Economy, Energy and Tourism Committee, 16 Sep 2009
Meeting date: Wednesday, September 16, 2009
Official Report
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Arbitration (Scotland) Bill
The final item concerns the committee's approach to stage 2 of the Arbitration (Scotland) Bill. We have received a letter from the Minister for Enterprise, Energy and Tourism indicating the outcomes of the discussions that he had over the summer with consumer groups and various legal stakeholder bodies with an interest in the area. We agreed that we would consider that letter to determine whether it addresses the points from our report that we wish to take up or whether we may still wish to lodge amendments to the bill on some matters.
I will pass on immediately to our expert, Gavin Brown, to find out what he has to say.
I am pleased that the Government went ahead with the two meetings over the summer. Nigel Don was able to go to one of them and found it productive.
The tone of the minister's letter is helpful. On most of the points on which he has said that he will draft amendments, the direction of his proposals is entirely what the committee was looking for but, until we see the amendments, it is difficult to know whether we will accept, reject or want to adjust them.
I am still a bit uncertain about the Government's response to some of our recommendations. Recommendation 2 relates to retrospective effect. The committee felt that retrospective laws were, in general, not a good idea. Section 33 will be amended so that parties will be able to opt out of retrospective application to existing agreements. Whether that is a good idea will depend entirely on the amendment. Will both parties need to agree to it? Will one party be able to decide unilaterally to opt out or will it be stuck with the new rules without agreement? It seems like a good movement, but our final response will depend on what the amendment says.
Recommendation 3 relates to the Arbitration Act 1996. Two or three sections of the 1996 act will still apply to Scotland and not be included in the bill. That will mean that almost the entire law will be in one act and two or three sections of applicable law will be in another act. Our view was that we should find a way of restating those sections in a schedule, if not in the bill itself, so that people who were looking for arbitration law would be able to pick up one document.
That concerns the issues about consumer legislation, which is reserved, and the question whether the UK Government would agree to the rule being included in the legislation. We can write to the minister for clarification on that point, because he did not respond either in the debate or in the letter in a way that lets us know what the intention is.
Yes; we received no specific response on that point.
Recommendation 7 concerns confidentiality, particularly if the matter goes to court. Again, the direction of travel that the minister has indicated seems to be the right one, but I am concerned about the drafting of the relevant amendment.
With regard to the number of areas in which we said that things should be mandatory, the Government has taken soundings and decided to make them mandatory. We thought that the designation of rules 50 and 51 should be swapped around, and the evidence that we have received suggests that that has happened. Overall, therefore, I think that the Government's moves are positive. There are two or three areas in which the devil will be in the detail, but, other than that, I am quite pleased at what the Government has done.
The points that Gavin Brown raises will influence whether we need to consider the issue again when the amendments are published, because we know the broad thrust but not the detail.
Likewise, on the minister's response about the repeal of the model law and the consequences of that, he has indicated that a document will be circulated to audit the detail of the model law. It would be interesting to know what process is intended to follow the circulation of that document, and whether that will be taken into account by the minister in advance of him lodging amendments.
I find it slightly odd that we received from the Government what is, in essence, a covering letter for a series of draft amendments that it will circulate to various bodies, but we did not receive the draft amendments. I was going to suggest that the committee should ask to receive a copy of the draft amendments that have been circulated, even if that is on a confidential basis. That would enable us to work out whether the amendments would meet our concerns, if they are agreed to.
I also suggest that we write to the Faculty of Advocates and the Law Society of Scotland to ask for their views on what the Government proposes. Those were the two key bodies that had concerns with the original drafting.
Once we have received responses, we can decide at the meeting before the meeting at which we will begin stage 2 consideration whether we wish to lodge any amendments. We hope that the Government will have lodged its amendments before our meeting on 30 September. We can certainly encourage it to do so.
Do members agree to those suggestions?
Members indicated agreement.
Meeting closed at 12:23.