56th Report 2013 (Session 4): Subordinate Legislation

SP Paper 417 (Web Only)

DPLR/S4/13/R56

56th Report, 2013 (Session 4)

Subordinate Legislation

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—
(a) any—
(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;
(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.
(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and
(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.

Membership:

Christian Allard
Richard Baker
Nigel Don (Convener)
Mike MacKenzie
Margaret McCulloch
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 5 November 2013, the Committee agreed to draw the attention of the Parliament to the following instrument—

Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Miscellaneous) 2013 (SSI 2013/294).

2. The Committee’s recommendations in relation to this instrument 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 NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Miscellaneous) 2013 (SSI 2013/294) (Justice Committee)

4. The instrument makes miscellaneous amendments to the Rules of the Court of Session. It is subject to the laying requirement in section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, and comes into force on 11 November 2013.

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

6. Among other matters, the instrument amends rule 76.37 (disclosure orders) of the Rules of the Court of Session, in consequence of the coming into force of the Proceeds of Crime Act 2002 (External Investigations) Order 2013 (SI 2013/2605). In doing so, it incorrectly refers to an application for a disclosure order under article 55(2) of the Proceeds of Crime Act 2002, rather than article 55(2) of that Order.

7. The Committee accordingly draws the instrument to the attention of the Parliament under the general reporting ground as it incorrectly refers to an instrument of subordinate legislation which it seeks to make provision about.

8. Paragraph 5(1)(b) of the instrument substitutes rule 76.37(3) of the Rules of the Court of Session. The new rule provides that “an application under section 396(4) of the Proceeds of Crime Act 2002 or article 55(2) of the Proceeds of Crime Act 2002 (supplementary) shall be by motion.” The reference to article 55(2) of the Proceeds of Crime Act 2002 should be a reference to article 55(2) of the Proceeds of Crime Act 2002 (External Investigations) Order 2013. Paragraph 5(1)(b) of the instrument accordingly refers to the wrong legislation.

9. While such drafting is not considered defective as it is unlikely in practice to prevent or impede the operation of the instrument, it does amount to a patent error on the face of the instrument.

10. The Committee also notes that the LPPO accepts that the reference to the legislation is incorrect, and has undertaken to rectify the matter by amendment when the next Act of Sederunt amending the Rules of the Court of Session is made.

NO POINTS RAISED

11. At its meeting on 5 November 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:

Justice

Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules Amendment) (Miscellaneous) 2013 (SSI 2013/293).

Welfare Reform

Council Tax Reduction (Scotland) Amendment (No. 4) Regulations 2013 (SSI 2013/287).

ANNEX

Act of Sederunt (Rules of the Court of Session Amendment No 6) (Miscellaneous) 2013 (SSI 2013/294)

On 24 October 2013, the Lord President’s Private Office was asked:

1. Paragraph 5(1)(b) of the instrument substitutes rule 76.37(3) of the Rules of the Court of Session. The new rule provides that “an application under section 396(4) of the Act of 2002 or article 55(2) of the Proceeds of Crime Act 2002 (supplementary) shall be by motion.” Does the LPPO agree that the reference to the Proceeds of Crime Act 2002 is incorrect, and that the reference should be to the Proceeds of Crime Act 2002 (External Investigations) Order 2013? If so, does the LPPO consider that the provision requires to be corrected?

2. Paragraph 3 of the instrument amends rule 41.57 (permission to appeal against decisions of the Upper Tribunal) to reflect the terms of the enabling legislation, following a commitment given by the LPPO to the Committee in relation to SSI 2013/238. The LPPO indicated that it would also amend an erroneous cross-reference contained in SSI 2013/238 at the same time as making the amendment to rule 41.57. The error was in new rule 104.5(1) (inserted by paragraph 3 of SSI 2013/238) which refers to the parties mentioned in rule 104.3(4)(b) to (d), when the relevant parties are mentioned in rule 104.3(6)(b) to (d). The Committee monitors commitments given to amend instruments in response to points it has raised. It therefore asks whether the LPPO proposes to amend rule 104.5(1), and if so, when?

3. Paragraph 5(2) of the instrument amends rule 76.37A (evidence overseas) to correct an error which was mentioned by the Committee in relation to SSI 2013/162. The error was one of two errors mentioned in relation to that instrument, the other being a reference in rule 24.6(4) to the provision being “subject to paragraph (3)”, which the Committee considered should have read “subject to paragraph (5)”. In that case, the LPPO gave a commitment to amend both typographical errors by correction slip. The error in rule 76.37A is however being amended by the current instrument. Can the LPPO confirm whether the error in rule 24.6(4) is to be amended by correction slip, or otherwise?

The Lord President’s Private Office responded as follows:

1. We agree that the reference is incorrect and that the provision requires to be corrected. This will be done when the next Act of Sederunt amending the Rules of the Court of Session is made.

2. We do propose to amend rule 104.5(1) and this will be done when the next Act of Sederunt amending the Rules of the Court of Session is made. We apologise for this oversight standing the commitment given previously to the Committee.

3. We now propose to correct the error in rule 24.6(4) by way of an amending instrument and this will be done when the next Act of Sederunt amending the Rules of the Court of Session is made. We apologise for this oversight standing the commitment given previously to the Committee.

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