Enterprise and Lifelong Learning Committee, 08 Oct 2002

Meeting date: Tuesday, October 8, 2002

Official Report 266KB pdf

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Subordinate Legislation

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Late Payment of Commercial Debts (Scotland) Regulations 2002 (SSI 2002/335)

On behalf of the committee, I welcome the Minister for Enterprise, Transport and Lifelong Learning to the meeting. We welcome the minister with particular warmth because it is his first appearance before the committee. It is perhaps unfortunate that he appears before us on what seems to be a significant and contentious issue. We are nonetheless grateful to the minister for making himself available at short notice. I also welcome back Lloyd Quinan, who will move the motion. Please bear with me, as I need to seek some procedural guidance from the clerks.

The procedure for the item is—not surprisingly—that Mr Quinan will be given time to speak to and move his motion and the minister will be given time to respond. We then move into open debate with the committee; members who want to ask questions are entitled to do so. When questioning has finished, the minister will be asked to sum up, Mr Quinan will also be asked to sum up and we will proceed without further discussion to a vote.

We recognise that this is a matter of substance. Will the minister say how much time it would be helpful for him to have to respond?

Two or three minutes will be enough time.

Is that sufficient? I am prepared to allow you a little more time. I think that Mr Quinan may require a little more time to speak.

Let us say five minutes, if that is acceptable.

Okay. How much time would Mr Quinan like? I have to make a decision; there are no rules about this.

I believe that five minutes will be adequate.

Okay. I rule that Mr Quinan will have five minutes to speak to his motion and the minister will have five minutes to respond. The open debate will then take place. Its duration will depend on the number of questions that are asked and the issues that members wish to pursue.

I believe that each member of the committee has been furnished with a copy of the letter from the president of the Law Society of Scotland to the Minister for Enterprise, Transport and Lifelong Learning about the matter. Most of what I have to say is contained within the letter. I will provide a little bit of background for members who were not here earlier.

It was communicated to me last week that there were potential problems with the statutory instrument. As I am a member of the European Committee and the Audit Committee it became clear to me when I looked at the instrument that there were potential pressures on audit and on the consolidated fund from the introduction of interest payments, particularly with regard to the Scottish Legal Aid Board. That was the audit-related concern. The secondary concern—a parliamentary one—is that we are again dealing with a European directive about which the assumption has been made that we will pass the instrument to fit a time scale. I took part in the sift at which the document was considered in the European Committee some months ago and we did not consider those concerns. There are lessons to be learned for us all as members of the Parliament.

On the substantive issue, the new section 2A that the instrument would add to the Late Payment of Commercial Debts (Interest) Act 1998 appears to create a distinction between advocates and barristers, but there is no strict distinction; both receive honoraria and are not under contracts. To support that I will read proposed new section 2A as it will apply in Scotland. There is no new section 2A to apply to England, Wales or Northern Ireland. It might answer members' questions if I read out the proposed new section 2A, which relates to the application of the act to advocates:

"The provisions of this Act apply to a transaction in respect of which fees are paid for professional services to a member of the Faculty of Advocates as they apply to a contract for the supply of services for the purpose of this Act."

The letter from the Law Society contains a quotation from a rather famous judgment by Lord Inglis in 1876, which defines the relationship that advocates have with their clients. That relationship does not involve any nature of contract. On 27 August 2002, a law lord confirmed that statement in a court case.

Under the 2002 scheme, an agreement exists between the Law Society, the Faculty of Advocates and the judiciary. Negotiations went on for more than a year and an amicable settlement was reached. The 2002 scheme covers all the issues that would be disturbed by SSI 2002/335.

The responsibility for the late interest payments will lie with the solicitor. Although the advocate will have no contractual responsibility, the financial responsibility will fall on the solicitor. That situation needs to be examined. There is also a question about whether inclusion of section 2A in the SSI is ultra vires, because it goes beyond the powers of the original act.

