DELEGATED POWERS AND LAW REFORM COMMITTEE AGENDA. 17th Meeting, 2014 (Session 4) Tuesday 20 May 2014

Transcription

1 DPLR/S4/14/17/A DELEGATED POWERS AND LAW REFORM COMMITTEE AGENDA 17th Meeting, 2014 (Session 4) Tuesday 20 May 2014 The Committee will meet at am in the David Livingstone Room (CR6). 1. Instruments subject to negative procedure: The Committee will consider the following Insolvency (Scotland) Amendment Rules 2014 (SSI 2014/114); Food Hygiene (Scotland) Amendment Regulations 2014 (SSI 2014/118). 2. Instruments not subject to any parliamentary procedure: The Committee will consider the following Act of Sederunt (Rules of the Court of Session and Sheriff Court Company Insolvency Rules Amendment) (Miscellaneous) 2014 (SSI 2014/119). 3. Courts Reform (Scotland) Bill: The Committee will consider the Scottish Government's response to its Stage 1 report. 4. Public Bodies Act Consent Memorandum: The Committee will consider the following draft Order under Section 9 of the UK Public Bodies Act 2011 Public Bodies (Abolition of Food from Britain) Order 2014 [draft]. 5. Annual report: The Committee will consider a draft annual report for the parliamentary year from 11 May 2013 to 10 May Euan Donald Clerk to the Delegated Powers and Law Reform Committee Room T1.01 The Scottish Parliament Edinburgh Tel: Euan.Donald@scottish.parliament.uk

2 DPLR/S4/14/17/A The papers for this meeting are as follows Agenda Items 1 and 2 Legal Brief (private) DPLR/S4/14/17/1(P) Agenda Items 1 and 2 Instrument Responses DPLR/S4/14/17/2 Agenda Item 3 Courts Reform (Scotland) Bill - as introduced Courts Reform (Scotland) Bill - Delegated Powers Memorandum Briefing Paper DPLR/S4/14/17/3 Agenda Item 4 Public Bodies (Abolition of Food from Britain) Order 2014 [draft] Briefing Paper (private) DPLR/S4/14/17/4(P) Agenda Item 5 Draft Report DPLR/S4/14/17/5

3 DPLR/S4/14/17/2 DELEGATED POWERS AND LAW REFORM COMMITTEE 17th Meeting, 2014 (Session 4) Tuesday 20 May 2014 Instrument Responses INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE Insolvency (Scotland) Amendment Rules 2014 (SSI 2014/114) On 9 May 2014, the Scottish Government was asked: Rule 11 inserts a new rule 4.26A into the Insolvency (Scotland) Rules 1986 which provides the Court of Session with a power to make an order (a block transfer order ) appointing a replacement liquidator in the place of a liquidator who dies, retires from practice or is otherwise unable or unwilling to continue in practice ( the outgoing liquidator ). Section C2(c) of Part II, Schedule 5 to the Scotland Act 1998 reserves, in relation to business associations, powers of courts in relation to proceedings for winding up, other than the power to sist proceedings. Page 231 (para 5) of the Explanatory Notes to the 1998 Act explains that the reservation includes the circumstances in which a business association may be wound up voluntarily or by the courts, and the powers of the courts on hearing a petition for winding up are reserved. Can the Scottish Government therefore clarify why it is considered that the new rule 4.26A, to the extent that it purports to confer power on the Court of Session, is properly made by virtue of the enabling powers in section 411 of the Insolvency Act 1986? The Scottish Government responded as follows: So far as relevant, Section C2 of Schedule 5 to the Scotland Act reserves (emphasis added in what follows):- In relation to business associations (a) the modes of, the grounds for and the general legal effect of winding up, and the persons who may initiate winding up, (b) liability to contribute to assets on winding up, (c) powers of courts in relation to proceedings for winding up, other than the power to sist proceedings, (d) arrangements with creditors, and (e) procedures giving protection from creditors.. 1

