Tribunals, Courts and Enforcement Bill [HL]

House of Commons

Session 2006 - 07
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Other Bills before Parliament

Tribunals, Courts and Enforcement Bill [HL]

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 3 — Transfer of tribunal functions
23

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Costs or expenses
(1)
The costs of and incidental to—
(a)
all proceedings in the First-tier Tribunal, and
(b)
all proceedings in the Upper Tribunal,

shall be in the discretion of the Tribunal in which the proceedings take place.
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(2)
The relevant Tribunal shall have full power to determine by whom and to what
extent the costs are to be paid.
(3)
Subsections (1) and (2) have effect subject to Tribunal Procedure Rules.
(4)
In any proceedings mentioned in subsection (1), the relevant Tribunal may—
(a)
disallow, or
10
(b)
(as the case may be) order the legal or other representative concerned
to meet,

the whole of any wasted costs or such part of them as may be determined in
accordance with Tribunal Procedure Rules.
(5)
In subsection (4) “wasted costs” means any costs incurred by a party—
15
(a)
as a result of any improper, unreasonable or negligent act or omission
on the part of any legal or other representative or any employee of such
a representative, or
(b)
which, in the light of any such act or omission occurring after they were
incurred, the relevant Tribunal considers it is unreasonable to expect
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that party to pay.
(6)
In this section “legal or other representative”, in relation to a party to
proceedings, means any person exercising a right of audience or right to
conduct the proceedings on his behalf.
(7)
In the application of this section in relation to Scotland, any reference in this
25
section to costs is to be read as a reference to expenses.
Chapter 3
Transfer of tribunal functions
30
Transfer of functions of certain tribunals
(1)
The Lord Chancellor may by order provide for a function of a scheduled
30
tribunal to be transferred—
(a)
to the First-tier Tribunal,
(b)
to the Upper Tribunal,
(c)
to the First-tier Tribunal and the Upper Tribunal with the question as
to which of them is to exercise the function in a particular case being
35
determined by a person under provisions of the order,
(d)
to the First-tier Tribunal to the extent specified in the order and to the
Upper Tribunal to the extent so specified,
(e)
to the First-tier Tribunal and the Upper Tribunal with the question as
to which of them is to exercise the function in a particular case being
40
determined by, or under, Tribunal Procedure Rules,
(f)
to an employment tribunal,
(g)
to the Employment Appeal Tribunal,

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 3 — Transfer of tribunal functions
24

(h)
to an employment tribunal and the Employment Appeal Tribunal with
the question as to which of them is to exercise the function in a
particular case being determined by a person under provisions of the
order, or
(i)
to an employment tribunal to the extent specified in the order and to the
5
Employment Appeal Tribunal to the extent so specified.
(2)
In subsection (1) “scheduled tribunal” means a tribunal in a list in Schedule 6
that has effect for the purposes of this section.
(3)
The Lord Chancellor may, as respects a function transferred under subsection
(1) or this subsection, by order provide for the function to be further
10
transferred as mentioned in any of paragraphs (a) to (i) of subsection (1).
(4)
An order under subsection (1) or (3) may include provision for the purposes of
or in consequence of, or for giving full effect to, a transfer under that
subsection.
(5)
A function of a tribunal may not be transferred under subsection (1) or (3) if, or
15
to the extent that, the provision conferring the function—
(a)
would be within the legislative competence of the Scottish Parliament
if it were included in an Act of that Parliament, or
(b)
would be within the legislative competence of the Northern Ireland
Assembly if it were included in an Act of that Assembly.
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(6)
Subsection (5) does not apply to—
(a)
the Secretary of State’s function of deciding appeals under section 41 of
the Consumer Credit Act 1974 (c. 39),
(b)
functions of the Consumer Credit Appeals Tribunal,
(c)
the Secretary of State’s function of deciding appeals under section 7(1)
25
of the Estate Agents Act 1979 (c. 38), or
(d)
functions of an adjudicator under section 5 of the Criminal Injuries
Compensation Act 1995 (c. 53) (but see subsection (7)).
(7)
Functions of an adjudicator under section 5 of the Criminal Injuries
Compensation Act 1995, so far as they relate to Scotland, may be transferred
30
under subsection (1) or (3) only with the consent of the Scottish Ministers.
(8)
A function of a tribunal may be transferred under subsection (1) or (3) only
with the consent of the Welsh Ministers if any relevant function is exercisable
in relation to the tribunal by the Welsh Ministers (whether by the Welsh
Ministers alone, or by the Welsh Ministers jointly or concurrently with any
35
other person).
(9)
In subsection (8) “relevant function”, in relation to a tribunal, means a function
which relates—
(a)
to the operation of the tribunal (including, in particular, its
membership, administration, staff, accommodation and funding, and
40
payments to its members or staff), or
(b)
to the provision of expenses and allowances to persons attending the
tribunal or attending elsewhere in connection with proceedings before
the tribunal.

