Hansard

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 who, despite his protestations, spoke for eight and a half minutes, taking us from Roman tribunes to Labour tribunes and from the ancient to the recent history of the development of the word “tribunal”. That was masterly padding, and this is a little bit of padding of my own. David McLetchie was followed by Graeme Pearson, who referred to the possibility of Mr McLetchie possessing the attribute of glamour. I remind Mr Pearson that it is recorded in the Official Report that, this week, he referred to the Cabinet Secretary for Justice as “gifted”. We definitely need recess in the Justice Committee.

Let us move to the business in hand—tribunals. I had no idea that there were more than 40 tribunals, and I did not know that they dealt with 80,000 cases a year. Some people might have expected the debate to be like watching paint dry or that it would be preferable to watch paint dry but, as others have said, tribunals deal with the most sensitive, fundamental and personal issues for many ordinary people day in, day out. Four of the tribunals that have already been referred to are the Mental Health Tribunal for Scotland, the Additional Support Needs Tribunals for Scotland, the Lands Tribunal for Scotland and the Private Rented Housing Panel. To be honest, I had no idea that the Private Rented Housing Panel existed. Mind you, I did not know that there was an Inspectorate of Prosecution in Scotland until last week, and nobody else appears to have known about him either. It is possible to learn something even after being here for 13 years.

The tribunals, panels and committees are all different. Some, such as the Lands Tribunal for Scotland, appear to be very judicial and are like a court; others are not like that. In relation to additional support needs tribunals, I have issues about what happens further down the chain. By the time that people get to the tribunal, they will already have been in front of councillors, trying to get support for placing the children in a certain school. My issue—it is not totally relevant to the debate, but it is connected because it touches, to an extent, on the issue of mediation that John Finnie raised—is that, if we dealt with things earlier on and had proper representation at that stage, we would not need to have people going into the tribunal system.

Do we need to restructure the system radically? I think that we must. I welcome the tiered system, but I look forward to some tribunals and panels providing education and training for tribunal members. I do not wish to slight existing panel members, but I understand that there is not always consistency in the way in which cases are dealt with.

Jenny Marra said that tribunals are inquisitorial rather than adversarial, but that is not always the case, as John Finnie said. Sometimes, what one might call a layperson or a party litigant turns up and there is a Queen’s counsel fully decked out in the wig and the bow tie—the whole lot—with a pile of books in front of them. Whether the books are referred to is another matter, but it is scary and that is an issue. Although some tribunals allow people to have legal aid, legal aid will not always pay for them to have a QC at their side. We must address that.

As has been said, some tribunals are very important. A mental health tribunal is, on balance, the most sensitive, as it can result in someone being compulsorily treated and even put into mental health treatment completely against their will, which is a fundamental removal of the individual’s rights. I understand that the tribunal can make a determination on the day but can also defer determination for up to 28 days and, in that period, make an interim compulsory treatment order. That is pretty serious stuff, so we should be thinking about what our tribunals are moving into. The matters that they are dealing with now—“matters” is a word that Mr MacAskill likes—are becoming more complex. In a decade, things have moved on so that, when a tribunal is dealing with someone with mental health problems, their whole background is considered, which might not have been taken into account 10 years ago.

Additional support needs tribunals deal broadly with children who require support because they are being bullied or have emotional, behavioural or learning difficulties. They might even be gifted children—at the other end of the spectrum, one might say—or bereaved. Those are difficult issues.

Panels and tribunals involve a legally qualified convener and two expert members, but I return to my point that I have always found the difficulty to be that, by the time they reach a tribunal, parents and carers are worn out, because they have been in front of councillors, who have an interest in proceedings when someone is trying to get their child placed somewhere or to get additional support at a school.

The additional support needs tribunal can consider appeals against decisions by education authorities. I like the idea of having a more stable appellate system. I note that, as of 18 March, the tribunal has been able to deal with appeals by parents—or by the person involved, when they have the capacity to make a claim—against a body because it has discriminated on the basis of a disability. That is an incremental change—the minister referred to that. My goodness—I have been speaking for only six minutes.

In the summary of the proposals, I am keenest on the proposal

“To ensure impartial decision-making”,

which must be seen to be impartial. That relates to how some of the tribunals have evolved. I feel that parents have been disadvantaged in additional support needs tribunals. They have not really had a fair hearing and fair representation under article 6 of the European convention on human rights. Councils can sit there with legal teams, whereas the parents are standing on their own, perhaps with somebody who is from the voluntary sector. That person will be informed, able and doing their stuff, but there will nevertheless be an imbalance in representation.

Common judicial leadership is terribly important to education. When the Lord President is put at the top of something, it begins to matter and to mean something.

I notice the

“potential for future developments of the wider system”.

Will the minister comment on a bit of the consultation document that I do not understand? I could have read the simplified version but, unfortunately, I found out about it too late. The consultation document says:

“it does not introduce barriers to future consideration of the option of merging courts and tribunals, in Scotland”.

I do not know what that means. Does it mean just that the same buildings would be used or that tribunals would be linked in? I saw that and thought that I would ask about it.

15:47