 I welcome members to the 13th meeting in 2017 of the Delegated Powers and Law Reform Committee. Agenda item 1 is a decision on taking business in private, and it is proposed that the committee takes item 9 in private. Item 9 is a consideration of the committee's third quarterly report for the parliamentary year 2016 and 2017. Does the committee agree to consider item 9 in private? The next item on agenda is the committee's consideration of the powers to make subordinate legislation conferred in Scottish ministers in the criminal finances bill as amended. The bill is a UK Government bill that was introduced in the House of Commons on 13 October 2016. Amendments to the bill are currently being considered at report stage in the House of Lords today, having previously been considered at committee stage in that House on 3 April 2017. On 13 December 2016, the committee previously considered and reported on the provisions in the bill and a legislative consent motion was agreed by the Scottish Parliament on 2 March 2017. Following the legislative consent motion, further amendments were tabled for consideration in the House of Lords and a supplementary legislative consent motion was lodged on 30 March 2017. In lodging the supplementary memorandum, the Scottish Government noted that the timescales for consideration would be tight, as the bill was already at committee stage in the House of Lords. Those timescales tightened further, with the announcement of a UK general election on 8 June 2017 and the consequential dissolution of the UK Parliament thereafter. As a result, it is expected that the bill will now complete its passage through the UK Parliament by tomorrow. To comply with those very tight timescales, the committee is required to consider and report on the LCM today. It is suggested that the committee could be content with the amendments from its perspective. Does the committee agree to find both the amendments tabled for report stage in the House of Lords on 25 April 2017 to the powers that the bill delegates to the Scottish ministers in clauses 53 and 54 of the bill and the parliamentary procedure to which those amended powers are subject to be acceptable in principle? Many thanks. Does the committee also agree that it is a matter of concern that the Parliament has not had a reasonable amount of time to fully scrutinise those changes? In particular, from the perspective of parliamentary scrutiny, it is agreed that it is regrettable that the committee will not be able to avoid publishing its report on the same day that both the amendments are voted on at report stage in the House of Lords, and the Scottish Parliament votes on the supplementary legislative consent motion. Are we agreed? Thank you. We now move to agenda item 3, which is the contract third party rights Scotland bill, and this is our final consideration of oral evidence on the contract third party rights Scotland bill at stage 1. It is a real pleasure to welcome Minister Annabelle Ewing, who is a minister for community safety and legal affairs to our committee today to take part in this final evidence session. It is also a pleasure to welcome Katrina Marshall, a solicitor for the Scottish Government legal directive, and Jill Clark, who is a bill team leader in the Civil Reform Unit. Welcome back, Jill. I now invite questions from my committee. I have the first question, and the first question is regarding the general benefits of the bill. Minister, if we may, the first question is, we have heard from various witnesses that the bill will clarify uncertainty in the current law and give parties the flexibility to amend or cancel third party rights. Could you explain why this is important and outline other benefits that you think are relevant, please? Thank you, convener, and good morning to all the members of the committee. I am pleased to be here today to seek to answer your questions on the bill. With regard to your question, convener, I think that it is clear, and I have read all the evidence sessions that you have had, that there has been a lack of clarity in terms of the common law, and, indeed, significant concerns about predictability and flexibility. If one reads the whole documentation, including the Scottish Law Commission's discussion paper of 2014, then the report in 2016 and the submissions that you and the committee have received, I think that it is quite clear that what we have seen in Scotland is a long-standing existence in terms of the law of third party rights, but an increasing difficulty in having anybody seek to invoke the benefit of Scots law as far as the third party right regime is concerned. Indeed, in terms of Scots law, I think that it was in the discussion paper of the SLC of 2014 that it started with looking back to a case, dating back to, I think, 1590 or thereabouts, the Moncour case. I think that that suggests that if we are having to look back to a case of 1590, that we might want to think about whether there might be better ways to do that. However, what has grown up in Scotland is a body of law driven by case law that has presented very serious difficulties in terms of the key issues of clarity and flexibility. Those difficulties, in short, involve principally, I suppose, the issue of the revocability of the right, and the understanding in Scots law, since a seminal case in 1920, Cymruco v Cymruco's executrix, that, in order to properly confer a third party right, there had to be a revocability. It also went on to say that there had to be a communication and notification intimation of the right in order to establish the right, but the key issue was that the right had to be irrevocable. In modern day commercial activity in particular, that is a very inflexible position that does not make using that law attractive in the slightest. Also issues have arisen, though, as regards clarity in terms of the remedies open to the third party to, when enforcing the right, the defences open to the contracting parties when they are seeking to defend a third party claim. There is an element of a lack of clarity of the application of a law of prescription to third party rights and so forth. Taking all that in the round, what the result has been, convener, is that people have sought rather to find another way round this. I think that you have heard significant evidence