4 DPLR/S4/14/17/2 It goes on to provide for an exception to that reservation:- In relation to business associations (a) the process of winding up, including the person having responsibility for the conduct of a winding up or any part of it, and his conduct of it or of that part,. Accordingly, in relation to business associations the powers of the courts in relation to proceedings on winding up are reserved. However, the process of winding up, including the person having responsibility for the conduct of a winding up, is then excepted from the reservation. Rule 11 of this instrument inserting new rule 4.26A into the Insolvency (Scotland) Rules 1986 provides for the Court of Session to make an order (a block transfer order ) appointing a replacement liquidator in the place of an outgoing liquidator who dies, retires from practice or is otherwise unable or unwilling to continue in practice. This falls within the process of winding up exception, because while it affects the powers of the courts in relation to proceedings on winding up, it makes narrow provision in relation only to matters of process. Specifically it also makes provision for the person who has responsibility for the conduct of the winding up. As regards process, in particular, the Court of Session already has powers to remove and replace liquidators, in voluntary winding up under section 108 of the Insolvency Act 1986 and in winding up by the Court under section 172 of that Act together with powers at common law (recognised for instance in the Opinion of Lord Drummond Young in Geddes, Petitioner 2006 SLT 664). New Rule 4.26A (and related new Rules 4.26B and 4.26C) do not confer new powers on the Court of Session, but make procedural provision in relation to the process of exercising the court s powers. 2

5 Food Hygiene (Scotland) Amendment Regulations 2014 (SSI 2014/118) On 9 May 2014, the Scottish Government was asked: DPLR/S4/14/17/2 The preamble to the instrument cites the power in paragraph 1A of Schedule 2 to the European Communities Act 1972 to make ambulatory references to EU instruments. However, there is no express provision in the instrument to the effect that any EU instrument referred to is to be construed as a reference to that instrument as amended from time to time. Nor does the preamble explain which EU instrument(s) referred to are to be construed in this way, or why the Scottish Ministers consider the ambulatory reference to be necessary or expedient. Can you explain what the intended effect of reliance on paragraph 1A of Schedule 2 to the European Communities Act 1972 is? Do you consider that the intended effect is achieved in the absence of the provision referred to above? The Scottish Government responded as follows: Regulation 2(3) of SSI 2014/118 substitutes the definition of Regulation 2075/2005. The intended effect of that provision (and therefore the instrument) is that, due to the fact that the provisions of 2(5) of 2006/3 only make ambulatory the annexes to the EU legislation mentioned in that SSI and this instrument (2014/118), it is necessary to implement the amendments made to the Articles of 2075/2005. The instrument is amending, by substitution, the definition of an EU instrument to which an ambulatory reference is attached in the principal SSI by virtue of paragraph 1A of Schedule 2 to the European Communities Act 1972 (regulation 2(3) of the instrument amends the definition of Regulation 2075/2005 in Schedule 1 to The Food Hygiene (Scotland) Regulations 2006). It was considered appropriate to cite paragraph 1A of Schedule 2 to the European Communities Act Standing this explanation, it is accepted that the preamble to the instrument may be considered not to be in the correct form but that does not bear upon the effect of the substitution. 3

