Tribunals, Courts and Enforcement Bill [HL]

House of Commons

Session 2006 - 07
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Tribunals, Courts and Enforcement Bill [HL]

Tribunals, Courts and Enforcement Bill [HL]
Schedule 4 — Chambers and Chamber Presidents: further provision
Part 2 — Judges and other members of chambers: assignment and jurisdiction
130

      (5)
In this paragraph “the required oaths” means (subject to sub-paragraph
(6))—
(a)
the oath of allegiance, and
(b)
the judicial oath,

as set out in the Promissory Oaths Act 1868 (c. 72).
5
      (6)
Where it appears to the Lord Chancellor that the appointee will carry out
functions under his appointment wholly or mainly in Northern Ireland, the
Lord Chancellor may direct that in relation to the appointee “the required
oaths” means—
(a)
the oath as set out in section 19(2) of the Justice (Northern Ireland)
10
Act 2002 (c. 26), or
(b)
the affirmation and declaration as set out in section 19(3) of that Act.
Part 2
Judges and other members of chambers: assignment and jurisdiction
Assignment is function of Senior President of Tribunals
15
9     (1)
The Senior President of Tribunals has—
(a)
the function of assigning judges and other members of the First-tier
Tribunal (including himself) to chambers of the First-tier Tribunal,
and
(b)
the function of assigning judges and other members of the Upper
20
Tribunal (including himself) to chambers of the Upper Tribunal.
      (2)
The functions under sub-paragraph (1) are to be exercised in accordance
with the following provisions of this Part of this Schedule.
Deemed assignment of Chamber Presidents and Deputy Chamber Presidents
10    (1)
The Chamber President, or a Deputy Chamber President, of a chamber—
25
(a)
is to be taken to be assigned to that chamber;
(b)
may be assigned additionally to one or more of the other chambers;
(c)
may be assigned under paragraph (b) to different chambers at
different times.
      (2)
Paragraphs 11(1) and (2) and 12(2) and (3) do not apply to assignment of a
30
person who is a Chamber President or a Deputy Chamber President.
      (3)
In sub-paragraph (1) “chamber” means chamber of the First-tier Tribunal or
the Upper Tribunal.
Assigning members of First-tier Tribunal to its chambers
11    (1)
Each person who is a judge or other member of the First-tier Tribunal by
35
virtue of appointment under paragraph 1(1) or 2(1) of Schedule 2 or who is
a transferred-in judge, or transferred-in other member, of the First-tier
Tribunal—
(a)
is to be assigned to at least one of the chambers of the First-tier
Tribunal, and
40
(b)
may be assigned to different chambers of the First-tier Tribunal at
different times.

Tribunals, Courts and Enforcement Bill [HL]
Schedule 4 — Chambers and Chamber Presidents: further provision
Part 2 — Judges and other members of chambers: assignment and jurisdiction
131

      (2)
A judge or other member of the First-tier Tribunal to whom sub-paragraph
(1) does not apply—
(a)
may be assigned to one or more of the chambers of the First-tier
Tribunal, and
(b)
may be assigned to different chambers of the First-tier Tribunal at
5
different times.
      (3)
The Senior President of Tribunals may assign a judge or other member of the
First-tier Tribunal to a particular chamber of the First-tier Tribunal only with
the concurrence—
(a)
of the Chamber President of the chamber, and
10
(b)
of the judge or other member.
      (4)
The Senior President of Tribunals may end the assignment of a judge or
other member of the First-tier Tribunal to a particular chamber of the First-
tier Tribunal only with the concurrence of the Chamber President of the
chamber.
15
      (5)
Sub-paragraph (3)(a) does not apply where the judge, or other member,
concerned is not assigned to any of the chambers of the First-tier Tribunal.
      (6)
Sub-paragraphs (3)(a) and (4) do not apply where the judge concerned is
within section 6(1)(a) to (d) (judges of Courts of Appeal, Court of Session
and High Courts).
20
      (7)
Sub-paragraphs (3) and (4) do not apply where the judge concerned is the
Senior President of Tribunals himself.
Assigning members of Upper Tribunal to its chambers
12    (1)
Sub-paragraph (2) applies to a person if—
(a)
he is a judge of the Upper Tribunal by virtue of appointment under
25
paragraph 1(1) of Schedule 3, or
(b)
he is a transferred-in judge of the Upper Tribunal, or
(c)
he is a deputy judge of the Upper Tribunal, or
(d)
he is a member of the Upper Tribunal by virtue of appointment
under paragraph 2(1) of Schedule 3, or
30
(e)
he is a transferred-in other member of the Upper Tribunal.
      (2)
Each person to whom this sub-paragraph applies—
(a)
is to be assigned to at least one of the chambers of the Upper
Tribunal, and
(b)
may be assigned to different chambers of the Upper Tribunal at
35
different times.
      (3)
A judge or other member of the Upper Tribunal to whom sub-paragraph (2)
does not apply—
(a)
may be assigned to one or more of the chambers of the Upper
Tribunal, and
40
(b)
may be assigned to different chambers of the Upper Tribunal at
different times.
      (4)
The Senior President of Tribunals may assign a judge or other member of the
Upper Tribunal to a particular chamber of the Upper Tribunal only with the
concurrence—
45

Tribunals, Courts and Enforcement Bill [HL]
Schedule 4 — Chambers and Chamber Presidents: further provision
Part 2 — Judges and other members of chambers: assignment and jurisdiction
132

(a)
of the Chamber President of the chamber, and
(b)
of the judge or other member.
      (5)
The Senior President of Tribunals may end the assignment of a judge or
other member of the Upper Tribunal to a particular chamber of the Upper
Tribunal only with the concurrence of the Chamber President of the
5
chamber.
      (6)
Sub-paragraph (4)(a) does not apply where the judge, or other member,
concerned is not assigned to any of the chambers of the Upper Tribunal.
      (7)
Sub-paragraphs (4)(a) and (5) do not apply where the judge concerned is
within section 6(1)(a) to (d) (judges of Courts of Appeal, Court of Session
10
and High Courts).
      (8)
Sub-paragraphs (4) and (5) do not apply where the judge concerned is the
Senior President of Tribunals himself.
Policy of Senior President of Tribunals as respects assigning members to chambers etc.
13    (1)
The Senior President of Tribunals must publish a document recording the
15
policy adopted by him in relation to—
(a)
the assigning of persons to chambers in exercise of his functions
under paragraph 9,
(b)
the assigning of persons to act as members of the Asylum and
Immigration Tribunal in exercise of his functions under paragraphs
20
5A and 5B of Schedule 4 to the Nationality, Immigration and Asylum
Act 2002 (c. 41), and
(c)
the nominating of persons to act as members of panels of members
of employment tribunals in exercise of his functions under any such
provision as is mentioned in section 5D(1) of the Employment
25
Tribunals Act 1996 (c. 17).
      (2)
That policy must be such as to secure—
(a)
that appropriate use is made of the knowledge and experience of the
judges and other members of the First-tier Tribunal and Upper
Tribunal, and
30
(b)
that, in the case of a chamber (of the First-tier Tribunal or Upper
Tribunal) whose business consists of, or includes, cases likely to
involve the application of the law of Scotland or Northern Ireland,
sufficient knowledge and experience of that law is to be found
among persons assigned to the chamber.
35
      (3)
No policy may be adopted by the Senior President of Tribunals for the
purposes of sub-paragraph (1) unless the Lord Chancellor concurs in the
policy.
      (4)
The Senior President of Tribunals must keep any policy adopted for the
purposes of sub-paragraph (1) under review.
40
Choosing members to decide cases
14    (1)
The First-tier Tribunal’s function, or the Upper Tribunal’s function, of
deciding any matter in a case before the tribunal is to be exercised by a
member or members of the chamber of the tribunal to which the case is
allocated.
45

Tribunals, Courts and Enforcement Bill [HL]
Schedule 4 — Chambers and Chamber Presidents: further provision
Part 2 — Judges and other members of chambers: assignment and jurisdiction
133

