in November 2004, and the tenants then refused to get out in November 2005. It was argued that the trustees, the pursuers in this case, the trustees who owned the land that was tenanted, had knowledge of the loss when they knew that the tenants would not voluntarily seed the fields, but the tenants wouldn't voluntarily hand over. What happened next was that using different solicitors, and this is the important part of the case, the trustees, the pursuers in the case, then raised an action in the land court to try to get the tenants removed on the basis of the defective notices, and in 2008 the land court held that the notices couldn't be used, the notices were indeed defective. Court proceedings commenced in May 2012. You can see the importance of the question. If prescription started to run when the tenants refused to get out in November 2005, then the five-year period would have elapsed by 2012. However, if prescription only started to run in 2008 when the land court handed down its decision that the notices were indeed defective, then there was still an opportunity to enforce the claim in 2012. That was the nub of the issue here. The problem was when did the trustees become aware that there was loss on the law as reformulated in the earlier decision. The trustees became held at all levels of the decision. At first instance, the extra division of the inner house and then the UK Supreme Court held, the trustees became aware of the loss in 2005. That meant that then it followed, that the claim had proscribed. However, it was felt that this was potentially rather harsh because they argued that they only became aware of the loss when the land court handed down its decision that they had sustained loss when the land court handed down its decision to the effect that the tenants could not be removed on the basis of these defective notices. The question for the court was when did they become aware of loss. Now the question for the court would be when did they become aware of loss, when did they become aware that the loss injury or damage was caused by a person's actor emission and when did they become aware of the identity of the person. On the facts of the case, the Scottish Law Commission believes—and I think that there is good reason for believing—that the trustees would not have become aware that the loss injury or damage was caused by a person's actor emission until 2008 or at least until a later period. Lord Hodge is a little bit careful in his comments on this. He just said that there is reform being considered by the Scottish Parliament. Lord Hodge delivered the judgment in the UK Supreme Court. I think that there is an argument to the effect that the second limb would have saved the trustees in Gordon against Riddle, but it's an argument. I think that one has to be conscious that there was other evidence led in the case and it might be argued on some of that evidence that the pursuers could have been aware that the loss injury or damage was caused by a person's actor emission that they weren't just aware from 2005 that there was loss. They might also have been aware from 2005 that it was caused by someone that they could identify. It's possible that the pursuer might not have been saved in Gordon, but the extra tests improve the fairness of the law overall. I would still defend it, but I would be a little bit careful in just saying the whole sale that the pursuer would have been saved. Probably he would have been, but as the SLC says, but just caveat it a little bit. Anyone else on this? Dr Simpson has covered it very comprehensively. I'm sitting in my final area of questioning. Some of this has been touched upon earlier. It's in the written submission from the Law Society, comments on the third part of the new test set out in section 5, namely that the pursuer must know the identity of the defender or defenders. The Law Society makes two points. Firstly, it says that with complex contractual or corporate structures, it can sometimes be difficult to identify the correct defender and mistakes can be made. It questions whether the prescriptive period would only start to run from the point that the correct defender is identified. Secondly, the Law Society raises the possibility that different prescriptive periods might run for different defenders if the pursuer becomes aware of the identity of one defender before another. Do you wish to comment on both of those points? Is there a need for a good clarity about those issues on the face of the bill? In relation to a situation in which you have more than one defender, co-debtors, I think that it's a natural consequence of the unformulated wording in section 5 that there is the possibility of separate prescriptive periods against debtor 1, debtor 2, debtor 3, according to when the awareness of the identity of that person became known constructively. I think that there is a possibility of a different terminus, a different starting date, in respect of the different obligations that are owed by each debtor. As far as identifying the wrong defender is concerned, then obviously time isn't going to run in relation to the obligation that is owed by the right defender unless the constructive awareness provision could be engaged. Some reference was made to this earlier. If the creditor ought to have become aware of the correct defender, the correct debtor, then time will start to run because awareness includes both actual awareness and constructive awareness. If the correct defender ought to have been identified, time will run as long as that awareness could have been acquired by the use of reasonable diligence to which Dr Simpson has made reference already. In the construction industry, with the multiplicity of subcontractors doing different things at different times, there is a great likelihood of there being different prescriptive periods and of only becoming aware later on of particular actions of particular sub-sub-subcontractors. If you had people who are jointly and severally liable, how would that work when you were identifying them? You might identify them at different periods but they could end up being jointly liable? Presumably, if you identified the defender who is jointly and severally liable, you would sue that defender and then the rights of the people who could have been co-defenders. I would be very happy if the committee would like to check on this further but I would imagine that what would happen would be that their rights would then start to operate as it were, their rights of recovery against the defender. Then they would be subject to the same rules of prescription. Even if they weren't perhaps involved in the neglect but they were just liable because they were financially linked? I would need to think about the basis of their liability then. If they are not liable because of their neglect perhaps we would need to think further about the basis of their neglect in each individual case. The point about joint and several liability is extremely interesting. However, I don't think any of the provisions in the bill would be undermined by it but it would be interesting to see exactly what the effects would be. I wouldn't want to speculate too much on that myself but I'd be very happy to look at that further if that would be the case. If you want to write to us afterwards with further thoughts then feel free to do so. David Bowie. Good morning, panel. All my questions will be in section 8 of the bill in 20-year prescription. For obligation to pay damages, section 8 of the bill proposes a new start date for 20-year prescription. Can you explain whether or not you support section 8 in policy terms and what the reasons are for your position? Shall I just pick on someone? Dr Russell. I'm happy to support the proposal in section 8 of the bill. The purpose of the long negative prescription is to produce a long stop, which is designed to secure certainty and finality. A certain stage, a potential defender can dispose of his files, he can dispense with his records and he can rest assure that he has no longer at risk of civil litigation. Our current rules on the long negative prescription and setting the starting date as at the date of loss are rather unusual. It's quite unusual that the starting date, the terminus for the long negative prescription is the same as for the short negative prescription. More usually you will find that there is a difference. The proposal in the bill is obviously to take the starting date for the long negative prescription back to the date of the act of remission in question, which in most cases is going to be earlier and quite often particularly in construction matters will be significantly earlier. In one of the previous evidence sessions, one of the witnesses spoke of a situation where you may have a defective design leading to loss many, many years later, maybe 16 years later. Under the current law, the 20-year prescriptive period will not start running until the date of loss, which will be 16 years after the date of the act of remission. The bill's proposal is to take the starting date for the long negative prescription back to the date of the act or remission. That obviously would mean that the designer in the hypothetical example that I gave you would be three of the obligation sooner. That might be considered to be harsh to the creditor, but I think that one has to consider the overall scheme and fairness to all parties overall, and the basic underlying rationale for the long negative prescription, which is to secure certainty and finality, that there must be a final cut-off period so that we're not having people sued 36, 37, 38 years down the line. The RIS, particularly pleased with this proposal, because I know personally of at least two or three examples. For example, one where a building was constructed in about 1981, and either the architect or the contractor, we don't know from it, omitted some tanking, but the building was well drained round about and the water table never raised. In 2015, we had terrible weather, it finally raised and it flooded. Now that trying to track down the contractor had gone out of business and everyone had died, the architect equally. The owner had a right, but he could never vindicate it and it was a kind of pointless right. So I feel having a long stop, that's a real long stop, has a starting point and has a clear end point. I think the idea of not having interruption is another good idea. To protect people who have commenced proceedings before the end, their rights are still preserved. I