The next item of business is a debate on motion S4M-09272, in the name of Roseanna Cunningham, on the Tribunals (Scotland) Bill.
15:06
I thank the convener and members of the Justice Committee for their careful consideration of the bill. I appreciate that the bill might not, at the outset, have seemed like the most exciting legislation to be discussing. However, in reality, once one begins to look at the subject matter one realises that the bill affects a huge number of people, as tribunals are a rather unsung part of the justice system, and that it is appropriate that the bill was given serious consideration.
I also thank the stakeholders, in particular the tribunal presidents and members, and those who gave evidence to the committee, for their contributions. By listening to their views and learning from their knowledge and experience, we ensured that the bill was fit for purpose. In developing the bill’s provisions we worked closely with the Lord President’s judicial office and his representatives; they will play a major role in the new tribunal structure, and I am grateful for their assistance.
Tribunals are a mechanism for dispute resolution. They are different from courts as they are in the main—but not always—more informal and inquisitorial. They are perceived to be quicker, cheaper, more knowledgeable in their area of expertise and more accessible. There has been some debate during the bill process about what exactly constitutes a tribunal. Tribunals have developed over many years on an ad hoc basis without any underpinning framework, which has resulted in some uncertainty around what the term “tribunal” includes and how a tribunal should function.
There is significant diversity in the forms that are taken by the bodies that we call tribunals, and in their characteristics. A tribunal can sometimes be a person rather than a body—for example, a parking adjudicator. The bill caters for that diversity and has avoided using too tight a definition for those reasons.
On the subject of definitions, I recall that at stage 2 the Justice Committee sought a definition of the term “wasted expenses” that arises in section 59 of the bill, which covers the award of expenses. In its simplest terms, wasted expenses means that there was an unnecessary or improper act or omission and expenses have been incurred as a result. That could include a situation in which a party has incurred expenses unnecessarily due to the other side’s conduct. For example, if a tribunal hearing is postponed because of one party not turning up at a hearing and, as a result, the other party has had to pay a fee for legal representation for a hearing that ultimately did not take place, those expenses could be classed as wasted. The bill also allows for rules to prescribe a precise meaning for the term “wasted expenses”. I hope that that helps to clarify what we mean by the phrase in Scots law, as it was a matter of some bemusement in the committee’s consideration of the bill.
We have debated tribunal reform in this chamber on two previous occasions, and on each occasion, we agreed that reform was well overdue. I am pleased to get to the point that we are at now and to have legislation that will address the issues that were raised in the independent reports by Franks, Leggatt and Lord Philip.
In formulating the provisions of the Tribunals (Scotland) Bill, we took particular note of the key findings from the Philip report in 2008. They were: the present tribunal system in Scotland is “extremely complex and fragmented”; many tribunals are not sufficiently independent of the Scottish Government; and there is no consistent system of appointment of tribunal chairs and members. The bill that is before the Parliament today addresses those concerns by simplifying the structure, guaranteeing independence, and introducing a uniform appointment system for members.
The Tribunals (Scotland) Bill creates a framework within which devolved tribunals in Scotland will be placed. It is an enabling bill and quite technical. It is probably difficult to get very enthused by the bill’s content, but we should not forget the important elements that will make up the new structure: the individual jurisdictions dealing with matters such as mental health, housing or charities.
In considering the bill’s provisions, we were careful to include safeguards that protected all jurisdictions to ensure that their individual characteristics and specialisms were secured. We made an amendment at stage 2 to include a guiding principle in the bill that will ensure that the user is placed at the centre of any proceedings before the tribunals. The principle is that tribunal proceedings should be accessible to the user, fair to the parties involved and handled quickly and effectively.
We recognise that the tribunals that will transfer to the new structure are all different, and the way in which they operate has to vary, depending on the subject matter with which they are dealing. There was debate about whether the Lands Tribunal for Scotland is a tribunal in our modern understanding of the word, but that is how it was set up and how it was termed. The Mental Health Tribunal for Scotland is very much in and of itself, because it may deal with the liberty of individuals.
We can see the enormous variation that can arise within the terminology. That is why we have allowed for the tribunals to transfer in with existing rules of procedure specific to the jurisdiction involved. Occasionally, that gave rise to some concern. For example, with the Lands Tribunal for Scotland there were issues around costs that are not necessarily involved in some of the other tribunals, and there was worry about whether that would spread across to every other tribunal. We have tried to ensure that each tribunal is protected within its own particular jurisdiction, and that is important.
We also specified that any new rules will be made in future by a specialist committee of the Scottish Civil Justice Council that will be specifically convened and will include the president of the Scottish tribunals as well as experts in tribunals and the subject matters involved. Those experts will be the same people whom Scottish ministers will consult in the transitional period, when ministers will continue to make tribunal rules, prior to the Scottish Civil Justice Council taking over the role.
I assure members that, during that interim period, Scottish ministers will not make rules in isolation of expert advice or consultation. We have ensured that those who are appointed to the tribunals will have to meet specific criteria for appointment that will guarantee that they have the knowledge and experience that they require to make decisions in their own jurisdictions. The bill achieves the right balance of providing protection, while still allowing flexibility.
The new upper tribunal will benefit the tribunal user by removing, in most cases, appeals from courts, providing easier access and a less intimidating appeal process for users. It will also allow specialism and expertise to develop among its members.
The bill allows that, when a petition is made to the Court of Session for judicial review, it can be remitted to the upper tribunal for consideration. The court might consider that the upper tribunal has the expertise in the subject matter to hear the petition. That will bring a level of consistency to the type of member who will hear cases related to tribunal business.
