 I welcome members to the first meeting in 2016 of the Delegated Powers and Law Reform Committee and, as always, asked members to switch off mobile phones, please. Agender item 1 is a decision on taking business in private. It's proposed that the committee takes item 8 in private. This will enable the committee to consider further the delegated powers provisions in the burial and cremation Scotland Bill at stage 1. Does the committee happy to do that? Agender item 2 is the Bankruptcy Scotland Bill. This item of business is for the committee to consider the draft as a response to the committee's questions on matters relating to the bill. Do members have any comments on those, please? Is the committee content to note their response? Thank you very much indeed. That takes us to agenda item 3, which is, again, the Bankruptcy Scotland Bill. Agender item 4 is a great pleasure to welcome the Minister for Business, Energy and Tourism, Fergus Ewing MSP, Alex Reid, head of operational policy and compliance for the Council in Bankruptcy, Graham Fisher, who is the head of branch 1, civil and constitutional law division of the Scottish Government legal directorate, and Gregor Clark, who is the parliamentary council of the Scottish law commission. Good morning, gentlemen. It's very good to see you all. I understand that the minister may want to make an opening statement. Thank you to members and everyone else who gathered here this morning. I wanted to make a few brief opening remarks to set the context, if I may. First of all, I thank the Scottish Law Commission, which is represented by Gregor Clark, for the enormous amount of work that has been involved in getting to this stage—probably 99 per cent—of the work, and to all the members of the SLC who are not here, but who have contributed to that work. The time is, I think, right to bring Scotland's bankruptcy legislation into one place. This will aid the accessibility and understanding of bankruptcy law for practitioners and those affected by it, and in turn save a great deal of time and resource. As the committee knows, the main legislation for consolidation is the Bankruptcy Scotland Act 1985, which has been heavily amended and, as a result, has lost coherence and structure. Many provisions are inordinately long and numbering has become complex and unwieldy. This bill will put Scotland's bankruptcy legislation in one place, aiding the accessibility and understanding of bankruptcy law for practitioners and for those affected by it. Over time, it will save both time and resource for everyone using the legislation. The substantive changes to bankruptcy law by the Bankruptcy and Det Advice Scotland Act 2014 are fully implemented and, in effect, from 1 April last year, providing a good opportunity to bring the legislation together. Further delay, convener, would waste an opportunity if the consolidating work done by the SLC is superseded as the law is gradually amended over time. We are, in addition to our gratitude to the SLC, very grateful for the time that members and clerks and the Scottish Parliament have spent in the scrutiny of the bill to date and the approach that has taken in communicating relevant issues with the drafter and with the Scottish Government. The feedback from stakeholders is fair to characterise us as having been broadly positive, namely that there is a consensus, a wide view in recognising that the action in bringing together the statute book into one document is necessary and timely. I suspect that that has outlined the rationale for the consolidation and our questions will be started by John Scott. I am sure that we will want to know how it fits into the wider policy. Good morning, minister, and good new year to you and your officials. Minister, how does the bill relate to the Scottish Government's wider policy objectives on bankruptcy? It is a consolidation bill, so the purpose of the bill is to bring the law into one document. It relates to the wider purpose of our bankruptcy law in reflecting a balance between the interests of debtors and creditors. By having the provisions in one document, it will do a couple of things. First of all, it will, as I have said, provide much-needed simplicity for those who need to refer to the law. Secondly, I think that it demonstrates the importance that the Scottish Government attach to bankruptcy law and the importance of having it accessible that we are devoting quite a lot of time and effort between us all to that task. If this were a fringe activity, we would not be here, we would not be doing this. The last thing I would say is that when I was myself in private practice and the practitioner, I spent countless hours poring over the Bankruptcy Scotland Act 1985, which followed in itself from a royal commission, as I recall. Then, when the 1993 act came in, things became a little bit more complicated. Fortunately, I escaped from private practice before the Bankruptcy Diligence Act 2007, not to mention the Homeowners and Debtors Protection legislation, and I brought up the bad-ass bill, as it is known in the streets. To have so many pieces of legislation that constitute the law in Scotland relating to bankruptcy makes no sense at all. A simplicity accessibility of the law for everybody in Scotland, not only practitioners but users, is inherently a good and sensible thing. We have heard about the difficulties facing users of the current Bankruptcy legislation, given the wide range of reforms introduced by both the Bankruptcy and Debt Advice Scotland Act 2014, or bad-ass, as it is known in the streets, and by other amending legislation over the years, which you referred to yourself, minister and your own travails with that legislation. Do you not think that users of the Bankruptcy legislation therefore would not have benefited from a consolidation exercise taking place earlier as part of the 2013 bill? I think that we have proceeded in the correct way. It was necessary for us to bring forward the Bankruptcy and Debt Advice Scotland Act 2014. It was sensible that that was done first, and it was planned for a long time. The reforms, I think, were necessary. They had widespread cross-party support. Had we brought in the consolidation act before that, it would immediately have become, if you like, to some extent out-of-date, because it would then have had to have been reformed by the 2014 act. I think that the order in which things have been done, although not as quick as some may like, including myself as a minister from time to time, I have to say, and the time that it takes for Governments to do things, but be that as it may, there is a reason for this. It is a highly complex thing to do to consolidate legislation. There are many aspects, some others of which we will no doubt come on to in relations with the UK in relation to the law of debt. Although it has been a long time coming, the sequence of law reform first and then consolidation was the correct one, and perhaps I could add that that point has a further validity when one reflects that, although there are already identified several ways in which the bankruptcy law needs to be further reformed, none of which I would describe as particularly significant. In other words, what we will do by passing a consolidated piece of legislation should be to leave a