Clause 20: Transfer of judicial review applications from the Court of Session

121.           Clause 20 makes provision for the Court of Session to transfer applications for judicial review to the Upper Tribunal. Applications cannot be transferred if they relate to immigration or nationality matters, or if they relate to devolved matters. Also, an application can only be transferred if it does not seek anything other than an exercise of the supervisory jurisdiction of the Court of Session. Subject to those three points, an application will have to be transferred if it falls within a class specified by act of sederunt made with the consent of the Lord Chancellor, and may be transferred even if it does not fall within such a class.

Clause 21: Upper Tribunal's "judicial review" jurisdiction: Scotland

122.           Clause 21 confirms that the Upper Tribunal will decide applications transferred to it from the Court of Session under clause 20 and that the Upper Tribunal has the same powers of review in such cases as the Court of Session.

Clause 22 and Schedule 5: Tribunal Procedure Rules

Clause 22

123.           At present, each tribunal has its own rules, and in many tribunals there are multiple sets of rules. Rule-making powers usually rest with the Lord Chancellor or the Secretary of State. They are usually subject to parliamentary procedure, and the Council on Tribunals must be consulted, but there is no standard form or approach, and no statutory requirement to consult stakeholders. In the courts, rules are made by rule committees with judicial and practitioner membership under a unified set of powers, allowing for consistency in the development of procedure. The intention is to replicate this arrangement for the new tribunals.

124.           Clause 22 provides for the power to make procedural rules for the new tribunals. Clause 22(4) states the overriding objective to be followed by the Tribunal Procedure Committee when it makes Tribunal Procedure Rules. This is similar to the overriding objective governing the Civil Procedure Rules. The purpose of the overriding objective is to ensure that the Tribunal Procedural Committee observes certain fundamental principles when exercising its powers to make procedural rules, such as, securing that justice is done in proceedings before a tribunal and that the tribunal system is accessible and fair.

Schedule 5

125.           Schedule 5 makes provision for (a) what the rules may contain, (b) the creation of a Tribunal Procedure Committee, (c) the process for making procedural rules and (d) the power to amend primary legislation in pursuance of a rule change. Schedule 5 is divided into 4 parts.

126.           Part 1 sets out matters which may be covered by Tribunal Procedure Rules. This is not an exhaustive list and does not limit the broad power in clause 22(1) to make procedural rules. Rather, the Tribunal Procedure Committee will exercise its judgement, within the process set out in Part 3 of Schedule 5, to determine which rules are needed in each jurisdiction. It is not intended that each jurisdiction will have rules that cover every aspect listed. Rather the list in Part 1 includes matters which could be considered an extension of the general provisions in clause 22.

127.           Paragraph 15 does not enable rules to restrict the review powers in clauses 9 and 10. Rather, this paragraph allows for rules to allow certain matters to be reviewed otherwise than by a tribunal under clauses 9 and 10. For example rules made in reliance on paragraph 15 could provide for a member of staff to correct an accidental error.

128.           Part 2 provides for the membership of the Tribunal Procedure Committee. The provisions governing the membership and responsibility for appointing members of the Tribunal Procedure Committee are loosely modelled on those for the rule committees making rules of court but are more flexible because of the diverse nature of tribunals. The Committee is intended to consist of core members and additional members appointed as and when required to provide jurisdiction-specific knowledge. One of the core members is the Senior President, or a person nominated by him. The Lord Chancellor, the Lord Chief Justice of England and Wales and the Lord President of the Court of Session appoint the other core members. The Lord Chief Justice of England and Wales or Northern Ireland or the Lord President of the Court of Session are responsible for appointing additional members at the request of the Senior President depending on what need has been identified. It may be, for instance, that the Committee needs to make rules for or affecting a jurisdiction with which its core members are unfamiliar, and then additional members with the appropriate expertise will be appointed.

129.           The core membership consists of the Senior President or a person nominated by him, three people with experience of practice in tribunals or giving advice to persons involved in tribunal proceedings, a person nominated by the Administrative Justice and Tribunals Council, a judge from each of the tribunals, a tribunal member and a person with experience in and knowledge of the Scottish legal system. The Lord Chancellor's role is limited to selecting persons with experience of tribunal proceedings or practice and appointing the member selected by the Administrative Justice and Tribunals Council. Consistent with the Concordat, the selection of judicial members falls to either the Lord Chief Justice or the Lord President.

