I welcome members to the 32nd meeting in 2015 of the Delegated Powers and Law Reform Committee and asked members to switch off their mobile phones, which I am going to do as well myself. I do apologise when it's decided to behave. I'll stop it. It's all right, I am there. Thank you. It's proposed that the committee takes agendas, items, numbers 10 and 11 in private. Item 10 will enable the committee to consider a draft report on the Police Act 1997 and the Protection of Vulnerable Groups, Scotland Act 2007, remedial order 2015, SSI 2015-330 in private. Item 11 will enable the committee to consider the evidence that's heard on the burial and cremation Scotland bill. Are we content to take items 10 and 11 in private, please? Thank you. Item 2, the Bankruptcy Scotland Bill. Our next item is oral evidence on the Bankruptcy Scotland Bill. I welcome from the Scottish Government and the Accountant in Bankruptcy Richard Dennis, who is the chief executive officer and the Accountant in Bankruptcy. Alex Reid, head of policy development at the Accountant in Bankruptcy, and Graham Fisher, head of branch 1, Civil and Constitutional Law Division, Scottish Government legal directorate. Good morning, gentlemen. It's good to see you again. I invite members to put questions and actually I'm starting. Gentlemen, the Bankruptcy Scotland Bill will consolidate legislation dating back over the past 30 years. Given that most of that legislation is in fact fairly recent, why is there a need for some consolidation, please? Well, I don't think that the age of the legislation is necessary a question when it comes to the value of consolidation. The value of consolidation is how many reforms and changes have been made in the initial legislation, how easy is it actually to use. In fact, given that we've just actually completed what might be the most radical reforms to personal insolvency this century now, it's a particularly good time for consolidation. If we consolidate now, the bill, the ease of use, the modernisation will be available for on-going years. I think that just after a period of major reform is a good time to consolidate, rather than necessarily a bad time. Thank you. Can you provide any examples of the practical difficulties associated with using the current legislation? Possibly. I'm uniquely qualified to give you some examples of the practical difficulties. Members of the committee might remember I was appointed at the Accountant of Bankruptcy in April, coming to Lee to use the new legislation in its current state is very difficult to follow. If you're talking about, in fact, I already used the draft of the consolidation bill, rather than the existing legislation when I need to look up queries in the bill. I think that consolidation as a whole is about making legislation simple and modern up-to-date, dealing with inaccuracies, making sure it's easy to use, not only for the specialists, but also for people more generally. It is extremely difficult to use the existing legislation. I think that there's some very detailed material set out in the background paper in paragraph 6 and 7 about the overall approach to consolidation and why it's valuable. That certainly applies with particular imports, given how many times have changed the 1985 act. If you were trying to read it and follow through the legislative requirements for how it might affect you at the moment, I think that you would struggle. You would need lots of different documents on the table in front of you, because you have been able to pay for one of those electronic consolidated versions, which some of the professionals have access to. Mr Dynishaw said that we've just undertaken our umbedge of reform of the law in this area, and that's self-evidently so. I wonder at what point in the cycle we discover that there is a need to tweak legislation. Has put it to you that perhaps the time where the need to tweak legislation becomes most evident is as one implements immediately after a major reform, where as people engage with the changes they realise there are changes. Therefore one might conclude if that statement is, across the broad experience, correct as to whether there is not therefore a case for waiting to see what further requirements there are following major reform for further change before doing consolidation. I'll ask my colleagues to come in a moment on that. My particular perception is that we did an awful lot of very radical things in the badass act. We will want to see what the impact of compulsory financial education was on certain classes of debtors. I think that there was a member's debate on the use of the moratorium, which we also introduced around a fortnight ago. The minimal asset process is new and fundamentally different. The work of the common financial tool is also a significant change. We will want to see how those changes are vetted in and whether they deliver what the Parliament was hoping they would deliver. I would also say that if you go out to the wider stakeholder community, they are very keen for us to stop changing things for a while. After a period of major reform—the committee will know that there have been four or five major bankruptcy acts in the past decade—the stakeholder community out there needs time to adjust to all the things that have been done. It is highly likely that, even if a tweak to bankruptcy legislation becomes desirable, there are good reasons for thinking that we will leave it a few years before we do it, not least the question of parliamentary time. I don't know if colleagues want to add. As we mentioned, we had a Scottish Law Commission report in 2013, and then the Serious of Changes in the 2014 act. There is one issue in particular about the preparation of consolidations, where, if the work is not done, it can end up being lost. There is obviously detailed technical work that the drafter has to do to put the consolidation bill together. There is always a danger with consolidation bills that, if you wait, that work becomes lost because of further changes to update the law, which can come from across a range of different areas, not just necessarily, for instance, the Scottish Government's proposals to change bankruptcy law, but other ad hoc consequential amendments that there are other legislation in other areas might be making to the particular act in question. There is always a danger that you wait for the next set of policy reforms. The argument is, and I am prepared to accept it, that, after a major reform, there is normally a period of quiet while we wait to see whether it is appropriate to make further changes in the light of that reform, and that is probably the best period to make a consolidation if you are going to do it. Is that essentially the point that is being made? Essentially, it is one thing, for instance, when making the criminal procedure, consolidation, that policy changes were made before the consolidation provisions were made. I think that maybe just one other thing is that consolidation was an option at the time of the Bankruptcy and Debt Advice Scotland Act, as that act was implementing just about all of the SLC recommendations. The decision was made to enable those changes to be implemented and have a time to settle in before consolidation, and that is the reason that consolidation is being taken now. Thank you. I think that that is pretty helpful and comprehensively got to the next set of questions that we were going to ask on timing. John, we have probably got to your section, please. OK, thanks, convener. As I understand it, the Scottish Law Commission had 38 recommendations in its 2013 report, and I think that the majority of them have already been introduced. One change that seems to be happening here is concerning the protected trust deeds. Can you explain why it is considered appropriate to bring the protected trust deeds within this bill, which I understand is restating what was in secondary legislation to become part of primary legislation? Yes. Obviously, what the bill does principally is to consolidate the material on the Bankruptcy Scotland Act 1985 as it has been amended from time to time, and the bill obviously takes in the other legislation that is amended in 1985 act directly, and then adds in the protected trust deeds regulations. That was recommended in the SLC report, recommendation 38. In particular, I think that the commission note that the Law Society's view that the protected trust deeds regulations are core to the daily practice of insolvency law, and they took the view that because it is a complex body of law and also too important to relegate to subordinate legislation that it would be useful to include it in the main Bankruptcy statute, and that is what the approach that the bill takes. Certainly, the Government supports that approach. It is considered that protected trust deeds are a major alternate route into insolvency protection, and that is sufficiently important to warrant inclusion in the primary legislation in this area. It might also be worth saying that the provision for protected trust deeds has always been made under the Bankruptcy statute and a schedule 5 to the Bankruptcy Scotland Act 1985 where I have had more detailed provision for protected trust deeds in the past. That is being again kept in the main Bankruptcy statute, and that is the approach that is being taken in the bill. It fits well within the framework of the material that is being consolidated in the bill. At the same time, there is a need in this area to keep flexibility because of changes in the grant of voluntary trust deeds and a set of creditors, which is what those measures regulate. That is also something that is maintained and consolidated in the bill, the powers for the Scottish ministers to change the area by regulations, if necessary. Presumably, they were in secondary legislation consciously for a reason that they were not previously in primary legislation. What has changed? Have they just become more important? I think that the overall framework is seen as being important. Some elements, for instance, the power to set forms in relation to those regulations, will be maintained in regulations, but the overall framework is to be added back. It was a conscious decision in the Bankruptcy and Diligence etc. Scotland Act 2007 to take wider powers to adjust the regulation of protected trust deeds, because of the need to be able to react to changing practices on the ground in the different forms of trust deeds that debtors can grant, advised by insolvency practitioners for the benefit of their creditors. How should anyone decide what goes in primary legislation and what goes in secondary legislation? That is a very good question. I suppose that the overall importance of the framework is in some particular areas. The Delegated Powers Committee is particularly well placed to judge that in terms of what you see from day to day, in terms of forms. I suppose that there are other aspects of legislation, for instance, updating values in legislation 1 that is particularly relevant to the Bankruptcy legislation. I suppose that those measures are sometimes seen as more administrative or minor, although they can be imported in practice as well. Those areas where flexibility is necessary are one reason why you might have things in subordinate legislation. Obviously, the overall effect and the wider framework of the legislation, some of which is being added back into the primary legislation, is something in this area because the protected trust deed effectively has a similar effect to sequestration. That is seen as being put in the primary legislation. I think that it does come back to how far you see full administration bankruptcy, minimum asset process and protected trustees as all similar approaches. They are being the three, in some ways, choices for someone who cannot repay their debts to get debt relief. Why would two of them be in the primary legislation, one of them not? It is trying to bring in some level of consistency. One of the changes that the committee may or may not remember from the 2013 regulations was to change the time period over which contributions were paid for protected trust deeds. What we did in Badas was to bring full administration