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The new code of practice makes it absolutely clear that a person’s perceived ethnic background or religion must not be used alone or in combination as the sole reason for selecting a person for examination. We have also made that absolutely clear to people in training,

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because we are aware of the perception, although it is probably a bit more than a perception. We must get this right. There cannot be a stronger indication that the targeting of individuals based on the community of which they are part is completely unacceptable. That was certainly our aim.

On why this was not in the borders Bill, the code primarily relates to police use of Schedule 7 and is essentially part of the Terrorism Act 2000. It cannot be used for other purposes. It would therefore not be appropriate to try to cover it in more general borders legislation. That is why we did not include it there.

On reducing invitations to stop, work is continuing to provide police with the skills and tools to target the use of these powers. We are working with them on how they can use the information collected from e-Borders to target the powers more effectively; that will be very helpful. We are looking at the experience of other countries and the techniques that they use to identify people whom they think are suspicious. The noble Baroness talked about the New York police and what they have achieved.

Both noble Baronesses mentioned statistics. We do not collect all statistics. Nationally, about 11,500 examinations under Schedule 7 in excess of one hour occurred between the introduction of the powers in 2001 and December 2008. In comparison, published statistics regarding the use of stop and search under Section 44 of the Terrorism Act for the period from April 2001 to March 2007 show that 205,000 stops occurred, so the former is a dramatically smaller number.

We do not collect all the more detailed statistics that both noble Baronesses referred to. We should consider whether we should collect some other statistics to see what we can achieve. I am very interested in the Section 44 powers and am asking how and when they have led to something. It is difficult to extract that information, but if the power is not getting what we want, is it worth the aggravation that it causes? One needs to look at that jolly closely. I would like to have the evidence to be able to assess that; at the moment, I do not. I have been prodding to try to ensure that I get it. As soon as one can get such information, it should be disclosed and people should be aware of it. We should be working to try to achieve that.

I said that I would write to the noble Baroness, Lady Neville-Jones, about examining officers’ authorisation of others. I now have an answer from my team. It states that, although the Act allows examining officers to authorise any person, in practice this would apply only to individuals with specialist training. An example would be a need to examine in detail a vessel where, for safety reasons, a trained maritime engineer is the only person who can carry out the function, as directed by an examining officer. Under normal circumstances, the search would be carried out by the examining officer himself. That is the basis of that provision.

I hope that that answers the bulk of the questions. If I have missed any, I ask the noble Baronesses to please get back to me and I shall try to answer them. On that basis, I commend the Motion.

Motion agreed.

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Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009

Copy of the Order
11th Report from JCSI

Considered in Grand Committee

4.15 pm

Moved By Lord Patel of Bradford

That the Grand Committee do report to the House that it has considered the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009.

Relevant Document: 11th Report from the Joint Committee on Statutory Instruments.

Lord Patel of Bradford: The order abolishes the Lands Tribunal and transfers its entire jurisdiction into the Upper Tribunal of the new tribunals system created by the Tribunals, Courts and Enforcement Act, which received Royal Assent in July 2007. It forms part of our commitment to provide a truly modern, unified and independent tribunals system.

The Tribunals, Courts and Enforcement Act is the culmination of many years of hard work to reform this country’s tribunals system, set in motion by Sir Andrew Leggatt in his review, Tribunals For Users: One System, One Service. It provided for the First-tier Tribunal and Upper Tribunal, creating a unified appeal structure. On 3 November 2008, three first-tier chambers commenced work—the Social Entitlement Chamber, the Health, Education and Social Care Chamber and the War Pensions and Armed Forces Compensation Chamber. The Administrative Appeals Chamber of the Upper Tribunal was also established.

This order provides for the Lands Tribunal jurisdiction to be transferred into the Upper Tribunal. We set out in our consultation a three-chamber structure for the Upper Tribunal, proposing to recreate the Lands Tribunal substantially unchanged as the Lands Chamber of the Upper Tribunal. Our intention was to preserve and enhance the special qualities of the Lands Tribunal within the new structure, with priority given to continuity. Responses to the consultation showed strong support for this approach. Alongside this transfer of the Lands Tribunal jurisdiction into the new system, a new Lands Chamber of the Upper Tribunal will be established from 1 June 2009. That will be achieved by a separate order, subject to the negative procedure, to amend the existing chambers order to establish and assign functions to the Lands Chamber. This reflects our intention that that chamber should deal exclusively with the existing jurisdiction of the Lands Tribunal.