130.           Paragraph 24 provides that any additional members are appointed (at the request of the Senior President of Tribunals) by the Lord Chief Justice of England and Wales, the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland. It is expected that additional members will usually be members of the judiciary. The additional members are intended to bring specialist knowledge to the Committee when discussing particular matters.

131.           Under paragraph 25, the Lord Chancellor may make changes to the composition of the Committee, but only with the concurrence of the Lord Chief Justice of England and Wales. The concurrence of the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland is necessary where such a change would affect a member appointed to the committee by them.

132.           Part 3 details the process by which Tribunal Procedure Rules are to be made. This is consistent with the process for making Civil, Family and Criminal Procedure Rules. The Committee is required to consult before rules are made. In order for the rules to be submitted to the Lord Chancellor they must be approved by the Committee. The Lord Chancellor's powers once rules are submitted to him are limited to powers to allow or disallow. However, the Lord Chancellor does have the power to specify a purpose which must be achieved by rules. This is to ensure that, although the Tribunal Procedure Committee is independent, the Lord Chancellor is able to set objectives for the rules.

133.           Once allowed by the Lord Chancellor, rules made under this process are subject to negative resolution procedure.

134.           Part 4 gives the Lord Chancellor power to amend, repeal or revoke any Act in pursuance of a rule change. This power is based upon the provisions in the Civil Procedure Act 1997. An order exercising this power is subject to affirmative resolution procedure.

Clause 23: Practice directions

135.           This clause provides the Senior President with the statutory authority to supplement Tribunal Procedure Rules by means of practice directions. These directions may take the form of guidance, interpretation of the law, matters of precedent or the delegation of judicial functions to senior members. The giving of practice directions is one of the functions that the Senior President may choose to delegate to Chamber Presidents under clause 8. Following the Concordat, practice directions made either by the Senior President or a Chamber President will usually require the Lord Chancellor's approval. There are two exceptions. The first is where practice directions consist of guidance about the application and interpretation of law or the making of decisions. The second exception is where practice directions consist of criteria for determining which members of the tribunals may be chosen to decide particular categories of matter. Practice directions given by a Chamber President in his own right (i.e. as opposed to directions given by him when exercising, under a delegation, the Senior President's power to give practice directions) will always require the Senior President's approval, whether or not they also require the Lord Chancellor's approval.

Clause 24: Mediation

136.           Mediation and other forms of alternative dispute resolution are used increasingly in the justice system. They can provide more efficient and effective remedies, at lower cost and with less pressure on users. This clause has been designed to provide the statutory basis for mediation. The use of mediation in tribunal proceedings can be governed both by Tribunal Procedure Rules and by practice directions. Where a person has a right to apply to a tribunal in order that the person's rights may be determined according to law, mediation of the person's case by the personnel of the tribunal (whether its members or staff) raises a number of issues. This clause seeks to resolve a number of issues in relation to mediation of matters that are in dispute between parties to proceedings before the First-tier or Upper Tribunal. However, it is neither intended nor envisaged that mediation will take place in all jurisdictions, although the term mediation can encompass a broad spectrum of activity. The clause will enable staff appointed for the employment tribunals, EAT and AIT, as well as staff appointed for the First-tier and Upper Tribunals, to act as mediators in relation to disputed matters in proceedings before the First-tier or Upper Tribunal.

Clause 25: Supplementary powers of Upper Tribunal

137.           This clause provides the Upper Tribunal with the powers of the High Court or Court of Session to require the attendance and examination of witnesses and the production and inspection of documents, and all other matters incidental to the Upper Tribunal's functions. These are similar powers to the Employment Appeal Tribunal's powers under section 29 of the Employment Tribunals Act 1996.

Clause 26: First-tier Tribunal and Upper Tribunal: sitting places

138.           This clause provides for the First-tier Tribunal or the Upper Tribunal to sit anywhere in the United Kingdom irrespective of the law under which a case arises. This will allow the flexible listing of cases for hearing in accordance with the needs of tribunal users. It does not, however, allow a tribunal to decide which law it wants to apply.

