The
Committee consisted of the following
Members:
Bellingham,
Mr. Henry
(North-West Norfolk)
(Con)
Davidson,
Mr. Ian
(Glasgow, South-West)
(Lab/Co-op)
Featherstone,
Lynne
(Hornsey and Wood Green)
(LD)
Hesford,
Stephen
(Wirral, West)
(Lab)
Howarth,
David
(Cambridge)
(LD)
Hurd,
Mr. Nick
(Ruislip-Northwood)
(Con)
Jenkins,
Mr. Brian
(Tamworth)
(Lab)
Khan,
Mr. Sadiq
(Tooting)
(Lab)
Ladyman,
Dr. Stephen
(South Thanet)
(Lab)
Linton,
Martin
(Battersea)
(Lab)
Malins,
Mr. Humfrey
(Woking)
(Con)
Ottaway,
Richard
(Croydon, South)
(Con)
Prentice,
Bridget
(Parliamentary Under-Secretary of State for
Justice)
Singh,
Mr. Marsha
(Bradford, West)
(Lab)
Slaughter,
Mr. Andy
(Ealing, Acton and Shepherd's Bush)
(Lab)
Taylor,
Mr. Ian
(Esher and Walton)
(Con)
Mark Oxborough, Committee
Clerk
attended the
Committee
Ninth
Delegated Legislation
Committee
Wednesday 25
June
2008
[John
Bercow in the
Chair]
Draft First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008
2.30
pm
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): I beg to
move,
That
the Committee has considered the draft First-tier Tribunal and Upper
Tribunal (Composition of Tribunal) Order
2008.
The
Chairman: With this it will be convenient to consider the
draft Transfer of Tribunal Functions Order 2008 and the
draft Appeals from the Upper Tribunal to the Court of Appeal Order
2008.
Bridget
Prentice: It is a joy to serve under your chairmanship,
Mr. Bercow. I have a very long speech that goes through the
orders in minute detail, but the hon. Member for North-West Norfolk has
just reminded me that he was a member of the Tribunals, Courts and
Enforcement Public Bill Committee, so I will not need to keep the
Committee for as long as I had
intended.
We
established a unified administration for tribunals in April 2006. The
first-tier tribunal and the upper tribunal will bring together existing
Ministry of Justice tribunals and tribunals from other Departments.
They will be led by the senior president, Lord Justice Carnwath, who
was appointed in October 2007 under the Tribunals, Courts and
Enforcement Act 2007. The first-tier tribunal will be the first
instance tribunal for most jurisdictions, and appeals from the original
decision-making body will usually commence there. The upper tribunal
will deal with appeals from that tribunal and from some outside the
unified system, and will also have the power to deal with judicial
review work delegated from the High Court. A few specialist cases will
commence in the upper tribunal. Onward appeal will only be with
permission and on a point of law, both from the first-tier tribunal to
the upper tribunal and from the upper tribunal to the Court of Appeal
or the Court of Session.
David
Howarth (Cambridge) (LD): I have no desire to make a
speech on the orders, but have one question about the appeals from the
upper tribunal to the Court of Appeal, which is dealt with by the third
order under consideration. The Minister has just said that there will
be an appeal on a point of law, both from the first instance tribunal
to the upper tribunal and from the upper tribunal to the Court of
Appeal or the Court of Session. However, that is not what the order
states. It states that
the proposed
appeal would raise some important point of principle or practice;
or...some other compelling reason.
Will the Minister at
some point address the question of why those words were chosen, rather
than her reference to a point of law?
Bridget
Prentice: It is always dangerous to make opening remarks
in front of learned lawyers, in any situation. I will come back to the
hon. Gentleman on that issue shortly.
The main base
of the upper tribunal will be in central London, but it will be able to
hear cases throughout the United Kingdom. Both the first-tier tribunal
and the upper tribunal will be split into chambers, grouping together
similar jurisdictions. Those groupings will be flexible so that they
can maintain and expand the expertise and incorporate new jurisdictions
where they fit best. It will be possible for judges and members to be
invited to sit in other jurisdictions, but only if they satisfy the
eligibility criteria, have undertaken any necessary training and if
there is a business need. It is important that we provide a good
service and that that specialist expertise is protected and
improved.
There will be
chamber presidents, whose role will be to maintain and improve that
expertise, and they will usually be selected by the Judicial
Appointments Commission. Their aim will be to ensure that the proper
degree of judicial expertise is brought to bear on cases, and they will
also be judges of the upper tribunal. Each jurisdiction will have a
principal judge. They will be the current leads in the jurisdiction,
providing continuity in judicial leadership within the new
system.
There
will also be a tribunal procedure committee that will bring greater
consistency and simplicity to tribunal procedure rules. The members of
that committee have been appointed by the Lord Chancellor, the Lord
Chief Justice, the Lord President and the senior president of
tribunals.
