House of Commons
|Session 2008 - 09|
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Public Bill Committee Debates
Draft Transfer of Functions of the Charity Tribunal Order 2009
The Committee consisted of the following Members:
Mark Oxborough, Committee Clerk
attended the Committee
Ninth Delegated Legislation Committee
Wednesday 24 June 2009
[Mr. Clive Betts in the Chair]
Draft Transfer of Functions of the Charity Tribunal Order 2009
That the Committee has considered the draft Transfer of Functions of the Charity Tribunal Order 2009.
It is a delight to serve under your chairmanship, Mr. Betts, and I will do my best to keep on your right side by being as brief as I possibly can.
The order will transfer the entire jurisdiction of the Charity Tribunal into the first-tier tribunal and the upper tribunal of the new unified structure. The Charity Tribunal will therefore be abolished. It will be one of the first jurisdictions to transfer into the new general regulatory chamber of the first-tier tribunal, which will be established on 1 September this year. The jurisdiction will also transfer in part to the finance and tax chamber of the upper tribunal.
A separate order, subject to the negative resolution procedure, will amend the existing chambers order to establish and assign functions to these chambers. Cases will be heard in the first-tier tribunal, except where it is decided, by or under tribunal procedure rules, that the upper tribunal is better suited to hear a particular case, for example where the case raises complex or unusual issues or its importance merits being dealt with in the upper tribunal, which being a superior court of record can set precedent.
Onward appeals from the Charity Tribunal are currently dealt with by the chancery division of the High Court. Onward appeals from the first-tier chamber will be dealt with in what is currently the finance and tax chamber of the upper tribunal. That is headed by a judge from the chancery division, and other chancery division judiciary may sit in the chamber alongside upper tribunal judges. To reflect the extended remit of that chamber it will now be renamed the tax and chancery chamber, in the amendment to the chambers order that I referred to earlier. Onward appeals from the tax and chancery chamber, as with other chambers of the upper tribunal, are directly to the Court of Appeal. The order provides for the transfers of existing judges and members of the Charity Tribunal into the first-tier or upper tribunal, which is essential for ensuring that good service is maintained and existing specialist expertise is protected.
Rules for the general regulatory chamber will be made by the tribunal procedure committee. The committee is chaired by a Lord Justice of Appeal, Lord Justice Elias, and includes representatives from a number of organisations, including the Administrative Justice and Tribunals Council, the Bar pro bono unit, and the free representation unit. The rules are made with the agreement of the Lord Chancellor and laid before Parliament under the negative procedure.
Transitional provisions in the order ensure that cases currently being heard by the Charity Tribunal will not be adversely affected by the transfer. Any hearing that has commenced but is not completed will be completed by a panel comprising the same members. Directions and orders made by the Charity Tribunal prior to this order coming into force will continue in force as if they were directions from the first-tier tribunal. Article 3 provides for members of the tribunal and panel to be transferred to hold offices in the first-tier tribunal and, in the case of the president of the Charity Tribunal, in the upper tribunal. 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. This is our commitment to an ongoing transformation of our tribunals, putting the user at the heart of the service, which will have a greater flexibility in absorbing new work and responding to fluctuations. I hope that the Committee can agree the order.
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a great pleasure to serve under your chairmanship, Mr. Betts. I thank the Minister for her explanation of todays order. Will she please explain to the Committee why the order could not be grouped with the ones we dealt with yesterdaythe transfer of functions of the consumer credit appeals tribunal, estate agents appeals and the transport tribunal and appeal panel order? They are very similar to the one we are dealing with today. I should be grateful if she would explain why they could not be heard together, as we would have been comfortable with that.
