Delegated Powers and Law Reform Committee
Meeting date: Tuesday, September 20, 2016
Official Report 384KB pdf
Contents
- Attendance
- Decision on Taking Business in Private
- Instruments subject to Affirmative Procedure
- Instruments subject to Negative Procedure
- Instruments not subject to Parliamentary Procedure
Instruments not subject to Parliamentary Procedure
Act of Sederunt (Lay Representation for Non-Natural Persons) 2016 (SSI 2016/243)
Section 97 of the Courts Reform (Scotland) Act 2014 sets out the matters on which a court must be satisfied before it may grant permission for a lay representative to conduct proceedings on behalf of a non-natural person. Section 97(3) provides that the court must be satisfied that, among other things,
“the lay representative is a suitable person to conduct ... proceedings”.
Section 97(4) provides that, for such purposes, a lay representative is a suitable person to conduct proceedings if, again among other things,
“the lay representative does not have a personal interest”—
as defined in section 97(5)—
“in the subject matter of the proceedings.”
On the other hand, the form that is in the instrument includes a declaration that is to be made by the prospective lay representative that, among other things, they do
“not have a personal interest, within the meaning of section 97(5) ... in the outcome of the case.”
The Lord President’s private office considers that there is no difference in effect between the two formulations of having a personal interest
“in the subject matter of the proceedings”
and having a personal interest
“in the outcome of the case.”
It considers the two formulations to be synonymous ways of describing the same parliamentary intent—that is, that a representative should not have a personal interest in the case.
Our legal advisers suggest that we could consider that a user of the legislation would not necessarily take the wording in the act and the wording in the form to be synonymous with each other. We might therefore consider that the difference in wording between the form and the act has the scope to cause confusion for the user of the legislation, who might question why different words have been used and whether any difference in meaning is intended. That scope for confusion would be removed if the wording of the form echoed that of the act.
The committee could consider that the difference in wording between the form and the act has led to a lack of clarity, in that the meaning of the declaration in the form could be clearer when read in light of the wording in the act. Does the committee wish to draw the instrument to the Parliament’s attention under reporting ground (h), as the meaning of the form that is set out in the schedule to the instrument could be clearer?
Members indicated agreement.
Children and Young People (Scotland) Act 2014 (Commencement No 12 and Saving Provision) Order 2016 (SSI 2016/254 (C 22))
No points have been raised by our legal advisers on the instrument. Is the committee content with it?
Members indicated agreement.
Apologies (Scotland) Act 2016 (Commencement and Transitory Provision) Regulations 2016 (SSI 2016/256 (C 23))
No points have been raised by our legal advisers on the instrument. Is the committee content with it?
Members indicated agreement.
Smoking Prohibition (Children in Motor Vehicles) (Scotland) Act 2016 (Commencement) Regulations 2016 (SSI 2016/259 (C 24))
No points have been raised by our legal advisers on the instrument. Is the committee content with it?
Members indicated agreement.
Community Justice (Scotland) Act 2016 (Commencement No 1 and Transitional Provision) Regulations 2016 (SSI 2016/262 (C 25))
No points have been raised by our legal advisers on the instrument. Is the committee content with it?
Members indicated agreement.
We should congratulate the Government on laying so many instruments among which there is only one with which we are finding fault. That is to be applauded and welcomed.
That concludes the committee’s public business.
10:08 Meeting continued in private until 10:23.