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Session 2006 - 07 Publications on the internet General Committee Debates Tribunals, Courts and Enforcement |
Tribunals, Courts and Enforcement Bill |
The Committee consisted of the following Members:Alan
Sandall, Hannah Weston, Committee
Clerks
†
attended the Committee
Public Bill CommitteeThursday 15 March 2007(Afternoon)[John Bercow in the Chair]Tribunals, Courts and Enforcement Bill [Lords]1
pm
The
Chairman:
In common with my co-Chairman, I am content that
right hon. and hon. Members should take off their jackets if they
wish.
Clause 7Chambers:
jurisdiction and
Presidents
Question
proposed [this day], That the clause stand part of the
Bill.
Question
again
proposed.
I was in full flow at the end
of this morning’s sitting, but I shall get to what I was hoping
to ask the Minister. I was surprised at a point that she made in
response to my hon. Friend the Member for North-West Norfolk. She
suggested that it would be best to have a consultation after the Bill
has come to the House. I am curious about that practice. I appreciate
that I am a fairly new boy, but would it not be better to have a
consultation, as my hon. Friend suggested, prior to the Bill coming to
the House, rather than
afterwards?
The
Parliamentary Under-Secretary of State for Constitutional Affairs (Vera
Baird):
I, too, am delighted to see you in the Chair,
Mr. Bercow; it is wonderful to serve under your chairmanship
again. I mentioned the previous Bill this morning, but we shall not
compete with 925 clauses.
The hon. Member for Braintree
asks a germane question. However, there has been a sizeable amount of
consultation and it is still ongoing. It has given us the confidence to
introduce the Bill into the Lords, which, again, has done a good job of
refinement and already ensured that interest groups fed into the
process. We believe that we are fully informed and that we can put
forward a sufficient framework to get the new structure on the move.
Thereafter, there will be a huge amount of detail that will require yet
further consultation. That is the process that we have adopted; I hope
that that reassures the hon.
Gentleman.
Question
put and agreed
to.
Clause 7
ordered to stand part of the
Bill.
Schedule
4 agreed
to.
Clause 8
ordered to stand part of the Bill.
Clause 9Review
of decision of First-tier
Tribunal
Mr.
Henry Bellingham (North-West Norfolk) (Con): I beg to move
amendment No. 40, in clause 9, page 6, line 11, after
‘review’ insert ‘on any point of
law’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 45, in
clause 11, page 8, line 24, after
‘any’ insert ‘question of fact
or’.
No. 46, in
clause 11, page 8, line 24, after
‘of’ insert ‘fact
or’.
No. 49, in
clause 12, page 9, line 34, at
end insert
‘or is
manifestly unreasonable on the
facts’.
Mr.
Bellingham:
It is a great pleasure for me to serve under
your chairmanship for the first time, Mr. Bercow. I look
forward to this Committee being happy and
constructive.
Clause
9(1)
states:
“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)”.
My amendment
probes the powers of the first-tier tribunal to review its own
decision. What is the scope of that power of review? Is it merely
limited to points of law or does it go beyond that to evidential
matters? If it is only a power of review, does it refer purely to
formal matters or does it extend to something more
substantial?
Presumably, the essence of the
subsection is to ensure that the only cases that go to appeal will be
those that really need to—the power is to enable minor errors to
be corrected swiftly and informally. I recall from my time at the Bar
that there are certain rules of procedure allowing magistrates courts,
for example, to overturn their own decisions quickly within a certain
period. I believe that there are other precedents as well. Will the
Minister say what other precedents there are for the correction of
minor mistakes without the need for a full
appeal?
If the power
is all part of trying to make the tribunal system more informal,
user-friendly and generally more efficient, we would support it.
However, I should be grateful if the Minister enlightened us further.
These are probing amendments.
Simon
Hughes (North Southwark and Bermondsey) (LD): There are
four amendments in the group, but only the lead amendment relates to
the clause; the other three relate to clauses 11 and 12. I do not
support the first amendment in the group, because I believe it is
important that there should be a general power of review left to the
lower-level tribunal. That is something that tribunals need to do,
because there may be factual inaccuracies or information given may need
to be corrected. There are all sorts of reasons why it is sensible for
the same tribunal to return to a matter if something is pointed out,
whether on direction from elsewhere or, as the Bill says, instigated by
the tribunal. That process should not be fettered. I understand that,
at the moment, although the Minister will no doubt
correct us, such a return is generally likely to be on points of fact,
evidence or procedure, but it could be on a point of law as well if
that were
necessary.
