Act of Sederunt (Sheriff Court Rules) (Lay Representation) 2013 (SSI 2013/91)
Paragraph 5 of the instrument appears to be defectively drafted in that it inserts a new chapter 2A into the Act of Sederunt (Small Claim Rules) 2002 (SSI 2002/133)—the small claim rules. By virtue of the provision in rule 2.1(1)(d) of the small claim rules, lay representation is already permitted in all small claims. However, rule 2A.2(1) applies only to enable lay representation in proceedings in which no other provision that permits a party to be represented before the sheriff by a lay representative is in force. Given that lay representation is permitted in all small claims, it appears that there are no circumstances in which chapter 2A might apply, and its presence can only cause problems. Does the committee agree to draw the instrument to the Parliament’s attention on reporting ground (i), as the drafting appears to be defective?
I note that it is entirely clear from the declaration that is made by prospective lay representatives in paragraph (b) of form A1 in schedule 2 to SSI 2013/91 and elsewhere in that instrument that such people cannot receive any remuneration. That is entirely proper, and it highlights the fact that we are dealing with people who are not legally qualified to appear before the courts, so it is important that the legislation on the matter is as clear and unambiguous as it can be. Therefore, I am happy to support the reference that the convener proposes.
I find the Lord President’s explanation somewhat unfortunate—it is convoluted and unconvincing, and I express my disappointment about that.
There is some doubt about whether the difficulty with the instrument comes from the Lord President’s office, as Mike MacKenzie suggested, or from its interpretation of the Legal Services (Scotland) Act 2010. What is clear is that the proposed change to the small claim rules is not necessarily progress or a step forward. The matter certainly needs to be sorted out, and I urge that we ask the relevant committee—in the strongest possible terms—to note that.
Does the committee therefore agree to draw the instrument to the Parliament’s attention on reporting ground (i), as the drafting appears to be defective?
The form or meaning of paragraph 4 of the instrument could be clearer in so far as it inserts a new chapter 2A into the Act of Sederunt (Summary Cause Rules) 2002 (SSI 2002/132)—the summary cause rules. Lay representation is permitted under those rules only at certain hearings, but the interaction with the new chapter 2A is complex. Given that the provisions on lay representation are directed at persons who, by definition, are not legally qualified, it appears that the position on lay representation in summary causes, as amended by chapter 2A, could be clearer. Given that we have indications that the Lord President’s office and our lawyers have not been capable of agreeing on the intended meaning, I suspect that those who are not legally qualified have very little chance of understanding it. Does the committee agree to draw the instrument to the Parliament’s attention on reporting ground (h), as the meaning could be clearer?
Does the committee also agree to welcome the suggestion that the Sheriff Court Rules Council may propose to the Scottish civil justice council that it undertake a review of all rules on lay representation as part of its wider policy remit once it takes up its functions?
Children’s Hearings (Scotland) Act 2011 (Commencement No 7) Order 2013 (SSI 2013/98)