bequest or a legacy, which will have some utility for some time to come, although of course there will be amendments to it, but none are contemplated so far as I am aware, which are what I would categorise as a major or hugely significant in nature. I have answered it in the way that I have seen appropriate, but I do not know if Mr Clark or Mr Fisher would have anything to add to the timing issue. I think that there comes a point when you have to decide to go for it. In this area of law, a lot of changes have happened in recent years. I am surprised that practitioners can actually manage to use the existing law efficiently. It must take a great deal of time just to construct text for themselves. I think that that was very much the moment. Obviously, the consolidation could not immediately follow in the 2014 act, because there was so much work still to be done in bringing that material into the bulk of the consolidation, but we progressed with considerable speed, considering the scale of the changes. You have explained, minister, the reasoning behind the approach that you have taken and the consequential approach in terms of legislation. Is there still a danger of confusion among stakeholders, given the recent changes that have been introduced as part of the 2014 act, and it is still following hot on the heels of that? All the changes in the 2014 act will, as I understand it, be brought into force by April last year. That is right. Yes, April last year, the first of April. That is right. Given that this bill, as I understand it, intended to be commenced in April next year, there will be sufficient time for practitioners to garner practical changes in their applications and procedures, for example, in IPs at work, consequential upon the 2014 act prior to the consolidation bill coming in. I think that, as Mr Clark has said, the huge difficulty in trying to work out what the law actually is and piece it all together when it is contained in six or seven different documents is that huge effort that must occupy an enormous amount of time, particularly in any case that involves an element of interpretation or difficulty rather than, if you like, a routine case. All that time will be saved. I think that the advantages would substantially outweigh any notional problem and, as I say, the badass act has been implemented in full and will have been so for a full two years prior to the expected date of commencement of this consolidated piece of legislation. I will just check if I have all that correct. The commencement of the consolidated bill is anticipated for November this year rather than April. The position is that there will have been a significant period of time for the badass changes to have bedded in with practitioners and also some period of time to fully communicate with stakeholders on the impending consolidation bill. The committee has also heard from officials about what was described as a marginal hole that would be created in the law of England and Wales should a section 104 order not be made. That has been a part of the committee's consideration around the timescale for this consolidation. If you are aware of how the order is progressing and what dialogue you and your team have had around the progress around that order. I am briefed about some of the issues involved, but I am not aware of where we stand in relation to practice. Perhaps Mr Fisher with permission could answer that question. Just to say that we have been in on-going discussions with the UK Government on the basis of trying to agree the detail of the section 104 order. That is proceeding in line with the timetables that the Scotland office has set down, as I indicated previously. Obviously, there are a lot of departments whose legislation is impacted by the bill simply because it is making straightforward technical changes to update that legislation in all those different areas. Since DWP, but also a host of departments whose legislation is being amended. That takes some time, but there are no anticipated difficulties in having that agreed. Probably in the next couple of weeks, and we will keep the committee updated on that as the bill goes forward. Thank you. I think that we would like to be reassured that that is on track, but certainly Mr Fisher has described it as a peer-to-peer. I heard Mr Fisher say that a lot of departments, and he was referring to Westminster departments in making that reference, were impacted. I am sure that there is goodwill and a willingness to work with the Parliament here. What is the practical effect if there is a gap between the law in Scotland as affected by the succession bill being changed and the 104 order taking place at a period after it comes into operation? What is the practical effect? I mentioned before in my evidence that the intention is very much that there will not be any gap in timing and that the 104 order will have effect as planned and has been scheduled on the same time scale as the bill. I mean that there is no intention to commence the bill before those arrangements are in place. I am absolutely certain that what you say is correct today, but schedules are schedules. Implementation is another matter. I must press you. Is there a practical effect? If so, what is it if there is a discontinuity? Or is the matter simply one that would be resolved by the commencement order for the succession bill being aligned with the 104 process? Yes. I think that in that eventuality, which I do not think is a significant possibility, but in that eventuality you are right that that could be taken into account in the commencement of the bankruptcy bill. That would mean that there is not a difficulty there with the effect. Thank you. Finally for me, at its evidence session on 17 November, the committee heard about the Scottish Government's plans to lay a package of secondary legislation in the autumn involving stakeholders. One of you could update the committee about the Scottish Government's intention is to work with stakeholders in development of this package of secondary legislation, if a member of your team could help to enlighten the committee in this part. I can say that we work very closely with stakeholders, with the money advice sector, with ICAS, with bodies such as R3, and I had the pleasure of addressing ICAS at its conference not so long ago at Held at Glenegos. We have frequent and deep engagement with the relevant stakeholders, and that has been so for some time. Perhaps Mr Reid could address some of the detail in relation to the subordinate legislation package. We will be working on bringing in subordinate legislation along with the consolidation bill, and within that there will be an opportunity to further consolidate some of the regulations that support the existing legislation. That has been a work-through just now. The schedule will be with due consultation with stakeholders to introduce the regulations in the next parliamentary term after the summer recess, and that would allow for the legislation to be introduced for the commencement of the bill. There clearly has been quite significant changes in bankruptcy law in recent years, which is why we have come to this point of the consolidation. You said that you were fairly confident that in the future there would not be more significant