6 4 DPLR/S4/14/17/2 INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE Act of Sederunt (Rules of the Court of Session and Sheriff Court Company Insolvency Rules Amendment) (Miscellaneous) 2014 (SSI 2014/119) On 9 May 2014, the Lord President s Private Office was asked: Paragraph 2(3) of the instrument inserts (inter alia) new rule 74.32A(5) of the Rules of the Court of Session, which provides that where the court grants an application under rule 4.26B(1) of the Insolvency Rules (for a block transfer order), it may order the replacement liquidator to be appointed in any or all of the cases listed in the application, which is therefore a power to appoint in any or all cases, as opposed to a matter of process. Section C2(c) of Part II, Schedule 5 to the Scotland Act 1998 reserves in relation to business associations, powers of courts in relation to proceedings for winding up, other than the power to sist proceedings. Page 231 (para 5) of the Explanatory Notes to the 1998 Act explains that the reservation includes the circumstances in which a business association may be wound up voluntarily or by the courts, and the powers of the courts on hearing a petition for winding up are reserved. Please clarify therefore why it is considered that the new rule 74.32A(5) is properly made by virtue of the enabling powers in section 32 of the Sheriff Courts (Scotland) Act 1971 and section 5 of the Court of Session Act 1988 (as amended)? The Lord President s Private Office responded as follows: Paragraph 2(3) of this Act of Sederunt is made in exercise of the powers conferred by section 5 of the Court of Session Act 1988 ( the 1988 Act ). It substitutes rule 74.32A of the Rules of the Court of Session. That rule was itself inserted by paragraph 2(10) of the Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2006 (SSI 2006/83), which was also made under and by virtue of the powers conferred by section 5 of the 1988 Act. In particular, section 5(a) of the 1988 Act confers powers upon the Court of Session to regulate the practice and procedure to be followed in various categories of cause within the Court. In addition, section 5(b) enables the Court to prescribe, inter alia, the form of any petition to be used in or for the purposes of any such cause. The new rule 4.26B(1) inserted into the Insolvency (Scotland) Rules 1986 provides for a single application to the Court of Session for the removal of an outgoing liquidator and the appointment of a replacement liquidator under a range of specified powers. The replacement rule 74.32A therefore specifies the form for such an application: it is to be brought by petition. Rule 74.32A(5) is not itself the power to remove a liquidator or to appoint a replacement liquidator. Those powers are instead listed in rule 4.26B(1). Rule 74.32A(5) merely clarifies that an application for a block transfer order can be granted in part, i.e. in respect of some of the cases listed in the petition without necessarily being granted in all. We observe that this rule restates the existing rule 74.32A(3)(a). As far as section C2(c) of Part II of Schedule 5 to the Scotland Act 1998 is concerned, we note that the power to make acts of sederunt under section 5 of the 1988 Act was conferred by the UK Parliament upon the Court of Session. While we

7 DPLR/S4/14/17/2 understand that the powers of the Scottish Ministers to make subordinate legislation under powers conferred by pre-commencement enactments extends only so far as those powers are exercisable within devolved competence (section 53 of the Scotland Act refers), the powers of the Court under the 1988 Act are not similarly exercisable only within devolved competence. Since devolution, the Court has routinely made acts of sederunt which relate to reserved matters, including insolvency. For example, the Sheriff Court Company Insolvency Rules and Chapter 74 (insolvency) of the Rules of the Court of Session were last amended by the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 3) 2013 and the Act of Sederunt (Rules of the Court of Session Amendment No. 4) (Miscellaneous) 2013 in consequence of the coming into force of the Energy Supply Company Administration (Scotland) Rules 2013 (SI 2013/1047), which instrument was made by a Minister of the Crown. For these reasons, we consider that rule 74.32A(5) is properly made in exercise of the powers conferred by section 5 of the 1988 Act, as that power may be exercised in relation to reserved and devolved matters. 5

8 DPLR/S4/14/17/3 DELEGATED POWERS AND LAW REFORM COMMITTEE 17th Meeting, 2014 (Session 4) Tuesday 20 May 2014 Courts Reform (Scotland) Bill Response from the Scottish Government Background 1. The Committee reported on the delegated powers in the Courts Reform (Scotland) Bill 1 on 23 April 2014, its 29 th report of The response from the Scottish Government to the report is reproduced at the Annex. Scottish Government response Section 41(1) power to confer all-scotland jurisdiction for specified cases 3. Section 41(1) confers power on the Scottish Ministers by order subject to the negative procedure to provide that the jurisdiction of a sheriff of a specified sheriffdom, sitting at a specified sheriff court, will extend territorially throughout Scotland for the purposes of dealing with specified kinds of civil proceedings. Such an order may only be made with the consent of the Lord President of the Court of Session under section 41(3). The power may be used to provide for an individual sheriff court to hear cases from all over Scotland in specified kinds of proceedings, such as personal injury actions. 4. On first considering the power, the Committee noted that both the Policy Memorandum accompanying the Bill and the Scottish Civil Courts Review (which the Bill seeks to implement the recommendations of) discuss the case for an all-scotland personal injury court but not any other specialist courts which the Scottish Government anticipates might be created under section 41(1), or the merits of creating such courts. Given this lack of explanation, the Committee asked the Scottish Government to explain why section 41(1) confers a power on Ministers to 1 Courts Reform (Scotland) Bill [as introduced] available here: 1

