| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| | [2013] CSIH 105 |
Lady Paton Lord Brodie Lord Wheatley | XA102/12 OPINION OF THE COURT delivered by LORD BRODIE in the appeal by THE CHILD MAINTENANCE AND ENFORCEMENT COMMISSION CHILD SUPPORT AGENCY Pursuer and Respondent; against DAVID FRASER ROY Defender and Appellant: _______________ |
Act: David Thomson, advocate; Harper Macleod LLP
Alt: Party Litigant
4 December 2013
Introduction
[1] This is an appeal by David Fraser Roy against an interlocutor pronounced by Sheriff Maciver in the Sheriff Court at Edinburgh on 31 May 2012 in a summary application at the instance of the now respondent, the Child Maintenance and Enforcement Commission Child Support Agency.
[2] The summary application was brought in terms of section 39A of the Child Support Act 1991. It sought a warrant committing the now appellant to prison in terms of section 39A(2)(a) of the 1991 Act or alternatively, an order disqualifying the appellant from holding or obtaining a driving licence in terms of section 39A(2)(b). In terms of the interlocutor appealed against, the appellant was disqualified from holding or obtaining a driving licence for a period of 6 months.
Legislative provisions
[3] The following provisions of the Child Support Act 1991 are of relevance:
"33.- Liability Orders
(1) This section applies where-
(a) a person who is liable to make payments of child support maintenance ('the liable person') fails to make one or more of those payments; and
(b) it appears to the Secretary of State that-
(i) it is inappropriate to make a deduction from earnings order against him (because, for example, he is not employed); or
(ii) although such an order has been made against him, it has proved ineffective as a means of securing that payments are made in accordance with the maintenance calculation in question.
(2) The Secretary of State may apply to a magistrates' court or, in Scotland, to the sheriff for an order ('a liability order') against the liable person.
(3) Where the Secretary of State applies for a liability order, the magistrates' court or (as the case may be) sheriff shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.
(4) On an application under subsection (2), the court or (as the case may be) the sheriff shall not question the maintenance calculation under which the payments of child support maintenance fell to be made.
(5) If the Secretary of State designates a liability order for the purposes of this subsection it shall be treated as a judgment entered in a county court for the purposes of section 98 of the Courts Act 2003 (register of judgments and orders etc).
(6) Where regulations have been made under section 29(3)(a)-
(a) the liable person fails to make a payment (for the purposes of subsection (1)(a) of this section); and
(b) a payment is not paid (for the purposes of subsection (3)),
unless the payment is made to, or though, the person specified in or by virtue of those regulations for the case of the liable person in question.
38.- Enforcement of liability orders by diligence: Scotland.
(1) In Scotland, where a liability order has been made against a person, the order shall be warrant anywhere in Scotland-
(a) for the Secretary of State to charge the person to pay the appropriate amount and to recover that amount by an attachment and, in connection therewith, for the opening of shut and lockfast places;
(b) for an arrestment (other than an arrestment of the person's earnings in the hands of his employers) and action of furthcoming or sale,
and shall be apt to found a Bill of Inhibition or an action of adjudication at the instance of the Secretary of State.
(2) In subsection (1) the 'appropriate amount' means the amount in respect of which the order was made, to the extent that it remains unpaid.
39A.- Commitment to prison and disqualification from driving.
(1) Where the Secretary of State has sought-
(a) in England and Wales to levy an amount by distress under this Act; or
(b) to recover an amount by virtue of section 36 or 38,
and that amount, or any portion of it, remains unpaid the Secretary of State may apply to the court under this section.
(2) An application under this section is for whichever the court considers appropriate in all the circumstances of-
(a) the issue of a warrant committing the liable person to prison; or
(b) an order for him to be disqualified from holding or obtaining a driving licence.
(3) On any such application the court shall (in the presence of the liable person) inquire as to-
(a) whether he needs a driving licence to earn his living;
(b) his means; and
(c) whether there has been wilful refusal or culpable neglect on his part.
(4) The Secretary of State may make representations to the court as to whether the Secretary of State thinks it more appropriate to commit the liable person to prison or to disqualify him from holding or obtaining a driving licence; and the liable person may reply to those representations.
