The next item is our first evidence session on the Tribunals (Scotland) Bill. Today we will hear from two panels of witnesses. On our first panel I welcome May Dunsmuir, who is the convener of the Additional Support Needs Tribunal for Scotland; Heather Baillie, who is the in-house convener of the Mental Health Tribunal for Scotland; John Wright QC, who is a member of the Lands Tribunal for Scotland; and Alastair Beattie, who is the convener of the Scottish valuation appeal committees forum. I thank you all for your written submissions; we have done our homework and we have them all here.
Thank you convener, and good morning panel. The bill is about establishing a framework for reform. Do you share my concern that although there is talk of reform in the bill, it contains no detail, which has been left for another time?
Yes. One can appreciate that quite a lot of delegated powers will be necessary for a bill of this sort. However, it would be preferable for the Parliament to use the bill to make decisions on central matters such as whether particular tribunals are in or out. So, yes—in relation to the Lands Tribunal for Scotland, with which I am involved—I share that concern.
For the Mental Health Tribunal for Scotland, a great deal of comfort has been taken from various undertakings in the policy memorandum, particularly on the chamber structure. Our concern has been addressed to a certain extent, albeit that the memorandum refers to mental health issues going into a separate chamber “initially”, so there is a concern about the future. We hope that there would at the very least be consultation if that should change.
I share the views of the other witnesses. As well as the points that they have highlighted, there is also a concern about the onward appeal arrangements. The default is that appeals on points of law against decisions of first-tier tribunals would be to the upper tribunal, but it has already been said as a matter of policy intent that appeals on certain matters—for example, from the Mental Health Tribunal—would still go to the Court of Session, and I think that that is right.
I see that John Finnie has a question. Is it along the same lines?
I have a general question to give the witnesses an opportunity to expand on what they have said.
Before you ask that, I want to ask about the Lands Tribunal for Scotland’s submission, which is really tough. In the fourth paragraph, under issue 2, you state:
Yes. That response was submitted by Lord McGhie on behalf of the Lands Tribunal for Scotland.
It does not sound as though you think that any of this is a good idea. Such comments are threaded through the submission. As far as the Lands Tribunal for Scotland is concerned, it sees itself as being special.
I endeavoured to encapsulate certain matters in my individual submission. Certainly, matters of overall policy are not for us, but we have concerns in relation to the Lands Tribunal for Scotland because we think that, although it is entirely appropriate to consider reforming, changing and rationalising a system of tribunals that has developed piecemeal, we are not at all sure that we fit into the scheme, which is a point that others have made.
Let me just press you on that. At paragraph 11 of the submission, you go further:
That is in Lord McGhie’s submission on the Lands Tribunal for Scotland’s behalf. It is not for me to—
Oh, right. I am sorry. I thought that you would speak to that submission. I will leave you to think about it.
I do not think that it is right for me as an individual member of a tribunal to criticise the bill’s overall policy.
I beg your pardon.
However, I appreciate that a response has been made on the Land Tribunal for Scotland’s behalf by its president. I tried to focus matters in a paper that more particularly relates to the Lands Tribunal for Scotland itself.
It is because the submission says “We think” and was submitted on the Land’s Tribunal for Scotland’s behalf that I thought I could ask you about it.
I appreciate that. There are views about the bill concerning not so much the detail as the idea of an overarching unified tribunal; there is the view that that is problematic. However, as I said, I would rather deal with the matter that is properly in my field, which is the Lands Tribunal for Scotland.
I will need to ask Lord McGhie what was meant, because his submission seems to have the biggest go at the policy. I appreciate that there is a range of views and that all the submissions described pluses and minuses, but the Lands Tribunal for Scotland’s submission seems to be the tough cookie. It is the good one—I am not saying that the other submissions are not good, but submissions such as that really test proposals.
Convener, you have obviously been peeking at my notes, because you used exactly the phrases that I was going to use. I will pass and come in again later.
Okey-dokey. I am sorry about that. I just thought that we had missed something.
Good morning, panel. I declare my registered interest as a member of the Faculty of Advocates.