Clause 27: Enforcement

139.           Subsections (1) to (3) ensure that monetary awards made by the First-tier and Upper Tribunals are enforceable through the courts. These provisions do not alter the methods of enforcement by the courts.

140.           Many tribunal awards in England and Wales are currently enforced through the county court, but there are some where enforcement is currently through the High Court (e.g. the Lands Tribunal where enforcement may be through either court, and the Transport Tribunal where enforcement is in the High Court). Subsection (1) states that a sum payable following a decision of either the First-tier or Upper Tribunal will be recoverable as if it were payable either under an order of a county court in England and Wales or an order of the High Court in England and Wales. The intention is to retain flexibility as to the venue for enforcement for a particular jurisdiction, on the assumption that any provision made in the Tribunal Procedure Rules will be subject to rules governing the allocation of proceedings between the High Court and the county courts (the rules currently stipulate that judgments for over £5,000 are to be enforced in the High Court).

141.           In relation to tribunals where the governing statute does not currently allow for enforcement through the court system, it is not intended to alter the position until the relevant jurisdiction is transferred to the new tribunals.

142.           Subsection (2) makes corresponding provision for Scotland. An order for payment made as a result of a decision of either the First-tier or Upper Tribunal made in Scotland (or a copy of such an order certified in accordance with Tribunal Procedure Rules) may be enforced as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland (i.e. without the intermediate step of registering the decision with the Sheriff Court).

143.           Subsection (3) makes corresponding provision for Northern Ireland. An order for payment made as a result of a decision of either the First-tier or Upper Tribunal in Northern Ireland will be recoverable as if it were payable under either an order of a county court in Northern Ireland or the High Court in Northern Ireland.

144.           Subsection (4) provides that the enforcement provisions in the preceding subsections do not apply to awards of damages, restitution or the recovery of a sum due made to an applicant by the Upper Tribunal exercising its 'judicial review' powers under clause 16(6) or 21(1), because enforcement of such awards is dealt with in clauses 16(7) and 21(4).

145.           Subsection (5) empowers the Lord Chancellor to make an order (applying to England and Wales or to Northern Ireland) stipulating that a sum of a description specified in the order (payable in pursuance of a decision of the First-tier or Upper Tribunal) may be recoverable as if it were payable either under an order of a county court, or under an order of the High Court, but not both.

146.           Subsection (6) allows for Tribunal Procedure Rules to be made which spell out where for the purposes of the enforcement provisions a decision is to be taken to have been made. This is necessary due to the different enforcement methods that apply to Scotland compared with England and Wales. Rules might, for example, provide that where a tribunal is sitting in Scotland to hear a case arising under the law of England and Wales, any sum payable in pursuance of a decision of the tribunal is recoverable as if the decision had been made in England and Wales. Subsection (6) also allows Rules to provide for some sums not to be recoverable under the provisions of the clause. This might be appropriate where the particular legislation under which a tribunal is acting contains its own procedures for enforcing awards.

Clause 28: Assessors

147.           An assessor is an expert who is appointed by a court or tribunal to assist it in dealing with issues within the assessor's area of expertise. Some tribunals already have a power to appoint assessors and this clause will allow this practice to continue within the new tribunals. This clause provides the First-tier Tribunal or the Upper Tribunal with the power to appoint an assessor to assist where it is dealing with matters that require a special expertise that the tribunal would otherwise not have available to it. But it will not require the assessor to be used where it is inappropriate to the jurisdiction.

Clause 29: Costs or expenses

148.           Many tribunals' powers to award costs are currently limited, either because they have no powers to award costs, or because the scope of any power they have is limited. This clause grants the tribunals the discretion to order costs and expenses in the same way as courts. It is not intended that these provisions will apply in all jurisdictions, rather that there will be flexibility as part of the creation of the new system to determine where a costs regime would be appropriate and whether there should be any limits to such a regime (for example, that costs should be awarded only against a party who has acted vexatiously or unreasonably). This is why subsection (1) is subject to provision made under the Tribunal Procedure Rules.

