Official Report 875KB pdf
The next item of business is a debate on motion S6M-20173, in the name of Siobhian Brown, on the Contract (Formation and Remedies) (Scotland) Bill at stage 1. Members who wish to participate in the debate should press their request-to-speak buttons.
I call Siobhian Brown to speak to and move the motion. Minister, you may have around six minutes.
13:17
The Contract (Formation and Remedies) (Scotland) Bill, which implements recommendations made by the Scottish Law Commission in 2018, is concerned with contract law—specifically, the formation of contracts and what happens in certain contexts if the terms of a contract are not met.
Contract law is important to our everyday economic life and in all types of transactions. It involves businesses and individuals alike. Many contracts are made and carried through and then become the subject of disputes between parties who have no professional assistance. One of the bill’s principal purposes is to produce legal rules that are clear, certain and accessible, and, like most of the witnesses that the Delegated Powers and Law Reform Committee heard from, I think that that aim has been achieved.
It is important to be clear at the outset that the majority of the provisions in the bill are default provisions—in other words, parties can continue to enter into contracts on their own agreed terms and do not have to follow the provisions in the bill if they do not fit with their circumstances. That reflects the principle of party autonomy, which witnesses and the committee recognised as vital. I should also say that the bill is not a complete codification of the law of contract formation; it largely restates the current law while clarifying doubts that have accumulated over the years.
The main reform in part 1 is the abolition of the postal acceptance rule. Under that rule, a contract may be concluded without one party ever having received communication to that effect. Abolition of that rule has been an SLC recommendation for a long time; indeed, it is a recommendation that has been made a number of times over the past 50 years, and I am pleased to bring forward a provision that will, finally, give effect to it.
Part 2 of the bill deals with some of the remedies for breach of contract. However, it is not a complete consolidation of the law on remedies. The SLC consulted on the issue, but it was clear from stakeholder opinion that there was no appetite for such a far-reaching reform of the law. Instead, the bill reforms parts of the law on the steps that one party can take when the other party has breached its contractual obligations.
I will move on to the law of retention, which is a remedy that is meant to be used by parties to encourage performance of a contract without having to go to court. I wrote to the committee in October to set out my intention to lodge amendments at stage 2 to reform that law, and it is the end result of a period of consultation building on the considered work of the SLC and Lorna Richardson of the University of Edinburgh over the past decade or so.
The law of retention is unclear, and we have an opportunity here to bring much-needed clarity. As there appears to be some doubt among stakeholders whether the retention provisions will be default, I make it clear that it is my intention that those provisions can be contracted out of. That is an important point, and it addresses a number of concerns that were raised by witnesses.
Will the Scottish Government’s proposed amendments take account of recent case law, which I think speaks to some of what the minister is referring to?
Yes, we will be considering that, too.
I know that the committee is supportive of the amendments, but it has asked me to look at drafting suggestions. I am willing to do so, and my officials will discuss matters with stakeholders in the lead-up to stage 2.
The final point that I would like to make about the bill concerns transitional provisions. A number of witnesses were strongly of the view that the provisions, if agreed to by the Parliament, should apply to contracts that are entered into after the commencement date, not to contracts that have already been formed. As I told the committee when I gave evidence, I share that view at the moment.
The general practice is to provide for transitional and commencement matters in regulations, and section 25 of the bill provides for those powers. The specifics will be worked out as the final form of the bill becomes clearer, keeping in mind that any amendments might have a bearing on the most desirable approach to be taken here. Overall, having listened to the stage 1 evidence, I am pleased that there is broad consensus on the approach being taken in the bill, and I welcome the committee’s recommendation to agree to its general principles.
I thank the Scottish Law Commission for the considerable work that went into this reform project. In particular, I thank the lead commissioner, Professor Hector MacQueen, for the time and effort that he has given to both the SLC and the Scottish Government; and I thank Lorna Richardson, a lecturer in commercial law at the University of Edinburgh, for her work with us on the general scheme for reforming the law of retention, which we consulted on earlier this year. I also thank everyone who gave evidence to the committee, and the members and clerks of the Delegated Powers and Law Reform Committee for their work in scrutinising this bill.