The bill establishes a strong leadership structure under the Lord President of the Court of Session, who will provide expert guidance and supervision to the tribunal members and jurisdictions within his authority. In addition to his responsibilities for the efficient disposal of business within tribunals, the Lord President, as head of the Scottish tribunals, will also be responsible for the welfare and conduct of members of the tribunals. The bill clearly sets out when the Lord President may make rules for a consistent process for the suspension or removal from office of any member when he regards public confidence in the Scottish tribunals to have been lost.
The new role of president of the Scottish tribunals that is created in the bill will provide a voice for tribunals in the administrative justice landscape, and ensure that tribunal interests are safeguarded and their good work championed.
At stage 2, concern was raised about oversight of tribunals and administrative justice following the United Kingdom Government’s abolition of the Administrative Justice and Tribunals Council and its Scottish committee. Those concerns were rehearsed again earlier this afternoon. As members are aware, in response to the abolition, I set up a new interim advisory committee to provide external expert scrutiny of the devolved administrative justice and tribunals landscape. I have set up the committee on an interim basis, as we are at a time of significant reform of tribunals and administrative justice and I feel that it is important that we have a model that can adapt and change as the landscape in Scotland develops.
As part of the interim committee’s remit, it has been asked to consider and recommend how its functions should be carried out in the longer term. The committee is also expected to scrutinise the way in which the tribunal system is working as jurisdictions are brought into the new structure. As I explained earlier this afternoon, the work of the committee is well under way. On 1 April, the committee will hold an event to inform stakeholders of the existence of the committee and outline its remit; to build relationships with a wide range of stakeholders; to engage with stakeholders on the reach and impact of administrative justice; and to understand the concerns and issues that arise in its delivery. The committee will also seek input on where it should focus its work priorities for the next two years.
I believe that the bill brings the tribunal system in Scotland into the 21st century and provides a clear and robust structure within which tribunals can operate according to their individual needs.
I move,
That the Parliament agrees that the Tribunals (Scotland) Bill be passed.
15:16
I, too, thank the witnesses who provided evidence by writing to and attending the Justice Committee. I also thank the committee clerks, the Scottish Parliament information centre and the legislation team, who always provide invaluable assistance with drafting amendments. We do not always give them the credit that we ought to give them.
As the minister said, tribunals are an important part of the justice system. They affect many areas of everyday life and safeguard the rights of citizens. The majority of cases that proceed through the tribunal system are heard by United Kingdom tribunals; only 4,000 cases are heard annually by devolved tribunals in Scotland, which is 2 to 3 per cent of the total case load.
I have discovered that the tribunal system across the UK commenced with the passing of the National Insurance Act 1911, which included provision for the adjudication of disputes. In 1954, we had the Crichel Down affair, when the Ministry of Agriculture appropriated and leased out land that had been compulsorily purchased by the Ministry of Defence. That is of some interest to me, as I sometimes deal with the Crichel Down rules when constituents attempt to buy parcels of land along the M74 that were purchased by the Scottish Office. The rules still apply in that situation. In 1957, the Franks report, which arose from the scandal around the Crichel Down affair, made recommendations regarding the constitution, procedure and appeals process of tribunals and informed the Tribunals and Inquiries Act 1958.
As we have heard, in 2006, the UK Tribunals Service was created to manage and administer tribunals, and the UK Government then passed the Tribunals, Courts and Enforcement Act 2007, which created a unified structure for tribunals, to which the pre-existing tribunals transferred. The structure comprises a first-tier tribunal and an upper tribunal, with a tribunal procedure committee that makes the rules governing tribunal practice and procedure. The bill, which I am pretty sure we will pass at decision time today, mirrors much of that legislation.
The bill proposes the transfer of 13 tribunals to the new structures. One is the Additional Support Needs Tribunal, which was established in 2005 to consider appeals against the decisions of education authorities regarding the provision of co-ordinated support plans. Since 2011, it has also considered appeals relating to discrimination on the grounds of disability. The Scottish Charity Appeals Panel considers appeals against decisions that are made by the Office of the Scottish Charity Regulator. The Private Rented Housing Panel deals with repair and fair rent issues, and the Homeowner Housing Panel determines whether property factors have failed to carry out their factoring duties or to comply with the code of conduct that was introduced by the Property Factors (Scotland) Act 2011.
The status of some tribunals in the new structure has attracted some discussion. For example, the Mental Health Tribunal for Scotland determines applications for compulsory treatment orders and appeals against compulsory measures that are made under the Mental Health (Care and Treatment) (Scotland) Act 2003. Initially, that tribunal will be in a chamber on its own, but some witnesses, such as those from the Law Society of Scotland, felt that that should not be a temporary measure. The specific concern is that the intention of the founding act was to remove jurisdiction from the generic courts in Scotland and to ensure expertise. As the Mental Health Tribunal has powers to deprive someone of their liberty or to impose conditions on them, that expertise must be preserved.
I lodged an amendment on that issue at stage 2, but it was not agreed to by the committee. The minister argued at the time that a new tribunal jurisdiction could be created that would naturally sit alongside the MHT in the same chamber. I have not lodged a similar amendment at stage 3, partly in recognition of the fact that the MHT has not lobbied to be in a separate chamber.
I welcome the minister giving assurances on the record about her intentions regarding the MHT. However, we need to take cognisance of the warning from Adrian Ward of the Law Society of Scotland that a significant change in the status of the Mental Welfare Commission for Scotland almost slipped through in the context of the Public Services Reform (Scotland) Act 2010.
Within the UK tribunals, the mental health tribunal in England is part of the first-tier health, education and social care chamber. It shares that chamber with the care standards, special educational needs and disability and primary health lists tribunals. I am not aware of any evidence that there have been problems with the English mental health tribunal sharing a chamber, but legislation in those areas is fully devolved to Scotland and is potentially quite different from that in England. Indeed, our legislation on mental health preceded that which has been passed by the UK Government.
