 I welcome members to the 36th meeting in 2015 of the Delegated Powers and Law Reform Committee. As always asked members to switch off mobile phones, please. Agender item 1 is the decision on taking business in private. It's proposed that the committee takes items 10 and 11 in private. Item 10 will enable the committee to consider further delegated powers provisions in the Burial and Cremation Scotland Bill at stage 1. Item 11 will enable the committee to consider the oral evidence that it heard earlier in the meeting. We agreed to take those in private, please. Agender item 2 is consideration of the work of the committee during the parliamentary year. I welcome Joe Fitzpatrick, MSP, the Minister for Parliament, and with him Paul Kequette, who is the deputy solicitor and head of group 2 legal directorate, and Jane Martin, who is the SSI programme manager strategy constitution directorate. Good morning, colleagues. It's really good to see you for our annual discussion. I wonder whether the minister wants to make any opening comments, please. Some brief comments, if I might. Thank you, convener. I'm pleased to be here today to discuss the committee's annual report. This is my third appearance at the committee since being appointed Minister for Parliamentary Business. I look forward to our usual healthy exchange of views on the legislation that's been before the committee and how we can continue to improve quality in the future. It's obviously the committee's final annual report of this parliamentary session, so I'd like to start by thanking members for their commitment and professionalism that you've all demonstrated in your careful scrutiny of primary and subordinate legislation. The work of this committee can't be underestimated. It provides thorough exploration of delegated powers being brought forward in a very wide range of bills and brings that knowledge to the huge range of subordinate legislation that is introduced as a result of those powers. My colleagues and I welcome your commitment to detailed consideration of everything that comes before you. This can only help to improve the standard of our bills, delegated power, memoranda, instruments and other documents that are laid before Parliament. Alongside your assessment of individual legislation, the feedback from your annual report provides me and the Scottish Government officials with an overview of where things have gone well so we can build on those successes, but also of course where things haven't gone so well so we can look at how we can improve things going forward. In terms of things where we think there's been particular success in the last period, I think one of the things that I would want to highlight was the co-operation in September that brought about new disclosure procedures into force in record time. I think that on that occasion this committee didn't only serve your usual job, but you also took on the role of a lead committee and I think that that was important in a very important piece of legislation. Obviously as I said you also bring forward times when things identified how procedures can be improved and I think we are taking those on board. A good example of how that's happened is the routine implementation meetings that my officials and policy leads have with your clerks and clerks of other relevant committees. These were instituted as a direct result of this committee's intervention and I think they have had a significant benefit in improving communication in both directions. I also want to reflect on the significant role of Nigel Dawn as convener in leading this committee. As convener Mr Dawn has always been fair, patient and most importantly unrelenting in his efforts to see standards of scrutiny improve as a result to raise the quality of legislation. The convener has also been instrumental in raising the profile and widening the scope of this committee. That includes leading the committee in scrutinising Scottish law commission bills and I believe that that's a new role that has been positively received and I look forward to hearing your views on that this morning. I want to assure members that we'll continue to work with this committee to ensure that future legislation introduced into this Parliament is of the highest possible standard and we may not always agree with your views but nonetheless those views are always welcomed by me, my fellow ministers and Parliament as we strive to produce good quality, easily understood and fair legislation. Thank you very much. Thank you for those kind words and questions. Will we start with John Scott, please? Thank you and good morning minister. I associate myself with your words about the convener who I think is extraordinarily diligent as well. Minister, the committee was disappointed however to note last year that after a two-year decline in the percentage of instruments reported last year increased. What do you think precipitated this increase? Obviously pleased that despite last year's increase compared to the previous year the committee has acknowledged that overall quality is better this session than it ever was in session 3. We think that that's a point worth holding on to. The vast majority of subordinate legislation is fit for purpose and I appreciate and know that the quality is an important issue for the committee so it's important to ensure that all the legislation that we bring forward is robust and fit for purpose. The committee will continue our efforts in that direction. Our aim is always to reduce errors across the board but I don't think that it's ever going to be practical or possible to eliminate every single error. One of the big areas where I think 45 per cent of the errors that were reported were in relation to pensions. We were particularly complex, particularly difficult and obviously there was a time pressure that wasn't entirely within our gift and I think that we have learned lessons from that process but I think that it's about 45 per cent of the errors that were reported in relation to those instruments the timing of which was outwith our control. We also had the challenge of... The tax laws made it very difficult to use retrospective. It just wasn't possible. I think that we've learned a lot of lessons from that process and when a challenge comes to us like the pensions then we need to use that to improve our process. I will specifically ask you a question on that for me. 19 instruments, 52 per cent of the instruments reported last year, were reported under multiple grounds. Teachers pension scheme regulations 2014, SSI 2014 slash 217 in itself accounted for five reports. Why do you think that such a significant proportion of instruments were reported under multiple grounds? Do you think that that raises concerns about the Scottish Government's quality assurance process? In addition to the pensions, as I said, there was a particular time pressure that was placed on us and we've tried on several occasions to try and persuade the UK Government to take a guidance of this Parliament's time scheduling and we continue to work with the UK Government to try and make sure that their timetabling and our timetabling are understood. There might still be some issues going forward where we can't meet the not-the-usual timetables that we have, but we have learned lessons in relation to those particular issues. Paul, do you want to say a little bit more about the specifics? Yes, a little bit. The experience of earlier this year before April for the pensions regulations was a very much a solitary lesson to us, in looking at the balancing of what we had to achieve by way of delivery. We were constrained by UK timetables. Last year there was a particular tax-related reason why the normal ability to make retrospective pensions regulations wasn't open to us and it was a bigger package last year. Those considerations don't come into play as far as 2016 are concerned to the same extent, although there are other challenges because of timings to do with the solution that put other pressures on our ability to make regulations that are retrospective. We are very much focusing on the need to get ahead of the game as far as we can, working with the UK Government to ensure as far as we can. The minister rightly points out that we try hard, but the Treasury and UK timetables are different from us. While we continue to ask them, they are driven by their own timetables and we work towards trying to get things into place as quickly as we can. We have spoken with the pensions agency and with the particular area of my directorate that has responsibility for the pensions regulations to try to manage that and monitor it. One of the things that we are doing is rolling up the instruments for this year, which is going to be a smaller package, but we will have its own challenges, is what we are doing as we are tidying up all the commitments that arose from last year as well. They will be all caught up in the instruments that will be put in place by 1 April. That is an indication that the pensions agency has taken seriously the issues that arose last year. As the minister said, there are still some challenges on timings, but it will focus quite a lot on this year with a smaller package, so hopefully it should be more manageable. It was something that was not a finest hour previously and we looked long and hard at what we would learn from that to make sure that we do things better in the future. Is there any other lessons that you feel have been learned that you want to talk about? You said that there are outstanding challenges and for this year's bundle, as it were. There is a continuing programme to make improvements, so when something like the pensions happens, we need to feed that in. One of the important things that we continue to do is to have regular monthly discussions between the Parliament legislation unit and the SGLG to make sure that we are identifying those issues before they happen. We can split them into policy issues, so we have detailed guidance on policy terms that we have kept up to date. We are continuing to emphasise to bill teams the need for them to take ownership, not just of their bill, but of the quality of their SSIs and to ensure that their documentation is clear and comprehensive, so we are making sure that they are looking at the whole package. We are also looking at how we can make sure that the quality control processes that we have put in place are constantly being reviewed. If we see that something has happened and we have not caught that, we need to look at how the processes can be improved for the future going forward. When this is a particular concern of this committee is the quality assurance process and the multiple failure of different instruments gives us huge grounds for concern in terms of your quality assurance process, the Government's quality assurance process. Of course we understand that you do not wish it to happen, but you have now new measures in place that will mean that we will not have this again then. We certainly hope not. Obviously we discussed previously and new measures were put in place. Unfortunately they had not come in place