(5) In this section and section 40B, 'driving licence' means a licence to drive a motor vehicle granted under Part III of the Road Traffic Act 1988.
(6) In this section 'the court' means-
(a) in England and Wales, a magistrates' court;
(b) in Scotland, the sheriff.
40B.- Disqualification from driving: further provision
(1) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person, it may-
(a) order him to be disqualified, for such period specified in the order but not exceeding two years as it thinks fit, from holding or obtaining a driving licence (a 'disqualification order'); or
(b) make a disqualification order but suspend its operation until such time and on such conditions (if any) as it thinks just.
(2) The court may not take action under both section 40 and this section.
(3) A disqualification order must state the amount in respect of which it is made, which is to be the aggregate of-
(a) the amount mentioned in section 35(1), or so much of it as remains outstanding; and
(b) an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of the application under section 39A.
(4) A court which makes a disqualification order shall require the person to whom it relates to produce any driving licence held by him, and its counterpart (within the meaning of section 108(1) of the Road Traffic Act 1988).
(5) On an application by the Secretary of State or the liable person, the court-
(a) may make an order substituting a shorter period of disqualification, or make an order revoking the disqualification order, if part of the amount referred to in subsection (3) (the 'amount due') is paid to any person authorised to receive it; and
(b) must make an order revoking the disqualification order if all of the amount due is so paid.
(6) The Secretary of State may make representations to the court as to the amount which should be paid before it would be appropriate to make an order revoking the disqualification order under subsection (5)(a), and the person liable may reply to those representations.
(7) The Secretary of State may make a further application under section 39A if the amount due has not been paid in full when the period of disqualification specified in the disqualification order expires.
(8) Where a court-
(a) makes a disqualification order;
(b) makes an order under subsection (5); or
(c) allows an appeal against a disqualification order,
it shall send notice of that fact to the Secretary of State; and the notice shall contain such particulars and be sent in such manner and to such address as the Secretary of State may determine.
(9) Where a court makes a disqualification order, it shall also send the driving licence and its counterpart, on their being produced to the court, to the Secretary of State at such address as the Secretary of State may determine.
...
(11) The Secretary of State may by regulations make provision in relation to disqualification orders corresponding to the provision he may make under section 40(11).
(12) In the application to Scotland of this section-
(a) in subsection (2) for 'section 40' substitute 'section 40A';
(b) in subsection (3) for paragraph (a) substitute-
'(a) the appropriate amount under section 38;';
(c) subsection (10) is omitted; and
(d) for subsection (11) substitute-
'(11) The power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make, in relation to disqualification orders, provision corresponding to that which may be made by virtue of section 40A(8).'"
Issues for the sheriff and procedure in the sheriff court
[4] The summary application was commenced by an initial writ in which it was averred that the appellant had been a liable person in terms of the 1991 Act for payment of child support maintenance from 9 November 1993 until 17 October 2001; that a Liability Order had been made against the appellant at Edinburgh Sheriff Court for payment of £7,075.87 of child support maintenance arrears together with expenses ("the First Liability Order"), extracted on 24 October 1997; that the respondent had sought to recover the amount in respect of which the First Liability Order was made in terms of section 38 of the 1991 Act by service of a charge for payment, attempted arrestment and registration of a Bill of Inhibition; that a further Liability Order was made against the appellant at Edinburgh Sheriff Court for payment of £7,165.60 of child support maintenance arrears ("the Second Liability Order"), extracted on 26 August 2005; that the respondent had sought to recover the amount in respect of which the Second Liability Order was made in terms of section 38 of the 1991 Act by service of a charge for the payment, attempted arrestment and registration of a Bill of Inhibition; that a Liability Order was made against the appellant at Edinburgh Sheriff Court for payment of £4,359.73 of child support maintenance arrears together with expenses, extracted on 30 March 2009; that the respondent had sought to recover the amount in respect of which the Third Liability Order was made in terms of section 38 of the 1991 Act by service of a charge for payment and registration a Bill of Inhibition; and that accordingly the total sum of £19,328.49 was unpaid as at the date of raising the summary application. It was further averred that the respondent had the means to make payment of the amounts in respect of which the Liability Orders were made and that he either wilfully refused or culpably neglected to make payment.
