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I am delighted to open this stage 1 debate on the Tribunals (Scotland) Bill. I thank the Justice Committee for its scrutiny of the bill at stage 1 and for the preparation of its comprehensive stage 1 report. I also record my thanks to the various groups and individuals who provided evidence to the committee during stage 1, as well as to those who have engaged directly with the Government during the development of the bill and the parliamentary process to date. As members know, the introduction of a bill is usually preceded by a considerable amount of work, probably for a good couple of years prior to it, and the folk who are engaged in the discussion then have to carry that through during the bill process.
The bill aims to create a simplified and flexible framework that will bring coherence to the current disparate tribunals landscape. It brings improvements to the structure, management and organisation of devolved tribunals while maintaining the specialism and ethos of each individual tribunal. The bill creates a simple two-tier structure; introduces common practices and procedures; and brings judicial leadership, under the Lord President. The bill includes proposals to bring tribunal appointments into the remit of the Judicial Appointments Board for Scotland, which will ensure independence from Government and provide consistency in tribunal appointments. That will ensure that all tribunal users benefit from the same high standard of judicial decision making, regardless of the subject matter.
The bill creates the office of president of the Scottish tribunals, to support the Lord President with his new duties, to champion tribunals in the wider civil justice system and to ensure the proper distinction and separation of tribunals from courts. There will also be a new upper tribunal for Scotland, which will benefit the tribunal user by, in most cases, removing appeals from courts. The bill creates a structure that will enable a far better service to be provided to users. As it deals with structure and organisation, much of the detail will necessarily be fleshed out in secondary legislation.
The proposals in the bill have not been developed in isolation. In addition to the formal consultation exercise, we have engaged extensively with stakeholders and the judiciary. It is important to note that the bill does not sit in isolation and is an integral part of our making justice work programme, which is the most significant set of reforms to our justice system for more than a century. The programme brings together a wide range of reforms to the structure and processes of the courts, access to justice and tribunals and administrative justice. It has been developed and is being delivered with partners across the justice system. It is probably fair to say that the bill is at the least controversial end of that broader programme of work.
I turn to the detail of the Justice Committee’s report. I warmly welcome the committee’s support for the general principles of the bill and the recommendation to the Parliament that those principles be agreed to. I will address a few of the issues that are raised in the report, and I will be interested in hearing members’ views during the debate.
I note the committee’s view that consideration should be given to extending the pool of eligible candidates for assignment to the office of president of the Scottish tribunals. It is important to acknowledge that the leadership of the new tribunals structure will be invested in the Lord President, who will have responsibility for the efficient disposal of business and overall responsibility for the Scottish tribunals, as he does for the Scottish courts. The position of president of the Scottish tribunals is not an appointment; it is an assignment by the Lord President to assist him in delivering those new responsibilities. The president of the Scottish tribunals has certain functions delegated to them in the bill and will be responsible for the day-to-day running of the Scottish tribunals. That includes the upper tribunal, which will be made up of senators, sheriffs principal and sheriffs as well as chamber presidents from the first-tier tribunal.
For those reasons, it is entirely appropriate that the president of the Scottish tribunals should be assigned from among the senators of the College of Justice. I welcome the Lord President’s announcement that he intends to assign Lady Smith to the office. Lady Smith will bring a wealth of knowledge to the position.
We want to ensure that the Lord President’s role is paramount. Members need to keep that in mind. I do not want to get into the business of defining matters all the way down the line, in the way that the member might be suggesting. If that is not what the member meant, he will no doubt come back to the issue.
That rather leads me to the debate about whether the term “judge” should be specified in the bill. I note that some people have suggested that legal members on tribunals should be called tribunal judges, so as not to imply that they have a lesser status than court judiciary. However, all members of tribunals, whether they be legal or ordinary, are taking judicial decisions and should therefore have the same status. The bill achieves that aim by giving all members judicial status and capacity.
The bill is designed to create a new structure for devolved tribunals. I am not aware of any devolved tribunal that currently uses the term “judge”. We must not forget that users are at the centre of what we are creating. I am aware that the term “judge” is not popular with the majority of tribunal stakeholders, who fear a drift towards courtification—which may or may not be a word, but people understand what it means—and a more adversarial approach to tribunal hearings. However, it is for individual tribunals to determine what they call themselves during hearings informally. That therefore does not need to be explicit in the bill. However, I look forward to hearing members’ views on the issue during the debate.
There has been interest throughout the development of the bill, from consultation to the committee evidence sessions, that the particular nature and characteristics of the individual tribunals should be protected in the new structure. If anything, that has probably been the prevailing sentiment expressed to us all in one way or another. I fully agree with that view and I am confident that we have ensured that there is the right balance in the bill. The bill has to be flexible enough to allow the new structure to accommodate the different tribunals. By providing adequate safeguards, we ensure that each tribunal’s specialism and ethos is protected.
The committee has recommended that an amendment is made to the bill at stage 2 to allow for permanent members of the tribunals. Although there is no need for permanent members now, I accept that it might be a requirement in the future. I therefore intend to make an amendment to allow for permanent tribunal members should the need arise. I hear the convener of the Justice Committee sighing—I suspect that I may already have dealt a blow to part of her speech.
I thought that that might be the case.
Members need to keep it in mind that each tribunal was created by an act of Parliament. They are all required to operate differently depending on the matter that they are addressing. That will still be the case in the new structure. For instance, the Lands Tribunal for Scotland charges fees, so the bill contains provisions to allow that to continue.
Concern has been expressed about provision being made in the bill for court judiciary—sheriffs—to be able to act as members of the first-tier tribunal. However, there is a requirement in the Mental Health (Care and Treatment) (Scotland) Act 2003 for the Mental Health Tribunal for Scotland to have a sheriff convener to sit in its forensic cases. We therefore have to allow recognition of that position in the bill to ensure that sheriffs can act as members of the first-tier tribunal for that purpose.
The bill allows Scottish ministers to make composition orders specifying which category of member hears what cases in matters that fall to the first-tier tribunal to determine. The judicial members—sheriffs—of the first-tier tribunal will appear on composition orders only for cases where the founding legislation requires them to sit. That will ensure that they cannot hear any other type of case in the first-tier tribunal.
It is possible that, in the future, a new jurisdiction will be created that will require a judicial member to be part of the panel that hears the case. That would be enacted in the set-up legislation, and would be the result of a policy decision that was taken in the context of a particular policy area; it would not be my decision or come from the justice department. The bill as drafted allows for that flexibility, with safeguards in place to ensure that judicial members of the first-tier tribunal are authorised to hear cases only where there is a genuine requirement for them to do so.
The committee suggested that there would be merit in setting out the characteristics of a tribunal in the bill. As I indicated to the committee in my evidence, I would be happy to consider that, and I am open to hearing members’ views this afternoon on how that might be constructed and what they might like it to include.
There have been representations by stakeholders to request that the Lands Tribunal for Scotland and the Mental Health Tribunal for Scotland should be treated differently in the bill, by placing the former as a separate pillar outwith the structure and giving the latter its own chamber enshrined in legislation. I fully appreciate the complexity and unique nature of both those tribunals; I will say more about them individually in a moment. The key word to describe what the bill proposes is “flexibility”. The structure is designed to allow it to develop and grow, and respond to the needs of the individual tribunals that are transferring into it. The structure protects and maintains the unique individual needs of tribunals as well as providing the benefits that I mentioned earlier.
It is true that the Lands Tribunal for Scotland deals with complex matters of law, and that it operates extremely well. However, that is true of many other tribunals that will transfer into the new structure. Nothing that is proposed in the bill will affect how the tribunals operate in accordance with their founding legislation. I have taken account of the complexities of the Lands Tribunal by stating in the policy memorandum that its functions and members will transfer into the upper tribunal, with its appeals going to the inner house of the Court of Session, as they do now. It has been acknowledged that being in the upper tribunal would work for the Lands Tribunal; being in a separate pillar would not provide anything that is not achieved by the Lands Tribunal’s position in the new structure.
The Mental Health Tribunal is the only tribunal that is currently listed to come into the new structure that makes decisions on people’s liberty. The tribunal focuses on the needs of the patient, putting them at the centre of everything, and ensures that their voice is heard by those who make decisions about their care and treatment. I fully agree with those who advocate strongly for the retention of the specialism and ethos of that tribunal. However, I do not believe that anything that we are proposing would be detrimental to those values. The bill provides many safeguards, but most importantly it does nothing to change the fact that the tribunal will continue to adhere to the Millan principles, which the Scottish Government believes are at the centre of everything that the tribunal does.
I have made the commitment that the Mental Health Tribunal will be in a chamber of its own in the first instance. The bill is clear that only similar subjects can be located together in chambers, and there is currently no jurisdiction of a similar nature that could be located with the Mental Health Tribunal. There may never be such a jurisdiction, but the bill as drafted is flexible enough to allow for that to happen if one should come along. Any changes to chamber structure will be made only following consultation and by affirmative order by this Parliament.
I will clarify, in case there is any misunderstanding, that the location of two or more jurisdictions in the same chamber in no way amalgamates them. Each jurisdiction will continue to have its own founding legislation, specialist members, procedural rules and specialist support staff; all that the jurisdictions will share is a chamber president.
The committee commented on other issues that might be of interest to members in the chamber. I look forward to the debate and will seek to address in my closing remarks any matters that arise.
The bill represents a long-overdue reform of the tribunal landscape in Scotland, which I sincerely believe will be to the advantage of all tribunals and their users. I welcome the wide support for the bill to date, and I look forward to a constructive debate today on the creation of a cohesive tribunal structure for devolved tribunals in Scotland.
That the Parliament agrees to the general principles of the Tribunals (Scotland) Bill.
It says in my notes, “Welcome the opportunity to speak in the debate”. I think that that might be going a bit too far. I speak on behalf of the Justice Committee, which was the lead committee in considering the bill. Like the minister, I thank all those who gave written submissions and oral evidence to the committee.
I will get in a wee moan first. The difficulty is that the minister gets to speak first, which completely undermines all the issues that we raised in our report. I wish that it was the other way round, but I have no power. As the minister says, the purpose of the bill is to create a system to improve the independence of tribunals and facilitate improvements in the quality of service to tribunal users. It is a worthy but somewhat dry and technical bill, so I have dressed to distract.
Given that I am, yet again, allocated vast deserts of time—10 minutes—when there is not much to say except repeat, and repeat and repeat, I have huge sympathy for those who follow. I would call this a tumbleweed debate, but there was a worse one in 2000 on the reform of district courts. Look it up. Nothing could have been drier than that.
I am sure that Mr Stevenson will tell me about an even greater tumbleweed debate.
I wonder whether the member remembers the Court of Session Act 1693—[Laughter.]. It specifically says that
“no person presume to speake after the Lords begin to advise”.
Perhaps that may be guidance as to the order in which we should be speaking in this place, since I am sure that the convener of our committee stands above us all.
I liked the last bit, but the idea that I was around in 1693 is a bit wounding.
By way of introduction, I will take members on a brief journey through the mixed landscape of tribunals. For the purposes of the debate, and indeed the legislation, those tribunals will be in the devolved areas, which of course is only 2 per cent of the total. They include the Additional Support Needs Tribunal, which considers references made by parents and young people against decisions by local authorities regarding additional support for learning needs. In certain circumstances, it will hear placement requests. I know that things have improved since then, but some years ago I attended one of those tribunals with a constituent, only to find the council armed to the gunwales with solicitors, and parents having only me on their team—and a silenced me, at that. It was not very balanced and was quite intimidating.
There is the Mental Health Tribunal for Scotland, which, as the minister said, considers issues of compulsory detention under the Mental Health (Care and Treatment) (Scotland) Act 2003—taking away individuals’ rights.
There is the private rented housing panel, which sets about resolving issues between landlords and tenants, and the home owner housing panel, which aims to protect home owners by providing minimum standards for property factors and, broadly, land managers.
I know that members are familiar with all these tribunals, but many people do not know about them until they have to use them. They have a problem, they go on the internet and they find out that the tribunals exist. It is all pretty nitty-gritty, basic and practical stuff, which quite often involves the citizen and the state, in the form of the local authority or indeed any other organisation. At the other end, as the minister said, is the Lands Tribunal for Scotland, which is really more like a court in its processes and culture.
As I have said, the tribunals are very disparate; many of them have evolved over time. That is a good reason for the bill to draw them into some structure or order, while maintaining the range of processes and the culture of the informal of some and the very formal—perhaps of the Lands Tribunal—while building in accessibility and maintaining a firm line between tribunals and courts. That is important.
The committee supports the general principles of the bill. However, we highlight a number of areas, which the minister has already sabotaged, that could be improved to ensure that a balance is achieved between streamlining the current system without losing individual expertise within the existing tribunal. Reserved tribunals are not included in the new structure. The United Kingdom Government has put on hold plans to devolve reserved tribunals for the time being. I repeat—my first but not last repeat—that devolved tribunals account for only around 2 per cent of Scottish tribunals. Witnesses, including the Faculty of Advocates and Citizens Advice Scotland, recommended that those reserved tribunals also be included to ensure the effectiveness of the system and make the process clearer for the user.
On judicial leadership, we welcome the designation of the Lord President as head of the Scottish tribunals and agree that that would bring strong judicial leadership across the system. However, as I said, we had concerns about the appointment to the post of president of tribunals, which will happen through what I think is called the signing. I am not sure whether another term was used.
The president will be responsible for the efficient disposal of tribunal business. Currently, only a senator of the College of Justice can be assigned, but some witnesses felt that that was overly restrictive. I add that that does not in any way reflect on the proposed assignment of Lady Smith, Queen’s counsel.
We welcomed the bill’s objective to secure a greater degree of tribunal independence, which will be brought about by the new structure. That is particularly the case for valuation appeals committees and education appeals committees, to which I have referred.
Some witnesses raised questions about the nomenclature that is used to describe legal members of tribunals. I think that we made a bit of a fuss about that, but I just threw that bit in to see whether members were awake. The Lord President argued that legal members should be referred to as judges to afford them the same status as court judiciary. On the other hand, the Law Society of Scotland and Employment Tribunals (Scotland) argued in evidence that that would make tribunals too court-like. What was the word that we agreed on? I have forgotten. Was it “courtified”?
I will need to develop adjectives and adverbs now.
We concluded that how legal members of tribunals are referred to was a matter for individual tribunals to determine and therefore recommended that provision be made in the bill to give tribunals that flexibility. The bill also allows judicial members to act as members of the first-tier and upper tribunals, if authorised to do so. If members do not know what we are talking about with regard to upper and first-tier tribunals, they will need to look at the briefings on them, or somebody else in the chamber will explain—I am looking round at colleagues. [Laughter.] However, I am not too hopeful, given that sound.
We were concerned that allowing judicial members to act as members of the first-tier and upper tribunals would lead to over-judicialisation—I think that that is a word—of the tribunals and make them more formal. We were also concerned that the court judiciary might not have sufficient specialised knowledge and experience of tribunal work to carry out the proposed role. We were concerned, too, about the possible impact on the diversity of appointments to tribunals and that perhaps the current gender and other imbalances within the judiciary would be replicated. I think that Margaret Mitchell might develop that issue. I have a feeling that I have pressed a button there.
The committee concluded that the nature and characteristics of tribunals should be protected, but we recognised the benefits of the provision on membership of first-tier and upper tribunals. We therefore concluded that the provision could be applied effectively using the president of tribunals’ discretion, with possible consultation with the relevant chamber president. As I said, I will leave others to explain about chambers.
The definition of a tribunal is a tricky one. Because there is an issue about protecting the particular characteristics and nature of tribunals, a number of witnesses suggested that the definition of a tribunal should be included in the bill. I will give members an example, as I have 10 minutes for my speech. The Scottish Committee of the Administrative Justice and Tribunals Council has a definition of a tribunal:
“A body which resolves disputes between citizens and state and between private parties by making binding decisions according to law, does so by a process of adjudication which is specialised, relatively informal and less adversarial as compared to the model of adjudication applied by the courts and is independent of both the executive and the legislature and of the parties appearing before it.”
That is one proposed definition. I know that the minister’s response to the committee, which I have taken the trouble to read, referred to section 2(3) of the Tribunals, Courts and Enforcement Act 2007. Other members might wish to develop that point.
The bill’s challenge is to strike a balance between establishing a unified tribunal structure and retaining the unique features of tribunals of different kinds. It is also important to have the perception that that is being done. Some of our witnesses were concerned that the perception might be that all the tribunals were the same.
On practice directions—I am getting through my speech—we welcome the minister’s commitment to lodge an amendment to review the provision in section 68(5)(a) that enables the issuing of practice directions for the purpose of
“the application or interpretation of the law”.
We did not like that bit. If I remember correctly, the Lord President did not like it either, so I am in a good team in supporting that amendment.
Are members still with me? They are all awake, which is quite a big plus.
The committee supports the bill. We welcome its objectives of bringing about a greater degree of tribunal independence as well as ensuring the greater accessibility of tribunals to users. We identified issues that to some extent the minister has addressed. I am sure that other members of the committee are itching to pick up on some of the aspects of the bill that I have not had time to cover. I look forward to hearing other contributions in the debate and to the inventiveness of colleagues in trying to say something additional in the next two hours.
The Scottish Parliament has, over the years, debated many bills that have attracted significant media and public attention. Bills have given the entitlement to permanent housing to the unintentionally homeless, banned smoking in public places and foxhunting and, more recently, addressed climate change and reformed Scotland’s police and fire and rescue services. However, I do not think that the Tribunals (Scotland) Bill is one of those that will get everyone talking. As members have already said, it is relatively uncontentious in its general principles, although there are concerns about aspects of the detail, which I will come on to.
Despite the lack of major areas of discord, I found the committee’s three evidence-gathering sessions surprisingly interesting, although I cannot promise that either of my speeches—unfortunately, there will be more than one today—will be interesting to the same extent. However, I certainly thank the witnesses for their contributions.
In many respects, the bill mirrors the provisions in the UK Tribunals, Courts and Enforcement Act 2007, which applies to tribunals in England, and was introduced for the same reasons: tribunals have evolved through separate pieces of founding legislation; there is no coherent system of review and appeal; and there is a variety of processes for appointments and opportunities for training. The bill therefore aims to bring coherence to the devolved tribunals in Scotland, and to provide opportunities to benefit from shared good practice and expertise.
However, because the UK Government is not minded to transfer into the Scottish tribunals system reserved tribunals such as employment tribunals, immigration tribunals or the social entitlement chamber, the bill will apply to only a small percentage of tribunals in Scotland, as Christine Grahame said. One of the witnesses said that it was 2 per cent and another said that it was 3 per cent, so I think that is somewhere between 2 and 3 per cent. The vast majority of tribunals will remain within the reserved tribunals system.
Jonathan Mitchell of the Faculty of Advocates advised us that the proposed system will apply to around 4,000 cases annually in Scotland, while 60,000 will go through the social entitlement chamber, 20,000 will go to employment tribunals in Scotland, and 10,000 will go to immigration and asylum tribunals. At the moment, therefore, we are dealing with a small number of cases.
One of the issues that was brought to the committee’s attention was the fact that, as the bill will apply not only to existing devolved tribunals but—if and when they transfer—to reserved tribunals and to any new tribunals that we might decide to set up in future, it should, as has been said already, contain some form of definition of the character of a tribunal. Lauren Wood of Citizens Advice Scotland suggested that the bill could incorporate
“principles to help to guide tribunals, as there are in the Tribunals, Courts and Enforcement Act 2007”.—[Official Report, Justice Committee, 3 September 2013; c 3125.]
That might be a starting point for us to consider at stage 2 how the bill might be amended.
“Placing a principle in the bill ... would be a real improvement.”—[Official Report, Justice Committee, 3 September 2013; c 3216.]
Richard Henderson of the Law Society for Scotland advised that, when making reforms in different areas, such as civil courts and tribunals, we will have to ask ourselves about the linkage between them, and asking that question then prompts the question, “What is a tribunal?”
The argument for having principles that define the nature of a tribunal in the bill does not contradict the fact that the existing devolved tribunals have distinctive characteristics that the new system must preserve.
I wonder whether it would be helpful to look at the way that the Scottish Parliament information centre has described what a tribunal is. It seems to me that it captures it very well. It says very simply:
“most tribunals deal with disputes between individuals and the state”.
We should not, therefore, downplay the importance of tribunals because they are, ultimately, a quasi-judicial way for individuals to make sure that their rights are protected and that the state does not become too dominant. That is probably as good a definition as I have seen.
I thank the member for his intervention. That was along the lines of some of the suggestions that were made to the committee, and I think that we will be keen to pursue some of those later. Although we all think that we know what a tribunal is, that is not good enough when we are dealing with matters of law.
Witnesses who spoke to the committee were also anxious that tribunals’ specialisms should not be lost and that individual tribunals should be placed in the appropriate tier, pillar or chamber to ensure that expertise and character are maintained.
The policy memorandum that accompanies the bill states:
“The Scottish Government has made a commitment that initially mental health will be in a chamber on its own”,
which the minister referred to, because at the moment no tribunals cover a similar subject. The Mental Health Tribunal for Scotland itself is satisfied that the new structure will not compromise its expertise or ethos, or substantive mental health law. However, some witnesses felt that “initially” was an insufficient guarantee.
Adrian Ward of the Law Society pointed out that
“five years ago, a significant change in the status of the Mental Welfare Commission for Scotland almost slipped through in the context of the Public Services Reform (Scotland) Bill.”—[Official Report, Justice Committee, 10 September 2013; c 3166.]
The Law Society argues that the bill itself should state that the Mental Health Tribunal should be in a chamber of its own. Any change to that arrangement would therefore have to be made by Parliament, a stance that met with the agreement of Alan Gamble, who has been a convener of the Mental Health Tribunal.
I wonder—I have only just thought about this—whether there could be some form of compromise that would allow a change in status to be introduced through statutory instrument. That would mean that there would be parliamentary change, although amendment of the primary legislation would not be required. Perhaps we can look at something along those lines at stage 2.
The positioning of the Lands Tribunal for Scotland is also a matter of argument. As we have heard, the bill places the Lands Tribunal in the upper tier, which is analogous to the position of the Lands Tribunal for England and Wales under the UK Tribunals, Courts and Enforcement Act 2007. However, the Lands Tribunal for England and Wales is substantially an appeals body that deals in a large part with valuation appeals and therefore sits comfortably within the upper tier. The Lands Tribunal for Scotland describes itself on its website as
“in effect an independent civil court” that deals with disputes involving land or property.
Lord Gill told the committee:
“The Lands Tribunal for Scotland is a court of law in all but name”,
“has no appellate functions of any kind”,
and that appeals from it go to the Court of Session. He stated that
“The Lands Tribunal is not broken”—
I do not think that anybody was saying that it is broken; rather, there was discussion of the structure of the tribunals system itself—
“and does not require fixing.”
He believed that it should be left
“as a separate pillar of its own.”—[Official Report, Justice Committee, 17 September 2013; c 3195-6.]
The minister indicated that she was not supportive of that suggestion, for understandable reasons. It would appear contrary to the purpose of the legislation to bring devolved tribunals together within a coherent structure and then start to make exceptions and stick different tribunals outside that structure.
There might be a more fundamental question regarding whether the Lands Tribunal is, despite its name, actually a tribunal, which is where a definition in the bill could be of assistance. Despite its name, and despite its being one of our oldest tribunals, if it is, as Lord Gill advised, in “all but name” a civil court, perhaps it should be part of the civil courts structure rather than the tribunals structure. In that case, it could be argued that leaving it as a separate pillar until its status is resolved is a sensible temporary solution. That is something else that we may wish to return to at stage 2.
The bill also contains provision for tribunals to award expenses and charge fees. As members will know, that has been a contentious feature of employment tribunals, which recently introduced significant fees of £160, or up to £250 to lodge an appeal and, if the case goes ahead, a further £230 or £950. Those charges were subject to judicial review in the High Court last month as a result of a challenge from Unison.
The minister advised the committee that the provisions of section 70 were necessary because some tribunals already charge fees, and the Scottish Government’s solicitor, Michael Gilmartin, further advised the committee that any proposal to charge fees where they had not been charged previously would be required to come to Parliament for approval. My understanding is that that would be under the negative procedure, and it might be worth considering whether any proposals to introduce fees should be by affirmative rather than negative instrument, in order increase the level of scrutiny.
Section 59 will give tribunals the power to award expenses. Lord Gill believed that use of those powers would not be a regular event as expenses are not generally a feature of tribunal decisions, and that the power would be used only in exceptional cases. Section 59(3)(c) makes a curious reference to “wasted expenses”, which Lord Gill pointed out was not defined. I was relieved to hear the minister state:
“I am not quite sure what is meant by wasted expenses.”—[Official Report, Justice Committee, 17 September 2013; c 3214.]
