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Social Security Bill

Volume 588: debated on Monday 30 March 1998

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8.34 p.m.

House again in Committee on Clause 11.

moved Amendment No. 13:

Page 6, line 29, leave out ("subsection (3) and section 36(3)") and insert ("section 36(3) below, in the circumstances set out in subsection (3)").
The noble Lord said: In moving the above amendment I shall speak also to Amendment No. 14. Under Clause 11(3) the circumstances in which a decision can be superseded are entirely a matter for regulations. We believe that that is too wide and our amendments would restrict the power to supersede a decision to grounds upon which a decision call be reviewed under existing law.

The decision of the Secretary of State could be superseded on any ground under our Amendment No. 14, as set out in subsection (3)(a). A decision of the appeal tribunal or of social security commissioners could, however, only be superseded on the grounds in paragraphs (i) to (iv) of our amendment: that is, they could not be superseded on the grounds of being erroneous in law, the reason being that the tribunal and the commissioners are higher authorities on a question of law than the Secretary of State. Therefore, the Secretary of State cannot take the view that their decisions on the law are erroneous.

In Committee in another place the Government said that the grounds set out in our amendments are those which they intend to use, but that they wanted to keep some flexibility to enable them to add to those grounds in the future by statutory instrument. The power of the Secretary of State to supersede an earlier decision is very important. We believe that the parameters for that should he set by primary legislation. I beg to move.

I rise to express my support for Amendment No. 13 and to speak also to Amendment No. 14. These amendments have also been tabled in the name of my noble friend Lord Higgins. Clause 11 gives the Secretary of State power to make a decision which supersedes one made under Clauses 9 and 10, as has been explained by the noble Lord, Lord Goodhart—that is, other than discretionary Social Fund decisions or one made by an appeal tribunal or a commissioner. I notice that the 10th report from the Delegated Powers and Deregulation Committee, to which I referred earlier, states in paragraph 10:

"These powers may seem wide, but the explanatory memorandum (paragraph 52) explains that they will he used for only two limited purposes. Provided that the Minister is prepared to give an undertaking to this effect, the Committee therefore considers that the negative procedure is appropriate".
Of course, I respect the committee's recommendation. I would ask the Minister today to give such an undertaking to this Chamber as a very minimum response to the amendment.

I support the principle which underlies this amendment and Amendment No. 14. It is surely a fundamental principle of liberal democracy—and I use the word "liberal" in its broadest sense at this stage. I believe that the party sitting to my right does not have a monopoly of belief in the value of liberal democracy at any stage. As I said, I believe that it is a principle of liberal democracy that decisions should be made and unmade predictably. In this case subsection (3) will govern whether the unmaking of decisions can be predicted because it explicitly states that there are no restrictions on the circumstances under which the Secretary of State may unmake a decision, apart from constraints that may be imposed by regulation.

The Bill lays down explicit power that any regulation may be made at any time. When we combine the general intent of the clause with subsection (3), the subject of this amendment, the Secretary of State is given wide power to unmake decisions, thereby necessarily introducing a significant element of unpredictability into the Bill without any constraint on that unpredictability other than a vague gesture towards regulations which may encapsulate constraints.

The amendment seeks only to place some constraints on the way and the basis on which, decisions may be unmade. It therefore seeks to reintroduce at least some element of predictability into decision making. I certainly see the merit in that. I hope that the Minister who responds will also see merit in that. I support the amendment.

My noble friend Lord Goodhart drew attention to the Minister's claim to what he described generously as flexibility. The noble Baroness, Lady Anelay, said correctly that this introduces a large element of unpredictability into the operation of Clause 11(3). The Minister in another place said that he wanted to keep the flexibility in case,

"further opportunities to modernise the process arise. There may in future be a need to be more precise".—[Official Report, Commons, Standing Cttee B, 30/10/97; col. 91.]
This is a classic case of the principle "or else some other reason why" which, as I mentioned in relation to Amendment No. 9, means not being allowed to the claimant. It is also an example of the Secretary of State taking power to do whatever he likes. It is therefore a classic example of what has become known as the Cambises clause after Cambises, King of Persia, who was said to have a law to say that he did whatever he liked. Far too often the Secretary of State does that. I am not sure that Cambises is a good precedent to follow in English law.

8.45 p.m.

These amendments raise again the issue of primary as opposed to secondary legislation which we discussed earlier this evening. For the benefit of the Committee I should explain that it is our intention that the powers in this clause to supersede decisions will be used when an error in the original decision has not been identified within the dispute period of one month, or when there is a relevant change of circumstances.

