Committee
Delegated Powers and Law Reform Committee 11 March 2014
11 Mar 2014 · S4 · Delegated Powers and Law Reform Committee
Item of business
Courts Reform (Scotland) Bill: Stage 1
Section 96 provides powers for the Court of Session to make rules of court by act of sederunt to regulate practice and procedure in the Court of Session. It replaces sections 5 and 5A of the Court of Session Act 1988 with a new section 5.New section 5(1) contains a broad, general power to make provision regarding procedure and practice. Subsection (2) contains specific, illustrative examples of the sort of matters that are procedure and practice for the purposes of the power, which include conduct and management of proceedings in the Court of Session, the form of documents used, appeals against decisions, awards of expenses and the representation of parties by those who are otherwise not qualified to do so. Given the width of subsection (1), subsection (2) is not intended to be exhaustive and expressly provides that subsection (1) is not limited by the specific examples of the power in subsection (2).Subsection (3) allows those acts of sederunt to make various types of ancillary provision. Subsection (4) clarifies that the new powers do not affect any existing power to make court rules.Section 97(1) provides a broad power for the Court of Session to make rules of court by act of sederunt to regulate practice and procedure in civil proceedings in the sheriff court and the sheriff appeal court. It replaces the power in section 32 of the Sheriff Courts (Scotland) Act 1971, in so far as rules of the sheriff court are concerned, and extends the power to enable provision to be made about the new sheriff appeal court.Section 97(1) contains a broad, general power to make provision regarding procedure and practice. Section 97(2) contains specific, illustrative examples of the sort of matters that are procedure and practice for the purposes of the power, which include conduct and management of proceedings in the sheriff courts and sheriff appeal court, the forms of documents used, appeals against decisions, awards of expenses and the representation of parties by those who are otherwise not qualified to do so. Given the width of subsection (1), subsection (2) is not intended to be exhaustive and expressly provides that subsection (1) is not limited by the specific examples of the power in subsection (2). The examples are broadly similar to those contained in the equivalent power to make rules for the Court of Session, with variations that reflect the courts’ different jurisdictions.In relation to sections 96 and 97(1), does the committee agree to ask the Scottish Government to explain: the limits of the powers in new section 5(1)(b) of the 1988 act and section 97(1)(b) of the bill to make provision for or about any matter incidental or ancillary to such proceedings; whether the powers permit the court to make provision in relation to matters other than the procedure and practice in the Court of Session, the sheriff court and the sheriff appeal court, including issues of substance that arise in those proceedings; in what way the powers in new section 5(1)(b) of the 1988 act as inserted by section 96 in respect of the Court of Session, and in section 97(1)(b) in respect of the sheriff court and the sheriff appeal court, differ from the powers in new section 5(3) of the 1988 act and section 97(4) of the bill respectively to make incidental, supplemental, consequential, transitional, transitory or saving provision in any act of sederunt made under those sections, and why separate provision to that effect is required; whether the provision that may be made by virtue of new section 5(3) of the 1988 act or section 97(4) of the bill is limited to such provision as is necessary or expedient for the purposes of the act of sederunt in question or extends more broadly to make general incidental provision—and if so, incidental to what; and whether the power in new section 5(1) of the 1988 act or section 97(1) of the bill would permit the court to regulate proceedings for contempt of court arising in civil proceedings, or whether specific provision would be appropriate to make that clear?Members indicated agreement.
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Thank you.11:55 Meeting continued in private until 12:01.