 Good morning, everybody, and can I welcome members to the 22nd meeting in 2017 of the Delegated Powers and Law Reform Committee? Agenda item 1 is the decision on taking business in private, and it is proposed that the committee take items 5, 6 and 7 in private. Item 5 is the consideration of the committee's draft stage 1 report on the Forestry and Land Management Scotland Bill. Item 6 is the committee's consideration of the report on instruments that were considered by the committee during the fourth quarter of the parliamentary year 2016-17, and item 7 is the consideration of the committee's work programme. Does the committee agree to take items 5, 6 and 7 in private? Thank you. Agenda item 2 is the Contract Third Party Rights Scotland Bill. We now turn to the formal stage 2 proceedings on the bill. I welcome Annabelle Ewing, the Minister for Community Safety and Legal Affairs. I welcome Trina Marshall, the Solicitor for the Scottish Government legal directorate. And Jill Clark, our bill team leader, civil law reform unit at the Scottish Government. So I welcome to Katrina and Jill as well. So for the purposes of stage 2, members should have copies of the bill, as well as the marshals list and the groupings. And so we now move to that stage. So the question is, as there have been no amendments in sections 1 to 8, the question is that sections 1 to 8 be agreed to. Are we all agreed? Thank you. I move to section 9 on arbitration and call amendment 1 in the name of the minister, grouped with amendment 2. Minister to move amendment 1 and speak to both amendments in the group. I have set out previously that it would be a matter of concern that provisions in the bill are not readily understood. The committee is aware of the concerns raised by the Faculty of Advocates in respect of section 9. My officials therefore met with the representative from the faculty to discuss those concerns and section 9 in general. A number of the points raised in those discussions go beyond third party rights into possible wider changes to the law of arbitration. Such changes were not part of the recommendations of the Scottish Law Commission that underpin the bill, and, unlike the law commission's recommendations, have not been consulted on. I therefore do not consider the bill to be the right vehicle for addressing all the points raised by the faculty. However, to the extent that the points raised by the faculty expose a certain amount of confusion about what section 9 subsection 3 is intended to achieve, I think that there is merit in amending it to clarify the intended relationship between section 1 and section 9. The bill is intended to allow contracting parties to give third parties a right to resolve disputes by arbitration, even if the dispute arises from outside the contract. For example, personal injury claims which arise under the law of delict. The essentials necessary for the creation of this type of procedural third party right to arbitrate are the same as for any third party right and are set out in section 1. Section 1 is therefore the legal basis for a third party right to arbitrate, as it is for any other kind of third party right. However, without further provision, a third party would be unable to enforce that right because, under the arbitration Scotland Act 2010, only a person who is a party to an arbitration agreement can go to arbitration. Section 9 of the bill is therefore a technical fix to overcome that obstacle. It allows someone, with a third party right to arbitrate, to be treated as a party to the relevant arbitration agreement. Section 9 is what we often call a deeming provision. It provides for someone who is not a party to an arbitration agreement to be deemed to be a party. That is a very common drafting device, exactly the same approach to the issue of allowing third parties to arbitrate is taken by section 8 of the contracts rights of third parties act 1999, which applies in England and Wales. Amendment 1 is intended to make it absolutely explicit in section 9 subsection 3 subsection C that the third party right is to enforce the undertaking to arbitrate. This should remove any doubt that the third party right referred to in that subsection must be a third party right arising under section 1. Amendment 2 is consequential on amendment 1. I move amendment 1 in my name. Thank you very much. Any comments from colleagues? And they are being none, as far as I can see. Minister, have you anything you wish to say in winding up or not? No, I think I've explained our position. Thank you. Right, thank you very much. And so the question is that amendment 1 be agreed to, are we all agreed? Okay. Call of amendment 2 in the name of the minister, already debated with amendment 1. Minister, to move formally please. Formally moved. Thank you very much. And so the question is that amendment 2 be agreed to. Are we all agreed? Okay. We now move to renunciation of third party right. And a call of amendment 3 in the name of the minister, a group of amendments 4, 5 and 7. Minister, to move amendment 3 and speak to all