We intend to provide in regulations that a decision may be superseded where there was ignorance of, or a mistake as to a material fact, or an error of law in the original decision, or there has been a relevant change of circumstances (or one is anticipated), or a decision falls to be reconsidered under the relevant sections of the Jobseekers Act.

It will be apparent to anyone who studies the provisions of the proposed new Subsection (3) of the amendment that the regulations will cover the points mentioned in that subsection. The real issue here is whether those reasons should be contained in primary or secondary legislation. We believe that there are good reasons why secondary legislation is more appropriate. The department wishes to be in a position to respond over time to issues which will inevitably arise as the new arrangements for decision-making and appeals are implemented. In that regard I think I am saying no more and no less than the Minister said in another place. For example, there may be a need in the future to make the wording of the regulations more precise, to maintain the spirit behind the provision, or to close loopholes which emerge. Or it may be that particular kinds of decisions require specific sets of rules defining matters in more detail. There is a risk that if we were required to seek parliamentary time to amend primary legislation, we would not be able effectively to incorporate lessons learnt from practical, operational experience.

I address the point raised by the noble Baroness, Lady Anelay, with regard to the Delegated Powers and Deregulation Committee. The Committee will recall that at the beginning of my reply I indicated that it was our intention that the powers to supersede decisions would be used in the two circumstances mentioned by the committee. However, I am not able to give explicit assurance that the powers will be used only for those two purposes for the reasons that I have explained; namely, that the new legal structure for decision making and appeals contains substantial changes and, as time progresses, lessons will be learnt. It would be more appropriate to have the flexibility of regulations rather than require to amend primary legislation. I hope with that explanation the noble Lord will withdraw his amendment.

I would have preferred to see the matter dealt with by primary legislation rather than being left to secondary legislation. However, it is not a matter I wish to press further. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 14 not moved.]

moved Amendment No. 15:

Page 6, line 42, at end insert—
("(3A) Subsection (1)(a) above does not apply in the case of a decision of the Secretary of State under subsection (1)(c) of section 9 above where the relevant enactment within the meaning of that section is section 121C or 121D of the Administration Act (liability of directors etc. for company's contributions).").
The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

moved Amendment No. 16:

After Clause 11, insert the following new clause—
INDEPENDENT CASE EXAMINER
(" .—(1) The Secretary of State shall ensure that any complaint concerning an officer acting on his behalf under sections 9, 10 and 11 above is properly investigated and the results of the investigation notified to the complainant.
(2) The Secretary of State shall appoint an independent case examiner to consider the complaint of any complainant not satisfied with the result of the investigation into his complaint by the Secretary of State under subsection (1) above.
(3) The independent case examiner shall publish each year a report on complaints investigated, their outcome and his recommendations to prevent the recurrence of such complaints.").
The noble Earl said: This amendment seeks to set up an independent case examiner for complainants to address if they are not satisfied with an internal complaints procedure. It is an extremely modest amendment. It relies on the principle of the Citizen's Charter. I am a little surprised to find myself doing that. It is a real measure of my modesty. The principle is a well-publicised and easy to use complaints procedure with independent review wherever possible. That already exists in the Contributions Agency and in the Child Support Agency. It would do something to relieve discontent which builds up from time to time. It would also do something to relieve pressure on existing organisations. In particular it would relieve some of the pressure on the ombudsman.

During the period from May to October 1997 the ombudsman investigated 194 cases involving 20 government departments. Some 121 of those involved the Department of Social Security. I imagine that a large proportion of those were child support cases. The Inland Revenue, which came second, was quite a long way behind. The figures measure the complexity of the business involved rather than any administrative failing in the department. But they do indicate considerable pressure. A measure of this kind might also relieve pressure on Ministers who may receive as a result rather fewer letters than they do at present. I see from the Minister's expression that he does not believe that. Perhaps that cynicism is justified. Perhaps if the measure would not result in Ministers receiving fewer letters, they may not receive a steadily increasing number of letters as they might otherwise have done. Perhaps the Minister finds that a little more persuasive.

The measure might also relieve pressure on MPs' surgeries. It seems that social security complaints take up a large part of the time of those surgeries. It might well he in the interests of justice and because it could involve expert mediation and knowledge of where to go and which button to press, it could succeed in resolving some grievances. Therefore it may do a modest amount of good. There have been worse reasons for putting forward amendments. I beg to move.

I am disarmed by the approach that, the more modest the amendment, the more likely it is to be accepted by the Government. I wonder whether the more trivial it is, perhaps the less significant it is. It may reassure the noble Earl that the substance, if not the form, of his wording is well taken into account.

The amendment seeks to require the Secretary of State to ensure that complaints, including complaints about agency staff, are investigated. The way to do that, the noble Lord suggests, is to set up a single independent case examiner.

