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Baroness Hollis of Heigham: The thrust of the noble Earl's response was to ask what "may be" might mean. To put it negatively to start with, I do not believe it was ever intended that, because a claimant had recourse to appeal, that equates to "may be" in legislative terms. We have had arguments in this Chamber over many years about the payment of benefit while pursuing appeals. The implication of the noble Earl's position would be that anyone who went to appeal thereby produced a "may be" case and therefore an entitlement to interim payments of benefit. The read-across implication of that for the DSS would be huge. It would mean that, in every benefit area, anyone would be encouraged to go to appeal in the knowledge that, if the appeal was some six or nine months away, the benefit would continue to be paid under a "may be" criterion for the whole of that six to nine months and until the appeal was disposed of either way, even though the Secretary of State had previously assured herself at the time when she made the original judgment that she was satisfied that the claim was ill-founded. So, to put it negatively, it would not be expected to apply to that.

On the contrary, "may be" is meant in this instance to be an enabling power allowing the Secretary of State to act where no claim has been made but where it might be impracticable for one to be made immediately; where such a claim has been made but it cannot be immediately determined; or where an award has been made but it is impracticable to pay the whole immediately. In other words, it is a discretion on administrative grounds, not an issue about the payment of benefit, almost like a hardship payment, while an appeal is being pursued, with implications for the rest of social security legislation.

Earl Russell: The Minister has given almost exactly the answer I expected. I understand the case that she makes. It is perfectly true. I think the case that I am making is perfectly true also. What we need to consider is which of those cases is more important. That is something that we might better do at our leisure, and quietly. Therefore, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clauses 4 and 5 agreed to.

Clause 6 [Lord Chancellor's panel for appointment to appeal tribunals]:

Lord Archer of Sandwell moved Amendment No. 19:

Page 3, line 25, after ("shall") insert ("after consultation with the President").

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The noble and learned Lord said: With this amendment, it may be for the convenience of the Committee to discuss Amendment No. 20. I set down these amendments partly as a crusader, partly as a seeker after truth. I should at the outset make a declaration which I omitted to make in the course of my former intervention--namely, that I am privileged to be chairman of the Council on Tribunals, which has expressed views on a range of matters relating to the Bill. I hope that, in the interests of promoting expedition and avoiding tedium, Members of the Committee will accept that declaration as applying throughout the Committee stage.

In fact, these amendments were suggested not by the Council on Tribunals but by His Honour Judge Bassingthwaighte, the former president of the ITS, in the memorandum which has already been referred to this evening and which he circulated in December. In that memorandum he referred to the proposal that the Lord Chancellor should appoint members to the panel for appeal tribunals. Of course, we all agree that normally appointments to judicial office should be by the Lord Chancellor and certainly not by, for example, the Secretary of State, who in effect will be a party to many of the disputes. However, Judge Bassingthwaighte expressed concern at the logistical problems which that may raise.

In the last reporting year there were 178 appointments in England, Wales and Scotland and 60 part-time chairmen. I assume that not all existing members and chairmen will be automatic appointments to the new panels since part of the purpose of the exercise is to produce a different range of expertise.

Recruiting and appointing the required number of members may well be a formidable operation. It is not likely that all potential candidates will be known to the Lord Chancellor and his officials; it seems probable that they will have to consult. Who will be consulted? Not, I hope, the Secretary of State or her officials. In appointing a judge, one does not consult one of the parties to the litigation which he will have to decide. Judge Bassingthwaighte suggested that it would be sensible to consult the president, who would be in the best position to know the numbers and the range of expertise required. He, in turn, would consult with his administrators, but it would be wrong in both principle and practice to short-circuit that process by consulting directly and only with the administrators.

If it is said, "Of course, the Lord Chancellor will consult the president; you do not need to write it into the Bill", we shall all have a feeling of deja vu and we shall return the usual answer, "If it is to be done in any event, why not say so in the Bill?"

The present arrangement, which seems to work quite well, is that the Lord Chancellor appoints the chairman, who will now be legally qualified, and other members are appointed by the president. I assume that the change is explained by the fact that all members will now be expected to have a specific expertise. That is the subject of Amendment No. 20, to which I shall speak in a moment. If there is a reason for omitting a role for the president from the text of the Bill, it would be

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enlightening to be told what that reason is. There is clearly no principle of keeping consultation requirements off the face of the Bill. That brings me to Amendment No. 20.

On the face of it, the provision in Clause 6(2) is surprising. As the Bill stands, the Lord Chancellor is not required to consult anyone before appointing members, whatever the expertise in respect of which they are appointed, with one exception. Before appointing a medical practitioner, he is required to consult the Chief Medical Officer. I suggest that that is puzzling, for two reasons. First, while I understand that the Lord Chancellor has no medical expertise and therefore may not know who is and who is not a good doctor, there is no similar requirement in respect of those appointed for their skills in accountancy or for their actuarial skills. I assume that the Lord Chancellor will take advice from whomever he considers necessary; there is nothing to prevent him doing so. Perhaps it would be better to write that into the Bill. A moment ago I complained that one possible consultation requirement was not written into the Bill. But, of all potential consultees, why select just one, a medical officer? That is the first reason why it is surprising.

There is a second and more worrying reason. The Government's Chief Medical Officer can hardly be described as independent. Surely he is an official of the DoH, the very department whose decisions are being challenged? At present, when consultants are appointed to MATs there is consultation with the president of the appropriate Royal college. If the candidate is not a consultant but a general practitioner, there must be a number of doctors familiar with his abilities. But how can my noble and learned friend justify consultation with the Government's own Chief Medical Officer?

