Memorandum submitted by the Law Society Scotland (TRI 8)

Tribunal, Courts and Enforcement Bill

The Society has considered the Bill and has the following general comments to make.

Part 1 (Tribunals and Inquiries), Part 2 (Judicial Appointments), Part 6 (Protection of Cultural Objects on Loan) and Part 8 (General) together with the relevant schedules apply to Scotland, England, Wales and Northern Ireland, on the other hand Parts 3 (Enforcement by taking control of goods), 4 (Enforcement of judgements and orders), 5 (Debt management and relief) and 7 (Miscellaneous) apply only to England and Wales.

It may have been more appropriate for this Bill to have been more structured inasmuch as those parts of the Bill which apply to the United Kingdom could perhaps have constituted a separate bill whereas the remaining parts could have been placed in a bill for England and Wales only.

The Society has the following comments to make on specific clauses:-

Clause 4 (Judges and other members of the First-tier Tribunal)

This clause is an improvement on the analogous clause as it appeared in the draft bill. The split between clauses 4 and 5, dealing respectively with first tier tribunal judges and other members and upper tribunal judges and other members is an improvement, however the bifurcation of the tribunals does highlight some anomalies. For example, employment tribunal chairmen and members are located within the first tier tribunal, but the legally qualified members of the Asylum and Immigration Tribunal and the Social Security Commissioner are not included as members of the first tier tribunal.

Clause 7 (Chambers: jurisdiction and Presidents)

Clause 7 is vague in terms of what exactly is meant by "a chamber". There is a lack of definition of who may preside over a "chamber". Where two members are chosen to preside over the same chamber, there is no specification regarding the respective roles which these two Presidents may exercise. Furthermore, Clause 7 does not provide any detail as the objectives which the Lord Chancellor may have in mind when makings provision for the organisation of each of the first tier tribunal and upper tribunal into a number of chambers.

Clause 9 (Review of decision by First-tier Tribunal)

Clause 9 indicates that the First-tier Tribunal may review a decision made by it on a matter in a case other than a decision which is an excluded decision for the purposes of Section 11(1).

This would appear to include not only questions of law, but also questions of fact. This power has the potential to undermine the normal judicial process, particularly in relation to Clause 9(4) where the First-tier tribunal may not only correct accidental errors in the decision or the record of the decision and amend the reasons given for the decision, but also set the decision aside. This is a very broad-ranging power and is not restricted to errors of law alone.

Clause 11 (Right to appeal to Upper Tribunal) and Clause 12 (Proceedings on Appeal to Upper Tribunal)

It is clear that the right to appeal to the Upper Tribunal is on a point of law only. There appears to be no provision which would allow the possibility that the Upper Tribunal could make a decision which it considers appropriate in the light of further findings in fact.

Clause 22 (Tribunal Procedure Rules)

The Society notes that the Tribunal Procedure Rules are to be made by the Tribunal Procedure Committee and that the Committee will consist of members appointed from each of the jurisdictions of the United Kingdom appointed by the respective heads of the judiciary.

The Society approves of the amendments to Clause 22(4) which provides that the power to make tribunal procedure rules is to be exercised with a view to securing inter alia that justice is done.

Part 2 (Judicial Appointments)