9 DPLR/S4/14/17/3 create specialist courts other than a personal injury court. It also asked whether a higher level of Parliamentary scrutiny, or the imposition of a statutory consultation requirement, might be appropriate where the power is exercised in this way. 5. In response, the Government asserted that the power was drawn widely to allow the courts the flexibility to respond quickly to changes to the civil justice system. 6. The Committee was of a view that the explanation provided did not provide sufficient detail on why such flexibility is required, nor what sort of other civil proceedings might be appropriate for specialisation and why. 7. In its report, therefore, the Committee recommended that an amendment should be brought forward, requiring the Government to consult with stakeholders before using the power at section 41(1) to create a specialist court other than a personal injury court. This would allow the views of interested parties to be fully considered in a way which had not previously been provided for in the Bill s consultation process 8. In its response to the Committee s report, the Government reiterated its view that flexibility is required in order to allow for further specialisation of courts in future. The Government also emphasised that any order made under section 41(1) requires the consent of the Lord President, and will be subject to Parliamentary scrutiny. 9. Whilst the Government expects that it would undertake consultation before using the power to create a specialist court, it is not of the view that such consultation should be a statutory requirement. 10. The Government goes on to explain that, whilst future potential specialist courts (other than personal injury courts) have not been specifically consulted on, the scope of the power has been fully explained both in the Bill s accompanying documents and in the Government s public consultation on the Bill. Section 96 Power to regulate procedure etc. in the Court of Session (substitutes section 5 of the Court of Session Act 1988) Section 97 Power to regulate procedure etc. in the sheriff court and the Sheriff Appeal Court 11. Section 96 confers a broad general power on the Court of Session to regulate by act of sederunt the procedure and practice to be followed in proceedings in the court, and any matter incidental or ancillary to such proceedings. It does so by substituting a new section 5(1) in the Court of Session Act 1988 ( the 1988 Act ). Section 97(1) of the Bill confers a similar power on the court in relation to proceedings in the sheriff court and the Sheriff Appeal Court. 12. The Committee s report observed that sections 96 (inserting new section 5(1) into the 1988 Act) and 97 give the Court of Session much wider powers than it currently has to regulate court proceedings. The report accordingly drew those sections to the attention of the lead committee. 2

