Chamber and committees

I think that that could be taken on board, but that would have to be done at the same time as moving forward with legal aid reform.

Thank you, convener. Following on from the two sets of regulations on legal aid that we have just discussed, I would now like to speak to the committee about the draft First-tier Tribunal for Scotland Local Taxation Chamber (Rules of Procedure and Composition) (Miscellaneous Amendment) Regulations 2026.

For context, the Scottish tribunals structure was created by the Tribunals (Scotland) Act 2014, which introduced a new and simplified statutory framework for tribunals in Scotland. The Scottish tribunals consist of the First-tier Tribunal and the Upper Tribunal. The First-tier Tribunal is organised into a series of chambers that have specialist jurisdictions. There are currently six chambers: the general regulatory chamber; the tax chamber; the housing and property chamber; the local taxation chamber; the health and education chamber; and the social security chamber.

The purpose of the draft amending instrument is to make technical amendments to the procedure and composition rules that are applicable to the local taxation chamber. The LTC considers various appeals relating to non-domestic rates, water charges, civil penalties and council tax matters. The purpose of the amendments to the procedure rules is to insert reference to the Valuation (Proposals Procedure) (Scotland) Regulations 2025, which will come into force on 1 April 2026, and to make provision as to the making of proposals by proprietors, tenants and occupiers of lands and heritage for alteration of entries in the valuation roll for non-domestic rates. In addition, the draft instrument will allow an appellant to withdraw an appeal without first being required to make a withdrawal request to the LTC.

The amendments to the composition rules seek to provide a non-exhaustive list of procedural or incidental matters that can be considered by a single legal member, a judicial member or the chamber president of the LTC sitting alone.

I consulted the president of the Scottish tribunals on the draft amending instrument, in line with the requirements of the Tribunals (Scotland) Act 2014. Further to that engagement, the draft amending instrument has been adjusted.

I understand that the Delegated Powers and Law Reform Committee considered the regulations on 13 January and raised no points on the instrument.

I appreciate that the regulations are very technical in detail, but I will be happy to try to answer any questions. If I am not able to do so, I will bring in my officials.

That has been heard. I regularly meet representatives of the board, and I see work on that happening in the next parliamentary session, when we will explore legal aid reform. It is a big picture, and lots of work has been done in the past 12 months, which I might be able to touch on in answering other questions. However, I see reform of the Scottish Legal Aid Board having to happen in the next parliamentary session, and the board is open to that, too.

Ms Grant has raised the availability of solicitors with me several times, and it is an issue that concerns me. That is why the work that we are discussing is vital, and the simplified process that I am proposing today has been arrived at through engagement with solicitors on how to make legal aid work more attractive to the profession.

I recognise that there are challenges geographically, and I know that work is being done on that. I do not know whether Rhoda Grant is aware that, as of last week or the week before, there has been an agreement for a 13 per cent uplift in legal aid fees, which will come into force in September this year. I have also set up a fee mechanism review group, which will annually review legal aid increases. Further, we are looking at funding 40 traineeship places as well as information technology support.

We are doing everything that we can to work with the profession to enable it to be more lucrative and to encourage solicitors to take on legal aid work, which we hope will help the situation in our rural areas.

That makes sense. A lot of work has been done in the past 12 months and we are now moving into the last six weeks of this session of Parliament. We know that any legal aid reform bill will take time—nothing happens quickly. I am happy to speak to officials about your suggestion and to see whether we could provide the committee with a timeline of what we have done and a summary of what could be done in the next session through secondary legislation, because there is work that can be accelerated without legislation, and then present a look at the bigger picture of legal aid reform legislation in the next session. I will write to the committee on that.

So far, no concerns have been raised with me on that. Officials have reached out to stakeholders and to members ahead of this stage, but if any member has concerns that they want to highlight to me ahead of stage 3, I am happy to discuss them. However, at this stage, no concerns have been raised, so I am content.

No, thank you. I will just press amendment 1.

Amendment 1 agreed to.

Section 1, as amended, agreed to.

Section 2—Formation of contract: general

Amendments 2 to 5 moved—[Siobhian Brown]—and agreed to.

Section 2, as amended, agreed to.

Section 3—Conclusion of contract by unnotified acts

Amendments 6 and 7 moved—[Siobhian Brown]—and agreed to.

Section 3, as amended, agreed to.

Sections 4 and 5 agreed to.

Section 6—Lapsing of offer on fundamental change of circumstances

Amendments 8 to 10 moved—[Siobhian Brown]—and agreed to.

Section 6, as amended, agreed to.

Sections 7 to 12 agreed to.

Section 13—When notification takes effect

10:00

Amendment 11 moved—[Siobhian Brown]—and agreed to.

Section 13, as amended, agreed to.

Sections 14 and 15 agreed to.

Section 16—Autonomy of parties: application of sections 17 to 21 and of the Law Reform (Contributory Negligence) Act 1945

I will begin with amendment 13. Sections 18 to 21 of the bill define a new remedy of return of benefits received after rescission—termination—of a contract for material breach. Section 19 sets out rules on the valuation of a non-money benefit that is not returnable by the recipient, under sections 18(6) and 18(7). When determining the value which must be paid in lieu of returning an item or for a service, the valuation of the item or service is assessed at the time of the party’s performance providing that benefit, as set out in section 19(2). Additional guidance is provided in sections 19(3) and 19(4). The present formulation of section 19(2) appears to infer that the party seeking restitution must show that it has performed the whole of the obligation incumbent upon it before its claim can succeed. That goes too far, in my view, as what is recoverable is any performance in so far as it has not been reciprocated by the recipient in accordance with the contract. Accordingly, my amendment 13 removes the words “of the obligation” from section 19(2).

