J/S4/12/2/A JUSTICE COMMITTEE AGENDA 2nd Meeting, 2012 (Session 4) Tuesday 17 January 2012 The Committee will meet at 10.45 am in Committee Room 2. 1. Decision on taking business in private: The Committee will decide whether to take items 6 and 7 in private. 2. Subordinate legislation: The Committee will further consider the following negative instrument Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (SSI 2011/436). 3. Subordinate legislation: The Committee will consider the following negative instrument Charities References in Documents (Scotland) Amendment Regulations 2011 (SSI 2011/446). 4. Subordinate legislation: The Committee will consider the following instruments which are not subject to any parliamentary procedure Act of Sederunt (Fees of Messengers-at-Arms) (No. 2) 2011 (SSI 2011/431); Act of Sederunt (Fees of Sheriff Officers) (No. 2) 2011 (SSI 2011/432); Act of Sederunt (Rules of the Court of Session Amendment No. 8) (Terrorism Prevention and Investigation Measures) 2011 (SSI 2011/441). 5. Committee Bills: The Committee will consider the procedure for introducing a Committee Bill. 6. European Union legislative proposal: The Committee will consider the following European Union legislative proposal which may raise questions in relation to subsidiarity
J/S4/12/2/A Proposal for a Directive of the European Parliament and of the Council on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC and proposal for a Regulation of the European Parliament and of the Council on online dispute resolution for consumer disputes. 7. Proposed police and fire reform bill: The Committee will consider whether to issue a call for evidence on the proposed bill at Stage 1. Peter McGrath Clerk to the Justice Committee Room TG.01 The Scottish Parliament Edinburgh Tel: 0131 348 5195 Email: peter.mcgrath@scottish.parliament.uk
J/S4/12/2/A The papers for this meeting are as follows Agenda item 2 SSI cover note J/S4/12/2/1 Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (SSI 2011/436) Agenda item 3 SSI cover note J/S4/12/2/2 Charities References in Documents (Scotland) Amendment Regulations 2011 (SSI 2011/446) Agenda item 4 SSI cover note J/S4/12/2/3 Act of Sederunt (Fees of Messengers-at-Arms) (No. 2) 2011 (SSI 2011/431) SSI cover note J/S4/12/2/4 Act of Sederunt (Fees of Sheriff Officers) (No. 2) 2011 (SSI 2011/432) SSI cover note J/S4/12/2/5 Act of Sederunt (Rules of the Court of Session Amendment No. 8) (Terrorism Prevention and Investigation Measures) 2011 (SSI 2011/441) Agenda item 5 Note by the Clerk J/S4/12/2/6 Agenda item 6 Note by the Clerk (private paper) J/S4/12/2/7 (P) Agenda item 7 Note by the Clerk (private paper) J/S4/12/2/8 (P) Papers for information Correspondence in relation to the Criminal Cases (Punishment and Review) (Scotland) Bill J/S4/12/2/9
J/S4/12/2/A Letter from the Lord President on Act of Sederunt (Contempt of Court in Civil Proceedings) 2011 (SSI 2011/388) Faculty of Advocates Memorandum on Corroboration Letter to the Scottish Prison Service on female offenders Letter to local authorities on female offenders Letter to health boards on female offenders Report on EU Justice and Home Affairs Ministerial Council Meeting, Luxembourg 27 and 28 October 2011 J/S4/12/2/10 J/S4/12/2/11 J/S4/12/2/12 J/S4/12/2/13 J/S4/12/2/14 J/S4/12/2/15
J/S4/12/2/1 Justice Committee 2 nd Meeting, 2011 (Session 4), Tuesday 17 January 2012 SSI cover note SSI title and number: Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (SSI 2011/436) Type of Instrument: Negative Coming into force: 1 February 2012 Justice Committee deadline to consider SSI: Motion for annulment lodged: SSI drawn to Parliament s attention by Sub Leg Committee: 31 January 2012 No No Purpose of Instrument: 1. The purpose of the instrument is to increase the limits for various forms of provision for a surviving spouse or civil partner from the estate of a deceased person who died intestate. 2. An electronic copy of the instrument can be found at: http://www.legislation.gov.uk/ssi/2011/436/contents/made Justice Committee consideration: 3. The instrument was laid on 9 December 2011 and the Justice Committee has been designated as lead committee. 4. The Justice Committee first considered the Order at its meeting on 10 January 2012 where it agreed to write to the Scottish Government seeking further information on the instrument and to continue its consideration at a future meeting. A response has since been received from the Scottish Government [see the Annexe]. 5. Negative instruments are instruments that are subject to annulment by resolution of the Parliament for a period of 40 days after they are laid. All negative instruments are considered by the Subordinate Legislation Committee (on various technical grounds) and by the relevant lead committee (on policy grounds). Under Rule 10.4, any member (whether or not a member of the lead committee) may, within the 40-day period, lodge a motion for consideration by the lead committee recommending annulment of the instrument. If the motion is agreed to, the Parliamentary Bureau must then lodge a motion to annul the instrument for 1
J/S4/12/2/1 consideration by the Parliament. If that is also agreed to, Scottish Ministers must revoke the instrument. 6. Each negative instrument appears on a committee agenda at the first opportunity after the Subordinate Legislation Committee has reported on it. This means that, if questions are asked or concerns raised, consideration of the instrument can usually be continued to a later meeting to allow correspondence to be entered into or a Minister or officials invited to give evidence. In other cases, the Committee may be content simply to note the instrument and agree to make no recommendations on it. 2
