23rd Report, 2013 (Session 4): Subordinate Legislation

SP Paper 302 (Web Only)

SL/S4/13/R23

23rd Report, 2013 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a)

(i) subordinate legislation laid before the Parliament;

(ii) any Scottish Statutory Instrument not laid before the Parliament but classed as general according to its subject matter;

and, in particular, to determine whether the attention of 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;

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Nigel Don (Convener)
Jim Eadie
Mike MacKenzie
Hanzala Malik
John Pentland
John Scott
Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 26 March 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Police Pensions (Contributions) Amendment (Scotland) Regulations 2013 (SSI 2013/89)

National Health Service (Optical Charges and Payments) (Scotland) Amendment Regulations 2013 (SSI 2013/96)

Act of Sederunt (Sheriff Court Rules) (Lay representation) 2013 (SSI 2013/91)

2. The Committee’s recommendations in relation to the instruments are set out below.

3. The instruments that the Committee determined that it did not need to draw the Parliament’s attention to are set out at the end of this report.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Police Pensions (Contributions) Amendment (Scotland) Regulations 2013 (SSI 2013/89) (Justice Committee)

4. This instrument amends the Police Pensions Regulations 1987 (“the 1987 Regulations”) and the Police Pensions (Scotland) Regulations 2007 to provide for an increase in the contribution rates payable by police officers from 1 April 2013.

5. It also corrects a number of errors created in those instruments by the Police Pensions (Contributions) Amendment (Scotland) Regulations 2012.

6. The regulations are subject to the negative procedure and come into force on 1 April 2013.

7. As there has been a failure to comply with the laying requirements in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, the Scottish Ministers provided a letter to the Presiding Officer explaining that failure. The Committee considered that explanation and the further explanation provided by the Scottish Ministers following a request from the Committee. The correspondence is reproduced at Appendix 1.

8. Section 28(2) sets out the rule that a Scottish statutory instrument which is subject to negative procedure must be laid before Parliament as soon as practicable after it is made, and in any event at least 28 days before the instrument comes into force. This is known as the “28 day rule”.

9. This instrument comes into force on 1 April 2013. It was laid on 6 March 2013, meaning that 22 sitting days will have elapsed before the instrument comes into force, once the Easter recess is taken into account. Consequently, it does not comply with section 28(2).

10. The Committee draws the instrument to the attention of the Parliament on reporting ground (j). There has been a failure to lay the instrument at least 28 days before it comes into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

11. However, it is for the Committee to consider separately whether it is satisfied with the explanation provided by the Scottish Ministers. The Committee asked the Ministers for additional explanation of certain matters which they mentioned in their letter to the Presiding Officer.

12. The Committee also had regard to the statement made by the Cabinet Secretary for Finance, Employment and Sustainable Growth to the Parliament on 28 November 2012 when he advised that the Scottish Ministers would implement the second stage of increases for the Teachers’, NHS, Police and Firefighters’ pension schemes in Scotland. This instrument gives effect to that decision, as regards the police schemes.

13. In its letter of 4 March 2013, the Scottish Public Pensions Agency on behalf of the Scottish Ministers stated that the Home Office only confirmed to the Scottish Ministers the rates in respect of the police schemes on 1 March 2013, by which date it was too late for this instrument to meet the requirements of the 28 day rule if it was to come into force on 1 April 2013, as it must do in order to achieve consistency in the contribution rates throughout the UK. It appeared to the Committee that the letter of 4 March did not in any detail explain why these circumstances had arisen, although it does characterise them as “unavoidable”. The Committee accordingly sought further clarification from the Scottish Ministers.

14. The Committee notes the terms of the response, in which the Ministers go on to argue that there is no link in law between the contribution rates applicable in England and those applicable in Scotland. The Committee does not disagree with that proposition, although it appears to cut across the arguments advanced in the letter of 4 March. It is quite clear to the Committee that it is a policy decision on the part of the Ministers to mirror the contribution rates applicable in the rest of the United Kingdom. In the Committee’s view, however, this response does nothing to assist in explaining why the laying requirements in this Parliament were not respected.

