Chamber and committees

That will be characterised differently in different local authorities. It could be cafe permits, outdoor seating permits and things like that, depending on how different local authorities characterise it. As Tom Winter touched on, there is no statutory requirement for local authorities, as roads authorities, to consult on this particular issue, but they are at liberty to do so. Clearly, where issues impacting on accessibility are identified by members of the public, they can make representations to local authorities through the usual channels. Local authorities are empowered to take action to address those issues should they choose to do so.

If I may interject, we are straying into the territory of equipment standards, and that is in a different sphere from the planning discussion that we are having. We have long-established PDR, now nine years old, for wall-mounted EV charging infrastructure. The majority of the PDR focuses on established parking areas and expanding capacity to reflect increased demand. Clearly, for the installation of chargers on buildings, other factors come into play in the decision-making process, such as ownership of the building. The safety of particular kit is covered by different regulatory regimes. It is important to clarify that.

We are more than happy to engage with stakeholders who wish to engage with us and to consider any proposed changes that come out of that. To the best of my knowledge, no concerns have been expressed to us directly regarding the existing permitted development rights and nothing has come to us through the consultation on the proposals to expand PDR for EV infrastructure. As I said, should there be a need to exempt any particular area of a planning authority from permitted development rights, that can be done through an article 4 direction. Of course, we continue to keep all legislation under review. Should any specific concerns be raised with us about planning provisions, we will take them on board seriously and will engage with them closely. As I said, nothing of that nature has been brought directly to my attention.

I hope that the committee agrees with the intent behind this, which is to create an environment that is supportive of our hospitality sector. I note the strong welcome that the proposals have had. However, I recognise that local authorities, on the basis of engagement with their communities, may deem the application of those permitted development rights to a particular area to be incompatible with wider aims and concerns around the wellbeing and amenity of people living in that area. Other mechanisms are there to raise issues retrospectively that can be enforced through our regimes and, as Tom Winter said, for local authorities to decide that the application of PD rights for a particular area is not important, and to seek to amend, restrict or remove the PDR entirely for a particular area through an article 4 order.

I stress that, as we introduce this legislation, local authorities will monitor it, and they will be best placed to make decisions based on the impact. Where issues arise, they will have several means to address them.

I take the point that you are making. I stress that, although it may be the case that the process of obtaining a permit, for example, through the Roads (Scotland) Act 1984 provisions, is distinct from what would normally take place through the planning process, it is important to remember that street furniture, for example, would not always constitute development. As things stand, there could be scenarios where street furniture that does not constitute development would not be subject to the planning system. However, I stress and reiterate that there are other consenting regimes and they have to be adhered to. There are existing enforcement powers, and where members of the public think that an obstruction is taking place or that an amenity is being affected by noise and nuisance, there are means for seeking remedy via the local authority and those other regimes. Is there anything that you want to add, Tom?

I am happy to give an undertaking to take that away and to engage with the advisory group and relevant ministerial colleagues on the matter in order to identify whether any issues of concern have not been identified through the consultation. I certainly do not rule out an amending order, but, in the first instance, I would want to establish an evidence base for such an order. I am happy to ensure that we undertake that work and write to the committee with an update. Any further action that emerges, up to and including changes to legislation, can be considered as part of that process.

The reality is that a lot of the various scenarios—for example, tables and chairs being set up—that we associate with permitted development rights are already not captured as development. As such, the appropriate regulatory provisions are found in the Roads (Scotland) Act 1984. If there are requirements for a permit, local authorities define that permit in various terms—“cafe permit”, “pavement permit” and so on. There is a means through that process for a decision to be made and, indeed, enforcement action to be taken. If issues around accessibility and obstruction are identified, there is a remedy available to the local authority. Of course, local authorities are democratic bodies that are accountable to the people within their authority area. I can give a reassurance that that means exists.

As I have set out, should any issues arise as a consequence of the regulations coming into force, there is a means, through the article 4 provisions, for local authorities, with the approval of ministers, to restrict PD rights in particular areas or to remove PD rights entirely in particular areas. It is not the case that, if a local authority found itself in a situation in which it had seen development take place that would usually require planning permission but planning permission or a planning application was not required because of PD rights, it would have no recourse—it would not be centrally mandated and something that it could not change. Notwithstanding the provisions in the 1984 act, there would be means to seek an article 4 direction, which, with the agreement of ministers, could remedy the situation.