J/S4/12/2/1 Annexe Letter from the Cabinet Secretary for Justice to the Convener Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (SSI 2011/436) Thank for your letter of 10 January to the Cabinet Secretary for Justice, Kenny MacAskill, MSP, seeking further information on the above instrument for consideration at the Justice Committee s meeting on 17 January. I am replying because I have portfolio responsibility for succession law matters. You have asked for further explanation on why the proposed limit for the housing prior right has been increased by 58% from 300,000 to 473,000. I appreciate that, taken in isolation, this increase may appear rather steep. However, when set in its historical and statistical context, I believe that its justification becomes clearer. It might be helpful if I first recap the history of prior rights, before discussing the current proposal. Prior Rights were created by the Succession (Scotland) Act 1964. The policy aim of the housing right under section 8 of that Act was to ensure that a surviving spouse (now extended to civil partners) could normally continue to live undisturbed in the family home, unless the value of that property was exceptionally high. The original limit was set at a figure of 15,000, which then was approximately three times the value of a substantial city house. The figure was increased by 100% to 30,000 in 1973, when new primary legislation came into force. Since then, as Parliament intended, secondary legislation has been used to uprate the limit to take account of inflation. This has been done roughly every 6-7 years. The history is summarised in the following table. Coming into force New level Increase on previous level 2012 473,000 58% 2005 300,000 130% 1999 130,000 18% 1993 110,000 69% 1988 65,000 30% 1981 50,000 67% The table shows clearly that the uprating now proposed is, in percentage terms, lower than has been effected on most previous occasions. The largest percentage change occurred in 2005. My understanding of the background on that occasion is that, after the figure of 130,000 was set in 1999, it was pointed out that it had not kept up with the effect of inflation on property values. In the next uprating exercise, the then Scottish Executive consulted on raising the figure to 170,000. However, the Law Society of Scotland responded that the proposed limit was too low and suggested that, based on figures obtained from the Edinburgh Solicitors Property Centre, the figure should be at least 250,000, possibly higher, because of the trend at that point of substantial increases in property values in most of Scotland s cities. A further limited consultation was then carried out on a proposal to increase the 3
J/S4/12/2/1 housing prior right value to 300,000. Amongst respondents, there was no objection to the figure which was then set in 2005. In terms of the current proposal, the background is that we instituted a review partly because one was due and partly in light of representations that the prior rights limits and the protection offered by them to bereaved spouses/civil partners had been eroded by inflation, contrary to the policy aim of the primary legislation. In order to inform that review, a report was commissioned from Scottish Government Justice Analytical Services. That report (Annex A) considered, among other matters, the bases on which the housing prior right might be assessed. The report considered: a) using the increase in the value of the average Scottish house between 2004 and 2009. These values were taken from the Department of Communities and Local Government data and showed an increase of 57% over the period, meaning an increase in the upper limit from 300k to over 470k; or b) setting the limit to three times greater than the average house price. Using this to calculate the new upper limit would lead to a value of around 490k. Using Scottish house price distribution in 2008, it was clear that either of these limits would capture over 95% of Scottish properties. Either figure would, therefore, have ensured that the policy aim of the original legislation was met. The Scottish Government then proceeded to consult on the lower figure of 470,000 for the housing prior right (with the Analytical Services report being published as part of the consultation paper). As far as I am aware, it was the most open consultation ever undertaken ahead of an uprating exercise in this area. The Executive Note for the instrument gives a brief summary of the responses received. We were not persuaded by respondents who argued either that there should be no uprating (i.e. that the effects of inflation should not be addressed) or that there should be no limit (i.e. the bereaved spouse/civil partner should be entitled to the family home no matter how exceptionally valuable it may be). Both of those approaches appear to be contrary to the established policy aim of the existing primary legislation. However, one respondent commented that, if using the increase in value of the average Scottish house, the most up to date figures should be used to set the increase. We agreed with that. The figures used in the consultation paper were the latest available at the time that the Analytical Services report was produced specifically, figures from January 2004 to November 2009. However, using figures from August 2011, the increase over the period would have been 58% rather than the 57% quoted in paper in the consultation exercise and so the figure was adjusted upwards slightly, to 473,000. I hope this is helpful in explaining how the figure was reached. In terms of the Committee s second point, about what the Scottish Government has done or plans to do in raising awareness of the importance of writing a will, I should make clear at the outset that the Scottish Government has not argued that it is important that everyone should write a will. Where people have little by way of 4
J/S4/12/2/1 property or where their personal circumstances are relatively straightforward, it may be that the intestacy rules would allocate their estate in way that would accord with their wishes. Indeed, one of the reasons for uprating the prior rights thresholds is that we want them insofar as standard rules ever can to be as unobjectionable as possible in as many cases as possible. Therefore, we would not necessarily accept that as a general rule people should make a will simply to avoid the requirement for sections 8 and 9 of the 1964 Act to be applied. That said, however, and though it is very much a private matter for the individual concerned, we do believe that everyone with property would be well advised to at least consider whether they should make a will, in light of their personal circumstances and the potential implications for their nearest and dearest if they were to die without one. That is why, in my recent news release to accompany the laying of this statutory instrument, I did say that uprated prior rights "are additional safeguards when an individual has not left