Clause 30: Transfer of functions of certain tribunals

149.           The transfer of jurisdictions to the new tribunals is a central feature of the Bill. This clause provides the Lord Chancellor with the power to transfer jurisdictions from those tribunals listed in the relevant Parts of Schedule 6 to either of the two new tribunals or the employment tribunals or the Employment Appeal Tribunal. In this way adjudicative functions which are currently spread across a wide range of tribunals can be consolidated into the new tribunals and the employment tribunals and Employment Appeal Tribunal. The general policy of clause 30(5) to (8) is to restrict devolved functions from being transferred to the new tribunals.

150.           Under clause 30(5), the general rule is that functions of tribunals which are within the legislative competence of the Scottish Parliament or the Northern Ireland Assembly (i.e. devolved) may not be transferred to the First-tier Tribunal or Upper Tribunal under clause 30.

151.           Clause 30(6) and (7) set out some exceptions. Functions in relation to appeals relating to estate agents and consumer credit, and criminal injury compensation appeals, may be transferred. But transfer of functions relating to criminal injury compensation appeals in Scotland will require the consent of Scottish Ministers.

152.           Clause 30(8) provides that if any functions relating to the operation of a tribunal, or expenses for attending the tribunal, are exercisable by the Welsh Ministers, functions of that tribunal may be transferred under clause 30 only with the consent of the Assembly.

Clause 31: Transfers under section 30: supplementary powers

153.           Where functions are transferred under clause 30, supplementary powers are needed to give the transfer full effect. Subsection (1) confers power on the Lord Chancellor to provide by order for the abolition of a tribunal whose functions have been transferred under clause 30.

154.           Subsection (2) enables the Lord Chancellor, in transferring functions of a tribunal listed in Schedule 6, to provide for members of the tribunal who are judicial office holders to have a new office within either the First-tier Tribunal or the Upper Tribunal. However, it is not intended to use this power as respects any person whose existing office is that of Commissioner for the general purposes of income tax. That office is abolished by paragraph 1(1) of Schedule 8 to the Bill.

155.           Subsections (7) and (8) allow the Lord Chancellor to provide by order for the continuation of procedural rules following a transfer of functions, if necessary by modification of those rules.

156.           Subsection (9) enables the Lord Chancellor to make, by order, transitional provision, savings and consequential etc. provision to facilitate a transfer under clause 30. If such an order amends an Act then the order will be made by the affirmative resolution procedure.

Clause 32: Power to provide for appeal to Upper Tribunal from tribunals in Wales

157.           Where a jurisdiction is exercised by separate tribunals for England and Wales, difficulties could arise if there were different routes of onward appeal for the English and Welsh tribunals. This clause provides for an appeal to the Upper Tribunal from tribunals in Wales in two circumstances. Subsections (1) and (2) deal with a situation where the functions of a tribunal covering both England and Wales are transferred to the First-tier Tribunal in respect of England only. Subsection (3) deals with appeals from tribunals which already have a separate existence in Wales, and which are listed in Part 7 of Schedule 6. Without this power an appeal, if it exists, would continue to lie to the High Court. The intention is that users of these tribunals will have access to the Upper Tribunal for their onward appeals, on the same basis as users in England.

Clause 33: Power to provide for appeal to Upper Tribunal from tribunals in Scotland

158.           Where a tribunal jurisdiction is transferred to the new tribunals under clause 30, and such a jurisdiction is not transferred in relation to Scotland, clause 33 creates a power for the Lord Chancellor to provide (by order) for an appeal to the Upper Tribunal against a corresponding Scottish decision.

Clause 34: Power to provide for appeal to Upper Tribunal from tribunals in Northern Ireland

159.           This clause provides a power (analogous to that provided in the previous one in respect of Scotland) for a new appeal right to the Upper Tribunal from tribunals in Northern Ireland where the equivalent tribunal jurisdiction in England has been transferred to the First-tier Tribunal and there is a new appeal right in England to the Upper Tribunal.

Clause 35: Transfer of Ministerial responsibilities for certain tribunals

160.           This clause makes it possible to transfer administrative functions of other ministers (and functions of the Commissioners for Her Majesty's Revenue and Customs) in relation to tribunals to the Lord Chancellor. The power is similar to the power under section 1 of the Ministers of the Crown Act 1975 which enables transfer of functions between ministers.

