 I welcome members to the 34th meeting in 2015 of the Delegated Powers and Law Reform Committee and asked members to switch off mobile phones. Agender item 1 is a decision on taking business in private. It is proposed that we take items 9, 10 and 11 in private. Item 9 will enable the committee to consider further the delegated powers provisions in the Lobbying Scotland Bill at stage 1. Item 10 will enable the committee to consider further the delegated powers provisions in the private housing tenancies Scotland Bill. Item 11 will allow the committee to consider a draft report on the transplantation, authorisation of removal of organs, etc. Scotland Bill. Does the committee agree to take items 9, 10 and 11 in private, please? Agender item 2 is the bankruptcy Scotland Bill and this is an opportunity for the committee to consider the draft as a response to the committee's questions on the consolidation in parts 5 to 8 of the bill. Do members have any comments, please, or are we content to note the response and subsequently raise any issues in the normal way? We are. It brings us to agenda item 3, which again is the bankruptcy Scotland Bill, but at this item we have all evidence on that bill and I welcome from the Scottish Law Commission and the Scottish Government Gregor Clark, who is parliamentary counsel of the Scottish Law Commission. Graham Fisher is the head of branch 1, civil and constitutional law division, Scottish Government legal directorate. Good morning, gentlemen. Before we get to questions, just take the opportunity of recognising the scale of what you have put before us and also the very small number of questions that we have actually come up with. I simply want to recognise that that means an enormous amount of very good work has plainly been done, so beforehand can I say thank you? It seems like a good preliminary before we actually move to the one or two questions that we do have and I invite questions from members, which I think at the moment is going to be led by Richard. Thank you very much indeed, convener. Good morning, gentlemen. My first questions are just around the general approach you've taken to drafting of the bill and firstly to ask you whether any overarching aims or principles which have formed the drafting approach that you've taken to the bill? The obvious ones are trying to write in plain English, but on the other hand, not being able to change absolutely everything. I just don't have a total free hand in that. An attempt at consistency, gender neutrality comes into it, but the biggest difficulty was breaking up the really unstructured form that the 1985 act had ended up in. We've tried to simplify the layout. We've tried to delete unnecessary words. There have been problems in doing that. As the committee are no doubt aware, we had certain difficulties with some words which have a sort of jurisprudence of their own because the courts have been looking at them. How one translates the word forthwith in the question of when sequestration is constituted, which is an important point. It's a fine balance sometimes, knowing just quite how to do it and whether consistency should take the place of trying to preserve existing uncertainties. You mentioned some barriers and challenges that you found in applying that principle of consistency to the drafting of the bill. Were there any other areas in terms of applications or overarching principles where you found challenges and difficulties in achieving those goals? Obviously, there are always challenges in trying to take a very big body of text at this that has been drafted by so many different hands over 30 years. This is an administrative process. There aren't huge policy issues behind this. It's a process that people are taking through. The biggest advantage of the whole document is that it gives people a fresh start. They don't have to concoct their own version of it by starting with the 85 act and adding each layer as it comes. They are presented with a text that is now up to date. There's a starting point. No doubt that the process will go on and amendments will continue to be made, but it should be far simpler for really a long time. The convener touched on this at the beginning of the meeting. It has been an immense task in terms of the scale of the consolidation that you have undertaken. Was there a checking and quality assurance process that was in place to ensure that everything that you intended to come in to the parameters of the bill was brought in through the consolidation process? Given the fact that we recognise what a massive task is and what it must have been? I was helped in that, but the fact that there have been these informal consolidations done on a commercial basis gives a starting point. Essentially, once one has a starting point, everything has to be checked through against what has happened to provisions of the 1985 act and making sure that we can justify every provision that has gone into the bill. An attempt is made in the tables, which are partly the company and documents, the tables of derivations and destinations. Although they are a little dense and rather daunting at first glance, by working through them, people should be able to focus on a particular sex and see where it really has come from and whether we can justify it. It is a sort of audit. I absolutely said what was being said. I just wondered in relation to the informal consolidations that have taken place over the years, given that the consolidation that is before us has a fundamentally different thing, I think, from my informals, in that it is incorporating secondary legislation. Is that something that informal consolidations previously dealt with? Is that a particular benefit of the approach that is being taken, that it is drawing the secondary legislation into that single document? Yes. Those commercial consolidations of the 1985 act concentrated just on what is currently in the 1985 act. We have not been terribly ambitious in bringing in subordinate legislation. We have, in essence, gone back to the position before 1997, where the provisions in relation to protected