Hansard

According to that committee, a tribunal is

“A body which resolves disputes between citizens and state and between private parties by making binding decisions according to law, does so by a process of adjudication which is specialised, relatively informal and less adversarial as compared to the model of adjudication applied by the courts and is independent of both the executive and the legislature and of the parties appearing before it.”

Tribunals in Scotland deal with 80,000 cases annually. Without them, individuals would either lose an avenue for redress or be forced to take their grievances into a court system that is already overstretched and—I am sad to say—likely to become more so with the court closures that are planned.

In some instances, a tribunal is a forum for citizens to challenge decisions made by public bodies on their entitlement to benefits and services. Because of that, it is imperative that they are independent from Government and the public organisations whose decisions they regulate. In other cases, they are a forum for the resolution of private disputes—as we see, for example, in the Lands Tribunal for Scotland’s work—or issues arising from employment. In essence, tribunals offer a less formal and less costly dispute resolution mechanism as an alternative to the courts. However, as the Justice Committee heard from a wide range of witnesses, the current complicated tribunal system, which has developed in an ad hoc way over the past decades, needs to be reformed, and the committee’s stage 1 report confirms that users and experts generally welcome the bill as a step towards revising the administrative justice landscape.

The bill creates a first-tier tribunal for first-instance decisions; an upper tribunal to deal primarily with appeals; and a standard system of appointment, training and appeals. However, although all of that is generally to be welcomed, there are, as the stage 1 report notes, certain areas of concern that will need to be addressed as the bill progresses, including the balancing act that the Government will have to perform between establishing a simplified uniform system and recognising that tribunals deal with very specialised areas of the law.

That challenge was reflected in the evidence that the Justice Committee received from the Lands Tribunal, which is a vocal critic of the bill and the creation of a uniform system. In its written submission, it noted that

“to aim for common standards and procedures, including review and appeal, as a significant plank of policy risks creation of a serious impediment to identifying the most efficient way of serving the different needs of individual users”.

Consequently, the Lands Tribunal has argued that, instead of occupying a division in the upper tribunal as the Scottish Government has proposed, it should be placed in a separate pillar. Indeed, that position has been supported by the Lord President.

The difficulty with the Lands Tribunal for Scotland not being included in the new structure is the precedent that that would set for the approach to other tribunals that are equally specialist, which would result in a complex arrangement under the new system, representing not a lot of change. The challenge for the Scottish Government is to establish some standardisation without compromising the interests of users of the tribunal system. I note that the minister has recognised that with the requirement for flexibility.

The stage 1 report also highlights the legitimate concern that has been raised about judicialisation or so-called courtification. In other words, there is a need to ensure that the characteristics of tribunals, as distinct from those of courts, are protected. That concern springs from, among other things, the provision that sheriffs, sheriff principals and part-time sheriffs will be eligible to act as judicial members of the first-tier tribunal by virtue of their judicial office alone. Although the Lord President is supportive of that proposal, an influx of judges and former judges risks turning tribunals from informal and generally non-adversarial environments into courts in all but name. The Justice Committee’s stage 1 report therefore recommends that the Government seriously consider amending the bill to remove automatic entitlement in the appointment of judicial members. A further concern is that, because judicial members may be appointed to the first-tier and upper tribunals, the current gender inequality that is present in the wider judicial system may be replicated in the new tribunal structure.

The bill makes provision for the newly established Scottish Civil Justice Council to propose procedural rules for the Scottish tribunals through a specialised tribunals committee. However, without additional resources, it will be years before the SCJC, which must first rewrite a mountain of civil court rules, will be able even to consider tribunal rules. The Government has proposed that, in the interim, Scottish ministers should make rules for Scottish tribunals, but that interim rule-making arrangement poses serious constitutional issues, as it would result in Scottish ministers writing the rules of administrative justice and significantly drafting the rules surrounding the newly created upper tribunal. Although that may already happen on a limited basis, it remains, as the Faculty of Advocates pointed out to the committee, “undesirable on constitutional grounds”. As Jonathan Mitchell QC said:

“Scottish Ministers should have the same rights as other parties to proceedings before the tribunals to comment on proposed rules, but no power to write them.”

Scottish ministers can be challenged in tribunals, and it is simply not appropriate for them to be involved in setting the rules. An alternative must be found in either the creation of a new, independent interim body or the additional resources that the SCJC would require in order to carry out that role.

All those issues will require to be addressed in the future. In the meantime, I confirm that the Scottish Conservatives will support the general principles of the bill.