I say at once that I have not had the pleasure of meeting the Chief Medical Officer. I have no reason to believe that he is less than completely fair. But that is not what independence is about. There should be no input from a potentially interested party, not even a potential conflict of interests. I therefore raise two questions with my noble and learned friend and look forward with curiosity, if not with anxiety, to his answers. I beg to move.

Baroness Anelay of St. Johns: I support Amendment No. 19 in the name of the noble and learned Lord, Lord Archer, and my noble friend Lord Higgins, and Amendment No. 20.

The noble and learned Lord began by making a declaration of interest with regard to his long experience in the world of tribunals as chairman of the Council on Tribunals. Indeed, I have respected his work over the past few years. Perhaps therefore I should add my declaration of interest--I am tempted to say past interest. I was a lay member of tribunals from 1982 until August 1996 when I had a direct interest. I now have a personal interest but do not benefit from any of the results of the Bill unless, as a member of the public, I make a claim at some stage and appeal against the decision.

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I should like to identify myself with all the remarks made by the noble and learned Lord, Lord Archer, and with the underlying spirit of his amendment. He is a crusader and seeker after truth. He carefully and clearly put forward the arguments which Judge Bassingthwaighte presented to us in a memorandum circulated before Second Reading.

Within my definition, these are modest amendments in that they are practical, useful and certainly not damaging to the rest of the Bill. I hope therefore that when the noble and learned Lord replies he will indicate that both of these commonsense amendments will be accepted.

Lord Hardie: I regret to disappoint the noble Baroness, Lady Anelay. I am grateful to my noble and learned friend Lord Archer for proposing Amendments Nos. 19 and 20 because this gives me the opportunity to explain how the appointments process will work in practice.

At present, the Lord Chancellor, in consultation with me, as Lord Advocate, appoints the chairmen of all tribunal jurisdictions within the Independent Tribunal Service. Tribunal members are currently appointed by the president, but he has no formal role in the appointment of the chairmen, who are all legally qualified. The Lord Chancellor, as a matter of good practice, involves the president closely in the appointments process and the president, or another member of the ITS judiciary, almost invariably sits on the relevant interview panel. In addition, in appropriate cases, the Lord Chancellor also consults other members of the judiciary on the suitability of candidates for those offices. As my noble and learned friend observed, the Lord Chancellor may consult anyone he wishes, prior to making an appointment.

My noble and learned friend the Lord Chancellor believes that the independence of panel members is most effectively guaranteed if the power of appointment is vested in him alone, as it is under the existing legislation for chairmen.

It is important to bear in mind that in the new system, confidence will depend on people having confidence in the independence of the chairmen and of the panel members. The starting point, then, is to have all of them appointed by the Lord Chancellor. It is also the position in respect of other judicial appointments to tribunals for which the Lord Chancellor is responsible that he has the power of appointment vested in him alone. We share the Lord Chancellor's view and have therefore made provision in Clause 6 for all appointments to the panel to be made by him.

The effect of Amendment No. 19 would be to create a statutory requirement for the Lord Chancellor to consult the president before setting up the panel of persons who will act as members of, and experts to, appeal tribunals. Clearly, the president, as judicial head of appeal tribunals, will have an interest in ensuring that the panel comprises sufficient numbers of persons with the right expertise from whom he may draw properly constituted and equipped appeal tribunals. As I said, it

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is the current practice of my noble and learned friend the Lord Chancellor to involve the president closely in the selection process, and he will continue to do so.

However, the Lord Chancellor considers that it would be inappropriate for a requirement for consultation with the president to be on the face of the Bill. Why restrict it to the president? It would also be out of step with other jurisdictions for which the Lord Chancellor has appointment responsibilities and would dilute the responsibility which he holds as a Minister and for which he is answerable to Parliament. I share that view.

In relation to Amendment No. 20, my noble and learned friend the Lord Chancellor and I are also both in agreement that the appointment of medical practitioners to the panel is a special case. That is why Clause 6 requires the Lord Chancellor to consult the Chief Medical Officer with respect to medical expertise. If I may pause and take up a point made by my noble and learned friend Lord Archer, the Chief Medical Officer is employed by the Department of Health and not by the department which is a party to the cases before the appeal tribunals.

Furthermore, why should medics be in a different position from members of other professions? Other professions--for example, accountants and solicitors--tend to have standard qualifications and belong to a small number of professional bodies. Medical practitioners, on the other hand, have a wide range of medical qualifications and experience. Some specialise in general practice while others specialise in particular discrete areas of medicine. The Chief Medical Officers have access to information on all types of medical practitioners and are best placed to advise the Lord Chancellor on suitable appointments, bearing in mind that different expertise will be required for different types of tribunal.

The Lord Chancellor will need to appoint general practitioners to deal with straightforward medical appeals but he will also require a wide range of specialists and consultants who have specific expertise in particular areas. For example, vaccine damage appeals will require the expertise of medical practitioners with experience of the effects of vaccines on childhood conditions. Industrial injuries cases, which raise a medical issue in relation to a prescribed disease, will require the expertise of a medical practitioner with knowledge of the particular condition. It is appropriate that the Chief Medical Officer should be the person to give guidance to the Lord Chancellor on the appropriate person to appoint to the pool of candidates from whom the president would select a panel member.

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