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Earl Russell: With respect, how would it be known in advance that that would be the only issue that would arise? We should remember the fate of the noble Lord, Lord Mishcon.

Lord Hardie: I take on board what the noble Earl says, but I shall explain later that there will be detailed regulations setting out the types of cases which will go

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to a three-person tribunal, which I expect will be the majority of cases; the types of cases that will go to a two-person tribunal; and the types of cases that will go to a one-person tribunal. I shall also indicate that, to meet the concern of the Delegated Powers Scrutiny Committee, we shall bring forward an amendment to make regulations under Clause 8 subject to the affirmative procedure so that your Lordships will have the opportunity to scrutinise the proposals on which types of appeal will go to the different types of tribunal. Your Lordships and Parliament can thus be satisfied that all appeals will be dealt with by people with appropriate expertise.

Our aim and the object of the regulations will be to secure that people are dealt with not only expeditiously, but also, and more importantly, that they are dealt with by an appropriate tribunal comprising people or an individual with the appropriate skills to determine that type of case.

Having discussed this matter in some detail prior to this week, I understand that the regulations will err on the side of caution, so that if there is any doubt about whether a case should be heard by one person or two persons, it will be heard by two persons; and if there is any doubt about whether it should be heard by two or three persons, it will be heard by three persons. That is how the regulations will be formulated. Again, I expect that in a three-person tribunal it is likely--although I cannot say absolutely--that the chairman will be legally qualified.

In the context of an individual hearing a case, it is my position and that of the Government that it does not necessarily follow that that person should be legally qualified. There may be matters which can more appropriately be determined by an individual who does not have a legal qualification but who has been given appropriate training to enable him or her to determine the issues which he or she will face.

I take the point made by my noble friend Lord Borrie. There are other examples of individuals who are not legally qualified and who make decisions on important issues involving questions of law and fact. I do not believe that it is necessary to have a legally qualified chairman in cases where there is only one person. Having said that, I am aware of the strength of feeling expressed, this evening. In view of the concerns expressed I shall reflect further on whether the individual should be legally qualified. In case there is any doubt, I do not undertake to table an amendment at a later stage. It is very much like the indication that my noble friend Lord Williams, the Solicitor-General and I gave at various stages of the Crime and Disorder Bill. While we shall think about it, there is no commitment on our part to table an amendment on this issue at a later stage.

As to the "three persons" issue, the Committee has heard the Government's position. The regulations, which will be subject to the affirmative procedure, will be laid before Parliament and will be subject to scrutiny. Noble Lords will have an opportunity to ensure that appropriate safeguards are in place when the regulations are debated.

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In the light of those explanations, I invite the noble Baroness to withdraw her amendment and the noble Lord, Lord Goodhart, not to move Amendment No. 28, which are the only two that the Committee has been discussing.

Baroness Anelay of St. Johns: I thank the noble and learned Lord for his full reply. I appear to be the only participant in the debate to restrict myself to my own amendment. That is not a criticism of others but an expression of thanks. The noble Baroness says that if I do not do that, who else should? I rather regret the fact that I was so self-disciplined, but I am relieved that other noble Lords did not feel so constrained. Although we were somewhat pre-empted unexpectedly by not being able to deal with the previous two amendments concerning the value of three-person tribunals, nonetheless those arguments have in part been rehearsed. I am pleased that I held my fire as to that. I believe that, despite the speech of the noble and learned Lord, there are serious issues to be considered with regard to three-person tribunals to which noble Lords may wish to return or approach at Report stage, since the Committee has not had a chance to deal with those matters effectively today.

The noble and learned Lord said that regulations would spell out ways in which tribunals of fewer than three people could tackle certain cases and that it would be possible to match cases to the expertise on tribunals. But I believe that the noble Lord, Lord Goodhart, and the noble Earl, Lord Russell, said that that in itself required a degree of pre-sifting--in other words, pre-judgment--by the tribunal service as to what the core issues of an appeal might be.

Later noble Lords will have the opportunity to discuss an amendment relating to the inquisitorial nature of the tribunal. If it is the Government's intent that tribunals should cease to have a full inquisitorial function, naturally I accept the argument of the noble and learned Lord that it is easier to match tribunals to cases. However, I hope to be able to persuade the Government to retain some of the inquisitorial nature of the tribunal. It performs a very valuable function.

The noble and learned Lord also said that if a person sitting alone was not legally qualified he or she would nevertheless be legally trained in order to deal with the particular issues.

In this case, such a person would not have recourse, on the spot, to detailed, legal back-up. As the Committee will be aware, the clerk who services an appeal tribunal is a person who pays the expenses, and carries out the functions for which I was grateful, such as making the tea and providing biscuits out of the allowances from the ITS. The clerk's function is not to provide legal advice.

When the changes were made to the tribunal structure in 1984 the grade of the civil servant, as it then was, who provided the service of clerking the tribunal was downgraded. It has remained at a lower grade. That layman would not have recourse to an intimate knowledge of social security law, which I still believe

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he or she would need whether deciding on incapacity benefit, vaccine cases or income support. I remain very worried about these issues.

Despite the noble Lord, or noble and learned Lord, I should say,--I seem to have some mental block about lawyers, having admitted earlier to being married to one--doing so much to try to reassure me, I am afraid that he has failed to do so. But at this hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Lord Goodhart had given notice of his intention to move Amendment No. 28:

Page 4, line 25, at end insert ("but no person shall be appointed chairman of a tribunal unless he has a 5 year general qualification or he is an advocate or solicitor in Scotland of at least 5 years' standing").

The noble Lord said: I do not intend to move the amendment, but it is a matter which it is likely that we shall bring back on Report.

[Amendment No. 28 not moved.]

Lord Hardie moved Amendment No. 29:

Page 4, line 27, leave out ("any casting vote") and insert ("a casting vote if the votes are equally divided").

The noble and learned Lord said: I shall talk also to Amendment No. 65. The amendments enable tribunals to reach clear decisions even if the votes of the members of the tribunals are equally divided.

Amendment No. 29 makes it clear that unless regulations prescribe otherwise, the chairman of an appeal tribunal shall have a casting vote where the votes of the members of the tribunal are equally divided.

The provisions of Clause 8(1)(b) allow for tribunals to be constituted of one, two or three members. Where a tribunal consists of more than one member the tribunal decision will be taken by a majority of votes. However, as currently drafted the chairman might be thought to have a casting vote regardless of whether votes are equally divided or not. It is intended that the casting vote will be appropriate only if the votes are equally divided.

It is possible that a tribunal consisting of two members will disagree. In that case it is only sensible to allow for a casting vote in order that a decision can be made.

Amendment No. 65 will allow a casting vote to be made by the presiding social security commissioner where there is an equal division in votes. Cases will usually be considered by a single commissioner. However, if the chief commissioner considers that a case involves a question of law of special difficulty he may direct that the case be heard by a tribunal of three or more. Decisions will be made according to the vote of the majority, if the commissioners are not unanimous. Occasionally a tribunal may consist of an even number of commissioners. If unusually they disagree on a decision it is only right that a presiding commissioner shall have a casting vote to enable a clear decision to be reached.

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These amendments allow appeal or commissioner tribunals to reach a decision where the members of the tribunals are equally divided. Without the amendment it would not be clear how such cases should be decided; therefore I commend the amendments to the Committee. I beg to move.

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