Contents
- Attendance
- Decision on Taking Business in Private
- Subordinate Legislation
- Air Traffic Management and Unmanned Aircraft Bill
- Petition
Subordinate Legislation
Scottish Courts and Tribunals Service (Judicial Members) Amendment Order 2020 [Draft]
Scottish Courts and Tribunals Service (Procedure for Appointment of Members) Amendment Regulations 2020 [Draft]
Agenda item 2 is consideration of two draft affirmative instruments: the Scottish Courts and Tribunals Service (Judicial Members) Amendment Order 2020; and the Scottish Courts and Tribunals Service (Procedure for Appointment of Members) Amendment Regulations 2020.
I welcome Ash Denham, who is the Minister for Community Safety, and her Scottish Government officials Walter Drummond-Murray, who is the head of the reserved tribunals and civil courts team; and Martin Brown, who is from the legal directorate.
I refer members to paper 1, which is a note by the clerk. I invite the minister to make a short opening statement.
Good morning. The amendment order is made in exercise of the powers conferred by paragraph 2(5) of schedule 3 to the Judiciary and Courts (Scotland) Act 2008. This is the first of two amendments that I will bring before you today. Together, they allow the appointment of summary sheriffs to the board of the Scottish Courts and Tribunals Service.
The order seeks to amend paragraph 2(2)(e) of schedule 3 to the Judiciary and Courts (Scotland) Act 2008, to broaden the existing category of membership from those
“holding the office of sheriff”
to those
“holding either the office of sheriff or of summary sheriff”.
The office of summary sheriff was, of course, established by the Courts Reform (Scotland) Act 2014, and summary sheriffs are now a well-established part of the judicial landscape in Scotland. The 2008 act currently makes no provision for those holding the office of summary sheriff to be appointed to the board of the Scottish Courts and Tribunals Service. The Lord President has requested that that anomaly be rectified.
The board has 14 members in total, eight of whom hold judicial office. Currently, the categories of judicial office listed in schedule 3 allow for
“two persons holding the office of sheriff”
to be appointed to the board. By broadening the existing category of sheriff to include that of summary sheriff, neither the overall number of persons on the board nor the judicial majority is altered.
In order to ensure that summary sheriffs are able to apply for membership of the board, an additional amendment is required to regulation 2(3)(a) of the Scottish Courts and Tribunals Service (Procedure for Appointment of Members) Regulations 2015—which detail the process to be followed when filling vacancies—as those currently refer only to sheriffs.
The SCTS board is led by the Lord President and has a collective responsibility for setting the strategic direction of the SCTS and ensuring its good governance. One of the policy intentions of the 2008 act is to ensure that the board has a judicial majority in its membership—including representation from each level of the Scottish judiciary. The amendment order, in conjunction with the consequential amendment to the appointment procedure regulations, will fulfil that policy intention.
Should I move on to the draft regulations, convener?
Yes, please.
The Scottish Courts and Tribunals Service (Procedure for Appointment of Members) Amendment Regulations 2020 are made in exercise of the powers conferred by paragraphs 3(2) and 3(3) of schedule 3 to the Judiciary and Courts (Scotland) Act 2008.
The regulations seek to amend the Scottish Courts and Tribunals Service (Procedure for Appointment of Members) Regulations 2015, which set out the procedure for the selection and nomination for appointment of members of the SCTS. Specifically, the amendment provides that summary sheriffs are to be notified of relevant vacancies for members of the board.
The regulations, in conjunction with the amendment order, will fulfil the policy intention of allowing summary sheriffs to be appointed to the board of the SCTS.
As no members have any questions or comments on either of those instruments, we move to agenda item 3, which is formal consideration of the motions on the two affirmative instruments.
The Delegated Powers and Law Reform Committee considered and reported on the instruments and had no comments to make.
The motions will be moved, with an opportunity for formal debate, if necessary.
Motions moved,
That the Justice Committee recommends that the Scottish Courts and Tribunals Service (Judicial Members) Amendment Order 2020 [draft] be approved.
That the Justice Committee recommends that the Scottish Courts and Tribunals Service (Procedure for Appointment of Members) Amendment Regulations 2020 [draft] be approved.—[Ash Denham]
Motions agreed to.
I suspend the meeting briefly to allow a change of Government officials.
10:09 Meeting suspended.10:09 On resuming—
First-tier Tribunal for Scotland (Transfer of Functions of Bus Lane Adjudicators) Regulations 2020 [Draft]
First-tier Tribunal for Scotland (Transfer of Functions of Parking Adjudicators) Regulations 2020 [Draft]
First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Cases and Upper Tribunal for Scotland (Composition) Regulations 2020 [Draft]
First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Appeals (Rules of Procedure) Regulations 2020 [Draft]
Agenda item 4 is consideration of four affirmative instruments. The Minister for Community Safety is already with us, so I welcome her officials Paula Stevenson, head of devolved tribunals, and Jo-Anne Tinto, from the Scottish Government’s legal directorate.
I refer members to paper 2, which is a note by the clerk, and I invite the minister to make a short opening statement.
This suite of four fairly technical regulations will transfer the parking and bus lane adjudicators into the Scottish tribunals structure that was created by the Tribunals (Scotland) Act 2014. For brevity, I will refer to the tribunal as the PBLA.