changes to legislation, or at least in the near future. Is there a reason why you think that we have concluded the major changes and that there will not be major changes that reappear in the next couple of years? The basis for reaching the conclusion that there is unlikely to be as significant changes in the next few years as it has in the past is simply that we have made very substantial changes, and we have done so after having had careful reflection and discussion with stakeholders, many of whom have sought the changes that we have made, especially in the money advice sector. Although there are some issues that are still extant and need to be dealt with, I am not aware in relation to bankruptcy law as opposed to law of debt that there are necessarily a huge number of issues that would be regarded as significant. I think that that was the word that I have used. In other words, we have done most of the heavy lifting on the main issues of concern, particularly in relation to measures to protect the family home, for example. I think that most of the major changes have, if you like, been encapsulated in the pieces of legislation that I outlined earlier. Of course, that is simply my view and others may disagree, and that is absolutely fine. Even if I am wrong, we will still, if this consolidated legislation goes ahead, provide clarity, simplicity and accessibility. Therefore, it will be simpler, more accessible to enable those who perhaps have more radical views about bankruptcy form to look at the law in one place, in one document, in the task of seeking to reform that law rather than having to look at a plethora of whole documents. Even if I am wrong, I do not think that that would be an argument against the approach that we are taking. I do not know if anyone else wants to make any comment on that. Assuming that there will be minor changes at least going forward. Clearly, one of the arguments for having this consolidation is that there is now a very clear structure where before it was very piecemeal. Are you confident that we can take that structure and it can be maintained even if there are some minor amendments to it? Yes, I am absolutely confident that that is the case. The structure of the bill starts off with the application for sequestration and the award of sequestration in that. It follows a long established pattern, as I understand it, dating back to, I think, the 1913 bankruptcy act, and if a memory serves me correct, and the 85 act, which follows that model. It starts at the beginning and it works through to the end of the process. There are various minor points about that, but the basic structure of the act starts at the beginning and it works through to the end. I guess that the ICAS or R3 suggests to put the definitions at the beginning. That is possible, but it is not a fundamental change. To answer your point directly, the bill will provide a working tool for all those who need it. It will be useful for those who need it to advise clients, for people who want themselves to do a wee bit of self-research. It will be useful for people who have a reforming mien to encapsulate the law of Scotland in one place. I would be surprised indeed whether there are not to be changes brought in fairly swiftly. One example for that, which I wanted specifically to mention, is that an ICAS has quite rightly drawn attention to the act. Certain changes were introduced through the Small Business Enterprise and Employment Act 2015. That has extended the scope of essential supplies to insolvent businesses, to include IT and communication equipment. As a consequence, there will be a need to consider whether, in order to bring clarity to the law of Scotland in that specific matter, whether changes will be made. I must admit that I am very sympathetic to those changes being made, perhaps in the next session of this Parliament, if legislators then, whoever they may be, think that that is a good idea. I certainly do think that that is a good idea, but that is not a reason for not doing what we are doing now. That is a relatively small change, a minor change. It may not require primary legislation. I do not know, I have not looked into it, but I suspect that it probably will, but it can be an amendment to that. Law reform, sadly or not, does not really matter. It is not a static process, it is a dynamic process. It goes on. This bill, when we pass it, will be amended probably quite quickly, but that does not, in any way, detract from the force of the arguments of having this consolidated bill. I think that some of my colleagues will go back on to structure later on, so we will leave that just now. One of the things that we have been looking at is whether all the relevant legislation has been brought together. We have had witnesses, some of whom totally agreed that it had been, but we have had witnesses, for example ICAS, who have suggested that the debt arrangement scheme should also be included in the bill. I should say that I am a member of ICAS, but I do not consider myself bound by all their views. The points that have been made by yourself and others, minister, that part of the reason for all of this consolidation is to make it easier for users. The ICAS argument is that a user might be considering the debt arrangement scheme, therefore it should be in there as well, even though it is not technically bankruptcy. I just wondered what your thoughts were on that issue. Well, I certainly acknowledged the argument and I was interested to read it early in preparation for this meeting of the way in which ICAS put it forward. I fully understand that, from a petitioner's point of view, why they did so. There is a certain rationale for that, but I think that it is substantially overridden by the fact that the debt arrangement scheme is not a bankruptcy law. The debt arrangement scheme is a method that has been brought forward by Parliament back in 2005 and has been highly successful in allowing people to pay off their debts in full or nearly in full. That is entirely different from bankruptcy. The whole concept of bankruptcy is to provide a process whereby people have relief from their debts. In other words, DAS is a mechanism and it is a species of debt law, not of bankruptcy law. Where we to conclude that DAS should be in the bankruptcy law, the argument would be that the whole of debt law should become part of the consolidated bill. Plainly that would be an impossible task and one that would then conflate the law of debt for the bankruptcy law. If one subscribes to the view, as I do, that we should be and we have taken steps to make it possible and relatively easy for people to pay off their debts in full, rather than seek to have relief of their debts and be discharged from the debts without paying them, it is logical to say that that debt law is entirely different in principle from bankruptcy law and should not be treated as it were part of bankruptcy law. I think that that is the primary reason why I think I cast, although I understand entirely their arguments, a may want to reflect further on those issues. I think that I am correct in saying, and officials would correct me if that was not the case, that R3 took a somewhat different view and did not think that DAS should be consolidated. Moreover, I think that I would