Justice Committee

Meeting date: Tuesday, December 5, 2017

Official Report 559KB pdf

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Subordinate Legislation

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First-tier Tribunal for Scotland (Transfer of Functions of the Additional Support Needs Tribunals for Scotland) Regulations 2018 [Draft]

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First-tier Tribunal for Scotland (Transfer of Functions of the Scottish Charity Appeals Panel) Regulations 2018 [Draft]

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First-tier Tribunal for Scotland Health and Education Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 [Draft]

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First-tier Tribunal for Scotland General Regulatory Chamber Charity Appeals Cases and Upper Tribunal for Scotland (Composition) Regulations 2018 [Draft]

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Public Records (Scotland) Act 2011 (Authorities) Amendment Order 2018 [Draft]

The next item is consideration of five instruments that are subject to affirmative procedure. I welcome Annabelle Ewing, the Minister for Community Safety and Legal Affairs, and her officials. Hannah Frodsham is a policy executive and John St Clair is a senior principal legal officer, both with the Scottish Government.

The item gives members a chance to put to the minister and her officials any points on the instruments on which they seek clarification before we formally dispose of them. I refer members to paper 1, which is a note by the clerk.

I will deal with the first four draft Scottish statutory instruments and then with the draft Public Records (Scotland) Act 2011 (Authorities) Amendment Order 2018, if that is okay.

If you could address each of them briefly in order, that would allow us to put our questions without getting too mixed up.

I will address each of the first four SSIs separately, in order.

This suite of fairly technical regulations will transfer the Additional Support Needs Tribunals for Scotland and the Scottish Charity Appeals Panel into the Scottish tribunals structure that was created by the Tribunals (Scotland) Act 2014.

The first two instruments are the First-tier Tribunal for Scotland (Transfer of Functions of the Additional Support Needs Tribunals for Scotland) Regulations 2018 and the First-tier Tribunal for Scotland (Transfer of Functions of the Scottish Charity Appeals Panel) Regulations 2018. The regulations will simply transfer the functions and members of the Additional Support Needs Tribunals for Scotland and the Scottish Charity Appeals Panel to the First-tier Tribunal for Scotland. In addition, the regulations set out the transitional procedure for cases that are in progress on the date of transfer. The regulations will also make consequential amendments to primary and secondary legislation resulting from the transfer of the Additional Support Needs Tribunals for Scotland and the Scottish Charity Appeals Panel into the Scottish tribunals. As the Additional Support Needs Tribunals for Scotland and the Scottish Charity Appeals Panel are listed separately in the Tribunals (Scotland) Act 2014, each of the jurisdictions needs to be dealt with in separate instruments.

The next set of regulations is the First-tier Tribunal for Scotland Health and Education Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018. They specify the type of member who will hear cases in the health and education chamber. The provisions mirror the existing composition of the Additional Support Needs Tribunals for Scotland. The regulations will also allow the chamber president or a legal member sitting alone to hear any matter in a case under section 18(3)(ea) or (eb) of the Education (Additional Support for Learning) (Scotland) Act 2004. Those provisions, which are due to be commenced on 10 January 2018, will allow the tribunal to decide whether a child over the age of 12 has the capacity to exercise the rights under the 2004 act on their own behalf.

The regulations also set out the composition of the Upper Tribunal when hearing appeals from the First-tier Tribunal’s health and education chamber and, mirroring the previous arrangements, allow for a Court of Session judge to hear an appeal in the Upper Tribunal. The president of tribunals will determine who hears the appeals and may select herself, the chamber president or, indeed, the Lord President, if appropriate.

Finally in this suite of four sets of regulations, the First-tier Tribunal for Scotland General Regulatory Chamber Charity Appeals Cases and Upper Tribunal for Scotland (Composition) Regulations 2018 specify the type of member who will hear charity appeals cases in the First-tier Tribunal for Scotland. Again, the provisions mirror the existing composition of the Scottish Charity Appeals Panel. The regulations also set out the composition of the Upper Tribunal when hearing charity appeals from the general regulatory chamber and, again mirroring the previous arrangements, allow for a Court of Session judge to hear an appeal in the Upper Tribunal. The president of tribunals will determine who hears the appeals and may select herself, the chamber president or the Lord President, if appropriate.

Each of those four SSIs will play a part in enabling the transfer of the Additional Support Needs Tribunals for Scotland and the Scottish Charity Appeals Panel to the new structure.

The Public Records (Scotland) Act 2011 (Authorities) Amendment Order 2018 is a very technical instrument that adds the First-tier Tribunal for Scotland and Upper Tribunal to the list of authorities that are covered by the Public Records (Scotland) Act 2011. The act requires listed authorities to prepare and submit a records management plan to the keeper of the records of Scotland for his agreement, and to implement their agreed plans, comply with the arrangements set out in them and keep them under review. Currently, a number of the tribunals are listed separately in the 2011 act; however, because they will be abolished as they transfer into the Scottish tribunals structure, their listing will be deleted, and the order will rectify that situation by adding the First-tier Tribunal and the Upper Tribunal to the list of authorities.

That concludes my opening remarks. I am sorry that they were a bit long, convener, but given the technicalities involved, I felt it important to set out the position.

Thank you for that detail.

As members have no questions or comments, we move to the next agenda item, which is formal consideration of motions S5M-08839, S5M-08840, S5M-08841, S5M-09234 and S5M-08843. I note that the Delegated Powers and Law Reform Committee has considered and reported on the instruments and has made no comments on them. After the motions are moved, there will be an opportunity to have a formal debate, if that is necessary.

Motions moved,

That the Justice Committee recommends that the First-tier Tribunal for Scotland (Transfer of Functions of the Additional Support Needs Tribunals for Scotland) Regulations 2018 [draft] be approved.

That the Justice Committee recommends that the First-tier Tribunal for Scotland (Transfer of Functions of the Scottish Charity Appeals Panel) Regulations 2018 [draft] be approved.

That the Justice Committee recommends that the First-tier Tribunal for Scotland Health and Education Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 [draft] be approved.

That the Justice Committee recommends that the First-tier Tribunal for Scotland General Regulatory Chamber Charity Appeals Cases and Upper Tribunal for Scotland (Composition) Regulations 2018 [draft] be approved.

That the Justice Committee recommends that the Public Records (Scotland) Act 2011 (Authorities) Amendment Order 2018 [draft] be approved.—[Annabelle Ewing]

Motions agreed to.

Are members content to delegate authority to me as convener to clear the final draft report?

Members indicated agreement.

I thank the minister and her officials for attending, and I suspend the meeting briefly for a changeover of officials.

10:11 Meeting suspended.  

10:23 On resuming—