a will. It is a reminder to us all just how important a document a will can be". This is a theme that has been picked up in much of the subsequent reporting. It is also a theme that is promoted with some regularity by charities, financial institutions, solicitors and others, with organisations like Citizens Advice providing a range of useful guidance. There are also regular campaigns, by organisations like WillRelief Scotland and WillAid, aiming to encourage consideration of the issue. As well as supporting such work, the Scottish Government publishes and distributes large numbers of What to do after a death in Scotland, which includes information about wills and intestacy and should facilitate awareness of the issues. In addition, the DirectGov website stresses the importance of a will and provides guidance. With all that in mind, it is not immediately obvious that additional awareness-raising activity by the Scottish Government would have a significant impact. Indeed, general awareness of the potential importance of a will may be less the issue than motivation to do it, especially when death seems a distant prospect. Clearly, awareness and motivation are both likely (along with the value of personal property) to increase with age and so there may be a particular issue with regard to younger people. In this regard, some benefit may arise from the fact that Scottish schools are increasingly providing effective financial education for pupils. I might add, finally, that as well as awareness and motivation, people need to have reasonable access to, and confidence in, will-writing services. Solicitors have traditionally provided a high quality service in this regard, underpinned by appropriate professional regulation. In addition, the Scottish Government remains committed to ensuring that non-solicitor will writers are properly regulated, and is currently working on implementation of the Legal Services (Scotland) Act 2010, which will establish a robust regulatory regime for such individuals. I hope that this information helps to address the points raised by the Committee. Roesanna Cunningham MSP Minister for Community Safety and Legal Affairs 12 January 2012 5
J/S4/12/2/1 Appendix Letter from the Convener to the Cabinet Secretary for Justice Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (SSI 2011/436) I am writing in relation to the above instrument, which was considered by the Justice Committee at its meeting today. The Committee agreed to write to the Scottish Government seeking further information on the instrument and to consider it again at its next meeting on Tuesday 17 January. As you will know, SSI 2011/436 increases the financial limits for various forms of provision for a surviving spouse or civil partner from the estate of a deceased person who died intestate. It was noted by the Committee that the proposed new amount in section 8(1)(a) and (b) of the Succession (Scotland) Act 1964 is a substantial increase on the previous limit agreed in 2005. The Committee would therefore welcome further explanation on why this limit has been increased from 300,000 to 473,000. In order to allow the Committee to consider your response at its next meeting, I would be grateful to receive the response no later than 3pm on Thursday 12 January 2011. While not directly relevant to the instrument, the Committee would also welcome information on what the Scottish Government has done and plans to do in raising awareness of the importance of writing a will in order to avoid the requirement for sections 8 and 9 of the 1964 Act to be applied. There is less of a pressing need for this particular information and therefore, the above deadline does not apply to this. Christine Grahame MSP Convener, Justice Committee 10 January 2012 6
J/S4/12/2/2 Justice Committee 2 nd Meeting, 2011 (Session 4), Tuesday 17 January 2012 SSI cover note SSI title and number: Charities References in Documents (Scotland) Amendment Regulations 2011 (SSI 2011/446) Type of Instrument: Negative Coming into force: 1 May 2012 Justice Committee deadline to consider SSI: Motion for annulment lodged: SSI drawn to Parliament s attention by Sub Leg Committee: 7 February 2012 No No Purpose of Instrument: 1. The purpose of the instrument is to add the term home web page on a website operated by or on behalf of the charity to the list of specified documents required by regulation 4 of the Charities References in Documents (Scotland) Regulations 2007. 2. An electronic copy of the instrument can be found at: http://www.legislation.gov.uk/ssi/2011/446/contents/made Justice Committee consideration: 3. The instrument was laid on 20 December 2011 and the Justice Committee has been designated as lead committee. 4. Negative instruments are instruments that are subject to annulment by resolution of the Parliament for a period of 40 days after they are laid. All negative instruments are considered by the Subordinate Legislation Committee (on various technical grounds) and by the relevant lead committee (on policy grounds). Under Rule 10.4, any member (whether or not a member of the lead committee) may, within the 40-day period, lodge a motion for consideration by the lead committee recommending annulment of the instrument. If the motion is agreed to, the Parliamentary Bureau must then lodge a motion to annul the instrument for consideration by the Parliament. If that is also agreed to, Scottish Ministers must revoke the instrument. 5. Each negative instrument appears on a committee agenda at the first opportunity after the Subordinate Legislation Committee has reported on it. This means that, if questions are asked or concerns raised, consideration of the instrument can usually 1
J/S4/12/2/2 be continued to a later meeting to allow correspondence to be entered into or a Minister or officials invited to give evidence. In other cases, the Committee may be content simply to note the instrument and agree to make no recommendations on it. 2