Finally, I thank Lady Paton, the chair of the Scottish Law Commission, for all her hard work over the past seven years at the commission. Lady Paton has personally overseen work on damages for personal injury and homicide, while working with the Scottish Government to introduce five SLC bills, including this one, in this parliamentary session. Her tenure as chair of the commission has come to an end, and I wish her all the very best in moving forward.
I move,
That the Parliament agrees to the general principles of the Contract (Formation and Remedies) (Scotland) Bill.
I call Stuart McMillan, to speak on behalf of the Delegated Powers and Law Reform Committee.
13:23
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.
I call Roz McCall to speak for about four minutes.
13:28
It gives me pleasure to speak in the stage 1 debate on the Contract (Formation and Remedies) (Scotland) Bill. I inform members—whoever is left in the chamber—that I do not intend to take my full six minutes, but please do not in any way take that as a comment about the importance of the bill.
In my short career as a member of the Scottish Parliament, I have not had the pleasure of working on a bill that has been supported by pretty much everyone who gave evidence. Only one respondent, Dr Jonathan Brown from the University of Strathclyde, was against the proposals. Although I understand his passion for the continued support of Scottish common law, clarification in the area of contract law has been needed for some time and, as has been mentioned, the bill is universally supported by stakeholders.
I take the opportunity to thank the Scottish Law Commission and everyone who participated in the evidence sessions. Additional thanks go to the clerks and staff on the committee for all their hard work.
As has been stated, the bill makes provision regarding the formation of contracts and the remedies for breach of contract. Many stakeholders have found the legal framework around contract law to be difficult to navigate. The Scottish Law Commission’s work leading up to the bill’s introduction concluded that some parts of contract law were unclear, difficult to find and in need of modernisation, and the bill rectifies those issues.
Academics are in agreement. Professor Stephen Bogle and Professor Tom Johnson from the University of Glasgow support the proposed reforms. They said:
“Considering the landscape of contemporary litigation in Scotland, it is increasingly evident that reform is needed—particularly due to the limited body of case law and a discernible hesitancy within the Scottish judiciary to articulate general principles beyond the specific factual matrix of individual cases”.
Business is in agreement. The Federation of Small Businesses in Scotland support the bill’s overall aims, with Colin Borland stating:
“It is quite sensible to have the bill to provide clear backstops where they have not been agreed in other terms by the parties. That makes perfect sense. As a general principle, anything that is done to codify, simplify or clarify the law and to make it easier for us as laypeople to understand has to be a good thing”.—[Official Report, Delegated Powers and Law Reform Committee, 25 November 2025; c 7.]
Lawyers are in agreement. The Law Society of Scotland supports the proposed reforms, stating:
“it is clear that a new statutory regime has the potential to offer benefits to certain parties by offering users a means to form agreements without a detailed understanding of case law or wider academic and institutional writings.”
Who are we to disagree? In layman’s terms, the bill makes it easier to understand the legalities around contacts, the implications of them and, if needed, the ability to contract out.
If I had to find anything that might be a small negative in regard to the bill, it would be that it has been a long time coming. The Scottish Law Commission has been looking at issues related to contract law since it was established in 1965, and the bill follows recommendations that the Law Commission made in 2018. It has been seven years in the making, which is perhaps a little disappointing.
I highlight the committee’s findings regarding retention. The Law Commission’s report stated that the law of retention did not need statutory reform, but that was not an accepted position when the Scottish Government consulted on the report back in 2024. Stakeholders have advised that the law of retention is now less clear than it was when the Law Commission published its report and that the law would benefit from clarification. I recognise the minister’s willingness to lodge amendments on retention at stage 2, and I welcome her collaborative approach on that issue and to the bill in general.
It is welcome that this bill has finally come to pass, and I sincerely hope that stages 2 and 3 are equally congenial.
Thank you, Ms McCall—I am grateful to you for not using all six of your four minutes.
13:33
I am pleased to open the debate on behalf of Scottish Labour, and I associate myself with the comments from the minister and the convener about Lady Paton.