trust deeds were largely in the bankruptcy act itself. They were taken out in 1997 in the main, although the core provisions were there. There was provision for protected trust deeds. We have simply brought the material back in, upgraded it and, of course, as far more than there ever was. Quite a lot of paragraphs of one of the schedules of the bill dealt with what is now in a very large body of text. Thanks, convener. I noticed, Mr Baker, that the 1985 act was largely unstructured. Obviously, it did have a structure of sorts. I think that it started with the role and functions of the AIB, the trustee, commissioners and so on, with the process of sequestration coming later on, whereas you have decided to start with the process of sequestration. Can you explain why you have chosen that structure? First of all, I was not saying that the 1985 act was not unstructured as it first appeared. I was only saying that over 30 years it had lost structure and coherence. The change in order seems to be the logical way to start, not by introducing the cast, as it were, but by getting into the sequestration process itself and leaving the rather less important elements till later. We have not, I think, interfered very much with the structure. We start with an application and we go on to a ward of sequestration. It is all, I think, fairly logical. Obviously, there are choices to be made as to where you put particular elements, but I think that it would be fair to say that we were not trying to be anything other than straightforward in the way that we set it out. That is fair enough. Presumably it does not change the substance to the order that you actually put the different parts in, does it? No. I cannot think of any way at all of which putting the things in different order is going to have had meaning. The short title of the bill does not include the word consolidation. In the case of the previous consolidation bill, which is considered by the Parliament, salmon and fresh water, the fisheries consolidation bill, the word consolidation was included in the short title, so why is the word consolidation not included in the short title of this bill? We already have one set of brackets around the word Scotland, and, somehow, putting in a second set of brackets seems a bit unnecessary. It is not a document that will be when it is enacted, any different from any other body of law. It does not have special properties because it is a consolidation with one qualification, which is that the courts need to be aware that it is a consolidation because there are certain rules of construction that operate. However, that is adequately met by the reference to consolidation in the long title. Sorry, I have rather lost the thread of what I was going to say there. I mentioned the long title, but I do not need for it to draw it to the public's attention that it is a consolidation. Yes, that is right. I will just leave it at that, sir. I mean, we are perfectly happy with that response. It is helpful just to mention that there is certainly precedence for both approaches, both having the consolidation in the short title and not having the consolidation in the short title. Certainly, there are Scottish presidents and there are more recent UK presidents for both approaches. I suppose that one certainly hit in my mind to speak for Gregor in this respect. However, it is a fundamental part of the bankruptcy act that is used day in, day out by practitioners and in solvency. I suppose that even just having a short handle is probably a helpful thing for practitioners, even though that is a very simple thing. That might be relevant. I have remembered the point that I was going to make. The word consolidation is very useful when there are two acts going through, say, on criminal justice. There is a criminal justice with a straight programme bill, but in the same year there is a consolidation. In that instance, it is useful to have the word consolidation there. Otherwise, I would have thought that there was very little need to put the word consolidation in, because, as far as the practitioner is concerned, this is all law that is to be regarded as any other law. On a similar but different theme, the bill does not consolidate only the law of bankups. It also consolidates the law on protected trustees in Scotland. As we heard in oral evidence from the IAB in the Scottish Government, on the 17th of November, protected trustees are considered to be a major alternative route into insolvency protection. They are not, however, a form of bankruptcy, but rather a distinct statutory insolvency procedure. Can you explain for the committee why the short title of the bill refers only to bankruptcy while the bill consolidates the law of bankruptcy and the law of protected trustees, which is distinct from bankruptcy? I do not know if it is worth saying something that I think Gregor referred a moment ago to the fact that, in the past, in the Bankruptcy Scotland Act 1985, the material on protected trustees was built into the bankruptcy act. Obviously, the view was taken then at the time that the protected trustees material should fall under the term bankruptcy. You referred to what we said on the 17th. There are probably different ways to call different processes, but you might say that sequestration is a process that is sometimes called bankruptcy, certainly colloquially, and it is in England, of course, but the sequestration process is certainly distinguished from protected trustees, but arguably—and there are different ways to argue about this—protected trustees can be accommodated under the term bankruptcy. The view was taken in 1985 that they would cover both processes, and they are separate and important processes, but they would cover both under the short title of bankruptcy. In a way, the bill just takes the approach of replicating that position. You do not absolutely need to cram everything into the short title. As long as it is not misleading and does not give an impression that it is not covering major errors, even if there may be a slight difference between protected trustees and bankruptcy, I