Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (SSI 2012/188)
The meaning of rule 33.7(1)(a)(i) of the ordinary cause rules, as amended by paragraph 5(4)(a) of the act of sederunt, could be clearer, in that the words “between the parties” appear to be superfluous and to be capable of causing confusion in construing the provision. Does the committee therefore agree to draw the act of sederunt to the attention of the Parliament on reporting ground (h)?
Act of Sederunt (Rules of the Court of Session Amendment No 3) (Miscellaneous) 2012 (SSI 2012/189)
There appears to be doubt whether the act of sederunt is intra vires, in so far as it inserts form 12B.2 into the rules of the Court of Session, when the purported effect of that form is to require a prospective lay representative to make a declaration disclosing spent convictions. That provision appears to be of doubtful vires because it purports to disapply the effect of section 4(1) of the Rehabilitation of Offenders Act 1974 in the absence of any identifiable power that enables the Court of Session to make provision to that effect.
I agree absolutely with our advisers and I hope that the committee can note that position to the Lord President’s office in the strongest terms, because it is a fundamental issue of principle and importance.
I have grave concerns about the vires of the act of sederunt. It appears not to be in accordance with the general objects and intentions of the parent act. At the very least, there is a need for clarification because we are in a difficult position. I have concerns about it, given where we are at the moment.
I merely make the point that the act of sederunt has been made and will come into force. We can ask about it, but we are not in a position to do anything else.
I have a general point. A lot of what happens in this committee sometimes slips under the radar, even though it is vital in the general order of things. We understand the technicalities and have had an explanation of them. We cannot afford for the committee and the Lord President to write back and forth, expressing their views, while the world goes on round about us without knowing how important the issue is. Is there any way in which we can raise the profile of our concerns? Although the committee will deal with this in the only way in which it can, it is also important to raise the profile of the issue in terms of the Lord President being held to account by people other than the committee.
I merely comment that the obvious line of communication is that between the Parliament—the committee’s officials, because that is where the line of communication comes into the Parliament—and the Lord President’s private office. That line of communication has already been used and will be used some more. If you feel that the profile needs to be raised elsewhere, what do you suggest?
In other committees, not least subject committees, members can take advice and assistance from the Parliament’s media team. It can identify issues of importance to the wider public and it can, and does, use all the communications expertise at its disposal to raise issues with the media. The issue is vital to the work of the committee and the Parliament. As well as flagging up juicy policy items that are of interest to journalists, it is sometimes important for our media team to flag up technical things. The issue is vital and it should not be allowed to slip under the radar. If other committees can avail themselves of the services of the Parliament’s media and press support team, why should this committee not do that on this occasion?
I am sure that there is no reason why we should not.
I have some sympathy with Michael McMahon, although I am not so sure that I would use the media. The act of sederunt has been made. What, if anything, can we do to highlight that we are challenging it?
I merely suggest that we already are challenging it. This is the appropriate committee of Scotland’s Parliament; we are on the record and the Lord President’s private office will notice this discussion.
That does not stop the act of sederunt having been made. Is there any way in which we can stop it?
We need to take legal advice on that. I think that the answer is no, we cannot stop it, because we have no power to do that.
That is correct.
It is confirmed. We have no power to do that.
Clearly we have a couple of responsibilities to meet. First, we must ensure that any legislation that comes before us is as good as we can make it but, in this case, we are shutting the stable door after the horse has bolted. Secondly, we also have to protect the Parliament’s reputation, so we should make the Lord President’s office aware in the strongest possible terms of how disappointed we are with this and how strongly we disagree.
I agree with my colleagues. The fundamental point is that, as I understand it, this might well leave the courts open to challenge. I am also concerned that such challenges might well be founded on the basis that they seem to be taking on powers that they have no right to—at least not according to precedents that have been established thus far. The act of sederunt raises real concerns and our duty, in as much as we are able to discharge it, is to express those concerns, which is very obviously what we are doing.
Members have suggested that we raise the matter through the media and that we attempt to annul the act of sederunt—although it has become clear that we have no power to do the latter. I have not heard anyone suggest that we engage the Government, which might like to consider whether it has a view on the matter. I appreciate that it plays no part in this particular process, but the law officers might want to consider whether they would want to be part of some process of challenge or consideration.
On a point of clarification, convener, am I right in believing that ministers rather than the courts have the power to make these decisions? If so, ministers might well have a view on this particular decision, which I understand comes into effect on 9 July.
Our advice is that Scottish Government ministers have powers in the same area, but they are not the same as those that the Lord President is relying on. They run parallel but are not the same. Nevertheless, we can expect the Government—or at least the law officers—to have a view on this matter.
It is just a suggestion, but the Justice Committee might want to investigate the matter.
We can make that suggestion to that committee.
Michael McMahon is correct to suggest that all this touches on a much bigger issue. A tug of war seems to be developing here. The committee can apply only a very minor scrutiny mechanism to instruments from the Lord President, when the Parliament itself should be able to deal with such fundamental issues of democracy. Although they might find it somewhat dry, the wider public should have an interest in this matter.
I hear what you are saying, Mike—indeed, you are not the only person to have made the suggestion—but, to be honest, I think that we should explore the parliamentary procedures before we begin to discuss the issue too widely outwith the Parliament. Apart from anything else, the issue will not be widely understood; indeed, we ourselves needed an extensive briefing to try to understand it and I do not think that we can expect the general public to come to an understanding of the issues very easily.
The reality is that, if we challenge the matter and if the Justice Committee holds an inquiry that turns over a lot of stones and shows, as Mike MacKenzie suggested, things that are hardly democratic, we will attract attention anyway.
The issue might well attract attention at some point, but I suggest that we turn over a bit more ground before we invite it. I certainly do not think that we have explored all the options at a parliamentary level.
Let us ensure that the report that we write goes to the appropriate people in the Parliament and Government and that the essential point is understood. After all, the act of sederunt raises a constitutional issue that is quite important to us as parliamentarians and we should see whether, in the first place, we can explore it with the Parliament. Are folk happy with that?
Encapsulating our discussion in one sentence, I ask whether the committee agrees to draw the act of sederunt to the Parliament’s attention on reporting ground (e), as there appears to be a doubt whether it is intra vires.
Town and Country Planning (Continuation in force of South Lanarkshire Local Plan) (Scotland) Order 2012 (SSI 2012/194)