on what has been termed walk around. The two key walk arounds in this area have been either making the third party rights clause in the contract or indeed the whole contract subject to English law in terms of their legislation or alternatively or perhaps cumulatively sometimes having recourse to collateral warranties. I think that you have heard a lot of evidence that collateral warranties involve a very big long paper chase in many larger transactions where you have unnecessary expense at time involved in securing all the collateral warranties that are required. Therefore, there has been a lack of confidence in Scotland in using the third party rights regime as set forth in the common law. What this legislation principally is seeking to do is to remove that obstacle to using third party rights law as it is the case in Scotland and has been for many, many centuries. Having read all this documentation and all the arguments of the SLC that have been put forward, I think that one could talk all morning about the problems that have been in using the third party rights common law regime in Scotland, but that is just a flavour of the problems that we have seen. Therefore, as I say, what this bill is seeking to do principally is to ensure that that obstacle is removed. Excellent. Well, thank you very much. I think that we will actually agree with your aims and objectives. I must say that we will, throughout the morning, elicit other statements from you and look forward probably in due course to you bringing forward amendments, but you might want to talk about those as we go through the questions. So, I will now hand over to my colleague, and I have to convene to Stuart McMillan. Stuart, you have some questions, please, for the minister. Thank you, convener. Good morning, minister. Certainly, you touched upon this a few moments ago with your comments just regarding the use of Scots law, and certainly with the policy memorandum for the bill, it states that this legislation will actually promote the use of Scots law. Can you outline how this bill will actually achieve this, please? Okay. Well, what we are doing is, if the bill is passed in committee and in the Parliament, what we are seeking to do is provide an option. You will still have the freedom to contract in Scotland. That is a fundamental principle of contract law in Scotland. You will still have freedom to contract and, basically, within certain overarching limits, do what you want with your contract. However, that provides an option, and I think that that will be seen over time. It will not happen overnight, but I think that that will be seen over time as helpful and will lead to a change in behaviour in terms of how we have approached third-party walk-arounds, as I referred to in recent years. As I say, it will not happen overnight, but I think that there will be a change as people see this as a helpful option available to them. I think that this point emerges from your evidence. I remind you that, aside from the administrative and expense involved in clatter warranties, increasingly there are question marks about the scope of clatter warranties, about the enforceability of clatter warranties. Therefore, it may be that, as those issues come more to the fore, there might also be a need to look at what other options might be available. Over time, that will help to change the culture of recourse to third-party walk-arounds in Scotland, which can only be to the benefit of the reputation of Scots law and the accessibility of Scots law for parties in Scotland seeking to contract. In terms of some of the evidence that we have heard, some witnesses suggested that lawyers often choose English law when setting up contracts, as it has been considered to be clearer than Scots law due to England being that bigger jurisdiction, and certainly with more cases going through their particular courts. It has also been suggested that there is that probability that, even with the passing of this legislation in Scotland, lawyers will still choose to use English law. Is there anything that can be done when and if the bill passes in the Scottish Parliament? Is there anything that can be done to help to promote the legislation to encourage more people to use Scots law? There would be a job of work to be done in terms of ensuring that practitioners in Scotland were aware of the new legislation and the alternative that they have at their disposal. That can be done in a number of ways. I would imagine that the Law Society of Scotland would be involved in information awareness and the fact that advocates would have a role. I understand that the Royal Incorporation of Architects, for example, in their evidence to the committee suggested that they would seek to proceed by way of a practice note. Of course, there are law conferences just about every day, and that would be an opportunity to ensure that proper awareness was raised about this new option for parties in Scotland seeking to contract. In a whole range of fields, it is not just large commercial contracts, it can affect potentially anybody and individuals particularly as well. I think that there would be a job of work to be done. Obviously, we, as a Government, would seek to facilitate that information awareness raising as carried out by the relevant professional bodies. However, in the end of the day, as I say, it will be a matter for the parties to the contract to choose how they wish to structure their contract and what they wish to do. However, what we are trying to do is to say that there will be in due course an attractive option for you. That is what the option is. You may wish to consider that as a more cost-effective way of drafting your contract. On your point about the relevant professional bodies, would the Scottish Government certainly be open to working with the likes of CBI Scotland, FSB Scotland and other non-legal professional bodies to help to promote that legislation? Once the legislation is passed, it does not mean that all responsibility is suddenly put to one side. Yes, of course. We all have an interest if the legislation is passed in ensuring that it is made use of and in whatever way the Government can help to facilitate the actions of other relevant bodies, including business organisations. Of course, we would be happy to consider what we could