It will be important to ensure that if, in the future, another tribunal is created that could share a chamber with the Mental Health Tribunal for Scotland, that change does not slip through but is properly scrutinised. We do not know whether or when that might happen, and ministers cannot bind their successors. However, I hope that those of us who are involved in the passing of the bill today can agree that any change in the status of the Mental Health Tribunal regarding its position within the Scottish tribunals should be properly scrutinised.
The Lands Tribunal for Scotland has statutory powers to deal with disputes involving land and property, and it can also act as an arbiter. It is closely associated with the Scottish Land Court but has separate administrative staff and systems. The bill places the Lands Tribunal in the upper tier. However, some witnesses felt that that is not appropriate either because the Lands Tribunal for Scotland differs from the lands chamber for England and Wales. Lord Gill argued that the Lands Tribunal for Scotland is a court in all but name and, therefore, should be outwith the tribunal structure.
The minister has already referred to the fact that the matter of a tribunal that is not a tribunal has not really been resolved during the passage of the bill. However, there was no prevailing view on the alternatives to the bill’s provisions, and although external organisations gave evidence to the committee none argued that there should be an amendment or, indeed, produced an amendment. Therefore, no amendment to the structure that is proposed by the Scottish Government has been lodged or debated during the passage of the bill. Nevertheless, I think that the suitability of the arrangement for the Lands Tribunal for Scotland should be monitored over time, as it may be that it should be part of the court system. The structure is not all set in stone for the future, and the situation needs to be monitored with a view to considering in future whether alternative arrangements need to be made.
Despite the issues that I have raised on the detail of the bill, I am pleased to say that Scottish Labour will support the bill at decision time this evening. We agree that the tribunal system in Scotland is a very important part of the justice system—one that is experienced by far more people than experience the rest of the justice system. Therefore, it needs to be fit for purpose and modernised to be so.
15:23
I welcome the opportunity to speak in the stage 3 debate on the Tribunals (Scotland) Bill.
Although they are not the most riveting topic, tribunals are nonetheless an important part of our civil justice system. For example, some tribunals are a forum for citizens to challenge decisions that have been made by public bodies on their entitlement to benefits and services. For that reason, it is imperative that tribunals are independent from Government and the public organisations whose decisions they regulate. Others, such as the Lands Tribunal for Scotland or tribunals that consider employment issues, are a forum for the resolution of private disputes. They offer a less formal and less costly dispute resolution mechanism that is an alternative to the courts. That said, tribunals are still costly, so I support attempts to use alternative forms of dispute resolution, whenever that is possible.
The bill’s main features include the creation of a first-tier tribunal for first instance decisions, an upper tribunal, which will deal primarily with appeals, and a standard system of appointment, training and appeals. Those provisions, which will simplify and standardise the system, are generally to be welcomed.
However, a few concerns remain about some areas of the bill. It provides that sheriffs, sheriffs principal and part-time sheriffs will be eligible to act as judicial members of the first-tier tribunal by virtue of their judicial office alone. Although the Lord President welcomed that, there is still a concern that the possibility of an influx of judges and former judges risks tipping tribunals from their current informal, generally non-adversarial format into becoming courts in all but name. The minister has given assurances that the use of judges in the new system will be reasonable, and that there are safeguards in the bill to prevent an overreliance on judicial members. Time will tell. Suffice it to say that it would be a mistake if the bill were to result in tribunals losing their informal status.
The bill also makes provision for the newly established Scottish Civil Justice Council to propose procedural rules for the Scottish tribunals through a specialised tribunals committee, but given that the SCJC has the monumental task of rewriting civil court rules, it will be years before it can even consider tribunal rules.
In the interim, the bill will allow the Scottish ministers—for what is an unspecified period of time—to write the rules for the Scottish tribunals. That gives rise to a potential conflict of interests, as it means that ministers will be able to make rules governing tribunals to which they themselves may be subject at some point. Although the minister stated that that does not represent a radical shift from the current set-up and that rules will be made only following full consultation, the rule-making power will give ministers considerably more influence over tribunals, as ministers will be required to design the rules for the newly created upper tribunal, which, of course, does not yet have any procedural rules.
Furthermore, one of the amendments that were agreed to at stage 3 will allow ministers to draft rules to cover any matter that is considered appropriate with respect to Scottish tribunals. That poses serious constitutional issues. The Scottish ministers can be challenged in tribunals, so it is not appropriate for them to be involved in setting the rules. It is disappointing that we could not agree an alternative, such as the one suggested by the amendment that I lodged to provide a very modest safeguard that would have increased the Parliament’s influence over and scrutiny of the process by making the relevant regulations subject to the affirmative procedure.
Notwithstanding those concerns, the bill represents a welcome development in the tribunal landscape and the Scottish Conservatives will support it tonight.
We come to the open debate. We are quite tight for time, so I ask for speeches of four minutes.
15:28
I am relieved to hear that we are tight for time, because I do not want to replicate what other people have said.
First, I thank Elaine Murray, as deputy convener of the Justice Committee, for thanking on my behalf—I have been usurped again—the witnesses who gave evidence, the committee’s clerks and its hard-working members. I also thank her for reminding us that only 3 to 4 per cent of tribunal cases involve devolved areas, but I point out that those cases are extremely important to the people concerned.
Although, as other members have said, tribunals might not be the most fascinating of subjects—I assure members that they are not—a vast and diverse range of tribunals exist, and they are extremely important.
The Mental Health Tribunal for Scotland deals with such serious issues as personal liberty and the enforcement of compulsory treatment for mental health issues. The Additional Support Needs Tribunal deals with situations in which people have to fight to get provision for their children in school. Parents who want to get their children into schools that are suitable for them can also appeal the refusal of placing requests. Then there are valuation appeals, which can impact on businesses. However, the most important to me is the parking appeals service. I did not know previously that people could appeal a parking ticket. I have found that out too late in life, but now we know that the service exists. If anyone feels that they have been done wrong on a parking ticket issued by the City of Edinburgh Council or any other council, there is somewhere that might provide them with a remedy.
