Chamber
Meeting of the Parliament 29 March 2012
29 Mar 2012 · S4 · Meeting of the Parliament
Item of business
Tribunal System
Today’s debate focuses on tribunal reform in Scotland and highlights our proposals for modernising how tribunals operate.
Tribunals are a valued and distinctive part of our justice system and provide specialist forums for efficient and accessible legal dispute resolution. However, the system has developed in an ad hoc and unplanned fashion over many years, and the tribunals that are its constituent parts do not have a collective identity. The time has come to address the widely acknowledged need for reform. In 2001, Sir Andrew Leggatt described tribunals in Scotland as “exceedingly complicated”. I share that view.
For more than 100 years, tribunals were considered to be a part of the state’s internal administration, which had been designed as a mechanism whereby citizens could challenge the initial decisions of Government officials. From the early 20th century, the number of established tribunals has increased and their case load has grown. There are more than 40 tribunals in Scotland, which deal with devolved and reserved matters and cover a multitude of subject areas. In excess of 80,000 cases are heard each year. That is almost as many cases as are heard in the civil courts in Scotland, which is an indication of the reach of tribunals in Scotland.
Over recent years, the system has developed into a quasi-judicial one, with constituent tribunals deciding the cases that are brought before them more independently, more expertly, on the basis of evidence and in accordance with the law. However, developments have been ad hoc and have involved piecemeal improvements being introduced unsystematically in the separate tribunal jurisdictions.
As well as developing in an ad hoc manner, tribunals in Scotland are referred to in different ways in law. They are referred to sometimes as panels, sometimes as boards and sometimes as committees. What connects them is that they are all bodies that make decisions in law that affect the lives of tens of thousands of people across the country.
Tribunals make decisions on a diverse range of subjects, whether that is to determine someone’s liberty, as happens in hearings of the Mental Health Tribunal for Scotland, to decide whether a landlord has carried out necessary repairs to their property, as the Private Rented Housing Panel does, or to consider how best to meet a child’s additional educational needs, as the Additional Support Needs Tribunals for Scotland do.
When the Parliament last debated tribunal reform back in September 2010, there was a general consensus that reforming the tribunal system was the right thing to do. I asked for the debate so that I could highlight the proposals that were published last week, on 23 March, to consult on the introduction of a new tribunal system in Scotland. Those proposals aim to create a coherent structure in which to integrate devolved tribunals over time, to provide clear judicial leadership, greater consistency in practice and improved transparency.
In December 2010, we took the first steps in reforming tribunals in Scotland by integrating the administrations of six separately operating bodies: the Additional Support Needs Tribunals for Scotland; the Lands Tribunal for Scotland; the Mental Health Tribunal for Scotland; the Private Rented Housing Panel; and the Scottish Charity Appeals Panel. That has proved to be a significant step and one that has already produced benefits. It has enabled the sharing of venues, the integration of administrative support and the introduction of common budget control systems, and it has established a platform for developing a programme of continuous improvement.
The Scottish Tribunals Service will continue to develop as an integrated service that provides access to comprehensive information concerning the quality of decision making in public authorities. As such, the service can play a powerful role in ensuring that there are continuous public service improvements across Scotland. There will be feedback mechanisms to inform public authorities whose decisions are not quite right first time.
In today’s financial climate, we have to do all that we can to make the best use of our resources while continuing to provide a consistent, reliable service to tribunal users through an efficient, well-organised and sustainable administration. Savings of around £1 million have already been realised since the establishment of the Scottish Tribunals Service through a combination of consolidating efficiencies that judicial leaders and administrators have identified and rationalising organisational structures and support services. We are confident that those efficiencies will continue to be realised through further organisational integration and further streamlining of administrative processes.
The creation of a single administration was phase 1 of tribunal reform. We are now moving to phase 2, which we are convinced will deliver further judicial and administrative gains. In our consultation paper, we propose to introduce a new integrated structure for tribunals. We want to create a structure of two tiers—a first tier and an upper tier—that can accommodate existing tribunals.
