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Lord Archer of Sandwell: I wholly approve of lateral thinking. This, as my noble and learned friend said, is a novel provision. I am not aware of any other jurisdiction anywhere where it has been introduced. It may be none the worse for that. It may be a pioneering proposal. However, the part which troubles me is my noble and learned friend's suggestion that, if everyone thinks there has been a mistake, then it should not be necessary to go to the commissioner.

That is not what subsection (3) says. The subsection says that if the parties think that there has been a mistake, then it does not matter what the chairman or the person acting as chairman believes about it. All that is being proposed by the noble Lord, Lord Goodhart, is that there should be some input from the chairman or whoever is acting judicially in the matter. As he says, it may be that the parties think that there has been a mistake for quite different reasons. If two parties, for different reasons, think there has been a mistake, then the chairman will have no discretion, but will have to send the matter back. That is the point which troubles me. I am not sure that that is what principally troubles the noble Lord.

Lord Goodhart: There is no point of principle here. It is simply a point of workability. When the noble and learned Lord, Lord Hardie, perhaps has a chance to examine my remarks in more detail, he will appreciate that, if the obligation to send a case back for redetermination in subsections (2) and (3) is mandatory in certain circumstances, it could lead to results that are totally absurd.

I suspect that the problem might well be cleared up in both subsections simply by making it optional on the person hearing the application to send it back for redetermination rather than by making the matter mandatory. I hope that the noble and learned Lord will re-examine the matter and return with what may well be simply a minor amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15 agreed to.

Schedule 4 agreed to.

Clause 16 agreed to.

Clause 17 [Procedure]:

Lord Hardie moved Amendment No. 63:

Page 12, line 21, after ("that") insert--
("(a) an application for leave under section 15(10)(b) above; or

The noble and learned Lord said: These amendments relate to the handling of applications for leave to appeal to the social security commissioners. The amendments provide that, where he considers it appropriate to do so, the chief commissioner may direct that such applications be considered by a tribunal of commissioners.

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Subsection (7) of Clause 17 provides that the chief commissioner may direct that an appeal which involves a question of law of special difficulty may be dealt with by a tribunal of commissioners. That approach, which reflects current law, already works well. Other commissioners will normally follow the tribunal of commissioners' decision when subsequent appeals raise similar points of law. That assists in the orderly development of caselaw and speeds the handling of appeals generally.

The chief commissioner, Judge Machin, has identified that not only appeals but also certain applications for leave to appeal would benefit from that approach. In recent years there have been instances where an application for leave to appeal and its determination were of crucial importance to a substantial number of other applications. Here, too, determination by a tribunal of commissioners would help ensure clarity and consistency.

Although such a power is likely to be exercised infrequently by the chief commissioner, it offers clear benefits for the development of social security law. I therefore commend these amendments to the Committee. I beg to move.

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 64 to 66:

Page 12, line 22, after ("the") insert ("application or").
Page 12, line 26, at end insert ("; and the presiding Commissioner shall have a casting vote if the votes are equally divided").
Page 12, line 26, at end insert--
("( ) Where a direction is given under subsection (7)(a) above, section 15(10)(b) above shall have effect as if the reference to a Commissioner were a reference to such a tribunal as is mentioned in subsection (7) above.").

On Question, amendments agreed to.

Clause 17, as amended, agreed to.

7 p.m.

Schedule 5 [Regulations as to procedure]:

Lord Hardie moved Amendment No. 67:

Page 60, leave out lines 36 to 38.

The noble and learned Lord said: In moving Amendment No. 67, I shall speak also to Amendments Nos. 68 and 69. These are purely drafting amendments to simplify the wording in Schedule 5.

Amendment No. 67 removes the definition of a "competent tribunal" from the schedule as the other two amendments make the definition unnecessary. Amendments Nos. 68 and 69 remove references to "a competent tribunal" and insert clearer references to "an appeal tribunal or a Commissioner" and to "the Secretary of State, an appeal tribunal or a Commissioner". These amendments do not have any effect other than to simplify the wording in Schedule 5.

On Question, amendment agreed to.

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Lord Hardie moved Amendments Nos. 68 and 69:

Page 60, line 41, leave out ("or a competent tribunal") and insert (", an appeal tribunal or a Commissioner").
Page 60, line 44, leave out ("him or such a tribunal") and insert ("the Secretary of State, an appeal tribunal or a Commissioner").

On Question, amendments agreed to.

Lord Hardie moved Amendment No. 70:

Page 61, line 1, after ("out") insert ("or reinstatement").

