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Finally, as the Minister made clear, and as is made clear by the Explanatory Memorandum, the transport tribunal will remain in place when dealing with two matters, the first of which concerns Scotland. It is for the devolved Parliament to decide whether to abolish it or whether we shall continue with different systems in different countries, as we have with war pensions. As paragraph 7.7 of the Explanatory Memorandum makes clear, it will remain in place until Sections 127A, 131E, 131F, 132, 132A and 132B of the Transport Act 2000 come into effect. When exactly were all those sections originally enacted, and when might they be brought into effect? Since they have letters behind them, I imagine that some were not part of the original 2000 Act. I am just interested in view of the amount of legislation that comes from the Government, particularly the Ministry of Justice, which is enacted but then not brought into effect. I hope that the Minister can answer those questions.

Lord Razzall: I do not rise to confuse the Minister. I have not been transferred from what I still refer to as the Department of Trade and Industry to be shadow spokesman for the Ministry of Justice; it is just that sometimes one does one's duty. Generally, my party supports this order, as does the noble Lord, Lord Henley. We have supported the reform of the tribunal system through another place, if for no other reason than that it seemed to us, and indeed the Government, slightly strange to have a system under which there was a whole series of tribunals that were responsible for monitoring the decisions of government departments, but the government department was responsible for monitoring what the tribunal was doing. In any sensible world, that would not be sensible. For that reason, above others, we have supported these reforms. I have three points to raise with the Minister.

First, as the Minister will know from his time on trade and industry matters, I have asked this about endless statutory instruments that have been brought forward in this area. I find it very difficult to keep track of what the department is now called, so I continue to refer to it as trade and industry matters. The Government are very good at entering into consultation-much better than many other Governments have been before bringing in such instruments, or

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indeed legislation. We always get a document that tells us-as this one does at paragraph 8.1-that the Government have consulted and received 140 responses. As I think one of my honourable friends in another place said, it would be very interesting if the Government, in responding to the consultation, could indicate, first, what changes were made to the orders as a result of the consultation; and, secondly, what important points were made by those who were consulted but not taken on board by the Government? I know that this is quite a complicated issue but I always ask this about these orders in the hope that one day the Explanatory Memorandum will set out the arguments for and against, and why the Government rejected them.

Secondly, the transport tribunal stays in existence, notwithstanding these changes. I think the noble Lord, Lord Henley touched on this. I understand that the difficulties, which I gather have been referred to as the "floating in limbo" provisions of the Transport Act, still need to be resolved. The more important issue, which I think is unclear, is of how the Government envisage dealing with the Scottish issue. Does this mean that primary legislation must take place in Scotland? Must it take place in the UK? Wherever it takes place, when do the Government think that it will occur?

The third issue that I want to raise, which the noble Lord, Lord Henley, did not, was raised by his honourable friend the MP for North West Norfolk in another place, and I thought it was a very good point. Could some indication be given of the basis on which certain matters are referred to a first-tier tribunal and others to an upper tribunal? Is it to do with levels of judicial expertise? If so, yes; if not, why not?

Lord Tunnicliffe: I thank noble Lords for their support. The noble Lord, Lord Henley, asked what further transfers were planned. Subject to parliamentary approval, further transfers into the general regulatory chamber are planned for January 2010 when we will transfer the jurisdictions of the gambling appeals tribunal, the immigration services tribunal, the adjudication panel for England, the information tribunal and the claims management tribunal to the first-tier tribunal general regulatory chamber. Draft rules for the general regulatory chamber have been proposed by the Tribunal Procedure Committee and a public consultation has recently closed.

Also in 2010 we plan to transfer the Family Health Services Appeal Authority to the first-tier tribunal health, education and social care chamber and the pensions regulatory tribunal and financial services and markets tribunal into the finance and tax chamber of the upper tribunal. The Tribunal Procedure Committee will shortly be consulting users of these tribunals to assess whether amendments to procedure rules will be required when they transfer in.

In May we announced plans to transfer the work of the asylum and immigration tribunal in 2010 and set up the first-tier tribunal and upper tribunal chambers for immigration and asylum. The Tribunal Procedure Committee will be consulting on rules for the upper tribunal chamber and will modify the existing AIT procedural rules and fast-track rules so that they apply for proceedings in the first-tier chamber. After

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this set of transfers, we will consider how best to transfer the remaining tribunals, many of which have few or no cases.

