Hansard

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 keen to pursue some of those later. Although we all think that we know what a tribunal is, that is not good enough when we are dealing with matters of law.

Witnesses who spoke to the committee were also anxious that tribunals’ specialisms should not be lost and that individual tribunals should be placed in the appropriate tier, pillar or chamber to ensure that expertise and character are maintained.

The policy memorandum that accompanies the bill states:

“The Scottish Government has made a commitment that initially mental health will be in a chamber on its own”,

which the minister referred to, because at the moment no tribunals cover a similar subject. The Mental Health Tribunal for Scotland itself is satisfied that the new structure will not compromise its expertise or ethos, or substantive mental health law. However, some witnesses felt that “initially” was an insufficient guarantee.

Adrian Ward of the Law Society pointed out that

“five years ago, a significant change in the status of the Mental Welfare Commission for Scotland almost slipped through in the context of the Public Services Reform (Scotland) Bill.”—[Official Report, Justice Committee, 10 September 2013; c 3166.]

The Law Society argues that the bill itself should state that the Mental Health Tribunal should be in a chamber of its own. Any change to that arrangement would therefore have to be made by Parliament, a stance that met with the agreement of Alan Gamble, who has been a convener of the Mental Health Tribunal.

I wonder—I have only just thought about this—whether there could be some form of compromise that would allow a change in status to be introduced through statutory instrument. That would mean that there would be parliamentary change, although amendment of the primary legislation would not be required. Perhaps we can look at something along those lines at stage 2.

The positioning of the Lands Tribunal for Scotland is also a matter of argument. As we have heard, the bill places the Lands Tribunal in the upper tier, which is analogous to the position of the Lands Tribunal for England and Wales under the UK Tribunals, Courts and Enforcement Act 2007. However, the Lands Tribunal for England and Wales is substantially an appeals body that deals in a large part with valuation appeals and therefore sits comfortably within the upper tier. The Lands Tribunal for Scotland describes itself on its website as

“in effect an independent civil court”

that deals with disputes involving land or property.

Lord Gill told the committee:

“The Lands Tribunal for Scotland is a court of law in all but name”,

which

“has no appellate functions of any kind”,

and that appeals from it go to the Court of Session. He stated that

“The Lands Tribunal is not broken”—

I do not think that anybody was saying that it is broken; rather, there was discussion of the structure of the tribunals system itself—

“and does not require fixing.”

He believed that it should be left

“as a separate pillar of its own.”—[Official Report, Justice Committee, 17 September 2013; c 3195-6.]

The minister indicated that she was not supportive of that suggestion, for understandable reasons. It would appear contrary to the purpose of the legislation to bring devolved tribunals together within a coherent structure and then start to make exceptions and stick different tribunals outside that structure.

There might be a more fundamental question regarding whether the Lands Tribunal is, despite its name, actually a tribunal, which is where a definition in the bill could be of assistance. Despite its name, and despite its being one of our oldest tribunals, if it is, as Lord Gill advised, in “all but name” a civil court, perhaps it should be part of the civil courts structure rather than the tribunals structure. In that case, it could be argued that leaving it as a separate pillar until its status is resolved is a sensible temporary solution. That is something else that we may wish to return to at stage 2.

The bill also contains provision for tribunals to award expenses and charge fees. As members will know, that has been a contentious feature of employment tribunals, which recently introduced significant fees of £160, or up to £250 to lodge an appeal and, if the case goes ahead, a further £230 or £950. Those charges were subject to judicial review in the High Court last month as a result of a challenge from Unison.

The minister advised the committee that the provisions of section 70 were necessary because some tribunals already charge fees, and the Scottish Government’s solicitor, Michael Gilmartin, further advised the committee that any proposal to charge fees where they had not been charged previously would be required to come to Parliament for approval. My understanding is that that would be under the negative procedure, and it might be worth considering whether any proposals to introduce fees should be by affirmative rather than negative instrument, in order increase the level of scrutiny.

Section 59 will give tribunals the power to award expenses. Lord Gill believed that use of those powers would not be a regular event as expenses are not generally a feature of tribunal decisions, and that the power would be used only in exceptional cases. Section 59(3)(c) makes a curious reference to “wasted expenses”, which Lord Gill pointed out was not defined. I was relieved to hear the minister state:

“I am not quite sure what is meant by wasted expenses.”—[Official Report, Justice Committee, 17 September 2013; c 3214.]

I had no idea what the expression meant, either. I wonder whether, if it is used, we need to define it. The Government’s solicitor did not seem to be terribly sure about that either, although he said that a definition could be set out in procedural rules.

Section 68(5), which the convener of the Justice Committee has already mentioned, caused considerable consternation among witnesses, as it gives the president of the Scottish tribunals the power to issue directions, including instruction or guidance, on the application or interpretation of the law. The witnesses in question felt that it was quite inappropriate for the interpretation of the law to be made by a senior judge acting administratively rather than judicially. Fortunately, that turned out to be a drafting error that the minister intends to correct at stage 2.

Members might refer to a number of other issues that arose in our evidence taking, including the proposal for the sift of appeals to go to the upper tribunal and whether it was necessary to set the bar so high. The provision appears to have been based on the English and Welsh legislation, which was designed to exclude a flood of vexatious requests for review. Another issue was whether the first-tier tribunal should be able to refer a case to the upper tribunal not just on a point of law but on the whole case—facts and law.

Finally, the minister felt that salaried posts were unnecessary for the operation of the devolved tribunals but some witnesses argued that it would be helpful to put such provision into the bill in readiness for the transfer of reserved tribunals, which will generate a far greater workload and may necessitate the creation of full-time salaried positions. The committee agreed that the bill should allow for that possibility, should the need arise in future.

I am pleased to say that I have spoken for nearly 11 minutes and therefore say in conclusion that I am looking forward to the debate and our stage 2 discussions.

15:06