Hansard

The debate has been interesting—perhaps much more interesting than many of us had expected when we came into the chamber. It is impossible to follow or to compete with Stewart Stevenson’s tales of transatlantic adventures, da Vinci code-style mathematical problems and—this was an interesting addition to the debate—“The Simpsons”. We always enjoy Mr Stevenson’s ability to spice up a debate of this nature.

It has been a pleasure to be part of the Delegated Powers and Law Reform Committee as, through its first considerations under its new responsibilities, it has considered the bill. The bill has proved to be a good candidate to initiate that new role because, as we have heard, there has been a great deal of consensus around the legislation and, although it is narrow in its compass, it will have a beneficial effect for legal practice.

As others, including the minister and the convener, have done, I reflect on the fact that dealing with bills introduced by the Scottish Law Commission will be beneficial generally to legislative reform in the Parliament. For too long, bills that had been the subject of considerable consultation and a great deal of work by the commission were not taken forward and were left to gather dust. The commission was left reliant on members coming forward to take up the bills individually, as my colleague Bill Butler did successfully in the previous session with the Damages (Scotland) Act 2011, which I am sure that the minister remembers.

Unfortunately, that was a relatively isolated example. Too many bills on important issues, which could have been equally as beneficial as the one that we are considering, were not progressed, so it is good that with our committee’s parliamentary consideration, we can look forward to more progress with such legislation.

I join others in congratulating the convener and the committee clerks and advisers on their stewardship of the process. I have perhaps not found as many moments of philosophy and poetry in the committee’s deliberations as Mike MacKenzie did. I congratulate him on doing so. He clearly sees debate over the definition of quantities of corned beef in a different light from me. However, it is important to recognise the committee’s good work, so it is right to say that this is an opportunity to reflect on that. In this process, the committee’s work will be beneficial not just to Parliament but to the quality of law.

As others have said, the evidence that we took was almost unanimous in its support for the bill’s proposals. During our deliberations, I asked witnesses about the potential for fraud, to which members have referred, and the Faculty of Advocates expressed concerns, particularly in its oral evidence. All other witnesses were clear that they did not see the legislation opening up greater potential for fraud in transactions.

As we heard from witnesses, if individuals are determined to commit an act of fraud in such transactions, they will find a way of doing so, regardless of whether the bill is passed. We have not heard evidence of a higher number of examples of fraud or error in England since execution in counterpart and the electronic delivery of documents were allowed there. The issue was best summed up by those who said that it will neither reduce nor increase the risk of fraud if we pass the bill.

The other issue that I pursued with witnesses when we took evidence on the bill was the use of pre-signed signature pages, in relation to which specific concerns were raised about the potential for fraud. Witnesses raised concerns not about the legislation itself but about the concept of the use of pre-signed signature pages. As the policy memorandum makes clear, the bill does not change the existing position on that, but nor does it prevent a pre-signed signature page from being attached to a different document, provided that it can be shown that the party concerned clearly authorised or mandated that in advance, or subsequently ratified what had been done, with full knowledge of the content of the new document.

Witnesses expressed some unease about the use of pre-signed signature pages in general. When I asked Dr Ross Anderson of the University of Glasgow about this issue, he said:

“As a solicitor, I would never use them. ... It seems to me that the authorisation that has been given by the client in that situation is essentially a power of attorney to the solicitor to sign the document ... I find the use of pre-signed signature pages odd.”

However, he also acknowledged that the bill might be taking the approach that it is

“simply to reflect some of the practices that are going on in England and ... to be facilitative for cases that may arise.”—[Official Report, Delegated Powers and Law Reform Committee, 7 October 2014; c 9-10.]

The committee has reached the right conclusion on this issue, given that the legislation is intended to aid flexibility for legal practice in Scotland. We concluded that, although there might be misgivings about the use of pre-signed signature pages, which we recognise and mention in our report, there might also be circumstances in which their use is justified.

It would be wrong to overestimate the economic impact of the legislation for our legal services industry, but I think that it is beneficial, even if it is narrow in its effect. It is right that we heed the advice of the Law Society that the existing practice of signing contracts under Scots law is in need of updating. The society informs us that parties to a contract are switching to English contract law at a later stage because it is more convenient for the execution of contracts. If by passing the bill we can ensure that contracts can in future be concluded under Scots law, clearly that would be beneficial for our important legal services industry, and that is why it is right to support the bill today.