- The Deputy Presiding Officer (John Scott):
The next item of business is a debate on motion S4M-02521, in the name of Roseanna Cunningham, on the consultation on the new tribunal system in Scotland.
- The Minister for Community Safety and Legal Affairs (Roseanna Cunningham):
Today’s debate focuses on tribunal reform in Scotland and highlights our proposals for modernising how tribunals operate.
Tribunals are a valued and distinctive part of our justice system and provide specialist forums for efficient and accessible legal dispute resolution. However, the system has developed in an ad hoc and unplanned fashion over many years, and the tribunals that are its constituent parts do not have a collective identity. The time has come to address the widely acknowledged need for reform. In 2001, Sir Andrew Leggatt described tribunals in Scotland as “exceedingly complicated”. I share that view.
For more than 100 years, tribunals were considered to be a part of the state’s internal administration, which had been designed as a mechanism whereby citizens could challenge the initial decisions of Government officials. From the early 20th century, the number of established tribunals has increased and their case load has grown. There are more than 40 tribunals in Scotland, which deal with devolved and reserved matters and cover a multitude of subject areas. In excess of 80,000 cases are heard each year. That is almost as many cases as are heard in the civil courts in Scotland, which is an indication of the reach of tribunals in Scotland.
Over recent years, the system has developed into a quasi-judicial one, with constituent tribunals deciding the cases that are brought before them more independently, more expertly, on the basis of evidence and in accordance with the law. However, developments have been ad hoc and have involved piecemeal improvements being introduced unsystematically in the separate tribunal jurisdictions.
As well as developing in an ad hoc manner, tribunals in Scotland are referred to in different ways in law. They are referred to sometimes as panels, sometimes as boards and sometimes as committees. What connects them is that they are all bodies that make decisions in law that affect the lives of tens of thousands of people across the country.
Tribunals make decisions on a diverse range of subjects, whether that is to determine someone’s liberty, as happens in hearings of the Mental Health Tribunal for Scotland, to decide whether a landlord has carried out necessary repairs to their property, as the Private Rented Housing Panel does, or to consider how best to meet a child’s additional educational needs, as the Additional Support Needs Tribunals for Scotland do.
When the Parliament last debated tribunal reform back in September 2010, there was a general consensus that reforming the tribunal system was the right thing to do. I asked for the debate so that I could highlight the proposals that were published last week, on 23 March, to consult on the introduction of a new tribunal system in Scotland. Those proposals aim to create a coherent structure in which to integrate devolved tribunals over time, to provide clear judicial leadership, greater consistency in practice and improved transparency.
In December 2010, we took the first steps in reforming tribunals in Scotland by integrating the administrations of six separately operating bodies: the Additional Support Needs Tribunals for Scotland; the Lands Tribunal for Scotland; the Mental Health Tribunal for Scotland; the Private Rented Housing Panel; and the Scottish Charity Appeals Panel. That has proved to be a significant step and one that has already produced benefits. It has enabled the sharing of venues, the integration of administrative support and the introduction of common budget control systems, and it has established a platform for developing a programme of continuous improvement.
The Scottish Tribunals Service will continue to develop as an integrated service that provides access to comprehensive information concerning the quality of decision making in public authorities. As such, the service can play a powerful role in ensuring that there are continuous public service improvements across Scotland. There will be feedback mechanisms to inform public authorities whose decisions are not quite right first time.
In today’s financial climate, we have to do all that we can to make the best use of our resources while continuing to provide a consistent, reliable service to tribunal users through an efficient, well-organised and sustainable administration. Savings of around £1 million have already been realised since the establishment of the Scottish Tribunals Service through a combination of consolidating efficiencies that judicial leaders and administrators have identified and rationalising organisational structures and support services. We are confident that those efficiencies will continue to be realised through further organisational integration and further streamlining of administrative processes.
The creation of a single administration was phase 1 of tribunal reform. We are now moving to phase 2, which we are convinced will deliver further judicial and administrative gains. In our consultation paper, we propose to introduce a new integrated structure for tribunals. We want to create a structure of two tiers—a first tier and an upper tier—that can accommodate existing tribunals.
The first-tier tribunal will be for initial decision making. In most cases, it should be able to resolve satisfactorily the cases that are heard before it without the need for further appeal. However, we realise that that is not always possible, so we propose to create an upper-tier tribunal to hear appeals from the first tier. That will enable the bulk of tribunal business to be kept within the tribunal system, thus avoiding the need to go to court.
We are aware that it may be more appropriate for some appeals to be heard by the courts. Last year, the report of the Scottish committee of the Administrative Justice and Tribunals Council, “Tribunal Reform in Scotland: A Vision for the Future”, considered the issue of rationalising appeals from tribunals. The committee thought that standardising the route of appeals to a single body would facilitate the development of expertise among appellate judges; make the appeals process more accessible for tribunal users; speed up justice in comparison with appeals to the Court of Session; streamline and simplify case-handling processes, thus supporting the development of expertise among administrative support staff; and make it easier for support organisations to provide advice to tribunal users who wish to appeal a tribunal’s decision. Currently, there is no single mechanism in Scotland for appealing against a tribunal decision and appeal routes vary from tribunal to tribunal. That is why simplifying and rationalising appeal routes makes sense.
From the perspective of the tribunal user, we should consider how we can assist them in accessing a justice system that puts them at the centre of the process. Courts are often seen as less accessible and likely to be less affordable than tribunals. The court procedures have not been designed with self or lay representation in mind. In addition, the current system of separate tribunals is often seen as inflexible, and the type of information that is available about tribunals and their appeal processes varies. Those factors may well act as a barrier to appeals and result in users being put off taking matters further.
The creation of a new structure provides an opportunity to standardise the information that is provided to users in laypeople’s terms, making it easier for them to understand the working of tribunals and how decisions are arrived at. We considered users, too, when we were writing the consultation document, and we published an easy-read guide to accompany the document. Members who have seen that guide may wish that all consultation documents were so accompanied.
While keeping the centrality of users at the forefront of any changes, I would like to turn for a moment to how the proposed changes affect the tribunal judiciary. It has long been said that judicial independence is an important aspect of a fair tribunal system. The Franks report in 1957 established that tribunals should be adjudicative rather than administrative bodies and, as such, should be fair, open and impartial. Sir Oliver Franks said:
“Tribunals are not ordinary courts, but neither are they appendages of Government Departments.”
According to Franks, impartiality means
“independence from the real or apparent influence of the original decision-making administration.”
Users of tribunals need to be sure that decisions in their cases are being taken by people with no links to the body that they are appealing against and that the framework for taking decisions in their case, including rules of procedure and the appointment of decision makers, is not constructed in the interests of the other party.
We propose bringing the tribunal judiciary under the leadership of the Lord President of the Court of Session. The Lord President will be responsible for the training, welfare, guidance and performance of judges and other members of the new tribunal system. He will also be responsible for the allocation of members to hear individual cases and the handling of complaints made against any member of the tribunal.
The Lord President will be able to delegate any judicial leadership functions to other judges of the tribunal and, in particular, will nominate a senator of the College of Justice as the president of Scottish tribunals—a new office that will be responsible for the day-to-day running of tribunal business.
Bringing judicial leadership under the Lord President will not mean that tribunals will lose any of their distinctive characteristics. The consultation proposals ensure that there are measures in place to protect each tribunal’s distinctive culture and specialist nature. That is assured by the tribunals’ own rules of procedure and relevant primary legislation.
As I said earlier, we are taking tribunal reform forward in a phased approach. We are proposing that only a few of the devolved tribunals transfer into the new structure straight away. That will help the judiciary in transferring tribunals to settle into the new first tier and get used to the new arrangements. As we move to the next phase, we expect to begin discussions with relevant parties to allow further devolved tribunals to integrate into the first tier and also benefit from the support that the Scottish Tribunals Service can provide.
What is being proposed in our consultation may seem like a massive change in how tribunals operate. Members might think that it will adversely affect tribunal users and cause confusion to them about who will hear their particular case. The answer is quite the contrary. Tribunal users will still appear before the same tribunal members and decisions will still be made in accordance with the law governing their jurisdiction. In addition, current rules of procedure, which protect the distinctive ethos of individual tribunals, will be adopted in the first-tier tribunal. Greater confidence in the tribunals’ impartiality will be assured by future appointments and changes to tribunal rules being made only following ministerial receipt of independent advice.
The current tribunal landscape is complex. It is generally agreed that there is a clear appetite for reform and that that reform should be phased to secure steady improvements. We have started that process with some success by bringing together the six tribunal administrations to create the Scottish Tribunals Service, but that is only a small step in a longer journey.
I ask that Parliament support the motion and agree that we now need to press ahead with creating a coherent, simply structured, more integrated and more effectively led tribunal system that ensures that users receive a high-quality, fair and timely service that is responsive to their varied needs.
