JUSTICE COMMITTEE AGENDA. 9th Meeting, 2008 (Session 3) Tuesday 25 March 2008

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1 J/S3/08/9/A JUSTICE COMMITTEE AGENDA 9th Meeting, 2008 (Session 3) Tuesday 25 March 2008 The Committee will meet at am in Committee Room Decision on taking business in private: The Committee will consider whether to take item 7 and all future consideration of draft reports on the Judiciary and Courts (Scotland) Bill in private. 2. Judiciary and Courts (Scotland) Bill: The Committee will take evidence on the Bill at Stage 1 from Professor Sir David Edward KCMG QC, Honorary Professor at the School of Law, University of Edinburgh; and then from Kenny MacAskill MSP, Cabinet Secretary for Justice, Moira Wilson, Judiciary and Courts (Scotland) Bill Team Leader, Scottish Government, Alastair Sim, Director of Policy, Scottish Courts Service and Alison Fraser, Solicitor, Courts and Civil Law Division and Catherine Scott, Solicitor, Courts and Civil Law Division, Scottish Government. 3. Subordinate legislation: Kenny MacAskill MSP (Cabinet Secretary for Justice) to move S3M-1597 That the Justice Committee recommends that the draft Victim Notification Scheme (Scotland) Order 2008 be approved. 4. Subordinate legislation: The Committee will consider the following negative instruments the Intensive Support and Monitoring (Scotland) Regulations 2008, (SSI 2008/75); the Bankruptcy Fees (Scotland) Amendment (No.2) Regulations 2008, (SSI 2008/79); the Bankruptcy (Scotland) Regulations 2008, (SSI 2008/82);

2 J/S3/08/9/A the Justice of the Peace Courts (Sheriffdom of Grampian, Highland and Islands) Order 2008, (SSI 2008/93); the Enforcement of Fines (Seizure and Disposal of Vehicles) (Scotland) Regulations 2008, (SSI 2008/103); and the Enforcement of Fines (Diligence) (Scotland) Regulations 2008, (SSI 2008/104). 5. Statute Law Repeals Bill (UK Parliament legislation): The Committee will consider the legislative consent memorandum lodged by Kenny MacAskill MSP, Cabinet Secretary for Justice (LCM(S3) 11.1). 6. Petitions: The Committee will consider the following petitions PE 767 by Norman Dunning, on behalf of ENABLE, calling for the Scottish Parliament to urge the Scottish Executive to review the operation and effectiveness of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976; and PE 1063 by Robert Thomson calling for the Scottish Parliament to investigate the apparent conflict of interest which exists between solicitors / advocates and clients in the present system of speculative fee arrangements (no win no fee) and to urge the Scottish Executive to overhaul the existing speculative fee arrangements framework and procedures in order to make solicitors / advocates more accountable to their clients. 7. Judiciary and Courts (Scotland) Bill: The Committee will consider the main themes arising from the evidence sessions. Douglas Wands Clerk to the Justice Committee Room T douglas.wands@scottish.parliament.uk

3 J/S3/08/9/A The papers for this meeting are as follows: Agenda Item 2 Paper from SPICe (private paper) Agenda Item 3 Note by the clerk on the draft Victim Notification Scheme (Scotland) Order 2008 J/S3/08/9/8 J/S3/08/9/7 Agenda Item 4 Note by the Clerk on the Intensive Support and Monitoring (Scotland) Regulations 2008, (SSI 2008/75) Note by the Clerk on the Bankruptcy Fees (Scotland) Amendment (No.2) Regulations 2008, (SSI 2008/79) Note by the Clerk on the Bankruptcy (Scotland) Regulations 2008, (SSI 2008/82) Note by the clerk the Justice of the Peace Courts (Sheriffdom of Grampian, Highland and Islands) Order 2008, (SSI 2008/93) Note by the clerk on the Enforcement of Fines (Seizure and Disposal of Vehicles) (Scotland) Regulations 2008, (SSI 2008/103) Note by the clerk on the Enforcement of Fines (Diligence) (Scotland) Regulations 2008, (SSI 2008/104) J/S3/08/9/1 J/S3/08/9/2 J/S3/08/9/3 J/S3/08/9/4 J/S3/08/9/5 J/S3/08/9/6 Agenda Item 5 Legislative consent memorandum on the Statute Law Repeals Bill J/S3/08/9/9 Agenda Item 6 Paper from the Clerk on PE767 Paper from the Clerk on PE1063 J/S3/08/9/10 J/S3/08/9/11 Documents for information The following documents are circulated for information: Paper for information on the Judiciary and Courts (Scotland) Bill

