 I welcome members to the fifth meeting in 2016 of the Delegated Powers and Law Reform Committee. As always, I ask members to switch off mobile phones, please. Agender item 1 is a decision on taking business in private. It is proposed that we take item 9, which will allow the committee to consider the evidence received on the land and buildings transaction amendment Scotland to build now in private. Do we agree to do that, please? Yes. Thank you. Agender item 2 instruments subject to affirmative procedure, the local authority capital finance and accounting Scotland regulations 2016 draft. The regulations are made under the power in section 165 of the local government etc. Scotland Act 1994, which enables the Scottish ministers to make provision with respect to the powers of authorities to borrow and lend money and to establish and operate loan funds. Authorities is defined for the purpose of section 165 and includes the Strathclyde passenger transport authority, the SPTA. However, authorities is defined for the purpose of the instrument as including not the SPTA but the regional transport partnership for the west of Scotland designated as the Strathclyde partnership for transport, established under the Transport Scotland Act 2005. There is no narration of how the functions of the SPTA have been transferred to the west of Scotland transport partnership. In circumstances narrating the transfer of functions would have been proper drafting practice. Does the committee therefore agree to draw this instrument to the public's attention under the general reporting ground, as there has been a failure to follow proper drafting practice? Yes. Thank you. Scotland's adoption register regulations 2016 draft. Regulation 56 provides that where, after information is provided under regulation for inclusion on the adoption register, it is decided that the person in respect of whom the information was provided is no longer suitable to be an adoptive parent. An adoptive adoption agency must, as soon as is reasonably practicable, notify the Scottish ministers of that and inform the Scottish ministers of the reason for that decision. Those requirements enable the adoption register to be brought up to date. The Scottish Government's intention is that the adoption agency, which decides that the person is no longer suitable to be an adoptive parent, must implement the requirements of regulation 56 and which agency might not be the same as the one that approves suitability. The committee may consider that the provision could more clearly implement that intention. Does the committee therefore agree to draw the regulations to the attention of the Parliament on the reporting ground H, as the meaning of the regulation 56 could be clearer? Yes. The Procurement Scotland Regulation 2016 draft. Some provisions of the regulations are made by virtue of provision in the Procurement Reform Scotland Act 2014, which applies to regulated procurements. Others are made by virtue of provision in the Act, which applies to regulated contracts. Yet other provisions are made by virtue of provision in the Act, which applies to regulated procurements and EU-regulated procurements. Others are made by virtue of provision which applies to regulated procurements but not those that are EU-regulated. In that way, Regulation 4, 6 and 12 apply to differing types of contract or procurement, however, the provisions made make no reference to a regulated procurement or regulated contract, apart from one reference in Regulation 11-1. I am very grateful for giving me, thank you very much indeed, you are absolutely right in at one of those mornings. The committee might consider that it would have been appropriate to draft in practice in these circumstances to have specified in the relevant regulations, as well as in the explanatory note, which types of contract or procurement regulations apply to, alternatively where it might be more suitable drafting, a regulation could have made reference back to the section of the act specifying which type of contract or procurement provision applies to. This would have helped the reader to understand the extent to the provisions. Does the committee agree to draw the regulations to the attention of the Parliament on the general reporting ground, as there has been a failure to follow proper drafting practice? No points have been raised by illegal advisers on the assessment of energy performance of non-domestic buildings at Scotland regulations 2016, nor the budget Scotland Act 2015 amendment regulations 2016 draft. Is the committee content with these, please? Three is instrument subject to negative procedure. No points have been raised by our legal advisers on the local government pension scheme Scotland amendment regulations 2016, SSI 2016-32, nor the less favoured area support scheme Scotland amendment regulations 2016, SSI 2016-33, nor the Nature Conservation Scotland Act 2004, authorised operations order 2016, SSI 2016-38, nor the Pollution Prevention and Control Scotland amendment regulations 2016, SSI 2016-39. Is the committee content with these, please? Four is instruments not subject to any parliamentary procedure. No points have been raised by our legal advisers on the local government etc. Scotland Act 1994, commencement number nine, order 2016, SSI 2016-31, nor the specified diseases notification amendment Scotland order 2016, SSI 2016-41, nor the Water Act 2014 commencement number two, Scotland order 2016, SSI 2016-48. Is the committee content with these instruments, please? Good. A general item five, the land and building transactions tax amendment Scotland bill. This item is for the committee to consider the delegated powers in this bill. The timetable for considering this bill is short, which is with it being considered by the finance committee tomorrow. Therefore, it is invited by the Scottish Government officials to give evidence. The committee will reflect on this evidence and agree the terms of a draft report in item nine. I welcome Robert Buchan, who is the land and building transaction amendment Scotland team leader, and Greg Walker, who is a solicitor from the Scottish Government legal director. Thank you very much for coming along, gentlemen, for sitting through that preamble. I think that we probably only have one real substantive question, and that will be put by John Mason. Thanks, convener. Yes, there is one main issue that we wanted to raise with you. It is around this whole question of the 40,000 threshold and how that might be adjusted. I have a few points to make if you will bear with me. The proposed power in paragraph 14.2 of the new schedule 