In her short and eloquent speech, the Minister explained that most cases will be going through to the first-tier tribunal but some will be referred straight to the upper tribunal. She mentioned that those going straight to the upper tribunal would be the most complex and unusual cases. Will she give us some examples of cases that will go straight to the upper tier, rather than the first tier? It would be useful to have some idea whether two or three per year will go to the upper tribunal or whether there will be a regular transfer of cases to the upper tribunal. Obviously, there are implications, because as she rightly pointed out, where there is an appeal from the upper tribunal, that would be straight to the Court of Appeal and the implications of that are quite significant in terms of cost and of the number of lawyers and others involved in the case. Will she tell the Committee how much consultation has taken place?
We saw in the explanatory notes for the orders that were discussed yesterday that 67 responses were listed. Does that include people who are involved in the current Charity Tribunal? Will the Minister elaborate on that? Will the new deputy judges and the transferred-in judges be on exactly the same rates of pay and conditions? Will they have the same pension arrangements? Will the Minister also elaborate on the point she touched onthese transferred-in judges and indeed the deputy judge in the upper tribunal will have to hear other cases as well, so they will certainly not be dedicated judges. Is she concerned that some of the dedicated expertise of the Charity Tribunal will be, perhaps not lost, but too widely dispersed in both the first tier and the upper tribunal? Obviously, in more complex cases, it is very important that the
We have said for some time that we believe strongly in a unified tribunal service with greater flexibility, with cases dealt with more speedily, with more focus on the needs of the consumer and with everything easier for the consumer to understand. Will there be any savings to the Ministry of Justice and to the public purse and HM Courts Service as a result, not just of todays order, but of the orders we considered yesterday as well? I thank the Minister again; perhaps she will elaborate on those points.
Paul Holmes (Chesterfield) (LD): The new Speaker has urged us all, Front Benchers and Back Benchers, to make our points with all possible brevity and I would endorse the point that yesterday in the Fifth Delegated Legislation Committee we raised all the relevant points related to the transfer of the tribunals on consumer credit, on estate agents and on transport and all the same points apply again today. They were raised yesterday and answered yesterday and the only new point I have to raisethe hon. Member for North-West Norfolk touched on it at the start of his commentsis, why could we not have done all four together? They were all listed together; we could have done all four together. I am sure there is some very good, arcane procedural reason and I look forward with bated breath to the Ministers explanation.
Bridget Prentice: Let me deal with the issue of why the order was not dealt with together with yesterdays orders. My understanding is that we had three orders yesterday, and apparently we are only allowed to do three at a time. I can tell the hon. Gentleman that, through the usual channels, it has been emphasised to us that if we can group these orders together, we should do so and we intend to do that as far as possible. I beg forgiveness of my colleagues and Opposition Members, who have been with me through many of these tribunal-changing orderssome of us did not realise how many
The hon. Member for North-West Norfolk also asked about expertise. Expertise is very important in all tribunals, but to some extent charity tribunals have a particular expertise. I emphasise that the judiciary and members of the present Charity Tribunal will transfer into the general regulatory chamber and will continue to hear charity appeals, applications and references. The Attorney-General, as the constitutional protector of charity, can also refer questions on charity law to the tribunal as well as being able to intervene on individual appeals.
The hon. Gentleman also asked whether stakeholders had been involved with the consultation. They have and the president of the charity tribunal, Alison McKenna, gave a speech to the Charity Law Association setting out our intentions. In January we wrote to external stakeholders raising awareness of the changes and providing users with another opportunity to raise any questions that they might have. As well as the Cabinet Office code of practice and consultation, the tribunal procedure committee also consulted publicly on procedure rules for charity appeals following the transfer. That finished in May.
The hon. Gentleman also asked whether judges would be on the same rates of pay and pensions. The answer is that they will.
The cases heard in the upper tribunal would most likely be the ones that I have described, such as references from the Attorney-Generalthe more complex cases, the ones that would need to set a precedent for the first tier to follow. Those would be the cases heard in the upper tribunal, so I do not expect there to be very many in any given year. Court of Appeal judges are aware of that and they do not feel that there will be an excessive work load as a result.
I hope that has covered all the issues that have been raised. On that basis, Mr. Betts, I ask the Committee to approve the orders.
Question put and agreed to.
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