SECTION 5: ASSESSMENT OF KEY OBJECTIVES
5.1 This proposal seeks to balance five key objectives as set out on in paragraph 1.7:
- effectiveness in securing just and speedy outcomes;
- efficiency in the administration of justice;
- distinctiveness of different tribunals, including continuing specialisation;
- centrality of tribunal users; and
- potential for future developments of the wider system of Scottish justice.
Effectiveness
5.2 Effectiveness in securing just outcomes through the tribunal system is primarily improved in the proposal by enhancing the status of tribunal judiciary and extending the statutory guarantee of judicial independence.
5.3 In association with these overarching changes, the proposal includes a new requirement for Scottish Ministers - who may often be parties to the cases heard before tribunals - to consider independent advice on the appointment of the tribunal members, as well as on their remuneration arrangements. A new mechanism for making or amending the rules of procedure in tribunals, based on independently delivered recommendations, is also foreseen, with a purpose statement which will include securing just outcomes in all rules.
5.4 The continuing specialisation of individual tribunals is an important facet of securing just outcomes in a system which is designed to minimise requirements for legal representation and tailor proceedings to meet the specific needs of particular user groups. In the proposal, continuing tribunal specialisation is protected by the envisaged chamber structure and by the assignment of members to specific chambers, as well as by the continuation of provisions for professional and other expert tribunal members.
5.5 The proposed role of legally qualified tribunal members, as well as a continuing role for Chamber Presidents in place of Tribunal Presidents, is a further assurance of the future tribunals system securing of effective, just outcomes.
5.6 The facility for effective resolution of disputes with a just outcome is also enhanced by existing judicial office holders' proposed membership of the tribunal.
Efficiency
5.7 Efficiency is improved by establishing an integrated system which includes common judicial leadership and common purpose in the development of procedural rules.
5.8 Efficiency is also secured by considerations of requirements for onward appeal and supervisory authority. These proposals sit alongside developments in the civil courts and in the UK-wide system of reserved tribunals. The tribunals system, being properly independent and firmly placed in the judicature, should be made capable of resolving disputes with the expectation of finality in most cases. The Lord President's judicial leadership functions, as envisaged in the full proposal, including judicial training, appraisal, guidance, welfare and discipline will closely match the corresponding functions of the head of the Scottish Judiciary and will underpin the tribunal system's ability to resolve disputes finally .
5.9 The deployment of judicial resources is made more efficient by assignment and cross-ticketing provisions which will allow appropriately qualified and experienced members to sit in chambers to which they are not primarily assigned, instead of requiring a new, separate appointment. The effective achievement of just outcomes and the continuing specialisation of tribunals is protected by the proposal to require authorisation for any assignment or ticketing by senior judiciary in the tribunal system.
5.10 The proposed structure for jurisdictions and corresponding judicial hierarchy facilitates efficient administration, which may be achieved by corresponding administrative actions. The development of a STS enables consistent application of service standards across the tribunal system, and also allows best and innovative practice and professional expertise to be shared more widely.
Tribunal Distinctiveness
5.11 The primary protection of tribunal distinctiveness in the proposal is the inclusion of a chambered internal structure for the new body, with primary judicial assignments being to the different chambers and provision for separate judicial leadership of each. Importantly, the facility for different rules of procedure to be developed for each chamber is retained, as well as for different case types within each chamber. The rules of procedure and the relevant primary legislation are the legal mechanisms by which an individual tribunal's distinctive ethos is most effectively developed and maintained: under our proposals both of these mechanisms will transfer to the new system in their current form.
5.12 A further provision in the separate tribunals which ensures their distinctive ethos is the appointment of professional experts and other general members as tribunal members, in addition to the legally qualified tribunal members. These proposals provide for continued membership by non-legal members, although some different arrangements will apply in, for example, training provisions.
Centrality of system users
5.13 The proposal seeks to protect the centrality of system users, which is a distinctive feature of tribunals, by introducing an overarching purpose statement for rules. This overarching purpose will reflect the need for cases to be determined justly, efficiently and fairly, in accordance with rule of law but will also require rules to be made simply and to facilitate both self-representation and an active, inquisitorial judicial complement, in accordance with the distinctive nature of tribunals in general.
5.14 The particular distinctiveness of separate jurisdictions within the new tribunal will be the principal reflection of the particular needs of different system users. The rules of procedure governing the different jurisdictions in each chamber may be tailored accordingly and the statutory protections will remain in force. So, for example, the needs of children will continue to be taken into particular account in the chamber accommodating additional support needs tribunals and the Millan principles will continue to be upheld in the chamber accommodating mental health tribunals.
Potential for future developments
5.15 The proposal is amenable to a greater future integration in Scotland of the currently separate reserved and devolved systems of tribunals. It will provide the structure to integrate new tribunals created by the Scottish Parliament and accommodate future developments such as proposals that will emerge in the planned Scottish Government consultation on a new housing tribunal system. Further, it does not introduce barriers to future consideration of the option of merging courts and tribunals, in Scotland, as was envisaged by Lord Philip's first report and is characteristic of parallel developments of the tribunal system in England and Wales.
5.16 Appropriate safeguards in matters such as shared judicial training arrangements and the maintenance of common jurisprudence in matters of substantive law are reserved to the UK Parliament at Westminster.