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]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
5

7
Chambers: jurisdiction and Presidents
(1)
The Lord Chancellor may, with the concurrence of the Senior President of
Tribunals, by order make provision for the organisation of each of the First-tier
Tribunal and the Upper Tribunal into a number of chambers.
(2)
There is—
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(a)
for each chamber of the First-tier Tribunal, and
(b)
for each chamber of the Upper Tribunal,

to be a person, or two persons, to preside over that chamber.
(3)
A person may not at any particular time preside over more than one chamber
of the First-tier Tribunal and may not at any particular time preside over more
10
than one chamber of the Upper Tribunal (but may at the same time preside
over one chamber of the First-tier Tribunal and over one chamber of the Upper
Tribunal).
(4)
A person appointed under this section to preside over a chamber is to be
known as a Chamber President.
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(5)
Where two persons are appointed under this section to preside over the same
chamber, any reference in an enactment to the Chamber President of the
chamber is a reference to a person appointed under this section to preside over
the chamber.
(6)
The Senior President of Tribunals may (consistently with subsections (2) and
20
(3)) appoint a person who is the Chamber President of a chamber to preside
instead, or to preside also, over another chamber.
(7)
The Lord Chancellor may (consistently with subsections (2) and (3)) appoint a
person who is not a Chamber President to preside over a chamber.
(8)
Schedule 4 (eligibility for appointment under subsection (7), appointment of
25
Deputy Chamber Presidents and Acting Chamber Presidents, assignment of
judges and other members of the First-tier Tribunal and Upper Tribunal, and
further provision about Chamber Presidents and chambers) has effect.
(9)
Each of the Lord Chancellor and the Senior President of Tribunals may, with
the concurrence of the other, by order—
30
(a)
make provision for the allocation of the First-tier Tribunal’s functions
between its chambers;
(b)
make provision for the allocation of the Upper Tribunal’s functions
between its chambers;
(c)
amend or revoke any order made under this subsection.
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8
Senior President of Tribunals: power to delegate
(1)
The Senior President of Tribunals may delegate any function he has in his
capacity as Senior President of Tribunals—
(a)
to any judge, or other member, of the Upper Tribunal or First-tier
Tribunal;
40
(b)
to staff appointed under section 40(1).
(2)
Subsection (1) does not apply to functions of the Senior President of Tribunals
under section 7(9).

