Paragraph 22(1) of schedule 2 to the Revenue Scotland and Tax Powers Act 2014 provides that the Scottish ministers may make rules for the purposes of, or in connection with, the investigation and determination of any matter concerning the conduct of members of the Scottish tax tribunals, and the review of any such determination. That power is relied on to make provision in rule 13 of the conduct rules to the effect that, following receipt of a report determining a conduct matter in relation to the president of the tax tribunals, the Scottish ministers may give the president formal advice, a formal warning or a reprimand.
Conduct matters are dealt with in paragraphs 21 to 23 of schedule 2 to the 2014 act, while disciplinary matters such as reprimands, warnings and suspension of members are dealt with in paragraphs 24 to 26. By virtue of paragraph 20(2) of schedule 2, paragraphs 21 to 23 apply expressly to the president’s position, but the 2014 act itself is silent on the application of paragraphs 24 to 26 to the same position. Accordingly it would appear that the provisions in the act concerning disciplinary action, which follow on from an investigation and recommendation in accordance with the conduct rules, do not expressly apply to the president.
As such, the use of the power in paragraph 22(1) of schedule 2 to the act to make provision enabling the Scottish ministers to take disciplinary action in relation to the president appears to be inconsistent with other provisions made in the act.
The committee may therefore consider that there appears to be an unusual or unexpected use of the power in paragraph 22(1) of schedule 2, to provide in the conduct rules that the Scottish ministers, following receipt of a report determining a conduct matter in relation to the president, may give the president formal advice, a formal warning or a reprimand.
As rule 13(8), when read with rule 13(7)(b) of the Scottish Tax Tribunals (Conduct) Rules 2015 in schedule 1 to the instrument, has been made by what appears to be an unusual or unexpected use of the powers conferred by the parent statute, does the committee agree to draw the instrument to the attention of the Parliament on the committee’s reporting ground (g)?
Members indicated agreement.