[5] Certain of the issues for the sheriff in the summary application were defined by the terms of section 39A(1) of the 1991 Act. In the course of his submissions before us, Mr Thomson, who appeared for the respondent, referred to them as the "gateway" issues. They were as follows: (a) whether the Liability Order had been made against the appellant as provided for by section 33 of the 1991 Act; (b) whether the Secretary of State had sought to recover the amount or amounts due under the order or orders by diligence as provided for by section 38 of the 1991 Act; and (c) whether the amount or amounts remained unpaid. In event of these gateway issues being determined affirmatively, the sheriff was then required, in terms of section 39A(3), to inquire (a) whether the appellant needed a driving licence to earn his living; (b) what were the appellant's means; and (c) whether there had been wilful refusal or culpable neglect to pay on his part. If, but only if, the sheriff was of the opinion that there had been wilful refusal or culpable neglect, he was empowered to make a disqualification order in terms of section 40B(1) disqualifying the appellant for such periods specified in the order but not exceeding two years as he thought fit, from holding or obtaining a driving licence, or to make a disqualification order but to suspend its operation until such time and on such conditions, if any, as he thought just.
[6] After very protracted incidental procedure, the application came to a hearing before Sheriff Maciver on 8 March 2011. Having heard an officer of the respondent and the appellant in evidence, the sheriff, having been satisfied on all matters necessary to entitle him to make an order disqualifying the appellant from driving as provided by section 39A(2)(b), pronounced the following interlocutor:
"The sheriff, having heard the agent for [the now respondent] and the [now appellant] personally on the [appellant's] motion tendered at the bar of the court, no 7 of process, refuses said motion and further refuses the [appellant] leave to appeal said decision; having heard the agent for the [respondent] and the [appellant] personally on the evidence led and concluded finds that the [appellant] has wilfully refused to make payment of the sums due to the [respondent], makes an order in terms of section 39A(2)(b) of the Child Support Act 1991, suspends said order for a period of six months and continues the cause to a hearing on 5 September 2011 at 10am, orders the [appellant] to pay to the [respondent] the sum of £30 per month from this date and ordains him to enter into meaningful discussions with the [respondent] with regard to payment arrangements for the outstanding sum due, further finds the [appellant] liable to the [respondent] in expenses, allows an account thereof to be given in and remits the same to the Auditor of Court to tax and to report."
[7] Sheriff Maciver did not attach a note to this interlocutor, nor to either of his two subsequent interlocutors to which we shall refer below. There was no requirement for him to do so, the requirement of section 50 of the Sheriff Courts (Scotland) Act 1907 that the sheriff shall give his judgment in writing being sufficiently complied with by the terms of the interlocutor, but the absence of a note attached to this or either of the other two interlocutors means that this court has not had the benefit of a nearly contemporaneous account by the sheriff of how the respective hearings were conducted. To an extent, this has been remedied by the sheriff's note dated 4 December 2012 and his supplementary report received on 13 September 2013, which were provided in response to requests made by this court. As appears from the sheriff's note of 4 December 2012, on 8 March 2011 Sheriff Maciver heard evidence from Helen Haxton, an executive officer of the Legal Enforcement Department of the respondent and evidence from the appellant. As was explained to us by Mr Thomson, at the beginning of the hearing before Sheriff Maciver on 8 March 2011 the agent for the respondent intimated that the respondent was not relying on the total sum of £19,328.49 referred to in the initial writ being due. In preparation for the hearing, a solicitor acting for the respondent had noted, prompted by the terms of the defences lodged by the appellant, that the appellant had been sequestrated in 1995. The solicitor instructed a recalculation of the appellant's liability on the basis that he had no liability prior to the date of his sequestration and it was conceded before the sheriff that rather than relying on the sum of £19,328.49, the respondent was only relying on the sum of £10,803.12 being due and unpaid.
