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Baroness Anelay of St. Johns: My Lords, I believe that on Report I am allowed to ask a question of the noble and learned Lord. He referred to the letter that was sent to my noble friend. Does he agree that the reason advanced by the judge in that letter for the fact that it is difficult to empanel sufficient people at present is simply that the bringing forward of this Bill, with the provision introduced by the Government to change the system of empanelment has reduced the morale of those who have been sitting as lay members of tribunals.

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As I recall from a brief reading of the letter, the judge refers to people leaving the system "in droves". I believe those are his words. I hope that the noble and learned Lord will confirm my understanding of the letter; namely, that the judge is not saying that he endorses fully what the Government seek to do within the Bill and recommends the adoption of its provisions, but that, given the difficulties that he faces because of reduced morale among lay members who are now leaving the service, he finds it difficult to operate under the present conditions and therefore, since he has to operate on the basis of a belief that the Government's will may prevail and the provision may go through, he seeks in the best possible way to continue good administration and to expedite the introduction of the three-two-one system. I hope that the noble and learned Lord will be able to clear up that point.

Lord Hardie: My Lords, I am grateful to the noble Baroness for that intervention. It is stated in the letter that that is part of the reason for his concerns; namely, members are leaving because of the changes that are about to occur. However, at paragraph 6 of the letter, the judge also states:

"it is important that we have the opportunity of testing any proposed change before fully committing ourselves to it. I happen to believe that some reduction in the lay element for some types of appeal would not jeopardise our ability to reach fair decisions. It would also reduce our training burden, ease the work of the administration in arranging the attendance of members, and, in some cases, improve our ability to get through the workload quicker. This last point is particularly important in the context of reducing the time which it now takes to get an appeal heard".

So that is obviously a factor which the judge has in mind. It is clear that in the paragraph referred to he supports the flexibility offered by this system. I accordingly invite noble Lords to support government Amendment No. 69. In the light of my remarks and particularly in view of the statements that I made in Committee which I do not think it necessary to repeat but which I confirm we are not departing from--statements about erring on the side of caution, to which my noble friend Lord Borrie referred--if there is doubt, the matter will go to a two member tribunal; if there is doubt as to whether it should be a two or three member tribunal, it will go to a three member tribunal. There will be affirmative regulations, subject to the scrutiny of this House, setting out the type of cases which will go to single member, two member or three member tribunals. In those circumstances I invite the noble Lord to withdraw the amendment.

5.30 p.m.

Lord Goodhart: My Lords, I recognise it as a step forward that regulations will be made under Clause 7 to identify the way in which different appeals will be allocated to different tribunals and tribunals with different numbers of members. I also welcome the fact that this will be dealt with by the affirmative resolution procedure. I regret that the noble and learned Lord the Lord Advocate did not go further and accept the desirability of preserving the present structure of tribunals, for the reasons put forward from this side of the House. However, I believe that at least some of the

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sting of the amendment has been drawn by the Government's acceptance of the necessity of having a legally qualified member of a tribunal. That means, of course, that, if it is a one-member tribunal, that member will have to be legally qualified. Of the two issues--whether there should be a legally qualified member or whether there should be a three-person tribunal-- I believe that having a legally qualified member is the more important. In those circumstances, it might be regarded as churlish to take this matter further. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Archer of Sandwell moved Amendment No. 6:

Page 4, line 4, at end insert--
("(1A) The member, or (as the case may be) at least one member, of an appeal tribunal must--
(a) have a general qualification (construed in accordance with section 71 of the Courts and Legal Services Act 1990); or
(b) be an advocate or solicitor in Scotland.").

On Question, amendment agreed to.

[Amendments Nos. 7 and 8 not moved.]

Lord Hardie moved Amendment No. 9:

Page 4, line 10, leave out subsection (3).

The noble and learned Lord said: My Lords, your Lordships will recall that during Committee I promised to consider issues raised by my noble and learned friend Lord Archer about the regulation-making power in Clause 7(3) and about the way expert assistance will be given to tribunals. Amendments Nos. 9, 10 and 26, if I may speak to them together, will, I believe, fully meet those concerns.