Each chamber under the Act is required to have a chamber president, whose role is the maintenance and improvement of the chamber’s expertise. The Upper Tribunal Lands Chamber will have a chamber president selected by the Judicial Appointments Commission. The order also provides for the transfer of existing Lands Tribunal judges and members into the new

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system as judges and members of the Upper Tribunal. It is essential for ensuring a good service that specialist expertise is protected and improved and that continuity is maintained.

Lord Jones: I thank my noble friend; I shall be brief. This is a weighty, impersonal, complicated and rather lengthy order and I wonder whether at this point he can tell the Committee what sort of people will be on the tribunal. I heard him mention judges. Are they always going to be legal professionals or will there be ordinary people? What sort of person is on the tribunal?

Lord Patel of Bradford: I thank my noble friend for the question. The order provides for the transfer of existing Lands Tribunal judges and members as judges and members of the Upper Tribunal. As I said, this is essential for continuity. The Senior President of Tribunals has produced a practice statement on the composition of the Upper Tribunal hearing cases in the Lands Chamber. It sets out that those hearing land cases must be either a judge of the Upper Tribunal who has been assigned by the Senior President of Tribunals to the Lands Chamber or other members with surveyor qualifications as set out in the qualifications order. These measures will ensure that those sitting on the tribunal have the relevant expertise to hear land cases.

As I mentioned, the order provides for the transfer of existing tribunal judges and members into the new system. The present surveyor members of the Lands Tribunal will be transferred into the new chamber. Circuit judges or other Upper Tribunal judges with the necessary expertise will also be able to hear cases. Under the provisions of the Act, judges and members can be invited to sit in another jurisdiction, but that will happen only if the individual has the necessary qualification, is acceptable to the chamber president, has undertaken any necessary training and there is a business need.

Rules for the new tribunals structure can be made by the Tribunal Procedure Committee, which was created under the Act. Rules are in place for each of the chambers of the First-tier Tribunal and the Upper Tribunal that have already come into effect. For the jurisdictions that have already transferred into the new system, these new rules have replaced the rules that applied in the previous tribunals. However, unlike the approach taken in previous orders under the Act, the approach of this order is to retain the existing Lands Tribunal rules, amending them to the extent necessary to bring them into line with the new tribunals structure. This will enable the existing rules to apply to the Lands Chamber of the Upper Tribunal at commencement. This approach has the support of the Senior President of Tribunals. It is an interim measure and the aim is to have rules made by the Tribunal Procedure Committee to apply to the Lands Chamber in due course. This will be achieved through the Tribunal Procedure Committee making further rules, on which there will be consultation later this year.

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We are also making provision for the current fee structure for Lands Tribunal work to apply to appeals in the new chamber once the transfer takes effect. This is being done in a separate order, subject to the negative procedure. The approach that we have adopted means that stakeholders and users of the Lands Tribunal will see little change to procedure when the transfer takes place. While it will not be the formal title, the Lands Tribunal name will be retained for the time being in order to ensure continuity. We have not therefore conducted a separate consultation on this transfer, although we have kept stakeholders and users informed of progress via correspondence and the internet.

The Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 effects the transfer of the Lands Tribunal into the Upper Tribunal established under Section 3 of the Act. Transitional provisions in the order ensure that cases currently heard by the Lands Tribunal will not be adversely affected by the transfer. A hearing that has commenced but not completed will be completed in the Upper Tribunal comprising the same members. Directions and orders made prior to this order coming into force will continue in force as if they were directions or orders of the Upper Tribunal. In addition, the order contains various minor, consequential and transitional provisions in respect of the transfers.

Article 2 effects the transfer of the functions of the Lands Tribunal to the Upper Tribunal and abolishes the Lands Tribunal. Article 3 provides for members of the Lands Tribunal to be transferred to hold offices in the Upper Tribunal. Where the original office has not been abolished, the office holders will hold both the new and the old office. Articles 4 and 5 provide for consequential amendments to primary and secondary legislation and church measures. These are mainly set out in Schedules 1 to 3. However, Article 5 also makes global changes to references to the Lands Tribunal in local and private Acts and in a certain type of local order relating to transport. The order also provides for minor amendments that do not relate to the transfer of the Lands Tribunal. These amend legislation as a consequence of the earlier transfers or in relation to the implementation of other provisions of the 2007 Act.

The Government are committed to ongoing transformation of our tribunals, placing the user at the very heart of the service. The new system will have greater flexibility in absorbing new work or responding to fluctuations. The order, which I commend to the Committee, is another significant step towards achieving that. I beg to move.

