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Regulation 2(1)

SCHEDULE 1The Scottish Tax Tribunals (Conduct) Rules 2015

The Scottish Tax Tribunals (Conduct and Fitness Assessment Tribunal) Rules 2015

  1. 1.Interpretation

  2. 2.Disciplinary judge

  3. 3.Making a complaint

  4. 4.Time limit

  5. 5.Allegations of criminal conduct

  6. 6.Notification of member of the Scottish Tax Tribunals

  7. 7.Initial assessment of complaint

  8. 8.Consideration by disciplinary judge

  9. 9.Referral to a nominated judge

  10. 10.Investigation and report

  11. 11.Procedure and conduct of investigation

  12. 12.Review by disciplinary judge

  13. 13.Substantiated complaint: disciplinary action

  14. 14.Notification of outcome, etc.

  15. 15.Withdrawal of complaint

  16. 16.Consideration of matters in absence of a complaint

  17. 17.Ceasing to hold office

Interpretation

1.  In these Rules—

“President” means the President of the Scottish Tax Tribunals; and

“RSTPA 2014” means the Revenue Scotland and Tax Powers Act 2014.

Disciplinary judge

2.  The Scottish Ministers are to appoint a judge of the Inner House of the Court of Session (to be known as “the disciplinary judge”) for the purposes of—

(a)supervising the operation generally of these Rules and reporting to the Scottish Ministers about that matter as appropriate; and

(b)carrying out the other functions specified by these Rules.

Making a complaint

3.—(1) A complaint is validly made where a complaint document is received by the Scottish Ministers.

(2) A “complaint document” is a document in writing which—

(a)is legible;

(b)contains an allegation of misconduct on the part of a named or identifiable member of the Scottish Tax Tribunals; and

(c)states the name, address and telephone number of the person who is making the complaint.

(3) A complaint document is to be accompanied by all documents within the control of the person complaining upon which the person seeks to rely in making the allegation.

(4) For the purposes of this rule—

(a)a document may be sent by any method which the Scottish Ministers have indicated to be an acceptable means of sending it;

(b)if sent by an electronic means indicated to be acceptable a document is to be treated as valid only if it is capable of being used for subsequent reference.

(5) A complaint is not validly made where the complaint document (or any communication associated with it) indicates that the person complaining does not want the member of the Scottish Tax Tribunals against whom the complaint is made to see a copy of the complaint document or any document accompanying it.

Time limit

4.—(1) Subject to this rule, the Scottish Ministers are to dismiss any allegation of misconduct in a complaint document which founds on anything occurring more than 3 months before the date on which the complaint was received.

(2) The person complaining may make a case in writing to the Scottish Ministers that there are exceptional circumstances which justify allowing the allegation to proceed.

(3) Where such a case is not made at the time of making the complaint, the Scottish Ministers are to write to the person inviting him or her, by such date as is specified, to make such a case.

(4) Where such a case is made, it is to be put before the disciplinary judge and he or she is to then decide whether the allegation is to be allowed to proceed.

(5) Where an allegation is dismissed under this rule, the Scottish Ministers are to write to the person complaining to that effect.

Allegations of criminal conduct

5.—(1) This rule applies to an allegation which is not dismissed under rule 4.

(2) If it appears to the Scottish Ministers that the allegation is of an act or omission which may constitute a criminal offence—

(a)further consideration under these Rules is suspended until—

(i)the relevant prosecutor indicates that no criminal proceedings are to be taken; or

(ii)any such proceedings have been concluded; and

(b)the Scottish Ministers are to write to the person complaining to that effect.

Notification of member of the Scottish Tax Tribunals

6.—(1) This rule applies to an allegation—

(a)which is not dismissed under rule 4; and

(b)whose consideration is not currently suspended under rule 5.

(2) The Scottish Ministers are to send to the member of the Scottish Tax Tribunals—

(a)a document (which may be the complaint document) containing the allegation;

(b)all information about the allegation which is in or accompanied the complaint document.

Initial assessment of complaint

7.—(1) This rule applies to an allegation once it is sent to the member of the Scottish Tax Tribunals under rule 6.

(2) The Scottish Ministers are to carry out an initial assessment of the allegation.

(3) If the Scottish Ministers consider the allegation falls into paragraph (4), they are to dismiss the allegation.