The first two instruments before the committee are the draft First-tier Tribunal for Scotland (Transfer of Functions of Parking Adjudicators) Regulations 2020 and the draft First-tier Tribunal for Scotland (Transfer of Functions of Bus Lane Adjudicators) Regulations 2020.
The regulations simply transfer the functions and members of the PBLA 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 also make consequential amendments to primary and secondary legislation resulting from the transfer of the PBLA into the Scottish tribunals.
As the parking adjudicators and bus lane adjudicators are listed separately in the 2014 act, each group needs to be dealt with in separate instruments.
The third set of regulations are the draft First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Cases and Upper Tribunal for Scotland (Composition) Regulations 2020, which specify the type of member who will hear parking and bus lane cases.
The provisions for the First-tier Tribunal mirror the existing composition of the PBLA. The instrument sets out the composition of the Upper Tribunal when hearing appeals from parking and bus lane cases that are heard in the First-tier Tribunal. The regulations also allow for a sheriff to hear an appeal in the Upper Tribunal. The president of tribunals will determine who hears those appeals.
The final set of regulations are the draft First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Appeals (Rules of Procedure) Regulations 2020. The 2014 act authorises rules to be made to regulate the practice and procedure of both the First-tier and Upper Tribunals. Paragraph 4(2) of schedule 9 to the 2014 act requires rules to be made by the Scottish ministers until such time as responsibility for rule making passes to the Scottish Civil Justice Council and the Court of Session.
The regulations establish rules of procedure for the First-tier Tribunal General Regulatory Chamber when it hears parking and bus lane cases. The rules of procedure have, in so far as possible, been drawn from the existing rules of procedure for appeals that are heard by parking and bus lane adjudicators.
There are a number of areas in which the new rules of procedure differ from the existing parking and bus lane adjudicator rules. The policy intent of that was to bring the various rules together into one document that would apply to both parking and bus lane cases, which is intended to aid consistency in the Scottish tribunals.
The main change from the existing rules lies in new draft rule 18, which makes provision for consideration of an application for permission to appeal to the Upper Tribunal. Under the current system, no onward right of appeal from the decisions of parking and bus lane adjudicators exists, but, on transfer, the provisions of the 2014 act will apply and the Upper Tribunal will be available to those who seek to appeal.
Other substantive changes from the existing rules involve incorporation, throughout the rules, of the use of the online case management system as a means of communication between the parties and the First-tier Tribunal. In addition, specific provision has been made for the signing of documents electronically.
Each of the four instruments plays a part in enabling the transfer of the PBLA to the new structure.
I understand that the Delegated Powers and Law Reform Committee considered the regulations in February and had no points to raise.
10:15
It all seems terribly sensible. There are a couple of matters that I would like some clarification on.
According to the policy note, those people who are currently adjudicators
“will transfer to the First-tier Tribunal to become legal members as long as they meet the relevant eligibility criteria as set out in regulations (2015/381)”.
Is there a possibility that some existing adjudicators might not transfer if they do not meet the new eligibility criteria, whatever those are?
There are only two existing adjudicators, and they both meet the eligibility criteria. I reassure you that there are no plans to replace the eligibility criteria for any members. That is why no specific eligibility criteria regulations have been laid as part of the transfer process.
I see. Thank you.
A business and regulatory impact assessment has been done, and it says that the impact will be “minimal”, but there is one thing that I would like to clear up. There is a new right of appeal to the Upper Tribunal, which means that the Upper Tribunal will hear appeals in general regulatory chamber parking and bus lane cases. One would have thought that a new right of appeal could have a significant cost and resource implication. Is that the case, and, if so, has it been taken into account in the regulatory impact assessment?
It has. You are quite right to point that out. Local authorities already undertake that duty, and they have to fund the system. However, as the system is bringing in the new possibility of referral upwards, to a higher level, local authorities will not be expected to cover that cost. We anticipate that there might be a very small number of such cases and, at the moment, the costs that are associated with those will be covered by the Scottish Government until it is able to update the legislation.
Hence why you have concluded that the impact will be minimal. That makes sense.
As there are no other questions, that concludes agenda item 4.
Agenda item 5 is formal consideration of the motions that relate to the four affirmative instruments. As the minister confirmed, the DPLR Committee has considered and reported on the instruments and has made no comments. The motions will be moved, with an opportunity for formal debate, if necessary.
Motions moved,
That the Justice Committee recommends that the First-tier Tribunal for Scotland (Transfer of Functions of Bus Lane Adjudicators) Regulations 2020 [draft] be approved.
That the Justice Committee recommends that the First-tier Tribunal for Scotland (Transfer of Functions of Parking Adjudicators) Regulations 2020 [draft] be approved.
That the Justice Committee recommends that the First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Cases and Upper Tribunal for Scotland (Composition) Regulations 2020 [draft] be approved.
That the Justice Committee recommends that the First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Appeals (Rules of Procedure) Regulations 2020 [draft] be approved.—[Ash Denham]
Motions agreed to.
That concludes consideration of the affirmative instruments.
Is the committee agreed to delegate authority to me, as the convener, to clear the final draft of the report on the affirmative instruments that we have considered today?
Members indicated agreement.
I thank the minister and her officials for attending. I will suspend the meeting briefly, to allow them to leave.
10:20 Meeting suspended.10:21 On resuming—