J/S4/12/2/3 Justice Committee 2 nd Meeting, 2011 (Session 4), Tuesday 17 January 2012 SSI cover note SSI title and number: Act of Sederunt (Fees of Messengers-at-Arms) (No. 2) 2011 (SSI 2011/431) Type of Instrument: Not subject to parliamentary procedure Coming into force: 23 January 2012 Justice Committee deadline to consider SSI: SSI drawn to Parliament s attention by Sub Leg Committee: 24 January 2012 Yes (see Annexe) Purpose of Instrument: 1. The purpose of the instrument is to amend the General Regulations in relation to the fees of messengers-at-arms, including increasing the fees payable by 3.8%. 2. An electronic copy of the instrument can be found at: http://www.legislation.gov.uk/ssi/2011/431/contents/made Justice Committee consideration: 3. The instrument was laid on 8 December 2011 and the Justice Committee has been designated as lead committee. 4. Under Rule 10.1.3 of Standing Orders, any instrument laid before the Parliament is to be referred to a lead committee for consideration. This includes instruments laid only but not subject to any parliamentary procedure, which prior to the 2010 Act were not previously considered by lead committees. This requirement is an unintended consequence of the recent rule changes and it is expected to be addressed in the next round of minor rule changes by the Standards, Procedures and Public Appointments Committee. 5. In a case where such an instrument comes before a lead Committee it would ordinarily be sufficient for the Committee simply to note it. There would be nothing to stop the Committee taking further action (eg writing a letter or report) but there is no formal mechanism to annul or modify the instrument. 1
J/S4/12/2/3 Annexe Extract from the Subordinate Legislation Committee s 1 st Report of 2011 (Session 4) Act of Sederunt (Fees of Messengers-at-Arms) (No.2) 2011 (SSI 2011/431) (Justice Committee) 1. This instrument amends existing provision in relation to the fees of messengers-at arms. The changes are as follows: Substitution of a new Table of Fees increasing the fees payable to messengers- at- arms by 3.8% Amended provision in relation to fees where value of action is over 100,000 Amended provision in relation to fees in remote rural areas and provision of definition of remote rural area. 2. These amendments are carried out by way of adjustment to the Act of Sederunt (Fees of Messengers-at-Arms) (No.2) 2002 (SSI 2002/566). 3. As in relation to SSI 2011/432, in General Regulation 3, whether a settlement falls to be classed as a remote rural area is of importance in determining range of fees which are payable to messengers-at-arms in respect of certain services. 4. The Lord President s Private Office (LPPO) was asked to explain how the definition of such an area will be applied to settlements without a methodology prescribed in this instrument for the calculation of drive time, and whether taken as its stands the meaning is considered sufficiently clear and precise for persons to establish the fees legally payable for these services. This correspondence is reproduced in the Appendix. The issue highlighted here is the same as in relation to SSI 2011/432 and as such the response from the LPPO is to both instruments. 5. The response acknowledges that, on the face of it, there is a lack of clarity and precision in the definition of remote rural area, and that, in particular, it does not provide a methodology for the calculation of drive time. The view is taken that the position is however sufficiently clear and precise, given that the persons establishing the fees payable are court officers, and that it was their professional organisation which asked for the definition concerned to be used. In any event, it is stated that if a question should arise then this can be resolved by reference to the publication footnoted in the instrument, within which source there is set out the basis for calculating drive time. 6. The Committee notes that this instrument and the provision which it makes in respect of fees has implications for others, aside from officers of court and that the definition concerned represents a core element of this instrument. The Committee considers that the definition is not clearly provided for within the instrument itself such as to enable persons to establish the fees which are legally payable for the services concerned. The Committee takes the view that clarity and precision of drafting are important considerations, particularly so where involving such matters as calculation of fees, and that in this instance the definition could have been clearer. 2
J/S4/12/2/3 7. The form or meaning of the definition which is provided for remote rural area could be clearer, in particular regarding the reference made in to drive time. The Committee therefore draws the instrument to the attention of the Parliament on reporting ground (h). Appendix Act of Sederunt (Fees of Messengers-at-Arms) (No. 2) 2011 (SSI 2011/431) On 16 December 2011 the Lord President s Private Office was asked: In General Regulation 3, whether a settlement falls to be classed as a remote rural area is of importance in determining range of fees which are payable for certain services. Can the Lord President s Private Office explain how the definition of such an area will be applied to settlements without a methodology prescribed in this instrument for the calculation of drive time, and whether taken as its stands the meaning is considered sufficiently clear and precise for persons to establish the fees legally payable for these services? The Lord President s Private Office responded as follows: The Lord President s Private office accepts that the definition of remote rural area in General Regulation 3 is not, on the face of it, sufficiently clear and precise; in particular it does not provide a methodology for the calculation of drive time. However, the Lord President s Private Office takes the view that, on balance, it will be sufficiently and clear and precise for those persons establishing the fee payable. This is because the persons establishing the fee payable are officers of the court (either Messengers-at-Arms or Sheriff Officers) and the definition in General Regulation 3 is one which is known to them and their professional association the Society of Messengers-at-Arms and Sheriff Officers. Indeed, it was the Society who asked that this definition, taken from Scottish Government s Urban Rural Classification 2009-2010 published by the Office of the Chief Statistician August 2011, be used. Accordingly, the expectation is that the definition will work well in practice but should a question arise then reference can be made to the abovementioned publication. The publication contains two classifications of urban/rural areas in Scotland and it is the 6 fold classification which classifies Scotland into 6 categories ranging from large urban areas to remote rural areas. In relation to the particular issue of drive time, the publication calculates drive time by using a rural and urban average speed depending upon the class of a road. For example the average speed of an A class road is 40mph in rural areas and 19mph in urban (built up) areas. 3
