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Schedule 2

Volume 961: debated on Tuesday 23 January 1979

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Schedule Inserted In Act Of 1976 In Substitution For Schedule 4

I beg to move amendment No. 12, in page 17, line 20, at end insert—

'(2) Before assigning a clerk under this paragraph the Secretary of State shall, if one or more Senior Chairmen have been appointed under paragraph 11 below, consult him or such one of them as he considers appropriate.
(3) The Secretary of State shall consider any representations made to him by a Senior Chairman as to the desirability of terminating the assignment of a clerk and shall take such action, if any, as he considers appropriate.'.
I should like to draw the attention of the House to the debate that we had in Committee on the operation of clerks in supplementary benefit appeals tribunals and the difficulties which arise on occasion. This issue was brought up by Conservative Members but very persuasive arguments were used on this matter by my hon. Friend the Member for Lambeth, Central (Mr. Tilley), ably aided, if I may say so, by my hon. Friend the Member for Chorley (Mr. Rodgers). It was felt that the fact that the clerks were appointed by the Secretary of State could, at times, lead to advice which was not satisfactory. I think that my hon. Friend the Member for Chorley instanced a particular tribunal, or at least complaints that he had received from his constituency, and not least from his local trades council. The arguments were supported by the right hon. Member for Wanstead and Woodford (Mr. Jenkin) and his hon. Friends.

I undertook to consult my noble Friend the Lord Chancellor and to produce a memorandum for members of the Committee and for the House before Report. When I discussed this matter with the Lord Chancellor, he looked a little askance at the debate that the Committee had had and the problems which he and his Department would face if, for instance, the appointment of all the clerks were taken out of the control of the DHSS and put solely in his hands. However, he saw the strength of the argument for seeing that justice is not only done but is seen to be done.

The proposal in the amendment is that the senior chairmen will interview the clerks and advise the Secretary of State before the clerks are assigned. The senior chairmen are appointed by the Lord Chancellor. The amendment further provides that if any representations are made about the unsatisfactory conduct of a clerk, the senior chairmen can make representations to the Secretary of State. I think that it is fairly obvious that if a senior chairman who is a legally qualified chairman were to make such representations, action would have to be taken.

I emphasise that in no way is this a cosmetic exercise. Because of the memoranda that I have submitted, and the discussions that I have had with the Lord Chancellor, I hope the House will realise that a genuine attempt has been made to meet what we appreciate is a genuine point. Therefore, I hope that the House will regard our present proposal as an exercise in an extension of democratic control. I hope, too, that it will be understood by people outside the House that what we are trying to do is to show that clerks who make representation or give points of guidance to the chairman and members of a tribunal in the vast majority of cases do so based on their knowledge and training within the Department, and that very seldom is advice given which is in any way misguided.

But, of course, that could occur. Therefore, to see that justice is done, if a complaint is made against the clerk, it will now go to an independent person, as it were, who himself is appointed by the Lord Chancellor, and that person can assess the case.

With that understanding, I hope that the House will accept the amendment.

The House will be grateful to the Minister for going partially along the road that was sought in Committee. When the Committee discussed this matter very seriously, both sides of the Committee, as I recall it, were anxious that the Lord Chancellor should be given the power to appoint the clerks in this case.

I think that the reasoning behind this was really twofold. The first reason as the Minister said, was the importance of justice not only being done but being seen to be done. I think that there was genuine anxiety that the Minister appeared to be judge, jury, prosecutor and appointer of officers of the court, which could be seen to be undesirable. Secondly, there was a feeling that the clerks are in positions of rather greater power and influence than is sometimes appreciated. It was felt important that the people appointed should not just be familiar with the minutae of social security but should have a sense of justice and realise the importance of their position, and that advice on that could better come from the Lord Chancellor and his Department than from the Secretary of State.

11 p.m.

These clerks are not without power. I take note of some of the things that they, can do. For example, they can advise on procedural matters, take notes at the hearing, give all sorts of advice to the tribunal and make drafting suggestions. Indeed, we have seen the power of clerks in the magistrates' courts and elsewhere. Those of us who have had experience of this know that a strong clerk can influence a weak tribunal and, indeed, that a cantankerous and bigoted clerk, confronted with a cantankerous and bigoted tribunal, can put the whole system into considerable disarray. Therefore, it is important to get this right.

I am grateful for small mercies and for the fact that the Secretary of State, in consultation with the Lord Chancellor, who I can well understand is a busy man and does not really want his Department saddled with this, has cooked up some sort of compromise. But I am bound to say that the drafting looks rather "furry". For instance, the Secretary of State must consult one or more of the senior chairmen. I hope that this will be taken seriously and that consultation means proper discussion, rather than saying "I propose to appoint Mr. X. I have hereby told you. I have consulted with you. Good afternoon".

Likewise, sub-paragraph (3) says:
"The Secretary of State shall consider any representations made to him by a Senior Chairman".
That can mean everything or nothing. He can say "Yes, I have considered it", rather like the marvellous novels of Henry Cecil, in which a charming judge used to hear well-prepared applications by counsel and his reply was invariably "Yes, Mr. X. I have considered your application. It is refused". We do not want the Secretary of State to take that sort of attitude.

At the end of that sub-paragraph there is a classic piece of parliamentary draftsmanship. It states that the Secretary of State
"shall take such action, if any, as he considers appropriate".
In other words, he can do anything or nothing, or neither or both, I suppose.

We take this wording in the spirit in which it is given. I very much hope that the Secretary of State will appreciate the serious points that have been made about the quasi-judicial nature of the clerk and of the importance of getting the right sort of person—someone who will have a sense of natural justice and who is conscious of his responsibilities. If that is the spirit behind the amendment, half a cake is better than no cake at all.

I have listened patiently to what has been said in the debate. I am not a lawyer, and therefore I can speak as an honest man. I do not have the same favour towards the lawyers as my right hon. Friend the Minister seems to have.

I listened to the hon. Member for Harrow, Central (Mr. Grant), who is a lawyer. I am sure that he has put the case for the lawyers very well. He spoke about his anxiety over consulting the chairman. I should like to tell him a little story about chairmen. It began in September and concerns the chairman of one of the tribunals of the type described in the Bill. The case is still going on, and we are now approaching February. The chairman cannot be found. I understand that he is abroad on holiday somewhere. People cannot get hold of him to have the consultation. I want to get rid of him, never mind about the clerk.

I say to my right hon. Friend that I see nothing in the proposals that will protect people going before his tribunals. While he is arguing about the quality of the clerk, I should like to argue much more about the quality of the chairman. Under paragraph 11, the Lord Chancellor, will
"after consultation with the Lord Advocate, appoint persons who are barristers, advocates or solicitors of not less than 7 years' standing"
I do not see why. I come from a working-class area. We have chaps available to do those jobs who are just as good as my hon. Friend's lawyers and lawyer friends.

I was unable to appear on behalf of one of my constituents before one of one of my right hon. Friend's tribunals because I was delayed in going to the tribunal for two months. Apparently, it does not desire to sit in July or August, although some of us are quite happy to work through those months. The tribunal, purely to suit itself, chose a day in September that was not convenient for me, for parliamentary reasons.

Therefore, I took my constituent aside over the weekend and explained how she should state her case. I said that my right hon. Friend was a good man and that his tribunals were fair and just. I think that he has spoken of natural justice, of justice not only being done but being seen to be done. I told my constituent that my right hon. Friend believed in that and that she should have no fear.

My constituent went to the tribunal on her own and the chairman, a Mr. Buckley, told her "I thought you were going to have your MP with you" She replied "Yes, Sir, but unfortunately on the day you have chosen he cannot be here because he is on parliamentary duty" The chairman said "Parliamentary duty ! Parliament is not even sitting." I do not know what he implied by that in that tribunal, which was public. The interpretation, certainly of those in the tribunal, was that I was telling a bit of a tale and had wilfully refused to represent my constituent. At the very moment when the chairman was making that obscene remark, I was on my feet in the European Parliament representing the interests of this country.

My constituent asked to receive a piece of paper from the Department that was germane to the issue. That great chairman said "You cannot expect the Department to keep details of that sort. It must be on an envelope somewhere in the papers." He treated my constituent in a most abominable way. I raised the matter with the Lord Chancellor in September, and I am still waiting for an answer.

I understand how carefully the provisions have been drafted. I have read them with great care, and I have heard the hon. Gentleman ask that the chairman, that great man, should be properly consulted and not simply be told.

We are talking about a small number of senior chairmen who are legally qualified. There are only a few senior chairmen. The type of chairman of whom my hon. Friend is speaking is a chairman also appointed by the Lord Chancellor but not necessarily legally qualified. He is not the chairman who will be consulted about the clerks.

I am very pleased to hear that. I had an awful feeling that he was legally qualified and might be one of the candidates to give the advice. I can only tell my right hon. Friend that in his legislation, both in what he proposes and in the existing legislation, he is placing a great deal of dependence on the lawyers. My experience of them is that they are not very good. They do not really understand what is going on.

It seems that those who are selected to become members of the tribunals will include those who understand the nature of the area
"to which the panel relates".
I do not know from where the chairmen from Hackney are to be picked. In private conversation, it will be interesting to know the names that have been received of those who live in Hackney, know the area and understand it. There is experience in Hackney of attending tribunals only to find that the members do not understand very much.

I entered the Chamber with the intention of not supporting the Government if a Division took place, but my right hon. and hon. Friends seem to understand what I am saying. I shall be persuaded to vote for the Government should that be necessary. However, I urge my right hon. Friend to appoint those who understand the problems and who will not treat appellants in the disgraceful and disgusting manner that was met by my constituent.

Unlike my hon. Friend the hon. Member for Hackney, South and Shoreditch (Mr. Brown), I welcome the amendment. It stems from the concern that was expressed on both sides in Committee and by many outside organisations long before the Bill was produced. There has been the fear that there may be a tendency for clerks to support the view of the DHSS, the Department being their direct and sole employer. There is the fear that that will be the tendency whatever the regulations, advice and suggestions to the contrary from the Department. It was suggested that the Lord Chancellor should employ the clerks as a means of overcoming the problem.

The Government's proposal, which is ingenious, is to give oversight of the clerks to the new element, the senior chairmen. That new element will have oversight of the standard of the ordinary chairman, the standard that is so concerning my hon. Friend. I hope that he is reassured.

We must ask the Minister to state more clearly—he has already done so to members of the Committee and it would be useful if he put it on the public record—that it will be the specific duty of senior chairmen both to inspect the clerks before they take up their posts and to keep an eye on them while they carry out their duties. That will be their duty, as well as undertaking all the other aspects of the tribunal system that will be their responsibility and for which the post of senior chairman is being introduced.

It will be useful to receive the assurance that the senior chairmen will have an obligation to consider any representations about the conduct of clerks that are made by any interested party, be it an MP, a local councillor, a claimant or groups that feel that they have the interests of claimants at heart. That would reassure many groups, such as the Child Poverty Action Group, that have on many occasions tried to help claimants but have felt that their concern about certain clerks could not be expressed anywhere in a way that would be properly pursued.

How do we get rid of an unsatisfactory chairman? I assure my hon. Friend that that is a job on its own. There is nothing in the Bill that helps in that respect.

I shall leave the answering of my hon. Friend to the Minister.

The remarks that we have made in Committee and in the House should not be regarded as an attack on committee clerks in general. The majority of them carry out their work extremely well. Nor should our remarks be considered an attack on the social security establishment in general. The counter clerks are at the front line in the same way as the tribunal clerks. They are overworked and have to face the consequences over the social security office counter of policy decisions taken in this House.

The hon. Member for Harrow, Central (Mr. Grant) implied that the wording of the provision was a little furry. That is why we require reassurance. The Minister said that the provisions were not cosmetic. I am sure that that will be the case, provided that everybody involved—including not only senior chairmen but claimants and those who try to represent them—take the matter seriously.

I have a sneaking suspicion that the amendment will, if properly exercised, achieve the objective which we sought in Committee.

11.15 p.m.

I wish to assure my hon. Friend that this provision will place on the Secretary of State a duty to consult the appropriate senior chairman before assigning a person to act as a tribunal clerk and to consider any representations from a senior chairman that an assignment should be terminated.

Senior chairmen, who are to be appointed by the Lord Chancellor after consultation with the Lord Advocate, will be in frequent contact with tribunal clerks in their areas and will be in a position to observe them in action. They will also be involved in investigating complaints. I hope that complaints are few. I trust that any complaints that are made are responsible, because we are talking about people's careers. Therefore, this is not a matter to be taken lightly.

As a further measure to try to establish the impartiality of tribunal clerks, each one will be required to attend a training course approved by the Lord Chancellor and the Lord Advocate. The courses will be designed by the advisory group which produced the procedural guide to supplementary benefit appeal tribunals. It has already arranged training for chairmen, and it has now embarked on the training of tribunal members. The first pilot course for members takes place this weekend.

We are as concerned about the quality and standard of chairmen as we are about the standard and quality of tribunal members. We are always looking for suitable people. We have consulted organisations such as the TUC about their representatives and about training. We want to see more lay chairmen appointed wherever that is possible, and we are concerned about the standard of the tribunals. If the tribunal is of a proper standard, it should not be possible for a clerk to abuse his position.

I hope the House accepts that we have now taken positive steps. This proposal goes far beyond the cobbling together suggested by the hon. Member for Harrow, Central (Mr. Grant). We have gone a considerable way in consultation, in open government, in providing memoranda and in canvassing the Lord Chancellor's views. I hope that this will lead to the better conduct of tribunals in future.

Amendment agreed to.