That the Parliament welcomes the publication in March 2012 of a consultation that sets out proposals to reform Scotland’s tribunal system; notes that the proposals provide the opportunity to integrate Scotland’s devolved tribunals into a coherent, unified structure; further notes the importance of tribunals in the administrative justice landscape and the complexity and diversity of their business, and acknowledges their rightful place at the heart of a modern civil justice system
- The Deputy Presiding Officer:
I draw members’ attention to the fact that we have quite a bit of time in hand in the debate, so we will be generous with time and will seek interventions.
- Jenny Marra (North East Scotland) (Lab):
I thank the minister for her considered introduction to the topic and welcome the opportunity to speak in this debate on an important issue.
Tribunals are a fundamental part of the Scottish civil justice system. Each year, many more Scots attend tribunals than attend court hearings, so we have an important responsibility to get the reform correct.
Unlike court hearings, tribunals are designed to bring about resolutions to disputes in an informal and less adversarial fashion, which makes them unique in form and function. However, much like the decisions that are taken in court, tribunal hearings have a significant impact on people’s lives. That is the case not least with mental health tribunals, which have the ability to restrict the fundamental freedoms of our citizens.
With that in mind, it is essential that any restructuring of the tribunal system be focused and centred on the citizen. The three principles of accessibility, accountability and transparency must be at the core of the reform. We must aim to create a structure that is not only clear from the outside looking in but coherent from the perspective of the citizens who use it.
During the previous debate on tribunal reform, the Scottish Parliament was united behind the need to restructure the fragmented and complex tribunal system in Scotland. Expert reports and evidence all agree that the system is too often inaccessible and costly to people. We have more than 40 tribunals, which handle a case load of more than 500,000 a year, and stakeholders were clear that we could do better to simplify the system for Scottish citizens.
The consultation that was launched last week contains far-reaching proposals for reform, and I am certain that, as it unfolds, we shall receive the same thorough and informative feedback from stakeholders as we did in 2010. I broadly welcome the proposals and agree with their main objective of creating a more coherent system, which will provide better clarity for people. Bringing each tribunal into one, streamlined system gives us the opportunity to offer Scots an enhanced level of accessibility to the justice system, as well as clear accountability for the decisions that tribunals make.
I welcome the fact that the new system will be adaptable in that it will be able to integrate further tribunals if and when that is deemed necessary. That aspect of the proposals will allow the Scottish system to respond efficiently to changes in United Kingdom legislation and will offer sustainability and clarity.
Many aspects of the consultation proposals require careful consideration, and I look forward to receiving stakeholder responses on them. For example, on matters such as appointments and the regulation of the system, we must act as far as possible in the spirit of the Leggatt report and recognise that the independence of tribunals is critical to their users’ confidence in them. I welcome the Government’s stated commitment to that principle and look forward to it underpinning any statutory provisions that are introduced. As we move to the new tribunal system, I urge the Government to listen to stakeholders and assess carefully its proposals on sharing services with courts in a drive for efficiencies.
As I said at the start of my speech, the tribunals’ separateness from the courts is an integral part of their less adversarial and more informal approach to resolving disputes between the citizen and the state. Although there is a case to be made for sharing services where practicable, any such move must not amount to a fundamental deviation in the nature of tribunals.
Similarly, in this drive for efficiencies, I look to the Government to protect the expertise and specialist resources that will continue to benefit each tribunal in its new format. As we know, each tribunal deals with a unique and usually highly technical aspect of law and we must not undo the good work that has been done up to now to build and maintain the appropriate resources for undertaking robust and comprehensive tribunal hearings. We need to carefully consider the types of services to be shared and the extent to which efficiencies take precedence as the system unfolds.
These and other issues will undoubtedly arise as the consultation goes forward and I am confident that, in its drive to get this aspect of civil justice right for the thousands of Scots who use it every year, the Government will be keen to work together with all parties in the Parliament to take forward stakeholders’ views. Labour wants a system that not only is streamlined and efficient but is accountable and transparent and puts people at its centre. We will work with the Government throughout and beyond the consultation to achieve that, because it is the fair and right thing to do.
I move amendment S4M-02521.1, to insert at end:
“and believes that any reform should put users at the centre by following the principles of transparency, accountability and accessibility.”
- The Deputy Presiding Officer (Elaine Smith):
I now call David McLetchie. Mr McLetchie, you may have a very generous six minutes.
- David McLetchie (Lothian) (Con):
Oh, right! Thank you very much, Presiding Officer. Would that you were always in a position to be so generous. We know that you are in spirit, even if you are constrained by the rules of this Parliament.
- Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP):
What was all that about?
- David McLetchie:
That is called padding, Ms Grahame. [Laughter.]
I welcome the opportunity to speak slowly on this topic, following the launch of the Scottish Government’s consultation on a new tribunal system. Although a debate on the future of tribunals might not be among the most glamorous ever witnessed in the chamber—and no one can ever accuse me of adding a touch of glamour to any of the Parliament’s proceedings—the topic is, of course, important. As the minister and Jenny Marra have rightly indicated, tribunals are an important part of our civil justice system. In some instances, a tribunal is a forum for citizens to challenge decisions that are made by public bodies on entitlements to benefits and services and, because of that, it is imperative that they are independent of Government and the public organisations on whose decisions they adjudicate.
In other cases—and we have heard about the variety of tribunals in the judicial landscape—they are a forum for the resolution of private disputes; in fact, that is the function of the Lands Tribunal for Scotland and the Private Rented Housing Panel. Moreover, tribunals deal with certain reserved areas such as employment issues and disputes between employers and employee. They also offer an alternative—and less formal and less costly—dispute resolution mechanism to our courts; indeed, tribunals in Scotland deal with more than 80,000 cases annually. Without them, the individuals who use them would either lose an entire avenue of redress or be forced to take their grievances to an already overstretched court system.
The principle of tribunals as a forum of redress is an ancient one. Roman tribunes, from which the word “tribunal” originates, were elected to protect the rights of the proletariat against the arbitrary acts of the Government. Indeed, the parliamentary Labour Party at Westminster used to have an influential Tribune group until it discovered that the arbitrary acts the group was complaining about were those of its own Government.
As we know, the tribunal system grew on an ad hoc basis through the 20th century. The minister was quite right to refer to the important landmark that was the Franks report of 1957, which resulted in a move from the perception of tribunals as purely executive or administrative agencies to their being put on a judicial footing with the principles of openness, fairness and impartiality as the governing foundation for their work, about which we have already heard.
In Scotland, we have a distinction between the tribunals that deal with devolved matters and are therefore the Scottish Government’s responsibility and those that deal with reserved functions. As the Cabinet Secretary for Justice has previously acknowledged, users of a tribunal are unlikely to be concerned about, to care less about or even to be aware of whether a tribunal deals with a devolved or a reserved matter. The overall duty that we have is to ensure that tribunals for which the Scottish Government and we in the Scottish Parliament are responsible work efficiently and where appropriate, to collaborate with the United Kingdom Government on the tribunals for which it is responsible, but which have jurisdiction here.
It is interesting to note that, although 16 tribunals are fully devolved relative to their subject matter and are therefore open for inclusion in the new tribunal system that the minister has outlined and which is the subject of the consultation, the majority of tribunals by reference to case load operate in relation to reserved matters. Some of them function as part of Her Majesty’s Courts and Tribunals Service, while others operate on a free-standing basis.
It is not at all clear from the Government’s consultation document—particularly from paragraph 1.5—whether the Scottish Government’s intention is to seek a full-scale integration of tribunals across the present devolved-reserved divide or whether that is seen as a consequence of further constitutional change and thus a subject to be deferred for another day.
- Roseanna Cunningham:
The member might be interested to know that there is a conversation between us in Scotland and the Ministry of Justice south of the border about the possible transfer of the administrative functions, even in reserved tribunals. That conversation is already taking place.
- David McLetchie:
I thank the minister for that assurance. That is entirely welcome and I wish her well in those discussions.
The need for reform of the tribunal system has been under discussion in the UK as a whole for more than 10 years. In 2001, a review was conducted for England and Wales by Sir Andrew Leggatt, which concluded that the tribunal system had been created in
“an almost entirely haphazard way”—
he was not wrong about that—and that it was
Here in Scotland, we had the 2008 report of the committee that was chaired by Lord Philips, “Options for the Future Administration and Supervision of Tribunals in Scotland”. It came to the similar conclusion that the system was
“extremely complex and fragmented”
and that it did not
“meet the key principles of independence and coherence”.
That complexity is not in the best interests of the users of tribunals, nor does the duplication in administration, staff training, information technology and other functions represent value for money for the taxpayers who fund the system.
Although the Government has taken some limited steps to simplify the system, most notably by bringing six of the devolved tribunals under the administration of the Scottish Tribunals Service, it is fair to say that progress has been slow. Part 1 of the Tribunals, Courts and Enforcement Act 2007 brought the vast majority of tribunal cases in Scotland that deal with reserved matters into a single coherent administrative and judicial structure with support provided by HM Courts and Tribunals Service. Only in December 2010 were some devolved tribunals given comparable support.
