Additional Support Needs Tribunals for Scotland (Appointment of President, Conveners and Members and Disqualification) Regulations 2005<br />(SSI 2005/155)
Item 3, on subordinate legislation, is a little more complicated than item 2. We must consider the regulations under the negative procedure. As members will see, the purpose of the regulations is to set out the qualifications, training and experience required for employment on the additional support needs tribunals.
Thank you for giving us the opportunity to speak to the committee.
I should mention that Lord James Douglas-Hamilton and I are lawyers—of different kinds—of more than seven years' standing, although I do not think that either of us intends to apply for membership of the tribunal in the immediate future. However, we should declare the matter in case there are considerations of interest. Does that declaration cover your situation, Lord James?
Yes. I am a non-practising Queen's counsel.
I want to ask, first, about the timescale. How urgent is it that the process for which the regulations provide should go ahead, given that we might take a certain view on the Subordinate Legislation Committee's report? Secondly, will the witnesses give us a little more guidance about the technical definition of "members"? I understand that there are three categories, but paragraph (4)(2)(b) of schedule 1 to the Education (Additional Support for Learning) (Scotland) Act 2004 refers to "two other members", which implies that the word "members" incorporates the conveners and the president.
We hoped to put the regulations in place so that we could advertise for the president and conveners and, after making appointments to the first two categories, tribunal members. Our objective is for everything to be up and running by later in the year, so that the 2004 act can be commenced by autumn 2005. I hope that that answers your first point.
Yes, thank you.
On your second point, the phrase, "two other members" refers to members who are selected from the panel that is referred to in paragraph 3(1)(b) of schedule 1 to the 2004 act. Paragraph 4(2)(a)(ii) of schedule 1 provides for
Although it is a little complex, and seems to be a bit circular, at the end of the day you are saying that there are different tranches. I am inclined to agree with that, but I do not know what other members think. Do members have questions?
Not on the same point.
Just ask your question.
The model separates the president and conveners from lay members. Do you find that in other tribunals?
It is fairly common to have legally qualified conveners of tribunals. You might be aware that employment tribunals must have members with experience of being employers and employees. In this case, having set conveners' qualifications, experience and training, we look for the other expertise that is required on the tribunal. There are examples of other tribunals that consider the background, experience, information and knowledge that will be required to ensure the proper consideration of cases.
Employment tribunals are an interesting example, because they have a balance of interests. In this case, it is a balance of expertise, rather than interests. I am slightly worried that lawyers will dominate the lay members or that lay members will dominate the lawyers, particularly because the roles seem to be mutually exclusive. Can you verify that? From what you say, they are mutually exclusive, because a lawyer with seven years' experience cannot be a lay member of a panel, even if they just happen to be a member of the public who has experience of the issues. Can you also confirm that having knowledge of additional support needs would not be a bar to a lawyer being a convener? I am sure that it would not, but I just want to check. In other words, if you happen to qualify to be a member because you have experience of additional support needs, but you are also a lawyer with seven years' experience, you could be a convener.
The reason behind the disqualification is so that lawyers do not dominate tribunals. If you are qualified to be appointed as a convener—that is, you have at least seven years' legal experience—you will not be one of the lay members of the tribunal.
As Louise Donnelly said, tribunals cannot be dominated by lawyers. The lawyer would be the convener, and there would be two wing members. On your other point, if a lawyer had seven years' experience and also had experience and knowledge of children with additional support needs, that would be fine. There would be no problem with that.
To go back to my original point, are there any other examples of panels where the convener or president is a lawyer and lay members represent other interests?
That is fairly common, for example with social security appeal tribunals and child support tribunals, which I am sure will have changed their name now. The legal qualification tends to attach to the convener of the particular tribunal. Then, the intention would be to bring in other members with particular knowledge and expertise.
Is that because if mistakes are made in procedural issues the tribunals will be subject to challenge, so it is felt desirable to have legal guidance in the chair? Is that broadly the reason for that requirement?
The reasoning also concerns a structured approach to consideration of the matters that are being presented to the tribunal, because these are almost self-contained. The tribunal members consider each case on its own merits and its members are equal. There is no arrangement for a convener to have the ability to overrule the decision of the tribunal or to have an additional weight. However, while the members are equal, their qualifications, training and experience will represent, as a package, a desirable background and level of experience to enable them to take good decisions.
So, in summary, the president and the conveners will be legally qualified. They can have experience of children with additional support needs—and it would probably be a good thing if they did. The other members of the tribunal are not legally qualified and cannot be, at least not at that level. They are required to have some knowledge of children with additional support needs, but not necessarily a specialist, professional knowledge.
Is it correct that the tribunal comprises only three members and that the president or convener will be legally qualified? Therefore, at least a third of the membership will be legally qualified.
Yes.
My question relates to qualifications. The witnesses stated that the president must be qualified under the law of England, Wales and Northern Ireland. Although I am not absolutely familiar with the up-to-date position, in the past Scottish lawyers could not practise in England and English lawyers could not practise in Scotland, and very few were qualified to practise under both jurisdictions. Do the witnesses mean that the president must have passed all his or her exams under both jurisdictions?
No, they must do so in one or the other jurisdiction. Regulations 2 and 3 are drafted in a manner that is fairly common when one is looking for a legally qualified convener of a tribunal but is not restricting the position only to those who are qualified in Scots law. That goes back to the point that these are not judicial appointments as such; they are appointments to tribunals where the legal qualification assists in the decision-making process for the whole tribunal, but it is not specific to English or Scots law.
Therefore, the point is that the qualification must be well recognised by both jurisdictions.
Yes, and one of the three members must have such a qualification.