think that that's a good balance. Dr Simpson? Thank you. I have very little to add to any of that other than to say that I agree with what both my colleagues have said. Again, the underlying policy, both for this and for section 7, which we may be going on to talk about, I don't know. Again, the underlying policy that we need to have certainty and we need to deal with the situation where there's destruction of evidence. It just happens after a certain period of time. It's important to have a long stop date and it's better to have a clear long stop date in the legislation. I think that they get the balance right in the proposals and then the bill is correct. For section 8 of the bill, some concerns have been expressed by stakeholders, including the law society and the faculty of advocates, about how it would work in relation to admissions to act and on-going breaches. The SLC says in Oreo evidence to a committee that a language used in section 8 would be familiar to a course from another part of the 1973 act and so it could not see any difficulty here. Do you wish to on offer a view on this topic? Anyone want to offer a view? If you don't want to, you don't have to. I would just repeat what I said earlier, which is that the terminology of act or omission is familiar to the courts already. It already appears in section 17 of the Prescription of Limitations Scotland Act in relation to the limitation provisions, the trienium for personal injury actions. So it's nothing new, it's nothing with which the courts haven't previously grappled and I'm sure they'll be able to deal with it adequately under this proposal. Okay, thank you. The committee is aware of a parliamentary petition which provides an example of a situation where 20-year prescription has operated harshly. The petitioner tried to sue a solicitor for defective conveyance in work, only to discover that the obligation to pay damages had been extinguished by a 20-year prescription. A new start date proposal in section 8 will be early in some cases and the current law and never later. Is there a risk with section 8 that we could see more harsh cases like this one? If so, does that affect the policy underpinning in section 8? There are dangers, of course, around the long prescription. I'm not familiar with the case that you're mentioning, so obviously I should say that at the outset. Ultimately, in the interests of certainty, which has to be the underlying policy of any regime of prescription, there has to be a cut-off point. I think that the issue that you're raising is the issue that basically there was an error made in convincing at a very early stage and that this error hasn't been detected over the whole, over maybe 20 or 20 or more years. In that case, this is one of the genuinely hard cases that's generated by any doctrine of prescription and it's very regrettable. In the interests of having certainty, which is a valid concern for the legal system as well, it is worth saying that there just has to be a long stop and that's just it. The case that you're referring to is the case of Mr Hugh Patterson. I'm afraid not. It doesn't really bells with you. You're nodding Dr Russell. Yes, I've heard about Mr Patterson's petition. I don't know a great deal of detail about it, but I think that the problem essentially was that there was a problem with the convincing that Mr Patterson did not discover about this error until more than 20 years later. Because the issue of awareness is not relevant to the running of the long negative prescription, he has found himself on the wrong side, if you like, of the prescription provisions. Undoubtedly we would all have sympathy for Mr Patterson, but it would simply have to be categorised as a hard case and as we know hard cases make bad law. The whole thinking behind the long negative prescription is that it should not be subject to personal matters affecting a particular creditor. That's why the matters of fraud and error don't apply in relation to the long negative prescription. That's why matters of legal disability don't stop the long negative prescription running. It is designed to be a long stop. Wherever we draw the line, there will be hard cases. Even if you were to return to the days of the 40-year long negative prescription, conceivably you could still have people falling foul of that if they buy a house at age 25. There's a problem with the convincing. They don't sell it until they're 70, while they're still going to find themselves on the wrong side of the line. I think that the interests of certainty and finality have to prevail. That's the underlying rationale of the long negative prescription. It does represent a final, determinate cut-off and sadly some people will find themselves at the wrong side of that line. I guess the point is that you either have no cut-off or you have a cut-off and you've just got to decide what it is. Yes, exactly. It is considered to be in the wider public interest that we do have finality in relation to the existence of obligations. The courts shouldn't be clogged up with trying to deal with antiquated claims where all the evidence has been lost and all the witnesses have died or forgotten what's gone on. We've had this discussion before in the Scottish legal tradition. That shouldn't constrain this debate in any way. Fundamentally, what motivated the introduction of ever-wider adoptions of extinctive prescription was this issue around destruction of evidence over a period of time. I'm pretty sure of that for some of my own work. It's destruction of evidence is key and given that evidence is often lost over a long period of time, as Dr Russell rightly said, originally the period was set at 40 years. It's now been reduced some time ago to 20 years. Again, where one sets the period, one could set the period at 21 years, one could set the period at 19 years. I'm not suggesting that one should change the period at all for a moment, but there is a certain arbitrary analysis of where one sets it. The idea that there is a firm cut-off point is extremely important. Bill Bowman. I have two questions on interruptions and extensions to the 20-year prescription in section 6. Section 6 of the bill says that 20-year prescription will no longer be able to be interrupted but can be extended only to allow on-going litigation or other proceedings to finish. For the benefit of the record, what are your views on this section of the bill? I wholeheartedly support the proposals in the bill. I share the view of both the Law Society of Scotland and the Faculty of Advocates that interruptions to the long negative prescription by way of relevant claim or relevant acknowledgement should not be permissible. In my view, they are simply inconsistent with the concept of a long-stop prescription. In relation to the possibility of extension, I think that that does make sense if someone were to raise proceedings 19 years down the line, clearly such a person has not abandoned his right. Prescription is often referred to as being the abandonment of rights. If somebody is currently in the process of litigation, he's clearly not abandoning or sleeping on his rights and I think it's only correct that the proceedings should be allowed to finish. I agree with everything that Dr Russell said about the need for the introduction of the bill. It's a long stop to be consistent with the underlying policy, which is to bring about certainty. I think that that is sound. I agree also and make further point in relation to professional indemnity insurance that you have a period as a retiring architect. You can then know which ones are at risk and when they'll expire and therefore arrange a run-off cover. The second question. In its response to the SLC discussion paper, Brody's said that the 20-year period should still be able to be interrupted but should restart not from the beginning but from where it left off in the first place. As the only alternative mentioned by stakeholders to section 6 of the bill other than the current law, do you would like to comment on that suggestion? Yes, I believe that Brody's concern was that rights might prescribe during litigation and obviously that's now been dealt with by the extension provision, the only situation where the long negative prescription can be extended is to allow existing proceedings to come to a conclusion. My understanding is that Brody's are now content with what appears in the bill. The second question is about section 7. That says that the 20-year prescription, which applies to certain property rights, will no longer be able to be interrupted but can be extended only to allow on-going litigation to finish. Although that mirrors the approach in section 6 for personal rights, the faculty has suggested that the approach in section 7 would not work well for property rights like servitudes, so do you agree with that? If so, are there any alternative approaches that might work better? I should say that I haven't read all of the faculty's commentary on that at the outset. With respect to that, what I'm saying is not informed by that commentary. However, I was very happy with that and I'm aware that servitude rights, such as rights of access constituted by one property in favour of another, are subject to the long, extinct of prescription. I can't, as such, see a problem with that under those provisions. I'm very happy that it should be subject to this long stop for the sake of certainty. If the committee wanted me to look at contacting any way about joint and several liability, I'd be very happy in an email to write a comment relating to that, given that I'm not familiar with the faculty's commentary. That's fair enough. Mr Wedderburn, any thoughts on that one? No, nothing to that. I thought you might have done. I have read what the faculty of advocates has said here and what Mr Howie said in his evidence session before the committee. I have to agree with what was said and in particular what was said in the written submission that the faculty submitted. It does seem anomalous that, if somebody litigates about a right of servitude, which that person hasn't exercised for 19 years, it should prescribe after the 20-year period has elapsed in conclusion of the proceedings. I think that that's something that could usefully be revisited. I've got some questions on standstill agreements during section 13. When the SLC proposed the general possibility of being able to contract out of prescription, they got a mixed response. So section 13 of the bill contains a narrow proposal, which would