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The noble Lord said: Amendment No. 11 gives rise to a different point from the one to which the other group of amendments gives rise. I refer your Lordships very briefly to it. It may be the result of a complete misunderstanding on my part, but Clause 7(2) refers to,

I may have completely misunderstood the intentions here, but perhaps the Minister could clarify the matter. I beg to move.

Baroness Ashton of Upholland: I would be delighted to do so. The clause simply gives us a little flexibility. Two people might each preside over the chamber part-time, if that suited the work that they sought to do, or, if you wanted to merge two chambers in the future, you might want to keep the expertise that both brought to the job and ask them to work jointly. It is there simply for those reasons.

Lord Kingsland: I am most grateful to the Minister. Surely she would not envisage two people assuming the chair of the tribunal in the course of a hearing, which is the impression that the Bill gives to me.

Baroness Ashton of Upholland: Not at all. It is about looking after the chamber and what goes on in it. The person in charge of that whole area of work is like the head of a division, or whatever. It simply enables two people to preside over the chamber, if, for the reasons that I have outlined, that were more practical or pertinent because of what was going on. It is about their responsibilities.

Lord Maclennan of Rogart: Following the Minister’s reasoning, why stop at two?

Baroness Ashton of Upholland: To have more than two would take us into a different set of reasons from the one that I have given. It is completely logical to have some form of job-sharing between two people. That is very common in all walks of life, but it is very rare to find a job that is shared by more than two people. If chambers were being merged, my instinct would be that you would not want to end up with more than two people bringing together their expertise. Two is therefore probably practical. I fear that if I said there could be more than two, I would be faced very swiftly with an amendment, possibly from the noble Lord, seeking to take the number back down to two.

Lord Kingsland: I beg leave to withdraw the amendment.



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Amendment, by leave, withdrawn.

[Amendments Nos. 12 to 35 not moved.]

Clause 7 agreed to.

Schedule 4 [Chambers and Chamber Presidents: further provision]:

[Amendment No. 36 not moved.]

Schedule 4 agreed to.

Clause 8 [Senior President of Tribunals: power to delegate]:

Baroness Ashton of Upholland moved Amendment No. 37:

The noble Baroness said: I shall speak also to Amendments Nos. 45, 49, 50, 52, 64 and 67. I have regrouped the amendments to cover this part of the Bill.

The amendments arise as a result of the main recommendations of the Delegated Powers and Regulatory Reform Committee’s scrutiny of the Bill, which, as always, I have accepted. I wish simply to put them on the record. In so doing, and in seeking the Committee’s agreement to the amendments, in no way do I suggest that noble Lords accept the principle behind the clause. I do not want noble Lords to think that I would try to suggest that. Rather, it is much better if the Government are seen to respond to the Delegated Powers and Regulatory Reform Committee as quickly as possible.

On Amendment No. 37, the Delegated Powers and Regulatory Reform Committee pointed out that Clause 7(9) enables my noble and learned friend the Lord Chancellor and the Senior President of Tribunals to make orders about the allocation of functions between chambers in either the first-tier or upper tribunal. The committee accepted that that in itself is by no means inappropriate but, under Clause 8, the senior president may delegate any of his functions to any judge or member of the upper or first-tier tribunal or to any member of staff. The committee pointed out that this power is broad enough to enable the order-making power in Clause 7(9) to be delegated and considered that inappropriate. The Government agree. We did not intend to do this and Amendment No. 37 therefore disapplies the delegation power in Clause 8(1) in respect of orders made under Clause 7(9) and so prevents the delegation of the function of allocating functions between chambers.

On Amendments Nos. 45 and 52, the committee was also concerned about the uses of powers in Clauses 11(5)(f) and 13(7)(f) enabling my noble and learned friend the Lord Chancellor by order to exclude a decision from onward appeal. The committee was content with the level of parliamentary scrutiny. However, it considered that such powers would be more appropriately delegated if the Bill restricted the time when the Lord Chancellor might make such orders to the time that the transfer of the tribunal is made. That would avoid the possibility that the power could be used to remove a, by then, long-established right of appeal long after a tribunal had been transferred. It

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has never been the Government’s intention that the power to exclude would be used at any time other than the transfer of a tribunal. Amendments Nos. 45 and 52 therefore restrict the use of those powers to when a tribunal to which the order relates is transferred.