(4) An allegation falls into this paragraph if—

(a)it does not contain sufficient information to enable a proper understanding of the grounds of the allegation to be achieved;

(b)it is about a judicial decision;

(c)it raises a matter which has already been dealt with (whether under these Rules or otherwise), and does not present any material new evidence; or

(d)it raises a matter which falls within the functions of the Judicial Complaints Reviewer.

(5) Where a complaint is dismissed under paragraph (3), the Scottish Ministers are to write to the person complaining and the member of the Scottish Tax Tribunals to that effect.

(6) If it appears to the Scottish Ministers that the allegation relates to judicial proceedings which are not concluded, they are to refer the allegation to the disciplinary judge for advice as to whether it would be appropriate for consideration under these Rules to continue before the judicial proceedings are concluded.

(7) Where the disciplinary judge advises that it would be inappropriate for that to occur—

(a)no further action is to be taken under these Rules until the proceedings have been concluded; and

(b)the Scottish Ministers are to write to the person complaining and to the member of the Scottish Tax Tribunals to that effect.

(8) Where an allegation is not dismissed under paragraph (3) and its consideration is not suspended under paragraph (7), the Scottish Ministers are to write to the person complaining, and to the member of the Scottish Tax Tribunals, to inform them of that fact and of the next step under these Rules.

Consideration by disciplinary judge

8.—(1) This rule applies to an allegation—

(a)which is not dismissed under rule 7; and

(b)whose consideration is not currently suspended under that rule.

(2) The allegation is to be considered by the disciplinary judge in accordance with the following paragraphs.

(3) If the disciplinary judge is of the view that the allegation falls into paragraph (4), he or she is to dismiss the allegation and is to inform the Scottish Ministers accordingly.

(4) An allegation falls into this paragraph if—

(a)it does not contain sufficient information to enable a proper understanding of the grounds of the allegation to be achieved;

(b)it is about a judicial decision;

(c)it raises a matter which has already been dealt with (whether under these Rules or otherwise) and does not present any material new evidence;

(d)it raises a matter which falls within the functions of the Judicial Complaints Reviewer;

(e)it is vexatious;

(f)it is without substance; or

(g)it is insubstantial, that is to say that even if substantiated, it would not require any disciplinary action to be taken.

(5) In forming his or her view as to whether paragraph (4)(f) or (g) applies, the disciplinary judge is to take due account of the extent to which the conduct concerned complies with any relevant guidance relating to the conduct of members of the Scottish Tax Tribunals issued by the President under section 59 of RSTPA 2014.

(6) Where a complaint is dismissed under paragraph (3), the Scottish Ministers are to write to the person complaining and the member of the Scottish Tax Tribunals to that effect.

(7) If the disciplinary judge is of the view that one or more allegations in a complaint fall outside paragraph (4), he or she is to go on to consider whether paragraph (8) applies and is to inform the Scottish Ministers accordingly.

(8) This paragraph applies where the disciplinary judge thinks that the allegation, if substantiated, would raise a possible question of fitness for office.

(9) Where the Scottish Ministers are informed that paragraph (8) applies, further consideration under these Rules is suspended until the Scottish Ministers decide whether to establish a fitness assessment tribunal to consider the fitness for office of the member of the Scottish Tax Tribunals.

(10) In the event that the Scottish Ministers decide to establish a fitness assessment tribunal, consideration under these Rules is to cease; and the Scottish Ministers are to write to the person complaining, to the member of the Scottish Tax Tribunals and to the President to that effect.

Referral to a nominated judge

9.—(1) This rule applies to an allegation—

(a)which is not dismissed under rule 8; and

(b)whose consideration is not currently suspended under that rule.

(2) The Scottish Ministers are to refer the allegation to a judge nominated by the disciplinary judge.

(3) The nominated judge is to be a judge of the Court of Session.

(4) Where on initial consideration of the allegation the nominated judge thinks that the matter may be capable of resolution to the satisfaction of the person complaining without further investigation, he or she may communicate with the person complaining and the member of the Scottish Tax Tribunals as he or she thinks fit with a view to securing that outcome.

(5) Where that outcome is achieved, the nominated judge is to write to the Scottish Ministers to that effect and consideration under these Rules is to cease.

Investigation and report

10.—(1) This rule applies to an allegation referred to a nominated judge which is incapable of resolution under rule 9(4).

