Chapter Eleven - Devolution
11.1 In this chapter we attempt
to set out issues arising from our Review with regard to the operation
of tribunals throughout the UK. We have set out some thoughts on how
tribunals might be dealt with in the UK context to meet best the needs
of the users. We recognise that existing legislative and other requirements
mean that successful and coherent implementation depends on extensive
consultation and co-operation.
General
issues
11.2 Our terms
of reference relate to England, and England and Wales, and (in so far
as they operate in England and Wales) to tribunals with jurisdiction
in Great Britain and in the UK, but devolution to Scotland, Wales and
Northern Ireland must be taken into account. In the interests of coherence
and consistency our recommendations should be applied cross-border,
where it is possible to do so; and implementation plans will have to
be modified as necessary. [250] But in the time available to
us for this review we have not been able to analyse devolution legislation
in detail to separate those specific areas on which our recommendations
might impact.
11.3 The process is complex because
devolution has been achieved in different ways in each country as regards
jurisdiction, powers, policy responsibilities, legislation and operational
matters. There are tensions between general (devolved) administrative
justice matters and the reservation of UK tribunals.
11.4 An effective
way must be found of implementing our recommendations in tribunals in
all the jurisdictions which reflects both practical realities and differences
in underlying legal systems. The key issue is whether the degree of
coherence we envisage for the operation of the Tribunals System and
Tribunals Service is achievable across the range of tribunals that operate
cross-border, whilst at the same time maintaining coherence with the
devolved systems with which tribunals interact. We cannot propose a
final answer to that, because the solution will depend on the extent
to which, if at all, devolved administrations introduce changes to the
tribunals for which they are responsible, in the light of the report
itself. In our view the Tribunals System should include all tribunals
whose jurisdiction covers England, England and Wales, Great Britain
and the UK, [251] and the Tribunals Board should be responsible
for ensuring that Practice Directions take account of any issues arising
from devolved matters. [252]
11.5 It will be
important in implementing our recommendations that close co-operation
is established between the UK and devolved administrations and to ensure
that there is appropriate input on devolution issues. In the event of
difficulties arising we note that the UK Government and the three devolved
administrations have agreed to participate in a Joint Ministerial Committee
(JMC) consisting of Ministers of the UK Government, Scottish Ministers,
Members of the Cabinet of the National Assembly for Wales (NAW) and
Ministers in the Northern Ireland Executive. The Committee’s terms
of reference provide for it to consider how non-devolved matters may
impinge on devolved responsibilities and vice versa, to keep the arrangements
for liaison between the UK Government and the devolved administrations
under review and to consider disputes between the administrations. It
may be appropriate for the JMC to consider the cross-border implications
of our recommendations and any future proposals for implementation.
[253]
11.6 There are no legal constraints
to the Tribunals Service being asked to cover tribunals with jurisdiction
throughout the UK or Great Britain operating in reserved areas. The
demands of coherence and the practicality of getting the Tribunals Service
up and running within a reasonable time, together with the provisions
of the Scotland Act, might suggest that the Service should be confined
to England and Wales. If the Tribunals Service were an integrated service,
covering the whole of the UK, that could risk a divorce of responsibilities
and practice, between reserved and devolved tribunals. It is our intention,
however, that the new System and Service should be built on the tribunals
currently the responsibility of the Lord Chancellor’s Department
and the existing Appeals Service, which operate cross-border. It will
be necessary from a practical point of view to have factored in the
devolution dimensions from the outset.
Wales
11.7 The Government of Wales Act
1998 created the NAW, to which virtually all of the Secretary of State
for Wales’s executive functions were transferred. Both legislation
and demarcation lines are complicated. Although the Assembly has no
powers to make primary legislation, it is responsible for secondary
legislation in the areas of health, social services, local government,
housing, transport, planning, environment, agriculture, rural development,
and schools inspection. It has key roles regarding appointments and
funding for some tribunals, and there are separate Welsh tribunals for
Agricultural Land, Mental Health Review, Rent Assessment and Valuation.
The Assembly has an interest in many other such bodies, like School
Admission and Exclusion Panels and Planning Inspectors. The Secretary
of State for Wales also continues to have responsibility for some matters
not devolved.
11.8 The Council
on Tribunals supervises tribunals operating in Wales, and should continue
to do so, though it may decide for the future that its sole Welsh member
is not enough. [254] The Judicial Studies Board (JSB) deals and
should continue to deal with training in Wales, as it does in England.