15. Despite that conclusion, the Committee recognises that, as a result of the policy adopted, it is necessary that this instrument come into force on 1 April 2013 in order to ensure consistency throughout the United Kingdom. It also recognises that its making was dependent upon receipt of confirmation from the Home Office of the applicable contribution rates. It accordingly considers the failure to be acceptable, having regard to the circumstances in which the Scottish Ministers found themselves and the consequences of failing to have this instrument come into force on 1 April.

16. In reaching this conclusion, the Committee has had regard, among other things, to the statement made by the Cabinet Secretary for Finance, Employment and Sustainable Growth to the Parliament on 28 November 2012, and the reasons given by the Cabinet Secretary for implementing the increased contribution rates. The Committee considers that the Cabinet Secretary’s statement set out the consequences which would result should this instrument not come into force at the same time as the equivalent provisions in the rest of the UK and it has taken that into account. The Committee considers that the Scottish Ministers might, however, have provided a more adequate explanation to the Presiding Officer as to why it was not possible properly to respect the laying requirements in making this instrument.

17. The Executive Note to the Police Pensions Amendment (Scotland) Regulations 2010 narrated that a UK-wide consolidation of the 1987 Regulations was planned for later in 2010. However, it has not yet taken place and no reference was made to plans for consolidation in the Policy Note to this instrument. The Committee accordingly asked the Scottish Ministers to provide an update on this matter. In their response, the Scottish Ministers explain that consolidation has been delayed by the wide-ranging reforms to public service pensions which followed the change of administration in May 2010. However, they go on to explain that the Home Office indicated last week that it is working on a draft consolidating instrument. They further advise that the Scottish Government will do everything possible to assist with progressing that project.

18. The Committee notes the update which the Scottish Ministers have provided in relation to the consolidation of the 1987 Regulations. It welcomes the news that the Home Office is currently working on a draft consolidating instrument, and further welcomes the commitment of the Scottish Ministers to do everything possible to assist with progressing that project.

National Health Service (Optical Charges and Payments) (Scotland) Amendment Regulations 2013 (SSI 2013/96) (Health and Sport)

19. This instrument increases the value of optical vouchers available to certain categories of person in connection with the supply, replacement and repair of optical appliances. These vouchers are accepted by suppliers in whole or part payment of the cost of optical appliances.

20. The changes come into effect in relation to vouchers accepted or used on or after 1 April 2013.

21. The regulations are subject to the negative procedure and come into force on 1 April 2013.

22. As there has been a failure to comply with the 28 day rule referred to in paragraph 8 above, the Scottish Ministers provided a letter to the Presiding Officer explaining the reasons for that failure. The Committee considered that explanation as part of its scrutiny of the instrument.

23. This instrument comes into force on 1 April 2013. It was laid on 15 March 2013, meaning that 14 sitting days will have elapsed before the instrument comes into force, taking the Easter recess into account. Consequently, it does not comply with section 28(2).

24. The Committee draws the instrument to the attention of the Parliament on reporting ground (j). There has been a failure to lay the instrument at least 28 days before it comes into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

25. Separately, it is for the Committee to consider whether it is satisfied with the explanation provided by the Scottish Ministers.

26. The Committee notes the explanation given in the letter to the Presiding Officer that the policy is for there to be uniform optical voucher values and supplements throughout the United Kingdom. It also notes that whether voucher and supplement values are increased in any particular year is optional. In this case it appears that the UK Government took a decision in late February to increase values for 2013, which did not allow for laying of the necessary Scottish statutory instrument 28 days in advance of 1 April 2013. The Committee accepts that once that decision was communicated to the Scottish Ministers, Ministers did what they could to expedite the Scottish regulations.

