Commentary on provisions of Act Section 39: Tribunals
This section amends Part 3 of Schedule 5 (reserved matters) to the Scotland Act 1998 ("the 1998 Act") by inserting new paragraph 2A. New paragraph 2A will allow provision to be made for tribunal functions relating to reserved matters in Scottish cases to be exercised by a Scottish tribunal. These tribunals will only have functions in or as regards Scotland. The insertion of paragraph 2A will not affect any matters where the Scottish Parliament already has legislative competence.
	It is anticipated that the transfer of functions from the reserved tribunals to the specified tribunals in Scotland would take place through a two-stage process. First, an Order in Council would be made to specify the functions which could be transferred, along with any conditions or restrictions on the competence of the Scottish Parliament in legislating in relation to the transfer of those functions to the tribunals and the carrying out of those functions by the specified Scottish tribunal. This would give the Scottish Parliament competence to legislate to transfer the specified functions to the specified tribunal. The Scottish Parliament would then have to effect the transfer of the relevant functions to that Scottish tribunal. It is possible that there will be UK tribunals whose functions are neither subject to qualified transfer nor excluded from transfer. It is expected that these situations will arise infrequently. Provision could be made by UK Parliament for the transfer of the functions of these tribunals by the Scottish Parliament by providing for a definition of "Scottish cases" under paragraph 2A(2) that would apply to them.
	As set out in the Command Paper "Scotland in the United Kingdom: An enduring settlement", this two-stage process will need to be operated in collaboration with the Scottish Government and the judiciary in both Scotland and England & Wales. It is anticipated given the range of subject areas and tribunals that will need to be discussed and the timetable for the implementation of the Tribunals (Scotland) Act 2014, that the transfer of reserved functions to tribunals in Scotland will be dealt with in tranches. Paragraph 2A allows sufficient flexibility for this to happen.
	Subsection (1) of section 39 inserts the new paragraph 2A into Part 3 of Schedule 5 to the 1998 Act.
	Paragraph 2A(1) makes clear that Schedule 5 to the 1998 Act does not prevent the Scottish Parliament legislating to transfer to Scottish tribunals functions relating to reserved matters where those functions relate to "Scottish cases".
	Sub-paragraph (2) provides that Her Majesty will, by Order in Council, set out what constitutes "Scottish cases" for these purposes. It is anticipated that given the variety of work undertaken by the reserved tribunals that different definitions of "Scottish cases" will be required for each potential transfer. For example, the definition of "Scottish cases" in relation to welfare benefit appeals is likely to differ to that used for employment appeals. This power, taken with section 113(2) of the 1998 Act provides the necessary flexibility.
	Sub-paragraph (3) makes clear that the power in sub-paragraph (1) does not apply to any functions that are expressly excluded from transfer. These excluded functions are listed in sub-paragraph (10) and, where necessary, further definitions are found in sub-paragraph (11).
	Sub-paragraph (4) introduces the concept of "qualified transfer". Where tribunal functions are subject to qualified transfer, the transfer of those functions in legislation made by the Scottish Parliament must be in accordance with the provisions made by Her Majesty by Order in Council under this sub-paragraph. The tribunal functions that are subject to qualified transfer are listed in sub-paragraph (6).
	Sub-paragraph (5) makes further provision for the purposes of sub-paragraph (4). Sub-paragraph (5)(a) and (b) provides that an Order in Council made under sub-paragraph (4) must specify the tribunal functions to which it relates and the Scottish tribunal to which those functions may be transferred. Sub-paragraph (5)(c) enables provision to be included in such an Order in Council where it is considered by Her Majesty to be necessary or expedient for the purposes of or in consequence of the transfer of the functions and their exercised by the relevant Scottish tribunal. Sub-paragraph (8) provides a non-exhaustive list of the provision which may be included in an Order in Council by virtue of sub-paragraph (5)(c).
	Sub-paragraph (6) provides that the functions of the following tribunals are subject to qualified transfer:
the First-tier Tribunal and the Upper Tribunal, both of which were established under the Tribunals, Courts and Enforcement Act 2007,
an employment tribunal or the Employment Appeal Tribunal,
any tribunals listed in Schedule 1 to the Tribunals and Inquiries Act 1992, and
any tribunals listed in Schedule 6 to the 2007 Act (ones which have not been transferred into the unified tribunal structure established by the 2007 Act).
	Sub-paragraph (7) clarifies that sub-paragraph (6) applies to any tribunal added to Schedule 1 to the 1992 Act or Schedule 6 to the 2007 Act after paragraph 2A comes into force.
	Sub-paragraph (8) sets out some of the matters which may be included in an Order in Council under sub-paragraph (5)(c). These could include provision modifying the functions that are to be transferred or imposing conditions or restrictions on the rules of procedure of the Scottish tribunal, as well as conditions necessary to ensure that the operation of the functions in respect of that tribunal relevant to the delivery of the reserved policy remain consistent. This would also enable, where necessary, provisions to be made in the interest of national security.
	The reserved tribunals that are expected to be subject to paragraph 2A, range from those dealing with individuals challenging decisions of the state on personal welfare benefit claims to claims against private sector employers for breach of contract. As such, the matters considered by and the potential limits, constraints and requirements on the exercise of relevant functions are likely to differ depending upon the matters being heard.
	Sub-paragraph (9) clarifies that sub-paragraph (8) does not exhaustively describe, or otherwise limit, the provision which can be made by an Order in Council under sub-paragraph (5)(c).
	Sub-paragraph (10) sets out the functions which excluded from transfer. These include the functions of any "national security tribunal" (further defined in sub-paragraph (11)), the functions of regulators, such as the Civil Aviation Authority and the Office of Road and Rail, and the functions of the Comptroller-General of Patents, Designs and Trade Marks.
	Sub-paragraph (11) defines key terms used in paragraph 2A.
	The Order in Council making powers conferred under paragraph 2A are in addition to, and do not limit, the powers conferred by sections 30 and 113 of the Scotland Act 1998 (sub-paragraph (12)).
	Subsection (2) of section 39 amends Schedule 7 to 1998 Act to set out the approval mechanism required for an Order in Council made under new paragraph 2A. No recommendation can be made to Her Majesty in Council to make such an Order until a draft of it has been laid before and approved by both the UK and Scottish Parliaments.
	Subsections (3) to (7) of section 39 insert two additional reserved tribunals into the list of tribunals in Schedule 1 to the Tribunals and Inquiries Act 1992. These are persons appointed under section 27A(1)(a) of the Registered Designs Act 1949 and section 77(1) of the Trade Marks Act 1994, who hear certain appeals from the Comptroller-General of Patents, Designs and Trade Marks, and the Company Names Adjudicators.