The reason for setting up the unified tribunal system was to provide a better system for users and was not, therefore, primarily a cost-saving measure. Moreover, the regulatory impact assessment for the Tribunals, Courts and Enforcement Act 2000 did not identify any additional costs from setting up the first-tier tribunals and upper tribunals. However, it is expected that the new structure will facilitate improved use of resources as well as offering greater flexibility in absorbing new work and responding to fluctuations, which will lead to savings in the longer term.

As to when the provisions will be brought into effect, the transport tribunal retains jurisdiction for tribunals relating to the quality contract scheme under sections-and there are an awful lot of sections-of the Transport Act 2000, as amended, which have yet to be brought into force and, as yet, no decision has been taken on whether the appeal should lie to the first-tier tribunal or the upper tribunal. There will be further consultation on this by the Department for Transport and a further transfer order will be laid before Parliament following completion of that consultation. It will be brought into force after consultation is concluded. The consultation is planned to be published shortly.

As regards the Government's consultation regarding tribunals and the response to it, 48 respondents thought that the proposed allocation of jurisdictions was correct. Of the 19 who disagreed, three respondents commented on the mental health review tribunal, one on the information tribunal and a few respondents disagreed on the proposals for the tax credit appeals tribunal. Seven respondents commented on the proposals for the pension appeals tribunal and these concerns were met during the debates on the transfer of this tribunal. Of relevance to today's transfers were the comments provided by two respondents, who thought that the consumer credit appeals tribunal and estate agents tribunal should be in the upper tribunal on the basis that they dealt with issues similar to those of the financial services and markets tribunal. The Government rejected these arguments on the basis that the level of complexity and breadth of the issues dealt with by the financial services and markets tribunal was not replicated in either the consumer credit appeals tribunal or the estate agents appeals panel. The Government have considered and listened carefully to all respondents' comments and have responded accordingly where concerns have been raised.

As to when the transport tribunal will be abolished-in other words, when are we going to solve the Scottish question?-we are unable to provide an exact timetable, given the legislative amendments needed, but we plan to do so as soon as we are able. In respect of the devolved matter, a suitable legislative vehicle will need to be found to amend the Transport (Scotland) Act 2001 or the Tribunals, Courts and Enforcement Act 2007. This could be done directly by the Scottish Government or in Westminster with their agreement.

On the question of what goes where, my relatively simple understanding-I will write if I get this wrong-is that most matters from first appeal will go to a first-tier

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tribunal. The big exception is the traffic commissioner, because the appeal was to the commissioner in the first place. In that case, it goes directly to the upper tribunal. Appeals from the first-tier tribunal-shall we start again on this bit, now that I have a script? The jurisdiction to hear appeals to decisions of the traffic commissioner transfers to the upper tribunal. Traffic commissioners are, in effect, an appeal body when they make a decision in cases that can be appealed to the transport tribunal. In this capacity, they are subject to the oversight of the Administrative Justice and Tribunal Council. It is therefore more appropriate to transfer appeals against decisions of the traffic commissioners to the upper tribunal, which preserves the current status of the transport tribunal as a superior court of record when dealing with these types of appeal.

The remaining jurisdiction transfers to the first-tier tribunal and generally deals with appeals from the Driving Standards Agency. Such appeals are appropriate for the first-tier tribunal, given its first-instance jurisdiction. In other words, the first tier will normally deal with first-instance jurisdiction and the upper level will hear appeals for the first level, but in some areas particularly complex or important cases will go directly to the upper tribunal. The issue is that, it being a superior court of record when dealing with these types of appeal, it can create precedent.

Motion agreed.

Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009

Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009
16th Report of Joint Committee of Statutory Instruments

Considered in Grand Committee

4.52 pm

Moved By Lord Tunnicliffe

Motion agreed.

Transfer of Functions (Transport Tribunal and Appeal Panel) Order 2009

Transfer of Functions (Transport Tribunal and Appeal Panel) Order 2009
16th Report of Joint Committee of Statutory Instruments

Considered in Grand Committee

4.53 pm

Moved By Lord Tunnicliffe

Motion agreed.



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Transfer of Functions of the Charity Tribunal Order 2009

Transfer of Functions of the Charity Tribunal Order 2009
16th Report of Joint Committee of Statutory Instruments

Considered in Grand Committee

4.53 pm

Moved By Lord Tunnicliffe

Motion agreed.