The Subordinate Legislation Committee should have considered the financial implications, because it is that committee's responsibility to examine anything that might have an impact on the consolidated fund. If we had a situation in which interest of 8 per cent became payable on advocate fees after 30 days, that would mean that there would be budgetary pressures on the Scottish Legal Aid Board, which pays such fees to advocates through solicitors.

I ask the committee to support motion S1M-3468 for the reasons that I have outlined and on the basis of my statement about the lessons that members of the Parliament must learn. There is great likelihood that the requirement will move to a judicial review. During committee meetings and full meetings of the Parliament, I have said that it is not sensible for us to enact law that requires confirmation by the courts.

I move,

That the Enterprise and Lifelong Learning Committee recommends that nothing further be done under the Late Payment of Commercial Debts (Scotland) Regulations 2002 (SSI 2002/335).

We find ourselves in such a position because the Executive has a statutory duty to implement European Union directives. The directive in question—directive 2000/35/EC—concerns late payment in commercial transactions.

It is our view that, in any case, advocates would be covered by the terms of the late payments directive. Proposed new section 2A, which is in SSI 2002/335, represents an attempt to ensure that that position is made clear. The situation in England is different, because it is possible for a barrister in England to enter into a contract. It is not possible for an advocate in Scotland to do so. The instrument seeks to give advocates the protection of the directive. If the instrument were to be annulled, we would be in breach of the directive. Therefore, the Executive urges the committee not to agree to Mr Quinan's motion.

There is no reason in principle for advocates to be treated differently in having legislative protection to ensure timeous payment of what is due to them. We do not believe that the instrument would alter the relationship between the advocate, the solicitor and the client, which is referred to in the 1876 case. The directive covers commercial transactions as well as contracts. It is clear that we are dealing with a commercial transaction and there is no implication that the transaction in question is a contract. It seems to us that there is no argument in principle for why the measure should not apply to advocates. We can provide clarity that the measure applies to advocates and I say to Mr Quinan that we should avoid the point being left moot and having therefore to be decided judicially later.

When the committee considered the regulations previously, it did not comment or make a recommendation on them. To support Mr Quinan's motion on the regulations would be to reverse a de facto decision that the committee has taken on the regulations.

Mr Quinan made a point about the procedure for dealing with negative instruments. It is not appropriate for me to comment on that now. It is unfortunate that we come to the matter late in the 40-day period for consideration of the regulations. If that poses a problem, the committee might want to raise the matter with the Procedures Committee. Nonetheless, we must work with the existing procedures. On the basis of clarity and the decisions that the committee has already taken, I ask the committee to oppose Mr Quinan's motion.

I have some points to make as convener. It is true that no advice was proffered to the committee when the instrument came before it. Indeed, the instrument was presented as a benign and almost technical measure that required endorsement. However, the motion raises a substantive issue and the committee has no alternative but to consider it. In defence of the committee, I point out that we did not have the benefit of legal advice when we considered the instrument previously.

I will exercise my prerogative as convener to ask a question. As I understand the present situation, an advocate cannot sue for fees. Given that, I am not clear about the relevance of including in the regulations a right for advocates to claim interest on outstanding fees. Will you comment on that, minister?

Our understanding is that, in the modern situation, an advocate's ability to sue for fees is a moot point.

Is the minister aware of any instance in which an advocate has sued for fees?

That has not—to my knowledge—happened.

I raise the point because you referred to timeous payment, which is what the instrument is all about. It seems to me that there is a paradox. If the professional practice is that advocates do not sue for fees, a question of timeous payment cannot arise because the advocate has no legal sanction available to enforce timeous payment.

I appreciate that. My answers to your previous questions are again relevant.

What is the implication of being in breach of the EC directive?

The implication is, I presume, that we could lay ourselves open to infraction proceedings.

Is that a presumption or the actuality?

The European Commission would decide whether to proceed with infraction proceedings, but we would be open to such proceedings.

Are you sure that the proceedings would be against the Scottish Executive, or would they be against the UK Administration?

They would be against the UK Government.

So there are no implications for the Scottish Executive.