I turn to the Scottish Government’s proposals in its recently published consultation document. I support the general thrust of the proposals, which include the creation of a new two-tier structure. All the tribunals in the new system will have the same leadership and administration. The first-tier tribunals will be organised into chambers in which tribunals on similar topics can be grouped together.
However, since the four tribunals that have been singled out for initial inclusion in the new system—the Additional Support Needs Tribunals for Scotland, the Mental Health Tribunal for Scotland, the Lands Tribunal for Scotland and the Private Rented Housing Panel—all deal with quite discrete subjects, it seems that the grouping idea is one for another day and, at this stage, it is more apparent than real. That is why we would like to know a bit more from the minister about the pace of change and integration, and the Government’s intentions in that respect.
With that, Presiding Officer, I am happy to conclude my opening remarks.
- The Deputy Presiding Officer:
A valiant effort, Mr McLetchie.
Before we proceed to the open debate, I am pleased to inform members that we have been joined in the public gallery by His Excellency Kitti Wasinondh, the ambassador from the Kingdom of Thailand and his party. I would be grateful if members would join me in welcoming him to the public gallery. [Applause.]
We turn to the open debate. As members will have realised, we have time in hand so speeches should be six minutes, but I am in the happy position of not having to turn off microphones on the dot.
- John Finnie (Highlands and Islands) (SNP):
This is a potentially interesting subject for someone who happens to be one of the many users of the tribunals service. I draw members’ attention to the ministerial foreword to the consultation document, which talks about the
“shared commitment to ensuring that public services are of high quality”.
I am sure that we can all go along with that. It goes on to talk about how
“A modern legal framework commands public confidence”.
Some of the previous speakers’ remarks show how that is important because one of the purposes of the tribunals—again, this is referred to in the ministerial foreword—is to protect
“people from unfair treatment by the state, by businesses or by other people.”
Social justice should be at the heart of everything that we do, and those aims are very commendable.
Judicial independence has been referred to. The minister talked about being fair, open and impartial, and I welcome the oversight of the Lord President, which will be important as we move forward.
In improving the system, it is important to retain the benefits of the existing system and to protect the unique and specific elements that will transfer to the first tier. Given the caveat of right of appeal to the court or a judicial review, it is correct that the first tier will hear and make decisions on appeals. Reference has been made to the speed of appeals and, again, that is important so long as it does not come at the expense of justice. Distress is often felt by the appellant’s partner or family because of the inherent delays in the existing system. With the first tier, it is important to recognise that a confident organisation will reconsider its decisions and correct, amend or set them aside if that is appropriate.
On a practical aspect, I am reassured that existing terms and conditions will be transferred, and that specific workloads will go with the tribunals.
The tribunals package is set within the wider context of the making justice work programme, which was launched last year. We have heard from the minister about shared venues and administrative support leading to continuous improvement and savings, which can be redirected.
Since 2010, the Scottish Tribunals Service has supported six tribunals—I do not think that I need to mention them all—and they are all vital to our communities, so they must be properly resourced. In 2011-12, £1 million has been saved and there is prospect of saving £5 million overall; some of those savings will transfer immediately to the tier 1 system. The system must be resilient; that is very important.
The minister referred to the Scottish committee of the Administrative Justice and Tribunals Council—a snappy title—and its report, “Tribunal Reform in Scotland: A Vision for the Future”. I will focus on accessibility, which is one aspect of that report.
With some tribunals, the impression from the outset was that they would be for the layperson. However, that is certainly not my experience of employment tribunals, where there is discomfort about parity of representation and lack of legal representation. Such issues invariably turn a tribunal into the reverse of a layperson’s forum: a legal forum.
Accessibility relates not only to geography. There is an opportunity to use technological advances that do not disadvantage rural communities or people with mobility or language issues. That is referred to in the consultation document. The equality impact assessment will consider that. That is again in line with Lord Gill’s principles in the civil courts review. I make a specific plea for a role for Gaelic in the Lands Tribunal, if not in the other forums.
I welcome the standardisation of the appointment of tribunal chairs and members. As we have heard, the approach in the past has been fragmented. Resilience is required to deal with the developments to which Mr McLetchie alluded—the absorption from other jurisdictions—and future creations of this Parliament or elsewhere. On the exchange between the minister and Mr McLetchie, the discussions that the minister mentioned, which are on-going, follow on from the merger of courts and tribunals in England and Wales in April last year. Although the tribunal arm of that new body can be effective in Scotland, the court arm cannot, so we await with interest the formal consultation on that from the Ministry of Justice this year. I am sure that, through the discussions that have been alluded to, we can agree on budget transfer and the timetable for implementation.
Another of Lord Gill’s principles is the encouragement of early resolution. Certainly in my time, employment tribunals latterly operated on the basis that they would not deal with any case in which in-house procedure had not been exhausted. It is important that we have good employer-employee relations and robust grievance procedures and that mediation and management training take place. I mention mediation services and training because those are often the focus of cuts. However, if we are focusing on preventative spend, those are important elements that certainly should not be cut.
It is welcome that there is to be judicial involvement in the upper-tier tribunal. It is important that the term “leadership” is used in relation to the Lord President, given the roles that the Lord President will be expected to undertake, which include training, welfare, guidance, appraisal and discipline of the tribunal judiciary, chairs and members—I hope that that task will not have to be done with any frequency. Importantly, the Lord President will also have a role in the allocation of cases.
I commend a phrase from one of the documents with which we have been provided, which states that we need a system that will
“be fair and accessible, cost effective and efficient and make proportionate use of resources.”
I commend the motion.
- Graeme Pearson (South Scotland) (Lab):
I thank the minister on two levels. First, I thank her for her fair presentation of the proposal that is set out in the consultation document on a new tribunal system for Scotland. Secondly, I thank her for offering an opportunity to David McLetchie to link his name with the concept of glamour. I never thought that I would witness that in my lifetime, let alone see him dismiss the offer so quickly. That is perhaps a sign of uncharacteristic shyness on his part—only time will tell.
Tribunals will never be an attractive subject to debate in the Parliament, but all members who are present know the importance of the work that tribunals do on behalf of society. The use of tribunals as a method of achieving a resolution for members of the public and the authorities in a dispute, or of seeking justice in relation to broader public issues, is an important means of empowering the citizen and ensuring a proportionate response to issues that are raised. Tribunal decisions are an effective means of influencing the actions and processes of public bodies.
As we have heard, there are more than 40 tribunals in Scotland. They seek to adjudicate on issues and to referee between competing panels or sides. They decide matters that are of great significance to individuals and their futures, agreeing on additional support, employment rights, land ownership and much more using not only the law, but specialist technical advice.
Tribunals operate daily across Scotland dealing with a huge range of administrative and public law issues of significance to the state and the individual. Whether it is through an employment tribunal, the Lands Tribunal for Scotland, the Office of the Public Guardian (Scotland), the VAT and Duties Tribunal in Scotland, the Additional Support Needs Tribunals for Scotland, or the Scottish Charity Appeals Panel—to name but a few—the means by which justice is delivered should be important to us all.
The tribunals’ cases are many and—given the subject areas that are dealt with—they have a high impact on the people involved. However, for the most part the tribunals are staffed and transact their business outwith the public gaze, in a way that belies their importance. The array of the many tribunals—some maintained within the UK jurisdiction and others discrete in their Scottish delivery—is confusing, not merely for the public, but for some of the professionals involved. Sir Andrew Leggatt commented on that. The current proposals benefit from Lord Philip’s and Lord Gill’s reports. They are to be welcomed in that light, in that they begin to move this area of public law into the mainstream of delivering justice.
The Government consultation sets out a number of proposals for a new system for Scotland: a single unified system; independence for tribunal judiciary; the creation of a leadership role for the Lord President of the Court of Session and a new president of Scottish tribunals; an opportunity to integrate the UK’s system of tribunals with Scotland’s system; and the provision of an upper-tier tribunal able to deal with appeals emanating from the first-tier tribunal.
A single unified system will build on the streamlining of administrative support and make better use of the resources at the Scottish Tribunals Service. At a time of economic challenge, such moves can be useful as long as they focus on smarter working and service delivery and avoid the attraction of cost cutting for savings’ sake.
The declared independence of those who are engaged in judging matters across the landscape of tribunals in Scotland is not only essential; for many, it is an issue that should have been resolved years ago. The allocation of a role for the Lord President and the creation of a new president of Scottish tribunals reflect not only a bold job-creation exercise but, more important, a significant shift in acknowledging the important work undertaken by those in tribunals and the efforts required to drive up and maintain standards in the judgments and procedures adopted in this area of arbitration. Finally, appropriate integration of tribunal processes and support offers significant savings and consistency of outcomes. That professional support was hitherto delivered on the basis of good staff and committed people, rather than in conjunction with good systems and structures.
