The
Committee consisted of the following
Members:
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
Leggatts 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 chambers 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 committees 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
Bills 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 orderon page 53,
where it says Consequential provisionsthere 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 andabove all, in these hair-shirt timesmore
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
transferthat is the reason why that is in
there.
The
hon. Gentleman then asked some important questions about other bits of
the orderanomalous, 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 Englands mental
health review tribunal and its transfer to the first-tier tribunal and
upper tribunal under the 2008 order.
Paragraph 226
of schedule 1 amends the Child Support Act 1991, correcting an error in
the 2008 order by
transferring functions that were incorrectly transferred from the Lord
Chancellor to the First Minister and the Deputy First Minister of
Northern Ireland back to the Lord Chancellor. That is because it was
not appropriate that they were transferred in the first
place.
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 waysideor 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.