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Lord Goodhart: My Lords, I rise to support the amendments in the name of the noble and learned Lord, Lord Archer of Sandwell, and I speak also to the amendment in the name of my noble friend Lord Russell, which seeks to insist on a legally qualified chairman.
I should say at once that while I might have preferred that the requirement was for a legally qualified chairman, I find the compromise of the noble and learned Lord, Lord Archer of Sandwell, totally acceptable if, as I hope, it is acceptable to the Government.
As we know, the requirement for a legally qualified chairman was introduced 14 years ago in 1984 as a result of a report a few years previous to that by Professor Kathleen Bell which found that tribunals without legally qualified chairmen had low standards. The noble Baroness, Lady Anelay, confirmed from her own experience that the introduction of legally qualified chairmen improved the standards.
Tribunals need, if not a legally qualified chairman, at least a legally qualified member. One would expect that the legally qualified member would normally be the chairman because tribunals must consider evidence properly; they must identify the relevant facts; they must reach the proper conclusions on those facts; they must identify the law to be applied; and they must apply the law correctly. Those are all skills in which those who have been legally trained are likely to perform better than those who have not.
I certainly would not say that a member of a tribunal without legal qualifications will always get it wrong or that a member with legal qualifications will always get it right. But I believe that it is significantly more likely that a legally qualified member will get it right.
In Committee, the noble and learned Lord, Lord Hardie, said that he would reflect on the argument that the chairman should be legally qualified. He has had time for reflection, and I trust that that reflection will have borne fruit in his willingness--as I hope it will prove to be--to accept the compromise put forward by the noble and learned Lord, Lord Archer. I simply endorse and repeat the comments of the presidents of the Independent Tribunal Service, quoted previously in our debate of 30th March:
- "We are not therefore comfortable with the proposition that a single decision maker conducting an oral hearing alone should not be a lawyer or be legally trained. The demands of conducting and recording the proceedings and decisions of a tribunal in such a sensitive jurisdiction are such that it is argued that it may simply be too great a demand to place on such a person. Further, where the
- tribunal is made up of more than one person, the chairman will invariably require legal training because of the additional procedural skills involved".--[Official Report, 30/3/98; col. 124.]
Finally, I should like to read out one comment from the Legal Action Group, which is a pressure group concerned with the improvement of access to justice:
- "The need for tribunal chairs to be legally qualified has become more, rather than less, pressing, because of both the complexity of the law and the procedural skills involved, including conducting proceedings and recording the decision. The chair has a pivotal role not only in ensuring that the law has been correctly applied, but also in substituting for legal representation. Appellants in social security cases are frequently unrepresented, and are often hopelessly at sea when a legal problem arises. People will frequently be vulnerable, socially excluded, and economically disadvantaged. For some, English will not be a first language, and many will have poor literacy skills, ill health and, increasingly, mental health problems. Many will be unable to understand the law, or to argue their case by reference to the legal rules. Part of the inquisitorial role of tribunals is to ascertain the matters in issue, elicit evidence and reach a view on the facts, as well as to identify and consider any issue of law pertinent to the case".
Lord Dormand of Easington: My Lords, before the noble Lord sits down, perhaps he could explain to someone who is completely ignorant of all legal matters what is so magic about the five-year period mentioned twice in his amendment? I should point out that the amendment of my noble and learned friend does not mention that period at all so, presumably, the noble Lord has a special reason for specifying it. Can he tell the House what that reason might be?
Lord Goodhart: My Lords, the five-year period is one which appears in the Courts and Legal Services Act 1990 as the minimum period of service required for the holding of certain legal posts. It is not essential, but anyone with less than five years' experience would be unlikely to have the necessary experience for conducting an appeal tribunal of the kind under discussion.
Lord Hardie: My Lords, I shall deal, first, with Amendments Nos. 4, 6, 8 and 11, which all deal with the now-familiar subject of the legal qualifications of tribunal chairmen or members. As has been observed, we debated the subject of legal qualifications at length in Committee. I acknowledge the strength of feeling expressed by noble Lords on that and on this occasion. As the noble Lord, Lord Goodhart, reminded the House, I undertook to reflect on whether all tribunals need to have a legally-qualified chairman.
Before dealing specifically with the amendment moved by my noble and learned friend Lord Archer, I do not wish to understate the difficulties involved in the proper recording of evidence, the identification of
relevant facts, the reaching of proper conclusions, the identification and application of the correct law, and so on. However, like my noble friend Lord Borrie, who intervened in Committee when we discussed this issue, I remain convinced that, with appropriate training, there are a number of appeals which could be determined by a person without formal legal qualifications.We want new arrangements for handling appeals which are more effective and efficient. In considering further the need for a legal presence on tribunals, we have looked again at the number of appeals which could be dealt with by a single non-legally qualified panel member and the administrative arrangements for selecting those appeals. It appears that less than 5 per cent. of appeals could be dealt with in that way.
Given the small number of cases involved and the complexity of the administrative arrangements, we have concluded that there would be little benefit in introducing such an arrangement at this time. In reaching that conclusion, we have been helped by the opinions of the President of the Independent Tribunal Service, Judge Michael Harris, who recently briefed Ministers on the administration of ITS.
The same arguments about small numbers of cases and complex sifting arrangements also apply to two and three-member tribunals. In view of this, and in view of the concerns that have been expressed about this issue in your Lordships' previous debates and today, the Government have concluded that, for the time being at least, there is a case for the retention of lawyers on all tribunals.
