Tribunals (Scotland) Act 2014 - Draft Regulations Consultation

Part 1: Policy Background

Policy background to the Scottish Tribunals

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 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 also provides for the functions of existing tribunals and their membership to be transferred to the First-tier Tribunal and/or the Upper Tribunal. These tribunals are listed in schedule 1 of the 2014 Act. 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 were established in an ad hoc fashion, with no common system of leadership, appointments, practice and procedure for reviews and appeals. This can lead to a narrowness of outlook and allowed for a variation of standards and performances across the tribunals landscape.

6. The 2014 Act seeks 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 for new tribunals. By establishing a more coherent framework for tribunals, opportunities are created for improvement in the quality of services that cannot be achieved by tribunals operating separately.

7. The 2014 Act establishes a coherent structure within which to bring the functions and members of devolved tribunals. It contains a list of devolved tribunals in schedule 1 from which the functions and members may be transferred into the new structure.

8. The 2014 Act allows the list of tribunals set out in schedule 1 to be added to or modified. Over time, the intention is that the new structure will acquire the functions of new or other jurisdictions which are not currently listed. 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.

9. The Scottish Tribunals are composed of members who are either transferred in or appointed by the Scottish Ministers. If appropriate, existing eligible members of the listed tribunals transfer in at the same time as the functions of their tribunal are transferred along with their current caseloads.

Background to the current functioning of section 39 of the Transport (Scotland) Act 2001

10. Under section 39(1) of the Transport (Scotland) Act 2001 (“the 2001 Act”), the Traffic Commissioner may impose financial penalties on bus operators who fail to comply with certain statutory requirements^[1]. A penalty may be imposed where an operator of a local service has without reasonable excuse:

(a) failed to operate a local service registered under section 6 of the Transport Act 1985 (“the 1985 Act”);

(b) operated a local service in contravention of that section or section 8(4) or 22(1)(b) or (2) of the 2001 Act;

(c) failed to comply with a requirement under section 6ZA of the 1985 Act;

(d) failed to comply with section 32(1) or 34(3) of the 2001 Act; or

(e) failed to comply with a requirement of regulations made under section 181A of the Equality Act 2010.

11. Under section 39(6) of the 2001 Act, an operator may appeal to the Transport Tribunal against the imposition of such a penalty.

12. Schedule 4 of the 1985 Act makes provision in relation to the Transport Tribunal, and paragraph 14 of that schedule permits decisions of the Transport Tribunal to be appealed to the Court of Session on a point of law only.

Background to bus services improvement partnerships

13. The Transport (Scotland) Act 2019 (“the 2019 Act”) provides a new type of statutory partnership model in the form of bus services improvement partnerships (“BSIPs”). BSIPs involve local transport authorities formulating a plan with bus operators in their area with the aim of improving bus services in the area. A key part of this model is the setting of a range of service standards with which all qualifying local operators within the area of the BSIP must comply. If qualifying operators in the area do not provide a service which meets the operational service standards, they risk losing the right to operate the service through deregistration. The Traffic Commissioner can refuse an application for registration by an operator who, in the Commissioner’s opinion, is unable to comply with the operational service standards that are applicable in that area. The Traffic Commissioner can also cancel the registration of a service where it is considered that the service is not being provided in accordance with the service standard.

14. An appeals process must be put in place which allows operators and local transport authorities to appeal against the service standards decisions of the Traffic Commissioner, to ensure a fair determination of their civil rights. Section 37 of the 2019 Act (yet to be commenced) inserts a new section 6M into the 1985 Act. Section 6M provides the Scottish Ministers the power to make regulations for or about appeals relating to the service standards decisions of the Traffic Commissioner.

Proposed new regulations

15. The intention is to transfer the appeal functions under section 39 of the 2001 Act that relate to devolved matters, and are currently exercised by the UK Transport Tribunal, to the Upper Tribunal. This would include appeals relating to penalties imposed for any of the reasons listed in section 39(1) except paragraph (d) of that section; appeals of penalties imposed for a failure to comply with a requirement of regulations made under section 181A of the Equality Act 2010 will remain in the Transport Tribunal, as they relate to a reserved matter.

16. Also, the intention is to create rights of appeal in relation to BSIP service standards decisions, via regulations, using the power under section 6M of the 1985 Act. The intention is for these appeals to be allocated to the Upper Tribunal.

17. The Upper Tribunal currently considers appeals on points of law, or on referral from the Chambers of the First-tier Tribunal. The draft regulations provide for appeals under section 39 of the 2001 Act, and the new BSIP service standards decisions appeals, to be heard by the Upper Tribunal in the first instance on both points of fact and law. Onward appeals from the Upper Tribunal will be permitted on a point of law only to the Court of Session.

18. Currently, appeals in the Transport Tribunal under section 39 of the 2001 Act can be raised on points of fact and law. Transferring the appeal functions under section 39 to the Upper Tribunal, and allowing appeals on both points of fact and law, will therefore avoid diminishing the rights of appellants under secton 39. Also, allowing the new appeals in relation to BSIP service standards decisions to be raised on points of fact and law in the Upper Tribunal will serve to maintain comparable levels of rights with English counterparts in respect of Enhanced Partnerships, a partnership model similar to BSIPs.

19. It is proposed that the appeal functions relating to both section 39 of the 2001 Act and BSIP service standards decisions will be allocated to the Upper Tribunal before the end of 2024. The draft regulations are attached at Annexes A, B, C, D and E.