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SP Paper 696

SL/S2/06/R47

47th Report, 2006 (Session 2)

Remit and membership

Remit:

1. The remit of the Subordinate Legislation Committee is to consider and report on-

(a) any-

(i) subordinate legislation laid before the Parliament;

(ii) Scottish Statutory Instrument not laid before the Parliament but classified as general according to its subject matter,

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation; and

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Dr Sylvia Jackson (Convener)
Janis Hughes
Mr Adam Ingram
Mr Kenneth Macintosh (Deputy Convener)
Mr Stewart Maxwell
Euan Robson
Murray Tosh

Committee Clerking Team:

Clerk to the Committee
Ruth Cooper

Senior Assistant Clerk
David McLaren

Assistant Clerk
Jake Thomas

Support Manager
Andrew Proudfoot

Legal Profession and Legal Aid (Scotland) Bill as amended at Stage 2

The Committee reports to the Parliament as follows—

1. At its meeting on 5 December 2006, the Committee considered the inserted or substantially amended delegated powers provisions in the Legal Profession and Legal Aid (Scotland) Bill as amended at Stage 2. The Committee reports to the Parliament on such provisions under Rule 9.7.9 of Standing Orders.

2. Under Rule 9.7.10, the Executive provided the Parliament with a supplementary delegated powers memorandum1.

3. Evidence2 was taken from Executive officials on 5 December 2006.  Subsequent correspondence with the Executive is published in the Annex.

Delegated powers

4. The Committee considered all of the powers as set out in the Supplementary DPM and is content with paragraph 2(7) of schedule 1 (introduced by section 1(2), sections: 2(1B), 2A(2)(b), 2A(5), 16(8), paragraph 2(da) of schedule 3 (introduced by section 23(2)), sections 37, 38(1A)(b), 38(2), 46A(2), paragraph 2(1C)(k) of schedule 4 (introduced by section 51) and paragraph 2(1C)(l) of schedule 4 (introduced by section 51).

Section 18(3)(b) – Annual general levy

Section 18(4)(b) – Annual general levy

Section 19(3)(b) – Complaints levy

5. The Committee had no difficulty in principle with these powers or the procedure proposed. However, it queried the use of the words “(if any)” in 18(3)(b) and 18(4)(b). The Committee noted that it was usual for the Executive to use the permissive “may” when powers are conferred on Ministers to make subordinate legislation and that the general rule is that such a power may be exercised from time to time. However, in the absence of the words “(if any)”, the Committee considered that it would be a matter entirely for Ministers whether or not to make an order specifying a rate of interest. The inclusion of these words suggested that Ministers must exercise the power to make an order under the subsection but could prescribe a nil rate. The Committee noted that a similar provision in section 19(3)(b) had the words “(if any)” missing. The Committee therefore sought further explanation of the Executive’s inconsistency on this matter.

6. In its response, reprinted in the Annex, the Executive agreed with the Committee’s view that its position on sections 18(3)(b) and 18(4)(b) was inconsistent with 19(3)(b) and has agreed to delete the references to “if any” by amendment at stage 3. The Committee welcomed this response.

Section 36(4) – Unsatisfactory professional conduct: solicitors

7. The Committee had no concerns with the power or procedure for this section, but noted that amendments to section 36 are extensive and introduced a number of new provisions into the 1980 Act which refer to sums of money. These sums in a number of provisions seem to correspond with and be related to the sums set out in other provisions inserted into the 1980 Act by the Bill.

8. However, the Committee was unable to identify any powers in the Bill or the Act which would allow the sums to be amended by statutory instrument in a similar way. The Committee considered that this would be required to ensure that the relevant amounts do not become out of line when other sums are amended by order. The Executive agreed that this was necessary and confirmed that it would lodge stage 3 amendments to address this concern.

Section 37(2) – Unsatisfactory professional conduct: conveyancing or executry practitioners

9. New subsections 20B(1)(e), (2)(b), and (3) inserted by section 37(2) raise the same issues as section 36 above. Upon questioning on this matter, the Executive confirmed that it would be lodging stage 3 amendments to resolve this matter.

10. Similarly, the Committee noted that there appeared to be no power to amend the sum of £5,000 in new section 20E(1)(b) of the 1980 Act, although section 38(1A)(b) provides for a specific power to amend the same sum specified in section 55(1)(bc) of the Act. The Executive informed the Committee that it would be lodging amendments to resolve this matter.

Section 49 – Regulations or orders

11. The Committee noted that after revisions at stage 2, there were redundant references to sections 36 and 37 in section 49(3)(b). The Executive informed the Committee that these would be removed by stage 3 amendment.

ANNEX

As you know, the Committee considered the delegated powers provisions in the Legal Profession and Legal Aid (Scotland) Bill as amended at Stage 2 on 5 December.

In our oral evidence to the Committee we agreed to provide further clarification on sections 18(3)(b), 18(4)(b) and 19(3)(b) of the Bill. The Bill at present provides Ministers with a power by order to specify the rate of interest to apply to late payments by practitioners of annual general levy or complaints levy. The Committee noted that in respect of the annual general levy the power is expressed to take account of the possibility of no rate of interest being specified by Ministers whereas that qualification is not made in respect of the rate of interest in respect of the complaints levy.

We accept the Committee’s argument that this is inconsistent and stage 3 amendments have been prepared to delete the references to “(if any)” in sections 18(3)(b) and 18(4)(b) and bring them into line with section 19(3)(b) of the Bill so that Scottish Ministers must specify a rate of interest in each case. Consequential amendments have also been prepared in respect of paragraph 1(ga) and (gb) of schedule 3 to the Bill.

The amendments to the Bill will be tabled this week and we are grateful to the Subordinate Legislation Committee for bringing this point to our attention.

Scottish Executive


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