Framework for tribunal reform

The Tribunals (Scotland) Act 2014 received Royal Assent on 15 April. It forms part of the Scottish Government’s Making Justice Work portfolio, the stated aim being “to establish an efficient and effective Scottish Tribunals Service by merging the administration of devolved tribunals and through the devolution of reserved tribunals to Scotland”(1).

The UK Government said in 2010 that it would devolve reserved tribunals where they affected Scotland, but consideration has been delayed until after the referendum on independence. The framework set down by the Act could however be used to accommodate reserved tribunals.

Phased programme

The Act itself creates a framework for tribunal reform. It extends to 84 sections and 10 schedules, but many of the proposed changes will take place through subordinate legislation. The delegated powers memorandum(2) lists 36 powers. Implementation of the Act will be in three phases(3).

Phase 1 will see the creation of the new structure and the transfer-in of the first jurisdictions. To achieve this, a number of orders and regulations (around 13) will have to be drafted and consulted on. It is envisaged the new structure will be in place by December 2016. Current indications are that the first chamber created will be a housing chamber, which will include the Private Rented Housing Panel, the Homeowner Housing Panel and the new jurisdictions created by the Housing (Scotland) Bill. The new tax tribunals created by the Revenue Scotland and Tax Powers Bill are also likely to be included in phase 1.

Phase 2 is likely to comprise the transfer-in of the Mental Health Tribunal for Scotland, the Additional Support Needs Tribunal for Scotland, the Scottish Charity Appeals Panel, and the Lands Tribunal for Scotland, by August 2019.

Phase 3 will see the transfer-in of the other tribunals listed in the Act, by 2023.

The principle to be observed in the exercise of regulation-making and leadership functions is the need for proceedings before the Scottish Tribunals to be accessible and fair, and to be handled quickly and effectively.

Two-tier structure

The Act creates a two-tier structure, a First-tier Tribunal and an Upper Tribunal, collectively referred to as the Scottish Tribunals. The First-tier Tribunal, into which most tribunal jurisdictions will be transferred, will be for first instance decisions, and the primary function of the Upper Tribunal will be to dispose of appeals from the First-tier.

The Scottish Tribunals will be under the leadership of the Lord President of the Court of Session, and a new office is established, President of the Scottish Tribunals, with powers delegated by the Lord President. The Lord President indicated in his written submission to the Justice Committee on the bill that he intends to nominate Lady Smith to be the first President of the Scottish Tribunals.

First-tier Tribunals will be organised into chambers, grouped by similar subject jurisdiction and led by Chamber Presidents, who will have responsibility for business within their chamber. Chamber Presidents may also be assisted by a Deputy Chamber President, if required. The Upper Tribunal will be organised into divisions as and when required.

The Scottish Tribunals will consist of members who are either transferred-in or appointed. Schedule 1 of the Act lists the devolved tribunals whose members will transfer in at the same time as the functions of their tribunal are transferred, along with their current caseloads. Tribunal appointments will be under the remit of the Judicial Appointments Board for Scotland.

Members will be appointed for a five year term and will be eligible for reappointment at the end of each term until they reach the age of 70, after which members may continue in office on an annual rolling basis if it is considered to be in the public interest. Members who are transferred in will hold office for the remainder of their existing term up to five years, and will also be eligible for reappointment on the above basis. The provisions with regard to age may well be an issue for valuation appeal committees, whose members serve without payment and are often retired persons.

Members of the judiciary can be assigned to act as tribunal members. Sheriffs may act as members of the First-tier Tribunal and the Upper Tribunal. A judge of the Court of Session may act as a member of the Upper Tribunal. Certain functions of the Mental Health Tribunal for Scotland (MHTS) are already exercised by shrieval members, and this will continue when the MHTS is transferred in to the Scottish Tribunals.

Transfer of functions

The Act allows for the functions of a listed tribunal to be transferred to either or both of the First-tier Tribunal or Upper Tribunal. This will allow for more complicated functions at first instance to be dealt with by the Upper Tribunal. The policy intention is for the MHTS to be a chamber of the First-tier Tribunal on its own, and for the devolved functions of the Lands Tribunal for Scotland, which may hear appeals at first instance or in an appellate capacity, to transfer in to a single division of the Upper Tribunal(4).