I had no idea what the expression meant, either. I wonder whether, if it is used, we need to define it. The Government’s solicitor did not seem to be terribly sure about that either, although he said that a definition could be set out in procedural rules.
Section 68(5), which the convener of the Justice Committee has already mentioned, caused considerable consternation among witnesses, as it gives the president of the Scottish tribunals the power to issue directions, including instruction or guidance, on the application or interpretation of the law. The witnesses in question felt that it was quite inappropriate for the interpretation of the law to be made by a senior judge acting administratively rather than judicially. Fortunately, that turned out to be a drafting error that the minister intends to correct at stage 2.
Members might refer to a number of other issues that arose in our evidence taking, including the proposal for the sift of appeals to go to the upper tribunal and whether it was necessary to set the bar so high. The provision appears to have been based on the English and Welsh legislation, which was designed to exclude a flood of vexatious requests for review. Another issue was whether the first-tier tribunal should be able to refer a case to the upper tribunal not just on a point of law but on the whole case—facts and law.
Finally, the minister felt that salaried posts were unnecessary for the operation of the devolved tribunals but some witnesses argued that it would be helpful to put such provision into the bill in readiness for the transfer of reserved tribunals, which will generate a far greater workload and may necessitate the creation of full-time salaried positions. The committee agreed that the bill should allow for that possibility, should the need arise in future.
I am pleased to say that I have spoken for nearly 11 minutes and therefore say in conclusion that I am looking forward to the debate and our stage 2 discussions.
As tribunals form an important part of our civil justice system, I welcome the opportunity to speak in this stage 1 debate on the general principles of the Tribunals (Scotland) Bill.
Christine Grahame has already cited the Scottish committee of the Administrative Justice and Tribunals Council’s definition of a tribunal but I wonder, Presiding Officer, whether you would like to hear it, given that you were not in the chamber earlier.
According to that committee, a tribunal is
“A body which resolves disputes between citizens and state and between private parties by making binding decisions according to law, does so by a process of adjudication which is specialised, relatively informal and less adversarial as compared to the model of adjudication applied by the courts and is independent of both the executive and the legislature and of the parties appearing before it.”
Tribunals in Scotland deal with 80,000 cases annually. Without them, individuals would either lose an avenue for redress or be forced to take their grievances into a court system that is already overstretched and—I am sad to say—likely to become more so with the court closures that are planned.
In some instances, a tribunal is a forum for citizens to challenge decisions made by public bodies on their entitlement to benefits and services. Because of that, it is imperative that they are independent from Government and the public organisations whose decisions they regulate. In other cases, they are a forum for the resolution of private disputes—as we see, for example, in the Lands Tribunal for Scotland’s work—or issues arising from employment. In essence, tribunals offer a less formal and less costly dispute resolution mechanism as an alternative to the courts. However, as the Justice Committee heard from a wide range of witnesses, the current complicated tribunal system, which has developed in an ad hoc way over the past decades, needs to be reformed, and the committee’s stage 1 report confirms that users and experts generally welcome the bill as a step towards revising the administrative justice landscape.
The bill creates a first-tier tribunal for first-instance decisions; an upper tribunal to deal primarily with appeals; and a standard system of appointment, training and appeals. However, although all of that is generally to be welcomed, there are, as the stage 1 report notes, certain areas of concern that will need to be addressed as the bill progresses, including the balancing act that the Government will have to perform between establishing a simplified uniform system and recognising that tribunals deal with very specialised areas of the law.
That challenge was reflected in the evidence that the Justice Committee received from the Lands Tribunal, which is a vocal critic of the bill and the creation of a uniform system. In its written submission, it noted that
“to aim for common standards and procedures, including review and appeal, as a significant plank of policy risks creation of a serious impediment to identifying the most efficient way of serving the different needs of individual users”.
Consequently, the Lands Tribunal has argued that, instead of occupying a division in the upper tribunal as the Scottish Government has proposed, it should be placed in a separate pillar. Indeed, that position has been supported by the Lord President.
The difficulty with the Lands Tribunal for Scotland not being included in the new structure is the precedent that that would set for the approach to other tribunals that are equally specialist, which would result in a complex arrangement under the new system, representing not a lot of change. The challenge for the Scottish Government is to establish some standardisation without compromising the interests of users of the tribunal system. I note that the minister has recognised that with the requirement for flexibility.
The stage 1 report also highlights the legitimate concern that has been raised about judicialisation or so-called courtification. In other words, there is a need to ensure that the characteristics of tribunals, as distinct from those of courts, are protected. That concern springs from, among other things, the provision that sheriffs, sheriff principals and part-time sheriffs will be eligible to act as judicial members of the first-tier tribunal by virtue of their judicial office alone. Although the Lord President is supportive of that proposal, an influx of judges and former judges risks turning tribunals from informal and generally non-adversarial environments into courts in all but name. The Justice Committee’s stage 1 report therefore recommends that the Government seriously consider amending the bill to remove automatic entitlement in the appointment of judicial members. A further concern is that, because judicial members may be appointed to the first-tier and upper tribunals, the current gender inequality that is present in the wider judicial system may be replicated in the new tribunal structure.
The bill makes provision for the newly established Scottish Civil Justice Council to propose procedural rules for the Scottish tribunals through a specialised tribunals committee. However, without additional resources, it will be years before the SCJC, which must first rewrite a mountain of civil court rules, will be able even to consider tribunal rules. The Government has proposed that, in the interim, Scottish ministers should make rules for Scottish tribunals, but that interim rule-making arrangement poses serious constitutional issues, as it would result in Scottish ministers writing the rules of administrative justice and significantly drafting the rules surrounding the newly created upper tribunal. Although that may already happen on a limited basis, it remains, as the Faculty of Advocates pointed out to the committee, “undesirable on constitutional grounds”. As Jonathan Mitchell QC said:
“Scottish Ministers should have the same rights as other parties to proceedings before the tribunals to comment on proposed rules, but no power to write them.”
Scottish ministers can be challenged in tribunals, and it is simply not appropriate for them to be involved in setting the rules. An alternative must be found in either the creation of a new, independent interim body or the additional resources that the SCJC would require in order to carry out that role.
All those issues will require to be addressed in the future. In the meantime, I confirm that the Scottish Conservatives will support the general principles of the bill.
I am not terribly sure that I am delighted to be speaking here today, but it is my last hurrah as a member of the Justice Committee. There is an element of déjà vu about the debate. After the previous debate on the subject, my late colleague David McLetchie said to me on the way out of the chamber, “Colin, with all your wittering on about the citizens advice bureaux you’ve given me an extra two minutes for my summing up.” However, he still did not manage to fill his allocation of time, such was the agreement among members on the subject. I miss David and his humour—many of us do.
However, this debate is somewhat different. A number of eminent people gave the Justice Committee evidence, verbally or in writing, on the bill . The issues raised were quite fascinating, so I agree with Elaine Murray that aspects of the bill are interesting.
The tribunals are designed to provide an easier and less expensive method of justice for society, and we hope that that will carry on. Their set-up is such that, in some cases, it is not necessary to employ legal counsel, although we all know that tribunal cases can also become extremely complicated, so a lawyer is required in most.
As we can see from the concerns that were raised in witness statements to the committee, the possible judicialisation of management and procedure of tribunals is worrying, because it would mean that tribunals would be out of step in terms of accessibility. It has been suggested that tribunals might be subjected to what I think has been called “courtification”—according to my notes, the word was used by Christine Grahame, so it obviously cannot be wrong.
In broad terms, I agree with the committee in feeling strongly that individual aspects of the various tribunals—for example, the Additional Support Needs Tribunal and the Mental Health Tribunal—should not be lost within the new system. Under the bill, the Mental Health Tribunal will become an individual chamber within the first-tier tribunal and the Lands Tribunal for Scotland will also transfer. As several speakers have pointed out, Lands Tribunal cases can be incredibly complicated, so perhaps we need to consider whether it is not so much a tribunal as a court. I know that the complexities were described by the minister. Fears about loss of identity and loss of methods of working that have been gained over many years should be allayed.
Another concern that is highlighted in the report relates to the children’s hearings system, which has just undergone a period of reform. We should keep that in mind if further reforms are required, and we should try to avoid children’s hearings being included in the tribunals system. A power to make such a modification is given to ministers in section 26(2)(b), which requires that regulations that are subject to affirmative procedure be laid before Parliament. I have a lot of notes on that, but Margaret Mitchell has already kindly raised all those concerns, so I shall not mention them again.
No—I refuse to mention them again. Ms Grahame should just sit there. She has had her shot.
Anyway, use of affirmative procedure will provide some parliamentary protection.
The two-tier structure is quite interesting, given that over the months we constantly complained about people going into their silos and using all their own terminology. However, everyone seems to be in agreement regarding the two-tier structure and how it will work; it seems to be the right way. Again, previous speeches have explained the matter better than I could; members will not hear my description of it, as I hope to run out of time fairly shortly.
Much has been made about the suggestion by the Lord President that he would name Lady Smith as president of the tribunals. I welcome the clarification that has been provided by the minister that that is not an appointment but an assignment. That is important because that was, as far as I am aware, the first time we have heard that description. When the Lord President gave evidence, I accepted that Lady Smith is more than qualified for the post—I certainly would not argue against her credentials or suitability—but it seems to be a little strange to see a name being presented for the position before the legislation to establish the post is in place.
On the people who sit on tribunals, there were a number of comments, including on whether the term “judge” should be used to refer to the person who presides over the tribunal. In one respect, it may be useful to keep a clear distinction between a court and a tribunal—I understand that point and I think that it is quite important. Certainly, as a matter of symbolism, it is perhaps a better idea to lose the title “judge”. I will avoid using the quotations that three or four other members have used.
That leaves me to say only that, as Elaine Murray mentioned, the legislation deals with a relatively small amount of work, but at least—if I can be a little bit parochial—should we vote yes next year, we will have plenty of scope to bring the other tribunals into the system.
Sometimes it takes weeks to hear repetition in the chamber, but when it does we tend to think, “Oh, no! Not that again.” However, we are less than an hour into this debate and members should believe me when I say that they will hear much the same from me as they did from others, so I ask them to enjoy themselves and try to keep awake.
There is, so far, broad consensus on the bill, its principles and most of its proposed measures. That consensus not only applies in the Parliament; it applies among many who submitted their views and gave evidence. There were criticisms, but those had a sympathetic reception from the committee, which is keen to see them addressed as the bill progresses.
The advantages of reform of tribunals were acknowledged—those include greater economies of scale and sharing of good practice and resources—but there was also a strong desire to retain the special support and knowledge that are embodied in the current arrangements. Basically, we do not want to throw out the baby with the bath water. We want to keep the lay involvement, the less adversarial approach and the simpler and relatively informal user-centred nature of existing tribunals. I hope that those principles will be made explicit in the bill, with the fundamental characteristics of tribunals set out in it.
It was also felt to be important that the bill be drafted in such a way that reserved tribunals could be brought into the structure at a later date.
The Law Society of Scotland welcomes the bill, but has expressed concern about judicialisation of tribunals eroding their character. I agree that there is a danger that judicial members who would be appointed under the legislation would not understand the informality or the centrality of the user in the tribunal process. The committee has asked the Scottish Government to consider what additional safeguards can be included to avoid that. In particular, there must be a direction in the bill that the president’s discretion on appointments should be used to ensure that judicial members have the necessary expertise and understanding of the tribunal and its context.
Although many submissions suggested ways to improve the bill to protect the characters of the tribunals, some people were not convinced that that is possible. The Lands Tribunal for Scotland questioned the efficiency of the approach, and whether it would be able to adapt—without creating significant problems—to the one-size-fits-all structure. It put its case strongly, and the committee was persuaded to urge the Scottish Government to think again about its inclusion. The valuation appeals committee was also concerned about the impact of imposing age limits, which would see over half of its membership lost.
The Mental Health Tribunal also has unique characteristics, and there is support for its being retained in a chamber of its own. However, the worry is that that would be a temporary measure by the Scottish Government, so there must be long-term commitment to that arrangement for that tribunal.
The other big area in which reassurances are sought is the children’s hearing system. It has already been subjected to reform, which adds to the need for care when we are considering further change. It is important that regulations in respect of the children’s hearings system be laid under the affirmative procedure in order to ensure that there is adequate consultation and parliamentary consideration of proposals.