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
6

(3)
A delegation under subsection (1) is not revoked by the delegator’s becoming
incapacitated.
(4)
Any delegation under subsection (1) that is in force immediately before a
person ceases to be Senior President of Tribunals continues in force until varied
or revoked by a subsequent holder of the office of Senior President of
5
Tribunals.
(5)
The delegation under this section of a function shall not prevent the exercise of
the function by the Senior President of Tribunals.
Review of decisions and appeals
9
Review of decision of First-tier Tribunal
10
(1)
The First-tier Tribunal may review a decision made by it on a matter in a case,
other than a decision that is an excluded decision for the purposes of section
11(1) (but see subsection (9)).
(2)
The First-tier Tribunal’s power under subsection (1) in relation to a decision is
exercisable—
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(a)
of its own initiative, or
(b)
on application by a person who for the purposes of section 11(2) has a
right of appeal in respect of the decision.
(3)
Tribunal Procedure Rules may—
(a)
provide that the First-tier Tribunal may not under subsection (1) review
20
(whether of its own initiative or on application under subsection (2)(b))
a decision of a description specified for the purposes of this paragraph
in Tribunal Procedure Rules;
(b)
provide that the First-tier Tribunal’s power under subsection (1) to
review a decision of a description specified for the purposes of this
25
paragraph in Tribunal Procedure Rules is exercisable only of the
tribunal’s own initiative;
(c)
provide that an application under subsection (2)(b) that is of a
description specified for the purposes of this paragraph in Tribunal
Procedure Rules may be made only on grounds specified for the
30
purposes of this paragraph in Tribunal Procedure Rules;
(d)
provide, in relation to a decision of a description specified for the
purposes of this paragraph in Tribunal Procedure Rules, that the First-
tier Tribunal’s power under subsection (1) to review the decision of its
own initiative is exercisable only on grounds specified for the purposes
35
of this paragraph in Tribunal Procedure Rules.
(4)
Where the First-tier Tribunal has under subsection (1) reviewed a decision, the
First-tier Tribunal may in the light of the review do any of the following—
(a)
correct accidental errors in the decision or in a record of the decision;
(b)
amend reasons given for the decision;
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(c)
set the decision aside.
(5)
Where under subsection (4)(c) the First-tier Tribunal sets a decision aside, the
First-tier Tribunal must either—
(a)
re-decide the matter concerned, or
(b)
refer that matter to the Upper Tribunal.
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Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
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(6)
Where a matter is referred to the Upper Tribunal under subsection (5)(b), the
Upper Tribunal must re-decide the matter.
(7)
Where the Upper Tribunal is under subsection (6) re-deciding a matter, it may
make any decision which the First-tier Tribunal could make if the First-tier
Tribunal were re-deciding the matter.
5
(8)
Where a tribunal is acting under subsection (5)(a) or (6), it may make such
findings of fact as it considers appropriate.
(9)
This section has effect as if a decision under subsection (4)(c) to set aside an
earlier decision were not an excluded decision for the purposes of section 11(1),
but the First-tier Tribunal’s only power in the light of a review under
10
subsection (1) of a decision under subsection (4)(c) is the power under
subsection (4)(a).
(10)
A decision of the First-tier Tribunal may not be reviewed under subsection (1)
more than once, and once the First-tier Tribunal has decided that an earlier
decision should not be reviewed under subsection (1) it may not then decide to
15
review that earlier decision under that subsection.
(11)
Where under this section a decision is set aside and the matter concerned is
then re-decided, the decision set aside and the decision made in re-deciding the
matter are for the purposes of subsection (10) to be taken to be different
decisions.
20
10
Review of decision of Upper Tribunal
(1)
The Upper Tribunal may review a decision made by it on a matter in a case,
other than a decision that is an excluded decision for the purposes of section
13(1) (but see subsection (7)).
(2)
The Upper Tribunal’s power under subsection (1) in relation to a decision is
25
exercisable—
(a)
of its own initiative, or
(b)
on application by a person who for the purposes of section 13(2) has a
right of appeal in respect of the decision.
(3)
Tribunal Procedure Rules may—
30
(a)
provide that the Upper Tribunal may not under subsection (1) review
(whether of its own initiative or on application under subsection (2)(b))
a decision of a description specified for the purposes of this paragraph
in Tribunal Procedure Rules;
(b)
provide that the Upper Tribunal’s power under subsection (1) to
35
review a decision of a description specified for the purposes of this
paragraph in Tribunal Procedure Rules is exercisable only of the
tribunal’s own initiative;
(c)
provide that an application under subsection (2)(b) that is of a
description specified for the purposes of this paragraph in Tribunal
40
Procedure Rules may be made only on grounds specified for the
purposes of this paragraph in Tribunal Procedure Rules;
(d)
provide, in relation to a decision of a description specified for the
purposes of this paragraph in Tribunal Procedure Rules, that the Upper
Tribunal’s power under subsection (1) to review the decision of its own
45
initiative is exercisable only on grounds specified for the purposes of
this paragraph in Tribunal Procedure Rules.

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
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(4)
Where the Upper Tribunal has under subsection (1) reviewed a decision, the
Upper Tribunal may in the light of the review do any of the following—
(a)
correct accidental errors in the decision or in a record of the decision;
(b)
amend reasons given for the decision;
(c)
set the decision aside.
5
(5)
Where under subsection (4)(c) the Upper Tribunal sets a decision aside, the
Upper Tribunal must re-decide the matter concerned.
(6)
Where the Upper Tribunal is acting under subsection (5), it may make such
findings of fact as it considers appropriate.
(7)
This section has effect as if a decision under subsection (4)(c) to set aside an
10
earlier decision were not an excluded decision for the purposes of section 13(1),
but the Upper Tribunal’s only power in the light of a review under subsection
(1) of a decision under subsection (4)(c) is the power under subsection (4)(a).
(8)
A decision of the Upper Tribunal may not be reviewed under subsection (1)
more than once, and once the Upper Tribunal has decided that an earlier
15
decision should not be reviewed under subsection (1) it may not then decide to
review that earlier decision under that subsection.
(9)
Where under this section a decision is set aside and the matter concerned is
then re-decided, the decision set aside and the decision made in re-deciding the
matter are for the purposes of subsection (8) to be taken to be different
20
decisions.
11
Right to appeal to Upper Tribunal
(1)
For the purposes of subsection (2), the reference to a right of appeal is to a right
to appeal to the Upper Tribunal on any point of law arising from a decision
made by the First-tier Tribunal other than an excluded decision.
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(2)
Any party to a case has a right of appeal, subject to subsection (8).
(3)
That right may be exercised only with permission (or, in Northern Ireland,
leave).
(4)
Permission (or leave) may be given by—
(a)
the First-tier Tribunal, or
30
(b)
the Upper Tribunal,

