 Thank you. Welcome members to the 21st meeting in 2014 of the Delegated Powers and Law Reform Committee and asked members to switch off any mobile phones. We have apologists from Mike McKenzie. Agender Item 1 is the Legal Writing's Counterparts and Delivery Scotland Bill. A title we'd better get used to. First agenda item today is oral evidence on that bill. This is the First Law Commission Bill to be considered by the committee following Ieithaf i'r cyריolion yn cyngor i ymgynghwytoedd yng Nghymru, y byddai cyfraith yr atoli, i gefnodd yr oedd y fwrdd a'r hunain yn gyntaf gyda Cyfrifiadau Rhyw Llywodraeth Cymru. Mae cyfroedd cynnwys mewn gwOr o ran y cwrsau gyda'r cyfrifiadau gwyrdd versefano ar y cyfrif Fifth Rhaed Castolau Cymru ac mae'r cyfrifiadau cyfrifiadau cyfrifiadau cyfrifiadau. Ty sword, yr ydych yn golygu cyfrifiadau cyfrifiadau cyfrifiadau, ac we will take evidence, firstly, from Scottish Government officials, then from the Scottish Law Commission. So I welcome from the Scottish Government, Jill Clarke, who is the team leader of the Civil Law Reform Unit, and Alison Coole, who is the deputy director of the Scottish Government legal directorate. And I'd invite Jill Clarke to make an opening statement. Good morning. Thank you. We'd like to thank the committee for inviting us to give evidence today. We're particularly pleased that this will be the first Bill to be considered under the new Scottish Law Commission Bill procedure. The Scottish Law Commission published the report in April last year, and in September of that year, the Conclusion of Contracts Bill, as it was called then, was announced by the First Minister as part of the programme for government. In February of this year, in a letter to Lord Pentland, which was lead in the Scottish Parliament, the Minister for Energy, Enterprise and Tourism set out the view of the Scottish Government that this Bill would be suitable for the new Scottish Law Commission Bill procedure. That letter also set out that the Scottish Government was wholly supportive of the policy aims of the Bill, and the Scottish Government is therefore entirely content with the approach taken by the Scottish Law Commission. Ministers have carried out some further focused and specific consultation, and some changes, mainly of a minor and technical nature, have also been made to the Bill as it was published in April last year. None of those changes alter in any way the policy aim set out in the Scottish Law Commission's report published in 2013, and they have been made in close collaboration with and with the agreement of the Scottish Law Commission team. In summary, the Scottish Government is of the view that the Bill will modernise Scott's law, ensuring that it remains fit for purpose, and as a consequence it should result in the increased use of Scott's law, and will benefit business and the economy. Thank you. Thank you very much, and it's very good to hear all that, and I suspect there are a few bills before this Parliament that were quite so consulted on and consensually put together. Nonetheless, we'd like to explore some issues starting with the background to the law, and that will be led by John Scott. Thank you very much, Conrina, and good morning, ladies, and can I just seek a little bit of a further background to the law, and ask for an overview of how the current process of contract signing works in commercial situations, and an explanation of the need for commercial contracts to be probative, and secondly, an explanation of what delivery means in practice, and how the current rules on delivery of hard copy documents apply to specific agreements, given that certain documents, for example mutual agreements, need not be delivered in order to be effective. If I take the first part of the questions, which is how it works just now, I think the report, the SLC's report, describes that very well that at the moment if you choose to transact under Scott's law, you'll either have to have one of these round robins where you send your documents to each party that's involved, or you'll bring everybody together for assigning. But more often than not, as the evidence shows, and the evidence that was submitted by the SLC last week, people are just choosing not to use Scott's law because of those practical difficulties. On the other parts of the question, I don't know if Alison wants to pick up anything. Yes, well Bill also deals with delivery, which you've mentioned, and this is delivery in a legal sense, and one of the issues that the Law Commission, and I'm sure they will talk about that in a great deal more detail when I'm able to talk about in terms of their consultation, but one of the uncertainties of Scott's law at the moment is it's not clear whether you may deliver a traditional document by electronic means, and that can be an issue with the conclusion of missives. So one of the things that the Bill does is to set out that a traditional document may be delivered by electronic means. OK, thanks very much. OK, I'm wondering whether you could expand on any of the other particular problems that you're seeking to resolve. I suspect that it would be helpful to me if I was clear that we had a kind of list of issues we're trying to deal with, and this is how we're dealing with them. I think I've got the general issue. So what are the issues other than the difficulty of getting people together, and the issue of whether or not an electronic signature or an electronic communication is valid? What other issues are you actually trying to resolve, please? I think there's the issue about whether execution in counterpart is valid in Scott's law, and that's very unclear at the moment. So by placing that and the delivery of a traditional document by electronic means on a statutory footing, that puts the matter beyond doubt. It's also helpful with things like the timing of documents, and when they kind of conclude that's much clearer. So it's adding clarity and consistency to the law, which is lacking, which has the effect of people being reluctant to use Scott's law for these sorts of transactions. Why would anybody then choose to use Scott's law at all? Some organisations have to, because they must. For example, I think that Scottish Government's procurement contracts have to be carried out under Scott's law, and there are some other types of transactions which must use Scott's law for, so you don't have the choice of opting for another law. So you must use Scott's law in these circumstances. Right, okay. We've seen, I think, quite a number of examples of people choosing to use other law. I confess I'm still a bit confused as to why this isn't something that people recognise before they start. I'm just trying to get the background to this. I think detail other people might want to explore, but if you're in the commercial world and you know that the law is the way it is, why would you even start on the basis that you might be going to use Scott's law and then finish up using English? Generally people don't. I think they opt for English law quite early on in the process because of these difficulties. So we have got a real problem to solve? Yes, absolutely. Right, thank you. Okay, I'm wondering whether Stuart might like to take over at this point. Right, convener. I want to just explore a little bit about the subject of electronic signatures, and I'm going to approach this via a little bit of research I've been doing. The first thing I looked at was the electronic communications, electronic documents, Scotland regulations 2014, which is 2014 of week 83, which essentially says you need an advanced electronic signature. Then it makes reference to the 2002 regulations, 2002 regulations. The 2002 regulations, which are UK regulations, the electronic signatures regulations 2002, that's number 318, talks about the need when it's an advanced electronic signature for there to be a certification service provider, and it goes on to establish a register of such service providers. I then sought to find the register, and that proved to be formidable difficult, I have to say. I eventually found a paper from the Department of Business, Enterprise and Regulatory Reform, paper URN09 of week 642, which actually doesn't say anything about the register, and it's only when I printed it out I realised on the very back page the register was there present, even though nowhere in the paper does it say that's the case, and there is a single name on it, and that's the point to which I'm navigating. That leads me to the fundamental question. That is a single name, but my experience tells me that most people who use certification do so through commercial suppliers other than the single name, which is the telecom, that's on that register, mainly people like Verison and so on and so forth. I just wonder what the effect on the legal certainty of an advanced electronic signature is, when in fact people are using certification that relies not on the person that is on the UK register, but on commercial providers who are located in other jurisdictions. I just wonder what the effect was. I'll try and cover this. I think it would be fair to say that the concept of electronic signatures is a developing one, and you mentioned the 2014 regulations, which have just been put through the Scottish Parliament, and talk about advanced electronic signatures, and I think there's an important