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 3 — Transfer of tribunal functions
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Transfers under section 30: supplementary powers
(1)
The Lord Chancellor may by order make provision for abolishing the tribunal
by whom a function transferred under section 30(1) is exercisable immediately
before its transfer.
(2)
The Lord Chancellor may by order make provision, where functions of a
5
tribunal are transferred under section 30(1), for a person—
(a)
who is the tribunal (but is not the Secretary of State), or
(b)
who is a member of the tribunal, or
(c)
who is an authorised decision-maker for the tribunal,

to (instead or in addition) be the holder of an office specified in subsection (3).
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(3)
Those offices are—
(a)
transferred-in judge of the First-tier Tribunal,
(b)
transferred-in other member of the First-tier Tribunal,
(c)
transferred-in judge of the Upper Tribunal,
(d)
transferred-in other member of the Upper Tribunal, and
15
(e)
deputy judge of the Upper Tribunal.
(4)
Where functions of a tribunal are transferred under section 30(1), the Lord
Chancellor must exercise the power under subsection (2) so as to secure that
each person who immediately before the end of the tribunal’s life—
(a)
is the tribunal,
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(b)
is a member of the tribunal, or
(c)
is an authorised decision-maker for the tribunal,

becomes the holder of an office specified in subsection (3) with effect from the
end of the tribunal’s life (if the person is not then already the holder of such an
office).
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(5)
Subsection (4) does not apply in relation to a person—
(a)
by virtue of the person’s being the Secretary of State, or
(b)
by virtue of the person’s being a Commissioner for the general
purposes of the income tax;

and a reference in subsection (4) to the end of a tribunal’s life is to when the
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tribunal is abolished or (without being abolished) comes to have no functions
(6)
For the purposes of this section, a person is an “authorised decision-maker” for
a tribunal if—
(a)
the tribunal is listed in column 1 of an entry in the following Table, and
(b)
the person is of the description specified in column 2 of that entry.
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(1)
(2)

Tribunal
Authorised decision-maker

Adjudicator to Her Majesty’s
Member of the Adjudicator’s

Land Registry
staff who is authorised by the

Adjudicator to carry out

40

functions of the Adjudicator

which are not of an

administrative character

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 3 — Transfer of tribunal functions
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(1)
(2)

Tribunal
Authorised decision-maker

The Secretary of State as respects
Person who is a member of a

his function of deciding appeals
panel under regulation 24 of the

under section 41 of the
Consumer Credit Licensing

5

Consumer Credit Act 1974 (c. 39)
(Appeals) Regulations 1998

(S.I. 1998/1203)

