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Public Bill Committee Debates

Draft Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009



The Committee consisted of the following Members:

Chairman: Joan Walley
Baldry, Tony (Banbury) (Con)
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Cairns, David (Inverclyde) (Lab)
Hemming, John (Birmingham, Yardley) (LD)
Hesford, Stephen (Wirral, West) (Lab)
Howarth, David (Cambridge) (LD)
Ladyman, Dr. Stephen (South Thanet) (Lab)
Lucas, Ian (Wrexham) (Lab)
Mates, Mr. Michael (East Hampshire) (Con)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
Plaskitt, Mr. James (Warwick and Leamington) (Lab)
Prentice, Bridget (Parliamentary Under-Secretary of State for Justice)
Roy, Lindsay (Glenrothes) (Lab)
Smith, Mr. Andrew (Oxford, East) (Lab)
Syms, Mr. Robert (Poole) (Con)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Eliot Wilson, Committee Clerk
† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 28 April 2009

[Joan Walley in the Chair]

Draft Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009

4.30 pm
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): I beg to move,
That the Committee has considered the draft Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009.
This is the first time I have had the pleasure of serving on a delegated legislation Committee under your chairmanship, Ms Walley, and I am delighted that you are here with us. I hope that I shall not detain hon. Members longer than necessary. [Hon. Members: “Hear, hear!”] Shall I stop there?
The order abolishes the Lands Tribunal and transfers its entire jurisdiction to the upper tribunal of the new tribunal system created in July 2007 by the Tribunals, Courts and Enforcement Act 2007 as part of our commitment to providing a truly modern, unified and independent tribunal system. The Act is the culmination of many years of hard work to reform the tribunal system, which was set in motion by Sir Andrew Leggatt’s review. It provides for first and upper-tier tribunals, creating a unified appeal structure. In November, the three first-tier chambers commenced their work. Those are the social entitlement chamber, the health, education and social care chamber, and the war pensions and armed forces compensation chamber. At that time, the administrative appeals chamber of the upper tribunal was also established. The order provides for the Lands Tribunal jurisdiction to be transferred to the upper tribunal.
We had a consultation in which we set out a three-chamber structure for the upper tribunal, proposing to recreate the Lands Tribunal substantially unchanged in the upper tribunal. Our intention was to preserve and enhance the special qualities that the Lands Tribunal brings to the new structure, with priority being given to continuity. Responses to the consultation showed strong support for that approach.
Alongside that transfer, a new lands chamber of the upper tribunal will be established from 1 June. That will be achieved by a separate order, subject to the negative procedure, which will amend the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 to establish and assign functions to the lands chamber. That reflects the intention that it should deal exclusively with the existing jurisdiction of the Lands Tribunal.
Each chamber, under the Act, is required to have a chamber president, whose role is to maintain and improve the chamber’s expertise. The upper tribunal lands chamber will have a chamber president selected by the Judicial Appointments Commission. The order also provides for the transfer of existing Lands Tribunal judges and members to the new system as judges and members of the upper tribunal. It is essential to ensure a good service that specialist expertise should be protected and improved, and that continuity should be maintained.
Current surveyor members of the Lands Tribunal will be transferred to the new chamber. Circuit judges or other upper tribunal judges with the necessary expertise will also be able to hear cases. Rules can be made by the Tribunal Procedure Committee, which was created under the Act, and rules are in place for each of the chambers of the first-tier tribunal and the upper tribunal that have already come into effect.
For jurisdictions that have already transferred to the new system, the new rules have replaced the rules that applied to previous tribunals. However, in contrast to the approach adopted by previous orders under the Act, this order retains the existing Lands Tribunal rules, amending them to the extent necessary to bring them into line with the new structure. That will enable the existing rules to apply to the lands chamber of the upper tribunal at its commencement.
That approach has the support of the senior president of tribunals. It is an interim measure and the aim is to have rules made by the Tribunal Procedure Committee, which will apply to the lands chamber in due course. That will be achieved through the committee’s making further rules, on which there will be a consultation later this year. We are also making provision for the current fee structure for Lands Tribunal work to apply to appeals in the new chamber, once the transfer takes effect. Again, that will be done through a separate order, subject to the negative procedure.
The approach that we have adopted means that stakeholders and users of the tribunal will see little change in procedure when the transfer takes place. Although this will not be its formal title, the Lands Tribunal name will be retained for the time being to ensure continuity. We have not, therefore, conducted a separate consultation on the transfer, although we have kept stakeholders and users informed of progress via correspondence and the internet.