The new
system will have greater flexibility in absorbing new work or
responding to fluctuations. It allows the introduction of a more
coherent appellate system for tribunals and clarification of the
relationship of tribunals to the principles set out in the
Constitutional Reform Act 2005. It will also create more adaptable
boundaries between courts and tribunals by allowing the courts to
transfer certain types of case to tribunals. We had a consultation,
from November last year to February this year, and I am pleased to say
that, on the whole, the proposals were well supported. Some
respondents, however, were concerned that we should have more clarity,
particularly in relation to non-legal members and protecting the
expertise of individual jurisdictions. I hope that we have been able to
allay those concerns in the response paper. I want to thank the
judiciary and my officials for working hard to get that message
across.
Over time,
the administrative reforms will also re-engineer business processes to
improve case management and to explore alternatives to standard
hearings, such as mediation, conciliation, and support and advice
services. We are committed to the ongoing transformation of our
tribunals, placing the userthe consumer, if you like,
Mr. Bercowat the heart of the service. The orders
today are a significant step towards achieving that. We have decided to
phase in the introduction of the new system, starting in November this
year, so that we do not disrupt service delivery. Nevertheless, we want
to do it as soon as is
practicable.
The
draft Transfer of Tribunal Functions Order effects the transfer of
various existing tribunals listed in schedule 1 to the first-tier
tribunal and the upper tribunal established under section 3 of the 2007
Act. The order has various primary functions, contains various minor,
consequential
and transitional provisions, effects the transfer of functions, and
abolishes the greater part of the tribunals from which those functions
are transferred. It also provides for members of those tribunals
themselves to be transferred to hold offices in the new tribunals.
Where the original office has not been abolished, the office holders
will hold both the old and the new offices. The order also provides for
onward appeal rights from decisions of specified tribunals in Wales,
Scotland and Northern Ireland to be heard in the upper
tribunal.
The draft
Appeals from the Upper Tribunal to the Court of Appeal Order relates to
permission or leave to appeal from the upper tribunal to the Court of
Appeal in England, Wales and Northern Ireland, and applies where the
appeal before the upper tribunal had been made on a point of law from a
decision made by the first-tier tribunal. It provides that permission
or leave will be granted only where the upper tribunal or the relevant
appellate court considers that the proposed appeal would raise some
important point of principle or practice, or where there is some other
compelling reason for the relevant appellate court to hear the
appeal.
The
different articles in the order provide for appeal to the Court of
Appeal, including the Court of Appeal in Northern Ireland, from
decisions made by the upper tribunal. It also defines a specific
categoryapplications for permission or leave to appeal from any
decision of the upper tribunal which was itself made on appeal from the
first-tier tribunal. It further provides that the Lord Chancellor may,
by order, make provision for permission or leave in that specific
category to be granted only where the appeal satisfies one of the
requirements listed in section 13(6)(a) or (b) of the 2007
Act.
We
believe that any further application for permission or leave should
satisfy at least one of the requirements without exception. That
restriction is necessary as the appellant will already have had two
appealstwo opportunities for their case to be heardand,
therefore, it is a system well established by the courts.
The draft
First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order
requires the Lord Chancellor to make provision for the number of
members on a tribunal panel and to decide whether those members should
be judges or non-legal members. It further enables those duties of the
Lord Chancellor to be carried out by the senior president of tribunals.
The order requires the senior president to determine the number of
members of a first-tier tribunal. In doing so, he is required to have
regard to the practice that existed in the tribunal before it was
transferred: for example, if it had three members on the panel. The
senior president must have regard to the need for members to have
expertise in particular areas.
The upper
tribunal will consist of one member, unless the senior president
determines otherwise. Where the tribunal consists of a single member,
that member will be a judge, unless the senior president determines
that it should be one of the other members. Where a tribunal consists
of two or three members, the senior president will determine how many
members will be judges and how many will be other members. On that
basis, I commend the orders to the
Committee.
2.40
pm
Mr.
Henry Bellingham (North-West Norfolk) (Con): I am grateful
to the Minister for explaining the situation so clearly. As she rightly
said, I led for the Opposition on the Tribunals, Courts and Enforcement
Bill. We support the principle of a single unified tribunal system, but
I have five quick questions to ask. I should be happy for the Minister
to write to me if she has not got the answers to
hand.
Will
the new unified appeal structure, which we support, take pressure off
the divisional court and the Court of
Appeal?
2.41
pm
Sitting
suspended for a Division in the
House.
2.56
pm
On
resuming
Mr.
Bellingham: The Opposition supported the concept of the
unified single system for tribunals. We took the view that the vast
majority of our constituents will, hopefully, never come into contact
with the courts system, but that those who do will probably have some
interface with tribunals, because they deal with a host of different
matters. Therefore it is important that this tier of the judicial
system is well run, user-friendly and able to deal
expeditiously and efficiently with
problems.
When
what became the Tribunals, Courts and Enforcement Act 2007 was being
considered, we made a point that is relevant to these orders, which
fill in the gaps left by that Act. Have there been any significant
savings from bringing in a new unified system? We asked that question a
year ago and the then Ministers said that they would be able to tell
us, perhaps within six to 12 months or so, whether any savings had been
brought about as a result of the new
structure.