do in that regard. You touched on the benefits to individuals slightly in your answer to Stuart McMillan. Much of the focus that we have been taking evidence so far has been on the benefits to the business sector, which is understandable. What could you perhaps say to what degree the Scottish Government would expect the bill to benefit individuals as well as businesses? What I can say is that the scope is not limited to large corporates. The scope is there and applies to everybody seeking to contract where the relevance of a third party, conferring a third party right, would arise. For example, in the evidence before the committee, references have been made by the SLC to, for example, holiday contracts where one member of the family will contract the holiday and all the arrangements pertaining there, too. Something mega goes wrong, which can happen, and the other members of the family may not have any right of recourse because they have not personally concluded the contract. That is a very obvious example of where getting the law accessible to everybody could be a help, particularly to individuals. I know that the SLC has given the example of where you have a situation of an informal carer for an adult who has mental incapacity and, again, may contract on behalf of for the benefit of that incapacitated adult. However, in the end of the day, if there is a problem who has suffered the loss, it is not the informal carer, so that gets you back to the basic problem of where you need to be able to ensure that you can properly confer a third party right that can, in fact, be invoked and enforced. Those are just two examples of where we can see already the applicability of the new regime to individual cases and that it would be a benefit to them. Some concerns have been raised about the impact of the legislation for smaller businesses. Professor Beall, for example, suggested that small businesses may not always realise that the rights of third parties are subject to cancellation or variation, particularly if it is tucked away in small print. Is that a matter that the Scottish Government has considered? If so, does it have any plans to ensure that smaller businesses are properly protected? Whatever the size of your business, I think that you would want to ensure, if you are entering into contracts, that you know what the contract entails. I should perhaps at this stage, because I am not meaning to suggest that this would be the only route, but I am a member of the Lost Society of Scotland and I hold a practice certificate. I was about to say that, normally, the advice would be to seek legal advice, although I am not practicing, so it is of no personal benefit to me. That would be the normal advice to seek legal advice as to what exactly it is that you are contracting to do. I think that it is always very important that an individual, a small business and a large business knows exactly what they are signing up to. There is no shortcut to that if you feel confident that you can make that judgment yourself without legal advice. That would be up to you, but legal advice would always be helpful in that regard. I have not noticed some of the evidence. Indeed, there was a submission from a small from a subcontractor. I do not know the size of that subcontractor. Certainly, the issue arose to the feeling that if you are a smaller subcontractor at the end of a very long chain, you may not feel that you are getting an equal say, but I would suggest that that is not really within the scope of the bill. That is rather a matter of the relative contracting power of each contracting party, and the bill does not impose obligations on third parties. It simply confers rights on third parties, which the third party is not bound to accept. In that regard, it does not act to the detriment of a smaller subcontractor or a smaller business. That is important clarification. You see benefits in having this clarity over what the remedies will be. Yes, I think so. In broad brush, it is all very well having a right, but if the right cannot be enforced and you cannot seek a remedy under the law in the exercise of your right, it would perhaps not be regarded as particularly valuable. It is important that the bill, as I alluded to earlier in my response to the convener, seeks to clarify other issues, including the very important issue that the member raises about remedies, and to make clear that the remedies include the right to damages, because that was an issue that had been the subject of a particular lack of clarity over the many decades and centuries that we have been relying on the common law and third party right regime. Again, in our evidence sessions, we have heard a lot about the use of third party rights legislation in England. We have heard that lawyers in England and Wales have been quite slow to use the equivalent English legislation. As you have already touched on, ministers often use work around such as collateral warranties. Instead of third party rights, again, you said an earlier answer. You think that things will take time if the bill is enacted, but do you consider that there is a similar risk that the same problems will occur in Scotland, as we have seen perhaps in England? I think that it is important to recall that, when the 99 act was introduced for England and Wales, prior to that, there had been no possibility of conferring a third party right. Under English common law, the absolute rule was what is called privity of contract. Your contract was absolutely between the parties to the contract, and it had no effect beyond that. Therefore, for England and Wales, the 99 legislation introduced the concept for the very first time. I would imagine that, as a result, it is not simply that you are codifying a right that has existed at common law, but that you are actually introducing a new right. Therefore, it may be that there has been a certain reluctance to try something new that parties may prefer to do what they know, which is to go with the collateral warranty route in particular. However, I understand from reading the evidence that things may be starting to change in England. As I said earlier, with the slightly key question marks now coming in with regard to collateral warranties, in particular with respect to their enforceability, we may continue to see an