DPLR/S5/17/10/A

DELEGATED POWERS AND LAW REFORM COMMITTEE

AGENDA

10th Meeting, 2017 (Session 5)

Tuesday 21 March 2017 The Committee will meet at 10.00 am in the Adam Smith Room (CR5). 1. Bankruptcy (Scotland) Act 2016 - Subordinate legislation: The Committee

will take evidence on the Bankruptcy and Protected Trust Deeds (Miscellaneous Amendments) (Scotland) Regulations 2017 [draft] from—

Paul Wheelhouse, Minister for Business, Innovation and Energy; Graham Fisher, Head of Branch 1, Constitutional and Civil Law Division, Scottish Government Legal Directorate, Scottish Government; Carol Kirk, Policy Review Team Leader, Accountant in Bankruptcy.

2. Bankruptcy (Scotland) Act 2016 - Subordinate legislation: Paul Wheelhouse, Minister for Business, Innovation and Energy to move—S5M-04390—That the Delegated Powers and Law Reform Committee recommends that the Bankruptcy and Protected Trust Deeds (Miscellaneous Amendments) (Scotland) Regulations 2017 [draft] be approved.

3. Contract (Third Party Rights) (Scotland) Bill: The Committee will take

evidence on the Bill at Stage 1 from—

Ross Anderson, Faculty of Advocates; John MacLeod, Lecturer in Commercial Law, University of Glasgow;

and then from—

Kenneth Rose, Partner, CMS Cameron McKenna LLP; Karen Fountain, Partner, Brodies LLP; Jonathan Gaskell, Legal Director, DLA Piper; Karen Manning, Senior Associate, Burness Paull;

and then from—

Professor Hugh Beale, Professor of Law, University of Warwick.

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4. Instruments subject to negative procedure: The Committee will consider the following—

Non-Domestic Rates (District Heating Relief) (Scotland) Regulations 2017 (SSI 2017/61); Protection of Seals (Designation of Haul-Out Sites) (Scotland) Amendment Order 2017 (SSI 2017/63); Representation of the People (Absent Voting at Local Government Elections) (Scotland) Amendment Regulations 2017 (SSI 2017/64); Local Governance (Scotland) Act 2004 (Remuneration) Amendment Regulations 2017 (SSI 2017/66); First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Amendment Regulations 2017 (SSI 2017/68); First-tier Tribunal for Scotland Tax Chamber (Procedure) Regulations 2017 (SSI 2017/69).

5. Contract (Third Party Rights) (Scotland) Bill (in private): The Committee will consider the evidence it heard earlier in the meeting.

Euan Donald Clerk to the Delegated Powers and Law Reform Committee

Room T1.01 The Scottish Parliament

Edinburgh Tel: 0131 348 5212

Email: euan.donald@parliament.scot

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The papers for this meeting are as follows— Agenda Items 1 and 2

Bankruptcy and Protected Trust Deeds (Miscellaneous Amendments) (Scotland) Regulations 2017 [draft]

Briefing Paper DPLR/S5/17/10/1

Agenda Items 3 and 5

Contract (Third Party Rights) (Scotland) Bill - as introduced

Contract (Third Party Rights) (Scotland) Bill - Explanatory Notes

Contract (Third Party Rights) (Scotland) Bill - Policy Memorandum

Contract (Third Party Rights) (Scotland) Bill - Written evidence received to date

Briefing Paper (private) DPLR/S5/17/10/2(P)

Agenda Item 4

Briefing on Instruments (private) DPLR/S5/17/10/3(P)

Instrument Responses DPLR/S5/17/10/4

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DELEGATED POWERS AND LAW REFORM COMMITTEE

10th Meeting, 2017 (Session 5)

Tuesday 21 March 2017

Briefing on the draft Bankruptcy and Protected Trust Deeds (Miscellaneous Amendments) (Scotland) Regulations 2017

Introduction

1. At today’s meeting, the Committee will be considering the following affirmative instrument:

Bankruptcy and Protected Trust Deeds (Miscellaneous Amendments) (Scotland) Regulations 2017 [draft].

2. The Committee has been designated as the lead committee for the instrument which is part of the exercise to consolidate bankruptcy law.