As the minister said, the tribunals have grown up in an ad hoc fashion from the ground up—sometimes quite rightly. However, it is now time to rationalise and professionalise them, without judicialising them, and get them into some kind of structure. Through the bill, we will now have what are known as chambers. The mental health chamber speaks for itself as to what it is, and the Mental Health Tribunal will be on its own in that chamber—I heard what Elaine Murray had to say on that. The housing, land and property chamber will take in private rented housing, valuation and crofting; the learning chamber will deal with additional support needs and education; and the general regulatory issues chamber will deal with issues to do with charities, the police and, inevitably, parking. The appeals process will mean that cases will not have to go to the Court of Session, which is an expensive process.
Each tribunal has a very different culture. For example, the Lands Tribunal is, to all intents and purposes, very judicial, with Queen’s counsels on their feet and so on. However, much more ordinary people are involved in education appeals—I presume that that is also the case in relation to the parking appeals service, which I might visit sometime. We do not expect to see senior counsel involved in such cases, and those tribunals are supposed to have a different culture. That all had to be brought into the proposed new system, which will still have to be flexible enough to recognise the different cultures of the various tribunals.
The independence of tribunals is important. Margaret Mitchell referred to that, although I do not agree with what she said. Their independence is essential because they often deal with appeals against Government or local authority decisions. I do not in any way criticise the quality of tribunal members, but I think that a degree of specialism and expertise is important for specific tribunals.
I heard what the minister said about the interim advisory committee, which I welcome. I also welcome the fact that it is to have a wide range of members from what we now call the tribunal landscape—the mot du jour. However, most of all, I am pleased that the Mental Health Tribunal will stand alone for the time being and that any change will be dealt with under the affirmative procedure. That tribunal is very different because it deals with the imperilling of an individual’s liberty and the imposition of treatments to which a person might object. It is a very different tribunal and I am glad that it will be in a chamber on its own.
15:32
I rise to support the bill and its general principle of restructuring devolved tribunals in Scotland. I am not a member of the committee, but I commend it, its clerks and the bill drafting staff for the work that they have done.
There is no doubt that tribunals facilitate a very vital part of public life in Scotland. I am sure that those who live in nation states where no such facility is available to them would love to be able to challenge the state and decisions that are made in the state’s name. I witnessed a tribunal as a citizen and was very heartened to see the way in which the decisions made by officials were weighed and listened to, as were citizens’ views.
Tribunals are an unheralded but vital element of the Scottish legal process. I acknowledge that they cover more cases each year than the criminal and civil courts combined. Tribunals provide a vital service to citizens who are seeking redress in relation to employment, mental health, housing and other areas that are of great significance across the board. Tribunals in Scotland have evolved in an ad hoc and disparate manner, as has been said, which has made it difficult for ordinary members of the public to understand the approach that they take. I hope that the bill will create a more uniform tribunal system that will improve the independence and quality of devolved tribunals and the service that they offer users.
The Government’s amendment 2 further defines the nature of a tribunal to an extent, but in general a tribunal resolves disputes between citizens and the state or between private parties by making binding decisions according to law. It does so by a process of adjudication that is specialised and which, on many occasions, is relatively informal and less adversarial than the model of adjudication that is applied by the courts. A tribunal is independent of the executive, the legislature and the parties that appear before it.
As much as tribunals are complex, it is important that they move into the 21st century, and I therefore welcome the fact that the Lord President of the Court of Session will from now on produce leadership on behalf of those who are engaged in day-to-day tribunals and, through the newly established office of the president of the Scottish tribunals, indicate the appropriate governance and legitimate accountability arrangements that should be in place in the operation of the tribunal system of adjudication.
The first tier will be split into chambers, as has been commented on. Particular sensitivities are attached to mental health issues, and again much has been said in that regard. There is no doubt that the challenges of deciding matters in relation to mental health and the cases that the Mental Health Tribunal for Scotland considers mean that mental health is worthy of having a chamber of its own within the first tier. Although some concerns have been expressed that the current commitment to retain that tribunal in an individual chamber appears to be temporary, I am heartened by the fact that the minister has indicated that sensitivity will be maintained.
In the round, today’s discussions showed that the Parliament supports the proposition in the bill, and I, too, am happy to support it.
15:36
I, too, acknowledge the work of the legislation team during the passage of the bill, and I thank the witnesses, who took the time to make their views known, and our Justice Committee clerks, whose assistance has, as ever, been very helpful.
Scottish Liberal Democrats have been clear that the Tribunals (Scotland) Bill provides a welcome opportunity to improve a tribunals system that historically developed in a disjointed fashion. The consensus seems to be that inconsistencies in the approaches of the various tribunals mean that they can prove difficult for legal professionals, let alone the wider public, to comprehend and therefore effectively interact with.
We should be asking more of a system that arbitrates cases that are often already challenging and stressful for participants, so I welcome the changes, which will mean that access to redress is transparent and straightforward and that rules and procedures are clearer and more consistent. Although I am instinctively cautious of any centralisation proposals, I am satisfied that the bill should enable those things to be achieved without compromising the intrinsic traits and distinctive ethos that set tribunals apart from the courts—the specialist expertise of legal and lay tribunal members, the inquisitorial rather than adversarial approach and the opportunity to secure reparation at an affordable cost within a comparatively informal environment.
I appreciate that the Government reflected on the committee’s comments and introduced section 11A, which establishes guiding principles that focus on users’ needs for a fair, quick and effective disposal of business. It is also right that there will be a duty on the Scottish ministers to consult stakeholders before any regulations are made to introduce further fees. However, I caution that many tribunal users cannot afford to incur significant costs, and I remain firmly of the view that the establishment of financial barriers should not become the norm.