On Amendments Nos. 49 and 50, Clause 13 gives a right of appeal from the upper tribunal to the Court of Appeal or other UK equivalent. That right may be exercised only with the permission of the upper tribunal or the appellate court. Clause 13(6) enables my noble and learned friend the Lord Chancellor by order, subject to affirmative procedure, to provide that permission should not be given unless there is an important point of principle at stake or some other compelling reason. The intention behind that provision is to limit second appeals on the same point. As noble Lords will know, that is in line with the position on appeals from the High Court to the county court under Section 55(1) of the Access to Justice Act 1999.

However, the Delegated Powers and Regulatory Reform Committee has pointed out that the power applies equally to first appeals from the upper tribunal exercising an original first-instance jurisdiction. The Government agree that that is inappropriate and agree with the committee’s recommendation that the power in Clause 13(6) should be restricted to appeals from the upper tribunal’s appellate jurisdiction, excluding its first-instance jurisdiction. Amendments Nos. 49 and 50 achieve that aim.

Amendment No. 64 inserts,

under which my noble and learned friend the Lord Chancellor may make provision to determine the number and type of members who are to decide matters. The order-making power is currently subject to the negative procedure. However, the committee argued that this is a significant power, and compared it with existing tribunal legislation in which such matters are set out in primary legislation. The committee therefore recommended that the power in paragraph 15 of Schedule 4 be made subject to the affirmative procedure. The Government agree, and Amendment No. 64 amends Clause 46 accordingly.

On Amendment No. 67, the committee pointed out that the provision in Schedule 10 on the amendment to the London Building Acts (Amendment) Act 1939 provides for the Lord Chancellor’s order-making power to be subject to no parliamentary procedure. The order-making power enables him to specify qualifications for the office of his nominee on the tribunal of appeal established under the London Building Acts (Amendment) Act 1939. The Government agree with the committee’s recommendation that the order should be subject to the affirmative procedure, which brings it into line with the power to specify relevant qualifications for judicial eligibility criteria in Clause 48. Accordingly, Amendment No. 67 makes this power subject to the affirmative procedure.

I am grateful to noble Lords for allowing me to table these amendments. I believe that they are uncontroversial and can be accepted by the Committee, with the proviso that I have already given that this in no way ties noble Lords to accepting the main clause as amended by these amendments. I beg to move.



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Lord Maclennan of Rogart: It would be churlish not to acknowledge the wisdom of the Minister in tabling the amendments in the light of the committee’s recommendations. I particularly welcome Amendment No. 64, which provides for the Lord Chancellor’s order-making power on the number and type of members of the tribunal to be subject to the affirmative procedure. That is a significant power, which we will want to review in the light of the arguments at the time.

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Review of decision of First-tier Tribunal]:

Lord Kingsland moved Amendment No. 38:

The noble Lord said: This is yet another probing amendment. Clause 9(1) relates to the powers of a first-tier tribunal to review its own decision. I am extremely curious to know what the Government intend by this provision and what the scope of this power of review will be. Is the power limited purely to points of law, or does it go beyond that to evidential matters? If it is only a power of review, does it refer purely to formal matters, or does it extend to something more substantial? I beg to move.

Baroness Ashton of Upholland: I am grateful to the noble Lord, Lord Kingsland. I shall clarify, so far as I can, what we seek to do. He knows far better than I do that appeals correct errors of law and that decisions can be reviewed for a number of different reasons, either through the tribunal’s own initiative or through an application from a person who has a right to appeal. We deliberately designed the provision to ensure that only cases that need to go to appeal do so and that other issues can be dealt with in a simple and speedy way as befits our ambitions for the Tribunals Service both at present and in future.