POINTS RAISED: INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Act of Sederunt (Sheriff Court Rules) (Lay representation) 2013 (SSI 2013/91) (Justice Committee)

27. This instrument amends the rules of court applicable in the sheriff court in order to make new provision for lay representation in the sheriff court. In doing so, it amends:

  • Schedule 1 to the Sheriff Courts (Scotland) Act 1907 (“the Ordinary Cause Rules”)
  • the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (“the Summary Application Rules”)
  • the Act of Sederunt (Summary Cause Rules) 2002 (“the Summary Cause Rules”)
  • the Act of Sederunt (Small Claim Rules) 2002 (“the Small Claim Rules”)

28. The instrument is not subject to any parliamentary procedure and comes into force on 4 April 2013.

29. In considering the instrument, the Committee asked the Lord President’s Private Office (“LPPO”) for clarification of certain points. The correspondence is reproduced at Appendix 3.

30. Section 36(1) of the Sheriff Courts (Scotland) Act 1971 (“the 1971 Act”) enables the Court of Session to exercise its general rule-making power to permit representation in summary causes by persons who were neither an advocate nor a solicitor (i.e. lay representation). It has done so for summary causes (rule 2.1(1)(d) of the Summary Cause Rules) and for small claims (rule 2.1(1)(d) of the Small Claim Rules), small claims being a subset of summary causes. In small claims, an authorised lay representative may do anything that a party to the action could do himself or herself, including signing court documents and appearing in court. Similarly, in summary causes, an authorised lay representative may do anything that a party to the action could do. However, the ability to appear in court is restricted to the first hearing, or where the action is undefended.

31. By contrast, lay representation has not previously been permitted in ordinary causes or summary applications, except where statute expressly permits it – the principal example in this category is actions under the Debtors (Scotland) Act 1987.

32. Section 127 of the Legal Services (Scotland) Act 2010 now enables the Court of Session to make rules permitting lay representation in any civil proceedings before the sheriff, subject to the conditions in section 32(1)(n) and section 32A of the 1971 Act. This goes further than section 36(1), which is confined to summary causes. However, the lay representation which may be provided for under this new power is more limited than that which section 36(1) provides for in summary causes: in particular, the lay representative is only entitled to make oral submissions at hearings when he or she has been specifically authorised to do so, and the party must appear alongside the lay representative.

33. The Committee understands that the intention is that the existing rules for lay representation in rule 2.1 of the Summary Cause Rules and the Small Claim Rules are to be unaffected by this instrument, and the new provision made for each of those sets of rules is said to be without prejudice to any other provision of the rules which permits lay representation.

34. However, it was not clear to the Committee when the new Chapter 2A of the Small Claim Rules could apply given that lay representation is already permitted in all small claims at all stages, in terms of rule 2.1(1)(d). It accordingly asked LPPO for clarification as to how the new Chapter 2A would operate within the existing context of the Small Claim Rules.

35. As LPPO acknowledges in its response, in all small claims a party may be represented by an authorised lay representative, in terms of rule 2.1(1)(d) of the Small Claim Rules. LPPO points out that this is subject to the tests in rule 2.1(3). Rule 2.1(3) provides that, where a sheriff finds that the authorised lay representative is not a) a suitable person to represent the party or b) not in fact authorised, the authorised lay representative must cease to represent the party. The Committee observes that both of these matters are personal to the authorised lay representative in question: it does not consider that a sheriff could find that it would be inappropriate in principle for any authorised lay representative, say, to examine witnesses in a particular case. It appears to the Committee that were a sheriff to make a finding under rule 2.1(3), the party would be entitled to instruct a fresh authorised lay representative to appear.

36. In its response to question 1(b), LPPO confirms that it agrees that provision permitting lay representation in all small claims is in force. New rule 2A.1(1) provides that the new Chapter 2A on lay representation is “…without prejudice to… any other provision in these Rules… under which provision is… made for a party to a particular type of case before the sheriff to be represented by a lay representative.” The Committee therefore understands that provision to mean that the new rules on lay representation will not affect any other provision in the Small Claim Rules which permit lay representation. Rule 2A.2 goes on to provide for lay representation “[i]n any proceedings in respect of which no provision as mentioned in rule 2A.1(1) is in force…”. Where such a provision is in force, then logically rule 2A.2 cannot apply.