161.           Subsections (8) and (9) taken together prevent functions transferred to the Lord Chancellor from being transferred to another Minister of the Crown under subsection (1) or under the Ministers of the Crown Act 1975. This will replicate the effect of section 19 of, and Schedule 7 to, the Constitutional Reform Act 2005, entrenching judiciary-related functions in the office of the Lord Chancellor, and so helping to secure the independence of tribunals from the departments formerly responsible for them.

Clause 36: Transfer of powers to make procedural rules for certain tribunals

162.           This clause enables the Lord Chancellor by order to transfer power to make procedural rules for certain tribunals to himself or to the Tribunal Rules Procedure Committee. Most of the powers that may be transferred under this clause are currently exercisable by the Secretary of State. This power will allow the Lord Chancellor to:

a)      standardise the process for making rules for those tribunals whose functions are not scheduled to transfer into the new tribunal structure; or

b)      transfer the responsibility for making rules for particular tribunals to the Tribunal Procedure Committee before their functions are transferred to the First-tier Tribunal or Upper Tribunal.

Clause 37: Power to amend lists of tribunals in Schedule 6

163.           Clause 37 gives the Lord Chancellor the power to amend the lists of tribunals in Schedule 6 to the Bill.

164.           Schedule 6 has to be read alongside clauses 30 to 36 of the Bill. This Schedule lists those tribunals that will be transferred to the First-tier and Upper Tribunal by the Bill. Schedule 6 describes which of sections 30 to 36 apply to the various tribunals listed in the Schedule. There are three main powers that the Lord Chancellor can exercise in relation to the tribunals listed in the Schedule: clause 30 deals with the transfer of tribunals' functions, including adjudicative functions, to the new tribunals under the Bill; clause 35 deals with the transfer of executive functions in relation to tribunals to the Lord Chancellor; and clause 36 deals with the transfer of rule making powers to the Lord Chancellor and the Tribunal Procedure Committee.

165.           Because of the number of permutations, there are currently seven lists in Schedule 6:

• Part 1: tribunals where all three types of function are to be transferred.

• Part 2: tribunals where only the adjudicative and executive functions are to be transferred. There are no rule-making powers to transfer.

• Part 3: tribunals where only the adjudicative and rule-making powers are to be transferred because all executive functions are already with the Lord Chancellor.

• Part 4: tribunals where only the tribunal's functions can be transferred because agreement has not yet been reached as to the transfer of the executive and rule- making functions.

• Part 5: tribunals where executive functions are to be transferred to the Lord

Chancellor and rule-making functions to the Tribunal Procedure Committee but there is no transfer of the tribunal's functions to the First-tier or Upper Tribunal.

• Part 6: tribunals where only executive functions are to be transferred. No change is intended to the tribunal's functions, and rule-making powers are to remain with the Secretary of State, as indicated in Transforming Public Services.

• Part 7: tribunals in Wales where appeal is intended to be to the Upper Tribunal.

166.           Clause 37 gives the Lord Chancellor flexibility to add or remove tribunals so that the relevant powers can be exercised (or not exercised) in relation to them. The power is constrained by subsections (2), (3) and (4):

• Under subsection (2)(a), a tribunal created otherwise than by or under an enactment (e.g. a private tribunal of some kind) cannot be brought within the new structure.

• Under subsection (2)(b), tribunals created after the last day of the Session in which the Bill is passed may not be added to any of the lists of tribunals in Schedule 6. If the First-tier Tribunal or Upper Tribunal is to have jurisdiction created by later legislation then it will need to be conferred by that later legislation rather than transferred using the machinery of clause 30. As the First-tier and Upper Tribunals are all-purpose in nature it is not expected that there will be a need to create any new tribunals.

• Subsections (2)(c) and (3) preserve the position of the Welsh Ministers by requiring the consent of the Welsh Ministers where they have a power in relation to a tribunal listed in Schedule 6.

• Subsection (4) prevents the power being used to bring any of the ordinary courts of law into the new tribunal structure. The terms "tribunal" and "ordinary court of law" are not defined but follow the terminology used in the Tribunals and Inquiries Act 1992.