We all agree that complaints must be fully investigated and appropriate action taken. There should be some kind of external review mechanism to ensure that that happens.

Two of the DSS agencies, the Contributions Agency and the Child Support Agency, have adopted the independent case examiner route referred to in the amendment, which perhaps puts a question mark over the noble Earl's belief that the ombudsman is the appropriate safety valve for the Child Support Agency.

I am grateful to the Minister. I obtained my belief from reading the ombudsman's report on the Child Support Agency. Clearly I am in good company.

It is clear that one does not obviate the other or make it redundant.

The Benefits Agency has taken a different route and I shall explain how this has come about. The BA wants its staff to resolve complaints as quickly and as simply as possible. It encourages customers—no, it encourages claimants—to make a complaint at the initial point of contact in the first instance. If the claimant is still dissatisfied after his case has been through the agency's normal internal complaints procedure, he can take his case to the local independent complaints panels. These panels were set up in July 1997 for each of the agency's units, following a successful pilot in Newcastle. The pilot was found to be an unbureaucratic, speedy and effective way of addressing the concerns of claimants.

The Citizens' Charter Complaints Task Force was set up in 1993 with a two-year remit to look at how public services handle complaints and to make recommendations. One of its aims was to uncover good practice in public service organisations.

The task force asked officials from the Benefits Agency to make a presentation about the Newcastle pilot. The task force fully supported the approach, which was tied in with a customer-oriented approach to service generally. This approach has brought about many service improvements since the BA was launched and has resulted in the agency being awarded a total of 51 Chartermarks. It does not say out of how many, but 51 must be better than two.

The task force recommended that all public services should have an external review mechanism appropriate to its own circumstances and its existing complaints handling arrangements. The Benefits Agency wished to implement this recommendation by extending its pilot scheme, and the task force fully supported this.

The system now operates throughout the agency. Each local panel sets its own terms of reference and is entirely independent of the agency. The Benefits Agency merely provides administrative support. The full facts of the case are made available to the panel, and the agency provides additional information as required. The panels are made up of volunteers from local organisations who are knowledgeable about providing a service; for example, members of welfare rights groups, hospitals, libraries, schools and GP surgeries. By working with representatives of local groups in this way, the agency receives objective advice from people with a wide range of experience.

Panels can recommend new local procedures for areas of improvement. Managers are able to consider recommendations quickly and implement them wherever possible. The recommendations a panel might make are wide-ranging. For example, it might suggest that the office handle certain cases more sensitively; revise certain procedures, consider whether compensation payments would apply in a particular case; try to alter waiting room arrangements; consider improvements for service to particular groups such as pensioners, people with young children or the blind. It might also highlight a training need, particularly if a problem kept recurring.

The local complaints panels are a recent initiative and the Benefits Agency is monitoring their operation carefully. It will publish its findings and information on the improvements resulting from recommendations made by local panels in the agency's annual report and accounts for 1997–98. A full review of the effectiveness of the independent local tier will commence in April 1998 and will include consultation with claimants and panel members.

We want to encourage local ownership of service standards by Benefits Agency districts and local communities. This amendment would involve creating a centralised, more remote and more expensive system which would take many months on average to deal with each complaint. On the other hand, we anticipate local panels will consider each complaint and deal with it within two months.

The arrangements I have described are right for the Benefits Agency and tailored to local circumstances. I hope that in the light of my explanation, in particular of how this approach fits in with the views of the Citizens' Charter Task Force, that the noble Earl will withdraw this amendment.

May I make an impassioned appeal at this stage of the proceedings? I do not expect the noble Baroness to reply immediately, but perhaps she and the Lord Advocate will take it into account.

I hope that we can avoid the use of this horrid word "customers". These people are not customers; they have no choice. Customers have choices where they go. These people are human beings, they are not customers. They are people about whom we are concerned to ensure that they get their proper benefits. I hope that the bureaucracy will take this into account and avoid it in future.

I understand where the noble Lord is coming from. It is even worse than being told when you are a passenger on a train that you are a customer, as though you have a choice about which train you go on. It is even worse in the NHS. Many of us prefer the old-fashioned term "patient" to that of "customer". It may be that the Citizens' Charter has produced a vocabulary with which we have to be consistent, but I share the noble Lord's preference for the old vocabulary.

I agree with the noble Lord, Lord Higgins, and I am grateful for what he said. I noticed with great pleasure that when the noble Baroness used the word "customer" she instantly corrected it before the noble Lord spoke.