As members know, the future of the Mental Health Tribunal for Scotland was the subject of much attention during consideration of the bill, including this afternoon, and during the consultation that preceded the bill. The tribunal has the capacity to determine what will happen next in the lives of some of the most vulnerable people in our society, and its powers include the ability to impose treatment against an individual’s will and the ability to deprive individuals of their liberty. Elaine Murray was persuasive in her argument that mental health should therefore be assigned an exclusive chamber in statute, as the committee suggested in its report. However, I also note the need for flexibility in the institutional framework and the minister’s assurance that safeguards will preserve its distinctiveness in the long term.
Finally, it strikes me that the bill’s progress through the Parliament has been characterised by amiable and intelligent debate. Perhaps that is because the bill is technical rather than ideological in nature; it is less contentious than some bills that come before us. Nonetheless, members have disagreed on some points. The respectful and rational manner in which the minister and other members have addressed those points should be commended.
Two weeks ago, the Cabinet Secretary for Justice suggested—absurdly—in a bombastic closing speech that a unionist cabal was out to scupper his Criminal Justice (Scotland) Bill against its own principles and instincts, for no reason other than to embarrass him. The approach of the Scottish Liberal Democrats to the passage of the Tribunals (Scotland) Bill demonstrates that, when reforms establish a system that is better placed to deliver the right outcome and empower people through greater understanding, we will back them. The Scottish Liberal Democrats will support the bill at decision time.
15:40
I refer members to my registered interest as a member of the Faculty of Advocates.
I recognise that, for most people, justice might well involve not the formality of courts but the relative informality of tribunals, so it is important that we get the structure of tribunals right. I acknowledge the bill’s importance and the generally consensual way in which the Justice Committee and the Parliament have dealt with it, but I recognise that concerns were expressed—particularly the concern of Lands Tribunal for Scotland personnel that their well-developed expertise and working arrangement might be threatened by the new structure and that tribunal’s incorporation in the upper tribunal rather than in a pillar of its own.
I hope that those concerns will prove to be unfounded. It is as well to remember that an appeal will still be available to the Court of Session on points of law and that the Lands Tribunal will be located in the upper tribunal and not in the first-tier tribunal. However, I hope that sufficient time will be taken in due course to monitor the new structure’s effectiveness, certainly in relation to the Lands Tribunal.
In the interests of balance, it is appropriate to stress that a spokesperson for the Additional Support Needs Tribunal gave evidence that current appeals to the Court of Session work well but accepted that a new system of appeal to the upper tribunal should be cheaper and speedier.
In a sense, the new system will be measured not only by its openness and transparency but by how it measures up on turning round decisions in a reasonable period. We heard evidence at stage 1 from Jon Shaw of the Child Poverty Action Group that one of the big issues in the reserved system is delay, especially in welfare cases. He said that, for such cases, automatic strike-out rules had been changed to avoid the appeals that frequently followed as a result of failures to send forms back in time, causing delay to the process. We need to learn from that experience.
We also need to remember that the bill’s purpose is not just to deal with the here and now but to provide a template for the long term, so that new tribunals can be added as and when appropriate. Let us not forget that, as other members have said, the bill will cover only about 2 to 3 per cent of tribunals in Scotland at present; the social entitlement chamber, employment and immigration fall completely outside it. The political desire to change the administration of those tribunals—let alone the substantive law—seems somewhat muted in Westminster, but times may change, and we need to ensure that the system can respond as and when that occurs.
I welcome the changes that were made during scrutiny of the bill, such as the removal of section 68(5), the Government amendment to provide for the possibility of permanent salaried appointments to tribunals and the Government’s acceptance that any change in the chamber structure will be made only following consultation and the use of the affirmative procedure. I hope that any concerns of the Mental Health Tribunal have been allayed.
The Government responded to the committee’s concern that any plan to introduce fees should not proceed without appropriate consultation. I hope that we can preserve tribunals from becoming fee orientated—except the Lands Tribunal, which is somewhat different in that respect. I certainly hope that we will not see the drift to payment of fees that is now proceeding in the employment field. If that happened, the idea of an open and accessible tribunal system would come under strain.
We do not know precisely when any integration of the court and tribunal systems might take place—Lord Gill said that it could be three years away. We know that any attempt to produce unified tribunal procedural rules is some years hence. However, I welcome the minister’s invitation to hear more about the work of the interim scrutiny committee, which the Justice Committee should take up.
I welcome the bill, which is an important step forward in making justice work.
I call John Pentland.
15:44
This is the third time that I have spoken on tribunals reform—
Could John Pentland’s microphone be switched on, please?
My card is not in my console—I apologise, Presiding Officer.
This is the third time that I have spoken about tribunals reform. I referred to my previous speeches, of course, only to be reminded that much of the bill is not particularly contentious. Indeed, I have not seen the minister, Roseanna Cunningham, or the cabinet secretary, Kenny MacAskill, looking so relaxed for a long time.
There was consensus around the bill’s objectives. Where disagreements occurred, they were about the exceptions to the general thrust of the bill and how best to achieve the objectives.
The advantages of reforming tribunals are clear. There can be economies of scale and the sharing of good practice and resources. However, a strong desire has been expressed to retain the specialist support and knowledge that are embodied in the current arrangements. The question is how best to do that without losing the lay involvement, the less adversarial approach and the simpler, relatively informal, user-centred nature of existing tribunals, and by avoiding the judicialisation of tribunals, which may lead to the erosion of their character. For particular tribunals, there was the danger that those positive attributes would be compromised by the process.
It was suggested that clarity in the definition of tribunals would be helpful. Unfortunately, the amendment lodged by my colleague Elaine Murray that would have provided that clarity was not supported at stage 2.