J/S4/12/2/4 Justice Committee 2 nd Meeting, 2011 (Session 4), Tuesday 17 January 2012 SSI cover note SSI title and number: Act of Sederunt (Fees of Sheriff Officers) (No. 2) 2011 (SSI 2011/432) Type of Instrument: Not subject to parliamentary procedure Coming into force: 23 January 2012 Justice Committee deadline to consider SSI: SSI drawn to Parliament s attention by Sub Leg Committee: 24 January 2012 Yes (see Annexe) Purpose of Instrument: 1. The purpose of the instrument is to amend the General Regulations in relation to the fees of sheriff officers, including increasing the fees payable by 3.8%. 2. An electronic copy of the instrument can be found at: http://www.legislation.gov.uk/ssi/2011/432/contents/made Justice Committee consideration: 3. The instrument was laid on 8 December 2011 and the Justice Committee has been designated as lead committee. 4. Under Rule 10.1.3 of Standing Orders, any instrument laid before the Parliament is to be referred to a lead committee for consideration. This includes instruments laid only but not subject to any parliamentary procedure, which prior to the 2010 Act were not previously considered by lead committees. This requirement is an unintended consequence of the recent rule changes and it is expected to be addressed in the next round of minor rule changes by the Standards, Procedures and Public Appointments Committee. 5. In a case where such an instrument comes before a lead Committee it would ordinarily be sufficient for the Committee simply to note it. There would be nothing to stop the Committee taking further action (eg writing a letter or report) but there is no formal mechanism to annul or modify the instrument. 1
J/S4/12/2/4 Annexe Extract from the Subordinate Legislation Committee s 1 st Report of 2011 (Session 4) Act of Sederunt (Fees of Sheriff Officers) (No.2) 2011 (SSI 2011/432) (Justice Committee) 1. This instrument amends existing provision in relation to the fees of sheriff officers. The changes are as follows: Substitution of a new Table of Fees increasing the fees payable to sheriff officers by 3.8% Amended provision in relation to fees where value of action is over 100,000 Amended provision in relation to fees in remote rural areas and provision of definition of remote rural area. 2. These amendments are carried out by way of amendment to the Act of Sederunt (Fees of Sheriff Officers) (No.2) 2002 (SSI 2002/567). This instrument is subject to negative procedure. 3. In General Regulation 3, whether a settlement falls to be classed as a remote rural area is of importance in determining the range of fees which are payable to messengers-at-arms in respect of certain services. 4. The Lord President s Private Office (LPPO) was asked to explain how the definition of such an area will be applied to settlements, without a methodology prescribed in this instrument for the calculation of drive time, and whether taken as its stands the meaning was considered sufficiently clear and precise for persons to establish the fees legally payable for these services. This correspondence is reproduced in the Appendix. 5. The response acknowledges that, on the face of it, there is a lack of clarity and precision in the definition of remote rural area, and that, in particular, it does not provide a methodology for the calculation of drive time. The view is taken that the position is however sufficiently clear and precise, given that the persons establishing the fees payable are court officers, and that it was their professional organisation which asked for the definition concerned to be used. In any event, it is stated that if a question should arise then this can be resolved by reference to the publication footnoted in the instrument, within which source there is set out the basis for calculating drive time. 6. The Committee notes that this instrument, and the provision which it makes in respect of fees, has implications for others, aside from officers of court, and that the definition concerned represents a core element of this instrument. The Committee considers that the definition is not clearly provided for within the instrument itself such as to enable persons to establish the fees which are legally payable for the services concerned. The Committee takes the view that clarity and precision of drafting are important considerations, particularly so where involving such matters as calculation of fees, and that in this instance the definition could have been clearer. 7. The form or meaning of the definition which is provided for remote rural area could be clearer, in particular regarding the reference made in to drive 2
J/S4/12/2/4 time. The Committee therefore draws the instrument to the attention of the Parliament on reporting ground (h). Appendix Act of Sederunt (Fees of Sheriff Officers) (No. 2) 2011 (SSI 2011/432) On 16 December 2011 the Lord President s Private Office was asked: In General Regulation 3, whether a settlement falls to be classed as a remote rural area is of importance in determining range of fees which are payable for certain services. Can the Lord President s Private Office explain how the definition of such an area will be applied to settlements without a methodology prescribed in this instrument for the calculation of drive time, and whether taken as its stands the meaning is considered sufficiently clear and precise for persons to establish the fees legally payable for these services? The Lord President s Private Office responded as follows: The Lord President s Private office accepts that the definition of remote rural area in General Regulation 3 is not, on the face of it, sufficiently clear and precise; in particular it does not provide a methodology for the calculation of drive time. However, the Lord President s Private Office takes the view that, on balance, it will be sufficiently and clear and precise for those persons establishing the fee payable. This is because the persons establishing the fee