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5 J/S3/08/9/1 SSI Cover Note for Committee Meeting SSI title and number: The Intensive Support and Monitoring (Scotland) Regulations 2008, (SSI 2008/75) Type of Instrument: Negative Meeting: 9th Meeting, 25 March 2008 Date circulated to members: 20 March 2008 Justice Committee deadline to consider SSI: 28 April 2008 Motion for annulment lodged: SSI drawn to Parliament s attention by Sub Leg Committee: No Yes (see Annex A) Purpose of Instrument: These Regulations, made under the Children (Scotland) Act 1995, regulate the arrangements for monitoring compliance with a movement restriction condition within a supervision requirement. They revoke the Intensive Support and Monitoring (Scotland) Regulations If members have any queries or points of clarification on the instrument which they wish to have raised with the Scottish Government in advance of the meeting, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting. 1

6 Annex A The Intensive Support and Monitoring (Scotland) Regulations 2008 (SSI 2008/75) 1. The Committee considered this instrument on 11 th March and asked the Scottish Government whether it considers that regulation 9 and the Schedule has the effect of imposing technical regulation within the meaning of the Technical Standards Directive (98/34/EC as amended) and, if not, the reasons for that view; if the instrument does have the effect of imposing technical regulation, whether it has been notified in accordance with that Directive; whether there is a legal requirement to review secure accommodation after 3 months and, if so, why the requirement to review a movement restriction condition is only to be contained in guidance, given that the matters on which the children s hearing requires to be satisfied when imposing either measure under section 70(10) of the Children (Scotland) Act 1995 are the same; and why the signing docket implies the instrument has been signed by a Junior Minister, when it bears to have been signed by a Minister. 2. The Scottish Government s response is reproduced at Appendix With regard to the first and second questions, the Committee was not wholly persuaded by the Government s response. The Committee observed that the instrument does not in express terms lay down the characteristics required of the devices such as levels of quality, performance, safety or dimensions. However it is implicit, in specifying manufacturer, model name and number, that those characteristics are specified given that each device will have particular characteristics. 4. However, this instrument allows a discretion to use other devices. The Committee was unclear whether, perhaps for reasons of risk avoidance, other devices would in fact be used. Nevertheless, the fact that the instrument does not absolutely require the specified devices to be used allowed in the Committee s view a stateable argument to be made that the instrument is not concerned with technical specification. Accordingly, the Committee is not able to say that the instrument is clearly in breach of the Directive, although for other reasons than those offered by the Government. 5. On the third question, the response confirms that the MRC forms part of the supervision requirement and that section 73 of the Children (Scotland) Act 1995 makes detailed provision for review of such a requirement. The Committee having considered the full and helpful explanation considers that providing for separate review within this instrument for an element of the more general supervision requirement might interfere with review provisions of that requirement. It therefore considers that the Government s explanation is satisfactory. 6. On the fourth question, the Government has indicated that the error in signing docket arises from oversight. The Committee agrees that validity of the instrument 2

7 is unaffected. It welcomes the undertaking that the error will be corrected on the web version of the instrument. The Committee is satisfied in part with the Scottish Government s response in relation to questions 1 and 2; is satisfied with the response in relation to questions 3 and 4; and draws the instrument to the attention of the lead committee and Parliament on this basis. 3