[8] Having been further continued from 5 September, the matter came back before Sheriff Maciver on 7 September 2011. The appellant then advised the sheriff that, notwithstanding the order contained in the sheriff's interlocutor of 8 March 2011, he had not made any payment to the respondent, nor had he been in touch with the respondent. Having enquired as to the appellant's need to hold the driving licence and any consequent hardship by not having one, and having regard to the fact that the appellant had failed to obtemper the order contained in the interlocutor of 8 March 2011, Sheriff Maciver disqualified the appellant from holding or obtaining a driving licence for a period of 12 months.
[9] The interlocutor pronounced by the sheriff on 7 September 2011 was in the following terms:
"The sheriff, having heard from parties, in respect that the [appellant] has failed to obtemper the terms of the interlocutor dated 8 March 2011, makes an order in terms of section 39A(2)(b) of the Child Support Act 1991; disqualifies the [appellant] David Roy from holding or obtaining a driving licence for a period of 12 months from the date of this interlocutor; ordains the [appellant] to surrender said driving licence to the sheriff clerk's office, 27 Chambers Street, Edinburgh, EH1 1LB no later than 4pm on 9 September 2011".
[10] The appellant appealed to this court ("the first appeal"). On 14 October 2011, the case called before a single judge on (as it would appear) the appellant's motion to suspend the disqualification imposed by Sheriff Maciver on 7 September 2011. At that hearing counsel for the respondent conceded that the sheriff's interlocutor of 7 September 2011 was not in proper form, in that contrary to form 10 of the Act of Sederunt (Child Support Rules) 1993, it did not specify the period of disqualification from driving, the amount of liability for child maintenance and the associated expenses. Accordingly, the court reconvened as a court of three judges and, of consent, allowed the first appeal. The court pronounced the following interlocutor:
"The Lords having heard counsel for the pursuer and respondent and the party defender and appellant in reply, and with reference to the Act of Sederunt (Child Support Rules) 1993 and form 10 attached thereto along with section 39A and 40B of Child Support The Legislation (ninth edition) 2009/2010; in respect that the Sheriff has failed to specify in the interlocutor of 8 March 2011 (1) the period of disqualification from driving (2) the amount of liability and (3) expenses; allow the appeal; recall the interlocutor of the Sheriff of 8 March 2011 and of 7 September 2011 and decern, remit the cause to the sheriff court at Edinburgh in order that the matter can be considered of new."
[11] Following the remit to the sheriff court a hearing was fixed for 25 January 2012 before Sheriff Mackie. Having heard parties at that hearing and for the reasons more fully set out in the note attached to her interlocutor of 13 March 2012, Sheriff Mackie remitted the case to Sheriff Maciver for hearing in respect of any relevant change of circumstances and in the event that there was no such change for the issue of an interlocutor in appropriate terms.
[12] The matter came back before Sheriff Maciver on 31 May 2012. The sheriff was advised, inter alia, that (i) the appellant had not been driving during the six months which had elapsed since the original order, but (ii) no sums had been paid to the respondent. On that date Sheriff Maciver pronounced an interlocutor in the following terms:
"The sheriff, having heard the agent for the [respondent] and the [appellant] personally, being satisfied;
(i) that the Child Maintenance and Enforcement Commission has sought to recover an amount of child support under section 38 of the Child Support Act 1991, being the sum of TEN THOUSAND EIGHT HUNDRED AND THREE POUNDS (£10,803.12) STERLING;
(ii) finds the [appellant] liable to the [respondent] in taxed expenses the sum of FIVE THOUSAND SEVEN HUNDRED AND FORTY EIGHT POUNDS AND THIRTY FOUR PENCE (£5,748.34) STERLING;
(iii) that such amount, or a portion of it remains unpaid; and
(iv) having inquired in the [appellant's] presence as to his means, that there has been wilful refusal or culpable neglect on his part,
disqualifies [the appellant] from holding or obtaining a driving licence for a period of six months."
That is the final interlocutor which the appellant has appealed to this court ("the second appeal").
Procedure in this court
[13] A feature of the procedure in the second appeal has been the repeated failures by the appellant to adhere to the timetable and his persistent attempts to lodge voluminous quantities of material late. The sheriff court process was received in the court on 11 June 2012. On 5 July 2012, having heard counsel for the respondent and the appellant personally, the court refused the appellant's motion to sist the appeal for four weeks and for recovery of documents. On 1 November 2012, the appeal having called at a procedural hearing, the court varied the timetable by appointing the appellant within 14 days of receipt of a note by the sheriff to lodge grounds of appeal, and appointed the respondent to lodge answers.