payable are officers of the court (either Messengers-at-Arms or Sheriff Officers) and the definition in General Regulation 3 is one which is known to them and their professional association the Society of Messengers-at-Arms and Sheriff Officers. Indeed, it was the Society who asked that this definition, taken from Scottish Government s Urban Rural Classification 2009-2010 published by the Office of the Chief Statistician August 2011, be used. Accordingly, the expectation is that the definition will work well in practice but should a question arise then reference can be made to the abovementioned publication. The publication contains two classifications of urban/rural areas in Scotland and it is the 6 fold classification which classifies Scotland into 6 categories ranging from large urban areas to remote rural areas. In relation to the particular issue of drive time, the publication calculates drive time by using a rural and urban average speed depending upon the class of a road. For example the average speed of an A class road is 40mph in rural areas and 19mph in urban (built up) areas. 3
J/S4/12/2/5 Justice Committee 2 nd Meeting, 2011 (Session 4), Tuesday 17 January 2012 SSI cover note SSI title and number: Act of Sederunt (Rules of the Court of Session Amendment No. 8) (Terrorism Prevention and Investigation Measures) 2011 (SSI 2011/441) Type of Instrument: Not subject to parliamentary procedure Coming into force: 21 December 2011 Justice Committee deadline to consider SSI: SSI drawn to Parliament s attention by Sub Leg Committee: 7 February 2012 No Purpose of Instrument: 1. The purpose of the instrument is to amend the Rules of the Court of Session 1994 to make provisions in respect of proceedings under the Terrorism Prevention and Investigation Measures Act 2011. 2. An electronic copy of the instrument can be found at: http://www.legislation.gov.uk/ssi/2011/441/contents/made Justice Committee consideration: 3. The instrument was laid on 16 December 2011 and the Justice Committee has been designated as lead committee. 4. Under Rule 10.1.3 of Standing Orders, any instrument laid before the Parliament is to be referred to a lead committee for consideration. This includes instruments laid only but not subject to any parliamentary procedure, which prior to the 2010 Act were not previously considered by lead committees. This requirement is an unintended consequence of the recent rule changes and it is expected to be addressed in the next round of minor rule changes by the Standards, Procedures and Public Appointments Committee. 5. In a case where such an instrument comes before a lead Committee it would ordinarily be sufficient for the Committee simply to note it. There would be nothing to stop the Committee taking further action (eg writing a letter or report) but there is no formal mechanism to annul or modify the instrument. 1
J/S4/12/2/6 Justice Committee 2 nd Meeting, 2012 (Session 4), Tuesday 17 January Committee Bills Note by the Clerk Background 1. During the Committee s discussion on Petition PE1280 (fatal accident inquiries outwith Scotland) on 10 January, it agreed to seek more information on Committee Bills. This paper provides a summary of the process, outlines previous Committee Bills and notes recent correspondence from the Cabinet Secretary. Process 2. Committee Bills are provided for in Rule 9.15 of Standing Orders. 1 Any committee may make a proposal for a Bill in relation to matters within its remit. A noncommittee member may also submit a draft proposal for a Committee Bill to the Bureau for referral to an appropriate committee for consideration. Proposal 3. If a Committee wishes to pursue a proposal, it must publish a report to the Parliament setting out why the Committee Bill is necessary and what provisions it might contain. The report may also be accompanied by a draft bill. As a Committee Bill is not later referred to a lead committee at Stage 1, the proposal should have been developed through consultation and evidence taking, similar to that undertaken during Stage 1 consideration of a bill. 4. It is advisable that the Parliament s Non-Executive Bills Unit (NEBU) is involved at an early stage of any proposal. NEBU can help ensure that the proposal expresses the desired policy outcome of the committee and provides a suitable basis for the drafting of the Bill. 5. Once the report is published it must be debated in the Chamber. If the Parliament agree to the proposal, a bill can be introduced by the committee convener who becomes the member in charge. However, the Bill may not be introduced if (amongst other things) a Minister has given an indication in writing to the Committee Convener and clerk that the Scottish Government will itself introduce a bill giving effect to the committee s proposal in the same Parliamentary session. 2 Preparation and scrutiny of bill 6. Any Committee Bill should be broadly consistent with the terms of the committee s original proposal. NEBU can assist with preparation of the bill and accompanying documents, drawing on the services of the Parliament s lawyers and a panel of external drafters. NEBU can also provide continued support to the member in charge of the Bill during the bill s passage through the Parliament. 7. As explained, a Committee Bill is not referred to a lead committee at Stage 1, on the ground that the initial scrutiny and reporting is likely to have been in practice 1 Standing Orders the Scottish Parliament (4 th edition). Available at: http://www.scottish.parliament.uk/parliamentaryprocedureandguidance/standingordersv4.1.pdf 2 Standing Orders, Rule 9.15.7A 1