distinction between what those regulations are dealing with, which is land registration transactions essentially, and the process set up in the Land Registration Act 2012 in the amendments to the 1995 Act, which deal with what I would refer to as full electronic documents and the documents for which writing is required under the 1995 Act, and a very particular process and requirements set out in the 95 Act. Now, as you say, there are certain difficulties in the suppliers of advanced electronic signatures, and that is at an early stage. This bill is generally not dealing with those sorts of transactions, and the sorts of transactions for which full electronic signatures, as set out in the 2014 regulations are required. That is possible under this bill, but in general this bill is dealing with the transactions which start by way of a traditional paper document, which may then be transmitted by electronic means, and in those circumstances there are a variety of ways in which an electronic signature may be applied, which is not a full electronic signature certified in the way that you have described. It may just be somebody's name typed into the document, and provided the parties have agreed that is acceptable, then that is a perfectly legitimate way of agreeing that transaction. Again, I'm sure the Law Commission will talk about this in more detail, but hopefully that clarifies the two electronic signature scenarios. Right, I understand the distinction between electronic signature and an advanced electronic signature. An advanced electronic signature essentially is a longitudinal view of the whole document that makes sure not a single electronic bit in the document is changed after the application of the signature and therefore reflects the content of it. But I'm now left somewhat puzzled as to what the legal value of what we are doing is. What is the legal certainty that is offered if the signature is independent of the content of the document and electronic signature? Because the whole value in general terms of electronic signatures is that they reflect the content of a document. Or is this just simply a much simpler provision that's giving legal certainty to something where there is already practical certainty? Yes, I mean what this bill is allowing is for people to sign separate documents. Now that can be done on wet ink with pen or it can be done by an electronic signature which doesn't have to be a full advanced electronic signature. But in a sense could that not be done by agreement in any event and on that basis why do we need the legislation? Well, I think the Law Commission obviously carried out a very full consultation and the uncertainty as to whether it is possible for parties to a legal document to sign separate duplicates of the document that it is not thought to be possible. So parties are reluctant to do that. That's the gap that this bill is filling. If I might as an observer, figure me up, then what we are being asked to do is to provide that legal certainty by statute to a process which might not be changed at all but the legal validity of which is at least doubtful. And the legal validity will be established from the date the bill comes into force. We're not applying these changes retrospectively. I think we've said it would still be possible for people who've signed existing documents to argue that execution in counterpart was a valid way of doing this but the experience of the Law Commission was that nobody actually signed documents in this way because of the uncertainty. I suppose I could go on at some length but perhaps the fundamental final question is given that the electronic character of the document and indeed the signature for that matter is not protected in a technical sense and I'm not talking about a legal sense is not protected. Is it likely that people will wish to use this process if there is not the use of advanced electronic signatures which provide that technical protection for the content of the document and the inscription of the signature? Well, I think people signed documents now with electronic signatures which are not full electronic signatures so the bill is not changing the law in that respect in any way and it will always be open to show that an electronic signature was not applied in an appropriate way. Sorry, do forgive me. But my concern is the signature which is now being put into the legal process when the validity is being tested the same signature that was applied. How would one know in the absence of the protection that comes from an advanced electronic signature? Yes, but that's the existing position when people signed documents. The fact that we are allowing documents to be signed by counterpart doesn't exacerbate that position in any way. I think that's the helpful thing to hear you say. Thank you. Let's move on, Margaret. Good morning. I'm going to ask you a question about electronic document repository. The SLC report indicated that there was merit in an electronic document repository being set up by the Registers of Scotland. The bill doesn't deal with this matter although the policy memorandum notes that SLC's recommendations will be dealt with in due course. Can you give me what your thoughts are on the need for an electronic document repository and what you think the likely timeframe and steps would be for setting up such a repository, please? The bill doesn't cover it because there isn't a legislative requirement for it. It doesn't need legislation to establish it. Our priority has been on the recommendations in the report which did require the legislation as provided in this bill. We've not really turned to that particular chapter of the report yet, but in line with the Scottish Law Commission's recommendation, we're keen that we do get involved, that we're certainly happy to do that and to look at the matter further. I expect that that will happen after this legislation has gone through, but I couldn't give you a firm timescale. Our understanding is that Registers of Scotland, who obviously have a big part in the electronic document repository, are still very interested in the whole issue. If you're going to hear from them, I'm sure they'll provide more information. We are willing participants when ready to do so, but there hasn't been any input from the Scottish Government to this point in time. My question is on the issue of pre-sign signature pages because in England there have been suggestions that the application of a pre-sign signature page to a different contractual document could increase the risk of fraud as such signature pages could be attached to a different document to the one originally signed. One specific case has led to a rule in the English Law Society's practice note that for them to be binding, there needs to be clear evidence that signatories have agreed to pre-sign signature pages. Now, where the bill appears to follow that approach. However, I'll be interested in exploring your views in what the general issues are regarding the use of pre-sign signature pages and specifically on why you feel that the provisions that you have made within the bill on this issue are adequate to address any risks of fraud in relation to the use of counterparts. I'll start to deal with that. You mentioned the English case law in which the Law Commission mentioned and they looked at this issue and talked about it in their discussion paper. I think the basic position in Scott's law is reasonably clear that a signature page can't simply be used on a document without more. So if I have put my signature onto a piece of paper, somebody cannot just apply that to a document and say that that has legal effect to read to that document. It's necessary for there to be some sort of authority in relation to the use of my signature page and the bill simply reflects that. So the expectation would be that the document that you have applied your signature page to is the document that the other party applies their signature to in counterpart. The Law Commission talked about the scenario where a document changes during the signing process. For example, it's discovered that there are some typing mistakes or some other aspects that parties want to change. That might happen if one person has signed the document and the other person still has to sign it and parties don't want to start the process again. In those circumstances provided that the person who's already signed the document authorises those changes, then that will have legal effect. But the key thing is that that person authorises the changes, otherwise the document would be legally invalid. That is an entirely different situation from the one that the English case law dealt with where a signature page was signed independently of any version of the document and that's what caused the issue. Now again, it may be possible to agree that the document is legally valid but it would be necessary for the person whose signature had been applied to that document to agree that after the event. So I think the bill, there was some suggestion during the consultation, one of the law firms were looking for a more looser arrangement. I'm not quite sure what they were. Some greater authority for the use of prepaid signature pages. It wasn't entirely clear but I know the law commission felt that there should be no change to the existing position, that that was a perfectly