[14] Sheriff Maciver's note dated 4 December 2012 was received on 6 December 2012.
[15] On 16 January 2013 the court allowed the appellant's grounds of appeal to be received late. On 19 March 2013 the court refused a number of motions by the appellant, including a motion seeking permission to appeal the Liability Orders late (that motion not being insisted upon). The appeal was appointed to the Summar Roll with notes of arguments and appendices to be lodged by 20 May 2013. On 7 May 2013 on his unopposed motion, the appellant was allowed to lodge late adjusted grounds of appeal. On 29 August 2013 the appellant's motion to lodge a note of argument late was refused, it not being in proper form in that it did not conform to paragraph 86.1 of the Practice Note No 3 of 2011 Causes in the Inner House which requires a concise summary of the submissions to be developed. On 25 September 2013 the court again refused to allow a note of argument for the appellant (extending to over 50 pages) to be received late. Again the note of argument was not in proper form. In the circumstances the court directed that the appellant's grounds of appeal be treated as his note of argument. At the hearing on 25 September the appellant advised the court that he was no longer insisting in grounds of appeal numbers 10, 11 and 13.
[16] The appeal was heard on the Summar Roll on 22 October 2013.
Grounds of appeal
[17] The language used by the appellant in his grounds of appeal is idiosyncratic and its meaning consequently obscure. However careful consideration of the grounds, as supplemented by the appellant's oral submissions, would indicate that his complaints might be marshalled as follows:
(1) the legislation underpinning the child support scheme is unsatisfactory, in particular (contrary to the Act of Union) it is not uniform as between Scotland and England, there is no provision in Scotland for prescription of liability and the provisions of section 39A offend against article 7 of the European Convention on Human Rights (grounds 1 and 12);
(2) the Child Support Agency has been guilty of a systemic failure properly to administer the scheme and has made errors in assessing liability particularly in making maintenance calculations and taking into account voluntary payments (grounds 14, 15, 16 and 18);
(3) maintenance calculations are generally unreliable and in the appellant's case errors in calculation, a failure to take into account sequestration and failures to have regard to voluntary payments, have resulted in the Agency maintaining that the appellant has a liability whereas in fact he has no liability (grounds 17, 19 and 20);
(4) as a result of the Agency's inaction and delay, it is personally barred from pursuing the appellant for payment (ground 20);
(5) the hearings before Sheriff Maciver on 7 September 2011 and 31 May 2012 were conducted by the sheriff in a way that was procedurally irregular and unfair (grounds 2 to 9 and 19);
(6) the procedure before the sheriff was further vitiated by misconduct on the part of the respondent's solicitor (grounds 2, 4 and 22); and
(7) there should have been a complete re-hearing on 31 May 2012 (ground 21).
[18] Although he did not develop each of his grounds of appeal individually in the course of his oral submissions, the appellant confirmed that he insisted in all of the grounds other than grounds 10, 11 and 13. He reminded the court that the respondent had conceded a significant mistake in its calculation of liability at the hearing on 8 March 2011. It was accepted, only on the date of the hearing, that the respondent had wrongly included liabilities incurred prior to his sequestration in 1995. It was the appellant's submission on 8 March 2011 and again on 31 May 2012 when the matter had been remitted back to the sheriff to be "considered of new", that he should have been afforded the opportunity to challenge the extent of his outstanding liability. The Agency had been guilty of systematic failures and its calculations could not be relied upon. Insofar as the legislation differed in its application as between Scotland and England it was contrary to the Act of Union. Section 39A of the 1991 Act (added by amendment in 2000) had, in the appellant's case, retrospective penal effect and therefore contravened article 7 of the European Convention on Human Rights.
