Contents
- Scottish Parliament Justice 2 Committee Tuesday 30 November 2004
- Subordinate Legislation
- Youth Justice
- Prisoner Escort and Court Custody Services Contract
- Constitutional Reform Bill
Subordinate Legislation
Good afternoon and welcome to the 34th meeting in 2004 of the Justice 2 Committee—we get fresher with every week that passes. I welcome to the meeting the Deputy Minister for Justice, Hugh Henry, and his colleagues from the Executive Justice Department, Joyce Lugton and Norman Macleod, and thank them for coming before us. I also welcome Fergus McNeill, who is assisting us with and advising us on our youth justice inquiry. I have received no apologies, but Kenny MacAskill is here in place of Stewart Maxwell.
Tenements (Scotland) Act 2004 (Consequential Provisions) Order 2004 (Draft)
Item 1 is consideration of subordinate legislation. The draft Tenements (Scotland) Act 2004 (Consequential Provisions) Order 2004 is subject to the affirmative procedure, so the deputy minister is required to speak to and move a motion in respect of it.
Section 31 of the Tenements (Scotland) Act 2004 gives Scottish ministers the power to make incidental or consequential amendments to enactments. The draft order uses the power to make a minor change to the Title Conditions (Scotland) Act 2003. Section 128(3)(a) of that act contains a list of schedules with which members will be familiar. Those schedules contain forms and, given that it is necessary to change forms from time to time, it is sensible to change them by order rather than by primary legislation. The Tenements (Scotland) Act 2004 introduced a new schedule to the Title Conditions (Scotland) Act 2003, which the draft order will add to the list.
I move,
That the Justice 2 Committee recommends that the draft Tenements (Scotland) Act 2004 (Consequential Provisions) Order 2004 be approved.
Thank you. There are no questions, so do members agree to recommend that the draft order be approved?
Members indicated agreement.
Tenements (Scotland) Act 2004<br />(Notice of Potential Liability for Costs) Amendment Order 2004 (SSI 2004/490)
Item 2 is also consideration of subordinate legislation. I thank the minister for staying for our consideration of four instruments that are subject to the negative procedure, the first of which is the Tenements (Scotland) Act 2004 (Notice of Potential Liability for Costs) Amendment Order 2004 (SSI 2004/490), copies of which members have before them.
Correspondence on the order between the Subordinate Legislation Committee and the Executive has also been circulated. Do members have questions about the order? I noted what the Subordinate Legislation Committee said about the overlap of seven days and the Executive's explanation. Clearly it is better that the order be enforced than not, but there is a gap that might place purchasers at risk for that interval. Is the Executive mindful of the fact that it might face a compensation claim if a purchaser suffers loss as a consequence of the omission?
We do not think that that will arise. I will perhaps defer to my officials in a moment, but when it became obvious that the order required to be made, the 21-day rule meant that there would be a gap, which is unfortunate. We could have breached the rule, but did not think that a breach, which should happen only in exceptional circumstances, was warranted in this case.
For the committee's information, how would the rule have been breached?
By the time the matter came to our attention it would not have been possible to give proper notice and bring the order into force on 28 November.
I understand why in the normal course of events you would not wish to breach the rule. After weighing up the matter, the Subordinate Legislation Committee thought that a breach of the 21-day rule would have been beneficial. Are you happy to accept that, given that that committee suggested such a breach as a way of ensuring that the order and the schedule that it amends were brought into force contemporaneously?
The nub of the Subordinate Legislation Committee's concern was that purchasers could be affected adversely. We do not agree with that conclusion, which is why we did not believe that it was necessary to breach the 21-day rule. It is a straightforward difference of opinion.
I am on the Subordinate Legislation Committee, so I have discussed the order. The committee's view was that although the Executive has previously breached the 21-day rule when we thought that it should not, it did not do so in this case, although we thought that it should. Every member of the Subordinate Legislation Committee thought that purchasers would be affected, although we accepted that they would be affected only for a short time. Perhaps nobody will be affected, but quite a lot of people could be. Why do you think that purchasers will not be affected?
A new owner will not be liable for work carried out before he or she acquires a property unless a notice that describes the works is registered at least 14 days beforehand. The earliest that any notice could be registered would be 29 November, so a new owner who acquires a flat at any time before 13 December would not be liable.
We argue that the order will assist owners of tenement flats who propose to carry out works. They can register a notice at least two weeks before they carry out the work and know that even if a flat is sold immediately after the work is done the new purchaser would be liable for a share of the costs. What matters is the issue about planned work. We consider that the possibility that such planned work would be carried out in the week beginning 29 November is unlikely in the extreme. It is a matter of judgment—a difference of opinion. We do not think that there will be the adverse consequences that have been suggested.
On reflection, minister, is there any lesson to be learned from this?
The only lesson to be learned is that we must ensure that in everything we do we are absolutely perfect first time and do not overlook anything. No doubt we will achieve that at some point—we are nearly there. I am sure that we will reflect carefully on the matter.
On a more positive note, has the omission been instructive?
Yes. Like everybody else, we learn as we go along. What has been remarkable since the inception of the Parliament is the amount of work that has been carried out and carried out well. It is to the credit of everyone involved that there are so few oversights, but occasionally they happen. When they do, we attempt to remedy them as quickly and effectively as possible. That is what we are doing on this occasion.
Does the committee wish to make a specific recommendation on the matter that was raised by the Subordinate Legislation Committee?
The minister's explanation has been perfectly adequate.
Is the committee content with the order?
Members indicated agreement.
Civil Legal Aid (Scotland) Amendment<br />(No 2) Regulations 2004 (SSI 2004/491)<br />Advice and Assistance (Scotland) Amendment (No 3) Regulations 2004<br />(SSI 2004/492)
Legal Aid (Scotland) Act 1986 Amendment Regulations 2004 (SSI 2004/493)
The remaining three instruments, which are again subject to the negative procedure, are the Civil Legal Aid (Scotland) Amendment (No 2) Regulations 2004, the Advice and Assistance (Scotland) Amendment (No 3) Regulations 2004 and the Legal Aid (Scotland) Act 1986 Amendment Regulations 2004. I confirm that the Law Society of Scotland has been consulted on the instruments and has no comment to make. Is the committee content with the three sets of regulations?
Members indicated agreement.
I thank the minister and his colleagues for their attendance this afternoon.