My Lords, this amendment is in my name and that of my noble friend Lord Stephen. It relates to the devolution of tribunals, which we very much welcome. There is much administrative sense in bringing together under one umbrella organisation the different tribunals in relation to reserved and devolved matters, although quite clearly there is still a reservation, which we support, for matters involving national security. Clearly, we have a new arrangement under the Tribunals (Scotland) Act 2014, with the courts and tribunals services coming together. Therefore, there is an umbrella organisation that will allow currently reserved tribunals to be devolved. I suspect that it would not make sense to transfer them all at once. That is why we have this scheme.
It is a complex provision. On the one hand, it appears to unreserve tribunals but only to the extent that they are provided for in a subsequent Order in Council. We unreserve with one hand and re-reserve with another, possibly with something akin to a Section 30 order to devolve them at a later stage. Again, I do not necessarily quibble with that means of doing it: the Government face a complex challenge. The Law Society of Scotland raised questions at an earlier stage about whether the position in the Bill as originally introduced in the other place was consistent with meeting the Smith commission recommendations. It is readily acknowledged that there was a significant redrafting of these provisions when the Bill was in another place.
Amendment 52F would remove the employment tribunal and the Employment Appeal Tribunal from the scope of the Order in Council referred to in new sub-paragraphs (4) and (5). As I understand it, new sub-paragraph (1) would be given full effect immediately with regard to the employment tribunal and the Employment Appeal Tribunal, bearing in mind that these tribunals are outwith the jurisdiction of the Tribunals, Courts and Enforcement Act 2007, so they would not qualify to be incorporated in an Order in Council where there might be a qualified transfer. The amendment is to seek the Government’s view. If the tribunals remain subject to a qualified transfer, could the Government try to insist on conditions such as that the current fee structure and charges for people seeking to access employment tribunals could be stipulated in any qualified transfer? We think that it would be far better if these matters were now devolved to the tribunal service in Scotland.
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Amendment 52G seeks to clarify new paragraph 2A(8)(b)(i), which provides that an Order in Council under this clause may contain provisions which are designed to secure,
“consistency in any respect in practice or procedure or otherwise between the Scottish tribunal and other tribunals”.
It is acknowledged that consistency of practice and procedure between a Scottish tribunal and other tribunals in an area such as employment law or otherwise may be desirable, but to have such a catch-all provision allows a broad range of consistencies to be applied and may indeed be interpreted as somewhat limiting the decision-making power of the tribunal judges. It is therefore incumbent on the Government, in bringing forward this proposal, to make clear what they mean by “or otherwise”. It would be unfortunate if what is being sought by this is some kind of uniform decision-making.
I can see a strong case for consistency where there is UK-wide legislation between what happens in Scotland and what happens in England, but there is a difference between seeking consistency and imposing uniformity. For years we have had company law where there can be a different interpretation in the Court of Session from the English Court of Appeal, albeit that the same company law applies across Scotland. Cases used to be able to go to the House of Lords and now to the Supreme Court, and we would get a consistent decision that applied across the country, but if one takes criminal matters where there is UK-wide law such as in road traffic legislation or the Misuse of Drugs Act, unless there is a compatibility issue such cases in Scotland would not come to the Supreme Court. You could well end up with different interpretations north and south of the border. Indeed, that has been the situation since, dare one say, 1707 and it has not meant that the heavens have fallen in.
As I say, under existing legislation and in the present situation with tribunals, different decisions can be reached. There was a case in 2013 from the Upper Tribunal Asylum and Immigration Chamber to the Inner House of the Court of Session—M Ab N and KASY v The Advocate-General for Scotland and the Home Secretary. In that case the learned Lord Eassie said:
“I am naturally very conscious of the undesirability, in a matter of United Kingdom wide jurisdiction, of the courts in its respective constituent parts of the United Kingdom reaching divergent decisions. But it respectfully seems to me that in a situation such as the present appeals, in which the Court of Appeal in England and Wales appears not to have been favoured with the very full and much wider ranging submissions with which we were favoured and in which the issues are relatively new and not the subject of well settled authority, there is good reason wherefor a judge in one of those constituent parts should state his differing conclusion”.
Even under the law as it is at the moment, it is possible to come to different conclusions, and I think that we would be very concerned indeed if the words “or otherwise”, as they appear in this part of the Bill, were in some way or another to try to impose a means by which there would be uniformity.
Amendment 52H seeks to delete new paragraph 2A(7) and is in many respects a probing amendment. That particular sub-paragraph provides that other tribunals
can be added to the list of tribunals whose functions are subject to the qualified transfer after this paragraph comes into force. It may be that this is future-proofing, but if it is more than that, it would be helpful if the Government would explain which tribunals are envisaged to be covered by this provision so that we are in a position to assess whether such a wide-ranging power is necessary.
As we are dealing with tribunals, I have one or two questions to ask of the noble and learned Lord, Lord Keen, who I believe will be responding to the debate. I recall having engaged with the tribunal judges in Scotland and I found that considerable importance was attached to the fact that, quite understandably and properly, there was a benefit in giving tribunal judges in Scotland the opportunity to sit from time to time in tribunals in England and Wales and vice versa. The learned experience was helpful to them in their work. In taking forward orders under this Bill, is it the Government’s intention to ensure that such reciprocity can continue? Perhaps the noble and learned Lord would look at the provisions under Section 50 of the Social Security Administration (Northern Ireland) Act 1992, which makes provision for commissioners from other jurisdictions within the United Kingdom to sit as deputy commissioners in Northern Ireland on social security tribunals. Likewise, there is provision in the 2007 legislation for those who are eligible to sit in Northern Ireland as deputy commissioners to sit on tribunals in Great Britain. It would be interesting to know whether the Government have it in mind to ensure that there is such reciprocity after the devolution of tribunals to Scotland.
Clause 37 makes it clear that this devolution is,
“so far as those functions are exercisable in relation to Scottish cases”.
Under new paragraph 2A(2), “Scottish cases” are to be given a meaning by “an Order in Council”.
If one takes, for example, immigration and there is a backlog, say, in Bristol, from time to time it is possible to shift some of the workload to Glasgow. It makes sense because, at the end of the day, the important thing is that those who are appealing to the tribunals should get their cases dealt with as swiftly as possible. That transfer of cases from Scotland or to Scotland, which is possible at the moment, has been to the benefit of those who are using the tribunal system. One would hope that it is still possible under the new arrangements to facilitate that but I would be interested to know how the Government intend to do it.
The clause states that provision may be made for an order for conditions relating to staff and accommodation. Clearly, there will be important matters with regard to staff and their entitlement. I hesitate to suggest that members of the judiciary fall under the definition of staff but there is an important issue here with regard to the judiciary. As regards tribunal judges, particularly those who serve in the Upper Tribunal in Great Britain appeals, can the noble and learned Lord the Advocate-General indicate what discussion there has been as to whether they wish to be transferred to the Scottish Upper Tribunal? Will they enjoy the same salary structure and pension arrangements as they have as judges in the Upper Tribunals in Great Britain? Will the Scottish
public have access to the same level of judicial expertise under the new Scottish system as they do at present under the GB system?
Finally, the regulations are to be published. I think that it had been hoped by the Law Society of Scotland that we might have had an opportunity to see at least a draft regulation in respect of one of the tribunals to be transferred. I apologise if that has already been done and made available, but that I have not yet seen it. Perhaps the noble and learned Lord in his reply would indicate whether one has been put in the Library so that we can have an opportunity before Report to see what content these regulations will have. I beg to move.