37. Although the words “a particular type of case” are not particularly apt given that rule 2.1(1)(d) provides for lay representation in all small claims, we do not consider that “a particular type of case” must mean only a subset of small claims. However, LPPO appears to contend for this position in its answer to question 1(c). LPPO appears to envisage that bespoke provision might be made to permit lay representation in certain types of small claim. The reality is, however, that as with this new Chapter, any such provision would be otiose given the breadth of the present rule 2.1(1)(d). The Committee considers it notable that, unlike the Ordinary Cause Rules and the Summary Cause Rules, no express provision is made in the Small Claim Rules in respect of the Debtors (Scotland) Act 1987 – the ordinary words of rule 2.1(1)(d) are more than broad enough to encompass representation for the purposes of that Act.

38. In practical terms, the Committee cannot see that the new Chapter 2A is capable of applying so long as rule 2.1(1)(d) permits lay representation in all small claims. The Committee does not agree with LPPO’s view that, were a sheriff to find that an authorised lay representative was not a suitable person or was not in fact authorised under rule 2.1(3), the sheriff could reasonably go on to permit that person to appear instead in terms of rule 2A.2..

39. For all of these reasons, the Committee concludes that the condition in rule 2A.2 of the Small Claim Rules can never be satisfied. In its view, it is always possible to be represented in a small claim by an authorised lay representative under rule 2.1(1)(d), subject to the application of rule 2.1(3) which is personal to each individual authorised lay representative. Accordingly, the Committee considers that there is always provision in force which permits lay representation in small claims, and so rule 2A.2 can never apply.

40. The Committee considers that the inclusion of this provision runs the risk of causing substantial confusion as to what lay representatives may and may not do in small claims. That confusion could potentially undermine their existing rights in terms of rule 2.1(1)(d). The new provisions bear to apply when, on the analysis the Committee has adopted, they can never apply and given that these rules are intended to facilitate lay representation the Committee recommends that this matter is addressed.

41. The Committee draws the instrument to the attention of the Parliament on reporting ground (i). Paragraph 5 of this instrument appears to be defectively drafted in that it inserts a new Chapter 2A into the Small Claim Rules. By virtue of the provision in rule 2.1(1)(d) of the Small Claim Rules lay representation is already permitted in all small claims. However, rule 2A.2(1) only applies to enable lay representation in proceedings where no other provision which permits a party to be represented before the sheriff by a lay representative is in force. Given that lay representation is permitted in all small claims, it therefore appears that there are no circumstances in which Chapter 2A might apply.

42. A rather different issue arises in relation to the amendment of the Summary Cause Rules where the Committee understands that lay representation has historically been relatively limited. In a number of circumstances, principally relating to housing matters, authorised lay representatives may appear at all stages. However, for the majority of summary causes lay representation is limited to initial procedural matters and undefended actions.

43. As a consequence, the provisions of the new Chapter 2A of the Summary Cause Rules will provide for the possibility of a lay representative appearing where previously that would not have been permitted. However, the Committee was concerned about the interplay between the situations where a lay representative would be permitted in terms of the existing rules (with the ability to do anything that the party might do personally) and those situations where a lay representative would be permitted to exercise the rather more limited rights conferred by Chapter 2A (including the requirement to be accompanied by the party, and being limited to oral submissions at a hearing).

44. Given that these provisions of the Summary Cause Rules are, by their very nature, of interest principally to party litigants and to lay representatives who, by definition, are not legally qualified, the Committee asked LPPO whether it considered the position to be sufficiently clear.

45. LPPO appears to consider that Chapter 2A is capable of applying simultaneously with the existing rule 2.1(1)(d). Accordingly, it states that a lay representative could appear at the first hearing under either rule. No explanation is given as to why that could be the case, and it is difficult to reconcile with the provision in rule 2A.2(1) that representation under that rule is permissible “[i]n any proceedings in respect of which no provision as mentioned in rule 2A.1(1) is in force…”. The Committee considers that this underlines the complexity and lack of clarity of these provisions. It is particularly concerned that that the rules will not be easily understood by non-lawyers.