Attention has been given to the reserved tribunals being brought into the structure at a later date, although I note that there were questions relating to the obstacles that are faced by those with experience of the reserved tribunals whose qualifications are not Scotland based. That could restrict the expertise that is available in the event of the reserved tribunals becoming part of the Scottish structure.
The Mental Health Tribunal for Scotland was a particular sticking point. Attempts were made at stage 2 to preserve and protect its character, but the argument against that was that the amendments would prevent new tribunals being brought under the arrangements for the Mental Health Tribunal. That seemed odd because, as my colleague Elaine Murray pointed out, any new tribunal would by created by primary legislation, which could easily resolve that. The amendment was rejected without that matter being settled.
I am pleased to note that the issue of consultation on the introduction of or significant increase in fees and charges associated with tribunals was taken on board at stage 2 and that consultation in such circumstances will be guaranteed.
There were questions about tribunals that the bill does not address, such as on the enforceability of awards. As a consequence, we will probably revisit them in the future.
Finally, I want to make a small observation. In reading through the changes that have been made since stage 1, I was struck by the frequency with which additional powers are given to the Scottish ministers to issue regulations. That may be justified in certain circumstances, but I think that there is a worrying trend towards legislation that gives more and more powers for ministers to introduce secondary legislation. I am sure that that is also a matter to which we will return in the future.
15:48
I, too, spoke in the previous debates. I am sure that some people found them riveting.
I was a member of the police appeals tribunal. I mention that because I do not think that I mentioned it in the previous debates. The role highlighted how important tribunals are. Possibly career-changing and life-changing decisions were made. Those decisions affected not only the individuals who were the subject of the tribunal but their family, friends, loved ones and colleagues. My experience of the employment tribunal was also illuminating in that respect.
The 1957 Franks report said that tribunals should act in an open, fair and impartial way. Despite my frustrations at some of the decisions made by tribunals, I found that to be the case. The Franks report also said:
“We consider that tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration.”
A number of members have alluded to that need for clear separation.
Franks went on to say:
“The essential point is that in all cases Parliament has deliberately provided a decision independent of the department concerned ... and the intention of Parliament to provide for the independence of tribunal is clear and unmistakable.”
That view is reinforced in the 2001 Leggatt report, as was mentioned by the minister. That UK report talked about the need for increased independence from Government, and likewise Lord Philips’s 2008 report, in talking about Scotland, said:
“there is evidence of a lack of independence in the operation of some existing tribunals.”
It is for those reasons that the Justice Committee welcomed the revision of the administrative justice landscape. We noted that tribunals are specialist bodies and that that status must be retained. The Scottish Parliament information centre briefing refers to tribunals as relatively informal. Formality of procedure is important, but we do not want tribunals to be court-like, not least because, as many members have said, that is the facet of the justice system that most people are likely to access for the many reasons that have been outlined.
Like Alison McInnes, I am pleased that the purpose of tribunals is included on the face of the bill. That sends a very important signal. We certainly had a lot of lobbying for that.
As part of the Justice Committee report, we also encouraged the Scottish Government to work closely with the UK Government to ensure progress on discussions with the other reserved tribunals, but we can anticipate that not much is likely to happen on that issue at least in the immediate future.
I mentioned employment tribunals. I would be particularly keen to seen those dealt with in Scotland because that would be an opportunity to annul many of the punitive aspects that have been imposed. Those include the qualifying periods of one or two years and fees—a number of members have talked about fees—including the £250 fee to lodge a claim for unfair dismissal and a £950 fee to go to a hearing. Provision is made in the employment tribunal case law to have financial penalties imposed on frivolous cases. I also want to see the reduction in compensation for judges sitting alone.
Employment tribunals would be inherently different beasts were they relocated to Scotland. That would reinstate fairness. Indeed, I want to see all tribunals treated in that same way, not least those that deal with pensions. What I do not want to be brought into any doubt is the dedication of the tribunal members regardless of their status and the structure in which they sit.
At decision time, I will support the bill.
15:52
Tribunals in Scotland deal with 80,000 cases annually. Without them, people would lose an avenue for redress or would be forced to take their grievances to an already overstretched court system.
The case for reform of the complicated tribunal system, which has developed on an ad hoc basis over past decades, has been well made, and the bill is a welcome step towards simplification. However, the legislation deals only with devolved tribunals. In fact, out of the 50-plus tribunals that have jurisdiction in Scotland, schedule 1 lists only 13 tribunals that will eventually be brought into the new system. As such, according to estimates by Jonathan Mitchell QC, the bill will apply only to around 2 per cent of Scottish tribunals. That clearly limits the bill’s ability to create a simplified uniform structure. Nevertheless, users and experts generally welcome the legislation as a step towards revising the administrative justice landscape.
I ask the minister to comment on three areas of slight concern. First, the Scottish Government has removed the provision that would have automatically disqualified tribunal members who become elected representatives. Notwithstanding the minister’s reasons for that, a conflict of interest could occur if tribunal members were to become figures who could be subject to tribunal proceedings themselves, at least indirectly.
The bill also introduces new offences to be created in connection with tribunals. Those relate to matters such as making false statements and concealing or destroying evidence. Although I fully appreciate that some tribunals can already impose penalties and I agree that proceedings must be carried out robustly, it would not be desirable for a raft of offences to be created for every tribunal, as it could only put at risk the informal, non-adversarial nature of tribunals if those who attend them are subject to disproportionate penalties.
Much of the detail on the new tribunal landscape is not contained in the bill but will, instead, be left to delegated legislation. During stage 1, the Justice Committee heard from witnesses including Citizens Advice Scotland that that lack of detail meant that it was impossible to guarantee fairness, openness and impartiality in the new system. Others expressed concern that it hampered scrutiny.