allow a single extension to the five-year period via a one-year standstill agreement. Section 13 also says that contract to remove or shorten a statutory period of prescription would be invalid. Are the proposals in section 13 of the bill, including permitting one-year standstill agreements, something that you can support? It would be helpful if you could explain the reasons for your views. I'm happy to support the proposal that standstill agreements be permitted. I think that they will help to facilitate investigation and settlement of claims. Obviously, it's in everyone's best interests to avoid the need for an adversarial litigation. There is obviously the fear that such agreements could be abused and used as a delaying tactic in essence. For that reason, I think that the very important safeguards inserted in the bill should be there. In other words, a standstill agreement or an agreement to delay the running of the prescriptive period can't be entered into in advance. It can only be entered into once the prescriptive period has started to run. In other words, once a dispute has arisen, it should be subject to a time limit one year is proposed in the bill. I would support that. That seems reasonable to me, and it should be possible to utilise the provision only once. I would agree with what the faculty of advocates have said that such agreements should be a requirement that they are entered into in writing. I think that that's a very sensible proposal and one that I would endorse. There is a place for standstill agreements, but we have to be careful that they are not abused. I think that the safeguards are in the bill to prevent that. Because it's an agreement, both sides have to agree. Absolutely. Dr Simpson. I would also agree with that last caveat about the agreement being in writing. I think that makes an awful lot of sense. Again, I have no problem with those standstill agreements. I think that it's quite clear from the Scots Law Commission report that there's the possibility that people may try to achieve this end through various devices in any way in practice. What this is doing is providing a mechanism whereby this is definitely possible and therefore it promotes legal certainty. Again, I would endorse this approach quite happily. Yes, so would I. Especially in the construction industry, there's often contracts of unequal power. I'd like the safeguards here because if you had it without the safeguards, the powerful part of the contract would set in and start extending the prescriptive period without restrictions. I think these safeguards lead to fairness. Can you explain that a bit further? Yes, because you can only start at once, you can only consider entering into them once there is a dispute in place, then you can't set it up in your original contract. Because it's only one year and it can only be done once, you can't have it being extended, which would be another temptation for the more powerful contracting party. A question on section 14 of the bill, which would introduce an explicit statement in legislation that, when there is a question about whether a right or obligation has been extinguished by prescription, the burden of proof lies with a pursuer. What are your views on this proposed change? I'm very happy to endorse this proposal. The current law is uncertain and there are conflicting dicta as to whether the pursuer or defender bears the burden of proof. In the case of the stratified regional council in Fairhurst, the court said that the defender bears the burden of proof, whereas there are other cases such as pelagic freezing and lovely construction and Richardson and Quercus, where the court took a different view and said that the pursuer bears the burden of proof. So there is some uncertainty and it is perhaps surprising that the 1973 act didn't address this issue and make specific provision on it. I think the court of session judges have actually said that that was a somewhat surprising omission that it wasn't provided for in the 73 act. Sometimes it's said that the person who makes an affirmative statement bears the onus of proof, but that is problematic because obviously it would depend on how pleadings were framed. A pursuer could say that my right subsists, which is obviously an affirmative statement, but a pursuer could equally say that your obligation to me has not prescribed, which is a negative statement. That proposition takes us no further forward. I think that we need statutory clarification of where the burden rests. I think that the proposal in the bill is to place it on the creditor. It's important that that terminology of creditor is used rather than the terminology of pursuer, because obviously the question of onus of proof could arise in a counterclaim. In a counterclaim, the creditor is obviously going to be the defender in the main action. That's why the bill says that the burden of proof should rest on the creditor and I would endorse that proposal. I think that it makes perfect sense. I would not suggest or endorse any suggestion that the burden should vary depending on whether you're dealing with a two-year prescriptive period, five-year prescriptive period, ten-year prescriptive period or 20-year prescriptive period. I think that a uniform approach should be taken and I think that the approach taken in the bill is eminently sensible. I completely agree that it's very important that we have some clarity on this. The Scourge Law Commission set out options one, two and three. The burden should be on the creditor or the debtor or switch. The first step is that we definitely need some clarity and I think that this is an excellent opportunity to provide that. As regards where the burden of proof should lie, I also think that while I respected the view and I could see some merit to the view that there should be a switch, which was one of the respondents, I'm not, for the reasons given by Dr Russell, I'm not convinced of it. When I saw this, I was originally unsure as to whether the burden should be on the pursuer or the defender, I'll be honest. I found some of the reasoning that Morton Fraser gave in the response to the Scourge Law Commission discussion paper quite interesting in that regard. It seems unfair that a defender should be allowed to assert a defence that an action is prescribed and then sit back and leave the pursuer to prove that this is not the case. Of course, the language of creditor and debtor does, to some extent, help to address that. Certainly, the matter has clearly become a bit of a moot point in the courts and I think probably the Senators of the College of Justice came down to the view that one or two or three needs to be implemented. On balance, I'm not terribly sure whether I would go with option one or two, but there's a proponent of opinion in favour of option one now. A little to add other than that I think it's essential to have some clarity which the act brings and choosing the creditor is an appropriate person for burden of proof. Members have any other questions? Any other witnesses? Do you have anything else that you wish to add that we may not have covered? I would like to point out that the bill proposes a reformulation of the fraud and error provision in section 64A of the 1973 act and I think it might have been appropriate for the bill also to address the issue of section 64B of the 1973 act which relates to legal disability. Legal disability has the effect of stopping the short negative prescription from running, but it has no impact on the running of the long negative prescription. Legal disability is defined in the act in section 15 subsection 1 as non-age and unsoundness of mind. You'll probably be aware that the Scottish Law Commission produced a discussion paper on personal injury limitation and prescribed claims in 2006, which was then followed by a report in 2007. The Scottish Law Commission at that time was highly critical of the terminology of unsoundness of mind and took the view that it was very outdated language. The Scottish Government then conducted a consultation process and agreed with what the Scottish Law Commission had said about this being an outdated type of terminology and that the terminology unsoundness of mind was potentially insulting. I would endorse that and I think that the opportunity could have been taken here to update the language along the lines that had previously been proposed by the Scottish Law Commission to the effect that legal disability be defined as somebody who is incapable within the terms of the Adults within Capacity Scotland Act of 2000. I do think that in Scotland in 2018 we shouldn't have language like unsoundness of mind appearing in statutory provisions and I think the opportunity could have been taken here just to tidy that up given that we're also seeing slight changes to definition in terms of relevant claim to include claims in receivership and administration. An updating here would have been appropriate, I think. I'd certainly be happy to agree that it's worth visiting the language. Changing the language actually changes the meaning or the impact of that clause. The term unsoundness of mind is considered to be insulting and offensive and I don't think that it has any place in this day and age. The other way that you said. Yes, there is section 16 of the Adults within Capacity Scotland Act. I think that it would be a much more useful test to use. Is it a different test is really what I'm getting at? Would it change? No, it's really a change of language. I think that the language that's currently employed in the act is frankly insulting and offensive. It certainly has a potential to cause offence. Sorry, what was the new wording you were suggesting? Somebody being incapable within the terms of section 1 subsection 6 of the Adults within Capacity Scotland Act 2000. That proposal does appear in the 2007 report of the Scottish Law Commission. It's just a matter of terminology rather than a matter of substance to take up Mr Bowman's point. The terminology is just not appropriate in the modern world. That's fine, that's very useful. We're here to consider potential amendments so that's our job and that's what you're here for is to help us with that. Any further comments or questions? Thank you all for your time. I think that it's been a very interesting session. I can also thank you for the language you've used which has been easy to follow. Some of the examples you've used have been very useful as well. I'll suspend the session to allow you to leave. Thank you once again.