I welcome the placing of tribunals in a truly independent position by the reinforcement of an important sterile area between those administering judgments and those with Government influence. That independence is crucial, because many citizens are keen to have their cases decided on the benefit of the evidence before the tribunal and not because of governmental influence—imagined or not—that is brought to bear on those who administer the service on behalf of the Executive. Members will have cases of constituents who believe that their circumstances have been misunderstood or misrepresented by those in power. Tribunals need to be seen to adjudicate on the evidence alone. The proposals that are contained in the consultation that we are debating should contribute to that result. For justice to be done, it must be seen to be done.
I support the motion and the Labour amendment.
- Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP):
Presiding Officer, my heart sank when you said that we have extra time. We always get extra time when we do not have a lot to say.
I commend David McLetchie who, despite his protestations, spoke for eight and a half minutes, taking us from Roman tribunes to Labour tribunes and from the ancient to the recent history of the development of the word “tribunal”. That was masterly padding, and this is a little bit of padding of my own. David McLetchie was followed by Graeme Pearson, who referred to the possibility of Mr McLetchie possessing the attribute of glamour. I remind Mr Pearson that it is recorded in the Official Report that, this week, he referred to the Cabinet Secretary for Justice as “gifted”. We definitely need recess in the Justice Committee.
Let us move to the business in hand—tribunals. I had no idea that there were more than 40 tribunals, and I did not know that they dealt with 80,000 cases a year. Some people might have expected the debate to be like watching paint dry or that it would be preferable to watch paint dry but, as others have said, tribunals deal with the most sensitive, fundamental and personal issues for many ordinary people day in, day out. Four of the tribunals that have already been referred to are the Mental Health Tribunal for Scotland, the Additional Support Needs Tribunals for Scotland, the Lands Tribunal for Scotland and the Private Rented Housing Panel. To be honest, I had no idea that the Private Rented Housing Panel existed. Mind you, I did not know that there was an Inspectorate of Prosecution in Scotland until last week, and nobody else appears to have known about him either. It is possible to learn something even after being here for 13 years.
The tribunals, panels and committees are all different. Some, such as the Lands Tribunal for Scotland, appear to be very judicial and are like a court; others are not like that. In relation to additional support needs tribunals, I have issues about what happens further down the chain. By the time that people get to the tribunal, they will already have been in front of councillors, trying to get support for placing the children in a certain school. My issue—it is not totally relevant to the debate, but it is connected because it touches, to an extent, on the issue of mediation that John Finnie raised—is that, if we dealt with things earlier on and had proper representation at that stage, we would not need to have people going into the tribunal system.
Do we need to restructure the system radically? I think that we must. I welcome the tiered system, but I look forward to some tribunals and panels providing education and training for tribunal members. I do not wish to slight existing panel members, but I understand that there is not always consistency in the way in which cases are dealt with.
Jenny Marra said that tribunals are inquisitorial rather than adversarial, but that is not always the case, as John Finnie said. Sometimes, what one might call a layperson or a party litigant turns up and there is a Queen’s counsel fully decked out in the wig and the bow tie—the whole lot—with a pile of books in front of them. Whether the books are referred to is another matter, but it is scary and that is an issue. Although some tribunals allow people to have legal aid, legal aid will not always pay for them to have a QC at their side. We must address that.
As has been said, some tribunals are very important. A mental health tribunal is, on balance, the most sensitive, as it can result in someone being compulsorily treated and even put into mental health treatment completely against their will, which is a fundamental removal of the individual’s rights. I understand that the tribunal can make a determination on the day but can also defer determination for up to 28 days and, in that period, make an interim compulsory treatment order. That is pretty serious stuff, so we should be thinking about what our tribunals are moving into. The matters that they are dealing with now—“matters” is a word that Mr MacAskill likes—are becoming more complex. In a decade, things have moved on so that, when a tribunal is dealing with someone with mental health problems, their whole background is considered, which might not have been taken into account 10 years ago.
Additional support needs tribunals deal broadly with children who require support because they are being bullied or have emotional, behavioural or learning difficulties. They might even be gifted children—at the other end of the spectrum, one might say—or bereaved. Those are difficult issues.
Panels and tribunals involve a legally qualified convener and two expert members, but I return to my point that I have always found the difficulty to be that, by the time they reach a tribunal, parents and carers are worn out, because they have been in front of councillors, who have an interest in proceedings when someone is trying to get their child placed somewhere or to get additional support at a school.
The additional support needs tribunal can consider appeals against decisions by education authorities. I like the idea of having a more stable appellate system. I note that, as of 18 March, the tribunal has been able to deal with appeals by parents—or by the person involved, when they have the capacity to make a claim—against a body because it has discriminated on the basis of a disability. That is an incremental change—the minister referred to that. My goodness—I have been speaking for only six minutes.
In the summary of the proposals, I am keenest on the proposal
“To ensure impartial decision-making”,
which must be seen to be impartial. That relates to how some of the tribunals have evolved. I feel that parents have been disadvantaged in additional support needs tribunals. They have not really had a fair hearing and fair representation under article 6 of the European convention on human rights. Councils can sit there with legal teams, whereas the parents are standing on their own, perhaps with somebody who is from the voluntary sector. That person will be informed, able and doing their stuff, but there will nevertheless be an imbalance in representation.
Common judicial leadership is terribly important to education. When the Lord President is put at the top of something, it begins to matter and to mean something.
I notice the
“potential for future developments of the wider system”.
Will the minister comment on a bit of the consultation document that I do not understand? I could have read the simplified version but, unfortunately, I found out about it too late. The consultation document says:
“it does not introduce barriers to future consideration of the option of merging courts and tribunals, in Scotland”.
I do not know what that means. Does it mean just that the same buildings would be used or that tribunals would be linked in? I saw that and thought that I would ask about it.
- Roderick Campbell (North East Fife) (SNP):
I refer members to my registered interest as a member of the Faculty of Advocates.
I welcome the opportunity to speak in the debate. I am a relative newcomer to the Parliament, so I was not a party to the debate on the future of tribunals in September 2010, in which reference was made to the report of the group that was led by Lord Philip, which concluded that the tribunal system in Scotland was extremely “complex and fragmented” and did
“not meet the key principles of independence and coherence”.
Having announced in that debate that there was to be a Scottish Tribunals Service, the cabinet secretary, Mr MacAskill, is reported as having said that that was
“the first small step on a big journey. The real prize is for all tribunals in Scotland to form an integral part of the Scottish justice system.”—[Official Report, 30 September 2010; c 29183.]
That must remain the aim, and the current consultation heralds a further significant step along the way. Given that the new tiered structure will not for the moment include most tribunals that operate on devolved matters, let alone those on reserved matters, there is a considerable way to go, but it is a start.
Tribunal reform was one of the Scottish Government’s commitments for the making justice work programme. Making justice work aims to deliver a Scottish justice system that is accessible, easy to use and cost efficient. Those aims are admirable. As the minister said, tribunal reform must draw on the principles of the Franks report from the 1950s—on fairness, openness and impartiality.
As I said, Lord Philip was not complimentary about Scotland’s tribunal system. The Scottish Tribunals Service supports just six tribunals today, but there are many more and the integration of the six that are serviced by the Scottish Tribunals Service can be only the start. As other members have said, more than 40 tribunals work on different devolved areas in Scotland. All were established by different statutes, in different eras, with different priorities in mind.
We know that significant savings have been made from the establishment of the Scottish Tribunals Service and we cannot pretend other than that keeping the cost of tribunals under control must be a priority, but that must—as always—be compatible with the interests of justice. Reform of the tribunal system is an essential step in making Scottish civil law fit for the 21st century. The consultation on the Scottish Government’s proposals for a new tribunal system for Scotland is therefore a welcome development.
The strategy is clear, as I see it. The organisation of tribunals in Scotland, which can look like a jungle to the average person, will be streamlined, with a clearer appeals structure. Accessibility must remain at the core of the proposals. The new first tier ought to be better able to settle simple disputes, with the possibility of a referral to the appellate level. I do not believe that the system could embody functionality and simplicity better than that.
I am also confident that the new proposals will reassure people who are concerned that tribunals will not be independent of political influence and will not be impartial. Tribunals are used by people who require assistance to resolve disputes when unfair treatment by a third party—most often, an organ of the state—occurs. It is therefore important that their operation is not compromised, or seen to be compromised, by partisanship.
Let us be clear that the proposals are not a comprehensive solution to all tribunal-related challenges. In addition to the fact that the proposal is to commence with only the six tribunals that are serviced by the Scottish Tribunals Service, many tribunals remain reserved to the UK Government, so the Scottish Government cannot, at present, legislate on those areas.
I am pleased that the Scottish Government has been in dialogue with the UK Lord Chancellor, Kenneth Clarke, with a view to progressing the suggestion that there be a transfer of the administration of tribunals that operate in reserved areas in Scotland, as has been recommended by the Scottish committee of the Administrative Justice and Tribunals Council. I am not sure where we are with those discussions; I heard what the minister said to David McLetchie on the issue, but I would appreciate any further nuggets of information from the minister in her winding-up speech. Progress has clearly been made elsewhere in the UK. It would be undesirable for the enthusiasm that has been demonstrated elsewhere not to be replicated in Scotland.