[255] A possible key issue is the extent to which Welsh language
should be taken into account in providing information and in communications
by decision-makers and tribunals. Especially since there still are grey
areas in the functions and powers of the Assembly and those of the Westminster
Government, it is important to ensure full consultation with NAW Ministers
about the impact of proposals relating, in particular, to recruitment,
appointments and the Tribunals Service. [256]
11.9 In relation
to appointments to tribunals in Wales we recommend that the same procedures
for ensuring proficiency in the Welsh language should be applied to
tribunal members as are applicable to judges and magistrates. [257]
Scotland
11.10 Scotland had its own distinctive
legal system, law and procedural systems before the passing of the Scotland
Act 1998. This had already led to different approaches to the functioning
of some tribunals.
11.11 Since the Scotland Act, the
Scottish Parliament has primary legislative powers to make laws on any
matter not excluded from its legislative competence. So it can amend
or repeal provisions of Westminster Acts in so far as they relate to
devolved matters. Some matters are reserved to the UK Parliament, while
the rest are devolved to the Scottish Parliament. Reserved matters are
defined either by specifying a matter in general terms or by specifying
the subject matter of specific pieces of legislation. The Scotland Act
provides that any question whether any function of a public body (amongst
others) relates to reserved matters is determined by a purposive test.
The legislative status of matters dealt with by tribunals sitting in
Scotland varies. The majority of current tribunals can be classified
as relating to reserved areas. But on adjudicating questions, it will
be necessary for all tribunals sitting in Scotland to take account of
devolved Scots law, which is for the Scottish Parliament to modify.
Where legislative competence is reserved, the result is generally that
ministerial functions are reserved unless there is specific provision
to the contrary. Usually the Minister responsible for the subject area
has powers in respect of tribunals; some functions are vested in the
Lord Chancellor or the Lord President of the Court of Session. The divisions
of responsibility are not entirely clear cut. There are some anomalies,
some of which arose before devolution.
11.12 Some tribunals are designated
as "cross-border public authorities" under the Scotland Act.
Some may be Scottish public authorities with mixed functions and their
constitution and set-up are devolved to the Scottish Parliament. Others
(such as the Crofters Tribunal) deal only with matters devolved to the
Scottish Parliament. Those which are Scottish devolved bodies are outside
scope of this Review.
11.13 Supervision
is currently undertaken by the Council on Tribunals, and in particular
by its Scottish Committee. Members of the Scottish Committee are presently
appointed and nominated by the Scottish Ministers. We are proposing
new functions for the Council on Tribunals, as set out in Chapter Seven.
If there were to be changes in the composition of the Council or of
the role or the composition of the Scottish Committee, consultation
with the Scottish Executive would be required prior to implementation.
[258]
11.14 The appointment of legal and
lay members of tribunals is the responsibility of a range of Westminster
and Scottish Ministers and judges. There are arrangements for various
ad hoc consultations to take place. The Lord Chancellor has historically
had a leading responsibility for policy on recruitment and appointments
generally. Some of the apparent anomalies seem to arise because the
Lord Chancellor has no equivalent in Scotland. The current position
is confusing, having been evolved as expedient at the time when specific
issues arose. We do not feel entitled to do more than remark that the
appointment of chairmen and members of the same tribunal by different
persons or bodies should be avoided, if at all possible. The potentially
fragmenting effect of operating dual systems at the same time is disquieting.
It seems sensible at least to co-ordinate the outcomes of consultations
about tribunals, because it is obviously desirable that, wherever members
are to sit, the same criteria for tribunal appointments and generic
skills training should apply. [259]
11.15 In the
interests of coherence, consistency and flexibility in the deployment
of members across the newly grouped Divisions of the Tribunals System,
there would seem to be a case for appointment Commissioners (as we mention
in Chapter Seven) to recommend appointments to those tribunals which
cover reserved areas. [260] The Tribunals Board should be consulted
on criteria for appointments to UK tribunals generally. [261]
11.16 There is
no Scottish body responsible for any tribunal training in Scotland,
and one will be needed to take forward the changes we recommend in Chapter
Six. Even if the JSB is asked to provide generic skills training for
all members of UK tribunals, it is obvious that a Scottish input will
be needed to inculcate the peculiarly Scottish aspects of law and procedure.
This will need to be discussed with the Scottish Executive who may need
or wish to establish their own training arrangements for Scottish devolved
tribunal members. It is in users’ interests that there should be
consistency of approach by the different parts of the same tribunal.
