Seòmar agus comataidhean

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.

Good morning, and thank you, convener. First, I acknowledge Pam Gosal’s aim of tackling the horrendous crime of domestic abuse, which is an aim that we all share.

Although violent crime has reduced significantly over the past 20 years, I am, of course, concerned about the increase in incidents of domestic abuse, though I acknowledge that that will reflect increased confidence in reporting and is due to new offences being brought in through the Domestic Abuse (Scotland) Act 2018. I also welcome the fact that the number of convictions has increased, with recent statistics demonstrating that Police Scotland has used those offence powers, further increasing public confidence in reporting domestic abuse.

Tackling domestic abuse remains a focus of the Government, and we will always consider actions that can enable just that. However, as we have set out in correspondence, and as the committee has heard in evidence-taking sessions, we are not sure that the bill will achieve its aims.

On the specific proposals in the bill, we still do not have a clear understanding of how they will interact with existing processes and procedures. That is particularly a concern in relation to part 1.

The committee is aware that those with domestic abuse convictions can already be managed under the multi-agency public protection arrangements—MAPPA—and the disclosure scheme for domestic abuse Scotland, which allows individuals to obtain information and make an informed decision about their situation when they may be at risk in a relationship. Without a clearer understanding of how the bill would interact with those existing programmes, the risk of duplication, competing demands on resources, associated inefficiencies and confusion is high.

Although the concept of a domestic abuse register seems to have been withdrawn, the bill would introduce notification requirements, with the suggestion that being on a list of some description would be a disincentive to offending. As stakeholders have noted—we agree with them—that assertion remains unevidenced, and consequently it remains unclear what added value, if any, the proposal would deliver.

In relation to part 2, the Scottish Government is already investing in the valuable rehabilitation work that is done through the Caledonian system, which uses an integrated whole-family approach to address the domestic abuse of women by men in Scotland. It is important to recognise that the Caledonian men’s programme is a court-ordered programme and that legislation is not required to expand it.

In relation to part 3, although the Scottish Government recognises that more could be done on data collecting and reporting, we consider that that can be achieved without placing statutory duties on Police Scotland, the Crown Office and Procurator Fiscal Service, and charities to request and record data from victims. I have noted charities’ concerns about how onerous that would be for them.

Part 4 of the bill would contradict the discretionary, non-statutory approach to the curriculum that is currently in place in Scotland. Moreover, we have significant concerns about how the establishment of duties on education authorities in relation to the promotion, facilitation and support of domestic abuse education would operate in practice. That remains unclear.

As we have consistently outlined, the Scottish Government remains committed to tackling domestic abuse to ensure that those who perpetrate violence and abuse, the majority of whom are men, change their actions and behaviour, and we are taking a range of actions in that area. We recognise that more can be done, but we do not see the bill’s provisions as being the most effective focus, for the reasons that I have outlined. The bill would involve significant administrative impact and cost, and many of the proposals in the bill are not clear or defined. It is not clear what the bill would provide that would be additional to what we already have.

That leads me to the conclusion that the bill does not strike the right balance in the outcomes that it aims to achieve. Because of that, paired with the costs to public bodies and charities to which it would give rise, the Scottish Government cannot support the bill as it is currently drafted.

I am happy to take questions.

At this stage, I do not believe that the provisions will make victims feel safer. Members will be aware that a range of things are happening in the justice system, including legislative reforms in the Victims, Witnesses, and Justice Reform (Scotland) Act 2025 and the Regulation of Legal Services (Scotland) Act 2025, and we are updating the victim notification scheme. A lot of work is going on throughout the justice system.

My officials might want to add something more specific to answer your question.

Yes, I am.

My understanding is that, even though the equally safe at school programme is rolled out through the Convention of Scottish Local Authorities and local authorities, it is not prescriptive for local authorities to take it up.

Our position on the proposal is that if the register brings people under MAPPA, that might be at odds with Scotland’s aspiration that MAPPA be led by risk instead of offence.