10 DPLR/S4/14/17/3 13. In particular, the Committee noted that the proposed new powers were not restricted to making provision about practice and procedure in the civil courts and matters incidental to such practice and procedure, as is currently provided for (in section 5 of the 1988 Act and section 32 of the Sheriff Courts (Scotland) Act 1971). Instead, the powers may be used to make provision for, or about, any matter which is incidental or ancillary to proceedings in the civil courts. As a result, the powers could potentially be used to make provision which may affect the substantive rights of litigants, something which would normally be determined by the legislature or Ministers as opposed to in court rules made by the Court of Session. 14. In its response to the Committee s report, the Scottish Government reiterated its intention that sections 96 (inserting new section 5(1) into the 1988 Act) and 97 will broaden the existing power of the Court of Session to regulate procedure and practice, for example by making provision about payments other than expenses which parties may be required to make in respect of their conduct relating to court proceedings. 15. The Government also stated that it does not consider that the substantive rights of litigants could be considered to be incidental or ancillary to court proceedings. Instead, the Government s view is that the powers at sections 96 and 97 could only be used to regulate matters relating to proceedings in the courts. 16. The Government also states its view that provision about the availability of appeal rights, which was found by the courts to be ultra vires the existing section 5 of the 1988 Act, would similarly be ultra vires the new powers in the Bill. In other words, the new powers would not be held to allow substantive provision to be made about something like appeal rights The Committee s report also commented on the powers in new section 5(3) of the 1988 Act and section 97(4) of the Bill to make incidental or supplemental provision in an act of sederunt. 18. The Committee drew the powers to the attention of the lead committee, noting that they broaden further the already wide range of matters, discussed above, which the courts can make provision about. In particular, the powers allow the Court of Session to make provision which is incidental or supplemental to provision for or about a matter which is already incidental or ancillary to court proceedings. The Committee was therefore of the view that these powers substantially widen the scope of the matters which the Court may regulate, potentially extending these even further beyond matters of procedure and practice. 19. Whilst the Committee considered that a power to make transitional, transitory or saving provision, and possibly consequential provision, for the purposes of such an act of sederunt might be desirable, it was of the view that the Scottish Government had not provided sufficient justification for taking powers to make provision incidental or supplemental to provision which in itself is already incidental to court proceedings. 20. In response to the Committee s report, the Government cited the existing power which the Court of Session has in relation to the sheriff court to make 3

11 DPLR/S4/14/17/3 incidental or supplementary provision on an incidental matter relating to procedure and practice. 21. The Government went on to explain its view that widening the scope of powers in this way does not enable the court to regulate substantive matters. The Government does not consider it unusual for a Bill to confer ancillary powers in this way, and argues that it allows for flexibility whilst remaining limited by the main purpose of the power. 22. The Committee also noted that the powers conferred by section 96 and 97 are not subject to any Parliamentary procedure. The Committee was concerned that, should the Parliament have concerns in relation to a particular instrument made in exercise of the powers, about the court s interpretation as to what was incidental to proceedings (as opposed to substantive in nature), it would have no power to annul the instrument. 23. In response, the Government reiterated its view that the powers could not be used to affect the substantive rights of litigants and would instead be used to regulate the proceedings of courts. 24. The Government considers that the courts are well placed to determine which matters relate to practice and procedure and which are of a more substantial nature. The Government s response goes on to note that in order to preserve the courts from political interference in their practice and procedure it is not current practice for acts of sederunt to be subject to any Parliamentary procedure. The Government is of the view that this should also be the case for any acts of sederunt made under the new section 5(1) of the 1988 Act and section 97(1) of the Bill. Conclusion 25. Members are invited to make any comments they wish on the Bill at this stage. If substantial amendments are made to the delegated powers provisions contained in the Bill, the Committee will have a further opportunity to consider the Bill after stage 2. Recommendation 26. Members are invited to note the Scottish Government s response on the Bill and to make any comments they wish at this stage. 4

12 DPLR/S4/14/17/3 ANNEX Correspondence from the Scottish Government, dated 13 May 2014: Section 41(1) Power to confer all-scotland jurisdiction for specified cases Power conferred on: Power exercisable by: Parliamentary procedure: the Scottish Ministers order negative The Committee recommends that the Scottish Ministers consider bringing forward an amendment at stage 2 to impose a consultation requirement prior to the exercise of the power in section 41(1) to create an all-scotland sheriff court other than for the purposes of personal injury proceedings. The Scottish Civil Courts Review recognised a growing trend towards specialisation in law; the Bill also recognises this with provisions relating to specialist judiciary and indeed these provisions on specialist courts. While the powers in section 41(1) are intended to be used to create an all Scotland specialist PI court, there may come a need for the sheriff court system to similarly provide for other specialisms in the same way. As with the specialist PI court, this would be without detriment to the ability of litigants to continue to raise matters which fall within those specialisms in their local sheriff court. The Bill seeks to establish a long term framework for the court system. The Government considers that this framework should have the flexibility to allow for further specialisation should this be considered appropriate in future. It therefore permits Ministers, with the consent of the Lord President and, subject to Parliamentary scrutiny, to adapt the system accordingly. It is likely that the Government would carry out a consultation prior to making an order under this power. The results of any consultation would, in accordance with normal practice, be set out in the policy note accompanying such an order. However a mandatory obligation to consult is unnecessary: no rights or facilities are being removed, and user choice is being extended, not diminished. The Government has considered the Committee s comments on a legislative requirement to consult prior to the exercise of this power, however it is not convinced that there are compelling reasons to insert such an obligation. While the particular choice of future specialism has not been consulted upon, the extent of the power has been fully explained. The Policy memorandum and Delegated Power memorandum have both made it clear; as did the Government s public consultation, that the power could be used for other types of civil proceedings beyond personal injury actions. 5

