49th Report, 2012 (Session 4): Subordinate Legislation

SP Paper 211 (Web Only)

SL/S4/12/R49

49th Report, 2012 (Session 4)

Subordinate Legislation Committee

Remit and membership

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:

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 6 November 2012, the Committee agreed to draw the attention of the Parliament to the following instruments—

Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2012 (SSI 2012/276);

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 3) 2012 (SSI 2012/271);

Act of Sederunt (Actions for removing from heritable property) (Amendment) 2012 (SSI 2012/273);

Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2012 (SSI 2012/275).

2. The Committee’s recommendations in relation to those 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

Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2012 (SSI 2012/276) (Justice Committee)

4. These Regulations amend the Criminal Legal Aid (Scotland) Fees Regulations 1989, to make new provision about the fees payable to senior and junior counsel for criminal legal aid work, and conditions of payment.

5. The Regulations are subject to the negative procedure, and come into force on 3 December 2012. They apply only to fees for work done and outlays incurred on or after 3 December.

6. In considering the instrument, the Committee asked the Scottish Government for clarification in regard to regulation 12. The correspondence is reproduced in Appendix 1.

7. The Scottish Government’s response acknowledges that there is a drafting error in regulation 12. It has undertaken to bring forward an amending instrument as soon as possible, to correct the error. Regulation 12 inserts a new regulation 3A into the principal 1989 Regulations. This provides for the fee levels payable to counsel in relation to proceedings in the sheriff court, where a case is not subsequently transferred for proceedings at the High Court of Justiciary.

8. Those fee levels (set out in a Table of Fees) relate to proceedings for various serious offences, which are listed in the new regulation 3A. Paragraph (g) of the regulation refers to “an offence under section 1 of the 1998 Act (causing death by dangerous driving).” This is a patent error, as it was intended to refer to section 1 of the Road Traffic Act 1988.

9. The Committee draws the Regulations to the attention of the Parliament on the general reporting ground. There is a drafting error in regulation 12, where it inserts regulation 3A(g) of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989. Regulation 3A(g) refers to an offence under section 1 of “the 1998 Act” (causing death by dangerous driving), when it is intended to refer to the Road Traffic Act 1988.

10. The Committee welcomes the fact that the Scottish Government has undertaken to bring forward an amending instrument as soon as possible to correct this error.

POINTS RAISED: INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 3) 2012 (SSI 2012/271) (Justice Committee)

11. This instrument makes miscellaneous amendments to the rules concerning actions in the Sheriff court as follows:

  • Rules regulating the lodging of audio or audio-visual recordings of children so that they are kept securely and access to them is restricted
  • Modifications to terminology altered by the Treaty of Lisbon
  • Modifications necessary following the abolition of the Child Maintenance and Enforcement Commission
  • Rules implementing the requirement for judicial authorisation under the Regulation of Investigatory Powers Act 2000 (“the 2000 Act”).

12. The instrument is laid before the Parliament but is not subject to parliamentary procedure. It comes into force on 1 November 2012 which is the date on which the new requirements for judicial authorisation under section 23A of the 2000 Act come into force.

13. As part of its scrutiny of the instrument the Committee asked for clarification of whether the conditions referred to in section 23A(5)(c) of the 2000 Act were relevant to authorisations or notices given by local authority officers in Scotland from the Lord President’s Private Office (“the LPPO”). Satisfaction of these conditions is referred to in Form 59. The correspondence is reproduced in Appendix 2.

14. Judicial authorisation is required by section 23A of the 2000 Act where a relevant person has granted or renewed an authorisation for persons to obtain communications data under the Act or served a notice requiring data to be obtained by a postal or telecommunications service. At present only local authority officers are relevant persons in Scotland. Any authorisation or notice can only be confirmed by the sheriff where the sheriff considers that the statutory “relevant conditions” are satisfied.