8 APPENDIX 2 Annex A The Intensive Support and Monitoring (Scotland) Regulations 2008 (SSI 2008/75) 1. On 11 March 2008 the Committee asked the Scottish Government for clarification of the following matters whether it considers regulation 9 and the Schedule has the effect of imposing technical regulation within the meaning of the Technical Standards Directive (98/34/EC as amended), and if not, the reasons for that view; if the instrument does have the effect of imposing technical regulation, whether it has been notified in accordance with that Directive; whether there is a legal requirement to review secure accommodation after 3 months and, if so, why the requirement to review a movement restriction condition is only to be contained in guidance, given that the matters on which the children s hearing requires to be satisfied when imposing either measure under section 70(10) of the Children (Scotland) Act 1995 are the same; and why the signing docket implies the instrument has been signed by a Junior Minister, when it bears to have been signed by a Minister. The Scottish Government responds as follows First and second questions We are of the view that the Technical Standards Directive (988/34/EC as amended) is not applicable to this instrument because regulation 9 and the Schedule are not concerned with technical specification in terms of Article 1(3). Regulation 9 and the Schedule specify devices which may be used for the purpose of monitoring compliance with a movement restriction condition (MRC), which are manufactured and sold by a particular company. They do not lay down the characteristics required of the devices such as levels of quality, performance, safety or dimensions. Third question The instrument does not provide for review of a MRC. Paragraph 6 of the Executive Note states that children s hearings are required to review a secure accommodation authorisation after 3 months and that guidance will recommend the same review period for a MRC. Section 70(9) of the Children (Scotland) Act 1995 (the Act) enables a children s hearing to provide, by way of a supervision requirement, for a child to be kept in secure accommodation or alternatively to impose a MRC. Section 73 of the Act makes detailed provision for review of a supervision requirement, of which a MRC is part. Section 73(6) provides that a child or relevant person may require review of a supervision requirement 3 months after it is made. Given the detailed provisions in relation to review contained in section 73 of the Act, we considered that it was inappropriate to provide for review of a MRC in this instrument. It is intended that the guidance referred to in the Executive Note 4

9 will provide further concerning review of a MRC within a supervision requirement. Fourth question We are grateful to the Committee for noting the error in the signing docket, which arose as a result of an oversight. It was intended that the instrument be signed by a Junior Minister, and was in fact signed by a Minister. This error will not affect the validity of the instrument and we shall ensure that the error is corrected on the web version of the instrument. 5

10 J/S3/08/9/2 SSI Cover Note for Committee Meeting SSI title and number: The Bankruptcy Fees (Scotland) Amendment (No.2) Regulations 2008, (SSI 2008/79) Type of Instrument: Negative Meeting: 9th Meeting, 25 March 2008 Date circulated to members: 20 March 2008 Justice Committee deadline to consider SSI: 28 April 2008 Motion for annulment lodged: SSI drawn to Parliament s attention by Sub Leg Committee: Purpose of Instrument: No No These Regulations amend the Bankruptcy Fees (Scotland) Regulations 1993 ( the principal Regulations ) to prescribe fees payable to the Accountant in Bankruptcy in respect of the exercise of the Accountant in Bankruptcy s new functions under the Bankruptcy (Scotland) Act 1985, which are acquired on 1st April 2008 on commencement of amendments to that Act made by the Bankruptcy and Diligence etc. (Scotland) Act If members have any queries or points of clarification on the instrument which they wish to have raised with the Scottish Government in advance of the meeting, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting. 1

11 J/S3/08/9/3 SSI Cover Note for Committee Meeting SSI title and number: The Bankruptcy (Scotland) Regulations 2008, (SSI 2008/82) Type of Instrument: Negative Meeting: 9th Meeting, 25 March 2008 Date circulated to members: 20 March 2008 Justice Committee deadline to consider SSI: 28 April 2008 Motion for annulment lodged: SSI drawn to Parliament s attention by Sub Leg Committee: No Yes (see Annex A) Purpose of Instrument: This instrument replaces the current Bankruptcy (Scotland) Regulations The instrument reproduces the current provisions for claims in a foreign currency, conversion of foreign currency claims, interest on claims in sequestration, and preference to remuneration to former employees. It also reproduces conditions for the premium bond of caution and the definition of associate with some modifications. The instrument also introduces changes to support the process of debtor applications to the Accountant in Bankruptcy ( AiB ), including the process by which awards are made by the AiB rather than through the courts. It outlines the timescale in which the Debt Advice and Information Pack ( DAIP ) may be issued by a creditor considering petitioning for bankruptcy and changes the amount of debt required to establish apparent insolvency by a Statutory Demand in debtor applications. It also creates a schedule of forms created in accordance with the provisions of the 1985 Act as amended by the 2007 Act. 1

