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Tribunals (Scotland) Act 2014

Type Act of the Scottish Parliament

Publication 2014-04-15

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — The Scottish Tribunals

CHAPTER 1 — Establishment and leadership

Establishment and headship etc.

Establishment of the Tribunals

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(1) There are established two tribunals to be known as—

(a) the First-tier Tribunal for Scotland,

(b) the Upper Tribunal for Scotland.

(2) The Tribunals mentioned in subsection (1) are referred to in this Act—

(a) respectively as—

(i) the First-tier Tribunal,

(ii) the Upper Tribunal,

(b) collectively as the Scottish Tribunals.

(3) The constitution, operation and administration of the Scottish Tribunals are as provided for by or under this Act or another Act.

(4) The jurisdiction, powers and other functions of the Scottish Tribunals are as conferred by or under this Act or another Act.

Head of the Tribunals

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(1) The Lord President is the Head of the Scottish Tribunals.

(2) In that capacity, the Lord President has the functions exercisable by him or her by virtue of this Act.

Upholding independence

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(1) The following persons must uphold the independence of the members of the Scottish Tribunals—

(a) the First Minister,

(b) the Lord Advocate,

(d) members of the Scottish Parliament,

(e) all other persons with responsibility for matters relating to—

(i) the members of the Scottish Tribunals, or

(ii) the administration of justice,

where that responsibility is to be discharged only in or as regards Scotland.

(2) In particular, the First Minister, the Lord Advocate and the Scottish Ministers—

(a) must not seek to influence particular decisions of the members of the Scottish Tribunals through any special access to the members, and

(b) must have regard to the need for the members to have the support necessary to enable them to carry out their functions.

President of the Tribunals

Assignment to office

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(1) There is established the office to be known as that of President of the Scottish Tribunals.

(2) It is for the Lord President to assign a person to that office.

(3) An assignment of a person to that office continues for as long as the Lord President considers appropriate.

(4) The Lord President may nominate a Vice-President of the Upper Tribunal to act temporarily in that office—

(a) if a person assigned to that office is for the time being unable to act in it, or

(b) pending an assignment of a person to that office.

(5) A person assigned to that office under subsection (2) or nominated to act in it under subsection (4) must be a judge of the Court of Session (but may not be a temporary judge).

Functions of office

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(1) Under the headship of the Lord President, the President of Tribunals is the senior member of the Scottish Tribunals.

(2) The President of Tribunals has the functions exercisable by him or her by virtue of this Act.

(3) In this Act, a reference to the President of Tribunals is to the President of the Scottish Tribunals (and a reference to the office of President of Tribunals is to be read accordingly).

CHAPTER 2 — Overarching responsibilities

Head of the Tribunals

Representation of interests

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The Lord President is responsible for—

(a) representing the views of the membership of the Scottish Tribunals to—

(i) the Scottish Ministers, and

(ii) the Scottish Parliament,

(b) laying before the Scottish Parliament written representations on matters that appear to the Lord President to be of importance in relation to the Scottish Tribunals (including as to the administration of justice).

Business arrangements

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(1) The Lord President is responsible for making and maintaining appropriate arrangements for securing the efficient disposal of business in the Scottish Tribunals.

(2) The Lord President is responsible for ensuring that appropriate arrangements are made and maintained as to the welfare of the members of the Scottish Tribunals.

Delegation of functions

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(1) The Lord President may delegate to the President of Tribunals the exercise of any of the functions mentioned in subsection (2).

(2) That is, the functions exercisable by the Lord President by virtue of—

(a) section 7(1) or (2),

(b) section 33(1) or (2), or

Directions on functions

9

(1) The Lord President may give directions to the President of Tribunals as to the exercise of the functions exercisable by the President of Tribunals by virtue of this Act.

(2) Directions under subsection (1) may—

(a) vary or revoke earlier such directions,

(b) relate to particular functions or functions generally.

Regulations by Ministers

Authority under regulations

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(1) Regulations under section 20(2) or 23(2) may—

(a) delegate to the Lord President authority to make arrangements of the kind to which that section relates,

(b) include provision relying on the effect of Tribunal Rules.

(2) Regulations under section 38(1), 40(1) or 41(1) may—

(a) delegate to the President of Tribunals authority to determine the things to which that section relates,

(b) include provision relying on the effect of Tribunal Rules.

(3) Delegation of authority under subsection (1) or (2) is subject to such provision about the exercise or sub-delegation of the authority as may be made in the regulations referred to in that subsection.

Consultation on regulations

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(1) Before making regulations under section 20(2) or 23(2), the Scottish Ministers must—

(a) obtain the Lord President's approval,

(b) consult such other persons as they consider appropriate.