I accept that the bill seeks to provide a framework for the new structure and needs to be flexible, but the amount of detail that will be left to delegated legislation is not ideal. I have full confidence that the Justice Committee will closely scrutinise the forthcoming secondary legislation but, given the committee’s already considerable workload, it would have been preferable for the Parliament to have had more information now about the detail of the proposed new structure.
15:56
Several members commented on the uncontentious nature of the bill and the fact that it attracted little public interest. However, we all agree that it introduces regulation into an important part of the justice system that, as my colleague Graeme Pearson said, enables individuals to challenge decisions that were made by, or on behalf of, the state.
I will reflect on some of the changes that were made, or not made, to the bill during its passage but, before I do that, I will comment on Christine Grahame’s observation about the parking appeals service. Now that Police Scotland has got rid of some of its traffic wardens, I wonder whether that tribunal will have a lighter workload than it has done previously.
I was surprised by the number of drafting amendments that were lodged in the name of the minister at stages 2 and 3. There were some 107 Government amendments, most of which were technical. Most were minor, but one related to a fairly serious error, which caused considerable consternation among witnesses at stage 1. That was the original section 68(5), which the minister removed at stage 2. It gave the president of tribunals the power to issue directions, including instructions or guidance on the application or interpretation of the law.
That turned out to be a mistake, and it was rectified, but it raises the question how such a profound mistake found its way into the bill in the first place. I am not trying in any way to suggest that ministers write their own bills—they are not responsible for the errors that are contained in them—but I wonder whether the number of bills coming through the justice portfolio is placing undue strain on the bill teams. At times, as members of the Justice Committee, we have wondered whether we have sufficient time to exercise all our responsibilities because of the pressure of legislation, and I wonder whether that pressure might be affecting the quality of legal drafting.
I will move on to specifics. One of the ways in which the stage 1 bill differed from the UK legislation was by the absence of guiding principles that provided a definition of the nature of a tribunal. Many of the witnesses at stage 1 felt that the inclusion of similar overarching principles in our bill was important, as far more people will experience administrative justice through a tribunal than will go through the rest of the justice system. The committee also agreed that the character and nature of tribunals should be protected.
The Minister for Community Safety and Legal Affairs accepted that recommendation. She and I both lodged amendments at stage 2 for consideration. I am happy to say that the minister’s amendments were successful. They recognised the character of Scottish tribunals—to be fair, to be accessible and to be handled quickly and efficiently—and the need for tribunal members to be experts in the subject matter of the tribunal. That will now be in primary legislation, and any new tribunals that are created in future or transferred from UK responsibility, if the UK Government goes along with that, will be required to adhere to those principles.
A number of members commented on that, including John Pentland and John Finnie, and Margaret Mitchell raised some continuing concerns. However, I believe that having the guiding principles in the bill should remove concerns that the bill might introduce the judicialisation—or even courtification, as it has been described—of the tribunal system.
The principles now are sufficiently general not to threaten the specialisms, expertise and character of individual tribunals, but they should facilitate the transfer of reserved tribunals and the inclusion of any new tribunals arising from future legislation.
Another area that had caused concern, partly because of recent experience with the UK employment tribunals, was the capacity for tribunals to levy charges. A number of members mentioned that, including Alison McInnes, Roderick Campbell, John Pentland and John Finnie. The committee recommended that consultation must be undertaken if there were any plans to introduce fees where they had not previously existed—of course, some tribunals already charge fees. The stage 2 amendment placing a duty on the Scottish ministers to consult stakeholders before making any regulations with regard to the introduction of fees has been widely welcomed, and the minister’s assurance that the Scottish Government does not intend to use the provision in section 70 to introduce fees was also welcome.
As the minister said, the term “wasted expenses” has survived the passage of the bill, despite many of us at first not knowing what it was. We were enlightened at stage 2 and I am grateful to the minister for further elucidation today. At stage 2, officials told us that the expenses were awarded
“to express judicial disapproval of unnecessary steps in litigation.”—[Official Report, Justice Committee, 4 February 2014; c 4195.]
That might have been a disappointment to the convener, as she suggested at the time that the phrase might refer to the purchasing of unsuitable shoes.
With regard to the amendments that I lodged for debate today, I was pleased to receive the minister’s assurance that the parent departments of the tribunals that were created before the emphasis on alternative means of dispute resolution will be encouraged to address that, and that any future tribunals will be encouraged to have, within their founding legislation, a means of alternative dispute resolution.
The concerns that were expressed by Citizens Advice Scotland about the oversight of administrative justice are substantial and deserving of further consideration by the Scottish ministers. I accept that administrative justice is wider than the tribunals system, as I said when I spoke to my amendments. I wonder whether there might be another opportunity to examine how the oversight issue might be addressed in the Courts Reform (Scotland) Bill, and I would be grateful if, either in the minister’s closing speech or subsequently, the Government might indicate whether the matter might be dealt with within the remit of that bill, and whether the concerns of CAS might be further considered in that context. In fact, CAS will give evidence on the Courts Reform (Scotland) Bill to the committee next week, and we might be able to pursue the issue further then.
Overall, I am happy with the way in which the bill has proceeded through the Parliament, and the Labour Party is happy to support the bill.
16:02
I am pleased that our consideration of the bill is coming to a close. The Tribunals (Scotland) Bill will bring much-needed cohesion and consistency to tribunals in Scotland and I am proud of the work that has been done, including that done by the civil servants. Elaine Murray was concerned about their workload; they will be heartened to know that they are in the minds of members when legislation is going through.
It has also been heartening to observe how much consensus the subject of tribunals has attracted in the chamber. They are a valued and distinctive part of our justice system. They provide protection against unfair treatment by the state and increase individual resilience and public confidence. They also provide specialist forums for efficient and accessible legal dispute resolution.