Scottish Labour supports the general principles of the bill, while calling for the Government to work with stakeholders to consider how the bill could be improved ahead of stage 2. As a member of the Delegated Powers and Law Reform Committee, I was involved in the bill’s scrutiny. I thank my colleagues on the committee for the work that they have done in scrutinising the bill, and I thank all stakeholders who engaged with us in the evidence sessions for their involvement in the scrutiny process so far.
There has been a great deal of consensus on the provisions in the bill. It aims to implement recommendations that the Scottish Law Commission made in its 2018 review of contract law in order to codify the law in that area. As the minister said, it is an attempt to codify and simplify the law.
We do not accept that settled law always needs to be codified. However, we recognise the considerable work that the Scottish Law Commission has undertaken, and we support the contents of the bill. We also note that there is limited reform included in the bill. We hope that the bill does not lead to further litigation but, instead, clarifies the law and gives greater certainty.
As the minister said, the intention is that contract law should be clear. As she also stated, the bill deals with the postal acceptance rule, and there will be proposals in relation to the law of retention, which we welcome.
The bill seeks to implement the recommendations of the Scottish Law Commission by establishing default rules relating to the creation of contracts and aspects of the law on remedies for breach of contract, which we support. It does not intend to be a complete statutory codification of Scots common law on contract. Its provisions are intended as starting points or a default, as the minister outlined, always retaining the option for parties to contract out of them and provide their own rules by agreement.
The bill’s provisions might be particularly helpful in international and commercial contexts, in which clarity and predictability are central to maintaining standards. It will also allow the law to be modernised to reflect how the world has changed and, as the convener mentioned, how our postal services have changed, in that they have got far worse and seen no improvement in any sense. We have to deal with the fact that new technology will have an enhanced role and that there will be changes to how communication takes place, with less reliance on postal services.
I welcome the Scottish Government’s intention to introduce provisions on the law of retention. I invite ministers to consider the comments and drafting suggestions that have been made to the committee thus far and to engage with stakeholders on those suggestions ahead of stage 2. I hope that there will be consensus in that regard.
It would be helpful if the Scottish Government could provide a further update today on the outcome of any discussions that have taken place before the deadline for lodging stage 2 amendments, given that time will be limited between when we return after the Christmas break and the dissolution of Parliament.
We welcome the bill and the approach of having a simple piece of legislation that uses simple language so that parties know exactly what the rules are that govern them. We will be pleased to agree to the general principles of the bill, and we call on the Scottish Government to seek further views on its drafting and to prepare guidance that seeks to make the law as straightforward and usable as possible.
13:37
The bill seeks to modernise Scots contract law by clarifying how contracts are formed and what remedies will apply when obligations are not met. Scots contract law is based on historical common law principles that are scattered across case law and often hard to access.
In its 2018 report, the Scottish Law Commission identified that parts of the law were unclear, outdated and difficult to find, which creates uncertainty for businesses and individuals. The reforms that are proposed in the bill follow the Scottish Law Commission’s recommendations and aim to provide greater certainty and accessibility. The bill will introduce statutory rules on offers, acceptance, withdrawal and lapse. It will also codify remedies for breach, including restitution and valuation of benefits when no price is agreed. The changes are intended to make the law clearer and more predictable.
On remedies, although the inclusion of restitution and retention provisions is positive, some consultees expressed concern about their practical application. For example, how will courts assess reasonable value when no price is agreed? Will that lead to more litigation rather than less? I look forward to hearing more about those issues as the bill progresses.
Small businesses and consumer groups have welcomed the clarity, but they have also cautioned that the bill’s language must remain accessible. If the bill becomes overly technical, it could replicate the very barriers that it seeks to remove.
There are also questions about how the rules will interact with existing consumer protection frameworks. One of my concerns about the bill is that it will allow parties to contract out of many statutory provisions. For example, a consumer might pay for a service that never happened, but the contract might say that there will be no refunds under any circumstances. Under the bill, that might be enforceable if the consumer agrees, even though the default law would allow recovery.
I think that Lorna Slater shares my concern that the inequality of contracting power might be exploited by one party to work against individuals. Does she agree that that needs to be considered at stage 2, even if only to provide reassurance that such circumstances will not happen?
I completely agree. As I continue my remarks, Mr Whitfield will understand why. Although a contractor being able to contract out of statutory rights respects commercial freedom, some consumer advocates fear that protections for individuals in asymmetric relationships will be weakened, as Mr Whitfield said.
