Public Bodies Consent Memorandum
Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013
Item 4 is consideration of the consent memorandum on the Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013, which relates to the Public Bodies Act 2011. Members will recall that we agreed last week to take evidence from the Minister for Community Safety and Legal Affairs on the memorandum and, in advance of that session, to seek her views on submissions that have been made to the United Kingdom Justice Committee by the Scottish Committee of the Administrative Justice and Tribunals Council and the Law Society of Scotland. The minister’s response is at annex D of paper J/S4/13/8/2. The views from the petitioners of petition PE1449, which urges the Scottish Government to preserve an independent Scottish administrative justice council when the AJTC is abolished. are included at annex E.
I welcome to this evidence session the Minister for Community Safety and Legal Affairs, Roseanna Cunningham, and Scottish Government officials Linda Pollock, who is head of policy on tribunals and administrative justice, and Michael Gilmartin, who is a solicitor.
Minister, do you wish to make an opening statement?
Yes. Thank you, convener. As you said, we are here to debate the Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013, which was laid before the United Kingdom Parliament on 18 December with the intention to abolish the Administrative Justice and Tribunals Council, including its Scottish committee. I want to update the committee on the Scottish Government’s intentions on how we will support the work of administrative justice and tribunals in Scotland post abolition.
As you know, the UK Government announced its intention to abolish the AJTC in 2010. The Scottish Government was consulted at that time, and although we appreciated the useful work that the AJTC and the Scottish committee in particular had done, we recognised that we are in a time of reform in Scotland. For example, the Scottish Government had just established the Scottish Tribunals Service and we were in discussions with the UK Government about its commitment to transfer functions from reserved tribunals to Scotland. It therefore felt timely to have a new structure in Scotland to support the changing landscape.
Clearly, some time has passed since the original proposal by the UK Government to abolish the AJTC was announced. The prolonged delay in abolition has created some uncertainty, which is why I confirmed last year that my intention post abolition would be to maintain some of the functions of the Scottish committee through an independent advisory committee. At that point, I asked the Scottish committee to provide recommendations on what it thought would be necessary to support administrative justice and tribunals in Scotland.
The Scottish committee convened an expert working group and undertook a consultation, and it provided a report to me on 30 January. Having considered the report, I am clear that my decision to continue with an independent advisory committee on administrative justice and tribunals post abolition is the correct one. My intention is that the new advisory committee should have the remit of championing the needs of users of administrative justice. That should be done through its keeping a strategic overview of the whole of the administrative justice system in Scotland, identifying to the Scottish ministers any issues that affect the administrative justice system in Scotland that might require Government attention, ensuring that users of the system are listened to and their interests are represented, and encouraging networks and the sharing of good practice among practitioners.
We are at an important stage of reform of tribunals and administrative justice in Scotland. Although the Scottish Tribunals Service has been established, it is still relatively new. The tribunals bill that is to be introduced shortly will propose a new structure for the leadership of tribunals in Scotland. I know that members of the committee were involved in a debate last year on that.
We still await confirmation from the UK Government on its timing for the transfer of the functions of reserved tribunals to Scotland, and we are starting to develop a strategy for administrative justice in Scotland. That is why I want there still to be expert independent advice and scrutiny of administrative justice and tribunals here.
I recognise that with so much reform, needs might change, which is why I am keen that the advisory committee be set up on an interim basis at this stage. That will allow us to consider changing needs and to adapt appropriately.
I hope that I have outlined why I support the UK Government’s intention to abolish the AJTC. The timing is right to set up appropriate mechanisms and advice in Scotland, for Scotland. Should the Scottish Parliament indicate its approval of the intended abolition, which in turn would allow the UK Parliament to make the abolition order, my next step will be to formalise the plans for the interim committee.
I know that the committee is also keen to consider the petition by Accountability Scotland today. I hope that our plans will reassure you and the petitioners that independent advice will remain and that the needs of the user will be paramount.
I am happy to answer questions.
Thank you, minister. I nearly said “cabinet secretary” there. I was promoting you. Well—you never know. Do members have questions?
Good morning. I note that the paper that we received from the Scottish committee, which is dated February 2013, mentions the absence of a plan for the future of the administrative justice advisory group. The paper comments on the fact that AJAG has met only twice since its inception, and it expresses doubt that the proposal for AJAG has sufficient capacity to deliver for the future. Have you read the comments and do you have a response that will give the Scottish committee some comfort?
I have read the comments, but note that they relate to UK Government arrangements, over which we have minimal—
What about the replacement for Scotland?