in time for these particular, as Deputy First Minister when he wrote to you made clear. We have now got more robust processes in place in Washington. New measures have tightened up existing measures as well. We are trying certainly for these instruments for this phase to manage it a lot more closely from the centre to make sure that the particular part of my direction at the deals with this work can ensure that they get the documents into the processes as early as they possibly can and give an adequate time period for the centralised processes to hopefully add the value that was one of the pinch points last year where time really ran out for the reasons that I think we are all aware that made it very difficult to apply a rigorous in our process at the time and we are doing what we can to build in proper time in order to be done on this occasion to get the external scrutiny within the direct external scrutiny that these instruments need. Thank you. You possibly have answered this question and nonetheless want to put it on the record our concerns and you may or may not wish to respond to it as you have perhaps already done so but so far this session there has been a reduction in the proportion of instruments reported. In the first quarter of this year only 10 per cent of instruments were reported. Balanced against this improvement is the percentage of instruments reported that has been the continued increase in the number of instruments being withdrawn or revoked. In 2012, 2013 and 2013-14 only five instruments were withdrawn. Last year 21 instruments were withdrawn or revoked and in the last few weeks alone seven instruments have been withdrawn one on two separate occasions. On one hand the committee welcomes that instruments are being withdrawn to make the law clear and accurate however that also means that instruments are being laid containing errors. So what is being done to improve the quality of instruments laid and why has there been such an increase in the number of instruments withdrawn or revoked? Essentially it's becoming almost an iterative process that this committee is dare one say sometimes doing the work of the Government and I very much regret that we are in that position. There's always been instruments where there are differences of opinion and then there are other instruments where we agree that it could be with the committee's view but it could be clearer and we agree that with the committee that legislation should be clearly drafted and as far as possible easily understood. So if we agree that there is the drafting could be drafted more clearly then I think it is better that we withdraw that and replace it. I think we've probably talked about how we're trying to improve quality but we do see this committee as part of that process but obviously we've discussed how we have taken efforts which hopefully will in the future improve quality. I think there's maybe been a change of attitude from the Government where perhaps in the past we might have said what we mean by that and that's fine and we've got to the point of saying that the committee is right here and while the way we've drafted it might work in law the committee's view makes it clearer and more easily understood and so I think under those circumstances it is better that we withdraw and lay something that's clearer and more easily understood. That might not have happened in the past to the same extent and there might have been a feeling from Government that this was a confrontation and the Government might have been more defensive in that and I don't think that's helpful to anyone. I value the input of this committee. I think it is particularly the way in this session that we've managed to develop a relationship between the committee and Government. I think we're now producing final product which is of a higher quality and that's the final product that members of the public, members of the judiciary are having to use. I welcome your candor minister of course and indeed we share the desire to get things right but it does concern me hugely if this is now rather than instruments being laid in this set of proposals that we're being given that's possibly overstating the case but you take my train of thought and the workload of this committee is enormously greater than it was. Of course the burden of work falls in our clerks and our legal advisers and I just feel that this is perhaps work that properly the Government should be doing without being unkind. So there are two things. Where are errors in improving the quality as of answer to the previous question we've put in place which we hope will drive that up and continue to drive that up but ultimately if we agree with the DPRC committees legal advisers and committee that there is an error then I think it's better that we withdraw where we can withdraw and replace but notwithstanding that we have all obviously put in new procedures to improve quality and we'll continue reviewing those to make sure that we produce the first drafts, produce legislation that comes before this committee of the highest possible standard and overwhelming the vast majority of instruments laid have no errors. Some additional clarity on the timetable in relation to the pensions orders. In particular it's quite clear from what's being said that there was less time given the free hand would be scheduled for the work. I just want to be clear was it just simply there was less time or was there an element also that you were unclear at an early enough stage what the timetable would be? So it's certainly in terms of the process one of the things that maybe I didn't put on the record when we talked about this earlier is that as well as having the time pressure it was a hard time pressure and HMSE had confirmed that the new schemes had to be legally established by 1 April 2015 so it wasn't a soft it wasn't a soft target it was an absolute hard target we always try to make sure we have as much notice from the UK Government about their proposals as possible and in this case that certainly didn't happen to the extent that we would have liked. That's fair and it was a big package it was a combination of a number of things of a series of regulations that cover a series of schemes and they were all very chunky instruments which put more pressure on the committee as well and we can see the benefits of that scrutiny but it was a combination of all those things we'd have probably anticipated that time was going to be tight and that we were going to come close to the wire as I say it was unusual that we couldn't utilise retrospectivity in the same way as is often the case for pensions but it was a combination of a number of these things Just on quite a narrow point but a very important point that in essence you couldn't plan the schedule of work sufficiently early because you didn't know the dates while you knew the drop-dead date for completion you couldn't start on the activities until you had things from the UK Government and in essence your telling committee that the difficulty was in not having that information to allow you to plan at an early enough point Yes No, I'm just trying to pin down that that was a key part of the problem and I'm not trying to oversimplify this in a very clearly complex area That's helpful Very good, thank you John, please Mr Scott's questions were largely about the past and I'm interested in the next few months especially and that's already been referred to but from what we understand there's a large number of instruments still to be laid before the end of the session and obviously it's critical that Parliament this committee have sufficient time to scrutinise all the instruments that are laid Previously I think that the experience has been that when a large number of instruments have been laid over a short period it has been challenging on the ability of Parliament to apply effective scrutiny This has in the past therefore led to a negative effect on the quality of the instrument I just wonder if you could give us any thinking about what's being done to ensure that these instruments are laid in a managed way so that we as a committee in Parliament are actually able to cope with it all I'll let Jane come in in a minute but we think we're in a better place than we were at the end of session 3 but we do understand that committees are under pressure and they're very busy and the things that I have done is we've written to ministerial colleagues and bill teams to ask them to make sure that they're bringing forward subordinate legislation projects that they have to be done this side of the election and when something could wait till after the election that we do suggest that it should wait until after the election in order not to be compounding an already busy time so that certainly should be considered and that's a process that we're continuing to remind colleagues we've also set deadlines for laying taken into account committees need to discharge their responsibility and allowing a small margin which hopefully will ensure that there aren't significant pressures on this committee in terms of considering instruments in March Jane, do you want to? Working very closely with your clerks and with lead officials to try to make sure that where there is any slippage that you've advised of that that people are adhering to the timetables that they have provided to us that they are working with legal colleagues to make sure that instruments are produced and cleared and that ministers, Mr Fitzpatrick's colleagues are aware of the pressures that are on yourselves not only in secondary legislation but in terms of primary legislation that you need to deal with. That's from the point of view of the pressure on the committee from the point of view of pressure on the Government staff or whoever is drafting all of these instruments is the capacity to make sure that they're done properly and we're not getting there's not enough time to double check and all that kind of thing. We're certainly putting additional processes in place in terms of the overall styling process but also before even getting into that looking very closely through our business division at where the pinch points are both in subject matter areas and in relation to the issues that we're going to deal with. We're going to deal with those who are responsible for instruments and those who have four or more instruments that they're drafting between now and dissolution spoken to them and engaged in a dialogue to work out whether they're sufficiently advanced and we'll get into a better place and we are trying to manage the process through tracking across the board to ensure that our styling resource which we have within the directorate have to say first and foremost get a proper break at Christmas we're making sure they're all getting some time off when they come back early into the new year because they'll all be going hard at looking at the instruments but to make sure we have hopefully an adequate resource that's in place and is supported by our deputy director lawyers within the directorate to ensure that if needs be additional resource at a senior