increasing recourse in England and Wales to their legislation. Of course, the position in Scotland is slightly different in that, as I said, we have had a common law regime of third-party rights for centuries. What we have found is that we have had problems in those third-party rights being the regime of parties having recourse to our common law regime for the various reasons that are explained, but we nonetheless have had third-party rights as part of our legal system for hundreds upon hundreds upon hundreds of years. Therefore, by codifying our law, we are not introducing, per se, something new. We are simply hoping to make it more accessible to people. Therefore, we start from a slightly different place. Whether in the end of the day that that will have a different result in terms of recourse to our legislation, I think that we have to wait and see. I think that we are optimistic that, by removing the obstacle to the recourse to our third-party law regime, we have seen that, over time and with the information awareness point that Stuart McMillan made, we will see an increasing recourse to our legislation in the way that we have seen. Further to this committee's work on the Legal Writings, Counterparts and Delivery 2015 Act 2015, I think that officials have conducted a kind of anecdotal survey that suggests that that is starting to change previous requirements in terms of extensive activity to get a document executed by all parties. Therefore, I think that we have started to see changes there. We would be hopeful that, with this legislation, over time, we would also see similar changes in terms of increased recourse to our legislation. We can tell from your evidence that you believe that this legislation would provide a helpful option to people. What in particular could the Scottish Government do to try and encourage the pace of change? You have mentioned law conferences and there is a job of work here for the legal professions. Is there anything in particular that the Scottish Government has considered? We are happy to work alongside, collaboratively, with the various professions that are most obviously involved, together with business, to ensure that parties and practitioners in Scotland know that there is a more accessible option now or will be if the act is passed available to them. We are happy to consider any particular ideas in that regard. Does the Scottish Government quite content to see a flexible approach to remainment? We took evidence from some witnesses from the construction sector, for example, and they were positive about that, but they were quite realistic and said that the use of collateral warranties will probably continue. For lots of clients and investors, that would be the first point of call. Are you quite relaxed about that? We accept that, in Scotland, as I referred to, freedom of contract is an overarching principle of contract law in Scotland and therefore it is entirely up to the parties to choose how they wish to construct their own contract in whatever field it is. The role of government is not to come and impose a dictate on how they do that. The role of government is to facilitate options for them to ensure that Scotland's law, particularly in the commercial field, is keeping a pace with other jurisdictions so that people operating here in Scotland—not just in the commercial field but given that that was the reference that the member raised, but that they have the option and that is the way that we would intend to proceed. There would be no requirement that they invoke the bill, but we would hope over time that they would see the advantages of invoking the bill. It is fair to say that the more familiarity that practitioners have with the legislation, the more likely it is that they will be at least open to suggesting to their clients that this is something that the client may wish to consider. We can have grounds for reasonable optimism that legislation that will, over time, be seen as a help in Scotland's law and not a hindrance. Thank you very much. Thank you, convener, and good morning, minister. Section 406 of the bill includes rules that stop contracting parties modifying or canceling a third party right. Could you outline how those provisions will work in practice? Okay, I understand that there have been different views expressed about section 406. I think that the general view is that they are seen as balanced and that the objective that the insertion of those provisions is trying to secure is a reasonable objective. That is, if we go back to the basic problem that had arisen with regard to recourse to Scotland's common law in the area of third party rights, that is the issue of irrevocability. It is recognised in the bill, and the bill is important to say that it is a default setting. The parties are still free to contract however they wish, but it is the default setting and it sits within the framework of Scots of the general law on obligations and contracts. However, with regard to section 406, I think that it was recognised that it would be helpful to try to strike a balance in terms of giving the parties to the right to say that they can modify or cancel the contract in effect without the consent of the third party on whom the right had been conferred, but at the same time try to find a balancing to limit that where it would be manifestly unfair. For example, one of the examples in those sections is where the third party has actually relied upon the right, and that has been known to the contracting parties or they should reasonably have been able to foresee that the third party in the circumstances would rely on that right. Therefore, it is felt that in terms of setting up the default structure that it should be a focus of the bill that there should be an attempt to deal with manifest unfairness, and that is what sections 406 are seeking to achieve. I understand that certain, but not all, of those who have given evidence have suggested that there may be a different terminology that they might wish to see, but it seems that they are not all agreed by consensus on what that different terminology would be. We feel that—I think that one issue that has been raised is that the sections 406 in the view of some is unnecessarily complex, but we feel that setting out and codifying the position in legislation