Justice 2 Committee, 18 Jan 2005

Meeting date: Tuesday, January 18, 2005

Official Report 238KB pdf

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Inquiries Bill

Item 2 concerns the Inquiries Bill that is before the United Kingdom Parliament. The committee is taking evidence to assist our consideration of the bill, which is the subject of a Sewel motion. I welcome Mr John Elliot, the chairman of the Scottish Committee of the Council on Tribunals.

First, I ask Mr Elliot to comment on the proposals, after which we will move to questions from members. I do not intend to be prescriptive about the subject matter of those questions. Our session today is a general introduction to what the bill will mean for the tribunal sector in Scotland. We are glad that you could join us today, Mr Elliot. Without further ado, will you give us your initial views on the proposals that have emanated from Westminster?

Members have a copy of the paper that I prepared at the end of last week. It sets out who I am, where I am coming from in relation to the bill and what the Scottish Committee of the Council on Tribunals does. As the Inquiries Bill falls within our general remit, we were consulted on its provisions and saw some paperwork last year. Although the council has not debated the bill as yet, we have formed views on a number of matters.

We welcome the bill, the thrust of which is correct. We appreciate that it is intended to help to rationalise and modernise the procedure in relation to inquiries, specifically inquiries that are related to events that might cause public concern. There have been a number of such inquiries over the past years and I am sure that members of the committee are familiar with them. Perhaps the most important one is the bloody Sunday inquiry in relation to Northern Ireland, but other inquiries such as the Bristol royal infirmary inquiry have given rise to the belief—which I think is correct—that there should be rationalisation of how large-scale public inquiries are dealt with. The bill therefore sets out a framework to determine how inquiries are ordered. The Council on Tribunals and its Scottish committee generally welcome the thrust of the bill. Much of the substance in the bill is commendable and is on the right lines.

Members will be aware of the clauses in the bill that relate to how the bill might operate in Scotland—specifically, clauses 29 and 30. In my paper I draw attention to possible difficulties with how the provisions might operate. Any such provisions are bound to be fairly complex, given that the matter involves ministers in different jurisdictions and up to four separate Administrations—England, Scotland, Wales and Northern Ireland. I have attempted to highlight one or two areas that might cause difficulty, although difficulty would be natural in any event.

In my paper I set the bill against the general background of tribunals and draw the committee's attention to significant changes in relation to tribunals that are being—or that are likely to be—proposed by the Westminster Government. I will be happy to answer questions on the bill and the more general scene. It is obvious that to some extent discussions about the bill will involve matters of interpretation. I confess that one or two clauses in the bill puzzle me; no doubt they puzzle members, too.

Will you expand on your final comment?

Some of the clauses that relate to the production of evidence demonstrate the complexity of the arrangements that might be necessary. For example, if a Scottish inquiry required evidence on a matter that emanated from England, Wales or Northern Ireland, it would be complex to assess whether the material related to a largely Scottish devolved matter. Equally, an English inquiry might take evidence or consider material that related to a largely devolved matter. That is an obvious area of difficulty, which I suspect would to some extent have to be dealt with case by case because nobody can make general rules that anticipate the evidence that is likely to be produced. The explanatory notes that accompany the bill give an example of an inquiry that relates to coal mines and highlight the difficulties in producing evidence relating to a matter that is not devolved. That is one area of difficulty.

Another area of difficulty relates to the way in which inquiries would be set up. The arrangements that would have to be entered into by ministers, for example ministers of the UK Government and Scottish ministers, would require decisions about who would take the lead role in the inquiry and therefore, to a degree, about who would take responsibility for the inquiry. Sometimes, ultimate responsibility is decided when the media are keen to find out who is actually running an inquiry. We must also consider how such inquiries will be funded and who will oversee their operation. Inquiries that are run jointly across borders may prove to be difficult.

Another difficulty with clauses 29 and 30 will be in deciding whether a joint inquiry is also one that relates to two different Administrations. The wording of clauses 29 and 30 makes it difficult to decide what the real difference is between joint inquiries, which seem to involve ministers, and inquiries that involve more than one Administration, which are covered in clause 30, which obviously relates to Administrations.

Greater minds than mine will probably write pamphlets and articles about such issues, but I draw the committee's attention to some of the obvious complexities, which are to be expected, given that we have four Administrations.