We have a statutory duty to implement European Union directives and we would be in breach of that duty.

That is understood. Your case seems to rest on the interpretation of commercial transactions. The evidence from the Law Society of Scotland is that it does not consider the word "transactions" to cover advocates fees. How do you respond to that? I assume that you have the letter from the Law Society.

I do not think that the letter addresses the question whether the arrangement by which an advocate is paid fees is a commercial transaction in terms of the directive. The letter states:

"We do not consider that the use of ‘transactions' in the Directive is intended to cover Advocates' fees".

However, it does not seem to explain that reasoning. The case to which it refers deals with the question whether a contract of employment arises, but it does not offer guidance as to whether a commercial transaction is involved. In my view, the letter does not address that question.

The Law Society contends that adding a reference to advocates could make the instrument ultra vires. Your contention is that the 1998 act implicitly covered advocates anyway, and that you included the reference simply to make things clear. Is that correct?

We believe that, because the directive covers commercial transactions, it would cover advocates' fees, although the question would be moot. Therefore, for the sake of clarity, we inserted proposed new section 2A. We do not believe that that is ultra vires; if we did, we would not have presented the SSI to the committee.

My only other comment is that the instrument raises serious questions about the resourcing of the Subordinate Legislation Committee—and other committees that scrutinise statutory instruments—in terms of advice that we can receive on legal matters. That ought to be addressed by the conveners liaison group.

That point is noted, Mr Wilson.

I plead doubly guilty. I sit on the Subordinate Legislation Committee, and agree that Andrew Wilson's point about how SSIs—or at least some of them—come before us is pertinent. I agree that the matter should be raised with the conveners liaison group.

I share the minister's view that it is not clear that it is trite law that advocates in Scotland cannot sue for their fees. I can think of only one case in which that was done to no resolution.

I fear that that is one more case than I could think of.

It does not help us in any event. I seek clarity with regard to the fact that the vehicle that the principle act uses is that of contract, which takes us to the nub of Lloyd Quinan's position, in so far as we appear to have moved from a vehicle of contract to a vehicle of commercial transaction.

What is in the mind of the Executive with regard to the relationship between counsel, solicitor and client? Is an attempt being made to suggest that such recourse is in the order of a commercial transaction, or is the idea simply to provide some bolstering of counsel's position in relation to long-outstanding debts, which is a feature of the Scottish bar on which we might have wanted to take some evidence—for example, from Faculty Services Ltd, which acts as a collecting agency for the Faculty of Advocates?

We have no intention of using this SSI to change in any way the nature of the relationship between counsel and client. It is our view, however, that advocates enter a commercial transaction and are, in essence, small businesses that provide services in return for fees. Therefore they, like other small businesses, should be covered by the protection of the late payments directive. Businesses generally receive that protection. There is no intention either to comment on—except in passing—or to change or influence the nature of the relationship between advocates and their clients.

I note the references to the position of the profession in the south. The directive applies throughout the European Union. Can you assist us as to the position elsewhere in the union as far as advocates are concerned?

I cannot, although I can confirm that the directive is an EU-wide directive. The presumption would be that, where there is a commercial transaction, the protection would be available.

I take the point about the importance of supporting our obligations in order to comply with the directive. Am I right in thinking that, in the event that we caused the United Kingdom to be in breach of the directive, there would be implications for the Scottish Executive in connection with any infraction proceedings?

I understand that, if a penalty were to be imposed under infraction proceedings as a result of our action here, the responsibility for that penalty would lie with us.

Did I understand you to say that the inclusion of new section 2A in the 1998 act under the instrument before us was not an inadvertent mistake, but a deliberate act?

Yes—it was an act of clarity.

Yet there seems to be agreement that an advocate's position in relation to a client, particularly that which obtains for fees and recovery of fees, is a moot point.

Yes.

Is it not extraordinary that the committee was not proffered advice when considering the instrument?

My understanding is that the factual advice around the instrument, including the issue in relation to advocates, was included in the note. I am not sure whether you are asking why the committee was not given the legal advice that was made available to the Executive. Procedurally, that would have been unusual.

