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Lord Borrie: My Lords, the model of the three-member tribunal is now something of a tradition as it dates from the time of Lloyd George and the insurance legislation of 1911. Because of its success in the inter-war years it was retained by the Attlee government of 1945. That success has been undoubted. I refer to the "plus" points that the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay of St Johns, have commented upon. The appearance of fairness and the different experiences of the members of the three-person tribunals are perceived to be most helpful and are almost certainly objectively extremely helpful. It is a model that is worth following and bearing in mind.
Nowadays we all think of the tribunal system as being part of our general judicial system. Even though that tribunal system has lasted for so long in relation to social security matters and has been copied elsewhere in fields as varied as industrial tribunals and employment appeals tribunals and the restrictive practices court, it is by no means the only or indeed the principal way in which matters are determined judicially in this country. Far more typical is the decision made by one person--sometimes of course with a jury which has a different role from those who sit on a tribunal. Certainly the tradition in the High Court and in the circuit courts of this country of the individual High Court judge or the circuit judge reaching a decision--I hope and believe--is perceived to be fair. However, that is, of course, subject to appeal. That is thought to be perfectly fair and reasonable.
I accept that the model of three-member tribunals is a good one. One would not wish to depart from it for any frivolous reason. The Government appear to want to depart from it because it is an expensive system and one that involves a great deal of personnel and administration. Some cases that must be dealt with at present by a three-person tribunal could be dealt with by one or two persons. They need not necessarily be qualified in relation to certain medical problems; a medical practitioner may determine such questions. However, it seems to me that there is a gap in the arguments of those who support this amendment saying, "This is the norm; this is the model; and this must always be the case". There is a difference between saying, "This is the norm", and, "This is one about which we should have no flexibility", with no possibility for the administration to say when it has studied the case with all due care that it can be dealt with properly by one member or two members. There must be sufficient reassurances--I thought that we were given them by my noble and learned friend the Lord Advocate on the previous occasion--that if there is any doubt whether there should be one or two members there should be two members. If there is any doubt whether there should be two or three members, there should be three members.
I read into the speech of the Lord Advocate the proposition that if for some reason the papers have been misread or not adequately understood, or the case turned out to be more difficult than had been originally perceived, one would say, "Halt, we had better convene a full three-member tribunal". The amendment allows no flexibility; and that is its weakness.
Lord Archer of Sandwell: My Lords, I agree with my noble friend Lord Borrie that whether one requires a three-member tribunal depends largely upon the issue which the tribunal has to address. We are dealing here with social security tribunals. The issues they have to address are very much of their own nature. Even in social security tribunals, some decisions can be, and sometimes are, decided appropriately by a chairman alone; for example, in interlocutory matters which arise in the course of the proceedings.
However, I should have thought that normally there are two great advantages in having a three-member tribunal. The first is the opportunity to discuss the matter. It is not an arithmetical question which falls to be decided. It is not a question of whether someone did or did not do something, but of the needs of a particular individual. There is a great deal to be said there for an opportunity for discussion. I have seen the chemistry which arises when a member of the tribunal who was perfectly clear about the issues comes to a different point of view after discussions with colleagues.
The second great advantage is how the tribunal appears to those who come before it. It makes for greater confidence to see someone on the tribunal who has shared your own problem, who has had the same kind of experience. It is the Government's own case that there is something to be said for the application of more than one expertise in the resolution of the issues we are deciding. For that reason, I follow my noble friend, too, when he says that in the majority of cases there is probably an advantage in having three members but that it does not follow that one has to have three members on every single occasion.
The noble Baroness, Lady Anelay, asked who is to decide on any specific occasion what expertise the tribunal will have, and how many members. I believe that my noble and learned friend gave us some assurance at Committee stage. If I may say so, the assurance that he gave at one stage was not wholly in accordance with the letter from my noble friend Lady Hollis at an earlier stage. I think that there is time for that to be resolved. We may receive some assistance when the Minister moves Amendment No. 9. The issue which among others has to be decided is whether there will be regulations which tell us which categories of case can be addressed by fewer than three members, and which categories ought always to have three members. In advance of our debate on Amendment No. 9, perhaps my noble and learned friend can offer us some reassurance on that matter too. I believe that there is a real problem to be addressed here and I am sure that he will address it.
5.15 p.m.
Earl Russell: My Lords, the Government's position on this issue, and that of the noble Lord, Lord Borrie,
depends on a great deal of confidence in the ability to conduct the sift accurately and reliably, and to identify in advance from the papers which types of case will need which kinds of panel. My noble friend Lord Goodhart dwelt on the difficulties of the case in which there is a hidden and unforeseen issue. The Minister appeared unpersuaded. But I, too, have some little experience. It is known, I think, to some of your Lordships that five years ago in the medium of my own college I became involved in a case to which a great deal of publicity was subsequently attached. In my view, the principal error in that case, from which most of the subsequent confusion arose, was forming a clear opinion from the papers before hearing the parties. Therefore, in supporting the amendments, I, too, know just a little about that of which I speak.
Lord Hardie: My Lords, perhaps I may deal briefly with the comments made by the noble Earl, Lord Russell, about his experience almost five years ago. I think that noble Lords are well aware of the noble Earl's involvement in that case and the support he gave to the individual concerned. However, my recollection is that that was a criminal case. The noble Earl's comments about sifting might not be apt in the context of criminal procedures when discussing social security provisions.
