Remit:
The remit of the Subordinate Legislation Committee is to consider and report on—
(a) any—
(i) subordinate legislation laid before the Parliament;
(ii) [deleted]
(iii) pension or grants motion as described in Rule 8.11A.1;
and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;
(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;
(c) general questions relating to powers to make subordinate legislation;
(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;
(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or
31 of the 2010 Act; and
(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.
(Standing Orders of the Scottish Parliament, Rule 6.11)
Membership:
Chic Brodie
Nigel Don (Convener)
James Dornan (Deputy Convener)
Kezia Dugdale
Mike MacKenzie
John Scott
Drew Smith
Committee Clerking Team:
Clerk to the Committee
Irene Fleming
Assistant Clerk
Euan Donald
Support Manager
Lori Gray
Subordinate Legislation
The Committee reports to the Parliament as follows—
1. At its meeting on 22 November 2011, the Committee agreed to draw the attention of the Parliament to the following instruments—
Education (Fees) (Scotland) Regulations 2011 (SSI 2011/389);
Act of Adjournal (Criminal Procedure Rules Amendment No.7) (Double Jeopardy (Scotland) Act 2011) 2011 (SSI 2011/387); and
Act of Sederunt (Contempt of Court in Civil Proceedings) 2011 (SSI 2011/388)
2. The Committee’s recommendations in relation to these instruments are set out below. Those instruments that the Committee determined it did not need to draw the Parliament’s attention to are set out at the end of this report.
NEGATIVE PROCEDURE
Education (Fees) (Scotland) Regulations 2011 (SSI 2011/389) (Education and Culture Committee)
3. The purposes of these Regulations are interconnected with the purposes of the draft Student Fees (Specification) (Scotland) Order 2011 which the Committee also considered at its meeting on 22 November.
4. The general purpose of the Regulations is to change, with effect from the academic year 2012/13, the way in which higher education tuition fees are applied to students who normally live in another part of the UK outside Scotland (“RUK ordinary resident students”). RUK ordinary resident students will be excluded from the arrangements in terms of which the Scottish Ministers set tuition fee levels. This will leave institutions free to set their own tuition fee levels for this group, as they currently do for ‘non-EU international students’.
5. “Post 2011/12 students” will be subject to the new arrangements. These are students who commence a course of education in the academic year 2012-13 (or later academic years) and who are not “deferred students” or “new deferred students” within the meaning of the 2006 Order as amended. The Order specifies fee levels for full time students only, not part time. The Regulations, authorising higher fees levels if the higher education institutions so determine, are not so restricted.
6. The Regulations are subject to negative procedure. They will come into force on 1 August 2012.
7. In paragraph (a) of the definition of “family member” in regulation 2(1) of these Regulations, “Swiss frontier employed person” is referred to, but it does not appear to be a defined term in the instrument. The Scottish Government was consequently asked if it had intended to refer to “Swiss frontier worker”, and if so what is the effect of the error? The correspondence is reproduced at Appendix 1.
8. “Family member” is used within Schedule 1, which defines the various categories of “excepted students” for the purposes of the Regulations. The Scottish Government acknowledged that there is a drafting error in the definition of “family member” in regulation 2(1). Although “Swiss frontier employed person” is referred to, the defined term is “Swiss frontier worker”. (A “Swiss frontier worker” is a Swiss national who is an employed person in the UK, and resides in Switzerland or the territory of an EEA State, other than UK, and returns to their residence in Switzerland or that EEA state, as the case may be, daily or at least once a week.)
9. The term used as the defined term strictly has no meaning within the instrument, not being defined. It does not appear to be entirely obvious that a “Swiss frontier employed person” in the Regulations must be read as a “Swiss frontier worker” as there are 4 definitions (in regulation 2(1)) related to Swiss employed persons or workers.