and setting up the default position has to deal with the multiplicity of possible facts and circumstances. It is not just a question of a simple, how you have to pay me a sum of money situation. It has to deal with the whole possible set of circumstances with our ken in terms of drafting. Therefore, we have to endeavour to anticipate that. That is why we have been happy to reflect the SLCs carefully, very carefully thought through approach to that issue. That is why we have set out the provisions in the way that we have. We feel quite comfortable with the provisions as they are currently set forth. We have heard from Professor Hugh Beal that, while the equivalent English provisions are cooter and less sophisticated than the Scottish ones, they are possibly easier to understand. A number of other witnesses have also highlighted concerns about the clarity of section 4 and 6 of the bill. Do you think that the provisions are sufficiently clear for courts to follow? I do think that they are clear. I think that, as I was trying to make the point that what we are trying to do is to reflect, we are also going back to first principles. The bill is codifying hundreds of years of Scots law. We have had the tradition of third party rights and we have to not pretend that we are starting from scratch. We are not starting from scratch. We are codifying what has been a centuries-old element of our legal system. Therefore, we have to approach it in that way. A direct comparison with the provisions of the legislation in England and Wales on this particular issue or any other issue is not making the right comparison, because we are comparing a piece of legislation that introduced for the first time third party rights into a legal system. That is not the case with regard to the proposed legislation. Therefore, we are starting at a different place and we have to reflect that in the drafting of our provisions. Instead of seeking to have to quote Professor Beall a cruder version, I am not entirely sure that that is what the Government is seeking to ensure that the integrity of Scots law would be seeking to do as a first choice. Rather, we should seek to draft the provisions in a way that will hopefully meet what they are seeking to achieve, which is to slightly balance the issue of fairness in terms of the position of the third party. I hope that that is helpful to the member. The Faculty of Advocates has argued in its written evidence that the drafting of section 9 of the bill could be improved. What is your view on the faculty's point of view and its suggestions in relation to the redrafting of this section? Yes, good morning. I am aware that the faculty has certain concerns about the drafting, albeit not what the section 9 is seeking to do, which is to allow those third party rights to be arbitrated. However, I know that they have some concerns about drafting. We feel quite comfortable that the drafting reflects the objective of being sought. We are not entirely sure whether there may be some misunderstanding in terms of some of the argumentation that is put forward by the faculty on that point. However, if there is clear evidence that there would be a better way to achieve the obvious objections of section 9, we would be happy to look at that. However, we feel that we have the drafting right on the issue. However, if there is clear evidence that we need to look again at that, we would be happy to do that. It would be fair to say, Minister, that we have had a lot of evidence to suggest that it could be made clearer that perhaps more elegant might be another way of putting it. Given your foregoing responses that you are seeking elegance, would you be considering bringing forward an amendment in that regard or that the case has not yet been made as far as you are considering it? I am not convinced that the case has yet to be made, because I understand that we feel that there has been a certain misunderstanding on the part of those who have a problem with the drafting. We do not feel that they have quite understood the way that section 9 sits in the bill and it is into a relationship with other sections, including the key definition section, but perhaps it is a joke. It is helpful to hear from you. I think that what the minister said is exactly right. I think that we would still like some time to work through with the Scottish Law Commission and, in particular, David Bartos, who helped them a great deal on their chapter on arbitration just to work out whether there is a very real issue or not, because we are not convinced at the moment. However, as the minister says, if there is an issue, of course, we will be happy to consider an amendment, but we are not quite there yet. For my lack of hearing, you are in discussion with David Bartos and others in this regard at the moment by way of explanation. Thank you very much. That is very helpful. I want to move to section 122 of the bill and section 122 of the bill protects existing third-party rights that are acquired before the act has come into force from abolition. It is written evidence that the law, Shepard and Wetterburn, argues that the reference to acquired in this section means that existing conditional third-party rights may not be protected from abolition as they will not be acquired until the condition is fulfilled, which might not happen until the act has come into force. What is the Scottish Government's view on this argument? Yes, I think that it was a very good point raised by Shepard and Wetterburn, and it is certainly clear that the intention is to ensure that a contingent, if you like, conditional use, coetition and tertiary third-party rights currently in existence are able to be enforced at the time of crystallisation of the right, and it is absolutely not the intention of the bill to do anything that would hinder that. Therefore, I think that it is clear that we need to reflect further on our drafting on that particular point, because I think that the use of the word acquired, while it is clear in one regard, could perhaps benefit from further clarity just to ensure that there is absolutely no dubiety about the fact that these contingent third-party rights are absolutely not affected by currently in existence by this legislation, so it is something that we will be actively looking at. I think that that