Tribunals (Scotland) Act 2014 - draft regulations: consultation

Part 1

Policy background

1. The Tribunals (Scotland) Act 2014 (“the 2014 Act”) created a new, simplified statutory framework for tribunals in Scotland, bringing existing tribunal jurisdictions together and providing a structure for new jurisdictions. The 2014 Act created a two-tier structure, the First-tier Tribunal for Scotland (“First-tier Tribunal”) and the Upper Tribunal for Scotland (“Upper Tribunal”), known collectively as the Scottish Tribunals.

2. The 2014 Act provided for the functions of existing tribunals and their membership to be transferred to the First-tier Tribunal and/or the Upper Tribunal. Alternatively, functions may be directly conferred on the First-tier Tribunal and/or the Upper Tribunal for newly created jurisdictions or extensions of existing jurisdictions.

3. The 2014 Act also provided for the First-tier Tribunal to be organised into a number of Chambers, to which the functions transferred to or conferred upon the First-tier Tribunal can be allocated.

4. The 2014 Act further provided for the Upper Tribunal to be organised into a number of divisions, with regard to subject-matter and other relevant factors, to which the functions transferred to or conferred upon the Upper Tribunal can be allocated.

5. The rationale for the 2014 Act was to create a new structure for devolved tribunals in Scotland. Over the years, these tribunals were established in an ad hoc fashion, with no common system of leadership, appointments, practice and procedure or reviews and appeals. This allowed for a variation of standards and performance across the tribunals landscape.

6. The 2014 Act sought to address these issues by creating a structure that reduces overlap, eliminates duplication, ensures better deployment and allows for the wider sharing of available resources. This new structure also provides users with the reassurance that tribunal hearings are being heard by people with no links to the body whose decision they are challenging, therefore providing greater independence for the new tribunals. By establishing a more coherent framework for tribunals, opportunities are created for improvement in the quality of services that cannot easily be achieved by tribunals operating separately.

7. The 2014 Act contains a list of devolved tribunals in Schedule 1 from which the functions and members may be transferred into the new structure. The functions and members of a listed tribunal are transferred into the new structure by regulations. Regulations may also modify the underlying legislation in relation to the tribunals listed in Schedule 1 of the 2014 Act.

8. The Scottish Tribunals are composed of members who are either transferred in or appointed. If appropriate, existing eligible members of listed tribunals transfer in at the same time as the functions of their tribunal are transferred, along with their current caseloads. New procedural rules are required to allow the Scottish Tribunals to operate effectively in the exercise of the transferred functions. These will necessarily consider the previously existing rules of procedure, modified where appropriate to reflect the new structure.

Background to Police Appeals Tribunal

10. The jurisdiction and functions of the Police Appeals Tribunal arises from section 56 of the Police and Fire Reform (Scotland) Act 2012. A constable may appeal to a Police Appeals Tribunal, against any decision to dismiss them or demote them in rank. The Police Appeals Tribunal (Scotland) Rules 2013 govern the procedure used in the Police Appeals Tribunal.

11. A Police Appeals Tribunal currently consists of three members, including one who has been appointed to chair the Tribunal. It is for the Lord President to establish and maintain a panel of people available to sit on the Police Appeals Tribunal. In practice the Scottish Police Authority, who currently provide the administration for the Police Appeals Tribunals, allocate a member of King’s Counsel to chair the Tribunal. The Chair is supported by two other members. Every member of the panel must be either a solicitor holding a practising certificate in accordance with Part 2 of the Solicitors (Scotland) Act 1980, or a member of the Faculty of Advocates practising as an advocate in Scotland and must have been so for the period of five years immediately prior to the members appointment. The Scottish Police Authority pay the members of the tribunal such remuneration, allowances and expenses as Scottish Ministers determine, but the appellant is liable for any expenses they incur in making an appeal. The Tribunal may direct that some of the appellant’s expenses be paid by the Scottish Police Authority. The other expenses of the appeal (including the expenses of the respondent) must be paid for by the Authority.

Proposed new regulations

12. It is proposed that the functions and members of the Police Appeals Tribunal will transfer into the Scottish Tribunals structure as part of the General Regulatory Chamber. The draft regulations are attached at Annexes A, B, and C.

13. The draft regulations at Annex A provide for the transfer of functions and members of the Police Appeals Tribunals into the Scottish Tribunals structure. They also contain transitional and savings provisions.

14. The draft regulations at Annex B set out rules of procedure for police appeals in the First-tier Tribunal General Regulatory Chamber.

15. The draft regulations at Annex C set out the composition of the First-tier Tribunal General Regulatory Chamber when hearing police appeals.