10. The drafting therefore appears to be defective in the definition of “family member” in regulation 2(1). “Swiss frontier employed person” is referred to, but this is not a defined term in the instrument and should refer to “Swiss frontier worker”. As such, the Committee draws the Regulations to the attention of Parliament on reporting ground (i).
11. In so doing, the Committee notes that the Scottish Government has undertaken to bring forward an amending instrument to correct the error, which will come into force on the same day as these Regulations.
INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE
Act of Adjournal (Criminal Procedure Rules Amendment No.7) (Double Jeopardy (Scotland) Act 2011) 2011 (SSI 2011/387) (Justice Committee)
12. This instrument amends the Criminal Procedure Rules 1996 in consequence of the commencement of the Double Jeopardy (Scotland) Act 2011 (“the 2011 Act”) on 28 November 2011.
13. The 2011 Act sets out the circumstances in which an acquitted person may be prosecuted for a second time. Under the Act the prosecutor must apply to the High Court for authority to bring the second prosecution. This instrument provides a new chapter in the Criminal Procedure rules setting out the procedure by which such applications can be made and considered.
14. Section 5(1) of the 2011 Act requires the Lord Advocate to send a copy of an application for authority for a second prosecution to the acquitted person where the application relates to either (a) tainted trial, (b) subsequent admission or (c) substantial new evidence.
15. New rule 59.2(2), as inserted by this instrument, repeats this requirement. The Lord President’s Private Office was asked why this provision was made. This correspondence is reproduced at Appendix 2. The LPPO explained that it had repeated this requirement in order to be consistent with rule 59.3(2) which imposes a similar requirement for notice on the prosecutor where an application is made in relation to a second prosecution under sections 11 (subsequent death of person injured) or 12 ( trial a nullity) of the 2011 Act.
16. The Committee considers that, while specification of intimation of an application might normally be thought to be a procedural matter for the courts, it was nevertheless considered important enough for the Parliament to specify this as a requirement in relation to some applications. It is unnecessary for the court rules to repeat this.
17. The Committee considers that the provision made by rule 59.2(2) adds nothing and is therefore otiose. The LPPO viewed the inclusion of the rule as a matter of internal consistency within the rules themselves and so it is presumed that the courts will interpret it as such. The Committee does not consider that the inclusion of this superfluous rule affects the validity or operation of the remainder of the rules.
18. Therefore, the Committee draws the instrument to the attention of the Parliament on the general reporting ground, as Rule 59.2(2) makes superfluous provision duplicating the effect of section 5(1) of the Double Jeopardy (Scotland) Act 2011 contrary to normal drafting practice.
Act of Sederunt (Contempt of Court in Civil Proceedings) 2011 (SSI 2011/388) (Justice Committee)
19. This instrument specifies the procedure to be followed in the Court of Session and the sheriff courts in relation to certain types of contempt of court which arise in civil proceedings.
20. Sheriffs and judges have a power at common law to punish contempts of court which take place in their courts. That power extends to the imprisonment of persons whom they have found guilty of contempt. Contempt of court can take a wide variety of forms (for example failing to comply with a court order, or discourtesy to the court by those appearing before it).
21. This instrument makes provision for particular types of contempt: those which are directed personally at the presiding sheriff or judge in the course of civil proceedings, for example directing foul or abusive language at the sheriff or judge when they are sitting in court. These rules are intended to ensure that, in those circumstances, another sheriff or judge will deal with the alleged contempt which has taken place. In other circumstances (for example if a mobile phone were to go off repeatedly in court), the presiding sheriff or judge would continue to be able to deal with that contempt themselves.
22. Given that contempt of court is understood to be a concept sui generis (which, in this context, means that it is neither strictly a civil nor a criminal matter, but something with a separate nature of its own), the Lord President’s Private Office (LPPO) was asked if the regulation of proceedings for dealing with alleged contempts of court could properly be said to constitute the regulation of the procedure and practice to be followed in any civil proceedings in the Sheriff Court, in terms of section 32(1) of the Sheriff Courts (Scotland) Act 1971. This correspondence is reproduced at Appendix 3.