mean, the thought was that a short, clear title of this kind was not going to mislead anyone. Conveniently, that takes me to the line that I wanted to pursue. First of all, can I just confirm that the long title is, as it were, part of the text of a bill for construction purposes? Yes, it is. That does include various acts, as you would expect, and it does say the protected trustees' Scotland regulations. It then says, and related enactments, which is fair enough because, undoubtedly, there is secondary legislation in it that you have brought through. I think that my first question is, on what basis do you believe that you have caught everything that should be in related enactments to those? Well, I think that the starting point always was the 1985 act. If the 1985 act is supplemented in some way, we have tried to take account of whatever it is that supplements it. Certainly, it is a huge package. I mean, there is an enormous amount of material here that has been built into the 1985 act quite deliberately over the years, including all this material but pensions. An act that is not in itself about bankruptcy, but still impinges very widely on it. We have looked at this over a really quite long gestation period. Nothing has emerged that we think we have missed in any way. We have worked through a lot of acts. We have worked through a lot of subordinate legislation. It may be possible to quibble and say that something or other might be in it or might not, but I am confident that we have got the bankruptcy law of Scotland expressed in this document. I do not doubt you. I am not in a position to even dream of doubting you apart from the legal requirement of my doing so, as it were, from this end of the table. Thank you for confirming that there will be things in here that were not in any way described as bankruptcy when they were first written down—for example, pensions. If we were to find that there is something that has crept through, how could that flow back into this document? Would it have to come through as some kind of statutory instrument to modify this afterwards if we did find the courts found that something had been missing? If something is missing, it has not been got rid of. It is still sitting there. We have provisions towards the end of the bill dealing with continuity of the law. It is section 235 where it takes account of the fact that something might be done under existing provisions. If those provisions are overtaken by provisions of the bill, nevertheless, the whole thing is intended to be continuous. Those subsections, which are pretty much in standard form—the appearing consolidation after consolidation—are intended to make sure that things are not lost and do not just fall away and that, if they refer to the old act, they will be regarded as referring to the corresponding provisions of the new. So, you have specifically repealed things that you have specifically consolidated? That is right. I have obviously no further utility. So, anything that you have missed will, by definition, not have been repealed because you will have missed it and therefore not repealed it? Yes. Sorry, I just wanted to check the logic on that. Anything that still needs to be there that we might have missed, the very thing that you might have missed, will still be there because we cannot repeal it by accident? Yes. Put my hand to the heart and say that there is absolutely nothing that has not been lost. It is difficult. As far as we are aware, we have done this exercise very thoroughly, with a lot of people taking a lot of documents. I have certainly said that nothing has been repealed but not to have been repealed. Just to get absolute clarity, the purpose of the consolidation is to allow, in total, the repeal of all the enactments that are consolidated. Yes, that is right. That is it. Is there anything more that you would like to say about the inclusion of the trustees within the consolidation? I think that it has been probably inadequately discussed as protective trustees, as being a sensible thing to include. I think that the main question is why they were ever out of there. They are so much of the same order of thing as the other provisions of the 1985 act. Of course, it is historical and it happened in 2007, but it seems so right that they are in here. Can I ask about the scheme of Scotland regulations of 2011, which I do not think they are in here. Would there not have been an arguable case for putting those in? When I was here before, as Gregor said today, the exercise that I started based on the Bankruptcy Scotland 1985, generally we would accept the debt arrangement scheme. It is a significant body of law and its own ride. However, we would have seen that as part of wider debt law rather than purely bankruptcy or insolvency law. I do not think that on that basis it was ever seriously considered for inclusion in the statute. It could not be, for instance, the insolvency act 1986, which covers personal insolvency in bankruptcy in England, includes personal insolvency and some other wider material, for instance company insolvency material. I do not want to speak for the Law Commission, but I think that the overall genesis of the measures that are included in the debt arrangement scheme, the Scottish Law Commission, is that entry into the debt arrangement scheme is not necessarily insolvency, but it may well catch the same debtors who are in a very similar position to insolvency. On that basis, from a Scottish Government point of view, we would see it as not basically about insolvency because it is about people deciding that they want to pay back their debts and that that should be seen slightly differently. However, there is no overriding legal reason why the provisions could not be included in the one statute, but I think that that is not something that we would take a view as the better approach. Thank you. It is just useful to know where the boundary is and to have on the record that you considered where the boundary should be. Thank you very much. Just one relatively minor point if I might pick up. The recommendation won from the