There are also various concerns about costs. Although we recognise that there is the potential to save money through elimination of duplication and adoption of common administrative and other resources, there will be costs involved in the transition. Long-term savings are one thing, but we should not risk being unsuccessful by trying to make the transition on the cheap.
Fees and charges are also important, as recent controversy over fees for the reserved employment tribunals has highlighted. Some devolved tribunals also have charges and fees. Therefore, provision for them has been included in the bill, but it is important to ensure that that does not open the door to new charges being imposed where none previously existed, and that it does not become a platform for significant increases in existing charges. The committee proposes that any such charges be subject to consultation of users and stakeholders.
Another issue that needs to be addressed is the enforceability of tribunals’ awards. More than 50 per cent of awards are not paid, or are not paid in full. As part of our discussions, we should consider how to address that.
Although I was not a member of the Justice Committee at the time, I spoke in the debate on the matter last year. I said that I was in favour of reducing overlap and eliminating duplication as long as the overlap and duplication are genuine and their elimination does not involve putting square pegs into round holes. We have had the consultation and the committee has considered the bill. My view is that such a reduction is the intention of the bill, but work remains to be done to ensure that it achieves that in practice.
I am content to support the bill at stage 1, but with my fellow committee members, I will look for significant improvements to be introduced at stage 2.
I welcome the opportunity to speak in the debate and I declare my interest as a member of the Faculty of Advocates.
As members are aware, the UK Government has announced that reserved tribunals will not be devolved to the Scottish Parliament, for the foreseeable future. That is disappointing in that it makes it a little more difficult to achieve the bill’s aims of streamlining the tribunals system in Scotland and making it more efficient. However, that is where we are.
Notwithstanding that, we need to ensure that the legislation will be fit to accommodate reserved tribunals in due course, but as Jonathan Mitchell of the Faculty of Advocates pointed out, without reserved tribunals, we are dealing with about only 2 per cent to 3 per cent of cases that come before tribunals in Scotland—much less if the Lands Tribunal for Scotland or, indeed, the Mental Health Tribunal for Scotland were to be excluded.
Much of the bill is technical and to some people—possibly even the convener, who I see has now left—it may appear to be dull, indeed. I accept that repetition may be the order of the day, but there are also a few matters that merit comment.
First, given the volume of mental health work and the fact that 332 of the existing 460 tribunal members who are covered by the bill sit on mental health tribunals, it seems to be sensible that the Mental Health Tribunal for Scotland should form a chamber of its own. Indeed, the proposals in relation to mental health were well received, with the exception of the possibility that the unique position of the tribunal as a separate chamber might be temporary. I note the Scottish Government’s response on that issue, but I am not sure that it will fully allay those fears. Further engagement with the sector on the issue might be helpful.
The second issue is whether the president of the tribunals should be a senator of the College of Justice, a judge or someone without such experience. I was not quite as enthusiastic as other members of the committee about opening up the field to others with relevant experience. If we are to move towards an integrated tribunals and courts system, it is inevitable that a judge—whether appointed or assigned—would be in an advantageous position.
The next issue is the absence of a definition of “tribunal” in the bill. Citizens Advice Scotland and others have called for incorporation in the bill of a definition and a statement of overriding objectives, such as that in the Tribunals, Courts and Enforcement Act 2007. I note the minister’s comments on that, but I hope that her consideration of the overriding principles will give rise to an amendment at stage 2.
I also welcome the statutory provisions that will place a duty on key individuals, including MSPs, to ensure the independence of tribunals.
Roderick Campbell quite rightly identifies the duty not to prejudice the independence of tribunals that will be placed on members of this Parliament. Does he regret the fact that paragraph 1(d) of schedule 5 to the Scotland Act 1998 means that we do not have the power to enforce a similar duty on members of the UK Parliament who represent Scottish constituencies, who will continue to be able, should they so wish—I do not suggest that they would—to seek to influence tribunals?
Thank you, Presiding Officer.
As always, Stewart Stevenson makes a very good point.
On procedural rules, particularly for the upper tribunal, the evidence said that the new Scottish Civil Justice Council could not deal with that in the short term. As Margaret Mitchell said, the Faculty of Advocates expressed concerns of a constitutional nature that Scottish ministers should not be making rules. Even though, as the minister said, Scottish ministers currently nominally write tribunal rules after consulting relevant parties, I believe that that is a practice that should be ended sooner rather than later, and I would welcome further assurances from the Scottish Government on that.
On accessibility, as Iain Nisbet of Govan Law Centre said, tribunals are more accessible than court. They are generally also much cheaper, so our aim must be to preserve that accessibility.
I turn to the Lands Tribunal for Scotland, the provisions on which remain one of the most controversial aspects of the bill.
No—I need to make some progress.
I agree. John Wright of the Lands Tribunal for Scotland made the point that it does not really fit in with the unified tribunal system that is proposed. He advised that in England and Wales, in contrast to the position in Scotland, the Lands Tribunal there is substantially an appeals body and therefore seems to have a natural position in an upper tribunal system.
John Wright also outlined the variety of expenses orders that currently prevail in the Lands Tribunal for Scotland. There are different expenses rules for compulsory purchase, rating and applications concerning title conditions. Those orders do not fit easily into a tribunals system in which expenses orders are a rarity. The prevailing ethos, at least in relation to title conditions matters that come before the Lands Tribunal for Scotland, is still that the winner gets his expenses. As an aside, in our review of title conditions, the committee expressed concerns about the implications of expenses orders, particularly as they impact on lowly home owners who are up against wealthy developers. The truth is that, particularly in respect of expenses, the Lands Tribunal for Scotland resembles a court.
As I have mentioned, the Lord President took the view, in evidence, that expenses orders in tribunal cases should be used sparingly and only in extreme cases. That does not fit in with the Lands Tribunal for Scotland. He argued for the Lands Tribunal for Scotland to be in a separate pillar with a separate administration. Although I accept the minister’s reservations about that and agree that if we were to make an exception for the Lands Tribunal, coherence might be lost, and that, devoid of the Lands Tribunal, the remaining tribunals might look somewhat sparse—I also note the minister’s comments on the appeals provision—I think that the characteristics of the Lands Tribunal are very different from those of other tribunals. It has had the power to award expenses since it started in 1949. Therefore, I believe that continued dialogue between the Scottish Government, the Lands Tribunal and others, even at this late stage, might be appropriate.
On the provision of permanent or salaried posts, at the present time I agree with the minister that that is difficult to justify, but I am pleased that the bill will provide for that possibility in the future.
I turn to the new interim committee that is to replace the Scottish Committee of the Administrative Justice and Tribunals Council, which was not mentioned in our report. The interim committee is to be welcomed, but I am not sure what the long-term solution is. CAS and others are concerned about the issue. They propose that some body should have the function of overseeing administrative justice, as the SCJC has in relation to civil justice. That idea merits consideration, and I will be pleased to hear from the minister on it.
Despite having a few concerns that we believe need to be addressed at stage 2, the Liberal Democrats support the bill in principle.
As others have said, the tribunals system can and should be reformed to ensure that it is fit for purpose. Historically, it has developed in a piecemeal manner. As a result, too often it seems disjointed and perplexing to legal professionals and lay people alike. The reforms will also secure the independence of tribunals—that is overdue.
Having a tribunal consider a case can be a defining, stressful and even traumatic time in someone’s life. Clear and consistent rules and procedures will help users—who often have no experience of the civil justice system and find it daunting—to overcome any anxiety and to access proper redress.
I will take the opportunity to highlight some of our reservations. They are key issues that we need to examine further at stage 2, to ensure that the tribunals system is sensitive, just and transparent.
At the end of the bill process, we want tribunals to be better placed to make decisions and reach the right conclusions. The intentions are good, but we must be alert to unintended consequences. We must be sure that the system provides greater depth of expertise—not a dilution of that—among tribunal members. That is why we must not allow the specialist knowledge and intrinsic character of tribunals to be eroded to the extent that they are indistinguishable from courts, which other members have touched on. The tribunals must continue to offer a comparatively faster resolution, at lower cost and in a less intimidating environment—be it a hospital or a community centre.
The focus on service users’ needs, the comparatively informal and inquisitorial approach to cases and the fact that lay experts sit alongside legal professionals all contribute to ensuring that tribunals have a distinctive role and a unique integrity. Concern has been expressed that the bill could compromise those qualities. The committee therefore suggested that the principles that underpin the tribunals system—the things that define it and set it apart from the courts—should be enshrined in the bill. I know that the minister is instinctively cautious, but I welcome the fact that she is willing to consider that further.
As other members have said, concern has been expressed about what has been described as the potential judicialisation of tribunals. The proposed merger of the tribunals system with the Scottish Court Service could lead to more judicial practices being rolled out in the tribunals system, if it is simply absorbed. Tribunal members might be referred to as judges, which we know would make many of them uncomfortable.
The Law Society is concerned that the value of the ability of first-tier tribunals to access the judiciary when making decisions will be undermined if judicial members do not have the necessary expertise. We need sufficient safeguards, such as the need for presidential discretion to be respected and for the relevant chamber president to be consulted when judicial appointments are made. In its report, the committee asked the Government to consider that, so I hope that the minister will reflect on it further.
Since the consultation on tribunals reform was launched, concerns have repeatedly been expressed about the Mental Health Tribunal’s future. That subject attracted by far the most comments during the 12-week consultation period. That tribunal is very different from the other devolved tribunals that are set to be transferred from 2015. It has immense power over the lives of some of the most vulnerable people in our society; it has the power to detain patients in hospital and to decide where they will reside. It can rule to give people treatment for mental illness against their will. As the minister said, it can also deprive people of their liberty.
The extremely sensitive matters that the Mental Health Tribunal considers mean that it must retain its existing highly specialised expertise and experience. However, the bill provides that it could—conceivably—become part of a multijurisdictional chamber in the future. I listened carefully to the minister’s speech and found some reassurance in it, but should we be satisfied with that tribunal being transferred into a chamber of its own in the first instance? The Scottish Government seeks to establish an overarching framework, but sufficient protections need to be in place for the Mental Health Tribunal. It is therefore right to consider further whether the tribunal should be guaranteed its own chamber through primary legislation. An amendment to its status would then require a further act of Parliament, which would allow for proper scrutiny and consideration. However, the proposal at the moment is to use regulations.
Vulnerable people, people on low incomes and hard-working families typically cannot afford to incur costs in accessing justice, so we must guard against that becoming the norm rather than the exception in the tribunal system. I welcome the minister’s commitment to considering whether the position can be strengthened at stage 2 in order to ensure that financial barriers to justice are not erected in the future.
We will listen closely to what the Government has to say on those issues as the bill progresses through Parliament. I am confident that we can work on them constructively. I hope that that approach will result in the bill striking the proper balance between the need to make the system more consistent and transparent and the needs of service users—those often vulnerable people whose needs must remain our focus.
I would like to start by taking a step back in history, although not, I fear, as far as my good friend Mr Stevenson has stepped back and probably will step back again. I want to take us back to the report by Sir Oliver Franks in 1957, which was the result of the Crichel Down affair, as some may remember. It said:
“Since the war”— that was the second world war, of course—
“the British electorate has chosen Governments which accepted general responsibilities for the provision of extended social services and for the broad management of the economy. It has consequently become desirable to consider afresh the procedures by which the rights of individual citizens can be harmonised with wider public interests.”
At the bottom of that page, it says:
“But over most of the field of public administration no formal procedure is provided for objecting or deciding on objections. For example, when foreign currency or a scarce commodity such as petrol or coal is rationed or allocated”— those are signs of the times—
“there is no other body to which an individual applicant can appeal if the responsible administrative authority decides to allow him less than he has requested. Of course the aggrieved individual can always complain to the appropriate administrative authority, to his Member of Parliament, to a representative organisation or to the press. But there is no formal procedure on which he can insist.”
We can note that, within the lifetimes of most of us, I suspect, the world has moved on and that, by and large, formal procedure exists. As the minister has previously pointed out, each part of that procedure has been set up by its own act of Parliament, and, of course, came with its own set of rules, caveats and ideas at the time.
In his next chapter, Sir Oliver Franks made it quite clear that the aims of tribunals are pretty clear, and I would like to dwell on that point. First, he pointed out that Parliament must have required good administration. That is what they are there for. Secondly, he noted that they must embody “Openness, fairness and impartiality”.