My concern is that the committee was presented with an instrument, which purported to be a technical instrument that was benign in intent. However, it now appears that the instrument deals with an issue that everyone appears to agree is a moot point, which is whether the relationship between advocates and their clients is a commercial relationship or a contractual relationship and whether it involves a legal right to recover fees. If that is a moot point, it seems strange that specific reference would be made to the issue in the regulations but the attention of the committee would not be drawn to it.

We do not believe that the substantive point in the statutory instrument is moot. We believe that the relationship is a commercial transaction that is covered by the directive. In answer to an earlier question, I said that the point that we believe to be moot relates to whether it is possible for an advocate to sue for return of fees. That lies outside the technicalities of the instrument.

I do not wish to be pernickety, but I think that it is hard to define a commercial transaction unless the parties within that transaction have a legal relationship between them, which would ultimately involve the legal right of one party to recover something from the other. That is implicit in the nature of a commercial transaction. I do not require you to comment on that view; I am merely stating it.

Will the minister comment on Lloyd Quinan's point about the pressure on the legal aid system?

The Scottish Legal Aid Board has not expressed any concern about that. The point of principle is that we are creating a protection to ensure that payments are made on time. SLAB should be required to make payments on time. That seems right and proper.

Did you say that regulations relating to the late payment of commercial debts apply to barristers in England because they have entered into a contract?

Not precisely. I said that it was open to barristers in England to enter into a contract, but that it was not open to advocates in Scotland to do so. That means that it is possible for barristers in England to avail themselves of the protection of legislation that depends upon the existence of a contract.

In other words, barristers were not left out of the legislation in England; they can be covered by the legislation if they choose to sign a contract and use the legislation to cover them in late payment situations. The reason why there is a specific reference to advocates in the instrument is because of the rather anachronistic law surrounding the relationship between advocates and their clients.

Whether the law is anachronistic is a debate for another time. The law is different. The situation is different, so our approach is different.

Is the idea to give advocates the protection of the law?

Yes.

Barristers in England already enjoy the protection of the law, if they choose to exercise it.

Yes.

I will make two points about the Scottish Legal Aid Board. It strikes me that the answer to concerns about any onerous imposition on the block might lie in the circumstances in which sums due from the Scottish Legal Aid Board to counsel constitute a qualifying debt. One would work out what was a qualifying debt not from these regulations, but from the civil legal aid regulations or the criminal legal aid regulations, because when a civil advocate or an advocate practising in the High Court completes a portion of work on a litigation or advice on a litigation, that sum will not become immediately due.

In a legal aid transaction, there are various stages at which sums might become due or not due. I do not know whether the minister's officials can assist us on that. Regulation 2(4) shows that it seems to be expected that circumstances will arise in which statutory interest will not be exigible in respect of transactions that have been specified by Scottish ministers.

In relation to Lloyd Quinan's comments, I say—more as an observation than as a question—that arrangements exist for sums that fall due to counsel if counsel is appointed to the shrieval bench or to the supreme court bench. That relates to the point on article 6 of directive 2000/35. I do not want to give legal advice on that, but I would not consider the fact that appointed counsel might have a direct interest to be as substantial an interest as might be thought. The situation inevitably arises in circumstances in which a person is paid after the event and becomes a sheriff or a judge.

Infraction proceedings are a bit of a red herring in the short term. How many times has the Commission instigated infraction proceedings? Under what time scale has it operated?

I do not know. The Executive has a statutory duty and it would be wrong to argue that we should not fulfil that duty on the basis that it might take a long time for the European Commission to respond. The statutory duty is the principle.

Surely all that our duty involves is ensuring that directives are implemented appropriately. The Executive has the power and the duty to choose the appropriate way to implement directives on reserved matters, provided that we are broadly compliant. Given that the issue has arisen, would not it be better to annul the measure, resolve the issues, then implement a measure that is right, rather than to say, "Oh well, we are going to be in breach of the directive"?

