Official Report 98KB pdf
Draft Instruments <br />Subject to Approval
Housing Support Grant (Scotland) Order 2003 (draft)
No points arise on the order.
Ethical Standards in Public Life etc (Scotland) Act 2000 (Modification of Enactments) Order 2003 (draft)
No points arise on the order.
That is not to say that we do not have ethical standards—we have lots of them.
I mean that no legal points arise on the order.
I see Ian Jenkins. Good morning, Ian.
Good morning.
I did not see you arriving. You have missed some really good discussions.
I have been here for half an hour.
You have not. If you had been, I am sure that you would have said lots about building standards.
I am sure that I would have done.
Advice and Assistance <br />(Financial Conditions) (Scotland) Regulations 2003 (draft)
No points arise on the regulations.
Civil Legal Aid (Financial Conditions) (Scotland) Regulations 2003 (draft)
No points arise on the regulations.
Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 (draft)
The regulations seem to be fine.
We might mention a wee footnote to the Executive. It is suggested that the content of footnote (k) on page 3 might more appropriately be in the body of the text.
Members of the Parole Board (Removal Tribunal) Regulations 2003 (draft)
The committee might ask the Executive to explain the legal basis of regulation 5(3). Paragraph 3B of schedule 2 to the Prisoners and Criminal Proceedings (Scotland) Act 1993 provides that:
So there is no established quorum.
The enabling power, which is paragraph 3D of schedule 2 to the 1993 act, states that:
I suppose that that might apply to a situation in which the work was almost finished.
I hate to say this, my learned friend, but for nit-pickers it does not matter whether work is starting, is in progress or has finished. An investigation either can or cannot take place, and according to the 1993 act, it cannot.
If a tribunal with three members has not started its proceedings and one of its members dies, that person is replaced by another person of that category. However, when the hearing is almost finished, all the evidence has been heard and everything has been done, it might be obvious to everybody that all three tribunal members agree, and the person who is under investigation might know that they agree, because people get vibes. If one tribunal member died just 10 minutes before the tribunal was to issue its final determination—I am being facetious, but only a little—what would be the sense in appointing a replacement? What would be done? Would that person restart proceedings and hear all the evidence again?
That is entirely reasonable if all three members agree and the outcome is obvious to the person who is under investigation. However, what happens if all three members do not agree and the outcome is not obvious to the person who is under investigation?
The replacement is made only if the person who is under investigation wants the missing member to be replaced. The person who is under investigation can always insist on a third person's appointment.
I understand that.
If the person who is under investigation says, "I am content for the determination to be issued in the names of the two remaining members of the tribunal," why should a third member be appointed? What is that person to do? Should the tribunal start again and hear the case again? What role can that third person play in proceedings?
Nobody disagrees with you, because that is common sense. However, the enabling act does not allow for that. We are saying that the act does not allow for such a situation and that a change needs to be made to allow for that.
I do not understand. Perhaps I am just being stupid.
No. The act does not allow for the variation in the regulations. I do not argue that it is not a good idea to have the variation in the regulations. I argue that, legally, that variation is not permitted under the act, so a change will have to be made.
Could we draw the matter to the Executive's attention?
The convener says that, under schedule 2 to the 1993 act, a tribunal must have three members.
That is correct, because the act uses the word "shall".
Therefore, the fact that the regulations say that the third member does not have to be reappointed is—
Illegal. That is ultra vires.
The position is contradictory. Perhaps we could ask the Executive for clarification.
We can draw the matter to the Executive's attention, because we are probably right. The Executive can fix it.
It does not make sense to appoint a third person with five minutes to go.
We are not talking sense; we are talking subordinate legislation and powers.
I think that everybody agrees with Gordon Jackson.
Nobody disagrees with him, but the act does not provide such a power. We think that that power should be available, because it makes sense. It is up to the Executive to find out how to obtain that power.
Substitutes in extra time have been known to score winning goals and change the situation.
Absolutely, and therefore I can see why—
I am sorry, gentlemen—we are arguing policy. We do not talk policy.
I can see why, if the person who is under investigation says that they want the tribunal member to be replaced, they can have that member replaced, but the replacement should be made only with the consent of the person who is under investigation. However, perhaps doing so would still be illegal.
I am sure that the Executive will clear up the matter for us before our argument resembles that in the letters between the Marx brothers and the brothers Warner.
Is that subject to the negative procedure?
That is life-affirming procedure.
Previous
Executive Responses