would be very welcome. I must say from our point of view, and we wouldn't want you to see something that somebody had taken away from them. Therefore, we would want to see them maintained. I am now moving on to adjudication. If I may minister and some witnesses have indicated that it might be worth investigating whether the bills, rules and arbitration could be applied to adjudication used in the construction sector, others have suggested that this would overcomplicate and slow down the adjudication process. What are the Scottish Government's views on the concerns raised within the construction industry in relation to the arbitration section of the bill? Further to the evidence provided, I understand that officials are currently looking at the issue of the housing grants, the adjudication process, specifically as regards construction in the housing grants construction and regeneration act 1996, and that is currently being looked at. We will reflect on the specific nature of that. In terms of adjudication in general, I think that the point was made by Hewdon Dass that if we were to add adjudication, he took the view that it would not be necessary and could be confusing, and that was, as you have alluded to, as against others who felt that this might be something worth looking at. I think that an important point to bear in mind in this regard is that adjudication, as far as I understand it, is a temporary process and would lead to either the courts or agreement, the courts or arbitration. I think that that probably was the starting of point in terms of the consideration of this issue or one of the points. I think that it is also important to recall why it was necessary to have a specific reference to arbitration in the bill. That is because the 2010 Arbitration Scotland Act expressly limits the possibility of invoking the act to those parties who are parties to the arbitration agreement themselves. Therefore, in order to displace that provision of that statute, as far as third party rights are concerned in the circumstances set forth, we had to make an express reference to the arbitration act. We are not necessarily convinced that that would be the same for other forms of dispute resolution mechanisms. Therefore, that is why there has not been a reference to other forms in the act, but we are reflecting on that point just to ensure that we have the act and the legislation drafted in the best way possible to not inadvertently exclude those proceedings that could be included. Excellent. I think that that is certainly what we would want to hear in that regard, and that is still if you like a work in progress. Thank you for that, minister. Now we move to the human rights element of this bill. The policy memorandum explains that the bill complies with article 6 of the European Convention on Human Rights on the right to a fair trial, as it gives third parties a choice of using arbitration. Can you expand on why the bill complies with the convention? Well, the presiding officer has ruled that the bill is within scope, so I would not want to second guess the presiding officer. However, just for clarity, I think that the point being raised here is the issue of whether you can be forced, if you like, to give up your otherwise recourse to the courts. In terms of the arbitration provisions, it is clear. Going back to first principles about conferring a third party right, you cannot impose an obligation, you cannot impose a requirement for a party to proceed with arbitration, you can simply facilitate it and it would be up to the party to choose to do so or not and therefore waive in that instance their rights to the courts. That is why, at its essence, given that there is no compulsion, there is no breach of article 6. I think that that is very welcome, and I would certainly want you to be absolutely clear in that regard, because where the Parliament has tripped up, as you will be well aware in over the last number of years, has been this removal of the element of choice, which has seemed to be where we have fallen foul. So, as long as we are not removing choice then. We are facilitating an option to choose arbitration. Going back to first principles, conferring a third party right is simply that you cannot impose an obligation on the third party in your contract, you cannot do that. It is up to the third party to accept the right or not, the third party doesn't need to accept the right. In terms of the first element of the arbitration provision, it is clear that, in terms of the right being conferred, part of that package is—or could be—that the matter would be, in event of dispute, subject to arbitration, but the third party in accepting the right is accepting the package, and that is the key issue. Okay, thank you very much. I thank you, Alison. I now move to Stuart McMillan. Mr McMillan, please. Thank you, convener. Minister, on in your comments, when you spoke about the third party rights and the length of time that has been in operation in Scotland, it has gone back hundreds of years. I am certainly not going to argue with you in that particular area. Some of the evidence that we have received has highlighted that there has been an issue with the third party rights in Scotland since the Second World War. Do you think that there actually is an argument that the pace of reform in the law reform area has actually been too slow? In an ideal world, I guess, one would like to see a lot of activity and a lot of fronts, but, realistically, particularly taking into account complex areas of the law, you want to get it right and you want to have discussion. That is what the SLC has done with regard to the complex area of the law. It has proceeded with extensive consultation. It has carefully considered the responses that it has received. It has then proceeded with a draft. It has had further discussions on particular issues. We now have the stage 1 evidence session with the minister today. We would all like to see things happen more quickly in life, but realistically, in very complex areas of civil law particularly, there is a process to be followed. The point of the process would be to ensure that we get the best piece of legislation that our collective endeavours can possibly arrive at. I think that the prize is therefore worth a wee bit more of a delay, but I