The Lands Tribunal of England and Wales was, substantially, an appeals body; it dealt—not entirely, but largely—with appeals and in particular with valuation appeals, with which Mr Beattie is also concerned. It was therefore seen to have a position in an upper tribunal scheme, although it was made a completely separate chamber. I appreciate that such a policy for the Lands Tribunal for Scotland is indicated in the policy memorandum to the bill.
In a previous committee investigation, we touched on expenses orders at the Lands Tribunal for Scotland. Do you have any views that you would care to share with us about the uniqueness of the Lands Tribunal for Scotland’s approach to expenses, as opposed to what is proposed in the bill?
That is quite a good matter to illustrate one of the general points, which is the extent to which you will have to change the general provisions in the bill in order for it to fit the situation within particular tribunals. As far as the Lands Tribunal for Scotland is concerned, I am well aware that the committee was looking at one of our jurisdictions in particular, which was title conditions, in respect of which there is specific provision in the Title Conditions (Scotland) Act 2003 that has been causing a problem. However, we actually have several different jurisdictions, and we have a rule on expenses for compulsory purchase compensation and another position in relation to expenses for valuation for rating cases.
We will leave you alone in a little while. I know that it is odd to be on the receiving end of questions when you usually do the questioning. I have been there myself.
My question is not about the Lands Tribunal, per se.
Excellent.
Mine is a general question for all the witnesses to answer, if they want to. In the eyes of your organisations, are the proposals an improvement on the structure that you have at the moment?
As far as the Mental Health Tribunal for Scotland is concerned, the current structure works well, but we accept that we can work within a different structure and we can see benefits in terms of savings from having a general administration. Our anxiety is to maintain our particular ethos, our patient-centred approach and the special parts of the Mental Health Tribunal that make it a success. Given that the bill does not change the legislation for the Mental Health Tribunal, and given that there appears to be an undertaking that there will be a separate chamber, which would allow for separate training, we are comfortable that the savings that can be achieved in relation to administration could be a good thing.
It is a similar position for the Additional Support Needs Tribunal for Scotland, which works effectively in its current shape, although we recognise that there are benefits from the Tribunals (Scotland) Bill. However, those benefits will be achieved only if all the listed tribunals in the bill are transferred in. Otherwise, the haphazard and fragmented system that we currently have, and which the bill seeks to address, will remain. In fact, we could end up with a far more diverse and haphazard system if the listed tribunals are not all transferred in as planned.
Before we move on, I would like to ask whether there are conflicts of interests for people who hear cases for support for children with additional needs and who are part of the system.
There are provisions for a member—usually a general member—who has a conflict of interests not to sit, and members of the Additional Support Needs Tribunal for Scotland do not ordinarily sit in the education authorities in which they serve or have served.
Thank you. Conflict of interests is sometimes mentioned.
There are certainly benefits to come for our sector from what is proposed, but as Mr Wright highlighted, it is unfortunate that they will be available only when everybody is brought into the unified system. For some of us, that may be many years in the future, so the benefits of unified training across the sector, for example, will not be speedily accessed.
Mr Beattie has partially answered my question. You have each indicated that the current system works well. However, it seems to me, having read the paperwork, that, when we begin to get into some of the commentary, this is a pretty dense and complex area.
I reiterate what I have said. The Additional Support Needs Tribunal for Scotland works very well within its existing structure, so perhaps some benefits will come from sharing the expertise that has been gained from the tribunals.
A benefit of having overarching leadership from the Lord President and a president of Scottish tribunals is that it will improve overall consistency of delivery of service across tribunals. There will be an opportunity for generic training, but there is also a need for specific training, given the diverse users that the tribunals serve.
Even in the case of the Lands Tribunal for Scotland, which I suggest is in a somewhat different area and is outside the area of administrative justice with which the bill is primarily involved, there is benefit in expanding a system of purely administrative support, which has already started under the Scottish tribunals service. In addition to training, which has been mentioned, I can think of one or two other areas in which the expansion of the system will assist, such as in the recruitment process, dealing with questions about the conduct of tribunal judges and so on.