Welcome to Stand the Energy Man here today on Think Tech Hawaii, Stan Osterman coming to you from a kind of a soggy Hawaii. It's definitely wintertime here. We had our first big low pressure system come through and Maui got flooded big time in downtown Honolulu without power so our studio is actually operating on alternate power right now. But today is also a special day, especially here in Hawaii, but especially also for our country. It's December 7th, the 80th anniversary of the attack on Pearl Harbor. And the story that I've got today for this Think Tech, excuse me, really does tie back into that lesson, lessons learned from December 7, 1941. And so there were a couple of things that history teaches us about that day and what led up to that day. And two of the issues were number one, Japan was trying to keep us out of their plans that they had to take over most of Asia and the Pacific. And they were certainly capable of doing it. They were a very disciplined, very solid military. And that ties into energy because the second reason I want to talk about relating back to the bombing of Pearl Harbor was the United States held back our sale of oil to them so they could still prosecute their operations in Asia and in the Pacific Islands. And that I think was really what set off the war. And one of the things that kind of ties back to my discussion on critical analysis is, you know, is something worth fighting for? Is it really worth the nation going to war over? And December 7th teaches us, yes, energy was something that the Japanese felt was worth going to war over. And we see that lesson repeated in the Middle East today. Energy is important. Energy is valuable. Energy is a precious commodity in the industrial age. And therefore, when we talk about energy, and we deal with energy and how we use it, where it comes from, we need to think about that critical analysis I talked about last week and really think our way through. So first it was coal. We had coal that powered steam ships that took the place of sailing ships. And then oil. And then oil took over diesel engines, big engines on ships. And we had a war over it. So when will we learn? Industrial revolution drove high speed change through the world. First it was coal that needed to be used for the heat and steam and then natural gas and oil. So today we've woken up from that industrial age that we've worked through with a, I call it a pollution hangover. We have a hangover from the bad side of energy, the bad side of oil, the bad side of coal. And we seem to have settled on electricity as the answer. And it certainly could be the clean answer if we do solar and wind and hydroelectric and maybe even the newer version of nuclear power, nuclear fusion, which is supposedly getting refined pretty well now to where it's really safe and can be scaled to a fairly small scale, maybe even to an individual home and give us clean power for many years without the after effects of spent fuel, spent radioactive fuel. But energy comes in many forms. And my early shows I talked about the physics term for energy includes basically the energy, the first law of thermodynamics. Energy is neither created nor destroyed. It just changes forms. And energy comes in many forms. Sometimes you need heat energy. Sometimes you need light energy. Sometimes you need mechanical energy or sound waves. And it turns out that electrical energy is one of the best forms of converting different kinds of energy like heat from coal and gas and things into electricity that can convert to do work that drives our society today, that runs our TVs and our computers and our washers and dryers and even our cars nowadays, our electric cars. And we're getting to a point where pretty soon you're going to see electric aircraft, you're going to see electric ships, submarines are already into a great degree electric ships. And it's fairly easy to make. But what if you make too much of too much electricity? You know, electricity has one characteristic that you got to use it when you make it or you got to store it. So how can you store it? And so when you find clean ways to make electricity, how do you store it so you can turn it back into clean electricity efficiently and safely? In other words, how do you best store electricity or maybe even a better way to look at it is, how do you best store electrons? I'm going to differentiate just pure electricity for electrons for a reason today. I think if you looked at storing energy in the form of the electrons that electricity comes from in all the atoms, you'd begin to see my point. Right now, we choose batteries as one of the first things that comes to mind when we do electrical storage because they're very efficient at storing and releasing energy on demand. But only the best answer. Batteries certainly have a lot of positive attributes. They're portable. They're safe. They're not super expensive and they're reliable. I mean, they're there when you need them. Unless you, of course, put three or four of them in a diesel flashlight and don't use a flashlight for two years, then they probably don't work too well. But, you know, they're generally speaking pretty darn reliable. The car battery in your car last years and it's great. You know what I mean? Batteries are awesome technology. And mainly, though, they're made of heavy materials. And so what you're really doing, again, getting back to the electron theory is you're storing electrons, which are pretty much weightless. I mean, literally a little packet of energy. But when we're storing it in the batteries, we're storing it in metals often or combinations of metals that we can retrieve those electrons and then push them back in and then retrieve them and push them back in. So if you're making it, if you're making batteries out of metals, where do the metals come from? Do they come? Do we have them here in the U.S. or do we have to import them? Do we mine them from the ground? And if it's several different kind of metals, are all the metals available? Do we have safety issues with mining the materials? Do we have ecological issues with mining the metals? So we have to keep looking at all those components of, you know, critical analysis I talked about last week when it comes to storing electrons. So we know how the, why batteries work best, but what we really, really want to do is store the electrons. And as many as we can store in the least amount of space and the least amount of weight. And that's it. So how do you store one of the smallest particles, if you even call it a particle, it's just a packet of energy. How can you store that smallest particle known to man and get that energy back out to do its work and do it cleanly, efficiently with all the good attributes that you could take away from the clean critical analysis theory we talked about. So let's think about it this way. If you were a scuba diver, air would probably be a really important thing you'd want to take with you diving. So you could go down below and you could breathe for 20 minutes, half hour, depending on how deep you're going. But you couldn't just put a balloon on your back with air in it because you'd be so buoyant, you'd be floating at the top. So although scuba divers need air, and theoretically you could take air on your back and go scuba diving, laws of physics don't let you do that because air is kind of, let's use a real technical term, fluffy compared to iron or something. So what we have to do is we have to compress that air and put it in a scuba tank. And that lets us store a bunch of air as a compressible gas in a scuba tank and put it on her back so we can go underwater and swim around freely and be pretty much neutrally buoyant as we go underwater. And that's kind of the concept I want to start thinking about when I talk about storing electrons. Why are we storing electrons in a really heavy instrument, a battery, because we're going to need a lot of electrons. If you're talking about the grid or you're talking about electric airplanes or electric trains or boats, you're going to have to store Boku electrons and you're not going to be able to do it if your metal storage capacity in batteries is weighing 20, 30, 40, 50 pounds, tons, depending on how big this thing is. So we want to think of using that scuba analogy as how we store our electrons. How would we store billions of electrons? Do we need big steel, heavy steel tanks? Well, maybe we do, but maybe not the way you think. Batteries are great at storing electrons, but the metals we use they wear out after a while. Sometimes the metals are hard to get. They're valuable and sometimes even poisonous. So what are my alternatives? There's other ways to store electrons. You can use flywheels. That takes energy and puts it into motion. But flywheels and spinning flywheels in motion, they store energy and they give it back to you really quickly, but they're even bigger and heavier than batteries. And while they're spinning, they're not even usable in transportation because they have so much centrifugal force in them that it would actually stop a vehicle from turning or it's the same thing that keeps the motorcycle upright. The wheels that are spinning, it's the same thing as a flywheel. They keep the bike from tipping over. That's how come bikes are so much more stable when they're moving. So the more energy you want to store, the heavier the flywheels would be. So let's go back to the scuba diver. Are there lessons that we can take away from that model? What would storing electrons look like? In the first place, it'd have to be simple molecular structure. If you were going to store electrons, where would you pick that electron from? Electrons are just parts of atoms. So what would you look for these things? All