23. In its response, the LPPO points out that contempt of court is an offence, although it accepts that it is sui generis. It also notes, however, that as contempt will arise either in civil or criminal proceedings then the general powers of the Court of Session and the High Court to regulate civil and criminal proceedings may be applied to regulate the procedure applicable to contempt proceedings. The Committee considers that this approach is misconceived.
24. LPPO’s position appears to be that because an alleged contempt takes place in the course of civil proceedings it may competently be regulated by the Court of Session in virtue of its general rule-making powers in section 5 of the Court of Session Act 1988 (for the Court of Session) and section 32 of the Sheriff Courts (Scotland) Act 1971 (for the Sheriff Court). However, these powers are not identical. For this reason, the question put to LPPO was confined to querying the scope of section 32. Section 5 may be wide enough to encompass the making of rules for the procedure in contempt proceedings in the Court of Session. It allows the regulation of “…procedure and practice to be followed in various categories of causes in the Court…”. By contrast, section 32 enables the judges of the Court of Session to regulate “…the procedure and practice to be followed in any civil proceedings in the sheriff court…”.
25. LPPO itself accepts that contempt of court is neither civil nor criminal. Accordingly, proceedings for contempt of court cannot be said to constitute civil proceedings. The Committee notes that the power of the Court of Session to make rules is extended beyond those general words in 17 separate cases listed within section 32. However, none of those paragraphs provides power to regulate proceedings for contempt of court. The Committee therefore questions whether those separate contempt proceedings can properly be said to be incidental or related to the procedure and practice to be followed in civil proceedings. LPPO appears to be of the view that the necessary connection between these rules and civil proceedings is that the alleged contempt will have arisen in the context of those civil proceedings.
26. The Committee accepts that there may be some connection between an alleged contempt of court and the civil proceedings which are in progress when it arises. However, it is not clear that regulating the subsequent treatment of that alleged contempt can properly be said to be incidental to the procedure or practice applicable to the civil proceedings which are ongoing. The Committee does not consider that it is clearly established that this instrument goes beyond the bounds of section 32, but it does appear to represent an unusual use of the powers conferred by the parent statute. The Committee considers that making rules to regulate the procedure in contempt proceedings is at best a marginal use of the power conferred: section 32 by way of clarification sets out 17 other such cases where reliance on the general words of the section appears to have been considered insufficient. That list has been amended and added to at various points in the 40 years since section 32 was enacted, but never so as to add an explicit power to regulate the procedure in contempt proceedings. The Committee observes that the power has never, in those 40 years, previously been exercised in such a way.
27. So far as this instrument makes rules for the procedure to be followed in contempt proceedings in the sheriff court, it has been made by what appears to be an unusual use of the powers conferred by section 32(1) of the Sheriff Courts (Scotland) Act 1971.
28. Accordingly, the Committee draws the instrument to the attention of the Parliament on reporting ground (g).
29. LPPO was asked to explain whether the use of the undefined term “member of the court” in rule 2(2) was sufficiently clear. It took the view that it was, and that it would be understood as referring to the sheriff or judge who is hearing the proceedings. Accordingly, alleged contempts of court will only be dealt with under this instrument where they are directed personally at that sheriff or judge. LPPO considers that, it will be for the sheriff or judge to decide whether the instrument applies in any given case, it would be sufficiently clear to the sheriff or judge that “member of the court” would not extend to other court officials. The Committee accepts this clarification.
30. Rule 4(1) provides that the court before which the alleged contempt takes place is to fix a diet for a hearing of the matter by a differently constituted court. However, it does not specify how this “other court” is to be constituted.