Scottish Law Commission on the consolidation of bankruptcy legislation to make comments about the use of right or interest. I think that we have heard from the Government on what extent right or interest or right or interest in land are the same thing. I am wondering whether Mr Glock has any comment as to how he sees that and what he has done with that particular discussion. There was an initial feeling that the word right would suffice in all contexts within the bill, but, subsequently, experienced practitioners were rather nervous about that and they were afraid that something might be lost with relation to some of the provisions, just a small number of them. I think that the commissioners were happy to compromise and to take account of the possible uncertainties. It was very hard to form a complete picture of whether the uncertainties were justified, but it was not. It was much safer to preserve the wording in a number of the provisions. Thank you. That is helpful. I think that we are back to Richard Gleeson. Thank you, convener. The definition of debt advice and information package has been moved to the interpretation section of the bill. That does not appear to be consistent with the approach to taking to other definitions that are used in parts 1 to 4, which are restated where they appear in the 1985 act. Can you explain why you have taken that approach regarding the definition of debt advice and information package? I think that my whole approach here was based on section 5 of the 1985 act, which had really become something of a monster. There were so many subsections, and one of the ways of perhaps getting rid of some of the material, or the initial view, was to take a definition of that kind and put it into the definitions in the interpretation section. You are user-friendly. Yes. As I said, it was just generally part of this whole business of breaking up section 5 into smaller units. Having a look at how it has turned out, I would not be unhappy to see in section 3, which of course is another part of the original section 5 of the 1985 act, including the definition. I think that that is something that would certainly be regarded with sympathy, because we could re-insert the definition subsection. Apart from that, anything else would give more substance to what is a very small section at the moment. So you might actually consider changing your approach on that to a specific point? Yes. It is not a huge point that you say, but it might be something that you give further consideration to? Yes. I think that it is a good point, and it would be perfectly reasonable to bring it forward there. The original purpose of putting it into the interpretation provisions has really gone now that we have broken up section 5 so much. Thank you, Mr Clark. Can you explain the approach that has been taken to the definitions used in the bill and where those are defined? Is the approach taken consistent overall? Or if it is not consistent overall, is there some particular reason for taking it into an inconsistent approach? Normally, the user of a statue is going to look to the interpretation section for anything coming up. I think that he will find that most provisions at least refer to the section in which a definition is presented is referred to in the interpretation section. Just occasionally, you come across a very important element of the bill, something that really is a block to understanding if you do not explain it at the moment that it is occurring. Some of the really important concepts and identities are defined as one comes to them. Qualified creditors, section 7 of the bill, for example, is very much worth defining where it is occurring because it is so important to understanding the whole provision. The definition is not a sort of bolt-on. It is where the definition is of the very essence of the thing that is being described. The priority has been to make sure that the bill can be easily used in the legislation of the student in the most accessible way. That is right. If you overdo it by putting too many definitions into the text before you come to them, it becomes a very dull read if anyone ever does read it from start to finish. I am sure that we will all be reading it page to page. Thank you, Mr Class. However, I like the concept that one might. If you try drafting the statute in such a way that you could read it from beginning to end and get sense out of it, that seems like an admirable way of drafting a statute. I think that that takes us on to John Mason. Is that all right? Thanks, convener. You mentioned earlier on the word forthwith, so that is what I wanted to spend a little bit of time asking you about. I completely accept that the two of the principles that you are trying to deal with here are on the one hand consistency and on the other, trying to have language, which is maybe a bitter cake, brought up to date. The word forthwith was used throughout the previous act. That was consistent. You have now replaced that in most cases with the phrase without delay. However, in section 22, you have left it as forthwith. Now it would appear that there is an inconsistency that was not there before. Can you give us your thinking behind all that? Yes. I start from the basis that forthwith is a word that one would not ordinarily use in standard English. You do not tell people to do things forthwith any more, unless you are being humorous. In section 22, it is a word that has been argued over. Obviously, there is an element of immediacy in the word, but does it mean without delay, in which case you get the whole argument of what constitutes delay, or does it mean there and then? With a process of the nature of sequestration, there must be very few instances where it is absolutely vital that something is done at once. It is an administrative process. The sheriff needs time to think and time to come to his decisions. In some ways, forthwith—I am sorry for doing a note to the committee—it has at least two meanings. It either means at once or it means without delay. I think that the whole argument in section 22 of the bill has been around the