CHAPTER THREE: TRAINING CONTEXT
Background to this evaluation of tribunal training
Reforms in England & Wales and Great Britain
3.1 A report by Sir Andrew Leggatt Tribunals for Users - One System, One Service was published in 2001 (Leggatt, 2001), in respect of tribunals operating in England & Wales and those with a GB wide jurisdiction ( e.g. social security and child support appeal tribunals, ET(S), criminal injuries compensation tribunals). Tribunals have GB wide jurisdiction when the subject matter is governed by legislation applying throughout the GB, that is areas reserved to the Westminster Parliament. They are referred to in this report as "reserved tribunals" in so far as they operate in Scotland.
3.2 The Leggatt Report was followed by a White Paper entitled Transforming Public Services: Complaints, Redress and Tribunals (Department for Constitutional Affairs 2004), and in turn by the Tribunals, Courts and Enforcement Act 2007. The 2007 Act replaced the Council on Tribunals (CoT), which had had oversight of the operations of administrative tribunals in Great Britain (its activities in Scotland being carried out by a Scottish Committee, SCCoT) with the Administrative Justice and Tribunals Council ( AJTC), also with a Scottish Committee ( SCAJTC). The AJTC came into being in April 2008 and the membership of the Scottish Committee was carried over from the Council on Tribunals.
3.3 Reserved tribunals fall under the administrative control and judicial leadership of the Tribunals Service. The Service is undergoing restructuring as a result of the reforms implemented by the 2007 Act. Since 2002 responsibility for overseeing training for tribunals has been a matter of collaboration between the Tribunals Training Committee and the Judicial Studies Board ( JSB). More information is to be found in Chapter 5.
Tribunal Context in Scotland
3.4 In Scotland, the Tribunals Service is responsible for running the reserved tribunals. They are subject to the terms of the Tribunals, Courts and Enforcement Act 2007. The GB-wide Tribunals Service is led by a Senior President, and there are regional presidents, some of whom are based in Scotland for reserved tribunals operating here. The main reserved tribunals are the Asylum and Immigration Tribunal and the Social Security and Child Support Appeal Tribunal, The Employment Tribunal in Scotland deals with reserved law and comes within the Tribunal Service but is a separate legal entity from the Employment Tribunal (England & Wales) with its own President. In common with some other reserved tribunals, it is under the direct supervision of the SCAJTC.
3.5 None of these recent reforms was concerned with devolved tribunals or tribunals dealing with devolved matters only. The responsibility for tribunals dealing only with devolved matters lies with the Scottish Government and the Scottish Parliament. A Judiciary and Courts (Scotland) Bill has been passed by the Scottish Parliament in September 2008, but "judicial office holders" as defined under the Bill do not include chairs or members of tribunals generally. In 2006 the Administrative Justice Steering Group ( AJSG) "was established by the Scottish Public Services Ombudsman ( SPSO), in conjunction with the former Scottish Committee of the Council on Tribunals and with the support of the then Scottish Executive. The group's remit is to commission research and act in an advisory capacity in the preparation of a final report to the Scottish Government on the administrative justice framework in Scotland taking account, among other things, of the likely impact of the Tribunals, Courts and Enforcement Act 2007" ( AJSG, 2008). In September 2008 the AJSG reported on a range of options for an integrated system to support tribunals operating in Scotland, to acknowledge their distinctiveness from the Tribunals Service as it relates to reserved tribunals operating south of the border, and to reinforce the independence of tribunals operating in Scotland from Scottish Ministers and sponsoring departments ( AJSG, 2008).
3.6 Devolved tribunals draw their powers from legislation applying only in Scotland. There are tribunals that pre-date devolution, for example Lands Tribunal for Scotland and Children's Hearing, and new tribunals created by legislation of the Scottish Parliament such as the Additional Support Needs Tribunal for Scotland and the Mental Health Tribunal for Scotland.
The role of sponsoring departments
3.7 The Scottish Ministers have statutory roles in relation to the devolved tribunals, including the right to appoint members or to be consulted on appointments, providing buildings and staff, and involvement in the making of procedural rules and other regulations. Their respective roles vary from one tribunal system to another. Scottish Ministers fulfill their roles through the department of government with which the tribunal system is connected in substance (the sponsoring department). Development and delivery of training is a matter for each tribunal system, within operating budgets provided by sponsoring departments.
Interface with judicial bodies operating in Scotland
3.8 In the case of some tribunals (mainly reserved) statute provides a role for the Lord President, who heads the judiciary in Scotland, in approving tribunal appointments and in making the appointment of Employment judges. This role of the Lord President in approving certain tribunal appointments highlights independence of tribunals from Ministers and the sponsoring department. There is no equivalent in Scotland of the Tribunals, Courts and Enforcement Act 2007. A Judiciary and Courts (Scotland) Bill passed in September 2008 does not apply to tribunals generally. There is some informal and advisory interface between the judiciary and tribunals in Scotland.