The Secretary of State as respects
Person appointed, at any time

his function of deciding appeals
after 2005, under regulation

under section 7(1) of the Estate
19(1) of the Estate Agents

10

Agents Act 1979 (c. 38)
(Appeals) Regulations 1981

(S.I. 1981/1518) to hear an

appeal on behalf of the Secretary

of State

(7)
Where a function of a tribunal is transferred under section 30(1), the Lord
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Chancellor may by order provide for procedural rules in force immediately
before the transfer to have effect, or to have effect with appropriate
modifications, after the transfer (and, accordingly, to be capable of being
varied or revoked) as if they were—
(a)
Tribunal Procedure Rules, or
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(b)
employment tribunal procedure regulations, or Appeal Tribunal
procedure rules, within the meaning given by section 42(1) of the
Employment Tribunals Act 1996 (c. 17).
(8)
In subsection (7)—
“procedural rules” means provision (whether called rules or not)—
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(a)
regulating practice or procedure before the tribunal, and
(b)
applying for purposes connected with the exercise of the
function;
“appropriate modifications” means modifications (including additions
and omissions) that appear to the Lord Chancellor to be necessary to
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secure, or expedient in connection with securing, that the procedural
rules apply in relation to the exercise of the function after the transfer.
(9)
The Lord Chancellor may, in connection with provision made by order under
section 30 or the preceding provisions of this section, make by order such
incidental, supplemental, transitional or consequential provision, or provision
35
for savings, as the Lord Chancellor thinks fit, including provision applying
only in relation to cases selected by a member—
(a)
of the First-tier Tribunal,
(b)
of the Upper Tribunal,
(c)
of the Employment Appeal Tribunal, or
40
(d)
of a panel of members of employment tribunals.
(10)
Subsections (1), (2) and (7) are not to be taken as prejudicing the generality of
subsection (9).
32
Power to provide for appeal to Upper Tribunal from tribunals in Wales
(1)
Subsection (2) applies if—
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Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 3 — Transfer of tribunal functions
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(a)
a function is transferred under section 30(1)(a), (c), (d) or (e) in relation
to England but is not transferred under section 30(1) in relation to
Wales, or
(b)
a function that is not exercisable in relation to Wales is transferred
under section 30(1)(a), (c), (d) or (e) in relation to England and,
5
although there is a corresponding function that is exercisable in relation
to Wales, that corresponding function is not transferred under section
30(1) in relation to Wales.
(2)
The Lord Chancellor may by order—
(a)
provide for an appeal against a decision to be made to the Upper
10
Tribunal instead of to the court to which an appeal would otherwise fall
to be made where the decision is made in exercising, in relation to
Wales, the function mentioned in subsection (1)(a) or (as the case may
be) the corresponding function mentioned in subsection (1)(b);
(b)
provide for a reference of any matter to be made to the Upper Tribunal
15
instead of to the court to which a reference would otherwise fall to be
made where the matter arises in exercising, in relation to Wales, the
function mentioned in subsection (1)(a) or (as the case may be) the
corresponding function mentioned in subsection (1)(b).
(3)
The Lord Chancellor may by order provide for an appeal against a decision of
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a scheduled tribunal to be made to the Upper Tribunal, instead of to the court
to which an appeal would otherwise fall to be made, where the decision is
made by the tribunal in exercising a function in relation to Wales.
(4)
In subsection (3) “scheduled tribunal” means a tribunal in a list in Schedule 6
that has effect for the purposes of that subsection.
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(5)
An order under subsection (2) or (3)—
(a)
may include provision for the purposes of or in consequence of, or for
giving full effect to, provision made by the order;
(b)
may include such incidental, supplemental, transitional or
consequential provision or savings as the Lord Chancellor thinks fit.
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Power to provide for appeal to Upper Tribunal from tribunals in Scotland
(1)
Subsection (2) applies if—
(a)
a function is transferred under section 30(1)(a), (c), (d) or (e) in relation
to England (whether or not also in relation to Wales) but is not
transferred under section 30(1) in relation to Scotland,
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(b)
an appeal may be made to the Upper Tribunal against any decision, or
any decision of a particular description, made in exercising the
transferred function in relation to England, and
(c)
no appeal may be made against a corresponding decision made in
exercising the function in relation to Scotland.
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(2)
The Lord Chancellor may by order provide for an appeal against any such
corresponding decision to be made to the Upper Tribunal.
(3)
An order under subsection (2)—
(a)
may include provision for the purposes of or in consequence of, or for
giving full effect to, provision made by the order;
45
(b)
may include such incidental, supplemental, transitional or
consequential provision or savings as the Lord Chancellor thinks fit.