12 If members have any queries or points of clarification on the instrument which they wish to have raised with the Scottish Government in advance of the meeting, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting. 2

13 The Bankruptcy (Scotland) Regulations 2008 (SSI 2008/82) Annex A 1. On 11 th March the Committee asked the Scottish Government to Explain what powers are being relied upon to prescribe the following matters given that the power that appears to be available to Ministers (specified in brackets in each case) has not been cited in the preamble to these Regulations and what it considers the effect of failing to cite any available power is the amount in regulation 10 (paragraph 5(1) and paragraph 6 of Schedule 3 of the 1985 Act) ; the time period for provision of the debt advice and information package in regulation 12 (section 5(2D) of the 1985 Act); Form 8 (paragraph 4(c) of Schedule 4 to the 1985 Act); Forms 21 and 22 introduced by regulation 19(1) and (2) (section 32(9A) of the 1985 Act); Form 23 introduced by regulation 20 (section 43A(2) of the 1985) Act. 2. The Scottish Government s response is reproduced at Appendix In its response, the Government agrees that it would have been better to refer in the preamble to this instrument to each of the powers referred to in the Committee s question. 4. The Government places reliance upon the sweep up power cited in the preamble which provides that this instrument is also made by the Scottish Ministers in exercise of the powers conferred by all other powers enabling them to do so. In this case, the Committee considers that the references to the enabling powers in regulations 10 and 12 and in Forms 8, 21, 22 and 23 make it clear that the Scottish Ministers must have intended to invoke these enabling powers in making this instrument. The Committee is therefore content that no question as to the vires to make this instrument arises. However, the failure to cite specific enabling powers in the preamble to this instrument is a failure to follow normal drafting practice. 5. The Committee draws this instrument to the attention of the lead committee and Parliament on the grounds that the failure to cite specific enabling powers in the preamble to this instrument, acknowledged by the Scottish Government, constitutes a failure to follow normal drafting practice but not such as to affect the validity or operation of the instrument. 3

14 APPENDIX 3 Annex A The Bankruptcy (Scotland) Regulations 2008 (SSI 2008/82) 1. The Committee s letter of 11 March 2008 asked the Scottish Government to explain what powers are being relied upon to prescribe the following matters given that the power that appears to be available to Ministers (specified in brackets in each case) has not been cited in the preamble to these Regulations and what it considers the effect of failing to cite any available power is the amount in regulation 10 (paragraph 5(1) and paragraph 6 of Schedule 3 of the 1985 Act); the time period for provision of the debt advice and information package in regulation 12 (section 5(2D) of the 1985 Act); Form 8 (paragraph 4(c) of Schedule 4 to the 1985 Act); Forms 21 and 22 introduced by regulation 19(1) and (2) (section 32(9A) of the 1985 Act); and Form 23 introduced by regulation 20 (section 43A(2) of the 1985) Act. The Scottish Government replies as follows Although the Scottish Government agrees that it would clearly have been better to cite the relevant powers explicitly in the preamble, the powers relied on by Scottish Ministers are not confined to those cited. Reference is made to other powers enabling them to do so. The Scottish Government considers that the general enabling provision can be relied on to cover powers not cited. In relation to the Committee s first two points concerning regulations 10 and 12, the relevant enabling powers are expressly invoked in the body of the Regulations, with it explicitly stated that the provisions are prescribed for the purposes of those powers. Secondly, in relation to the Committee s final three points, the relevant enabling powers are referred to on the Forms and are also being expressly invoked. This is clear from regulation 3: Forms 3. The forms set out in the Schedule to these Regulations are the forms referred to in these Regulations, failing which they are the forms prescribed for the purposes of the provisions of the 1985 Act referred to therein. The Scottish Government therefore considers the general enabling power can be interpreted to include the relevant powers not cited in the preamble. This approach is consistent with the line taken recently in the English case of Vibixa Ltd. v. Komori UK &Others [2006] EWCA Civ