The order effects the transfer of the Lands Tribunal to the upper tribunal established under section 3 of the Act. Transitional provisions in the order ensure that cases currently being heard by the Lands Tribunal will not be adversely affected by the transfer. A hearing that is commenced but not completed will be completed in the upper tribunal, which will comprise the same members. Directions and orders made before this order comes into force will continue in force as if they were directions or orders of the upper tribunal.
The order contains various minor, consequential and transitional provisions in respect of the transfers. Article 2 effects the transfer of the functions of the Lands Tribunal to the upper tribunal and abolishes the Lands Tribunal as it currently exists. Article 3 provides for members of the tribunal to hold offices in the upper tribunal. Where the original office has not been abolished, office holders will hold both the old and the new office.
Articles 4 and 5 provide for consequential amendments to primary and secondary legislation and Church Measures. Those are mainly set out in full in schedules 1 to 3 of the order, although article 5 makes global changes to references to the Lands Tribunal in local and private Acts and in certain types of local order relating to transport.
The order also provides for minor amendments that do not relate to the transfer of the Lands Tribunal. Those provisions amend legislation as a consequence of earlier transfers or in relation to the implementation of other provisions of the 2007 Act.
The Government are committed to the ongoing transformation of our tribunals, placing the user at the heart of the service. The new system will have greater flexibility to absorb new work and respond to fluctuations, and the order is another significant step towards achieving that. I commend it to the Committee.
4.37 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a great pleasure to serve under your chairmanship, Ms Walley, and I thank the Minister for her clear explanation of the order.
I sat on the Committee that considered the Tribunals, Courts and Enforcement Bill, which brought in the new, unified tribunal service, and we certainly support the order in principle. Tribunals do a huge amount of good work, and it is important that they are made as user-friendly as possible. I should declare an interest as a barrister who has appeared before the tribunal. I also represent a large rural constituency, and issues to do with the agriculture industry end up before the tribunal from time to time when disputes happen.
Most of the work done by the Lands Tribunal concerns compensation that flows from an array of different legislation. Much of that legislation goes back quite a long way. For example, there is the National Parks and Access to the Countryside Act 1949 and the Opencast Coal Act 1958. I even saw an old favourite of mine, the Cardiff Bay Barrage Act 1993. In another incarnation, after a bout of bad behaviour on my part in the House, the Whips put me on the Committee that dealt with the private Bill. The proceedings went on for about a year and a half and were chaired by the late and much lamented Lord Banks. I well remember the Bill’s various provisions dealing with compensation.
The Lands Tribunal does an absolutely first-class job, and I am pleased that, as the Minister explained, there will be a seamless transition. We obviously need continuity, and I would be grateful if she confirmed that none of the cases that are under way will be affected or disrupted by the changes.
The Minister mentioned the need to preserve the character and tradition of the Lands Tribunal, and I am surprised that it will be placed in the upper chamber. When we dealt with the Tribunals, Courts and Enforcement Bill in Committee, it was my understanding that the upper chamber would focus primarily on appeals and that the different tribunals that heard cases at the first instance would be in the lower chamber. Is the Lands Tribunal being put in the upper chamber to help to preserve its characteristics and traditions? If so, Conservative Members will obviously endorse what the Minister has done, but might it create difficulties with some other tribunals that in the main go into the first chamber?
The good news is that the Lands Tribunal Rules 1996, which we believe have worked well and have stood the test of time, will be left pretty much as they are, with just the odd technical change. That is obviously in stark contrast to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, which we voted against about a month and a half ago.
I wish to ask the Minister about the parts of the order that do not refer to the Lands Tribunal. On the penultimate page of the order—on page 53, where it says “Consequential provisions”—there are a number of amendments that do not relate to the transfer of Lands Tribunal functions. It concerns me a little that paragraphs 161 and 162 of schedule 1, which amends the Mental Health Act 1983, pick up on omissions and mistakes made when we dealt with the Transfer of Tribunal Functions Order 2008. Will the Minister elaborate on why those small omissions were made?
Paragraph 226 of schedule 1, which amends the Child Support Act 1991, transfers functions that were incorrectly transferred from the Lord Chancellor to the First Minister of Northern Ireland under the 2008 order. Why was that not got right at the time? Is this order the right vehicle through which to make these, albeit fairly small and technical, changes? The same can be said about paragraph 245 of schedule 1, which refers to the Revenue and Customs Appeals Order 2009. How come what that particular consequential provision does was not included in the 2009 order, which was dealt with the other day under, I think, the negative resolution procedure? We did not pray against it, and it went through without any discussion in Committee.