The Scottish Government’s strategy for tribunals is clear. The proposals suggest an integrated model of first-tier tribunals, which will take on the work of current tribunals. In addition, an upper tier will be put in place as an appeals mechanism when decisions by the first-tier chambers are challenged.
Of course, perhaps the greatest strength of Scots law is its integrity. I am confident that the proposed system of tribunals, under the judicial leadership of the Lord President, will help to ensure that that integrity is maintained.
I also support proposals that seek to fully integrate tribunals with other forms of dispute resolution—first and foremost, the courts. The proposals that have been made on tribunals will not, as far as I am aware, affect an individual’s right to appeal to the Court of Session by way of judicial review. Although further clarity may be needed on the question of any appeal on a point of law to the Court of Session, I welcome in particular the proposal that appeals from the Mental Health Tribunal for Scotland to the Court of Session will remain. That is an important safeguard.
The proposals seem to herald a joined-up approach and represent a significant step towards sorting out the currently fragmented and piecemeal system. That cannot be anything but a plus.
I am pleased to have had the opportunity to speak in the debate and am supportive of the Scottish Government’s proposals, even if I might prefer—as David McLetchie suggested—more rapid progress. I look forward to the report on the consultation responses in due course.
- John Pentland (Motherwell and Wishaw) (Lab):
When the proposal to set up the Scottish Tribunals Service was debated in September 2010—there was the same glamour then as there has been in the debate so far—I am reliably informed that there was a remarkable degree of parliamentary agreement, both in voting and in the points that were made. I will continue on that consensual theme, so I apologise if what I will say sounds familiar.
In 2010, everyone agreed that justice that is delivered by tribunals is an integral part of the Scottish justice system, that we should create an integrated tribunals service, that any transfer of powers should seek to preserve the benefits of existing arrangements, and that there should be wide consultation. It was noted that developments at UK level, with the creation, for the UK, of the Tribunals Service were in danger of leaving Scotland suffering by comparison, with tribunals that deal with devolved matters providing an inferior level of service to users. Although everyone was keen that we not be left behind, some concerns were expressed—notably about how the tribunal system sits organisationally with regard to the Scottish Court Service, given the significant differences in how they operate. The timescale for implementation and adequate consultation was also an issue. We are now entering a period of consultation on the further proposals from the Scottish Government.
It is important to preserve the valuable role of tribunals, which combines their specialist knowledge and understanding with their operation as a less formal and less adversarial arena for justice than the court system. Although there is no doubt that the tribunal system that we have inherited is complex and could benefit from a more consistent approach, we must balance measures to address that with the need to maintain the tribunals’ strengths, including their accessibility. Affordability should not be a barrier to justice.
We must be aware that, while we seek to adopt standardised packaging for tribunals, their contents vary, and we should not discard important ingredients. We must ensure that the process of simplification and standardisation of procedures does not undermine specialised elements that are of value in particular tribunal areas. The reduction of overlaps and the elimination of duplication are worth while, as long as they are genuine overlap and duplication, and as long as elimination does not involve putting square pegs in round holes, which would not be the way to ensure better deployment and sharing of resources.
We need to be able to maintain important specialisation in appointments and support structures. I am therefore pleased that the consultation document is careful to make it clear that a coherent system does not mean a one-size-fits-all system. That is, of course, easier to say than it is to achieve, particularly with 40 tribunals that deal with thousands of cases between them.
As the consultation document recognises, the key objectives are not necessarily mutually compatible in all respects. Emphasising or prioritising one objective may make others more difficult to achieve. Specialisation has already been mentioned as an issue that is likely to arise in pursuing a streamlined service. There are also potential conflicts between safeguarding the interests of users and pursuing greater administrative efficiency. Even within each one of the stated key objectives, there is room for divergence. Securing just and speedy outcomes sounds good, and it certainly does not serve the cause of justice to allow cases to drag on—but neither does excessive haste. For those reasons, it is right that the statutory framework be for evolutionary change. Tribunals must be allowed to address their individual issues and requirements, and to integrate to an extent and at a speed that preserves their advantages and ensures the optimal balance in applying the key objectives.
I note that the consultation covers only the devolved aspects of the tribunal integration. However, given that such integration is taking place in England and Wales, and that it has been suggested by the UK Ministry of Justice and others that there could be a transfer of powers for reserved tribunal administration and the judiciary to Scotland, I take this opportunity to support the principle of such a move.
- Chic Brodie (South Scotland) (SNP):
In its way, the debate—enjoined as it is to the Government’s consultation paper on a new tribunal system for Scotland, as announced by the minister on March 23—will, I opine, help to redefine significant elements and redraw the geography of common and fair justice in Scotland.
Many members have mentioned the Philip review. As the chairman, Lord Philip, said in his foreword to the 2008 report,
“Tribunals are now a vital part of Scotland’s justice system”.
When Sir Andrew Leggatt produced his report, “Tribunals for Users: One System, One Service”, in 2001, which had a much more significant impact on England and Wales, it did not—and perhaps could not—address all the complications of subsidiary justice in our devolved country, because of the complications involving tribunals that dealt with reserved matters, those that dealt with devolved subjects pre-1999 and those that dealt with devolved matters post-1999. Having sat on the Economy, Energy and Tourism Committee as it has wrestled with the Land Registration (Scotland) Bill, I know that the issue of land tribunals has come quite significantly into play.
Although the Leggatt report was sound, it did not address Scotland’s needs. The Philip report quite rightly indicated that the system was fragmented, complex, insufficiently independent and lacking in quality and it pointed out that tribunals seemed to have passed some inconsistent or erroneous judgments.
It is clear that we are talking about something that is an integral part of our judicial system—a devolved and independent system that presides over—as the minister indicated and which Christine Grahame honestly learned—80,000 cases and involves more than 40 tribunals in Scotland. It is not objective or independent and is possibly—perhaps inevitably—unfair.
I welcome the fact that, since the Scottish Tribunals Service was launched in 2010, it has supported six tribunals. Of course, we have much more to do to square that particular circle. In a modern just Scotland, there has to be a system that secures best practice and avoids duplication—a system that is cost effective, secure, consistent, cohesive, which allows ease of communication and which makes justice work quickly, in the interests of coming to an agreement and avoiding people having to have recourse to expensive court action. It is better to have a quicker and less costly way to solve disputes. An efficient and all-embracing tribunals service is the way to do that.
I welcome the Government’s consultation and look forward to the report that will be produced once the consultation closes on 15 June. The measures are overdue, which is why I suggest that the debate and the consultation sequitors will redefine the boundaries of fairness and justice in Scotland.
Although we must retain the benefits and specialisms in law, I suggest that there must be an increasing and transparent role for more legal arbitration on disputes. We require to develop new rules. I welcome the possibility—indeed, the probability—of a new process of dispute resolution at a point not too far in the future. I know that that is a matter that will not be kicked into the long grass by the minister.
I understand that some tribunals are funded by sponsoring departments in the UK Government and elsewhere. That is not independent. I also understand that members of reserved tribunals are appointed by a judicial appointments procedure and others go through a public appointments system. That is not independent either. We need to ensure that all tribunal members are appointed appropriately and are suitably trained to ensure and, indeed, to secure objectivity and impartiality in their decision making. I welcome also the Government’s intention to seek independent advice to ensure that tribunal members are appropriately remunerated.
The objective is that there will be no duplication of training, administration or information technology systems across devolved tribunals. Simples.
As the paper suggests, we need a two-tier tribunals service that will deal with all matters—reserved and devolved—to handle dispute resolution, with a subject-based first tier that makes all decisions and is buttressed by an upper tier to which appeals can be referred. I hope that that upper tier would be used infrequently.
A smart and just Scotland needs to fit in place this piece of our national jigsaw in order to deliver openness, efficiency, responsiveness, consistency and fairness—our sense of fairness.
There will, of course, be Jeremiahs who will question, for example, the nearly £12 million to be spent on tribunals in the coming year, but that is another instance of sound preventative spend. If we achieve what we set out to achieve, I ask them this: what price fair, effective and speedy dispute resolution?
I support the motion.
- Nigel Don (Angus North and Mearns) (SNP):
I would like to take us back a few years and to a little bit of research into the history of the situation. Members have referred to Sir Oliver Franks’s report in 1957. I am delighted to say that I have a copy of that report in my hand. It is not the first one that I bought, because once I passed the exams, I made the mistake of getting rid of that document: I thought, of course, that I would never need it again. I am grateful to the Scottish Parliament information centre, which has produced a copy from the National Library of Scotland very quickly.
Page 2 of that report says that “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.”
Paragraph 10 of the report says that
“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, 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.”
I think that we recognise the sentiments, but probably not the subject matter.
Post-war developments appear on page 8 of the report. I am looking to demonstrate how things arose. The report says that
“new policies or regulatory legislation have meant new tribunals”.
The Agriculture Act 1947, the National Insurance Act 1946, various rent acts and the National Insurance (Industrial Injuries) Act 1946 are cited and it is pointed out that “Tribunals today”—that is, in 1957—
“vary widely in constitution, function and procedure.”
