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Tribunal Training In Scotland

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CHAPTER SIX: CONCLUSIONS AND RECOMMENDATIONS

Conclusions

6.1 The evaluation revealed

  • autonomous approaches to design and delivery of training within the devolved tribunal systems (whether existing before devolution or created thereafter)
  • a more integrated approach to training in reserved tribunals, but some Scottish specialisation in areas of that training, directed to members in particular
  • a range of reactions to training needs, provision and support mechanisms, with divergence of view often linked to the prior experiences of the respondent whether within or outwith the tribunal context
  • chairs' and members' differing perceptions of training value, and of dynamics within the tribunal hearing
  • a general desire (with a few exceptions) for high return, challenging and interactive training
  • significant interest in mentoring or other opportunities for sharing experiences and reflective practice

Autonomy vs integration in training

6.2 The existing fragmented, autonomous and remote system is inappropriate with some tribunals producing a high level of training input while others are unable to do so due to type, size and financial constraints. Although no tribunals are understood to operate without any training the term "haphazard" which has been used in relation to tribunal training in New Zealand and to pre-Leggatt tribunals in Great Britain is perhaps relevant to the operation of tribunal training in Scotland, particularly given the contrast between sophisticated models applying to SSCSA or in the smallest of reserved tribunals and the ad hoc forms of support offered in some devolved tribunals. The disparity of approaches to training may not indicate poor quality of support, but comments from Presidents and from those chairing or sitting on tribunals identify scope for development or improvement. Disparate approaches may not play out in ways that are directly evident to tribunal users, but are perceived by some respondents to create a variable performance within different tribunals hearings which in turn may affect the experience of the disputants and undermine the integrity of process and decision. It is important that tribunal members as distinct from chairs feel confidence in the contributions that they are able to make in tribunal hearings, and respondents have identified training and feedback as key to growth in confidence. Confident and well-supported tribunal members (and chairs) can generate user confidence in the tribunal system and its decision for that user. Training and support that builds confidence is consistent with the Leggatt principles, against which the AJSG have measured options for an integtrated tribunal system for Scotland.

6.3 The fragmentation of devolved tribunals in Scotland contrasts sharply with the highly integrated system operating, and being developed further, in England & Wales and for the GB wide aspects of reserved tribunals in Scotland. The system in Scotland for devolved tribunals is evolutionary in nature due to the recent introduction of new tribunal systems alongside others of long standing. Some harnessing and sharing of effective training methods for devolved tribunals is essential in order to disseminate good practice and, since most training activities are funded by the public purse, to achieve best value. Respondents are receptive to the idea of shared training in generic tribunal skills in particular.

6.4 Whilst will exists within the tribunals sampled to reflect upon and enhance training for tribunals, the development of training resources in isolation within tribunal systems is not cost effective or conducive to recognition by tribunal chairs and members of the self-development aspect of training and its benefit beyond that particular tribunal system and beyond the specific hearing context. At the same time respondents see the need for specific training for their own tribunal context in a form that is targeted, and functional.

6.5 In order to achieve broader recognition of effective training and efficiency of support, a regulatory body could oversee, regulate, guide and advise the tribunals in their training methods. Lessons can be drawn from the experience of reserved tribunals. Many favourable comments were made in respect of the SSCSA but some room for improvement was noted for ET(S) in Scotland. That particular system appears to sit uneasily within the reserved tribunal domain where Employment Tribunals for England & Wales have administrative support for training through the Tribunals Service, but ET(S) do not.

6.6 Some devolved Tribunal training procedures, more so than reserved, showed flexible development of training in range and content. Scope also exists for related support mechanisms such as mentoring, appraisal and buddy schemes. It should be noted that very positive comments were received from members and chairs on the Private Rented Housing Panel (phrp) training and, to some extent, that provided for MHTS.