The benefits that I highlighted, which Graeme Pearson has picked up on, largely arise because—I think, uniquely among the listed tribunals—my tribunal is not structured on a national basis. The others currently have single national organisations, but we exist as 13 separate regional panels, which are funded locally, although they are appointed by the sheriffs principal. The guarantees of consistent operation and so on therefore exist only within each panel area. In statutory terms, I am responsible only for what happens in the Highlands and Western Isles area. My position in relation to the other panels is as a member of the forum, which is a purely voluntary organisation that pulls all our panels together so that we can come to speak to this committee and to the Scottish Government with one voice.
I have a supplementary question. I have been digging around trying to find a comment that I knew I had seen somewhere in my papers. It is in the Law Society of Scotland’s submission, which refers to the distinctive character of tribunals and which says:
Yes. It is important to recognise that, as a forum for decision making, tribunals have a flexibility that is quite different and distinct from the courts. In the case of the Mental Health Tribunal, decisions about the detention of the mentally disordered have moved from the court to a tribunal setting and it is very important to recognise that that flexible, informal and patient-centred approach will continue to be taken.
I am conscious that the Law Society’s submission reflects the Administrative Justice and Tribunal Council’s response on the matter. It would go some way towards reassuring service users, stakeholders and service user groups if the bill contained a definition of the function and distinctive nature of a tribunal.
Bringing out that distinction would be a very desirable move but, given the breadth of the issues that we as a group deal with and the existing procedures, it is very difficult to see how that could be achieved. For example, valuation appeal committees in our council tax jurisdiction are almost always faced with lay appellants, whom we have to approach and handle as individuals. However, although some lay appellants come before us in our rating jurisdiction, the vast majority of cases are handled by professional agents, which makes things much more adversarial; indeed, we frequently have senior counsel addressing us on both sides. Things are veering much more towards a court situation—that is just from putting one tribunal in different jurisdictions. In short, I am not sure how such a principle could be enshrined in law, although it would be worth while.
My submission draws attention to the “overriding objective” approach, which is used in England and Wales and of which I have some experience in the UK tribunal system. That approach, which is put into tribunal rules, could also be put into the bill; as in the practice rules of the upper tribunal under the UK system, such a provision would state that the overriding objective is to enable tribunals
Given that the Law Society, among others, has raised the issue, we could always ask it to draft an amendment and submit it to members for consideration.
I note that Ms Dunsmuir’s submission expresses concern about “any dilution” of specialisms or “the culture and ethos” of the Additional Support Needs Tribunal or
Ms Dunsmuir?
Sorry—I did not realise that I was being addressed.
But you were listening.
I was. The word “drift” caught my attention.
The existing membership and the amount of investment that has gone into training and the development of the different cultures in different tribunals should be recognised. The transfer in of existing members will be important in avoiding the development of a generic tribunal.
The bill provides for a common system of appointments to tribunals. Do the panel members think that that will increase the independence of tribunal members?
Although that is an interesting development, it is hard to see that it would increase independence. We are appointed by the sheriffs principal, which I think is as good a guarantee of independence as we could have. It is difficult to see that the bill would necessarily increase independence.
I am glad that it is a matter of capacity, not age, and that there is no age limit on politicians.
It is welcome that these are to be judicial appointments. Having one appointments body can ensure that the tribunal skills that are specific to a flexible and user-centred approach are recognised as part of the appointment process. From that point of view, we welcome the arrangements for appointments.
I agree with my colleagues’ comments. The Judicial Appointments Board for Scotland made a comment in its submission that there is no clarification of whether it would be involved in the reappointment process. That is perhaps something that the bill ought to address, because the initial appointment is only one part of the scheme.
The bill lays down the criteria for legal members, but it does not do so for lay members—for ordinary members, as they are called. That will come through in secondary legislation or guidance from the minister. Is that an appropriate way to separate out the appointments?
At the moment, provision through regulations specifies the experience that is required before someone can be appointed as a general member of the Additional Support Needs Tribunal. One would hope that, whatever provision is made in relation to each of the listed tribunals, the arrangements will recognise the distinctive qualities that are necessary for each individual tribunal. It would be disastrous if that approach were to be lost—that would go very much to the heart of the specialism of the tribunal. The bill has to address that much more clearly.
I call Elaine Murray. Welcome, Elaine.
Thank you.
Mr Beattie has already referred to the effect of the gradual approach being that some tribunals might be left out of the system for a long time. Certain bodies—obviously, the Lands Tribunal is the body that I am talking about, and I know that one or two other organisations such as the children’s hearings have suggested that they should not be in the system—would never get the benefits.
I invite others to comment on the gradualist approach as opposed to a big-bang approach.
Yes.
I knew as soon as I said that—
There are two of us.
I will let Roderick Campbell in first. Graeme Pearson has been in already.
Just with a supplementary.
It still counts.
I want to quiz Ms Dunsmuir about comments in the Additional Support Needs Tribunal’s written submission in relation to appeals. You suggest that appeals to the Court of Session have “worked well in practice”. Under the proposals, appeals will go to the upper tribunal, and you say that you are
The process of taking an appeal to the Court of Session is undoubtedly expensive and can be fairly time consuming. There can be delays in the appeal process. The bill provides that an appeal can go to the upper tribunal, which will remove those impacts. In that respect, the president of the Additional Support Needs Tribunal is satisfied that the bill makes adequate provision and that there will be no loss to the tribunal by virtue of the different appeals route.
Do you hope that the new route will also be cheaper and speedier?
Yes.
I appreciate the usefulness of a tribunal—as opposed to a court—hearing administrative justice appeals but, again, that does not apply in relation to the Lands Tribunal. I am not aware of any dissatisfaction in relation to the Lands Tribunal about appeals to the Court of Session. Indeed, a particularly positive area—the lands valuation appeal court—has already been referred to.
I will let Graeme Pearson in now, lest he think that I am ignoring him.
I cannot find the reference, but I thought that I read in the evidence about the prospect that the Scottish tribunals service will have a growing relationship with the Scottish Court Service in the coming years. Do you welcome that, does it cause you any concern, or is it of no import to you?
In relation to the route that cases that involve mentally disordered patients take to get to tribunals, I reiterate that the concern would be that we maintain within a courts and tribunal service our specialism and a recognition of our ethos. That extends to administration, because those who deal with the administration of cases that involve the mentally disordered have built up considerable expertise in communication and in the structure of the Mental Health (Care and Treatment) (Scotland) Act 2003.
So you hope that, as the relationship with the Scottish Court Service grows, the environment in which you work will be acknowledged and serviced, rather than your having to fit in with the SCS’s administrative requirements.
Absolutely.
But there is no proposal for that to happen.
No.
It is just that you have a concern about that.
A consultation process on the proposed merger is under way, and I know that each of the jurisdictions that are represented here will have responded to it.
For our sector, it is very difficult to see what the position will be, largely because, as yet, we have received no indication of the implications for our secretarial and administrative arrangements of being brought into the new system. I am not sure, but I think that we are pretty well unique in the tribunal sector in having an arrangement whereby we have lay chairmen and legal secretaries—rather than the other way round—and a totally different administrative structure. There have been no proposals on how that will be merged into the new system; we do not know how that will be done. Therefore, the implications of further merger are anyone’s guess.
That might be an interesting question for the Scottish Court Service.
Are you coming back to ask that interesting question?
I hope that I will be able to encourage someone else to ask it for me.
I am teasing—Graeme is leaving the committee and we will miss him.
I welcome our second panel of witnesses, who were all sitting listening to the first panel’s evidence. We have Katie James, manager of Advocard’s individual advocacy service at the Royal Edinburgh hospital; Jon Shaw, welfare rights worker with the Child Poverty Action Group in Scotland; Lauren Wood, policy officer for Citizens Advice Scotland; and Iain Nisbet, head of education law at Govan Law Centre. I thank you all for your written evidence. I invite questions from members.
I will start with the same question that I asked the previous panel. The bill is about establishing a framework for reforming tribunals. Do you share my concern that there is not so much detail in the bill?
As has been said, the devil will be in the detail. It would be useful for members to have at least some indication of the likely content of the subordinate legislation and guidance that is to follow. Having said that, there is something to be said for having the flexibility to make quicker changes when change is needed. For example, rules and questions about appointments and so on are often contained in regulations, and there is nothing particularly objectionable about that. It can be useful, because the legislative timetable is such that it is not always possible to get primary legislative slots when change is needed. As a new system beds in, there might well be a requirement for changes to tribunal rules. For example, the Additional Support Needs Tribunal issued a second set of rules within a year of the first set of rules being published, because some minor amendments needed to be made. That would not have been possible if everything was in the bill.
