Act of Sederunt (Fitness Assessment Tribunal Rules) 2016

EXPLANATORY NOTE

(This note is not part of the Act of Sederunt)

This Act of Sederunt makes provision as to the procedure to be followed in tribunals constituted under paragraph 13 of schedule 8 of the Tribunals (Scotland) Act 2014 (asp 10).

Rule 3 provides for the Judicial Office to notify the member concerned that the First Minister has constituted a tribunal, and of its membership.

Rule 4 sets out the investigation process, including the appointment by the tribunal of an investigating officer from a list of persons nominated by the Lord President. It specifies the powers and duties of the investigating officer. Once the investigation is complete, it is for the investigating officer either to recommend that no further procedure is required or to make a recommendation as to further procedure. The investigating officer must state reasons for the recommendation made and provide the material mentioned in rule 4(6)(c). The Judicial Office must provide copies to the member concerned of the recommendation made, the statement of reasons, documents relied upon, and lists thereof and of any productions.

Rule 5 enables the member concerned to apply for further specification of the information contained in the statement of reasons. Such an application must be made within 21 days of the member concerned being provided the relevant documentation under rule 4(7). If the tribunal grants the application, it must direct the investigating officer to provide further specification within 21 days. If it is refused, the tribunal must notify the member concerned within 21 days and give reasons.

Rule 6 allows for the member concerned to lodge a written response to the statement of reasons within 28 days of the statement being provided, the refusal of an application for further specification, or the provision of further specification, whichever of these dates is latest. The tribunal may allow a supplementary written response to be lodged.

Rule 7 provides for the tribunal to consider the investigating officer’s recommendation and statement of reasons and any written response by the member concerned. It must then determine either that the investigation should proceed to a hearing or that no further procedure is required and give reasons for that determination.

Rule 8 relates to representation at hearings. The tribunal case is to be presented by a presenting officer appointed by the tribunal from a list of persons nominated by the Lord President. The member concerned may be represented by a solicitor, an advocate or any other person authorised by the tribunal.

Rule 9 requires the presenting officer and the investigating officer to disclose previously undisclosed information to the member concerned if it is likely to be placed before the tribunal, might materially strengthen the position of the member concerned or weaken the presenting officer’s position. This duty applies until the tribunal reports to the First Minister and the Lord President.

Rule 10 provides for the holding of a preliminary hearing, at which the tribunal may confirm the facts in dispute, determine preliminary matters, make case management directions and fix a hearing under rule 11. A hearing under rule 11 may be fixed to hear legal submissions only, or the leading of evidence may be permitted.

Rule 12 provides for the conduct of hearings. In particular, it specifies that hearings of the tribunal are heard in private, unless the member concerned requests that a hearing is held in public or the circumstances would make holding it in private inappropriate. All hearings must also be recorded, and the tribunal is to deliberate in the absence of any other person.

Rule 13 sets out the powers of the tribunal to regulate its own procedure. In addition to a general power to regulate procedure, it has specific powers to extend or shorten the time for complying with any rule, or any direction that it gives, to permit amendment of documents, to adjourn or postpone a hearing, and to sist proceedings.

Rule 14 specifies the way in which proceedings may be brought to an end. Where the presenting officer considers that it cannot be established that the member concerned is unfit for office, the presenting officer must make a recommendation to the tribunal to that effect, and give reasons. The tribunal may, at any stage, determine that it cannot be established that the member concerned is unfit for office. This may be on the recommendation of the investigating officer or the presenting officer, on a submission by the member concerned, or on its own motion. Where the tribunal makes such a determination, it must report in those terms to the First Minister and the Lord President. In addition, proceedings come to an end if the member concerned ceases to be a member of the Scottish Tribunals.

Rule 15 makes provision about the tribunal’s report. Where the tribunal proposes to make findings of fact on disputed issues, it must give the member concerned and the presenting officer a draft of its findings and invite comments. The tribunal must have regard to any such draft, but need not give the parties a further opportunity to comment on an amended draft. In addition to reporting to the First Minister and the Lord President, the tribunal must send a copy of its report to the member concerned, the President of the Scottish Tribunals and, where applicable, the Chamber President of any chamber to which the member concerned is assigned and the Vice-President of any division of the Upper Tribunal to which the member concerned is assigned.