Nothing much has changed since then.
On page 25, Sir Oliver Franks looks at the right of appeal. He says:
“The existence of a right of appeal is salutary and makes for right adjudication. Provision for appeal is also important if decisions are to show reasonable consistency. Finally, the system of adjudication can hardly fail to appear fair to the applicant if he knows that he will normally be allowed two attempts to convince independent bodies of the soundness of his case.”
I am not sure that we would quite sign up to that these days, but a fair point is made about where Sir Oliver Franks was coming from.
Members have referred to our debate in September 2010. I spent my time talking about the right of appeal, and I have re-read what I said. I stand by it, although I have no desire to repeat it to members. It seems to me that where there is a good and accessible—although not necessarily speedy—right of appeal, there will be good judgments. I think that we all recognise in life that, where there is no real prospect of something being appealed, those who make the decisions may well, without any malice at all, get lazy. Therefore, we are much more likely to get bad decisions.
In the context of the consultation, the role of the upper tier, as I understand it, is on matters of law. It must be recognised, of course, that calling the right evidence and referring to it correctly is itself a matter of law. That seems to be entirely right, otherwise we will simply rehear cases, but it begs the question what legal qualifications should be required of those who adjudicate in the upper tier.
I note from the consultation paper that all the High Court judges, if I may so describe them, will automatically be on the panel. Can the minister give us clues as to who else might be deemed to be legally qualified and to what extent upper-tier members might be experts, rather than lawyers?
- Roseanna Cunningham:
There will be the possibility of sheriffs, sheriff principals and other very expert individuals adjudicating at that level. We are talking about a high level of legal input.
- Nigel Don:
I am grateful for that clarification.
It has occurred to me that the upper-tier tribunal will set precedent. It will be staffed by senior people and it will make law. I would have thought that what it decides will be binding on the first-tier tribunal in the future. I wonder to what extent there will be reporting systems that extract and communicate precedents to first-tier adjudicators. I suspect that in the past we have not been as good as we should have been at such communication.
I also wonder to what extent it is thought that the appeals system might be rationalised in the future. One might suggest—theoretically and quite unreasonably—that the first tier might appeal to the upper tier, which might appeal to the sheriff principal and on to the Court of Session, the Supreme Court and the European Court of Justice. No one wants that to happen, but I make the point simply to demonstrate that it might be sensible if we had standardised lines of appeal and appropriate jumps could be made, to ensure that things could not go on for ever.
I endorse what John Finnie said about access, which is essential, and what he said about early resolution and mediation, which are undoubtedly the way forward. Unreasonable cases should be eliminated from the system, but we must ensure that there are no unnecessary barriers to going to a tribunal for complainers. I guess that getting the right cases in and keeping the others out is a difficulty of any legal system.
As other members have done, I note that the handful of tribunals that are included in the current proposal can be expanded to include other tribunals that are devolved and—in time, no doubt—tribunals that might subsequently become part of an independent Scotland. What I like about what is proposed is that constitutional change does not seem to matter; the system seems to be appropriate. I welcome that.
Paragraph 4.9 of the consultation paper mentions a procedure for reconsideration of decisions of the first-tier tribunal. That sounds like an extremely good idea. The ability to go back and think again before passing something on to others is a sound approach in life. I confess that I am not familiar with such an approach anywhere in our legal system, so I would be interested to know how it might work.
From paragraph 4.52 onwards, the consultation paper is about opportunities to improve. That is an extremely good thing.
Christine Grahame said that some complainers are worn out by the time their case reaches a tribunal. As we think about the tribunals that pick up the pieces, we should consider the processes, which are often in local authorities, into which complainers will already have put a lot of time and effort. In that context, we might consider situations in which council legal officials are asked to be general and in-principle advisers in the process, although they are being paid by one of the parties. I think that the practice still goes on, although it is not entirely consistent with our ideas of judicial fairness.
- James Kelly (Rutherglen) (Lab):
It has been an entertaining debate. We have had the glamour of David McLetchie, the dry humour of Christine Grahame and a history lesson from Nigel Don. For me, it has been a bit like groundhog day. Like Nigel Don, I took part in the debate on tribunals in September 2010. As John Pentland said, there was a lot of consensus in the chamber that day, as there has been today.
There is a sense of frustration that the pace of change has been slow. That is not a party-political point because, as Mr McLetchie rightly pointed out, the issues go back more than 10 years and they cross different Administrations. It is clear that different groups have been grappling with them, but it is now time for the Parliament and the Scottish Government to grasp them and to move forward.
Tribunals are a serious matter. As the minister said, there are 40 tribunals, which 80,000 people go through—that is a lot of traffic. They have a terrific impact on people’s lives. Ordinary people find such situations extremely stressful, and we owe it to them to make the process more efficient, more streamlined and as user friendly as possible.
- John Finnie:
The member mentions the stress that is associated with attendance at a tribunal. Does he agree that everything should be done to resolve issues through early intervention to prevent them from going to tribunals in the first place?
- James Kelly:
I thank the member for his intervention and I agree with what he says. As he said in his speech, alternative mechanisms for dispute resolution before the tribunal process is embarked on should be properly explored. That would ensure that more effective decisions are made.
As others have said, the fact that the 40 tribunals cover three branches—in the sense that some of them are UK tribunals, some are Scottish tribunals that were established before devolution and others are Scottish tribunals that have been established since devolution—adds to the complexity of the issue and means that there is a variety of governance arrangements for the different types of tribunal. [Interruption.] Yes, Presiding Officer—I am speaking very slowly.
The drivers for change are the complexity of the tribunals landscape and the need to make tribunals more user friendly. We must tackle the bureaucracy that is at the heart of the system and produce a new system that is more transparent, fairer and more consistent and which users of tribunals feel gives them a fairer deal.
- Christine Grahame:
I am trying to help the member out. Does he agree that the websites of some of the tribunals are quite helpful? Does he also agree that we should applaud the Government for publishing a simplified version of the consultation—I saw it late in the day—which is about the level that I need?
- James Kelly:
I thank Christine Grahame very much indeed.
We all use information technology in our workplaces, but the issue is getting the information out to the 80,000 users of tribunals as they embark on the process of a tribunal appeal, which can be daunting and intimidating. For many, the first port of call is a website, and there is no doubt that it is helpful to the user if the website provides concise instructions on the process.
A number of issues need to be considered and members have spoken about many of them during the debate. One is the lack of a consistent appeal route. The right of appeal is an important judicial principle, but there is no appeal whatsoever with some tribunals. As Nigel Don said, if a tribunal knows that it will not be subject to further scrutiny on appeal, that could lead to a somewhat lax approach when it considers the decision at hand. The appeal route needs to be tidied up so that people know that there is consistency.
We must also ensure that the appointments process is open and transparent. As many members have said, decisions taken at tribunals can have quite an impact on people’s lives. Those who sit on tribunals therefore have a great responsibility and we need to ensure that the people who are appointed treat their positions properly and are appropriately qualified.
We also want to know that there is appropriate independence. [Interruption.] I have some other points that I would like to make, Presiding Officer, if that is okay.
- The Presiding Officer (Tricia Marwick):
That is perfectly acceptable, Mr Kelly. I know that you have really important points to make and that the members in the chamber would love to hear them.
- James Kelly:
Yes. I can see that members are looking very attentive, particularly those on the front benches, who I am sure are willing me on.
The independence of the tribunals is obviously important if we are to ensure confidence not only in the process but in the decisions that come out of the process. The appointment of the Lord President to lead the tribunal process will ensure consistency around policy. Given that 40 different tribunals operate around the country, we need a consistent approach, and we need to tackle seriously the question of how we achieve that consistency. I welcome the appointment of the Lord President to lead the process, as that will help.
Some tribunals have not been properly resourced, and they need to be. I acknowledge that that is a major challenge at a time when budgets are under threat. However, the consultation on the way forward gives us an opportunity to streamline the process and thus make the most of resources and ensure that all tribunals are properly resourced. Allied to that, we need to ensure that tribunal members are properly trained. If they are to understand the process and make appropriate decisions, that is essential.
I welcome the Government holding the consultation at this time. I note that the consultation will be held over a 12-week period. At the end of that period, it will be essential that the Government outline a clear process, with timescales, so that members are aware of it and so that the many tribunal users will have confidence in the transparency of the system.
- Colin Keir (Edinburgh Western) (SNP):
I think that we should give a vote of thanks to Mr Kelly for managing to speak for eight minutes.
I welcome the broad agreement across the chamber on this issue. We have managed to find various routes into the debate, which has been fascinating—and the debate has been an awful lot more interesting than some of us might have expected. For example, we had Mr Pearson with his gladiatorial approach to saying nice things to Mr McLetchie, which is always very nice to see. I have decided that the best name for Mr McLetchie these days is Grand Tribune, which I think sounds very statesmanlike.