level can be utilised to help with the styling process but also to help to take pressure off the stylists because they too, many of them are also involved in drafting second legislation or indeed drafting and instructing bills in the Parliament as well so people have many pressures on them so we're endeavouring through the Cynesian managers within the directorate to ensure that they are alert and aware of the pressures on their own staff within the directorate to manage the process which, as we were doing centrally as well as far as we can. We understand this due to the package of instruments laid emanating from the Tribunals Scotland Act 2014 and given what Mr Scott has already referred to around the pensions instrument is that a possible pinch point that might be coming up? We're very keen to continue to lay packages of instruments to make sure that the committee is able to see what the Government's proposing in the round. The difference with the Tribunals instruments is that they are part of the implementation of a bill that was passed by the Scottish Government passed by the Scottish Parliament so that the Government has been more in our control than it was with pensions which does not take account of the Scottish Government's different time periods for various parts of its process. That's reassuring. Can I just bring on my John Scott in place? The last question, please minister and given what Mr Cackette has said that you are considering engaging additional resources to get through the workload and obviously we need to consider our position to respond to the extra workload that's coming down. Can you just put a number on how many instruments are expected between now and dissolution? I'm not sure I'd be able to give you that current number but that would be challenging. We are in regular liaison with the clerks when that arrives. Are we talking 10s, 20s, 50s, 100s? I think it wouldn't be fair to put a number at this stage. One of the processes we have in place is clear discussions with the clerks of this committee and the clerks of any relevant committees. The trouble is, of course, that this request for my colleagues in government not to bring forward secondary instruments, such instruments that are not required within this term. So there's a process still on going to make sure that when instruments are coming to Parliament, it's because they need to be done before the election. We're trying to manage that so I don't think it would be fair for me to give you a figure on that. All of this, notwithstanding, does rather point to an additional workload that you're anticipating on which we are going to have to deal with. So would it be your advice to this committee as the Minister for Parliament that we too should be envisaging seeking extra resource to deal with what's coming down the track? I think we'll make sure we keep a close contact with the clerks and make sure that they have the information that they need. In terms of styling, we're not envisaging additional styling resource. My reference to resource at deputy director level is support resource of the stylists themselves to make sure that they're available to do the work rather than necessarily saying that additional people will take the work off the stylists. I'm more thinking in terms of just making sure that we plan our resource better. As I say, there's no suggestion that we're going to be kind of tooling up with additional stylists in that period. It's just making sure that we can manage the process as well as we can. Can I just observe from up here? First of all, the word stylist is not a word that I'm familiar with in the context. Can you tell me what a stylist does and what someone who's not a stylist does in the context of drafting, please? It's a long, long-standing process that existed pre-devolution for the UK Government then and still is applied by then. The process is such that an instrument is drafted with a principal drafter and is finalised in conjunction with policy colleagues to decide what the content of the instrument should be. It's approved by the divisional head. What we have is an external to the division cross-cutting process whereby a fresh pair of legal eyes looks at that instrument, a fresh and looks at particular issues such as the viries, the powers ensures that the instrument is drafted in accordance with standard drafting styles meets the requirements follows the kind of expectations and indications of this committee on good drafting practice does a double-check in terms of the references to other legislation does internal cross-checking so it's an external pair of eyes effectively that adds additional value it's often the case that when you're the drafter of an instrument, things that look obvious to you you can get too close to it sometimes and having a bit of an external analysis of someone who's aware of developing practice of this committee and drafting generally can add significant value and does add value. It's quite rare that an instrument will go through a styling process and not have some questions asked or changes made to it and it endeavors to ensure that we can meet as high a standard as we can before matters are put to the ministers. That's helpful and it's good to see those things across-checked I'd just like to reflect from this end that obviously the minister's response just now in other contexts might have been seen to be evasive and I just want to make the point that I think what minister was reflecting there was the way we do actually talk to each other either end of this table in order to make sure that it actually works but I do suspect it's still quite a large number and we're all going to be working very hard over the next two or three months John, has further question about commitments? The final area I want to touch on was you'll have seen in Annex B of our report the full list of all the commitments that have been made and we're obviously keen as a committee that these don't get forgotten about I think in one of the answers to the previous question there was a suggestion that all commitments might be caught up with by the end of March but I'm not sure if that was just in pensions I wasn't quite sure so can you clarify about these because one or two of them have been outstanding for a week while coming from 2011 as to how we see them being caught up with? Obviously we agree that when a commitment to correct a minor error is made that it should be met and understand that the committee would like to know when these dates will be cleared so I think we noticed maybe nine of the nine of the outstanding related specifically to pensions so are covered by Paul's commitment and there are another few we need to maintain a sense of proportion so if the error was small enough not to require immediate amendment then it's not necessarily good use of everyone's time that we then bring forward another error to specifically fix that on its own simply because a period of time has elapsed and the point is that we're waiting for another appropriate piece of instrument where that could be tied in and a couple of other cases that has not arisen so far I think one example would be one of the later examples the 2011 commitment relating to marketing of hard to cultural produce and there's just been no further regulations needed around that topic thus far so it remains there as a commitment that as soon as there is an instrument then we would tidy that up at that point but obviously the legislation is working and the legislation is understood that's not to say that we shouldn't continue to tidy that up but one thing we could say is we should just say well actually now we're not going to change it but I think we've recognised that in an ideal world it would be changed so I think we should keep that commitment there and still continue to look for an appropriate approach I think that's a reasonable answer and I take the point that we need to be proportionate and some things are bigger and need to be amended more quickly than others I suppose that's right, I mean you've referred to the 2011 one and I mean I don't want to get bogged down in the wording but one of them said the earliest available opportunity and one of them said the next available opportunity so I mean I think we'd just be the two that we haven't yet identified a suitable opportunity and that would still remain our aim would be to have an opportunity arises then we would use that but otherwise we would be doing an instrument to do something very very minor which doesn't appear to be having any impact on the usability I'm wondering if I could then take us on to legislation and bills rather than subordinate legislation as such please minister committee does note that last year slightly over three quarters of its recommendations on delegated powers were actually acceded to which obviously is good I'm just wondering again whether you have any reflections on how you're going to be implementing the recommendations or considering at least the recommendations which will bring forward on the number of bills that are still within this place over the next few months because that seems to represent a different kind of challenge but nonetheless a very significant challenge to both of us we obviously always consider what this committee and other committees say to us in their stage 1 reports and one of the challenges we have is time obviously at the end of a parliamentary session there is a focus of time but I think as I've said I know you the input of this committee and other committees so we need to look at how we can take account of any recommendations that have come through in terms of the specific bills which are still going through Parliament an on-going issue which we have discussed before and indeed outside of the formal meetings of the committee is the timetabling in such a way that the space between stage 2 amendments and the stage 3 final process where on occasion there simply hasn't been enough time for us to look at what's come through at stage 2 and then be able to do anything meaningful at stage 3 again minister you're well aware of that I'm wondering again if you can reflect on what we're going to be doing over the next 3 months I think we may be changing the standing orders in time but it's the next 3 months I think I'm worried about that What we have obviously the standards, procedures and public appointment committee we should seek to allow 14 days and that between stages 2 and stages 3 that is what we have been trying to do in most cases there are rare occasions when we don't manage to meet the 14 days and on even rarer occasions we have required to suspend the standing order and introduce it further I think where we're at is that we are having to either not meet the 14 days or to go even shorter that we're making sure that we're making this committee and any other relevant committees aware of that process so they can make arrangements around that going forward pressure is tight we are still trying to work to 14 days in the main but I do think there is likely to be a couple of bills where we won't manage to meet 14 days and there might even be an