Transfer of Tribunal Functions Order 2008

rose to move, That the draft order laid before the House on 4 June be approved. The noble Lord said: My Lords, the noble and gallant Lord, Lord Craig of Radley, has indicated that he intends to move an amendment to the Motion. I will address what I believe to be his concerns and, as he will not be surprised to hear, ask him to withdraw his amendment at the end of the debate. The Act received Royal Assent in July 2007. Part 1, to which the three orders relate, creates a new two-tier tribunal structure—the first-tier tribunal and upper tribunal. As my honourable friend the Parliamentary Under-Secretary of State, Bridget Prentice, noted in moving this order in the other place, the Bill had an excellent passage through both this House and the other place after being announced in November 2006 as part of the Queen’s Speech. This is testament to what the Act will achieve as well as to the stewardship of my noble friend Lady Ashton of Upholland who guided it through its proceedings here, and my honourable and learned friend, now the Solicitor-General, who steered it through the other place when she was at the Department for Constitutional Affairs. The 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. Sir Andrew told us that we needed to create a single tribunals system. He told us these tribunals had to be completely separate from the government departments that made the decisions being appealed against, and that they should all be overseen by a separate distinct judiciary and administration. The Government established a unified administration for tribunals with the creation of the Tribunals Service in April 2006. The Act took tribunal reform much further and addressed the disorganisation of tribunals by creating a cohesive statutory framework with a unified tribunal judicial system. It is a system, however, within which the specialisms of individual tribunal jurisdictions will be supported and, indeed, enhanced. The first-tier tribunal and upper tribunal will bring together existing Ministry of Justice tribunals and tribunals in other government departments. They will be led by the Senior President, Lord Justice Carnwath, who was appointed under the Act in October last year. The first-tier tribunal will be the first instance tribunal for most jurisdictions; appeals from the original decision-making body will usually commence in this tier. The upper tribunal will deal with appeals from the first-tier tribunal and from some tribunals outside the unified system. It will also have the power to deal with judicial review work delegated from the High Court, and a few specialist cases will commence in the upper tribunal. Onward appeal from the first-tier will lie to the upper tribunal only with permission and on a point of law. The onward appeal from the upper tribunal to the Court of Appeal or the Court of Session will also be only with permission and on a point of law. The main base of the upper tribunal will be located in central London; however, it will have the ability to hear cases throughout the UK. Both the first-tier and upper tribunals will be split into chambers grouping together similar jurisdictions, as set out in the First-tier Tribunal and Upper Tribunal (Chambers) Order, a statutory instrument subject to negative resolution procedures and laid on 15 October 2008. The chambers order divides the first-tier tribunal into three chambers—the social entitlement chamber, the health, education and social care chamber and the War Pensions and Armed Forces Compensation Chamber. The upper tribunal will initially have only one chamber—the administrative appeals chamber. These chambers will be able to maintain and expand expertise and incorporate new jurisdictions where they fit best. Judges and members can be invited to sit in another jurisdiction, but only if the individual satisfies the eligibility criteria, has undertaken any necessary training and there is a business need. It is essential for providing a good service that specialist expertise is protected and improved. Each chamber under the Act is required to have a chamber president, whose role is the maintenance and improvement of the chamber’s expertise. They will usually be selected by the Judicial Appointments Commission. Their aim will be to ensure that the proper degree of judicial expertise is brought to bear on cases. They will also be judges of the upper tribunal. In addition to this, each jurisdiction will have a principal judge. These will be the current leads in the jurisdiction and will provide continuity in judicial leadership in the new system. The Act also creates a Tribunal Procedure Committee that will bring greater consistency and simplicity to tribunal procedure rules. Committee members have been appointed by the Lord Chancellor, the Lord Chief Justice, the Lord President and the Senior President of Tribunals. The membership of the committee includes a representative of the Administrative Justice and Tribunals Council, the noble Lord, Lord Newton of Braintree, whom I am delighted to see in his place. The AJTC was created under the Act to replace the Council on Tribunals and has, through its seat on the committee, a central role in the rule-making process for tribunals. The Tribunal Procedure Committee has made rules for each of the chambers of the first-tier and the upper tribunal. The rules were laid on 15 October 2008. The new system will have greater flexibility in absorbing new work or responding to fluctuations. It allows the introduction of a more coherent appellate system from tribunals, and clarification of the relationship of tribunals to the principles set out in the Constitutional Reform Act 2005. It will also create more adaptable boundaries between courts and tribunals by allowing the courts to transfer certain types of case to tribunals and reducing the need for judicial review hearings in the High Court. We conducted a 12-week public consultation on the proposals, which ran from November 2007 to February 2008. The response was published in May, and copies were laid in the Library of the House. While the proposals were, on the whole, very well supported, serious concerns were expressed by members of the Armed Forces community about the possible impact on the service which the Pensions Appeal Tribunals provides for them as a result of implementing the Act. In particular, they were concerned about the proposed transfer of the PAT England and Wales jurisdiction into the social entitlement chamber. In recognition of these concerns, I would like to advise the House that following further consultation on the chambers’ structure, in recognition of concerns expressed by members of the Armed Forces community and the special relationship between service personnel and the Government, the decision has been made to create a separate War Pensions and Armed Forces Compensation Chamber. I pay tribute to, among others, the noble and gallant Lord, Lord Craig, my noble friend Lord Morris of Manchester and the noble Lord, Lord Cope of Berkeley, whose very effective submissions got us to change our mind. The Government’s decision has been made with the full involvement of the Confederation of British Service and Ex-service Organisations—COBSEO—and other key organisations. This will ensure that service personnel can benefit from the advantages of being within the new tribunal structure while ensuring that the unique nature of the jurisdiction is not compromised or diluted. The chamber will have its own rules and procedures, and the present role of service members on hearing panels will be maintained without diminution or alteration. The negative statutory instruments laid on 15 October reflect and buttress the unique nature of the Armed Forces jurisdiction within the unified tribunal structure. In addition, the Lord Chancellor and the Senior President of Tribunals have made a joint statement explaining the basis on which the work of PAT England and Wales will transfer into the new tribunal system. The joint statement was included in Written Ministerial Statements made by the Lord Chancellor and myself on 16 October 2008. If noble Lords have not had the opportunity of reading that Written Ministerial Statement, I invite them to do so. It is a very comprehensive Statement, which includes passages that were helpfully suggested to the authors by the noble Lords to whom I have referred. Ex-service and service organisations and the noble Lords to whom I referred have worked tirelessly with the Government to reach the best possible outcome for the ex-service and service men and women who are the users of the PAT and should always remain the focus of any proposals that will impact on the jurisdiction. The Government are committed to ongoing transformation of our tribunals, placing the user at the very heart of the service. The orders that I ask the House to approve today are very significant steps towards achieving this. The Government have decided on a phased introduction of the new tribunals system, starting in November. This is to avoid disruption to service delivery. None the less, we aim to implement the new system as soon as is practicable. The Transfer of Tribunal Functions Order effects the transfer of various existing tribunals listed in Schedule 1 of the order to the first-tier tribunal and the upper tribunal established under Section 3 of the Act. The order has various primary functions, and in addition contains various minor, consequential and transitional provisions in respect of the transfers. On the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008, Schedule 4 to the 2007 Act requires the Lord Chancellor to make provision, by virtue of this order, for the number of members on a tribunal panel and whether these members should be judges or non-legal members. It further enables these duties of the Lord Chancellor to be carried out by the Senior President of Tribunals, which this order will do. For the first-tier tribunal, the order requires the senior president to determine the number of members of a tribunal. In doing so, he is required to have regard to the practice that existed in the tribunal before it was transferred into the first-tier tribunal. The order sets out the qualifications or experience that a person must have to be eligible for appointment as a member of the first-tier tribunal or upper tribunal who is not a judge of the tribunal. It generally reflects the intentions set out in the Government’s consultation paper by retaining existing qualifications required for non-legal members of transferring tribunals with some additional flexibility introduced to reflect widening areas of expertise suitable in some jurisdictions. I have spoken of the concerns that were expressed by members of the service and ex-service community in respect of the transfer of PAT into the new tribunal, and the steps we have taken to address these concerns. One concern was that the role of the service member should be preserved for the Armed Forces jurisdiction. While the composition order does not explicitly do this, other measures have been taken to ensure that appeal panels must include those who understand the particular nature of service in the Armed Forces. The Senior President of Tribunals has produced a draft practice statement on composition of tribunals which requires the continued use of service members on hearing panels within the War Pensions and Armed Forces Compensation Chamber. The president and deputy-president of the PAT have been consulted on the draft and are in agreement with it. The qualifications order requires that service members have substantial experience of service in Her Majesty’s naval, military or air forces. These measures will ensure that the present role of service members in the Armed Forces jurisdiction is maintained without diminution or alteration. The Government believe that any further application for permission or leave should satisfy at least one of the requirements without exception. This restriction is necessary as appellants will already have had two appeals and two opportunities for their case to be heard. I am dealing with some of the more detailed elements of the order relating to appeals from the upper tribunal to the Court of Appeal. I do not think that I need to go into details on those orders, but of course I am in a position to do so if I receive comments and questions about them. I know that this has been a vexed matter over a number of months and the Government are grateful to those who have taken such an active interest in ensuring that we have got it right; I think that we have now. I commend the draft order to the House. I beg to move. Moved, That the draft order laid before the House on 4 June be approved. 21st Report from the Joint Committee on Statutory Instruments.—(Lord Bach.)