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Lord Borrie: Like others, I too feel deprived at not being able to discuss the earlier amendment relating to three-person tribunals, but we must at this stage make do. While it is surely gratifying to any lawyer to hear the words that have been spoken on various sides of this House as to how important it is that legal qualification should be available for the chairmanship of a tribunal and, if it be a one-person tribunal, that that person be a lawyer, I believe that that is all a little too rigid and inflexible. The noble Baroness, Lady Anelay, said that she thought it odd to have a tribunal with only one
person upon it. But surely we all realise that, on appeal from social security appeal tribunals, the appeal goes to a single social security commissioner.
Baroness Anelay of St. Johns: Perhaps the noble Lord will allow me to intervene. I was attempting--obviously failing dramatically--to make the point that the word "tribunal" from its classical root refers to three people. I know that we commonly use it to refer to one, but I am afraid that my joke fell as flat as a pancake.
Lord Borrie: I am delighted with that explanation. However, one should not feel that it is only appropriate for adjudications to be performed by at least three people. The desire on the part of the Government, which I accept, to get away from the rigidity of a three-person tribunal is not in any way due to a feeling that a three-person tribunal is in some way bad or should not be the norm. I believe everybody will accept that a three-person tribunal with a lawyer chairman should be the norm; that most cases should go to such tribunals. There is a legal complexity in this field of law which suggests that that is the best kind of tribunal.
We have heard referred to more than once the excellent research done by Professor Kathleen Bell, indicating how poor were some of the decisions at supplementary benefit tribunals when they did not have a lawyer as chairman. But there was a certain rigidity in the views expressed which made me want to intervene.
One of the most popular forms of adjudication at the present time, and one which has been much praised by the noble and learned Lord, Lord Woolf, in his examination of civil justice, is the system of arbitrators and ombudsmen who sit typically alone in order to determine complaints of various kinds. I remind the Committee that some of the existing ombudsmen, including the first one on a statutory basis--namely, the Parliamentary Commissioner for Administration--are not lawyers. Indeed, in one of the fields in the private sector most close to social security--namely, insurance--while the present ombudsman is a lawyer (though he was never a practising lawyer; he was a professor of law), the Legal Services Ombudsman is, by statute, specifically not to be a lawyer.
I draw attention to those examples by way of indicating what does not seem to have been mentioned so far and I feel should be mentioned; that is, that good chairmanship, impartiality and fairness are not exclusive attributes of lawyers; they are perfectly capable of being displayed by others. I feel therefore that some of the contributions were a little extreme. Indeed, some of the briefing which I--probably because I spoke in the Second Reading debate--and no doubt other Members of the Committee received went a bit overboard.
Perhaps the Government can reassure me that the three-person tribunal with a lawyer chairman towards which over the years we have moved in this field and in industrial tribunals and so forth is to be the norm, but that for purposes of flexibility and because some cases are straightforward, there can be, for instance, a medical practitioner or an expert in disability sitting alone. One should not insist that in every single case there should
be a three-person tribunal, or a lawyer chairman or, if the single-person tribunal is allowed to exist, that it must always be a lawyer who sits.I find a certain rigidity present in the provision and therefore, despite the respect with which I hold all those who have put their name to the amendment from all parts of the Chamber, they are a little more extreme than I would wish.
10.30 p.m.
Lord Goodhart: I wish to make a brief point. The noble Lord, Lord Borrie, referred to having received briefings. I should point out that on this occasion I have received briefings in support of the legally qualified chairman or member from the National Association of Citizens' Advice Bureaux, the Legal Action Group, the Child Poverty Action Group and the Law Society. While one might well say that the Law Society "would say that, wouldn't it?", I do not think one would take the same attitude towards the CABs or the Child Poverty Action Group; or even to the Legal Action Group, which, after all, is regarded by many mainstream lawyers as something of a pain in the neck.
Lord Borrie: There is no dispute between us. I have received briefing of the very kind the noble Lord has mentioned from all those bodies. I hold them in respect as I hold noble Lords in respect. I feel a little lonely in this regard but I feel that they, like some of your Lordships, have been a little extreme is saying that there is only one possible way to deal with appeals-- there must be three persons and there must be a lawyer chairman.
Earl Russell: The noble Lord, Lord Borrie, is, as always, absolutely fascinating to listen to and what he says calls for a great deal of thought. But I wonder whether the cases he has advanced are on all fours with the one we are discussing here. He dwelt for some time on the ombudsman. He is right about the ombudsman's functions and how he discharges them. But the ombudsman is not exactly a judicial officer. He does not try cases and give a judgment. The ombudsman is a conciliator and a negotiator. He is, if I may so put it, part of the usual channels of administration. We know perfectly well that that is a great skill and a valuable one. But it is not exactly the same skill that leads to judgment in a case, which is what one has in a tribunal.
The noble Lord, Lord Borrie, touched on the parallel of what happens in the insurance industry. But that does not quite match--indeed, very few things exactly match--the extraordinary range of topics which come to be discussed within a social security appeal tribunal, because that tribunal is dealing both with law and with fact. The facts with which it is dealing may be of a quite extraordinarily wide range. An industrial injury dispute or a habitual residence dispute may involve totally different types of expertise. I take the noble Lord's point about there being a single commissioner. But the commissioner is concerned normally with establishing law. It is the peculiar combination of the need to establish both the law and the facts which means that
the range of skills needed here is so extraordinarily wide; and that is why I am rather doubtful whether one person ever can have all of them.
Lord Hardie: I start by apologising to my noble and learned friend Lord Archer for unwittingly unsaddling him from his horse. I would also make a similar apology to the noble Lord, Lord Goodhart, if I knew what particular games or sports he indulges in. I compliment the noble Baroness, Lady Anelay, on her judgment in choosing a lawyer for a husband. I am grateful to my noble friend Lord Borrie for his intervention.
I should perhaps declare an interest. As noble Lords will be aware, I am a lawyer, and I have never been in receipt of so many compliments about my profession as I have heard in the past 35 minutes. I have taken it to mean Scottish lawyers as well.
There may well be a misunderstanding on the part of noble Lords as to what is being proposed and the reasons for it. The reasons have already been referred to. Appeals currently take, on average, more than six months to resolve and some take a year or even longer. I think all noble Lords will accept that that is quite unacceptable. An enormous variety of cases come before tribunals under the current system. The effect of that is that fairly straightforward cases have to wait their turn in the queue and require to wait longer than one might reasonably expect for a decision.
The aim of the Government and of these provisions is to match the types of appeal to the right type of appeal tribunal. Perhaps I may continue to use the word "tribunal", even in the context of single-person hearings, for the sake of simplicity and consistency in Hansard. If we match the types of cases to the right type of tribunal, cases can be resolved more quickly. The proposals will enable the expertise of members to be targeted more effectively on those appeals which need it. That means improved waiting times for all appellants.
Perhaps I may give your Lordships some examples and thus reassure the Committee that every appeal will receive appropriate consideration. A three-person tribunal comprising experts in law, medicine and the needs of disabled persons will be required for an appeal against a decision on the disability living allowance relating to the mobility or care components of the benefit. A tribunal of two people--a legally qualified member and a member with knowledge or experience of employment opportunities--might hear an appeal against a decision on a job-seeker's agreement. A case where the only issue in dispute is whether a particular disease has been diagnosed could be heard by a medical practitioner with knowledge of the condition sitting alone. An appeal which is solely about whether a claimant satisfies--
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