Like Mr Fitzpatrick, I have been a member of the Subordinate Legislation Committee. Numerous directives have been implemented late for all sorts of reasons and we have not had infraction proceedings. Usually, we are given the message that the Executive wants to take more time to get the legislation right. Would it not be better to take more time to get it right?

Performing our statutory duty as best we can is important and that is what we seek to do. If the statutory instrument that is in force is annulled, we will be in breach of the directive.

It is clearly the case that issues around the statutory instrument and the implementation of the directive have arisen very late in the procedure and I appreciate the position that that has put the committee in. I would be willing to suggest an alternative to Mr Mundell's approach. If the committee were willing to reject Mr Quinan's motion, in order to allow our statutory duty to be discharged, I would be willing to return to the committee at a later date when the committee and I have had time to consider the substantive issues. That would not leave us in breach of the directive but would give us the opportunity to revoke the instrument at a later date if that were the wish of the Parliament.

Would I be right in inferring that you detect that there is an issue?

I have argued that we believe that the instrument is correct and that it will implement the late payments directive in a way that is appropriate in Scotland. However, I have to acknowledge the fact that the committee is concerned about some of the issues that have been raised. We are obliged to take account of that. I ask the committee to consider allowing the statutory instrument to remain in force if I give an undertaking to return to the committee to discuss the issues further at a later time.

Would you be minded to undertake to return to the committee within, say, three months to give further evidence on your department's thinking on the issue?

That would seem to be reasonable.

I welcome the minister's suggestion, but I think that it would set an enormously unhelpful precedent for the Parliament as the legislative arm of government. If the Parliament were to let an instrument become statute and allow the Government to come back to Parliament when it had considered the situation further, we would have absolutely no formal sanction and could take no formal position that could influence the Government beyond declaring that we hold an opinion.

The minister's position is clear and I agree that the situation is troubling. I am not clear about why we should not pass Mr Quinan's motion today, as that would give us a chance to debate tomorrow the issues that have been raised more fully in Parliament. I am not satisfied that the minister has answered in full the points that have been raised, as he appears to be in some doubt.

If the Parliament annuls the statutory instrument and passes it back to the Executive for amendment and the Executive then brings it back to the Parliament for approval, what would be the problem from the European Commission's point of view? Given that it would be able to see that we were merely trying to tidy up an unfortunate mistake in the legislation, why would there even be an issue of infraction? It would be clear that the intention of the legislative and executive arms of government was to pass the European Commission's directive and that we were trying to find the best way to do so. There is no issue at stake. Is there a time limit with regard to the directive?

My understanding is that there is a period of 40 days in which to annul a negative instrument. That 40-day period expires tomorrow.

I was talking about a time limit for the directive, not the instrument. By what date do we have to have the directive fully incorporated?

By 8 August this year.

So we are already late?

No. The statutory instrument is already in force; the motion is to annul it.

I believe that the instrument came into effect on 7 August.

I am conscious of the fact that we are debating the motion to annul the statutory instrument as if the only thing at stake is whether the European Commission will take action against us. The convener referred to the legislation as benign. Far from being benign, the measure is very beneficial. It will benefit the huge number of companies in Scotland that suffer from the late payment of commercial debt. We should be pleased that we are agreeing to this law.

It is obvious that, having thought the matter through, the Executive has found that there is an issue with the non-contractual arrangements that advocates currently enjoy. The Executive has tried to address that issue. The minister has promised to come back to the committee after giving the matter further consideration. The instrument will certainly do a lot of good for many companies in Scotland. For that reason alone, we should support it.

That is why I described the instrument as benign, but let us not get into a semantic exercise.

Calling the instrument benign implies that it is impassive or that there is a lack of action.

I suspect that the Faculty of Advocates would suggest that the effect of not getting paid is not benign, but that is a different matter.

I welcome the minister's suggestion. Unlike Andrew Wilson, I feel that there is a strong tension because of competing demands. I do not start from the operating principle that we as a lawmaking body should put ourselves in breach of our obligations as part of a member state, which might mean that we have to face up to the consequences in the event of early or late infraction proceedings. It would be unhelpful if the committee were to establish that precedent today.