We may wish to revisit the issue in the wake of welfare reform. In saying that, it will be apparent to your Lordships that we will not readdress the issue in the course of the proceedings on this Bill. We therefore support the amendments tabled by my noble and learned friend Lord Archer--namely, Amendments Nos. 4 and 6. In view of the statements made by the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart, that they will accept the compromise proposed by my noble and learned friend, I believe it is unnecessary for me to explain why we will not accept the other amendments in the grouping. In the interests of economy of time, I shall simply say that that is our position. I invite the noble Baroness and the noble Lord to withdraw their amendments on the basis of my outline of the Government's position.
Lord Archer of Sandwell: My Lords, I am most grateful for the support expressed by the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart. Indeed, I am especially grateful to my noble and learned friend for his open ear. I accept that the Government cannot pledge their good behaviour in perpetuity, but my noble and learned friend could not have said fairer than that.
On Question, amendment agreed to.
Lord Goodhart moved Amendment No. 5:
The noble Lord said: My Lords, this amendment relates to the question of whether tribunals should necessarily, as at present, contain three members. Before I launch on the subject, I noted that the noble and learned Lord the Lord Advocate said in his last response that this was one of the matters that the Government had considered. The noble and learned Lord referred to the problems of "sifting", and so on. Therefore, I am not entirely sure whether the Government propose to retain three-member tribunals or to maintain their present position in the Bill; namely, that it should also be open to have one, two or three-member tribunals. The noble and learned Lord indicates that that is so. In that case, I shall proceed with my amendment. I was, perhaps, hoping for too much in that respect.
We believe that a three-member tribunal is an important safeguard. That is particularly so when one is handling large numbers of appeals very quickly. It may seem odd at first sight to insist on a three-member tribunal when an appeal from the tribunal lies to a social security commissioner sitting alone. But a case goes to a social security commissioner only when it raises some point of importance or uncertainty and is, therefore, certain to be looked at very carefully by the commissioner.
Cases going to the ordinary second-tier appeal tribunal may often be simple and straightforward and the facts in law may be entirely clear. However, one member going through a string of apparently simple and straightforward cases (and those are the cases that will be assigned to a one member tribunal) may well tend--and this is something that I feel I might do myself in that position--to lose concentration, especially where these are being dealt with as paper hearings. The member of the tribunal will miss the case that has hidden in it a real issue that needs to be looked at but is not necessarily all that clear on the surface. This is much less likely to happen if three people are considering the case. I do not believe that great savings would be gained from having one or two-member tribunals. I believe there would be a real loss of effective justice if the three member tribunal was not a requirement of the law, as it is now. I beg to move.
Baroness Anelay of St. Johns: My Lords, I support this amendment, to which I have added my name. Originally I had tabled exactly the same amendment in my name and therefore when I saw this amendment I simply added my name to it to save time. I, too, was somewhat encouraged for a few moments by the words of the noble and learned Lord the Lord Advocate with regard to the complexity of the Government's proposals. They have had to introduce that complexity in order to sift cases to render them capable of being dealt with by one and two-person tribunals. The noble and learned Lord also referred to small numbers of cases. It is not acceptable for this House to introduce further complexity in tribunal structures for a small number of cases. Three-person tribunals constitute a much fairer way of hearing cases. Appellants would not know whether one, two or three
I believe that the current system works well. The so-called flexible model which the Government have described will alter the balance of fairness as between appellants whose cases are heard by three-person tribunals and those whose cases are heard by just one person. The balance of fairness will also be altered as between appellants and the Secretary of State. If we accept the proposals in the Bill that the number of persons on a tribunal could vary between three and one according to the substance of the appeal, we must accept that an administrator would have to identify in advance the precise issues which the appeal raises and therefore which experts will be needed. The noble Lord, Lord Goodhart, mentioned that. Decisions would already be made in advance of the appeal being heard. Judgments would be made as to whether it was a complex, simple or meritless case and whether any particular expertise would be needed on the part of the tribunal members.
However, I have a far more prosaic argument as someone who has sat on these tribunals week in and week out over many years and has seen the grinding work that is carried out and the difficulties that are faced by the independent tribunal service in summoning tribunal members on a regular basis. My argument is a straightforward and practical one. I believe that if an administration has the chance of summoning three, two or one members, it will inexorably work towards the easiest solution; namely, to summon just one member. At present if three members are summoned and one is sick or unable to attend for business reasons, it is open to the appellant whether he wishes the case to proceed with just two members being present.
The Bill already addresses problems such as the possibility that two members of a tribunal may disagree and how one deals with that disagreement; namely, rather than adjourning, the matter would be decided on the spot. I believe that the difficulties that have been faced on occasion by the tribunal service in summoning members for three-person tribunals would be obviated in future by simply failing to seek three members when it had determined that three members was the appropriate number of people to hear a case. It would be so easy to slip into the administrative convenience of summoning only one or two. I believe that would undermine the fairness of the system.
Decisions about the merits and the complexity of a case would have to be made before a hearing took place. I believe that could tend to favour the Secretary of State. On many occasions I have heard appeals covering perhaps eight or 10 cases in a day. I have looked at the papers of a case in advance and thought that the result was a foregone conclusion. It seemed to be the open and shut case which those who had drawn up the papers had obviously believed was the case. However, as the hearing progressed a different story emerged and it was vital that three people were present with varying expertise in order to tease out information and properly to evaluate the evidence. There may be facts which simply have not been recorded or have not been discovered or there may be a basic misunderstanding of
Page 4, line 3, leave out ("one, two or").
5 p.m.
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