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009
17th Report of Joint Committee of Statutory Instruments

Considered in Grand Committee

4.54 pm

Moved By Lord Tunnicliffe

Lord Tunnicliffe: The purpose of this order is to maintain the crucial balance between the need to rehabilitate reformed ex-offenders into employment and the need to ensure that the public, particularly vulnerable groups, are adequately protected from those who pose a serious risk.

As noble Lords will be aware, the Rehabilitation of Offenders Act 1974 serves to help those who have a previous criminal conviction or caution but who wish to move on with their lives and put that behind them. If an ex-offender can demonstrate that they are staying on the right side of the law by remaining free from further convictions for a specified period of time, their original conviction or caution will become spent. Once spent under the Act, it no longer needs to be declared for most purposes. For instance, an employer is no longer entitled to ask, and such convictions no longer need to be declared when applying for insurance. The Act thereby enables ex-offenders to avoid discrimination. This in turn helps to rehabilitate ex-offenders into the workforce and to reduce reoffending.

In some cases, however, a need to protect the public outweighs this principle. In certain positions, it is appropriate for the employer or licensing body to know about spent convictions. For instance, when it comes to the protection of children, the vulnerable and national security, the need to safeguard the public comes first. This is the purpose of the exceptions order, which the current amendment order updates.

The exceptions order specifies the positions of sensitivity where the need to support the ex-offender is deemed to be outweighed by the need to protect the public, so the Rehabilitation of Offenders Act no

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longer applies. This instrument is one of a series that have been put before noble Lords for consideration over recent years. It is part of an ongoing commitment and a corresponding series of legislative updates to ensure that this important balance is maintained. It updates the order to ensure that it keeps pace with changes both to legislation and to known risk.

The order before us today makes a number of separate but important amendments to the exceptions order, which I will run through in turn. The first purpose of this instrument is to create an exception to the Act for those working, or seeking to work, in regulated activity as defined by the Safeguarding Vulnerable Groups Act 2006-the SVGA. This legislation, which was part of the Government's response to the Bichard report following the Soham murders, introduces a vetting and barring scheme that will fundamentally strengthen safeguarding practice.

For the first time, it will be necessary for all those working in regular direct contact with vulnerable groups to be vetted by an independent body: the Independent Safeguarding Authority-the ISA. There will be an obligation on employers to check that their employees are registered with the ISA. Those who are registered will be subject to monitoring, which means that the employer will be informed if, as a result of any new convictions, the ISA de-registers that person.

Amending the exceptions order to include regulated activity is essential for the next stage of the scheme to be implemented. This amendment will authorise the Criminal Records Bureau to disclose information to the ISA that would otherwise be protected by the Rehabilitation of Offenders Act. The ISA can then decide whether to bar people based on factors that include spent convictions, cautions, reprimands and final warnings. This amendment will also enable employers to obtain disclosures informing them about criminal convictions, thereby enabling them to make employment decisions based on all relevant safeguarding information.

The Police Act regulations are also being updated in tandem to enable the relevant information from police records to be disclosed. This will ensure consistency across the entire disclosure regime, and that such crucial safeguarding decisions can be taken on the basis of all available evidence. Unsurprisingly, many of the areas covered by regulated activity are already listed in the exceptions order. However, the new category and the new scheme bring new levels of consistency and enhanced vetting by an independent expert body, and help to ensure that any safeguarding gaps are bridged.

Provisions on the Channel Islands are included in the current order. These are linked to the Safeguarding Vulnerable Groups Act and are part of the process leading to the extension of that Act to the islands. The inclusion of those measures was requested by Channel Island Ministers, who are keen to ensure that the islands are covered by the same vetting and barring regime as is being introduced in England and Wales. That will avoid the possibility of those who are barred from working here moving to the islands to avoid detection. However, if those working in the islands are to be subject to vetting by the Independent Safeguarding Authority, and their employers are to be able to obtain

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CRB disclosures, it is necessary that they are covered by the exceptions order. Hence the provisions in the current order.

Of course it is imperative when introducing measures such as this that due consideration is given to ensuring that our order ties in appropriately with local legislation. For this reason, the exemption from the ROA applies only where the purpose is already subject to an exemption under both England and Wales and Channel Islands legislation. Hence eligibility to disclosures, and the information which can be disclosed, will never exceed that which exists either in England and Wales or in the Channel Islands.