occasion where we're with discussion with the relevant committee we're not going to manage the 10 days and what we need to do is to make sure that this committee and other relevant committees are aware of the discussions we've had with the subject matter committees so that you can plan your workplace out I think there was one occasion last year where I think you felt the need to speak in the chamber in the start of stage 3 because we hadn't got that process right this committee, the time to to work out your work programme in such a way as to look at instruments so hopefully we're in a much better place now and we will make sure that those communications happen so that there's no surprises that's the big thing going forward we all know that we've got a lot of work to do to make sure we finish the legislative programme and if we make sure that we are sharing as much of that with yourselves and other relevant committees hopefully there'll be no surprises we're still trying to aim towards the 14 days but I think we've had informal discussions with the health committee over one of their bills being challenging for them but it will depend on obviously the time that's left will depend on the length of time for stage 2 and not all of that is within our gift just now so there might be a health bill and the other one might be I'm just saying that there's no specifics what I'm saying is that all the specific timings aren't entirely within our gift because we obviously have the committee processes right I don't find that an entirely helpful answer I'm sorry to have to say so but in the interest of opening this in transparency in the interest of opening this in transparency we're aiming to work towards the 14 days that's our target we already have in terms of our discussions with the health committee identified that in terms of how they intend to schedule things there may be a problem with one of their bills that said there may not be because it depends on how long each of the stage just takes if stage 2 takes less time then obviously that's a number of days but worst case scenario there could be challenges but we will absolutely make sure that any relevant committees and this one always being a relevant committee are kept in the loop of that as any circumstances arise well as a member of this committee I'm not aware of these challenges forgive me for saying so but maybe the people behind the scenes are if they arise then clearly we would need to you would become aware of them thank you can we just before I leave that can I just make the point obvious point that the delegated powers memoranda and supplementary delegated powers memoranda of course are absolutely crucial to our understanding there and just to make the request which I think you'll be well aware of that those are available as fast as possible regardless of the rules in such a way that we're able to scrutinise what is being proposed for stage 2 possibly before it even happens in such a way that we can get ahead of the game if it does look like there is going to be a particular pressure in a particular bill then then I think the onus is on ourselves to try even harder to make sure that you have that information in as good time as we can provide it I think that Stuart wants to consider community empowerment etc well indeed thank you I have two topics I want to raise to the minister one relates to three bills community empowerment bill scotton bill the land reform bill and the burial and cremation scotton bill the general point is that as a committee we found that there was detail explaining a number of the powers in the bill and indeed in particular in the land reform bill it was quite clear that the policy was still being developed and therefore that was the reason for the lack of explanation about how powers would operate now without straying into policy matters which are for other committees can the minister assure us that we will see less of that in future because we don't regard that as a particularly satisfactory way to proceed I think I certainly understand the committee are concerned about these bills as they can't always scrutinise the detail of how legislation would be implemented DPLRC's concerns about framework bills aren't new in 1932 a UK Government committee reported on delegated powers in legislation and expressed many of your concerns about the excessive use of skeleton legislation inadequate scrutiny in Parliament lack of public consultation loose definitions of what delegated powers can be used for that said I do think there are space for these bills which provides an opportunity for policy to develop in we recognise there's a balance to be struck between clarity of detail and a level of scrutiny however there are a range of reasons why the flexibility offered by secondary legislation is valuable and the three bills that are being used committee empowerment and land reform have been particularly two bills where there is a framework element perhaps minister after 83 years we might be learning some of the lessons from the ramsey mcdonald administration of 1932 someone has whispered to me at ramsey mcdonald and I'm not quite sure that it's actually the case whoever is the prime minister at the time but there is a serious point to this minister which I would invite you to consider that one of the duties of this particular committee is of course to look at whether legislation is easy or compliant and that takes us into a broader consideration of policy beyond simply the processes and structure of secondary legislation and indeed primary legislation and I think it would be as well to put on the record we do find it fundamentally difficult to give an informed opinion when the policy has yet to be developed now in a strict sense we can say there is nothing in the secondary legislation but we can't say about what's going to come and I think that's where the difficulty is now I'm prepared to also put on the record that we recognise the Government is responding to our concerns particularly in relation to the land reform bill well I think there's clear indication that some of the policy vacuums if I may so describe them are likely to be filled quite soon but I think perhaps the minister should note that we will continue with the historical support from a committee report in 1932 to make this point wherever we need to do so but it would be interesting to hear from the minister if there is more the Government can do in this matter I think obviously we welcomed your views through the stage 1 process and I think we've responded to those specifically so we take the committee's views very seriously and our officials will provide further information and potential detail to be contained in regulation to the Parliament during the passage of the bill wherever possible so a lot alongside consideration of the recommendations made by the Racky committee in this stage 1 report and the views emerging at the stage 1 debate will also consider the benefits and practical implications of accepting recommendations or amendments made by committee ahead of stage 2 the point is that we are very much hearing the points that have been made and we will try and address some of those as the bill goes through Let me move to a second matter a second matter of minister and that relates to the management of offender Scotland act commencement number 8 and consequential provisions order of this year now the government accepts that there are concerns let's not make them absolutes about the virings of whether the primary legislation grants the power to make the order in the form that it's come forward and the government intends to address that matter we understand and on a timetable that will not compromise the implementation of policy so we're satisfied at that level we have a technical concern which we think is a matter of principle that we'd like to put to you and that is although this piece of secondary legislation will never be acted upon the present procedure being a negative instrument means that it will end up on the on the statute book as legislation and we are quite strongly above you that we should seek to remove it we absolutely accept the virus point and accepting the virus point means that it doesn't exist so it will not appear on any statute book Paul the virus issue was a valid point sometimes you can get borderline virus issues but the use of the wrong parliamentary procedure which we accepted and was drawn to our attention to a technical difficulty one of those technical difficulties is the fact that this instrument in technical terms doesn't exist because it was used because the wrong procedure was used it was assigned a number but it will not appear in the published versions of the statute book in due course so there's a technical issue and you're quite right to identify it as a technical issue that creates a difficulty and the challenge really reflecting what the committee described the circumstances of this instrument is being unsatisfactory and I think that's absolutely right it is unsatisfactory and the challenge is trying to work out what is the best way to go forward in such a way that can reconcile the concerns but also achieve an outcome that's actually useful and helpful for the user one of the technical difficulties is how do you revoke an instrument that doesn't exist if it's not there so there's an issue that needs to be worked around the approach that we've taken and people from different views on this I suspect that we may take a different view on this issue led us to effectively two conclusions one of which is the instruments we intend to make to properly implement the policy which is a commencement order and a secondary legislation instrument using powers that can be used in this context will legislate in effect identical terms to the instrument that was made under the wrong procedure so in terms of the user at the end of the day there's no risk of any ambiguity or inconsistency or doubt as to the meaning of the instrument so that the outcome from that point of view is as good as it can be in unsatisfactory circumstances the other issue in our mind given that we want to rectify this keeping the 16th march date and want to rectify it as soon as we can is the question of confusing of how confusing it's going to be for the user of the statute book if we then if we now take forward another instrument to seek to revoke the instrument wrongly made and if we made it by negative resolution that probably makes the same as takes away last time round so should it be affirmative if it's affirmative it'll come later than the corrective instruments so from the user's point of view if you want confusion that's going to cause confusion because they're going to see an instrument that revokes something that doesn't exist and isn't on the statute book and might lead users to think that it revokes the corrective instrument that we're about to put on the statute book it doesn't exist so it shouldn't be revoked because just then for clarity given that the commencement number 8 will not exist will the instrument that's brought forward to replace the non-existent instrument also be number 8 exist the instrument number 8 and consequential provisions order our intention is to bring forward a commencement order only which will be the number 8 order I emphasise that it has a different name because of the way in which it's done but on the basis that the number 8 order never existed then the application of the thinking that we're applying to that wouldn't mean the new order would also be a number 8 order because the number 8 order as signed because it was using the wrong powers doesn't exist so it will appear as a C.8 the one in the statute book even though this order presently would appear under that it might appear as well it will C.8 but it will have a different name the instrument will have a different name I am is this the process by which Parliament becomes aware that this order has never been made the putting it on the record at this meeting because in a sense Parliament has been formally notified of the laying of this order so how is Parliament formally notified that it wasn't laid I think it's an unusual circumstance but I guess we are making that point today so that might help but we need to consider whether there needs to be any other process Minister with the consent of the convener I do suggest perhaps a letter formally putting on the record might be helpful to give you time to consider because if it's in the parliamentary record as having been laid I think for parliamentary process we need a formal process by which it is clear it has not been laid helpful suggestion I think that sounds right I'm not sure necessarily going to describe it as a formal process but we certainly would like some parliamentary evidence I think what you've just said is clearly on the official report and does make some sense but it might be that one side of a piece of paper could clarify the thinking so that in the future we do all know what was said and what was met That explanation is helpful John Thank you convener Can I just take you back to the previous series of questions about replacing policy as explained in the face of the bill by regulation we've now had three bills that we're aware of where this has happened the community empowerment bill, the land reform bill and the burial and cremation bill and I just really want to ask one event is an incident two events are a coincidence but three is a pattern and does this represent essentially a different style or a different way of legislation being created now by government because it's not one that we would necessarily want to see I guess my point for when I originally mentioned the 1932 quote was that this isn't something new that these bills come forward it just these three bills have reasons for why and different reasons for why they've been brought forward in the way they have so it is a coincidence more that there is no design intention, there's no intention to legislate via framework as being the default and obviously in the bill of cremations it's only some parts of that bill Will you forgive me for saying so but it does begin to appear as if this is a pattern given that we've had three of them in this type of creation It's entirely coincidental they've come around a similar thing Three coincidences, right well we'll not expect any more then I suppose There's definitely no policy decision to use that framework as a way forward there's no policy decision That's clear, thank you I do find it fascinating you quoted 1932 it did a short later comprehensive rewriting of English land law trustees and all the rest the previous decade If ever you want an example of how it might be done properly surely that 1925 legislation is the model You'll be aware that the committee has expressed concern about the inconsistency in the drafting of ancillary powers the concern is in relation to a number of bills and it's a concern that the committee rose again quite recently Obviously we believe that where the effect of the ancillary powers is intended to be the same therefore there should be consistency in drafting We appreciate that this is an issue that the Scottish Government has been examining so it would be helpful to get an update from you on this issue Opportunity to update committee on the work in this area It's something Government aims for whenever appropriate and having consistency means that it's helpful to drafters it's helpful to Parliament when scrutinising bills and I think most importantly it's helpful to the end user if we have that consistency Work on the standard ancillary provisions is nearing completion Government will share that with the committee and other interested persons as soon as possible and certainly well before we adopt it so we plan to adopt the standard formulation for Government bills from the start of next section so we're well progressed and I think we'd be sharing that also with Scottish law commission drafters so that there's consistency in terms of the bills and also the Parliament's non-governmental bills unit so hopefully we'll have something that it provides the consistency that the committee is looking for in time for the start of the next session If stakeholders are involved in that but you'd be confident that you can work to that time in terms of completing that work Thank you very much indeed Moving on then on to the issue of the Scottish law commission bills now Minister in your speech at the beginning you said that you welcome our thoughts on this issue I think certainly it's been a very productive process the committee taking on Scottish law commission bills and I'm sure other members of the committee would agree that it's gone quite smoothly and been productive but given that we're coming now to the end of our consideration of our second Scottish law commission bill we'd welcome your reflections too on the process and how it's worked so far and really well it's been one of the successes of this committee as I said in my opening remarks I mean there was a feeling that maybe the Parliament wasn't giving as much care to to the law as it should do and I think the law commission bill process is very important part of that so we'd anticipate that after the next election whichever government is in we'd imagine that it is likely to be one such bill every year and that's kind of roughly the rate that this committee has been progressing and I think it's a reasonable way forward Minister to which bills you could bring forward on that basis in the next Parliament In terms of having this process part of that will help the Scottish law commission make sure that the work that they are doing is rather than that the law commission has produced reports which have sat on a bookshelf and got dusty and then it then becomes too late to actually use them so I mean I think that there's a narrow process on going so that they can look at what they're doing to make sure that it's potentially suitable for the process here in Parliament obviously there will be a point when Parliament needs to consider the specific requirements for bills coming to this committee and the Scottish law commission in terms of that process it's quite tight just now so that is quite restrictive and it might be that it's something we want to consider whether that can be relaxed to some extent with it in the next Parliament I guess I'll be partially down to whatever new committee structures are brought in in the next Parliament but it's hard to say that the Scottish Government in looking at what bills might be brought forward in the next Parliament could have been drafted a long time ago by them and it's either going to be on the edge of being in my living or it might be progressed if it can happen What can you impart to the Scottish law commission to make sure that their efforts are being used most productively I think that it takes us neatly to do it Thank you Camilla I've just correct something I made said in my previous contribution the management offenders etc wouldn't necessarily be C.A whatever the sequence number is because the C dots are allocated by commencement orders in the year and otherwise it's not C.A but it might be I just twist that I've got that wrong That's another here Indeed Just to ask the minister for his personal and perhaps Government view on matters that are really of parliamentary concern in relation to the committee The committee is now doing Scots law commission bills and consolidation bills and I just wondered in addition to the things the minister has already said about the committee's role in that matter whether there's anything else that the minister might see that he would wish to suggest to Parliament that the committee might do and how he thinks what the result has been of these two additions to the committee's work Obviously the specific remits of committees will be a matter for the next Parliament going forward but the additional responsibilities that have come to this committee have been technical in nature they've complemented the skills of the committee and that needs to be taken account of when you were adding anything different I mean I think it's very likely because there's additional powers coming to the Parliament that the bureau is going to in the next Parliament is going to have to look very carefully at the whole range of responsibilities for all the different committees and this one is part of that And finally, just a little thing again, it will be a matter for Parliament and not for the Government of course this is one of the smaller committees and I just wonder if in your interaction and that of your officials with the members of the committee whether the fact that it's a smaller committee leads you to to say anything in regard to that I think we obviously there's a decision taken mid Parliament to reduce the size of this committee because of other pressures in the Parliament with new committees being formed put additional pressures on I think we were particularly lucky that the members of this committee were up to the job of taking on that additional responsibility while the numbers have actually reduced and it's you know, these are particularly specialist skills that this committee has developed over the piece the membership has remained relatively static and this committee is probably helpful in being able to carry out those additional functions while still having less bodies to do so Thank you very much Minister and your colleagues for a very interesting session which I'm just about to draw to a conclusion I wonder if I could just make a couple of comments on the remit of the committee a concern if the bills that we were able to see were defined by restrictions plainly they should be constrained and recognise the rest of the Parliament doesn't want us to go too widely into policy areas but if we every time we look at what can come here we see the restrictions then that would not seem to be the right way forward would it Secondly could I echo your comments about the stable membership of the committee because I think five members just worked fine but it has worked because we have very stable membership and we have developed those skills and therefore been able to use them as a team and with that