be bound to reflect, convener, that at the recent member's debate on DAS, there was a considerable number of opinions expressed from the backbenches, but opinions expressed from a variety of parties that possible further major reform of DAS could be contemplated. That is what I recall was part of the debate there. I would be astonished whether there is not serious discussion about further serious amendments to DAS, and that is very much a live issue and of a significant nature, all designed to try to help people to pay off their debts in full. I think that that is the major reason. Alex, is there anything else that you wanted to add to that? I do not think so. It is possibly worth highlighting the views as well as R3 of Money Advice Scotland, who, from a Money Advice perspective, were quite strongly in favour of keeping DAS aside from the consolidated bill. I just wanted to pick up the minister made the point that debt law is a very large subject. If you were able to tell us—because I do not know the answer to that—whether all of debt law is in fact devolved, and I was thinking in particular as to whether commercial debt law was devolved where it is personal debt law, it would be albeit I recognise that, of course, if we were restating undevolved matters, we would be able to do that in a consolidation bill, but I put that to one side and just answer the general question as to whether all of debt law is in fact devolved, and that might create an issue if one were to bring the whole of debt law together. I suppose that the answer lies in that it is at schedule five of the Scotland Act 1998, but my understanding is that personal debt law is substantially devolved and that corporate insolvency is substantially not. That, broadly speaking, is the distinction, but there is a slight blurring, as so often is the case at the edges. The point that I was trying to make was not really reserved versus devolved. It is that the law of debt encompasses a very wide range of issues that are entirely—we could give you a long list if you want. It is a wrong time since I read the textbooks decades, I think, but happily. It is a much wider topic and it includes areas such as diligence, various types of diligence, which are preceded by bankruptcy, obviously, and it also includes the law of obligations, gratuitous, onerous, gifts and contracts. That is a very wide area of law. DAS really is one vehicle, a species of statute. It is a scheme where people are protected from diligence given the surety of being free from the worry of the sheriff officer at their door or the threat of action being taken to do the full force of the law. It is really a scheme. The idea that it should be part of the bankruptcy bill would, in principle, offend most traditionally educated Scottish lawyers. I do not know if there is anything else to add to coming to traditionally educated Scottish lawyers. I agree that there are some specific reserve matters that are impacted on by the general law of debt. That is a very relevant consideration. I now turn to John Scott. We will take us on to Scottish Law Commission recommendations. Thank you very much, convener. There were two consequential amendments that are needed to the 1985 act, which would have lost sight of when two SLC recommendations were implemented by the 2014 act. Those consequential amendments are proposed to be made via the bill. However, consequential amendments, as we understand it, are not mentioned in the SLC recommendation, so could be viewed as being outside the scope of a consolidation bill. Does the minister intend to explore the alternative route of making these consequential amendments via an order under section 55 of the 2014 act? I have got full briefing here and I have looked at it, but it is probably simpler if Mr Fisher will answer the question if that is permissible. We laid the order on 21 December, so that is now before the Parliament. That is obviously subject to consideration by the Parliament. However, that will be through in time for the end of the parliamentary session, assuming that the Parliament agrees to pass the order. I will ask you briefly what was the Scottish Government's approach to assessing European convention on human rights considerations in terms of the provisions of the bill, which remain substantially unchanged since the introduction through devolution. That might be for me as well. Like any other bill, the bill has to be competent within the test that the section 29 of the Scotland Act sets for assessing competence, and part of that is the assessment of human rights convention compliance with the European convention on human rights. As with any bill, the provisions of the bill were conscious that this was the first time that many of the provisions had been before the Parliament, so we had to consider the DCHR competence of the bill in the same way as any of the other provisions. In relation to the 104 order, as I mentioned before, we see that as part of the package, although the 104 order measures will only be scrutinised and approved by Westminster, they are part of the package, and they are obviously part of the current law. As far as the gaps that are filled in for the law of the rest of the UK, they only replicate the structures in the bill in any event, so the whole thing as a package has to effectively be compliant with the European convention on human rights. As with any bill, the bill has achieved a certificate of competence from ministers and from the Presiding Officer, and the 104 order reflects the same structures and the same consideration. Obviously, the Lord Advocate signed the certificate of competence for the bill, and those structures are reflected in the 104 order. We can say that the bill and the 104 order have both been scrutinised to ensure that they are within competence on the basis of the convention, and we are satisfied with that. That is very clear. Thank you very much. You understand that this is an area of great interest to us, but we welcome your absolute reassurance. We wish we could find it so regularly, to be honest, in other bills that have come in front of us, but we are grateful for your reassurance in this set of circumstances. Thank you very much. I wonder whether I could take you forward to picking over individual words briefly. The first one, I would like to start with the word forthwith, which is in the 1985 act, and has often been changed for reasons that we understand. I have to say two without delay in the bill. Our three have argued that that provides a lack of consistency and could be deemed changed to the meaning, and I wonder whether you feel there is a risk that that might be the case. Yes. We did discuss this earlier, but I think that it may be imprudent for me to relay the terms of the conversation, particularly in the context of the time in which ministers do things. In that case, I will pass to Mr Clark, and perhaps he can express a view. Forthwith, it was felt that the word was better replaced, given that it is not really modern English, so there are rules of plain language and so on not to kick in at that point. The trouble with forthwith is that every day it knows what it means, but no two people can agree. The dictionary, meaning the Oxford dictionary, says that there are two meanings immediately or without delay. To me, it is draftsman, and considering the process of bankruptcy as a whole, the idea of immediacy at every point in what is essentially an administrative process seemed too strict a test. Without delay, in the sense of encouraging people to get on and not waste time, was the better word in relation to an administrative process. 