on an application by the party.
(5)
For the purposes of subsection (1), an “excluded decision” is—
(a)
any decision of the First-tier Tribunal on an appeal made in exercise of
a right conferred by the Criminal Injuries Compensation Scheme in
35
compliance with section 5(1)(a) of the Criminal Injuries Compensation
Act 1995 (c. 53) (appeals against decisions on reviews),
(b)
any decision of the First-tier Tribunal on an appeal under section 28(4)
or (6) of the Data Protection Act 1998 (c. 29) (appeals against national
security certificate),
40
(c)
any decision of the First-tier Tribunal on an appeal under section 60(1)
or (4) of the Freedom of Information Act 2000 (c. 36) (appeals against
national security certificate),
(d)
a decision of the First-tier Tribunal under section 9—
(i)
to review, or not to review, an earlier decision of the tribunal,
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Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
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(ii)
to take no action, or not to take any particular action, in the light
of a review of an earlier decision of the tribunal,
(iii)
to set aside an earlier decision of the tribunal, or
(iv)
to refer, or not to refer, a matter to the Upper Tribunal,
(e)
a decision of the First-tier Tribunal that is set aside under section 9
5
(including a decision set aside after proceedings on an appeal under
this section have been begun), or
(f)
any decision of the First-tier Tribunal that is of a description specified
in an order made by the Lord Chancellor.
(6)
A description may be specified under subsection (5)(f) only if—
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(a)
in the case of a decision of that description, there is a right to appeal to
a court, the Upper Tribunal or any other tribunal from the decision and
that right is, or includes, something other than a right (however
expressed) to appeal on any point of law arising from the decision, or
(b)
decisions of that description are made in carrying out a function
15
transferred under section 30 and prior to the transfer of the function
under section 30(1) there was no right to appeal from decisions of that
description.
(7)
Where—
(a)
an order under subsection (5)(f) specifies a description of decisions, and
20
(b)
decisions of that description are made in carrying out a function
transferred under section 30,

the order must be framed so as to come into force no later than the time when
the transfer under section 30 of the function takes effect (but power to revoke
the order continues to be exercisable after that time, and power to amend the
25
order continues to be exercisable after that time for the purpose of narrowing
the description for the time being specified).
(8)
The Lord Chancellor may by order make provision for a person to be treated
as being, or to be treated as not being, a party to a case for the purposes of
subsection (2).
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12
Proceedings on appeal to Upper Tribunal
(1)
Subsection (2) applies if the Upper Tribunal, in deciding an appeal under
section 11, finds that the making of the decision concerned involved the
making of an error on a point of law.
(2)
The Upper Tribunal—
35
(a)
may (but need not) set aside the decision of the First-tier Tribunal, and
(b)
if it does, must either—
(i)
remit the case to the First-tier Tribunal with directions for its
reconsideration, or
(ii)
re-make the decision.
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(3)
In acting under subsection (2)(b)(i), the Upper Tribunal may also—
(a)
direct that the members of the First-tier Tribunal who are chosen to
reconsider the case are not to be the same as those who made the
decision that has been set aside;
(b)
give procedural directions in connection with the reconsideration of the
45
case by the First-tier Tribunal.