15 J/S3/08/9/4 SSI Cover Note for Committee Meeting SSI title and number: The Justice of the Peace Courts (Sheriffdom of Grampian, Highland and Islands) Order 2008, (SSI 2008/93) Type of Instrument: Negative Meeting: 9th Meeting, 25 March 2008 Date circulated to members: 20 March 2008 Justice Committee deadline to consider SSI: 28 April 2008 Motion for annulment lodged: SSI drawn to Parliament s attention by Sub Leg Committee: Purpose of Instrument: No No This Order makes various provisions in relation to the establishment of justice of the peace courts ( JP courts ) in the Sheriffdom of Grampian, Highland and Islands. If members have any queries or points of clarification on the instrument which they wish to have raised with the Scottish Government in advance of the meeting, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting. 1

16 J/S3/08/9/5 SSI Cover Note for Committee Meeting SSI title and number: The Enforcement of Fines (Seizure and Disposal of Vehicles) (Scotland) Regulations 2008, (SSI 2008/103) Type of Instrument: Negative Meeting: 9th Meeting, 25 March 2008 Date circulated to members: 20 March 2008 Justice Committee deadline to consider SSI: 28 April 2008 Motion for annulment lodged: SSI drawn to Parliament s attention by Sub Leg Committee: Purpose of Instrument: No No Sections 226A to 226I of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), inserted by section 55 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, make provision regarding the enforcement of "relevant penalties", as defined in section 226I of the 1995 Act. If members have any queries or points of clarification on the instrument which they wish to have raised with the Scottish Government in advance of the meeting, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting. 1

17 J/S3/08/9/6 SSI Cover Note for Committee Meeting SSI title and number: The Enforcement of Fines (Diligence) (Scotland) Regulations 2008, (SSI 2008/104) Type of Instrument: Negative Meeting: 9th Meeting, 25 March 2008 Date circulated to members: 20 March 2008 Justice Committee deadline to consider SSI: 28 April 2008 Motion for annulment lodged: SSI drawn to Parliament s attention by Sub Leg Committee: Purpose of Instrument: No No Sections 226A to 226I of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") were inserted by section 55 of the Criminal Proceedings etc. (Reform) (Scotland) Act These sections make provision regarding the enforcement of "relevant penalties", as defined in section 226I of the 1995 Act. If members have any queries or points of clarification on the instrument which they wish to have raised with the Scottish Government in advance of the meeting, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting. 1

18 J/S3/08/9/7 SSI Cover Note for Committee Meeting SSI title and number: The draft Victim Notification Scheme (Scotland) Order 2008 Type of Instrument: Affirmative Meeting: 9th Meeting, 25 March 2008 Date circulated to members: 20 March 2008 Cabinet Secretary to attend Justice Committee meeting: SSI drawn to Parliament s attention by Sub Leg Committee: Purpose of Instrument: Yes No These Regulations Increase the number of victims eligible for the victim support scheme by reducing from 4 years to 18 months the minimum period of imprisonment or detention, which triggers the victims right to be informed of the information specified in section 16(3) of the Criminal Justice (Scotland) Act 2003 ( the 2003 Act ). (This information includes the date of the offenders release from prison, is unlawfully at large, has been transferred outwith Scotland, has become eligible for temporary release or has died). Amend section 16(3) of the 2003 Act to provide for the informing of victims of the date on which a convicted person has been returned to custody. Affirmative Instrument Procedure 1. The Justice Committee has been designated lead committee and is required to report to the Parliament by 5 May The draft Order was laid on 13 March Under Rule (b), the Order is subject to affirmative resolution before it can be made. It is for the Justice Committee to recommend to the Parliament whether the Order should be approved. The Cabinet Secretary for Justice has, by motion S3M-1597 (set out

19 in the agenda), proposed that the Committee recommends the approval of the Order. The Cabinet Secretary for Justice will attend in order to speak to and move the motion. The debate may last for up to 90 minutes. 3. At the end of the debate, the Committee must decide whether or not to agree to the motion, and then report to the Parliament accordingly. Such a report need only be a short statement of the Committee s recommendation.