I am about to come on to a couple of practical points, Mr Mundell. You will be aware that I have lodged amendments to remove individuals from being able to grant a statutory pledge under part 2 of the bill. If that change is made, it is unclear to me why not-for-profit money advisers would routinely be searching the register of statutory pledges on behalf of their clients.

As I indicated in my recent letter, there is also some doubt over whether searches of the register of assignations would be of much assistance to not-for-profit money advisers, given that, when debts have been assigned in a bulk assignation transaction, it is highly unlikely that the debtor’s name will be on the register, and because the register can be searched only by reference to the assignor of the debt, not the debtor.

In addition, the system has been designed so that the debtor is not expected to search the register. That is why the bill provides that a simple failure to search the register does not mean that the debtor is acting in bad faith if they make payment to the original creditor.

It is also important to recognise that the fees that will apply for registration events and searches in the two new registers will be the subject of consultation before the fee structure is established in regulations under the bill. That consultation is, in my view, the best vehicle for a proper examination of all the issues, and I am happy to reassure members of the committee that the consultation will explore the issue of fee exemptions.

Therefore, I think that it would be inappropriate to bring forward any part of the fee structure for the two new registers in advance of that consultation. It is for those reasons that I ask the member not to press amendment 64 or to move amendment 81.

I note that Jeremy Balfour’s amendments form part of the Law Society of Scotland’s response to the committee’s call for written evidence at stage 1. I understand that the Law Society considers amendments 58 and 70 necessary because it thinks that the existing references are too vague and considers that only a statutory protected trust deed should be in scope. We tend to think that the wording in the bill as introduced is amply flexible to cover a number of situations; to remove that and replace it with what the amendments propose would only allow for when a protected trust deed is registered by the Accountant in Bankruptcy, at which point it becomes protected. It is therefore too restrictive, and the more flexible wording, in the bill as drafted, would include the granting of a voluntary trust deed as well as a protected trust deed.

The Law Society considers that amendments 59 and 72 are necessary to ensure that what it considers to be irrelevant company voluntary arrangements are prevented from affecting assignations and statutory pledges. Our view is that that is not necessary. The relevant subsections are for ascertaining whether an assignor or provider is insolvent. Whether any voluntary arrangements include this claim or property is not important to that consideration.

Amendments 60 and 71 are considered necessary by the Law Society on the basis that the bill makes no reference to such arrangements under the Companies Act 2006, and it considers that it should do so to ensure consistency with wider insolvency law. Those amendments seek to add a further catch to the corporate insolvency net. Part 26A of the 2006 act enables companies to apply to the court for an order sanctioning an arrangement or a reconstruction agreed with a majority of members or creditors should they find themselves in financial difficulty. Section 901F of the 2006 act refers to the process of the court sanctioning any such agreement.

We previously considered the issue and took the view that provisions under part 26A mainly refer to companies that are in difficulty, as opposed to those that are insolvent, and we tend to think that amendments 60 and 71 have no utility in expanding the corporate insolvency provisions in the bill as introduced. The Scottish Law Commission recognised that the law on insolvency as it relates to assignations and pledges is complex. It was partly for that reason that it included a power to adjust the definition of insolvency, if necessary.

Although we should not defer this matter to regulations if we are convinced that a change is appropriate now, we are not convinced that it has been shown that that is, indeed, the case. I am concerned that the group of changes that are proposed through amendments 60 and 71 might not be sufficiently cohesive. For example, the suggestion seems to be that voluntary trust deeds should not be included but that voluntary restructuring plans should be. In addition, amendments 60 and 71 do not seem to have been as fully considered as they need to be, given that amendment 71 would erroneously change the definition of when an individual is insolvent when the item in question is about being subject to a company restructuring plan.