3.9 In 2007 a Judicial Council for Scotland ( JCS) was established under the Lord President. This is an informal and advisory body which discusses practice and policy in judicial matters in Scotland, and helps to devise consultation responses on behalf of the Scottish Judiciary generally. Tribunals are represented on the Council by two tribunal chairs. Currently, one is a full-time regional chair of a reserved tribunal in the Tribunals Service and the other is President of a long-standing tribunal within a devolved area and also a Senator of the College of Justice (Court of Session judge).
3.10 At present, the Judicial Studies Committee in Scotland ( JSC) promotes training for the Scottish Judiciary. It is an informal body. The training has been extended beyond judges and sheriffs to stipendiary magistrates and most recently to lay judiciary in the Justice of the Peace Courts. No statutory basis exists for its functions. A statutory duty to train the lay judiciary for the Justice of the Peace Courts lies with Scottish Ministers, but is transferred by the Judiciary and Courts (Scotland) Bill to the Lord President. Training for the judiciary is in fact delivered by the Judicial Studies Committee.
3.11 The Judicial Studies Committee in its Annual Report for 2007-2008 stresses that training is a means of support to which decision-makers are entitled, rather than a reaction triggered by weakness in the role.
3.12 In 2005 the Lord President established and chaired a Scottish Tribunals Forum ( STF) for identification and discussion of matters common to all tribunals operating in Scotland, including both reserved and devolved tribunals. The STF is informal and advisory. It has no formal interface with the JSC, but in 2008 the JSC at its annual conference considered its role in relation to tribunal training. The Lord President addressed the SCCoT Conference in 2005 and spoke about training as a tool to assist tribunals in performing their roles ( SCCoT Annual Report, 2005-2006).
The role of the Scottish Committee
3.13 The SCCoT (now the SCAJTC) has played a pivotal role in the interface between the Lord President and Presidents of individual tribunal systems, and in the establishment of the AJSG. It has exerted influence on training for tribunals in a number of ways.
3.14 The activities of the Scottish Committee of the Council on Tribunals (now the SCAJTC) as reflected in its Annual Reports provide an insight into, amongst other things, the training being offered for different tribunals. The Scottish Committee's Annual Reports list the tribunals operating in Scotland in the year under report. The list in its Annual Report 2006-2007 is repeated at Appendix 1. It comprises tribunals with a wide and varied range of powers and of varied sizes and workloads. Sponsoring departments vary from large departments of the Westminster government to small local authorities which must maintain local education committees to hear appeals against decisions on education placing requests.
3.15 The Scottish Committee drew attention to the scope for a national approach to training for tribunals operating in Scotland in successive annual reports. In its Annual Report for 2003 - 2004, the Scottish Committee stated
" we are still pressing the case for a national training resource in Scotland to mirror the tremendous work done by the Judicial Studies Board in England and Wales in developing training courses for, and cascading information to, tribunals……we firmly believe that there should be an equivalent service in Scotland to promote and coordinate local training. It is our view that the lack of a national training resource in Scotland is hindering the proper development of tribunals north of the border, particularly those who do not benefit from GB-wide resources. If the resource were in place, all tribunals in Scotland would benefit from economies of scale and effort and might not need to reinvent the wheel and start with a blank sheet". (Scottish Committee Annual Report 2003-2004)
3.16 The creation of the UK Tribunals Service in 2006 with a dedicated budget for training in reserved tribunals prompted the Scottish Committee to note again that there is a need for increased centralised provision of training opportunities for the devolved tribunals in Scotland, but also to remain inclusive of reserved tribunals in so far as they operate in Scotland. (Annual Report 2005-2006 paras 6 and 8). In 2007 the Scottish committee noted again the need for tribunal training for Scotland to bridge rather than divide the devolved and reserved tribunal jurisdictions operating in Scotland and they go on to state
"we believe firmly that economies of scale under a Scotland-wide initiative could be of tangible benefit to Scottish tribunals and their users… although each tribunal has a need for specialist training in its particular legislative provisions, there is plenty of scope for generic training in fairness, weighing up evidence and impartiality which is common to any component of administrative justice."(Annual report 2006-2007 para 7)
3.17 The Scottish Committee held informal discussions with the JSC to explore training issues at a Scotland wide level, and in 2004 the Chair of the JSC addressed a conference hosted by the Scottish Committee (Scottish Committee Annual Report 2004-2005).
3.18 The Scottish Committee held a conference in February 2008 entitled Advancing Administrative Justice and Tribunals - Looking at where we are now and where we go from here. The conference report was published in April 2008 (Conference Report, 2008). In a session devoted to "Structure and Relationships between Tribunals in Scotland" those present agreed that Scotland should follow two key principles noted by Leggatt, namely independence from the sponsoring government department, and a coherent tribunal system. The conference identified four options for tribunals operating in Scotland, and these options have been taken forward in the report of the AJSG published in October 2008 ( AJSG, 2008). The four options identified for Scottish tribunals were:
- the status quo;
- subsuming all Tribunals operating in Scotland into the Tribunals Service;
- a parallel Tribunals Service for Scotland for those not already part of the Tribunals Service; or
- a parallel Tribunals Service that would include all tribunals operating in Scotland including reserved tribunals (the Employment Tribunal Scotland was named specifically).
