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Chamber and committees

Justice Committee

Meeting date: Tuesday, March 14, 2017

Agenda: Interests, Subordinate Legislation, Limitation (Childhood Abuse) (Scotland) Bill: Stage 1, Railway Policing (Scotland) Bill: Stage 1


Contents


Subordinate Legislation


Scottish Tribunals (Listed Tribunals) Regulations 2017 [Draft]

The Convener

Agenda item 2 is subordinate legislation. The committee will consider the draft Scottish Tribunals (Listed Tribunals) Regulations 2017, which is an affirmative instrument.

I welcome to the committee the Minister for Community Safety and Legal Affairs, Annabelle Ewing, and her officials from the Scottish Government. Hannah Frodsham is a policy executive, Sandra Wallace is a policy manager, and John St Clair is a senior principal legal officer.

I refer members to paper 1, which is a note by the clerk, and paper 2, which is a Scottish Government briefing note. I invite the minister to make a brief opening statement.

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

Thank you, convener. Good morning.

The regulations will remove the Crofting Commission from the listed tribunals—that is, the list of tribunals in schedule 1 to the Tribunals (Scotland) Act 2014. That list of tribunals was taken from a report by the Administrative Justice and Tribunals Council, which is a former United Kingdom-wide body. The AJTC listed the tribunals that it considered to be devolved. Before its abolition in 2013, the AJTC was required to keep the administrative justice system under review. During consideration of the Crofting Reform (Scotland) Bill, there was discussion of the Crofting Commission’s status, and ministers at the time were minded not to remove it from the list of tribunals in order to keep it within the AJTC’s supervisory remit. However, as I said, the AJTC was abolished in 2013, and the Tribunals (Scotland) Act 2014 does not include provision for a statutory body to have a supervisory role over the Scottish tribunals. In the absence of a supervisory body, and given that the Crofting Commission is not a tribunal in the true sense of the word, it is considered that the Crofting Commission can now be removed from the list of tribunals in schedule 1 to the 2014 act.

I am happy to answer any questions.

Thank you, minister. Do members have any questions?

Good morning, minister. Can you see any implications for the day-to-day business of crofting as a result of the proposal?

Annabelle Ewing

No, I cannot. We undertook a consultation on the instrument between 26 May and 24 June 2016 and received seven responses. Six of the seven responses were content with the proposal.

One of the responses was from Brian Inkster, who is a crofting law solicitor. He thought that the Crofting Commission should be retained as a tribunal. His main issue of concern was about the use of a particular section of the crofting legislation that allows the Crofting Commission to make an inquiry and then remove any or all of the members of a grazing committee from office. His concern was that there is no right of appeal to the Scottish Land Court so judicial review is the only avenue of appeal, but he thought that, if the Crofting Commission were to transfer to the Scottish tribunals, appeals could be made to the upper tribunal. However, for the reasons that I have given, the Crofting Commission is not a tribunal in the true sense of the word. The mention of the Crofting Commission in the list of tribunals was an historical quirk because of the AJTC’s supervisory role at the time.

John Finnie will be aware from our programme for government that we will introduce crofting legislation during this parliamentary session. The issue of the right of appeal might be brought to the forefront of the debate on that legislation. Obviously, we will engage with stakeholders when we get to that stage.

That is what I was going to ask about. There are a lot of issues with crofting at the moment, so why deal with this issue now? Why not wait? Is the relationship with the Land Court substantially altered?

Annabelle Ewing

No. The reason for doing it now is that the AJTC was abolished in 2013. We are moving to the implementation of the 2014 act and looking at having the simplified statutory framework in place. This is an anomaly that has arisen for the reasons that I have stated, and it is timely to deal with it now.

The regulations should make no difference to the daily workings of the Crofting Commission because, since 2013, no supervisory role has been exercised in any event. The Lord President sits at the head of the Scottish tribunals system so, on a day-to-day basis, the regulations should not make any significant or substantive difference. The legislation is a tidying-up exercise and, as we go forward with the crofting legislation in the current parliamentary session, I am sure that the right of appeal will be brought to the forefront of the debate.

Does the relationship with the Land Court change in any way?

It does not.

Many thanks.

I have a simple little question in relation to the Scottish tribunals structure. Might we expect to see, in due course, any other outstanding matters around bringing existing bodies into that structure?

Annabelle Ewing

Yes. We plan to bring all the devolved tribunals within the Scottish tribunals structure, as set out in the 2014 legislation. There is a timetable for the proposed implementation of that approach, and we will proceed on that basis. It will be done by way of bringing to the committee the relevant Scottish statutory instruments for your consideration. I think that the next to be considered will be the additional support needs tribunal. We hope to bring that SSI to the committee in the autumn.