Lord Henley: As my honourable friend Henry Bellingham made clear in another place, we do not believe that the order is controversial, unlike—dare I say it?—some other aspects of the new tribunals system, but we are grateful that the Government saw reason on those matters, particularly in relation to the war pensions tribunal, and amended the whole new tribunals system. We are also grateful that the Lands Tribunal jurisdiction will be transferred to the Upper Tribunal—the upper tier—which we think is more appropriate. I have

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anecdotal evidence of that. Over lunch, I sat next to a Member of this House who was also my pupil master 30 years ago. He appeared frequently in those days in front of the Lands Tribunal and, when I told him of this order, his first and only question was which tier the tribunal would be in. He was grateful that it was to be in the upper tier, which he thought was appropriate. I think that we all agree on that.

My honourable friend Henry Bellingham asked a number of questions in the other place, to most of which the Minister in the Commons gave a perfectly satisfactory reply. I have only one more question to add. If I heard the Minister correctly, he said that the name would remain the Lands Tribunal for the moment but might change later when there had been consultation. Does the tribunal need to change its name? I see exactly why the Government want to leave it as it is at the moment, as keeping the name might prevent any confusion as we move from the Lands Tribunal to the new arrangements. However, might it not be better to leave the name in place for longer than that? Having put that point to the Minister, I should say that we welcome the order and have no further objections to it.

Lord Thomas of Gresford: The noble Lord, Lord Henley, referred to the war pensions appeal tribunal being transferred eventually to the tribunals system. We supported the setting up of a separate chamber, but this is a slightly different situation. The Lands Tribunal is to be transported lock, stock and barrel to the Upper Tribunal, which I thought to be an appellate jurisdiction. There is provision in the Act for appeals from the Upper Tribunal to the Court of Appeal, but only on a point of law in restricted circumstances. Consequently, I was interested to note that on page 43 of the order there is a significant amendment to the rules on permission to appeal to the Court of Appeal and review. It is quite clear from this amendment to the rules that leave to appeal to the Court of Appeal is required and that an application for leave to appeal must identify the alleged error or errors of law in the decision and state the result that the person making the application receives.

There is further provision in the amendment to the rules proposed in the order for the Upper Tribunal to review the decision that it has already made, so in effect it reviews its own decision. I should like an assurance from the Government on this. Should not applicants to the Lands Tribunal have a wider route to appeal than that? I think that there should have been an opportunity to appeal a Lands Tribunal decision on the merits of the case and not simply on a point of law. The distinction is important because, in a review of the merits, the Court of Appeal could overturn a decision of the Lands Tribunal; if it is merely a question of a point of law, an applicant needs to establish that the earlier decision is unlawful by reason either of case law or of some other statutory provision. Subject to that assurance from the Government, we will give this order a fair wind when it eventually comes before the whole House. If the Minister has no answer to my question at the moment, I would be grateful to hear from him in writing in due course.

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4.30 pm

Lord Newton of Braintree: I intervene very briefly, as your Lordships will no doubt be glad to hear, and in doing so I declare a couple of interests. I think that people are aware of them, but I am currently chair of the Administrative Justice and Tribunals Council, which has an oversight role in these matters. In view of some of the Minister’s references, I should say that I have served in that capacity as a member of the Tribunal Procedure Committee and have therefore played my own part, although someone else has done most of the work, in creating the new rules.

Tempting though it would be, in the light of what has been said from the two Front Benches, to re-enter into the arguments about war pensions, I regard them as sensibly put to sleep and do not propose to awaken them. I simply express my general support for the proposals in the order, because of the support that I and the council that I chair have for the overall process of tribunal reform.

I shall be interested to hear what the Minister has to say in response to the noble Lord, Lord Thomas of Gresford, but my view is that, in view of the nature of the work of the Lands Tribunal, as well as the reputation that it has established, the appropriate place for it is as part of the Upper Tribunal. If I may say so to my noble friend, it could well become appropriate to consider its title when other tribunals in the land and property area come into the tribunals service, if they do in due course. That is something else on which the Minister will no doubt want to comment in general. I simply express my strong support for the order.

Lord Patel of Bradford: I thank all noble Lords for their support for the order. Even the pupil master of the noble Lord, Lord Henley, supports it, which is very useful. With regard to a name change, it is not necessary for the name to change but in due course it would be preferable for it to be clear that the Lands Chamber was part of the new tribunals system in the same way as other chambers of the Upper Tribunal. That is the situation at the moment, but we will consult before any change.