The first-tier tribunal will be for initial decision making. In most cases, it should be able to resolve satisfactorily the cases that are heard before it without the need for further appeal. However, we realise that that is not always possible, so we propose to create an upper-tier tribunal to hear appeals from the first tier. That will enable the bulk of tribunal business to be kept within the tribunal system, thus avoiding the need to go to court.
We are aware that it may be more appropriate for some appeals to be heard by the courts. Last year, the report of the Scottish committee of the Administrative Justice and Tribunals Council, “Tribunal Reform in Scotland: A Vision for the Future”, considered the issue of rationalising appeals from tribunals. The committee thought that standardising the route of appeals to a single body would facilitate the development of expertise among appellate judges; make the appeals process more accessible for tribunal users; speed up justice in comparison with appeals to the Court of Session; streamline and simplify case-handling processes, thus supporting the development of expertise among administrative support staff; and make it easier for support organisations to provide advice to tribunal users who wish to appeal a tribunal’s decision. Currently, there is no single mechanism in Scotland for appealing against a tribunal decision and appeal routes vary from tribunal to tribunal. That is why simplifying and rationalising appeal routes makes sense.
From the perspective of the tribunal user, we should consider how we can assist them in accessing a justice system that puts them at the centre of the process. Courts are often seen as less accessible and likely to be less affordable than tribunals. The court procedures have not been designed with self or lay representation in mind. In addition, the current system of separate tribunals is often seen as inflexible, and the type of information that is available about tribunals and their appeal processes varies. Those factors may well act as a barrier to appeals and result in users being put off taking matters further.
The creation of a new structure provides an opportunity to standardise the information that is provided to users in laypeople’s terms, making it easier for them to understand the working of tribunals and how decisions are arrived at. We considered users, too, when we were writing the consultation document, and we published an easy-read guide to accompany the document. Members who have seen that guide may wish that all consultation documents were so accompanied.
While keeping the centrality of users at the forefront of any changes, I would like to turn for a moment to how the proposed changes affect the tribunal judiciary. It has long been said that judicial independence is an important aspect of a fair tribunal system. The Franks report in 1957 established that tribunals should be adjudicative rather than administrative bodies and, as such, should be fair, open and impartial. Sir Oliver Franks said:
“Tribunals are not ordinary courts, but neither are they appendages of Government Departments.”
According to Franks, impartiality means
“independence from the real or apparent influence of the original decision-making administration.”
Users of tribunals need to be sure that decisions in their cases are being taken by people with no links to the body that they are appealing against and that the framework for taking decisions in their case, including rules of procedure and the appointment of decision makers, is not constructed in the interests of the other party.
We propose bringing the tribunal judiciary under the leadership of the Lord President of the Court of Session. The Lord President will be responsible for the training, welfare, guidance and performance of judges and other members of the new tribunal system. He will also be responsible for the allocation of members to hear individual cases and the handling of complaints made against any member of the tribunal.
The Lord President will be able to delegate any judicial leadership functions to other judges of the tribunal and, in particular, will nominate a senator of the College of Justice as the president of Scottish tribunals—a new office that will be responsible for the day-to-day running of tribunal business.
Bringing judicial leadership under the Lord President will not mean that tribunals will lose any of their distinctive characteristics. The consultation proposals ensure that there are measures in place to protect each tribunal’s distinctive culture and specialist nature. That is assured by the tribunals’ own rules of procedure and relevant primary legislation.
As I said earlier, we are taking tribunal reform forward in a phased approach. We are proposing that only a few of the devolved tribunals transfer into the new structure straight away. That will help the judiciary in transferring tribunals to settle into the new first tier and get used to the new arrangements. As we move to the next phase, we expect to begin discussions with relevant parties to allow further devolved tribunals to integrate into the first tier and also benefit from the support that the Scottish Tribunals Service can provide.