1985 does not use forthwith in a consistent manner anyway. There are all manner of ways of expressing immediacy throughout. It really was not a matter of trying to find some sort of consistency. It has been the subject of litigation. In most places in the bill, it does not matter terribly much. In the one place where it was thought to be of real importance, it has been retained. That was section 22, when sequestration is awarded, because so many things hinge on that. There is no doubt at all that there is a real variety of opinion on what it means in that section, and therefore it was thought that trying to resolve that in the bill was essentially interfering with on-going processes. My own preference is to have a single expression for this immediate situation, but not that immediate. Other people have other ideas. Can I put on the record of this? It is clear that the committee wants to discuss it. I think that our brief discussions have left me with the impression that forthwith is not a word that we have any problems with at all. It may not be the language of the pub or the coffee shop, but it is plainly understood, but people have to think about those things. It is no doubt an issue to which we will return. I really want to pick on some of the words that you have used, Mr Clark. You pointed out that where it has been retained is because there is variation of opinion as to what it means in the context that you have retained it. However, your earlier remarks made the more general point that in relation to interpreting the definition that the dictionary provides for forthwith, that no two people agree what it is. In that you have made that as a general remark, not restricting it to the one place that you have retained it, is there not therefore created the risk that by replacing it in other places where you contend that there is perhaps less debate, there is a danger that at the cost of achieving, at the benefit of achieving internal consistency in the consolidated bill that we have before us, we create potential inconsistency with the preceding legislation, which is precisely what in a consolidation we are seeking to avoid doing. Therefore, if the word forthwith previously existed in what is now being consolidated, but you in your drafting are replacing it without delay, is there not a very real danger that we end up with a consolidation, which some may argue with legal force is inconsistent with the underlying legislation being consolidated? I think that you make a good point. My initial concern was that just the word forthwith was not acceptable any longer in modern English. If the committee are happy with the word forthwith that it is, and those giving evidence are also content and have a desire to retain the word forthwith, then I would have no great unhappiness about putting it back in. It really was very much a feeling that it just wasn't a modern word. Can I put on the record that it remains part of my vocabulary, but that merely proves that I am a child of Edwardian parents, perhaps, who are not in connection with the modern world? However, there we are. Reflects the age profile of this committee with due deference to the younger members. However, I too am content with what forthwith is much as. It allows an almost deliberate ambivalence, a flexibility of interpretation. It is a mistake often made to think that the generations that went before were more stupid, because no longer, as the convener said, the language of the pub loses its meaning. However, I think that there is an elegance in forthwith that allows a suitable interpretation to the circumstances when it is required to be used. I would certainly concede that it does allow for a certain ambiguity. The two meanings are obviously distinct and have been followed by different lawyers and different occasions. No, I certainly wouldn't seek to defend changing the word. I must say that I thought there would be far more protest if I'd retained it. I think that Stuart Stevenson makes the point that we may, by so doing, inadvertently change the meaning of it. That would not be what we should be seeking to achieve in this consolidation. There is a clash between consolidation and modernising language. As you say, a word where there is a genuine ambiguity or what it means probably ought to be retained in a consolidation. I am happy to concede the point from my own personal point of view, but depending on what the decisions might be made subsequently as to whether it should be amended or not. However, from my own personal point of view, I would be happy to go back to using forthwith. I have explained why I tried to replace it in the first instance and why I thought that it ought to be retained in section 22. Thanks so much. I am grateful. I think that we can go on to John Mason, who will be discussing another term, which I think is to fall asleep. I have asked the question, in a sense. In other words, we looked at plain language. In section 2712, it says that where secretion has been awarded, the process of secretion is not to fall asleep. Now I am familiar with the term fall asleep, but it strikes me as a little bit odd appearing in the legislation as a layperson. I wonder if it could be improved upon and clarified. I am certainly not sure that it could be improved upon. The question is whether it should be there at all. Is it spent? Are we justified in just cutting it out altogether? We were not at all confident about that. Does it mean anything? Is it given any meaning? It is in the 1985 act that has been there for a very long time. Nobody has thought of repealing it. It was interesting that the concept was repealed, but more just could it be worded in a clearer, more fuel-consistent way with the rest of legislation. It just jumps out as a phrase, almost a colloquial phrase, but it means something to some legal people. I am not sure that it means something to all legal people. I think that Mr Fisher is very keen to share with us his knowledge of the term falling asleep and the practice of falling asleep, so that should be allowed. I am not keen, but we did consider this quite carefully, as Gregor has alluded to. Section 2712 has been retained. I appreciate that the committee's questions really are a way to make it clearer, but because it refers to the outdated and archaic procedural artefact in the courts whereby cases fell asleep unless and then had to be reawakened by a procedural step, it is difficult to really improve on that without creating doubt that you are setting up some new or referring to some new kind of procedure. That is why we have ended up with simply retaining the current provision. I think that the committee has heard some evidence about that. Obviously, the procedure of falling asleep as a concept in the courts has vanished in the share of court in respect of ordinary causes as long gone. In that sense, we did consider whether the provision could simply be removed altogether, because