15. The question at issue is what relevant conditions require to be satisfied when authorisation of action by local authority officers is being sought. The relevant conditions which apply are referred to in the court form 59 set out in the Schedule to the instrument. The response from the LPPO considers that relevant conditions applicable to local authority officers can be set either under section 23A(5)(a) or 23A(5)(c). The Committee agrees that the relevant conditions applicable to local authority officers are set in section 23A(5)(a) and the form is correct in this respect.

16. However, the Committee does not agree with the LPPO that conditions set by the Secretary of State by order under section 23A(5)(c) have application to local authority officers. Section 23A(5)(a) makes clear that the conditions referred to in that provision apply to “any grant, giving or renewal” by local authority officers. Section 23A(5)(c) specifically states that the conditions referred to in it apply to “any other grant, giving or renewal”. The Committee considers that all local authority grants are dealt with in section 23A(5)(a) and therefore that form 59 should only refer to satisfaction of conditions referred to in that section. By contrast the committee considers that it is grants by other relevant persons that must satisfy the conditions referred to in section 23A(5)(c). As there are currently no other relevant persons in Scotland the rules should not refer to section 23A(5)(c).

17. The Committee draws this instrument to the attention of the Parliament under the general reporting ground as it contains a minor drafting error. In the view of the committee the reference to satisfaction of the condition in section 23A(5)(c) in paragraph 6 of Form 59 is unnecessary since these conditions can only relate to a grant, giving or renewal other than one given by an officer of a local authority. No persons other than such officers are currently treated as “relevant persons” in Scotland.

Act of Sederunt (Actions for removing from heritable property) (Amendment) 2012 (SSI 2012/273) (Justice Committee)

18. This instrument amends the Act of Sederunt (Actions for removing from heritable property) 2012 (“the principal instrument”). It alters the procedural requirements for service of a charge for removing in paragraph 3 and substitutes a new Form 4 to reflect a further change in the procedure to be followed.

19. The instrument is laid before the Parliament but is not subject to parliamentary procedure. It comes into force on 12 November 2012.

20. As part of its scrutiny of the instrument the Committee asked for clarification of various points from the Lord President’s Private Office (“the LPPO”). The correspondence is reproduced in Appendix 3.

21. Paragraph 2(2) of this instrument purports to amend “rule 3” of the principal instrument. However, the principal divisions of an Act of Sederunt, unless embodying rules of court, should properly be called “paragraphs” and not “rules”. Neither this instrument nor the principal instrument embody rules of court. The LPPO concedes that the reference to “rule 3” is an error and that it should read “paragraph 3”. It also accepts that the references to paragraphs 1(b), 5(a) and 7(a) should be to sub-paragraphs (1)(b), (5)(a) and (7)(a) respectively.

22. The Committee considers that this failure to follow proper drafting practice has the potential to be confusing to the end users of this instrument, as careful reading is required to ascertain exactly which provisions of the principal instrument are intended to be amended by this instrument.

23. The Committee draws this instrument to the attention of the Parliament under the general reporting ground. Paragraph 2(2) purports to amend “rule 3” of the Act of Sederunt (Actions for removing from heritable property) 2012, and paragraphs 1(b), 5(a) and 7(a) within it. The references should instead be to paragraph 3 and to sub-paragraphs (1)(b), (5)(a) and (7)(a). This represents a failure to follow proper drafting practice, and the resultant lack of clarity creates a risk of confusion for the end users of this instrument as to exactly which provisions are being referred to.

24. The Committee welcomes the fact that the Lord President’s Private Office proposes to correct the issue in a forthcoming instrument.

Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2012 (SSI 2012/275) (Justice Committee)

25. This instrument amends the Rules of the Court of Session (“the Rules”) in a variety of ways. It amends the rules relating to commercial actions, intellectual property causes and judicial reviews in order to facilitate case management in the Outer House. It also amends the Rules to restrict access to court documents in cases where the Civil Recovery Unit seeks a disclosure order under the Proceeds of Crime Act 2002. It makes new provision about restricting access to recordings of children where these are lodged with the court, and it makes consequential amendments to reflect changed terminology relating to the European Union as a result of the Treaty of Lisbon.