One of the reasons for going ahead with this is to ensure that what we have in place in Scotland is robust. We know that the UK Government has already agreed to have Scottish representation on the advisory group; we have now received that confirmation, but we did not have it before and I am not quite sure that it would have been in place when the original—
That is not in our notes.
This is new information. We have now received confirmation that the advisory group will have Scottish representation, which is helpful.
This is an on-going conversation that we are having with Ministry of Justice officials; indeed, later this month, Ministry of Justice officials will come up to meet Scottish Government officials and discuss the matter further. We are concerned to ensure not only that the UK arrangements give due regard to the Scottish situation but that, separately, we can go ahead with the proposed replacement for Scotland in connection with, and having reflected on, what is planned for Scotland over the next few years.
Will you ensure that, if and when that replacement comes along, its arrangements reflect the need for independence? After all, many of those who have commented have expressed the fear that independence is what the oversight arrangements for Scotland might lack.
We are proposing the establishment of an expert advisory group that will, by its very nature, be independent. There would be no point in having it if it did not provide advice, so I am not entirely certain why people have expressed such concern. People will put themselves forward as members; of course, such decisions will be made by ministers, but that would be the case regardless of whatever set-up we have.
Do you acknowledge the sensitivities that have been expressed in those comments and will you take the matter on board?
We acknowledge the sensitivities. We have looked at other advisory groups that are already in place and members around the table who have been connected with some of them will know how independent they are and how robust they can be—and frequently are, even when it is not necessarily to the Government’s advantage.
That is not always a bad thing.
Absolutely not.
I do not want to put words in the mouths of the Law Society of Scotland or the Scottish committee, but I sense from submissions a concern that some reserved areas might slip through the net. You say that you are having discussions with the Ministry of Justice, but how else can we ensure that certain areas do not go simply by—for want of a better word—default?
There are two issues here, and I want to clarify which of them we are talking about. First of all, there is the original proposal that the MOJ has put on the table, which in effect is to give over to Scotland the administrative function of reserved tribunals. There is a conversation in progress about that.
Secondly, the UK Government is putting in place its own arrangements post-abolition, and we want to ensure that there is Scottish representation on its group and that we have appropriate input. The detail of the issue that I think Roderick Campbell has raised is ultimately a matter for the Ministry of Justice and the UK Government. Although we can continue to monitor the situation, it is difficult for us to step in and insist on something different happening with regard to reserved tribunals.
Two sets of conversations that are close but not the same are on-going and they concern at least one unresolved issue about the administration of the reserved tribunals which, in a sense, would solve the problem. However, that conversation has not yet come to an end—there is still a process. The other conversation is about the arrangements that the UK Government is putting in place for reserved tribunals in the meantime, and how they will work. The two conversations are close, but they are not the same, and until one issue is resolved it is difficult for us to be definitive about the other—if that makes sense. I am sorry if that sounded a bit convoluted; I did not mean it to do so.
10:30
Would you advise the Law Society of Scotland to make representations to the MOJ?
If I know the Law Society of Scotland, vigorous representations are already being made to the MOJ. Of course, we are in constant contact with the MOJ. As I said, MOJ officials will be up here in just a couple of weeks. The conversation will include concerns that we have, and we will reflect directly to the officials concerns that have been put on the record at today’s meeting. These are important issues, and we do not want the UK Government, by default, to overlook an issue that might have inadvertently fallen through the cracks.
Thank you.
If there are no further questions, I thank the cabinet secretary—
You are promoting me again—
Och! I’ve done it again. Perhaps there is something in the runes that I do not know about. I thank the minister.
Are members content to recommend that the draft motion that is set out in the memorandum, which is in annex A of your paper, be agreed to?
Members indicated agreement.
Thank you. We are required to report our views on the memorandum to Parliament. We will consider the report at next week’s meeting, because Parliament must agree to the motion before the Easter recess.
Does the committee wish to send a copy of the Official Report of this meeting to the Scottish committee of the AJTC and the Law Society of Scotland, for their information? I have no doubt that those people are paying attention anyway.
Members indicated agreement.
Does the committee agree that we should formally consider petition PE1449 at a later date?
Members indicated agreement.
Do you want to seek the petitioners’ views on the minister’s latest proposals relating to the petition, in advance of our formally considering it? We would do that in writing.
Members indicated agreement.
Minister, I thank you and your officials for your attendance.
10:32
Meeting suspended.
10:35
On resuming—