46. The Committee draws the instrument to the attention of the Parliament on reporting ground (h). The form or meaning of paragraph 4 of this instrument could be clearer insofar as it inserts a new Chapter 2A into the Summary Cause Rules. Lay representation is presently permitted under those Rules only at certain hearings, but the interaction with the new Chapter 2A is complex. Given that the provisions on lay representation are directed at persons who by definition are not legally qualified, it appears that the position on lay representation in summary causes, as amended by Chapter 2A, could be clearer.

47. The Committee welcomes the suggestion that that the Sheriff Court Rules Council may propose to the Scottish Civil Justice Council that it undertake a review of all rules on lay representation as part of its wider policy remit once the Scottish Civil Justice Council takes up its functions.

NO POINTS RAISED

48. At its meeting on 26 March 2013, the Committee 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:

Education and Culture

Children’s Hearings (Scotland) Act 2011 (Commencement No. 7) Order 2013 (SSI 2013/98 (C.7))

Infrastructure and Capital Investment

Road Traffic (Permitted Parking Area and Special Parking Area) (Fife Council) Designation Order 2013 (SSI 2013/93)

Parking Attendants (Wearing of Uniforms) (Fife Council Parking Area) Regulations 2013 (SSI 2013/94)

Road Traffic (Parking Adjudicators) (Fife Council) Regulations 2013 (SSI 2013/95)

Justice

Scottish Fire and Rescue Service (Framework and Appointed Day for Strategic Plan) Order 2013 (SSI 2013/97)

Title Conditions (Scotland) Act 2003 (Rural Housing Bodies) Amendment Order 2013 (SSI 2013/100)

APPENDIX 1

Police Pensions (Contributions) Amendment (Scotland) Regulations 2013 (SSI 2013/89)

On 14 March 2013, the Scottish Government was asked:

1. It appears from the letter of the Scottish Public Pensions Agency to the Presiding Officer that the contribution rates which are set by this instrument are required, as a matter of policy, to be aligned throughout the United Kingdom. The penultimate paragraph narrates that the appropriate rates were communicated timeously in respect of two other pension schemes, but the rates in respect of the police schemes were not confirmed to the Scottish Government by the Home Office until 1 March 2013. The Scottish Government is asked:

a. to explain the steps which were taken by the Scottish Government and the Home Office to ensure co-operation in respect of the making of this instrument in order that the laying requirements might be respected; and

b. why, when the rates in respect of the other schemes were communicated timeously, the rates in respect of the police schemes could not also have been communicated timeously?

2. The Executive Note to the Police Pensions Amendment (Scotland) Regulations 2010 narrated that a UK-wide consolidation of the Police Pensions Regulations 1987 (“the 1987 Regulations”) was planned for later in 2010, that instrument being the 24th amendment to the 1987 Regulations. This instrument will now be the 28th amendment to the 1987 Regulations, and the Policy Note for this instrument gives no indication as to when that proposed consolidation might be forthcoming. The Scottish Government is accordingly asked to provide an update as to the proposals for consolidation of the 1987 Regulations.

The Scottish Government responded as follows:

1. Scottish Government officials responsible for police pensions enjoy a good and constructive working relationship with their counterparts in the Home Office, built up over a number of years. The Home Office officials are fully aware of the existence of the 28-day rule in Scotland and are helpful in providing timeously information which will assist in trying to ensure that that rule is complied with wherever possible. There is, however, no linkage as a matter of law between the applicable contribution rates for police officers in England and those for officers in Scotland. There are likely to have been a considerable number of factors in play in relation to the final decision by UK Government Ministers as to 2013/14 rates for officers in England and that decision only required to be made early enough to enable the relevant instrument to be laid at Westminster at least 21 days before 1 April. There was no delay between the taking of the final decision and its communication to Scottish Government officials.

2. The Executive Note to the 2010 Regulations was drawn up in March 2010 and made reference to a UK-wide consolidation planned for later that year. The subsequent change of administration following the May 2010 UK general election has led to a wide-ranging programme of reform of public service pensions and the need to divert much official time to this. However, Home Office indicated to key scheme stakeholders as recently as last week that they are working on a draft consolidating instrument and the Scottish Government will do everything possible to assist with progressing this project.

