Contents
- Attendance
- Decision on Taking Business in Private
- Crown Office and Procurator Fiscal Service (Witness Expenses)
- Subordinate Legislation
- Crown Office and Procurator Fiscal Service
Subordinate Legislation
Arbitration (Scotland) Act 2010 (Transitional Provisions) Order 2016 [Draft]
We come to item 3, on subordinate legislation. I welcome the Minister for Community Safety and Legal Affairs, Annabelle Ewing, who will speak to the draft Arbitration (Scotland) Act 2010 (Transitional Provisions) Order 2016, which is an affirmative Scottish statutory instrument. I also welcome the officials accompanying her: Denise Swanson is from the Scottish Government’s civil law and legal system division, and Alastair Smith is from the Scottish Government’s directorate for legal services.
I remind members that officials are permitted to give evidence under agenda item 3, but they may not participate in the formal debate on the order under agenda item 4. I refer members to paper 1 and ask the minister to make an opening statement.
Good morning. The purpose of the draft order is to remove the ability of parties under an arbitration agreement that was made prior to 7 June 2010—that is, prior to the commencement of section 36 of the Arbitration (Scotland) Act 2010—to contract out of using the new arbitration law that is provided for by that act.
The 2010 act provided Scotland with a modern and innovative arbitration regime, and clarified and consolidated the general Scots law of arbitration into a single statute. The purpose was also to provide a statutory default framework for arbitrations to operate in the absence of agreement to the contrary to ensure a fair and impartial process. The intention was that anyone in Scotland or those who sought to do business in Scotland should be able to access the principles and rules that govern the law of arbitration in Scotland.
Section 36(3) of the act made transitional provision to the effect that the legislation would not apply to an arbitration that arose under an arbitration agreement that was made before the commencement of section 36 if the arbitrating parties agreed not to use it. Essentially, the provision gave arbitrating parties the ability to use the pre-existing arbitration law over the new law that was provided for in the 2010 act if they wished to do so.
The 2010 act also provides that the Scottish ministers may by order remove that opt-out ability after a suitable period that falls at least five years after the commencement of section 36. As the act is now over five years old, the Scottish Government proposes in the SSI to remove the ability of parties to contract out of using the new arbitration law from 1 January 2017. That means that it will not be possible for parties to agree that the act will not apply to an arbitration that was commenced after that date. However, the order will not affect arbitrations under such agreements when the arbitration commenced before the order’s coming into effect, which will happen on 1 January 2017.
The Scottish ministers consulted on the draft order and have considered the responses thereto. Responses were received from, among others, the Faculty of Advocates, the Law Society of Scotland, the Scottish Arbitration Centre and the Royal Institution of Chartered Surveyors, and the replies were supportive of the order.
I am happy to take questions.
My question is almost rhetorical. We have received a letter from the chief executive of the Scottish Arbitration Centre that notes that Edinburgh will host the International Council for Commercial Arbitration congress in 2020. I hope that the minister will agree that that is an important signal of the important role that arbitration plays in Scots law and of how we are at the forefront of making use of it as a way of resolving disputes.
Yes, I absolutely agree. It is a great coup for the Scottish Arbitration Centre to have won the competition to host what is a huge international conference. The conferences are held on a two-yearly basis, and the next but one will take place in Edinburgh.
The previous two ICCA congresses, which were held in Singapore and Miami, each attracted more than 1,000 professional arbitrators to their respective host locations, so the hosting of the 2020 congress represents an excellent opportunity for Edinburgh, as well as the Scottish Arbitration Centre, to make their mark.
Could the measure have been taken sooner? You said that the opt-out could be removed five years after the 2010 act was passed, and we are now in 2016. If the measure could have been taken sooner, why did that not happen?
Under the 2010 act, it could not be done any sooner than five years after the passing of the act. We are only shortly past the five-year mark. As with all other legislation, it is a case of fitting it in with parliamentary timetables and so forth.
That is the only reason why there has been a delay.
We have only just passed the five-year mark. Given what is involved in preparing legislation, I do not think that there has been a particular delay. Do officials have any other comments?
No.
There are no more questions. All the submissions certainly seem supportive of what is proposed.
Do you have any closing remarks, minister?
No.
Agenda item 4 is formal consideration of motion S5M-02509.
Motion moved,
That the Justice Committee recommends that the Arbitration (Scotland) Act 2010 (Transitional Provisions) Order 2016 [draft] be approved.—[Annabelle Ewing]
Motion agreed to.
That concludes consideration of the order. The committee’s report will note and confirm the outcome of the debate. Are members content to delegate the authority to me, as convener, to clear the final draft?
Members indicated agreement.
I suspend the meeting briefly, to allow the minister to leave.
11:08 Meeting suspended.11:08 On resuming—
Title Conditions (Scotland) Act 2003 (Conservation Bodies) Amendment Order 2016 (SSI 2016/371)
Agenda item 5 is consideration of a negative instrument—SSI 2016/371. I refer members to paper 2. Do members have any comments?
I am entirely content that we do not do anything to impede the progress of the order, but I would like to put on the record an enduring concern that I have about the drafting of instruments of this character.
The order simply adds two entities to a list that is in one of the schedules to the primary legislation. That is something that happens quite regularly, across a wide range of legislation. It leads to a situation whereby there is nowhere that the general public can actually go and look at the resulting consolidated list. I know of cases where similar amendments are into double figures. I encourage the Government and its drafters, when they are amending lists in future, to consider using the secondary legislation—as, in general, they will be able to do—not simply to amend the list but to replace it with a new, complete list, so that the legislation thereafter reflects all the cumulative changes that may have been made to lists. I make a general point, on which I am not asking that we take any action. I merely take the opportunity of putting it on the record.
I am grateful for those comments. The updates can be accessed online but, as the member rightly points out, the sites can be a little bit slow or there are problems with that.
Could I come back on a tiny wee point? Updates are available online, but in a complete form only via Westlaw, which is a subscription service. The legislation.gov.uk service that the general public can access for free does not deal with secondary legislation updates in a way that enables people to see this. Lawyers can see a resulting update, because they subscribe; the general public cannot. In this case it is of no material effect, I hasten to add.
Perhaps we can flag that up to the Delegated Powers and Law Reform Committee to take into account. Are there any other comments? If not, are members content to agree that we do not wish to make any recommendations in relation to the instrument?
Members indicated agreement.
Thank you. I suspend the meeting to allow the first witness to take his seat.
11:11 Meeting suspended.11:12 On resuming—