My preference is therefore that we do not rush into making any changes just now and, instead, that we take the time that is needed to consult relevant academics and the Accountant in Bankruptcy, safe in the knowledge that we will be able to adjust it at a later stage, if it is agreed that changes are appropriate.

For those reasons, I ask Jeremy Balfour not to press amendment 58 and not to move amendments 59, 60 and 70 to 72.

This group of amendments, which relates to electronic signatures, responds to the committee’s recommendation that the bill be amended to require only simple electronic signatures, given that advanced or qualified electronic signatures can create barriers to conducting business for most users. The matter was originally raised by Jeremy Balfour at stage 1, and I am grateful to him for doing so.

Section 116 currently defines the term “authenticated” with reference to section 9B(2) of the Requirements of Writing (Scotland) Act 1995, which provides that

“An electronic document is authenticated if the electronic signature of”

the person who is authenticating it

“is incorporated into, or logically associated with, the electronic document ... was created by the person by whom it purports to have been created, and ... is of such type, and satisfies such requirements (if any), as may be prescribed by the Scottish Ministers in regulations.”

Regulation 2 of the Electronic Documents (Scotland) Regulations 2014 requires a signature to be “an advanced electronic signature”, whereas section 9G(1)(d) of the 1995 act further provides that

“it is not competent ... to record or register”

an electronic document

“in any other register under the management and control of the Keeper of the Registers of Scotland”

unless sections 9G(2) and (3) both apply to the document. That means that the document must be presumed, under section 9C or 9D or by virtue of section 9E of the 1995 act, to have been authenticated by the granter, and the document, electronic signature and any certification must be

“in such form and of such type as are prescribed by the Scottish Ministers in regulations.”

Regulation 3 of the 2014 regulations provides that

“For an electronic document to be presumed authenticated ... under section 9C ... the ... signature ... must be ... an advanced electronic signature; and ... certified by a qualified certificate”

for signature. That means that assignation documents under part 1 of the bill and constitutive documents for statutory pledges under part 2 must be signed using an advanced electronic signature, and for them to be registered, they must also be certified by a qualified certificate.

The Government has consulted stakeholders on this issue, including the Federation of Small Businesses and the Registers of Scotland, with the FSB indicating that it thought that forms of authentication beyond simple electronic signatures were costly to small businesses. It is understood that the jump in cost and complexity between each level of signature is likely to be significant. Therefore, I believe that, to encourage the use of the new registers and to avoid unnecessary costs, with smaller start-up businesses in mind, simple electronic signatures would offer the best option.

Amendment 45 is the critical amendment in the group, as it removes the requirement for electronic signatures to be authenticated through the use of an advanced or qualified electronic signature. Therefore, it will be possible to use a simple electronic signature. However, it will still be possible to use advanced or qualified electronic signatures if parties wish to do so.

Amendments 42 and 44 will remove the current definitions of “authenticated” and “executed”. Although amendment 45 replaces the definition of “authenticated” with rules for the authentication of a document, it retains a substantive definition of the execution of a document.

Amendment 45’s new section 116(1B) will allow ministers to modify sections 116(1A)(a) and (b) in place of section 116(3), which amendment 46 removes.

Amendment 40 amends section 114 to replace the reference to section 116(3) with one to section 116(1B). That will ensure that regulations under section 116(1B) will be subject to the affirmative procedure.

Amendment 43 consequentially defines “electronic signature” in section 116(1) for the purposes of the bill, because the definition in section 12(1) of the Requirements of Writing (Scotland) Act 1995 is no longer imported into the meaning of “authenticated”, as amendment 42 will remove the cross-reference to section 9B(2) of the 1995 act.

Section 9G(1)(d) of the 1995 act stipulates that it is not competent

“to record or register ... a document in any ... register under the management and control of the Keeper of the Registers of Scotland”,

unless it includes a qualified electronic signature. Amendment 36 makes it clear that section 9G(1)(d) of the 1995 act will not apply to the registration of documents under the bill, so a simple electronic signature will suffice for authentication, although there is nothing to stop parties using advanced electronic signatures or qualified electronic signatures if required to do so.

I move amendment 36.

Amendment 36 agreed to.

Section 113 agreed to.

After section 113

Amendment 84 not moved.