My Lords, I thank my noble friend Lord Sharkey, the noble Baroness, Lady Donaghy, and the noble Lords, Lord Rooker and Lord Kennedy, for their contributions to this clause stand part debate. It is only right and proper that we are challenged as a Government as to why we want Clause 61 in the Bill. I will certainly seek to address the issues and will reflect on the points that have been raised. But there is a good basis for why we might wish to remove this particular, very limited, form of reporting.
Clause 61 repeals a specific and separate duty placed on the Senior President of Tribunals to report annually to the Secretary of State for Work and Pensions on the standard of certain decision-making by the Department for Work and Pensions; namely, decisions whose associated appeal rights are resolved at the First-tier Tribunal: Social Security and Child Support. The duty was introduced in 2007 and replicated an equivalent duty on the then President of Appeal Tribunals, who had produced a separate annual report since 2000.
I cannot agree with the charge that the underlying motivation for this is to reduce transparency. I say to the noble Baroness, Lady Donaghy, who made that charge, that in fact Section 15A of the 1998 Act applies only in two other small respects. One is where ministerial responsibility for certain decisions about national insurance contributions by carers was transferred from the Department for Work and Pensions to Her Majesty’s Revenue and Customs. The second relates to decisions converting certain previous entitlements to employment and support allowance. Otherwise, there are no other areas in this field where a separate statutory duty applies to the Senior President of Tribunals. It is very limited in its application and I will come on to say why I think there are other measures that are effective and provide for proper transparency, which I agree is important. I am confident that we can remove this requirement in a way that narrows our focus without compromising necessary improvements which previous reports have highlighted and meets the concerns that have been raised should it disappear.
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Perhaps I may articulate three particular reasons why I think we can move forward with that degree of confidence. First, the Senior President of Tribunals now reports annually on all tribunals. This wider report was first published in 2010 and includes specific comments in respect of all the jurisdictions within the tribunals system, including a specific contribution from the president of the Social Security and Child Support Tribunal. Although the wider report was first published in 2010, it is the more specific requirement and duty which is the subject matter of this clause.
This clause will not change the wider report from the Senior President of Tribunals. As now, that report will be able to include specific comments on the performance of the Department for Work and Pensions and on any other government department or agency as the senior president considers necessary and appropriate.
That reporting from the Senior President of Tribunals is quite separate from the statutory power contained in paragraph 13 of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 for the senior president to lay representations before Parliament on any matters which appear to him to be of importance relating to the administration of justice by tribunals. As well as the annual report, a statutory power is available to the Senior President of Tribunals if particular issues are giving concern. He can specifically lay those before Parliament. The Senior President of Tribunals has confirmed that he is satisfied that, together, these measures will ensure that the appropriate transparency in Department for Work and Pensions decision-making remains. My noble friend Lord Sharkey asked whether he was consulted. I have indicated that he has confirmed that the measures that now remain are sufficient, and my understanding is that he was consulted before the change was proposed.
More generally in relation to consultation—the noble Lord, Lord Rooker, referred to the MoJ clauses in the Bill; that is, Clauses 62, 63 and 64—although there was no public consultation on those clauses, which concern criminal justice practice, there was consultation with the Criminal Procedure Rule Committee, on which all who are active in the criminal justice system are represented. Moreover, the rule committee will undertake consultation on any proposed rules changes which it considers necessary. I know that the noble Lord, Lord Kennedy, has a specific issue with regard to Clause 64. Of course, there was consultation at the time on that clause which we will deal with.
The second reason why I believe that this is an appropriate measure relates to why the report was thought to be required in the first place. The specific requirement to report on decision-making in the Department for Work and Pensions was originally introduced at a time when there were no other mechanisms for providing feedback. However, in addition to the new requirements and provisions introduced in the Tribunals, Courts and Enforcement Act 2007, effective, direct and, above all, timely methods for the tribunals to provide feedback to the department have been developed which have made unnecessary either the provision of a separate report or the retention of a specific requirement to report on decision-making in the DWP.
In July 2013, Her Majesty’s Courts & Tribunals Service improved the level of feedback provided by the tribunal by introducing the use of summary reasons—mentioned by my noble friend Lord Sharkey—in the employment and support allowance appeals, initially at four sites. Under this initiative, a judge provides both parties with a short explanation for the decision reached. Her Majesty’s Courts & Tribunals Service, working with the judiciary and the Department for Work and Pensions, has now rolled out the provision of summary reasons across the system to all employment and support allowance appeals, which historically have
accounted for by far the largest proportion of all appeals heard by the tribunal, as well as to personal independence payment appeals.
Working with the judiciary, Her Majesty’s Courts and Tribunals Service is currently exploring the options for extending the provision of summary reasons to other benefit appeals. We believe that this initiative has provided a rich source of information and is helping to inform improvements to Department for Work and Pensions decision-making processes. The previous annual report highlighted shortcomings in DWP decision-making but, by the very nature of that report, it would do so some time after they were identified. That is the nature of annual reports, and it would mean that they would start to be addressed possibly up to 12 months after they had been identified.
With regard to the new processes, my noble friend Lord Sharkey asked whether the drop-down menu gave a sufficient feedback mechanism. We believe that the drop-down menu provides an indication of trends and allows the DWP to understand any systemic problems. If an individual claimant wanted to appeal, they would receive a full, reasoned decision. However, the drop-down menu allows for a volume of information to go through in appeals, from which trends can be identified. Where there is evidence of a trend, surely it is in everyone’s interests and to everyone’s benefit that the DWP is made aware of that sooner rather than later, and we believe that the summary reasons do just that.
The third reason points to much improved liaison between the judiciary, Her Majesty’s Courts and Tribunals Service and the department. We have also improved the day-to-day working relationship with the DWP—for example, through the Administrative Justice Forum. I am told that neither side is slow to tell the other if things are not working as well as they could be, and problems are addressed without delay.
A number of noble Lords have mentioned the question of cost. I will not say that this is my best point; I remember, from my days appearing before the late Lord Wheatley in the Court of Criminal Appeal in Scotland, that I would make a point and he would turn on the bench and say, “Mr Wallace, is that your best point?” You knew at that point that you were sunk. Still, I hope that I have put forward a few very good points. I think that there is an issue on cost, though. My noble friend Lord Sharkey was right when he referred to the £20,000 saving in judicial time. I do not think that that is to be dismissed; it means that that is time not available for doing judicial work, and the Senior President of Tribunals has indicated that he would much rather have the tribunal judges hearing cases than dealing with this very specific reporting responsibility.
At the end of the day, though, as I think all who have contributed to this debate have indicated, our focus should really be on the claimant. Through its own reforms—for example, through mandatory reconsideration and the drive on quality—the DWP is intent on raising its decision-making standards, and the provision of summary reasons by the judiciary plays a complementary part. Between them, they bring
a focus on decision-making that simply was not there with the previous annual report. As I have explained, this clause does not affect the separate annual report by the Senior President of Tribunals on the annual performance of all tribunals within Her Majesty’s Courts and Tribunals Service, but, rather, it recognises the changes that have been introduced since 2007 and that the retention of a separate requirement to report on this aspect of the DWP’s work specifically is unnecessary. The annual report by the Senior President of Tribunals already permits him to report on the performance of each of the jurisdictions in the system. This, along with the separate statutory power for him to lay representations before Parliament on matters of importance relating to the administration of justice by tribunals, will ensure that the appropriate transparency and decision-making by the DWP will remain.
We have referred to the annual report; indeed my noble friend Lord Sharkey quoted from the 2014 report from the Senior President of Tribunals. I think that he will readily acknowledge that the passage he quoted from comes from the section dealing with the Social Entitlement Chamber. Indeed, just before the part that he read out, and this may be worth reading for the Committee’s benefit, the report says this:
“Given the common interest of administrative justice in improving the standard of departmental decisions, the Tribunal is exploring economical methods of providing feedback to DWP. An annual report from the President, based on a small sample of appeals, lacked practical value because it did not allow detailed analysis”.
We then get to the part quoted by my noble friend:
“So, a scheme was introduced in July 2012, whereby the Tribunal would notify the Department, in each case where it overturned a departmental decision, of the principal factor leading the Tribunal to allow the claimant’s appeal. Supplying that notification in a standardised format (via a “drop-down menu”) enabled the Department both to review overturned decisions in individual cases and to aggregate data across tens of thousands of decisions to identify any systemic shortcomings”.
The expression in the annual report from the Senior President of Tribunals is that the previous reporting system “lacked practical value” because it did not allow detailed analysis. It is that which we have sought to address by other means, which is why we believe that the provision as it currently stands on the statute book is redundant. I hope that I have reassured the Committee that in no way will that lead to any less transparency. Indeed, one would hope that through regular and more immediate reporting, trends can be picked up sooner than would have been the case under the previous system.