13 DPLR/S4/14/17/3 Section 96 Power to regulate procedure etc. in the Court of Session (substitutes section 5 of the Court of Session Act 1988) Section 97 Power to regulate procedure etc. in the sheriff court and the Sheriff Appeal Court Powers conferred on: Powers exercisable by: Parliamentary procedure: the Court of Session act of sederunt laid, no procedure The Committee accordingly draws the lead committee s attention to section 5(1) of the Court of Session Act 1988 (as inserted by section 96 of the Bill) and section 97(1) of the Bill. These sections confer much broader powers on the Court of Session to regulate matters in the civil courts by way of court rules than those powers which it currently has. The powers are not restricted to making provision about practice and procedure in the civil courts. Rather they extend to making provision for or about any matter which is incidental or ancillary to proceedings in those courts. As such the powers could potentially be used to make provision about matters which affect the substantive rights of litigants, and which would normally be the preserve of the legislature and of Ministers. As noted in the Government s correspondence with the Committee, the intention of section 5(1) of the Court of Session Act 1988 (as inserted by section 96 of the Bill), and 97(1), is to broaden the existing power of the Court of Session to regulate procedure and practice, for example by making provision about payments other than expenses which parties may be required to make in respect of their conduct relating to court proceedings. As the Committee notes at paragraph 27, such provision was held in Taylors v Marshalls Food Group (1988) to be ultra vires the existing section 5 of the 1988 Act, and would not be ultra vires the power in section 96. The Government does not, however, consider that the power conferred by section 96 would permit the Court of Session to make acts of sederunt which extended to the substantive rights of litigants. The power is to make provision for or about any matter incidental or ancillary to proceedings in the Court. The Government does not consider that the substantive rights of parties could be characterised as incidental or ancillary to proceedings in the Court, and so respectfully differs from the view expressed at paragraph 30 of the Committee s report: the provision which was declared to be ultra vires the existing section 5 in KP and MRK v Secretary of State for the Home Department would not, in the Government s view, have been intra vires the new powers in the Bill. While the Committee is correct to observe that the line between matters which relate to procedure and practice and matters which relate to substance may sometimes be a fine one, this is a line which the courts are capable of drawing. The powers are supplemented (in section 5(3) of the 1988 Act and section 97(4) of the Bill) by powers to include in an act of sederunt provision which is incidental or supplemental to provision for or about any matter incidental or ancillary to court proceedings. The Committee draws the lead committee s 6