Amendments Nos. 9 and 10 make it clear that regulations shall be made, to provide for the composition of appeal tribunals; the procedure to be followed for allocating cases among differently constituted tribunals; and the manner in which expert assistance is to be given to the tribunal. It has always been the Government's intention to make regulations to provide for those matters. These amendments put that intention beyond doubt, on the face of the Bill. I should like to remind the House that the regulations made under Clause 7(3) will be subject to the affirmative resolution procedure, as I said in speaking to Amendment No. 5.

Amendment No. 26 is a tidying amendment which moves the regulation-making power in respect of the procedure which takes place on an appeal or an application before an appeal tribunal to Schedule 5 to the Bill. Schedule 5 deals with regulations as to procedure, and the power would fit more appropriately there.

I trust that these amendments address the concerns raised by my noble and learned friend Lord Archer and other noble Lords. I beg to move.

Lord Archer of Sandwell: My Lords, I am most grateful to my noble and learned friend. Once again he has demonstrated the listening ear. It is a pleasure to

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hear some of the speeches that we have heard from the Front Bench today. May there be many more such speeches in the years to come.

Baroness Anelay of St. Johns: But not for too many years to come, my Lords! But this is not a day for being churlish, as other noble Lords have said. I welcome the fact that the Government have brought forward these amendments in reaction to some of the comments made by noble Lords at Committee stage.

At this point I simply refer to the fact that Amendment No. 10 says:

"Regulations shall make provision with respect to--

(a) the composition of appeals tribunals;

(b) the procedure to be followed in allocating cases among differently constituted tribunals".

We come back to the point I made earlier: I still find difficulty in understanding at this stage how regulations will make the direction about allocation clearly and effectively enough for that allocation to be made fairly. If it is simply the case that regulations are to say that, if the appeal to be heard concerns DLA, a member shall have experience of working in the medical field or have themselves been disabled, that gives a qualification in that way. If the regulations merely say that, if the appeal is on a matter of income support, there will be no such restrictions on membership, or if they say that, if the appeal is contested there shall be three members and if it is not contested there shall be only one, or if they say that where an appeal seems to be unmeritorious there shall be only one member, there will be all kinds of difficulties. There may be cases which are unmeritorious in the eyes of the sifting organisation which later become meritorious. We then get back to the position, which the noble and learned Lord himself earlier recognised, where adjournment after adjournment has to take place, with all the attendant frustrations and difficulties for everyone, particularly for the appellant. In addition, appeals on DLA can be very different in character, not only with regard to the law which is to be discussed but also with regard to the way in which the evidence is to be tested.

Although I genuinely accept that these are welcome amendments, I remain to be convinced that the problems which we discussed at Committee and again on Report can be resolved simply by saying that regulations will wave the magic wand, particularly when none of us has yet been able to see those regulations. I would not expect the Government to be able to give details of them at this stage. They have been very prompt in replying to comments made by noble Lords.

All of us, including those far more experienced than I in these matters, recognise that one can make mistakes. With regard to the previous group of amendments, the noble and learned Lord the Lord Advocate referred to the letter sent to a few noble Lords--not to myself--by the new President of the Independent Tribunal Service. I am aware that most noble Lords will not have had the advantage of reading that letter. I therefore feel constrained in quoting from it but, since it has been referred to, I shall do so. The noble and learned Lord the Lord Advocate referred to paragraph 6 and adduced

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it as evidence that the new president, appointed in January, supports what the Government are doing. However, the president, the highly qualified judge, concludes paragraph 6 by saying that he may be wrong in saying that the flexible approach is the right way of going about the matter:

"But I may be wrong, and I want to be in a position to report to the Government on this issue before a new arrangement is fully implemented".

I can only congratulate him on his perspicacity. I hope that, by accepting the amendments that the Government have put forward, we shall not leave ourselves in the position of having regulations which do not answer the queries we have put forward. Other people may be wrong, not just ourselves.

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