Act of Sederunt (Fees of Solicitors in the Court of Session, Sheriff Appeal Court and Sheriff Court) (Amendment) 2018 (SSI 2018/186)
Item 4 is consideration of an instrument that is subject to negative procedure. I refer members to paper 3, which is a note by the clerk.
Before I invite comments from the committee, Having asked the clerks about this Scottish statutory instrument, and in the context of the discussions in the Conveners Group about the notes that accompany SSIs and how easy it is to understand exactly what instruments are intended for—whether they are in layman’s language—I believe that this is a prime example of what should really not be happening. I have asked the clerks to take up the matter with officials to tell them that the policy intent of SSIs should be clearly set out for committee members or any member of the public who is looking at an SSI to understand. Having seen this Scottish statutory instrument, I have asked the clerks to write to the Lord President and to the Minister for Parliamentary Business making the general point that we expect SSIs to be accompanied by a clear explanation of what an instrument will do and why.
It is a particularly important issue because there is no doubt that, in the coming weeks and months, the number of SSIs that this and every other committee will be dealing with will increase substantially. The point must be made now, because we are aware that the number of SSIs that the Parliament will have to consider in order to update the statute book because of the United Kingdom’s decision to leave the European Union is going to grow. A letter will go to the Lord President to make that point about clarity and about making SSIs easy to understand, and to raise awareness of the general point that SSIs are going to be a bigger factor in our business. The committee already deals with a large number of SSIs, and the clerks should not have to make phone calls and spend time trying to determine exactly what an SSI will do.
I understand that the SSI makes provision for a 5 per cent increase in fees across the board. I want to make the general point that court fees can present an access-to-justice issue. We have seen above-inflation increases in fees being made for a number of years. Although I understand the need for the courts to recoup their fees, and I accept that there has been a decrease in the number of cases, we should note that fees can be an issue and that that should be borne in mind in the future.
I absolutely agree with Daniel Johnson. We need to be vigilant about court fees. The increase is not something that we see being replicated in salary increases and the like.
I would also like to comment on your general remarks on SSIs, convener. The matter has come up in other committees, so it is not simply an issue with the Lord President’s office—although I know that you are not suggesting that. In the past, we would look to explanatory notes, but the explanatory notes seem increasingly just to replicate what the instruments say, which is less than helpful. You also mentioned the fact that the public watch these proceedings. Of course we understand that there will be some highly technical legal matters, but we need to understand the generality of what is proposed, and if we have any questions we can then delve deeper.
The clerks have already taken up the point with Government officials, and the Lord President is the next person in their sights.
I may not have understood Daniel Johnson’s point entirely, but as regards the clarity of the SSI, I read it as applying only to the fees of the solicitors in an award of expenses at the end, rather than the court fees that are levied to access the courts. I am just a bit confused by his point.
Gael Scott will clarify that.
Yes—that is the case. The issue is the tables that the court uses to determine the award of a solicitor’s expenses at the end of the case, rather than the court fees that individual litigants have to pay for the different stages of court proceedings.
So, it is not necessarily an access-to-justice issue, although I concede that the litigant may say, “Okay what am I potentially in the hole for at the end of this?”
That just demonstrates the point that that was not clear in the briefing papers that we got. If we are asked to pass SSIs and to know exactly what we are being asked to pass, it must be absolutely crystal clear.
The more general issue is that court fees have tended to go up. Daniel Johnson’s point was well made, but it is perhaps not relevant to the SSI.
Are members content to make no recommendation on the SSI, other than to say that the explanatory note should have been clearer?
Members indicated agreement.