Seòmar agus comataidhean

I will bring in Michael Paparakis, if I may.

Yes, I think that it is. I might bring Michael Paparakis in, but I think that this relates to electronic communications and section 13. We have not been specific in the bill—for example, we have not referred to emails in the legislation itself, but the explanatory notes include guidance on, for example, an information technology outage and emails. I note that the Law Society of Scotland has also raised concerns, and if the committee or the Law Society have suggestions for strengthening the bill, I am open to those, but I feel that we have covered that aspect.

Some of the proposed reforms to the law of remedies for breach of contract relate to mutuality of contract. The bill seeks to abolish any rule of law to the effect that a party who is in breach of contract is not entitled to exercise any right or pursue any remedy arising from a breach of contract by the other contracting party.

A key feature of the bill in relation to the law of remedies concerns the restitution of benefits after termination of the contract for a party’s material breach. The bill provides that, where a contract is rescinded for breach and a party to the contract has received any benefit from the performance by another party of an obligation under the contract, the benefit must be returned, provided that the other party concurrently returns any benefit that it has received. The bill includes detailed rules on the valuation of non-money benefits for compensation, including payment for use of benefits that have been improved by the recipient.

Another provision concerns remedies for breach in relation to contributory negligence through amendment of the Law Reform (Contributory Negligence) Act 1945.

I know that this is all very technical, but that is a bit more detail on exactly what the bill goes into.

I will bring in Michael Paparakis to speak to the technical side.

Yes. It allows a certain degree of flexibility.

Colin, do you want to come in on that?

I am confident that the bill will make the law more accessible and legally certain than what we currently have, and that guidance will not be needed. I understand that that was the majority view heard by the committee. We will publish the explanatory notes with the bill, which will provide a clear and accessible explanation about what the provisions do.

Contracts are widely used, and it would be a huge undertaking to publish and maintain guidance that accommodates the breadth of the purposes of contracts. For example, the RIAS has suggested that guidance should be prepared for the construction sector, but any such guidance would be of limited value for other business sectors, and vice versa. I therefore feel that, at the moment, the explanatory notes and the guidance that we will be giving are sufficient.

I have considered carefully Dr Brown’s comments, particularly the suggestion that reforming contract law inadvertently alters the wider Scots law of obligations and formation of trusts, wills and promises. Although the bill puts in statute law on formation of contract, it is not a complete codification of the law. Section 23(a) states:

“The provisions of this Act are without prejudice to any enactment or rule of law which … regulates any question which relates to … the formation of a contract … but is not provided for by the provisions of this Act”.

The law on other contractual matters is also saved by section 23. As Professor MacQueen told the committee, Dr Brown’s concerns appear to be “misplaced”, and I agree with that assessment. I also note that Dr Brown’s view was not shared by the other stakeholders who gave evidence.

Yes.

I can confirm that Mr Golden and I have had constructive discussions since stage 1, and I am pleased to say that the Government will support all the amendments that he has lodged at stage 2.

Unfortunately, I cannot support any of the amendments in the name of Rachael Hamilton. Although I understand the sentiment behind amendment 19, it is the wrong approach. Sentencing in criminal cases is for the independent courts and is subject to certain parameters that are set out in law. Amendment 19 would require the court to consider two specific matters when sentencing for the dog theft offence, but only if the dog in question was a working gun dog. No definition of the expression “working gun dog” is included in amendment 19.

The court will already take into account the two matters that are specified in the amendment—operational loss and emotional impact—in its consideration of all relevant facts and circumstances in a case. Specifying those two matters is unnecessary and risks skewing the sentencing process by giving undue prominence to the specified matters.

Absolutely. That is a main part of Mr Golden’s amendments.

Amendment 19 would also risk creating doubt about whether the courts should take account of the two specified matters when the dog that has been stolen is not a working gun dog. That goes back to the definition of a working dog: we want them all to be covered, not just the working gun dogs.

The theft of other types of working dog can also cause operational loss, and, whether the theft of any dog causes operational loss or not, it is likely to have an emotional impact. It would be unhelpful to frame the law in a way that signals that the courts need to consider those matters in sentencing only when the dog that has been stolen is of a particular kind. I therefore urge the committee to reject amendment 19.

I encourage members to support amendment 9, which will remove section 3 from the bill and ensure that the treatment of the dog theft offence is consistent with the treatment of all other offences that are prosecuted under solemn procedure.

As Mr Golden said in his opening remarks, the Victims, Witnesses, and Justice Reform (Scotland) Act 2025 includes provision to extend victim impact statements to all solemn cases, which will include cases of dog theft that are prosecuted under solemn procedure. That is the right approach.

I urge members to support amendment 9.