The first two options were not favoured. It was hoped by those present that policy-makers would note the need for some integrating process (as in options three or four) as it was feared that in the absence of action a gulf would develop between those tribunals operating in Scotland which are, as reserved tribunals, within the Tribunals Service, and other Scottish Tribunals operating outside it (Scottish Committee Conference Report, 2008). These options are repeated and in the AJSG report published in October 2008 ( AJSG, 2008), and an option of bringing Scottish tribunals within the remit of the Tribunals Service was added. These options are explored further in the AJSG report by reference to the Leggatt Committee's principles of independent and impartial processes, an independent and skilled judiciary and a coherent system. The report does not come down in favour of a particular option, but the one seeming to meet the principles most strongly is a service relating to all tribunals operating in Scotland including those reserved tribunals currently under the aegis of the Tribunals Service. AJSG note that this inclusive Scottish approach would be consistent with "justice" in its broadest sense being a devolved matter.
Tribunals Training Register for Scotland
3.19 In order to map the nature and provision of training within tribunal systems operating in Scotland, the Scottish Committee sought information from those tribunals, which it then published in 2004 in the form of a Tribunal Training Register for Scotland. The information within the register has been expanded and updated periodically and Volume 4 (2007-2008) is available via the AJTC website. 1 This report should be read alongside that register.
3.20 The training register sets out the name of the tribunal system, and information on:
- Level of training
- Type of training material
- Title of training session
- Estimated length of training session
- Electronic formats, and
- Contact details for training provision
3.21 The Scottish Committee had started the register after becoming aware that different tribunals were trying to set up their own training aids without realising that others had or were at the same time producing the same and no other body had contacts across all tribunals operating in Scotland. 2 From a low level of response in 2004 the register has grown in detail with each volume published (volume 4 was published in January 2008) and now only a few tribunal systems do not appear there. After publication of the first volume of the register the SCCoT did ask those who had contributed to that volume whether, further to its publication they had been approached subsequently by other tribunals systems operating in Scotland for information about training. Although there had not been many approaches following publication of the first register, SCCoT decided to continue gathering the information and updating the register and has overseen its expansion.
The role of Scottish Ministers
3.22 On 30 January 2008 the First Minister made a statement to the Scottish Parliament on Delivering More Effective Government. In that statement he listed objectives for reform as
"First, to streamline decision making and increase transparency Second, to bring together organisations with similar skills, expertise and processes…." (Simplifying Public Services, 2008)
3.23 He identified an area for further work as being to "look at the case for an integrated Tribunal Service for Scotland," and in Annex 2 to the statement, made reference to the further work including a review of administrative justice by Lord Philip (current chair of the Scottish Tribunals Forum), to be followed by proposals to streamline the operation and administration of tribunals in Scotland. The review of Administrative Justice is ongoing, but the report of the Administrative Justice Steering Group, advocates a single national body for (at least) devolved tribunals operating in Scotland, and greater distance between the functions of tribunals and Scottish Ministers ( AJSG, 2008).
3.24 The processes for appointment, training and decision-making vary extensively in tribunals operating in Scotland. The training approaches are disclosed for most tribunals in the Scottish Committee's Tribunal Training Register. There were gaps in input to that register and in the course of this research an attempt has been made to map the training activities of those tribunals for whom such specification does not appear in the Scottish Committee's training register.
3.25 The growth in submissions to the register is evidence that it is valued by the tribunal community. Since the date of creation of the register there has also been considerable expansion of networking within the community and with the judiciary in the form of the Scottish Tribunals Forum, the Scottish Judicial Council and annual conferences of the Scottish Committee.
3.26 The views from tribunals discussed in the next chapter are in the main consistent with positive perceptions of training (although possibly a better term would be "development") and sharing of good practice across tribunal systems.
3.27 In the course of its monitoring of tribunals the Scottish Committee notes examples of good and poor practice, which can be very valuable to those designing training for tribunals, whether that training is specific to the jurisdiction or generic. It reports on these within its annual reports and in its contemporaneous (but unpublished) feedback to the tribunals that it visits.
3.28 The Scottish Committee, although historically charged with monitoring the operation of tribunals, now has an expanded remit under the Tribunals, Courts and Enforcement Act 2007 and is a very valuable resource in terms of information and expertise. It has repeatedly stressed its wish to see sharing of best practice and training opportunities, as well as creating linkages rather than divide between devolved and reserved tribunals. The creation of the Scottish Tribunals Forum, the work of the Administrative Justice Steering Group and the inclusion of Tribunals representatives on the Scottish Judicial Council are also important developments. Opportunities to expand dissemination of wisdom and experience and to feed it directly into the development of training need to be explored further.