Breach of laying requirements: letter to Presiding Officer

The above instrument was made on 4th March 2013 under section 1 of the Police Pensions Act 1976. It is being laid before the Scottish Parliament on 6th March 2013 and comes into force on 1 April 2013.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has not been complied with. In accordance with section 31(3) of that Act, this letter sets out why it is necessary to lay the instrument less than 28 days before it is brought into force.

This instrument fixes the pension contribution rates for police officers in Scotland under two public sector schemes applicable to Scotland. The schemes are reserved under the Scotland Act 1998, although the making of subordinate legislation in relation to the schemes is executively devolved.

On 28 October 2010 the UK Government set out is intent on delivering savings of £2.8bn per annum across the public sector pension schemes by 2014/15 by increasing employee contribution rates by an average of 3.25% of pay in three annual increments starting April 2012. Despite Scottish Ministers principled opposition to increasing employee contributions at this time and in this way the UK Government refused to change its policy and indicated that if similar increases were not introduced to the schemes in Scotland then the Scottish Budget would be adjusted accordingly. Scottish Ministers reluctantly introduced the first year of increases in the NHS, Teachers’, Police and Firefighter schemes from 1 April 2012.

In a statement to Parliament on 28 November 2012, the Cabinet Secretary for Finance, Employment and Sustainable Growth, John Swinney, announced the Scottish Government’s decision to implement the second annual increment of UK Government proposed employee contribution increases for the Teachers’, NHS, Police and Firefighters’ schemes in Scotland.

Whilst the UK rates for the NHS and Teachers schemes were confirmed to allow the subsequent statutory instruments for the Scottish schemes to be laid within the necessary Parliamentary time limits the revised rates for the Police scheme in England and Wales were only confirmed to the Scottish Government on 1st March by the Home Office.

This instrument has been made as soon as possible after the details of the contribution rates for England and Wales were communicated to the Scottish Government and in line with contribution increases to the other affected schemes must come into force on 1 April 2013. I should finally add that this is the first occasion that SPPA has had to lay late in respect of the police schemes, and we are making this request due to the unavoidable circumstances outlined above.

APPENDIX 2

National Health Service (Optical Charges and Payments) (Scotland) Amendment Regulations 2013 (SSI 2013/96)

Breach of laying requirements: letter to Presiding Officer

The above instrument was made by the Scottish Ministers under sections 70(1), 73(a), 74(a), 105(7) and 108(1) of, and paragraphs 2 and 2A of Schedule 11 to, the National Health Service (Scotland) Act 1978 on 13 March 2013. It is being laid before the Scottish Parliament today and is to come into force on 1 April 2013.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has not been complied with. In accordance with section 31(3) of that Act, this letter explains why.

The purpose of this instrument is to amend the National Health Service (Optical Charges and Payments) (Scotland) Regulations 1998 to increase optical voucher values and supplements. Optical vouchers are available to children and people on certain benefits or on low incomes. Voucher values are normally increased on 1 April in line with the increase agreed for England by the Department of Health and are the same throughout the United Kingdom. These increases take place most years, but not every year. Last year, the voucher values were increased.

This year, the Department of Health advised the Scottish Government on 27 February of a 1% increase in voucher values for 2013/14 (28 February we were notified of the actual increase in values). Due to late notification and considering the Easter recess, it is not possible to bring the increased voucher values into effect in Scotland on 1 April 2013 without laying this instrument less than 28 clear days before it is brought into force.

Equivalent Regulations in England and Wales will come into force on 1 April 2013. As at the date of this letter, we understand the position in Northern Ireland is under consideration.

Optical vouchers provide eligible people with help towards the cost of glasses or contact lenses. Any increase in the voucher values benefits eligible people as it increases the help available to them and a later coming into force date would disadvantage eligible people in Scotland. Bringing this instrument into force on 1 April 2013 will ensure that eligible people in Scotland who are issued with a voucher on or after that date are not disadvantaged.