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We do not want parties to feel that they have to go to appeal when we are dealing with errors that are obvious and can be speedily corrected. For example, if a document for a hearing in the first-tier tribunal is mislaid or goes astray in the post, we would want to be able to review if the document came to light. We would not want the process to have to be started all over again. The Committee is aware that the notion of being able to correct a mistake without a full appeal is not novel; it has been used for years in the civil and criminal courts. As I understand it, the slip rule for the criminal courts, which is in Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, enables the variation or rescinding of a sentence within 28 days. Section 142 of the Magistrates’ Courts Act 1980 allows justices to amend any order they have made; if that order appears invalid, they can replace.

This is about building a new structure of tribunals which is user-friendly, speedy, easily accessible and which recognises that there are occasions when the ability to review a decision should rest with the tribunal rather than having to go to full-scale appeal. That is what we are seeking to do. I hope that that answers the noble Lord’s question.



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Lord Kingsland: As I understand it, the Minister has described a very narrow jurisdiction. She mentioned the slip rule, for example, which suggests that she is not seeking on behalf of the Government something wider than a first-instance tribunal would normally apply to itself in the circumstances that she outlined. In those circumstances, I am very happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 to 41 not moved.]

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Right to appeal to Upper Tribunal]:

[Amendment No. 42 not moved.]

Lord Maclennan of Rogart moved Amendment No. 43:

The noble Lord said: I shall speak also to Amendment No. 44. The amendments are intended to raise the issue of whether an appeal should be allowed on a point of fact as well as on a point of law. It is done in the context of the remarks that I made at Second Reading about the case of Tsfayo and the United Kingdom decided in the European Court of Human Rights as recently as 14 November. That case, which will now have been given some consideration by the Minister, who was kind enough to write to me about it, involved an applicant who was required by law to renew her application for housing and council tax benefit on an annual basis. The prospective claim was successful but the back-dated claim was refused on the basis that the applicant had failed to show good cause why she had not claimed the benefits earlier. That refusal was upheld by the authority following a request for reconsideration. The applicant appealed; the appeal was heard in September 1999 by the authority’s housing benefit and council tax benefit review board, which consisted of three councillors and was advised by a barrister from the authority’s legal department. The board rejected the appeal and the applicant was refused leave to apply for judicial review of the decision.

In 2001, the review boards were replaced by specialist tribunals. The applicant complained to the European Convention on Human Rights that the review board was not an independent and impartial tribunal, as required by Article 6(1) of the convention, which of course is now incorporated into the Human Rights Act, and sought satisfaction for non-pecuniary loss. The court considered that the proceeding of the review board had not fulfilled the requirements of Article 6(1) of the convention. In contrast to some other decisions that were amenable to judicial review and which required a measure of professional knowledge or experience and the exercise of administrative discretion, the review board’s decision in the instant case had been a simple question of fact: namely, whether there had been good cause for the applicant’s delay in making the claim. No specialist expertise was required to determine that issue. Nor could the factual findings be said to be merely incidental to reaching broader judgments of policy or expediency.



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The further point was made that the review board did not merely lack independence from the executive, but was directly connected with one of the parties to the dispute. That connection of the councillors to the party resisting entitlement to housing benefit might infect the independence of judgment in relation to the finding of primary fact in a manner that could not be adequately scrutinised or rectified by judicial review.

The safeguards built into the review board procedure were not adequate to overcome that fundamental lack of objective impartiality. Although on an application for judicial review the High Court had the power to quash the decision if, inter alia, it considered that there was no evidence to support the review board’s factual findings, or that its findings were plainly untenable or that it had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to rehear the evidence or substitute its own views on the applicant’s credibility. It was therefore never possible that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute. This is, as I said, a new case, and it is important in determining whether our law in respect of appeals to the upper tribunal should allow a fact to be reviewed. I confess that I have not consulted widely on this subject, but I have consulted some eminent academic lawyers and I am very anxious to hear the Government’s view of the point at issue. It is important to give consideration to that case at this juncture. I beg to move.