There
is mention in the orders of the consultation paper,
Transforming Tribunals. In fact, the Minister alluded
to it when she said that there had been a significant number of
responses. I think that she said that 144 responses were received,
which is a good figure.
During the
progress of the Tribunals, Courts and Enforcement Bill through
Committee, in the House and in the other place, there was a certain
amount of discussion of the use of the word judge. We
take the view that using the word judge is important in
certain contexts, and that it is equally important to ensure that it is
not devalued in any way. I am not suggesting that the heads of the
tribunals do not do a good jobthey certainly dobut
there is some doubt in the minds of people in the profession and the
judiciary whether the heads of these tribunals should be called judges
as a matter of course. Has there been any feedback on that
point?
The
draft Transfer of Tribunal Functions Order spells out the different
tribunals that are coming into the new unified system under phase one.
When does the Minister expect the tax commissioners to come into the
unified tribunal system? We tabled an amendment on Report to take the
tax commissioners out of the unified tribunal system on the basis that
they are a special case. There is a real argument for keeping a local
system in place and
taking that provision away from the unified system. Was there any
feedback on that during the consultation? For example, did the
association of the commissioners or of the clerks to the commissioners
write to the Minister or advance any ideas on how those people should
be treated in
future?
Article
28 of the order, on page 13, mentions the House of Commons
Disqualification Act 1975. I presume that that refers to those offices
under the Crown that would disqualify a member of any party from
remaining a Member of Parliament. If someone took such a paid office
under the Crown, they would have to resign from this place. Presumably,
some of the judicial offices under consideration would constitute an
office of the Crown, whereas others would not. Will the Minister
explain that? It is a relevant question, and I would be grateful if she
would consider
it.
Broadly,
the orders under consideration today are the first phase of filling in
an empty shell. The Act, which received Royal Assent in July 2007,
created a shell into which different tribunals would be moved, in order
that the whole unified system could start working more efficiently,
hopefully serving our constituents with a degree of extra efficiency,
competence and speed, which we all know is important. I very much hope
that the Minister will come up with some answers to my questions. If
she cannot do so today, I would be happy to receive a letter from her
in due
course.
3.1
pm
David
Howarth: I do not want to add to the questions asked by
the hon. Member for North-West Norfolk, except to say that I have no
problem with using the word judge for the particular
officials under discussion. I did ask one question, and I want to check
whether my understanding of the answer is correct.
As I
understand it, the provision is an extra screening device. Appeals move
from the first tier to the upper tier, in the ordinary way, on points
of law. To go beyond that, there have to be more important points of
law, rather than principle in some other sense. I have not seen the
particular phrase,
some important
point of principle
used elsewhere in such
legislation. I understand that it is in the parent Act, so there
probably is not much choice. However, I would not want the Court of
Appeal or the upper tier tribunal to spend a vast amount of time trying
to distinguish between a rule and a principle. That does not strike me
as a particularly good use of judicial
time.
3.2
pm
Bridget
Prentice: The hon. Member for Cambridge understands
correctly. I hope that I have now clarified that. He is quite right: we
would not want the upper tribunal to spend its time dancing on the head
of a pin, making those kinds of distinctions. The wording has not been
produced for the order under consideration. It was set down in section
13(6) of the
Act.
The
word judge is also in the Act, and that was not
considered in the consultation. As far as the tax commissioners are
concerned, they are due to join the system in April 2009, and the
majority of respondents to the consultation were in favour of
that.
The hon.
Member for North-West Norfolk also asked whether the order would take
pressure off the divisional court and Court of Appeal. The answer is
yes, because it will allow for some judicial reviews, for example, to
be transferred directly to the upper tribunal. It also creates onward
appeal rights in the upper tribunal for appeals which would previously
have been heard in the High Court.
The hon.
Gentleman also asked about savings. There will be savings. Again, I am
not yet able to give him specific details of that. There will of course
be a little expenditure initially, to get the system up and running,
but I hope that within a year of full running of the system we will be
able to give him much more detailed information on savings, for
example, from the use of multi-jurisdictional centres and improved
jurisdictional and geographical performance. All those things will
ultimately produce quite significant savings.
If I have not
answered any of the hon. Gentlemans questions, Mr.
Bercow, I will of course write to him, to you and to the other members
of the Committee. On that basis, I commend the order to the
Committee.
Question
put and agreed to.
Resolved,
That the
Committee has considered the Draft First-tier Tribunal and Upper
Tribunal (Composition of Tribunal) Order
2008.
DRAFT
TRANSFER OF TRIBUNAL FUNCTIONS ORDER 2008
Resolved,
That
the Committee has considered the draft Transfer of Tribunal Functions
Order 2008.[Bridget
Prentice.]
DRAFT
APPEALS FROM THE UPPER TRIBUNAL TO THE COURT OF APPEAL ORDER
2008
Resolved,
That the
Committee has considered the draft Appeals from the Upper Tribunal to
the Court of Appeal Order 2008.[Bridget
Prentice.]
Committee
rose at five minutes past Three
oclock