What is being proposed in our consultation may seem like a massive change in how tribunals operate. Members might think that it will adversely affect tribunal users and cause confusion to them about who will hear their particular case. The answer is quite the contrary. Tribunal users will still appear before the same tribunal members and decisions will still be made in accordance with the law governing their jurisdiction. In addition, current rules of procedure, which protect the distinctive ethos of individual tribunals, will be adopted in the first-tier tribunal. Greater confidence in the tribunals’ impartiality will be assured by future appointments and changes to tribunal rules being made only following ministerial receipt of independent advice.
The current tribunal landscape is complex. It is generally agreed that there is a clear appetite for reform and that that reform should be phased to secure steady improvements. We have started that process with some success by bringing together the six tribunal administrations to create the Scottish Tribunals Service, but that is only a small step in a longer journey.
I ask that Parliament support the motion and agree that we now need to press ahead with creating a coherent, simply structured, more integrated and more effectively led tribunal system that ensures that users receive a high-quality, fair and timely service that is responsive to their varied needs.
I move,
That the Parliament welcomes the publication in March 2012 of a consultation that sets out proposals to reform Scotland’s tribunal system; notes that the proposals provide the opportunity to integrate Scotland’s devolved tribunals into a coherent, unified structure; further notes the importance of tribunals in the administrative justice landscape and the complexity and diversity of their business, and acknowledges their rightful place at the heart of a modern civil justice system
Tribunals are a valued and distinctive part of our justice system and provide specialist forums for efficient and accessible legal dispute resolution. However, the system has developed in an ad hoc and unplanned fashion over many years, and the tribunals that are its constituent parts do not have a collective identity. The time has come to address the widely acknowledged need for reform. In 2001, Sir Andrew Leggatt described tribunals in Scotland as “exceedingly complicated”. I share that view.
For more than 100 years, tribunals were considered to be a part of the state’s internal administration, which had been designed as a mechanism whereby citizens could challenge the initial decisions of Government officials. From the early 20th century, the number of established tribunals has increased and their case load has grown. There are more than 40 tribunals in Scotland, which deal with devolved and reserved matters and cover a multitude of subject areas. In excess of 80,000 cases are heard each year. That is almost as many cases as are heard in the civil courts in Scotland, which is an indication of the reach of tribunals in Scotland.
Over recent years, the system has developed into a quasi-judicial one, with constituent tribunals deciding the cases that are brought before them more independently, more expertly, on the basis of evidence and in accordance with the law. However, developments have been ad hoc and have involved piecemeal improvements being introduced unsystematically in the separate tribunal jurisdictions.
As well as developing in an ad hoc manner, tribunals in Scotland are referred to in different ways in law. They are referred to sometimes as panels, sometimes as boards and sometimes as committees. What connects them is that they are all bodies that make decisions in law that affect the lives of tens of thousands of people across the country.
Tribunals make decisions on a diverse range of subjects, whether that is to determine someone’s liberty, as happens in hearings of the Mental Health Tribunal for Scotland, to decide whether a landlord has carried out necessary repairs to their property, as the Private Rented Housing Panel does, or to consider how best to meet a child’s additional educational needs, as the Additional Support Needs Tribunals for Scotland do.
When the Parliament last debated tribunal reform back in September 2010, there was a general consensus that reforming the tribunal system was the right thing to do. I asked for the debate so that I could highlight the proposals that were published last week, on 23 March, to consult on the introduction of a new tribunal system in Scotland. Those proposals aim to create a coherent structure in which to integrate devolved tribunals over time, to provide clear judicial leadership, greater consistency in practice and improved transparency.