it no longer has any currency, but because bankruptcies are not ordinary cases in the courts, we felt that it would be wrong in a consolidation to unpick the decision that was taken in 1985 to retain the provision to put beyond out any risk that there might be. If the provision in the 1985 act says that cases do not fall asleep is the one that says that, as a matter of procedure, those cases do not fall asleep, then it would be wrong in a consolidation to remove that. That is why we have left it in the form that it is in. I appreciate that it looks unusual, but that is why we got where we are. I take your point that, in a consolidation, we would not want to change the law. My main point would be that I do really feel that there is not a clearer way of putting that. I certainly cannot think of a clearer way to put it, because it refers to this archaic court procedure, which does not really have any—to explain it in procedural terms, would seem to potentially run the risk of confusing the readers of the legislation further, so I am happy to consider suggestions. Sorry, could I just explore that? I just want to make sure that I have got my mind around this property. Are you effectively saying, Mr Fisher, that, whilst this is a process that would never be used, if it were, under any circumstances, ever to be relevant, then falling asleep is the term that would be used in the archaic process, and therefore it needs to be referred to precisely because that is what it would be called, were it ever to be used. Right, thank you. That is helpful. Thank you very much indeed. Right, I think that there is even more detail from Mr Stevenson. Thank you very much, convener. I want to address, I think, the bulk of my remarks probably to Mr Clark as the drafter and start by focusing on the use of abbreviations. Throughout this committee, thus far, we have managed to avoid telling anyone who is watching what ICAS means. We all know that it is the Institute of Chartered Accountants Scotland, or is it the institution of Chartered Accountants Scotland? Well, there we are, you see, immediately, small doubt. Perhaps, as a matter of general principle, we should spell out abbreviations and respective designations rather than using them. I just wondered what consideration the drafter, Mr Clark, had given to striking the balance between keeping matters concise and making matters clear and unambiguous? Yes. There are certain terms that AIB, which abuse throughout the whole bill, which I think nobody objects to being used, that is a very faded form, because the references occur so frequently that the bill will be half as big again, I think, if you filled the mountain full. This is a device to give certainty in situations where there might be uncertainty, but more than anything else is a device that has been found useful in dealing with the whole question of gender-neutral drafting. If you are not able to use he, she, his, her, him, it is really quite difficult at times, without a great deal of prolixity, establishing or setting out a provision. So many provisions are so straightforward in the 1985 act, and I have noticed in the evidence to the committee that people have said that we should go back to the wording of the 1985 act. Well, fine, except that I can't. I have to avoid the use of he, she. The other thing is, of course, you can avoid it by simply repeating the word, of course, but that leads to quite mind-numbing dullness at times. If a word is repeated too often, I mean, if I could refer you to section 464 of the bill, if that was rewritten, it would read where the creditor neither resides nor is a place of business in the UK. The trustee must, if the trustee knows where the creditor does reside or have a place of business and have no notifications been given to the creditor under section 44.3, right to the creditor, informing the creditor that the creditor may submit a claim under this section, and a male will allow the creditor to submit an informal claim in writing, and then it goes on, the creditor commits an offence unless the creditor shows that the creditor neither knew nor had reason to believe that the statement of claim and so on was false. You get into situations like that. Of course, in other situations, if you simply repeat the noun, you actually create an uncertainty. Section 10.5, for example, translating that, whereafter a debtor application is made before the sequestration is awarded, a creditor concurs in the application, withdraws or dies, any other creditor may, if the conditions mentioned in section 6 are met, notify A, B, the other creditor. Concurs in the application, what does the other creditor mean? We have repeated other creditor, but is he referring to his other creditor? You get into some really quite horrible situations just by repeating nouns. I notice that there have been certain confusions here. The suggestion is made that those terms are introduced for the purpose of the bill as a whole, whereas, in fact, they are introduced for the purpose of the particular section that you are in, just as you might say, call him Bill or call her Agnes and then refer out those names. They are just labels. The drafting, however, is less than ideal here because there are at least two sections where I have not made that point clearly enough. In section 10, for example, I have not pointed out that OC is simply for the purpose of that section, and if that were to be retained, then the sections as a whole would have to be adjusted. There are other sections where it is less than clear sections. In sections 69 to 73, for example, there could be some rationalisation to make things more clear. Having said that, perhaps the device has been used rather too frequently in the bill. I would be content to see it disappear, for example, in section 147, section 163, section 113. I certainly would not be offended by losing it in section 63. In section 69 to 73, putting precise labels in section 69 to 73, there are a whole lot of parties involved. There is the trustee, the new trustee, the trustee's representative, the AIB, commissioners and debtors. The label adds to the clarity of the provision. I would be very reluctant to lose it there, although it could be done without the same ugliness of constant repetition. I feel that this is a device that has to be defended. The draft doesn't need different ways of tackling problems. I would concede that I've probably overused it in the bill and that it could be adjusted. However, for the most part, I think that the cases in which I have used it are correct, and the other problems of construction and so on arise if you remove the possibility of using it. That's something that we will watch with interest how you deal with that as the bill progresses. My constituents have a similar thing in the Doric, where the Aberdynsha farmers look at a pair of shoes and say, fit, fit, fit, fit, fit. I'll leave that one for you. Forgive me from over here. Not, I have to say, the Doric. However, I am looking at section 70, as Mr Clarkas suggested, I might. I must confess the thing that was worrying me was that by the time I've got to 74A, I find at the end of that phrase T, which makes perfectly good sense. If you know to go back, I think to the right place, which is 71, where the first line tells you