I am not a practising lawyer. However, with regard to this apparent discrimination against lawyers, if a lawyer, for example, found that he was in the wrong profession and joined the teaching profession and became a head teacher, or became a social worker, or retired, would he still be excluded? My reading of this is that such lawyers would be excluded. Is that what is intended?
If they satisfied the seven years' qualification requirement, they would not be excluded from appointment to the role of convener. There is no requirement in the regulations for the lawyers in question to be currently practising.
I am asking whether, if somebody who has the seven years' qualification changes their profession and makes a considerable contribution, perhaps as a social worker or teacher, they would be automatically excluded. Is that what the Executive and the Minister for Education and Young People deliberately intend?
May I supplement that question? The regulations say:
It is not my understanding that it works in that way. The regulations could have been drafted in such a way that a person would need to have those things at the time of appointment.
I have in mind the case of a father of a child who has additional support needs, who has an enormous amount of knowledge relating to that child. I wonder whether the terms of the regulations may be a little more exclusive than they are intended to be. A person could be excluded who had changed his profession or who had retired very young and was able to make a considerable contribution, and I am not sure that that is the intention.
They would still be eligible for appointment as president or convener, would they not?
Yes, but the person might be qualified to make a very good contribution as a panel member.
I suggest that the word "current" is missing. The phrase "currently practising" could be added. Much as I hate to discriminate against lawyers, I cannot think of many lawyers who would give up their practice to become social workers and then apply to join the panel. Therefore, although I take the general point that is being made, I suspect that it will not be a hurdle in practice.
The issue might arise in other cases, for which some clarification might be in hand. The phrase
This is a fairly standard formula for prescribing the qualifications. It would have been open to the ministers to go on and prescribe either specific training for such members of the panel or for other members or necessary experience. It would have been open to them to consider whether something further was required at that point. Something that has worked well for a huge range of tribunals has been used as the basis of the provision here.
Can you get back to us on that point?
In what respect? Are you concerned about the possibility that someone who has—
If the purpose is to get the very best persons for the jobs, does the way in which the instrument is drafted produce a result that may not have been intended? You do not seem to have given a conclusive answer to that question.
I am not sure that I agree.
The position is reasonably clear, although there is perhaps a frisson of uncertainty on the question whether it is necessary to insert the phrase "currently practising". It would perhaps be helpful to have a more chapter-and-verse definition, although that does not affect the point at issue for us today. We could debate whether that would be the right way to do it—we will all have views about that—but there does not seem to be any unclarity about the matter, apart from on the issue that Ken Macintosh has raised. Could we perhaps have clarification on the narrow point about "currently practising", just so that we are clear about that?
I have a couple of points. First, I admit to being a member of the Subordinate Legislation Committee. That committee's legal adviser indicated the possibility of defective drafting and doubts about whether the regulations were intra vires. You have explained to us that that is not the case, but I would like confirmation of that.
On your second point, we have already had inquiries about the posts of president, conveners and members. I am not saying that we will be swamped by applications, but we have good grounds to believe that there will be keen interest in all the tribunal posts. Andrew Mott has been dealing with some of the inquiries.
The closest tribunal in existence is the special educational needs and disability tribunal in England and Wales, which is often heavily oversubscribed when it advertises for members. We see no reason why the tribunals here should be different. There is quite a strong draw on legally qualified conveners—as you say, the mental health tribunal draws on people in that category—but we will be appointing only about six conveners and 12 members to cover Scotland, which is not a huge number.
I agree with your interpretation of the Subordinate Legislation Committee's concerns. Your explanation has enlightened us on those concerns. However, as membership of the tribunals has been extended to people with legal qualifications from England, Wales and Northern Ireland, it is clear that specific knowledge of Scots law is not a required qualification for the post of president or convener. Why has qualification been restricted to knowledge of United Kingdom law? Could the pool not have been widened slightly, by including knowledge of European law or by including people from other EU countries? It is legal training that is felt to be important, rather than specific knowledge of Scots law.
Ensuring that legally qualified individuals from England, Wales and Northern Ireland can stand as president or convener is very much in keeping with the normal procedure. The specification that we developed for the posts of tribunal president and conveners will ensure that, as well as having the legal qualification, training and experience, applicants have an interest in Scottish educational matters as a whole, and specifically a knowledge of the 2004 act and the code that will accompany it. That will not be put in regulations, but it will be part of the criteria that will be developed to sift applicants for president, conveners and members. It will be on the basis of those criteria that we will invite the minister to make a decision about the appropriate individuals to be appointed as president, conveners or members.
I have now been able to look at the Courts and Legal Services Act 1990, which is the basis for the English and Welsh legal qualification. Section 71(5) confirms:
They would have to be on the roll of the Law Society of Scotland or the Faculty of Advocates.
Yes.
I though that that might be the case. Thank you for that helpful clarification.
I hope that that means that we have answered the question.
Yes. That has answered Lord James Douglas-Hamilton's point. The section that you cited has consequential effects on who is entitled to stand for the member's panel. If a person does not have the legal qualification, they are eligible for appointment to the panel of members.
Yes. They would not be disqualified under regulation 5.
Your clarification means that you do not need to write to us about the matter. It is reasonably straightforward.
I have a note rather than a question about whether the regulations will come before us for amendment in the years to come. At the time that the tribunals were established, part of our discussion centred on the expectation that they would deal with cases under the Disability Discrimination Act 1995, as is the case with the SENDIST tribunals in England and Wales. Since that discussion, Scottish ministers have debated with their Westminster colleagues and decided that the tribunals will not initially accept disability discrimination cases. However, ministers are minded that the tribunals will do so after they have been established for a while and have demonstrated the effectiveness of their operation.
If that were to arise, we would consider it at that time. We do not need to consider it today.
In that case, we will note the regulations. I thank the Executive officials for their attendance this morning. The debate was slightly more complex and interesting than we anticipated.
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