3. It is within the remit of this Committee to consider consolidation bills as a lead committee and last session the predecessor committee considered the Bankruptcy (Scotland) Bill. This instrument derives from that Bill and accordingly falls within the remit of this Committee.

5. As lead committee, as well as considering the instrument from its traditional technical perspective, this Committee is also required to consider the policy merits of the instrument.

Technical Scrutiny

6. No points were raised on the Regulations when the Committee considered the technical merits of the instrument at its meeting on 28 February 2017. The report on the instruments considered at that meeting can be found here.

Policy Scrutiny

Purpose of the Regulations 7. This instrument amends minor drafting errors in the Bankruptcy (Scotland) Regulations 2016 and the Protected Trust Deed (Forms) (Scotland) Regulations 2016, which were identified during the Parliamentary passage of those Regulations and which the Scottish Government made a commitment to amend. 8. The instrument also amends other minor points raised by stakeholders in respect of those Regulations. The specific amendments are detailed in the Annex to the Policy Note which is appended to this paper at the Annex. 9. The Regulations are subject to the affirmative procedure. If approved by the Parliament, they will come into force on 1 May 2017

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Background to the Regulations 10. The Bankruptcy (Scotland) Regulations 2016 and the Protected Trust Deed (Forms) (Scotland) Regulations 2016 were made in connection with the commencement of the Bankruptcy (Scotland) Act 2016 (“the 2016 Act”). 11. The 2016 Act consolidated the legislation relating to bankruptcy law in Scotland by bringing together enactments on bankruptcy into one statute. Specifically, the 2016 Act consolidated the Bankruptcy (Scotland) Act 1985 and subsequent amending legislation, and also the substantive provisions of the Protected Trust Deeds (Scotland) Regulations 2013. 12. The 2016 Act came into force on 30 November 2016, and applies to bankruptcies petitioned or applied for (or trust deeds entered into) on or after that date. The 1985 Act was repealed when the 2016 Act came into force, but continues to apply to older bankruptcies petitioned or applied for before that date. 13. This instrument amends certain drafting errors in the Bankruptcy (Scotland) Regulations 2016 and the Protected Trust Deed (Forms) (Scotland) Regulations 2016 which were highlighted by the Committee in its 9th Report of 2016. This fulfils the Scottish Government’s undertaking in respect of these amendments, which was given in oral evidence in the Committee’s meeting of 1 November 2016. The Official Report of that meeting is available here. Committee consideration

14. The Committee is required to report to the Parliament on the instrument by 31 March 2017 (40 days after the instrument was laid1).

15. The Minister for Business, Innovation and Energy lodged motion S5M-04390 on 2 March 2017 proposing that the Committee recommends approval of the instrument.

16. The Minister will attend the meeting on 21 March 2017 to answer any questions on the instrument and to move the motion for approval.

17. It is for the Committee to decide whether or not to agree to the motion, and then to report to the Parliament. Thereafter, the Parliament will be invited to approve the instrument.

18. The Committee is invited to approve a report on the instrument for publication.

1 The instrument was laid on 20 February 2017.

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Annex

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DELEGATED POWERS AND LAW REFORM COMMITTEE

10th Meeting, 2017 (Session 5)

Tuesday 21 March 2017

Instrument Responses

INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE Non-Domestic Rates (District Heating Relief) (Scotland) Regulations 2017 (SSI 2017/61) On 9 March 2017, the Scottish Government was asked: Regulation 2 sets out the meaning of “communal heating” for the purpose of the Regulations. Within it, reference is made to “..a building which is occupied by more than one final customer..” Could the Scottish Government clarify what the intended meaning of “final customer” is (in the context), and why it is not considered necessary or appropriate to define this term. Could the meaning be made clearer? The Scottish Government responded as follows: The expression ‘final customer’ is a term of art used widely in connection with electricity, gas and renewable energy. It means the person who purchases heat or hot water for their own consumption from a heat supplier. Therefore, the terms ‘final’ and ‘customer’ take on their ordinary dictionary definitions as it means the last consumer rather than someone who purchases the heat or hot water for onward sale. We think that the meaning is clear from the context and note that, although this term has been defined in some subordinate legislation, it has not been defined in all legislation as it has become more commonly used.