valid position and the Scottish government certainly agreed with that approach. So you're confident that the measures you've brought in do not make it any more, there's no increase in likelihood of being supported on these issues? And that the current law is robust on these issues? Yes, exactly. Thank you very much. Thank you, I think. Thank you. Good morning. In terms of this particular bill, we are aware that it is inspired by English law and certainly it's a consequence to follow on from Richard's questions a moment ago. Are there any other practical issues or difficulties which have been encountered in relation to the English law of counterparts? Not that we're aware of. And certainly the approach that we are taking I think is more robust because it does put it on a statutory footing and some of the difficulties they've experienced in England and Wales is because it isn't on a statutory footing. So I mean the practice note that exists now that could become obsolete if judicial law changes that at some point so our approach is different and should overcome those sorts of difficulties because it's more absolute and clear. How widely used are these procedures in England and Wales at the moment? I couldn't tell you. In terms of numbers, I would expect that they're well used. I can certainly try and find out if that would be helpful. I certainly don't imagine that you'll be able to find out the numbers of every single transaction. No, but if there's a ballpark figure that would be very useful. Just on a different note, in terms of the policy memorandum, it's got paragraph 27 that talks about the digital Scotland agenda. And in terms of this bill in front of us, what is the estimated environmental impact that will actually take place in Scotland? And also, what is the economic impact that you first see will actually happen in Scotland as well? The business regulatory impact assessment includes some figures about potential savings, but they're fairly small and they would depend on the extent that a firm uses, I suppose, or undertakes lots of multi-party, multi-jurisdictional transactions of this nature. The savings for an individual firm could be quite significant or they could be quite small depending on their use. And certainly the impact on the environment is on the basis that there'll be much less travel and people not having to fly to a signing meeting and less paper potentially as well. So it's around the margins, it's not huge, but it's positive on both fronts. And in terms of once that the bill goes through the parliamentary process and if it is successful in the Parliament, what measures will be undertaken to actually promote this new facility and these new measures that Scotland will actually have obviously on a statutory footing to encourage businesses to encourage trade to actually use Scots law? The minister has already written to a range of representative bodies to highlight the bill, what it will do, and its benefits beyond the kind of commercial practitioner usage, but just for anybody who can't get together but they've got some kind of legal document that they want to conclude the benefits there. So that's started and that will continue, but to be fair, I think that the practitioners are just waiting for this to happen and we'll be pushing it at a fairly open door. I think it would be fair to say. Thank you. I just wanted to pick up on the digital agenda for Europe. I'm not quite sure where that stands and in that context and just more generally, is there work coming from the European Commission, from the European Parliament that's likely to affect this area in the future? Because certainly there's a policy agreement in Europe that creating a pan-European digital infrastructure with standards around this sort of thing would be of value and I just wondered where we stand with that. I'm not sure. I think, as the Law Commission said, we are in a sort of position where we sort of have a mixed economy as it were at the moment of traditional and electronic documents and we haven't yet moved to the full electronic system across the board, but no doubt that is for the future. One of the things we're keen to ensure is that the bill is future-proofed in that sense and we'll no doubt talk further about the sort of powers that we've included in the bill at a later date. Thank you. I'm very grateful for that and incidentally you've answered the question that I was just about to pose to you about the future. So I think, unless there are any other questions just at the moment, I thank you ladies for your contribution and we'll turn to the Scottish Law Commission next after a wee break just to allow the witnesses to change so I'll suspend the meeting just for a moment. Right, so let's resume and it's my huge pleasure to be able to welcome the Scottish Law Commission and Lord Pentland, the chairman, Hector McQueen, commissioner, Malcolm McMillan, the chief executive and Stephen Bailey who's a legal assistant, Charles Garland who's from the Government Legal Service for Scotland. Good morning gentlemen. This is actually quite exciting isn't it? I think for those of us who do this thing, that's just recognised that's where we've got to. It's been a long process, longer for yourselves actually than for us to get to a point where we can now implement this kind of legislation. So welcome. I don't know whether Lord Pentland you'd like to make any opening remarks and John will lead us through the questions. Yes, perhaps I could just say a few words by way of thanks and further introduction, convener. Firstly, we at the commission are really extremely grateful for the opportunity to give evidence to yourselves on this bill at stage one of its parliamentary consideration. I think you know the different roles which my colleagues have played in the evolution of this project. Professor McQueen is the law commissioner with responsibility for the project which we are conducting on the review of contract law across the board and this bill emerges as part of that project. Charles Garland is the project manager who's been working on the contract project and he's obviously been closely involved in the development of this proposed legislation. Stephen Bailey, a legal assistant has also been working on that and I myself have been at the margins of it in my relatively short time at the commission. Before you begin your questions, members of the committee, could I just make a couple of very brief observations? First and foremost, I would like to take the opportunity to put on the record that the Scottish Law Commission is very appreciative of all the work which has been done by the Scottish Parliament, by members of this committee, by officials and by the Scottish Government in putting in place these new streamlined procedures for parliamentary consideration of certain law reform measures. This is, we are convinced, an extremely valuable innovation and it will greatly assist the process of systematic law reform in this country. The second observation I would briefly offer members of the committee is this. The Scottish Law Commission is, of course, an independent body which stands apart from the Government. We fully recognise that we must work in close collaboration with others to ensure that our recommendations for improvement of the law are acted upon and do not merely gather dust on the shelves. So please do not think of us as ensconced in some sort of remote ivory tower in Coswayside. All our recommendations are built upon detailed consultation and engagement with stakeholders. This particular bill is, I believe, a good example of that. We know from those in the field of practice that their clients were very frequently not prepared to make their contracts subject to Scots law because of the uncertainty about whether the modern system of execution in counterpart extensively used as members of the committee know elsewhere in the world, particularly south of the border, was valid and effective as a means of concluding contracts here in Scotland. And often, as we understand it from the research and discussions we've had, that was the only reason why they did not choose Scots law. Despite the fact that there would be many so-called connecting factors pointing towards Scots law as the natural choice of legal system to govern the party's contract, the presence of the parties and their advisers in Scotland, the subject matter of the contract affecting Scotland, etc. And that is an anomaly which we want to see removed. And we believe that once it is removed, if it is removed, there will be considerable scope for Scots law to be used much more extensively in commercial and other contracts concluded in and affecting this country. And that will bring about obvious economic benefits. Finally, may I say, convener, members of the committee, that we at the law commission really look forward to developing a strong working relationship with yourselves and to giving evidence before you on many more law reform bills in the future. Thank you. Thank you very much for those opening remarks. I think probably the rule of the road is that we'll do with number one first and we'll worry about what comes down the rail afterwards. I invite John Scott to open our questions. Thank you very much and thank you for your opening remarks, Lord Pentland. And while you may have to an extent covered the question I'm going