20 J/S3/08/9/9 LEGISLATIVE CONSENT MEMORANDUM STATUTE LAW (REPEALS) BILL Draft Legislative Consent Motion 1. The draft motion, which will be lodged by Kenny MacAskill MSP, Cabinet Secretary for Justice, is: That the Parliament agrees that the relevant provisions of the Statute Law (Repeals) Bill, introduced in the House of Lords on 27 February 2008, relating to Statute Law Repeal, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament. Background 2. This memorandum has been lodged by the Cabinet Secretary for Justice under Rule 9.B.3.1(a) of the Parliament s standing orders. The Statute Law (Repeals) Bill was introduced in the House of Lords on 27 February. The Bill can be found at: Detailed notes on the Bill, prepared by the Scottish Law Commission and the Law Commission, are at: Content of the Statute Law (Repeals) Bill 3. The Bill results from the Statute Law Repeals Report published jointly on 29 January 2008 by the Law Commission and the Scottish Law Commission. This is the second post-devolution report published by the two Commissions. The Seventeenth Report, which contained a number of repeals within the competence of the Scottish Parliament, was implemented in The current report (the Eighteenth) is part of the Law Commissions ongoing programme on statute law repeals. That programme has the broad aim of modernising and simplifying the statute book. The enactments dealt with in the Bill have been identified, after detailed research and consultation, as being spent, obsolete, unnecessary or otherwise not now of practical utility. The full Report can be found at: Provisions which relate to Scotland 5. Apart from the repeal of paragraph 19 of Schedule 4 to the Children (Scotland) Act 1995, which is consequential on the repeal of the Employment of Children 1973, the current Bill does not contain any specific repeals of legislation relating to Scotland only. 6. The Scottish Law Commission has identified those elements within the Bill which fall within the legislative competence of the Scottish Parliament. The relevant repeals are listed at Annex A. It is these repeals which the Parliament is asked to agree should be considered by the UK Parliament. LCM (S3) 11.1 Session 3, 2008

21 J/S3/08/9/9 Reasons for seeking a legislative consent motion 7. The Scottish Law Commission advises that the Bill represents a technical tidying-up exercise and has no policy implications. As with the last Statute Law Repeals Bill (in 2004), the current Bill does not in practice make any substantive alteration to the current law of Scotland in relation to devolved matters. 8. The 2004 Bill did not give rise to a Sewel Motion in the Scottish Parliament. Since it did not in practice alter the law of Scotland on devolved matters the consensus opinion was that technically a Sewel Motion was unnecessary. 9. Since then, the Standing Orders of the Scottish Parliament have been amended (7th Report (Session 2) of the Procedures Committee, PR/S2/05/R7, 2005). The Parliament now has specific procedures (Chapter 9B of Standing Orders, inserted on 30 November 2005) for dealing with Legislative Consent Motions (LCMs). Chapter 9B requires an LCM to be lodged in relation to every relevant Bill. A relevant Bill is defined for the purposes of Chapter 9B as including a Bill which makes provision applying to Scotland for any purpose within the legislative competence of the Scottish Parliament. 10. Although it does not substantively alter the current law of Scotland in relation to devolved matters, the Statute Law (Repeals) Bill does contain provisions which fall within legislative competence and could properly be the subject of legislation in the Scottish Parliament. It is therefore a relevant Bill for the purposes of Standing Orders and an LCM is required. This remains the case despite the precedent set by the 2004 Bill. Standing Orders make no exception for specialist legislation of this kind. The formal consent of the Scottish Parliament is therefore required, in accordance with the procedures set out in Chapter 9B. 11. A UK Bill and accompanying LCM provides the most appropriate legislative mechanism in this instance because the overwhelming majority of the changes proposed by the two Law Commissions relate to non-devolved matters. The subject matter is technical in nature and does not raise questions of policy. There are clear benefits for end-users in making a series of technical changes to the statute book, of the kind proposed, via a single legislative instrument. Consultation 12. Where the proposals extend to Scotland, those consulted included the Scottish Government, UK Departments responsible for reserved matters in Scotland (e.g. HM Revenue and Customs, in relation to taxes and duties), the Crown Office and other interested bodies, such as the Association of Chief Police Officers Scotland and the Police Federation for Scotland (in relation to the repeals relating to police legislation). A full list of consultees is provided in Appendix 3 to the Report ( Financial implications 13. There are no financial implications to this Bill. 2