Clause 38: Orders under clauses 30-36: supplementary

167.           This clause provides for power to amend, repeal or revoke enactments in connection with orders under clauses 30 to 36. Orders under clauses 30 to 36 will be subject to the affirmative resolution procedure, except for orders under clauses 31(2), (7) or (9) that do no amend Acts.

Clause 39: Administrative support for certain tribunals: The general duty

168.           This provision places the Lord Chancellor under a statutory obligation to ensure there is an efficient and effective system of tribunal administration. The duty is framed in respect of the First-tier Tribunal, the Upper Tribunal, the employment tribunals, the Employment Appeal Tribunal and the Asylum and Immigration Tribunal. It mirrors section 1 of the Courts Act 2003, which sets out the Lord Chancellor's duty in respect of the courts in England and Wales. It is intended to show that tribunals are to be treated no less favourably than the courts.

Clause 40: Tribunal staff and services and Clause 41: Provision of accommodation

169.           Clauses 40 and 41 are modelled on sections 2 and 3 of the Courts Act 2003 and grant the Lord Chancellor similar powers to provide staff, services and accommodation for tribunals. Clause 40 allows the Lord Chancellor to employ civil servants as tribunal staff, so that he can discharge his duty of administering the courts and providing support services. Like section 2 of the Courts Act 2003, it restricts the Lord Chancellor's ability to contract out services. Clause 41 gives the Lord Chancellor power to provide, equip, maintain and manage tribunal accommodation.

Clause 42: Fees

170.           Under this provision the Lord Chancellor will have a power to prescribe, by order, fees to be paid for anything done in the new tribunals, in the Asylum and Immigration Tribunal and in any other statutory tribunal added to the list by order subject to the affirmative resolution procedure. The corresponding power in respect of court fees under section 92 of the Courts Act 2003 can be used to recover running costs of the courts. Similarly, it is considered that the power under the clause, at its upper end, could be used to set fees at a level designed to recover from users of tribunals some or all of the running costs of (or of a part of) the tribunals concerned. Before making an order under the clause, the Lord Chancellor must consult the Senior President and the AJTC. This power has been designed to cover in part those tribunals which currently charge a fee for their services and in part the possibility that at some point in the future it may be appropriate to charge fees in other jurisdictions. Treasury consent will not be required for changes to fee levels. Where a fee is introduced in an area where a fee has not previously been payable, clause 49(6)(c) requires that the order is subject to the affirmative resolution procedure. The clause also confers power to set fees for the conduct of mediation by tribunals staff appointed under clause 40(1) but, since the clause establishes the principle of fees being set for this, the negative resolution procedure will be used when setting them.

Clause 43: Report by Senior President of Tribunals

171.           This clause requires the Senior President to give the Lord Chancellor a report on the cases that have come before the First-tier Tribunal and the Upper Tribunal in each year. The report will also cover cases coming before the employment tribunals and the Employment Appeal Tribunal. This provision is intended to support improvement both in the workings of the tribunals and the standard of decision-making and review in cases which come before the tribunals. The clause gives the Senior President some flexibility in deciding which matters should be covered in the report, and the Lord Chancellor some flexibility in deciding which matters are a priority for the report.

Clauses 44 and 45: The Administrative Justice and Tribunals Council

172.           The existing Council on Tribunals will be replaced by an Administrative Justice and Tribunals Council (AJTC), which is established by clause 44 and Schedule 7. The AJTC, like the Council on Tribunals, will be a non-departmental public body, but will have a wider remit.

173.           When the AJTC comes into existence, the Council on Tribunals (and its Scottish Committee) will be abolished. This will be effected by clause 45. If the Council on Tribunals has property, rights or liabilities at the time when it is abolished, clause 45 empowers the Lord Chancellor to make an order transferring them to the new AJTC. The order is to be subject to negative resolution procedure.

Schedule 7: Administrative Justice and Tribunals Council

174.           Schedule 7 makes provision for the AJTC. It is divided into 4 parts.

175.           Part 1 (paragraphs 1 to 11) deals with the membership of the AJTC and for the Committees of the AJTC.

176.           Paragraph 1 provides that the AJTC is to consist of a minimum of 10 and a maximum of 15 members and the Parliamentary Commissioner for Administration. Those members, other than the Parliamentary Commissioner for Administration (who is appointed on an ex-officio basis), are to be appointed by the Scottish Ministers, the Welsh Ministers and the Lord Chancellor, each with the concurrence of the others.

