Commentary on Sections: Part 1
Section 22
139.At present, each tribunal has its own rules, and in many tribunals there are multiple sets of rules. Rule-making powers usually rest with the Lord Chancellor or the Secretary of State. They are usually subject to parliamentary procedure, and the Council on Tribunals must be consulted, but there is no standard form or approach, and no statutory requirement to consult stakeholders. In the courts, rules are made by rule committees with judicial and practitioner membership under a unified set of powers, allowing for consistency in the development of procedure. The intention is to replicate this arrangement for the new tribunals.
140.Section 22 provides for the power to make procedural rules for the new tribunals. Subsection (4) states the overriding objective to be followed by the Tribunal Procedure Committee when it makes Tribunal Procedure Rules. This is similar to the overriding objective governing the Civil Procedure Rules. The purpose of the overriding objective is to ensure that the Tribunal Procedural Committee observes certain fundamental principles when exercising its powers to make procedural rules, such as, securing that justice is done in proceedings before a tribunal and that the tribunal system is accessible and fair.
141.Schedule 5 makes provision for (Part 1) what the tribunal procedural rules may contain, (Part 2) the creation of a Tribunal Procedure Committee with responsibility for making such rules, (Part 3) the process for making them and (Part 4) the power to amend primary legislation in pursuance of a rule change. It is expected that the Committee will develop a wide-ranging programme of work.
142.Part 1 of Schedule 5 sets out matters which may be covered by Tribunal Procedure Rules. It empowers the Tribunal Procedure Committee to make tribunal procedure rules which include provisions in respect of:
The exercise of concurrent functions (paragraph 2)
Delegation to staff (paragraph (3)
Time limits (paragraph 4)
Repeat applications (paragraph 5)
The tribunal acting of its own initiative (paragraph 6)
The extent to which matters may be decided without a hearing and whether a hearing may be public or private (paragraph 7)
Proceedings without prior notice (paragraph 8)
Representation (paragraph (9)
Evidence and witnesses, including provisions relating to the payment of expenses for those attending hearings (paragraph 10)
Use of information (paragraph 11)
Costs and expenses (paragraph 12)
Set–off and interest (paragraph 13)
Arbitration (paragraph 14)
Correction of decisions and setting aside of decisions on procedural grounds (paragraph 15)
143.This is not an exhaustive list and does not limit the broad power in section 22(1) to make procedural rules. Rather, the Tribunal Procedure Committee will exercise its judgement, within the process set out in Part 3 of Schedule 5, to determine which rules are needed in each jurisdiction. It is not intended that each jurisdiction will have rules that cover every aspect listed. Rather the list in Part 1 includes matters which could be considered an extension of the general provisions in section 22.
144.Paragraph 15, which deals with the correction of decisions and the setting aside of decisions on procedural grounds, does not enable rules to restrict the review powers in sections 9 and 10. Rather, this paragraph allows for rules to allow certain matters to be reviewed otherwise than by a tribunal under sections 9 and 10. For example rules made in reliance on paragraph 15 could provide for a member of staff to correct an accidental error.
145.Part 2 of Schedule 5 provides for the membership of the Tribunal Procedure Committee. The provisions governing the membership and responsibility for appointing members of the Tribunal Procedure Committee are loosely modelled on those for the rule committees making rules of court but are more flexible because of the diverse nature of tribunals. The Committee is intended to consist of core members and additional members appointed as and when required to provide jurisdiction-specific knowledge.
146.The core membership consists of the Senior President or a person nominated by him, three people with experience of practice in tribunals or giving advice to persons involved in tribunal proceedings, a person nominated by the Administrative Justice and Tribunals Council, a judge from each of the tribunals, a tribunal member and a person with experience in and knowledge of the Scottish legal system. The Lord Chancellor’s role is limited to selecting persons with experience of tribunal proceedings or practice and appointing the member selected by the Administrative Justice and Tribunals Council. Consistent with the Concordat, the selection of judicial members falls to either the Lord Chief Justice or the Lord President.
147.Paragraph 24 provides that any additional members are appointed (at the request of the Senior President of Tribunals) by the Lord Chief Justice of England and Wales, the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland. It is expected that additional members will usually be members of the judiciary. The additional members are intended to bring specialist knowledge to the Committee when discussing particular matters.
148.Under paragraph 25, the Lord Chancellor may make changes to the composition of the Committee, but only with the concurrence of the Lord Chief Justice of England and Wales. The concurrence of the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland is necessary where such a change would affect a member appointed to the committee by them. The composition of the Tribunal Procedure Committee may need to vary depending on the jurisdiction for which it is making rules and as jurisdictions transfer in.
149.Part 3 of Schedule 5 details the process by which Tribunal Procedure Rules are to be made. This is consistent with the process for making Civil, Family and Criminal Procedure Rules. The Committee is required to consult before rules are made. In order for the rules to be submitted to the Lord Chancellor they must be approved by the Committee. The Lord Chancellor’s powers once rules are submitted to him are limited to powers to allow or disallow. However, the Lord Chancellor does have the power to specify a purpose which must be achieved by rules. This is to ensure that, although the Tribunal Procedure Committee is independent, the Lord Chancellor is able to set objectives for the rules.
150.Once allowed by the Lord Chancellor, rules made under this process are subject to negative resolution procedure.
151.Part 4 of Schedule 5 gives the Lord Chancellor power to amend, repeal or revoke any Act in pursuance of a rule change. This power is based upon the provisions in the Civil Procedure Act 1997. An order exercising this power is subject to affirmative resolution procedure. The aim of this provision is to ensure that tribunals operate smoothly and without conflicting with legislation on the statute book.