The briefing on the bill that the committee received pointed out that, although a number of UK Government departments have decided to repeal legislative provisions that confer on ministers the power to hold inquiries, and instead decided to rely on the bill, our understanding is that the Scottish ministers have decided to retain for the time being their subject-specific powers to set up inquiries. Is that a comfort to you?

Yes. Of course, under the bill, the Scottish ministers will be entitled to set up inquiries—there is no question of their not being able to do so. However, the point that you raise is of comfort to me.

Bullet point 4 in section 3 of your submission states:

"We welcome the power of Chairman (Clause 19) to require production of evidence",

but the final sentence in that paragraph says that

"As yet, we have not established why that does not apply in Scotland."

Will you expand on that?

I think that that provision is odd. As a Scot, one always looks for provisions in proposed legislation that seem to mark Scotland out as different or which treat England differently, although sometimes one is too sensitive to such matters. There must be a reason for the difference, but although I compiled my note on Friday and have asked questions of one or two people since then, I still do not understand why the difference exists. I have no doubt that there is a reason for it, although one finds occasionally that there is no reason for such differences, so it is always worth while asking about them. On this occasion, I am afraid that I do not know the answer.

We will maybe ask the minister about that next week.

In section 11 of your submission, which is headed "Devolution Issues", the third bullet point from the end states:

"There has been no comprehensive look at Scottish-only tribunals operating in Scotland to consider their effectiveness, their support and their independence from Government, as has been the case in England and Wales. Conceivably, Scotland-only tribunals could be less well supported and less independent than GB tribunals."

You referred to that issue in your opening remarks, but will you expand on it further?

The Westminster Government has proposed legislation—a bill has not been introduced, so we do not know exactly what will be in it, but a white paper has been produced, which presumably shows us the direction in which the Government will go—to set up a system that will deal with the perceived lack of independence from Government departments and ensure that tribunals are supported properly. That proposal supposes, rightly, that some tribunals are not as well supported as others are. Throughout the UK, many tribunals are well supported and others are not. Some are more independent than others are.

The Government's draft Courts and Tribunals Bill—which we understand will be introduced at some point, although I do not know when—aims to ensure that tribunals operate independently of the Government department in respect of whose decisions they generally adjudicate, and that they are properly supported. Our concern is that, in setting up a tribunals service, that may mean that Scotland-only tribunals will be less well supported than their Great Britain counterparts. I say "Great Britain" because, generally speaking, the tribunals with which we are concerned do not operate in Northern Ireland. The GB tribunals will be part of a tribunals service that will have an extensive judicial and administrative system that Scotland-only tribunals will not enjoy. Although some Scottish tribunals are well supported, if one believes, as we do, that the tribunals service is a good thing, it seems unfortunate that the benefits of the service cannot be extended to tribunals that operate in Scotland.

I have just two small final points. At the end of paragraph 11, you say:

"Alternatively, a Scottish Tribunals Service could be created to embrace all Scotland-only tribunals."

I am interested in that. Will you expand on it? The last sentence of the first bullet point in paragraph 11 says:

"There is no overall vision for tribunals in Scotland."

Who should be responsible for that vision?

As the latter question sounds like a fairly political question, I would like to duck out of it. Clearly, however, the people who have responsibility for the administration of justice in Scotland are the people who one would suppose would be most interested in this particular arm of the justice system.

I see the justice system as having three arms: criminal justice, civil justice and what we call administrative justice, which in general is the review of decisions that are taken by Government departments.

Traditionally, administrative justice has been the poor arm of the justice system. Nevertheless, in England and Wales, reviews of all three branches have been undertaken: the Woolf reforms in relation to civil justice; the Auld reforms in relation to criminal justice; and the Leggatt review in relation to administrative tribunals. As a result of the Leggatt review, the present proposals are likely to be taken forward.

Mr Pringle also asked about the last bullet point in paragraph 11. If one believes that the tribunals service is really worth while, as we do, one would believe that the provision should be extended to all tribunals that operate in Great Britain. That would give all tribunals the benefits of its advantages. Alternatively, however, it would be perfectly logical to create a tribunals service that was a Scotland-only service. The likelihood is that such a service could stand on its own feet.

There could not be a system that embraced only the Scotland-only tribunals—I am thinking about anything from the children's panel system to the Crofters Commission—as there are neither the cases nor the body of work to support it. If one thought that a Scotland-only system to oversee all the tribunals that operate in Scotland was the right way to go, it could conceivably be a valuable thing.