into the same time period. We tried to make the two options more similar, similar to the use of the common financial tool for both. Increasingly, they are looking like similar options, and it is important that they are treated in the same way in legislation. Continuing with the SLC recommendations, I think that there is one, and its recommendation one was only partially implemented, and 32 and 37, I believe, are related to section 104 order. Can you explain about them and why they have been dealt with separately? In relation to the First Law Commission recommendation, it was basically to remove the words or interest when talking about a writer interest that the debtor has that may vest in the trustee in sequestration. That was considered at the time of the 2014 act and discussed in detail with the Scottish Law Commission. Essentially, there was a concern that if that had been implemented in all of the different areas where it had been considered by the Law Commission that it may have inadvertently led to a doubt in what transferred very much at the margins to the trustee in sequestration when the debtor was sequestrated during the period of the sequestration. It is a fairly technical doubt, but for instance in relation to a hope of succession or a bequest which the debtor may have expected to receive, there was a doubt at the margins that could have led and some of those references may have cast out on whether or not in a peculiar set of circumstances that would have transferred to the trustee in sequestration the way that the Bankruptcy Scotland act intended and that that would have altered the effect. That was considered with the Law Commission at the time and the proposal that ended up going in the 2014 act to stick to just referring to illegal right transferring. That was taken forward in three of the references but not for the others and that was agreed and that approach is maintained in the bill. It was felt a bit safer just to leave it as it was because there might be consequences if it was changed. Yes, exactly. 32 and 37. It is absolutely to address the others. That goes partly to the provision that is included in the section 104 order. I would actually say that it is partly confusing in terms of recommendation 32 because there is no provision in the 104 order that gives effect to that. Essentially, because it has been superseded by the repeal of measures for composition out of Bankruptcy by the 2014 act, what both of those recommendations would have done would have to fix very minor errors. One introduced by the 1993 Bankruptcy act and one by the 2007 act where in the case of recommendation 37, which is the one that would be implemented in the section 104 order, a minor part of that order would make consistent for the law in the law of England and Wales in Northern Ireland. A particular cross-reference in the Bankruptcy Scotland act 1985 in the way that has been amended so that that would introduce a level of consistency on that particular point. That point is left for the 104 order rather than being included in the bill because it deals with the law of England and Wales in Northern Ireland. To clarify for those of us who are not terribly into all the legal side of it, we are not changing the law in England and Wales in Northern Ireland. Is there a consequence of us changing the law here? It is a consequence of us changing the law here, but the 104 order will be changing the law in England and Wales in Northern Ireland and that is precisely what that narrow aspect of it does to fill in that practice. What would that actually mean? The particular example is about concurring creditors who apply for a better application for Bankruptcy and filling in the part of the rule of the law of England and Wales in Northern Ireland, which means that the limitation rules would mean that a creditor's claim would lapse because it had expired over a certain amount of time when the creditor hadn't pursued that. There's provision in the Scottish Equestration Rules to say that those limitation rules don't have effect because the sequestration has been entered into in Scotland. It says that because the Bankruptcies happened you don't have to worry about your creditor's claims ceasing to have effect or they don't lapse because of the rules in the law of England and Wales in Northern Ireland because the Bankruptcy has been brought in Scotland so that effectively puts the rules on hold because the Bankruptcy has taken effect in Scotland. Fair enough, thank you. Just to tie off the 104. The effect of the 104 is not a consolidation but a change in the law. There are three different things that the 104 order does. The first category is of the kind of change that I've just mentioned. It's filling in bits of the law of England and Wales in Northern Ireland where the 85 act previously extended into the law of England and Wales in Northern Ireland. It makes a few free-standing minor provisions of that nature. The other thing that the 104 order does is to amend various statutes that apply across the UK, largely in reserved areas, just to update references to the 1985 act to become references to the bill. The third thing that it does is to fill in a very minor part of Westminster procedure where the bill maintains the powers of the Secretary of State to make various provisions by subordinate legislation in relation to fees on the reserved side. Perhaps just to complete the 104 order, what effect does it have on the consolidation that's before us and the 104 is outside that? If the 104 order does not pass or does not pass in a timely fashion, does that, in any sense, invalidate or require any change to the consolidation bill that is before us or is it essentially incidental? Or, I suppose, more accurately, perhaps consequential on those changes. It is an important part of the package and it's important that the 104 order is made. We've been working with the UK Government for a while for the 104 order to be put in place. It is an important part of the package in order to ensure that the overall package works. The content of the bill doesn't depend on itself on those changes. Just to be absolutely clear, while the 104 order and what it does is important, its passage or non-passage need not have any effect in the consolidation process that this committee and then Parliament is considering, whether it passes or not. Essentially that's right in terms of the content of the bill. Sorry, do forgive me. You're using a weasel word, to come on to explain it. Obviously, it's for Parliament to decide that it's content that the material in the 1985 act has been consolidated in what's followed. Now, as I explained, there are parts of the 85 act which will effectively be reproduced in the 104 order and that's part and parcel of the devolution settlement that those aspects. They are fairly marginal aspects because we've been able to keep most of what is in the 85 act in the consolidation bill together, but there are aspects where, because of section 292A of the Scotland Act on the Restriction and Legislative Competence, the Scottish Parliament can't make provision to change the law of England and Wales just as a matter of the devolution settlement and that's something where the 104 order is the mechanism that is used for that. Am I correct in understanding that, if, for any reason, the 104 order is not made and I'm not suggesting that it won't be, really, then we would drop back to the 1985 act or we would drop back to something pre-that. Would there actually be a hole in the law? There would be a hole in the law of England and Wales and that means that it's a fairly marginal hole in the law but it certainly would be a small workability difficulty in the law and so, yes, the intention is that the package of measures passes including the 104 order. So the 104 is necessary to give the full range of powers and effective law which the package is intended to give and we can't just drop back to the way it was previously written? I suppose if there was some problem in extremism but when we have no reason to expect that it's the case and there are no concerns with the UK Government counterparts about the timescale for the overall package of measures which has obviously been planned for some time but in extremism then, yes, we wouldn't want to disrupt the law without the 104 order. I wonder whether I could then move you back perhaps to the consultation on what we have in front of us and ask to what extent the accountant in bankruptcy and the Scottish Government were consulted about what should be consolidated, what's in there and what isn't in the police. That's it. In terms of what's in the bill and what's not in the bill, I suppose the basic premise from which the consolidation project started was just to consolidate the 1985 act and that was the reason why initially the Scottish Government and the accountant in bankruptcy approached this because it seemed to be valuable to consolidate the 1985 act material and that's very much where the proposal started from. As part of the consultation that the SLC undertook, the proposal to add the protected rustines material was taken up and supported by the Scottish Government so in terms of wider process, I think that's very much the origin of the proposals and I don't think it was ever seriously considered that other material would be added. There are one or two areas I suppose and I think that we would say that the wider law, for instance, the debt arrangement scheme regulations, which are arguably equally significant, in their overall effect to the protected rustines material and where that could be considered, but that's very much seen as not part of the bankruptcy statute and that's never where it's sat in law. I think that's the main thing to see about where the material that's come forward in the bill has come from. Can I just ask, is the accountant and bankruptcy and the Government the same entity for the purposes of this discussion? That's a tricky question to answer. Officially, do we have a separate view? No, we don't. We agree with the Government's view. That's fine. Help will just put that on the record. Thank you very much indeed. Are there any comments or have there been any comments from stakeholders about the answer that you've just given Moom, Mr Fisher? Is there anybody out there who feels that we have missed a trick and we should have done something else? Not that we're aware of. The committee's call for evidence may enlist something that's thrown up, but there's nothing. There's been no proposals that we're aware of. I'm not aware of anything that arose out of the SLC's consultation at the time that you proposed other measures for consolidation in this bill. Thank you. It's good to see the measure of agreement. I think I'm now going on to... Is that right? I'm looking at the competence consolidation. Am I not? Or am I going to John? Are you getting off on that? I think I've covered the point. That's fine. That's okay. If you're comfortable with that, then I am going to John. Thank you. Back to myself then. Yes, please, John. Sorry, I'm confused there. The whole move into more general areas making practitioners aware of and other stakeholders perhaps of this bill as and when it's passed. Will there be work done to update people? Can I ask Alex to deal with this one? I think that the IRB has made significant efforts to make stakeholders aware of the consolidation of this bankruptcy legislation. As examples, we've highlighted through news releases the initial introduction to the Parliament. We've highlighted that on the IRB's website. Probably more importantly, at a wide range of stakeholder meetings that the IRB holds includes the Dead Insolvency Stakeholder Forum, which the progress on consolidation is a regular item for discussion. That forum has key stakeholders from Insolvency Practitioner, money advice sector and creditor sector. We're trying to keep in close touch with all those groups. We're also hosting annual open stakeholder sessions with workshops on a range of topics in Glasgow, Edinburgh and Inverness. They're taking place in January and February this year. That will be another opportunity to communicate the information on the consolidation bill and