31. LPPO was asked to explain, by reference to four specific questions, how the expression “differently constituted court” was to be construed. This term is undefined in the instrument. However, it is of some importance as the primary purpose of the instrument is to ensure that alleged contempts directed against one sheriff or judge are dealt with by another sheriff or judge. These questions are set out at Appendix 3.
32. LPPO concedes that rule 4(1) is drawn in very wide terms, and that it could potentially be construed in ways which would undermine the intention of the instrument as a whole. It argues that the intention is to provide the judges with the maximum flexibility necessary to do justice. Having heard the explanations provided, the Committee agrees that this provision is capable of being operated successfully. The Committee accepts that judges are public authorities and will have to operate the instrument compatibly with people’s Convention rights (particularly Articles 5 and 6). The Committee considers, however, and LPPO accepts, that this comes at the expense of clarity for the end user of the instrument.
33. The meaning of rule 4(1) could be clearer. The rule provides, without further explanation, that a “differently constituted court” is to deal with the contempt proceedings. It is not clear from the rule what will constitute a differently constituted court, although presiding judges and sheriffs will have to interpret it compatibly with the rights of the person accused under Articles 5 and 6 of the European Convention on Human Rights.
34. Given this lack of clarity, the Committee draws the instrument to the attention of the Parliament on reporting ground (h).
35. Rule 9(1) provides that a person who is remanded in custody in respect of an alleged contempt before a sheriff, sheriff principal or Lord Ordinary (who may be understood to fall within the meaning of “a lower court”) may appeal against that detention to the Inner House. The rule, however, makes no provision for a person who is remanded in custody by the Inner House to appeal that detention.
36. LPPO takes the view that appeals by persons remanded by the Inner House are a matter within the discretion of the court (i.e. the Inner House), despite no provision to this effect having been made. By explicitly providing for an appeal from the other courts involved, but not from the Inner House, it appears to suggest that it is not possible to appeal against a decision to remand by the Inner House.
37. The Committee does not consider that it is correct to describe this as a matter which falls within the discretion of the Inner House. At present, persons remanded in custody over an alleged contempt in any civil court can seek review of that decision by petition to the nobile officium of the Court of Session. The nobile officium is an extraordinary power which the court has to provide a remedy in circumstances where no other remedy exists, when it is necessary to do so in the interests of justice.
38. The right to petition the nobile officium cannot be excluded by implication alone, so we take the view that a person remanded by the Inner House might lodge such a petition as at present. The petition would be heard in the Inner House (presumably by different judges to those who remanded the petitioner in custody).
39. LPPO accepts that there may be some force in this analysis. In any event, it considers that the court would ensure that an appeal was available to a person remanded by the Inner House in some way. While this may be the case, it is not instantly apparent to a reader of this instrument, which provides for an explicit right of appeal from the lower courts but is silent on the position in the Inner House. The Committee considers that reliance on a right of appeal outwith the instrument (whether by way of the court’s discretion or by petition to the nobile officium) would not be clear to the end user, who may not be legally qualified or assisted.
40. The Committee therefore concludes that the meaning of rule 9(1) could be clearer. That rule only provides for appeals from lower courts and is silent on appeals from the Inner House. However, it appears that rights of appeal exist, although they are to be found outwith the instrument, and the instrument is not intended to exclude them although it may appear to do so by implication.
41. Accordingly, the Committee draws the instrument to the attention of the Parliament on reporting ground (h).
42. Rule 9(2) provides that, where a person appeals against a decision to remand him or her in custody, the appeal is to be treated procedurally, so far as possible, as a bail appeal in criminal proceedings. LPPO was asked to explain the interaction between Chapter 41 of the Rules of the Court of Session, which ordinarily governs the procedure to be followed in civil appeals under statute, and section 32 of the Criminal Procedure (Scotland) Act 1995, which governs bail appeals.