I do not disagree with the general point that Lorna Slater is making, but does she recognise that there are other mechanisms to protect the type of individuals whom she is talking about? For example, there are consumer rights, so there might be other mechanisms to address the issue.
I had not yet concluded my remarks, so Oliver Mundell has no idea what remedy I am proposing. I will now conclude my remarks.
Corporations have clever lawyers to draft dense contracts, and consumers often do not know what their statutory rights are. They might not even be aware that they are contracting out of them. My question to the minister is: what obligations or guidance will the Scottish Government put in place to ensure that individuals entering into contracts under the bill are not, without their full knowledge and consent, opting out of the statutory provisions that exist for their protection and wellbeing?
We move to the open debate. I call Bill Kidd, who has around four minutes.
13:41
I will not need 16 minutes or four minutes or anything like that, but that is beside the point. I thank Lady Paton, as everyone else has done. The way in which she has led this work and work on other elements of Scots law is absolutely brilliant.
I thank the Delegated Powers and Law Reform Committee’s clerking team, which has been excellent, as always. I also thank the Scottish parliamentary legal team for all the help that it has given us; it has been absolutely fabbydoo.
The bill restates and reforms aspects of contract law in Scotland and will produce rules that are clear, certain and accessible. It is important economically and socially that the contract law regime in Scotland is fit for the 21st century, so we have to make changes to improve, simplify and update aspects of contract law. I am pleased that the Delegated Powers and Law Reform Committee, working with stakeholder witnesses, has managed to show a broad consensus on the general principles of the bill, because we have to make the law clearer and more accessible.
The Scots law of contract has largely developed as a matter of common law, which limits the law’s accessibility to those without legal training. We need to introduce a modern and clear statute that will deal with disputes between parties in a way that is not possible in any single court case. The bill will introduce legislation that makes changes to improve, simplify and update aspects of common law.
The Delegated Powers and Law Reform Committee recommends that the general principles of the bill should be agreed to. The Law Society of Scotland has said that the legislation represents a
“modern approach”
and will
“address uncertainties on a number of specific points around contract law”.
If we agree to this very focused bill, we will make the law more accessible to lawyers and laypersons alike, reduce the number of disputes with consequential litigation, allow savings in court time and support preparation for litigation in contributory negligence cases. We must take our opportunity to ensure that contract law is fit for a modern Scottish economy.
I call Oliver Mundell, who has around four minutes.
13:44
I am grateful for the clarification on time, Presiding Officer, because Martin Whitfield told me on the way into the chamber that he was planning to speak for 30 minutes, and it frightened me that I might not get my lunch.
With that to one side, I associate myself with the kind words that have been said by many members in relation to Lady Paton. She has done an excellent job and has played a significant part in the fact that five Scottish Law Commission bills have proceeded during the parliamentary session.
Although today’s debate is in the graveyard slot and there is not a lot of controversy around it, we should not allow ourselves to mistake that for saying that the bill is not important. Parliament is not just here for headlines or to provide social media clips. The fact that we have waited almost a quarter of a century in the devolved era for this legislation to come forward poses some questions about how we do our business. Today’s debate is perhaps not the place to get into that, but there is room in a new parliamentary session for new thinking about further enhancing the processes that allow such bills to come forward and for allowing committees in general to introduce legislation.
Credit is due to Graeme Dey for pushing the process forward and for recognising the work of the DPLR Committee and the enthusiasm of its members, which is evident even today, just before Christmas. Credit is also due to Stuart McMillan in particular for making the time to look at the bills in such detail and with exactly the same consideration as would be given to any other legislation. As a past member of that committee, I know how well that has worked and how well the committee is supported by its clerks and the Parliament’s legal team.
As we have heard, there is little question about members’ support for the bill’s general principles. The only substantive opposition and concerns appear to have come from those who retain a romanticised attachment to common law and the institutional writers of ages past. When we look at the modern world and at some of the legislation that makes it on to the statute books, it is perhaps easy to see where such views come from. However, as other members have referenced, the world has changed and, if only we still had a reliable postal service to fall back on, things might be different.