receive any feedback from stakeholders. The feeling is that people are pretty up to speed at the moment, those who are most interested, so they won't need to be a special push after the act has passed. I would have thought not. I think that people will be up to speed on this. It's a fairly small world to be dealing in. We're talking about the industry part of the sector. There may be between 100 and 140 licences in Insolvency Practitioners in Scotland. Almost all of them will be members of ICAS or the IPA, and the stakeholder communication channels are very easy and very quick with the fee-paid sector. It's slightly harder to get to the free money advice sector, but we have good channels through Citizens Advice Scotland, through the money advice service, the money advice Scotland and so on. There's another separate subject. I realise, obviously, that corporate insolvency is not included in this, because a lot of that, as I understand it, is reserved. Will there be any kind of parallel process for consolidating that legislation? There is a lot of interest amongst our stakeholders in the corporate insolvency world and our plans for that, and I'll pass over to Alex to give us a brief outline of what we're planning to do on that in the next year or so. We have a process of modernisation of corporate insolvency that's taken place. I think that it's correct to identify that that's broadly reserved, although not wholly reserved. There are two main streams of work that are being taken forward in relation to Scottish corporate insolvency, at the moment, through a public services reform order. We are making changes to the 1986 act, as it relates to Scottish insolvency processes, to try and modernise the processes here and to effectively bring them into line with other changes that have already been introduced for practitioners in England and Wales. That will effectively lay the foundation for the modernisation of Scottish corporate insolvency rules. Practitioners have been calling for this for a long time because of the mismatch of the practices for corporate insolvency. That programme of work will be taken forward in parallel with modernisation of rules in England and Wales, with the intention of having revised and modernised rules commencing at the same time. When you say rules, that's not primary legislation. That's not primary legislation. The public services reform order makes changes to primary legislation in the 1986 act, as it applies to the devolved aspects of corporate insolvency. The rules will then be secondary legislation that would cover the relevant processes of administration, receivership and winding up. The other area, going back to this present bill, assuming that it is passed, what will happen then about secondary legislation? Will there be a need for updating that as well? That's part of the intention and the package for when the bill comes into force. Assuming that it is passed, the subordinate legislation will be consolidated. We have done that reasonably recently in relation to the reforms that the Bankruptcy and Data Advice Act 2014 passed, which will help us with the work involved in that. That will mean that there is a set of rules between the bill and the subordinate legislation that points to the bill. Although it might not be legally necessary, that will give a package of measures for practitioners to look at in relation to the effect of the new bill. What kind of process would that go through and what kind of timescale would there be for that? The overall timescale, roughly, for the bill to come into force and granted a fair win would be towards the end of next year, and that would allow the Parliament to scrutinise the package of regulations in order that is necessary in the autumn next year. There is probably any way that we haven't cut up the different provisions that could work in different ways, but there will probably be several different sets of measures to be included in that. Stakeholders would get the opportunity to feed into that procession. Do you anticipate that involving any significant transitional arrangements? There are transitional arrangements provided for in the bill itself, which, by and large, means that the bill will apply for new sequestrations that sequestrations are applied for or for trustees granted after that commencement date towards the end of 2016, as I explained. That would be the transitional arrangement. The current measures will continue to apply to sequestrations and trustees that are in train at the moment. Forgive me. I'm trying to establish and I did use a technical term, so forgive me. Am I right in hearing you saying that after a certain date we'll be on the new regime and up to that point and the point will probably be the date of sequestration we will be on the previous regime? Yes. I mean, I continue to look at the old regime for existing sequestrations, but they'll be the new sequestrations after that date. To come back to my original question, you wouldn't anticipate those that were in the old regime being subject to some of the new rules because they're now in force. That would simply be a clean break. I'm sure that would make sense. That's fine, thank you very much. Stuart, do you have one final question? I do, and it's just about the basically mechanical process. A decision has been made as to what legislative provisions are being consolidated and taken into the consolidation bill, and I'm parking one of four considerations. Let's not go there, we've covered that. I just wondered what cheque independent of the drafter in undertaking this very significant process of lifting from old legislation to new that has been, that covers three things. First of all, has someone independently verified that all the relevant provisions in what is claimed to be being consolidated have been transferred? Secondly, has the cheque included verifying that nothing outwith what is claimed to be consolidated has inadvertently been transferred in the consolidation act? And finally, has someone independently verified that the transcription leaving aside the broader issue of clarifying words has correctly transferred the legal effect to the consolidation bill? In other words, given that someone has sat in a darkened room for a considerable period of time making this transcription from the existing law to the new, what independent cheque has there been on that process? Because I have yet to meet someone who is not fallible. It is a long technical bill, so I very much understand the question. I have certainly been saying that this is a Government bill and the Government is putting it forward. We have looked to the bill and we are happy that it is, from our point of view, a consolidation. I do not want a degree of independence beyond that. You are looking for, but obviously the parliamentary process is part of that scrutiny. I am really independent, perhaps, is not necessarily the word that I am focusing on. I am just someone other than the person who has been doing that. There has been somebody looking looked over their shoulder subsequently, because it is not something that I could do and hand on heart say. I think that it is important that the committee knows and perhaps he is just a little about who functionally, not as an individual named, has looked at that process and satisfied themselves. I think that that is essential to our being able to say to Parliament that this is a proper transcription. As I mentioned, this is a Government bill and the Government is putting it forward. We have put forward any bill, so although it is led by the drafter at the Law Commission, that is essential because of the nature of the consolidation work. It is a Government bill and it has obviously been checked by ourselves and the Government's lawyers. To that extent? Yes, but I am back to the Cuscusodia et ipsus. Cuscusodia is who guards the guards. In other words, the thing that I really want to hear is what separation is between the person who has actually been charged with this lifting out of the existing legislation into the new and the person who has looked at that output. What separation is there between these people so that we have the best possible assurance that somebody has, with a neutral point of view, not part of the process of making that transcription? Given such professional assertion as it is possible to make, the transcription has been correctly undertaken? Yes, certainly. If the Law Commission drafter is the guardian, then as part of our job as Government lawyers and looking at the consolidation, we are lawless to guard the guardians and we have checked the bill to ensure that it matches your three criteria.  It is not as if he goes into a darkened room and does not consult any of his colleagues ever. The SLC did polish a draft bill. In the supporting papers, you will see there is this curious thing called the table of derivations and destinations, which is allegedly there to make it easy for those of us to check that there is nothing in the new legislation that was not in the old legislation and that every bit of the old legislation has been taken forward into the new legislation. There are people out there in the world, unfortunately, who will be spending their time going through the tables of derivations and destinations, and I am sure that we will bring it to our attention if they all have missed something. I just wanted to get it on the record, the question that we will return to on another occasion. Thank you very much. I would like to go back to, and I recognise that it is an element of going back to, whether we have necessarily got everything on the record that you might want to say about the law relating to reserved matters, although we have extensively discussed the 104. Is there any further explanation that you would like to give on how paragraph 7 to schedule 4 of the Scotland Act operates to allow the restatement? We welcome the chance to put that on the record a bit. Thank you. I think that it is set out in the drafter's note in the bill, but it is true to say that in some areas the bill does restate the law in reserved matters, but it is not thereby beyond legislative competence, and that is slightly unusual for bills before the Parliament. The thing to say is that that is specifically permitted by paragraph 7 of schedule 4 to the Scotland Act 1998, and it is specifically provided in that provision in schedule 4 that the law is restated specifically in the main reserved law. For instance, Westminster can go in and change that law as it could before. In wider terms, the tests for devolved legislation in the aim of the bill is otherwise, of course, the consolidation of existing law. In this case, a fairly pure consolidation. Accordingly, there is not a problem from a legislative competence point of view with the bill. Just to flag the particular matters of reserved law in case the law of reserved matters restated in the bill, or principally the provision and preferred debts in schedule 3, and also the recovery of excessive pension contributions and sequestration in sections 101 to 107, and also in some other areas, just by virtue of the detail of the devolution settlement. The great advantage of that approach for a consolidation bill is that, as I mentioned before, it allows the great body of what was in the Bankruptcy Scotland Act 1985 to be transferred to the bill. I am kept together in the one place that is fairly essential for this exercise. I am grateful for you for putting that on the record. Of course, I have to say, as a former student of some of this, but never Bankruptcy, it is awfully useful if it is all in one place, at least at some point in one's studies. Is there anything else, colleagues, that you would like to put on the record? I am conscious that this is partly a putting things on the record session, because I think that we have probably finished with the questions that we had wanted to ask you. If you are comfortable with everything that you were expecting, then thank you very much indeed for your evidence, and I will briefly suspend this meeting to enable us to reorganise. Thank you. To return to agenda item 3, which is the Bankruptcy Scotland Bill, purpose of this item is to consider the Scottish