14 DPLR/S4/14/17/3 attention to the fact that these provisions widen even further the scope of matters about which provision may be made in court rules, and that in the Committee s view the Scottish Government has not provided a satisfactory reason for taking these additional powers. The Government has considered the Committee s comments closely with regard to the powers to make provision which is incidental or supplemental to provisions for or about any matter incidental or ancillary to court proceedings. The Government notes that the power to make incidental or supplemental provision on an incidental matter relating to procedure and practice is already one which the Court has in relation to proceedings in the sheriff court under section 32(2) of the Sheriff Courts (Scotland) Act As is the case in the 1971 Act, the power to make incidental or supplemental provision is always limited by the main purpose of the power. In light of the existing powers in the 1971 Act, the government is not convinced that these powers constitute a widening of the scope of matters to such an extent that it would enable the court to regulate substantive matters. It is not unusual for such powers to be provided when delegated powers are conferred and the power provides important flexibility to deal with unforeseen issues. However that flexibility is always limited by the main purpose of the power, as set out in section 5(1) of the 1988 Act (inserted by section 96 of the Bill) and section 97(1) of the Bill. Lastly, the Committee draws the lead committee s attention to the proposal in the Bill that court rules made by act of sederunt under section 5(1) of the 1988 Act and section 97(1) of the Bill would not be subject to any parliamentary procedure, and as such were the Parliament to be concerned about the Court s interpretation as to what was incidental to proceedings, provision made under these powers could not be subject to annulment by the Parliament. As noted above, the Government considers that these powers extend to regulating the courts process rather than the substantive rights of the parties. These are properly matters for the courts. The government is confident that the courts are well placed to observe and respect the line between matters which relate to procedure and practice and matters which relate to substance. In order to preserve the courts from political interference in their practice and procedure, and in accordance with the principle of separation of powers, acts of sederunt are not presently subject to Parliamentary procedure and the Government considers that this remains appropriate for the act of sederunt-making powers introduced in new section 5(1) of the 1998 Act and section 97(1) of the Bill. 7

15 DPLR/S4/14/17/5 Background DELEGATED POWERS AND LAW REFORM COMMITTEE 17th Meeting, 2014 (Session 4) Tuesday 20 May 2014 Annual Report Under rule 12.9 of Standing Orders, the Committee is obliged to report to the Parliament at the end of each parliamentary year on its activities during that year. 2. These activities include details of its meetings, the number of times it has met in private and how the Committee has taken into account equal opportunities in its work. 3. The attached report sets out the Committee s draft annual report for , covering the reporting year 11 May 2013 to 10 May The report will be published next month to coincide with the publication of all other Committee annual reports. 4. Encompassing the work of the Delegated Powers and Law Reform Committee (formerly the Subordinate Legislation Committee) during the parliamentary year, the report comprises data relating to Scottish statutory instruments, bills, legislative consent memorandums and public body consent memorandums, but members are asked to note that more in-depth analysis of this work will be outlined in the Scottish Statutory Instruments Annual Report which is due for publication later this year. Recommendation 5. Members are invited to consider and agree the contents of the draft annual report for Euan Donald Clerk to the Committee 1

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17 DPLR/S4/14/17/5 Delegated Powers and Law Reform Committee Draft Report on Annual Report The Committee reports to the Parliament as follows Introduction 1. The Committee, formerly known as the Subordinate Legislation Committee, changed its name to the Delegated Powers and Law Reform Committee with effect from 5 June 2013 to reflect the fact that during the parliamentary year its remit was changed by agreement of Parliament to provide for the scrutiny of certain Scottish Law Commission (SLC) Bills. 2. This Report covers the work of the Committee during the parliamentary year from 11 May 2013 to 10 May The Committee has scrutinised a number of Bills and Scottish statutory instruments this year, reporting to subject committees and the Parliament on issues such as the scope of delegated powers and whether delegated powers are within vires, as well as on detailed drafting issues. Bills 3. In addition to SLC Bills, the Committee considers delegated powers provisions in Scottish Government, Members, Committee and Private Bills. Over the reporting period, the Committee has considered and reported on the following seventeen bills at Stage 1: Scottish Independence Referendum Bill; Landfill Tax (Scotland) Bill; Regulatory Reform (Scotland) Bill; Tribunals (Scotland) Bill; Bankruptcy and Debt Advice (Scotland) Bill; Criminal Justice (Scotland) Bill; Public Bodies (Joint Working) (Scotland) Bill; Marriage and Civil Partnership (Scotland) Bill; Children and Young People (Scotland) Bill; Procurement Reform (Scotland) Bill; Defective and Dangerous Buildings (Recovery of Expenses) (Scotland) Bill; Budget (Scotland) (No.3) Bill; Housing (Scotland) Bill; Disabled Persons Parking Badges (Scotland) Bill; Revenue Scotland and Tax Powers Bill; Courts Reform (Scotland) Bill; Historic Environment Scotland Bill. 2