Discussion
[19] The context for this appeal is the system for the enforcement of child maintenance payments as against the absent or non-residential parent introduced by the Child Support Act 1991, in terms of which the Secretary of State, acting, from time to time through the Child Support Agency and the Child Support Agency division of the Child Maintenance and Enforcement Commission, undertook the assessment, collection and enforcement of periodical maintenance payable by parents with respect to children of theirs who were not in their care. The scheme provided for the Child Support Agency to exercise almost exclusive jurisdiction in respect of child maintenance issues with consequent curtailment of the jurisdiction of the courts. The scheme is complex. It has been subject to substantial amendment on a number of occasions. In essence, the scheme provides for the making by the Secretary of State of what was initially referred to as a "maintenance assessment" and latterly as a "maintenance calculation", being the sum payable by an absent parent to the parent with care of the child in question. It is the Secretary of State who has the power to enforce a maintenance calculation and it is not open to the person with care to enforce a maintenance calculation in his or her own right. The enforcement powers of the Secretary of State include seeking a liability order in terms of section 33 of the 1991 Act and seeking a warrant for committal of a liable person to prison or an order for him to be disqualified from holding or obtaining a driving licence in terms of section 39A of the Act. Applications under sections 33 and 39A require applications to (in Scotland the sheriff) court but that is only for the purpose of obtaining enforceable orders. The extent of the liability of the non‑residential parent is determined administratively by the Secretary of State. Any challenge to a decision made by the Secretary of State must be by way of a statutory administrative appeal (now to the First-tier Tribunal).
[20] It was clear from listening to the appellant's oral submissions and considering the written material that he placed before the court, that he has extensive knowledge of the scheme for the enforcement of child maintenance which is constituted by the 1991 Act, as amended, and the relevant subordinate legislation. However, in the appellant's grounds of appeal and his oral submission we would see a persistent failure or perhaps refusal on the part of the appellant to recognise the consequences of that scheme and, in particular, the limited and specific nature of the court's jurisdiction in the matter which is the subject of this appeal. As Mr Thomson, on behalf of the respondent, correctly submitted, it was not competent for the appellant to challenge before Sheriff Maciver the Liability Orders which had been made as a result of previous applications to the sheriff court. On the occasion of these previous applications, the making of the Liability Orders had depended upon the relevant maintenance assessments or maintenance calculations which, in terms of section 33(4) of the 1991 Act, could not be questioned by the sheriffs before whom the applications were made. Similarly, it was not open to Sheriff Maciver to question the amount specified in the three Liability Orders founded on by the respondent before him. Whether the original maintenance assessments or maintenance calculations were correct and whether, for example, proper account had been taken of voluntary payments was simply not within his jurisdiction to determine. That remained the case notwithstanding the fact that, entirely properly, when the solicitor for the respondent realised that the sums so specified included liability which had accrued prior to the appellant's sequestration, she indicated that the respondent was not relying on the full extent of the aggregate sums specified in the Liability Orders. There nevertheless remained a sum unpaid in terms of the Liability Orders. The respondent had attempted to enforce liability in terms of section 38 of the Act without success. Accordingly, it was entitled to apply to Sheriff Maciver for one or other of the remedies provided by section 39A. The only issues for Sheriff Maciver were, therefore, whether the requisites for making an order disqualifying the appellant from driving were met.
[21] As he had before this court, the appellant attempted to rely before the sheriff on a variety of documentary material in which can be found assessments of and reports on the performance of the Child Support Agency in discharging its statutory duties. Irrespective of how accurate and authoritative that material may be, it was simply irrelevant to a consideration of the only issues which were competently before the sheriff.
[22] The appellant complained that Sheriff Maciver's conduct of the hearing on 31 May 2012 failed to comply with the terms of this court's interlocutor of 14 October 2011. We disagree. The reason why the appeal was allowed on 14 October 2011 had nothing to do with the soundness of the sheriff's decision on 7 September 2011; it had to do with the soundness of the form of the sheriff's interlocutor. The "matter" to be considered of new was the form of the interlocutor, not the underlying decision. Nevertheless, there had to be some inquiry before the sheriff prior to him making a disqualification order with a view to ascertaining whether the section 39A(3) criteria were met, wilful refusal having already been established. That being the context, what happened on 31 May 2012 was in perfect compliance with the interlocutor of 14 October 2011. The sheriff made inquiry and heard submissions. This was a summary application; the procedure to be followed was very much within the discretion of the sheriff. There was no procedural requirement and no need for him to hear evidence having regard to what had been heard on 8 March 2011.