Law Commission recommendations in relation to consolidation in this bill. Of the 38 SLC recommendations, 32 have already been given effect prior to this bill. Of the remaining six SLC recommendations, five have not been given effect to, or not fully given effect to, in the bill for technical legal reasons. Does the committee agree that only SLC recommendation number 38, the inclusion and consolidation of the law on protracted trust deeds, formally falls within the committee's remit for scrutiny? Thank you. Does the committee agree to consider this recommendation in detail at subsequent meeting? Thank you. To return to agenda item 4, which is again the Bankruptcy Scotland Bill, this item is for the committee to consider whether the consolidation in parts 1 to 4 of the bill correctly restates the enactments being considered. Consolidated, and whether the consolidation is clear, coherent and consistent. The definitions used in parts 1 to 4 remain largely embedded in the Bankruptcy Scotland Act 1985, which is the 1985 act. By contrast, the definition of debt advice and information package has been moved to the interpretation section. Does the committee agree to ask the drafter why the approach has been taken of moving the definition of debt advice and information package to the interpretation section of the bill? Certain matters in relation to consistency and clarity of the consolidation have been identified. Does the committee therefore agree to ask the drafter why the subject 2 wording, which appears in section 5 to B1 of the 1985 act, has not been restated in section 2 1 B1 of the bill, and whether the provision as restated is sufficiently clear as regards the qualification set out in section 3 of the bill? Yes. To consider whether replacing the words at the date of the presentation of the petition or as the case may be at the date of the debtor application is made in the definition of qualified creditor in section 7, where the defined term, for example, the relevant date, would make this definition and the definition of qualified creditors clearer to the reader. Does the committee also agree to draw the attention of the drafter to the wording in section 8 1 of the bill, which restates the words a debtor application as any debtor application and to ask for an explanation as to why this change has been made? Draw the attention of the drafter to the lack of consistency in drafting style between sections 11, 1 and 2, and section 12 1 of the bill, which make almost identical provision and to suggest that in the interest of consistency it would be preferable for the same drafting approach to be taken. Draw the attention of the drafter to the lack of consistency in drafting style between subsections 2, 3 and 4 of section 13 and to suggest again in the interest of consistency it would be preferable for the same drafting approach to be taken. It appears that section 166 of the bill goes further than section 74 of the 1985 act which it restates. Section 74 of the 1985 act provides that the apparent insolvency of a company's act company and any other entity in respect of which an act provides that secretation is incompetent may be constituted under section 7. Section 166 of the bill on the other hand extends this also to a limited liability partnership in addition to the other entities. Does the committee agree to draw the attention of the drafter to this point and to ask for an explanation of why it is considered that section 166 of the bill properly restates section 74 of the 1985 act? Section 167b seems to go further than section 72b of the 1985 act which it restates in that it provides for more situations in which a debtor's apparent insolvency will end up when the debts are paid off. Sorry, will end when the debts are paid off. Does the committee agree to draw the attention of the drafter to this point and to ask for an explanation of why it is considered that section 14, no, 167b of the bill properly restates section 72b of the 1985 act? Yes. Section 225 of the bill provides that a sheriff must forthwith award secretation on a petition presented under this section to be satisfied on a number of points. One of the points at section 225d on which the sheriff must be satisfied is that, in the case of a petition by a trustee, one at least one of two specified conditions applies and two, the petition contains a declaration by the trustee that secretation would be in the best interest of the creditors. The equivalent 1985 act provision appears to require the sheriff to be satisfied on either one but not both. Does the committee agree to ask the drafter why section 225d requires the sheriff to be satisfied on both points set out in the subsection while the equivalent provision of the 1985 act appears to require the sheriff to be satisfied on one or other point but not both? Section 22 of the bill provides that secretation must not be awarded by the sheriff if, without delay, the debtor pays off the relevant debts. The equivalent 1985 act provision uses the term forthwith rather than without delay. Elsewhere in the bill, the word forthwith is changed to without delay and, in one case, changed to immediately. Does the committee agree to ask the drafter for further explanation as to why the word forthwith has been changed to without delay in section 23 and elsewhere in the bill and to immediately in section 71a? Yes. And also to ask the drafter on what effect this act is considered to have on the meaning of the relevant provisions and the consistency of the bill as a whole. In section 247, the name of the debtors Scotland act in 1987 is incorrectly given an apostrophe. Does the committee agree to draw this point to the drafter's attention? Yes. The phrase fall asleep in section 2712 of the bill appears unusual. Does the committee agree to ask the drafter to consider whether the use of the phrase fall asleep in section 2712 is sufficiently clear to the reader or whether further explanation could be helpful? Yes. Section 32 of the bill restates section 17b1 to 8 of the 1985 act. However, subsection 9 of section 17b does not appear to be restated in section 32 or anywhere else in the bill. Does the committee agree to ask the drafter for an explanation of whether and where section 17b9 of the 1985 act is restated in the bill? Yes. It appears that the word have in section 464a may be an error and this should instead be has. Does the committee agree to draw this point to the attention of the drafter? Yes. The words as soon as possible in section 23 of the 1985 act have been restated as soon as may be in section 485 of the bill. Does the committee agree to ask the drafter to explain why this change has been made and what effect it is considered to have on the meaning of the provision? Yes. Finally, does the committee agree to draw the attention of the drafter to the wording of section 712 of the bill which restates the words an application as any application and to ask for an explanation as to why this change has been made? Yes. Thank you for your patience. That ends agenda item 4. We turn now to agenda item 5, which is the burial and cremation Scotland bill. It is an opportunity to invite oral evidence on the delegated powers in that bill and I welcome from the Scottish Government Simon Cuthbert Kerr from the Burial cremation team leader at the Public Health Division and Graham McClashen who is the principal legal officer at the Scottish legal government legal directorate and I invite questions from members and somebody is going to have to remind me who is going first. I am, I am, I might be. Let's get back to the right questions. Good morning gentlemen and thank you for your patience. The bill contains a large number of delegated powers as you won't need me to tell you relative to its size and many of the powers are very broad. There also appears to be some inconsistency between parts of the bills to the amount of detail specified on the face and the amount left to be set out in subordinate legislation. Now the delegated powers memorandum explains that the delegation of the powers in the bill is informed by the need to allow for flexibility and to make appropriate use of parliamentary time and I think we would understand those concepts. Can you explain further why it is considered that taking such a large number of wide-ranging powers strikes this balance appropriately please? I think in end drafting the bill the approach that we have taken to delegated powers is to look at each instance in its own right to consider each particular policy outcome with our delegated powers is the best way to achieve that. There are a number of delegated powers which do things like prescribe the wording of forms or specify the type of information that is to be recorded in registers and we feel that that is more appropriate for secondary legislation rather than primary legislation. There are also several delegated powers which we expect to use to set out fairly large and detailed regulations about the operation of particular parts of the bill. For example, section 6 of the bill sets out a power for ministers to make regulations about the management of video grounds and that is very much the kind of thing that when we considered it we felt that it was better to set out that level of detail or an operational detail for that matter in secondary legislation. I think overall the approach that we have taken to the bill is to consider at each instance whether delegated powers was the right way to go versus putting specific detail on the face of the bill. The overall approach that we have taken has been to look at each particular provision in its own right rather than to take a blanket approach whereby we say that if the effect is X then we will use delegated powers if the effect is Y then we will put it in the face of the bill. I think as a result what we have in the bill as a whole are delegated powers where we feel that there is an appropriate balance between primary legislation and secondary legislation and which also will best serve a particular policy outcome. I suspect that that is the answer that the committee would have expected in the individual sections that we will explore separately. I think that I would merely observe at this stage that there do seem to be a lot more delegated powers than there are in many which may be appropriate to the subject matter but does perhaps surprise us and may surprise the policy committee in due course. Can I then pick up on the particular issue but the generality of the fact that there are a significant number of criminal offences to be created by regulations? The powers in section 6, 10, 22, 38, 41, 55 and 70 all authorise the creation of criminal offences in regulations and the delegated powers memorandum provides little information as to how those powers are likely to be exercised or what activity is going to be criminalised. Why is it considered to be appropriate to do that, please? Most certainly we have taken a few powers within each of the regulations making powers to create criminal offences in secondary legislation. As Simon pointed out for example, the burial management regulations in section 6 contains a power to create criminal offences and given the range of matters that could be covered in those regulations we thought it appropriate to take a power to create criminal offences so that we could tailor those particular criminal offences into the content of the regulations themselves. We also thought it appropriate to give an indication of the limit of the penalty as well. They are all summarily triable in the courts and they are all subject to a maximum of a level 3 penalty as well. We felt that appropriate to set a limit on the penalties that may be imposed on any criminal offences that we do create. The main reason is to give us the flexibility to tailor the criminal offences in relation to each particular set of regulations that we are going to bring forward rather than take a generic criminal offence about the contravention of regulations. That is where we are coming from. I am wondering to what extent those who were drafting the bill gave thought to the fact that there is a general principle that it is Parliament that creates criminal offences in statute and it is not people who generate regulations who create criminal offences by regulation. We certainly do have other criminal offences on the face of the bill as well. It was just that in these particular examples in terms of the regulation making powers, we thought that it was appropriate to take a power to set out the criminal offences in the regulations themselves. I do not think that it is completely unusual. I do not have specific examples to mind but I am certainly aware that secondary law legislation does contain criminal offences. Although I appreciate the general principles there, I do not think that it is unusual for criminal offences to be created in the secondary legislation. I would not for one moment suggest that we have not done it but I do as a parliamentarian worry that the idea that we have done it once means that we can carry on doing it forever. Exceptions I think should be regarded as exceptions. Could I also just express concern and ask therefore for some explanation of why it is that we now seem to have a class of criminal offence that is administrative or unlikely to be contentious because again I think I speak merely as one MSP I am not used to the concept of the criminal law being created on the basis that it's administrative or that it's unlikely to be contentious I think that's actually precisely why MSPs are elected because it's our job to sort those out on behalf of those who elect us. I mean I take that point on board convener as perhaps just being conflated a wee bit in the delegated powers memo when we're talking about the content of the other parts of the regulations I certainly didn't mean to suggest that criminal offences are in any way administrative or uncontroversial I take that point on board But we still got the issue that you feel that they can be created extensively. Now can I simply put again on the record the fact that you've put the maximum penalty on the issue it's not just going to keep us happy it's absolutely crucial I'm grateful because this committee would have growled very seriously had they not been there but that doesn't alter the fact that you are taking within regulations the conduct which the man in the street and I represent them is going to say well if you don't do what the regulations say then that's a criminal offence and that's not the way the law of the land not the way that I would want to see it and I suspect my colleagues might come with me on that Could I then just ask and this is again the generality of this in the delegated powers memorandum there seems to be a suggestion that some of these are kind of okay and could come through by negative procedure because the Government will have had to consult other people Now that's a fair point as far as it stands but what is the logic saying that the fact that the general public or some organisation or some particular group has been consulted is any substitute for parliamentary scrutiny and therefore justifies negative procedure rather than the affirmative procedure I think convener we've certainly not intended to suggest that consultation is in fact any substitute for parliamentary scrutiny and I apologise if the delegated powers memorandum is perhaps a little heavily written in that regard The intention really with the consultation was to offer Parliament some reassurance that any regulations which were laid had at least gone through a consultation process so that the regulations which were then laid at least reflected a consensus viewpoint but just to reiterate it was certainly not to intend that that was equivalent to parliamentary scrutiny OK, let's leave the generality there thank you and if we can turn to students Thank you very much I want to start by just exploring some of the implications of section 6 in the management of burial grounds and in particular we've got regulations that will allow very extensive provisions and there appear to be no particular boundaries to the provisions given that we're actually in an area of policy where we've had burial grounds for a long time one might have thought that we have a pretty clear view as of now as to how to manage them what particular justification is for the amount that's actually in secondary legislation in this connection at the management of burial grounds where there's nothing particularly novel I would have thought about managing burial grounds I think section 6 specifically addresses one of the recommendations made by the burial and cremation review group which as you'll know has made a lot of recommendations which have been taken forward in this bill in England and Wales there's a piece of legislation called the local authority cemeteries order a framework for the management of burial grounds stakeholders in Scotland burial authorities in Scotland have long argued that while as you say there are very clear and well established processes for the management of burial grounds there's the lack of any central guidance or regulation setting out a framework actually calls into question some of the approaches that they've taken in particular there's issues around how burial authorities can go to maintain headstones and burial authorities have asked us during consultation that we set that out somewhere in the bill similarly the inconsistent approaches that are taken across the country by various burial authorities or something else that we hope to address in these regulations so it's not necessarily that the regulations will introduce entirely new concepts I think it will introduce valuable consistency it will introduce a new framework and I think it will also codify some of the practices that have been carried out for a number of years on which are thought to be still fit for purpose Do forgive me but you have said it's well understood you've said that you know what's going to be in that secondary legislation therefore not in primary legislation if we in effect appear to know what it is we want to do why defer this matter to secondary legislation which in the nature of things is not well it's not capable of amendment by Parliament it's only capable of acceptance or rejection whereas if it were to be incorporated in the bill it could be dealt with in a much more detailed way by Parliament I think one of the reasons we've taken that approach is the level of detail that we would expect to see in any regulations the bill at section 6 clearly does set out quite a lot of the detail but we consider that to be the framework we think that there will be a lot more detail to be worked out in that process and we think that regulations are a more suitable way to do that rather than on the face of the bill given the nature and the extent of the detail that we would expect to see and just perhaps before moving on to another section of the bill in particular as the section touches on the issue of places to keep bodies before burial I take it it's not the intention that the secondary legislation that might touch on that would restrict the rights of families for example to keep the body as is traditionally often done in the front room from which it departs directly to burial No, there's nothing in the bill that would prevent that from happening That's not quite my question My question is would the bill allow a secondary legislation to be created that would restrict that right? If I'm following your question I don't think the bill would do that I mean the section on places to keep bodies before burial if I'm following the argument properly is it section 5 of the bill and the intention there was to put burial authorities under a duty to provide somewhere where a body may be kept on a temporary basis before burial we've actually discussed this with burial authorities to tell us that section 5 is unnecessary because that situation no longer arises either the bill is brought directly to the burial ground by the family or by the funeral director and it is buried as soon as possible thereafter OK, let me move on to section 181 in so far as it relates to system suspension of private burials the delegated powers memorandum explains that power would only be used in emergency situations but we don't have much insight into what would constitute an emergency situation I think the intention of that section is really to react to issues around public health so pandemics and so on having looked at that section since the bill has been published I think we recognise that maybe there is a lack of detail there and when you contrast it with section 70 for example which very clearly states that the process is intended to be used in response to public health risks we think that there is probably scope at section 18 to make that much clearer and perhaps there are three timings at which this might operate first of all where a private burial has already taken place is it envisaged that it could be used to exhume and move on public health grounds that's question 1 question 2 is could it be used once agreement has been given to the private burial taking place but before it has taken place the corpse is waiting to be put in the private burial and 3 of course is the obvious one where it's done in a more neutral environment but the first 2 in particular would the scope of the way the bill is drafted cover those two circumstances i.e. where the burial has already taken place but to cause that to be undone and secondly where permission is given but the burial has not taken place yet I think on the second point the answer would be yes our policy intention would be that there might be instances where we would have to intervene to prevent that burial from taking place in terms of the first point to allow the body to be exhumed we don't think that so that's certainly not the policy intention and I wouldn't think that the bill would allow for that and moving on it appears that section 70 allows the ministers to suspend a wide range of legislation for the purposes of public health requirements why if that is the case as that appears to cover what the intention of 18.1 is why are the powers in both these places I think when we were drafting the bill given that this was the first time we were legislating for private burial our intention was really to look at that as a distinct section of the bill and doing that we may inadvertently have provided for the same effect in two separate places but it kind of suggests that there are emergency situations covered by 18 that are beyond public health that's covered by 70 is that the intention? no it's not the intention so the emergency situations envisaged in 18 relate to public health and to nothing else yes so in that case it might be that the Government should consider whether it's necessary to have that provision in 18 yeah absolutely I think we can consider that okay so thank you right I think that takes us on to John thank you a convener and if I could look at 47 clearly the whole question of disposal of ashes has been a very sensitive one and created quite a public reaction so I was interested that in section 37.1 it says that the Scottish ministers may by regulations make provision about and then it lists a number of things including at sea the disposal of ashes by cremation authorities I mean this seems to me important issue very sensitive very much public awareness why is it in regulations rather than the face of the bill broadly speaking the intention of section 37.1 sea is to allow cremation authorities to take action to dispose of ashes where ashes have been left with them and have been left unclaimed it's not generally intended to apply to how ashes would be ordinarily managed the process that we intend to follow and this is very much in line with the recommendation made by Lord Bonamy's infant cremation commission is to redraft the cremation application form so that the applicant will have to specify what should happen to those ashes and the current draft of the form offers a number of different options including the applicant or the funeral director retrieving them on their behalf or the crematorium holding on to those ashes until such time as the applicant and the family have made a decision about what happens so that's very much the process we expect by which we expect ashes and what should happen to ashes to be managed in each instance however we are aware of situations that ashes for whatever reason are left at crematoriums and cremation authorities have told us that they essentially have nothing they have no route to return them to any particular place other than the funeral director if for example they lose contact with the applicant or the family so the intention of this the intention of 37.1c is really to make clear that cremation authorities have not been collected either in line with how the applicant has expressed his or her wishes through the application form or simply because they've been left behind it would allow the crematorium to return those ashes to the funeral director or in fact to take steps to bury the ashes or to scatter the ashes within the grounds of the crematorium I mean I'm even more mystified now because you've explained pretty clearly and you've obviously thought you and your colleagues have thought through what might happen and what the options are which makes it even stranger for me that that couldn't be on the face of the bill I mean for example if they've to hold on to the ashes for say five years and then take some action you know even that time period of five years is pretty critical and presumably could be in the face of the bill could it not? I think the key to this is that the application form whereby the applicant will be asked to express what they want to happen to the ashes and there's quite a range of options that could happen and to allow for that flexibility and to reflect the variety of potential outcomes we have drafted this on the basis that we feel regulations are the way to go nonetheless we can certainly consider whether that's something that is preferable and more appropriate to have on the face of the bill I appreciate if you're going to reflect on it because I've certainly found it surprising and I just have a feeling that some of the relatives and families who have been involved in this kind of issue might find it a bit surprising as well Forgive me John can I just reinforce the view that it certainly isn't obvious to me why if you are clear what the policy is and its range and its scope why that isn't in the legislation I think it's clearly the moment you want to write a form we well understand that there are administrative things and nobody has the slightest difficulty about that but if you're clear in policy terms as to what it is you think you're trying to do then surely we should be asking Parliament at this stage to agree with that or to disagree with that convener that's certainly something that we can look at as I say the approach that we took in drafting the bill was to allow for the diversity of potential situations and outcomes and the need there for some flexibility but that's certainly something that we can look at and to see whether it's better to have it on the face of the bill Thank you To continue the regulations that I understand in section 37 are subject to the negative procedure whereas there are similar regulation making powers in section 6 which is management of burial grounds and they are subject to affirmative procedure I just wonder why the difference between these two The existing cremation regulations under the 1902 act are subject to a negative procedure and they have a similar range of coverage to the power that we're taking just now so it was felt appropriate I think that we attached the same procedure to it 1902 sorry 1902 sorry the cremation act 1902 it seemed rather long time ago I just wondered if the view of cremation is given the light of some recent events might have changed Certainly we can reflect on these things I appreciate that Thank you The other area that I wanted to touch on is the following two sections 38 and 39 and really how they relate to each other because 39 is pretty clear about offences in fact referring back to section 38 offences and for example says a person commits an offence if the person provides information in or in connection with an application which the person knows to be false or misleading in a material way so that's fine and that's pretty clear what I then found a little bit puzzling though was going back to section 38 where it says application for cremation subsection 2 the Scottish ministers may by regulations make provision for or in connection with an application entitled in subsection 1 and then it goes on regulations under subsection 2 may in particular lists a number of things including at G create criminal offences to be tribal etc so again I've got this question why if we've got this the pretty clear section 39 why do we need 38 for G I mean I think that it was as we stated at the outset in terms of the general approach to regulation making powers we had thought about having the flexibility to create criminal offences to relate in particular to the particular regulations that we're bringing forward in relation to applications to provide that flexibility but we can certainly see how we have a specific offence in section 39 so it may be again that we reflect whether or not that prior to create criminal offences in 38 is necessary we can see whether there's anything that 39 doesn't cover that we need for the regulations but we can certainly reflect on that that we're doing in my supplementary question that implies that there might be other criminal offences and I think that you've already got from the convener that we're not wildly enthusiastic about criminal offences being created by regulation and so I mean I think that we would be interested to see if there were any examples of other criminal offences other than the very clear ones in section 39 okay that's me thank you section 16 just a little bit in particular in relation to the powers conferred upon inspectors as presently drafted there appears to be absolutely no limit to the powers that could be conferred upon inspectors and the example that came to my mind that might be at the margins is if an inspector was able specifically to go and inspect a coffin before burial to make sure that there were no stolen goods being buried which would appear to be beyond what one would imagine but which would appear to be permitted by the regulations that you could bring in under this power I mean why aren't there more specific provisions as to the limits of the powers that an inspector might have sure well I think the way that we structured the bill was really the framework for the powers of the inspectors are really set out between sections 6 at 61 and 64 so it's certainly not the intention that we would use the inspector for the sort of purpose that you highlight although I see the general point that you're making we would certainly view the framework to be set out between sections 61 and 64 we would clearly see it to be about the processes which are used by various parties in the funeral industry about the quality of services which are provided and that's again that's why we've used regulations for that process because there's a level of detail which we feel is required to give effect to the broad framework in the bill I don't think I'm questioning the need for there to be perhaps a relatively broad framework but merely wondering why the bill is relatively silent on the boundaries of the powers that might be given to inspectors I mean you get unexpected effect from ancient history of my own life when I was a water bailiff I had the power to enter any premise without cause shown without any particular purpose being described and I don't think that that was regarded as satisfactory and it was corrected in the later legislation this kind of smells much the same way that while I'm relatively confident that no Government will be likely to give the inspectors powers that the police could only dream of having would it not be helpful for the primary legislation to perhaps draw some boundaries around the powers that might be given before a Government of whatever hue in future looks at the regulations that might be drawn up I mean I think going back to the example you just cited there about powers of entry and inspection we do have those set out on the face of the bill at section 62 and they are limited to management or operational, burial authorities cremation authorities or businesses of funeral directors so we do have fairly specific powers of entry set out on the face of the bill that's not going to be for regulations at all and also I think that we would be intending possibly to exercise the powers in section 1661 and one set of regulations are both subject to affirmative procedure and therefore that would give you a picture in terms of what functions inspectors would have and I do think in terms of section 61 we do have examples of how that power may be exercised and it gives a bit more flavour as to the sorts of things inspectors will be doing in terms of frequency of inspections carried out reports by inspectors in relation to inspectors steps that they may take so we do in terms of the power in section 61 that does set out examples of the types of functions that we'd expect inspectors to have in relation to inspections it may be a structural thing I can see that section 60 does stick out on its own it may be that we can reflect about the structure of section 60 and 61 to see whether we can make the powers a bit clearer in that respect we can certainly reflect on that it is not this committee's purpose to actually worry about the policies as you will appreciate but it is our concern always to see whether or not the way anything's been drafted that the boundaries are clear and the boundaries are therefore in a reasonable place in terms of what the policy might be even if it's not our job to worry about what the policy specifically is so again every time you say well this section sets out the following things and the word management appeared in there I guess I would want to say well are we clear what management means could it actually be wider than you're really intending because if it could then maybe there should be some other constraints in the text in order to limit what the regulations could cover because I would suggest to you that's the principle I'm getting rather philosophical this morning but we are in the business of giving the government powers and we only want to give them the powers that they ask for if we're happy for them to have we're not in the business of giving them open-ended powers they might happen to things appropriate that's not what Parliament does that's happy notes Richard please thank you convener and continuing the same theme the delegated powers memorandum describes the creation of a license regime to apply to funeral directors which currently operates on an unlicensed basis could have significant impact on individuals who operate as funeral directors and given that context can you then explain further why it's considered appropriate to delegate this matter as well almost entirely to regulations the approach that we've taken with the potential licensing scheme is one where we have a very clear model in mind of how that might operate and that's set out in the financial memorandum for example or financial estimates are based on a particular model however at the moment as you state there is no licensing whatsoever there's also very little external scrutiny of funeral directors the policy intention therefore is to introduce inspectors who would then undertake both inspection of individual funeral directors but also take an overall perspective on funeral directors as an industry and consider whether further licensing or in fact licensing indeed might be necessary the approach that we've taken in setting out the regulation making power is to put the scheme within a very clear framework but give it sufficient flexibility so that any recommendations inspectors might make as to the shape or form or functioning of the licensing scheme could be given effect I appreciate the policy intention clearly but the matter in hand is why it should be so much a matter for regulation rather than on the face of the bill when again you said the Government's got a clear model in mind of how this would operate and the context here is that we know of the other licensing schemes which have been set out more fully in primary legislation so the Civic Government Scotland Act might need to licensing Scotland Act 2005 most recently just this year the Air Weapons Licensing Scotland Act 2015 so what distinguishes this licensing regime which will be in place from those other licensing regimes that means it's more appropriate for this regime specifically to be regulation rather than on the face of the bill and again you said you have a clear model in mind we do have a clear model in mind but as I mentioned in my previous answer it's a model which may well have to change on the basis of the inspection regime and any recommendations which are subsequently made by inspectors we did the other regimes I took you through as well there must be similar circumstances in those regimes and yet those regimes are much more substantial in the face of primary legislation we've certainly looked at those other regimes in trying to develop models and approaches to this I think that one of the key differences between the various schemes that you mentioned and this one is that we feel that this can be operated by the Scottish Government to local authorities we feel that we can achieve our policy intentions with a relatively unbiodecratic system which therefore we think doesn't need the scale of scheme that some other licensing regimes have created in particular the approach that we've taken so far and the examination that we've done of other schemes suggests that those schemes are much bigger and have far bigger bureaucracies around them than we feel might be necessary for the approach that we intend to take I want to move on to section 67 which creates a powerful... You want to come back on that? On that point we've just been covering Given that we're talking about licensing funeral directors rather than the activities that funeral directors undertake almost all the activities and the only exception that I've got in my mind might be embalming that if funeral director undertakes can be undertaken by a private individual is it envisaged that the regulations we catch private individuals who undertake activities such as laying out them the activities around that doing for the burial and indeed transporting the remains to the place of burial even virtually every step could be undertaken by private individuals are these to be outside the regulations rather than inside and if they're outside as a private individual why should they be inside regulations in other words what powers in relation to secondary legislation what's the scope intended to be the approach particularly is that particular activities should be licensed whether those activities are laying out of the body as you mentioned or transporting the body from one place to another I think those are examples of functions which we probably would want to consider within a licensing scheme because it's about the ensuring that the deceased is treated appropriately and with dignity in a way that at the moment we don't know the extent of how much dignity and respect the deceased is treated with simply because there's almost no external scrutiny of funeral directors so rather than perhaps looking at funeral directors as a specific function I think we have in mind specific activities being carried out in relation to funerals and so we would look therefore not simply to license funeral directors as recognised by the general public but anyone who is carrying out particular tasks so the intention of the scope that this piece of secondary legislation might cover could be to cover an individual traditionally it was done on the deceased's home doing the laying out it could be to cover I don't know if this is now done although when I was a nurse it certainly was a nurse doing the laying out in a hospital before collection by an undertaker so it's the intention that the scope of these pieces of secondary legislation covers these activities which are I'm not saying they're particularly common but in rural communities I can well see them being undertaken by people other than funeral directors so the intention is that there be powers for secondary legislation to cover these activities that private individuals might undertake in exchange for no reward whatsoever of a financial or equivalent to financial sense I think Alice McCaulay can answer that point I think as the powers are set out at the minute they do relate to where funeral director carries on a business so I think that's how the powers are set out at the minute in terms of the scope of the licence and scheme so on a reading of them just now so this in essence is creating the power to create regulations to the limited circumstances where someone is undertaking these activities for reward so carrying on a business that's certainly how the powers are reflected just to be clear in my mind it's for reward would be the test I'm not looking at the draft that I'm in front of me I think so to look at the examples that you gave a nurse who was laying out the body in a hospital I don't think anybody would regard them carrying out funeral-related activities I think they're doing their job as a nurse somebody in a rural community and we've very much considered the diversity of funeral businesses and they vary from massive organisations down to people who do a handful of funerals each year and whose main business is something else entirely I think what we would want to capture with this is anybody who is doing this essentially as a business whether that's a small element of their business they'll offer to transport the deceased from the hospital to the home for a small sum of money I think that's something that we really need to I think the key policy aim here is to ensure that that kind of function is done properly so if somebody is charging for that kind of service then from a policy perspective that's certainly something that I think we should be considering within the scope of this so we as a committee are only interested in how powers derive to create secondary legislation so am I clear that the intention in policy terms is that the secondary legislation will apply only powers to bring forward secondary legislation will exist in relation to someone who is undertaking these activities for a reward The licence scheme is in relation to funeral directors premises that test is laid out in section 652 premises that are owned or occupied by a funeral director and used primarily for the carrying out of a funeral directors business which would suggest rewards but I can't do mine but I will come to you in a moment if you're talking about the premises but we're not talking about the undertaker or the activities then surely most of the transport can't be covered Yes, we've also 652B2 talks also about premises that are used primarily for the carrying out of any activities relating to the funeral directors business so that may suggest the sort of element of the heresies being used Forgive me, I haven't got that detail in my head that makes perfectly good sense Is there then a risk that there's going to be some place, some door within a hospital beyond which the nurse won't go because somehow that's somebody else's job and you have to be licensed to go there? I shouldn't think so because I don't think that that type of scenario would be regarded as the bill is constructed as being primarily used by the funeral director or for the funeral directors business it would certainly be something that was used in relation to the deceased but not necessarily used primarily by a funeral director or as part of that funeral directors business Okay, let me leave it there John, did you want to just come in on this one? It's related so I mean theoretically and this may not commonly happen but somebody could be a full-time funeral director that's their living but they have no premises so they wouldn't need a licence? The way the power is drafted at the minute is related to licences for funeral directors premises and the carrying out of their business on that premises That's how we've laid out So it's very much the premises it's not the personal activity, right? As it's laid out in the bill on introduction, that's how I mean it Collectively straying fairly close to policy but I think we're bringing up some interesting points which you might like to reflect on Richard, shall we come back to code of practice? Yes, we will state you to section 67 which creates a power for Scottish ministers to issue codes of practice regarding exercise of functions by burial authorities, cremation authorities and funeral directors Now section 65 states that a burial authority, cremation authority or funeral director must comply with any applicable code of practice but why is it considered appropriate to issue a legally binding code of practice? Is there any form of parliamentary procedure being attached to that code? Given that, how is expected that compliance with that code will actually be enforced? There is parliamentary procedure in that the code of practice when it's published as laid before in the Scottish Parliament I appreciate that it's not a negative or affirmative procedure at all but it's a publication element to the codes of practice I can't comment on the policy intention but it was just to point out that part of the provision In terms of compliance with the code of practice, we would expect that to fall to the inspectors So to the inspectors will enforce the regime with the appropriate penalties and appropriate... Indeed, yes In terms of the code itself it's a big matter for publication in the Parliament at the moment, we will be able to amend it or reject it at all Any procedure beyond that? That's how the bill was reflected at the minute, it's a publication That section 68 provides for consultation before the code of practice is published in terms of consulting with the people affected by it but certainly in terms of parliamentary procedure it is a laying before the Scottish Parliament in terms of section 67 Sorry I'm just going to add to that I think in drafting this we had particular consideration to particular recommendations made by Lord Bonomy in terms of codes of practice that should be issued to various parts of the funeral industry I know that many of those codes of practice have now been developed with stakeholders and are in place and I think what we sought to do with section 67 and 68 was really try to give some sort of statutory footing to those codes of practice to just try to underline the importance and to try and underline the value of various stakeholders complying with them Subsection 67.1 A, B and C talks about the carrying out of functions the carrying out by a cremation authority the carrying out of the functions of a funeral director I think in drafting this we had a mind to the codes of practice working in conjunction with regulations that we've set out elsewhere In hindsight however I can see that there is perhaps an issue there where there's perhaps in trying to provide additional strength to the codes of practice we may have inadvertently less secure in that there's there's no full scrutiny by Parliament so I think in hindsight that's certainly something that we could look again at I think we will, yes If we just extend that on that point and forgive me this is a jurisprudence morning but since when has legislation been to underline something important Sorry I may simply have mis-expressed the policy intention there I think what I'm trying to suggest is that given that the codes of practice are already coming into force we feel that there's actually value in putting them in actually giving a statutory fitting to those codes of practice I may slightly just have mis-expressed I'm not trying to pick over your words particularly and forgive me if that was the impression I gave it was more a matter of if something doesn't have a procedure for the enforcement of it then saying it's enforceable doesn't actually help enforceable in terms of complying with something then unless there's some repercussion for not complying with it that's on the face of what you're dealing with then why is it there Sorry Jump in there section 61 in terms of the regulations that can be made in relation to inspector Simon mentioned that it was an intention that inspectors