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Justice Committee 13 November 2012

13 Nov 2012 · S4 · Justice Committee

Item of business

Scottish Civil Justice Council and Criminal Legal Assistance Bill: Stage 2

MacAskill, Kenny SNP Edinburgh Eastern Watch on SPTV

Jenny Marra’s amendment 27 would require the council to consult“such persons as it considers appropriate before preparing draft rules”.However, the bill gives the council flexibility in that regard. Under section 3, the council will have powers to consult on any issue within its remit.10:00 As I have mentioned previously, the expectation is that much of the council’s work will be carried out at committee level where there will be ample opportunity for individuals and organisations to contribute. The Civil Procedure Rule Committee in England and Wales, which drafts rules and has no policy function, is required under section 2(6) of the Civil Procedure Act 1997 to“consult such persons as they consider appropriate, and ... meet (unless it is inexpedient to do so)”before making or amending rules. The Scottish council, which will have the power to consult on any matter within its remit, will have much broader functions than the Civil Procedure Rule Committee and will necessarily operate in a more inclusive manner. I do not think, therefore, that a statutory duty to consult is needed.I appreciate Jenny Marra’s concern and the concern of some stakeholders that the council might operate as a closed shop. However, I do not believe that that will happen. Indeed, I do not believe that the bill, which opens up the current arrangements significantly, would allow it. The estimated costs of the council that are provided in the financial memorandum to the bill include the costs associated with public consultation, which are up to £10,000 a year and significantly more during civil courts reform—potentially, up to £50,000 at the busiest period. Those figures were developed in collaboration with the Lord President’s office. I hope that the committee will take that as a good sign that the council will consult.Although the existing councils carry out consultations—such as on the new rules on the inner house of the Court of Session, for which the consultation extended to the holding of a public meeting—I consider that it would be disproportionate and undesirable to require the council to consult prior to preparing every set of rules. In many cases, rules will make technical changes purely to give effect to primary or subordinate legislation, the subject matter of which may have already been subject to extensive consultation and which, in any case, will have been considered by Parliament. I believe that the broad power to consult is sufficient and do not, therefore, consider it necessary to place upon the council the statutory duty contained in amendment 27.Amendments 1 to 4 and 11 in my name have been identified as necessary to ensure that, should proposals for any new court be brought forward, the council would be able to consider and prepare draft rules for that court at an early stage. As members are aware, the council’s immediate task will be to prepare the draft court rules for implementation of the Scottish Government’s planned programme of civil courts reform. One of the proposals under consideration is the creation of a sheriff appeal court, as recommended by the Scottish civil courts review. The amendments ensure that, should such a proposal be brought forward at any time, the council would be able to give it due consideration and make the necessary preparations for implementation.I urge Jenny Marra to withdraw amendment 27 and invite the committee to agree to my amendments 1 to 4 and 11.

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Justice Committee 13 November 2012

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