26. The instrument is laid before the Parliament but is not subject to parliamentary procedure. It comes into force on 19 November 2012.

27. As part of its scrutiny of the instrument the Committee asked for clarification of various points from the Lord President’s Private Office (“the LPPO”). The correspondence is reproduced in Appendix 4.

28. Paragraph 3(3) inserts a new paragraph 55.2D(5) into the Rules of the Court of Session. It provides for a party to apply “by notice” if it wishes to lodge a counterclaim or serve a third party notice in an intellectual property cause. The LPPO has confirmed that this is an error and that the reference should instead be to an application by motion.

29. Paragraph 3(5) inserts new rules 55.5B and 55.5C after rule 55.5. However, there is no rule 55.5A. The LPPO has confirmed that the two new provisions are wrongly numbered, and should be rules 55.5A and 55.5B respectively. The Committee observes that it would be proper drafting practice to ensure that newly-inserted provisions are correctly numbered, not least because the end users of the Rules may be confused by the fact that rule 55.5A is apparently missing.

30. The LPPO has undertaken to correct both of these matters in a subsequent miscellaneous amendments instrument.

31. The Committee draws the instrument to the attention of the Parliament on the general reporting ground. Firstly, paragraph 3(3) inserts a new rule 55.2D(5) into the Rules of the Court of Session which erroneously refers to an application “by notice” rather than an application “by motion”. Secondly, paragraph 3(5) further inserts new rules 55.5B and 55.5C. However, there is no rule 55.5A and these provisions ought accordingly to have been numbered 55.5A and 55.5B. There has accordingly been a failure to follow proper drafting practice which risks causing confusion to the end-users of the Rules.

32. The Committee welcomes the fact that the Lord President’s Private Office has agreed to correct these errors in a forthcoming instrument.

NO POINTS RAISED

33. At its meeting on 6 November 2012, the Committee also considered the following instruments and determined that it did not need to draw the attention of the Parliament to any instrument on any grounds within its remit:

Infrastructure and Capital Investment Committee

Housing Support Services (Homelessness) (Scotland) Regulations 2012 [draft]

Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 [draft]

Road Works (Maintenance) (Scotland) Amendment Regulations 2012 (SSI 2012/286)

Local Government and Regeneration Committee

Scottish Local Government Elections Amendment (No. 2) Order 2012 [draft]

Town and Country Planning (General Permitted Development) (Fish Farming) (Scotland) Amendment (No. 2) Order 2012 (SSI 2012/285)

Rural Affairs, Climate Change and Environment Committee

Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No. 2) Amendment (No. 2) Order 2012 (SSI 2012/281 (C.29))

INSPIRE (Scotland) Amendment Regulations 2012 (SSI 2012/284)

Referendum (Scotland) Bill Committee

Scotland Act 1998 (Modification of Schedule 5) Order 2013 [draft]

APPENDIX 1

Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2012 (SSI 2012/276)

On 26 October 2012, the Scottish Government was asked:

In regulation 12, where it inserts regulation 3A(g) of the principal Regulations, the reference to “the 1998 Act” (referring to section 1 of the Road Traffic Act (causing death by dangerous driving)) is an error and should refer to the 1988 Act? If you agree, would you propose to correct this by an amendment?

The Scottish Government responded as follows:

We thank the Subordinate Legislation Committee for spotting this error in the Regulations. We will bring forward a brief amending set of Regulations as soon as possible to correct this error.

APPENDIX 2

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No.3) 2012 (SSI 2012/271)

On 10 October 2012, the Lord President’s Private Office was asked:

Given that rule 3.42.2 appears intended to apply only to authorisations requiring judicial approval which relate to persons falling with paragraph (a) of the definition of “relevant person” in section 23A(6) of the Regulation of Investigatory Powers Act 2000, is the reference in paragraph 6 of Form 59 to section 23A(5)(c) irrelevant and therefore an error?