18 DPLR/S4/14/17/5 4. The Committee also considered and reported on the following twelve bills as amended at Stage 2: Post-16 Education (Scotland) Bill; Land and Buildings Transaction Tax (Scotland) Bill; Scottish Independence Referendum Bill; Victims and Witnesses (Scotland) Bill; Landfill Tax (Scotland) Bill; Regulatory Reform (Scotland) Bill; Marriage and Civil Partnership (Scotland) Bill; Children and Young People (Scotland) Bill; Public Bodies (Joint Working) (Scotland) Bill; Tribunals (Scotland) Bill; Bankruptcy and Debt Advice (Scotland) Bill; Procurement Reform (Scotland) Bill. 5. With the exception of the Defective and Dangerous Buildings (Recovery of Expenses) (Scotland) Bill and the Disabled Persons Parking Badges (Scotland) Bill, all of the bills were Scottish Government bills and, as with previous years, the recommendations of the Committee on bills have led to a number of changes by the Scottish Government to relevant provisions. Through its scrutiny process, the Committee also aims to ensure that the correct balance between primary and secondary legislation is maintained. 6. The Committee has also considered four Legislative Consent Memorandums (LCMs). These are Westminster Bills which seek to change the law or alter Scottish Ministers or the Scottish Parliament s powers in relation to devolved matters. The four LCMs considered by the Committee were on: Anti-social Behaviour, Crime and Policing Bill (UK Parliament legislation); Water Bill (UK Parliament legislation); Deep Sea Mining Bill (UK Parliament legislation); High Speed Rail (London-West Midlands) Bill (UK Parliament legislation). 7. The Committee also gave consideration to one Public Body Consent Memorandum (PBCM). These relate to draft orders made under sections 1 to 5 of the Public Bodies Act 2011 which would fall within the Scottish Parliament s legislative competence. The PBCM considered by the Committee was on: Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading s Functions in relation to Estate Agents etc.) Order 2014 [draft]. Subordinate Legislation 8. The Committee has continued to work to tight timescales in its consideration of subordinate legislation, producing 70 reports over the reporting year. During the parliamentary year, the Committee published 33 statutory instrument reports, reporting on 259 Scottish statutory instruments in total. 3

19 DPLR/S4/14/17/5 9. Of the instruments considered, 38 were subject to affirmative procedure, 166 to negative procedure, and 50 were not subject to any Parliamentary procedure. 10. In addition to the instruments outlined above, the Committee also considered three super-affirmative instruments, one draft document subject to approval and one draft document subject to rule 10.5 of Standing Orders. 11. The Committee published three quarterly reports which recorded the Committee s scrutiny of instruments during the first three quarters of this parliamentary year. Equalities 12. The Committee considers equalities issues which can arise under the European Convention on Human Rights and under Community law. It is part of the Committee s remit to draw the attention of lead committees and the Parliament to any instrument, or Bill, that, in its opinion, fails to comply with any such requirement. 13. Unlike in previous years, the Committee had no cause to report any instrument on the grounds of an unusual or unexpected use of a power which raises equalities issues - or for a failure to use gender neutral language. 14. In its scrutiny of delegated powers within the Marriage and Civil Partnership (Scotland) Bill however, the Committee reported on issues such as the conversion of civil partnerships and gender recognition certificates which prompted the Scottish Government to commit to further consultation with stakeholders. Meetings 15. The Committee met 34 times during the parliamentary year. Of these meetings, none were entirely in private and 25 included items in private. 16. The main reason for taking business in private was to consider draft reports. 17. At its penultimate meeting of the parliamentary year, the Committee took evidence from the Minister for Parliamentary Business on a range of issues including the Committee s analysis of instruments that had been laid during the previous year. 18. All the Committee s meetings have been held in Edinburgh. 4