I welcome the Scottish Government’s consultation. We have heard of the importance of the tribunal system and its place in the legal system. Any new legislation that proposes to make the tribunal system—which at times looks unwieldy and difficult to understand and is in some cases intimidating to those taking part—more streamlined and easier to understand should be welcomed.
The key issue is clarity. Over the years, the different tribunals’ differences of approach have led to some confusion. It would be logical to bring the tribunals together with a common structure under the leadership of the Lord President of the Court of Session—although he will be able to delegate responsibilities—and to create a new position of president of the Scottish tribunals.
The Scottish ministers appoint most tribunal members and set the rules and regulations for tribunals, so it could be thought that tribunals are not as independent as they could be.
Statutory provision for a devolved Scottish tribunal system with scope for integration with the reserved UK tribunals that operate in Scotland could make the administration and law of tribunals more understandable. I hope that the continuing discussions between the Scottish Government and Westminster on that are fruitful, and I encourage the minister in that regard.
Service users must be at the heart of any changes to the system. Jenny Marra, who is not in the chamber at the moment, mentioned that important point. A man or woman who embarks on dispute resolution must have confidence in the impartiality of the particular tribunal that they use. Christine Grahame also mentioned that.
I have never served on anything that was called a tribunal. My closest personal experience of something akin to the tribunal system was when I was the convener of the City of Edinburgh Council regulatory committee—a quasi-judicial committee that heard objections to licence applications from the police and others before coming to a determination.
I chaired many of that committee’s meetings, and it was clear that applicants did not always understand the process, which usually required them to engage a legally qualified person for advice. Just as important, they did not fully understand the appeal process, which entailed an extremely expensive journey to the sheriff court.
The proposed new two-tier tribunal system would help people who require a determination through a tribunal. Most disputes would be settled at stage 1—I agree with those who called for better early intervention—and the upper tier would deal with any subsequent appeals, so the system would be set up to avoid any visits to court.
We have heard a lot about the process, and I will now give a practical example of why we require a simplified system. Citizens advice bureaux provide significant support to and representation of clients in relation to many legal issues, including representation at benefits tribunals and employment tribunals and in small claims cases and repossession proceedings.
The number of tribunals at which CABx provided representation increased to 4,000 in 2010-11—an increase of 87 per cent on the 2009-10 figures. The number of court or tribunal documents that the CABx prepared more than doubled to 16,000 in 2010-11. Members may be interested to know that the increase in representation was mainly driven by a 58 per cent increase in the number of welfare tribunals at which an adviser provided representation.
That volume of activity represents a huge draw on the limited resources and time of the CABx and places a great strain on a service that helps every client who requires assistance. The figures strongly indicate that the number of benefits cases in which representation is required is likely to continue to increase as the welfare system continues to undergo change.
Appeals are becoming an increasing part of the workload for CAB welfare advisers. Although tribunal appeals make up only 10 per cent of benefits cases, they take up a significant amount of adviser time and resources. Therefore, more efficiency in the tribunal system would assist not only the system’s secretariat but those who help others.
- Roderick Campbell:
So far, Colin Keir has not mentioned the tribunal judiciary. Does he agree that it is appropriate that the Scottish ministers determine their remuneration on the basis of independent advice?
- Colin Keir:
There is every possibility that I will agree with that statement.
The tribunal system in Scotland requires to be changed. As we have heard, there have been various reports from eminent people over the years, as well as various debates in the chamber, and I believe that now is the time to deal with the issue. If we seek to give the system a 21st century makeover, we must make it understandable to all involved and ensure that it has a clear chain of command and that the process is clear.
Finally, I note that the system is going to be under extreme pressure over the coming period. I support the motion.
- The Presiding Officer:
Thank you, Mr Keir. We move to winding-up speeches, and I call David McLetchie. Mr McLetchie, you may have about seven minutes.
- David McLetchie:
Oh, is that all? How disappointing, Presiding Officer.
As I indicated in my opening speech, I have some concerns about what might be charitably described as the painstaking approach to tribunal reform in Scotland over recent years and, as Roderick Campbell and James Kelly made clear, the limited progress that has been made in that time. I remind Parliament that, back in 2007, the then Justice 2 Committee published a report on the legislative consent memorandum for the Tribunals, Courts and Enforcement Act 2007, in which it expressed a concern that Scotland-only tribunals
“should not be left behind”
in the process of reform. As we have heard, that concern remains valid.
With regard to the Scottish Tribunals Service, which was created in December 2010, the Philips report—where we find the genesis of that body—recommended that it be given the remit to provide support to all tribunals with jurisdiction in Scotland. However, as we have heard, to date only six have been brought within that support structure. That leaves 10 devolved tribunals—and, more significantly, the numerous reserved tribunals with jurisdiction in Scotland—sitting outwith the system. As a result, we must press the Government on its intentions in relation to the new system. Is it really content for Scotland to have a number of administrations, some of which are supported by the Scottish Tribunals Service, some by HM Courts and Tribunals Service and others, both reserved and devolved, operating on an entirely free-standing basis? In that respect, I was heartened by the minister’s intervention in my opening speech, although I echo and press Roderick Campbell’s request for further information on that point, driven as it is by our mutual desire, and indeed the desire of many in the chamber, for faster progress. I also note from the Government’s consultation document that the merger of the UK Tribunals Service and HM Courts Service raises governance and constitutional issues in Scotland, and the consequences of that might well act as a spur to the creation of an integrated tribunals and courts service and a faster pace of reform.
The piecemeal approach is reflected in the content of the consultation document. I was interested in remarks made by John Finnie and John Pentland about accessibility, representation before tribunals and the complexity of the subject matter that many tribunals deal with. In my professional life as a lawyer, I never had occasion to represent anyone at a tribunal. However, although I have retired from that work, I recently represented a relative at a social security tribunal in an appeal over the awarding of attendance allowance—with a modest degree of success, I might say, although I add that that had nothing to do with my own qualities. Nevertheless, I was interested in the complexity of the issues surrounding the award of what is on the face of it a relatively straightforward benefit. I simply note that the tribunal system considers far more complex subjects than entitlement to attendance allowance.
The proposal is that there should be a two-tier system with the upper tier acting as a common appellate mechanism. Nigel Don, in a characteristically erudite speech, spoke about that and took us back to the source document—the Franks report of 1957. We should thank him for the diligence of his research.
However, I return to the issue of why only four tribunals will come into the new system in the first instance. Why will the four that have been selected be transferred while others are not? There is a passing reference in the consultation document to consideration of the other tribunals on a case-by-case basis, but we would like to know how long it is envisaged that that will take.
The consultation states that all local government tribunals will be considered for transfer to the new system. In that connection, I would be grateful if the minister could tell us why the Government has not acted on the persistent and oft-repeated view that the education appeal committees, which Christine Grahame mentioned, and which deal with education authority decisions to exclude pupils or refuse a placing request to a different school, are not sufficiently independent of the councils that take the initial decisions. Many of us have constituents who have raised such concerns with us from time to time. The Government could have acted to bring those committees within the framework.
There is clearly a balancing act at play between, on the one hand, the need to ensure that we have a tribunal system that is sufficiently specialised to deal with different and complex subject matters and, on the other, the need for efficiencies and savings. John Pentland mentioned that. It would have been better if the consultation document had considered the need for the current number of tribunals. The opportunity to do that has been missed, as has the opportunity to consult on which of the tribunals that are not being brought within the framework would be suitable candidates for inclusion in future.
I very much appreciated Colin Keir’s speech and his recognition of the tremendous work that volunteers in citizens advice bureaux and other advocacy organisations do in representing people before our tribunals. The system of administrative justice gets tremendous value from those volunteers and it is only appropriate that we recognise their contribution.
I welcome the consultation as further reform is overdue. I would have liked it to go a bit further in its scope, but I encourage everyone who has knowledge of and expertise in the system to respond to it.
- Jenny Marra:
The people who have sat through the debate in the public gallery this afternoon have witnessed something unusual in the Scottish Parliament—a consensual debate. If they had been here last week, they might have seen me, the minister and Chic Brodie locking horns over other issues. However, the matter that we have discussed today is of no less importance.
It has been a good debate, with interesting speeches from members throughout the chamber. I thank David McLetchie for his speech. I always enjoy listening to him, and I particularly enjoyed his reference to the origins of tribunals in Roman law. I hoped that he would spend a bit more of his time elaborating on that, but perhaps my penchant for the intricacies of Roman law is not shared by everyone in the chamber or indeed anyone who is watching the debate. Nevertheless, I thank him for that.
David McLetchie also called for clarification on the pace of change and integration. We would like to echo that point, which is important.
During the open debate, several members made significant contributions. My colleague John Pentland said that the standardisation and streamlining of practices should not come at the cost of specialisation in the tribunals. Mr Pentland made a convincing case; he said that we should guard against a one-size-fits-all system. That is worth noting.
Chic Brodie raised the issue of more arbitration and dispute resolution and pointed out how that is also important for preventative spend. We need to be most efficient and use such measures. My colleague James Kelly echoed that point. There is general agreement in the chamber that more arbitration and dispute resolution should be at the heart of the proposals.