The Lord President’s Private Office responded as follows:

The Lord President’s Private Office considers that a local authority in Scotland may require to satisfy the relevant conditions under either section 23A(5)(a) or (c) of the Regulation of Investigatory Powers Act 2000.

Section 23A(5)(a) refers expressly to local authorities, whereas section 23A(5)(c) refers to “relevant persons”. Section 23A(6) defines “relevant persons” to include an individual holding “an office, rank or position in a local authority in Scotland (other than an office, rank or position in a fire and rescue authority)”. We are of the view that section 23A(5)(c) does not only apply to paragraph (c) of the definition of “relevant persons” given in section 23A(6).

Under section 23A(5)(c) the Secretary of State may prescribe by order conditions that have to be satisfied by a relevant person. Although section 23A(5)(a)(iii) contains a similar order making power, such further conditions must be read with the other conditions set out in section 23A(5)(a)(i) and (ii). The Secretary of State may choose to exercise the condition setting power separately under section 23A(5)(c), which conditions may be more or less onerous than those prescribed under section 23A(5)(a).The primary legislation thus anticipates that there are two alternative regimes under which local authorities may require to satisfy relevant conditions and for that reason, paragraph 6 of Form 59 provides accordingly.

For the reasons given, the Lord President’s Private Office does not accept that an error has been made; and we would appreciate if the earlier concession could be disregarded. Given that the Parliament is in recess and the Subordinate Legislation Committee is not due to consider this Act of Sederunt until 30 October, we hope that this will not cause a difficulty.

APPENDIX 3

Act of Sederunt (Actions for removing from heritable property) (Amendment) 2012 (SSI 2012/273)

On 26 October 2012, the Lord President’s Private Office was asked:

1. Does the Lord President’s Private Office agree that the reference in paragraph 2(1) to “The Act of Sederunt (Actions for removing from heritable property (2012)” instead of “The Act of Sederunt (Actions for removing from heritable property) 2012” is an error? If so, what is the effect of this error and how does the Lord President’s Private Office propose to correct it?

2. Paragraph 2 of the instrument provides amendments to rule 3 (charge for removing) of the Act of Sederunt (Actions for removing from heritable property) 2012 (“the principal instrument”). We observe that, in the principal instrument, this provision appears to be referred to variously as a “rule” and its sub-divisions as “paragraphs” (e.g. in the provision itself) or as a “paragraph” (e.g. in paragraph 5). Does the Lord President’s Private Office agree that the principal divisions of an Act of Sederunt, unless it embodies rules of court, are called paragraphs? If so, should paragraph 2 of this instrument not refer to paragraph 3 of the principal instrument (and, by extension, to sub-paragraphs (1)(b), (5)(a) and (7)(a) rather than paragraphs 1(b), 5(a) and 7(a))?

The Lord President’s Private Office responded as follows:

1. Yes, this is an error. However, a corrections slip has already been ordered and a copy of this is enclosed for your reference. We would observe in any event that the relevant footnote (c) correctly refers to the year and number of the original instrument; and therefore any confusion is likely to be minimal.

2. We agree that the reference to “rule 3” is an error and that this should read “paragraph 3”. As a consequence, we agree that the reference to paragraphs 1(b), 5(a) and 7(a) should be to subparagraphs rather than paragraphs. These errors will be amended in a subsequent miscellaneous instrument.

APPENDIX 4

Act of Sederunt (Rules of the Court of Session Amendment No 5) (Miscellaneous) 2012 (SSI 2012/275)

On 26 October 2012, the Lord President’s Private Office was asked:

1. Paragraph 3(3) inserts a new rule 55.2D. Paragraph (5) of that rule provides that a party seeking to lodge a counterclaim or serve a third party notice “shall apply by notice to do so”. In paragraph (6), reference is made to the judge determining “a motion to lodge a counterclaim or to serve a third party notice”. Should the reference in paragraph (5) instead be to an application by motion? If not, what procedure applies to such an application?