point that if it means without delay, what is delay? How long a period can inter-bean? There have just been so many contradictions and different views taken. It would be nice to settle it and say that it does mean at once or it does mean without delay. However, the question in the context of that section is in the air. We should not really in a consolidation be settling on the question. On the other hand, I do not think that we should be forced either into using the word forthwith anywhere else in the bill. It is not a major issue in other provisions. It is perfectly reasonable to modernise the language generally, but nevertheless, to take account of the fact that the distinction has a particular importance just in that one section. I understand what you are saying about section 22. Both seem to me quite vague terms, but I think that what you are saying forthwith in a sense is vaguer or wider than without delay. I suppose that that raises the question in my mind. Are we certain that everywhere else in the previous legislation where it said forthwith, nobody was too worried about it and therefore the slight change to the tighter term without delay is not impacting on the law in any of those other sections? I think that one has to come to a sort of view as to what one is dealing with as a whole process here. I think that the talk of without delay being a tighter term is not quite right. It is just that forthwith has been open to different constructions. In almost every other instance, without delay, it carries a meaning that I do not think that anyone is going to be in any doubt about. It is an administrative process. It means get on with it and do not hang about. The whole idea of doing something at once is a difficult thing to say. That would have been an adequate substitution throughout the bill. Without delay, it seems much more natural having regard to the whole process and the way in which things are done. There is no litigation on the subject and therefore nobody is greatly exercised about it in any other place. That is right. Without delay, it seems to encapsulate what we believe we know, but nobody has ever challenged it. That is right. It is a modern way of expressing forthwith, but I have to take care to the fact that people have, in a very narrow context, tried to argue that it is a much more urgent word than without delay. We could go on all day on this problem. I do not think that it is a tidy solution, so we just have to accept that. I am not really challenging the solution that you have come up with. I suppose that just the very fact that we have changed forthwith elsewhere to without delay implies that this forthwith does not mean without delay, but it means something else. I suppose that my fear by way of comment is that the courts could look at the difference and think that we are trying to say something here, but I am not sure that there is a tidy answer. I am agonised over this. However, the first thing that the court is going to do is to look at the Oxford Dictionary and to find both meanings given instantly or without delay. I think that they are going to be very well aware that, first of all, that consolidation is not trying to change anything, because that is one of the rules. I think that they will be aware, too, that this is a provision that has been argued over and that the solutions have not been found. Therefore, there is a reason for keeping the word forthwith and waiting for the courts to come to some answer as to what is to be preferred here. I take you to a consequential amendment in section 16 of the bill, please. In written questions, we asked for an explanation that that is why section 16 of the bill goes further than the equivalent provision of the 1985 act, specifically at subsection 6 and 7B of section 16. It would be helpful for the committee to explain why this approach has been taken in the bill. If it is worth me saying that in terms of the bill itself, I think that the issue goes to a missed consequential amendment, which was identified in the way in which the bankruptcy and debt advice Scotland Act 2014 picked up on the material that was in the wider consolidation bill that the law commission had published. The committee pointed out that there are minor emissions in the way in which that was done. For that reason, the consolidation bill by adopting the previous approach has followed through on the intended approach to consolidation. The best approach would be to correct those minor emissions. The bill comes forward as a consolidation bill, and it reflects recommendations 4 and 5 of the law commission's original recommendations. For that reason, I certainly do not see a difficulty with the bill adopting that approach. The other issue is the extent to which the current law should be updated as well in order for the consolidation to be a pure consolidation. We would see some merit in those cases in doing that as well. Obviously, there is a timing issue in terms of putting through the very minor changes in order to pave the way for that, but I think that there would be merit in that. Could you just talk a little further about the alternative route that would involve the Scottish Government making the necessary consequential amendments under section 55, if we are talking about the same thing of the 2014 act, rather than directly into the bill? Can you expand on how that would work and the timings that might be involved? It is an affirmative procedure, but it is a very short order to change those two very short points. I do not see difficulties at all with the bill proceeding as drafted, because that reflects the commission's recommendations in any event. I do not doubt, if you mean any way. I would seek your reassurance that you do not feel that there is any risk that those changes could be changes to the law that should properly fall outside the scope of the consolidation. Certainly, if the change was made, there would be no prospect of that at all. For the rest, if there are commission recommendations, minor changes to the law are possible, so on that basis, as an alternative, that would be within