The committee appreciates that the process for secondary legislation is much simpler and more accelerated than that for primary legislation.
We are definitely concerned about some of the lack of detail in the bill, but there are ways in which that lack of detail could be mitigated. For example, the bill could include principles to help to guide tribunals, as there are in the Tribunals, Courts and Enforcement Act 2007 in England.
I definitely echo most of what Ms Wood says.
From a service user’s point of view, accessibility comes from having detail that people can look at, cross-examine and utilise effectively. People want to know the detail so that they can use the bill in the most effective way.
I have a follow-on question for Ms Wood and Citizens Advice Scotland. Your organisation supports users of devolved and reserved tribunals, and extensive reforms have been made south of the border. Are there any lessons that could or should be learned from the experiences of the reforms of reserved tribunals? Will the reforms in Scotland achieve efficiencies, make a better system and meet the same standards as have been achieved south of the border?
There are still a few questions to be answered about how efficiently the reserved tribunals are working. To have an echoed system is probably a good thing for users, because we have found that, when somebody comes through the door, it does not matter to them whether an issue is reserved or devolved.
We have the same experience as MSPs.
It does not matter where the issue sits. Somebody has a problem and they want it dealt with, and that is the focus. On those terms, it is essential that there is somebody who can carry out an independent review of the whole of administrative justice, including tribunal users. To restrict the functions that are given to the Scottish Civil Justice Council to just the process and procedures could restrict what it looks at in relation to how people access the systems.
My question is on a number of stark comments in the opening section of Ms Wood’s written evidence about openness, fairness and impartiality. You say:
Those things are guaranteed mostly through the detail of procedure and process, and the bill does not contain any detail about procedure, so we cannot say that the bill can guarantee that procedure will be open, fair and impartial. If there is no detail about the procedure and no safeguards such as overarching principles to guide the development of procedure in an impartial way, we cannot, on a strict reading, say that the bill will guarantee fairness, openness and impartiality, because the detail is missing that would allow those guarantees to be offered.
How do you suggest remedying that?
One way would be by providing principles in the bill as a way of setting out the focus of what we want tribunals to achieve, so as to be user focused. On pages 3 and 4 of our submission, I point out the principles that are in the 2007 act in England. The way to mitigate the impact and to help guarantee openness, fairness and impartiality is by guiding the development of tribunals with principles.
That is on page 4 of the submission, by the way, for the benefit of other members.
Thank you. It is helpful to have that on the record.
Yes, it is very helpful.
My question is addressed to Mr Shaw. I take on board your point about the importance of the overriding objective but, just for the record, the Government’s policy memorandum states:
It is clear from our evidence that we are commenting on what we see as the positives in the reforms that were introduced under the 2007 act, and I struggle to remember a point in the written evidence where it makes any sort of explicit criticism.
I agree with your comment that
A big issue in the UK system, particularly in social security, is that of delay, which we will always find at a time of large-scale welfare reform. There is the potential that the direct lodgement of appeals will eventually improve things and reduce delays in the system. One big improvement that was made when the procedural rules were drafted was in preventing the automatic strike-out of cases where people did not return an inquiry form that had been sent by the tribunals service. Judge Martin estimated that that improvement led to 1,200 appeals being won that would otherwise have been struck out simply because people had not returned a piece of paper. Come October, an extra stage in the process will be removed, as appeals are lodged directly with the tribunals service. That is one area where an improvement will be made.
Like John Lamont, I will pose the same question as I did to the previous panel, which I might then follow up with further questions. My first question is whether the proposals are an improvement on what we have now. Ms Wood says that they are an improvement, but I note the criticisms that the witnesses have advanced—although perhaps “criticisms” is too strong a word. In general, do you think that the proposals are an improvement? I might follow that up with further questions.
From a user’s point of view, the primary improvement that I see in the proposals is in accessibility. At present, one of the primary benefits of the tribunals system over the alternatives that involve going to court is that it is more accessible. It is also generally cheaper and it is possible to make use of specialist lay representation.
I concur with that, primarily because I think that people sometimes want the opportunity for mediation and negotiation. The upper tier will give people more of a sense of opportunity to negotiate and mediate effectively.
