Scotland Bill

Lord Mackay of Clashfern Excerpts

Tuesday 19th January 2016 Lords Chamber

[Lord Keen of Elie]

That is, as it were, a known unknown at this stage. There are no particular tribunals in mind so far as that is concerned. However, if further tribunals are created, it is contemplated that they should not transfer automatically but should be subject to the same conditionality that is thought appropriate for existing tribunals. It is at that level of generality. It is not contemplated that there is any particular tribunal that will be addressed by that provision. I hope that answers the noble and learned Lord’s question and invite him to withdraw the amendment.

[Lord Mackay of Clashfern (Con)]

On the point made by the noble and learned Lord, Lord Wallace of Tankerness, about taking cases from England, where the delays in particular situations can cause difficulties, and bringing them to Scotland, the definition of a Scottish tribunal in new sub-paragraph (11)(a) is as one,

“that does not have functions in or as regards any other country or territory, except for purposes ancillary to its functions in or as regards Scotland”.

I wonder whether there is any difficulty in relation to what I would have thought was a good idea—namely, to have the possibility of cases being referred to Scotland where that would help scheduling. However, it would be necessary for the law to be applied if a case was transferred to be the law that would be applied before it was transferred.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Mackay of Clashfern. First of all, of course, we are dealing with reserved matters. If we were dealing with immigration, for example—a matter of reserved law—there could be circumstances in which the application of Scots law led to a different outcome from the application of English law. I notice that new sub-paragraph (11) in Clause 37 talks about the meaning of a Scottish tribunal, but that, on the face of it, does not appear to determine the scope of its jurisdiction to hear cases from outside Scotland. It is more a question of what is a Scottish case in that context. That is something that can be looked at, I suggest, in the context of each Order in Council for the transfer of each tribunal. There may be room to facilitate the transfer of cases in the manner suggested. That is something that we will take away and consider.