Additional Item
I apologise to members for a late intimation of an agenda item. Members will see it on the new agenda that has been circulated, referred to under items 1 and 5. I will give members a brief explanation of how this has arisen.
You might recall that, some time ago, the committee considered a statutory instrument called the Late Payment of Commercial Debts (Scotland) Regulations 2002, which is statutory instrument 2002/335. It came into force on 7 August 2002. Parliamentary procedure requires instruments to be referred to the relevant committee for comment and there is a procedure whereby objection can be made to the application of the instrument if there are grounds for concern.
In this case, no grounds for concern were expressed and, accordingly, the committee approved the instrument. Late yesterday, however, the clerk received intimation from Mr Lloyd Quinan that he has lodged a motion to the effect that the committee recommend that nothing further be done under the instrument to which I have referred. Both the intimation and the motion are competent and timeous.
The procedure is complicated, but I will try to summarise it as best I can. According to parliamentary procedure, it is proper for a member who is so minded to lodge such a motion before the relevant committee, but that must be done within 40 days of the commencement date of the instrument.
I understand that Mr Quinan will be able to furnish the committee with further information. Apparently concerns were recently intimated to him that required him to investigate the procedure. As I say, he has perfectly competently and timeously lodged his motion.
Under parliamentary rules, the committee has no discretion as to whether it considers Mr Quinan's motion. We are under obligation to do so and that is why it has been put on the agenda as item 5. The committee is therefore enabled to listen to Mr Quinan and to the Minister for Enterprise, Transport and Lifelong Learning, who has been informed of the situation and is prepared to speak on the matter. The committee then has to decide whether it supports or opposes Mr Quinan's motion.
If the committee opposes Mr Quinan's motion, the matter will be at an end and nothing further will happen: the instrument is in force and it will continue in force. If, however, the committee supports Mr Quinan's motion, the matter must come before the Parliament tomorrow—otherwise it will not be considered within 40 days of the instrument's commencement.
At this stage, I am happy to take preliminary questions about the procedure, but I remind members that the committee has no option but to hear the motion under item 5. At that time there will be a full presentation by Mr Quinan and by the minister. If anyone has any preliminary questions to raise, I will be happy to try to deal with them.
The letter from the Executive to the Presiding Officer about the rather accelerated pace at which the instrument was laid said that the instrument was being laid under section 2(2) of the European Communities Act 1972. It is obvious that this is an important matter for the relationship between the Executive and the Parliament. I am not quite clear what Lloyd Quinan is envisaging. Should the committee take note of the instrument and annul, or should we take note of it, annul and invite a response from the Executive?
I do not know whether we should get an answer through our clerk or through the minister. As far as I can gather—and, like Mr Quinan, I have had only a short time to consider this—this instrument seems to have emerged from nowhere. I understand that the Law Society of Scotland, the Faculty of Advocates and the Scottish Legal Aid Board were unaware of the instrument's introduction. I would like to know the antecedents of the instrument. I would like to know what this committee can now do with Lloyd Quinan's motion.
I will try to answer those questions as accurately as I can. I understand that this instrument emanates from European law and I understand that member states must comply with a particular directive—hence the need for Parliaments in Westminster and Scotland to enact instruments. Your first point is correct—there seems to be a European dimension and an obligation to comply with a directive.
The parliamentary procedure on delegated legislation is clear. As I understand it, the committee has no discretion in relation to Mr Quinan's motion other than to support it or oppose it. If we oppose it, the matter will die and the instrument will continue unchallenged. However, the Scottish Executive may in due course produce an amended instrument or a new one. I presume that it would be competent for the Executive to do that if there are matters of concern. If we endorse and support Mr Quinan's motion, the committee will, as I understand it, have no further discretion to do anything: if the committee supports the motion, it will go to the Parliament for a decision. I understand that the Parliament's options are similar—it can support or reject the motion.
I had intended to do this when we question the minister, but I should perhaps do it now. I refer to my entry in the register of interests and declare that I am a practising member of the Faculty of Advocates.