I congratulate the Minister on her debating skills. She scored every point she could from the hand she had to play. The way she instantly responded to the implications of the Child Support Agency by arguing that, first, an independent case examiner does not relieve the pressure on the ombudsman and, secondly, that the ombudsman and the examiner are not mutually exclusive alternatives was extremely well done.

The Minister went into a revolving door. The trouble with the Child Support Agency is that it illustrates the danger of decisions made by computer. The Minister said that she wished it did. That is exactly what you get when you try to use a formula and you feed it into a computer. As my late noble friend Lady Seear used to say, "Garbage in, garbage out".

Much more substantial was the point she made about the new procedure set up by the Benefits Agency. It is too early to start passing judgment finally on a procedure set up in July 1997. I wish that procedure well. I note what the Minister has said about it, and in the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Clause 12 [ Regulations with respect to decisions]:

moved Amendment No. 17:

Page 7, line 8, leave out subsection (2).
The noble Baroness said: I move Amendment No. 17 and speak also to Amendment No. 155. This group of amendments is wholly technical. The effect is to move the provisions currently to be found in subsection (2) of Clause 12 of this Bill into subsection (5) of Section 16 of the Industrial Tribunals Act 1996. Amendment No. 17 deletes the relevant provision from Clause 12, while Amendment No. 155 effectively inserts the substance of that provision into subsection (5) of Section 16 of the Industrial Tribunals Act 1996.

The provision in question is a straightforward re-enactment of Section 58(4) of the Administration Act. The provision puts beyond doubt that the regulation-making power in Section 16 of the Industrial Tribunals Act 1996 on decisions extends to the total or partial recoupment of jobseekers allowance or unemployment benefit from compensation payments employers are due to pay in consequence of the findings of industrial tribunals.

I can reassure the Committee that the amendments do not substantially affect the policy. The draftsman has simply taken the opportunity to tidy up the drafting of the primary legislation.

With those assurances, I hope that the Committee will accept that the amendments are purely technical, as well as being highly technical, and will therefore feel able to support them.

On Question, amendment agreed to.

Clause 12, as amended, agreed to.

Clause 18 agreed to.

Clause 19 [ Matters arising as respects decisions]:

9 p.m.

moved Amendment No. 18:

Page 12, line 45, at end insert—
("(1A) Regulations under subsection (1)(a) above shall in particular authorise the Secretary of State to make a payment on account of a relevant benefit pending any decision referred to in that subsection and shall require him when he is considering whether to make such a payment to take account of the hardship that any person is likely to suffer if a payment is not made.
(1B) In making the provision referred to in subsection (1A) regulations shall not circumscribe the circumstances in which a payment on account may be made (other than that a decision referred to in subsection (1A) above is pending) but they may make provision requiring a claimant to agree to repay the payment in prescribed circumstances as a condition for making the payment.
(IC) In making such provision, regulations shall provide that, where the Secretary of State declines to make a payment on account, a claimant may appeal to an appeal tribunal against the refusal and that such an appeal shall in prescribed circumstances he determined expeditiously,").
The noble Earl said: The effect of the amendment would be to give the Minister the right to allow payments on account pending appeal where severe hardship might result if that were not done. Its effect would be to restore the law to what it was before 5th February 1996. Both the Minister and I, having been involved in the Asylum and Immigration Bill, will, I think, remember other significance in that date. This may not possibly be coincidental.

We have had recently a considerable number of regulations under which people can be denied benefit entirely. That in itself is one injustice. But to deny people benefit entirely, and then to find, when there was an appeal, that you did not have the legal entitlement to do so, is a double injustice. In those original asylum regulations—I am sure that the Minister and I remember them extremely well—there was a provision to pay the benefit after appeal if they were subsequently found to be entitled. But this is in danger of becoming somewhat like a posthumous VC. One is not in any position to enjoy it. Where there is a total disentitlement to benefit, the only options really are starvation or going underground in some illicit capacity. Therefore it can he important to have an entitlement to benefit pending the final resolution of whether one has a right to it.

We shall return to the issue in debates on Clauses 25, 26 and 27, where we shall be getting a large number of cases held up pending resolution of the test case. To do that without giving people the right to have anything to live on in the interim can be a very harsh measure indeed. This is a benefit of the doubt amendment; and where life itself may be at stake I should have thought that the benefit of the doubt is not too much to ask. I beg to move.

This amendment would provide for regulations to be made authorising the Secretary of State to make interim payments, taking account of any hardship that might otherwise result, where a decision of the Secretary of State, an appeal tribunal or a commissioner is pending. The amendment provides for such payments to be recoverable and gives a right of appeal against a refusal to make an award.