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
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(4)
In acting under subsection (2)(b)(ii), the Upper Tribunal—
(a)
may make any decision which the First-tier Tribunal could make if the
First-tier Tribunal were re-making the decision, and
(b)
may make such findings of fact as it considers appropriate.
13
Right to appeal to Court of Appeal etc.
5
(1)
For the purposes of subsection (2), the reference to a right of appeal is to a right
to appeal to the relevant appellate court on any point of law arising from a
decision made by the Upper Tribunal other than an excluded decision.
(2)
Any party to a case has a right of appeal, subject to subsection (14).
(3)
That right may be exercised only with permission (or, in Northern Ireland,
10
leave).
(4)
Permission (or leave) may be given by—
(a)
the Upper Tribunal, or
(b)
the relevant appellate court,

on an application by the party.
15
(5)
An application may be made under subsection (4) to the relevant appellate
court only if permission (or leave) has been refused by the Upper Tribunal.
(6)
The Lord Chancellor may, as respects an application under subsection (4) that
falls within subsection (7) and for which the relevant appellate court is the
Court of Appeal in England and Wales or the Court of Appeal in Northern
20
Ireland, by order make provision for permission (or leave) not to be granted on
the application unless the Upper Tribunal or (as the case may be) the relevant
appellate court considers—
(a)
that the proposed appeal would raise some important point of principle
or practice, or
25
(b)
that there is some other compelling reason for the relevant appellate
court to hear the appeal.
(7)
An application falls within this subsection if the application is for permission
(or leave) to appeal from any decision of the Upper Tribunal on an appeal
under section 11.
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(8)
For the purposes of subsection (1), an “excluded decision” is—
(a)
any decision of the Upper Tribunal on an appeal under section 28(4) or
(6) of the Data Protection Act 1998 (c. 29) (appeals against national
security certificate),
(b)
any decision of the Upper Tribunal on an appeal under section 60(1) or
35
(4) of the Freedom of Information Act 2000 (c. 36) (appeals against
national security certificate),
(c)
any decision of the Upper Tribunal on an application under section
11(4)(b) (application for permission or leave to appeal),
(d)
a decision of the Upper Tribunal under section 10—
40
(i)
to review, or not to review, an earlier decision of the tribunal,
(ii)
to take no action, or not to take any particular action, in the light
of a review of an earlier decision of the tribunal, or
(iii)
to set aside an earlier decision of the tribunal,

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
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(e)
a decision of the Upper Tribunal that is set aside under section 10
(including a decision set aside after proceedings on an appeal under
this section have been begun), or
(f)
any decision of the Upper Tribunal that is of a description specified in
an order made by the Lord Chancellor.
5
(9)
A description may be specified under subsection (8)(f) only if—
(a)
in the case of a decision of that description, there is a right to appeal to
a court from the decision and that right is, or includes, something other
than a right (however expressed) to appeal on any point of law arising
from the decision, or
10
(b)
decisions of that description are made in carrying out a function
transferred under section 30 and prior to the transfer of the function
under section 30(1) there was no right to appeal from decisions of that
description.
(10)
Where—
15
(a)
an order under subsection (8)(f) specifies a description of decisions, and
(b)
decisions of that description are made in carrying out a function
transferred under section 30,

the order must be framed so as to come into force no later than the time when
the transfer under section 30 of the function takes effect (but power to revoke
20
the order continues to be exercisable after that time, and power to amend the
order continues to be exercisable after that time for the purpose of narrowing
the description for the time being specified).
(11)
Before the Upper Tribunal decides an application made to it under subsection
(4), the Upper Tribunal must specify the court that is to be the relevant
25
appellate court as respects the proposed appeal.
(12)
The court to be specified under subsection (11) in relation to a proposed appeal
is whichever of the following courts appears to the Upper Tribunal to be the
most appropriate—
(a)
the Court of Appeal in England and Wales;
30
(b)
the Court of Session;
(c)
the Court of Appeal in Northern Ireland.
(13)
In this section except subsection (11), “the relevant appellate court”, as respects
an appeal, means the court specified as respects that appeal by the Upper
Tribunal under subsection (11).
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(14)
The Lord Chancellor may by order make provision for a person to be treated
as being, or to be treated as not being, a party to a case for the purposes of
subsection (2).
(15)
Rules of court may make provision as to the time within which an application
under subsection (4) to the relevant appellate court must be made.
40
14
Proceedings on appeal to Court of Appeal etc.
(1)
Subsection (2) applies if the relevant appellate court, in deciding an appeal
under section 13, finds that the making of the decision concerned involved the
making of an error on a point of law.
(2)
The relevant appellate court—
45
(a)
may (but need not) set aside the decision of the Upper Tribunal, and