Subordinate Legislation Committee
Meeting date: Tuesday, April 30, 2013
Official Report
331KB pdf
Instruments subject to Affirmative Procedure
Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013 [Draft]
Rule 9 of the rules appears to have been made by an unusual or unexpected use of the powers in section 177 of the Children’s Hearings (Scotland) Act 2011 to make rules about the procedure relating to children’s hearings, combined with the powers in section 195(2) to make incidental, supplemental or consequential provision. The committee might consider that it would have been a more usual or expected use of powers to have made the provisions contained in rule 9 by regulation under section 34, which specifically deals with imposing additional requirements on safeguarders.
However, this does not appear to affect the validity of rule 9. The Scottish Government adopted its approach because it considers that the matter is generally related to procedural issues, but the committee might consider the rule to be in the nature of a substantive requirement.
The committee might also wish to note a couple of matters. First, as a result of observations made by the legal adviser in connection with rule 56, the Scottish Government withdrew the rules that were initially laid on 15 April and relaid them on 23 April with changes to that rule.
Secondly, rule 33 sets out requirements for the provision of information in advance of certain hearings to specified persons involved in hearings. That applies when section 109(7), 115(5) or 117(5) of the 2011 act applies. Sections 115(5) and 117(5) are yet to be inserted into the act by the Children’s Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013. That order is yet to be laid in Parliament and, without sight of it, Parliament cannot be clear about the application and effect of rule 33 in the period permitted for scrutiny of the current rules. Although the committee may wish to welcome the fact that the Government has supplied the details of those subsections, the committee might also wish to encourage the Scottish Government to consider how such references to provisions that are yet to be made could be avoided in the programming of legislation.
Finally, part 21 of the rules makes specific provisions for hearings arranged under the Children’s Hearings (Scotland) Act 2011 (Implementation of Secure Accommodation Authorisation) (Scotland) Regulations 2013 and cross-refers in several places to those regulations, which are also yet to be laid before Parliament. Without sight of those regulations as laid and published, Parliament cannot be clear about the application and effect of part 21 in the period permitted for scrutiny of the current rules.
Does the committee therefore agree to draw the rules to the Parliament’s attention on reporting ground (g), as rule 9 has been made by what appears to be an unusual or unexpected use of the powers conferred by the parent statute, which is the 2011 act?
Members indicated agreement.
Children’s Hearings (Scotland) Act 2011 (Review of Contact Directions and Definition of Relevant Person) Order 2013 [Draft]
Public Services Reform (Scotland) Act 2010 Modification Order 2013 [Draft]
The committee agreed that no points arose on the instruments.