can I thank my team can I also thank your team because I do recognise this has been a team game as it were that's how we make it work thank you for your evidence this morning and briefly suspend this meeting Returning to agenda item 3 the Bankruptcy Scotland Bill this item of businesses for the committee is questions on consolidation in parts 15 to 18 of the bill and the schedules to the bill do members have any comments I am going to suggest that the committee agrees that I should write to the drafter to follow up on his response in relation to the committee's questions around section 206 and paragraph 5.4 of schedule 2 are we agreed on that and thank you concerns no that takes us on to agenda item 4 which again is the Bankruptcy Scotland Bill and this item is oral evidence on that bill and I welcome David Menzes who is the director of insolvency at the Institute of Chartered Accountants at Scotland ICAS and Rachel Grant who is the member and former chair of the Association of Business Recovery Professionals R3 at the Scottish Technical Committee and it does occur to me that Mr Menzes might be Mr Mingis can I clarify that please you would prefer Mingis you would prefer Mingis absolutely fine as I said it I wondered let's at least make sure we researched you correctly Mr Mingis and questions will be started by John Mason please thanks convener I should perhaps also declare that I am a member of ICAS therefore will be particularly harsh in my questioning of them I think both of your organisations and your submissions have said that you support the consolidation of bankruptcy legislation can you just give us a few comments as to why you support that perhaps I can start we very much welcome this bill and we actually think it is probably overdue and there's been so many changes to bankruptcy legislation since the big change that came in 1985 and we believe that as a lawyer who works on a daily basis with the legislation it is unwieldy and it's not particularly accessible to anybody who has to use it so we think that this consolidation bill is very much welcome and I have to say as well that we are impressed with the work that's been done on it and to produce what we see as a properly flowing piece of legislation as always there are so many different views on some of the stylistic and structural points but there's nothing really substantive about this piece of legislation that causes us any concern I think as Rachel says it's long overdue 30 years of various bills and enactments over the years have made it unwieldy it's lost a lot of coherency and from a practitioner's point of view on a daily basis it's difficult to work with without the commercial consolidations that have been done in various textbooks it would be virtually impossible for practitioners to work with it as it is so I think the opportunity to rebase it bring it all back into a coherent structure and make it much more accessible and user-friendly for practitioners is much welcomed You've both used the word unwieldy but from my perspective you're used to dealing with complex law a lot of the time and you're looking at law in a lot of different places has this one been exceptionally difficult to deal with? This one you actually primarily only have to look at the 1985 act but the 1985 act is very unwieldy when you're looking at section 5 subsection capital A subsection small c roman numeral 2 subsection D it is very difficult to follow that is one reason why consolidation which sets things out in a proper flowing way with no duplication of capital letters and section numbers etc that's one reason the second reason is that the legislation itself has changed over the years for example recently in the 2014 act there was introduced a requirement a specific requirement on a debtor to co-operate there always had been a requirement to co-operate but it wasn't spelled out so for example we think that this legislation at the moment has the duty to co-operate all over the place and if you pull it in together into one specific part of the act then it's easier for stakeholders to follow and it's not just lawyers who deal with this legislation it's the general public has to be accessible to them, I'm not suggesting that everybody wants to sit down and read the act but it shouldn't just be exclusively for lawyers and accountants ok, fair enough I suppose my next question then is this absolutely the right time to be doing it, I mean obviously if it should have been done earlier we can't do much about that but I think in certainly the ICAS submission there is a suggestion we've had it from other people that there will need to be further amendments to bankruptcy law and so therefore one obvious suggestion would be should we wait a bit longer before we do a consolidation or is this the right time to be doing it I'll answer that one first I mean I think this probably is the right time to be doing it we've had our last major piece of bankruptcy legislation passed last year I understand that there are no intentions from the Scottish Government to make further major amendments to bankruptcy legislation in the short term so I think this probably is the right time I think that legislation probably it will never stand still but I think the time now is that it is so unwieldy it needs to be rebased so that subsequent amendments can be made in a coherent manner Do you think that the 2014 act has settled down enough that we can go ahead with the consolidation or should we have given it a bit longer to settle down? I think that although there may be some smaller tweaks that may come through in due course I don't think that that should prohibit the consolidation happening at this time there certainly have been some issues identified with the legislation as it's now amended around the common financial tool there are some thoughts that it's perhaps too rigid there are some issues around the ability of insolvency practitioners to deal with the debtor contribution order and that would require a change to primary legislation but as I say the overall benefit of amending it now will outweigh any time delay that might be required to make those amendments I would agree with that I would just add that the fact that there is new legislation dating from 2014 that has just come in this year in itself makes it better now to introduce the consolidation act simply because people have only started becoming familiar or perhaps are not even familiar yet with the new legislation so it will be a one stop shop to learn the new provisions and the new section numbers so I think that it's a good idea and that shouldn't prohibit or delay the new bill coming into force following on from that and you're saying about people learning new section numbers and so on in the ICAS submission in paragraph 18 you talk about some of the practical difficulties because obviously sections will be changing and you're saying how that would affect publications, websites, work programme template letters, software compliance checklists and other documents that could sound a wee bit scary are we talking about serious costs in actually because we're consolidating the legislation it's difficult to estimate because each firm will have different degrees of publication some won't mention specific legislative references they'll deal with the metrics of things so it's quite difficult to put a firm estimate on what that's to be but I don't think it's a prohibitive cost that way I think there are always changes required and that's just a factor of professional life that needs to be taken account of but at the same time I think the overall benefit of having a coherent, accessible, usable piece of legislation far outweighs those one-off small costs that are going to be incurred at this particular time that was my kind of expression that you're clear that the benefits are outweigh the costs absolutely, I think the very fact that it needs to be much more accessible and coherent that is undoubtedly going to outweigh any one-off costs my final area really was the question of promoting the consolidation and telling people about it you two are obviously right at the centre of things and know exactly what's happening but you already said that some people are maybe not familiar with the 2014 legislation so should the Government be doing more should somebody else be doing more to promote this and explain it to people and say what's been happening I would think that the principal users of this legislation who will be the insolvency practitioners other advisers and lawyers they will be able to promote the changes that are introduced because there aren't changes in substance at all there are just changes in the structure of the legislation and I think that the general public probably is more interested in the concepts and the substance of the law as opposed to whether apartment insolvency is under section 7 or under section and I'm afraid I don't know the new section of the top of my head so my experience from advising people is that nobody is interested in section numbers they just want to know what the law is and I suspect that's the same for insolvency practitioners who have to deal with people in financial difficulty it's not the numbers that are important it's what the law actually says not much to add to that I think that the profession will undoubtedly promote the consolidation bill I think that the accountant in bankruptcy as the agency on behalf of the Government have very good channels of communications not only with the profession but out to money advisers through the Citizens Advice Bureau and Money Advice Scotland so I think that the word will get out to those that need to know it on a daily basis R3s technical committees are really what drives R3 and recently when there were changes in corporate legislation we issue technical bulletins highlighting the changes in what we hope is an easily understood manner for our members and we will certainly be doing something similar when this legislation is introduced that's really part of R3s remit Before I bring on John Scott who I think wants to discuss the structure of the bill, can I just look at its scope and ask you to expand if you will on whether or not the debt arrangement scheme should or should not be within scope of the consolidation because I think you may have slightly different views the view of R3 is in summary that we do not believe that debts should be included at this stage it could be included in the future if that was thought to be appropriate and we believe that if DAS had to be included that work would be required to go through the existing act and regulations to determine what should properly be in primary legislation and what should remain in the regulations and that is an exercise that I understand has not yet been done and our concern would be that this might delay the bringing into force on the act. We see DAS as being a separate procedure if you like and quite distinct from sequestration and protected trust deeds that there is clearly an overlap in that all three of them are designed to assist people in financial difficulty but DAS is primarily a debt restructuring