I am pleased to speak to the remaining amendments in the group, which will restate and reform the law of retention. The amendments build on the work that was undertaken by the Scottish Law Commission and separately by Lorna Richardson of the University of Edinburgh. In 2018, the SLC said that, although the law of retention needed some clarification, it should be left to the courts to do that. By 2024, though, the SLC’s position had changed and stakeholders agreed that legislation was needed to bring clarity to the law. The Scottish Government consulted on a scheme for the reform of retention and my amendments 14 to 17 give effect to that.

At stage 1, there was a question about whether the provisions would be default provisions. Amendment 12 is clear on the principle of party autonomy and has the effect that the provisions on contractual retention are default rules. It is therefore open to parties to provide their own, different rules or to fall back on these default rules.

I have considered the drafting suggestions to improve the bill and I wrote to the committee ahead of today’s session to set out my views. I believe that my amendment 17 addresses the concerns raised by the Law Society and Dr Hamish Patrick about particular transactions. As to the comments made by the Royal Incorporation of Architects in Scotland, I believe that the amendments also address its concerns.

I move amendment 12 in my name and ask members to support it and my other amendments in the group.

Amendment 12 agreed to.

Section 16, as amended, agreed to.

Sections 17 and 18 agreed to.

Section 19—Value of benefit

Amendment 13 moved—[Siobhian Brown]—and agreed to.

Section 19, as amended, agreed to.

Sections 20 and 21 agreed to.

After section 21

Amendments 14 to 17 moved—[Siobhian Brown]—and agreed to.

Sections 22 to 26 agreed to.

Long title agreed to.

Good morning. First, I want to thank the committee and all stakeholders for their comments on the bill as introduced. I believe that the amendments that I have lodged address a number of those comments and make the bill stronger.

Amendments 1, 2 and 5 to 10 respond to the comments made by Dumfries and Galloway Council, which stated that in

“section 2, the terms ‘Formation’ and ‘Conclusion’”

are

“used interchangeably.”

I agree that a more consistent term could usefully be used throughout part 1 of the bill, and these amendments do that by preferring the use of the term “formation”.

The committee asked the Scottish Government to consider the drafting point raised in the written evidence of Professor Stephen Bogle and Tom Johnson that section 2(2) is overly “verbose”. Having considered the drafting in light of those comments, I have lodged amendment 3 to simplify the provision.

Amendment 4 relates to section 2, which provides that whether a contract exists is to be determined from the statements and conduct of the parties. So long as the parties are agreed on the necessary content, there can be a contract, even though the parties are continuing to negotiate on other matters that might be relevant to their transaction. However, there might be circumstances in which parties want to agree all matters before forming a contract and, as a result, section 2(3) allows parties to a contract to specify in advance matters on which there needs to be agreement before any contract is formed. The Law Society is concerned about the drafting of section 2(3) of the bill because it thinks that there is a risk that it could apply to situations in which one party

“subjectively intends not to contract prior to agreement on a certain point.”

It has suggested that section 2(3) be amended to include the need for some form of express communication of agreement. Amendment 4 does that by making it clear that the party specifying the essential matters of a contract must do so “explicitly”.

I come to amendment 11. Section 13(1) provides that any notification in relation to the formation of a contract takes effect when it reaches the addressee. However, by virtue of section 13(2), it is subject to any time limit for acceptance referred to in section 11(1)(a). As drafted, section 13(1) is not subject to section 11(1)(b). Section 11(1)(b) says that if no timeframe for acceptance is stated, an acceptance is effective only if it occurs

“within a reasonable time after the notification of the offer has taken effect.”

The effect of that drafting is that, in general, acceptances must be notified to the offeror within any time limit stated in the offer, but, where there is no stated timeframe, it would be possible for an acceptance to be effective when it has been communicated unreasonably late. Amendment 11 deals with that anomaly by providing that, for an acceptance to be effective to form a contract, it must be notified either within any time limit stated in the offer or within a reasonable time.

I move amendment 1, and I ask members to support my other amendments in the group. I am happy to take any questions.

Yesterday’s letter to the committee set out that the estimated annual cost of the bill would be around £14 million to £19 million in 2025-26 terms. The costs would increase to between £17 million and £23 million in year 5, and the figures are likely to rise annually. As the minister who is responsible for the legislation, I want to ensure that it is affordable and would make a real impact. At this stage, the Scottish Government does not feel that the bill as drafted is worth the costs that have been outlined in the financial memorandum.

I will touch briefly on education, under part 4. As you know, we do not take a prescriptive approach to the curriculum in Scotland. It is very much up to individual schools and local authorities to decide what approaches they use and which external partnerships they build to help them to deliver relevant and engaging learning. The curriculum already includes learning and teaching about domestic abuse, and it places a requirement on Scottish ministers and education authorities that would also create a precedent.

Curriculum for excellence contains learning experiences and outcomes that are designed to ensure that children and young people learn about abuse and power dynamics in relationships. Education Scotland’s website contains a section with domestic abuse information for educators that includes links to various teaching resources. We would be setting a precedent if we were to dictate that there should be specific domestic abuse education in schools.