SECTION 6: required) CONSULTATION QUESTIONS [continue on separate sheet of paper as PLEASE SEE DOCUMENT ATTACHED BELOW FOR BRANCH SUBMISSION Question 1: Should the distinctive tribunals system be capable of reconsidering decisions and hearing appeals and, if so, what grounds of appeal from the First‐tier Tribunal to the Upper‐tier should be allowed? Comments: Question 2: Which functions of judicial leadership in the tribunals system should be exercised by the Lord President, the President of Scottish Tribunals and the Chamber Presidents, respectively? Comments: 2
Question 3: Should any restrictions be placed on the ability of an appointed member to sit and hear cases in a chamber other than the chamber of their primary assignment? If so, what restrictions? Comments: Question 4: Is this the most appropriate option for judicial remuneration and if not, what other options are there to remunerate fairly the judicial members of the Scottish tribunal system? Comments: 3
Question 5: How should procedural rules for the new tribunal system be made? Comments: Question 6: What issues/opportunities do the proposed changes raise for people with protected characteristics (e.g. age, disability, gender reassignment, race, religion or belief, sex and sexual orientation) and what action could be taken to mitigate the impact of any negative issues or to capitalise upon opportunities? Comments: 4
UNISON SCRA BRANCH PROPOSALS FOR A NEW TRIBUNAL SYSTEM FOR SCOTLAND SCRA UNISON BRANCH RESPONSE TO THE SCOTTISH GOVERNMENT CONSULTATION UNISON is the sole union recognised by SCRA. SCRA Branch members form the majority of SCRA employees. UNISON is Scotland’s largest public sector trade union representing over 165,000 members delivering services across Scotland. UNISON members deliver a wide range of services in the public, community and private sector. They are also tax payers and service users. The Scottish Children’s Reporter Administration is the national body charged with administering and discharging the legislative functions assigned to the Principal Reporter. To this end, SCRA has responsibility for operating the Reporter service, acting as the “gatekeeper” to the Children’s Hearings System. SCRA staff are located throughout Scotland and work in close partnership with other professionals such as social work, education, the police, the health service and the courts system. RESPONSE Background The branch notes with very great dismay the reference to “Children’s Hearings” as a “Tribunal that will be considered on a case‐by‐case basis for Transfer in the Future” (4.63 of the Consultation document). The Children’s Hearings System has been the focus of significant reform, introducing structural and legislative change, since 2008. These changes are, in fact, not yet fully consolidated. It is unconscionable that further change could be considered (however provisional) particularly given the time, energy and public money which has gone into ensuring that the new Children’s Hearings Act is one that meets the needs of vulnerable children and families, which strengthens and modernises the system and which meets all extant ECHR and UNCRC considerations. It was therefore bewildering – at the very least ‐ to read of the inclusion of “Children’s Hearings” as a tribunal which will be considered for future inclusion in the STS – this, at a point in time when the Scottish Government and Ministers have tested the Hearings System and proclaimed that the changes introduced by legislation strengthen and future‐proof the System. The Hearings System has been the focus of significant (initially controversial) legislative attention over the last 4 years. The genesis and final passage of the new Children’s Hearings Act preceded a 5
lengthy period of campaigning and lobbying and deep disquiet and concern from all professionals, voluntary bodies and volunteers concerned with protecting the rights and welfare of children. The transition to the new Act – something which in itself brings significant challenges – is in its infancy and yet here we have provision for yet further change. This is deeply unsettling. It does not engender confidence in the integrity and security of the reforms which have taken place. It causes uncertainty and disquiet at a time when the System ought to be enjoying the fruits of a complex reform developed in the wake of intense debate and comprehensive consultation. There are, of course, myriad reasons why “Children’s Hearings” would not fit easily within the proposed Scottish Tribunal Service and why there should be no inclusion of the system in any legislation creating the STS. The sui generis nature of “Children’s Hearings” (a nature which does not easily meet the traditional tribunal model); the complexity and sheer volume of cases considered; the essential emphasis upon the “local” and volunteer constitution of the Hearings system and a policy structure which is best and most appropriately met within the existing Sponsorship Branch arrangements – touch on just a few of those reasons. In fact, reasons for the specific exclusion of the Hearings System from STS proposals are both comprehensive and compelling – and are there to be advanced should there be express intention to move the Hearings System into the STS. Change of Jurisdiction via Scottish Statutory Instrument (SSI) Change as significant as the potential transfer of the jurisdiction of the “Children’s Hearings” into the proposed STS, should be achieved via primary legislation. The proposal that such change be achieved via Scottish Statutory Instrument (subject to affirmative resolution of the Scottish Parliament) is entirely unacceptable. We currently have fresh primary legislation (Children’s Hearings (Scotland) Act 2011) which is not yet in force – despite this, we have the spectre of SSIs being passed via alternative legislative sources which will defeat that 2011 Act. Such Statutory Instruments – often referred to as Henry VIII clauses – circumvent democratic controls and avoid the rigour of full parliamentary scrutiny. It is concerning that no lessons appear to have been learnt from the initial Children’s Hearings Draft Bill debacle. The serious errors and misunderstandings inherent in that Bill were avoided as a consequence of the fact that we were dealing with primary legislation. A jurisdictional shift would involve issues no less significant as those raised during the creation, redraft and passage of the 2011 Act. “Efficiencies” – merged administrations and an integrated Scottish Tribunal Service versus Service Delivery Quality This Branch agrees that all public sector organisations should be aware of opportunities to work more efficiently and effectively. However the efficiency savings envisaged in this proposal appear to be simply a method of passing on real cuts in services. The proposed centralisation of services is concerning. Merged administrative support is one way of guaranteeing that tribunal bodies lose the skill and in‐depth knowledge that is essential if a high quality service is to be delivered. 6
For instance, administrative support staff working in front‐line offices and support services staff such as IT, Communications staff and Data Analysis staff perform invaluable services which ensure provision of a high quality service not only to children and families but to the government and to partner agencies. It would be deeply damaging to service delivery if the in‐depth casework and process knowledge demonstrated by support staff within SCRA were to be lost via “merged administrations”. Or the expert system knowledge and the understanding of partner needs demonstrated by SCRA support services staff were to be diluted. Under this treatment, we lose the benefit of the holistic service and deride the role of so‐called back office functions i.e. this is a contemptuous “anyone can do this work” type approach . Improved cooperation between public service is essential, but this does not require setting up vast public service “admin factories”. Such initiatives, most commonly referred to as “shared services”, are frequently pushed as a way to improve services and save money. The Branch is aware that nationally, UNISON has examined the arguments and concluded that they are in fact extremely costly and have high upfront costs. For example, the previous Scottish Executive‘s original report into shared services showed an investment ratio of 2:1 — an initial investment of £60m is needed to save £30m. Summary 
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The Hearings System has undergone far‐reaching reform achieved via comprehensive consultation. This reform is so recent that it is not yet concluded and the new legislation not yet in force. This is reform that was heralded by the Government as modernising, strengthening and future‐proofing the Children’s Hearings System. It is destabilising to suggest that further change to the system is necessary. Should there be any change to the system in the future this should be via primary legislation and therefore subject to the democratic process and to full parliamentary scrutiny. The “efficiencies” projected from “merged administrations” deride support staff functions and weaken high quality service delivery. True efficiency is achieved by staff who know their role, have honed their job‐specific skills and have a strong sense of personal investment in the job they are employed to do and in the service they exist to provide. YVONNE STEWART UNISON SCRA Branch Secretary For and On Behalf of UNISON SCRA Branch 7