amendments in the group please. Thank you, convener. We have had an opportunity to reflect on the view offered by Professor Oesianar on this section and also the law society's evidence to the Scottish Government that this provision is superfluous. And we have concluded that section 10 subsection 1 is not needed. Section 10 subsection 1 provides for the third party to renounce the right and confirms that the effect of such renunciation is extinction of the right. It is simply a statement of what is already a matter of general principle. However, section 10 subsection 2 does remain in point as it provides that where a third party raises a court action it is not to be taken as a renunciation of the right to submit the same dispute to arbitration. Amendment 5 will leave out section 10 while amendment 3 will move what is presently subsection 2 of section 10 to sit within the wider arbitration provisions of section 9. Amendments 4 and 7 simply remove cross-references to section 10. I move amendment 3 in my name. Thank you very much, and we welcome that. Are there members anything to say or not? Nope. Thank you very much. Minister, anything further to add in winding up? No, thank you. Thank you. The question is that amendment 3 be agreed to. Are we all agreed? Thank you. I now call amendment 4, in the name of the minister who's already debated with amendment 3. Amendment 3, Minister, to move formally. Formally moved. Thank you. So, the question is that amendment 4 be agreed to. Are we all agreed? Thank you. Question is that section 9 be agreed to. Are we all agreed? Thank you. I now move to section 10, and I call amendment 5, in the name of the minister who's already debated with amendment 3, Minister, to move formally please. Formally moved. Rwi all angenfodd? Fe ydynt i'r fawr mae, SS 5-8 ac amser wrth iddo ddim y bydd yn defnyddiannol, ond fel hyfrifau bach amrath amateur, mae gweld réch er mwyn gwneud yn eich bêl. Mae Cymru, Shepardyn, Wedeburn, mae i wneud y pryd mwy adeiladau a'r byw yn gyffredigol i ddiweddol o'r pethau ganiaethau dros gylauyddau yn slidebócysbydd y gallwch hyn a phrydau yn gwneud y pryn sydd ar eich cymysgau. Maen nhw'n gweithio gwaith sydd arweithio'r pethau hyd yn cyd-dweithasol. Dydyn ni'n rai ddalape hwnnw wedi digwydd gwyffredigol i'r pethau cyntaf iawn. Mae'n sech hechoi'r pryd yma yn cael ei f�ry. Mae'n dweud hyn i'r pethau in the context that, because section 13 allows contracting parties to choose to apply the bill's third party rights rules to pre-commencement undertakings, a single undertaking could therefore potentially give rise to both a common law and a statutory third party right. Amendment 6, therefore, goes on to add new subsections 1A and 1B to section 12. The new subsection 1A is to ensure that if a pre-commencement contract gives rise to a statutory third party right, any parallel common law right becomes unenforceable. That is to avoid the confusion that could result from a third party simultaneously having a common law and a statutory third party right. Linked to the new subsection 1B, the new subsection 1B prevents a third party from being able to assign a statutory third party right to enforce an undertaking meaning that someone else can enforce it and then be able to enforce it themselves through a revived common law right. I move amendment 6 in my name. Thank you for that clarification. Are the members okay? Minister, nothing further to add, I presume? No, thank you. Thank you very much. So the question is that amendment 6 be agreed to, are we all agreed? Thank you. And so the question is that section 12 be agreed to, are we all agreed? Thank you. I move to section 13 and call amendment 7 in the name of the minister. I'm already debated with amendment 3 minister to move formally please. Formally moved. Thank you. The question is that amendment 7 be agreed to, are we all agreed? Thank you. So the question now is that section 13 be agreed to, are we all agreed? Thank you. Question is that sections 14 and 15 be agreed to, are we all agreed? Thank you. And the question finally is that the long title be agreed to, are we all agreed? Thank you. So that ends the stage 2 consideration of the bill and I would like to thank the minister and our colleagues for coming to make your remarks to us this morning and delivering the stage 2 process. Thank you very much minister. Thank you. Thank you. Now suspend this meeting just for a second until I have the minister to leave. So now move to agenda item 3 then if everyone's sitting comfortably and that's instrument subject to the negative procedure. The first item, the first instrument for consideration is the Loch Current Urgent Marine Conservation number 2 order 2017 SSI 2017 number 205 and this order urgently revokes and replaces the Loch Current Urgent Marine Conservation order 2017 SSI 2017 number 158. This is due to the Loch Current Marine Protected area being re-designated as a nature conservation marine protected area by the Loch Current Nature Conservation marine protected area number 2 order 2017. The order was made and