Your paper was very helpful; it has also been helpful to hear your evidence to the committee. My understanding—although it may be a misunderstanding—is that the Council on Tribunals is concerned specifically about the detail of the Inquiries Bill. What I seem to be picking up from your evidence is that those concerns are more about forthcoming legislation on tribunal reform than on the bill. I have a simple question, the answer to which will help me to understand the matter. Do you have any major problems with the Inquiries Bill as it stands? Are there any showstoppers in the bill?

The main concerns that I have relate to the way in which the bill might operate across borders.

That is helpful.

Are those difficulties insurmountable?

To some extent, it will probably be a case of suck it and see. The types of inquiry that are contemplated in the bill are not the regular type of inquiry such as planning inquiries, for example. They are the kind of major public inquiries that deal with subjects that, as the bill says, are likely to cause public concern. The Dunblane inquiry is an obvious example. They are inquiries that are set up on a one-off ad hoc basis. The bill seeks to give a framework to those inquiries in terms of appointments, support, funding, who serves on them and so forth. Because they are set up on a case-by-case basis, awkward questions will be asked about devolved and reserved matters; such problems will have to be solved between the various Administrations, although it is difficult to foresee what the problems will be. As I said, if the inquiries are set up, who will take the lead on any specific issue? For example, the Dunblane inquiry related to a matter that was of enormous concern to Scots but which was also of considerable concern to people throughout the UK because of its subject matter.

One has to consider whether the bill will work in practical terms. For example, does responsibility need to be firmly agreed before an inquiry starts? How will that be done? How will that operate? However, one can go only so far on that when setting up a framework such as this.

The devil is in the detail.

Yes.

I was interested to hear your answers to the questions that Mr Pringle put. In the last paragraph of the fourth bullet point of section 11 of your written submission, which is on devolution issues, you state:

"Most Scottish tribunal office holders would prefer there to be a clearly identifiable Scottish element in the judicial appointment making process"

and that

"that is in harmony with the political will in Scotland".

The final bullet point of section 11 suggests that

"a Scottish Tribunals Service could be created to embrace all Scotland-only tribunals."

Do you think that there should, rather than could, be a Scottish tribunals service? Would it be logical and would it make administrative sense to have a Scottish tribunals service rather than to try to address the cross-border problems that you have been talking about?

Yes, but we must also get the cross-border issues concerning the inquiries and the tribunals sorted out. One member has already made sure that we are sticking to that.

I personally think that a Scottish tribunals service would be a very good thing for tribunals operating in Scotland for the specific reason that we have our own system of law. Although it is not impossible to resolve issues of law between England and Scotland, there is a certain logic to the idea that we should control our own administrative justice system, just as we control our own civil and criminal justice systems. However, we need to have the resources to do that and must have a vision of what we want tribunals to do. So far, that vision has not come out of Scotland, as nobody has considered it as an issue. The focus in Scotland has been generally on criminal justice.

Given that lack of vision, as you describe it, if we proposed a separate Scottish tribunals service, would that generate interest and urge whoever is responsible to produce the kind of vision that you are talking about?

I think that it might. To an extent, it takes an act of political and executive will to do that. If one accepts that, as I say in my written submission, people are more likely to come before a tribunal than they are to come before a civil or criminal court, you will appreciate the importance of the administrative decision-making process to ordinary citizens. A process that operates as independently and efficiently as possible must be in their interests.

I would like clarification on a point that arises from Jackie Baillie's question. The matter that is immediately before the committee is the Inquiries Bill and the need for the committee to have regard to the Sewel motion that will soon come before the Scottish Parliament. Although the bill has only a general responsibility for the framework, are you concerned that if we do not pick up on aspects of the bill, it might create difficulties with whatever the ensuing legislation will be for the more detailed activity of tribunals?

I think that you have to consider the bill as pretty much standing on its own in that respect.

That is helpful. As members have no further questions, I thank you for coming before us. I also thank you for your written submission, which was of great assistance to members. Your evidence will assist us as we reflect further.

We are awaiting the arrival of the minister for item 3 on our agenda. In fairness to him, we have got through the previous two items more swiftly than was anticipated. I am happy to suspend the meeting until the minister appears. Members may wish to have cups of tea and coffee.

Meeting suspended.

On resuming—