Our intention is that current provision for interim payments in Regulation 2 of the Payments on Account, Overpayment and Recoupment Regulations (made under Section 5 of the Administration Act) will remain in force under the new decision-making and appeals arrangements. Payments on account, or interim payments as they are otherwise known, can be paid before a final decision on benefit entitlement has been reached where the Secretary of State has reason to believe that there is, or may be, entitlement to the benefit in question.

These payments are recoverable either from benefit, if eventually awarded, or from other income if benefit is not awarded. They are intended to provide an immediate source of income where entitlement is possible but there is a delay in making a claim in accordance with the claims and payments regulations, making a decision or making the right payment, for administrative or practical reasons—for example, in a case where the department believes that there is clear entitlement to benefit, but there is no time to go through the formal claims process because it is Friday afternoon and the claimant is in urgent need.

There are currently no appeal rights against a refusal to make an interim payment, and we do not propose to introduce them. This is because it is almost always the case that the initial question is resolved well before an appeal against the refusal to award an interim payment could be heard. And, of course, the customer has the usual right of appeal against the decision on full benefit entitlement, when that is taken.

Interim payments were only ever intended to be made, as an emergency measure, where proper benefit entitlement could not be established under the normal statutory provisions because of administrative difficulties.

It has never been the intention that interim payments should be made where a claim has been properly determined, but is under appeal. This would be to circumvent the normal rules on benefit entitlement as established by legislation approved by Parliament. It would mean making payments to customers who have no entitlement to benefit under the statutory provisions. The Secretary of State would make payments to the very people who she has already decided are not entitled.

The noble Earl, Lord Russell, has argued that any interim payment could be recovered. However, in practice it would be extremely difficult to recover any payments made, especially where the eventual outcome was that there was no entitlement to benefit. We would be in the position of having made payments to claimants many of whom turn out to have no statutory entitlement to benefit. In such circumstances, the chances of ever recovering the amounts paid out would be minimal. The practicalities and the administrative costs of attempting to pursue such overpayments and the recovery of them in these cases would be prohibitive.

I hope that I have been able to explain that there is already adequate provision for the making of interim payments where administrative difficulties prevent a final decision being made. I therefore hope, in view of this explanation, that the noble Earl, Lord Russell, will feel able to withdraw the amendment.

I cannot help feeling that was a rather self-satisfied reply. The department, like the servant in the open testimonial, is saying that it has carried out its duties entirely to its own satisfaction.

Before deciding whether we need to come back to this at another stage, I should like to probe some of the words which the Minister has used as taken from the existing regulations. The noble Baroness said that benefit is payable only where the Secretary of State is satisfied that there is or may be an entitlement. Everything seems to me to hang on the interpretation of the words "or may be". According to a strict and narrow interpretation—I suspect that that is the one the department is using—the Secretary of State would under those words require to have good ground for believing that there may be a legal entitlement. There would have to be a strong degree of probability.

However, according to the other interpretation, which relies on possibility rather than probability, the mere fact that the case has gone to appeal—and judgments on appeal are well known to be capable of going either way—would indicate that, just because the judgment is uncertain, therefore there may be an entitlement. That would be rather more plausible.

We must accept that if there are to be appeals there must be rules for what is done pending those appeals and that those rules, since we do not know what the result of the appeal will be, are bound to involve the possibility of injustice to one side or the other. Whichever side is given the benefit of the doubt, it may be that the judgment will go against it.

I take the Minister's point about the difficulty of recovery. However, that seems to me to be saying that recovery will he perfectly possible where the payment on account was not necessary; but where it was necessary, and where in fact the person would otherwise have starved, recovery will he extremely difficult. It therefore seems to me to be a provision that would catch the guilty and spare the comparatively innocent.

It is a question of which risk we are prepared to take. The Minister knows, as well as I do, that when people have been unjustly denied benefit, sometimes over quite a period of time, there has been a multiplication of further hardships—such as, very often, eviction from their house. That leads to difficulty in finding further employment. It therefore leads to a loss of future revenue for the Treasury, which loses, just like everyone else. Since somebody has to lose whichever way we handle the question of payment of benefit pending appeal, the body that takes the risk should properly be the one that is better able to bear it. When I ask which is better able to bear a financial loss—Her Majesty's Treasury or an individual claimant with no other visible means of support—the answer does not appear that difficult.

It is the basic function of social security to make sure that people are not cast into utter destitution. That is in the public interest, since, if they are, they tend to become unemployable in future. It deprives the Government of potentially useful tax-paying subjects. In the light of that, I cannot help wondering whether we have really got this one the wrong way round, and whether it really ought to be the Government who are taking the risk during the period when the case goes to appeal. I look forward to hearing the Minister's reply.

