Official Report 104KB pdf
Judiciary and Courts (Scotland) Bill:<br />Stage 1
We will go through the delegated powers step by step. Following our meeting on 26 February, we wrote to the Scottish Government about a number of the delegated powers in the bill; we have seen the responses.
I have some concerns about the power, convener. At the moment, the Government is not required to revoke the order once it is satisfied that the SCS can perform its functions again, on the ground that the SCS might never be able to perform its functions efficiently again. That does not mean that the Government should not be under a duty to revoke the order as soon as the SCS is able to perform its functions. They are two different points. The rare circumstance in which the SCS cannot perform its functions should be dealt with in its own right. We should ask the Government to consider the issue further.
We can do that.
I have some sympathy with Ian McKee's point. Parliament will approve the Government's action within 40 days but, that having been done, the Government is then effectively the sole arbiter in determining whether the SCS's affairs are ever again in order. Ian McKee's point that the Government should have a duty to revoke the order is well made. I am slightly concerned that there is no further role for Parliament in this process. The matter could be left in abeyance and not attended to properly because there is no obligation to require that it should be attended to.
Are members content to reflect those points in our report?
Are members content to bring that matter to the attention of the lead committee, which might want to ask the Scottish Government to explain whether the Scottish ministers would be likely to retain SCS functions permanently or, given what we have just discussed, whether the transfer of those functions to another statutory body that is independent of the Scottish Government would be more likely?
Are members content to recommend that we ask the Scottish Government to clarify whether it is appropriate for the revocation order to follow the procedure set out in section 67(5) of the bill, monitor any amendments made by the Government in that respect at stage 2 and reconsider the matter, if necessary?
I think you mean section 66(2), or am I reading the wrong thing?
It is section 67(5).
Both sections are relevant.
Thank you. In that case, it looks as though we have already agreed the final question. Are we content with that?
It is worth reading it out.
Are we content to consider any amendments made by the Scottish Government at stage 2 to amend section 66(2) to make it clear that action taken by the Scottish ministers during the period between the order being made and the Parliament choosing to affirm it remain valid, and to reconsider the matter if necessary?
Paragraph 2(5) of schedule 3 contains a power to alter the membership of the SCS. Are we satisfied with the Scottish Government's response, and that suitable safeguards are provided by the requirement to use the affirmative procedure?
That takes us to sections 15(1) and (2), which are about guidance to the Judicial Appointments Board for Scotland. Are we content that any reservations about the fact that the power to be conferred on the Scottish ministers and the Lord President to issue such guidance is to be subject to no parliamentary procedure, are such as not to merit adverse comment at this stage? Do we want to refer the matter to the lead committee for further consideration? We are asking the lead committee to consider the issue, but we will revisit it at stage 2. Are we content with that?