Chamber
Meeting of the Parliament 07 November 2013
07 Nov 2013 · S4 · Meeting of the Parliament
Item of business
Tribunals (Scotland) Bill: Stage 1
I thought that that might be the case.
Members need to keep it in mind that each tribunal was created by an act of Parliament. They are all required to operate differently depending on the matter that they are addressing. That will still be the case in the new structure. For instance, the Lands Tribunal for Scotland charges fees, so the bill contains provisions to allow that to continue.
Concern has been expressed about provision being made in the bill for court judiciary—sheriffs—to be able to act as members of the first-tier tribunal. However, there is a requirement in the Mental Health (Care and Treatment) (Scotland) Act 2003 for the Mental Health Tribunal for Scotland to have a sheriff convener to sit in its forensic cases. We therefore have to allow recognition of that position in the bill to ensure that sheriffs can act as members of the first-tier tribunal for that purpose.
The bill allows Scottish ministers to make composition orders specifying which category of member hears what cases in matters that fall to the first-tier tribunal to determine. The judicial members—sheriffs—of the first-tier tribunal will appear on composition orders only for cases where the founding legislation requires them to sit. That will ensure that they cannot hear any other type of case in the first-tier tribunal.
It is possible that, in the future, a new jurisdiction will be created that will require a judicial member to be part of the panel that hears the case. That would be enacted in the set-up legislation, and would be the result of a policy decision that was taken in the context of a particular policy area; it would not be my decision or come from the justice department. The bill as drafted allows for that flexibility, with safeguards in place to ensure that judicial members of the first-tier tribunal are authorised to hear cases only where there is a genuine requirement for them to do so.
The committee suggested that there would be merit in setting out the characteristics of a tribunal in the bill. As I indicated to the committee in my evidence, I would be happy to consider that, and I am open to hearing members’ views this afternoon on how that might be constructed and what they might like it to include.
There have been representations by stakeholders to request that the Lands Tribunal for Scotland and the Mental Health Tribunal for Scotland should be treated differently in the bill, by placing the former as a separate pillar outwith the structure and giving the latter its own chamber enshrined in legislation. I fully appreciate the complexity and unique nature of both those tribunals; I will say more about them individually in a moment. The key word to describe what the bill proposes is “flexibility”. The structure is designed to allow it to develop and grow, and respond to the needs of the individual tribunals that are transferring into it. The structure protects and maintains the unique individual needs of tribunals as well as providing the benefits that I mentioned earlier.
It is true that the Lands Tribunal for Scotland deals with complex matters of law, and that it operates extremely well. However, that is true of many other tribunals that will transfer into the new structure. Nothing that is proposed in the bill will affect how the tribunals operate in accordance with their founding legislation. I have taken account of the complexities of the Lands Tribunal by stating in the policy memorandum that its functions and members will transfer into the upper tribunal, with its appeals going to the inner house of the Court of Session, as they do now. It has been acknowledged that being in the upper tribunal would work for the Lands Tribunal; being in a separate pillar would not provide anything that is not achieved by the Lands Tribunal’s position in the new structure.
The Mental Health Tribunal is the only tribunal that is currently listed to come into the new structure that makes decisions on people’s liberty. The tribunal focuses on the needs of the patient, putting them at the centre of everything, and ensures that their voice is heard by those who make decisions about their care and treatment. I fully agree with those who advocate strongly for the retention of the specialism and ethos of that tribunal. However, I do not believe that anything that we are proposing would be detrimental to those values. The bill provides many safeguards, but most importantly it does nothing to change the fact that the tribunal will continue to adhere to the Millan principles, which the Scottish Government believes are at the centre of everything that the tribunal does.
I have made the commitment that the Mental Health Tribunal will be in a chamber of its own in the first instance. The bill is clear that only similar subjects can be located together in chambers, and there is currently no jurisdiction of a similar nature that could be located with the Mental Health Tribunal. There may never be such a jurisdiction, but the bill as drafted is flexible enough to allow for that to happen if one should come along. Any changes to chamber structure will be made only following consultation and by affirmative order by this Parliament.
I will clarify, in case there is any misunderstanding, that the location of two or more jurisdictions in the same chamber in no way amalgamates them. Each jurisdiction will continue to have its own founding legislation, specialist members, procedural rules and specialist support staff; all that the jurisdictions will share is a chamber president.
The committee commented on other issues that might be of interest to members in the chamber. I look forward to the debate and will seek to address in my closing remarks any matters that arise.