J/S4/12/2/6 roughly equivalent to Stage 1 scrutiny. However, the bill will be referred to the Finance Committee for a report on the financial memorandum and to the Subordinate Legislation Committee if appropriate. Once those committees have reported, a Stage 1 debate takes place. At Stage 2 the bill is referred to a committee in the same way as other bills. However, no members of the original committee may participate as members of any committee involved in scrutinising the bill at Stage 1 or 2. Stage 3 is the same as for other public bills. 8. The Scottish Parliament s Guidance on Public Bills 3 provides further explanation of the Committee Bill process (see Annexe A). Previous Committee Bills 9. Six Committee Bills have been passed since 1999. Two of these were proposed by ad hoc committees specifically established to develop proposals for Committee Bills for consideration by the Parliament. A summary of these previous Committee Bills, along with an indication of the time it took for each to be developed and ultimately passed by the Parliament, is included in Annexe B. PE1280 10. Petition PE1280 by Julie Love and Dr Kenneth Faulds seeks to amend the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 to require the holding of a fatal accident inquiry when a person from Scotland dies abroad. 11. The Cabinet Secretary for Justice s letter to the Convener of 5 December expressed a commitment to bring forward primary legislation to changes to the 1976 Act. The letter indicated that the Scottish Government in principle supported allowing the holding of a fatal accident inquiry when a person from Scotland dies abroad, in line with Lord Cullen s recommendations. The letter did not expressly state whether a bill would be introduced in the current session. 12. The Cabinet Secretary has since written again to the Convener (Annexe C) and confirmed that is the Scottish Government s firm intention that such legislation [ie legislation to reform and modernise the law on FAIs will be brought forward within the lifetime of this Parliament. The letter reiterates support in principle for Lord Cullen s recommendations on FAIs for deaths outwith Scotland. The letter does not appear to amount to an indication of legislative intent under Rule 9.15.7A that would block the Committee from proposing a Committee Bill. This is because there is not yet a Committee proposal (by means of a report to the Parliament) for the Scottish Government to respond to. However, the Committee will clearly wish to have regard to the letter when considering possible future work on the petition. For decision 13. The Committee is invited a. to note the procedure on Committee Bills, and the timescales pertaining to past Committee Bills; b. to note recent correspondence on PE1280 from the Cabinet Secretary; c. to consider whether to hold a further discussion on Committee Bills as part of a broader discussion of its future work programme at a forthcoming meeting. 3 Guidance on Public Bills (3 rd edition). Available at: http://www.scottish.parliament.uk/s3_bills/guidanceonpublicbills.pdf 2
J/S4/12/2/6 Annexe A Extract from Guidance on Public Bills - Committee Bills 3.21 Any committee may make a proposal for a Bill to the Parliament under Rule 9.15.2. Such a proposal may originate from within the committee (prompted, perhaps, by evidence received in the course of an inquiry, or by a petition referred to the committee). A member of the committee who wishes the committee to make a proposal should raise the matter with the convener, who can then invite the committee to decide whether to conduct an inquiry on the subject. 3.22 An alternative route is provided in Rule 9.15.4, which allows any MSP to submit a draft proposal for a Committee Bill to the Parliamentary Bureau. (In practice, members are advised to contact NEBU in the first instance for assistance with the wording of a draft proposal. NEBU can then refer the agreed draft to the Bureau on the member s behalf.) This is the mechanism used where the MSP concerned is not a member of a committee within whose remit the Bill would fall. A draft proposal is not printed in the Business Bulletin, but is referred by the Bureau to an appropriate committee. The committee is required to consider a draft proposal referred to it in this way (Rule 9.15.4). In doing so, the committee may (but need not) conduct an inquiry on the merits of the draft proposal before reaching a decision on whether to propose a Bill. 3.23 If a committee makes a proposal, whether in response to a draft proposal referred to it or on its own initiative, it does so in the form of a report to the Parliament. Unlike the short description required for a proposal for a Member s Bill, a report containing a proposal for a Committee Bill should set out clearly, and in reasonable detail, why a Bill is considered to be necessary and what it would contain (Rule 9.15.5). In particular, the report must make clear that the committee is proposing a Committee Bill under Rule 9.15.21 The report may, but need not, include a draft Bill (Rule 9.15.5).22 Because there is no Stage 1 report on a Committee Bill (see below), it is important that a committee developing a proposal for such a Bill takes similar evidence to the evidence it would expect to take at Stage 1 of a Bill, and otherwise consults adequately on the proposal, before finalising its report. 3.24 Committees are advised to involve NEBU at an early stage during any inquiry on a Committee Bill proposal. NEBU s role at this stage is primarily to help the committee to ensure that the proposal both expresses the policy of the committee and provides a suitable basis for the drafting of a Bill. To do this, a proposal must be sufficiently detailed to allow the Parliament to make a properly informed decision as to whether to support it, but not so detailed as to restrict the ability of the drafter subsequently called upon to implement the committee s policy in legislative terms. 3.25 Once the committee report containing the proposal has been published, the Convener should lodge a motion such as the following: [Convener s Name] on behalf of the [Name] Committee: Proposal for a [proposed short title] Bill That the Parliament agrees to the proposal for a Committee Bill under Rule 9.15 contained in the [Name] Committee s Nth Report, 2007 (SP Paper X). The Bureau must allocate time in a Business Motion for consideration of the proposal on the basis of the committee s report (Rule 9.15.6). 3