tool although it has a small amount of debt relief in it sequestration and protected trust deeds are primarily debt relief tools another point that we would make is that DAS was introduced in 2002 and it has its own distinct act and regulations it is effectively stand alone whereas sequestration and trust deeds have been around for hundreds of years not in their present form but they have been around for hundreds of years and the legislation is unwieldy and isn't just based on the legislation it's based on quite a body of case law so for those reasons we think that the act as it stands is correct we don't have any objections to DAS being included but we would be concerned that introducing DAS now might delay the bill coming into force Mr Wingis I think it's fair to say that we differ slightly but I think only in terms of timing of it I think as Rachel has said Arthur is supportive or potentially supportive of that in the future our own view is that if we are going through this procedure now of consolidating legislation in relation to bankrupt say that this would be an opportune time to bring in the debt arrangement scheme into that as well some people do say that it's not meant for bankrupts effectively the bankruptcy act is quite clear it's about people who are unable to pay their debts but in some ways that's also what the debt arrangement scheme is about it's for people who can't pay their debts as they fall due at that time so while the mechanics of the debt arrangement scheme are somewhat different in terms of the state the assets aren't transferred across and controlled by a trustee the end product is substantially the same it's about debt relief and relieving people of those pressures when they have them there's an awful lot of harmonisation has been carried out between the debt arrangement scheme bankruptcy and trusted as a matter of government policy over the last few years and that's been very much evident within the bankruptcy and debt advice Scotland act that was passed last year within that it's brought together mandatory debt advice all of debts have to be included in all three procedures the moratorium covers all three procedures and the use of money advisers the common financial tool and indeed the accountant in bankruptcy's role is common across all procedures it therefore seems to us that actually it would be far better for money advisers and users of the legislation for all of that to be within the one piece of legislation it's not to say that having it in two separate pieces of legislation is detrimental at the end of the day professional advisers would be able to work with that but we just think that it would make much more sense for it all to be within the one piece certainly practitioners are now very much advised as part of mandatory debt advice you have to consider all three options for the debtor and I think within the written evidence that I submitted to the committee provided an example there of a debtor where essentially they don't have many or much in the way of assets they're able to make a contribution and actually all three procedures are equally applicable to them and therefore it seems that it's appropriate for all of that to be within the one piece of legislation I'm grateful that suggests that maybe if we were sitting here in 10 or 15 years time doing it again we might be asking the same question and expecting it all to be in one place because maybe by then all of it will have been amended a bit more and it will all need consolidating but yeah, thank you sorry Mr Chairman just a point to make that the bankruptcy legislation as it stands and as it's set out in this bill does cover a lot more than is than the options open to a debtor the bankruptcy legislation is also available for creditors which clearly is not something that applies to DAS and I think that the whole structure is quite fundamentally different in that as David said with sequestration and to an extent with protected trustees assets are transferred to a trustee so effectively the trustee takes control of the debtor's assets so it's quite a draconian measure whereas with debt arrangement the debtor remains in control of his assets so I think that's quite a fundamental difference and the legislation in the existing act and in the bill deals with the impact of this transfer of assets from a trustee sorry from a debtor to a trustee so I think that the act a lot of the bankruptcy legislation would be irrelevant to DAS and therefore I would question whether that would actually make life easier for those who advise on DAS to have to look at a bankruptcy bill that includes everything so therefore if it was to be included we would be suggesting that it should be in perhaps a separate schedule or something like that okay thank you that's helpful let's leave that there John do you want to consider the structure please thank you convener in terms of rearranging the cards within the pack so to speak your submission suggests a number of ways in which the bill could be restructured in the generality can you expand on why you think there's a need to restructure the bill in these ways and what the challenges would be to those using the legislation if the bill retained its current structure I think the aim of the bill as stated by the drafters and the government is to have a properly flowing logical and use of friendly piece of legislation and this bill follows the traditional 1985 structure which although it's familiar to people like ourselves who've been using it for a long time is no longer necessarily the logical way to approach things in the last 30 years there have been quite substantial developments in the law and so it makes sense we would suggest to change the structure to take into account those developments and to really follow a chronological sequence of events starting off with the decision whether or not to enter bankruptcy or for a creditor to take bankruptcy proceedings through to the appointment of a trustee then the role of the trustee and finally payment of creditors I guess I've put down quite a lot of useful examples but by way of example I could perhaps mention section 209 in the bill is extortionate credit transactions and we think that that could be better included in a section of the bill part 7 which is called safeguarding the interests of creditors there are various sections where trustees can challenge the actions of a debtor and this extortionate credit transactions would sit very well in there another example might be the duty to cooperate as I mentioned earlier was introduced in 2014 and it's really quite fundamental now to the legislation and we suggest that perhaps the duty to cooperate should be put in a specific section which dealt with the debtor's responsibilities we're suggesting part 9 which deals with examination of a debtor so logically you put the duty on the debtor to cooperate and if he cooperates that's fine if he doesn't cooperate then the trustee has available to him various steps that can be taken such as having the debtor examined under oath in the court so there a final example maybe is that a part in solvency as a concept in sequestration it's the gateway to sequestration you can't get to sequestration if you're a creditor petitioning for sequestration unless you can establish a part in solvency so it makes sense to put that at the beginning since it's fundamental to sequestration and moratorium on diligence again is fundamental in that it has an impact on all sequestrations right at the beginning of the applications being made and again that would seem sensible to have that at the beginning but these are an exercise for the drafters to carry out but I don't think it's particularly difficult exercise for them to do and you're both content of this reshuffling of the pack as it were to create a more reasonable way of approaching the problems as they currently are I think the drafters have done a very good job in terms of some of the movements that they have made for instance the accountant and bankruptcies remit slightly further into the act rather than being the first thing in the act I think that's helpful it gets right down to the nub of things so that when you're using the legislation on a day-to-day basis the things that you want to know about on a day-to-day basis are undoubtedly helpful I think that as Rachel has said that there are some things which could be shuffled slightly differently it's not to say that where they are just now isn't equally valid but I think that from a practitioner's point of view moving some of the stuff from the miscellaneous section into a more coherent part of the main part of the act I think that would be extremely beneficial and useful on a day-to-day basis I think so you've been psychic in answering the questions that I had for you before I asked them but thank you very much I'm admitted to mention one quite important change to the structure which we would suggest again it's not fundamental and if it's not introduced it wouldn't be disastrous but traditionally interpretation sections and legislation at the end I, when I look at piece legislation I'm not familiar with always go to the interpretation section and read that through first and it seemed to us to be logical to perhaps break with tradition and put the interpretation section at the start because it sets the whole bill in context and that could further avoid some of the extra definitions that are scattered throughout the act sometimes you need specific definitions for specific sections but generally if the interpretation section was at the start we think that you could avoid some separate definitions so cut down the length of the act and just make it a bit more user friendly great thank you for more clarification whether we might turn to Richard? thank you very much my first question is for Rachel Grant because the R3 submission that's your concerns about inconsistency in language used and you draw attention to concerns about inconsistency in the use of forthwith and without delay now that's a matter that the committee has also highlighted so could you expand on your concerns in this regard and are there any other inconsistencies in language which is being used that you wish to highlight? forthwith is a concept that has been used in bankruptcy legislation for a long long time and those who operate in this area understand what it means and there's also a huge body of case law where there's been lots of disputes argued over the years about what forthwith actually means so for that reason we would be in favour of keeping forthwith although it's accepted that is perhaps a slightly archaic term but it doesn't as far as I'm aware doesn't actually cause anybody other than lawyers huge problems people get the idea of what it means in terms of how it's been interpreted which means it's robust in that sense yes that's right generally with regard to clarity of terms I think the same terms should be used throughout the legislation and reading through some of the points that have been made before for example in one section there's a use of the word obligant and then in the next subsection