The more
substantive matters are covered by amendments Nos. 45, 46 and 49, which
would allow a right of appeal to the upper tribunal, and not only on a
point of law. That is a significant matter. There is merit in amendment
No. 49, which would allow a right of appeal not just on a matter of
law, but in respect of where the facts did not bear out or justify the
decision, or on a question of fact with the leave of the higher
tribunal. However, I am nervous about the idea that factual matters
cannot be appealed against and that only legal matters can be appealed
against. There are all sorts of cases, from past experience, where the
facts do not lead to the tribunal’s conclusion. I have been
involved in some cases like that and I am sure that Committee
colleagues have,
too.
I realise that
this is not a new matter—like most things in the
Bill—because it has already been to the House of Lords and there
has already been at least one set of discussions on it. However, a
fairly strong case was put in the Lords for ensuring that there was a
wider power of review by the upper tribunal of the lower
tribunal. If we are going to keep things in the tribunal system and
prevent them from going to the Court of Appeal, or from going outside
the tribunal system to a higher court, which is more expensive, would
take longer and so on, we should allow the two levels of tribunal to
sort things out as much as
possible.
One does not
want the ability to have a completely new run of the case at the upper
tribunal, in the same way as it was run in the lower tribunal. One
should not be able simply to appeal for the sake of it, with no check
or balance. At the moment, in your constituency, Mr. Bercow,
as in mine, many parents will have received letters telling them that
their child cannot go to the school that was the family’s first
choice. An appeal system is permitted in such cases in almost every
school, apart from—anomalously—city technology colleges,
where there is no appeal system, which is an injustice that has never
been corrected. Many people appeal against such decisions as a matter
of course, simply because they want a review and cannot believe that
they should not get into the school that is near them. I understand
that we do not want a tribunal system that allows an appeal as a matter
of course, in effect, to a similar body, although one tier up, simply
to hear the facts. The onus is on the Government to argue for such a
restriction. I hope that the Minister is sympathetic, at least to
amendment No. 49 and, if not, to a variant of amendment No. 45, but
resists amendment No.
40.
Vera
Baird:
This is about the tribunal’s review powers
and the right of onward appeal. The first tier tribunal can be reviewed
or appealed against. Appeals are only to correct errors of law or to
clarify the law, but essentially they are to correct accidental errors.
The hon. Member for North-West Norfolk has put his finger on what the
review panel is about. A review can be done either through the
tribunal’s own initiative or on application by a person who has
a right of appeal. As he said, the point is to ensure that only those
cases that lead to appeal go there.
There are parallels. The hon.
Gentleman referred to the civil procedure rules. Rule 40.12 provides
for slips and omissions in civil courts to be corrected without the
need for an appeal. Section 155 of the Criminal Courts (Sentencing) Act
2000 provides a slip rule for the criminal courts to vary or rescind a
sentence within 28 days. There is a similar power in section 142 of the
Magistrates’ Courts Act 1980. Those are the precedents that he
sought from
me.
Similar amendments
were tabled in the House of Lords. We modified the review provisions to
make sure that they were not too wide. They are now subject to tribunal
procedure rules that can be used, for example, to stop frivolous
applications for review for the sake of it—of the sort that the
hon. Member for North Southwark and Bermondsey conjured up in his
analogy of school appeals. I hope that I have satisfied him about
reviews.
As for
broadening the scope of appeal to the upper tribunals, the pattern is
that the first tier is to hear appeals from the decision maker. It will
consider all the evidence. It will make findings of fact and, where
necessary, law. It would be completely disproportionate to set up
another tribunal that could rerun that. However, if the first tier
tribunal gets the law wrong or substantive issues of law need an
authoritative ruling, the upper tribunal is there to deal with such
matters. Without it, those rulings would have to go to the High Court
or the Court of Session to be made. It is exactly the model that we are
used to through the employment tribunals, the Employment Appeal
Tribunal and the social security commissioners. It is straightforward
and flexible.
The hon.
Member for North Southwark and Bermondsey mentioned manifestly
unreasonable conclusions on the facts and the importance of having a
ground of appeal wide enough to stop those automatically from going out
into the more expensive, more complex and longer procedure of judicial
review. We feel confident that our error of law is wide enough to deal
with manifestly unreasonable conclusions on the facts. I hope that both
hon. Gentlemen will accept that we have struck a fair and proportionate
balance and that the amendments can be
withdrawn.
Mr.
Bellingham:
I am grateful to the Minister for her
explanation of the amendments to which I spoke earlier. Further to the
point made by the hon. Member for North Southwark and Bermondsey, will
the hon. and learned Lady comment on the Tsfayo case that was raised in
the other place by Lord Maclennan of Rogart? It is not sub judice; the
case was heard before the European Court of Human Rights. The Tsfayo
party won the case. The decision was that the facts could be brought
forward on appeal, not only a point of law. Will she comment on what
was discussed in the House of Lords? I understand that her colleague
said that the Government would provide more detail about it at a later
stage. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
9 ordered to stand part of the
Bill.
Clauses
10 and 11 ordered to stand part of the
Bill.
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