the undesirable elements that are in fuels are from atoms that you don't really need to use to get the electrons out. The carbon, the byproducts from burning fossil fuels and stuff, they give you carbon and other gases and CO2 and CO. So we don't really want to just pick any atom that has a bunch of electrons on it. We'd want to pick one that's non-toxic and environmentally friendly. We'd want it to be safe to transport. And by definition, it should be very light because all we want is the electrons. It should be made up mostly of just electrons. So what's the simplest, lightest and most plentiful element in the universe? I mean, if we're going to pick one, let's be idealistic. Let's pick which is probably the best one to use. How about the very first element on the periodic chart? How about hydrogen? How about green hydrogen, hydrogen made from clean electricity? Almost every country that has a water source or a solar available or wind can make a pretty good amount of their own electricity. And if we could make that electricity in abundance and we could store it in hydrogen, then we'd probably have a pretty clean solution. But what's the rest of the story on hydrogen? Hydrogen is always found attached to other atoms. So you can harvest hydrogen from a lot of different things. I mean, gasoline has hydrogen in it. Oil has hydrogen in it. People have hydrogen in them. But the simplest way to make hydrogen is to break that hydrogen oxygen bond in water. You know, good old H2O. Two hydrogen atoms, one oxygen atom. That's water. How much water is there on the planet? There's lots of water. And you don't need to use all that water to make electricity, to make hydrogen. Because even when you use a hydrogen in a fuel cell, it gives you most of the water back. And the difference is there's some heat involved. So I'd like to put up a picture right now that shows you what a basic electrolyzer looks like. This is a real simple electrolyzer. And I did it. I used to actually have one of these when I worked for HCAT. And we'd always take it out when we do displays for schools or in public awareness things. Because most people just don't realize how simple it is to make hydrogen. Hydrogen, all this container consists of is, let's say, Donna's cookie jar from the big island. Of course, without the cookies because I ate them all.  And the same on the left is a steel wool with a copper wire connected to a red wire on the top. And there's water in that container filled up right almost to the top. There's a little airspace on the top there. And that is a basic electrolyzer. You can put other things into the water to make it more conductive. This one has a little bit of sodium hydroxide in there that I mixed in. Not very much because if you mix too much in, it's real caustic, but a little bit of sodium hydroxide. And that's a basic electrolyzer. So let me show you, not only is it simple, but this thing works basically, you can run it off of solar panels, you can run it off of DC batteries, you can run it off of wind turbines to make hydrogen. So if we can roll the video, this video shows what the hydrogen looks like coming off of your little electrolyzer. The left side has got a connector to the positive terminal on the battery and the right side is your negative terminal. And when you put the negative terminal on and get it connected, what happens is it'll start producing hydrogen. It looks like the image again. Can we show the video? There we go. So the video starts going. You can see that there's more bubbles coming off the right side because that's the hydrogen side and less bubbles coming off of the left side, which is the oxygen side. And of course, H2O, one oxygen bubble for every two hydrogen bubbles. That's why there's more bubbles coming off the right side. But you can see I have a little tiny 12-volt battery off on the side and that's all I'm doing is just connecting it to the terminals. And all an electrolyzer does, a commercial one, is it has a barrier that goes right down the middle between those two electrodes and it lets the current go between the two. But it keeps the bubbles separated left and right. They don't get all mixed up like they do in my little simple electrolyzer. And the hydrogen comes off. It's scrubbed and kept, keep most of the water and any oxygen flows over the hydrogen side. They turn it back into water and get it out of the electrolyzer. Then they run the hydrogen through what they call a desiccant that takes any more humidity out of it. And after that, they compress it, they store it, and it's ready to go into cars or industrial uses, or you can even cook with it. So as a word of caution, if you want to make one of those little electrolyzers like I had demonstrated there, you can. But I often use one word of caution. Hydrogen by itself is not flammable. But the gas that comes out of my little home-built electrolyzer is flammable because the oxygen and the hydrogen gas are mixed together. That's hydroxide. And what happens is that's flammable. Pure hydrogen is not flammable, but if you mix it with an oxidizer, it is flammable. So you don't want to put on that electrolyzer and get it going and crank out a bunch of hydrogen and oxygen atoms and have them floating around the top of that container and have a little spark in it, or it'll get your attention.  So it's not to be fooled with, but I just wanted to show you how easy it is to make the hydrogen. And if you're going to make an electrolyzer like that, you should probably go into some books and do a little bit more studying so you can keep it safe and don't make too much of it either. So let's talk about safety compression and turning it back into water. When you do have the hydrogen in commercial use and you put it in a fuel cell, all you have to do to get it back into water is run it through the fuel cell. The fuel cell has platinum in it or something like platinum that's a catalyst, and the catalyst doesn't take part in a reaction or it doesn't get involved in making a new element. It just accelerates the hydrogen and oxygen getting back together into making water, but it doesn't actually turn into anything in the water. It just accelerates the reaction. So when we do have a fuel cell vehicle, basically the only thing that's coming out of the exhaust pipe is water. And the only thing coming off of the motor or the engine is some heat, which is a by product of that fuel cell, putting the hydrogen and oxygen back together to make water. It's a exothermic reaction. So it makes a little bit of heat, makes a little bit of water and gives you plenty of electricity. A lot of people also don't know that there's cars on the road today, production cars, not test cars, although there's plenty of those. There's test airplanes and test cars and test boats that all have hydrogen fuel cells in them, but there are production cars by Toyota and Hyundai that are on the road today, mostly in California because they have hydrogen stations, but they're going to be coming to Hawaii pretty soon and we're working on that. There's some here on Oahu that serve co-services and we're going to look at those later. So let's talk a little bit about what we do to match the hydrogen and the way of storing electrons versus just storing electricity, but storing electrons using hydrogen. Let's take that critical analysis theory and I'd like to put it in a kind of a format that I call sustainability. Sustainability is a real popular concept nowadays because sustainability means you can keep it going forever and ever. You don't run out of the sources, they're compatible with life, you don't put out pollution and things like that. So I kind of overlaid my critical analysis on sustainability and I broke them out into a couple major areas versus the origin of the source materials. You know those batteries that you're making, where the materials come from, the aluminum and the cars that you drive, where does that material come from? Whenever we're using critical analysis and we're talking sustainability, we have to make sure that the materials are number one. There's enough of them around that we can actually make all the stuff we want and not run out of the materials because as we all know, once a material gets scarce, it also gets expensive and it drives the price up. And on the other end is the material that we're using recyclable. At the end of life, can we turn it back around and remanufacture a newer model, maybe a more up-to-date model, using the same materials over and over again like glass, aluminum, and other metals and stuff that we can easily get like copper, we can recover from wires and pipes and things. Number two on sustainability and origins is how is it environmentally safe? One of the components in the current technology in batteries is cobalt. And you know, lithium is actually felt relatively rare. I mean, there's probably enough of it to do a lot of batteries, but you know, for another 50 years or so. But cobalt is actually fairly rare. Last time I checked with the US Geological Survey, the current rate we're using cobalt, it's only going to last us about 13 to 15 more years unless we find some sources that we haven't found already. And that's really kind of spooky. If we're looking at turning the millions and millions of cars, you know, in the United States into electric vehicles, and you only have 13 years worth of cobalt left and you're using cobalt in the batteries, and that's not too good. That's going to make it awful tough to be sustainable. Environmental factors, when you do mining for these metals and stuff, is it safe? Is it environmentally safe? Are you polluting streams?  Are you doing all this in some other country? Are you subjecting the laborers that maybe don't have OSHA or don't have federal regulations to protect them? Are you subjecting these other foreign laborers to serious health hazards just because their country isn't as conscientious as ours about taking care of our employees and the folks that work in our industries? So that comes into human rights violations, you know, when you would you want to buy something just because it's cheap in a country, but it's abusing the people that work there? I don't think in today's society that's acceptable. So that comes under the origin of materials and sources for these products. Next is the manufacturing process. When you do get your raw materials and you have to make them into tanks or batteries or cars or trucks or whatever you're making, computers, does the manufacturing process also end up being sustainable? Is it affordable? Is it affordable in terms of all the materials you got to put in there? And is there any waste? You know, most of the farming industry has a good motto for it in like when you raise pigs, use everything but the squeal. I mean, they use every part of that pig that they can because that's how you have to do things to be sustainable and keep prices where they need to be. So in the manufacturing process, it's got to be affordable. You have to have very little waste. Also has to be safe. Again, we don't want to be doing things in our manufacturing industries or other countries that's not good for human rights or the people that are working in our factories. It's also got to be clean. We don't want to have materials that are going to hurt the environment and introduce any kind of byproducts from the manufacturing process into our environment. How about using this product, whatever it turns out to be? Are there health issues with it? We talk about maybe RF energy from cell phones or we talk about radiation from microwave ovens or TVs or from radar sets and airplanes. When we use it, are we creating health issues or health hazards? And again, is it affordable? If it's something that only the rich people can afford, that creates some issues in society as well. And if it's sustainable, it's probably going to be affordable because we've kind of built that into the manufacturing and the materials process. Another thing on the use side is transportable. I come from an aviation background and in the aviation world, if it's heavy, it costs you. A big C5 or C17 military airplane can haul an incredible amount of cargo and you usually fill the airplane up before you'll keep it from taking off. But the problem is the heavier that airplane gets, the more fuel it uses to get where it's going. So although it can take a real heavy load, it costs you a lot of money and fuel to get it in place. So if what we're making can be transportable, it'll be cheaper to ship. It'll be cheaper to use if it's in our transportation sector. That's why Ford built their F-150s with aluminum because aluminum is lighter, makes the whole vehicle more transportable, which saves you on fuel. And again, there's always a safety factor. And the last components that I have in here are end-of-life disposal. So at the end of life, you have a couple of issues. Number one, if it's materials that are hazardous to begin with, you have to make sure that they're handled properly. And in a lot of cases, like I mentioned CFL lightbulbs last week, that's not the way to do it because if you're just mass producing things that people are going to throw in the trash, you just take that hazmat and throw it in the landfills and end up polluting your own water. So we should always look towards end-of-life, either to have a system to recover hazardous materials that's reliable, like a turn-in process, like recycling cans or recycling glass. You should have to recycle batteries in a convenient way, not a way that you have to go pay for. You have to go find somebody that'll take it, like oil. There's people that charge you to recycle oil. That's crazy. So that's the discussion on on critical analysis and life cycle, but getting back to storing electrons. And I've been studying energy stuff for probably over a decade.  And I have a hard time putting in a short elevator speech, why? But it's like that scuba tank. For me, hydrogen is critical. It's really abundant. It's recyclable. It's non-toxic. It does everything that we talked about in today's show. And it stores an awful lot of those electrons to be turned back into electricity. And that's why I think we should be doing it. Because just like today's December 7th, and we don't need to be fighting any more wars over oil or other energy or metals to make batteries out of even, we need to be reminded by history that everything that we do has a consequence. And when it comes to energy and energy storage and the kind of vehicles we drive, we need to take our time, make good decisions with critical analysis, and do what's right. And I think hydrogen's the right thing to do. That's going to wrap it up for Stanley Energy Man this week. And we'll be talking to you next week, Tuesday. Until then, Allah.


Now, Commander Espinosa, I'll turn it over for you for the DAV's opening statement. Thank you very much, Chairman Tester. Thank you so much for that kind introduction, Senator Romney, and thank you for your dedication to America's veterans.  Chairman Tester, Chairman Bost, Ranking Members Moran and Takano, and members of the Committees on Veterans Affairs. Thank you for providing me the opportunity to deliver the 2024 legislative program of DAV, Disabled American Veterans, an organization of more than one million members, all of whom were injured or became ill as a result of their military service. My written statement thoroughly details DAV's key legislative priorities for the 118th Congress and reports on our many programs and accomplishments. So today, I'll highlight some of our most critical policy goals. First, I'd like to start by introducing my DAV colleagues joining me today. National Adjutant Barry Jezanowski, National Headquarters Executive Director Cody Van Boxel, Washington Headquarters Executive Director Randy Rees, National Service Director Jim Marsalek, National Legislative Director Joy Elam, National Voluntary Services Director John Kleindienst, National Employment Director Ryan Burgos, and Auxiliary National Commander Ann Marie Hurley. I also want to recognize the DAV and Auxiliary leaders who have been vital to our organization's mission over the course of many years. Let me extend my gratitude to our National Executive Committee and the members of the National Legislative Interim Committee, as well as my Chief of Staff, Floyd Watson Jr., for all of their support. And finally, I want to thank my sons, Ian, who is a Navy veteran, and Eric, who served in the Air Force. While I am surrounded by countless impressive and selfless servants within DAV's ranks, my sons hold the distinction of being my most dedicated and unwavering supporters. Messrs. Chairman, I am a service-connected, disabled Army veteran of the Gulf War era, with a family legacy of military service dating back to the Civil War. My journey began when I responded to an ad for a clerk typist that said, no experience necessary. The position turned out to be with the U.S. Army. That call to the Reserves launched my 15-year military career, but my service in the Army was marked by obstacles and loss. While on active duty in 1989, doctors told me they found an aggressive cancer that could lead me with just six months to live. They operated and it turned out to be a misdiagnosis, but as you can imagine, the entire ordeal was quite traumatic. Shortly after, I suffered the unexpected deaths of my sister and young stepdaughter in rapid succession. The combined losses and health issues left me in a deep depression, so I took a hardship discharge and transitioned into the New Mexico National Guard to continue my military service. When I separated from the Guard in 1990, I turned to VA for care. Unfortunately, VA was ill-equipped to address my needs as a woman and was not conveniently located, so I didn't start using VA for many years. And I didn't even realize that VA mental health care was an option for my depression. I'm happy to say that today I regularly use VA health care and overall I'm very satisfied with the quality and timeliness of my care. But my experience of being dismissed and misunderstood by VA was not unique. Women veterans have historically been overlooked and underserved. While VA has made tremendous progress in recent decades in caring for women veterans, there is still much to be done. This is particularly critical now with the suicide rate skyrocketing among women veterans. With more women than ever serving in the military, we must ensure that VA has the resources and expertise to meet all the physical and mental health care needs of women veterans. I'm pleased to announce that just last week, DAV released a new report entitled Women Veterans, The Journey to Mental Wellness. It's our third report focused on women veterans issues in the last 10 years, this time digging deeply into the unique factors contributing to the staggering rate of suicide among women veterans. We look forward to working with you to begin implementing its 50 plus policy and legislative recommendations. Together, we can save lives. Mr. Chairman, DAV is a fierce advocate of the VA health care system and its specialized programs. Over the past decade, there has been one consistent trend, an increasing number of veterans turning to VA. Unfortunately, there are still significant staffing shortages and an aging infrastructure that prevents and delays many veterans from receiving the care they need. This must ensure that VA has sufficient funding to provide timely, convenient, and high quality care. Mr. Chairman, we