the scope of the consolidation exercise. Is there not an arguable case, though, that if those changes were not made when they should have been, that Parliament meant not to make them? We know that it was in vain, but, nonetheless, you could argue that it was something that Parliament did not do. Therefore, we should not now be picking them up in a consolidation bill, because we should have picked them up then and we did not, and therefore we meant not to, and therefore they should not now properly be consolidated. I think that there is an arguable case, but my view, and I like Gregor, is that it is reasonably clear that one of the provisions in any event is merely a, for the avoidance of doubt, provision where there would not be any difficulty. The other one, I think, would be benefit to making clear, but in any event, I would certainly hope that the courts would come to the right conclusion, if they ever had to look at it. I guess that you will understand, though, that one of the things that does concern us as a committee is that we would prefer that the courts did not have the opportunity of coming to the right decision, not to refer the law to be so unambiguous—it would be more than one ambiguous—that it is clear that the court does not need to make that decision. That would be our default. The law would certainly be clear after the consolidation, but I quite take the point and, as I say, I think that there would be benefit in undermining the law in any event. I am sorry that I was slightly thrown there, but those changes, of course, would be made in an order under the 2014 act, to take account of things that ought to have been done in the 2014 act to the 1985 act. I think that that is clearly the sounder way to go, because, apart from anything else, the provisions of the 1985 act will still have some application in relation to transitional provisions and in relation to proceedings that are currently continuing. I think that it is certainly very desirable, if it proves practical for the Government, to use the provisions that were made for the consequential amendments in Sillery provision, section 55 of the 2014 act. I think that it would be very unfortunate if the consequential provisions that were in the commission's own bill, which were part of the package to implement the recommendations, if they were just missed altogether. It is very hard to say why on earth would you only mention some paragraphs and not others. It is unfortunate that they were missed, but I think that the whole thing can easily be remedied. I suspect that that is going to be interesting for the Government to read that on the record. I suspect that we are going to be suggesting that the Government does just to make sure that there is nothing else to argue about, but that is fair. Thank you very much for the proper way to go, provided that, as I say, it is practical from the point of view of business management. Okay, let's leave that there. Thank you. I think that the Government will reflect on that. Could I take you to the subject of and or? I suspect that the youngsters are now in the gallery wondering what parliamentary committee discusses the meaning of the word and or, but it is this one. It is because its meaning in legislation is hugely important, as Mr Clark does not need me to tell him. Our advisers have pointed out to us that there are maybe one or two inconsistencies in the bill, but there is also a general point about whether or not Tom Dick or Harry is the preferred way of drafting legislation. Now you have quite clearly made your position clear and I respect that, but I am just wondering whether the suggestion that I think we are getting from Christ, which, generally speaking, it should be a list separated by semicolons, does have some merit except whether there is a specific reason for doing something different, and I wonder whether you might like to reflect on the general principle of that. I would regard it as a matter of standard English. If one strips out the paragraphing and has a continuing line of texts, the ands and ors are needed. It is a way that you would construct large, complex sentences. You certainly would not have repeated ors and repeated ands with every item, and the and or in a list of things, in a long, complex English sentence, tends to be just for the between the final units. Sorry, I do not think that is anything that we would dispute. I think that the question and the logicians among us worry about this great deal is that if you have a list of three or four things, then if you put an or at the end, it may be that those above it have to go together and it is only the last one, which is the or. Now, I think that we know in normal English that is not generally speaking the case, but would it not be prudent perhaps in the context in which we are talking to separate all the ones which, if you have a list of things which can be done separately, you can pick and choose any of them, all are allowable, particularly in the context of a power. Would it not be wiser to make clear that those powers are all separately available but need not be put together in such a way that this, this, this or this does not mean the first threes or the last? This is very much a way in which statutes are interpreted and the way in which they are formed. You write through the statute book and you will find the practice that I am following here is pretty much the standard form. Occasionally, ands and ors are missed. There are various ways of expressing things, but essentially one is reading this as one would read any passage of English. It is very much the form of the 1985 act itself. I would find it extremely odd to get any other approach than I have used here. Occasionally, one can introduce provisions by saying any or all of the following or but that is usually done only whether there could be some sort of doubt as to whether that is the case or not. I find it very hard to adjust to the idea that one would draft these provisions differently. I do not want to extend this discussion now. I think that it is one which we might just want to put down on