The bill represents a long-overdue reform of the tribunal landscape in Scotland, which I sincerely believe will be to the advantage of all tribunals and their users. I welcome the wide support for the bill to date, and I look forward to a constructive debate today on the creation of a cohesive tribunal structure for devolved tribunals in Scotland.
I move,
That the Parliament agrees to the general principles of the Tribunals (Scotland) Bill.
Members need to keep it in mind that each tribunal was created by an act of Parliament. They are all required to operate differently depending on the matter that they are addressing. That will still be the case in the new structure. For instance, the Lands Tribunal for Scotland charges fees, so the bill contains provisions to allow that to continue.
Concern has been expressed about provision being made in the bill for court judiciary—sheriffs—to be able to act as members of the first-tier tribunal. However, there is a requirement in the Mental Health (Care and Treatment) (Scotland) Act 2003 for the Mental Health Tribunal for Scotland to have a sheriff convener to sit in its forensic cases. We therefore have to allow recognition of that position in the bill to ensure that sheriffs can act as members of the first-tier tribunal for that purpose.
The bill allows Scottish ministers to make composition orders specifying which category of member hears what cases in matters that fall to the first-tier tribunal to determine. The judicial members—sheriffs—of the first-tier tribunal will appear on composition orders only for cases where the founding legislation requires them to sit. That will ensure that they cannot hear any other type of case in the first-tier tribunal.
It is possible that, in the future, a new jurisdiction will be created that will require a judicial member to be part of the panel that hears the case. That would be enacted in the set-up legislation, and would be the result of a policy decision that was taken in the context of a particular policy area; it would not be my decision or come from the justice department. The bill as drafted allows for that flexibility, with safeguards in place to ensure that judicial members of the first-tier tribunal are authorised to hear cases only where there is a genuine requirement for them to do so.
The committee suggested that there would be merit in setting out the characteristics of a tribunal in the bill. As I indicated to the committee in my evidence, I would be happy to consider that, and I am open to hearing members’ views this afternoon on how that might be constructed and what they might like it to include.
There have been representations by stakeholders to request that the Lands Tribunal for Scotland and the Mental Health Tribunal for Scotland should be treated differently in the bill, by placing the former as a separate pillar outwith the structure and giving the latter its own chamber enshrined in legislation. I fully appreciate the complexity and unique nature of both those tribunals; I will say more about them individually in a moment. The key word to describe what the bill proposes is “flexibility”. The structure is designed to allow it to develop and grow, and respond to the needs of the individual tribunals that are transferring into it. The structure protects and maintains the unique individual needs of tribunals as well as providing the benefits that I mentioned earlier.
It is true that the Lands Tribunal for Scotland deals with complex matters of law, and that it operates extremely well. However, that is true of many other tribunals that will transfer into the new structure. Nothing that is proposed in the bill will affect how the tribunals operate in accordance with their founding legislation. I have taken account of the complexities of the Lands Tribunal by stating in the policy memorandum that its functions and members will transfer into the upper tribunal, with its appeals going to the inner house of the Court of Session, as they do now. It has been acknowledged that being in the upper tribunal would work for the Lands Tribunal; being in a separate pillar would not provide anything that is not achieved by the Lands Tribunal’s position in the new structure.
The Mental Health Tribunal is the only tribunal that is currently listed to come into the new structure that makes decisions on people’s liberty. The tribunal focuses on the needs of the patient, putting them at the centre of everything, and ensures that their voice is heard by those who make decisions about their care and treatment. I fully agree with those who advocate strongly for the retention of the specialism and ethos of that tribunal. However, I do not believe that anything that we are proposing would be detrimental to those values. The bill provides many safeguards, but most importantly it does nothing to change the fact that the tribunal will continue to adhere to the Millan principles, which the Scottish Government believes are at the centre of everything that the tribunal does.
I have made the commitment that the Mental Health Tribunal will be in a chamber of its own in the first instance. The bill is clear that only similar subjects can be located together in chambers, and there is currently no jurisdiction of a similar nature that could be located with the Mental Health Tribunal. There may never be such a jurisdiction, but the bill as drafted is flexible enough to allow for that to happen if one should come along. Any changes to chamber structure will be made only following consultation and by affirmative order by this Parliament.
I will clarify, in case there is any misunderstanding, that the location of two or more jurisdictions in the same chamber in no way amalgamates them. Each jurisdiction will continue to have its own founding legislation, specialist members, procedural rules and specialist support staff; all that the jurisdictions will share is a chamber president.
The committee commented on other issues that might be of interest to members in the chamber. I look forward to the debate and will seek to address in my closing remarks any matters that arise.
The bill represents a long-overdue reform of the tribunal landscape in Scotland, which I sincerely believe will be to the advantage of all tribunals and their users. I welcome the wide support for the bill to date, and I look forward to a constructive debate today on the creation of a cohesive tribunal structure for devolved tribunals in Scotland.
I move,
That the Parliament agrees to the general principles of the Tribunals (Scotland) Bill.
In the same item of business
The Presiding Officer (Tricia Marwick)
NPA
The next item of business is a debate on motion S4M-08145, in the name of Roseanna Cunningham, on the Tribunals (Scotland) Bill.
The Minister for Community Safety and Legal Affairs (Roseanna Cunningham)
SNP
I am delighted to open this stage 1 debate on the Tribunals (Scotland) Bill. I thank the Justice Committee for its scrutiny of the bill at stage 1 and for th...
John Finnie (Highlands and Islands) (Ind)
Ind
The minister says that there will be an assignment, rather than an appointment. There is public expectation that the post and person specifications will be c...
Roseanna Cunningham
SNP
We want to ensure that the Lord President’s role is paramount. Members need to keep that in mind. I do not want to get into the business of defining matters ...
Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)
SNP
I shall say this very slowly: I am amending parts of my speech.
Roseanna Cunningham
SNP
I thought that that might be the case.Members need to keep it in mind that each tribunal was created by an act of Parliament. They are all required to operat...
The Presiding Officer
NPA
Thank you, minister. If “courtification” is not a word, it should be. I call Christine Grahame to speak on behalf of the Justice Committee—you have 10 minute...
Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)
SNP
Heavens.It says in my notes, “Welcome the opportunity to speak in the debate”. I think that that might be going a bit too far. I speak on behalf of the Justi...
Christine Grahame
SNP
I am sure that Mr Stevenson will tell me about an even greater tumbleweed debate.
Stewart Stevenson
SNP
I wonder whether the member remembers the Court of Session Act 1693—Laughter.. It specifically says that“no person presume to speake after the Lords begin to...
Christine Grahame
SNP
I liked the last bit, but the idea that I was around in 1693 is a bit wounding.By way of introduction, I will take members on a brief journey through the mix...
Roseanna Cunningham
SNP
It is assignment.
Christine Grahame
SNP
Thank you.The president will be responsible for the efficient disposal of tribunal business. Currently, only a senator of the College of Justice can be assig...
The Presiding Officer
NPA
Courtification.
Christine Grahame
SNP
I will need to develop adjectives and adverbs now.We concluded that how legal members of tribunals are referred to was a matter for individual tribunals to d...
The Presiding Officer
NPA
Thank you, Ms Grahame. It might be helpful to members if I advise that we have a little time in hand. If members take interventions, the Presiding Officers w...
Elaine Murray (Dumfriesshire) (Lab)
Lab
The Scottish Parliament has, over the years, debated many bills that have attracted significant media and public attention. Bills have given the entitlement ...
Stewart Stevenson
SNP
I wonder whether it would be helpful to look at the way that the Scottish Parliament information centre has described what a tribunal is. It seems to me that...
Elaine Murray
Lab
I thank the member for his intervention. That was along the lines of some of the suggestions that were made to the committee, and I think that we will be kee...
Margaret Mitchell (Central Scotland) (Con)
Con
As tribunals form an important part of our civil justice system, I welcome the opportunity to speak in this stage 1 debate on the general principles of the T...
The Deputy Presiding Officer (John Scott)
Con
I would be delighted.
Margaret Mitchell
Con
According to that committee, a tribunal is“A body which resolves disputes between citizens and state and between private parties by making binding decisions ...
The Deputy Presiding Officer
Con
We move to the open debate. There is a modest amount of time in hand for interventions.15:14
Colin Keir (Edinburgh Western) (SNP)
SNP
I am not terribly sure that I am delighted to be speaking here today, but it is my last hurrah as a member of the Justice Committee. There is an element of d...
Christine Grahame
SNP
Mention them again.
Colin Keir
SNP
No—I refuse to mention them again. Ms Grahame should just sit there. She has had her shot.Anyway, use of affirmative procedure will provide some parliamentar...
John Pentland (Motherwell and Wishaw) (Lab)
Lab
Sometimes it takes weeks to hear repetition in the chamber, but when it does we tend to think, “Oh, no! Not that again.” However, we are less than an hour in...
Roderick Campbell (North East Fife) (SNP)
SNP
I welcome the opportunity to speak in the debate and I declare my interest as a member of the Faculty of Advocates.As members are aware, the UK Government ha...
Stewart Stevenson
SNP
Will Roderick Campbell give way?
Roderick Campbell
SNP
I am not sure that I have time, to be honest, but I will give way if the intervention is brief.