(2) The nominated judge is to investigate the allegation and to determine—

(a)the facts of the matter;

(b)whether the allegation is substantiated (or substantiated in part); and if so, to recommend whether the President should exercise a power mentioned in paragraph 24(1) of Schedule 2 to the RSTPA 2014 or take other action.

(3) The report of the nominated judge is to—

(a)be in writing;

(b)contain reasons for its conclusions; and

(c)be submitted to the disciplinary judge.

(4) In deciding whether an allegation is to any extent substantiated and in making any recommendation in consequence the nominated judge is to take due account of the extent to which the conduct concerned complies with any relevant guidance relating to the conduct of member of the Scottish Tax Tribunals issued by the President under section 59 of RSTPA 2014.

Procedure and conduct of investigation

11.—(1) For the purposes of the investigation the nominated judge may—

(a)make such inquiries into the allegation as he or she considers appropriate;

(b)obtain and consider any documents which appear to be relevant;

(c)interview any persons he or she considers appropriate.

(2) The nominated judge is to—

(a)give an interviewee reasonable notice of the date and time of the interview;

(b)permit an interviewee to be accompanied by a person of his or her choosing for the doing of such of the following for the interviewee as the interviewee requires —

(i)providing moral support;

(ii)helping to manage papers;

(iii)taking notes;

(iv)offering advice.

(3) The nominated judge is to arrange for any interview to be recorded by equipment which records digitally on an appropriate storage medium.

(4) The member of the Scottish Tax Tribunals is to comply with a request that he or she be interviewed.

(5) The procedure and conduct of an investigation is such (consistent with respecting the principles of fairness and natural justice) as the nominated judge thinks fit; but—

(a)the member of the Scottish Tax Tribunals is to be afforded the opportunity to submit a written response to the allegation;

(b)the person complaining and the member of the Scottish Tax Tribunals are each to be afforded the opportunity to submit written comments on any information obtained by the nominated judge which he or she has not previously seen;

(c)so far as the determination of questions of fact is concerned—

(i)the investigation is to be conducted with the aim of ascertaining, so far as reasonably possible, the truth;

(ii)findings of fact are to be made on the balance of probabilities;

(d)so far as possible, the investigation is to be conducted without disclosure to third parties of the identity of the person complaining or the member of the Scottish Tax Tribunals.

(6) Before the investigation starts the nominated judge is to prepare and issue to the person complaining and the member of the Scottish Tax Tribunals a statement of the procedure he or she has decided on.

(7) Where, after the investigation starts, the nominated judge wishes to depart from that procedure in a material way, he or she is to inform the person complaining and the member of the Scottish Tax Tribunals in writing before proceeding.

(8) The nominated judge is to make a note of the substance of all conversations in the course of the investigation which are material to it and is to create and maintain a file containing—

(a)those notes;

(b)all documents relevant to the investigation; and

(c)all recordings of interviews carried out in the course of the investigation.

Review by disciplinary judge

12.—(1) This rule applies where the nominated judge has reported under rule 10.

(2) The disciplinary judge is to review the determinations in the report.

(3) Having reviewed the determinations, the disciplinary judge may require that the nominated judge reconsiders any of them.

(4) Such a requirement is to be in writing.

(5) For the purposes of reconsidering a determination, the nominated judge may—

(a)make such further inquiries into the allegation as he or she considers appropriate;

(b)obtain and consider any further documents which appear to be relevant;

(c)interview (or re-interview) any persons he or she considers appropriate.

(6) Paragraphs (2) and (3) of rule 11 apply to an interview under paragraph (5)(c) as they apply to an interview conducted under paragraph (1)(c) of that rule.

(7) The nominated judge is to make a note of the substance of all conversations in the course of reconsideration of a determination which are material to it and is to update the nominated judge’s file with—

(a)those notes;

(b)all additional documents relevant to the reconsideration;

(c)all recordings of interviews carried out in the course of the reconsideration.

(8) Having carried out all reconsiderations required by the disciplinary judge, the nominated judge is to resubmit his or her report.

(9) In relation to any determination which the nominated judge was required to reconsider, the report is to contain statements of—

(a)what the nominated judge did in reconsidering the determination;

(b)what the outcome of the reconsideration was.

Substantiated complaint: disciplinary action

13.—(1) The disciplinary judge is to send to the Scottish Ministers and the President—

(a)where no requirement is imposed under rule 12(3), a copy of the report submitted under rule 10(3)(c);

(b)in any other case, a copy of the report submitted under rule 12(8).

(2) Paragraph (3) applies where—

(a)the report finds the allegation to be substantiated (or substantiated in part);

(b)the report recommends that the President should exercise a power mentioned in paragraph 24(1) of Schedule 2 to the RSTPA 2014; and

(c)the President proposes to exercise a power mentioned in that provision.

(3) The President is to write to the member of the Scottish Tax Tribunals who is the subject of the report inviting him or her to make written representations.

(4) The President’s letter is to contain or be accompanied by such information (including where appropriate the report) as he or she considers to be appropriate for the purpose of giving the member of the Scottish Tax Tribunals a fair opportunity to make any representations.

(5) The member of the Scottish Tax Tribunals who is the subject of the report is to make any representations by such date as is specified in the invitation.

(6) The President is to consider any representations before deciding whether to exercise a power.

(7) Where the member of the Scottish Tax Tribunals who is the subject of the report is the President—

(a)paragraph (1) does not require a copy of the report to be sent to the President; and

(b)if the report finds the allegation to be substantiated (or substantiated in part) and the Scottish Ministers propose to take the action specified in paragraph (8), paragraphs (3) to (6) apply subject to the modifications that—

(i)references to the President are to be read as references to the Scottish Ministers; and

(ii)the reference in paragraph (6) to “exercise a power” is to be read as a reference to “take the action specified in paragraph (8)”.

(8) The action specified is the Scottish Ministers giving the President—

(a)formal advice;

(b)a formal warning; or

(c)a reprimand.

Notification of outcome, etc.

14.—(1) This rule applies where—

(a)the President has received a report under rule 13(1); and

(b)the President has taken all action (if any) which he or she proposes to take in consequence.

(2) The Scottish Ministers are to write to the person complaining to inform the person of—

(a)the outcome of the investigation of the complaint; and

(b)the action (if any) taken by the President in consequence.

(3) The Scottish Ministers’ letter is to contain or be accompanied by such information as the Scottish Ministers consider to be appropriate for the purpose of giving the person complaining a fair understanding of the matters mentioned in paragraph (2)(a) and (b).

(4) Except where the President has already done so in pursuance of rule 13, he or she is to write to the member of the Scottish Tax Tribunals who is the subject of the report to inform him or her of the matters mentioned in paragraph (2)(a) and (b).

(5) After paragraphs (2) and (4) have been complied with, the President may publish or disclose to any person such information concerning the whole matter (including the identity of the person complaining or the member of the Scottish Tax Tribunals who is the subject of the report or both) as he or she considers to be appropriate.

(6) Where the member of the Scottish Tax Tribunals who is the subject of the report is the President, this rule does not apply except for paragraphs (2) to (5) which apply subject to the modification that references to the President are to be taken to be references to the Scottish Ministers.

Withdrawal of complaint

15.—(1) A person complaining may, by writing to the Scottish Ministers to that effect, withdraw the complaint at any time before the President has received a report about it under rule 13(1).

(2) Where a complaint is withdrawn before it is referred to a nominated judge under rule 9, the disciplinary judge is to consider whether further consideration of an allegation of misconduct in it is appropriate.

(3) If so, the allegation is to continue to be considered under these Rules as if the complaint had not been withdrawn.

(4) Where a complaint is withdrawn after it is referred to a nominated judge under rule 9, the nominated judge is to consider whether further investigation of an allegation of misconduct in it is appropriate.

(5) If so, the allegation is to continue to be investigated under these Rules as if the complaint had not been withdrawn.

(6) Where an allegation is continuing to be investigated by virtue of paragraph (3) or (5), any requirement in these Rules or in the statement of the procedure decided on under rule 11(6) to communicate a matter to or to seek comments from the person complaining ceases to apply.

Consideration of matters in absence of a complaint

16.—(1) Paragraph (2) applies where no complaint is validly made under these Rules but the disciplinary judge receives information from any source which suggests to him or her that consideration under these Rules of an allegation of misconduct is appropriate.

(2) The allegation is to be considered under these Rules (with the necessary modifications to reflect the lack of a person complaining) as if—

(a)a complaint containing it had been made validly under rule 3; and

(b)rule 4 did not apply.

Ceasing to hold office

17.  Where a member of the Scottish Tax Tribunals against whom a complaint under these Rules has been made ceases to hold office or dies, consideration of the complaint under these Rules is to cease.