43. On balance, the Committee considers that this provision may be taken as disapplying Chapter 41 by implication, and adopting the section 32 regime. The Committee notes, however, that very substantial adaptation of section 32 will be required to make it operate in proceedings which are not criminal in nature. A particular difficulty appears to be the role of the Lord Advocate or public prosecutor in that section: the Lord Advocate has no role to play, in the ordinary course of things, in proceedings for contempt (unless he elects to bring criminal proceedings in relation to the alleged contempt, at which point the entire instrument ceases to apply). The application of section 32, combined with that of rule 5, would appear to impose a duplicated duty on the first judge to prepare a report, although the persons on whom the reports should be intimated differ.
44. For these reasons, the Committee considers that the effect of rule 9(2) could be clearer. This rule specifies the procedure to be followed when persons are remanded in custody in connection with an alleged contempt of court. That procedure is of some importance because it represents the means by which those persons bring the lawfulness of their detention under review before a court (and so secures their rights under Article 5(4) of the European Convention on Human Rights).
45. The Committee considers that the meaning of rule 9(2) could be clearer. Although that rule provides for appeals to be treated, so far as possible, as if they were bail appeals in criminal proceedings, the degree of modification required to section 32 of the Criminal Procedure (Scotland) Act 1995 (which governs bail appeals) is substantial. The Committee considers that the procedure which would apply in consequence would not necessarily be clear or accessible to appellants.
46. The Committee therefore draws the instrument to the attention of the Parliament on reporting ground (h).
47. Given the number of serious issues raised by the Committee on this instrument, it strongly recommends that the lead committee give this instrument careful consideration.
48. At its meeting on 22 November 2011, the Committee also considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:
Economy, Energy and Tourism Committee
Storage of Carbon Dioxide (Licensing etc.) (Scotland) Amendment Regulations 2011 [draft]
Education and Culture Committee
Student Fees (Specification) (Scotland) Order 2011 [draft]
Health and Sport Committee
London Olympic Games and Paralympic Games (Advertising and Trading) (Scotland) Regulations 2011 [draft]
Justice Committee
Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No.3) 2011 (SSI 2011/386)
Rural Affairs, Climate Change and Environment Committee
Removal, Storage and Disposal of Vehicles (Prescribed Sums and Chargers etc.) (Scotland) Regulations 2011 (SSI 2011/394)
Spring Traps Approval (Scotland) Order 2011 (SSI 2011/393)
INSTRUMENTS SUBJECT TO THE NEGATIVE PROCEDURE
APPENDIX 1
The Education (Fees) (Scotland) Regulations 2011 (SSI 2011/389)
On 11 November 2011 the Scottish Government was asked:
1. (a) In relation to the effect of paragraph 1(2) of Schedule 2, could you explain what category or categories of post 2011/12 student it is intended to exclude by this provision?
(b) Beyond being resident in Scotland for the purposes of a full-time course starting on or around the relevant date, in what circumstances would the words “in any sense attributable to or connected with” and “as respects any part of which its purpose was” disqualify students from being treated as ordinarily resident on the relevant date?
2. In paragraph (a) of the definition of “family member” in regulation 2(1), “Swiss frontier employed person” is referred to, but this does not appear to be a defined term in the instrument? Is it intended to refer to “Swiss frontier worker”, and if so what is the effect of the error?
The Scottish Government responded as follows:
1. (a) The purpose of paragraph 1(2) of Schedule 2 is to exclude post 2011/12 students who are as a matter of fact resident in Scotland on the relevant date, but that residence is attributable to, or connected with, residence in Scotland at any time during the 3 year period immediately preceding the relevant date the purpose of which was wholly or mainly that of receiving full-time education. The most likely scenario would be where a student is living in Scotland on the relevant date having attended a secondary school in Scotland, or undertaken some other course of education in Scotland, during all or part of the 3 year period immediately preceding the relevant date in circumstances where his or her family home was somewhere other than Scotland.
(b) As noted in response to question 1(a) it is envisaged that a student would not be considered to be “ordinarily resident” in Scotland on the relevant date if his or her residence there on that date is attributable to, or connected with, any period of residence in Scotland in the 3 year period immediately preceding the relevant date the purpose of which was wholly or mainly that of receiving full time secondary school education or any other form of full time education.
By way of further information, it may be noted that this reflects the existing position in relation to eligibility for student support for higher education in terms of the Students’ Allowances (Scotland) Regulations 2007 (see, in particular, paragraph 1(a) of Schedule 1 and paragraph 1(2) of Schedule 2).
The reference to “Swiss frontier employed person” in the definition of family member in regulation 2(1) is a drafting error and we are grateful to the Subordinate Legislation Committee’s legal advisers for identifying this. The Scottish Government undertakes to make an amending instrument so that the correct reference will appear when the regulations come into force on 1 August 2012.
INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE
APPENDIX 2
Act of Adjournal (Criminal Procedure Rules Amendment No. 7) (Double Jeopardy (Scotland) Act 2011) 2011 (SSI 2011/387)
On 11 November 2011 the Lord President’s Private office was asked:
New rule 59.2(2) requires the Lord Advocate to send a copy of an application under section 2(2), 3(3)(b) or 4(3) of the 2011 Act to the acquitted person. This is already required by section 5(1) of the 2011 Act. What is the reason for making further provision to this effect in the criminal procedure rules?
The Lord President’s Private Office responded as follows:
Section 5(1) of the 2011 Act is common to applications made under section 2(2), 3(3)(b) and 4(3)(b) of the 2011 Act. There is no corresponding section in relation to applications of the prosecutor under section 11(3) or 12(3) of the 2011 Act (other subsequent prosecutions). Accordingly rule 59.3(2) was required and rule 59.2(2) was added to be consistent with rule 59.3(2) and to make Chapter 59 comprehensive.
APPENDIX 3
On 11 November 2011 The Lord President’s Private Office was asked:
1. Given that contempt of court is understood to be a concept sui generis, can the regulation of proceedings for dealing with alleged contempts of court properly be said to constitute the regulation of the procedure and practice to be followed in any civil proceedings in the Sheriff Court, in terms of section 32(1) of the Sheriff Courts (Scotland) Act 1971?
2. In rule 2(2), the term “member of the court” is used without definition. Are the persons who fall within this category sufficiently clear? In particular, is it intended that this reference refer only to the sheriff or judge(s) before whom the proceedings are being conducted, or does it include others such as assessors, clerks of court, bar officers and macers? Is the effect of rule 2 that in respect of alleged contempts directed at persons other than “a member of the court” the presiding sheriff or judge may deal with the matter without referring it to a differently constituted court?
3. Rule 4(1) provides that the court before which the alleged contempt takes place is to fix a diet for a hearing of the matter by a differently constituted court. However, it does not specify how this “other court” is to be constituted. Is it sufficiently clear:
(a) whether the other court should be of the same level as the first court (i.e. where the alleged contempt occurs before a sheriff, that another sheriff hear the contempt hearing, or if a Lord Ordinary that another Lord Ordinary should do so)?
(b) in the case of an alleged contempt before a sheriff, whether the contempt hearing must proceed before another sheriff of the same sheriffdom?
(c) in the case of an alleged contempt before a sheriff principal, whether the contempt hearing ought to proceed before the sheriff principal of another sheriffdom, and if so which other sheriff principal would have jurisdiction?
(d) in the case of an alleged contempt before a Court of Five Judges or a Full Bench, who might conduct the contempt hearing?
4. Rule 9(1) provides that a person remanded in custody by a lower court may appeal to the Inner House. Is it intended that no appeal may be taken if a person is remanded in custody in respect of an alleged contempt before a Division of the Inner House? If that is the case, is rule 9(1) capable of being operated compatibly with such persons’ Convention rights?
