Subordinate Legislation Committee, 18 Nov 2008

Meeting date: Tuesday, November 18, 2008

Official Report 123KB pdf

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Instruments not laid before the Parliament

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Act of Sederunt (Rules of the Court of Session Amendment No 5) (Miscellaneous) 2008 (SSI 2008/349)

Are we content to draw the act of sederunt to the attention of Parliament on the ground that paragraph 7(6), which will insert new rule 41.59 into the Court of Session Rules 1994, has been made by what appears to be an unusual or unexpected use of the power that is conferred by section 5 of the Court of Session Act 1988?

I am happy to go along with that course of action if it is the committee's view. However, having read carefully our excellent legal brief, I would have thought that rule 41.59 is quite sensible. There is a lower tribunal—I forget its name—and a further tribunal, and there is a hurdle to overcome before moving from one to the other. I thought that the Court of Session had more of a supervisory than an appellate role, and someone who has been turned down by both tribunals would have a poor chance of getting anywhere with the Court of Session unless their appeal met one of the two criteria that are laid down in new rule 41.59. One criterion is that

"there is some other compelling reason for the court to hear the appeal."

That is a very broad brush approach and I wonder whether it is a reasonable definition of practice. It would be pretty expensive for an appellant to go on to the Court of Session in circumstances in which they would be unlikely to get anywhere if they did not meet the new criteria. I believe that new rule 41.59 would protect people who are going through the tribunal system from incurring further expense—I doubt that they would get legal aid for such an action—so the rule seems to be sensible to me.

If the legal advisers and others think that the use of the power is unusual, I do not mind going along with drawing that to the attention of the lead committee.

Thank you. We have all seen the correspondence between Jonathan Mitchell QC and our clerk. It is useful to have what Ian McKee has said on the record. I am no lawyer, but the way in which the law and the courts operate is open to change and interpretation. That is a useful statement and, I hope, a view that the committee can endorse. Is that all right?

Members indicated agreement.

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Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008 (SSI 2008/357)<br />Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Commencement No 6) Order 2008 (SSI 2008/362)

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Pigs (Records, Identification and Movement) Amendment (Scotland) Order 2008 (SSI 2008/369)

The committee agreed that no points arose on the instruments.

At our meeting on 11 November, we agreed to consider in private our report on the delegated powers of the Health Boards (Membership and Elections) (Scotland) Bill at stage 1.

Meeting continued in private until 14:40.