However, I am troubled by the tension in the opening preamble of the directive. Recital (19) makes it clear that

"Where an agreement mainly serves the purpose of procuring the debtor additional liquidity at the expense of the creditor, or"—

this is the more conventional case—

"where the main contractor imposes on his suppliers and subcontractors terms of payment which are not justified … these may be considered to be factors constituting such an abuse."

That is an important point.

The first page of the statutory instrument makes it clear that it affects advocates. As a committee, we need to own up to the fact that we did not notice that. Albeit that the instrument came through as one of a series of SSIs, I did not notice it—mea culpa—nor do I hear anyone else saying that they noticed it. The Subordinate Legislation Committee certainly did not seem to notice it.

However, the regulatory impact assessment makes it quite clear that the instrument is directed towards invoices of small to medium-sized enterprises and that it proceeded on the basis that advocates were considered to be such enterprises. Yes, an advocate is a small to medium-sized enterprise, but he would not necessarily see himself in those terms.

The arrangements need to be explored. Perhaps we might be able to do that with the representatives who are here from the Law Society of Scotland and the Faculty of Advocates. A key feature of the regulatory impact assessment and of the regulations themselves is that they allow not only for statutory interest but, in effect, for a fixed-sum civil penalty to be applied. That is an important point, because such penalties could have a worrying impact on the relationships between solicitor and client and between solicitor and counsel.

No mention seems to be made of the arrangements between the Scottish Legal Aid Board and Faculty Services Ltd. One feature that drives the civil penalty is the attempt to ensure that small and medium-sized enterprises are not put to the additional cost of setting up a series of sophisticated arrangements to track what is happening with individual payments because of routine non-payment by particular clients. Personally, I do not know what the faculty's arrangements are either internally or with solicitors or the Legal Aid Board. I am some distance from it. It is quite clear from the regulatory impact assessment that the issue has never been addressed.

The consultation paper that the Executive published back in July 2001 elicited seven responses, five of which were about implementation. The responses were mainly from trade associations and interested parties. Perhaps the minister will be able to assist with this question, but I do not understand why the Law Society, the Faculty of Advocates and the Scottish Legal Aid Board, which is an arm of Government, are not included in the respondents.

I welcome what the minister has said. It is evident that there are competing tensions, which we must address.

The Faculty of Advocates was a respondent to the consultation paper.

It was? I am sorry.

We have discussed many of the substantive issues at some length. I have given an undertaking to return to the committee within three months to discuss the matter further. I ask the committee to reject Mr Quinan's motion.

In many ways, Mr Macintosh made the most important point. The principle behind the directive and its implementation in Scotland and in the UK is to provide protection for those who are owed money and to ensure that the money is paid to them timeously. I repeat that the SI is in force and that, if it were annulled, we would be obliged to consider European Commission infraction proceedings. It is rather more important to note that many businesses in Scotland would not have the protection of the law while we decided how to proceed.

Although I take seriously the concerns that have been expressed about the position of advocates, they would seem to be disproportionate to the situation. I ask the committee to reject Mr Quinan's motion on the basis that we will revisit the matter. I will return to the committee to discuss the instrument further.

The situation that we are discussing has been described as a moot point. The question is whether advocates can sue for a fee when the accepted norm is that they do not do so. The norm is for moot points to be settled in court. The minister has supported my view that the situation runs the risk of provoking judicial review.

I refer the committee to a letter from Richard Morgan, the Department of Trade and Industry solicitor who prepared the initial instrument, in which he writes, with regard to the application of the directive across the UK, that it was not anticipated that the equivalent regulations south of the border would apply to barristers in England, Wales and Northern Ireland. The reason for that is that barristers are retained and are paid an honorarium rather than being party to a contract, whereas there is a perception that engaging Scottish advocates is tantamount to forming a contract, for which advocates receive fees. The result of that is to create an anomaly in the regulation of equivalent professions in Scotland and in the rest of the UK. That appears odd, given that the EU directive seeks to harmonise payment periods across the EU. We are not following the letter of the EU directive.