2A allows Scottish ministers to adjust the 40,000 threshold in paragraph 93 of that schedule. The 40,000 threshold is relevant when determining whether the additional tax will be triggered. The purchase of an additional property with a market value below this figure will not trigger the additional charge, whereas the purchase of a property worth 40,000 or more may do so. What I think we would like an explanation for is why it is considered appropriate for this power to be subject to the negative procedure. The committee notes that powers in the 2013 act to adjust tax rates and bans for the ordinary LBTT charge are subject to the affirmative procedure when first exercised and thereafter to the provisional affirmative procedure. The committee considers that the power in paragraph 14.2 is a similar power in that it allows the Scottish ministers to adjust the threshold below which liability for the additional charge will not apply. We feel that that is not an administrative point, but it is a change in the tax rates and bans. A comparator would be where the 3 per cent additional charge can be changed and understand that that is subject to the provisional affirmative procedure, not to the negative procedure. Generally, the committee considers that a power to just thresholds for tax liability should more properly be subject to either the affirmative or the provisional affirmative procedure. Do you have any thoughts or comments on that? I will defer to Greg in a moment to talk about the different ways in which it can be varied. From a policy perspective, the reason that it was felt necessary to have the power in there to vary the 40,000 threshold separately from the threshold to notification was that it is conceivable that Scottish ministers may want the two to diverge in future. There may be very good reasons in the future that we are not aware of now that, for example, the threshold should be increased beyond 40,000 for the purposes of the supplement. Those reasons would not necessarily mean that the threshold per se for notification should be increased. From a policy perspective, that is about as far as it goes for me. I do not know if there is anything that you want to add, Greg. Just very much as you said, with putting the delegated powers memorandum, there is a synergy between those 40,000 figures that appear in different parts of the ABTT act. The current policy is for them to be aligned, and an alternative way of reflecting that in the bill would have been to simply say in the new schedule 2A that the figure is the figure that you can already see in section 30. However, because, as Roberts mentioned, we need to build in flexibility for the future, we have made them severable, but I think that we were very much viewing the new power in the new schedule 2A as similar to the power in section 30 of the bill. That was our relevant precedent, which is subject to negative procedure, and having the same procedure applicable would mean that the two measures can be combined in a single instrument, rather than having two, potentially at different times, subject to different procedures, but to achieve a common policy intention. In terms of the point about the tax rates and bans orders always being subject to the form of a furniture procedure, that is absolutely right. I would comment, though, that in terms of the section 30 power, if having no regard to this bill there was a proposal to vary the notification threshold below 40,000 or above, that would have significant legal consequences in terms of taxpayers and their agents duties to send in returns. It might not affect whether tax is payable, but it could have some impact. In terms of a furniture procedure applying to the first rates of devolved tax, the reason it was full affirmative procedure was that there were no figures on the face of the bill. There was some time between the first LGBT act being passed in 2013 and then coming into effect in April 2015. We have an expedited legislative procedure with commencement on the face of the bill scheduled for 1 April, so we have all the rates on the bill. I do not think that there is a comparator for full affirmative procedure, but for the reasons that we have set out between us we feel that negative procedure strikes the right balance. I suppose that I would just question that a little bit more and then maybe one of my colleagues will want to come in as well. I take your point there that it is not quite the same way that we did with the full LGBT legislation and that, therefore, maybe that interim step of full affirmative is not so necessary, but I would still argue that the provisional affirmative for future changes would still be necessary, because it still seems to me that when we are comparing this £40,000 level it is more like changing it, it is more like changing the 3 per cent rate, whereby what somebody actually pays in tax would change, whereas the notifiability threshold is more of an administrative thing, and I just feel that it is not quite the same. While the points have already been made, they might not be varied together or they might be varied together, but my point would still be that the two are slightly different things, one being administrative and one being the actual tax. I think that my preference would be, and we will hear from others in the committee, that it should be the provisional affirmative. I have heard everything that you say, and I am entirely with you that if it is on the face of the bill, there is no need to treat it as if it were not, so I do not think that we have any troubles with that. The difficulty that I have with the idea that the £40,000 threshold, if I am using that term, is negative procedure or in any way can be compared with whether or not you need to fill in a form is quite simply because it can have very significant effects on whether or not I am paying tax. If that number is reduced, then I could quite simply find myself in a position where I am now paying 3 per cent on an entire transaction when I was not before, just as simple as that. 3 per cent on an entire transaction could be an awful lot of money, so there are real policy implications that go very much beyond anything to do with filling in a piece of paper. It feels to me and I think to my colleagues very much as though it is actually a tax band because actually that is how it behaves and you would set, as you have already said, tax bands by affirmative procedure, provisional or otherwise. Mr Buchan has already set out eloquently that the Government feels that it needs the opportunity to have a different threshold between filling in the forms and changing