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Session 2008 - 09
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Public Bill Committee Debates

The Committee consisted of the following Members:

Chairman: Joan Walley
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Browne, Des (Kilmarnock and Loudoun) (Lab)
Clarke, Mr. Tom (Coatbridge, Chryston and Bellshill) (Lab)
Coffey, Ann (Stockport) (Lab)
Field, Mr. Mark (Cities of London and Westminster) (Con)
Greenway, Mr. John (Ryedale) (Con)
Hall, Mr. Mike (Weaver Vale) (Lab)
Harris, Mr. Tom (Glasgow, South) (Lab)
Holmes, Paul (Chesterfield) (LD)
Howarth, David (Cambridge) (LD)
Jones, Helen (Vice-Chamberlain of Her Majesty's Household)
Prentice, Bridget (Parliamentary Under-Secretary of State for Justice)
Turner, Mr. Neil (Wigan) (Lab)
Twigg, Derek (Halton) (Lab)
Walter, Mr. Robert (North Dorset) (Con)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Mark Etherton, Committee Clerk
† attended the Committee

Fifth Delegated Legislation Committee

Tuesday 23 June 2009

[Joan Walley in the Chair]

Draft Transfer of Functions of the Consumer Credit Appeals Tribunal 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 Functions of the Consumer Credit Appeals Tribunal Order 2009.
The Chairman: With this it will be convenient to consider the draft Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 and the draft Transfer of Functions (Transport Tribunal and Appeal Panel) Order 2009.
Bridget Prentice: The orders transfer the entire jurisdictions of the Consumer Credit Appeals Tribunal and the Estate Agents Appeals Panel, and most of the jurisdiction of the Transport Tribunal, into the First-tier Tribunal and Upper Tribunal created under the Tribunals, Courts and Enforcement Act 2007. I shall not go into the details, because I am sure that colleagues on both sides of the Committee know the history behind that Act and that this is just another phase in the transfer of those tribunals to the new, modern, unified and independent tribunals system. The orders provide for the first transfers into the new general regulatory chamber of the First-tier Tribunal, which will be established on 1 September this year. A separate order, subject to the negative resolution procedure, will amend the existing chambers order to establish and assign functions to the general regulatory chamber and the administrative appeals chamber of the Upper Tribunal as appropriate.
I shall deal with the Consumer Credit Appeals Tribunal and the Estate Agents Appeals Panel together. Article 2 of the Consumer Credit Appeals Tribunal order and the Estate Agents Appeals Panel order transfer their entire jurisdictions into the First-tier Tribunal and abolish the Consumer Credit Appeals Tribunal and the Estate Agents Appeals Panel. Article 3 of both orders provide for members of the tribunal and panel to be transferred to hold offices in the new First-tier Tribunal and, in the case of the president of the Consumer Credit Appeals Tribunal, in the Upper Tribunal. Article 4 of the Consumer Credit Appeals Tribunal order and article 5 of the Estate Agents Appeals Panel order provide for consequential amendments to, and repeals and revocations of, primary and secondary legislation and transitional and savings provisions. Those are set out in full in the schedules. Article 4 of the Estate Agents Appeals Panel order adds the London Service Permits Appeals Panel to the table in part 4 of schedule 6 to the 2007 Act. That brings the London Service Permits Appeals Panel within the scope of the Lord Chancellor’s power to transfer tribunal functions to the First-tier Tribunal or the Upper Tribunal. The functions of this panel are transferred to the First-tier Tribunal in the Transport Tribunal order.
Article 2 of the Transport Tribunal order transfers part of the jurisdiction of the Transport Tribunal to the First-tier Tribunal and part to the Upper Tribunal. The jurisdiction to hear appeals from decisions of traffic commissioners transfers to the Upper Tribunal administrative appeals chamber. Unlike most transfer orders, this order does not abolish the Transport Tribunal, as it is necessary to retain it to hear appeals under the Transport (Scotland) Act 2001. As a devolved matter, that function of the Transport Tribunal cannot be transferred in the order. An amendment by way of primary legislation is needed before that can be achieved, and the Scottish Government will have to consider whether they wish to transfer the appeal route in the 2001 Act to the Upper Tribunal when an appropriate legislative opportunity arises.
Additionally, the Transport Tribunal will retain jurisdiction to hear appeals in relation to quality contract schemes introduced by the Transport Act 2000, as amended, which have yet to be brought into force. We cannot transfer those provisions now, because no decision has been taken on where the appeals should lie. A decision will be made after a forthcoming consultation has considered responses to that question. We intend to make an order transferring the functions of the Transport Tribunal in relation to quality contract schemes as soon as we can following completion of the consultation. Article 4 provides for consequential amendments to and repeals and revocations of primary and secondary legislation and transitional and saving provisions. They are set out in full in the schedules.
The Government are committed to the ongoing transformation of our tribunals, placing the user at the very heart of the service. The unified system will have greater flexibility in absorbing new work and responding to fluctuations. The orders are another significant step towards achieving that. I commend them to the Committee.
4.35 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under your chairmanship, Ms Walley. It is interesting to note that we debated another tribunal order about a week ago; the Chairman served the Committee with such distinction and aplomb that a week later he was dragged to the Speaker’s Chair. Chairing tribunal orders obviously brings good luck, and I hope that good luck comes your way in due course, Ms Walley.
It was a pleasure to listen to the Minister; she always explains herself succinctly and clearly. The Opposition support the principle of a united tribunals service. We supported the Leggatt report, and we support most of the Tribunals, Courts and Enforcement Act 2007.
