Delegated Powers and Law Reform Committee

Meeting date: Tuesday, March 4, 2014

Official Report 274KB pdf

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Tribunals (Scotland) Bill: After Stage 2

This item of business is consideration of the delegated powers provisions in the bill after stage 2.

Members will have noted that the Scottish Government has provided a supplementary delegated powers memorandum; they will also have seen the briefing paper.

Stage 3 consideration of the bill is due to take place on Tuesday 11 March. As the deadline for lodging amendments is 4.30 pm on Wednesday 5 March, the committee may wish to agree its conclusions today.

The power in new section 61A(1) allows the Scottish ministers to create offences and penalties in connection with proceedings before the Scottish tribunals. Provision may be made making it an offence to give

“a false statement in an application in a case,”

to fail to attend or to give evidence before a tribunal, or to alter, conceal or destroy, or fail to produce

“something that is required to be produced”

in tribunal

“proceedings in accordance with Tribunal Rules”.

The power does not specify any maximum as regards the penalties that ministers may impose when exercising their power to create offences of that kind. The supplementary delegated powers memorandum provides no explanation as to why ministers require the power to set the maximum penalty rather than have that specified in the bill.

Previously, the committee has taken a strong line on the conferral on ministers of powers to set penalties for offences. The committee has taken the view that it is for the Parliament to determine what the maximum penalty should be and that the matter should not be delegated to ministers.

Given the limit on our time, the legal advisers contacted the Scottish Government to remind it of the committee’s view that maximum penalties should be set by the Parliament and to ask for an explanation as to why an unlimited power was being sought. In response to the query, the Government has agreed to lodge an amendment at stage 3 that will clearly set out in the bill the maximum penalties that can be imposed. The proposed maxima are: on summary conviction, imprisonment of up to 12 months, a fine not exceeding the statutory maximum or both; and, on conviction on indictment, imprisonment for a time not exceeding two years, a fine or both. Do members have any comments?

I welcome the Government’s proposal to lodge an amendment at stage 3 to address the matter that we have drawn to its attention.

Does the committee agree to welcome the Scottish Government’s commitment to lodge an amendment at stage 3 that will set the maximum penalty that may be imposed in relation to offences created by section 61A of the bill?

Members indicated agreement.

Section 70 was amended at stage 2 to deal with concerns raised by the Justice Committee regarding consultation on instruments that impose fees and charges in new situations. Specifically, the Justice Committee considered that the consultation requirement should be mandatory and that users and stakeholders of the tribunal concerned should be consulted.

The amendment made at stage 2 is more limited than that in two respects. First, the duty to consult exists only to the extent that ministers consider it appropriate and, secondly, the persons who have to be consulted are

“persons having an interest in the operation and business of the Scottish Tribunals”.

That may not necessarily include individual users of a particular tribunal.

Does the committee agree to draw the power in section 70(1) to the attention of the Parliament, and to report that it is content with the other provisions in the bill that were amended at stage 2 to insert or substantially alter provisions conferring powers to make subordinate legislation?

Members indicated agreement.

That concludes the public part of the meeting; I move the meeting into private.

11:11 Meeting continued in private until 11:30.