understand that Scotland is not unique in this regard. I think that one of the evidence sessions suggested that, for the English and Welsh legislation in 1999, there was a reference to perhaps the first possible mootings of doing something before the Second World War. Things tend to move not as quickly as the general public would like to see, but, as a matter of getting it right, it is important to proceed without undue haste. Of course, we can always strive to do things better. Thank you. Certainly, an issue that arose in some of the evidence sessions was that regarding the black hole of non-liability and something that has come up by some witnesses. We understand that the SLC is considering this issue separately. One of the things that has come up regarding the SLC and its activity seems to have been on individual areas of law. However, in terms of the whole process of law reform, is there an argument that the law reform could be speeded up if further law reform bills incorporated more than just one specific area of the law? That is an interesting question. I guess that that is one possible way. Of course, I think that we have seen both at Westminster when Westminster is still legislated, exclusively in the area of the Scottish civil law and indeed in this Parliament, in terms of some bills, that, once you have an omnibill, things can get a bit rushed and difficult. Instead of being a focus, a clear, straightforward focus on the matter at hand, you get all these bits added, you have unintended consequences, something else needs to be added at the last minute to deal with something else that you have included earlier on. It could become a bit of a hotch potch, so I think that you have to have a balance of proceeding in an orderly fashion, but also respecting the interests of the public in ensuring that we maintain our legal system in an effective and accessible way for the benefit of all of our citizens. There is a balance, but it is an interesting question and one that I can pursue further in my next meeting with Lord Pentland perhaps. One should bear in mind that the wider the reach of the bill in terms of the bringing in within its scope, a whole series of not necessarily interlocked issues raises issues in terms of how that bill then ends up further to its parliamentary handling. There is no ideal solution to the issue at hand, but we are certainly encouraged to note that the SLC is proceeding with its next programme of reform. I think that they were just about to announce that. I will launch that tomorrow, but it is torn. This bill and probably the legal writings bill are a good example of something that is from a big contract framework that the SLC are looking at. If you wait until they concluded all of that, we would be waiting even longer for law reform to happen, but by breaking it down into bite-sized chunks, at least something is happening and improvements are being made. We would just wait longer, but there is a programme for the 10th programme of law reform launches tomorrow. Certainly, on the legal writings that I was on, the committee looked at that as well. I think that the point regarding the bite-sized chunks is well made. I think that the potential going forward without having a bill that is overarching, but maybe to have two or three bite-sized chunks, if they are compatible, might be something worth considering, compared to just individual bite-sized chunks going forward. Exactly. Each instance would depend, I suppose, on the facts and circumstances of what you were seeking to do and what possible things could be combined. It is an issue that I am happy to raise in my next meeting with Lord Pentland, which I do not know when it is set for, but I am sure that it is soon. Is anyone any further supplementary questions for the minister? If not, it remains for me to thank the minister and Joe Clark and Katrina Marshall for accompanying her today, and for giving us your evidence so elegantly. Thank you very much indeed. We will now reflect on what you have said and look forward to the stage 1 process continuing. Thank you very much. Can I now just suspend the meeting for a moment? Okay, everyone, shall we start again? We move now to agenda item 4, which is instrument subject to affirmative procedure, and no points have been raised by our legal advisers on the draft Apologies Scotland Act 2016, accepted proceedings regulations 2017. Is the committee content with this instrument? Thank you very much. I will now move on to agenda item 5, instrument subject to negative procedure, and the next instrument for consideration is the Electricity Works Environmental Impact Assessment Scotland Regulations 2017 SSI 2017 No. 101. The purpose of those regulations is to update and replace the Electricity Works Environmental Impact Assessment Scotland Regulations 2000 in order to implement Directive 2014-52 EU on the assessment of the effects of certain public and private projects on the environment. The committee notes that the meaning of Regulation 31C could be clearer if the provision referred to the consultation bodies as defined in Regulation 2.1, rather than those authorities as drafted. That is particularly the case, as no authorities appear to be referred to in Regulation 31C. Accordingly, does the committee agree to draw the instrument to the attention of Parliament on Ground H as the meaning of Regulation 31C could be clearer? The committee also notes that there are errors in Regulations 13, 5, B, 18, 1, 29, 3 and 34 that are all similar in nature. Those provisions all fail to properly cross-reference other provisions either in the same instrument or in other regulations that have been acknowledged by the Scottish Government. On that basis, does the committee also agree to draw the instrument to the attention of the Parliament on the general ground as the regulations contain the following minor drafting errors related to cross-referencing. Firstly, Regulation 13, 5, B refers to Regulation 11, 1 of the Environmental Information Scotland Regulations 2004, but it was intended to refer to Regulation 11, 2 of those regulations. Secondly, under Regulation 18, 1 refers to a notice published under Regulation 21, 1, but it was intended to refer only to Regulation 14, 2 C. Thirdly, Regulation 29, 3 refers to particulars in paragraph 2C, but it was