2. Paragraph 3(5) inserts new rules 55.5B and 55.5C after rule 55.5. Having checked the versions of Chapter 55 on the court website and on Westlaw, there does not presently appear to be a rule 55.5A, although it may be that there is a prospective amendment which has not yet taken effect. Could you please confirm the position? If there is no rule 55.5A, could you please advise why these new provisions are not numbered 55.5A and 55.5B respectively?

3. Paragraph 5 amends rule 76.37 in a number of respects. The effect of the new rule 76.37(5) would appear to be that the respondent to a petition under section 391 of the Proceeds of Crime Act 2002 is not permitted to borrow or inspect the documents lodged in process – and if a respondent seeks to borrow or inspect documents lodged in process, that party would have to apply by motion under paragraph (8) for variation of the paragraph (5) restrictions. On the face of it, the Article 6 ECHR rights of the respondent may be engaged if the court proceeds to determine that party’s civil rights and obligations without permitting the party to examine the documents lodged in support of the petition. Do you consider that paragraph (8) is capable of being operated so as to secure the Article 6 rights of a respondent by varying the restrictions on access should that be necessary to ensure Article 6 compliance?

4. In relation to paragraph 5, we note that section 396(2) of the Proceeds of Crime Act 2002 enables provision to be made by rules of court as to the discharge and variation of disclosure orders, and that section 396(3)(b) provides for this, without prejudice to section 5 of the Court of Session Act 1988, to be by way of act of sederunt. However, this power has not been cited in the preamble as an enabling power. Do you agree that this specific power ought to have been cited?

The Lord President’s Private Office responded as follows:

1. This is a typographical error and as you correctly note the reference in paragraph (5) should instead be to an application by motion.

2. This is a typographical error and the provisions should read 55.5 A and 55.5B.

3. By way of background, Part 8 of the Proceeds of Crime Act 2002 enables the granting of various orders in connection with civil recovery investigations. In particular, section 391 provides that the Court of Session may grant a disclosure order if it is satisfied that each of the requirements for the making of the order is fulfilled (section 391(1), 2002 Act). A disclosure order entitles the Scottish Ministers to issue notices to persons who they consider may have relevant information requiring those persons to answer questions, provide information or produce documents (section 391(4), 2002 Act).

When an application is made for such an order, a certain amount of information about an investigation requires to be provided to the Court. It is understood that if such information were to be released to persons holding property which is the subject of that investigation, this may result in property being disposed of or concealed. There is also a need to ensure that any confidential information does not identify or endanger sources. This is the main reason for rule 76.37(5) being phrased in this way. I would also refer you to the minutes of the Court of Session Rules Council meeting of 14th May (Item 13) which details the Councils consideration of this rule.

In answer to your question, I consider that paragraph 5(8) is capable of being operated so as to secure the Article 6 rights of a respondent by varying the restrictions on access should that be necessary.

4. I agree that it would have been preferable for section 396(3)(b) to have been cited in the preamble as the enabling power. Having said that, I note the terms of the Court of Appeal’s judgment in Vibixa Ltd V Komori UK Ltd and Others (2006) EWCA Civ 536 and in particular the conclusion which states:

“General enabling powers in the preamble to a statutory instrument may be interpreted as referring to an enabling power, not expressly invoked, in situations such as the following: - (i) where, in order for the SI to have effect, the maker of the instrument must necessarily have invoked that power, or (ii) where the operative provisions of the SI make it clear that its maker must have invoked that power”

On my understanding of this case, although it would have been preferable for the section of the 2002 Act to be referred to in the preamble, the general enabling powers as listed are sufficient.

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