Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015

Lord Wallace of Tankerness Excerpts

Wednesday 4th March 2015 Grand Committee

Moved by

[Lord Wallace of Tankerness]

That the Grand Committee do consider the Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015.

Relevant document: 20th Report from the Joint Committee on Statutory Instruments

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the main purpose of the order is to give full effect to the Courts Reform (Scotland) Act 2014, which I shall refer to as the 2014 Act, and to make provision where the Scottish Parliament does not have the legislative competence to do so.

The order is made under Section 104 of the Scotland Act 1998 and makes necessary or expedient legislative changes in consequence of the 2014 Act. It is quite technical in nature. It maintains the status quo and ensures that courts in Scotland retain their specific powers in relation to devolved and reserved matters.

To provide noble Lords with some background, the 2014 Act implements the majority of the recommendations of the Scottish civil courts review of 2009, which was an independent review chaired by Lord Gill. As the Committee may know, Lord Gill was at the time of the review the Lord Justice Clerk of Scotland and is now the current Lord President of the Court of Session.

The 2014 Act is intended to make the civil justice system in Scotland more efficient, with most of that Act focusing on a restructure of the civil courts system in Scotland. The 2014 Act makes some additional provisions relating to criminal matters.

From 1 April this year, the functions of the Scottish Tribunals Service will be transferred to the Scottish Court Service as a result of provision within the 2014 Act, and that Act will rename the Scottish Court Service the Scottish Courts and Tribunals Service. It is intended that this transfer will protect the independence of the administration of devolved tribunals by separating it from the Scottish Government. It will also create a joint independent administration for both courts and tribunals, with one board chaired by the Lord President as head of the judiciary for both courts and tribunals.

The Pensions Appeal Tribunal for Scotland, or PATS, was established under the Schedule to the Pensions Appeal Tribunals Act 1943. While pensions are a reserved matter, PATS is currently administered by the Scottish Tribunals Service, since the non-statutory function of providing administrative support was executively devolved to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999. The order before us transfers the administration of PATS from Scottish Ministers to the Scottish Courts and Tribunals Service.

Section 2 of the 2014 Act updates existing powers to alter sheriffdoms and sheriff court districts in Sections 2(1) and 3(2) of the Sheriff Courts (Scotland) Act 1971. The order consolidates and re-enacts the compensation provisions in those sections and permits the Scottish Courts and Tribunals Service to pay compensation for loss of office or loss or diminution of emoluments in consequence of an order made under Section 2 of the 2014 Act.

Currently, the Court of Session may make rules to regulate procedure and fees in both the Court of Session and the sheriff court, and it is important that the Court of Session still has this ability both for reserved matters and those which are devolved. The principal powers under which these rules are made are contained within the Court of Session Act 1988 and the Sheriff Courts (Scotland) Act 1971. As powers which were conferred on the court by pre-devolution statutes, these rule-making powers cover both reserved and devolved matters. This means that the court has been able to make special rules governing practice and procedure in relation to reserved areas of the law such as immigration, financial services and terrorism.

The court’s rule-making powers are now to be contained in the 2014 Act, but, because of the current legislative competence arrangements, that Act can provide the rule-making power only for matters which are devolved. Accordingly, the order provides that these powers may be used to make provision which relates to a reserved matter, or which modifies the law on reserved matters; that is, provision modifying existing special rules relating to reserved matters. This preserves the pre-existing ability of the court to regulate practice and procedure regardless of whether the subject matter of the proceedings in question is devolved or reserved.

While the 2014 Act provides for the Lord President of the Court of Session to direct certain categories of sheriff court case as suitable to be dealt with by specialist judiciary, and for the Lord President or the sheriff principal of a sheriffdom to be able to designate particular members of the sheriff court judiciary as specialists in one or more areas, the order provides for these powers to be exercisable in relation to categories of case which relate to reserved matters.

Similarly, while the 2014 Act inserts new sections into the Court of Session Act 1988 to include the application of a second appeals test applying to applications for review of decisions of the Upper Tribunal for Scotland, the order extends these provisions to apply to the UK Upper Tribunal.

The 2014 Act provides that civil proceedings which a sheriff has competence to deal with, and in which orders of value are sought of an aggregate value which does not exceed £100,000, may be brought only in the sheriff court. However, this order prevents the 2014 Act applying to proceedings for the winding-up of a company, with the consequence that such proceedings will remain competent in the Court of Session regardless of any order for value sought.

Finally, the order makes consequential modifications to existing UK legislation. For example, the House of Commons Disqualification Act 1975 and the Northern Ireland Assembly Disqualification Act 1975 are each amended to reflect the abolition of the office of stipendiary magistrate and the introduction of new judicial offices of summary sheriff and part-time summary sheriff in the 2014 Act.

A further example of the consequential modifications made by the order is that, as the 2014 Act has repealed several pieces of legislation in so far as Scots law is concerned, it replicates these repeals for the rest of the UK, thus tidying up the UK statute book. A specific example of this is the repeal of the Judicial Offices (Salaries, etc.) Act 1952 by the 2014 Act. This order replicates those repeals for the rest of the UK.

I consider this order to be a sensible use of the powers under the Scotland Act 1998 and it once again demonstrates this Government’s continued commitment to working with the Scottish Government to ensure that the devolution settlement works. I therefore commend the order to the Committee. I beg to move.

[Lord McAvoy (Lab)]

Again, I place on the record my thanks to the noble and learned Lord and his staff for keeping me fully informed. It is with trepidation that I set foot in a Room when an order mentioning emoluments and compensation for legal people is being discussed. I am not that brave and prepared to tread that ground too much.

The noble and learned Lord says that is sensible devolution. It is a steady process that is working well and, on behalf of the Opposition, I fully endorse the order.