enforce the legislation and the codes of practice there is a specific power in section 61 3 where we illustrate all the matters that may be covered in the regulations there is one that relates to steps that may be taken by inspectors complying with requirements or conditions contained in enactments codes of practice or guidance applicable to the bodies so that would be where the enforcement part of it would come in would be in terms of functions placed on inspectors under the inspection regulations so that's where the link is made between the two Could you then please just elucidate what the powers of the inspector are to enforce that Well that's something that would be expanded in the regulations themselves in terms of the steps that they may take to comply with them so that would be something for the secondary legislation that we'd have to consider in the light of the models of inspection that we're considering at the moment Right, so we may in time and I hesitate to draw the analogy get finished up in some kind of places factory inspectors who might have the ability to stop something from happening might have the ability to prosecute something but all of that's going to come in a regulation I think from a policy perspective I think that that would be the intention and I think as Graeme has explained we would look to set that out in more detail in regulations Right, thank you I was going to move on but I think you made a point that you're going to reflect further on the simple publication a line before Parliament of the code of practice I think that's welcome and I'm sure the committee won't want to return to that in future as well My next question is on the application of the provision of this bill to future circumstances and new methods of disposal of human remains as practice develops in this area and why that decision has been made that it should be this bill and the provisions of this bill applying to such practices rather than introducing prime legislation on this matter at such time in the future because it is necessary when these practices evolve Can you explain further which provisions are this bill so we'd be likely to be applied in respect of any new methods of disposal of human remains I think we've drafted this section very much on future proofing the bill there are a number of different techniques for disposing of human remains which are either in use in other countries or are being developed as far as we're aware there's no particular barrier to any of those techniques being implemented so for example, resumation is a process whereby the body is dissolved in a chemical solution and you're left with bones which are then ground up to make ashes there's various states in the USA where that's already used we're aware that some companies are interested in that as far as we're aware there's nothing to prevent them offering that service at the moment we think that the power in the bill will mean that if anybody does bring forward such a technology and starts to offer it we would be able to very quickly regulate that process it doesn't preclude prime legislation being brought forward to cover that specifically but it's certainly intended a process to be regulated for at least in the short term in terms of what particular parts of the bill it would apply to I think that would depend on the particular technology that was introduced so for example to use resumation again resumation is arguably more close to cremation than it is to burial so perhaps if resumation was offered by authority or burial authority or funeral director those parts of the bill which relate to cremation and which then could be read across to relate to resumation might be the parts of the bill which were used in that way thank you no one's got any further points on that area my final question is about section 17 and it comes back to the issue of the creation of penalties whether they're in regulation on the face of the bill section 17 permits a suspension of certain enactments where ministers consider such action to be necessary and expedient for the purpose of protecting public health and such regulations may include provision creating criminal offences punishable in this instance by a fine the regulations may also impose other penalties or sanctions in respect of any contravention of or failure to comply with specified provisions now these additional sanctions penalties again they aren't set out on the face of the bill so why is it appropriate to take a power to impose unspecified penalties or sanctions for non-compliance in addition to any criminal offences and why are these additional penalties sanctions again not set out on the face of the bill the additional sanctions in section 73 again I think the answer was to create flexibility to allow us to respond to emergency situations and beyond creating criminal offences we may need that flexibility to impose other sanctions in an emergency situation of emergency situation would you foresee them because presumably if it was an emergency covering 24-48 hour timescale then even the facts and regulations isn't going to help in that circumstance so I'd be interested to know what circumstances you foresaw in terms of that emergency situation I mean certainly we can reflect on this as well I don't have a specific example I mean obviously we would need to respond to specific circumstances that are unforeseen and therefore it's kind of hard to come up with a specific example on the spot but certainly we can reflect on your point well that's a pretty sure it comes back to the general point that you made at the beginning of the meeting whether it's appropriate for some of these issues to be in regulation rather than a face of the bill itself yes and I would just ask and I have no idea where the answer might be but presumably the government does have some statutory powers to do some fairly extreme things in emergencies it does seem to me the kind of thing you're talking about might well be covered by pre-existing legislation which sounds a far better place to have it than in regulations in section 70 but I think you will reflect on that as you will on many other things so very grateful I think that's the end of our questioning so can I thank you very much indeed for coming along for your illuminating answers and I'll just briefly suspend for a couple of minutes to agenda item 6 which is instrument subject to affirmative procedure no points have been raised by our legal advisers on the Adoption and Children's Scotland Act 2007 amendment of the Children's Scotland Act 1995 order 2016 draft nor on the justice of the peace court special measures Scotland order 2015 draft is the committee content with these instruments please agenda item 7 is instrument subject to negative procedure again no points have been raised by our legal advisers on the designation of nitrate vulnerable zones Scotland regulations 2015 SSI 2015 376 nor the SNES training Scotland order 2015 SSI 2015 377 nor the sheriff appeal court fees order 2015 SSI 2015 379 nor the civil legal aid Scotland lanius amendments regulations 2015 SSI 2015 380 nor the Scottish tribunals eligibility for appointment regulations 2015 SSI 2015 381 is the committee content with these please agenda item 8 instruments not subject to any parliamentary procedure no points have been raised by our legal advisers on the courts reform Scotland Act 2014 commencement number 5 transitional and saving provisions 2015 SSI 2015 378 is the committee content with this instrument please agenda item 9 is the lobbying Scotland bill members are invited to consider the delegated powers provisions in this bill the committee is invited to agree the questions it wishes to raise with the Scottish government on the delegated powers in the bill in written correspondence and the committee will consider the responses at the future meeting to inform a draft report sections 15 1 21 and 41 all relate to powers exercisable by resolution of the parliament section 47 of the bill makes general provision in relation to these powers the committee may wish to seek explanation in relation to three points firstly the delegated powers memorandum does not explain the type of procedural detail which could be included in parliament standing orders on making parliamentary resolutions secondly section 47 2 b confers wide power to make ancillary provision under such parliamentary resolutions the delegated powers memorandum does not explain why this is needed and lastly section 47 4 provides that part 1 of the interpretation and legislative reform act 2010 is to apply to a resolution as if it were a Scottish instrument purpose of this is not explained again by the delegated powers memorandum does the committee agree to ask the Scottish government why further procedural provision is envisaged to be required in the parliament standing orders why it's considered appropriate for these matters are subject to provision made in standing orders rather than set out on the face of the bill second section 47 2 b confers power on the parliament to make the full range of ancillary provision in a resolution under the bill why is that considered appropriate can the Scottish government give an example of the sort of provision that might be made under the ancillary power part 1 of the interpretation and legislative legislative Scotland act 2017 pardon me is to apply to a resolution as if it were a Scottish instrument does the Scottish government explain can the Scottish government explain the purpose of this provision please it's going to take intent with those three questions thank you section 15 2 enables primary legislation in sections 4 to 14 of the bill to be modified by a parliamentary resolution made under section 15 1 does the committee agree to ask the Scottish government 1 to explain why further why it is considered appropriate for the parliaments to have a delegated part and modify provisions of the act as a past 2 regarding the choice of procedure why it's considered appropriate that the power of section 15 1 is exercised by parliamentary resolution notwithstanding that it includes provision to modify primary legislation yes part 3 of the bill makes provision for the investigation of complaints and reporting to Parliament by the commissioner for ethical standards in public life in Scotland as part of the oversight of the registration regime section 31 1 makes that provides that the commissioner in carrying out this function must comply with any direction given by Parliament section 24 5A empowers the Parliament to specify in a direction required to report to Parliament in specific circumstances does the committee agree to ask the Scottish government 1 in relation to the parliaments section 31 why it's considered appropriate that the provision regarding the handling of complaints is dealt with in directions rather than set out on the face of the bill 2 can it give examples of the sort of cases under which it is envisaged that Parliament might direct the commissioner not to carry out an assessment of a complaint or an investigation into a complaint 3 in relation to section 24 5A in what sorts of cases where a complaint is intermissible by virtue of the rules in section 233 it is envisaged that the Scottish Parliament would direct the commissioner to report why it's considered appropriate to specify those classes of case in directions rather than the faces of the bill and for what further procedure provision for directions under the bill including as regards publication is envisaged to be required why it's considered appropriate that the provision made in standing orders rather than set out on the face of the bill section 44 1 provides that the Parliament must publish a code of conduct for persons lobbying members of Parliament does the committee agree to ask the Scottish Government for an explanation as to why it's being considered appropriate that the section does not include requirements for persons to comply with the code or have regard to the code why it has been considered appropriate that the section does not contain any section or enforcement provision in relation to a breach of the code that completes the public section of the meeting and I move into private