Give a date in Tribunals regulations and it could help avoid mistakes, Faculty suggests

17 Dec


Stating a date rather than setting a time limit could help avoid mistakes in requests for permission to appeal decisions of the Scottish Tribunals, the Faculty has suggested.

The Scottish Government has proposed in draft regulations a time limit of 30 days to submit an application.

The Faculty said in a Response to a consultation on the regulations that it would prefer the wording used for the UK Upper Tribunal of “no later than…a month after” the relevant date, to ensure uniformity and to reduce the likelihood of mistakes by persons who deal with both the UK Upper Tribunal and the Upper Tribunal for Scotland.

However, the Faculty went further and stated: “…given that lay representatives may be involved in a tribunal context, we consider that it would be preferable to give parties clear dates to work towards…Although Tribunals may be sympathetic to mistakes, in order to ensure that lay representatives understand what is required, a Tribunal issuing a decision should be required to indicate the actual date by which permission to appeal has to be made.

“In addition, consideration should be given to the issuing of a timetable once permission to appeal has been granted, setting out the relevant dates for lodging of the notice of appeal, response to the notice of appeal and any reply.”

Under further draft regulations, offences would be created in relation to proceedings before the Scottish Tribunals.

The Faculty was concerned with the wording of an offence of making false statements.

It said: “The regulation does not set out the mens rea  of the offence, nor whether the false statement must be material to the application…We consider that the offence proposed by regulation 2(1)(a) should be more specific by requiring, as a minimum, that the false statement is made knowingly or with no honest belief in its truth.”

The Faculty also considered that some re-wording of the Scottish Tribunals rules would be required, to ensure that in certain circumstances people received a clear written warning that they might be committing a criminal offence.

The full Response is here