Justice Committee

Meeting date: Tuesday, September 11, 2018

Official Report 737KB pdf

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Subordinate Legislation

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Legal Aid (Employment of Solicitors) (Scotland) Amendment Regulations 2018 (SSI 2018/193)

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Sheriff Court Fees Amendment Order 2018 (SSI 2018/194)

Agenda item 4 is consideration of two negative instruments. I refer members to paper 2, which is a note by the clerk. Do members have any comments on the instruments?

Are we dealing with both together?

Yes.

I have no substantive comments but simply say in respect of the Sheriff Court Fees Amendment Order 2018 that that is quite a major error that somebody seems to have made somewhere along the way. Jenny Gilruth, I think, or somebody made a point about these briefings but I am curious to understand: how did the error come about? Who has missed the omission of the carve-out in the original legislation? If it was this committee or the Parliament, then that would be concerning. Clearly, we need something that would have flagged it up or a change to our processes so that we can see such things. If it was not us, how confident can we be that whichever agency it was will pick up this sort of thing in future?

The short answer is that we do not know, but we can write and get additional information. It is important that we do not just rubberstamp these things and say that it is okay that there has been an omission. It would be good to find out exactly how it occurred. If we want to do that, we could delay approving the order today, get further information and take it from there.

11:45  

I think that that would be sensible and I would feel much more comfortable if I knew what I was putting my name to. However, is that not the instrument that needs to change to get the carve-out in as soon as possible because of the potential ramifications?

We have until 24 September, which would allow us to take it again next week without unduly affecting anything.

I have no issue with what has been proposed but mistakes happen—in lots of jobs. Understanding that it is not a procedural fault is fine; the important thing is that the mistake has been picked up and we are dealing with it now.

John Finnie makes a fair point. My concern is that in the context of what we have just been discussing in relation to Brexit, the Parliament is going to have a considerable volume of statutory instruments coming before it. What this does is highlight very appositely some of the risks that are attendant in that and, with my Scottish Parliament Corporate Body hat on, I will reflect that back to colleagues. We need to find a way of trying to ensure that, as we deal with fairly weighty, substantive and complex issues, we limit the scope for that. John Finnie is right that errors might arise, but we absolutely need to have confidence as we go through the process that it is as robust as it possibly can be.

That being the case then, is it the committee’s feeling that we want to write and get an explanation? Mistakes do happen but, as Liam McArthur said, we are going to be dealing with an awful lot of legislation and if we have additional questions we are going to be undertaking a needlessly complex activity. We can write and ask for a full explanation—there is no harm in doing that as it will not affect the timing of anything—and bring the Sheriff Court Fees Amendment Order 2018 back for approval next week. Are members agreed?

Will it affect the order if we get an explanation?

No.

So is there really any point in delaying it if it is not going to change and we just have an explanation?

We will get an explanation. It is really to underline the point that if we keep just rubberstamping these things, sooner or later we are going to reach—or the possibility is there that we could reach—a mistake that will cause a huge delay. We know that so many SSIs are going to be coming to this committee, and other committees, as a result of the Brexit settlement. We are just making the point that we need to know why these things happen. If it is human error, okay, we can accept that, but we may learn something and we will be making a very definite statement.

I would not want the term “rubberstamp” to be misunderstood. We scrutinise everything that comes before us and the decision taken would have been taken in good faith at the time.

Is the committee agreed that we will ask for an explanation, bring the Sheriff Court Fees Amendment Order 2018 back next week and take it from there?

Members indicated agreement.

Is the committee content that we make no recommendation in respect of the Legal Aid (Employment of Solicitors) (Scotland) Amendment Regulations 2018?

Members indicated agreement.

Thank you for that.

That concludes the public part of today’s meeting. Our next meeting will be on Tuesday 18 September, when we will have our first evidence session on post-legislative scrutiny of the Police and Fire Reform (Scotland) Act 2012.

11:49 Meeting continued in private until 13:02.