Part 2: Consultation on Draft Regulations to Transfer the Functions and Members of the SCAP to the Scottish Tribunals and Repeal Existing Regulations.
10. Section 28(2) of the 2014 Act provides the power for the Scottish Ministers to make regulations to transfer the functions of the listed tribunals in Schedule 1 of the 2014 Act, to the First-tier Tribunal only; the Upper Tribunal only; or to the First-tier Tribunal and the Upper Tribunal.
11. Schedule 2 and section 29 of the 2014 Act provides the power for the Scottish Ministers to make regulations to transfer the members of the listed tribunals to the First-tier or Upper Tribunals.
12. The policy intent is for the SCAP to transfer into the Scottish Tribunals structure with their existing functions. Upon transfer the SCAP will be abolished and thereafter first instance decisions will be heard in the First-tier Tribunal General Regulatory Chamber with onward appeal to the Upper Tribunal.
13. All existing members of SCAP will transfer into the Scottish Tribunals as long as they meet the eligibility criteria and also are not subject to the provisions set out in paragraph 14. Chairs of SCAP will transfer in as legal members of the First-tier Tribunal. Other members of the SCAP will transfer in as ordinary members of the First-tier Tribunal with allocation to the General Regulatory Chamber.
14. Paragraph 11 of schedule 9 of the 2014 Act amends the Judicial Pensions and Retirement Act 1993 so that the ordinary and legal members of the Scottish Tribunals are added to the list of offices which are required to retire from office on reaching the age of 70. This brings tribunal members retiral age in line with court judiciary. There is also provision to enable members aged 70 or over to continue in office, on an annual rolling basis, up until the age of 75 if the Scottish Ministers, after consultation with the President of Tribunals, consider it is desirable in the public interest for them to continue to do so.
15. Section 21(1) of the 2014 Act requires each Chamber of the First-tier Tribunal to have one or more Chamber Presidents. Due to the low caseload in SCAP we are proposing to disapply this provision until two more jurisdictions transfer into the First-tier Tribunal and are allocated to the General Regulatory Chamber. We envisage that this will take place within the next couple of years. Until then the President of Tribunals will allocate members if there is an appeal against a decision of the Office of the Scottish Charity Regulator.
16. The draft regulations set out the transitional arrangements that cases in progress on the day of transfer will be continued in the First-tier Tribunal. If a hearing is in progress then it will be completed by the First-tier Tribunal comprised of the same members, where possible. Time limits which have started to run prior to commencement of these regulations and have not expired shall continue to apply.
17. If a party wishes to appeal a decision of the SCAP but has not exercised this right before 30 November 2017 then the appeal route will be to the Upper Tribunal as opposed to the Court of Session. We propose that if a party has already exercised their right of appeal before 30 November 2017 then the appeal will not be affected by the new regulations and will be completed by the Court of Session.
18. The regulations will repeal Schedule 2 of the Charities and Trustee Investment (Scotland) Act 2005 (the 2005 Act), which set up the SCAP. Once the SCAP is transferred into the Scottish Tribunals the relevant sections of the 2014 Act will cover the equivalent provisions.
19. The draft regulations make amendments to existing legislation, replacing references to the SCAP with references to the First-tier Tribunal, and references to the Court of Session with references to the Upper Tribunal.
20. The draft regulations also repeal The Scottish Charity Appeals Panel Rules 2006  and replace those with the new Rules and Procedure for the General Regulatory Chamber Charity Appeals, which replicate the previous rules subject to the alterations set out at Part 3 of this consultation.
Questions on the Transfer of the SCAP
Q1: Do you have any comments on the draft transfer of functions and members Regulations?
Q2: Are you content with the provisions regarding transitional arrangements?
Q3: Are you content with the provisions relating to the transfer of functions and members?
Q4: Do you have any other comments you wish to make?
Email: Emily Adams
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House