that T is defined there. The difficulty that I would suggest to you is that by the time you've got down to four and you're just pulling that out of the statute, you don't know where T is defined. I encourage you to think about how we might handle that. I agree entirely with what you said. It had, on rereading it, occurred to me at the same point, and I think that it could be much better done than it actually is done. I think that that makes the point. We're in your hands. I will never claim to be a draftsman or anything. Just a few other matters of how the bill was constructed, the first of which is that other advantages or disadvantages in reordering the bill so that certain aspects are drawn together, for example, the part dealing with moratorium on diligence or the definition of apparent insolvency. Would it be better if they appeared at the beginning? In other words, the sequencing was better. Is that such a major task that it would be beyond contemplation at this stage? It would certainly involve a lot of work, particularly in reconstructing the tables. However, you're never going to please everyone with the order that you pick. Obviously, my choice of order has been subjective, subject to the comments of others while I was doing it. I really do think that everybody will have their own ideas of how to construct it, and while some of them are no doubt excellent, other people who have so far been contempt with the bill are on that very ground going to start protesting it and saying, why not listen to me then. It's one of these situations. I don't think that I've done any damage at all to meaning in the arrangements that I've followed. I've come pretty close to following the existing pattern of the 1985 act. I've gone into the whole process much more urgently than by introducing the cast first and so on. My basic feeling is that you're never going to please everyone, and you could play around a lot with those provisions and moving them about and so on, but you wouldn't necessarily end up with a better bill. Maybe just a couple of other things that have been suggested is a merit in having a new part to cover debtor's duty to co-operate with the trustee and other responsibilities of the debtor in the bankruptcy process. It's distributed around about it at the moment. I'm not absolutely sure just exactly what that would involve and what the actual proposal is. I take the general theme of what you're saying. One thing, if an existing part could be split in two and given new headings and so on, but again, we're into the business of moving things in a way just for the sake of moving them. There is nothing that springs out of me as being an obvious advantage in proceeding as you're suggesting. One of the things that you previously suggested was moving the definition of debt advice and information package to interpretation. I wonder if there were other definitions. I think that the suggestion there was that it would be plucked out of the interpretation section and put in as a second subsection into section 3. I'm absolutely happy with that. It was done originally because section 3 was part of a very large section 5 of the 1985 act. I was so intent on whittling down section 5 that it perhaps went too far. I think that section 3 probably would read better if the definition was taken from the interpretation section and put into that particular section and then was simply a cross-reference to that in the interpretation section itself. Finally, one thing that's been put to the committee is that the trustees' powers to challenge extortionate credit entered by the bankrupt debtor is currently in section 209. It's been suggested that they should be better placed in part 7, which is with powers to safeguard the interests of creditors. Do you have a view on that? I think that I would need time to consider that. I'm not really prepared, as it were. I mean in the sense that I'm not personally prepared at this moment to respond to that point. If that's thought to be something that you'd address and perhaps hear from you later. Super, thank you very much. I'm wondering whether John Scott then would then like to take us on to the implementation of what's before us, please. Yes, thank you, Irina. Back probably to the minister now, but just what future plans are in place to communicate with stakeholders on the consolidation exercise? My understanding is that the councillor of bankruptcy who's here with us today is together with Mr Reid and the Scottish Government and others have been in lengthy and detailed discussion with the stakeholders to get to this point. Therefore, there has been widespread agreement secured as to the need for this bill, the desirability for this bill and indeed as to, broadly speaking, the content, the sequencing and the other important issues that Mr Clark has just explained to us. I think that we are in a fairly good place. The stakeholders are happy, they're content, they're agreed, they want to go ahead. We've looked at some of the details, the fine-tuning, but plainly we want to do two things to continue that engagement so that if they have any further comments to offer, perhaps especially after this session today, convener, in the light of having the opportunity to read the official report in the next few days or the next couple of weeks, they have that opportunity to contribute to the process before it is completed. Therefore, I will ask the accountant of bankruptcy to ensure that that happens, although he will be ahead of me, I imagine, and already in planning to do that. More important, once the bill is passed and becomes law, to ensure that there's full communication, promulgation of its terms to all relevant parties. In my experience, this is a procedure, the engagement between the stakeholders is well established, it encompasses a large number of matters of which this is simply part and is more or less a continuous process. Therefore, I think that we have quite a good relationship with all the stakeholders established and that will continue and their view frankly will be mostly as soon as you can get this on to the statute book the better. Thank you. We can take it that discussions have taken place with organisations about the implementation of the bill, such as the Scottish Courts and Tribunal Services, and if not, they are in hand to take place. There's actually a meeting with the Scottish Courts about court rules imminently, actually, within the next two weeks, I think, because it's the meeting date, but it's absolutely in the diary. Will the guidance be available or what guidance will be available for stakeholders and members of the public on the bill that will be issued in due course? That's a good question, which Mr Reid will answer. We use the AIB website as a conduit to publish that type of information. We've already had information about the draft bill on their irrelevant links. I think that I mentioned at the last session that we are now moving into a series of stakeholder events that we have hold across Scotland, and we will be highlighting the progress on the bill at that stage. Clearly, as the bill progresses and hopefully becomes enforced, we will most certainly be putting announcements out about that, along with all of their relevant publications at the time. Presumably, there