Tribunals (Scotland) Act 2014 - regulations for new transport appeals: consultation

Part 1: Policy Background

Policy background to the structure of the Tribunals (Scotland) Act 2014

1. The Tribunals (Scotland) Act 2014 ("the 2014 Act") creates a new, simplified statutory framework for tribunals in Scotland, bringing existing tribunal jurisdictions together and providing a structure for new jurisdictions. The 2014 Act creates two new tribunals, 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 provides 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 jurisdiction.

3. The 2014 Act also provides for the First-tier Tribunal to be organised into a number of chambers, according to subject-matter and other relevant factors, to which the functions transferred to or conferred upon the First-Tier Tribunal can be allocated.

4. The 2014 Act also provides for the Upper Tribunal to be organised into a number of divisions, according 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 had been established in an ad hoc fashion, with no common system of leadership, appointments, practice and procedure or reviews and appeals. This could lead to a narrowness of outlook and allowed for a variation of standards and performances 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. The structure under the 2014 Act 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, by providing for greater independence. By establishing a more coherent framework for tribunals, opportunities have been created for improvement in the quality of services that cannot be achieved by tribunals operating separately.

General information on the new functions created in the Transport (Scotland) Act 2019.

7. The functions referred to in this consultation are entirely new functions, introduced by the Transport (Scotland) Act 2019. The 2019 Act introduces new rights of appeal to the Scottish Tribunals in relation to new transport policies to be introduced into Scotland on Low Emission Zones Schemes (known as the LEZ schemes"), Workplace Parking Licensing Schemes (known as the WPL schemes) and the prohibition of Dropped Footway Parking, Pavement parking and Double Parking.

8. It is anticipated that these new functions will be allocated to the General Regulatory Chamber ("GRC") of the First-tier Tribunal for Scotland.

9. The functions of the Scottish Charity Appeals Panel (SCAP) to consider appeals against decisions made by the Office of the Scottish Charity Regulator were transferred to the GRC in 2018 and the functions of the Parking and Bus Lane Appeal Tribunal for Scotland were transferred to the GRC in 2020.

10. The GRC currently considers appeals against penalty charge notices issued by a number of councils within Scotland for parking contraventions and bus lane enforcement notifications.

11. It is anticipated that the GRC will be the most appropriate chamber of the First-tier Tribunal in which to accommodate and operate the new functions set out below, as introduced by the 2019 Act.

12. This is because the current members of the GRC have experience of dealing with transport related appeals, and because the existing composition and Rules of Procedure regulations can be amended to accommodate the new functions, as outlined below.

13. It is proposed that the appeal functions relating to LEZ schemes and WPL schemes will be allocated into the Scottish Tribunals on 1 June 2023 to the GRC. It is proposed that the appeal functions relating to the prohibition of dropped footway parking, double parking and pavement parking will be allocated into the Scottish Tribunals on 1 December 2023. The draft regulations are attached at Annexes A and B.

14. The draft regulations in Annex A provide for the allocation of functions to the First-tier Tribunal for Scotland GRC for appeals relating to LEZ Schemes, WPL Schemes and the prohibition of Dropped Footway Parking, Pavement Parking and Double Parking.

15. The draft regulations in Annex B set out amendments to the composition and Rules of Procedure in the First-tier Tribunal for Scotland General Regulatory Chamber and the Upper tribunal for Scotland for appeals relating to Low Emission Zone Schemes, Workplace Parking Licensing Schemes and the prohibition of Dropped Footway Parking, Pavement Parking and Double Parking.

Specific detail of the new functions created in the Transport (Scotland) Act 2019.

Low Emission Zone Schemes – Policy Background

16. LEZ schemes set an environmental limit on certain road spaces (known as low emission zones), restricting access for the most polluting vehicles in order to improve air quality. This helps protect public health within our towns and cities, making them more attractive places in which to live, work and to visit. The LEZ schemes are set out in the Low Emission Zones (Scotland) Regulations 2021^[1].

17. The Transport (Scotland) Act 2019 also provides for the civil enforcement of LEZ schemes and any contraventions that occur within the LEZ^[2]. The Low Emission Zones (Emission Standards, Exemptions and Enforcement) (Scotland) Regulations 2021^[3] have been made and are now in force for this purpose and to facilitate such enforcement.

18. Vehicles that do not meet the emission standards set by a LEZ scheme for a LEZ will be penalised if entering that LEZ^[4]. A penalty charge will be payable when a non-compliant vehicle enters the LEZ. A penalty charge, following review, may be appealed to the First-tier Tribunal.

Workplace Parking Licensing Schemes – Policy background

19. The Transport (Scotland) Act 2019 permits Scottish local authorities to set up workplace parking licensing (known as "WPL") schemes. It will be for local authorities to decide whether they wish to use this power to set up WPL schemes and, if so, to shape proposals to suit local circumstances.

20. Where a WPL scheme is in place, liable occupants of premises will be required to obtain a licence from the local authority for each workplace parking place provided for use by employees and certain visitors such as workers, agents, suppliers, business customers and business visitors. Parking places made available for someone attending a course of education or training, and parking places made available for members of bodies whose affairs are controlled by its members, may also require to be licensed under the WPL scheme.

21. A charge will be levied for each workplace licence on the basis of the number of parking places specified in the licence. Obtaining a WPL licence and paying any levies will be the responsibility of the occupier of the premises, i.e. the employer, business, or organisation, except in certain circumstances.

22. The local authority will make licensing decisions for the issue of WPL licences to occupiers of premises. These decisions, following review, may be appealed to the sheriff court.

23. The Transport (Scotland) Act 2019 provides for the civil enforcement of WPL schemes^[5]. Contraventions under the WPL schemes will be subject to a penalty charge payable by the occupier of the premises. A penalty charge, following review, may be appealed to the First-tier Tribunal. The Workplace Parking Licensing (Scotland) Regulations 2022^[6] have been made and are now in force for this purpose and to facilitate such enforcement.

24. It is now for Scottish local authorities to decide if, and when, to make and operate local WPL schemes.

Prohibition of Dropped Footway Parking, Double Parking and Pavement Parking – Policy background.

25. The Transport (Scotland) Act 2019 introduces three new prohibitions on the parking of vehicles in Scotland: in relation to parking on dropped footways^[7], on pavements^[8] and double parking^[9]. These prohibitions will apply across all local authority areas in Scotland.

26. When these prohibitions come into effect, vehicles will be penalised for double parking or on pavements or dropped footways, although there will be exemptions for certain types of parking such as for emergency workers or for delivery drivers. Local authorities will also have the power to exempt certain streets or areas as they deem locally appropriate.

27. A penalty charge will be payable for contraventions of these parking prohibitions^[10]. The Transport (Scotland) Act 2019 provides for the civil enforcement of these parking prohibitions and any resulting contraventions^[11]. Regulations relating to the enforcement arrangements for these parking prohibitions are still to be drafted but the current proposal is that these regulations, once made, will provide for penalty charges issued in relation to parking prohibitions, to be appealed to the First-tier Tribunal for Scotland.