I get that there is an attraction to maintaining traditions and distinctiveness in our legal system, but that has to be balanced and tempered by reality, both commercial and social. Predictability and accessibility in the law matter, and law does not exist in a vacuum, nor are its impacts confined exclusively within the bounds of Scotland. I think that that makes a strong case for careful and gradual codification in areas where uncertainty has emerged. It is important to recognise that that uncertainty has not emerged on purpose but through the absence, age and specific nature of case law.
In a number of key areas, the bill will make processes easier and will provide, as other members have referenced, a backstop or a starting point for contract formation. That is surely a good thing.
In closing, as we have already heard from any doubters, there will always be the opportunity for those who do not like the bill and its provisions to opt out and agree on alternatives. Those who stand to benefit most are the very individuals and small businesses that rely most on the law to establish fairness and balance. I therefore look forward to the bill moving forward to stages 2 and 3.
We move to closing speeches.
13:48
The Greens support the bill’s principles of modernisation and clarity. We must ensure that the bill works for individuals and small enterprises, not just large organisations with legal teams. That means clear drafting, robust guidance and monitoring of its impact in practice.
The bill is technical, but its implications are far reaching. Contracts underpin everyday life—from employment to housing to business. We still need to approach stage 2 with consideration, listen to stakeholder concerns and ensure that the reform delivers the clarity and fairness that it sets out to deliver.
I call Martin Whitfield, who has up to four minutes.
13:49
It is a pleasure to close this, if not graveyard debate, perhaps more terms and conditions slot that we find ourselves in, given that we are discussing contract law. The bill is a serious and thoughtful attempt to modernise Scots contract law that introduces clear statutory rules on contract formation and remedies for breach that will improve certainty, accessibility and fairness, particularly for people who negotiate without the specialist legal advice that some companies and corporations have.
As we have heard, the bill stems from the Scottish Law Commission’s 2018 review. Like others, I thank Lady Paton and the commission for the valuable work that they do.
A number of members have pointed out the challenges around what the current postal service provides in relation to the 19th century concept of postal acceptance, which will be abolished. I hope that I speak for the whole chamber when I say that that is a criticism not of our postal workers but perhaps of the organisation that they find themselves in.
The Law Commission’s purpose was explicit. It needed rules that are clear, as certain as possible and accessible to lawyer and layperson alike. That latter point is hugely important. Colin Borland of the Federation of Small Businesses welcomed that approach. He said:
“It is quite sensible to … provide clear backstops”
and that
“anything that is done to codify, simplify or clarify the law and to make it easier for us as laypeople to understand has to be a good thing.”—[Official Report, Delegated Powers and Law Reform Committee, 25 November 2025; c 7.]
I echo that view.
Similarly, the Law Society of Scotland noted that, although it may be overstating matters to argue that Scots contract law needs reform, a new statutory regime has the potential to offer benefits by providing rules that are usable without deep recourse to case law and academic sources, which we have heard about today.
I thank the Delegated Powers and Law Reform Committee for its phenomenal work with regard to this and other commission reports. I say gently to the committee’s convener that, although the bill has not attracted mass interest so far, we can be certain that, if mistakes were made and legislation that had unforeseen consequences was created, people would scream and shout. The committee does incredibly powerful work. It may go unnoticed, but that is perhaps one of the virtues of its success.
On the speeches that we have heard today, I thank Bill Kidd, if only for getting “fabbydoo” into the Official Report again—well done. I also thank Oliver Mundell for his speech. I noted his concern that I might speak for 30 minutes, but I would never impinge on the patience of the Presiding Officers by ignoring their indication of the length of time that we have to speak.
We recognise that the bill is not a complete codification. It leaves areas untouched with regard to interpretation, penalty clauses and what is commonly called the battle of the forms. I hope that the Government will signal that, at stage 2, it will lodge amendments on retention that reflect the case law. I look forward to seeing those.
I close by quoting an authority who is germane to the purposes today. When the commission's report was published, Professor Hector MacQueen said:
“when implemented this report will do much to remove current uncertainties as well as simplifying and modernising the law.”
That is the destination. Our task in Parliament is to not lose sight of the urgent human challenges that also require the Parliament’s attention and to move the bill forward as swiftly as possible.
