RESPONSE
CONSULTATION ON THE PROPOSED
MERGING OF THE SCOTTISH TRIBUNAL
SERVICE AND THE SCOTTISH COURTS
SERVICE
Yvonne MacDermid, Chief Executive, Money Advice Scotland
and
Sarah O’Neill, Consultant to Money Advice Scotland
10 September 2013
Response from Money Advice Scotland to the consultation on the proposed
merging of the Scottish Tribunal Service and the Scottish Courts Service
Introduction
Money Advice Scotland welcomes the opportunity to respond to this consultation
paper. Our members include many experienced money advisers, with significant
experience of representing clients in both courts and tribunals. Money advisers and
their clients are unlikely to be directly involved with the six devolved tribunals which
currently sit within the Scottish Tribunals Service (STS), or with those devolved
tribunals which are planned to transfer into the new tribunal structure. We note,
however, that new jurisdictions may be incorporated into the new tribunal structure in
the future. The proposed housing tribunal recently announced by the Scottish
Government will impact on money advisers and their clients, for example.
Moreover, while we understand that there is no intention at present that responsibility
for reserved tribunals will be transferred to the STS, this could change in the future,
particularly in light of the forthcoming referendum on Scottish independence. Money
advisers and welfare rights advisers are regularly involved in social security tribunals,
for example. We also hope that the proposed merger will have a positive influence on
the existing culture within the courts, which is a matter of concern for our members.
Money Advice Scotland therefore has an interest in this consultation from the
perspective of its members and the individual court and tribunal users whom they
represent.
About Money Advice Scotland
Money Advice Scotland is the national umbrella organisation in Scotland which
promotes and champions the development of free, independent, impartial, confidential
money advice and financial inclusion.
Money Advice Scotland was set up in 1989, and has provided the following services
to its members:
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Standards and quality framework development
Qualifications
Training
Research and policy input
Annual Conference
Seminars and other events
Publications
Consultancy
Organisational audits
In terms of standards and quality framework development, Money Advice Scotland
has been at the forefront of raising standards in Scotland, and beyond. The
organisation was involved in developing a framework which underpinned the Debt
Arrangement Scheme Regulations, and gave assurance that the advice being given
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to clients was of quality. The framework which was in place until 2011, the casework
of which was assessed by competent advisers who were also approved advisers
under the Statutory Debt Arrangement scheme. Due to a change in government policy
the scheme was changed.
Money Advice Scotland is an approved Centre for the delivery of Scottish Vocational
Qualifications in Advice and Guidance. It is currently working with the Institute of
Money Advisers in England and Wales to develop the Scottish version of the
Certificate in Money Advice Practice, which is near completion. Money Advice
Scotland is also working closely with the Money Advice Service in terms of the
development of a national money advice quality framework.
With regard to training of money advisers, the organisation has been using standards
to underpin its training for almost 20 years. In more recent times, the Scottish
Government in conjunction with the advice sector has developed the Scottish National
Standards in Information and Advice (SNS), and Money Advice Scotland was a pivotal
player in their development. These standards are enshrined in current training and
also help shape the Certificate in Money Advice Practice, together with the National
Occupational Standards in Advice and Guidance, and Legal advice.
General comments
We welcome the commitment made by the Minister in the foreword to the consultation
to retain and build on a tribunal system which puts its users at the centre, and which
the public can have confidence in. Like the courts, tribunals provide a vital public
service, and like any other public service, they should be focused on the needs of their
users. While we recognise that others working within the system, such as tribunal
members, lawyers and tribunal staff, have an interest in ensuring a modernised and
more efficient system, ultimately the system is there for the benefit of the public who
need to use it. Many more people have their disputes handled and resolved by
tribunals every year than ever go to court, and it is therefore vital that the structures
and processes in place are accessible and user friendly.
We also welcome the Minister’s commitment to ensuring that the unique and specific
character of each of the tribunals is retained. We believe that specialist decision
making is in the interest of users - hearing cases in a specialist forum by decision
makers who understand the relevant area of law and the types of issues which arise
for those with a particular category of dispute should result in better quality, better
informed decision making. That said, we also believe that users can benefit from a
consistent approach to how tribunals are administered and run.