James Kelly highlighted the crucial point that lies at the centre of Labour’s amendment by talking about the impact of tribunals on people’s lives. People often go to tribunals in stressful situations, whether it be because of private disputes or disputes with a public body, and it can be a worrying time for them. It is important that the proposals make that time easier.
During the debate, the minister handed me the easy-read guide on the consultation. It is a useful piece of work by the Scottish Government. It makes the issue a bit more accessible and transparent, as mentioned in our amendment. Perhaps the minister and the cabinet secretary will consider producing some easy-read guides for other areas of justice policy. It might be useful to have one on sentencing, an issue that the Justice Committee has recently grappled with.
I also apologise to the chamber for making a mistake about the number of tribunal hearings. I think that I underestimated the number at 50,000, when in fact it stands at 80,000, as many of my colleagues have pointed out.
The consultation marks the next step in a series of incremental reforms of the tribunal system, which is in need of change, as we have heard this afternoon. On the whole, the proposals are positive. By bringing each of the tribunals that operate independently of one another into a coherent and streamlined system, we can offer Scots a greatly improved service. Throughout the process, it is vital to put people at the centre of the reform by consulting widely, incorporating people’s views into any statutory measures and making a system that puts their interests at its centre.
Confidence in the civil justice system is a cornerstone of modern democratic states. Labour’s amendment stresses the importance of the three principles of transparency, accountability and accessibility. Most Scots who interact with the civil justice system in Scotland will do so through tribunals, which is why we must get the reform right.
In the spirit in which the debate has been conducted, I hope that the minister and the Government will support my amendment. The tribunal system must be transparent and accountable in all aspects of its decision-making process, from judicial appointments to the implementation of its governing rules. We should seek to make the process one that enhances the ability of Scots to access justice that they might not have had previously. We need a system that, through its clarity and accessibility, has the will to seek justice where injustice has been done. In that vein, we have heard a number of things to consider, such as the drive for efficiencies. Undoubtedly, there is room to make savings, but that should be balanced against the need to protect the distinct format and role of tribunals in our wider civil justice system.
I look forward to seeing the consultation responses that the Government will receive during the next 12 weeks, and to working with the Government to ensure that we get the consultation process and the system right for the people of Scotland.
- The Presiding Officer (Tricia Marwick):
I call Roseanna Cunningham to wind up the debate. It would be helpful if you could continue until 4.55, minister.
- Roseanna Cunningham:
Thank you, Presiding Officer.
I am grateful to members for their thoughtful and insightful comments, on the proposals to reform Scotland’s tribunal system, although it must be said that, mostly, I am grateful for the length of their comments. We have been having a little fun this afternoon at our own expense, but it is worth reminding ourselves that, although tribunals might seem to be a Cinderella part of our judicial system, they are in fact the judicial equivalent of constituents’ concerns about littering and bins and so on. That is to say that, to each and every individual who is caught up in the tribunal system, that might be the single most important thing that is happening to them at that time in their lives. We need to remember that in the debate.
I am glad that so many members agree that we have a huge opportunity to improve our tribunal landscape for the better and to ensure that our citizens get access to a first-class system. I will pick up on a few specific points that members have raised. David McLetchie raised a question about the chamber structure. We believe that it should be sufficiently flexible to allow for the integration of other tribunals as and when required. I will perhaps say something about that slightly broader issue later.
John Finnie reminded us how wide-ranging issues of accessibility can be and how some tribunals have moved much more in the direction of professional legal input than was perhaps originally envisaged. Having listened to members, I think that I might in fact be the most experienced person in the chamber in respect of tribunals, as I have represented the City of Glasgow District Council at industrial tribunals and employment appeal tribunals. Also, rather unusually, I have been called as a witness, in my capacity as a constituency member, for a constituent at a tribunal. I have therefore seen tribunals from both sides. In my capacity as minister, I have taken the opportunity to sit through a mental health tribunal to see how it worked. Legal representation was involved, although it was informal. The interesting thing about my experience with the industrial and employment appeal tribunals was that the council had professional legal representation at every one of those tribunals, whereas most of the people on the other side did not. That is worth remembering.
We are embarking on the most radical reforms of our court and tribunal systems for at least a century. Members need to think about the changes to tribunals as part of that much wider programme of work that the Government is undertaking. In 2011, we launched the making justice work programme, which aims to pull together a range of current and potential reforms to the structure and processes of the justice system, access to justice and alternatives to court. The programme involves major, complex and long-term change. We are committed to ensuring that the reforms happen.
It is important to emphasise that, as I said in my opening speech, we have the infrastructure in place to support the administration of Scotland’s tribunals as a result of the establishment of the Scottish Tribunals Service. I referred to the development of the Scottish Tribunals Service and the progress that it has made in the past 15 months. The service is ready to meet the challenge of administering a new integrated tribunal system and of ensuring that the new structure and its users get the best-quality service.
Christine Grahame said that she was uncertain of the phraseology that is used in the consultation document about the integration of the court and tribunal services. That refers to the potential for or possibility of integration into a single administration under the leadership of the Lord President; it is not about merging courts and tribunals. If there was confusion, I hope that those comments have clarified the issue.
The supporting infrastructure is only part of the story. The only way to guarantee a first-rate tribunal system is to ensure that the appropriate structure—including judicial leadership, appointments, security of tenure and rule making—is provided for in legislation, and to have that legislation uphold the independence of tribunal judiciary. I cannot emphasise enough that our proposals do not seek to dilute the specialism or the uniqueness of different jurisdictions but will support their more effective and efficient operation. The new system has to give effect to its intention by using the more coherent structure to improve the effectiveness with which each constituent tribunal discharges its specific statutory duty. An integrated structure can bring a broader range of knowledge, experience and perspectives to bear on the matters that come before it.
The consultation paper marks the next phase in our journey on tribunal reform. As I have said, the realisation of the proposals in the consultation and the establishment of the Scottish Tribunals Service will provide the support structure and framework for integration, while giving the flexibility to ensure that the specialist nature of tribunals is maintained. The consultation paper lists the tribunals that will be integrated into the proposed new system once it is in place. They are the tribunals that are currently administered by the Scottish Tribunals Service and relate to devolved matters.
One or two members have referred to what they regard as slow progress. The integration of other tribunals will require careful consideration and consultation with those affected, to ensure that the right balance is struck between maintaining specialism and the integration of systems and support. It may appear to be a simple and straightforward move, but it will not always be.
We expect that, over time, tribunals in Scotland dealing with devolved matters will be integrated into the system. Creating a cohesive unified system is ambitious; it will take time and will involve close working with existing tribunals, their users and their stakeholders. It will not be an easy task; by their very nature, as some members have pointed out, tribunals are diverse, unique and individual. For example, those who are not currently supported by the Scottish Tribunals Service cover subject matters such as police appeals, valuation appeals and, as has been mentioned, education appeals. There is even a tribunal that deals with horse betting levies. The system that we are proposing will provide the framework to accommodate and support such wide-ranging and diverse subject matters.
I reassure Jenny Marra that the consultation period will include five separate stakeholder events across the country, as well as a separate and specific event for mental health stakeholders, because of the importance of the Mental Health Tribunal.
We intend that our journey on tribunal reform will take us even further. When we last debated tribunal reform and the wider administrative justice system, we discussed an announcement that was made by the Lord Chancellor on 16 September 2010. He alluded to the prospect of the responsibility for judicial leadership of reserved tribunals sitting in Scotland transferring to the Lord President. He also raised the prospect of the administration of reserved tribunals transferring to Scottish ministers. There was cross-party support for that, as has been mentioned by David McLetchie, Rod Campbell, John Pentland and others. Since then, the Scottish Government has been in regular and detailed discussions with the Ministry of Justice to develop the proposals further, and the Lord Chancellor wrote to me on 31 October last year, setting out the basic terms of his proposal. Some thinking is still required on the detail, but we are moving in the right direction. The Lord Chancellor has recently confirmed that he remains committed to delivering the proposal. I understand that the UK Government intends to consult on its proposals for the integration of court and tribunal judiciary later this year. That will require primary legislation.
The Scottish Government remains committed to continuing such discussions. We will do that—not only because discussions may result in the transfer of functions to Scotland, which we would welcome, but because they would allow us to develop a system that works for all Scotland’s tribunals, not only those where the subject matter is devolved.
We have spoken about ways in which tribunals can increase access to justice, and I hope that members will get an opportunity to consider the simplified version of the consultation document that makes it clear what is being discussed and what is intended. It is important to recall that tribunals are set up to be accessible, even if some of them have moved away from that.
We have debated the proposals that are set out in the consultation paper, and we welcome the views of members. We also welcome views from interested groups, tribunal users and members of the public as part of the consultation process, and I hope to get input from all of them. All the discussions will help us to refine the proposals into a deliverable policy on which the Parliament can legislate with confidence. It is a prize worth obtaining and one that the Government is committed to working towards.
For the avoidance of doubt, I state that we will accept the Labour amendment. I thank all members for today’s debate.