Delegated Powers and Law Reform Committee

Meeting date: Tuesday, April 25, 2017

Official Report 429KB pdf

Instruments not subject to Parliamentary Procedure

Act of Sederunt (Fatal Accident Inquiry Rules) 2017 (SSI 2017/103)

Agenda item 6 is consideration of an instrument not subject to parliamentary procedure. The purpose of the instrument is to set the procedural rules that apply in the sheriff court in relation to fatal accident inquiries, and it follows the enactment by the Scottish Parliament last year of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016.

The committee notes that rules 1.2(1) and 3.5 and paragraph 19 of schedule 4, as currently drafted, appear to be defective. Accordingly, I seek the committee’s agreement to draw the instrument to the Parliament’s attention on ground (i) in respect of the following instances of defective drafting.

First, the definition of “apply” and related expressions in rule 1.2(1), which means to apply in accordance with schedule 1, does not provide for an exception where the context requires otherwise. That is despite the instrument containing a number of references to “apply” and related expressions that are not intended to engage the procedure in schedule 1. In addition, the procedure in schedule 1 incorrectly applies in relation to rule 3.5 in connection with a person who is not given notice of an inquiry under section 17(1) of the 2016 act but who wishes to apply. Moreover, paragraph 19 of schedule 4 incorrectly includes in the definition of “legal representative” a person having a right to conduct litigation or a right of audience by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Does the committee agree to report that to Parliament?

Members indicated agreement.

In addition, our legal advisers have raised a number of minor drafting errors. I therefore seek the committee’s agreement to draw the instrument to the Parliament’s attention on the general ground, as the instrument contains the following minor drafting errors.

First, rule 4.8(4) refers to the fees payable under paragraph (2), but it was intended to refer to paragraph (3). Secondly, form 3.1 in schedule 3 does not reflect rule 3.1(2)(f) in so far as it does not provide for the first notice to set out, in the case of a discretionary inquiry under section 6 of the 2016 act, which condition in section 6(3)(a) of that act is met. Thirdly, the signing block in form S4.7 in schedule 3 is missing. Fourthly, the heading of form S5.5C in schedule 3 does not reflect the fact that the form can be completed by the participant who obtained an order for recovery of documents in terms of paragraph 5(3)(b) of schedule 5. Finally, paragraph 5(1)(b) of schedule 5 refers to a participant executing commission and diligence under paragraph 4, but it was intended to refer to paragraph 6. Do we agree to report those errors to Parliament?

Members indicated agreement.

Members will be pleased to note that the Lord President’s private office has undertaken to rectify all the errors identified at the next available opportunity, which will be considered in the light of the meeting timetable of the Scottish Civil Justice Council. Does the committee agree to welcome the undertaking by the Lord President’s private office to keep the committee informed in that respect?

Members indicated agreement.

In addition, with a view to clarifying the correspondence with the Lord President’s private office, does the committee agree to recommend that the proposed amendments also include inserting a signing block in form S4.7 in schedule 3?

Members indicated agreement.