We support the intentions behind the establishment of a new tribunal structure. Better
integration of the system of tribunals should lead to greater consistency for users, as
well as bringing cost savings, which will benefit taxpayers. As the Administrative
Justice Steering Group (AJSG) chaired by Lord Philip stated:
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‘….users…..should be able to expect a clearly independent and impartial system,
within which they will receive the same level of treatment and service, regardless of
where a tribunal is located or where responsibility lies for its administration.’1
We understand the rationale behind the current merger proposals. The Scottish
Tribunals Service is currently a unit based within the Scottish Government, and cannot
be seen to be independent in line with the principles set out by the Leggatt Review of
Tribunals. Bringing it within the Scottish Court Service (SCS), which is an independent
body, would achieve the independence envisaged by both the Leggatt Review and the
AJSG. It also makes sense given both the intention, set out in the Tribunals (Scotland)
Bill, that the Lord President will be given leadership of tribunals as well as courts, and
the intention that the Scottish Civil Justice Council will in the future make rules for
tribunals as well as courts.
We also recognise the potential efficiencies and economies of scale which the
proposed merger would bring. In addition to bringing together relevant expertise, there
would be scope for central co-ordination of premises, training and administrative
support. We would also hope that it will be seen as an opportunity to improve the
administrative work and procedures underpinning courts and tribunals, and share best
practice: for example with case file preparation, case management and scheduling, to
ensure that services are delivered in ways which best meet the needs of users.
Moreover, it will provide an opportunity to develop close links between the proposed
third tier in the sheriff court and tribunals where possible, including use of shared
premises and shared judicial personnel. We support the view of the Civil Justice
Advisory Group chaired by Lord Coulsfield that the intention to base the new simple
procedure on a more inquisitorial approach fits better with the ethos of tribunals than
that of the criminal courts.2
Our concerns about the proposals
We do, however, have a number of concerns about the potential impact of the
proposals. Firstly, while the consultation contains assurances that the ethos and
nature of tribunals will not change, we have concerns as to whether this will be the
case in practice. The SCS is considerably bigger in scale than the STS, and it is
entirely possible that its culture and working practices will dominate. We are concerned
that the more adversarial culture of the courts could impact on how tribunals are run.
There is considerable evidence that the public perceive the courts as intimidating,
formal and complex, and that this plays a role in deterring them from going to court.3
Any shift in the approach taken to tribunals towards that taken by the courts could
deter both those with disputes and non-lawyer representatives from pursuing cases.
While we hope that the proposed court reforms, particularly the introduction of the third
1
Administrative Justice Steering Group (2008) Options for the Future Administration and Supervision
of Tribunals in Scotland, Glasgow: Scottish Consumer Council
2 Consumer Focus Scotland (2011) Ensuring effective access to appropriate and affordable dispute
resolution: the final report of the Civil Justice Advisory Group, Glasgow: Consumer Focus Scotland
3
See for example Genn, H. and Paterson, A. (2001) Paths to Justice Scotland: What People Do and
Think About Going to Law, Oxford – Portland Oregon: Hart Publishing; Consumer Focus
Scotland/Scottish Legal Aid Board (2009) The views and experiences of civil sheriff court users,
Edinburgh: Consumer Focus Scotland/Scottish Legal Aid Board; Scottish Consumer Council (1997)
Civil Disputes in Scotland, Glasgow: Scottish Consumer Council
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tier and simplified procedure, will improve the situation, we believe that there is a need
for a radical change in culture within the courts, if they are to become more userfriendly.4
Tribunals are generally perceived as being more accessible and informal than courts,
particularly where they adopt a more inquisitorial approach. The ASJG found that they
are generally seen as impartial, independent and fair, and as having advantages
compared to the courts in terms of cost and speed, and may therefore be better than
courts in producing appropriate outcomes.5 The experience of advisers would support
this- both they and those they represent find tribunals to be generally less formal and
intimidating than the courts.
