Chamber and committees

I am still not quite sure why primary legislation cannot be used.

Good morning. On the general point of giving the power to the Lord President, there is concern from the Law Society and the Faculty of Advocates about the role of the Lord President. From your conversations with stakeholders, is there a concern in the judiciary that we are giving powers to the Lord President that could be seen as making him or her take political decisions, which is clearly not what the Lord President is there to do? Have concerns been raised that it is inappropriate for the Lord President to do that type of work?

Two weeks ago, we took evidence from the Faculty of Advocates and the Law Society of Scotland. It became clear that the Law Society in particular seemed to be fundamentally opposed to the provision at section 35 that would allow the Scottish ministers to make replacement regulatory arrangements in circumstances in which a regulator has ceased operating or is likely to cease operating. Could you address those concerns and the appropriateness of acting by subordinate legislation in an urgent situation rather than by bringing primary legislation to the Parliament?

Are the Lord President and the judiciary happy with the extension of those powers?

How would that be done? Do you foresee that happening through regulation or the bill?

Okay. I am slightly confused. Will the regulation-making power be introduced as the bill progresses, or, if a decision to introduce replacement arrangements were made, would regulations have to be laid before Parliament to allow the Lord President to act at a specific time?

Thank you.

So the Parliament would have no involvement in that.

I come back to the final point of my question. Obviously, regulations are subject to a lot less scrutiny by Parliament. Also, we can only say yes or no to them; there is no amending them. If replacement arrangements were required, why would they be introduced by regulation rather than through emergency primary legislation, which can be done within two or three days?

Section 41 enables the Scottish ministers to specify other regulatory matters that must be dealt with in the rules. In the evidence that we took a couple of weeks ago, the Law Society of Scotland said that that power was

“very broad and … an unwarranted extension of ministerial powers into the authorisation rules and practice rules for legal businesses.”—[Official Report, Delegated Powers and Law Reform Committee, 24 October 2023; c 37.]

The Law Society said that no amendment would make that power acceptable. Do you still want to keep section 41(2) in the bill?