We will work with the Department of Health to ensure earlier notification of future increases in voucher values.

APPENDIX 3

Act of Sederunt (Sheriff Court Rules) (Lay Representation) 2013 (SSI 2013/91)

On 15 March 2013, the Lord President’s Private Office was asked:

1. Paragraph 5(2) of this instrument inserts a new Chapter 2A (Lay representation) into the Small Claim Rules. Rule 2A.1(1) provides that Chapter 2A is without prejudice to any enactment, including any other provision in the Small Claim Rules, under which provision is made for a party to a particular type of case before the sheriff to be represented by a lay representative. Rule 2A.2(1) goes on to provide that – in any proceedings in respect of which no such provision is in force – the sheriff may, at the request of a party litigant, permit a lay representative to appear under certain conditions for certain purposes. However, rule 2.1(1)(d) provides that a party may be represented, subject to rule 2.1(3), by an authorised lay representative. It accordingly appears that in all small claims a party may be represented by an authorised lay representative in terms of rule 2.1(1)(d), subject to the suitability and continuing authorisation of that individual in terms of rule 2.1(3).

a. Does the Lord President’s Private Office agree that, in all small claims, a party may be represented by an authorised lay representative in terms of rule 2.1(1)(d) – and if not, why not?

b. Does the Lord President’s Private Office therefore agree that provision of the type mentioned in rule 2A.1(1) (i.e. permitting representation by a lay representative) is in force in respect of all small claims?

c. Given that rule 2A.2(1) applies only in relation to proceedings in respect of which no provision as mentioned in rule 2A.1(1) is in force, the Lord President’s Private Office is asked to explain the circumstances in which it considers that rule 2A.2(1) could ever apply – or whether it agrees that, as the Small Claim Rules presently stand, this condition cannot be satisfied.

2. Paragraph 4(2) of this instrument inserts a new Chapter 2A (Lay representation) into the Summary Cause Rules. Rule 2A.1(1) provides that Chapter 2A is without prejudice to any enactment, including any other provision in the Summary Cause Rules, under which provision is made for a party to a particular type of case before the sheriff to be represented by a lay representative. Rule 2A.2(1) goes on to provide that – in any proceedings in respect of which no such provision is in force – the sheriff may, at the request of a party litigant, permit a lay representative to appear under certain conditions for certain purposes. However, rule 2.1(1)(d) provides that a party may be represented, subject to rule 2.1(2) and (4), by an authorised lay representative. It appears that the effect of rule 2.1(2) is that a party may be represented at the initial hearing under rule 8.2 and at any subsequent undefended hearing by an authorised lay representative.

a. By analogy with question 1, does the Lord President’s Private Office agree that the consequence is that a lay representative under rule 2A.2(1) may not be appointed for the hearing under rule 8.2 and any subsequent undefended hearing, but may be appointed in respect of a subsequent hearing which is defended on the merits or on the amount of the sum due?

b. If so, the Lord President’s Private Office is asked to explain why this interaction between rule 2.1 and Chapter 2A is considered to be sufficiently clear, especially as these provisions are directed at a) parties who are not legally represented and b) prospective lay representatives, who – by definition – are not legally qualified.

The Lord President’s Private Office responded as follows:

1. It may be helpful to the Committee to preface the response with some introductory remarks.

Rule 2.1(1)(d) of the Small Claim Rules provides a right of representation for authorised lay representatives in all small claims. In accordance with rule 2.1(2) such an authorised lay representative can, in representing a party, do everything for the preparation and conduct of a small claim as may be done by an individual conducting his or her own claim – this would include lodging documents, examining witnesses, making oral submissions. This is, however, subject to the tests provided at rule 2.1(3)(a) and (b), which include a requirement that the sheriff finds that the authorised lay representative is suitable to represent the party. These rules were made further to section 36 of the Sheriff Courts (Scotland) Act 1971 and may be described as an “all or nothing” approach.