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 3 — Transfer of tribunal functions
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(4)
An order under subsection (2) does not cease to have effect, and power to vary
or revoke the order does not cease to be exercisable, just because either or each
of the conditions in subsection (1)(b) and (c) ceases to be satisfied in relation to
the function and decisions concerned.
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Power to provide for appeal to Upper Tribunal from tribunals in Northern
5
Ireland
(1)
Subsection (2) applies if—
(a)
a function is transferred under section 30(1)(a), (c), (d) or (e) in relation
to England (whether or not also in relation to Wales) but is not
transferred under section 30(1) in relation to Northern Ireland,
10
(b)
an appeal may be made to the Upper Tribunal against any decision, or
any decision of a particular description, made in exercising the
transferred function in relation to England, and
(c)
no appeal may be made against a corresponding decision made in
exercising the function in relation to Northern Ireland.
15
(2)
The Lord Chancellor may by order provide for an appeal against any such
corresponding decision to be made to the Upper Tribunal.
(3)
An order under subsection (2)—
(a)
may include provision for the purposes of or in consequence of, or for
giving full effect to, provision made by the order;
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(b)
may include such incidental, supplemental, transitional or
consequential provision or savings as the Lord Chancellor thinks fit.
(4)
An order under subsection (2) does not cease to have effect, and power to vary
or revoke the order does not cease to be exercisable, just because either or each
of the conditions in subsection (1)(b) and (c) ceases to be satisfied in relation to
25
the function and decisions concerned.
35
Transfer of Ministerial responsibilities for certain tribunals
(1)
The Lord Chancellor may by order—
(a)
transfer any relevant function, so far as that function is exercisable by a
Minister of the Crown—
30
(i)
to the Lord Chancellor, or
(ii)
to two (or more) Ministers of the Crown of whom one is the
Lord Chancellor;
(b)
provide for any relevant function that is exercisable by a Minister of the
Crown other than the Lord Chancellor to be exercisable by the other
35
Minister of the Crown concurrently with the Lord Chancellor;
(c)
provide for any relevant function that is exercisable by the Lord
Chancellor concurrently with another Minister of the Crown to cease to
be exercisable by the other Minister of the Crown.
(2)
In this section “relevant function” means a function, in relation to a scheduled
40
tribunal, which relates—
(a)
to the operation of the tribunal (including, in particular, its
membership, administration, staff, accommodation and funding, and
payments to its members or staff), or

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 3 — Transfer of tribunal functions
29

(b)
to the provision of expenses and allowances to persons attending the
tribunal or attending elsewhere in connection with proceedings before
the tribunal.
(3)
In subsection (2) “scheduled tribunal” means a tribunal in a list in Schedule 6
that has effect for the purposes of this section.
5
(4)
A relevant function may not be transferred under subsection (1) if, or to the
extent that, the provision conferring the function—
(a)
would be within the legislative competence of the Scottish Parliament
if it were included in an Act of that Parliament, or
(b)
would be within the legislative competence of the Northern Ireland
10
Assembly if it were included in an Act of that Assembly.
(5)
Subsection (4) does not apply to any relevant function of the Secretary of
State—
(a)
under section 41 of the Consumer Credit Act 1974 (c. 39) (appeals), or
(b)
under section 7 of the Estate Agents Act 1979 (c. 38) (appeals).
15
(6)
Any reference in subsection (1) to a Minister of the Crown includes a reference
to a Minister of the Crown acting jointly.
(7)
An order under subsection (1)—
(a)
may relate to a function either wholly or in cases (including cases
framed by reference to areas) specified in the order;
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(b)
may include provision for the purposes of, or in consequence of, or for
giving full effect to, the transfer or (as the case may be) other change as
regards exercise;
(c)
may include such incidental, supplementary, transitional or
consequential provision or savings as the Lord Chancellor thinks fit;
25
(d)
may include provision for the transfer of any property, rights or
liabilities of the person who loses functions or whose functions become
shared with the Lord Chancellor.
(8)
An order under subsection (1), so far as it—
(a)
provides under paragraph (a) for the transfer of a function, or
30
(b)
provides under paragraph (b) for a function to become exercisable by
the Lord Chancellor, or
(c)
provides under paragraph (c) for a function to cease to be exercisable
by a Minister of the Crown other than the Lord Chancellor,

may not, after that transfer or other change has taken place, be revoked by
35
another order under that subsection.
(9)
Section 1 of the 1975 Act (power to transfer Ministerial functions) does not
apply to a function of the Lord Chancellor—
(a)
so far as it is a function transferred to the Lord Chancellor under
subsection (1)(a),
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(b)
so far as it is a function exercisable by the Lord Chancellor as a result of
provision under subsection (1)(b), or
(c)
so far as it is a function that has become exercisable by the Lord
Chancellor alone as a result of provision under subsection (1)(c).
(10)
In this section—
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