6.7 Because of practical issues preventing cascade mailing via the Tribunal Service in particular (which in itself raises a practical issue for dissemination of training materials in a national system) evidence is not available for ASNTS or SSCSA to support or contradict some evidence about training successes in those spheres. The exception is for tribunal members or chairs in these systems who received the mailing due to also being a chair or member of a surveyed tribunal. The Tribunal Service aims to limit its emailings to regular consolidated issues rather than flooding its members (who tend to undertake tribunal work part time) with frequent mailings of separate items of information.

6.8 The devolved tribunals may benefit from importing appropriate training methods from other systems or countries, and reciprocal agreements on shared training may be possible in some areas.

Tribunal dynamics

6.9 In all tribunal systems sampled, freetext comments disclosed some degree of distance between the chair (usually legally qualified) and members (qualified in other disciplines or "lay" in a sense of having experiences of using the service to which the tribunal is linked). Perceptions of training need varied between some chairs and members.

6.10 Legally qualified chairs may consider themselves approachable on an informal basis and able to conduct mentoring or appraisal without difficulty. However members can feel cowed by a perceived gap of skill or knowledge between member and chair, and a lack of understanding of procedures (in which training is targeted to chairs).

6.11 Although decisions on procedural matters are, according to most tribunal procedural rules, firmly the domain of the chair, members appear to crave more training on procedural issues, and their exclusion from such training may fuel a sense of distance from the chair. Training for members on procedures per se would have to make clearer what procedural decisions do lie with the chair, whilst acknowledging that members require familiarity with procedures in order to feel comfortable with their own role on the tribunal.

Access to training for Scotland

6.12 Consultation with the Judicial Studies Board (Tribunals Committee) in England and Wales should be a priority on the topic of generic skills training and training in tribunal dynamics. A national body in Scotland could administer the standards and methods of training for the devolved tribunals, especially in the light of the number of tribunals recently established in Scotland. Whether that body should include reserved tribunals operating in Scotland is a matter still open for debate, but is identified by the AJSG as an option appropriate in a devolved Scotland where justice is a devolved issue. From a user standpoint a Scottish system for all tribunals operating in Scotland has more coherence, but there would have to be a protocol or memorandum of understanding between the national bodies.

6.13 A national body to oversee the appointment and management of tribunals operating in Scotland has been proposed by the AJSG in their first report ( AJSG , 2008). Such a body could take an oversight role in relation to training, but there may be value in following the model used in England and Wales and for reserved tribunals of delegating that training to the Judicial Studies Committee which in turn could draw upon training models and contents already operating in Scotland. Indeed even if the national body for reserved tribunals remains the Tribunals Service, training for tribunals operating in Scotland could be delegated to the Judicial Studies Committee to ensure that training is consistent with devolved justice in Scotland. An alternative approach would be for the training to be a collaborative venture of e.g. the Scottish Tribunals Forum. Whatever the centralised provision of generic training, there would be some need for training particular to a tribunal jurisdiction. However that too could be overseen by a national body, to assist with the perception of independence from the budgets and agendas of sponsoring departments. Options for training provision are discussed further in the recommendations below.

Generic skills overlaid on prior skills and knowledge

6.14 Training in generic skills such as decision-making and evaluation of evidence is arguably paramount where a tribunal member brings specialist knowledge or experience to a tribunal. Following the findings of Peay and Perkins it should be recognised that even though an individual brings extensive knowledge in a particular area to the tribunal, it does not necessarily follow that they also automatically bring the skills needed to be an effective and fair tribunal member. Those who have experience working within a particular sector may, albeit unwittingly, give effect to certain biases or schools of thought to which they subscribe in their decision-making. At the same time, those tribunal members who have been appointed precisely for that experience require training in how to use it effectively and appropriately within the tribunal.

6.15 Evidence from surveys of user groups also suggests that members when given the scope for discussion may respond true to type/discipline/prior agenda ( AJTC 2008). Even if many do not do so, the perception of this risk amongst users of the tribunal should be considered when training is developed.