(2) Before making regulations under section 38(1), 40(1) or 41(1), the Scottish Ministers must consult the President of Tribunals.

Guiding principle

Principle to be observed

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(1) In exercising their regulation-making functions under this Act, the Scottish Ministers must have regard to the principle below.

(2) In exercising their leadership functions under this Act, the Lord President and the President of Tribunals must have regard to the principle below.

(3) The principle is the need for proceedings before the Scottish Tribunals—

(a) to be accessible and fair, and

(b) to be handled quickly and effectively.

PART 2 — Organisational arrangements

CHAPTER 1 — Membership types

Overview and main types

Overview of membership

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(1) Each of the First-tier Tribunal and the Upper Tribunal is to consist of its ordinary, legal and judicial members.

(2) Any type of member of the First-tier Tribunal or the Upper Tribunal is not, merely by reason of having that type of membership of the Tribunal, precluded from having any type of membership of the other Tribunal.

(3) In this Act, the references to the members of the Scottish Tribunals are to—

(a) the ordinary and legal members of either or both of the Tribunals by virtue of sections 15 and 16, and

(b) the judicial members of either or both of the Tribunals by virtue of section 17 as read with section 19.

Capacity of members

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(1) Membership of the Scottish Tribunals as an ordinary or legal member of the Tribunals has the effect of granting such a member judicial status and capacity for the purpose for which this section makes provision.

(2) For avoidance of doubt—

(a) a judicial member of the Scottish Tribunals has judicial status and capacity for the purpose for which this section makes provision by reason of holding judicial office,

(b) an extra judge derives judicial status and capacity in relation to the First-tier Tribunal or the Upper Tribunal (as the case may be) for the purpose for which this section makes provision from authorisation to act as mentioned in section 18(4).

(3) This section makes provision—

(a) in the case of an ordinary, legal or judicial member of the Scottish Tribunals, for the purpose of holding the position of and acting as such a member,

(b) in the case of an extra judge of the First-tier Tribunal or the Upper Tribunal, for the purpose of holding that position and acting as mentioned in section 18(4).

First-tier members

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(1) A person is an ordinary member of the First-tier Tribunal if the person is that type of member of the First-tier Tribunal through—

(a) transfer-in as such by virtue of section 29(b), or

(b) appointment as such by virtue of section 32(1).

(2) A person is a legal member of the First-tier Tribunal if the person is—

(a) that type of member of the First-tier Tribunal through—

(i) transfer-in as such by virtue of section 29(b), or

(ii) appointment as such by virtue of section 32(1), or

(b) however holding the position, a Chamber President or Deputy Chamber President in the First-tier Tribunal.

(3) Despite subsection (2)(b), a person assigned as a Temporary Chamber President in the First-tier Tribunal, if a judicial member of the Tribunal, remains such a member of the Tribunal.

Upper members

16

(1) A person is an ordinary member of the Upper Tribunal if the person is that type of member of the Upper Tribunal through—

(a) transfer-in as such by virtue of section 29(b), or

(b) appointment as such by virtue of section 32(3).

(2) A person is a legal member of the Upper Tribunal if the person is—

(a) that type of member of the Upper Tribunal through—

(i) transfer-in as such by virtue of section 29(b), or

(ii) appointment as such by virtue of section 32(3),

(b) however holding the position, a Chamber President in the First-tier Tribunal except a Temporary Chamber President, or

(3) Despite subsection (2)(c)—

(a) a person assigned as a Vice-President of the Upper Tribunal under section 25(1) or (2) remains a judicial member of the Tribunal,

(b) a person assigned as a Temporary Vice-President of the Upper Tribunal, if a judicial member of the Tribunal, remains such a member of the Tribunal.

Judiciary eligible to sit

Sheriffs and judges

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(1) By reason of holding judicial office, a person is eligible to act as a member of the First-tier Tribunal if the person is a sheriff (including a part-time sheriff).

(2) By reason of holding judicial office, a person is eligible to act as a member of the Upper Tribunal if the person is—

(a) apart from the Lord President and the President of Tribunals, a judge of the Court of Session (including a temporary judge),

(b) the Chairman of the Scottish Land Court, or

(3) A sheriff may act as a member of—

(a) the First-tier Tribunal, or

(b) the Upper Tribunal,

only if authorised to do so by the President of Tribunals.

(4) A judge of the Court of Session or the Chairman of the Scottish Land Court may act as a member of the Upper Tribunal only if authorised to do so by the President of Tribunals (but see next instead for the Lord President and the President of Tribunals).

(5) By reason of holding office within the Scottish Tribunals, each of the Lord President and the President of Tribunals is a member of the Upper Tribunal and needs no further authorisation to act as such.