again want to thank you and all the members here today for the historic passage of the Honoring Our Pact Act in 2022. As you may remember, DAV was the first organization to bring the subject of burn pits to light in 2008, but we've been advocating about the harms of military toxic exposures dating back to World War I. We should all celebrate that millions of veterans exposed to burn pits and other toxic substances are now eligible for VA's life-changing benefits and health care. However, many others remain ineligible because their conditions are not currently covered in the law but are linked to toxic and radiological hazard exposures. If our nation is to provide true equity for all toxic exposed veterans, Congress must enact legislation to recognize the specific exposures and related diseases for veterans who served at K2 in Uzbekistan, ensure parity for radiation-exposed veterans, and address the exceptionally widespread PFAS water contamination. All toxic exposed veterans deserved care now and into the future. In order to build on the success of the Pact Act, DAV and MOA have been engaged in a toxic exposure research project and will soon release a report entitled Ending the Weight for Toxic Exposed Veterans, which includes detailed policy recommendations. We found, on average, it takes more than 30 years for Congress or VA to establish presumptive diseases, such as those for Agent Orange and the Pact Act. These presumptions help to ensure that all veterans receive their earned benefits. No veteran should have to wait three decades for justice. Mrs. Chairman, DAB knows that service members' families share in the sacrifices made by their loved ones. That's why we fully support the Major Richard Starr Act, the Restore Veterans Compensation Act, the Caring for Survivors Act, and the Love Lives On Act, each of which would remove barriers and correct inequities faced by wounded, ill, and injured veterans and their survivors. With your help, we can and we must get these bills enacted this year. But we know that passing new laws is not enough. We must also ensure that veterans are able to access the services and benefits they've earned. That's why one of DAV's core missions is to provide ill and injured veterans free representation with their benefits claims. With over one million veterans choosing DAV to represent them, I'm proud to say we have the largest and best benefits advocacy initiative in the country, second to none. To help veterans access VA healthcare, DAV operates a national transportation network offering veterans rides to and from VA healthcare facilities at no cost. Last year, DAV volunteers drove more than 575,000 hours, transporting more than 245,000 veterans to their medical appointments, saving taxpayers more than $18 million. We also help veterans achieve economic security through employment support and by empowering veteran entrepreneurs to make the business world accessible to them and their spouses. I'm proud to say that in the past decade, our job fairs have resulted in over 180,000 job offers. Finally, DAV has long advocated on behalf of veterans' family caregivers. They not only share in the sacrifices made by veterans, but also enhance their quality of life. That's why in October, we launched DAV Caregivers Support, a program to provide tailored assistance and resources to those who care for veterans. Through our program, caregivers can access online resources and receive personalized care plans. They also get one-on-one support from a trained specialist. Unlike all of our services for veterans, DAV Caregivers Support is provided at no cost to the caregiver or the veteran. Mr. Chairman, in conclusion, I'd like to share some words from Thomas Jefferson that are inscribed on his memorial. I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered, and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. That statement remains true today as it did more than 200 years ago. Our veterans need a VA that keeps up with the times, and we need you to join with us so that together we can create a better VA that our veterans deserve today and into the future. Mr. Chairman, thank you for the opportunity to testify today. As always, my heart remains with DAV, the men and women who have served our great nation, their families, caregivers, and survivors, and of course the United States of America. Thank you. This concludes my statement. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.


Hi everybody it's Sam at Mixed Up Craft thank you for watching my tutorial today. I've got this really cool interlocking Moroccan style gift box. Interlocking seemed the best way to describe it because it's a very similar way to how you would fold and close like a cardboard box if you were packing up a box or something and you can see there just want to go around how it all kind of interlocks over each other. So I'll just bring it up here you can see all the detail I've done on the top there. So this is using all the products apart from the green card from this month's hobby base kit that I receive. So every Wednesday I do a hobby base tutorial and some kind of project for you. So I've done this really cool box. The box was called A Taste of Morocco and I just loved it. It's got some really really cool bits in it this week this month sorry and I shared the unboxing tutorial last week and I'll share that up here somewhere just so you can have a look and if you are interested all the links as always are all shared in the video description below. So it just opens up any old way that you want you just pull it up like that and then inside you've got a really nice roomy three by three by four and a half gift box and then again you put so anyone put one down that one over the top that one over the top and then the very last one you then pop in like so. So it's really really easy obviously you can add sentiments on it you can put ribbon around it you know there's lots and lots of ways to um to make this box look fab. So let's crack on and make it you are going to need. So this is some of the stuff that we got in the kit so this was the crafters companion foil that I'm going to be using to make these little detailed dies on top there you get two meter roll it's really good so I'm going to be using that and show you how I do that today using these embellishments that we received it's 120 of these gold really lovely like faceted little gems and then we've got these three um Moroccan designed dies and I used uh this one in the middle uh for that design so I think I'm going to use this one here today just to make them a little bit different and I'm going for purple theme so the purple card is my own and then this was another one of these so we got I think we've got eight pieces of six by six cards we've got lots this month um and then there's this one here which has got this kind of gold you can just see it kind of catching there running through the purple so I thought again that would work really well and then this one is like a slightly embossed and you can see the slight raised parts so they're really textured papers as well um which is great so this is six by six and I've got this card here as well let me just grab my scoreboard so I can give you all the measurements okay so six by six piece for the main base of your gift box and then two pieces of four and a half by six and a half okay and I'll do the scoring in a second and then I've just got some white card um I've already die cut two of these here I'm going to do two more with you um and some double-sided um tape you could always also always you could also use this instead just double-sided tape roll I've got double-sided sheets here as well so I'll show you um what we'll do with that in a minute so scoring first of all with your six by six piece you just want to score on each side at one just come down a bit there at one and a half inches so one and a half one and a half one and a half okay this is a really thick card so I'm just breaking down the fibres there just so it doesn't crack and then you with both of these pieces here so first of all along the four and a half inch side you want to score it one and a half then rotate it and you want to score at um half an inch just look in there and nothing was nothing was like reaching my brain I was just literally staring and nothing was going up never mind okay so half an inch and three and a half inches and again with that other one so it was scoring at one and a half then rotate and score at uh half an inch and three and a half so you want to make sure that that's half that one and a half inch line there is at the top towards the top of your card all right so it's at the top end here so you're scoring your half inch and you're three and a half you don't want to do it that way so it's at the bottom okay although it probably wouldn't matter because we just flipped the card around so ignore me don't know what's wrong today right so that is all of the scoring done so I'm just going to get rid of my scoreboard okay so let's work on the base festival so you just want to burnish all of your score lines like so and then grab your scissors and you just want to cut down so choose a side and just cut all the way down to the first score line and again like so okay so you see what I just done there then rotate the whole thing round and again just cut down okay then what you want to do is with the outside of each of these squares that we've just made here these little one and a half by one and a half you just want to take a notch off the outer side like so another one like that rotate the whole thing round and again like so you see I've taken quite a chunk off I'd say it's about a quarter of an inch in because basically now when we bring that round because