22 J/S3/08/9/9 Conclusion 14. The view of the Scottish Government is that the Statute Law (Repeals) Bill, in so far as its subject matter falls within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament. Scottish Government March

23 J/S3/08/9/9 ANNEX A Statute Law (Repeals) Bill Provisions on matters devolved to the Scottish Parliament The following legislation has been identified by the Scottish Law Commission as falling within the legislative competence of the Scottish Parliament. Relevant statutes and provisions are listed under the Part of the Bill in which they appear. Part 3 Criminal Law The following repeals: Part 6 Police The following repeals: Conspiracy, and Protection of Property Act 1875 Punishment of Offences Act 1837 Criminal Justice Act 1972 (part) Crime and Disorder Act 1998 (section 36(3) and 108) Unlawful Drilling Act 1819 Criminal Justice Act 1988 Police and Firemen (War Service) Act 1939 Police and Firemen (War Service) Act 1944 Police and Criminal Evidence Act 1984 Part 9 Town and Country Planning The following repeals: Civic Amenities Act 1967 (part) Town and Country Amenities Act 1974 Local Government, Planning and Land Act 1980 (part) Housing and Planning Act 1986 (part) Part 11 Miscellaneous (Paras 11.6 to 11.9 of the Report) The following repeals: Employment of Children Act 1973 Transport Act 1985, s. 3(1) Scottish Government March

24 J/S3/08/9/10 JUSTICE COMMITTEE Subject: Petition PE 767 Meeting No: 9th Meeting, 2008 Meeting Date: 25 March 2008 Author: The Clerk Purpose 1. This is a brief note for members following the announcement on 7 March 2008 by the Cabinet Secretary for Justice that Lord Cullen is to lead a review of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act The review is expected to take around a year and to make recommendations for possible amendments to the primary and secondary legislation governing FAIs to ensure that they continue to provide an effective system. 2. The Bureau has scheduled a Government debate for 27 March 2008 on fatal accident inquiries. 3. Petition PE767 by Norman Dunning calls for the Parliament to urge the Scottish Government to review the operation and effectiveness of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act The Committee last considered the petition in January 2008 in the context of the Committee s work programme. The Committee agreed to come back to the petition later in the year. For Decision 4. In light of the Government s announcement about the review, which was what the petitioner sought, it is recommended that the Committee now close this petition and advise the petitioner accordingly. Anne Peat Senior Assistant Clerk to the Justice Committee

25 J/S3/08/9/11 JUSTICE COMMITTEE Subject: Petition PE 1063 Meeting No: 9th Meeting, 2008 Meeting Date: 25 March 2008 Author: The Clerk Background Petition 1. Petition PE1063 by Robert Thomson calls for the Scottish Parliament to investigate the apparent conflict of interest which exists between solicitors / advocates and clients in the present system of speculative fee arrangements (no win no fee) and to urge the Scottish Executive to overhaul the existing speculative fee arrangements framework and procedures in order to make solicitors / advocates more accountable to their clients. The petition was lodged in June 2007 and referred by the Public Petitions Committee (PPC) to the Justice Committee on 29 January The petition is attached at annex A for information. Consideration by the Public Petitions Committee 2. The petition was first considered by the PPC at its meeting on 2 October At that meeting, although sympathy was expressed for the petitioner, committee members were not clear that anything should be done. The PPC agreed to seek views from the Faculty of Advocates, the Law Society of Scotland, the Scottish Consumer Council and Citizens Advice Scotland on the issues raised in the petition and also on whether the guidance issued to those considering entering into no-win, no-fee arrangements is sufficient. No views were sought from the Scottish Government. Responses were received, other than from Citizens Advice Scotland which did not feel that it had sufficient evidence or resources to provide a meaningful response and the petition was scheduled for further consideration by the PPC. 3. At its meeting on 29 January 2008, the PPC did not consider the responses received but instead took the decision to refer the petition and the responses to the Justice Committee. Referral to the Justice Committee 4. This petition concerns the experience of one individual, Robert Thomson. The issues raised in the petition arise from the petitioner s own experience and dissatisfaction following his use of the no-win, no-fee route. Mr Thomson s petition makes a number of general assertions, presumably on the basis of his own experience. 5. As a starting point, it is useful to note that anyone who is dissatisfied with the actings of his or her legal representatives can raise their concerns with the relevant professional bodies. In this regard, the petitioner states in an of 13 November 2007 to one of the clerks to the PPC my complaint against