In December 2010, we took the first steps in reforming tribunals in Scotland by integrating the administrations of six separately operating bodies: the Additional Support Needs Tribunals for Scotland; the Lands Tribunal for Scotland; the Mental Health Tribunal for Scotland; the Private Rented Housing Panel; and the Scottish Charity Appeals Panel. That has proved to be a significant step and one that has already produced benefits. It has enabled the sharing of venues, the integration of administrative support and the introduction of common budget control systems, and it has established a platform for developing a programme of continuous improvement.
The Scottish Tribunals Service will continue to develop as an integrated service that provides access to comprehensive information concerning the quality of decision making in public authorities. As such, the service can play a powerful role in ensuring that there are continuous public service improvements across Scotland. There will be feedback mechanisms to inform public authorities whose decisions are not quite right first time.
In today’s financial climate, we have to do all that we can to make the best use of our resources while continuing to provide a consistent, reliable service to tribunal users through an efficient, well-organised and sustainable administration. Savings of around £1 million have already been realised since the establishment of the Scottish Tribunals Service through a combination of consolidating efficiencies that judicial leaders and administrators have identified and rationalising organisational structures and support services. We are confident that those efficiencies will continue to be realised through further organisational integration and further streamlining of administrative processes.
The creation of a single administration was phase 1 of tribunal reform. We are now moving to phase 2, which we are convinced will deliver further judicial and administrative gains. In our consultation paper, we propose to introduce a new integrated structure for tribunals. We want to create a structure of two tiers—a first tier and an upper tier—that can accommodate existing tribunals.
The first-tier tribunal will be for initial decision making. In most cases, it should be able to resolve satisfactorily the cases that are heard before it without the need for further appeal. However, we realise that that is not always possible, so we propose to create an upper-tier tribunal to hear appeals from the first tier. That will enable the bulk of tribunal business to be kept within the tribunal system, thus avoiding the need to go to court.
We are aware that it may be more appropriate for some appeals to be heard by the courts. Last year, the report of the Scottish committee of the Administrative Justice and Tribunals Council, “Tribunal Reform in Scotland: A Vision for the Future”, considered the issue of rationalising appeals from tribunals. The committee thought that standardising the route of appeals to a single body would facilitate the development of expertise among appellate judges; make the appeals process more accessible for tribunal users; speed up justice in comparison with appeals to the Court of Session; streamline and simplify case-handling processes, thus supporting the development of expertise among administrative support staff; and make it easier for support organisations to provide advice to tribunal users who wish to appeal a tribunal’s decision. Currently, there is no single mechanism in Scotland for appealing against a tribunal decision and appeal routes vary from tribunal to tribunal. That is why simplifying and rationalising appeal routes makes sense.
From the perspective of the tribunal user, we should consider how we can assist them in accessing a justice system that puts them at the centre of the process. Courts are often seen as less accessible and likely to be less affordable than tribunals. The court procedures have not been designed with self or lay representation in mind. In addition, the current system of separate tribunals is often seen as inflexible, and the type of information that is available about tribunals and their appeal processes varies. Those factors may well act as a barrier to appeals and result in users being put off taking matters further.
The creation of a new structure provides an opportunity to standardise the information that is provided to users in laypeople’s terms, making it easier for them to understand the working of tribunals and how decisions are arrived at. We considered users, too, when we were writing the consultation document, and we published an easy-read guide to accompany the document. Members who have seen that guide may wish that all consultation documents were so accompanied.
While keeping the centrality of users at the forefront of any changes, I would like to turn for a moment to how the proposed changes affect the tribunal judiciary. It has long been said that judicial independence is an important aspect of a fair tribunal system. The Franks report in 1957 established that tribunals should be adjudicative rather than administrative bodies and, as such, should be fair, open and impartial. Sir Oliver Franks said:
“Tribunals are not ordinary courts, but neither are they appendages of Government Departments.”
According to Franks, impartiality means
“independence from the real or apparent influence of the original decision-making administration.”
Users of tribunals need to be sure that decisions in their cases are being taken by people with no links to the body that they are appealing against and that the framework for taking decisions in their case, including rules of procedure and the appointment of decision makers, is not constructed in the interests of the other party.
We propose bringing the tribunal judiciary under the leadership of the Lord President of the Court of Session. The Lord President will be responsible for the training, welfare, guidance and performance of judges and other members of the new tribunal system. He will also be responsible for the allocation of members to hear individual cases and the handling of complaints made against any member of the tribunal.
The Lord President will be able to delegate any judicial leadership functions to other judges of the tribunal and, in particular, will nominate a senator of the College of Justice as the president of Scottish tribunals—a new office that will be responsible for the day-to-day running of tribunal business.
Bringing judicial leadership under the Lord President will not mean that tribunals will lose any of their distinctive characteristics. The consultation proposals ensure that there are measures in place to protect each tribunal’s distinctive culture and specialist nature. That is assured by the tribunals’ own rules of procedure and relevant primary legislation.
As I said earlier, we are taking tribunal reform forward in a phased approach. We are proposing that only a few of the devolved tribunals transfer into the new structure straight away. That will help the judiciary in transferring tribunals to settle into the new first tier and get used to the new arrangements. As we move to the next phase, we expect to begin discussions with relevant parties to allow further devolved tribunals to integrate into the first tier and also benefit from the support that the Scottish Tribunals Service can provide.
What is being proposed in our consultation may seem like a massive change in how tribunals operate. Members might think that it will adversely affect tribunal users and cause confusion to them about who will hear their particular case. The answer is quite the contrary. Tribunal users will still appear before the same tribunal members and decisions will still be made in accordance with the law governing their jurisdiction. In addition, current rules of procedure, which protect the distinctive ethos of individual tribunals, will be adopted in the first-tier tribunal. Greater confidence in the tribunals’ impartiality will be assured by future appointments and changes to tribunal rules being made only following ministerial receipt of independent advice.
The current tribunal landscape is complex. It is generally agreed that there is a clear appetite for reform and that that reform should be phased to secure steady improvements. We have started that process with some success by bringing together the six tribunal administrations to create the Scottish Tribunals Service, but that is only a small step in a longer journey.
I ask that Parliament support the motion and agree that we now need to press ahead with creating a coherent, simply structured, more integrated and more effectively led tribunal system that ensures that users receive a high-quality, fair and timely service that is responsive to their varied needs.
I move,
That the Parliament welcomes the publication in March 2012 of a consultation that sets out proposals to reform Scotland’s tribunal system; notes that the proposals provide the opportunity to integrate Scotland’s devolved tribunals into a coherent, unified structure; further notes the importance of tribunals in the administrative justice landscape and the complexity and diversity of their business, and acknowledges their rightful place at the heart of a modern civil justice system
In the same item of business
The Deputy Presiding Officer (John Scott)
Con
The next item of business is a debate on motion S4M-02521, in the name of Roseanna Cunningham, on the consultation on the new tribunal system in Scotland.14:58
The Minister for Community Safety and Legal Affairs (Roseanna Cunningham)
SNP
Today’s debate focuses on tribunal reform in Scotland and highlights our proposals for modernising how tribunals operate.Tribunals are a valued and distincti...
The Deputy Presiding Officer
Con
I draw members’ attention to the fact that we have quite a bit of time in hand in the debate, so we will be generous with time and will seek interventions.15:10
Jenny Marra (North East Scotland) (Lab)
Lab
I thank the minister for her considered introduction to the topic and welcome the opportunity to speak in this debate on an important issue.Tribunals are a f...
The Deputy Presiding Officer (Elaine Smith)
Lab
I now call David McLetchie. Mr McLetchie, you may have a very generous six minutes.15:16
David McLetchie (Lothian) (Con)
Con
Oh, right! Thank you very much, Presiding Officer. Would that you were always in a position to be so generous. We know that you are in spirit, even if you ar...
Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)
SNP
What was all that about?
David McLetchie
Con
That is called padding, Ms Grahame. Laughter.I welcome the opportunity to speak slowly on this topic, following the launch of the Scottish Government’s consu...
Roseanna Cunningham
SNP
The member might be interested to know that there is a conversation between us in Scotland and the Ministry of Justice south of the border about the possible...
David McLetchie
Con
I thank the minister for that assurance. That is entirely welcome and I wish her well in those discussions.The need for reform of the tribunal system has bee...
The Deputy Presiding Officer
Lab
A valiant effort, Mr McLetchie.Before we proceed to the open debate, I am pleased to inform members that we have been joined in the public gallery by His Exc...
John Finnie (Highlands and Islands) (SNP)
SNP
This is a potentially interesting subject for someone who happens to be one of the many users of the tribunals service. I draw members’ attention to the mini...
Graeme Pearson (South Scotland) (Lab)
Lab
I thank the minister on two levels. First, I thank her for her fair presentation of the proposal that is set out in the consultation document on a new tribun...
Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)
SNP
Presiding Officer, my heart sank when you said that we have extra time. We always get extra time when we do not have a lot to say.I commend David McLetchie w...
Roderick Campbell (North East Fife) (SNP)
SNP
I refer members to my registered interest as a member of the Faculty of Advocates.I welcome the opportunity to speak in the debate. I am a relative newcomer ...
John Pentland (Motherwell and Wishaw) (Lab)
Lab
When the proposal to set up the Scottish Tribunals Service was debated in September 2010—there was the same glamour then as there has been in the debate so f...
Chic Brodie (South Scotland) (SNP)
SNP
In its way, the debate—enjoined as it is to the Government’s consultation paper on a new tribunal system for Scotland, as announced by the minister on March ...
Nigel Don (Angus North and Mearns) (SNP)
SNP
I would like to take us back a few years and to a little bit of research into the history of the situation. Members have referred to Sir Oliver Franks’s repo...
Roseanna Cunningham
SNP
There will be the possibility of sheriffs, sheriff principals and other very expert individuals adjudicating at that level. We are talking about a high level...
Nigel Don
SNP
I am grateful for that clarification.It has occurred to me that the upper-tier tribunal will set precedent. It will be staffed by senior people and it will m...
James Kelly (Rutherglen) (Lab)
Lab
It has been an entertaining debate. We have had the glamour of David McLetchie, the dry humour of Christine Grahame and a history lesson from Nigel Don. For ...
John Finnie
SNP
The member mentions the stress that is associated with attendance at a tribunal. Does he agree that everything should be done to resolve issues through early...
James Kelly
Lab
I thank the member for his intervention and I agree with what he says. As he said in his speech, alternative mechanisms for dispute resolution before the tri...
Christine Grahame
SNP
I am trying to help the member out. Does he agree that the websites of some of the tribunals are quite helpful? Does he also agree that we should applaud the...
James Kelly
Lab
I thank Christine Grahame very much indeed.We all use information technology in our workplaces, but the issue is getting the information out to the 80,000 us...
The Presiding Officer (Tricia Marwick)
NPA
That is perfectly acceptable, Mr Kelly. I know that you have really important points to make and that the members in the chamber would love to hear them.
James Kelly
Lab
Yes. I can see that members are looking very attentive, particularly those on the front benches, who I am sure are willing me on.The independence of the trib...
Colin Keir (Edinburgh Western) (SNP)
SNP
I think that we should give a vote of thanks to Mr Kelly for managing to speak for eight minutes.I welcome the broad agreement across the chamber on this iss...
Roderick Campbell
SNP
So far, Colin Keir has not mentioned the tribunal judiciary. Does he agree that it is appropriate that the Scottish ministers determine their remuneration on...
Colin Keir
SNP
There is every possibility that I will agree with that statement.The tribunal system in Scotland requires to be changed. As we have heard, there have been va...