We have made clear elsewhere in this report that we consider that there
is a pressing need to ensure that tribunal members are properly trained,
wherever they are to sit; we think that the way to do this is to have
a specific organisation or organisations in each of the UK administrations,
with responsibility for core training. [262]
11.17 The Lord
Chancellor, in consultation with Scottish Ministers and other Government
colleagues, as appropriate, could take full responsibility for the rules
for tribunals with reserved and mixed functions. The Model Rules of
Procedure prepared by the Council on Tribunals should afford a benchmark.
The Tribunals Board should be consulted about rules for individual tribunals.
[263] Any changes proposed to a Scottish public authority with
mixed functions (reserved and devolved), including a tribunal, would
necessitate an amendment of its constitution by the Scottish Executive.
Where changes are suggested for designated cross-border public authorities,
such as the Council on Tribunals, and the Employment Tribunals, consultation
with the Scottish Ministers is by statute compulsory prior to implementation.
This option would preserve the integrity and coherence of the new System
and Service for UK tribunals.
11.18 There would
be no change to onward appeals to the Court of Session or the sheriff
court. Our suggested alterations to the appeal route in so far as it
affects tribunals with reserved functions would apply in Scotland. [264]
But it must be recognised that the Scottish Executive would have
to be consulted about the application of these arrangements to those
tribunals that operate in both devolved and reserved areas.
11.19 Another option would recognise
the distinctiveness of the Scottish system by retaining the exercise
of functions within the UK Government, but relying on a UK Minister
with Scottish responsibilities (for example, the Advocate General) to
run the system in Scotland for the Lord Chancellor.
11.20 We have considered the possibility
of closer links with the Scottish Executive. The arrangement could be
formalised whereby some or all of the Lord Chancellor’s responsibilities
(regarding the various functions relating to such matters as appointments,
training and rules of procedure) would be discharged by the Scottish
Justice Department, acting on his behalf on an "agency" basis.
But this could create significant practical problems if devolved Scottish
tribunals chose different systems and standards, as is their right.
11.21 If the key consideration is
to preserve the coherence of the Scottish legal system the most logical
way to deal with tribunals in Scotland would be for the Scottish Minister
for Justice to have responsibility for delivery of justice through tribunals
as he does for civil justice through the courts, taking account of the
outcome of this review and consulting with the other administrations
in the UK.
Northern Ireland
11.22 Northern Ireland (NI) has had
its own administration since 1921. It has separate Northern Ireland
Civil Services and the structures of government are very different from
those in England, Wales and Scotland. In particular, before and after
devolution, some matters which in the rest of the UK have been administered
by local authorities have been administered in Northern Ireland by a
NI department.
11.23 The Northern Ireland Act 1998,
which provided for the current Northern Ireland Assembly (NIA), contains
three categories of legislation; that dealing with matters reserved
to Westminster ("excepted" matters); that dealing with matters
which can be legislated by the NIA with the consent of the Secretary
of State for NI ("reserved" matters); and that dealing with
matters which are neither "excepted" nor "reserved"
("transferred" matters).
11.24 Government in NI is in a process
of significant change. There are issues which remain to be resolved
following devolution. For example, there is a commitment in the Belfast
agreement that NI should maintain parity with Westminster requirements
regarding single systems of social security, child support and pensions,
and a specific legal requirement in the 1998 Act for the devolved administration
to be consulted about those subject areas. However, those areas are
"transferred" matters; so the Westminster Parliament would
need the agreement of the NIA to legislate. The Appeals Service and
Social Security Commissioners are thus in an anomalous situation.
11.25 There are
some UK tribunals which operate in NI (for example, the General and
Special Commissioners of Income Tax), some NI tribunals which are similar
to ones in GB (such as Industrial Tribunals and the Lands Tribunal)
and some which are peculiar to NI (such as the Fair Employment Tribunals
and National Security Certificates Appeal Tribunal). The Lord Chancellor
has responsibility for some appointments; but most are made by NI departments.
Rules are generally for the NI departments. Court matters other than
specific appointments are "reserved" matters; tribunals are
not specifically mentioned in the NI Act, which implies that they are
"transferred". This means that, as for Wales and Scotland,
extensive consultation on our recommendations with the NI Administration
is likely to prove necessary to ensure that they are implemented to
take account of the NI position. [265]
Back
to the Contents Page