As someone who was not on the committee, I want to step back and look at tribunals from the point of view of the individual who will appeal to them. What that individual wants is pretty simple: a tribunal that works. He or she wants to be treated with respect, and they definitely do not want to be overwhelmed by the other parties. I have to concur with Christine Grahame’s earlier comments about education appeals, with which I had to deal in my time as a councillor. There seemed to be complete inequality between the two sides, with the council being seriously overrepresented.
The individual wants to be heard, of course, but they need to be listened to, and they want the issues to be considered.
The individual wants all that to happen pretty soon—that is important. The individual also wants the correct law to be applied, and the decision to be issued swiftly and actioned accordingly.
All of that is pretty much straightforward stuff, and I do not expect it to be remotely contentious. If we remember that that is what the tribunal should deliver, we will also note that the individual is, by and large, not concerned about titles. He or she really does not mind whether the person is a judge in description or whether that judge wants to be called a judge. That is of no concern. Indeed, the whole process is of no concern, provided that it is fair. The individual most certainly wants to avoid costs, delays, uncertainty and error. That, of course, is precisely what the system is supposed to provide.
What do tribunal members want? What do those who take part in the process and bring expertise to bear want? They want a process that can provide them with all the evidence, so they want it to be properly organised. They want the relevant parties to be there, so they certainly want the process to appear to be a legal one that people turn up for—people should not just decide whether or not they will bother to turn up. Tribunal members want somewhere appropriate to meet, of course, and they would like the occasional cup of coffee. Some will need to do site visits. Those who are seriously engaged in land issues may need to go and look at the ditch that is being complained about. They also want—this is important—a proper exposition of the law. That is why they want a legally qualified representative, at the very least.
I suggest that they also want an opportunity to deliver their judgment quickly. They want good leadership for the whole process, which is why I concur with those who feel that having the Lord President ultimately in charge is an extremely good thing—judicial oversight seems right. Of course, they want an organisation, and it is with that organisation that the bill is really involved. Plainly, each tribunal can operate separately—they have done so—but in so doing they miss economies of scale and cross-fertilisation, and they all have their own way of doing things, which can sometimes be unhelpful.
Our experience is that sensible rules of life are not complicated. I cannot help but feel that anybody who has ever convened a meeting in the Parliament knows perfectly well that we have a set of rules of procedure but, actually, if we just get on with it in the normal sensible way that human beings do and respect the chair, everything will more or less work. I note Margaret Mitchell’s concerns about rules, but I seriously suggest that we can get overly taxed by rules. I think that we have far too many and that we believe that everything needs to be written down. The basic rules of administrative law, which I am afraid come in Latin—the nemo judex rule and the audi alteram partem rule—are simple descriptions of what we have to do to do things fairly. I feel that a substantial rulebook on how a tribunal will work needs to be justified, and probably is not.
Some feel that the newly set up Scottish Civil Justice Council should produce the rules for tribunals. Perhaps it should, but I wonder whether the council should produce the same set of rules for tribunals and all our courts, because I have a sneaking feeling that most of the rules are precisely the same regardless of where someone is in the system.
I hope that it is not unkind to note that the number of people in the public gallery has dwindled somewhat as the afternoon has gone on. I would like to think that that is because of people’s travel commitments rather than the nature of our business this afternoon. There is no doubt that tribunals are a somewhat unattractive subject matter for many people in public life and for the general public. However, having been fortunate enough to hear evidence on the bill in the Justice Committee earlier in the year, when I was a member, it is evident to me that the tribunals that oversee matters on behalf of the public across Scotland provide a service that individual citizens value greatly and from which they expect a great deal.
We have heard that about 80,000 cases are conducted by various tribunals in Scotland each year in pursuit of justice. The sheer volume of cases is indicative of the challenges that individual citizens face as they approach tribunals for adjudication. There is a David and Goliath aspect to the experience in a tribunal, as an individual member of the public tries to understand their rights and how matters have been decided on, and as the tribunal tries to explain, on their behalf, whether the person has certain rights or the reasons why they cannot access them. To that extent, it is welcome that the Scottish Government is, through the bill, attempting to clarify the process in tribunals across the country and to bring some order to the way in which they conduct their business.
As a young student, I conducted a course in constitutional and administrative law as part of my degree course at the University of Glasgow. In those years, I was in danger of being overcome by the sheer volume of information and the complex nature of tribunals. It is sobering to realise that now, as a grey-headed member of the Parliament, I am still in danger of being overwhelmed by the complexity and sheer volume of information.
The appointment of the Lord President to oversee the implementation of the new bill is to be welcomed. He will provide leadership and vision in taking forward the future for tribunals across this country and will represent the interests of tribunals to Scottish ministers and the Parliament.
The member will recall from his studies the Courts Act 1672, which shows quite clearly that this is not a new problem. This is more or less the whole act. It states:
“That it be left and recommended to the Judges of that Court to regulat the inferior officers therof and order every other thing concerning the said Court”.
Therefore, a few attempts have been made in the past. It is interesting that, even after hundreds of years, we are still dealing with the same subject.
Very much so.
Some of the debate in the Justice Committee indicated that there were those within the tribunal environment who believed that, through experience and time, they had come to understand what was good for us all. I think that each of us in the chamber realises that, as much as we do not need too many rules, it is important that we write some rules down that we can all acknowledge as delivering a clear outcome.
The Lord President’s second responsibility is
“securing the efficient disposal of business”.
With over 80,000 cases going through tribunals, it is evident that the efficient disposal of business is important not only for the financial wellbeing of the Government in supporting tribunals but for the individual clients who are trying to get their cases through the tribunal process.
In the context of the requirement to secure the efficient disposal of business, I hope that fees will not become an attractive new way to generate the finance that is required to support tribunals. As Ms McInnes said, many people who access tribunals have virtually no money. Indeed, a person might approach a tribunal precisely because they are in dire circumstances. In such circumstances, to charge a fee would be to deny people justice. I am heartened that there is an indication that the Government understands that, and I hope that that will be reflected in the bill that we pass.
I want to mention three more issues. First, the definition of “tribunal” is worth reviewing, to see whether it can be clarified. Secondly, in relation to schedule 7, which sets out how members will be appointed, concern was expressed in the Justice Committee that the disbarring of members who have reached the age of 70 from continuing in their appointment might well create a vacuum in tribunal membership and in the experience that is necessary in that regard. The issue has not been mentioned today and perhaps it has been addressed since I left the committee. I hope that the Government takes account of those concerns.
I am conscious of time, so I will end my speech there.
Last night I spoke in the second debate this week on women’s issues and suggested that the debate’s title should be taken from the popular song, “Sisters are doin’ it for themselves”. I am afraid that I cannot come up with a catchy title for this debate. Perhaps someone else will do so.
I thank the minister and members for their comprehensive speeches, which I think have covered most of the areas. Nevertheless, I will do my best to give some background information on the reasons for reform and the bill’s key aims.
The Tribunals (Scotland) Bill was introduced on 8 May to create the framework for a new structure and organisation for the devolved tribunals in Scotland. Once an act of the Scottish Parliament, it will provide for the establishment of a first-tier tribunal and an upper tribunal for Scotland.
The policy memorandum explains that devolved tribunals
“have been established in an ad hoc fashion, with no common leadership, appointments, practice and procedure or reviews and appeals”.
It notes that such a complex and fragmented system can lead to a “narrowness of outlook” and variation in standards and performance.
The bill creates a structure that will reduce overlap, eliminate duplication, ensure better deployment and allow for available resources to be shared more widely, as a number of members have mentioned. It is intended to create a system that will improve the independence—and the perception of independence—of the devolved tribunals.
The policy memorandum overview states that the bill
“will create a simple two-tier structure—a First-tier Tribunal for first instance decisions (into which most tribunal jurisdictions will be transferred) and an Upper Tribunal (where the primary function will be to dispose of appeals from the First-tier)—-under the leadership of the Lord President of the Court of Session.”
All the members who have spoken so far in the debate have welcomed that decision, as has the committee. The bill follows the Philip report and the Scottish Committee of the Administrative Justice and Tribunals Council’s 2011 report.
I turn to some of the issues that the committee raised. We considered the judicial system and the idea of judges being salaried, which has been highlighted by Elaine Murray, Rod Campbell and a number of other members. The committee said that we should look at that issue, and its report states:
“The Bill makes no provision for the appointment of full-time salaried judges in any of the tribunals envisaged by the Bill. A number of concerns were therefore raised regarding this perceived gap in the legislation.”
The report goes on to note that the minister’s reply
“was not entirely in favour of this suggestion, noting that ‘it would be difficult to justify the need for full-time permanent judiciary’ as ‘you would be paying salaries to people who would not necessarily be’” there all the time.
During the bill process in committee, I noted the knock-on effect for the financial memorandum of that particular recommendation. Perhaps the minister can go into more detail on that issue, because we need to know what effect the committee’s recommendation for salaried judges for tribunals would have in monetary terms and for the financial memorandum for the bill as a whole.
The committee recommended that the Government should resolve the delay in
“the production of rules for the Upper Tribunal” as a matter of urgency, and a number of members have raised that point today. The committee also recommended that the Scottish Government should set out a definition of a tribunal in the bill in order to protect the character and nature of tribunals. It recommended that, where a tribunal proposes to introduce fees and expenses for the first time,
“consultation should be carried out with users and stakeholders of the tribunal”.
I note the minister’s comments on those recommendations and others. They are most welcome, but if she feels that she wants to go into further detail in summing up, that would be welcome too.
As has been said, a lot of people go to tribunals but do not necessarily go to court. A lot has been said on that—Nigel Don mentioned that it is part of the legal system and that people who sit on the tribunals perceive them to be part of the judicial system. With regard to the recommendations on people being called judges or judiciary, I think that, as the bill goes through further stages, it will become easier for ordinary members of the public to understand the tribunals system. We are trying to set up a system with no duplication and to give ordinary members of the public who go to tribunals a better understanding and enable them to find out what they are all about so that they get a better service.
The Justice Committee described the bill as
“a welcome development in revising the administrative justice landscape.”
We have certainly heard about the varied tribunals that are covered in that landscape, the 80,000-odd cases that they deal with and the fact that that is a small percentage of the overall number of cases—between 2 and 3 per cent—because the rest are covered by reserved tribunals.
I am grateful to the witnesses for the evidence that they gave and to the organisations that provided briefings. The briefing from Citizens Advice Scotland says that tribunals are the facet of the justice system that people are most likely to access. If people are going to access tribunals, they must be accessible and I concur with CAS and others that the purpose of tribunals should be on the face of the bill. Citizens Advice Scotland suggests various principles to ensure that the practice and procedure of tribunals is accessible, such as placing users at the core of tribunals. The policy memorandum says:
“The Bill has no differential impact upon island or rural communities.”
That will be the case, but I hope that technology can be embraced, in conjunction with the courts and public services, to ensure accessibility.
CAS says that tribunals should be fair, expeditious and just. That will require adequate resourcing. Like many members, I do not favour the resourcing coming by way of fees, which would affect people’s access. CAS also suggests that a safeguard must be provided to ensure that the spirit of tribunals and the distinctive nature of individual tribunals will be maintained. Many speakers have covered that point. We know that there is a unique range of not only subjects but manners in which those subjects are dealt with. CAS says that the bill should provide a framework of defining principles to frame the development of new tribunals. We have heard from the minister that there is a feeling that the framework is adequately loose—if I can use that term—to absorb future tribunals.
The principles that CAS suggests would help to mitigate the lack of detail about procedure on the face of the bill by guaranteeing a minimum standard to which all Scottish tribunals should operate. Its suggestions are not at all unreasonable and I hope that they can be considered.
Much has been made of the special case that the Lands Tribunal for Scotland believes that it is. That is certainly not my view. It said that it does
“not really fit in with the scheme.”—[Official Report, Justice Committee, 3 September 2013; c 3112.]
In a written response, the minister told the committee that all the tribunals are unique; I would not place one above any of the others. The Mental Health Tribunal for Scotland has been referred to—it can deprive someone of their liberty. There are also challenges associated with the additional support needs tribunal. All the tribunals are important and should be treated similarly.
The committee’s view on the postponement of the inclusion of reserved tribunals is that it would welcome the inclusion of the other tribunals, although our report acknowledged that this is something that
“is not entirely in the hands of the Scottish Government”.
I do not think that it is in the hands of the Scottish Government at all. The report went on to urge the Scottish Government
“to work with the UK Government to ensure ... early progress”— we have heard that those discussions are on-going—
“and to examine closely whether the Bill as drafted will create any barriers to the future inclusion of reserved tribunals”,
not that we identified any.