The thrust of the noble Earl's response was to ask what "may be" might mean. To put it negatively to start with, I do not believe it was ever intended that, because a claimant had recourse to appeal, that equates to "may be" in legislative terms. We have had arguments in this Chamber over many years about the payment of benefit while pursuing appeals. The implication of the noble Earl's position would be that anyone who went to appeal thereby produced a "may be" case and therefore an entitlement to interim payments of benefit. The read-across implication of that for the DSS would be huge. It would mean that. in every benefit area, anyone would be encouraged to go to appeal in the knowledge that, if the appeal was some six or nine months away, the benefit would continue to be paid under a "may be" criterion for the whole of that six to nine months and until the appeal was disposed of either way, even though the Secretary of State had previously assured herself at the time when she made the original judgment that she was satisfied that the claim was ill-founded. So, to put it negatively, it would not be expected to apply to that.

On the contrary, "may be" is meant in this instance to be an enabling power allowing the Secretary of State to act where no claim has been made but where it might be impracticable for one to be made immediately; where such a claim has been made but it cannot be immediately determined; or where an award has been made but it is impracticable to pay the whole immediately. In other words, it is a discretion on administrative grounds, not an issue about the payment of benefit, almost like a hardship payment, while an appeal is being pursued, with implications for the rest of social security legislation.

The Minister has given almost exactly the answer I expected. I understand the case that she makes. It is perfectly true. I think the case that I am making is perfectly true also. What we need to consider is which of those cases is more important. That is something that we might better do at our leisure, and quietly. Therefore, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clauses 4 and 5 agreed to.

Clause 6 [ Lord Chancellor's panel for appointment to appeal tribunals]:

moved Amendment No. 19:

Page 3, line 25, after ("shall') insert ("after consultation with the President").
The noble and learned Lord said: With this amendment, it may be for the convenience of the Committee to discuss Amendment No. 20. I set down these amendments partly as a crusader, partly as a seeker after truth. I should at the outset make a declaration which I omitted to make in the course of my former intervention—namely, that I am privileged to be chairman of the Council on Tribunals, which has expressed views on a range of matters relating to the Bill. I hope that, in the interests of promoting expedition and avoiding tedium, Members of the Committee will accept that declaration as applying throughout the Committee stage.

In fact, these amendments were suggested not by the Council on Tribunals but by His Honour Judge Bassingthwaighte, the former president of the ITS, in the memorandum which has already been referred to this evening and which he circulated in December. In that memorandum he referred to the proposal that the Lord Chancellor should appoint members to the panel for appeal tribunals. Of course, we all agree that normally appointments to judicial office should be by the Lord Chancellor and certainly not by, for example, the Secretary of State, who in effect will be a party to many of the disputes. However, Judge Bassingthwaighte expressed concern at the logistical problems which that may raise.

In the last reporting year there were 178 appointments in England, Wales and Scotland and 60 part-time chairmen. I assume that not all existing members and chairmen will be automatic appointments to the new panels since part of the purpose of the exercise is to produce a different range of expertise.

Recruiting and appointing the required number of members may well be a formidable operation. It is not likely that all potential candidates will be known to the Lord Chancellor and his officials; it seems probable that they will have to consult. Who will be consulted? Not, I hope, the Secretary of State or her officials. In appointing a judge, one does not consult one of the parties to the litigation which he will have to decide. Judge Bassingthwaighte suggested that it would be sensible to consult the president, who would be in the best position to know the numbers and the range of expertise required. He, in turn, would consult with his administrators, but it would be wrong in both principle and practice to short-circuit that process by consulting directly and only with the administrators.

If it is said, "Of course, the Lord Chancellor will consult the president; you do not need to write it into the we shall all have a feeling of déjá vu and we shall return the usual answer, "If it is to be done in any event, why not say so in the Bill?"

The present arrangement, which seems to work quite well, is that the Lord Chancellor appoints the chairman, who will now be legally qualified, and other members are appointed by the president. I assume that the change is explained by the fact that all members will now be expected to have a specific expertise. That is the subject of Amendment No. 20, to which I shall speak in a moment. If there is a reason for omitting a role for the president from the text of the Bill, it would be enlightening to be told what that reason is. There is clearly no principle of keeping consultation requirements off the face of the Bill. That brings me to Amendment No. 20.

