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Public Bill Committee Debates

Draft First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008



The Committee consisted of the following Members:

Chairman: John Bercow
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 user—the consumer, if you like, Mr. Bercow—at 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 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 category—applications 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 appeals—two opportunities for their case to be heard—and, 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 job—they certainly do—but 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. Gentleman’s 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 o’clock
 
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