Bankruptcy (Scotland) Bill: Stage 3

– in the Scottish Parliament at on 22 March 2016.

Alert me about debates like this

Photo of Elaine Smith Elaine Smith Labour

The next item of business is consideration of motion S4M-15993, in the name of Fergus Ewing, on stage 3 of the Bankruptcy (Scotland) Bill.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I commend the bill to Parliament and hope that members will support it at decision time.

I move,

That the Parliament agrees that the Bankruptcy (Scotland) Bill be passed.

The Deputy Presiding Officer:

I call Nigel Don to speak on behalf of the Delegated Powers and Law Reform Committee.

Photo of Nigel Don Nigel Don Scottish National Party

I am grateful for the opportunity to speak on the Bankruptcy (Scotland) Bill, although, as I say that, it occurs to me that I may be one of a rare breed who would be interested in speaking on the topic.

This is a rare example of a consolidation bill. The Delegated Powers and Law Reform Committee first had to decide whether consolidation was appropriate; then it had to consider whether the text was clear, coherent and consistent, and whether the law remained unchanged, as it must. The committee found that scrutiny of the consolidation bill was very much in keeping with the other work that we carry out, as we are used to considering technical and complex legal matters.

Like the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill, the only previous example of a consolidation bill, which was passed back in 2003, the Bankruptcy (Scotland) Bill was introduced late in the session. The committee was able to undertake the necessary scrutiny of the bill in the short time available, but it should be noted that we were fortunate that we did not on this occasion need to consider a large number of Scottish Law Commission recommendations, as those would have made it much more challenging.

There are other areas of law that would benefit from consolidation. Indeed, the committee recommended last year that the law on succession, some of which dates back to the 16th century, should be consolidated. That is another area of law that has widespread impact.

Photo of Christine Grahame Christine Grahame Scottish National Party

I congratulate Nigel Don on the DPLR Committee’s work. Does he agree that the Standards, Procedures and Public Appointments Committee’s recommendation that there should be two Justice Committees—a road that we have already taken—is entirely flawed?

Photo of Nigel Don Nigel Don Scottish National Party

I hesitate to say that anything is “entirely flawed”, but I will come on to the remit of my committee and what we might do in future, if the member will bear with me.

I am grateful to our clerks and legal advisers for their painstaking work. I also recognise and put on record our appreciation of the essential role of Gregor Clark as draftsman for the Scottish Law Commission, and the invaluable evidence of the Minister for Business, Energy and Tourism, the Accountant in Bankruptcy and Scottish Government officials.

We also received evidence from practitioners. Their time and effort was very much appreciated. Not only did they challenge some of the proposals but in the process they also reassured us that the rest of the draft bill was fit for purpose.

I want to reflect on the changed remit of the committee. When I became convener of the Subordinate Legislation Committee in 2011, we looked only at subordinate legislation and the delegated powers in bills. Our remit has subsequently been expanded to allow us to progress non-contentious bills that are drafted by the Scottish Law Commission and to allow us to consider consolidation bills such as the one that is before us.

That has enabled the Parliament to do more. Three bills that would otherwise probably not have been dealt with have been fully considered and progressed to royal assent. I know that the Scottish Law Commission is grateful that such a mechanism now exists, but I note in passing that there is a risk that it will tailor its work to my committee’s remit rather than the wider reconsideration of the law that would obviously be more appropriate.

The committee’s revised remit has enabled us to address contract law in the Legal Writings (Counterparts and Delivery) (Scotland) Bill, the law of succession and the law on bankruptcy. The list gives me a clue as to the range of other legislation that it might be appropriate for the committee to consider, for the issues are all part of what is termed “private law”. Given that the pressure on the Justice Committee will never go away, as that committee’s convener has just said, I suggest that private law might be an area in which the Delegated Powers and Law Reform Committee might in future help the Justice Committee out a bit further.

I want to reflect on the committee’s membership and our way of working. As a legislature, the Scottish Parliament enacts just over one statute per month but almost one statutory instrument per day. The Delegated Powers and Law Reform Committee considers each and every one of those instruments. Members will know that we are not concerned with the merits of the policy but must consider the instrument to ensure that the powers that it provides will do what the policy describes. We worry about the technicalities—all of them.

We are the Parliament’s engine room. That is not everyone’s cup of tea, of course, and I have no doubt that in times past the whips have found that the mere threat of sending someone to sub leg has been enough to bring some recalcitrant MSPs back into line. However, we need the right people to don the legislative boiler suit, and those members need to be prepared to work collegiately.

Photo of Nigel Don Nigel Don Scottish National Party

Certainly, from a member of the committee.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I absolutely empathise with the convener in what he is saying. Will he acknowledge that we are also the guardians of the English language and that one of our greatest achievements in this session has been to rescue the word “forthwith” from legislative oblivion?

Photo of Nigel Don Nigel Don Scottish National Party

The member makes a perfectly fair point, which will be explained if anyone cares to look at the Official Report. We had quite a lot of discussions about “forthwith”; we decided that, although it was not a word that one would probably meet in the pub, it was one that we all understood and should not be replaced.

Let me return to my point about needing the right people to don the legislative boiler suit in the Delegated Powers and Law Reform Committee. It occurs to me that, when we are trying to apply a chisel to the machinery of legislation, it is important to know that the member who is wielding the hammer is on the same side. I thank my colleagues on the committee for working in that way.