The core function of the Upper Tribunal will be as an appellate body, providing an appeal on a point of law with permission from decisions of the First-tier Tribunal. There are also onward appeals from the Upper Tribunal to the Court of Session, and ultimately to the Supreme Court. Where an appeal to the Court of Session concerns a decision of the Upper Tribunal on appeal from the First-tier Tribunal, i.e. a second appeal, permission to appeal is not to be granted unless it would raise some important point of principle or practice or there is some other compelling reason for the appeal to be heard.

When the functions of a listed tribunal are transferred in to the Scottish Tribunals, it will be open to the Scottish ministers to leave the previous rights of appeal in place or to remove these and allow the general rights of appeal set out in the Act to apply(5). The Lord President, in his written submission to the Justice Committee, expressed the view that appeals from valuation appeal committees should continue to be taken to the Lands Valuation Appeal Court.

The First-tier Tribunal and the Upper Tribunal will be able to review their own decisions where, for example, a simple administrative error has occurred. This does not affect the rights of appeal available. The Act also provides a mechanism enabling the Court of Session to transfer petitions for judicial review to the Upper Tribunal in certain circumstances. The intention is that this power would be used where the petition concerns a subject matter over which the Upper Tribunal has developed considerable expertise(6).

Rule making

The Act provides a framework for making rules for the Scottish Tribunals. The Scottish Civil Justice Council (SCJC) was set up by the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 to provide a unified rulemaking body for the courts, and is granted the power to propose procedural rules for the Scottish Tribunals.

This role is brought into effect by an amendment to the 2013 Act which allows for the setting up of a Tribunals Committee within the SCJC who will be responsible for drafting Tribunal Rules. It will be chaired by the President of Tribunals who will select other members with knowledge of how the Scottish Tribunals exercise their functions. The rules drafted by the Tribunals Committee will ultimately be made by an Act of Sederunt of the Court of Session.

Given that the SCJC (established on 28 May 2013) will begin by concentrating on court business, the Act provides for transitional arrangements which will allow the Scottish ministers to provide by regulation for a listed tribunal’s existing procedural rules to continue to apply after the tribunal is transferred into the new structure; and to make procedural rules by regulation until the SCJC becomes involved.
Provision is also made allowing the President of Tribunals, a Vice President of the Upper Tribunal or a Chamber President in the Upper Tribunal to issue practice directions covering practice and procedure. In the event of conflict, tribunal rules prevail over any direction.

Training

The Act gives responsibility for welfare, training and review to the Lord President, who can delegate these functions to the President of Tribunals. The Lord President already has responsibility for judicial training in Scotland, which he delegates to the Judicial Institute, of which he is President. Currently, there is no central training resource for tribunal members in Scotland. Core tribunal skills such as fairness and impartiality, good communication, weighing up evidence, decision making and reasoning would be of benefit to all tribunal members and this is something which might usefully be looked at at an early stage.

According to Leggatt(7), “It should never be forgotten that tribunals exist for users, and not the other way round.” If the Act does what it says on the tin, by establishing a more coherent framework for tribunals, opportunities will be created for improvement in the quality of services that cannot be achieved by tribunals operating separately(8). However the Act, and the regulations made under it, will only be judged a success if such opportunities are taken, and are seen to have been taken in terms of the quality of service provided to the end user.

References

(1) MJW Project 5: Tribunal reform.

(2) Tribunals (Scotland) Bill, SP Bill 30-DPM.

(3) Tribunals Act Implementation Team – Members Update – April 2014.

(4) Tribunals (Scotland) Bill Policy Memorandum, paras 43 and 46.

(5) Section 53: other appeal rights.

(6) Tribunals (Scotland) Bill Policy Memorandum, para 65.

(7) Report of the Review of Tribunals by Sir Andrew Leggatt: Tribunals for Users – One System, One Service (2001).

(8) Tribunals (Scotland) Bill Policy Memorandum, para 3.