(6) An authorisation for the purpose of subsection (3)(a) or (b) or (4)—

(a) requires—

(i) the Lord President's approval (including as to the person to be authorised), and

(ii) the agreement of the person concerned,

(b) in the case of a sheriff (apart from a sheriff principal), also requires the concurrence of the relevant sheriff principal.

(7) An authorisation for the purpose of subsection (3)(a) or (b) or (4) remains in effect until such time as the President of Tribunals may determine (with the same approval, agreement and concurrence as is referred to in subsection (6)).

Authorisation of others

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(1) If requested to do so by the President of Tribunals, the Scottish Ministers may issue a temporary authorisation—

(a) for a person falling within subsection (1A) to assist in the disposal of the business of the First-tier Tribunal,

(b) for a person falling within subsection (2) to assist in the disposal of the business of the Upper Tribunal.

(1A) A person falls within this subsection if the person is—

(a) a judge of a relevant UK court or tribunal,

(b) a former judge of a relevant UK court or tribunal,

(d) a judge of an international court or tribunal.

(2) A person falls within this subsection if the person is—

(a) a former—

(i) judge of the Court of Session (including temporary judge),

(ii) Chairman of the Scottish Land Court, or

(iii) sheriff (except part-time sheriff), ...

(b) a judge of a relevant UK court or tribunal,

(d) a judge of an overseas court or tribunal, or

(e) a judge of an international court or tribunal.

(3) Any request for the purpose of subsection (1) may not be made without—

(a) the Lord President's approval, and

(b) the agreement of the person concerned.

(4) An authorisation under subsection (1) is for the person concerned to act as if a judicial member of the Tribunal concerned during the period for which it is issued.

(5) The period mentioned in subsection (4)—

(a) requires the same approval and agreement as is referred to in subsection (3), and

(b) may be extended by the Scottish Ministers (with such approval and agreement).

(6) The Scottish Ministers may make payments of sums with respect to any time spent by a person while acting as mentioned in subsection (4) by virtue of authorisation under subsection (1).

(7) An authorisation under subsection (1) may not be issued if the person concerned—

(a) is aged 75 years or over, or

(b) has been removed from judicial office because of unfitness by reason of inability, neglect of duty or misbehaviour (or is for the time being suspended from such office in connection with an investigation into the question of such unfitness).

(8) In the case of a person mentioned in subsection (1A)(a), (c) or (d) or (2)(b), (d) or (e), subsections (1) and (5) are subject to such further arrangements as the Scottish Ministers may make with a governmental or other body responsible for the administration of the court or tribunal concerned, or its judiciary, for the purposes of those subsections.

(8A) In the case of a person mentioned in subsection (1A) or (2)(b), (c), (d) or (e), if the person has not previously taken the required oaths, the person must take them in the presence of the President of Tribunals before acting as mentioned in subsection (4).

(9) In addition—

(a) the previous taking by a person of the required oaths counts (so far as necessary) as if it were the taking of them in connection with acting as mentioned in subsection (4),

(b) section 3 applies in relation to a person who is authorised to act as mentioned in subsection (4)—

(i) as it does in relation to the members of the Scottish Tribunals, and

(ii) during the period for which the relevant authorisation is issued.

(10) In this section—

“an international court or tribunal” means a court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, ora resolution of the Security Council or General Assembly of the United Nations,

“an overseas court or tribunal” means a court or tribunal established under the law of a country or territory outwith the United Kingdom,

“a relevant UK court or tribunal” means a court or tribunal established under the law of one or more parts of the United Kingdom, excluding a court or tribunal established under the law of Scotland only,

“the required oaths” means the oaths of allegiance and the judicial oath as set out in the Promissory Oaths Act 1868.

Judicial membership

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(1) In this Act, a reference to a judicial member of the First-tier Tribunal is to a sheriff who is authorised for the purpose of section 17(3)(a).

(2) In this Act, a reference to a judicial member of the Upper Tribunal is to—

(a) the Lord President or the President of Tribunals, or

(b) a person who is authorised for the purpose of section 17(3)(b) or (4).

(3) A reference in this Act to a judicial member of the First-tier Tribunal or of the Upper Tribunal does not include an extra judge even where authorised to act as mentioned in section 18(4).

(4) In this Act—

(a) a reference to an extra judge in relation to the First-tier Tribunal is to a person falling within section 18(1A) (as read with section 18(4)),

(b) a reference to an extra judge in relation to the Upper Tribunal is to a person falling within section 18(2) (as read with section 18(4)).

CHAPTER 2 — Internal structure

Structure of First-tier Tribunal

Chambers in the Tribunal

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