It must be stressed, however, that, while reforming the structures within which courts
and tribunals operate is important, it is crucial that court and tribunal processes are
reviewed to ensure that they meet the needs of users. The role of the Scottish Civil
Justice Council will be crucial here. While tribunals are generally more informal and
less adversarial than courts, there is evidence that consumers can find tribunals to be
daunting, can have difficulty presenting their case without representation and can be
unclear as to the nature of the proceedings.6 It will therefore be necessary to review
current tribunal processes, as well as court processes, and to identify and implement
improvements to ensure they better meet users’ needs.
We are also concerned that the ethos of the courts is heavily influenced by the large
volumes of criminal business. The public associate courts strongly with criminal cases,
and this has been found to impact on people’s willingness to engage with the civil
justice system. The Paths to Justice Scotland research found that the public were
largely unable to distinguish between criminal and civil courts and that their perception
of courts as institutions which deal with crime contributed to their reluctance to become
involved in civil court proceedings.7 We support the conclusion of the Civil Justice
Advisory Group that separation of civil and criminal business might be achieved at
least in part by developing closer links between third-tier civil business and tribunals.8
We note that the consultation states that users of courts and tribunals are unlikely to
notice any difference in the way the service works for them. While we appreciate that
this statement is intended to be reassuring, we would hope that in time, users would
notice a difference, in terms of greater consistency and improved administration and
customer service. Weffre aware, for example, that at present, there is often little
4
Our concerns about this are set out in more detail in our recent response to the consultation on the
draft Courts Reform (Scotland) Bill
5 Administrative Justice Steering Group (2009) Administrative Justice in Scotland- the Way Forward,
Glasgow: Consumer Focus Scotland
6
Scottish Committee of the Administrative Justice and Tribunals Council (2010) Options for Tribunal
Reform in Scotland: Discussion paper, Edinburgh: Scottish Committee of the Administrative Justice
and Tribunals Council
7 Genn, H. and Paterson, A. (2001) Paths to Justice Scotland: What People Do and Think About
Going to Law, Oxford – Portland Oregon: Hart Publishing
8
Consumer Focus Scotland (2011) Ensuring effective access to appropriate and affordable dispute
resolution: the final report of the Civil Justice Advisory Group, Glasgow: Consumer Focus Scotland
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consistency of approach between different sheriff courts in how they deal with certain
types of procedures. We hope that the merger will be used as an opportunity to ensure
that the culture of tribunals has a positive influence on the way in which the courts are
run, to the benefit of users.
We also have concerns about the timing of the proposals. The merger would result in
a considerable expansion in the scale and remit of the SCS. Given all of the other
organisational changes which the SCS has undergone in recent years, together with
the impact of impending court closures and the forthcoming implementation of the civil
court review recommendations, we would question whether this is the best time to take
these proposals forward. Moreover the new tribunal structure is not yet in place, and
this should be given time to bed in before any merger happens. We note the
recommendation of the Scottish committee of the Administrative Justice and Tribunals
Council that any merger should not be considered until evidence of the impact of the
merger of courts and tribunals in England and Wales is available; a detailed and in
depth assessment of the AJSG’s proposals has been undertaken; and the
recommendations of the civil courts review have been implemented. 9 We would
support this view, and would in particular wish to see an evaluation of the impact of
the 2011 merger south of the border on court and tribunal users, to see what lessons
might be learned, prior to any similar merger in Scotland.
The wider context
While reforms to courts and tribunals are important, they are of course just one aspect
of the civil justice system. We believe that courts or tribunals should be viewed as a
last resort, and it is vital that resources are concentrated on ensuring early advice is
available and that other forms of dispute resolution are made available at an early
stage. Research has shown that those involved in disputes are more interested in
finding a resolution to their problem or getting on with their lives, than necessarily
enforcing their legal rights.10 We strongly support the conclusions of the recent
Consumer Focus Scotland report Facing up to Legal Problems11, which recommended
a person-centred approach to solving legal problems as early as possible.
