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

Part 3: Draft Regulations amending the composition and the 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.

Consultation on draft regulations amending the composition and the 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.

Background

36. Schedule 9, paragraph 4(2) of the 2014 Act provides the power for the Scottish Ministers to make regulations setting out the procedural rules to be applicable to chambers of the First-tier Tribunal for Scotland and to the Upper Tribunal.

37. Sections 38 and 40 of the 2014 Act allow the Scottish Ministers, by regulations, to determine the composition of the First-tier and Upper Tribunals.

Draft regulations

38. The draft regulations in Annex B set out amendments to be made to the current Rules of Procedure which apply to parking and bus lane appeals in the First-tier Tribunal General Regulatory Chamber. They also set out amendments to be made to composition of the Scottish Tribunals when deciding cases relating to the new functions before the General Regulatory Chamber and appeals from the General Regulatory Chamber to the Upper Tribunal for Scotland.

First-tier Tribunal for Scotland

39. The Scottish Government proposes that the composition of the First-tier Tribunal for Scotland General Regulatory Chamber when convened to hear appeals relating to LEZ schemes, WPL schemes and the prohibition of Dropped Footway Parking, Double Parking and Pavement Parking should mirror the current composition of the General Regulatory Chamber when convened to hear appeals in relation to a parking case or a bus lane case. This is currently provided for by regulation 3 of the First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Cases and Upper Tribunal for Scotland (Composition) Regulations 2020^[12]. This is intended to ensure consistency in the composition of the General Regulatory Chamber, where legal members have experience and knowledge of dealing with similar transport-related cases.

40. As a result, it is proposed that cases in relation to the new functions be decided by a single legal member of the First-tier Tribunal General Regulatory Chamber. Where practicable, a legal member must not have been involved in the case prior to its being appealed, reviewed or referred.

41. There are Rules of Procedure already in place in the First-tier Tribunal General Regulatory Chamber which apply in parking and bus lane appeals by way of the First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Appeals (Rules of Procedure) Regulations 2020^[13]. The intention is to apply the same Rules of Procedure to appeals cases relating to LEZ schemes, WPL schemes and parking prohibition contraventions.

42. Despite no substantive changes being proposed to the Rules of Procedure, they do need to be amended to ensure that they will also apply to the new appeal cases. The changes relate to ensuring that the new terminology in relation to the LEZ schemes, WPL schemes and the prohibition of Dropped Footway Parking, Double Parking and Pavement Parking is incorporated into the Rules of Procedure. These include various definitions within the First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Appeals (Rules of Procedure) Regulations 2020^[14] and the First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Cases and Upper Tribunal for Scotland (Composition) Regulations 2020^[15], including changes to the meaning of the words of:

• "appeal"
• "notice of rejection"
• "original representations"
• "penalty charge notices
• "respondent authority".

43. In addition, rule 14 of the Rules of Procedure requires to be amended to make provision for the use of additional approved devices in the enforcement regimes for LEZ, WPL and parking prohibitions contraventions. Please note that the parking prohibitions regulations are not yet finalised and therefore additional approved devices, if necessary, will also be added to rule 14 once known.

44. At present, the First Tier General Regulatory Chamber, when hearing appeals relating to parking and bus lane contraventions, is referred to as the Parking and Bus Lane Tribunal. This name appears in correspondence with First-tier Tribunal General Regulatory Chamber, and as referred on their website at www.generalregulatorychamber.scot. There is no legislative provision made for this name.

45. As the jurisdiction of the First-tier Tribunal General Regulatory Chamber is now increasing to encompass both parking and bus lane appeals and now also appeals relating to penalty charge notices issued for low emission zone, workplace parking licensing and parking prohibition contraventions, it is considered appropriate to change the name of the Tribunal.

46. The Traffic Penalty Tribunal England & Wales operates in that jurisdiction handling similar appeal cases. However, in Scotland, as the jurisdiction of the First-tier Tribunal General Regulatory Chamber is likely also to incorporate appeals relating to bus schemes in the future, it is considered a more generic name would be appropriate. As a result, the current proposal is to change the Parking and Bus Lane Tribunal to the Transport Tribunal. We would welcome views on this proposal as well as any other comments.

Upper Tribunal for Scotland

47. The Scottish Government proposes that the composition of the Upper Tribunal for Scotland when convened to hear appeals relating to LEZ schemes, WPL schemes and the prohibition of Dropped Footway Parking, Double Parking and Pavement Parking should mirror the current composition of the Upper Tribunal when convened in relation to a parking case or a bus lane case, as is currently provided for by regulation 4 of the First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Cases and Upper Tribunal for Scotland (Composition) Regulations 2020^[16].

48. As a result, it is proposed that cases in relation to the new functions be decided by a legal or judicial member of the Upper Tribunal acting alone, the Chamber President of the General Regulatory Chamber (as long as they were not involved in the case prior to its being appealed, reviewed or referred), the President of Tribunals, the Lord President, or a judicial member of the Upper Tribunal. A judicial member of the Upper Tribunal is, in terms of these regulations, a judge of the Court of Session or a sheriff.

49. There are no proposed changes to the procedure or composition for the Upper Tribunal as it is anticipated that the current rules are fit for purpose.

Questions on the First-Tier General Regulatory Chamber rules of procedure and composition.

50. Q4: Do you have any comments on the proposed composition of the First-tier Tribunal General Regulatory Chamber when dealing with appeals relating to Low Emission Zone schemes, Workplace Parking Licensing schemes and the prohibition of Dropped Footway Parking, Double Parking and Pavement Parking?

51. Q5: Do you have any comments on the proposals to apply the same Rules of Procedure in the General Regulatory Chamber as are currently used in parking and bus lane cases to the new cases heard in the General Regulatory Chamber relating to Low Emission Zone schemes, Workplace Parking Licensing schemes and the prohibition of Dropped Footway Parking, Double Parking and Pavement Parking?

52. Q6: Do you have any further comments you wish to make on the draft regulations or on any of the above matters?