it's co-obligant so issues like that tidying up mechanisms another area that we have concerns about is the use of abbreviations we do not think that's helpful we think it doesn't aid understanding at all and we would like or suggest that those abbreviations be moved with the exception of AIB because that's such a well known term for accounting and bankruptcy and possibly PtD for protected trust deed but using for example OC for other creditor and OC sometimes to use another creditor and there are other short hands that are used that we don't actually think are short hands we think just add to the complexity a third point that I was asked to comment on was the question of actions falling asleep maybe that's just indicative of what the law does to people but section 2712 of the bill is a carryover from the 85 act and it says that where sequestration has been awarded the process of sequestration is not to fall asleep falling asleep is a concept which required where something hadn't happened with a piece of litigation for a year if any party to that litigation wanted to take action they had to give more than the normal period of notice so for example a motion in court the usual notice period can be 24, 36 hours possibly 7 days but in the case of actions that fall asleep you had to give longer period of notice just to give people the opportunity to think about things falling asleep was repealed in the sheriff courts in 1907 it continued in the court session for a longer period more recently the term falling asleep has been updated to refer to a case in which no order has been made for a period of the year sorry, I'm giving you a bit of a history lesson here when the 1985 act was drafted the court of session and the sheriff court could deal with sequestrations now only the sheriff court can deal with sequestration therefore this concept is not a concept that is relevant and I don't know whether or not in a consolidation bill I haven't had the opportunity to check whether in a consolidation bill that provision could be deleted but it certainly has no place in this legislation at the moment it is a very helpful point to highlight I certainly hope that ministers will take note of them as the bill progresses Mr Mings, you've also raised concerns of your submission about the ease of phrase on the same terms as Rachael Grant's outline I'm grateful to my colleague for her history knowledge which is far more extensive than I am or was able to give but certainly the concept of something falling asleep wasn't something that any of our insolvency practitioners were familiar with so I'll on that thank you very much and also on abbreviations as well that's an issue that you're concerned about too I think that while abbreviations can be valid in certain circumstances I think that in these circumstances we just didn't feel that it added to the understandability or the usability of the legislation perhaps it's just familiarity with the way the legislation is just now but bringing in the abbreviations certainly didn't add to it particularly where you get to the definition of associates and you ended up with A to K I think it is referring to different people or complexities and relationships we just felt that that was quite unwieldy to actually use on a practical basis can you give us that intention to make this more user friendly in terms of the legislation to seem to defeat that purpose those are very helpful comments in detail part of liberation hopefully will be noted by the Government as well thank you, convener thank you very much that brings us to the end of the questions that we had if I might just come back to that point about abbreviations am I right in distilling what I think you've said as you're very happy that there's an abbreviation if it's a standard abbreviation outside of that bit of legislation as the AIIB would be but you're not very happy with abbreviations being put into the legislation simply because there's no need for them to be there I think that that's absolutely correct I think that as Rachel said PTT are well understood I think that those are absolutely fine but I think beyond that it's probably unhelpful can I just ask whether there's anything else that you think you would like to put on the record at this point it's been very helpful I have to say what you've said so far I just wouldn't want you to feel that you've not had the opportunity to add anything we might have missed nothing particular other than to say we very much support the principles of the bill and thank you for the opportunity to provide evidence thank you very much for providing that evidence it's been much appreciated and again briefly I'll suspend the meeting thank you very much resuming then with the gender item number five which is the bankruptcy Scotland bill this item is for the committee to consider the draft section 104 order provided to the committee under provisions relating to or touching on the law and reserve matters which are restated in the bill do members wish to make any comments the bill restates certain provisions of the 1985 act which remain substantially unchanged since they were enacted by the Westminster Parliament some provisions therefore will not have been subject to scrutiny by the Scottish Parliament including an assessment of the compatibility with the European Convention on Human Rights both the presiding officer and the Scottish Government have issued statements on their views on the legislative competence of the provisions of this bill required by section 31 of the Scotland act 1998 does the committee wish to ask the Scottish Government about its approach to assessing the compliance of the provisions of the bill with the convention at end of item 6 yet again the bankruptcy Scotland bill but this item is for the committee to consider the written evidence received in response to the committee's call on this bill for we have just heard from two of the organisations who responded to this call for evidence do members have any further comments received not comfortable with that okay thank you very much then at end of item 7 is instrument subject to affirmative procedure no points have been raised by our legal advisers on the microchipping of dog Scotland regulations 2016 draft members may wish to note however that the draft instrument has been withdrawn and relayed twice on the first occasion due to an inadvertent failure to identify by the Scottish Government to address certain minor drafting changes prior to laying and on the second occasion to address points at the committee's legal advisers in correspondence something that we've already discussed with the ministers this morning is the committee content with this instrument please thank you at end of item 8 instruments not subject to any parliamentary procedure no points have been raised by our legal advisers on the Children and Young People Scotland Act 2014 commencement number 10 and saving provision order 2015 SSI 2015 406 nor on the act of sedurant rules of the court of session 1994 amendment number 4 protective expenses order 2015 SSI 2015 408 nor on the prisoners control of release Scotland act 2015 commencement order 2015 SSI 2015 409 nor on the procurement reform Scotland act 2014 commencement number 2 order SSI 2015 SSI 2015 411 nor on the mental health Scotland act 2015 commencement number 2 SSI 2015 417 is the committee content with these please which brings us to agenda item 9 which is the land reform Scotland bill members are invited to consider correspondence from the minister for environment, climate change and land reform in response to the concerns that the committee raised on the delegated powers provisions in this bill do members wish to make any comments please thank you convener well I welcome the fact that section 36 it and indeed sections 82 and 83 and indeed at section 79 it looks as if the government is moving more towards the position that we asked them to do I still have concerns that at section 35 that we don't seem as a committee to be making much progress and I think there's very real questions still to be addressed by the government at section 35 also section 38m we still would like to see further work on the government's part and I hope that they will still have a change of heart in that regard any other thoughts we do have stage 1 debate later this week I'm wondering whether the committee would agree that I should do what I can to speak as the committee's convener in that debate that is of course in the gift of the Presiding Officer to express those concerns in terms which I'm sure will be well put together by our advisers I think it would be very welcome if you were able convener to address that Parliament as the convener of this committee because so much of the work that needs to be addressed by the government is in terms of the detail which is entirely appropriate that this committee not just forms of you but it expresses you in very much a public forum of a stage 1 debate there is as we still know too much uncertainty surrounding the development of this bill in terms of policy and in terms of policy being replaced essentially by regulation being brought forward subsequently and I would hope that you will manage to encapsulate these and other views of this committee as we said when we were questioning the minister this morning we do not want to see this becoming a trend of legislation creating in the government and it does appear that it may just be by default becoming a trend and the lack of policy development is not a good way of creating legislation and creating legislation by regulation subsequently because as we all know it is not subject to the same level of scrutiny as if it were on the face of the bill which is important and vital in a piece of legislation such as this or indeed other pieces of legislation which are very far reaching in their consequences thank you for that clearly we are not touching in the policy areas of this bill but it is a bill that has quite a lot of public interest around it some people feel that the bill is too strong I have constituents in touch saying that the bill is too weak in its approach to land reform and the reality is when we look at some of the issues in the bill so much of it is left to secondary legislation so I very much support the idea that as much as possible should be on the face of the bill and I would be very glad if you can say that indeed so that seems to be the view of the committee and I will endeavour to do that right thank you very much for that that complete item 9 if I might just add our concerns also not about its ECHR compatibility and while accepting the assurances in good faith made by the Government that they will do everything to make it ECHR compatible subsequently certainly as it stands and in terms of the debate and the stage 1 debate I'm far from certain that as it stands it's ECHR compatible so we very much want to hear the Government's views in that stage 1 debate about how the proposals which we welcome as I said earlier are going to in fact deliver the ECHR compatibility thank you that concludes agenda item 9 and we now move into private