I welcome the significant role that tribunals play in civic Scotland and the oversight provided by the Lord President. My early intervention on the minister about the appointment of the tribunals president is not about an individual—far from it. The Scottish Government’s response to the committee’s report says:
“The position is not a stand-alone appointment—it is an assignment by the Lord President. ... The President of Scottish Tribunals has to be a senior person from within the Lord Presidents judicial complement as they will have the responsibility for managing the Upper Tribunal which will be made up of Senators, Sheriffs Principal and Sheriffs as well as Chamber Presidents”.
There is a debate about appointment versus assignment. How does someone become assigned? Roderick Campbell talked about opening up the field, but how do we do that if we do not know the field’s boundaries? I do not think it is unreasonable to ask for a job description which, in many respects, is given in the Government’s response to the committee. Public appointments should have a post and person specification. It is not about personalities but about public confidence and about judicial and senior circles in Scotland not being seen as some sort of exclusive club. The committee commended the idea of extending the pool of eligible candidates.
I welcome the minister’s response on the use of the term “judge”. We want the tribunals to act independently and make their own decisions, but implying wigs and gowns might be intimidating and off-putting to tribunal users. I think that that is the case. The tribunal should be a forum for the lay person, but that certainly is not my experience of employment tribunals. I go along with a lot of what Elaine Murray said about the changes that have taken place there, and I would add to that the issues of increased qualifying periods of one to two years, the fees, reduction in compensation and judges sitting alone. If we come to inherit the employment tribunal, we would be going to what has certainly become a different beast in recent years. I think that there would be an opportunity for the Scottish Parliament to reinstate some of the fairness and opportunity with control of employment law.
The issue of specialisms has been mentioned. There is another human resource term that should apply, which is succession planning. The explanatory notes to the bill state that
“the Mental Health Tribunal for Scotland ... currently has 332 members ... the Scottish Charity Appeals Tribunals ... has 19.”
Further on, table 3 refers to:
“Projection of number of members approaching 70, and number of resignations”.
I certainly do not favour age discrimination. I think that people should hold a job on the basis of competence. One of the ways to deal with the issue is not to invest specialism in individuals but ensure that knowledge is widely spread by having succession planning systems.
I will conclude by again mentioning Citizens Advice Scotland, which said something that I think we can all go along with: the needs of the user must be placed at the centre of the process. I am certainly very happy to support the bill at stage 1.
Before I contribute to this fascinating debate, I cannot help but think that on this occasion, as on past occasions in the chamber, we would surely by now have been treated to some mirth and devilment from our former colleague David McLetchie, who was also mentioned by my colleague Colin Keir. I am certain that David would have enjoyed the proposition that tribunals were a place where justice could be determined without the necessity for lawyers to make an appearance. Similarly, I think that we would have listened in reverential silence to the wit and wisdom of our own Brian Adam, an experienced voice in the Parliament, guiding us through a process such as this with a steady hand and some gentle reasoning. They were two great members of the Scottish Parliament, who are sadly missed.
While reviewing the papers for the debate, I thought that a good place to start might be to ask a fairly simple but fundamental question: what exactly is a tribunal? I know about tribunals from past experience, of course, but I naively expected that a bill on tribunals making its way through the Parliament might define what tribunals were, or would be. Were we about to legislate on something that we were not going to define? Nothing is ever quite that simple, of course. The evidence at committee about the distinct nature of tribunals appeared to suggest that attempts to define what they were could lead to a loss of uniqueness. Thankfully, however, the committee did not buy that argument and has asked the Scottish Government to set out a definition on the face of the bill. In its response, the Scottish Government appears to be happy to define the principles for tribunals along the lines of those included in the Tribunals, Courts and Enforcement Act 2007.
There might have been some misunderstanding about the bill’s proposals and the purpose of introducing the bill. As I understand it, creating a unified tribunal structure offers us the best of both worlds. It will be a system in which the public can expect consistent processes and procedures, with consistency and quality of expertise being available, while at the same time it will ensure that the specialisms of some tribunals, such as the mental health tribunal and the additional support needs tribunal, remain in place.
Yes, of course, there must be a careful balance, but the committee seems to be confident that that can be achieved. From what I have read, the current tribunal system is mainly ad hoc with little common ground in leadership, appointments, procedures, reviews and appeals, and the bill aims to address those concerns. By doing so, it should ultimately deliver a better system for the public.
I will pick out a few important elements from the bill that merit further mention. On the independence of tribunals, it should be welcomed that the bill proposes a statutory obligation to ensure that tribunal hearings are heard by people who have no links to the body that they might be challenging. That seems an obvious requirement, but it has not always been guaranteed. For example, there have been occasions on which appeals on educational placing requests have been heard by people who were appointed by the education authority. The guarantee in the bill will surely provide greater comfort to appellants.
The provision relating to appeals and reviews generated differing views on the committee. For me, the provision was less than clear, and still needs a bit of work. I note that first-tier and upper tribunals may review their own decisions and that appeals may be lodged from one level to the next one up and on to the Court of Session. However, Jonathan Mitchell QC warned against making the grounds for appeal overly restrictive because a person who wins a first-tier appeal might have it overturned by the upper tier and find themselves unable to challenge that decision at the Court of Session because of restrictions that have been imposed. I hope that we end up with an appeal and review process that does not diminish the appellant’s right to challenge perceived injustice simply because of the imposition of strict rules. From what I can see, the committee took the reasonable step of asking that this aspect of the bill be kept under review.
The submission from the Lands Tribunal for Scotland made the case that it should be excluded from the provisions of the bill because it has been operating quite successfully as a court for many years. However, I note the minister’s comments that that would probably defeat the overall aims of the bill and create an anomaly at the outset. The Lands Tribunal, which is highly regarded, would sit comfortably within any new system that had improved systems and processes at its core. The Scottish Government’s response reflects that, and the Government intends to transfer the Lands Tribunal to the upper tier.
Because of the expert nature of its considerations, the Mental Health Tribunal for Scotland made a strong case to be retained within its own chamber. My understanding from the Scottish Government’s response is that that will, indeed, be the case.
On children’s hearings, there was some concern from the children’s reporter and Scotland’s Commissioner for Children and Young People about a possible transfer to the tribunals, particularly since the system has only recently been reformed. However, it has to be said that the SCCYP and children’s reporter were not opposed in principle. The bill appears to contain sufficient safeguards that require the Scottish ministers to undertake the necessary consultation in advance of laying any further regulations before Parliament.
Scotland’s tribunal system offers our people access to justice in an informal setting while safeguarding the rights of ordinary people who feel that they have suffered an injustice. It is right for the Scottish Government to modernise the system, make it simpler, more consistent, and easier to access. It is also right for us to carefully establish the ground rules for reviews and appeals, but always with the rights of the public in mind so that justice is served first and always. The new system will need time to settle in and, in due course, it will clearly be in a position to absorb those tribunals that are currently reserved by the UK. With that, Presiding Officer, I am happy to support the Government’s motion.
As Christine Grahame nearly said, it is a pleasure to take part in a debate on stage one of a justice bill on a Thursday afternoon.
Willie Coffey and Colin Keir mentioned much-missed members of the Parliament who are no longer with us and, of course, when the late great Donald Dewar advocated devolution at Westminster, he always listed as one of the causes for that change the fact that there was simply not the time or the opportunity to update Scots law and the Scottish legal process in the way that we would all have wanted. That is something that we are addressing now.
Finding parliamentary time to debate such matters is no longer a challenge. The real challenge is not, as some members have suggested, to fill in the time that we have found. It is to get the process of reform right when have the time to do it.
As has been said, tribunals deal with more cases in Scotland each year than the criminal and civil courts put together. The most striking thing about the Justice Committee’s stage 1 report is its view that the bill still has some way to go to get it right.
It is agreed that tribunals will be more accessible and better understood if they operate in a common framework and the bill’s general principles command broad support. Of course, the Conservative-led Westminster Government might argue that it is enacting the same general principles in its reform of UK-wide tribunals, but some of its reforms do not command broad support.
Employment tribunals appear to be under attack for political reasons. In Scotland and across the UK, working people are less likely to seek redress against unfair treatment at work because of the introduction of fees. The statistics, albeit that they are only for the first few months, suggest that already there is a fall in the number of cases brought, in particular those brought by individual employees rather than those brought by several workers or their trade unions on their behalf.
That matters for two reasons that are relevant to the bill. First, the introduction of fees in employment tribunals is arguably a matter of procedure rather than statute, and procedures in Scotland, even for UK tribunals, are defined in terms of the law of Scotland. There might therefore be implications for devolved areas. I would be interested to hear the minister’s view on whether more might have been done to debate the issue here before we all gave legislative consent to the relevant Westminster legislation.
Secondly, the bill creates a mechanism to allow the Scottish ministers to introduce fees and charges for use of tribunals in devolved areas, including tribunals where—as John Pentland said—no such fees apply at present. That provision has rightly caused concern to members of the Justice Committee.
As the Faculty of Advocates commented, imposing fees on users of, for example, the Mental Health Tribunal would be “unthinkable”, yet it would be possible under the bill as it stands. The intention to require an affirmative resolution before fees could be introduced is welcome, but the committee is right to call for wider consultation to be required before any such resolution is passed. It is hard to see why an existing power for some tribunals to charge fees should require provision for other tribunals to be given the same powers, unless it is in pursuit of uniformity for its own sake. The parallel reforms of UK tribunals have brought in fees in a way that tilts the balance of the tribunal system against users and the bill must be proofed against that outcome.
The fact that there is a parallel process is itself a cause for concern. One of the distinctive features of the Scottish justice system is that there are areas where justice is done without too much reliance on courtrooms, lawyers and formal proceedings. Children’s hearings are the best example of that, but many other tribunals work because they retain a user-friendly informality that we should work hard to protect.
The committee raises a number of concerns about the risks of turning tribunals into something more like a formal court of law. The merging of the UK Tribunals Service with Her Majesty’s Courts surely runs the risk of the judicialisation of those tribunals, and I am sure that the Scottish Ministers will think long and hard about how to maintain the distinctiveness of Scottish tribunals, if indeed they follow the UK Government’s model of administrative rationalisation, as proposed in their consultation earlier this year.
Children’s hearings are also an area on which the Justice Committee sounds a note of caution. In the last parliamentary session, ministers came perilously close to damaging what was most Scottish and most valuable about the Scottish approach to young offenders: children’s hearings that are centred on the child, rather than youth courts focused on proving guilt. Happily ministers came back from that particular brink, but there has to be a real concern about ministers pushing children’s hearings into a tribunals service straitjacket, which could put their distinctive character at risk again.
Likewise, as a number of members said, the distinctive character of the Mental Health Tribunal for Scotland needs to be protected. The decision to treat it as a stand-alone chamber is welcomed, but the commitment to protect its distinctive role needs to be given greater certainty in the medium to longer term.
“a court of law in all but name”—[Official Report, Justice Committee, 17 September 2013; c 3195.]
and said that it was “not broken” and did not need fixing. The Lands Tribunal itself is against being pulled into the new system and, indeed, it appears that no one is particularly keen to do so, except ministers. We should not allow that to happen, simply because its standing alone as a separate pillar prevents everything from being the same. Clearly everything should not be the same. A common framework should by all means be created where appropriate but the urge to make all our tribunals fit precisely into a single template should surely be resisted. The important question is how things work in practice and I hope that ministers will listen to the concerns that have been raised and, as has been said, amend the bill to make it fit for purpose.
As one of the last speakers in the open debate—and especially as someone who has not had the benefit of having listened to the evidence gathered by the committee—I apologise in advance for any repetition that members might be about to hear. In light of that, I suggest another answer to Sandra White’s search for a song title: the Average White Band’s “Let’s Go Round Again”.
It is important that we highlight why the bill is necessary. The bill’s policy memorandum notes that devolved tribunals have
“been established in an ad hoc fashion, with no common ... leadership, appointments, practice and procedure or reviews and appeals”.
Such a complex and fragmented system can lead to a
“narrowness of outlook” and
“variation of standards and performances”,
and the bill creates a structure that
“will reduce overlap, eliminate duplication, ensure better deployment and allow for the wider sharing of available resources.”
It is intended to create a system that improves the independence—and the perception of independence—of the devolved tribunals.