paper and be clearer and reflective about, but if I were to take you to paragraph 103 subsection 4, I think that is right. Section 103, sorry, what did I say? Section 103 subsection 4, I think it is intended to mean that the Secretary of State can make provision on A and he can make provision on B and he could do one or the other or both, but they are separated by an or. In that case, the fact is that this power can be used on more than one occasion. He could do one and then the other because he is not obliged to do it on just a single occasion. There is no suggestion that because he has done it once using paragraph A that he cannot then do it using paragraph B. I am just wondering what the or adds because would there not be many statutes where it is not there at all? Sorry, are you saying that there are statutes where it is not there at all? That would be my suggestion and if that is the case then I am just wondering and I know that we are picking over that but what does the or add and therefore is there a risk that it might tell the court something that it would not be told if the or were not there? I really cannot see this being misconstrued. We would not have to go through the statute but striking out or is all over the place. It is a power that has given to the Secretary of State. He can do both. He is not obliged just to do one of these things because in any event he could come round and he could. There would be no logic in that because he could just come straight along and do the other. Nobody could construe this as banning him from doing it, having made one choice of stopping him from making the other. I just take issue in one relatively narrow sense that the word or has two specific and different meanings, which are in conflict with each other potentially. Not necessarily in terms of where laws drafted, not even perhaps necessarily in plain English but certainly in the mathematical world in which I have been trained in that or can mean one or both or it can in some circumstances mean only one of. Of course in mathematics to distinguish between the two uses of or, the latter meaning is normally expressed as xor, in other words exclusive or. Only one is permitted, not both. That distinction that is made in mathematics is precisely because in plain English it is ambiguous when you use the word or as to which is intended and that is in a sense perhaps why there is a residual discomfort about using the word or without an explanation of what or means in the circumstances of which it might be used. Yes, I mean I think you do have to look at the context. What I was saying was in that particular context it couldn't be read. It just wouldn't make sense because there is the power of the Secretary of State to use a power more than once and I could not possibly think of a situation where because he'd used it once in one way he couldn't then come back and use the other part of it. Let me posit that it could mean that the Secretary of State required if he wished to legislate for both the sub bar graphs he would have to do so via two separate instruments and did not acquire the power to put the two bits in a single instrument. In other words he would need to exercise each on a single occasion there being no restriction on how many occasions he can exercise these powers but there might argue would be a restriction on whether he can exercise them together depending on your interpretation of the meaning of the word or. Now I say all this not to actually cause us to reach a conclusion but to illustrate at least in my mind that the use of the word or is ambiguous because its definition is not clearly stated. Yes, I mean I can understand what you're saying but I think the ambiguity would be solved in this case with the fact that what could Parliament possibly have intended by this if it really required him to come back on two different occasions with two different documents? Well, I think this is my final contribution on this matter because we've perhaps more substantive matter to concern ourselves with but the very fact that we are discussing what is it that Parliament might have intended illustrates the ambiguity that might exist through the use of the word in this context but I really am not looking for a particular response that's perhaps all I would say. Okay, I think that's forgive us but that's one of the things that does slightly concern us and I could point to a number of sections where that might cause a problem but I think I'm clear Mr Clout that you're suggesting that courts would not find that a problem and I'm grateful for that advice. I think that brings us to the end of our questions at this stage unless I've missed anything. So can I thank you very much for your attendance and I'll briefly suspend this meeting to allow you to leave us and perhaps the rest of us to find a cup of tea if that's all right for two minutes. Okay, the next item is a gender item four which again is the Bankruptcy Scotland Bill and this is for the committee to consider whether the consolidation in parts 9 to 14 of the bill correctly restates the enactments being consolidated and also whether the consolidation is clear, coherent and consistent. The committee is invited to agree the questions it wishes to raise with the drafter of the bill in written correspondence. It appears that the reference in section 1197 to subsection 75a should be to subsection 6a. Does the committee agree to draw this to the drafter's attention please? Does the committee agree to ask the drafter one why in section 168 one reference to a living individual is retained while the other such reference is restated as an individual and to whether there is any reason for this difference in terminology? The wording of section 1701 of the bill is relevant to determining the date by which documents must be sent to creditors under this section. Does the committee agree to ask the drafter one why the words not later than seven days after registration in regulation 10 of the protected trust deed Scotland regulations 2013 here after the 2013 regulations have been restated as not later than seven