On the face of it, the provision in Clause 6(2) is surprising. As the Bill stands, the Lord Chancellor is not required to consult anyone before appointing members, whatever the expertise in respect of which they are appointed, with one exception. Before appointing a medical practitioner, he is required to consult the Chief Medical Officer. I suggest that that is puzzling, for two reasons. First, while I understand that the Lord Chancellor has no medical expertise and therefore may not know who is and who is not a good doctor, there is no similar requirement in respect of those appointed for their skills in accountancy or for their actuarial skills. I assume that the Lord Chancellor will take advice from whomever he considers necessary; there is nothing to prevent him doing so. Perhaps it would be better to write that into the Bill. A moment ago I complained that one possible consultation requirement was not written into the Bill. But, of all potential consultees, why select just one, a medical officer? That is the first reason why it is surprising.

There is a second and more worrying reason. The Government's Chief Medical Officer can hardly be described as independent. Surely he is an official of the DoH, the very department whose decisions are being challenged? At present, when consultants are appointed to MATs there is consultation with the president of the appropriate Royal college. If the candidate is not a consultant but a general practitioner, there must be a number of doctors familiar with his abilities. But how can my noble and learned friend justify consultation with the Government's own Chief Medical Officer?

I say at once that I have not had the pleasure of meeting the Chief Medical Officer. I have no reason to believe that he is less than completely fair. But that is not what independence is about. There should be no input from a potentially interested party, not even a potential conflict of interests. I therefore raise two questions with my noble and learned friend and look forward with curiosity, if not with anxiety, to his answers. I beg to move.

I support Amendment No. 19 in the name of the noble and learned Lord, Lord Archer, and my noble friend Lord Higgins, and Amendment No. 20.

The noble and learned Lord began by making a declaration of interest with regard to his long experience in the world of tribunals as chairman of the Council on Tribunals. Indeed, I have respected his work over the past few years. Perhaps therefore I should add my declaration of interest—I am tempted to say past interest. I was a lay member of tribunals from 1982 until August 1996 when I had a direct interest. I now have a personal interest but do not benefit from any of the results of the Bill unless, as a member of the public, I make a claim at some stage and appeal against the decision.

I should like to identify myself with all the remarks made by the noble and learned Lord, Lord Archer, and with the underlying spirit of his amendment. He is a crusader and seeker after truth. He carefully and clearly put forward the arguments which Judge Bassingthwaighte presented to us in a memorandum circulated before Second Reading.

Within my definition, these are modest amendments in that they are practical, useful and certainly not damaging to the rest of the Bill. I hope therefore that when the noble and learned Lord replies he will indicate that both of these commonsense amendments will be accepted.

I regret to disappoint the noble Baroness, Lady Anelay. I am grateful to my noble and learned friend Lord Archer for proposing Amendments Nos. 19 and 20 because this gives me the opportunity to explain how the appointments process will work in practice.

At present, the Lord Chancellor, in consultation with me, as Lord Advocate, appoints the chairmen of all tribunal jurisdictions within the Independent Tribunal Service. Tribunal members are currently appointed by the president, but he has no formal role in the appointment of the chairmen, who are all legally qualified. The Lord Chancellor, as a matter of good practice, involves the president closely in the appointments process and the president, or another member of the ITS judiciary, almost invariably sits on the relevant interview panel. In addition, in appropriate cases, the Lord Chancellor also consults other members of the judiciary on the suitability of candidates for those offices. As my noble and learned friend observed, the Lord Chancellor may consult anyone he wishes, prior to making an appointment.

My noble and learned friend the Lord Chancellor believes that the independence of panel members is most effectively guaranteed if the power of appointment is vested in him alone, as it is under the existing legislation for chairmen.

It is important to bear in mind that in the new system, confidence will depend on people having confidence in the independence of the chairmen and of the panel members. The starting point, then, is to have all of them appointed by the Lord Chancellor. It is also the position in respect of other judicial appointments to tribunals for which the Lord Chancellor is responsible that he has the power of appointment vested in him alone. We share the Lord Chancellor's view and have therefore made provision in Clause 6 for all appointments to the panel to be made by him.

The effect of Amendment No. 19 would be to create a statutory requirement for the Lord Chancellor to consult the president before setting up the panel of persons who will act as members of, and experts to, appeal tribunals. Clearly, the president, as judicial head of appeal tribunals, will have an interest in ensuring that the panel comprises sufficient numbers of persons with the right expertise from whom he may draw properly constituted and equipped appeal tribunals. As I said, it is the current practice of my noble and learned friend the Lord Chancellor to involve the president closely in the selection process, and he will continue to do so.

However, the Lord Chancellor considers that it would be inappropriate for a requirement for consultation with the president to be on the face of the Bill. Why restrict it to the president? It would also be out of step with other jurisdictions for which the Lord Chancellor has appointment responsibilities and would dilute the responsibility which he holds as a Minister and for which he is answerable to Parliament. I share that view.