I think that I am correct in saying that, apart from Graeme Pearson, all those who have spoken this afternoon are Justice Committee members, so I do not propose to summarise each contribution—I hope that members will forgive me.
Margaret Mitchell and, I think, Elaine Murray mentioned disqualification. That is about excluding those who might be eligible to sit on tribunals, such as civil servants. Much has been made about the issue in relation to MSPs, but we are not really who it is about. Our feeling is that it is easier to leave the matter to the founding legislation, rather than bringing it into a bill such as this. For example, the Mental Health Tribunal for Scotland already has provisions covering disqualification. The issue is most correctly dealt with in the founding legislation.
In respect of the new offences that Margaret Mitchell was concerned about, I assure her that the power will be used only where a particular jurisdiction requires it. Legislation relating to the Mental Health Tribunal, for example, already makes similar provision allowing for offences to be created. It is not a general offence-making power that we will all pile in and use; it will have to come from the founding legislation. I hope that the member is reassured by that.
I am, however, grateful to Elaine Murray for her mini history lesson. As she discussed, since their early beginnings at the start of the 20th century, the number of established tribunals has increased and their total case load has grown. There are now more than 40 tribunals in Scotland, dealing with devolved and reserved matters and covering a multitude of subject areas. More are on the way. We have the prospect of a new housing tribunal covering the private rented housing sector and new tax tribunals dealing with, in the first instance, decisions and appeals covering land and buildings transaction tax and Scottish landfill tax.
The Housing (Scotland) Bill and the Revenue Scotland and Tax Powers Bill have recently been introduced to the Parliament and will give effect to those proposals. They are the founding bills for those new tribunals.
The Revenue Scotland and Tax Powers Bill, which creates the new tax tribunals, follows on from the provisions of the Scotland Act 2012, which gave this Parliament legislative competence over devolved areas of taxation. The functions and members of the new tax tribunals will be transferred-in to the Scottish tribunals in due course.
The Housing (Scotland) Bill confers functions for a proposed new jurisdiction covering the private rented sector directly on the new Scottish tribunals. That takes away the need to create a tribunal in its own right and takes advantage of provisions within the bill. In this instance, we can see the benefits of the Tribunals (Scotland) Bill already in action.
It is very likely that further new jurisdictions will be created as things develop and grow over time. It is not possible to guess from where the proposals may emerge. The structure that we have created is flexible enough to cater for any new jurisdictions that may emerge.
While we are creating a structure for devolved tribunals, we must not lose sight of reserved jurisdictions—one or two members have raised that issue—and the prospect of their administration being devolved to Scotland in future. I should say that we are discussing the devolution of the administration of those tribunals and not their subject matter. We should not get the two things confused. That is not a constitutional point, because the proposals for the devolution of the administration of those reserved tribunals came originally from the UK Government.
The bill provides a framework that reserved jurisdictions could come into in the future. Alison McInnes and Rod Campbell talked about fees. That is a concern with certain reserved tribunals. I am not certain about the extent to which we would have any capacity to change that, given that it is the administration of those tribunals that we would be talking about. We certainly have no intention of introducing fees to devolved tribunals, which are a different thing. In the meantime, the UK Government has put on hold further discussions. I can assure members that this Government remains committed to engaging with the UK Government on the issue at any point in future.
Today’s bill will ensure that we build on and improve upon the good foundation that is already there on an individual basis in each tribunal. In building on that foundation, we have ensured that individual specialism and ethos remains intact and untouched. We must never forget that users of the tribunals system are at the heart of this new structure. It is fundamentally right that users accessing the system will receive the same high level of service regardless of jurisdiction, that complaints processes are the same regardless of jurisdiction and that all members of tribunals are recruited to the same high standard, regardless of jurisdiction.
It is also for the benefit of users that, as far as is possible, tribunals business is taken out of the courts. The bill ensures that appeals are taken out of the courts in most circumstances, giving users the benefit of a more informal process and setting.
The bill also ensures that the important role of tribunal members is enhanced by the appointments system coming under the remit of the Judicial Appointments Board for Scotland, and by the automatic reappointment of members and their inclusion in the wider judicial community under the Lord President’s leadership. The bill also ensures that tribunal members have judicial status and capacity in their role as members of the Scottish tribunals.
It is important to note that recommendations for appointment to the Scottish tribunals will be made following jurisdictionally specific criteria that will be developed for each subject area. That cannot really be emphasised enough. That ensures that members are appointed on a jurisdictionally specific basis and that the specialist ethos of any subject area is protected.
Each jurisdiction will transfer-in to the new structure with its own rules of procedure and will continue to adhere to the provisions made in its founding legislation.
All those elements brought together will give us a devolved tribunal landscape that caters for the needs of the people of Scotland.
Members might recall from previous debates that tribunal reform is a phased process. We began with the creation of the Scottish tribunals service in 2010. Second came the Tribunals (Scotland) Bill to create the structure. The third element of this reform package is the merging of the Scottish Court Service with the Scottish tribunals service. That third step on the journey of reform proposes to put the administrative support of tribunals on the same footing as that of courts, to support the long-term independence of tribunals, with the Lord President as head of both courts and tribunals.
The provisions in the Courts Reform (Scotland) Bill will bring the judicial leadership and governance of courts and tribunals together under the leadership and chairmanship of the Lord President. It is important that members are aware that the merging of the two services will not change any of the commitments of principle outlined in the Tribunals (Scotland) Bill. Tribunal hearings will continue to be chosen to meet the needs of users attending proceedings. The same specialist tribunal staff will continue to support the Scottish tribunals.
This Parliament has much to be proud of in the development of the bill and in tribunals reform generally. I am very grateful to everyone who contributed. I commend the bill to the Parliament.
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