is a standard textbook on all of this, which I have to say, most fully, I have never had to read. Is anybody working with the current author, if that's the right word, of the standard textbook to make sure it's out there? We have notes for guidance, which accompanies the legislation. That will be updated because clearly the references will change. There will be a lot of work going on in terms of AIB systems that will ensure that everything is updated for the commencement. Most certainly, one of the aspects of that will be the notes for guidance that AIB publish for petitioners, which will need to be overhauled. That work will continue in time for the commencement of the bill. Discussions have taken place with stakeholders in the public, private and voluntary sectors to understand the financial impact of the consolidation exercise on their operations. I believe that the AIB has made significant effort to make all stakeholders aware of the consolidation of the bankruptcy legislation, including those to which Mr Scott alludes, who are perhaps not so directly affected as the bodies representing insolvency petitioners, who are, of course, intimately concerned with the manutii and the detail of it in every respect. I am assured that the AIB reaches out to wider stakeholders. The impending consolidation of the bill has been highlighted through a news release, for example, on the AIB website in various stakeholder meetings that the AIB is involved with. I want to stress that those are all very important matters. It is absolutely right and helpful that they have been raised by committee because the law is just words on a page. It has to be communicated to everybody effectively, whatever law it is, and there has to be practical guidance. I have, in previous years, utilised and made use of the account of the bankruptcies notes for guidance to practitioners and insolvency petitioners when I was in practice. They are extremely useful and they flesh out the principles that are set out in the statute and turn them into a comprehensive tool through the guidance. I think that practitioners value the guidance. Although there will need to be changes to it, much of it will be for the form of renumbering sections and renumbering references to sections, for example, and related to debtors offences, for example, or the list of assets and liabilities. The numbering of the sections will change. Therefore, the standard pro-forma documents, some of which are set out in the guidance, as I recall, will all have to be changed. Those are essentially administrative or clerical matters, convener, but none the less are very important ones. Between, if you like, the passing of the legislation and the commencement, there should be sufficient time for all of this work to be done, but I would stress that the I.B. is on the case more or less all the time with the stakeholders, and it is highly important that that should be the case. I am satisfied that it is the case. Thank you. Excellent. Thank you very much. I think that Stuart Stevenson has one final question. Minister, this is only the second consolidation bill that the Parliament has dealt with since 1999, and I just wondered if you had any reflections on the process that would be of value to put in the record at this stage. Well, I am very pleased that we are proceeding with this piece of legislation. I suppose that I am encumbered with experience, which always risks the possibility of me professing to more knowledge than, in fact, I possess, but it is certainly needed in bankruptcy. There is no doubt about that. Indeed, I very much hope that, where it is required, in other areas of law, we can see more consolidation bills coming forward. The lion's share of the work has been carried out by the law commission and others working with them, and it has taken quite a long time to get here, but this is not something that I think can be rushed. I think that as the discussion this morning illustrates that there are so many matters of importance that may appear arcane or of a technical nature to the public. I do not imagine that the official report of this morning's proceedings will hit anybody's bestseller list any time soon. However, it is extremely important that the law is accessible and available to the people of Scotland. That is one of the roles that Donald Dure said should be one of the work-a-day functions of this Parliament, and he is absolutely correct in that respect. I think that the procedure in this bill should, I hope, be a model for future bills, and I am certainly satisfied that there should be more consideration given to what next needs to be done. In that respect, we will continue to be substantially guided by the Scottish Law Commission. Thank you. I think that that draws us to a conclusion. Can I thank the minister and his advisers and just briefly suspend this meeting to allow them to leave us? Well, unless they do. Forgive me, minister. I may be able to take that back. No, I am very happy. Thank you very much to all members, and I say that I have other ministerial duties to which I must attend, forthwith. Indeed. I will briefly suspend this meeting. Thank you. Resuming, agenda item 4, instrument subject to affirmative procedure. No points have been raised by our legal advisers on the dogfowling fixed penalty Scotland order 2016 draft. Is the committee content with that instrument, please? Gender item 5, instrument subject to negative procedure. Again, no points have been raised by our legal advisers on the food information miscellaneous amendment Scotland regulations 2015, SSI 2015 410, nor on the public service vehicles registration of local services, Scotland amendment regulations 2015, SSI 2015 420. Is the committee content with these instruments, please? Gender item 6, instruments not subject to any parliamentary procedure, and no points have been raised by our legal advisers on the Tribunal Scotland Act 2014 commencement number 3, order 2015, SSI 2015 422, nor the act of sedurant sheriff rules, sorry, sheriff court rules amendment miscellaneous 2015, SSI 2015 424, nor the welfare fund Scotland Act 2015 commencement order 2015, SSI 2015 428. Is the committee content with these instruments, please? Gender item 7, is the enterprise bill, and under this item the committee is invited to consider the powers to make subordinate legislation conferred on Scottish ministers in this UK parliamentary bill. Briefing paper has been provided and sets out the relevant aspects of the bill and comments on their effect. Does the committee agree to report to the lead committee that it is content with the delegated powers conferred on Scottish ministers in the bill and with the procedure to which they are subject? Does the committee also agree to draw to the attention of the Economy, Energy and Tourism Committee that the legislative consent memorandum does not explain why the regulations that may be made by the Scottish ministers under the proposed new section 153A of the Small Business, Enterprise and Employment Act 2015 could extend to the Scottish Parliamentary Corporate Body as a relevant Scottish authority for the purposes of these regulations? That is by virtue of the provision in the new section 153B sub 5. That completes that item and I can move this committee into private.