intended to refer to paragraph 2A. Fourthly, Regulation 34 refers to Regulation 30 to 32, but it was intended to refer to Regulations 31 to 33 on electronic communications. The committee notes that the Scottish Government intends to bring forward anemending instrument to rectify the errors in the regulations that are identified above. Does the committee agree to welcome the Scottish Government's commitment to bring forward anemending instrument? The next item for consideration is the Town and Country Planning Environmental Impact Assessment Scotland Regulations 2017, SSI 2017, number 102. The purpose of those regulations is to update and replace the Town and Country Planning Environmental Impact Assessment Scotland Regulations 2011, SSI 2011, number 139, to implement certain provisions of the directive 2014, number 52, EU. Like the Electricity Works Environmental Impact Assessment Scotland Regulations 2017, SSI 2017, number 101, the committee notes that those regulations raise a matter of drafting clarity. Specifically, with regard to Regulation 421C, it would be clearer if the provision referred to the consultation bodies as defined in Regulation 2.1 rather than those authorities as drafted. Accordingly, does the committee agree to draw the regulations to the attention of Parliament on Ground H as the meaning of Regulation 421C could be clearer? The committee also notes that the instrument contains some minor drafting errors that have been acknowledged by the Scottish Government. Does the committee therefore agree to draw the regulations to the attention of Parliament on the general reporting ground in light of the following minor drafting errors? First, Regulation 196B refers to Regulation 111 of the Environmental Information Scotland Regulations 2004, but it was intended to refer to Regulations 112 of those regulations. Secondly, there is an error in schedule 6 revocations in the citation of the waste meaning of hazardous waste and European waste catalogue, Miscellaneous Amendments Scotland Regulations 2016, as they are the 2015 regulations. The committee notes that the Scottish Government has confirmed that it intends to bring forward an amending instrument to make the changes to Regulation 196B and 421C. Does the committee agree to recommend that the planned amendment should also correct the error in schedule 6? No points have been raised by our legal advisers on the flood risk management flood protection schemes, potentially vulnerable areas and local planned districts Scotland amendment Regulations 2017, SSI 2017 number 112. Is the committee content with this instrument? Final instrument for consideration in instruments not subject to any parliamentary procedure is the Act of Sederent Fatal Accident Inquiry Rules 2017, SSI 2017 number 103. The purpose of the instrument is to set the procedural rules that apply in the sheriff court in relation to fatal accident inquiries. This follows the enactment by the Scottish Parliament last year of the inquiries into fatal accidents and sudden deaths, etc. Scotland Act 2016. The committee notes that rules 1, 2, 1 and 3.5 and paragraph 19 of schedule 4 as currently drafted appear to be defective. Accordingly, does the committee agree to draw the instrument to the attention of the Parliament and Ground I in respect of the following instances of defective drafting? First, the definition of apply and related expressions in rule 1.21, which means to apply in accordance with schedule 1, does not provide for an exception where the context requires otherwise. That is despite the instrument containing a number of references to apply and related expressions that are not intended to engage the procedure in schedule 1. In addition, the procedure in schedule 1 incorrectly applies in relation to rule 3.5 in connection with a person who is not given notice of an inquiry under section 17.1 of the fatal accidents and sudden deaths, etc. Scotland Act 2016, but who wishes to apply? Also paragraph 19 of schedule 4 incorrectly includes in the definition of legal representative a person having a right to conduct litigation or a right of audience by virtue of section 27 of the Law Reform Miscellaneous Provisions Scotland Act 1999. In addition, our legal advisers have also raised a number of minor drafting errors. Does the committee therefore agree to draw the instrument to the attention of Parliament on the general ground as the instrument contains the following minor drafting errors? Rule 4.84 refers to the fees payable under paragraph 2, but it was intended to refer to paragraph 3. Form 3.1 in schedule 3 does not reflect rule 3.12f insofar as it does not provide for the first notice to be to set out in the case of a discretionary inquiry under section 6 of the 2016 act, which condition in section 6 3A of that act is met. The signing block in form 7 in form S4.7 in schedule 3 is missing. The heading of form S5.5C in schedule 3 does not reflect that the form can be completed by the participant who obtained an order for recovery of documents in terms of paragraph 5.3b of schedule 5, and paragraph 5.1b of schedule 5 refers to a participant executing commission and diligence under paragraph 4, but it was intended to refer to paragraph 6. The Lord President's private office has undertaken to rectify, you will be pleased to know, all of the errors identified at the next available opportunity, which will be considered in light of the meeting timetable of the Scottish Civil Justice Council. Does the committee agree to welcome that the Lord President's private office has undertaken to keep the committee informed of this? In addition, with a view to clarifying the correspondence with the Lord President's private office, does it also agree to recommend that the proposed amendments should also include inserting a signing block in form S4.7 within the schedule? We will now move to agenda item 7, which concerns the Domestic Abuse Scotland Bill. It is the consideration of the committee's approach to the delegated powers provision in the bill. The powers are limited to ancillary and commencement powers. It is suggested that the committee could be content with the powers. Does the committee agree that it is content with the powers in the bill and to prepare a stage 1 report in this regard? Many thanks. I now move the meeting into private.