Hansard

I, too, thank Lady Paton and everyone at the Scottish Law Commission for their excellent work. I also thank everyone who has engaged with the committee on the bill, in writing and in oral evidence—they have certainly assisted with our scrutiny.

I also want to thank our excellent clerking team for their first-class support during the scrutiny of the bill, and MSP colleagues for the way in which they went about working on the bill. The work was undertaken in a very collegiate way.

I am pleased to speak in this stage 1 debate as convener of the Delegated Powers and Law Reform Committee, the lead committee for this bill. This is the fifth Scottish Law Commission bill on which the committee has acted as lead committee in this session, and it is worth saying that it is a part of the committee’s role and remit that members enjoy and find very worth while.

As set out in the Presiding Officer’s determination to identify a Scottish Law Commission bill, when the DPLR Committee is to be the lead committee, the bill should

“make provision which is not likely to generate substantial controversy among stakeholders.”

That means that the bills that we look at are unlikely to grab lots of media attention; nonetheless, they are really important bills for us to consider.

The minister touched on the fact that contracts are formed all the time. Indeed, they are the lifeblood of economic activity in Scotland and internationally. We heard that even acts as simple as buying an item in a shop constitute forming a contract, which means that contracts are being formed all the time by individuals who have no legal training and without taking any advice. Despite that, contract law has, in large part, been developed under common law and, as such, is less accessible to lay people if and when disputes arise.

One key aim of the bill is to make rules that are clear, certain and as accessible as possible, and the committee agreed that a law like this, which sets out default rules relating to the formation of contracts and aspects of the law on remedies for breach of contract, is an appropriate way of achieving that.

The Scottish Law Commission’s work on contract law dates back almost to its inception, as was outlined to the committee by Professor Hector MacQueen, who acted as lead commissioner on the project that led to the bill. Anyone who reads the SLC report on its review of contract law, which was published in 2018, can be left in absolutely no doubt of the comprehensive and thorough job that the commission did, and I want to pay tribute to it for that work.

I should say that, although the review was comprehensive, the aspects of contract law that it recommended for inclusion in the bill were actually much more limited, a point that came up in our evidence sessions. I just want to highlight how focused the legislation actually is. I certainly see much merit in the approach taken by the SLC and adopted by the Scottish Government, with the bill very much focusing on the formation of contracts and on certain remedies for breach of contract. The approach was widely supported by those from whom the committee heard, including academics, practising lawyers and representatives of business organisations.

The rules will also be largely default ones, meaning that, by mutual agreement, parties to contracts can opt out of them. That was seen as essential to the freedom of contract principle and to allowing sophisticated parties to continue to contract as they wished. However, the default rules will also provide a clear backstop for small and medium-sized businesses, should they choose to contract without opting out. That flexible approach was supported by the committee.

There was also much support for the abolition of the postal acceptance rule, something that the minister touched on. The idea that a contract can be accepted without being received by the offeror does not seem particularly intuitive to those without legal training; indeed, the Federation of Small Businesses Scotland told us that it did not think many of its members were aware of the old rule. Colleagues will also be aware of the question that I asked during First Minister’s questions, regarding some of the current issues with Royal Mail. If we had a fully functioning Royal Mail, it would be harder to argue against the status quo, so this particular change is really apt for the present day.

The committee also agreed that the general rules in the bill that cover when notification takes effect were reasonable, despite some suggestions to the committee that they could be more specific. However, the committee also heard the counterargument that to do so, and to go into more detail in the bill, could prove problematic, because not every eventuality can be legislated for and the current rules were considered by many witnesses to be relatively future proof. Anyone who was in Parliament during the Covid pandemic will recognise how impossible it is to legislate for every eventuality.

Finally, the Scottish Government also plans to lodge amendments at stage 2 to amend the law of retention. The committee heard a lot of support for the bill to be extended to include provision on retention, on condition that the provisions can be contracted out of, and we are pleased that the Scottish Government has confirmed that such flexibility will be allowed for in the new rules.

All that is left to do is to confirm that the committee recommends to the Parliament that the general principles of the bill be agreed to. As convener of the committee, I wish everyone a very merry Christmas and a happy new year.