5. Rule 9(2) provides for remand appeals to be treated procedurally, so far as possible, as if they were bail appeals in criminal proceedings. Notwithstanding that provision, to what extent does Chapter 41 of the Rules of the Court of Session apply to these appeals? To what extent is section 32 of the Criminal Procedure (Scotland) Act 1995 to be taken to apply to these appeals, and so far as both Chapter 41 and section 32 may apply, which provisions prevail? In all the circumstances, is it sufficiently clear to the end users of this instrument (including, for the avoidance of doubt, persons remanded in custody under rules 4 or 8) the procedural arrangements which will apply to a remand appeal?
The Lord President’s Private Office responded as follows:
Background
Following the recommendations of the Lord Justice Clerk (Gill) in Robertson & Gough v HM Advocate 2007 SLT 1153 (in particular paragraph 102), the Lord Justice General established a working group with a remit to consider procedure for circumstances where a contempt may have been committed “in the face of the court” and it was inappropriate for the court concerned to consider and deal with the matter. The group was originally chaired by Lord Johnston and subsequently by Lord Osborne. Its other members were Lord Brodie, Sheriff Morrison, Sheriff Welsh and Brian Ritchie JP.
The first priority for the group was a set of rules for the criminal courts which sought to introduce a flexible and simple scheme whilst not intruding upon those matters which were properly within the court’s discretion. These were presented to the Criminal Courts Rules Council in draft on 23 February 2009. The Act of Adjournal (Criminal Procedure Rules Amendment No 2) (Contempt of Court) 2009 (SSI 2009/243) was subsequently made by the High Court of Justiciary and came into force on 5 August 2009. The Act of Adjournal was considered by the Subordinate Legislation Committee on 23 June 2009, the Committee agreed that no points arose.
Though it is rarer for contempts to be committed in the face of the civil courts, it seemed logical to devise a similar set of arrangements for them. A draft Act of Sederunt was prepared and presented to the Court of Session Rules Council and the Sheriff Court Rules Council. The Lord President subsequently approved the finalised draft and it was made by the Court of Session on 2 November 2011.
Response
1. The Lord President’s Private Office agrees that the concept, or more accurately the offence, of contempt of court is sui generis being neither criminal nor civil. That being said the question of whether a contempt has occurred will arise out of either criminal or civil proceedings and as such the High Court of Justiciary’s or the Court of Session’s rule making powers in respect of the practice and procedure to be followed in proceedings in those jurisdictions can properly regulate such matters. This view was taken when the abovementioned Act of Adjournal was made.
2. The Lord President’s Private Office takes the view that “member of the court” is sufficiently clear given the context in which it is being used and by whom i.e. by the sheriff or judge(s). It does not cover others who would properly be described as officers of court and it remains within the discretion of the sheriff or judge(s) as to how to deal with an alleged contempt not directed against a member of the court personally.
3. The Lord President’s Private Office is aware the Rule 4(1) does not specify how the other court is to be constituted. How the other court is constituted will depend on the circumstances in each case and remains, properly, a matter within the court’s discretion. In most circumstances the other court will be of the same level as the first court but in some circumstances, such as those mentioned in Anwar (respondent) 2008 SLT 710, it may be a higher court. It would not be appropriate, however, for the Lord President’s Private Office to prejudge how the court will exercise its discretion in this regard.
4. Rule 9(1) is a matter which remains within the court’s discretion. It may be the case that the appeal goes to another division of the Inner House or a larger bench depending upon the circumstances of the case.
5. Rule 9(2) provides that the (remand) appeal is to be treated procedurally, so far as possible, as though it were a bail appeal in criminal proceedings. The effect of this provision is to apply the relevant criminal procedure legislation (for example section 32 of the Criminal Procedure (Scotland) Act 1995) so far as is possible in the civil proceedings in which the alleged contempt has occurred. Accordingly Chapter 41 of the Rules of the Court of Session does not apply and the Lord President’s Private Office takes the view that this is sufficiently clear.