6.16 Although Turner anecdotally dismisses training for MHTS as ineffective (Turner, 2005) a clearly articulated training and professional development programme in generic skills - including those related to impartial decision making - would not only provide tribunal members with the skills they need but could potentially go some way to allaying perceptions or fears of bias. In turn this can reassure those who use the tribunals that they are being given a fair hearing, but the best source of evidence on that point would be users groups.

6.17 A survey of users groups operating in England & Wales published in February 2008 ( AJTC 2008), albeit low in volume response at 17%, suggests a need for participative practices and more inclusive chairing skills. The ASNTS President reported using user group feedback to influence training.

Paying for training

6.18 Compulsory, remunerated induction training both specific to jurisdiction and generic could be introduced across the tribunal spectrum in Scotland as a basic requirement. Budgets may be tight, but money spent on training (particularly if pooling reduces the need for development of some training in-house or using external providers) should provide long term gain in effective working of tribunals. Alternatively more effort is needed to identify for tribunal decision-makers the transferable benefit to them of funded (but not remunerated) training.

Recommendations

Pooling of training expertise and resources for devolved tribunals

6.19 There are a number of avenues to achieve the desired pooling of training expertise, knowledge and resources for devolved tribunals. The SCAJTC could take a facilitative role, or the STF could promote greater voluntary collaboration. If a national body is created to take responsibility for tribunals in Scotland, this body could take oversight of standards and provision of training. However in terms of generic skills training there would be considerable overlap between the training provided by the JSC for the professional and lay judiciary operating in the courts and that needed by tribunal decision-makers.

6.20 A Tribunals arm of the JSC could take responsibility for (at least) generic training for devolved tribunals in Scotland. The JSC could design and deliver such training and could do so acting in consultation with the SCAJTC and STF pending the establishment of any national tribunals service for Scotland.

6.21 The training should address the topic of tribunal dynamics and the skills needed to achieve the most effective working of all participants on the tribunal panel. This project reveals that this important topic has a generic aspect (multi-person decision-making) and a system-specific aspect (addressing pre-existing professional hierarchies amongst member groups). However ample resources exist via the Tribunals Committee of the JSB and the Australasian bodies to influence development of training in this area. The JSC and the STF (supported by the SCAJTC) could work with this body of material to design training that acknowledges and makes the most of the peculiarly Scottish context (a small country, devolved government, efficient government agenda, respect for tribunal integrity and respect for disputants preferences in Scotland as identified in the Paths to Justice Scotland study (Genn & Paterson, 2001)).

Training for reserved tribunals operating in Scotland

6.22 More attention should be given to how those populating reserved tribunals operating in Scotland can be supported and trained for their work in Scotland. This was called for in particular in responses from those chairs and members of ET(S) whose training had not at first received administrative support from the Tribunals Service. An option identified by AJSG to address the needs of reserved tribunals in Scotland, is that a national body for tribunals in Scotland would include such tribunals. They could obtain training from the JSC in accordance with the recommendation above for devolved tribunals. However those who are engaged with reserved tribunals other than ET(S) (many of whom are Scots also populating devolved tribunals) think highly of the integrated and targeted training regimes that operate for reserved tribunals under the oversight of the Tribunals Committee of the JSB.

6.23 Training for reserved tribunal operations in Scotland should draw appropriately on the existing expertise of the JSB (Trbunals Committee). Through collaboration between the JSB and the JSC a training protocol could operate as a bridge between the Tribunals Service, and any new national body for tribunals in Scotland. However discussions should acknowledge and address the differences between the legal and justice systems of Scotland and England and the social cultures of its parties and tribunal decision-makers.

Training records

6.24 Training records are not kept routinely by tribunal systems in Scotland. Any central body overseeing training provision and standards in Scotland should initiate and maintain a record in standard form for each chair and member which the individual could carry from one tribunal role or system to another.