Subordinate Legislation Committee, 23 Nov 1999

Meeting date: Tuesday, November 23, 1999

Official Report 79KB pdf

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Abolition of Feudal Tenure etc (Scotland) Bill

The first item on the agenda is delegated powers scrutiny. Various bills are before us. The first is the Abolition of Feudal Tenure etc (Scotland) Bill, which is at stage 1.

We have had the benefit of advice and briefing on the aspects that are covered. There is a general point at the start on various matters relating to fees. Does anyone have any comments on that, before we move on to section 5, which affects us?

No.

Do members have any points on section 5?

On section 5, while the delegation of powers in relation to forms is not inappropriate, there seems to be a lack of an explanation as to why it has been decided to include some forms in the bill, but to leave this particular form to subordinate legislation. It is the form for recording deeds in the Register of Sasines. An explanation from the Executive on that aspect might assist the committee

Certainly. That is also the case on the requirement for prior consultation with the Lord President of the Court of Session. There might be a good reason for that, but it would be worth knowing the reasoning behind it, given the difficulties between conveyancing practitioners and the interpretation put on various matters by High Court judges.

You would think that the Lord President had his hands full enough at the moment with other matters.

On section 19, the advice that we have had is that it is appropriate. We thank the Executive for its helpful comments.

Fergus wants to raise some points on section 20.

Section 20 deals with section 2(1) and (4) of the Conveyancing and Feudal Reform (Scotland) Act 1970, which set out the considerations that govern applications to the Lands Tribunal for Scotland for variation or discharge of land obligations and raise important issues that go to the heart of the Abolition of Feudal Tenure etc (Scotland) Bill. They determine the circumstances in which individuals can go to a court of law and have unfair title conditions struck out. They have been a source of contention over the years.

It is of some surprise to me that the bill has been drafted to give the Executive the power to add, by way of statutory instrument, modifications to those rules that would be deemed appropriate by ministers. That seems to be an excessive use of power, and I would be pleased to receive an explanation from the Executive as to why it believes that statutory instrument powers should be used for such important matters.

The drafting of the section is obscure. A more straightforward form of words could be achieved, subject to the answer to Fergus's point.

As regards section 25, our advice is that the use of the delegated power and the procedure are appropriate. Similar advice applies to sections 43, 69 and 74.

There is a concern in relation to section 74. The drafting of subsection (3) allows too wide an ability for the Executive to make amendments and, while there might be a reason for that, perhaps it sets a dangerous precedent.

I agree. It seems odd to me that included in these bills should be sections that say that, if the Executive does not pick up on all the previous legislation that needs to be amended or repealed, it can do so later on. That practice—I believe that it is called a Henry VIII clause—should be discouraged.

I do not have any objection to such a clause, but I think that we should consider whether the affirmative procedure should be used to carry out any consequential change, as opposed to the negative procedure. That would satisfy me. We could raise that with the Executive.