Police Appeals Tribunal transfer to Scottish Tribunals structure regulations: final business and regulatory impact assessment

Section 1: Background, aims and options

Background to policy issue

The Tribunals (Scotland) Act 2014 created a new, two-tier structure for devolved tribunals in Scotland; the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland, known collectively as the Scottish Tribunals. The 2014 Act was not thought to have any impact on Scottish business or the third sector, nor did it transfer costs, so no BRIA was undertaken during the passage of the Bill.

The rationale for the 2014 Act was to create a new structure for devolved tribunals in Scotland. Over the preceding years, tribunals were established on an ad-hoc fashion, with no common system of leadership, appointments, practice and procedure for reviews and appeals. This can lead to a narrowness of outlook, and it allows for a variation of standards and performances across the wider tribunals landscape.

The new two-tier structure provides for greater independence for the new tribunals and by establishing a more coherent framework for tribunals, opportunities are created for improvement in the quality of services that cannot be achieved by tribunals operating separately.

Schedule 1 of the 2014 Act contains a list of devolved tribunals from which the functions and members may be transferred into the new structure. The Police Appeals Tribunal is listed at schedule 1 on the 2014 Act.

The existing PAT hears appeals against decisions made by the Chief Constable of Police Scotland (or, in the case of senior officers, the Scottish Police Authority) to dismiss or demote a constable in rank due to either performance or misconduct issues. The PAT can either uphold the decision to dismiss or demote a constable or have the constable reinstated to their previous role or rank.

Purpose/ aim of action and desired effect

The First-tier Tribunal for Scotland (Transfer of Functions and Members of the Police Appeals Tribunal) Regulations 2025

The purpose of these regulations is to transfer the functions and the members of the existing PAT into the Scottish Tribunals structure. Section 28(2) of the 2014 Act provides the Scottish Ministers a power to make regulations to transfer some or all of the functions of the listed tribunals in schedule 1 of the 2014 Act to the First-tier Tribunal only, the Upper Tribunal only, or the First-tier Tribunal and the Upper Tribunal.

Police Appeal Cases following the proposed transfer will be heard at first instance in the General Regulatory Chamber of the First-tier Tribunal, with an onward right of appeal under certain circumstances to the Upper Tribunal. The regulations make transitional and saving provisions in relation to the ongoing casework of the PAT and also make consequential amendments to the Police and Fire Reform (Scotland) Act. The existing membership of the PAT will be offered the opportunity to transfer to the First-tier Tribunal as legal members.

The First-tier Tribunal for Scotland General Regulatory Chamber (Police Appeals) (Procedure) Regulations 2025

These regulations provide procedural rules to be followed in the First-tier Tribunal when considering a Police Appeal case.

Paragraph 4(2) of schedule 9 of the 2014 Act confers on the Scottish Ministers the function of making rules regulating the practice and procedure to be followed in proceedings at the Scottish Tribunals, until such time as the Scottish Civil Justice Council and the Court of Session are involved in the making of those rules.

The Upper Tribunal has a set of generic procedural rules, which will be used for any Police Appeal Cases in the Upper Tribunal.

The First-tier Tribunal for Scotland General Regulatory Chamber Police Appeals and Upper Tribunal for Scotland (Composition) Regulations 2025

These regulations provide for the composition of the First-tier Tribunal and Upper Tribunal when hearing Police Appeal Cases.

The regulations provide that when deciding a Police Appeals Case, the First-tier Tribunal will consist of three legal members. The Chamber President of the General Regulatory Chamber will choose a chairing member.

When hearing an appeal from the First-tier Tribunal, the Upper Tribunal will consist of:

A legal or judicial member of the Upper Tribunal acting alone;

Two or three legal or judicial members of the Upper Tribunal;

The Chamber President, acting alone or with no more than two legal or judicial members of the Upper Tribunal;

The President of Tribunals, acting alone or with the Chamber President or with no more than two legal or judicial members of the Upper Tribunal; or

The Lord President, acting alone or with the Chamber President or with no more than two members of the Upper Tribunal.

A judicial member in these regulations includes a sheriff or a judge of the Court of Session.

Options

In this BRIA, the impact of the following options has been considered:

Option 1 – Do nothing

Under this option the current situation would continue, with the Police Appeals Tribunal operating as at present. Currently, the Lord President appoints the members of the Police Appeals Tribunal. Administrative support for the Tribunal is provided by the Scottish Police Authority, who carry out tasks such as sourcing venues and preparing case papers.

Maintaining the current situation would not fulfil one of the goals of the 2014 Act regarding the transfer of listed Tribunals into the Scottish Tribunals structure.

Option 2 – draft regulations that allow the transfer to proceed

Under this option the transfer of the PAT would proceed and would seek to meet the policy aims of the 2014 Act regarding achieving structural coherence across the tribunal landscape in Scotland, with a wider sharing of resources and a uniform approach to issues such as training of members.

The set of regulations aligns with the Scottish Government’s five principles of Better Regulation Approach, in that the draft regulations have been developed transparently with stakeholders and are proportionate to the needs of service users.

Sectors/ Groups affected

The sectors affected by the above options are appellants (police constables) who seek to raise an appeal against decisions to dismiss or demote them in rank, and the respondent (the Chief Constable of Police Scotland; or in senior officer cases only, the Scottish Police Authority) in such appeals.

The Scottish Courts and Tribunals Service (“SCTS”) are affected as they will take on responsibility for the administration of any Police Appeal Cases.

The Scottish Police Authority are affected as they will no longer be responsible for the administration of the PAT.

People who are currently appointed by the Lord President to decide Police Appeals Cases will be affected as they will be offered the opportunity to transfer and become members of the First-tier Tribunal.