I call Roz McCall to close on behalf of the Scottish Conservatives. You have up to four minutes.
13:53
I apologise once again for my earlier error on timing, Presiding Officer. I will take even less time in this speech.
It was remiss of me not to put on the record my kind thanks to Lady Paton in my opening remarks, so I would like to echo the thanks that other colleagues have expressed.
The Conservatives will support the bill at stage 1, and we will give due consideration to the subsequent stages, making sure that the stakeholders are still supportive as we go through the process. It has been said that this might be a bill that many people would not find sexy—I think that that is one way to put it—but it is nevertheless important and concerns something that everybody can get behind. We will see that as we move forward.
I have nothing more to add other than to wish everybody a very merry Christmas and a happy new year when it comes.
I call Siobhian Brown to close on behalf of the Scottish Government. You have four minutes.
13:54
I thank everyone who has contributed to this afternoon’s debate. I repeat my thanks to the Scottish Law Commission for the work that has gone into this project and the Delegated Powers and Law Reform Committee for its work in scrutinising the bill.
Contract law is important to our everyday economic life, and the bill will modernise important parts of the Scots law of contract while clearing up doubts that have arisen over a few years. It is clear from today’s debate that there is widespread support for the general principles of the bill.
I will touch on a few issues that have been raised today. On electronic communication, section 13 provides a general principle on when a notification, such as an acceptance, reaches another party. The provision is deliberately broad and flexible because it has to work in a wide range of circumstances and be capable of application to future technologies. I am pleased that the Delegated Powers and Law Reform Committee agrees with the approach that is taken in section 13.
Section 13(4) gives a non-exhaustive list of examples in which it might be considered that a notification has reached the other party. However, in individual cases, that must be measured against the general rule in section 13(3). An automatically generated out-of-office response may make it unreasonable to expect the addressee to be able to obtain access to a notification without delay, and the party sending the notification can forward it to a different email address, if known, pick up the phone or speak to someone. It is, of course, open to parties to make alternative provision during their negotiation, and the bill allows for that.
As members have said, this reform is important. In my MSP capacity, I recently visited Royal Mail in Prestwick and heard first hand all the challenges that it faces. Our hard-working postmen all felt demoralised because all they wanted to do was to deliver for the community, yet post was not being delivered and parcels were being prioritised.
I will touch on Katy Clark’s comments on the need for guidance. Contracts are used widely, and it would be a significant undertaking to publish and maintain guidance that accommodates the breadth of purposes to which contracts are put. For example, the Royal Incorporation of Architects in Scotland has suggested that guidance be prepared for the construction sector, but any such guidance would be of limited value because the standard form contracts for the industry would take precedence over the default rules in the bill.
Would the minister write to the committee in more detail as the bill progresses, outlining sector-specific areas where it is believed that guidance might be helpful?
I was just about to get to that.
I am confident that the bill will make the law more accessible and legally certain than it is at present. I do not feel that guidance from the Scottish Government is needed, which I understood was the majority view that was heard by the committee. The explanatory notes, together with the bill, provide a clear and accessible explanation of what the provisions do. Nevertheless, I have listened to the committee and will write to stakeholders for more information. I will consider the matter further and keep the committee updated.
On the point about the inequality of bargaining power, will the Government reach out to stakeholders to seek their views on whether there is a challenge in the fact that contractors can opt out of this, which may cause problems further down the line?
Yes, and I was going to confirm to Katy Clark that we will be engaging with all stakeholders ahead of stage 2. Mr Whitfield wants a clarification of what engagement is happening with stakeholders. My understanding is that it is on-going, but I will write to him with more detail on that.
Members will be aware that the bill does not affect consumer protections or the protections that are laid out in reserved law. That is expressly stated in section 23 of the bill.
It is clear from the overwhelming majority of stakeholders who submitted evidence at stage 1, and from what has been said in the debate, that reform is needed. The bill will modernise the law and make it more accessible and fit for purpose. There are matters to consider, though, and I look forward to working with the committee on those.
I ask Parliament to support the general principles of the bill. Merry Christmas to everyone.
That concludes the debate on the Contract (Formation and Remedies) (Scotland) Bill at stage 1.
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