As the Minister explained, the order creates two distinct types of tribunals—a first tier and a second tier. The Upper Tribunal, the latter tier, will be used mainly to hear appeals, but some functions will go straight there. Will she explain in more detail the difference between the two tiers, and say why the upper tier, as well as hearing appeals from the first tier, is to deal also with the work of former tribunals?
For example, the Minister mentioned the Transport Tribunal. Driving Standards Agency appeals will go to the first tier, but appeals from the traffic commissioners will go straight to the Upper Tribunal. Why should the commissioners carry more weight than the agency? Is there a difference in the importance of the work that they do? They both do important work, yet the appeals of one go to the upper tier and those of the other go to the first tier. Will the Minister explain that in more detail?
I refer again to the Transport Tribunal appeal panel order and paragraph 7.5 of the explanatory notes. It states:
“A separate order will provide for this jurisdiction to be dealt with in the General Regulatory Chamber”.
What is the need for a separate order? We are debating all three orders today. Does it mean that yet another statutory instrument will come before the House?
The Minister said that part of the transport order will go ahead but that the other part will not abolish the Transport Tribunal as such; it will have to remain in place because the matter is devolved to Scotland. Will she elaborate on that? Scotland has always had a separate legal system. Those of us from the south have come to terms with that early in their training. I declare an interest as a barrister; having done the odd case in Scotland, I have always been impressed by the Scottish legal system. Will the Minister explain why the tribunal should remain in place given that Scotland has a separate legal system? I may have missed something, and I hope that she will go into the matter in a little more detail.
I note that 67 respondents to the consultation process appeared to approve of the proposals and had no significant questions. That implies that 19 had concerns, or were not prepared to give their unqualified approval. Will the Minister explain the nature of the concerns that were expressed, and say whether the various interested parties expressed outright opposition? In particular, when the Bill was passing through Committee, although we supported the principle of a unified tribunal service we had concerns about a possible need for greater specialist knowledge.
In the old system there was a significant level of expertise in each of the separate tribunals, covering different Government Departments. The chairs of the tribunals—judges, as they are now called—had significant experience and expertise of dealing with those particular matters and issues that emanated from the tribunals they dealt with day in, day out. In a unified system, judges will move across the different functions. Does the Minister share the concern that there may well be cases where extra specialist knowledge is needed, and how will that be dealt with? Will there be an annual monitoring and review process? If there are concerns, particularly about the level of expertise in some limited areas, will that be picked up in any monitoring process? How will that be reported to her Department and what action would be taken?
Will the Minister also say something about current cases and transitional arrangements? We need to know that cases that are under way in the existing tribunals will be able to complete their process through the tribunal system and be able to take any action in terms of appeal if necessary. There will be a cut-off date and all new appeals will migrate to the new system.
Finally, can the Minister say something about any cost savings? Presumably in a unified system there will be some cost savings. Will there be any cost savings for the different Government Departments acting as the sponsoring Departments for the existing tribunals, and if so, when will those cost savings take place?
We support the principle of what the Minister is doing and feel that this is the right way to go. With those few reservations, we give the Minister our support this afternoon.
4.41 pm
Paul Holmes (Chesterfield) (LD): As the Minister has already explained and as the hon. Member for North-West Norfolk has touched upon, this is an ongoing process. Stages have already taken place of implementing part 1 of the Tribunals, Courts and Enforcement Act 2007 to create the First-tier Tribunal and Upper Tribunal to replace the previous system. That Act was the final outcome of the review by Sir Andrew Leggatt, which received widespread support from all concerned.
The Liberal Democrats have generally supported all the moves into the new system, with just one or two reservations. There was support because a lot of the tribunals that originally existed had been overseen by the very Government Departments that appeals were being made against. That was not desirable and hence the review has led to the introduction of the new system.
There have been some concerns, however. There was concern over the Pensions Appeal Tribunal but that was met when a separate War Pensions and Armed Forces Compensation Chamber was set up last October. There were concerns, which are still being debated in the Borders, Citizenship and Immigration Bill, about the transfer of asylum cases. One has been solved and one is being debated elsewhere. In general, therefore, we support the thrust of these measures and the four particular transfers that are before us.
I have three specific questions. The first has already been touched upon by the hon. Member for North-West Norfolk. In the summary of responses published by the Government, they said that there had been 140 responses and that there had been so many people saying this or so many people expressing doubts. The summary did not, however, quote any detail of what people who were expressing doubts were actually saying. It would be interesting to have a steer from the Minister on what the outstanding doubts or criticisms were from the respondents, as opposed to the bald figures in the Government summary. To what extent did the Government respond to those criticisms as they brought forward the various stages, like the four tribunals that we are looking at today?