I am sure that the Committee will agree that the extension of the Safeguarding Vulnerable Groups Act to the Channel Islands is a sensible step for all concerned, and that this measure is a necessary step in implementing this.

I now turn to the other provisions in the instrument, starting with the Master Locksmiths Association. The instrument entitles the MLA to ask exempted questions when assessing membership applications. There has recently been concern that locksmiths, particularly those who are licensed, should be appropriately vetted. That is especially true of those given training in the skills of gaining entry to property or in possession of a badge of quality assurance which is looked for by those in greatest need of someone trustworthy. Under the current system, it would be possible for an individual with many spent convictions or cautions for theft to apply for membership of and training with the Master Locksmiths Association, and it would be unlawful for the MLA to see or consider that crucial information before awarding MLA member locksmith status.

Crime prevention is always a priority for the Government, hence the frequent publicity campaigns encouraging the public to take issues of home security seriously, fit reliable locks and install security systems. The MLA, as the principal trade body representing locksmiths and promoting standards within the industry, runs a licensing scheme which enables the public to be reassured that their locksmith has been vetted. Indeed, the Home Office and many police forces recommend using an MLA-approved locksmith for crucial security purposes.

It is therefore only logical for the Government to take a joined-up approach and enable the MLA to ensure that those who are accredited with MLA member status can be verified as being of sound character and unlikely to abuse their skills. Indeed, before giving someone access to your house keys, or, even more crucially, the keys to a hospital, school or old people's home, it is not unreasonable to expect that person to have been checked and to have been assessed as trustworthy and honest. Similarly, it is not unreasonable to expect that anyone signing up to an accredited course on how to circumvent locks and security systems without keys should be similarly checked. The MLA is keen to ensure that adequate vetting is conducted in both those circumstances, ensuring that those who are given the trusted MLA member status are reliable, and that those who sign up to their courses also meet their membership criteria.



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Vetting decisions for locksmiths will be taken centrally by the MLA, ensuring that there is consistency of vetting and that information on spent convictions is used only for its intended purpose: to see if an applicant for MLA membership is suitable to work as a locksmith. The Government believe that it is entirely appropriate for the MLA to be supported in this, and that it should be given the necessary information to make an informed vetting decision. Hence the relevant provision in the current order which addresses an area where public protection could and should be improved.

On which note, I move to the provisions relating to Home Office licences to handle controlled drugs and precursor chemicals. The need to regulate access to such materials and closely regulate the sector needs no introduction. The industry involved in the legitimate production of controlled substances-for instance for pharmaceutical purposes-is hugely important. However, the consequences of criminality entering that sector would be dire. Although we need responsible people to produce controlled drugs for their intended purpose, and to destroy those controlled drugs which should not be in circulation, it is vital that those substances do not get into the wrong hands. For this reason, there are a number of drugs which it is illegal to handle without an appropriate licence from the Home Office.

The Government also have important international obligations, under a number of UN conventions, to ensure that narcotics and psychotropic substances are subject to adequate controls. The Home Office is responsible for fulfilling these obligations, and has recently become aware that this is an area where our safeguards need to be strengthened. This is what the current order seeks to support.

Specifically, the order enables the Home Office Drugs Licensing and Compliance Unit to assess all convictions of relevant persons when deciding whether to grant a licence to handle controlled drugs and precursor chemicals. A full enhanced disclosure will be issued, enabling an informed decision to be made.

The measure will be used responsibly; only specified people who are in a unique position to subvert or circumvent existing safeguards will be vetted. It will apply to those responsible for witnessing the destruction of controlled drugs, and the vetting will be conducted by the Home Office as part of the licence application. The measure, which is designed to prevent criminals obtaining and abusing a licence to obtain, make or distribute controlled drugs is an essential step in ensuring that access to controlled drugs and precursor chemicals is just that: controlled.

I will now speak to the provisions relating to regulated immigration advisers. The Office of the Immigration Services Commissioner-the body responsible for regulating immigration advisers-has proposed that this amendment be made to the exceptions order to help to tighten its current regulatory regime. It is illegal for anyone who is not a solicitor, barrister or regulated immigration adviser to work in the sector. The first two categories are already listed in the exceptions order, and there are several reasons why it is appropriate for the third to be brought into line.



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