The overview in the policy memorandum makes it clear that the bill will create a simple two-tier structure: a first-tier tribunal for first instance decisions and an upper tribunal where the primary function will be to dispose of appeals from the first tier. In its 2011 report, “Tribunal Reform in Scotland: A Vision for the Future”, the Scottish committee of the Administrative Justice and Tribunals Council defines a tribunal as:
“A body which resolves disputes between citizen and state and between private parties by making binding decisions according to law, does so by a process of adjudication which is specialised, relatively informal and less adversarial as compared to the model of adjudication applied by the courts and is independent of both the executive and the legislature and of the parties appearing before it.”
The 18 devolved tribunals all have different powers and processes, and they deal with a range of different subject matters from compulsory treatment orders under the Mental Health (Care and Treatment) (Scotland) Act 2003 to adjudicating on disputed parking tickets. The proposed changes in the bill apply only to those tribunals, and not the two dozen that operate on a Great Britain basis and which cover a whole range of subjects from criminal injuries to social security and child support appeals.
The bill’s aim is to change the current tribunal system to make it less complicated, more independent and more user-friendly, and it will create a new structure for devolved tribunals, a new leadership structure under the Lord President, a new office of president of Scottish tribunals, a new process for appointing tribunal judiciary and a new process for making tribunal rules. As for the user, the bill will give them access to a more coherent tribunal structure, will take appeals out of the court system, will put in place a common procedure for appointments, complaints and disciplinary processes and, more important, will despite the changes give access to the same specialist members, venues and staff.
The bill has been generally welcomed as an improvement on the existing system. According to witnesses, the benefits of the new system include providing the
“opportunity for generic training”
“dealing with questions about the conduct of tribunal judges” and
“sharing the expertise that has been gained from the tribunals.”—[Official Report, Justice Committee, 3 September 2013; c 3116-7.]
The bill will also
“give coherence to what already exists.”—[Official Report, Justice Committee, 10 September 2013; c 3160.]
Citizens Advice Scotland—which, having represented 5,500 clients in civil court and tribunal cases in 2011-12, has a wealth of experience in supporting and representing clients—believes
“that the proposed structure is an improvement on the existing” system, and Govan Law Centre noted that an existing benefit of tribunals is that they are more accessible than going to court. It concluded that
“the primary benefit” of the new structure
“from a user’s point of view is that those advantages will be extended to the first tier of appeals.”—[Official Report, Justice Committee, 3 September 2013; c 3129.]
The Scottish Independent Advocacy Alliance, whose members have supported many individuals in mental health tribunals, welcomes the bill’s proposals, which, it said,
“aim to provide consistency in practice and procedure.”
If we are to provide consistency in practice and procedure, we must examine the position of all tribunals that operate in Scotland. The Justice Committee’s recommendations recognise that, and its second recommendation states:
“We concur with the position that, for this process to be most effective, reserved tribunals in Scotland should be included within the new structure. We note that this issue is not entirely in the hands of the Scottish Government but we urge it to work with the UK Government to ensure that early progress can be made on this matter. In doing so, we call on the Scottish Government to examine closely whether the Bill as drafted will create any barriers to the future inclusion of reserved tribunals.”
In ensuring that all tribunals that operate in Scotland abide by the same standards, we must consider accessibility. In assessing the position south of the border, Sir Andrew Leggatt stated:
“It should never be forgotten that tribunals exist for users, and not the other way round. No matter how good tribunals may be, they do not fulfil their function unless they are accessible by the people who want to use them.”
The policy memorandum states that an intention of the bill is to facilitate improvements in the quality of services that are offered to users of tribunals. That need was also identified by several witnesses. The Additional Support Needs Tribunal for Scotland noted that
“our concern must be the tribunal user, to whom the primary benefit must apply and who must be at the heart of the system”.—[Official Report, Justice Committee, 3 September 2013; c 3116.]
The bill is the right way forward in bringing tribunals into the 21st century and providing the accessible, straightforward, independent and user-friendly service that we want for our country.
Some of us had forgotten that political debates are over not when everything has been said but when everyone has said it, the most recent of whom was Gordon MacDonald. However, I hope to avoid that particular trap.
It is worth going way back to where tribunals came from—the tribuni plebis. Following a battle in 494 BC, the legionaries refused to go out and fight for Rome. To buy them off, the plebs were given the right to elect plebeian tribunes, who were made sacrosanct while they held office. The tribune was the principal and guarantor of the civil liberties of the Roman citizens against arbitrary state power. That is a pretty good basis for what tribunals are.
“And thir persounes to be sworne to minister Justice equaly to all persouns in sic causis as sall happin tocum before thaim with sic vther rewlis and statutis as sall pleise the kingis grace”.
That is how the constitution worked in those days, so a lot of what we are discussing today just ain’t new—we have looked at it many times over hundreds of years.
In the 1600s, there was considerable debate about the divine right of kings versus the power of the people. In an attempt to reassert the divine right of kings, the Crown Appointments Act 1661 declared:
“That it is an inherent Priveledge of the Croun ... to have the sole choise and appointment of the Officers of Estate”—
“and privy Councellors and the nomination of the Lords of the Session”.
Fortunately, we have moved on from that.
I may blunder, but I was not aware that the divine right of kings pertained to the Scottish kings. I thought that it was an English concept and that Scottish kings were appointed by leave of the Scottish people following the declaration of Arbroath. Lewis Macdonald is nodding, so I have an ally.
I simply remind the member that the Crown Appointments Act 1661 was the sixth act of 1661 by the estates of the Scots Parliament, so things were probably not quite as clear-cut as she suggests. That approach was certainly tried, but whether it succeeded is a debate for another day.
The briefing from the Scottish Parliament information centre draws our attention to concerns about whether tribunals’ lack of independence from Government—whether perceived or otherwise—is in contravention of article 6 of the European convention on human rights. The bill that we are considering today, and which we will continue to consider in times to come, will be an opportunity to provide a pretty rigid statement that our tribunals are independent.
I will turn to the provisions in the bill. I have already made reference, on the back of Rod Campbell’s comments, to the duties that the bill will place on members of the Scottish Parliament to uphold the independence of the members of Scottish tribunals. That is quite an interesting issue, because the bill does not directly prescribe what would happen if a member, or members collectively, of the Scottish Parliament failed to uphold that independence. I suspect that the matter may be covered by the “Code of Conduct for Members of the Scottish Parliament”, paragraph 3.1.3 of which requires that
“Members should uphold the law”.
However, I suspect that there may be some ambiguity there, which the committee and the Parliament may want to look at.
Of course, we have not entirely failed to look at the issue of tribunals before. Willie Coffey referred to David McLetchie, who in March 2004 led a debate on the Fraser inquiry. One issue that that inquiry faced was that it was unable to have access to powers that would have been available to a Westminster inquiry held under the Tribunals of Inquiry (Evidence) Act 1921. Under that act, a tribunal can be given the power to command witnesses to appear before it and to produce the necessary evidence. We have therefore been here before, but we have perhaps overlooked the fact that there are some significant potential effects from our not having all the powers that we might seek.
When, as a minister, I took the Long Leases (Scotland) Act 2012 through Parliament, I had to refer to tribunals in the stage 1 debate because tribunals play an important part in judging the value of land, which is a central issue in such matters.
As the time when I should wind up is approaching, I will say just a little about the Mental Health Tribunal. As a tribunal, the Mental Health Tribunal is special and different in the distinct sense that it is about deciding on the deprivation of liberty of a citizen. That is quite an unusual function for a tribunal, albeit that it is in the interests of the citizen that the decision is taken. I certainly want to ensure that we protect the rights of the citizen.
For me, this is an interesting speech because it is the 500th speech that I have made here—
And 500 is a special round number. However, it may feel like more than 500, if that is what the convener of the committee is saying.
“to Institute ane college of cunning and wise men”.
That might be the kind of people that we want involved in our tribunals—
I welcome the opportunity to speak in the stage 1 debate on the Tribunals (Scotland) Bill. I am not a member of the Justice Committee, so I must say that undreamt-of vistas, without limit of horizon, have opened up for me this afternoon. Who would have imagined that reform of tribunals could reveal such glittering facets as “judicialisation” and “courtification”?
One feature of this debate that has distressed—nay, alarmed—me is that, while the rest of us have been sustained throughout the afternoon with the presence of colleagues, the minister has been on her own for lengthy chunks of the debate. Quite honestly, in the 21st century and a debate of this nature, that is not humane, and I think that the Scottish Government should address the matter without delay. I accept that the topic of reform of our tribunal system might not set the pulses racing but, as members have acknowledged, it is an important topic and reform is overdue.
The tribunal system as we know it grew up on an ad hoc basis during the 20th century as Governments acquired more and more power over citizens’ daily lives. An important landmark was the 1957 Franks report to which Nigel Don referred. That followed the Crichel Down affair in which land acquired during the second world war was not returned to the previous owner but was instead handed over to the Ministry of Agriculture and leased out—so land grab is nothing new.
Following that scandal, the Franks report moved tribunals from an executive and administrative model towards a judicial footing, based on the three principles of openness, fairness and impartiality. That was an important change. That judicial footing can be observed without either judge overload or—to use that extraordinary word—courtification. That sounds to me more like a mandatory term for wooing, so I hope that the minister will let me know how she gets on with that.
In Scotland there is a clear division between tribunals that deal with devolved matters, and are therefore under the responsibility of the Scottish Government, and those that are reserved. However, users of a tribunal are unlikely to be concerned about or aware of—or, for that matter, care about—whether a tribunal is devolved or reserved. We must come up with a system that is as efficient and fair as it can be and which, above all, meets the needs of the users. Indeed, the minister specifically referred to that.
I welcome the Scottish Government’s commitment to continue working with the UK Government in coming up with a satisfactory solution for the reserved tribunals, which are more numerous and deal with far more cases than the devolved tribunals.
Ah—the minister has found a friend. I am much comforted by the appearance of Kenny MacAskill in the chamber.
The system’s complexity has been commented on. Indeed, the 2008 Philip report specifically referred to that complexity and fragmentation. It also expressed concern that the system did not
“meet the key principles of independence and coherence.”
I think that we all acknowledge that that complexity is not in the best interests of the users of tribunals; nor does the duplication of resource, in whatever form that occurs, represent value for money.
Although the Scottish Government has taken some limited steps to simplify the system—most notably by bringing some of the devolved tribunals under the administration of the Scottish tribunals service—progress has been slow. I observe that the UK equivalent to this bill was passed six years ago. As Roderick Campbell observed, the legislation represents movement, but it will still apply to only a tiny 2 per cent of tribunal cases north of the border.
There is a risk that we may create different systems for tribunals in Scotland, compounding the complexity that surrounds them, which would be unfortunate. Currently, only some tribunals are supported by the Scottish tribunals service, and the bill will establish a separate structure for some devolved tribunals, while leaving untouched other devolved tribunals and all the reserved tribunals.
I will now comment on a few points that were raised on the committee’s stage 1 report. As mentioned by Margaret Mitchell, the Lands Tribunal for Scotland has expressed concern. A number of members have commented on that, and I expect that the minister will comment on the matter, too. That raises the wider point that the challenge for the Scottish Government is to come up with a system that preserves the specialist qualities required by the Lands Tribunal without complicating a structure that is meant to simplify things.
I also reiterate the points made about the importance of protecting our tribunals’ unique and distinct approach to civil justice. There is no doubt that the informality and less adversarial nature of our tribunals, compared with the courts, is a strength. However, there is a legitimate concern that, with the Lord President in charge, a senior judge appointed as president of the tribunals and the expansion of judicial members, care must be taken to avoid judge overload.
I hear alarm bells ringing with the proposal that, until the newly created Scottish Civil Justice Council is in a position to take over, ministers will make procedural rules. Ministers, who are of course sometimes subject to tribunal proceedings, should not be making the rules, no matter how much independent or expert advice they take. Instead, the rules should be made on an interim basis, either by the new Scottish Civil Justice Council with additional resource or by another interim body.
Other speakers have commented on independence. It is critical to tribunals, and the bill could do more to promote that—an idea that the Lord President shared with the Justice Committee. Indeed, I understand that he suggested the inclusion in the bill of a similar provision to that in the Judiciary and Courts (Scotland) Act 2008. Perhaps the Scottish Government will consider that.
The new structure, with the position of president of the tribunals appointed by the Lord President, is interesting. I have noticed a restriction: the bill limits the pool of candidates to senators of the College of Justice. I have no quarrel with the senators of the College of Justice, but that pool is deep rather than wide and it needs to be broadened out. The system would benefit from a wider scope of qualified and experienced personnel.