to ask and I'm going to give you, as is I think common legal practice, the opportunity perhaps to answer it again. And wherein I'm seeking an overview of how the current process of contract signing works in commercial situations and an explanation of the need for commercial contracts to be probative and further an explanation of what delivery means in practice and how the current rules on delivery of hard copy documents apply to specific agreements given that certain documents, for example, mutual agreements need not be delivered in order to be effective. Yes, well perhaps Hector, you would address those points. Sure. Well I think the answer you were given to the same question by the Scottish Government colleagues is indeed the case. The round table signing ceremony, the round robin, these are commonplace. I think it's also fair to say that commercial contracts don't require to be in writing at all and what one is seeing increasing evidence of in the courts is the use of email, quite informal emails being enough to constitute a contract, usually because if it's a case because that takes a party involved by surprise because there will be someone saying how can these informal emails saying okay let's go for it, possibly constitute a contract but the answer is they can. And that leads really into your second point I think which you asked about the probativity of documents, why do commercial people want to do it in writing and it simply adds perhaps a layer of complexity when it otherwise exists. And I think the simple answer is especially when very large sums of money are involved and quite long periods of time and people want a document that they can refer to as their sort of guideline if you like through the money through the years of performance that may well be involved in this. So it's the creation of certainty is why people want to use documents and increasingly the traditional methods are either cumbersome and difficult to achieve or alternatively they're too slow when time is absolutely critical. I think that's exemplified in some of the instances we give in our written evidence of it could just simply be between Edinburgh and Glasgow it doesn't have to be international it could even be between different parts of Edinburgh there is not enough time things have to be done by certain deadlines. I think I'd finished my answer to this I was thinking when you asked the question before of the story I was told by an Aberdeen solicitor giving a lecture on this subject up there before Christmas and he told me that one of the reasons he liked his fisherman client to get it in writing he was doing expensive things like buying fishing boats and so on was to get him to take it seriously to bring him into the office to get him to sign the document in front of a witness who also signed made this delightful individual realise that he was actually doing something significant so the form can sometimes be of value to ensuring that the client knows that they're actually signing up for quite a lot of money and time in the future. Could I just add something based on my own experience a practice of commercial law which is that one is often dealing with clients particularly those from outside Scotland who to begin with are instinctively a little bit wary and suspicious and unconvinced by the fact that we've got a separate legal system up here they don't really know much about it and they think it's a bit odd if they are told that there is some even slight doubt about the rules which affect the legal validity of their contract or simply going to take the cautious approach and there's an easy alternative available which is well let's just write it subject to English law that may be their kind of instinctive reaction anyway and it is actually a major consideration and of course one is dealing here with not just parties who are inherently cautious and conservative but also their advisers of that mindset. So this is essentially a catching up process putting us into the 21st century? Yes, it's certainly possible that a court presided over by a judge like Paul would find if he had to that the execution counterpart is already valid it is possible but there are lots of people who take the view that it isn't and we give some examples of well known law firms who have expressed that view publicly on websites and so on for the information of their clients so that there is a sort of a real issue there and we could wait forever for the case that decided one way or the other we can solve this problem by putting through this piece of legislation I am conscious that you gave us quite a number of examples and then you've heard of others I'm just wondering whether there are issues that you're aware of which this bill is actually not going to solve It may sound unreasonably negative at the very beginning but I quite see why we're doing this I think that's well explained but are there bits out there that this isn't currently dealing with that we should be aware of? I think possibly the major issue may be the question of delivery of documents one could have an argument as to whether we should have a rule of delivery of documents as the necessary step to making them binding and effective couldn't we do it by communication or some other system but I don't think we're quite there yet and I don't think we're in a position to say with confidence what the overall law and delivery if it's to be there at all should be and what we certainly perceive is a principled notion of what is delivery the party who grants the document puts that document beyond its controls that it can no longer be changed but how exactly does that principle operate in all the complex context that we have today so certainly one of the things I would like to look at is the law and delivery in general it's a horrible mess if you go and look at the books on it what we're doing is straightening out one bit the electronic bit and I think that's probably the most important in practice that's clearly the most significant issue in practice but there are other questions out there and it may be that this is one of the things that this contract project might go on to consider over the next few years in the law commission programme so that message that says okay go for it if I've sent it by text but the text never arrives we still don't know what the law says not with any degree of certainty at the moment we have addressed some of these questions actually in other bits of the discussion paper we preceded the execution and counterpart but we brought forward the execution counterpart to report and draft bill stage because it was clearly impressed on us so that was the most urgent issue but yes there are a lot of questions about what is delivery, what is communication and so on and they are not resolved but on the other hand it is also reasonably clear that at the moment they are not causing the kind of major difficulty or people to withdraw their support if you will from Scots law I think there are questions actually in English law and in many other legal systems around the world indeed Could I just add on a more general level perhaps convener in answer to the point you ask about other parts of the law which might benefit from improvement in this area it's an issue that we wrestle with at the commission whether it is better to go for relatively small, manageable short term projects or this may be the more traditional approach but it has given rise to difficulty in the past whether a law reform body should be focusing its attention on large chunks of Scots private law and that I think is an issue that has been one that law reform agencies throughout the world have had to deal with my own thinking, just for what it's worth at present is that we should perhaps be focusing our attention on the smaller, more manageable more readily realizable sort of projects and this as the committee will know is something that crops up sorry I'm widening this a bit but it's maybe an opportunity since it's the first time we're here up in the context of formulation of our next law reform programme the ninth programme which is what we're doing just now I think that's the debate to which we'll return but most fully it will be another day and if we could stick with this particular subject and I'm talking to myself because I drifted off it to be followed by Stuart Stevenson I think please Thank you very much Cymru and I know the members of the panel will have heard the interchange I had with the bill team itself so I suppose I'll just cut to the chase on the subject of electronic signatures given that the electronic signature which we're now giving a legal certainty to is not of necessity electronically connected to the document which it signs how does that actually leave us in a more secure legal position you know should we not in fact move into a position where we create a legal certain system that is more ambitious without clearly at this stage mandating its use One of the things I thought early on in the project was that the answer to all this was indeed the electronic and I put that proposition to the law firms with whom we were engaging the universal answer interestingly was there was no client demand for it I'm not absolutely 100% convinced that there is no client demand I think what was also reasonably clear was that the solicitors, the practitioners were themselves