It is also important that reforms to the wider administrative justice system are
undertaken, rather than focusing only on tribunals. If complaints were resolved earlier,
through improved complaints handling mechanisms, use of ombudsmen or other ADR
processes, fewer cases would end up in tribunal processes. The second AJSG report
set out a number of recommendations for the way forward in relation to the wider
9
Administrative Justice and Tribunals Council Scottish Committee (2012) Tribunal Reform in
Scotland: a Vision for the Future, Edinburgh: AJTC
10 See for example Genn, H. and Paterson, A. (2001) Paths to Justice Scotland: What People in
Scotland Do and Think About Going to Law, Oxford – Portland Oregon: Hart Publishing; Consumer
Focus Scotland (2012) Facing up to legal problems: towards a preventative approach to addressing
disputes and their impact on individuals and society, Glasgow: Consumer Focus Scotland
11 Consumer Focus Scotland (2012) Facing up to Legal Problems: towards a preventative approach
to addressing disputes and their impact on individuals and society, Glasgow: Scottish Consumer
Council
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administrative justice system,12 and we consider that the Scottish Government should
take these forward without further delay.
Answers to the consultation questions
1. How could tribunals be appropriately included on a joint board, chaired
by the Lord President?
It will be important to ensure that provision is made for appropriate representation of
the tribunal sector on the joint board, not just at judicial level, but also at an
administrative level. There should also be provision for representation of both users
and appropriate advice organisations on the board, to ensure that their voices are
heard at the highest level. It may also be appropriate to set up a designated subcommittee of the board focusing specifically on tribunals, which might include a wider
membership reflective of the broad range of different tribunals.
2. What steps could be taken along the way to help achieve a joint service
that delivers a high quality service to courts, tribunals and their users?
There are a number of steps which could be taken to ensure that any joint service
delivers a high quality service to its users. In addition to ensuring user involvement in
its governance structure, the new service should make a clear commitment at the
outset to engaging directly with court and tribunal users. This will be an important way
to ensure that courts and tribunals, and the processes they adopt, focus on the issues
of greatest importance to users and meet their needs. Ongoing monitoring (including
engagement with users) and research will also be vital in ensuring both that the service
is focused on users’ needs, and that the objectives behind the merger are being met
from their perspective.
We would also suggest that the new service could establish and maintain a regular,
ongoing dialogue with interested advice organisations, as a means of receiving
feedback about how the system is working from the perspective of users and their
representatives.
It will also be important from the outset to carefully consider and construct key
messages to the public about the merger, the rationale behind it and the likely impact
on users, in any marketing and publicity strategy. It will be particularly important to get
across the message that the changes will not result in tribunals becoming more like
courts in their approach, to ensure that neither consumers nor advisers are deterred
from applying to tribunals due to such a perception. It will be particularly important to
make clear that tribunals will remain free to the user, and that fees for making a claim,
like those which exist in the civil courts, will not be introduced. The new service should
also engage with appropriate advice organisations and other intermediaries to ensure
that this message gets across to the public.
12
Administrative Justice Steering Group (2009) Administrative Justice in Scotland- the Way Forward,
Glasgow: Consumer Focus Scotland
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3. How can the character of both tribunals and courts be maintained whilst
served by a joint administration?
It is important that the distinctive and less formal character of tribunals is preserved
and protected, ensuring that they are specialist, investigative and inquisitorial rather
than generalist and adversarial. The challenge is how to ensure this. We consider that
this might be achieved by ensuring that within the joint administration, there is a
separate administrative section supporting tribunals, and within this, specific staff
groupings which support individual tribunals. While it is important that good practice is
shared across tribunals, there are likely to be particular ways of doing things which
may work well for some tribunals but not others, which should be preserved. It will also
be vital to ensure that tribunal hearings continue to take place in appropriate settings,
rather than in court buildings.
We would also suggest that consideration should be given to establishing suitable
working groups (with independent chairs), including representatives of advice and
user organisations, to monitor how both courts and tribunals are operating. Also, all
guidance, and policies and procedures which are put in place by the joint service
should make very clear whether they relate to courts or tribunals. Case studies could
also be used to identify different types of issues and how these are dealt with in a
court setting or a tribunal setting, and what the distinct differences are in the actual
process.
4. Do you have any further comments that you think should be considered?
See our general comments set out above.
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