led before parliament on the 14th of June 2017 and came into force on the 15th of June. It does not respect the requirement that at least 28 days should relax between the laying of an instrument, which is subject to the negative procedure and the coming to force of that instrument. Accordingly, does the committee agree to draw the order to the attention of parliament under reporting ground J as there has been a failure to lay it in accordance with section 282 of the Interpretation and Legislative Reform Scotland Act 2010? Does the committee also agree to find the failure to comply with section 282 to be acceptable in the circumstances as outlined in correspondence from the Scottish Government contained in our papers? Next item for consideration is the building miscellaneous amendment Scotland amendment regulations 2017 SSI 2017 number 214. Those regulations amend the building miscellaneous amendments Scotland regulations 2017 SSI 2017 number 188, which the committee considered at its meeting last week. The regulations were made and laid before the Parliament on the 20th of June 2017 and came into force on the 30th of June. It does not respect the requirement that at least 28 days should relax between the laying of an instrument, which is subject to the negative procedure and the coming to force of that instrument. Accordingly, does the committee also agree to draw those regulations to the attention of parliament under reporting ground J as there has been a failure to lay them in accordance with section 282 of the Interpretation and Legislative Reform Scotland Act 2010? Does the committee also agree to find the failure to comply with section 282 to be acceptable in the circumstances as outlined in correspondence from the Scottish Government contained within our papers? No points have been raised by our legal advisers on the Carers Scotland Act 2016, prescribed days regulations 2017 SSI 2017 number 207. We are moving now to agenda item 4, which is instruments not subject to any parliamentary procedure. The next instrument for consideration is the Act of Sederent Summary Application Rules 1999 amendment, Trafficking and Exploitation Orders 2017 SSI 2017 number 211. The Act of Sederent amends the Act of Sederent Summary Applications, Statutory Applications and Appeals etc. rules 1999 in consequence of the Human Trafficking and Exploitation Scotland Act 2015. Paragraph 2, 2b1 and 2 insert references to a Trafficking and Exploitation Prevention Order and a Trafficking and Exploitation Risk Order respectively into rule 3.45.2 of the Summary Applications, Statutory Applications and Appeals etc. rules 1999. However, our legal advisers have identified that references to the equivalent interim orders being an interim trafficking and exploitation prevention order and an interim trafficking and exploitation risk order have not been inserted. The instrument was laid on 20 June 2017 and there was therefore no time available for formal questions and a response to be issued and received in time for the committee's final meeting before the summer recess. It is appropriate for the committee to consider this instrument before the recess because the error that has been identified relates in part to a provision that commences on 30 June 2017. Expediting the committee's consideration of this instrument affords the committee an opportunity to comment on the drafting error before it comes into force rather than waiting until its first meeting following the recess on 5 September. As a result of the lack of time available, the committee liased informally with the Lord President's private office on the drafting error and the Lord President's private office has agreed informally to correct those emissions. Accordingly, does the committee agree to draw the instrument to the attention of the Parliament under the general reporting grounds as a result of the error identified at paragraph 2, 2, B1 and 2? Does the committee also agree to welcome that the Lord President's private office has agreed informally to correct the emission in relation to interim trafficking and exploitation prevention orders at the next available opportunity, which it is anticipated will be within the next few weeks in light of such orders coming into force on 30 June 2017? Finally, does the committee also agree to welcome that the Lord President's private office has agreed informally to correct the emission in relation to interim trafficking and exploitation risk orders prior to such orders coming into force on 31 October 2017? Moving on, no points have been raised by our legal advisers on the Mental Health Scotland Act 2015, Commencement No. 4 and Transitional Saving Provisions Order 2017, SSI 2017 No. 197, or the Act of Sederent Rules of the Court of Session 1994 amendment, withdrawal of agents and judicial review 2017, SSI 2017 No. 200, or the Act of Sederent Rules of the Court of Session 1994, and Sheriff Court rules amendment, Regulation EU 2015-848, SSI 2017 No. 202. Is the committee content with those instruments? Thank you. No move the meeting into private.