reluctant to engage with electronic signatures too far too quickly I think part of the concern is indeed with the security of advanced electronic signature and of the certification process which was mentioned in your previous discussion being brought about largely by commercial providers who are exposed to the hazards of the marketplace and we given the discussion paper one or two examples of certification service providers who have gone bust in the Netherlands and so on and are facing a lot of problems The interesting development which is in process in which we mentioned briefly in our written evidence is that the Law Society of Scotland is now issuing all of its members with a smart card which will provide an electronic signature for every solicitor registered with the Law Society of Scotland and clearly that opens up certain possibilities so far as we were able to establish with the Law Society and registers of Scotland who are also significantly involved in this because of these new land registration rules that were referred to I think I've lost my thread for a moment if I can just try to regain it Yes, the point is essentially that these electronic signatures could be used by solicitors on behalf of their clients provided they had the appropriate mandate to do so but another of the points that was put to us in discussion of this as at that time an abstract possibility now a slightly greater possibility was that you require a mandate every time you apply the advanced electronic signature that you were referring to and of course it may well be that you apply your advanced electronic signature to what you believe is the final version of that document in its electronic form and then the next person to come along to apply their advanced electronic signature and say, haha, page 13 my name is spelt wrongly or the wrong company number is given or as I found myself recently in a convincing transaction which I'm involved my national insurance number was not given correctly and so on, these are the sorts of things that happen and hold up these transactions and it's important information it's important that it is correct so you then have to go back to the beginning but you have to get a fresh mandate as a solicitor to apply that advanced electronic signature to the now new document and it was said that this would be much too cumbersome actually doing it in the written form which is actually provided for in the requirements of writing act is 1995 is actually slightly easier it's not exactly easy it's basically the famous putting your initials in the margin at the place where the document has been manually corrected so the obvious advantages they are obvious advantages of the electronic are there but they have drawbacks from again a purely practical and pragmatic point of view so my sense overall as we went through this consultation process was that we are still in a transitional phase which may go on for many years yet to come the mixed economy that was mentioned previously paper is still important and paper still has certain advantages a final thought is this the transactions in which we see this operating primarily to begin with at least are ones where the parties will often have been negotiating with each other for years before they get to this particular stage so they are in a pretty close and basically trusting relationship they know each other and they know that they are expecting a signature page to come from Stuart Stevenson Limited to Hector McQueen Limited at the other end of the line and we have our lines of communication well established in our solicitor so there is a close relationship of trust and that's why I'm not unduly concerned in that particular context about some of the issues that have been mentioned about signature pages and so on we will have to rely on the law as it is for other transactions between parties who are less familiar with each other perhaps in the future as may well be the the case but I think that would be an issue in the present law and it's not an issue which one can clearly see a solution to without creating all sorts of burdens on business and people carrying out perfectly reasonable transactions when they know each other perfectly well so I think we have to be very cautious in this area but to keep an eye on developments and that I guess is where it may be useful that there are these ancillary powers in section 5 of the bill I just if I may pick up on the subject of re-mandating I just wondered and of course I'm a lay person so I've been exposed to some specific things at some specific point without comprehensive understanding that certainly my understanding for example in the purchase of property where the process your agents at each end are going to be talking to each other and finally eliminate all the concerns and get to an agreed position but every time that happens it always seems to go back to the client and re-mandate where you are so it's not an unfamiliar process whether electronic or paper it seems to me and similarly having just re-signed my will in the last few weeks having updated it after quite a long time I found myself signing every page and I would expect if there was an error to be called back to re-sign a page you're trying to characterise that being a difference between the practical application of signatures in the electronic world and the paper world that I'm not sure I recognise would you like to come into my observations? Well I take the point the how shall I put it the point that it was put to me by the solicitors I suggested that perhaps they could take a more general mandate in the client's affairs the argument against that from a client's point of view is that that means you are placing a very significant degree of trust in your lawyer and of course that is something that lawyers would like to think all clients should do but for some reason they don't invariably do so and it really would be quite incawshous to give a general mandate with regard to an electronic signature application to documents it has to be something that is specific and precise so I think the point perhaps that I would rest on is that the differences between electronic and paper in this regard are not significant but they are practical difficulties and in the commercial transaction in particular where time is critical and I think that is one of the key questions to be going to and fro back between client and solicitor is not a very desirable situation if you have hours or minutes left to meet particular deadlines and that's the argument really in favour of the paper that you can actually be quicker with paper than you can with the electronic I have to say I remember being a spectator because I've been the project manager for the electronic system of watching a CHAPS transaction it was our first one over £1 billion which was of course to deliver the exchange of ownership of an oil rig and because it was done in CHAPS it was done in less than 10 seconds so I have to say you well set up in advance of course it was but isn't that precisely the point you're making anyway let me just rather than indulging myself in reminiscence are the Scots Law Commission looking at taking this further in particular creating a legal certainty around a more robust use of electronic signatures in particular the advanced electronic signature for which there is a legal framework already Certainly one of the issues that we've identified as a general theme that could inform the ninth programme the chairman they want to say a bit more on that I think while we readily understand why this measure has given rise to the interesting discussion about electronic conclusion of contracts and use of electronic signatures etc which is an issue out there on our cutting edge of legal practice I suppose it's perhaps worth just reiterating that the focus of this measure is rather more limited it's on authorising conclusion of contracts in counterpart form and permitting electronic delivery but as you will have seen perhaps from our discussion paper inevitably we got into questions about electronic signatures etc but yes on a general level we are extremely interested in ensuring that our law stays closely in pace with technological development it is very easy for a legal system inadvertently to fall behind the rapid rate of technological development and we're thinking about this quite closely as Hector said in connection with the ninth programme to get into that but we also see that it ties in well with the government's digital Scotland strategy Finally then I've got in front of me an article that appeared in PLC magazine in April 2012 practical law magazine which is written by a couple of authors from slaughter in May and they give three tests for where electronic signatures work I just want to ask you if you think that what's being proposed here meets the three tests it says to achieve a level of certainty comparable to a hundred signature an electronic signature needs to be one, unique to the signature two, created using means within the signatures sole control and three, capable of being linked to the relevant document or data in such a manner that any subsequent changes that document or data would be detectable and I suspect the problem as I currently see it lies with that third requirement I think I would accept all three I think the further issue that I would ventilate