26 J/S3/08/9/11 the Law Society was upheld by the Ombudsman but gives no further details of his complaint or of the ombudsman s finding. In a later (7 January 2008) the petitioner advises that he decided not to make a complaint to the Faculty of Advocates. 6. As stated in paragraph 3, the PPC sought views from a number of bodies. Three responses were received. In its response (attached at Annexe B) the Scottish Consumer Council (SCC) states that in principle its view is that speculative fee arrangements may provide a useful means of increasing access to justice in some cases where there is no eligibility for legal aid and no other means of funding. With regard to the petitioner s specific allegation of conflict of interest arising in speculative fee arrangements, the SCC sees that this could potentially arise but that there is no empirical evidence to back this up. As a consequence, the SCC would welcome further research in this area. More generally, the SCC s view is that the petition raises wider issues in relation to access to justice and the funding of civil cases in Scotland and hopes that such concerns will be taken up by Lord Gill as part of his review of the civil courts. 7. In its response (attached), the Law Society addresses the general assertions in the petition and states that solicitors are under an obligation to put their clients interests ahead of their own but that they and Counsel also have duties to the court. The Law Society asserts that solicitors do not advise clients to accept under value offers unless there are problems about proving liability or causation and because of the way recoverable expenses in Scotland are structured, successful cases attract larger fees. The Law Society makes reference to the Letter of Engagement which a solicitor must provide to the client on taking up instructions which sets out the basis for charging and the work to be done. In the view of the Society, speculative cases work well for injured persons (not eligible for legal aid) who have a good case. 8. In its response (attached), the Faculty states that conflict of interest cannot realistically arise because in terms of the Code of Conduct an advocate must always act in the best interests of the client; failure to do so could result in disciplinary action. An advocate too has an obligation to the court. In the view of the Faculty, the assertion by the petitioner that only easy cases are taken up on the basis of speculative fees is not borne out by its experience. The Faculty gives a number of examples of complex cases raised on the basis of no win, no fee and states that for Advocates, such work pays slowly with a significant risk of non-payment. On the broader issue of access to justice, the Faculty states that it is concerned that legal aid in personal injury cases is extremely difficult to obtain. 9. In summary, the responses support the availability of legal services on the basis of no win, no fee but acknowledge (1) that research into whether, and if so to what extent, there is a potential for conflict of interest between client and legal advisers could be undertaken and that (2) there are wider issues of concern about access to justice and funding for civil cases and it is hoped that such issues will be addressed by Lord Gill as part of his review.

27 J/S3/08/9/11 Procedure 10. In terms of Standing Orders, where the PPC has referred a petition to another committee, that committee may take such action as it considers appropriate. 1 As stated previously, this petition concerns the experience of one individual. An individual dissatisfied with the actings of their legal representatives can make a complaint to the relevant professional body. In the particular circumstances of this petition and in the absence of empirical evidence to support the wider assertions the Committee may not consider it appropriate to take any further action on this petition. On the other hand, the petition and the submissions raise more generally the issue of access to justice. The Committee may consider it appropriate to seek the views of the Cabinet Secretary on this issue before deciding what action to take on the petition itself. Options for Consideration 11. The Committee is invited to consider what action it wishes to take. The following initial options are open to the Committee: (a) to write to the Cabinet Secretary for Justice to establish whether nowin, no fee arrangements have been, or are to be, considered in the wider context of access to justice considerations (for example by way of Lord Gill s review of the Civil Courts) and to consider the petition again on receipt of a response; or (b) to close the petition on the basis that it relates to the petitioner s unhappiness with the outcome of his own case and that it was open to the petitioner to complain to the relevant professional bodies; or (c) to take any other action the Committee thinks is appropriate. 1 The Scottish Parliament, Standing Orders, Rule (a)