The right of representation that is introduced in new Chapter 2A is made in furtherance of section 127 of the Legal Services (Scotland) Act 2010, which expressly preserves section 36 of the 1971 Act. SSI 2013/91 makes similar provision in respect of all 4 main sheriff court rules – the Ordinary Cause Rules, the Summary Application Rules, the Summary Cause Rules and the Small Claim Rules. In each set of new rules it is provided that they are without prejudice to any enactment (including any other provision in those rules) under which provision is, or may be, made for a party to a particular type of case before the sheriff to be represented by a lay representative.

New Chapter 2A in the Small Claim Rules only permits a lay representative to make oral submissions on behalf of a litigant at a specified hearing; it does not permit a right to representation in all respects. It may be that a sheriff finds that an authorised lay representative under rule 2.1(1)(d) is not suitable to represent a party in all respects (e.g. because of concerns about examination of witnesses); but that under new rule 2A.2(1) and (3) the sheriff may consider that having a lay representative appear to make oral submissions at a specified hearing may assist the sheriff’s consideration of the case.

a. The Lord President’s Private Office agrees that in all small claims a party may be represented by an authorised lay representative in terms of rule 2.1(1)(d), subject to the tests in rule 2.1(3) being satisfied.

b. The Lord President’s Private Office agrees that provision permitting representation by a lay representative is in force in respect of all small claims.

c. Rule 2A.1(1) refers to where provision is made in any enactment or rule “for a party to a particular type of case before the sheriff to be represented by a lay representative” (italics added). As rule 2A.1(1) is being inserted into the Small Claim Rules it has to be read in that context. Accordingly, rule 2A.1(1) means that Chapter 2A is without prejudice to any specific provision for lay representation in respect of a particular type of small claim, e.g. if specific provision for lay representation was made in the Small Claim Rules in respect of claims under regulated agreements under the Consumer Credit Act then those rules would apply rather than those provided under new Chapter 2A.

It is submitted that new rule 2A.2(1) applies to all small claim proceedings, except in particular types of small claim where specific provision for lay representation has been, or may be, made. Accordingly, the Lord President’s Private Office disagrees with the suggestion that rule 2A.2(1) cannot ever be satisfied.

2. We would refer you to the introductory remarks above by way of background. New rule 2A.1(1) of the Summary Cause Rules refers to where provision is made “for a party to a particular type of case before the sheriff to be represented by a lay representative” (italics added).

Rule 2.1(1)(d) of the Summary Cause Rules provides a right of representation for authorised lay representatives in all summary causes. Under existing rule 2.1(2) and (3) an authorised lay representative can do everything for the preparation and conduct of a summary cause as may be done by an individual conducting his/her own claim except that he/she may not appear in court except at the calling date in terms of rule 8.2(1) and, unless the sheriff otherwise directs, any subsequent or other calling where the action is not defended on the merits or on the amount of the sum due. This is all subject to the tests set out at rule 2.1(4)(a) and (b).

The new rules sit in parallel with the existing rules. Thus a party may be represented in a summary cause by an authorised lay representative under existing rule 2.1 (save the restrictions on representation at hearings). Alternatively, in accordance with Chapter 2A such party may request that a lay representative appear at a specified hearing to make oral submissions on behalf of the litigant. As set out above, the conditions to be satisfied are different and the sheriff may therefore have different considerations in mind in respect of such categories of representatives.

a. The Lord President’s Private Office submits that a party may be represented at the hearing under rule 8.2(1) by an authorised lay representative under rule 2.1(2) or by a lay representative under new rule 2A.2(1).

b. The rules were introduced to the Summary Cause Rules in furtherance of section 127 of the Legal Services (Scotland) Act 2010 to maintain consistency across all sets of sheriff court rules and to ensure that a party in a summary cause is not put at a disadvantage compared to litigants in other sorts of sheriff court actions.

It is accepted that the framework for lay representation may benefit from a more fundamental review. The Sheriff Court Rules Council is of course shortly to be dissolved, but as part of its legacy paper for the new Scottish Civil Justice Council it is proposed that it will suggest that the new Council reviews all rules on lay representation as part of its wider policy remit.

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