here is one that was hinted at earlier I don't think it would be easy to look at this in a purely Scottish context it clearly has to be done on an international basis to do it on a UK basis I don't think it's enough even to do it on a European Union basis although the powers that be in those respective bodies may not think so because the basic point is we have an international, a global economy and what we do has to tie in with what is happening elsewhere I'm about to say what I know of the Law Society's smart card suggests to me that that is very much the way the Law Society has been thinking and it has looked for a card which would have a global recognition so far as is possible within the present rather fragmented state of things legally thank you Margaret please building on that your actual report when I'm talking about the electronic document repository although the bill doesn't deal with it your recommendation says that you would deal with this in due course can you explain what you mean by deal with it in due course I don't think it was us who said we would deal with it in due course I think we took it as far as we could in the context of the exercise and in a sense it's over to others not just the government I should hastily add or indeed just registers of Scotland we have no doubts whatever from what we saw during our consultation process that law firms could run electronic document repositories and there is nothing absolutely nothing that stops them doing so in fact they probably do have electronic document repositories of the kind that we envisage in the report the problem as we saw it was that if I'm your solicitor and Charles is Mr Stevenson's solicitor and so on and the multiple parties why should any of us trust the other person solicitor to hold this precious document that we are all trying to create and negotiate together and that was why we thought that registers in particular could provide a service which would be attractive and consultation suggested that that was indeed the case it's the trusted third party if you will it's known across the legal profession in Scotland and has the technology capacity already given its electronic registers and so on and it is very much going forward in the electronic direction I think the latest intelligence we've had from registers says that they are certainly remain interested in this but they are concentrating for the moment on getting the implementation of the 2012 Land Registration Act going I think there's a 30th of November or something this year is their scheduled start date for the new all-seeing dancing electronic land register and once that's up and running and the teething problems which will inevitably arise and so on have been resolved then they will start looking at it because it is significantly interesting business proposition for them and the only questions really are the ones that we in fact discuss in our report which we think are the major issues that solicitors at any rate would look for from such an electronic document repository there may well be more and I'm sure they'll be wider consultation but the thing we are certain of is there is no need to change the law to enable that to happen the registers already have the power to do this under the Land Registration Act there is absolutely nothing now after the same act and its amendments to the 95 act to stop people using electronic documents and applying electronic signatures of the appropriate standard the one issue that we think might be relevant and we've expressed this in response to registers consultation is the level of advanced electronic signature that they are requiring at certain levels maybe too high that it's higher than is needed to have the legal effect at once and our understanding is that registers will review that in two years time Charles was it I can't quite remember but at any rate once perhaps it might be two years from the 30th of November or wherever the things come into effect but that is the one bit of law that we think at this present time it would benefit from another look in due course Excellent thank you very much for that Richard Thank you Covina, I raised with the first panel issues around pre-sign signature pages because in England there have been suggestions that the application of a pre-sign signature page of different contractual document could increase the risk of fraud if such signature pages are attached to a different document than one originally signed which led to a change in the English law society practice note Now, Ann Stamford Smith McQueen said earlier that you're not too concerned about some of the issues regarding pre-sign signature pages but it would be good if you could expand on that and say what other wider issues you've had to consider in regard to pre-sign signature pages and just also more fundamentally why you think the bill is robust in terms of challenging the risk of fraud in relation to use of counterparts? I think the present law is reasonably robust in the sense that if a signature is challenged in general terms then it is for the person who says that is my signature or that is your signature to prove it So if you like the onus is to prove that the signature is genuine that's the sort of starting proposition Now there are actually very very few cases where that has arisen for whatever reason I really don't know So I think the Scottish Courts would undoubtedly reach the same result as the English Court did in its case and I think what that clearly means is that no more than you would advise a client to sign a blank cheque or set of blank cheques and leave them with your closest friend or your worst enemy or whoever no more should you be signing signature pages ahead of knowing what the document is that would simply not be an effective signature or it might have caused quite a lot of trouble if you were to do it Where we think the issues arise are really the document that has changed in progress when perhaps it's already been signed by some of those involved or even all of those involved in the state of the kind that I was mentioning earlier is discovered and this is not uncommon and whereas in the good old days the thing was carefully typed out and bashed out and checked and compared and so on by very skilled typists or whatever in typing pools today it's all done by word processor and the word processor is a wonderful machine but it does lead to reis of slippage which didn't perhaps exist in the world as it was when it was purely printed so it's quite common to discover that you have made a mistake in a document but a very easy solution to that when you've got the signed document is to go into the computer and correct the error on the relevant page print that page and as the saying go slip it into the document and so far as the naked eye is concerned there's nothing wrong with that but our view is that if that was established as a matter of fact then the signature would have been applied to a different document and the signature is no longer valid at that point so I think one has to think about the pre-signed signature pages in different contexts the one that is really pre-document and the one that isn't really pre-document is however the document itself has changed or been changed in some way during the progress of the signing ceremony now we're quite clear that the present law says there is no valid signature there is no valid document therefore in that context unless there's either been authorisation by the signatory in advance so if I had pre-signed a signature page because I was going on holiday in France next week knowing that I would have to be informed as to what the document was that was now being signed how that's to be done is a matter for the party and the agents involved the more typical situation however would be the ratification that is to say something that happened after the document had been signed the next page example which I think is actually the much commoner situation in the transactions with which I'm familiar as a result of this exercise and there you need a ratification and obviously the ratification there would be you know that now page 93 has hector McQueen's spell M-A-C as opposed to hector McQueen's spell M-C and that's obviously a much less troublesome thing in general than the other where I've left my blank signature with no idea of what the document is how do you get the authorisation in advance for that is I think a very complicated and difficult practical matter in terms of the case which pertain in England where the courts found that the documents therefore weren't legitimate is that's already established in the ScotSport is it as far as you're at I think a Scottish court would have gone down the exact same route they'd have had the same reaction as Mr Justice Kitchen I don't think a Scottish court would have any difficulty with that reasoning at all and would regard that decision as persuasive although not strictly speaking binding it is important just to add to what Hector said to appreciate perhaps that ratification is something that is usually inferred from conduct in the sense about conduct subsequent to the alteration to the contract okay thank you very much indeed John forgive me it's probably a naive question but well this is going to be much more convenient than the electronic world we live in given what you've just said is it