On the more detailed questions about the Lands Tribunal and the issue of appeal, as I understand it, the Act provides for a right of appeal to the Court of Appeal on a point of law from a decision of the Upper Tribunal, of which the Lands Chamber will form part, but only with permission from the Upper Tribunal or the Court of Appeal. An appeal from the Lands Tribunal is also on a point of law only, as I said. As Lands Chamber cases are not heard in the First-tier Tribunal, the restrictions on appeals set out in Section 13(6) of the Tribunals, Courts and Enforcement Act will not apply. I hope that I have fully answered the noble Lord’s question. If he wishes me to pursue it further, I am happy to get a letter out to him.

Lord Thomas of Gresford: I would like it to be pursued further.

Lord Patel of Bradford: In summary, the Government have put through this order to further implement the provisions of Part 1 of the Tribunals,

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Courts and Enforcement Act 2007. The order abolishes the Lands Tribunal and transfers its jurisdiction to the Upper Tribunal Lands Chamber. In putting forward this instrument, we are continuing the process of tribunal reform that began in 2001 with Sir Andrew Leggatt’s review. It is the Government’s belief that the transfer of the Lands Tribunal’s jurisdiction to the new tribunals structure will benefit users of that tribunal. I commend this draft statutory instrument to the Committee.

Motion agreed.

Freedom of Information (Time for Compliance with Request) Regulations 2009

Copy of the Regulation
11th Report from JCSI

Considered in Grand Committee

4.33 pm

Moved By Lord Patel of Bradford

That the Grand Committee do report to the House that it has considered the Freedom of Information (Time for Compliance with Request) Regulations 2009.

Relevant Document: 11th Report from the Joint Committee on Statutory Instruments.

Lord Patel of Bradford: The purpose of these draft regulations is to allow certain schools and pupil referral units in Northern Ireland more time to respond to freedom of information requests to take account of closure during school holidays.

The Freedom of Information Act enshrined in law for the first time the right of access to official information. The Act applies to over 100,000 public authorities. Since the Act came into force on 1 January 2005, central government-monitored bodies have received more than 30,000 requests each year and requests to public authorities in the wider public sector exceed 87,000 per year.

Under the Act, freedom of information requests must be responded to “promptly” and normally within 20 working days. It is right that people making requests should receive a timely response. Eighty-two per cent of requests received by central government-monitored bodies during the period January 2005 to December 2008 were answered within 20 days.

However, there are limited occasions when that deadline is impractical. That is why, in the lead-up to the introduction of the Act during 2004, regulations were laid to extend the deadline for answering requests for specific public authorities in certain limited circumstances. Those 2004 regulations extended the usual 20-working-day limit in relation to: maintained schools in England and Wales and schools maintained by the Secretary of State for Defence, to take account of closure during school holidays; archives, to deal with requests for information contained in a public record that has been transferred in a closed file because one of the freedom of information exemptions applies; requests where information needs to be obtained from front-line units of the Armed Forces and they cannot

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be reached for operational reasons; and requests involving information that is held outside the UK and will take some time to retrieve.

The regulations would give certain Northern Ireland schools and units the same reasonable allowance that schools in England and Wales already have under the 2004 regulations. Currently, controlled schools, voluntary schools, grant-maintained integrated schools and pupil referral units in Northern Ireland can face difficulties in answering requests received during holiday periods when schools are closed and unstaffed. That is a particular issue during summer holidays, which can last about eight weeks and therefore longer than the 20 working days permitted for a response. These schools and units in Northern Ireland may, therefore, be put in a position where they will unavoidably be unable to comply with the time limits provided for under the Act. That is simply not sensible.

Section 10 of the Act requires public authorities to deal with freedom of information requests “promptly” and in any event within 20 working days of receipt. If the regulations are approved, managers of certain Northern Ireland schools and pupil referral units would not have to count any day that is not a school day, such as during the school holidays, towards the period of 20 working days within which requests must be answered. However, requests must be answered within a maximum of 60 working days in total, including any school holiday periods.

Schools will still have an obligation to respond to requests promptly. Where it is possible for a school to respond to a request earlier, the response cannot be delayed until the end of the extended time limit. The regulations will ensure that certain schools and units in Northern Ireland will have more time to deal with information requests when they need it most. It will also place schools in Northern Ireland on a comparable footing with their counterparts in England and Wales. I therefore commend the regulations to the Committee. I beg to move.

Lord Henley: I suspect that the Freedom of Information Act 2000 was one of those Acts that the Government rushed into that they now have concerns about on occasion, as sometimes information is dragged out of them less willingly than it ought to be under the spirit of the Act.

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