Let me return to the bill. I reiterate that we have gone to great lengths to ensure that we have not changed the law. I think that the bill has two uses. First, I suggest to members that it will be very effective bedtime reading, although that is unlikely to be necessary after a hard day’s canvassing. Secondly, for people who actually need to access the substantive law on bankruptcy, the bill has been cunningly designed: it starts at the beginning, goes on to the end and then stops.

The Deputy Presiding Officer:

I have had an unexpected bid to speak in the open debate. I call Malcolm Chisholm.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I want to say just two things. First, I welcome the bill and the principle of considering consolidation bills. However, the real reason that I rise is because on this, my last day of legislating in the Parliament, I am reflecting on my first day of legislating, in 1992, when the United Kingdom Parliament was considering the Bankruptcy (Scotland) Bill. That bill amended the Bankruptcy (Scotland) Act 1985, so no doubt it features somewhere in the bill that is before us today, although I cannot say that I have read every word of it.

That memory made me reflect on two things. First, we do stage 1 of bills much better than the UK Parliament does. Secondly, let us just say that the UK Parliament used to do stage 2 in a slightly different way. In my first month in the UK Parliament, we sat literally until dawn listening to Donald Dewar and others giving speeches of an hour or more on one or two lines of the bill that I mentioned. Perhaps that was a bit extreme in one direction, although perhaps sometimes we go to the other extreme at stage 2.

I certainly welcome the bill, and I thank you, Presiding Officer, for allowing me to speak.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I thank Nigel Don for his comments, and I thank you, Presiding Officer, for allowing me to speak in support of the Bankruptcy (Scotland) Bill.

Almost 13 years ago to the day, the Parliament passed the previous consolidation bill, which became the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, as Nigel Don said. Consolidating legislation and tidying up the statute book is good practice, and I am delighted that the Bankruptcy (Scotland) Bill has progressed through stages 1 and 2. I hope that we will not have to wait for 13 years for the opportunity to arise again. If I have anything to do with it, that will not happen.

Malcolm Chisholm referred to Donald Dewar. Donald Dewar once remarked that Scotland was the only country in the world that had its own legal system but lacked a legislature. One of the functions of a legislature is to bring the law up to date. Although the Bankruptcy (Scotland) Bill will never be the talk of the steamies, it is nonetheless extremely important for many reasons, which I want briefly to canvass.

Over the years, bankruptcy legislation has been so heavily amended that it has lost its coherence and structure. The numbering of the sections in the Bankruptcy (Scotland) Act 1985 had become complex, unwieldy and inordinately long—I know that because I used to use that act as an insolvency practitioner in the legal profession many years ago. Now is the right time to update the statute book in the area.

The purpose is to bring Scottish bankruptcy legislation into one place and improve accessibility. That will make things incredibly easier and simpler for practitioners who use the legislation day and daily and for those who are affected by the law to understand what it is. Ignorance of the law is no excuse, so it is our duty to ensure that it is possible to acquire knowledge by reading one document rather than a plethora of documents.

We have worked closely with stakeholders, who have given valuable feedback on the proposals. That work went back to August 2011, when the Scottish Law Commission published its consultation paper on the consolidation of bankruptcy legislation in Scotland. It made a number of recommendations following responses to that consultation. Virtually all those recommendations were implemented by the Bankruptcy and Debt Advice (Scotland) Act 2014, which, as members know, is known on the streets as the BADAS act. That allowed for a straight consolidation of the existing law in this bill.

The evidence that was provided through the Delegated Powers and Law Reform Committee’s scrutiny highlighted widespread support for the bill. I thank that committee, its lawyers and it officials for their scrutiny and approach in communicating relevant issues with the drafter, the Scottish Government and all the individuals who submitted their views.

The exchanges between the committee and the Scottish Government have always been very positive and constructive. That approach improved the bill and enabled it to move smoothly and efficiently and to avoid stage 3 amendments, which I am sure is appreciated by many members.

I am also grateful for the Scottish Law Commission’s work. In particular, I am grateful to Gregor Clark, who led on drafting the bill. The task that has been involved in consolidating the legislation has been enormous—I mean that—so I very much appreciate the huge amount of time and effort that has culminated in that good work.

I look forward to the bill receiving royal assent if it is passed and to its commencement, which we plan for 30 November this year.

As well as extending my gratitude to Nigel Don for his great work as convener of a busy committee and given that it is possible that he may not be returned to the Parliament in the next session, I want to say a few words by way of tribute to him, in case that is the scenario.

Nigel Don’s very wide experience of life and work has informed his substantial contribution to the Parliament over two sessions and the past nine years. He is always rational and never personal, and he has always played the ball, never the man. Every contribution he has made has been well informed and closely argued, sometimes probing—gently, perhaps, but deftly and with great effect—the case that the Scottish Government has put on any particular occasion.

Much about politics is partisan—perhaps too partisan—but that has never been the case with Nigel Don. If I may say so, he is the least political politician that I have ever known in this place, and I am sure that all members present will join me in wishing him well—as I do forthwith. [Applause.]

The Deputy Presiding Officer:

Many thanks, minister. I note your particular skill in sneaking in some unparliamentary language in an allowable way.

The question on the motion will be put at decision time. I now suspend the meeting until 2 pm.

12:50 Meeting suspended.

14:00 On resuming—