[23] Once the limited nature of the sheriff's jurisdiction is appreciated, such force as the appellant's complaints about the conduct of the hearings before the sheriff might otherwise have had completely falls away. The fact that the respondent made a concession on the amount outstanding could not confer on the sheriff a jurisdiction which he did not otherwise have. That the sheriff had no jurisdiction to displace the Liability Orders also has the result of rendering the appellant's argument that the respondent was personally barred by reason of delay and acquiescence between July 1997 and February 2002 irrelevant. That the sheriff did not share the appellant's erroneous view of the proper scope of the hearing does not mean that the sheriff was biased.
[24] The appellant's argument that his being subject to a penalty in terms of section 39A of the 1991 Act which was only enacted by the Child Support, Pensions and Social Security Act 2000 contravened article 7 of the European Convention on Human Rights was not, in our opinion, sound. Article 7 provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. Accepting for present purposes that disqualification in terms of section 39A of the 1991 Act is a penalty such as would engage the provisions of article 7, the short answer to the appellant's complaint is that, as was submitted by Mr Thomson, the penalty was imposed in respect of wilful non‑payment, not in respect of accrual of liability to pay. In the appellant's case, refusal to pay post-dated amendment of the 1991 Act by the 2000 Act.
[25] A very ambitious and unprecedented argument is sketched out in ground of appeal 1. It is to the effect that, because there cannot be found in the subordinate legislation relating to Scotland, a provision, equivalent to the provision in regulation 28(2) of the Child Support (Collection and Enforcement) Regulations 1992 whereby, in England, an application for a liability order may not be instituted before a magistrate more than 6 years after the date in which payment of the amount in question became due, the whole of the Child Support Act 1991 and its subordinate legislation may be declared void as it is administered in Scotland with the result that all orders founded on by the respondent as against the appellant are to be regarded as null. The basis of this argument which is put forward in ground 1 is, first, that it offends against the terms of article XVIII of the Act of Union and, second, that it offends against the intention of the 1991 Act to have a unitary system of enforcement throughout the United Kingdom. The appellant made no attempt to develop this argument in oral submission. In our opinion it is clearly unsound. For present purposes we take the appellant's submission as to the difference between the subordinate legislation relating to England and the subordinate legislation relating to Scotland to be correct. We do not accept his reading of article XVIII of the Act of Union. That provision provides that in matters of public right, the Parliament of United Kingdom may legislate to make the law the same throughout the whole United Kingdom (it does not provide that it must), whereas in relation to private right no alteration may be made to Scots law except for the evident utility of the subjects within Scotland. Thus, there is nothing in article XVIII to prevent the United Kingdom Parliament legislating differently in respect of Scotland than in respect of England in matters of public right (and as constitutional law and practice has developed, nothing to prevent it legislating differently in matters of private right). Contrary to the assertion in ground of appeal 1, we do not read the 1991 Act as requiring, in every particular, the law as it is applied in Scotland to mirror exactly the law as it is applied in England. However, what the appellant appears to be concerned about is the making of subordinate legislation. The 1991 Act confers power to make subordinate legislation. On the appellant's argument that power should have been exercised in such a way as to provide for a short prescription period in respect of applications for the making of liability orders in Scotland. Whether and how the Secretary of State should exercise his power to make subordinate legislation is a matter for him, provided he acts intra vires. It is not a matter for the court.
[26] In his grounds of appeal the appellant accuses the solicitor who appeared for the respondent on 8 March 2011 of what the appellant considers to have been misconduct. We have found it very difficult to understand what is the precise nature of the appellant's criticism but we would wish to make it clear that nothing has been put before us to suggest that the solicitor acted improperly in any respect whatsoever.
Decision
[27] In our opinion, Sheriff Maciver was entitled to make the order he did on 31 May 2012 and nothing that has been put before us by the appellant has persuaded us to the contrary. This appeal must be refused. We reserve all questions of expenses.