      (2)
The member or members must be chosen by the Senior President of
Tribunals.
      (3)
A person choosing under sub-paragraph (2)—
(a)
must act in accordance with any provision under paragraph 15;
(b)
may choose himself.
5
      (4)
In this paragraph “member”, in relation to a chamber of a tribunal, means a
judge or other member of the tribunal who is assigned to the chamber.
Composition of tribunals
15    (1)
The Lord Chancellor must by order make provision, in relation to every
matter that may fall to be decided by the First-tier Tribunal or the Upper
10
Tribunal, for determining the number of members of the tribunal who are to
decide the matter.
      (2)
Where an order under sub-paragraph (1) provides for a matter to be decided
by a single member of a tribunal, the order—
(a)
must make provision for determining whether the matter is to be
15
decided by one of the judges, or by one of the other members, of the
tribunal, and
(b)
may make provision for determining, if the matter is to be decided
by one of the other members of the tribunal, what qualifications (if
any) that other member must have.
20
      (3)
Where an order under sub-paragraph (1) provides for a matter to be decided
by two or more members of a tribunal, the order—
(a)
must make provision for determining how many (if any) of those
members are to be judges of the tribunal and how many (if any) are
to be other members of the tribunal, and
25
(b)
may make provision for determining—
(i)
if the matter is to be decided by persons who include one or
more of the other members of the tribunal, or
(ii)
if the matter is to be decided by two or more of the other
members of the tribunal,
30

what qualifications (if any) that other member or any of those other
members must have.
      (4)
A duty under sub-paragraph (1), (2) or (3) to provide for the determination
of anything may be discharged by providing for the thing to be determined
by the Senior President of Tribunals, or a Chamber President, in accordance
35
with any provision made under that sub-paragraph.
      (5)
Power under paragraph (b) of sub-paragraph (2) or (3) to provide for the
determination of anything may be exercised by giving, to the Senior
President of Tribunals or a Chamber President, power to determine that
thing in accordance with any provision made under that paragraph.
40
      (6)
Where under sub-paragraphs (1) to (4) a matter is to be decided by two or
more members of a tribunal, the matter may, if the parties to the case agree,
be decided in the absence of one or more (but not all) of the members chosen
to decide the matter.
      (7)
Where the member, or any of the members, of a tribunal chosen to decide a
45
matter does not have any qualification that he is required to have under sub-

Tribunals, Courts and Enforcement Bill [HL]
Schedule 5 — Procedure in First-tier Tribunal and Upper Tribunal
Part 1 — Tribunal Procedure Rules
134

paragraphs (2)(b), or (3)(b), and (5), the matter may despite that, if the parties
to the case agree, be decided by the chosen member or members.
      (8)
Before making an order under this paragraph, the Lord Chancellor must
consult the Senior President of Tribunals.
      (9)
In this paragraph “qualification” includes experience.
5
Schedule 5
Section 22

Procedure in First-tier Tribunal and Upper Tribunal
Part 1
Tribunal Procedure Rules
Introductory
10
1     (1)
This Part of this Schedule makes further provision about the content of
Tribunal Procedure Rules.
      (2)
The generality of section 22(1) is not to be taken to be prejudiced by—
(a)
the following paragraphs of this Part of this Schedule, or
(b)
any other provision (including future provision) authorising or
15
requiring the making of provision by Tribunal Procedure Rules.
      (3)
In the following paragraphs of this Part of this Schedule “Rules” means
Tribunal Procedure Rules.
Concurrent functions
2
Rules may make provision as to who is to decide, or as to how to decide,
20
which of the First-tier Tribunal and Upper Tribunal is to exercise, in relation
to any particular matter, a function that is exercisable by the two tribunals
on the basis that the question as to which of them is to exercise the function
is to be determined by, or under, Rules.
Delegation of functions to staff
25
3     (1)
Rules may provide for functions—
(a)
of the First-tier Tribunal, or
(b)
of the Upper Tribunal,

to be exercised by staff appointed under section 40(1).
      (2)
In making provision of the kind mentioned in sub-paragraph (1) in relation
30
to a function, Rules may (in particular)—
(a)
provide for the function to be exercisable by a member of staff only
if the member of staff is, or is of a description, specified in exercise of
a discretion conferred by Rules;
(b)
provide for the function to be exercisable by a member of staff only
35
if the member of staff is approved, or is of a description approved,
for the purpose by a person specified in Rules.