more open to manipulation documents after signing I think documents have always been open to manipulation and signing many tales which were always of course not personal experience it was simply stories that people had been told by others about others again who had done things with documents I fear that probably documents are changed every day and because it's in nobody's interest to raise the question it doesn't get raised so it's a difficult one the example I gave from my own experience within the last couple of weeks of changing the national insurance number was my wife's national insurance number that was on the form that was to be returned to HMRC so that the stamp duty land tax or whatever it is that was appropriate to the purchase I'm making was paid we changed it and I initialed the change and we thought that probably that was enough and at this point in time HMRC have not come along and said hey what about this so is that a wrong thing to do I think in the vast majority of cases it's absolutely harmless it simply proceeds it facilitates a transaction but there will be cases where it matters and the case that's the English case which is the one and only case of its kind of which I'm aware it did matter quite a lot it was quite a large sum of money that was at stake in that case and it was the tax authorities who were on the case but forgive me but just coming from a farming background I mean there will have been documents that will have been deliberately falsified where the insertion of a coma or changing a coma into a semi-colon could make a difference in yet and that will have existed presumably in ScotLaw Hither too therefore all this process essentially make it safer or not I don't think it will make it safer but I don't think it will make it any worse than it already is and it has to be said that Paul and his colleagues in the court of session are pretty astute at detecting dodgy documents and there are cases that are there all the time really where a judge will say that I have the stronger suspicions that these documents have been manipulated or that documents have been destroyed that happens a good deal as well so the judges are astute and alert to the possible particularly in the kind of recessionary period that we've recently experienced there have been a lot of cases in the courts of people trying to get out of deals that they did or having tough deals enforced against them and so on and so forth and I could certainly find you cases where the judges identified presumably with the help of council persuading them on the other side working on the balance of probabilities which is a much less demanding standard be it remembered than beyond reasonable doubt yes this document is not what it purports to be and there are plenty of rules in place to allow the validity or invalidity of these documents to be tested and the right decision reached in the courts which is ultimately where it really matters great thank you thank you good morning panel following on from some of the comments earlier this morning in terms of this bill the bill actually take the Scots law onto a level playing field or will it actually give us a competitive edge in the global market I think my sense is it will give us certainly a level playing field and it might give us a competitive edge by virtue of its statutory formulation I mean the law in England is by no means free from doubt it's essentially emerged through practice and while the English courts are very good at recognising good practice every now and again they discover that actually that practice wasn't that good and the case that was mentioned is an excellent example of that and it was that case that triggered the practice note in England but if you read that practice note you'll see it tells you things like make a photocopy at this point or whatever and that's all very helpful but the world moves on and you want actually general rules that leave it to you actually much more flexibly to decide what you need if our future proved so we think there is a possibility that there is a competitive advantage or perhaps an edge is the right thing and that people may be attracted to say well the Scottish procedure under this bill is clear clean cut is based on clear legal principles why don't we execute our documents under this system in a sense it will be for our lawyers I think to rise to the challenge that presents and they are certainly hungry enough to want to make it happen what I think would really clinch a competitive edge but this is not a matter of law reform and it's the stuff that's left out of the bill is that electronic document repository I think that would be seriously attractive for business purposes around the world because it doesn't matter where the repository is and you could be making your contracts under any law you like but you don't know what's right there but using the electronic facilities and all the benefits that that brings so I think there is the potential for genuine competitive advantage in that particular context Charles would be identify something similar in Spain we certainly identified that there is an equivalent of the smart card which the law society is currently proposing to to issue which allows exchange of information securely between people who hold these signatures so it was something akin to that and I think it had had very great benefits and maybe unexpected areas which is not particularly in view in this bill but in the field of criminal law I think it has enabled instruction of council in a very secure way which hadn't been available before so thanks I wouldn't want to get this out of proportion but in answer to your question I think yes it will certainly put Scots law onto a par with accepted good international practice but also it could be used as a selling point by imaginative and creative legal advisers because as far as we are aware this will be the first statutory formulation of the rules governing the practice of execution in counterpart anywhere in the world and we need these selling points because in the real world we are up against a much larger more dominant legal system south of the border obviously that leads me on to my next question which you may or may not want to answer and after the question you'll know why in terms of the global economy and competitors are there any particular countries where by or apart from south of the border but are there any other countries globally where there is a potential a great deal of competition that we could possibly gain some additional business from if this bill goes ahead well one of Paul's predecessors was on a plane crossing the Atlantic when he found himself sitting next to a Texan businessman and Lord Drummond Young it was told this chap about our proposed electronic document repository and this Texan businessman was extremely enthusiastic about the idea that he really liked it so it's possible that Texas might be a good place to make a start in all seriousness I think the critical thing for Scots lawyers would be to look at the places that are already doing business in Scotland or that Scottish businesses are doing business with outside a very widespread thing and one must make no mistake about it the Scottish business and Scotland are playing their part in the global economy could do more but it's a way of drawing that's where I would start by looking for business that may mean the European Union it could also mean the United States I think and Canada since they are both pretty accessible our researchers showed that execution and counterpart is widespread in Australia and New Zealand and that shouldn't really be a surprise given the scale of these countries and the fact nonetheless there is a lot of business going on there so I think these are countries that are very familiar with this process and these are places particularly I think in the northern hemisphere that Scots do a lot of business with I think it's also worth reminding members of the committee that international legal practice is largely driven by the very large English law firms based originally in the city of London and they are global now in every sense of the word we need to ensure I'm sorry to keep harping on about this but we do need to ensure that when it comes to these basic rules of practice that we're not falling behind the game I've got a further question in terms of the mandate and I know that Stuart Steams was asking some questions about this earlier obviously we're talking about electronic signature for contracts but the issue of the mandate what forum should that come in should that be electronic as well or should that be wet ink I think what the solicitor will tell you is they want the mandate in a forum which they can produce later on to justify what they did so it would be unwise to depend on an oral mandate I'm not sure that they would be particularly concerned beyond it being in a forum which was capable of use later as evidence should it be necessary Thank you I think that probably concludes questions so thank you very much gentlemen for coming along and being so forthright about what I hope which is clearly the first step in the process of this bill and what I think I detect we all hope will be the first step in a process of reforming Scots law because there is clearly a certain amount to be done so I'll again briefly suspend this meeting while our witnesses leave and thank you very much for coming Indeed I thank colleagues for all that's just gone before and I turn to agenda item number two which is instrument subject to affirmative procedure no points have been raised by our legal advisers on the legal profession and legal aid Scotland Act 2007 membership of the Scottish Legal Complaints Commission amendment order 2014 draft nor on the Scottish Legal Complaints Commission notification of duties and powers regulations 2014 draft is the committee content with these instruments please Dan is instrument subject to negative procedure the ten country planning general permitted development Scotland amendment order 2014 SSI 2014 142 drafting of the order appears to be defective in two respects firstly paragraph five of class 9B in part 2A of schedule one to the town and country planning general permitted development Scotland order 1992 as inserted to the schedule and instrument into Alia reports to define the terms in closed shopping centre and retail park for the purposes of class 9B however those terms are not used in the class but are used within the definition of a shop or financial professional services establishment in paragraph 5 to class A secondly raised platform is defined for the purposes of class A referred to above to specify the minimum height of a platform but should also have been defined for the purposes of use in the term in class 9C paragraph 2F thus the committee therefore agrees to draw the instrument to the attention of the parliament on the reporting ground I as the drafting appears to be defective does the committee agree to note however that the Scottish government has undertaken to make an amending instrument shortly to correct these errors the national health service superannuation scheme Scotland miscellaneous amendments regulations 2014 SSI 2014 154 several points have been raised by a legal advice in relation to this instrument firstly there has been an unjustifiable delay in the laying of the regulations before the parliament as they were made on the 16th of May and laid on the 30th of May while the delay does not affect the validity of the instrument it also amounts to a failure to comply with the laying requirements of section 282 of the interpretation and legislative form Scotland Act 2010 that the instrument must be laid as soon as practicable after it is made a period of delay in laying the regulations is unusual and is not satisfactory does the committee therefore agree to draw the instrument to the attention of the parliament on recording ground D as there has been an unjustifiable delay in the laying of the regulations does the committee also agree to draw the instrument to the attention of the parliament on reporting ground J as the laying requirements in section 282 of the interpretation and legislative form Scotland Act 2010 has not been complied with committee may wish to indicate its disappointment the aforementioned delay follows a similar delay in the laying of the national health service superannuation scheme Scotland amendment regulations 2014, SSI 2014 43 does the committee agree to do so the committee may wish to note however that Scottish pension sorry public pensions agency is again contacting the treasury with a view to steps being taken to seek to ensure that the emission is not repeated further points have been raised by illegal advisers in relation to this instrument as it contains minor drafting errors firstly regulation 11C and the consequential references to the provision which that paragraph inserts have been included in error Scottish government has confirmed that these provisions have no substantive effect and an amendment will be brought forward to make the appropriate provision as and when the finance act 2014 is enacted and the relevant regulations under it are made secondly regulation 24 so far as it adds new regulation 2J1412 of the national health service superannuation scheme 2008 section Scotland regulations 2013 refers to host board when this should refer to contracting health board Scottish government has undertaken to amend the provision in due course does the committee therefore agree to draw the instrument to the attention of the parliament on the general reporting ground as it contains minor drafting errors just in the light of your reference to the treasury you are of course making it clear that the treasury did provide the appropriate signature on the 16th but did not advise that that had been done into the 30th so that the delays to which we previously referred were entirely down to failure of processes in the treasury albeit that in terms of accountability to the Scottish parliament that lies of course with the government and not with the treasury does the committee also agree to note however that the Scottish government has undertaken to correct these errors in due course no points have been raised by our legal advisers on the land register rules etc Scotland regulations 2014 SSI 2014 up to 150 nor on the adults with incapacity supervision of welfare guardians etc authorities Scotland amendment number two regulations 2014 SSI 2014 157 is the committee content with these instruments agenda item four is instruments not subject to any parliamentary procedure no points have been raised by our legal advisers on the regulator reform scotland act 2014 commencement number one and transitional provision order 2014 SSI 2014 16 0 nor on the act of a journal rules amendment regulator reform scotland act 2014 SSI 2014 16 2 nor on the children and young people scotland act 2014 commencement number two transitional and transitory provisions order 2014 SSI 2014 16 5 is the committee content with these instruments please agenda item five is the historic environment Scotland bill the site of a businesses consideration of the Scottish government's response to the committee's stage one report on the historic environment Scotland bill members have seen the briefing paper and the response from the Scottish government do members have any comments please no we can tend to note the response and if necessary reconsider the bill after stage two thank you agenda item six is the housing Scotland bill this item of businesses consideration of the delegated powers provisions stage two members will have noted that the Scottish government has provided a supplementary delegated powers memorandum and will have seen the briefing paper stage three consideration of the bill is due to take place on Wednesday the 25th deadline for lodging amendments is 4.30 this Thursday the 19th of June committee may therefore wish to agree its conclusions today newly inserted section 77a provides that elected and certain other politicians are disqualified from hearing housing cases transferred under the bill to the first tier tribunal newly inserted section 77b amends the rent Scotland act 1984 to provide that the same elected and other politicians are also disqualified from being appointed as or remaining a member of the private rented housing panel both provisions confer power on the Scottish ministers by order to modify the list of disqualified offices does the committee agree to recommend Scottish government lodge amendments at stage three to make the new powers in section 77a3 and paragraph 1a2 of schedule 4 to the rent Scotland act 1984 inserted by section 77b to the bill subject to the affirmative procedure I certainly agree with that recommendation but I'd also make the more general point which I have made elsewhere in relation to lists the good practice if and when the government is amending a list for it to republish the entire list in the amending order rather than to simply publish the amendments thus avoiding the subsequent need for restating the lists after large amounts of amendments and I think it would be useful to have that in the record Sound of familiar plea which I suspect we would all want to agree does the committee agree to report that otherwise content with the instruments newly inserted powers in section 77a77b suggested that the committee may wish to be content with all the other provisions in the bill that have been amended at stage two to insert or substantially alter provisions conferring powers to make subordinate legislation and other delegated powers are we content to report accordingly content thank you I have to say that we understand there may be amendments at stage three and but we will have the opportunity to consider those next week Dender item seven is the building's recovery of expenses Scotland bill this item of business is consideration of the delegated powers provisions in this bill after stage two Members will have noted that the member in charge that Stuart MSP has provided a supplementary delegated powers memorandum and will have seen the briefing paper stage three consideration is due to take place this Thursday 19th of June committee may therefore wish to agree its conclusions today one might go a bit further and say they will absolutely need to consider its conclusions today does the committee agree to report that it is content with the provisions in the bill which have been amended at stage two to insert or substantially alter the provisions conferring powers to make subordinate legislation and other delegated powers at this point I move the meeting into private so that we can consider item eight please thank you very much Doug