days after the date of publication in section 171 of the bill and two is this considered to have any effect on the meaning of the provision. Section 1846 appears to contain a drafting error as follows that section provides that the letter of discharge does not discharge the data from the effect of the rights of a secured creditor. Does the committee agree to draw this to the drafter's attention? The wording of section 1868 of the bill is relevant to determining the time by which the discharge trustee must perform various duties under this section. Does the committee agree to ask the drafter one why the words within 28 days of the date of discharge in regulation 25 of the 2013 regulations are changed to without delay in section 1868 of the bill and two what effect this is considered to have on the meaning of the provision. Gender item 5 is again the bankruptcy bill Scotland. The purpose of this item is the committee to consider the delegated powers provisions in the bill at stage one. Members are content with the recommendations in the paper which we've seen. This will form the basis of a report to Parliament. The draft report will not be discussed by the committee before it's published. Is the committee content with the delegated powers are restated unchanged and continued in consolidation? Is the committee content with the delegated powers which are modified or created as a result? Yes. Gender item 6 instruments are a affirmative procedure. No points have been raised by legal advisers on the general dental council fitness to practice, etc. Order 2015 draft, nor the public appointments and public bodies, etc. Scotland Act 2003, treatment of community justice, Scotland a specified authority, order 2016 draft, nor on the secure accommodation Scotland amendment regulations 2016 draft. Is the committee content with these, please? Gender item 7 instruments subject to a negative procedure and no points have been re-raised by our legal advisers on the plant health import inspection fees, Scotland amendment regulations 2015, SSI 2015, 392, nor the animal byproducts miscellaneous amendments Scotland regulations 2015, SSI 2015, 393, nor the litigants in person, costs and expenses, sheriff appeal, court order 2015, SSI 2015, 398, nor the trading animals and related products Scotland amendment regulations 2015, SSI 2015, SSI, 41. Is the committee content with these instruments, please? Gender item 8 is the land reform Scotland bill, the site of my businesses for the committee to consider the Scottish Government's response to its stage 1 report. Do members have any comments, please, Stuart? I think the government continues to have significant powers that will only come into being when secondary legislation is brought forward and I think that continues to be a matter of concern. Clearly, we can take a judgment on what is before us in relation specifically to ECHR, but we will continue, I think, to be properly exercised about what the process of scrutiny should be when those powers are brought forward in due course of secondary legislation. I think that the government should take notice of our desire to ensure that we have more opportunity perhaps than the standard process to consider ECHR in relation to secondary legislation. It is an overarching point that is on the bill as it currently stands. Do members concur with that? Yes, I would agree with all that Stuart Stevenson has said, perhaps a little more strongly than him. It is a great concern for the number of areas that are still under policy development. It is of great concern the fact that powers are being taken instead of being put on the face of the bill as a substitute for legislation being put on the face of the bill that will be introduced subsequently in terms of secondary legislation. Therefore, subject and liable to much less parliamentary scrutiny is a current theme right through parts of the bill. I have particular concerns about part 10 of the bill and I think that that is really very poor in how it is thus far been put together. My particular concern is that the bill has the capacity, as it is currently drafted, to bring our Parliament into dispute because of the very many issues that are under ECHR, where it apparently is not ECHR non-compliant but nor is it ECHR compliant. As Stuart Stevenson said, we this committee do not have the ability to scrutinise that, which is a matter of great regret. Therefore, the huge potential exists to bring Parliament into dispute, which I would not wish to see. That is why we have to certainly make our views known in the strongest possible terms. We have already once been rebuked by the Court of Session in this area of law for not making ECHR compliant legislation. I would not wish to see that happen again. What particularly concerns me is the apparent in terms of the tone and the content of the response that we have received from the Government is a lack of a willingness to address the points that we have raised. That is a matter of great regret. I have only been on this committee for five years or thereby, but I do not recall any previous instances when the Government has taken such a cavalier view of the suggestions that we have properly made as part of this committee to Government. That is a matter of great concern to me. My comment would be that there is always a balance to be struck between what is in the face of the bill and what is in the secondary legislation. The committee is disappointed that, in this case, compared to other legislation, there appears to be less on the face of the bill and more being left for secondary legislation. For me, that is the key point. We have already written to the Government the suggestion that we pursue the various issues and comments that members have just made directly with the Cabinet Secretary for Rural Affairs and the Environment and the Minister for Environment, Climate Change and Law Reform. Are members happy for me to write in the appropriate terms on your behalf? Thank you very much. That complete agenda writer mate and the public part of this meeting, so we are moving to private. Thank you very much.