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Draft Instruments<br />Subject to Approval
Bus User Complaints Tribunal Regulations 2002 (draft)
Let us be grateful for the fact that these are draft regulations, because we must raise eight points on them with the Executive. The regulations are very odd. I will pick out a couple of points.
As you say, there are two connected matters, but we can think of them separately. The first is that if a tribunal rules against someone, an appeal can be made only to the tribunal's convener, who would have been involved in the original decision. That procedure seems odd and might be against the provisions of the European convention on human rights, because the convener would have a vested interest in the decision.
He might be a perfectly nice convener.
Absolutely.
But that provision is just a bit on the cosy side.
It just does not feel right. The second matter concerns drawing relevant complaints to the tribunal's attention. There appears to be no compulsion for the bus companies to make those relevant complaints available to the tribunal. Is that right?
I think so. That is what I thought.
I agree with the point about the independence of an appeal. However, is it not the case that, other than on points of law, the procedure under the regulations is not dissimilar to that of an industrial tribunal? In an industrial tribunal, when someone disputes the interpretation of facts, is not that referred to the tribunal for potential review, as opposed to being referred to an independent appeal? My point is that I suspect that the cases with which an industrial tribunal deals are generally more serious than those with which a bus user complaints tribunal would deal.
I do not think that the committee should determine whether more weight should be given to a bus user's complaint than to an employee appealing against something in their employment contract. We cannot make that sort of decision, but we can decide whether the regulations' provisions are reasonable. Judicial review would be available, but the committee's attitude is that that is not satisfactory because one can appeal only on a point of law.
I am comfortable with the general point that an independent appeals process would be better—all I am saying is that similar examples exist.
In a way, you are betwixt and between on the issue. You said that there might be a parallel with industrial tribunals. What does the convener of an industrial tribunal do if an appeal is made against his tribunal's decision?
My understanding is that members of the tribunal may review the evidence, rather than the convener on his own. I think that the three members of the tribunal would review the evidence.
We spoke about the issue and thought it a bit cosy that the draft regulations say that the tribunal will have three members, but do not say that two or so members must make a decision. It could be argued that one member—the convener—could make a decision and that an appeal could be made only to the convener. We think that that is a flaw and would like the Executive to reconsider the matter. An industrial tribunal is not the same—as you say, an appeal is made to members of the tribunal rather than to the convener.
I think that it is up to the convener to accept a case for review.
That might be true, but that is different. The legal briefing mentions the possibility that an appeal can be made only to the person who may have made the decision.
I do not disagree with the general point.
I am glad about that. I was worried—I thought that there would be a vote. I hoped not—that would have been vulgar.
In line with the legal advice, we should refer the matter back to the Executive for its comments.
We will ask the Executive how it envisages the regulations working. We were confused—or rather, intrigued—by them.
These are draft regulations and there is an opportunity for the Executive to clarify matters and explain things to us.
Loch Lomond and the Trossachs National Park Designation, Transitional and Consequential Provisions (Scotland) Order 2002 (draft)
Our advice is that the order is beautifully drafted and crafted. However, I have one small comment—I would hate anybody to think that we entirely approved of it. Article 15(2)(d), defines "crofter" in terms of two acts that have been repealed and consolidated. It is odd that that definition should be used instead of the definition in the more up-to-date act. However, that makes no difference to the substance of the order.
It is fair to say that this is a beautifully drafted order. An attractive and colourful map is attached to it.
The map is lovely. I had a wee look at it and thought that the presentation was good. It fair restores faith, does it not, Murdo?
It does.
Loch Lomond and the Trossachs National Park Elections (Scotland) Order 2002 (draft)
The order is odd. It mentions those who should be excluded from standing for elections by virtue of having served a jail sentence in the UK, the Channel Islands, the Isle of Man or the Irish Republic, but does not include jail sentences served anywhere else. Bristow, do you know why there is such differentiation?
I can see no logical reason for it. I do not know whether the order sets any other limits on who can stand in the national park elections. I presume that any citizen of the European Union—if not from further beyond—is eligible for election. Therefore, I do not know why anyone who is convicted of an offence within the European Union at least is not disqualified—that seems logical. However, I do not know the limits that apply to those seeking election to the board. We might want to clarify the matter.
We will ask for clarification from the Executive by informal letter.
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