There is a rolling programme for the devolved tribunals; the reserved tribunals are for further down the line.

The Convener

As members have nothing further to add, we move to item 3, which is formal consideration of the motion. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and has no comment to make. I invite the minister to move the motion.

Motion moved,

That the Justice Committee recommends that the Scottish Tribunals (Listed Tribunals) Regulations 2017 [draft] be approved.—[Annabelle Ewing]

Motion agreed to.

The Convener

That concludes consideration of the regulations. The committee’s report will note and confirm the outcome of the debate. Does the committee agree to delegate to me, as convener, the authority to clear the final draft of the report?

Members indicated agreement.


Upper Tribunal for Scotland (Transfer of Functions of the Upper Tax Tribunal for Scotland) Regulations 2017 [Draft]

The Convener

Item 4 is also subordinate legislation. The committee is asked to consider four affirmative instruments relating to the transfer of the Scottish tax tribunals to the Scottish tribunals structure. Because the instruments are linked, we will take evidence on all of them together. I refer members to paper 3, which is a note by the clerk, and paper 4, which is the Scottish Government’s briefing note. I ask the minister to make a short opening statement.

Annabelle Ewing

This suite of fairly technical regulations will transfer the Scottish tax tribunals to the Scottish tribunals structure, which was created by the Tribunals (Scotland) Act 2014.

The draft First-tier Tribunal for Scotland Tax Chamber and Upper Tribunal for Scotland (Composition) Regulations 2017 specify the type of member who will hear cases in the tax chamber. The provisions mirror the existing composition of the first-tier tax tribunal. The instrument also sets out the composition of the upper tribunal when hearing appeals from the first-tier tribunal tax chamber. The regulations allow for a legal member of the upper tribunal or a Court of Session judge to hear an appeal in the upper tribunal. Again, that mirrors the previous arrangements. The president of tribunals will determine who hears the appeals and may also select herself, the chamber president or, indeed, the Lord President, if appropriate.

The draft Tribunals (Scotland) Act 2014 (Ancillary Provisions) Regulations 2017 revoke part 4 of and schedule 2 to the Revenue Scotland and Tax Powers Act 2014, which established the Scottish tax tribunals and their procedures. The instrument also revokes four regulations that established the conduct and fitness assessment tribunals, the time limits on rules of procedure for both the first-tier and upper tax tribunals, the eligibility for appointment to the Scottish tax tribunals and rules concerning voting and offences in proceedings. Those matters are all covered by provisions in the Tribunals (Scotland) Act 2014, so the previous regulations are no longer necessary.

For brevity, I will summarise the last two sets of regulations together. The draft First-tier Tribunal for Scotland (Transfer of Functions of the First-tier Tax Tribunal for Scotland) Regulations 2017 and the draft Upper Tribunal for Scotland (Transfer of Functions of the Upper Tax Tribunal for Scotland) Regulations 2017 simply transfer the functions and members of the first-tier tax tribunal to the first-tier tribunal for Scotland tax chamber, and the functions and members of the upper tax tribunal to the upper tribunal for Scotland.

In addition, the regulations set out the transitional procedure for cases that are in progress on the date of transfer. As the first-tier and upper tax tribunals are listed separately under the Tribunals (Scotland) Act 2014, each jurisdiction needs to be dealt with under separate instruments.

Each of the instruments before the committee plays a part in enabling the transfer of the tax tribunals to the new structure. I am happy to take questions.

The Convener

Members have no questions for the minister. That being the case, we move to agenda item 5, which is formal consideration of the motions relating to the four affirmative instruments. The Delegated Powers and Law Reform Committee has considered and reported on the instruments and has no comment to make. The minister will move the motions, and members will have the opportunity to debate them if they wish.

Motions moved,

That the Justice Committee recommends that the First-tier Tribunal for Scotland Tax Chamber and Upper Tribunal for Scotland (Composition) Regulations 2017 [draft] be approved.

That the Justice Committee recommends that the Tribunals (Scotland) Act 2014 (Ancillary Provisions) Regulations 2017 [draft] be approved.

That the Justice Committee recommends that the First-tier Tribunal for Scotland (Transfer of Functions of the First-tier Tax Tribunal for Scotland) Regulations 2017 [draft] be approved.

That the Justice Committee recommends that the Upper Tribunal for Scotland (Transfer of Functions of the Upper Tax Tribunal for Scotland) Regulations 2017 [draft] be approved.—[Annabelle Ewing]

Motions agreed to.

The Convener

That concludes consideration of the affirmative instruments. The committee’s report will note and confirm the outcome of the debate on all four instruments. Is the committee content to delegate authority to me, as convener, to clear the final draft of the report?

Members indicated agreement.

I thank the minister and her officials for attending.

09:59 Meeting suspended.  

10:00 On resuming—