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Lord Higgins: I am not sure whether we are having another intervention from the Liberal Democrat Front Bench in the light of the intervention from the Labour Back-Benches. The noble Lord is no longer in his place. In the light of our discussions last night on Gilbert and Sullivan, I was reminded of the traditional performance of "The Gondoliers".
I believe that the amendment proposed by the noble and learned Lord, Lord Archer, to which I have added my name, is preferable. Two points arise in relation to Clause 13(7). As regards paragraph (a), I cannot help believing that the draftsman was having a bad day. I believe that no harm would be done by leaving it out and that the draftsman was merely thinking of something to say. As regards paragraph (b), the noble and learned Lord appeals to his great experience of these issues and it appears to be positively objectionable. Since the objective of all Members of the Committee is to improve the Bill, it would be, from the point of view of those affected by the legislation, if not a great matter an advantage not to have the restriction in the Bill. As the noble and learned Lord, Lord Archer, said, looking at the matter practically, the restriction that it would impose is objectionable. I hope that the Minister, whatever his brief may say, will have listened to the debates and decided to leave out Clause 13(7)(a) and (b) so that we can make rapid progress.
Lord Hardie: I am always keen to make rapid progress and I assure Members of the Committee that I always listen to the debates. I hope that that was illustrated on Monday. Clause 13(7) requires tribunals to concentrate on a decision which has been appealed against and enables them to focus their attention on the issue or issues which are in dispute or the issues which are irrelevant. I say to my noble and learned friend Lord Archer that the interpretation of paragraph (a) is the third option. I will explain that in a few minutes.
The group of amendments seeks to nullify the focus which we are seeking to direct. I wish to explain to the Committee why we believe that the focus is essential. As regards Amendment No. 48, the purpose of the
The provision in Clause 13(7)(a) seeks to address that problem by making it clear that the tribunal's function is to focus its attention on the issues in dispute. That will avoid the uncertainty which currently exists and enable the preparation of papers for tribunals and hearings to be dealt with more speedily. We believe that claimants want a fair, quick and accessible service and that our proposals achieve that.
Amendment No. 48 places an obligation on the tribunal to reopen the whole decision before it. However, it is important for the tribunal to make a judgment on whether issues are relevant to the appeal decision, otherwise it may become bogged down in hearing aspects of the case which are not in dispute. That runs completely contrary to our aim.
Of course, we fully recognise--and this is the point which I made at the beginning to my noble and learned friend Lord Archer--that there will be times when, in the conduct of a hearing, the tribunal becomes aware of issues which are relevant and which should be considered, even though they did not form the basis of the appeal. I wish to assure Members of the Committee that that clause as it stands does not prevent the tribunal looking at any other issue. Rather, it gives the tribunal a discretion to do so when it considers it to be appropriate.
Amendment No. 49 seeks to delete subsection (7). I had intended to deal with that in more detail when we reached Amendment No. 50 in the name of the noble Earl. However, it may be appropriate to say something at this stage and perhaps refer back later to what I said.
It is important for the tribunal to focus on the circumstances which pertain at the time at which the decision being appealed against was taken--not on changes which have happened during the intervening period and which should be dealt with by the first tier of decision-makers; namely, the agency. In the new system, the Secretary of State will make all first-instance decisions and the function of the tribunal will be to decide appeals on those decisions. Focusing the tribunal on the claimant's concerns--that is, on the issues in dispute--will enable the tribunal to determine the issue which was before the Secretary of State. It will ensure that rights of appeal are not lost.
For a number of reasons we do not believe that the tribunal should undertake the function of the first-instance decision-maker. First, in taking a first-instance decision, there may be a complex sequence of events and facts which cannot properly be exposed at a tribunal hearing.
Well intentioned though it is that tribunals should consider events which have occurred since the decision, I cannot support such a proposal. It is the function of tribunals to look afresh at a disputed decision, not to
In addition, by allowing tribunals to make initial decisions in respect of a change of circumstance that has occurred between the decision and the hearing, the amendment would have the effect of limiting the claimant's rights. I appreciate that that is quite contrary to what Members of the Committee wish to achieve. That is because where claimants may appeal to a tribunal about decisions of the agency on facts and law, appeals against decisions by the tribunal would have to go to commissioners and the only ground of appeal then is on law. Therefore, if the tribunal gets the facts wrong, there is no appeal on that matter whereas by going back to the agency, if the agency gets the facts wrong, the tribunal can readdress those facts and correct any error of fact.
For those reasons, I respectfully submit that this group of amendments would delay the handling of appeals. Members of the Committee would be aware that the current backlog of appeals exceeds six months and is increasing. The amendments would also make the service less accessible to claimants. The overall effect would be to load tribunals with inappropriate and unnecessary burdens so that fewer appeals are cleared at each session; backlogs and delays are likely to increase; and costs will rise. That would work against our aim to create an efficient and effective appeals system. In those circumstances, I invite the noble Lord to withdraw the amendment.
Lord Archer of Sandwell: It may be for the convenience of the Committee, if, before the noble Lord concludes the debate and withdraws the amendment, I say a few words about my amendment and then the Committee will not be troubled with it at a later stage.
I am most grateful to my noble and learned friend for his very careful reply. In relation to the first provision in subsection (7)(a), I was rather surprised when he said that of the three possible constructions which I put forward, it was the third which is really meant. First, it is not obvious from the words which are used and it may be that the draftsman will wish to consider that. But if that is what is intended, I cannot understand why it is necessary to say it. What tribunal in its right mind will consider an issue which is not necessary to the proper and just determination of the appeal which it is considering? My noble and learned friend may wish to reflect further on that.
As regards the provision in subsection (7)(b), I say this not at all by way of criticism because I know that there must be discussions on the Front Bench as the Committee stage proceeds, but I gained the impression
Lord Goodhart: I rise to speak finally to Amendment No. 48. The noble and learned Lord the Lord Advocate said that one of the purposes of Clause 13(7)(a) was to clarify the situation because of existing conflicting decisions. I make two remarks about that. First, I believe that it has been clarified the wrong way by moving away from the current jurisprudence which indicates that the tribunal should adopt an inquisitorial role. Secondly, the situation has not been clarified at all because the Bill provides that the tribunal need not consider any issue which is not raised by the appeal. That means that it will have a discretion whether or not to consider such an issue. That discretion must be exercised judicially. There will no doubt have to be litigation to decide whether or not the tribunal has exercised its discretion judicially. Therefore, we have gone round in a circle and ended up back where we started. The tribunals do not have guidance from this clause about what they can and cannot do.
However, I shall ask leave to withdraw the amendment if only because, like the noble Lord, Lord Higgins, the amendment moved by the noble and learned Lord, Lord Archer, is preferable to the one which I moved.