J/S4/12/2/6 3.26 If the Parliament agrees to the proposal, the committee convener may instruct the drafting of a Bill to give effect to the proposal (or, if a draft Bill already exists, introduce it) but not until the fifth sitting day after the debate and not if the Executive has indicated by that time that it will introduce in the same session an Executive Bill to give effect to the proposal or that Her Majesty s Government proposes to legislate to the same effect, within two sessions (Rule 9.15.7: This is equivalent to Rule 9.14.13 in relation to Members Bills discussed further at paragraph 3.9 above.) 3.27 A Committee Bill may be introduced only if it is broadly consistent with the terms of the proposal that was agreed to by the Parliament. If, in the course of finalising the Bill, the Committee decides not to include in the Bill a substantial element of the proposal, or to include in the Bill substantial provisions that were not mentioned in the proposal, it would need to obtain the Parliament s agreement to a further report containing a revised proposal. (It is partly to avoid any such difficulties that committees are advised to involve NEBU from the earliest stage in the preparation of any proposal.) If the proposal is agreed to, NEBU will develop drafting instructions in consultation with the committee, arrange for a Bill to be drafted, and provide support to the member in charge of the Bill during its passage. 3.28 A Committee Bill is introduced by the convener of the committee. Explanatory Notes, a Financial Memorandum and a Presiding Officer Statement on Legislative Competence are required but not a Policy Memorandum, because it is expected that in many cases the information contained in the committee report proposing the Bill would contain the sort of information found in a Policy Memorandum. NEBU would normally be expected to provide assistance to the committee in preparing any accompanying documents. 3.29 At Stage 1, a Committee Bill is not referred to a lead committee for a report on its general principles. But the Finance Committee will consider and report on the Financial Memorandum in the normal way unless it was the Finance Committee which proposed the Bill. Similarly the Subordinate Legislation Committee Bill must report on any provisions conferring powers to make subordinate legislation unless it initiated the Bill. Once those committees have reported to the Parliament (Rule 9.15.8), the Stage 1 debate takes place in the normal way. And after Stage 1, a Committee Bill proceeds in a similar manner to an Executive Bill. 4
J/S4/12/2/6 Annexe B List of previous Committee Bills Session 1 Protection from Abuse (Scotland) Bill This Bill was the first Committee Bill to be passed by the Parliament. It was a singleissue Bill with the purpose of enabling a power of arrest to be attached to interdicts granted to protect individuals from abuse. Stage 2 of the Bill was considered by the Justice 2 Committee to avoid members of the original committee participating as members of any committee involved in scrutinising the bill. Committee: Justice 1 First evidence session to publication of proposal: September 1999 to November 2000 Bill introduced: June 2001 Bill passed: October 2001 The Scottish Parliamentary Standards Commissioner Bill The Scottish Parliamentary Standards Commissioner Bill was the result of a Standards Committee inquiry and report published on 3 October 2000, Models of Investigation of Complaints (4th Report 2000, SP Paper 186). This Bill arose from the Standards Committee's conclusion that the Parliament should have statutory procedures for the independent investigation of complaints made under the Member's Interests Order and the Code of Conduct. The creation of a Scottish Parliamentary Standards Commissioner and the arrangements for investigating complaints were intended to supersede temporary investigation provisions set out in the Code of Conduct. The Bill gave power to an appointed Commissioner to carry out the first two stages of a four-stage investigation of complaints made under the Member's Interests Order and the Code of Conduct. Committee: Standards First evidence session to publication of Committee Bill proposal: March 2000 to April 2001 Bill introduced: February 2002 Bill passed: June 2002 Commissioner for Children and Young People (Scotland) Bill In May 2000 the Education, Culture and Sport Committee were asked by the Scottish Executive to consider whether there was a need for a Commissioner for children in Scotland. The Committee agreed to conduct an inquiry and published their report in February 2002. The report recommended that a Commissioner for children and young people should be established by statute. A further report was published in July 2002 which set out proposals for a Bill. Committee: Education, Culture and Sport First evidence session to publication of proposal: November 2001 to July 2002 Bill introduced: December 2002 Bill passed: March 2003 5
J/S4/12/2/6 Session 2 Interests of Members of the Scottish Parliament The Bill replaced the transitional Members Interests Order to make provision for the creation, maintenance and amendment of a public register of Members interests. The Bill set out the definition of both registrable and declarable interests and existing provisions prohibiting paid advocacy were clarified. Certain offences and sanctions were also included in the Bill Committee: Standards and Public Appointments First evidence session to publication of proposal: October 2004 to January 2005 Bill introduced: September 2005 Bill passed: June 2006 Session 3 Scottish Parliamentary Pensions Bill The instrument setting out the then Scottish Parliamentary Pension Scheme was transitory and transitional so a Scottish Parliamentary Pension Scheme Committee was established to develop proposals for new scheme rules for consideration by the Parliament. The resultant Scottish Parliamentary Pensions Bill was passed in the context of a raft of changes to pension law generally and the fact that the previous scheme was set to expire in April 2011. Committee: Scottish Parliamentary Pension Scheme First evidence session to publication of proposal: February 2008 to May 2008 Bill introduced: September 2008 Bill passed: January 2009 Scottish Parliamentary Commissions and Commissioners etc Bill The Bill was introduced following the work of the Review of SPCB Supported Bodies Committee. The Committee was set up as an ad hoc committee to consider and report on whether alterations should be made to the terms and conditions of the officeholders and the structure of the bodies supported by the Scottish Parliament Corporate Body. It also considered how any proposals, including the addition of any new functions, for future arrangements should be taken forward, including by way of a Committee Bill. Committee: Review of SPCB Supported Bodies First evidence session to publication of proposal: December 2008 to May 2009 Bill introduced: January 2010 Bill passed: June 2010 6