177.           Paragraph 2 makes provision for the nomination of the Chairman of the AJTC. The nomination is of a member of the AJTC and is made by the Lord Chancellor after consulting the Scottish and Welsh Ministers. Paragraph 2 also provides for the terms of office of the Chairman.

178.           Paragraph 3 makes provision for the terms of office for members appointed under paragraph 1. Such members are to hold and leave their office in accordance with the terms on which they have been appointed. The Lord Chancellor may remove an appointed member on the grounds of inability or misbehaviour but this power can only be exercised with the concurrence of the Scottish or Welsh Ministers where the power is being exercised in relation to a person appointed by one of them. Members may resign by writing to the Lord Chancellor or in the case of persons appointed by the Scottish or Welsh Ministers, by writing to those Ministers.

179.           Paragraphs 4 and 7 establish the Scottish and Welsh Committees of the AJTC. Paragraphs 4(2) and 7(2) provide that each Committee is to consist of the Parliamentary Commissioner for Administration, the Public Services Ombudsman for each jurisdiction, the members of the AJTC appointed under paragraph 1(2) by the Scottish or Welsh Ministers as the case may be and a specified number of other persons who are not members of the AJTC appointed by the Scottish or Welsh Ministers under paragraphs 4 and 7 as appropriate.

180.           Paragraphs 6 and 9 provide for the term of office for those members of the Scottish or Welsh Committees who are not members of the AJTC and have been appointed by the Scottish or Welsh Ministers to their respective Committees as described above. Such members are to hold and leave their office in accordance with the terms on which they were appointed and can be removed by the Scottish or Welsh Ministers as appropriate on the ground of inability or misbehaviour. Resignation can be effected by writing to the Scottish or Welsh Ministers as appropriate.

181.           Paragraphs 5 and 8 provide for the nomination of the Chairman of the Scottish and Welsh Committees. The relevant Ministers are responsible for nominating a member of the AJTC who is appointed by them to become the Chairman. The terms of office of those Chairmen are provided in paragraphs 5 and 8.

182.           Paragraph 10 makes the Lord Chancellor responsible for the remuneration of the members of the AJTC and the Scottish and Welsh Committees.

183.           Part 2 of Schedule 7 explains the functions of the AJTC. In summary, the AJTC has functions in relation to the administrative justice system, tribunals and to statutory inquiries.

184.           Paragraph 13 makes it clear that the AJTC is responsible for keeping the administrative justice system under review. This function extends to the overall system by which decisions of an administrative or executive nature are made in respect of a particular person. The AJTC can advise the Lord Chancellor, the Scottish and Welsh Ministers and the Senior President on the development of the administrative justice system and make such reports as it thinks are necessary in relation to its areas of responsibility under paragraph 13(1).

185.           Paragraph 14 explains the AJTC's general functions with respect to tribunals. The AJTC's responsibility is in relation to "listed tribunals" as defined in Part 4 of Schedule 7. Listed tribunals include the First-tier Tribunal, the Upper Tribunal and also any other tribunal that an authority who has responsibility for a tribunal provides is to be a listed tribunal for the purpose of Schedule 7. So, the AJTC's responsibility for tribunals may extend to tribunals other than the First-tier and Upper Tribunals. By virtue of paragraph 14 the AJTC is to keep listed tribunals under review and report on those tribunals and also on any matter that the AJTC thinks is of special importance. The AJTC is also to consider and report on any matter referred to it jointly by the Lord Chancellor, Scottish Ministers and Welsh Ministers under paragraph 16. The AJTC may also scrutinise and comment on legislation that is extant or proposed, including procedural rules, relating to tribunals.

186.           Paragraph 15 documents the AJTC's duties in respect of statutory inquiries. The AJTC's duties involve keeping statutory inquiries under review, reporting on them and reporting on other matters it determines to be of particular importance. As with tribunals it must also consider and report on any matter referred to it by the Lord Chancellor, the Welsh Ministers and the Scottish Ministers jointly under paragraph 16.