Tribunals, Courts and Enforcement Bill [HL]
Schedule 5 — Procedure in First-tier Tribunal and Upper Tribunal
Part 1 — Tribunal Procedure Rules
135

Time limits
4
Rules may make provision for time limits as respects initiating, or taking any
step in, proceedings before the First-tier Tribunal or the Upper Tribunal.
Repeat applications
5
Rules may make provision restricting the making of fresh applications
5
where a previous application in relation to the same matter has been made.
Tribunal acting of its own initiative
6
Rules may make provision about the circumstances in which the First-tier
Tribunal, or the Upper Tribunal, may exercise its powers of its own
initiative.
10
Hearings
7
Rules may—
(a)
make provision for dealing with matters without a hearing;
(b)
make provision as respects allowing or requiring a hearing to be in
private or as respects allowing or requiring a hearing to be in public.
15
Proceedings without notice
8
Rules may make provision for proceedings to take place, in circumstances
described in Rules, at the request of one party even though the other, or
another, party has had no notice.
Representation
20
9
Rules may make provision conferring additional rights of audience before
the First-tier Tribunal or the Upper Tribunal.
Evidence, witnesses and attendance
10    (1)
Rules may make provision about evidence (including evidence on oath and
administration of oaths).
25
      (2)
Rules may modify any rules of evidence provided for elsewhere, so far as
they would apply to proceedings before the First-tier Tribunal or Upper
Tribunal.
      (3)
Rules may make provision, where the First-tier Tribunal has required a
person—
30
(a)
to attend at any place for the purpose of giving evidence,
(b)
otherwise to make himself available to give evidence,
(c)
to swear an oath in connection with the giving of evidence,
(d)
to give evidence as a witness,
(e)
to produce a document, or
35
(f)
to facilitate the inspection of a document or any other thing
(including any premises),

for the Upper Tribunal to deal with non-compliance with the requirement as
though the requirement had been imposed by the Upper Tribunal.

Tribunals, Courts and Enforcement Bill [HL]
Schedule 5 — Procedure in First-tier Tribunal and Upper Tribunal
Part 1 — Tribunal Procedure Rules
136

      (4)
Rules may make provision for the payment of expenses and allowances to
persons giving evidence, producing documents, attending proceedings or
required to attend proceedings.
Use of information
11    (1)
Rules may make provision for the disclosure or non-disclosure of
5
information received during the course of proceedings before the First-tier
Tribunal or Upper Tribunal.
      (2)
Rules may make provision for imposing reporting restrictions in
circumstances described in Rules.
Costs and expenses
10
12    (1)
Rules may make provision for regulating matters relating to costs, or (in
Scotland) expenses, of proceedings before the First-tier Tribunal or Upper
Tribunal.
      (2)
The provision mentioned in sub-paragraph (1) includes (in particular)—
(a)
provision prescribing scales of costs or expenses;
15
(b)
provision for enabling costs to undergo detailed assessment in
England and Wales by a county court or the High Court;
(c)
provision for taxation in Scotland of accounts of expenses by an
Auditor of Court;
(d)
provision for enabling costs to be taxed in Northern Ireland in a
20
county court or the High Court;
(e)
provision for costs or expenses—
(i)
not to be allowed in respect of items of a description specified
in Rules;
(ii)
not to be allowed in proceedings of a description so specified;
25
(f)
provision for other exceptions to either or both of subsections (1) and
(2) of section 29.
Set-off and interest
13    (1)
Rules may make provision for a party to proceedings to deduct, from
amounts payable by him, amounts payable to him.
30
      (2)
Rules may make provision for interest on sums awarded (including
provision conferring a discretion or provision in accordance with which
interest is to be calculated).
Arbitration
14
Rules may provide for Part 1 of the Arbitration Act 1996 (c. 23) (which
35
extends to England and Wales, and Northern Ireland, but not Scotland) not
to apply, or not to apply except so far as is specified in Rules, where the First-
tier Tribunal, or Upper Tribunal, acts as arbitrator.
Correction of errors and setting-aside of decisions on procedural grounds
15    (1)
Rules may make provision for the correction of accidental errors in a
40
decision or record of a decision.