Under section 8 of the Tribunals and Inquiries Act 1992 no power of a Minister, the National Assembly for Wales, the Lord President of the Court of Session, the Commissioners of Inland Revenue or the Foreign Compensation Commission to make, approve, confirm or concur in procedural rules for certain tribunals is exercisable except after consultation with the Council; a similar obligation to consult the Council is placed on the Treasury. Rules made after such consultation usually state that consultation has taken place. The tribunals concerned are those which are listed in Schedule 1 to the Tribunals and Inquiries Act 1992 as amended, referred to hereafter as "scheduled tribunals". Similarly, the Lord Chancellor and the Scottish Ministers are under a statutory obligation to consult the Council with regard to procedural rules for statutory inquiries. Where consultation is mandatory, it is necessary for instruments containing the proposed rules to be submitted to the Council in draft form before they are made.
Before seeking the Council's advice on procedural rules the Council
recommend those responsible for drafting them to consult and make
use of, so far as may be appropriate, their Guide to Drafting Tribunal
Rules
(November 2003).
Consultation on proposals for primary legislation affecting the rights of the citizen which may require consideration of whether, and in what form, new adjudicative procedures are necessary or desirable is also welcomed by the Council. Again, the Council recommend consultation with them on such proposals at an early stage in their formulation.
The Council expect that Departments consulting them will always allow them as much time as possible to prepare and submit their comments. This is particularly important when consultation is mandatory and the instrument will state that such consultation has taken place. The Council meet monthly (except in August) and Departments will therefore understand that, if considered advice on any important matter is required, certain minimum periods of consultation are necessary. The Council suggest that the following should be regarded as the optimum period for consultation:
Where, for unavoidable reasons, consultation has to be completed in a shorter time, the minimum periods which will enable the Council to give proper consideration to proposals may be taken to be three weeks and four weeks respectively. If these suggested minimum periods cannot be adhered to and an explanation is given to the Council, the Council will endeavour to complete the consultation process in such time as may be available. In cases of real emergency, the Council do not preclude other means of consultation through their Secretariat, but any advice so given is subject to the endorsement of the Council with such further comments as they may wish to make.
The Council are very conscious of the constraints imposed on Departments by, for example, the Parliamentary time-table. They consider however that, if difficulty is foreseen about meeting the recommended minimum periods, consultation need not be delayed until a full draft of the new legislation has been produced but in suitable cases may be initiated at an earlier stage, perhaps with regard to specific provisions. Indeed, particularly with regard to non-mandatory consultations, the Council suggest that the best time for consultation will often be when proposals have taken reasonably firm shape but before Ministers are committed; the Council may be able to suggest means of solving an adjudication problem which may not have occurred to the Department, e.g. by amending the powers of an existing tribunal to enable it to undertake the work rather than by creating a new tribunal.
In submitting draft instruments to the Council in cases of mandatory consultation, a copy of the draft should be sent to the Council with an explanatory statement and any necessary covering letter. Where proposals for primary legislation are concerned, a letter will usually suffice, although material such as draft clauses or instructions to Parliamentary Counsel is particularly helpful.
The Council's comments will be submitted in writing. This may be supplemented, if necessary, by further correspondence or by oral discussion with members of the Council or their Secretariat.
It is usual for the outcome of consultations between Departments and the Council to be reported in the Council's Annual Report, but in every case the accuracy of such reports is cleared with the Departments concerned before publication. Where consultation has taken place on a confidential basis, that confidence is respected.
Where the Council have, when consulted, expressed views on an important question of principle, and it is intended to inform Parliament or the public that they have been consulted, the Council trust that the general tenor of their advice will be stated at that time.
It will be seen from the above that the Council attach great importance to the following points:
