49th Report, 2015 (Session 4): Subordinate Legislation

SP Paper 787 (Web)

Contents

Introduction
Points raised: Instruments not subject to any parliamentary procedure

Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Child Welfare Reporters) (SSI 2015/312) (Justice Committee)

No points raised
Annexe

Remit and membership

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:

Nigel Don (Convener)
John Mason (Deputy Convener)
Richard Baker
John Scott
Stewart Stevenson

Subordinate Legislation

Introduction

1. At its meeting on 15 September 2015, the Committee agreed to draw the attention of the Parliament to the following instrument—

Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Child Welfare Reporters) (SSI 2015/312);

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

3. The Committee determined that it did not need to draw the Parliament’s attention to the instruments which 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 1994 and Ordinary Cause Rules 1993 Amendment) (Child Welfare Reporters) (SSI 2015/312) (Justice Committee)

4. This instrument amends the procedural rules of both the Court of Session and the Sheriff Court in order to make provision regarding child welfare reporters.

5. Article 2 inserts a new rule 49.22 into the Rules of the Court of Session 1994. Article 4 inserts a new rule 33.21 into the Ordinary Cause Rules 1993. Paragraph (11) of each new rule provides that where a child welfare reporter “acts as referred to in paragraph (10)” the court or sheriff may, having heard the parties, make any order or direction that could competently have been made under paragraph (6).

6. “Paragraph (10)” in each rule is composed of sub-paragraphs (10)(a) and (10)(b). The policy intention is that the phrase “acts as referred to in paragraph (10)” means that the child welfare reporter may act as referred to in either sub-paragraph (10)(a) or (10)(b) before the court or the sheriff may make a further order. The Committee considers that the drafting of paragraph (11) does not make this policy intention clear, and that the rule is capable of being interpreted so as to mean that the child welfare reporter must, in order to act “as referred to in paragraph (10)” do the things mentioned in both sub-paragraphs (10)(a) and (10)(b).

7. The Committee accordingly draws this instrument to the Parliament’s attention under reporting ground (h) as the meaning of Articles 2 and 4 could be clearer.

8. The Committee calls on the Lord President’s Private Office to amend paragraph (11) in both new rules in order to make clear the intended effect of those paragraphs.

No points raised

9. At its meeting on 15 September 2015, 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

Education (Assisted Places) (Scotland) Revocation Regulations 2015 (SSI 2015/318).

Equal Opportunities

Qualifying Civil Partnership Modification (Scotland) Order 2015 [draft];

Marriage (Prescription of Forms) (Scotland) Amendment Regulations 2015 (SSI 2015/313).

Health and Sport

Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015 [draft];

Self-directed Support (Direct Payments) (Scotland) Amendment Regulations 2015 (SSI 2015/319);

Public Bodies (Joint Working) (Integration Joint Board Establishment) (Scotland) Amendment (No. 3) Order 2015 (SSI 2015/321).

Justice

Discontinuance of Legalised Police Cells (Scotland) Rules 2015 (SSI 2015/324).

Children and Young People (Scotland) Act 2014 (Commencement No. 9 and Saving Provision) Order 2015 (SSI 2015/317 (C.38)).

Annexe

Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules

1993 Amendment) (Child Welfare Reporters) 2015 (SSI 2015/312)

On 3 September 2015, the Lord President’s Private Office was asked:

Article 2 inserts new rule 49.22 into the Rules of the Court of Session 1994 (“RCS”). Rule 49.22(10) provides:-

“A child welfare reporter may:

(a) apply to the Deputy Principal Clerk to be given further directions by the court; and

(b) bring to the attention of the Deputy Principal Clerk any impediment to the performance of any function arising under this rule.”

Article 4 inserts new rule 33.21 into the Ordinary Cause Rules (“OCR”). New rule 33.21(10) provides:-

“A child welfare reporter may-

(a) apply to the sheriff clerk to be given further directions by the sheriff;

(b) bring to the attention of the sheriff clerk any impediment to the performance of any function arising under this rule.”

1. In each new rule, are sub-paragraphs (a) and (b) intended to be cumulatives or alternatives?

2. Is the inclusion of the word ‘and’ between sub-paragraphs (a) and (b) in new rule 49.22(10) RCS intended to have a different effect to that of new rule 33.21(10) OCR, where the word ‘and’ is omitted?

3. In each new rule, paragraph (11) provides that where a child welfare reporter “acts as referred to in paragraph (10)”, the court or, as the case may be, the sheriff may make any order or direction that could competently have been made under paragraph (6). Given that “paragraph (10)” is the sum of sub-paragraphs 10(a) and 10(b), in order to act as referred to in paragraph (10), it appears that the child welfare reporter must have done both of the things referred to in sub-paragraphs (a) and (b) before the court or, as the case may be, sheriff, may make a further order or direction. Does this represent the policy intention? If not, is any corrective action proposed?

The Lord President’s Private Office responded as follows:

1. In respect of each rule the policy intention is that a child welfare reporter should be able to act as specified in paragraph (10)(a), to act as specified in paragraph (10)(b), or to do both.

2. The inclusion of the word ‘and’ in new rule 49.22(10) RCS is not intended to have a different effect to that of new rule 33.21(10) OCR. The difference in wording is acknowledged to be the consequence of a drafting error. It is nevertheless considered that, despite the insertion of the word ‘and’, rule 49.22(10) does not readily admit of an alternative construction.

3. It is not the policy intention that the court may only make a further order or direction under paragraph (11) of each rule when the child welfare reporter has acted as specified in both subparagraph (a) and subparagraph (b) of paragraph (10). For the reason given in the previous paragraph, LPPO do not consider that that is the effect of the drafting. Despite the difference in drafting that has been identified, it is considered that the effect of both rules is that the court can make such an order or direction when the child welfare reporter has acted as specified in either subparagraph. In the circumstances it is not considered that immediate corrective action is required. LPPO nevertheless expects that an early opportunity will present to amend rule 49.22(10) in order to rectify the drafting error.


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