It appears that one or two errors have been made. Is this the right way to sort the situation out? Will the Minister explain that to the Committee, putting our minds at rest that no other mistakes will have to be corrected at a later stage?
Although I have those few concerns, I again thank the Minister for explaining what the order does. My hon. Friend the Member for Rugby and Kenilworth and I both take the view that when the Government get things right, it is appropriate to say so, and they are doing a good job sorting out the tribunal service. They are following the Leggatt report, and we will have a more user-friendly, more effective, more focused and—above all, in these hair-shirt times—more cost-effective tribunal service.
4.43 pm
John Hemming (Birmingham, Yardley) (LD): It is a pleasure to serve, for the first time I think, on a Committee chaired by you, Ms Walley.
One interesting thing about the various judicial systems in this country is how the routes of appeal vary. There is the Adjudication Panel for England, which goes through the administrative court to the Court of Appeal, and this particular upper chamber tribunal, which will then go straight to the Court of Appeal. Has the Minister assessed what pressures that might place on the civil Court of Appeal?
My party supported the principle of the 2007 Act, and we will support this change, but there is the question of what impact it might have on the work load of the Court of Appeal.
4.44 pm
Bridget Prentice: I shall take the helpful and positive response from the hon. Member for North-West Norfolk first. I am delighted that he is prepared to support the order. As he said, he has always been prepared to support the Government when he sees them making the right decisions.
First, I can confirm that any case that is being heard in the Lands Tribunal will not be affected. When it moves, it will go to the upper tribunal and be heard by the same people who are currently hearing the case. As far as the individual or consumer is concerned, they should see no difference whatever.
The hon. Gentleman also asked, “Why the upper tribunal at all and not a first-tier tribunal?” This is the only tribunal that will transfer to the upper tier. The reason for that is that the onward appeal from the Lands Tribunal goes directly to the Court of Appeal, and therefore, we have preserved that same level of transfer—that is the reason why that is in there.
The hon. Gentleman then asked some important questions about other bits of the order—anomalous, if you like, Ms Walley, in that they deal with other aspects. To be perfectly frank, these are complex and complicated changes involving transfer to the new system. It has been a detailed area of work, which inevitably means that some things get missed and some have to be changed, because when they were established, it was seen that they were not working exactly as was first envisaged.
As the new structure has started to bed in, some issues have arisen, so it is appropriate to use this vehicle, which is part of the whole transfer procedure, to correct errors where there have been errors or to clarify the intention, if that was not clear in the past.
In particular, the hon. Gentleman asked about the Mental Health Act 1983. Paragraph 161 of schedule 1 amends the 1983 Act to ensure that a patient who withdraws their appeal to the first-tier tribunal can remake that application. The amendment relates to the transfer of mental health review tribunals to the first-tier tribunal, which was effected by the Transfer of Tribunal Functions Order 2008.
Paragraph 162 of the schedule also amends the 1983 Act, allowing members of the first-tier tribunal, who may hear mental health cases, to sit on a mental health review tribunal for Wales. That preserves the position that existed under paragraph 5 of schedule 2 to the 1983 Act before the abolition of England’s mental health review tribunal and its transfer to the first-tier tribunal and upper tribunal under the 2008 order.
Paragraph 245 of schedule 1 amends the Tribunals and Inquiries Act 1992 to remove a reference to the VAT and duties tribunal, which was abolished by the Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009.
Paragraph 288 of schedule 1 amends the Criminal Justice and Immigration Act 2008 to remove a reference to rules made under the Immigration and Asylum Act 1999, which were revoked by the 2008 order.
Paragraph 54 of schedule 2 removes a reference to the Council on Tribunals, which was abolished under section 45 of the 2007 Act.
There are other orders, but I hope that I have given the hon. Gentleman the general gist as to why those changes have been made, where things have been picked up. Due to the complexity of these matters, perhaps certain things fell by the wayside—or otherwise, once issues arose and it was seen that they needed to be tweaked in other ways.
The hon. Gentleman asked whether this is the right way to correct errors. I think that it is. It is better that we act using this method, rather than allow things to lie and perhaps have to make much more major changes in primary legislation further down the line. As we are going through the process of transfer to the new tribunal system, this seems to be the most appropriate way to deal with these matters, as hon. Members such as the hon. Gentleman can pick up on the issues and raise them through the proper parliamentary process.
The hon. Member for Birmingham, Yardley asked about the impact on the Court of Appeal. Yes, there has been an impact, in that there are already appeals going to that Court, although no additional appeal rights have been created by the order. But certainly, the Court of Appeal is enjoying some more work, which is not necessarily a bad thing if the consumer gets the best and the most just result. I hope that, on that basis, the hon. Gentleman will support the order.
Question put and agreed to.
4.51 pm
Committee rose.
 
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