Seòmar agus comataidhean

Under agenda item 3, we are considering three instruments subject to the affirmative procedure. An issue has been raised on the following instrument.

Thank you for that. Have you or your officials had any further dialogue with the Faculty of Advocates and the Law Society of Scotland in preparation for lodging those potential amendments?

Section 8(5), on regulatory categories, gives the Scottish ministers the power to reassign legal regulators between category 1 and category 2, which would change the requirements that a legal services regulator is currently subject to. The Law Society suggests that that power should be subject to a statutory duty to report on the outcome of the consultation, and that the Lord President’s consent should be required. The Faculty of Advocates does not agree that there should be a power to reassign regulators from one category to another through regulations.

How do you respond to those different considerations? Is the Scottish Government planning to make any amendments in that regard, or is it considering removing that particular power?

As colleagues have no further questions, I will ask a final one. It is not really a committee question. You will be aware of the McClure Solicitors situation. I am quite sure that colleagues from all parties will have received emails from constituents about the issue. It is clear that there are a lot of unhappy individuals across the country and elsewhere in the United Kingdom. Some of the issues that have been raised involve trusts and succession and legal services. Obviously, the committee is scrutinising two bills on those topics.

Would you be content to meet me to discuss concerns that constituents have raised, with a view to potentially making amendments to the Trusts and Succession (Scotland) Bill and the Regulation of Legal Services (Scotland) Bill?

Thank you for that. The Law Society’s second submission helpfully references sections 39(6), 40(3) and 45(2) of the Regulation of Legal Services (Scotland) Bill, which could be part of the discussion.

The instrument is made under section 19(1) of the Retained EU Law (Revocation and Reform) Act 2023, which enables the Scottish ministers to make any provision that they consider appropriate in consequence of that act. The instrument updates various pieces of primary and secondary legislation to replace the term “retained EU law” and associated expressions with the term “assimilated law” and associated expressions.

In correspondence with the Scottish Government—which was published online with the agenda for this meeting—the committee queried paragraph 3 of schedule 1 of the instrument, which would amend the Freedom of Information (Scotland) Act 2002 by changing the words “EU obligation” to “assimilated obligation” in sections 26 and 45. In particular, the committee noted that those references to “EU obligation” seemed not previously to have been changed to “retained EU obligation” and asked the Scottish Government why it considered that the power in section 19 of the 2023 act enabled that amendment to be made.

In its response, the Scottish Government confirmed that the references to “EU obligation” in those sections have not been updated to “retained EU obligation”. The Scottish Government advised that such a change could have been made following enactment of the European Union (Withdrawal) Act 2018, but it did not say why that was not done. The Scottish Government considers those amendments to be consequential, in particular on the establishment by the 2023 act of “assimilated obligation” as a defined term within the body of assimilated law, including for the purposes of statutory interpretation.

The instrument in front of us seeks to change those references straight from “EU obligation” to “assimilated obligation”, skipping the step of updating them to say “retained EU obligation”. The committee notes that the term “EU obligation” is no longer a defined term.

It appears to the committee that the provision in question may address a failure to have updated those sections in consequence of the 2018 act, rather than making provision that is properly in consequence of the 2023 act. As such, the committee considers that there is room for doubt that the provision in question is envisaged by and within the limits of the enabling power. Therefore, there appears to be a doubt about whether the provision is intra vires.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (e), in that there appears to be a doubt about whether paragraph 3 of schedule 1 is intra vires?

Members indicated agreement.

Is the committee content with the instruments?

Members indicated agreement.

Under agenda item 4, we are considering two instruments subject to the negative procedure, on which no points have been raised.

Under agenda item 3, we are considering two instruments subject to the negative procedure. An issue has been raised on the following instrument.

Is the committee content with the explanation that the Scottish Government has provided for this breach of the laying requirements?

Members indicated agreement.