The Justice Committee’s stage 1 report notes that much of the detail of the new structure is not contained in the bill. One or two speakers have referred to that, and I am slightly concerned about it. It hampers scrutiny and, although I accept that the proposed legislation seeks to provide a framework for the new structure and needs to be flexible, the amount of detail that will be left to delegated legislation is disquieting. I hope that the Government will take on board some of the comments that the Delegated Powers and Law Reform Committee made.
The Justice Committee will closely scrutinise the forthcoming secondary legislation, but it already has an enormous workload and I think that it would have preferred that the Parliament be given more specific information about the detail of the proposed new structure. Perhaps the minister could address that.
I believe that the Government is considering merging the Scottish tribunals service with the Scottish Court Service, but has it considered related matters, such as the sheer number of tribunals and the concerns that have been expressed about the independence of some of them?
I thank members for their valiant efforts to keep the debate going. I had fears that there would be a huge amount of time left for the closing speakers and that we would have to fill it all up, so I am grateful to all members for their efforts to ensure that that did not happen.
At one point, I saw Mr Q licking his paws with a rather resigned air, which may have reflected the feelings of members in the chamber. However, we had some points of excitement.
Stewart Stevenson implying that the convener could remember the Courts Act 1672, I think it was, was uncharacteristically ungentlemanly. At least he did not suggest that any of us could remember 494 BC. When he began to use the term “plebs”, I began to be a little worried on his behalf.
Nigel Don may also have caused a little bit of offence by suggesting that members of the Parliament could remember the Oliver Franks report of 1957. That may be true of some, but I am sure that some of my colleagues would be rather offended by that.
A number of members referred to the principles of tribunals. That was an issue to which speakers kept coming back. The minister wanted to hear what members were saying about that, and there have been a number of good suggestions. We also have the suggestions from Citizens Advice Scotland, which reflect the provisions in the UK legislation.
All Justice Committee members have reflected on the importance of protecting the character and nature of tribunals because far more people experience administrative justice through a tribunal than will enter into the civil or criminal courts system. As we know, the majority of people attending tribunals do so within the reserved system but, as most of us want all those tribunals to come over into the Scottish system, it is important that Scottish legislation is drafted in such a way as to bring them in. I say to Colin Keir that it does not require a yes vote next year to make that happen.
I think that the minister agreed with the committee—I know that she was keen to consider the matter—but nobody is suggesting that a tight definition of tribunals be incorporated into the bill. As we have heard, tribunals have been formed according to the needs and circumstances. They perform different functions, but they have characteristics that need to be preserved, such as user-friendliness and others that members have mentioned. We need to maintain that character and nature. That would be covered by a definition of principles rather than a rigorous definition. I was pleased to hear that the minister is interested in hearing more about that.
I would like to reflect on a couple of issues that were raised with us in briefings prior to the stage 1 debate, but which were not raised with us in evidence—I do not know why that was—as they are interesting issues to consider.
This week, CAS flagged up to committee members an additional concern about the independent review of tribunals. The AJTC, which had the remit of keeping under review the administrative justice system, has been abolished. The bill makes provision for the Scottish Civil Justice Council to review practice and procedure and to prepare draft civil and tribunal procedural rules through amendment to the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013. That act charges the SCJC with keeping the civil justice system under review and with providing advice and recommendations to the Lord President on matters that relate to the civil justice system, but there is no requirement on any body to do the same for the administrative justice system. The SCJC can review process and procedures, but it cannot review the administrative justice system as a whole; nor can it make representations or provide advice on administrative justice matters to the Lord President.
CAS recommended that, at stage 2, consideration should be given to allowing the SCJC to have functions in relation to the administrative justice system that are equivalent to those that it already has in relation to civil justice. I do not know whether the minister has seen CAS’s suggestion, but I would be interested to hear her views on it.
For some time, environmental organisations such as Friends of the Earth Scotland, Scottish Environment LINK and RSPB Scotland have argued that Scotland does not comply with the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, which is also known as the Aarhus convention. As members might know, it has three pillars: the right of access to environmental information that is held by public authorities; the right to participate in environmental decision making; and the right to review procedures and to challenge decisions that are made by public authorities. Currently, decisions can go to judicial review on a point of law, but there is no right to a review of the merits of the case.
Stage 1 of the Tribunals (Scotland) Bill is certainly not the occasion to argue about whether Scotland is in compliance with the Aarhus convention or whether it could end up in a European Union court, as RSPB is saying, but an environmental tribunal could be a mechanism for addressing the issues that are raised by the convention. Indeed, the Minister for Environment and Climate Change suggested that that could be so in evidence to the Rural Affairs, Climate Change and Environment Committee on 5 June this year. He stated that he intended to set up the appropriate tribunal in regulations once the Scottish Government knew the landscape of the new tribunals system for Scotland.
Environmental organisations such as Friends of the Earth suggest that, as the Government already intends to set up an independent tribunal to hear appeals on environmental monetary penalties that arise as a result of the Regulatory Reform (Scotland) Bill, there could be an opportunity to consider the creation of a wider environmental tribunal. Therefore, in the not-too-distant future, we might see the Tribunals (Scotland) Bill being used to create a new tribunal, rather than just being used to transfer existing tribunals.
A number of members have made reference to what the committee described as the “judicialisation” of tribunals, which was also referred to as “courtification”. In using that term, we were not quite sure whether we had invented a new word. We were concerned that any judicial members who are appointed to a tribunal might not have the necessary experience to fully understand the differences between a tribunal and a court. That is yet another argument for having a clearer definition in the bill of what a tribunal is.
I note that, in the minister’s written response to our report, she stated her intention to use composition orders to specify which type of tribunal member will be required for which type of case. I look forward to receiving more detail on how such orders may be scrutinised.
Several members raised concerns about fees, including John Pentland, Sandra White, Graeme Pearson and Lewis Macdonald. Lewis Macdonald and John Finnie spoke about issues to do with employment tribunals, and John Finnie expressed the wish that we might be able to take those into a Scottish system and address some of the issues relating to the charging of fees.
I am sure that there is no intention to allow the problems that have arisen in UK employment tribunals to arise here, but the issue could be addressed by transferring some of those tribunals to the Scottish system. That would give us more control over issues such as the charging of fees, which already appears to be causing problems for people who wish to go to employment tribunals. That is very much to be regretted, and the bill may provide us with opportunities to address some of those issues.
I thank all the members in the chamber for a stimulating debate on an important reform. I particularly thank Justice Committee members for their constructive contributions.
I will make a tiny point. When I talked about composition orders, some members might have thought that they heard me say “compensation orders”. I make it clear for the record that I was talking about composition, not compensation, orders.
We have missed something in the debate. One or two members have referred to it; it is the presence of David McLetchie. However, I feel that his spirit is with us. I can envisage him sitting with a cigar and watching our proceedings now, saying heartfelt thanks that he is no longer required to contribute. It is only right that I remind Parliament that, when we previously debated the tribunals system, so impressed was Graeme Pearson that he put it on the record that he felt that David McLetchie possessed the attribute of glamour. It is important to reiterate that.
It is clear from the debate that members across the chamber agree that tribunals reform is long overdue, and that they desire to create a tribunals structure that is fit for the devolved landscape. I will respond to as many members’ comments as I can.
Elaine Murray, Colin Keir, Rod Campbell and a fair few others spoke of our proposals for the Lands Tribunal for Scotland; a number of members made the point that it should more properly be regarded as a court, rather than as a tribunal. It might be true that it is the tribunal that looks most like a court—I do not think that anybody would depart from that—but it is not a court; it is a tribunal. It is a tribunal in legislation and it has a key attribute of a tribunal—it has lay members on its panels. Its being a court would pretty much rule that out. It cannot be a court, because of the lay members; it is a tribunal in legislation, and the lay members reinforce the idea that it is a tribunal. We need to remind ourselves of that when we talk about it.
We desire to transfer the Lands Tribunal for Scotland into the new system, and we have made a proposal on where it would fit. The Government believes that it needs to remain in the system with the other tribunals.
Each tribunal is different. Despite some of the concerns and fears that people have expressed, nothing in the bill will change how the tribunals operate in any way, shape or form, and there is no desire to do that. As new tribunals are discussed and perhaps legislated for, they will each have their own particular ways of working, which the proposed structure will simply absorb. That is as it should be.
On a slightly related point, I confirm to Elaine Murray that the chamber structures will be set out in an affirmative Scottish statutory instrument, so we will come back to that.
Margaret Mitchell reminded us that 80,000 people use tribunals every year. That is a lot of people, who are generally overlooked when we talk about the number of people who go through the court system. The reality is that tribunals probably see far more people than courts do.
I gently point out to Stewart Stevenson that there is nothing at all “quasi” about the judicial decisions that tribunals make. He should not use the term; tribunals make judicial decisions.
In a sense, John Pentland recognised the balancing act that the bill represents. Most committee members have understood that we are trying to strike a balance, with a better structure and a more efficient way of managing the whole framework while keeping the individual nature of tribunals clear cut.
Colin Keir referred to the children’s hearings system. I agree with all his comments, which were, of course, exactly why children’s hearings are not listed in the schedule to the bill. Perhaps there has been some padding out of speeches by raising things that will not actually happen. The danger is that that could create concern in other people’s minds, and I do not want that to happen. Children’s hearings are not included in the bill for a very good reason.
Building a structure that is flexible enough to cater for the many different tribunals in Scotland is challenging, but I think that we have achieved the right balance in the bill, which will create a simple and clear structure that will make it easier for users to navigate their way through the tribunals system. I reiterate my commitment to ensuring that the unique characteristics of all the tribunals that are transferring into the new structure will be protected. [Interruption.]
I know how important that is to those who are involved in tribunals.
It is in everyone’s interests that the aspects of the current system that are valued are maintained and strengthened in the new structure. Those include the expertise, flexibility, sensitivity, specialism and ethos of individual tribunals. Nothing that the Government is doing is about interfering with any of that. I hope that the safeguards in the bill that I have already spoken about have gone some way towards reassuring members that those characteristics can and will be protected.
The different leadership roles of judicial office-holders in the new structure—for example, of the Lord President, the president of Scottish tribunals and chamber presidents—will provide an important mechanism to safeguard the particular and distinctive operations of individual jurisdictions against any unintended drift towards more generalised arrangements or dilution of specialisms.
The committee’s convener and other members, including John Finnie, have spoken about the position of the president of Scottish tribunals. I have made a point about saying that the role will not be an appointment. Appointments are a particular category of what a Government does. As I said, it will not be an appointment; the position is within the Lord President’s hierarchy, because it will have delegated powers from the Lord President. It is not a judicial appointment or an appointment in the general sense of the word. If the role is to have delegated powers, they need to flow directly from the Lord President.
We expect the judicial leadership to work together across jurisdictions to bring coherence to the system where that will benefit through delivery of a high-quality service to tribunal users. The new leadership structure will also provide opportunities for tribunal members to share best practice and learn from one another’s knowledge and experience.
Members have mentioned the number of tribunals that are not being transferred in to the new system. I accept that the creating and transferring into the new structure of tribunals will not happen overnight. Obviously, there is a landscape of reserved tribunals out there that must also be considered in the future. That is not currently our decision, but we are trying to create a framework that will be flexible enough to allow such transfer in, if and when that is required.
The bill is a technical one that provides a framework for the creation of a cohesive system for tribunals as a whole. The process is designed to be manageable, because it will take time to bring in each of the individual tribunals. I remind members that there are other policy areas in which creation of tribunals is being discussed. I think that Elaine Murray mentioned one or two, but they are not the only ones. There is the potential for an increase in the number of tribunals on the landscape.
It will take time to bring the tribunals in, partly because of the complexity of the tribunals involved and the attention to detail that will be required to ensure that the system works effectively. We have therefore ensured that there will be a high level of parliamentary scrutiny for the majority of the secondary legislation that will derive from the bill. [Interruption.]
We want to get this right first time, with no disruption to the service that is provided to the user. I am confident that we can do that.
Before I finish, I draw members’ attention to “Just News”, which is the administrative justice newsletter that can found on the Scottish Government’s website. Its information is of use particularly to committee members who may not know about it. I advise members to have a look at it.
Tribunals reform is long overdue; many expert reports have told us that over a long time. Members have debated the issue twice previously, and there was cross-party support on both occasions. Tribunals reform is quite simply the right thing now for the people of Scotland. It is the right thing for Parliament to do.