I think that I am correct in saying that an appeal from the first tier will involve a sifting process in any event. It is hard for some people to accept a decision even when it might be blindingly obvious that the decision is the correct one, but there is a sifting process. I take it that you are content with that, too.
I have some concerns about the level of sift. I note that the Faculty of Advocates is concerned about the sift with regard to the second appeal. That will need to be monitored. I have no objection to a sift that is applied to cases that are obviously without merit—that addresses the concerns that you have—but there are not a huge number of appellate cases being brought, and it is good for a tribunal system to have a reasonable flow of those. Parliament will wish to monitor that to ensure that the sifting is not being applied too rigorously, which could lead to a lack of appellate decisions.
I agree with all the comments that Mr Nisbet has made.
I want to pick up on some of the issues. Everyone who made a submission has said that the bill is an improvement but, as we have gone on with the evidence, people have voiced concerns to some extent.
The independent advisory committee is a fantastic move. I have been talking to the civil servants who are involved and they have been excellent in their communication and their openness about it. My concern is that the current independent committee will be an interim advisory committee—that is the way in which it is being discussed. My concern is always to do with the five-years-down-the-line test. If there is nothing in the bill that guarantees that administrative justice will be reviewed overall, what will happen when the matter is further down the agenda in five years’ time?
I take on board what you say. Things are moving along. Next year, we will have the referendum for independence. You are talking about five years; I am talking about a year down the line. You say that the current proposals are a good move, but the issue seems to depend on one thing that makes it not a good proposal. I am a bit concerned that it is hung up on that one thing while there are so many other things to consider regarding tribunals, including education—somebody else might pick up on that with Mr Nisbet.
We will have representatives of the AJTC with us next week, so we will be able to marry your concerns about the interim period and about what the functions will be should the other body take over. We can raise all those issues next time.
I am interested in the panel’s experience of education appeal panels. Would there be benefit in their being incorporated into a tribunals system? Perhaps Mr Nisbet is well placed to deal with that question.
Thank you for asking. This is the aspect of the bill that I am most excited about—the prospect of moving the education appeal committees into an independent structure. You asked about our experience. I have appeared before numerous education appeal committees, and I have advised parents appearing in front of many more. That is possibly one of the largest jurisdictions in the list in terms of the volumes of cases, and important decisions are made about children’s educational futures.
That is helpful. Will there be an opportunity to have a shared chamber with the Additional Support Needs Tribunal? Would that bring further benefits?
Yes. I have no reason to object to that; it would be a good move. A learning chamber or something of that sort would be beneficial. The members of the education appeal committee are not specialist members but councillors and parents. There is an element of choosing, but when it comes to more complex issues such as exclusion or placements for children with additional support needs in mainstream or special schools, the expertise is not there. The proposed approach presents an opportunity to develop that.
Glasgow City Council points out in its submission that most of its appeals happen at a particular time. Do you anticipate problems in that regard?
It is true that there is a large seasonal element because most placing requests in Scotland are decided on the last day in April, so the appeal process kicks in after that. Local authorities are aware of that and have to set themselves up to deal with the appeals—they do that well.
We heard from a witness on the previous panel that an age limit of 70 would have a substantial impact on his sector’s capacity to continue in the years ahead. From your experience of different administrative appeals and tribunals, do you think that an age limit would have an effect? Do you have an opinion to share with us on the age limit that might be applied in relation to appointments to serve in a particular judicial capacity?
That question was met by a stunned silence.
I can comment on the jurisdictions in which we appear. The education appeal committees and the Additional Support Needs Tribunal seem to rely heavily on retired professionals, so an age limit could well cut off the potential supply of members.
I echo that in relation to the social entitlement chamber. The specialist medical members are often retired general practitioners, so an age limit could have the impact that Iain Nisbet described.
Do the witnesses have a view on what retired people bring or fail to bring to the process—or would you prefer to remain silent on that?
There is no need for me to remain silent. The fact that someone is no longer in the system, working for a local authority and so on, enhances their credibility as a member and increases parents’ confidence in the process. It can be a benefit.
It is about quality of years, not quantity of years.
Indeed.
I knew that we would agree on age.
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