The minister singularly failed to answer the question whether the solicitor or the client will make the payment of interest. The instrument includes the word "transaction" in the first line of section 2A, which is a word that does not exist in the SI for the rest of the UK. The SI also includes a reference in the last line of section 2A to

"a contract for the supply of services for the purposes of this Act."

The substantive point is the reference to a "contract" and not a "transaction". Advocates do not enter into contracts, which makes the use of the word "contract" irrelevant. The minister's suggestion that we consider the situation again in three months is an indication of what lies behind the instrument.

You have one minute remaining, Mr Quinan.

The note that the Executive gave to the committee contained an apology for the late delivery of the directive. This is a red herring. Rejecting this instrument, which could be replaced within a week by another SI that would do what the minister is offering to do in three months, would be the sensible way to proceed, rather than moving to law and throwing the baby out with the bath water. Yes, it is important to every SME, individual and small business in the country that the SI is enacted quickly, but we should not enact a piece of law on the basis that we disadvantage another section of society.

There is no requirement for the legislation; the Faculty of Advocates does not require it. As every member of the committee knows, the Law Society of Scotland has made it very clear that it believes that the SI will require to go to judicial review. As I have said before, if we make a law that requires confirmation in the courts, it is a bad law.

On a point of order, convener, I know that our arrangements are rather ad hoc and I do not mean to criticise Mr Quinan, but it is unhelpful to introduce new material that cannot be tested when summing up. We do not know the whereabouts of the letter—seemingly from someone at the DTI—that was adduced in the summing-up and which contains a rather extraordinary proposition. We do not have a context for the letter. That is not a comment on the presentation of the case; it is more a comment on the circumstances in which we find ourselves when a matter comes before the committee late.

I also do not think that it is in order for a member, when summing up, to put a gloss on the provision. I am sure that, on reflection, Mr Quinan will notice that section 2A attempts to equiparate the position of professional services. It does not suggest that there is an equivalence between professional services and a contract. That is quite clearly the position.

The point of order is genuine if it refers to the procedure adopted by an individual in summing up. My view is that Mr Quinan's reference is indeed circumstantial at best and does not touch on the germane substance of the debate to which the committee has been able to listen. I propose to find that Mr Quinan's summing up is acceptable, although Mr Fitzpatrick is quite right that we are working with ad hoc proceedings, which is never easy. I am sure that his remarks will be helpful if there is any need for the procedures to be repeated in future.

I thank everyone who has contributed to the debate. We now come to the vote. The motion is very simple and is as tabled under agenda item 5.

I beg your pardon, but could you clarify whether voting that nothing further be done means that we do not send the SI to the Parliament or that we do?

If you vote for Mr Quinan's motion, and that is the majority view of the committee, the decision moves on to the Parliament. If you vote against Mr Quinan's motion, and that is the majority wish of the committee, the matter dies.

To vote that nothing further be done with the instrument means that it would fall.

I am obliged.

The question is, that motion S1M-3468, in the name of Lloyd Quinan, be agreed to. Are we agreed?

No.

There will be a division.

For

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Wilson, Andrew (Central Scotland) (SNP)

Against

Goldie, Miss Annabel (West of Scotland) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)

Abstentions

Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Mundell, David (South of Scotland) (Con)

The result of the division is: For 2, Against 3, Abstentions 2.

Motion disagreed to.

On a point of order, convener. Is it appropriate for the convener to vote, except in the case of a tied vote?

Yes, the convener has the right to vote.

I confirm that our report to the Parliament based on our previous discussion of the statutory instrument stands.

I thank all members for contributing to the discussion. I particularly thank Mr Quinan and the minister for attending to address the issues under consideration. Before I leave the item, I say to the minister that I hope that he will be cognisant of the observations that he made to the committee. The committee will certainly expect a response in the not-too-distant future.

By all means.

Meeting suspended.

On resuming—