Baroness Ashton of Upholland: I am grateful to the noble Lord both for raising the case, which he raised on Second Reading, and for referring to the letter that I sent. I will deal with the amendment in two bits. First, I shall say a little about the case from the Government’s perspective, which will enlighten noble Lords who might not be as familiar as, sadly, I feel that I will become with this case over time. I shall then say more about the principle behind the amendment, if that would work.

I reiterate what the noble Lord said. This case was about an application concerning the judicial review of a housing benefit and council tax benefit review board decision. One of the grounds in that appeal was that the tribunal was not sufficiently independent or impartial under Article 6 of the European Convention on Human Rights on the right to a fair trial.

The board that carried out the review included five councillors from the local authority, who would have been responsible for paying the disputed benefit if the claim was upheld. We accept that the appeal process in the circumstances was flawed, and, as the noble Lord, Lord Maclennan, has said, it has been replaced. We argued that judicial review could provide a remedy to judicially flawed decisions. The court found that judicial review could not cure the inadequacy of a flawed decision where that decision relied on facts. In other words, the central issue of the original appeal—that is, whether the housing benefit claim should be upheld—could not be remedied.

Our position is that we have replaced the appeal process. We believe that that set of circumstances was confined to that particular case—from my description

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I suspect that noble Lords may well agree with me on that—and do not believe that it casts doubt on judicial review as a remedy where a decision-maker has acted unreasonably. There is no question that there would be grounds for judicial review in such circumstances. Judicial review is still an important process to provide remedy. We feel reasonably content.

There is a broader point about the Tribunals Service that is not at all about that case, the convention or Article 6. One of the great advantages of bringing the service into the Department for Constitutional Affairs, with all the different jurisdictions coming together, is that they are not linked back to the people who are making policy decisions. One of the critical questions that I have been considering is how we can use the independence of the DCA, if I can describe it like that, to point out to government departments—when, for example, we see decisions consistently being overturned—that a policy should perhaps be reviewed. I am not suggesting that is anything to do with that case, but it is an interesting and important point.

We think that the particular circumstances of that case have been addressed, and that the unreasonableness test was appropriate in that case. We are content with where we are at present. Within the new Tribunals Service, however, we need to ensure that we have a structure that is user-friendly, easy to access and speedy in determining decisions. We think, therefore, that the way that we have set up the Tribunals Service allows the opportunity for the first-tier tribunal to hear appeals from decision-makers, consider the relevant evidence and make findings of fact and, where necessary, decisions of law, with enough power and standing for its decisions in general to be accepted by all parties, as is the case now. We do not want to set up another tribunal that would effectively rerun every case.

It may be that the first-tier tribunal could get the law wrong, or there may be substantive issues of law that need a more authoritative ruling for future cases. That is why we have the upper tribunal system in place; without it, those rulings would have to be made by the High Court or the Court of Sessions. The main second-tier tribunals we have at present, the Employment Appeal Tribunal and the Social Security Commissioners, operate on precisely that basis. That is why we have set it up in this way. It enables us to have a relatively straightforward and flexible system, with clarity about who is making the decisions. To have what the noble Lord suggests in the amendment would, in a sense, attack the finality of the first-tier decision-making process. People would see that it was merely one step in a two-step process, which we do not want.

I can see where the noble Lord is seeking to go with his amendment, which would remove the point-of-law filter for onward appeals and widen the grounds for appeal to the tribunal to include issues of fact. There would be little point in maintaining a filter if, in effect, there were no limits on what could be appealed. For the reason I have given, however, I do not see that as an improvement on what is presently in the Bill.



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On the basis that I have tried to deal with the case separately, but in the context of why I think it is important to have the first-tier and upper tribunal doing the work that we have suggested, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Maclennan of Rogart: I thank the Minister for her reply. I will of course study her remarks with care and consult widely. The absence of an appeal on fact seems to have played a considerable part in the decision in the Tsfayo case. I will review that before we come to a later stage of the Bill but, in the mean time, I beg leave to withdraw the amendment.


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