In the Government summary of the consultations, they pointed out that, in the consultation over the Transport Tribunal, the Government recognised that some of the doubts that had been expressed were valid. They said they would undertake further consultation and look at that process before they brought forward the order before us today. It would be interesting if the Minister would tell us exactly what changes they have made as a result of that further consultation that they refer to in their summary and that are implemented in the order today.
The Government initially set themselves a timetable of implementing all the changeovers by April 2009 and we are now past that date. Could the Minister comment on the reasons for the delay? Was that because of the further consultation, as on the transport order, and what is the envisaged completion date for total implementation of the 2007 Act and the transfer of all tribunals?
4.45 pm
Bridget Prentice: I will try to deal with those points in the order in which they were asked. First, I thank both the hon. Member for North-West Norfolk and the hon. Member for Chesterfield for being supportive of these transfers. There has been consistent support for the new tribunal structure.
The hon. Member for North-West Norfolk asked probably one of the most important questions, about the differing tier availability for the Transport Tribunal. We have done that because, in 2007, we set out in the consultation paper “Transforming Tribunals” that the appeals from traffic commissioners would transfer to the Upper Tribunal. That is partly because those commissioners are a tribunal themselves, and overseen by the Administrative Justice and Tribunals Council in its supervisory role. It seemed right that appeals from the traffic commissioners’ decisions should lie with the Upper Tribunal, because of its appellate jurisdiction.
Appeals that are not from the decisions of the traffic commissioners seem more appropriate for the general regulatory chamber of the first tier, because that deals with first-instance appeals from decisions made by public sector bodies on matters that affect companies or organisations rather than individuals. If the hon. Gentleman needs further assurance, that split has generally been welcomed by stakeholders of the tribunal.
The hon. Member for North-West Norfolk also asked why Scotland was not included. There are no legal powers under the 2007 Act to allow the transfer of appeal rights under the Transport (Scotland) Act 2001. It remains for the Scottish Government and Scottish Ministers to decide whether to move those appeals into the unified tribunal structure. If the Scottish Executive decide to do that, they will have to find a suitable legislative vehicle for that to happen; it cannot be dealt with without further legislation. At the moment, no one has identified such a suitable vehicle, so the question has not been put to Scottish Ministers, but should appropriate potential legislation come forward we will, no doubt, then be able to speak with them.
Mr. Bellingham: Am I right that Scotland has its own tribunals service in place?
Bridget Prentice: It does, to the extent that it has its own service in some areas, but it also uses the United Kingdom Tribunals Service for many other issues. That is why we have had to make this specific reference to Scotland on transport, whereas in previous transfers we have not. The hon. Gentleman also asked whether we would need a separate order to create the general regulatory chamber; the answer is ‘No’. The chambers have all been created and the functions assigned using the negative procedure.
On transitional provisions, which the hon. Gentleman also asked about, as in previous examples we hope that we have made sure that cases currently being heard will not be affected by the transfer. Any hearing that has been commenced but not yet completed will be completed by a panel consisting of the same members. Directions and orders made by a transferring tribunal prior to this order coming into force will continue in force as if they were directions or orders from the First-tier Tribunal or the Upper Tribunal, as appropriate.
The hon. Gentleman was concerned, too, about the reporting of the efficiency of the tribunals. I hope that I can assure him that that will be closely monitored, and that the senior president will be required to prepare an annual report under Section 43 of the 2007 Act. Both he and the hon. Member for Chesterfield are, rightly, concerned about the concerns of stakeholders, particularly those who may not have been as enthusiastic about some aspects of this as the majority. We consulted stakeholders and when they expressed reservations, we agreed to consult them again, as the hon. Member for Chesterfield said. Permission to appeal is not needed under section 11 of the 2007 Act. Those concerns were ironed out by explaining to stakeholders that they were satisfied by the original Act.
The hon. Member for Chesterfield said rightly that we are beyond April 2009, by which time we had wanted all of this to take place. Frankly, that is because this is a complex set of transfers. We have continued to engage with stakeholders to ensure that they are aware of the progress in each tribunal area. The hon. Gentleman mentioned the issues with the war pensions tribunal last year. I spent many months taking the stakeholders through what we would do. We changed our view as a result of those consultations.
Given that I bang on all the time about putting the consumer at the heart of the system, I would rather be a couple of months late with the structure and get it right so that stakeholders and consumers feel confident about it, than put it through because of a date we had pulled out of the air. On that basis, I hope that the hon. Gentleman feels able to continue to support the orders.
Question put and agreed to.


That the Committee has considered the draft Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009.—(Bridget Prentice.)


That the Committee has considered the draft Transfer of Functions (Transport Tribunal and Appeal Panel) Order 2009.—(Bridget Prentice.)
4.52 pm
Committee rose.

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