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Not quite joined up

16 September 13

Commentary on the aims of the Tribunals (Scotland) Bill, and how close it comes to achieving them

by Richard Henderson

The head of a Law Society of Scotland working group on the Tribunals (Scotland) Bill, and former President, tells Craig Watson about the bill’s proposals and outlines the Society’s response.

Why did ministers introduce the Tribunals (Scotland) Bill?

The Government took action because of the ad hoc development of what Lord Philip described in 2008 as an “extremely complex and fragmented” system of tribunals. His expert group also found that: many tribunals were not sufficiently independent of government; there was no consistency in the appointment of members; standards and performance varied; and there was a lack of value for the taxpayer. Also, the interests of tribunal users – ordinary citizens – were not prominent.

Is this linked to other reforms to the justice system?

Tribunals in Scotland deal with disputes between ordinary people as well as those between citizens and government. They are therefore part of the wider civil justice system. This bill is part of the Scottish Government’s move, under the Making Justice Work programme, to modernise the whole justice system, including courts and tribunals. So far, the major focus has been on criminal justice and the civil courts. Little has been done to address the problems of a fragmented tribunal system and, despite Making Justice Work, there does not appear to be a strategic approach to assess the linkages between the different parts of civil justice. That should be the starting point if we are looking to achieve a fully integrated system.

What are the main provisions?

The bill, introduced to the Scottish Parliament in May, aims to create a more coherent and simplified system of devolved tribunals. One of its main features is the introduction of a two-tier structure – a first-tier tribunal for first instance decisions, and an upper tribunal which will mostly deal with appeals, both under the judicial leadership of the Lord President. A new office, the President of Scottish Tribunals, will be established, with responsibility for ensuring tribunal business runs effectively and efficiently. The new structure is intended to provide tribunals with greater independence while preserving their distinctive nature and culture. These are major and, in general terms, welcome changes, but they also carry risks because the different jurisdictions have developed as specialist and expert. The risk may not be substantial, but we have to recognise that one size will not fit all.

Does the Society welcome the bill?

In its evidence to the Justice Committee the Society has made it clear that the bill is a very significant set of proposals. Providing a more coherent and consistent structure is undeniably a good thing for users of the administrative justice system. But more could be done? The bill is an important block in the development of devolved civil justice. But administrative justice has always been the Cinderella of the justice system, despite its importance – in 2011 there were roughly 90,000 cases registered in devolved tribunals (my estimate, based on published figures), involving disputes between government and individuals, about equal to the number of civil court cases. That figure ignores the roughly 73,000 cases received by reserved tribunals in Scotland over the same period. Numbers on their own do not tell you about the complexity or significance of any particular case, and these are rough figures and cannot be taken to represent like for like with court cases. But they do shed a significant light on the scale of the area, and unless it is looked at as part of an overarching, strategic vision for the whole civil justice system, our administrative justice is likely to remain fragmented and unable to achieve the commendable aims of the Scottish Government.

What about the reserved areas?

The Scottish Government can only do so much, and indeed the intention is that the framework established by this bill could in the future accommodate areas of administrative justice reserved to Westminster, such as tribunals considering employment, social security, tax and immigration disputes. The UK Government said in 2010 that it would devolve reserved tribunals where they affected Scotland but, unfortunately, consultation has been delayed until after next year’s referendum on independence. Essentially, the different structures and processes across the whole administrative justice system, reserved and devolved, must be considered together if users’ interests are genuinely at the core of reform. However difficult the task appears, both governments must grasp the nettle.

Richard Henderson, former chair, Administrative Justice & Tribunals Council Scottish Committee

 

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