the tax rates, which makes from your own mouth the reason why I think that this particular bit should be affirmative because it has significant effects on individuals' tax liabilities. I think that we can certainly take that away and reflect on it as a bill team. Obviously, we have not followed the usual procedure where we had the benefit of your input before we were asked to respond, so I think that we will certainly take that away and reflect. Okay, thank you very much. I think that that is probably all that we can ask you to do. Just to add, I think that I am persuaded by what my two colleagues have said, and although the officials are not here to make a decision on the matter, I think that they can now see that there would be a majority of the committee in favour of making this affirmative. John Mason has eloquently put to Government officials. I might also, when I've got the microphone so to speak, ask if I may a different question for that bit. I'm just wondering, in terms of the value of a property at £40,000, whether it's tenanted or not affect the value of it and have you considered that or not? I think that I would have to say that I'm not sure about that, whether or not it affects the value of a property around about £40,000, whether or not it's got tenants in it or not. I would imagine that it probably does, but it's not being something that we've considered. Would it be something that you might also consider considering? I think that we might certainly change the value. It's a question of what it does to your threshold. If the rule of thumb might be that a tenancy property is worth half what it might otherwise be, which we'd probably do as a workable number, it might have a huge difference again. I cannot be clear that that is very clearly a policy issue, which, in principle, we shouldn't be going anywhere near, but I'm also conscious of the timetable, so we might as well raise what we can. The interesting point that John Scott has raised is perhaps not so much whether the value at the point of the transaction is changed by whether there's a tenancy place and indeed the nature of the tenancy. It's perhaps more interestingly if the tenancy subsequently ceases and therefore changes the value. Is that a mechanism that could be open to some people in some circumstances to reduce the value by having a tenant at the point of the transaction leading rapidly thereafter to it assuming its full market value and whether that opens the tax avoidance question? I'm not attempting to answer that question. I'm merely suggesting that it's a question that others might wish to consider getting an answer. I'll bring in half America. You might be forewarning the team, Mr Questions, the finance committee and might put to them tomorrow morning bearing in mind that two members of that committee are sitting here at the moment. Mr Walker, did you want to comment? Just a technical comment and obviously we'll take away all these points, but the nature of LBTT is that there are various points at which there is a financial threshold, so this question is not a new question or one that isn't irrelevant as to whether you hit the £145,000 threshold at which it starts being payable or the thresholds beyond that at which you move into a different tax band. It's not a new question, but we'll certainly have a think about that. Do we have any other questions on the particular issues in front of Mr Walker? It's just a draft laddie question, but the value of subject to vacant possession would be an easy way of describing it or not, and I just would ask you to reflect on it. I think that that probably takes us as far as we need to go this morning, thank you for that, and I'll briefly suspend this meeting to enable folk to move away. Resuming, thank you very much. That brings us to agenda item 6, which is the budget Scotland number 5 bill. This item is for the committee to consider the delegated powers provisions in the bill. The bill confers one delegated power set out in section 7 of the bill, which makes provision for budget revision regulations. The power is subject to the affirmative procedure. Does the committee agree to report that it is satisfied with the power in section 7 of the bill and that its exercise is subject to the affirmative procedure? Gender item 7, the burial and cremation Scotland bill. This item of business is for the committee to consider the Scottish Government's response to its stage 1 reports. Do members have any comments? I think that we should properly welcome the response from the Government. It certainly wasn't clear that the bill is laid in the processes that we had to consider as a committee related to the way in which one might have imagined funeral directors go about their business, which is most certainly not wholly conducted within a single premise that they might have often in the premises of others—the premises of the bereaved, for that matter. I think that we should properly welcome that and pat ourselves gently on the back with our legal advisers for effecting the proposed set of changes. I agree with that. The business is much better to be licensed than the premises. I think that there remains a concern that the whole licensing regime is subject to regulations and is not at all in the face of the bill, whereas normally we might have expected the bulk of it to be in the face of the bill and then a bit of room for tweaking around the edges. Perhaps when we do get to the debate that that point could be made as well as I agree with Stewart congratulating the changes that have been made. I would agree with my colleagues that their responses are perhaps a little more predictable, but without taking any particular side, I would welcome the fact that the Government has made radical changes to the bill as laid in many areas that were not just to be welcomed but essential. I congratulate our advisers on their scrutiny of the bill and on drawing to the Government's attention the many weak spots and on welcoming the Government's intention to improve hugely on what was laid. Is the committee then content to note the response and to consider the powers as amended at stage 2? It brings us to agenda item 8, which is the carers Scotland bill. This item is for the committee to consider the delegated powers provisions in the bill as amended at stage 2. There are five new or substantially amended powers in the bill after stage 2. Does the committee agree to report that it is content with the new or substantially amended delegated powers as amended at stage 2? We are. Thank you very much. That completes item 8, and I now move this meeting into private.