The noble and learned Lord said: I beg to move this amendment in order to put on the face of the Bill, the provision for appeals that have been struck out to be reinstated.

In the other place my honourable friend the Parliamentary Under-Secretary for Social Security explained how the powers to strike out are to be used and also how appeals that have been struck out can be reinstated. He told that Committee that appellants would be informed in writing about why their appeal had been struck out; and, if they did not agree, they could go back to the agency and make the case for it to be reinstated. I hope that noble Lords will agree that this amendment is a helpful clarification. It puts on the face of the Bill the assurances given by my honourable friend that struck-out appeals can be reinstated when it is appropriate to do so.

Earlier today my noble friend the Minister informed your Lordships that the Government intended to meet the concerns raised by the Select Committee on Delegated Powers and Deregulation. She recommended that the strike-out regulations should be subject to affirmative procedures. It is the Government's intention to ensure that strike-out procedures are fair and that there is a proper balance between the provision of a framework for a faster appeals service and preserving individual rights. This amendment confirms appellants' rights to have their struck-out appeals reinstated where appropriate.

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 71:

Page 61, line 1, at end insert--
("3A. Where regulations are made under paragraph 3 (striking out of proceedings) above they shall provide that:
(a) an order for the striking out of an appeal may only be made by a member of one of the relevant panels who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1991;
(b) no such order shall be made unless the person bringing the appeal has been given an opportunity of showing cause, within such period as is prescribed, why the appeal should not be struck out;
(c) such a person shall have the right to apply for an appeal which is struck out to be reinstated on any ground within such period as may be prescribed.").

The noble Lord said: At present an appeal can only be struck out for want of prosecution. Under paragraph 3 of Schedule 5 to the Bill there is a power to prescribe the grounds for striking out by regulation. This will, as was said in Committee stage in another place, enable appeals to be struck out on wider grounds than simply want of prosecution. They can, for instance, be struck out if there is no prospect of success or if they are

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frivolous or vexatious. That in itself is not, we believe, objectionable. We accept that the existing power is too narrow and we do not object to prescribing further grounds by regulations, provided they are subject to the affirmative procedure. We therefore welcome Amendment No. 130, which requires the affirmative procedure for prescribing the grounds for striking out.

However, it is essential, in our view, that the power to strike out should be exercised by a panel member and not by a clerk. A clerk is someone who is appointed by the Secretary of State under paragraph 6 of Schedule 1. There must, in our view, be some point at which the claimant has guaranteed access to someone who is not an employee of the Secretary of State.

The first-year decision would be taken by someone who is an employee of the Secretary of State. We are alarmed by the prospect of an appeal against the decision of one employee of the Secretary of State being struck out by another employee and the appellant or claimant therefore never being able to get outside the loop. We believe that that would be contrary to natural justice.

The Government stated in Committee in the other place that decisions to strike out under the regulations would be taken by panel members and not by clerks, and we welcome that. However, we believe this is something which is not just desirable but is essential to ensure natural justice and it is a matter of sufficient importance that it should be in the statute.

We also believe that it is preferable that the power to strike out should be vested in not just any member of the tribunal but in a legally qualified member, and that is what our amendment states. The essential element of the amendment is that the power to strike out should be vested in someone who is at least a member of the panel.

Some strike-outs may not need legal knowledge because of a missing time limit. But if, for example, an appeal is being struck out on the grounds that it is frivolous or vexatious, whoever decides on the application to strike out would need to have an idea of what that concept means. The concept of an appeal being frivolous or vexatious is familiar to lawyers, but I venture to suggest that it is not likely to be familiar to lay members.

I assume that it is contemplated that the striking-out will effectively be ex parte--that is, that the member considering it will look at the papers and decide without hearing the views of the appellant. If so, it is obviously essential that the would-be appellant should have a chance to come back and explain why the appeal should not be struck out. We welcome the fact that there will be a possibility of reinstatement, as was mentioned by the noble and learned Lord the Lord Advocate, but here again we should like to see enshrined in the statute itself a right for the appellant whose appeal has been struck out to come back before the person who struck it out and show cause.

While entirely accepting the principle of widening the grounds of striking out, we feel that this widening brings with it an obligation to ensure in statute, not just in regulations, that any application to strike out must be heard by a member of the panel, and, if possible, a

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legally qualified member of the panel, in order to avoid the risk that the claimant will never in any circumstances be able to have his case looked at by someone who is not an employee of the Secretary of State. I beg to move.

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