Delegated Powers and Law Reform Committee

Meeting date: Tuesday, October 4, 2016

Official Report 316KB pdf

Instruments subject to Affirmative Procedure

Courts Reform (Scotland) Act 2014 (Relevant Officer and Consequential Provisions) Order 2016 [Draft]

Article 4(1) of the order appears to be defectively drafted. It makes transitional provision that the several modifications of primary and secondary legislation that are set out in schedule 1, other than those in paragraph 7, do not apply to small claims in the sheriff court. The reference to paragraph 7 is an error, because the Scottish Government intends the modifications that are contained in paragraph 8 to apply to small claims. Those in paragraph 7 should not so apply.

The error was drawn to the Scottish Government’s attention and it proposes to correct the error in the minister’s signing copy, should the Parliament affirm the draft order. However, our legal briefing suggests that the error in the transitional provision is neither highly self-evident nor insignificant. In addition, the draft order has been published on www.legislation.gov.uk.

The committee could report that the draft order should be withdrawn and relaid in the correct terms for approval by the Parliament. Alternatively, if re-laying the order raises a difficulty, the Scottish Government could consider laying an amending order to correct the error in time for the order’s coming into force on 28 November.

Do members have any comments? There being none, does the committee wish to draw the order to the Parliament’s attention on reporting ground (i), as article 4(1) appears to be defectively drafted?

Members indicated agreement.

Does the committee wish to accept the recommendation in our legal briefing that we call on the Scottish Government to withdraw and re-lay the draft order in the correct terms for approval by the Parliament?

Members indicated agreement.

Budget (Scotland) Act 2016 Amendment Regulations 2016 [Draft]

No points have been raised by our legal advisers on the instrument. Is the committee content with it?

Members indicated agreement.