I should do something similar. I am a practising solicitor and a member of the Law Society of Scotland.
I too am a member of the Law Society of Scotland.
I described myself as a practising solicitor but I hasten to make it clear that I am not doing any practice.
I am sure that you are perfect, deputy convener.
As no other members wish to raise any questions, I am prepared to listen to any initial comments that Mr Quinan wishes to make.
I would like to address a couple of the points that Brian Fitzpatrick raised. Yes, this instrument appears to be late; and yes, it is the product of a European Union directive. A central issue is that the parent act has no section 2A, so the question whether the instrument is ultra vires arises.
Might I suggest that rather than getting distracted by detail now, Mr Quinan, it would be appropriate for you to address such matters when we come to item 5 on the agenda. However, you may wish to make some general explanatory comments just now.
I was contacted at the end of last week by a couple of solicitors who expressed concern about this instrument. In particular, they were concerned that it would alter the nature of the relationship between the advocate, the solicitor and the client and that it could compromise the advocate's relationship with the court. They also raised issues to do with article 6 of the European convention on human rights in relation to the independence of advocates and judges. Those concerns are the principal reason behind my motion.
A secondary reason is the potential for a number of areas of judicial review. Frankly, I do not think that it is in our best interests to make law that requires to be clarified in court. The Law Society of Scotland has intimated that it believes that the only way in which the instrument can be applied, if it is carried through, is on the basis of a judicial review.
Those introductory remarks are helpful. Naturally, the question on members' minds is why the matter is being raised at the eleventh hour.
The issue also has serious budgetary implications for the Scottish Legal Aid Board and, consequently, implications for the Scottish consolidated fund. I therefore seek an explanation from the minister as to where the additional cash will be found.
I suggest that you raise those matters later. You can direct your questions to the minister, who will be here to speak and respond to points of concern.
When we reach item 5, perhaps Mr Quinan can assist us with a query that I have, otherwise we can get an answer from the minister. I understand that the statutory instrument transposes the directive. It seems that the nub of what Lloyd Quinan is saying relates to the fluidity of the position at common law of the relationship between counsel, solicitor and client. I share his concerns: I am still unsure of the commercial transaction and the nature of the relationship between counsel, solicitor and client.
The word "contract" has been bandied around. From her experiences, the convener will know, although others might not, that in Scotland—at least historically—the relationship between counsel and client has never been a relationship of contract. For example, an advocate cannot sue his client for his fees at common law, although he might be able to sue the instructing solicitor for his fees if the instructing solicitor is in receipt of funds. I am anxious about the nature of the obligations that are covered by the Scottish Statutory Instrument. Is the relationship a commercial transaction or a contract? If it is a contract, substantial policy issues arise.
When the SSI came before us, I had understood it to be a purposeful recognition of the fact that there can be oppressive behaviour by main contractors and subcontractors in relation to the late payment of invoices. It would be helpful if Mr Quinan told us whether that is the position. If we are unsure about that, I suggest that we get an explanation from the minister.
That is helpful and goes to the nub of the problem. What was presented to the committee as an apparently benign and unexceptional instrument seems to have in its text an effect that, as you rightly say, could alter the historical relationship between clients, solicitors and members of the Faculty of Advocates. I think that Mr Quinan is prepared to address the issue later.
You are absolutely correct—that is at the heart of the matter. The original document for England, Wales and Northern Ireland has no proposed section 2A. I will read that section.
I am conscious of the weight of business that is before the committee this morning. Members have received a useful explanation. If Mr Fitzpatrick is content, I suggest that Mr Quinan and the minister address the points that he has raised when we reach the agenda item. Is that acceptable?
Yes.
As members do not have any further questions about agenda item 1, I thank them for their contributions and suggest that we move on. We will deal with the matter substantively later.
May I be excused, convener?
Certainly. I thank you for attending.
I remind members and everyone who is present to switch off mobile phones, as they cause sound distortions.