I have listened carefully to the comments made by noble Lords opposite and by my noble friend and my noble and learned friend. I also share their concern that appellants must receive a fair hearing, but, like my noble friend Lord Borrie, I do not think that this can be achieved by having only a statutory provision for three-person tribunals in every case. That is the system we currently have within the ITS. Although a huge variety of issues come before the tribunals, it does not appear appropriate to us that identical provision should be made for every appeal. Even the most straightforward appeals have to wait in line to be heard by a three-person tribunal when they could be heard equally effectively by a single or two-person tribunal.
I shall deal later with the point raised by my noble and learned friend Lord Archer about the regulations and who determines what cases will be decided by one, two or three-member tribunals. I simply remind noble Lords of the statements that I made in Committee, to which my noble friend Lord Borrie alluded today. I hope that those statements will give some comfort to noble Lords about the proposals we have in mind.
Under the present system, where an appeal hearing is finally arranged it is not unusual for it to be adjourned, at great inconvenience to everyone, because one of the members cannot attend. It is little wonder that appeals currently take on average more than six months to resolve and some take a year or more. I mentioned those statistics in Committee and I make no apology for reminding noble Lords of them. I think that such a delay is quite unacceptable when one is deciding the entitlement or otherwise of a claimant to benefit.
It has been suggested today, and it was suggested previously, that the Government are introducing the changes to the appeals system just to save money. It is true that there may be some small saving in abolishing
the statutory requirement for a three-person tribunal in all cases. However, the primary aim is not to save money. Indeed, there may be some increased costs in setting up the new service; for example, in the recruitment of panel members and in their training. We want to improve the service to claimants by introducing a streamlined, simple and efficient appeals process. The scope for improving the existing system is limited by the rigid framework of current legislation. The five appeal tribunals have different constitutions, different powers and different rules. All appeals have to be heard by three persons. That limits the scope for directing the appropriate expertise to different cases and makes hearings difficult to arrange.We believe that greater flexibility in the composition of the tribunals will improve the service for all appellants. I have already reminded noble Lords of my remarks on unacceptable delays and have referred to the times involved. As the noble Lord, Lord Renton, said in Committee--he is not presently in his place--justice delayed is justice denied. Such delays cannot be tolerated. The flexibility that we are introducing will assist in improving the service to claimants and in reducing delays by using one and two person tribunals for appropriate cases; three person tribunals will have more time to deal more expeditiously with cases which are waiting to be heard.
However, I wish to reassure noble Lords that the greater flexibility does not mean a gradual move towards single person tribunals as the norm. Indeed, the majority of appeals will continue to need two or three person tribunals because of the nature of the issues raised. Very many appeals--for example, those relating to incapacity benefit--will require medical and legal expertise. Those relating to the mobility and care components of disability living allowance will need the expertise of a tribunal member with knowledge or experience of the needs of disabled persons.
But there are some cases which do not require the expertise of two or three tribunal members--for example, an appeal which is solely about whether a claimant satisfies the residence and presence requirements for a particular benefit could be heard by a legally qualified panel member sitting alone. In the light of amendments that have been accepted, it will be appreciated that one person tribunals will be comprised of a legally qualified person.
As I explained in Committee, we have amended Clause 78 to make regulations under Clause 7 subject to the affirmative procedure. That deals with the point raised by my noble and learned friend Lord Archer. That will give Parliament the opportunity to scrutinise our proposals on which type of appeal will go to different types of tribunal--the regulations will specify that--and to satisfy itself that all appeals will be dealt with by people with appropriate expertise.
To deal with the prosaic argument of the noble Baroness, Lady Anelay, these regulations would prevent the administrative drift that she fears. If the regulations, subject to the affirmative procedure, specify what type of cases will go to which category of tribunal, it will not
be open to administrators to decide that a case allocated for three people will be heard by two. That will not be an option.I assure noble Lords that the Government will ensure that the high standards of tribunal decisions are maintained. No panel member will sit on a tribunal without proper training in the relevant legislation, in the powers and procedures of tribunals and in the conduct of hearings. The president will approve individual panel members for their expertise and suitability to sit on tribunals hearing particular types of appeal. He will also be responsible for arranging the training of panel members, in consultation with the Secretary of State and the chief medical officers, as appropriate.
As I said, I propose to speak at the same time to Amendment No. 69 standing in the name of my noble friend Lady Hollis. I understand that the new president of the Independent Tribunal Service, his honour Judge Harris, has recently written to the noble Lord, Lord Higgins, and the noble Earl, Lord Russell, about the difficulties he is experiencing with social security appeal tribunals. He has expressed serious concerns about his ability to continue to operate these tribunals with a chairman and two wing members. He fears that, unless some action is taken now, the delays will increase and the number of outstanding appeals will rise even further in the interim period before the establishment of the new appeals service. The only consequence of that will be a further delay to claimants in the determination of their cases.
The president has asked the Government to take action to allow the Independent Tribunal Service a more flexible regime for the composition of social security appeal tribunals during the transitional period. The Government have therefore responded to Judge Harris's concerns by tabling an amendment to Schedule 6 which will enable the flexible tribunal composition to be introduced as soon as possible after Royal Assent for social security appeal tribunals. Amendment No. 69 will allow social security appeal tribunals to comprise either a chairman sitting alone or a chairman sitting with one or two wing members. That will provide the Independent Tribunal Service with the required scope to continue to hear social security appeals with fewer people available. It would also allow some early testing of the practicalities of the move to flexible tribunal composition.
I invite noble Lords to give effect to the wishes of Judge Harris. He is surely in the best position to judge what is required for the efficient operation of the service of which he is--
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