this isn't reinforced when we stick that on the side there like that you don't get anything overhanging you can see there where we've gone down so you don't get that poking up outside here because you're going to see all of this so it just gives you a nice neat finish and then that will be covered by this when we stick it inside so now we can just grab some of our glue and we're just going to pop glue on the tops of these squares that we've made so this has got a slightly shiny surface but this glue would be fine with that bring it down and then bring that one up okay and just sliding it around just so I can get that glue right up to the edge there make sure you pull it right up so you get really nice join okay go around to the next one again make sure oh gosh run a bit too crazy there and just bring that one down and then up and again just sliding it around until I get it exactly where I need it and just go around and do that on the other side as well okay so now we just got that nice kind of like tray ready to put all the purple card on so now just burnish all of your score lines okay and then where we've got this one and a half inch piece here this is all of the side panels this bit here is the bit that's going to interlock on the top so you just want to cut down really neatly just down to that first score line there and then on this one here again cut nicely down the side and then just take a little notch off and just cut that piece out so we've created this little tab now on the side so again with this one just cut right down the middle and then again so okay then we're going to pop some double sided tape you can use red tape you can use your glue I'm going to just use some of this tear tape and it's half an inch wide so it fits perfectly in there make sure that's all down properly and then just remove the backing I'm just going to fold over the top bit there where it's overhanging and again do that one in a minute and you just want to sit just turn upside down line up the score lines that's the most important bit because if you're slightly off at the bottom here we can trim it and you won't see that but just make sure that the top there is all nicely lined up okay flip the whole thing over pop that one down and this one down take your backing off again I'm having a real fight with that tape today okay so again line up the score line and then the rest would all fall in nicely like so okay so now we've got this piece and then this will all now interlock on top of each other like so okay so now we can get this all stuck down so again we're using my glue and you just want to come up this is one and a half inches deep so with your ruler I'm just going to do it by eye if you would rather there's one and a half inches and just do a thin pencil line all the way along and you know that you can glue within that bottom area then but I'm going to just run my glue just roughly an inch like so so concentrate on the real corner there so it sticks nicely in your box but I'm not going up any higher than about an inch and that will be fine grab your base get this top here and then what you want to do is push all of the pieces in like that so you create in that shape it will then fall into your base perfectly and then let it out and then push make sure it's pushed right down okay so it's right to the bottom there and just go around and push each side onto your box and then we can grab our ruler and just go and spread that all out you might have a little crease just spread that crease out but it would all fit in there really nice and snug it's got a little bit of glue I've got one of these rubbers here which are great to rub off any glue so I can go around once that's completely dry and now we've got you can see that really nice box coming together absolutely love this it's so cute so now we can decorate so I've already done two and I'm going to grab this one here and then with that scrap piece of card and I've got some double sided tape here which will just fit two more of these um little squares so take off one of the backings and I'm going to just sit it on my scrap piece of card put the backing back over that piece just so I can save it because that will work for something okay like so now if you're just using double sided tape what you would do is just go along and just run strips of it right up against each other like so to cover whatever area of card it is that you've got to then put your die cut over the top because you want to be able to basically now going to die cut this twice on here and then we're going to put our foil over the top so you don't need to worry about taking the backing off yet grab my die machine I'm just going to make sure I get that right up to the edge and that through you want to run it through a couple of times just because obviously it's it's got to go through those two oh you can see how tough it is this is such a good little machine but you want to make sure see it needs to go through again because it's cutting through two pieces of plastic um you know sticky plastic so I'm just going to run that one through the ease of the second time and go back again confident that one's gone through yeah so I can see now it comes out perfectly just take that out like so and then just push out all of those little pieces like that so now I've got a little die cut which has got my double sided tape on it okay and that's ready to put the foil on now you can put the foil on you could have peeled peeled all of that off and put the foil on first but I just find that then you might get your die the metal on the die can be quite hard against that foil and it might scratch it um so that's why I like to do it afterwards so then again pop that one on and I'm just going to run this one through again okay so that's both of my little die cuts beautiful die cuts really like these like really like these grab your foil so obviously you can use any color you want if you don't have gold foil and you want to do this box you can still do it with just gold or silver um murry card that'll be you'd get just the same effect it's just fun to use different pieces so I'm just cut a little strip there just so it fits over it doesn't matter if it doesn't because you can find a dab over um you know it doesn't all need to be from one area of the foil so just take off your backing and then I'm just going to lie the foil over the top just rub your fingers over it it's just like the the rubbing um rub on stickers and things like that and the more you rub it and eventually you'll see all the gold underneath transfer onto that double-sided tape and it will start to lift so I can see now it's lifting off and it's just leaving a clear plastic don't worry if it doesn't lift off of every area because it would have still taken but if I now peel that off you can see you get that lovely piece and then what you can do is just go over and if you feel on it that is a little bit sticky still you might have missed an area you can just go over like so I really love this technique and I've done a really good tutorial um about foiling with double-sided tape and I'll share that link as well for you but now you can just see got that really nice little die cut so again just take your backing off so again if you've got double-sided tape um on here now you just have to take each kind of strip off but as long as that whole area is covered if you don't cover it all and you think oh I've missed some just grab some tacky glue it needs to be a tacky glue so once it's dry it's still got a tacky um you know to touch texture so like tombo Alina's tacky glue um there's the nuvo stick as well which I've used that one there the glue pen that dries tacky they're all really good as well so if you've missed any pieces or you don't have double-sided tape cover your die cut in the tacky glue let it dry so it's tacky and then you can apply your foil so again you can see that there's just any areas that I think I've missed I can just go over it so there you go now I've got those four really nice gold and they have got a texture they've got a bit of a rough it's quite kind of like almost like a patina um aged vintage that kind of look to it so yeah it just gives a completely different finish so now we can get these stuck onto the top so if you want to go around and fold so to fold this you do one two three and then the last one you have to lift up that first one and pop it under and it just gives you that effect there and now I've done it so that these are one inch so they perfectly sit within the little squares that you have so I'm just going to go around and stick each one down okay so now you can see how gorgeous it's got a real opulent luxurious look about it now I really like that and then just to finish it off I have got these embellishments here so I'm just going to cut off four of them there and what I tend to do with the bigger ones as well is put a little bit of glue on the back um again not too much but it just um just means oh gosh just means they're gonna definitely obviously stay there stuck down and these fit perfectly in the middle so I'm just going to pop one in all of those okay so there you have it a really lovely interlocking Moroccan themed gift box so I think it's a nice twist on a normal square I've got to rub that bit of glue off there on a normal square gift box um but I think they look absolutely fine love them so there you go so I hope this is um inspired you I hope you like the style that I've come up with today um if you are interested in the hobby base kit um all of those links as I mentioned before will be shared in the description box below but until then um happy crafting give this a thumbs up if you enjoyed it and subscribe to the channel to see more thanks for watching bye