187.           Paragraph 17 makes provision for the procedure to be followed when the AJTC makes a report in relation to its functions in respect of tribunals under paragraph 14 and statutory inquiries in paragraph 15.

188.           Paragraphs 18 and 19 ensure that the Scottish and Welsh Committees are consulted on any matter that relates solely to their jurisdiction before the Council is authorised to report on it. These paragraphs also provide that the Scottish and Welsh Committees can make reports to the AJTC on their own motion in relation to matters specified in paragraphs 18 and 19. If the AJTC does not make a report on a matter dealt with in a report made or to a matter referred to it by the Scottish or Welsh Committee or in making a report the AJTC does not adopt the Committee's reports without modification, the Committee can submit its report to the Scottish or Welsh Ministers as the case may be. The Scottish and Welsh Ministers must lay reports submitted to them in these circumstances before the Scottish Parliament or the National Assembly for Wales as appropriate.

189.           Paragraph 21 sets out the AJTC's duty to make an annual report on its proceedings and the corresponding duty on the Scottish Committee and Welsh Committee. The AJTC's report must be laid before Parliament and also before the Scottish Parliament and National Assembly for Wales. The reports of the Scottish and Welsh Committees under this paragraph must be laid before the Scottish Parliament and National Assembly for Wales respectively.

190.           Paragraph 22 makes provision for members of the AJTC, the Scottish Committee and the Welsh Committee to attend proceedings of a listed tribunal (as defined in Part 4 of Schedule 7) as observers even when those proceedings are held in private or do not take the form of a hearing. This right is subject to any statutory provision that expressly excludes these members from proceedings.

191.           Paragraph 23 provides for the application of certain provisions in Schedule 7 to Northern Ireland.

192.           Part 3 of Schedule 7 provides for the AJTC to be consulted on procedural rules for a listed tribunal (as defined in Part 4 of Schedule 7).

193.           Paragraph 24(2) excludes rules made or to be made by the Tribunal Procedural Committee in relation to a listed tribunal from the general duty in paragraph 24(1). The duty in paragraph 24(1) is for a Minister of the Crown, a Scottish Minister or a Welsh Minister to consult the AJTC before it takes any action outlined in that paragraph in relation to procedural rules for a listed tribunal (as defined in Part 4 of Schedule 7). This is not necessary in the excluded cases since a member of the AJTC will sit on the Tribunal Procedural Committee.

194.           Part 4 contains definitions of terms in the excluded cases since they apply to Schedule 7 including the definition of "listed tribunal" which means the First-tier Tribunal, the Upper Tribunal or any tribunal that an authority requests to be listed for the purpose of Schedule 7 in accordance with paragraph 25(2) of Schedule 7.

Clause 46: Delegation of Functions by the Lord Chief Justice etc

195.           This clause enables the Lord Chief Justice to nominate a judicial office holder (as defined in Section 109(4) of the Constitutional Reform Act 2005) to exercise any of the listed functions given to him under the Bill. These are:

• Concurrence with the removal of a judge or other member of the First-tier Tribunal from office (Schedule 2 paragraph 3(4)).

• Concurrence with a request for a court judge to sit in the First-tier Tribunal (Schedule 2 paragraph 6(3)(a)).

• Concurrence in the removal of a judge or other member of the Upper Tribunal from office (Schedule 3 paragraph 3(4)).

• Concurrence with a request for a court judge to sit in the Upper Tribunal (Schedule 3 paragraph 6(3)(a)).

• Power to nominate an ordinary judge of the Court of Appeal or a puisne judge of the High Court to preside over a chamber (Schedule 4 paragraph 2(2)).

• Power to nominate an ordinary judge of the Court of Appeal or a puisne judge of the High Court to act as a deputy chamber president (Schedule 4 paragraph 5(5)).

• Power to appoint members to the Tribunal Procedure Committee (Schedule 5 paragraphs 22 and 24).

• Consultation on the Lord Chancellor's appointees to the Committee (Schedule 5, paragraph 21(2)).

• Concurrence in an order changing the composition of the Tribunal Procedure Committee (Schedule 5 paragraph 25).

196.           The clause makes similar provision for the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland.