Delegated Powers and Law Reform Committee
Meeting date: Tuesday, September 17, 2013
Official Report
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Instruments not subject to Parliamentary Procedure
Act of Sederunt (Rules of the Court of Session Amendment No 5) (Miscellaneous) 2013 (SSI 2013/238)
There appears to be doubt about whether the instrument is intra vires, in so far as the new rule 41.57(2)(a) that is inserted by paragraph 2 provides that permission shall not be granted on an application to the court in relation to a decision of the Upper Tribunal, as referred to in rule 41.57(1), unless the court considers that
“the proposed appeal from the decision would raise some important point of ... practice”.
That provision is of doubtful vires, because the scope of the enabling power to make rules of court in section 13(6A) of the Tribunals, Courts and Enforcement Act 2007 is restricted to circumstances in which the court considers that the proposed appeal would raise some important point of principle and not of practice.
Does the committee therefore agree to draw the instrument to the attention of the Parliament on reporting ground (e), as there appears to be doubt about whether the instrument is intra vires?
Looking at the 2007 act, the section that is referred to is one in which the United Kingdom Parliament has legislated without making reference to Scotland, and that appears to be part of the source of the difficulty.
I welcome the fact that the Lord President has acknowledged that there is a difficulty with what is currently before us, and I certainly think that we should do what is proposed. On this occasion, we are dealing with one of those obscure corners of law in which, for whatever reason, there appears to be a defect.
Indeed.
The committee might want to note that the Lord President’s private office has acknowledged the error and has undertaken to rectify the matter promptly by laying an amending instrument.
Is the committee happy to report that and to note the Lord President’s proposed actions?
Members indicated agreement.
A further point has been raised by our legal advisers. There is a minor drafting error in new rule 104.5(1), as inserted by paragraph 3 of the instrument, which refers to the parties that are mentioned in rule 104.3(4)(b) to (d), whereas the relevant parties are mentioned in rule 104.3(6)(b) to (d).
Does the committee therefore agree to draw the instrument to the attention of the Parliament on the general reporting ground, as it contains a minor drafting error?
Members indicated agreement.
I think that whichever of our legal colleagues was eagle-eyed enough to notice that deserves a mention in dispatches.
Does the committee agree to note that the Lord President’s private office has undertaken to rectify the matter promptly by laying an amending instrument?
Members indicated agreement.
Water Environment and Water Services (Scotland) Act 2003 (Commencement No 9) Order 2013 (SSI 2013/252)
Marine Navigation Act 2013 (Commencement) (Scotland) Order 2013 (SSI 2013/254)
Glasgow Commonwealth Games Act 2008 (Commencement No 4) Order 2013 (SSI 2013/260)
The committee agreed that no points arose on the instruments.