In relation to Amendment No. 20, my noble and learned friend the Lord Chancellor and I are also both in agreement that the appointment of medical practitioners to the panel is a special case. That is why Clause 6 requires the Lord Chancellor to consult the Chief Medical Officer with respect to medical expertise. If I may pause and take up a point made by my noble and learned friend Lord Archer, the Chief Medical Officer is employed by the Department of Health and not by the department which is a party to the cases before the appeal tribunals.

Furthermore, why should medics be in a different position from members of other professions? Other professions—for example, accountants and solicitors—tend to have standard qualifications and belong to a small number of professional bodies. Medical practitioners, on the other hand, have a wide range of medical qualifications and experience. Some specialise in general practice while others specialise in particular discrete areas of medicine. The Chief Medical Officers have access to information on all types of medical practitioners and are best placed to advise the Lord Chancellor on suitable appointments, bearing in mind that different expertise will be required for different types of tribunal.

The Lord Chancellor will need to appoint general practitioners to deal with straightforward medical appeals but he will also require a wide range of specialists and consultants who have specific expertise in particular areas. For example, vaccine damage appeals will require the expertise of medical practitioners with experience of the effects of vaccines on childhood conditions. Industrial injuries cases, which raise a medical issue in relation to a prescribed disease, will require the expertise of a medical practitioner with knowledge of the particular condition. It is appropriate that the Chief Medical Officer should be the person to give guidance to the Lord Chancellor on the appropriate person to appoint to the pool of candidates from whom the president would select a panel member.

Perhaps the noble and learned Lord will allow me to intervene for a moment. I have some difficulty in understanding why the medical officer should be the person with the expertise in selecting doctors. He is clearly a doctor like any other but not, one should have thought, one who has particular expertise in saying that this or that other doctor happens to be the right person for the job.

I was going to come on to the position of the Chief Medical Officer. In doing so, I fear that Amendment No. 20 could have an adverse effect on the quality of medical practitioners appointed to the panel. Decisions depend on expert medical knowledge and skills and it is essential that the quality assurance process begins with the recruitment and appointment of doctors. The Chief Medical Officer will be able to consult the medical Royal Colleges and other bodies as appropriate and will play a valuable role in advising the Lord Chancellor on the suitability and availability of all types of medical practitioner from all medical disciplines.

To answer directly the point put by the noble Lord, Lord Higgins, if I were looking for an individual on whom one could focus as someone with access to all aspects of the medical profession and with the ability to consult appropriate bodies, it seems to us that the Chief Medical Officer would be the appropriate individual. It may be that the noble Lord has another office-holder in mind. If that point were to be raised at a later date, we would obviously consider it, but it seemed to us that the Chief Medical Officer was the obvious candidate for the consultation process.

My noble and learned friend the Lord Chancellor is content with the arrangements in Clause 6. In the light of this explanation, I hope that my noble and learned friend Lord Archer will feel able to withdraw his amendment.

9.30 p.m.

I am grateful to my noble and learned friend for that clear exposition. I sought after truth and I think that I have been partly successful. Perhaps I may begin by making it clear that on one principle my noble and learned friend and I are totally at one. I wholly agree that the appropriate authority to appoint members is my noble and learned friend the Lord Chancellor, coupled with my noble and learned friend the Lord Advocate. I apologise for my earlier oversight in that regard. Of course it is much better that they should make the appointments rather than some other Minister. My council has been saying that for quite a long time.

However, my noble and learned friend said, "In practice, we do consult the president. It would be extraordinary not to consult him". That raises the question which more than one of us in this debate has ventured to pose, "Why not say so on the face of the Bill?" I understand that the answer to that is to say, "Why single out one person to be consulted? Why not include everybody you want to consult if you are going to do that?". I should have thought that the president was in a peculiar position. He is probably in a better position to carry out precisely the function which my noble and learned friend assigned a moment ago to the Chief Medical Officer—that is, to know who else to consult and to be at the hub of the wheel of consultation.

My noble and learned friend said two things which have set me thinking. First, I accept my noble and learned friend's correction that the Chief Medical Officer is employed by the Department of Health, not the Department of Social Security. I was clearly wrong about that and my noble and learned friend's answer has given me a degree of reassurance.

Secondly, I accept, I think, that the medical profession is wider and less compact, and that information about it is less readily available than is the case with some other professions, such as accountancy. In the light of that, I should like to reflect further on this.

However, I share the curiosity of the noble Lord, Lord Higgins, about why the Chief Medical Officer should be the person selected to conduct the consultation process. If he is to be at the hub of the wheel of consultation, one wonders why the president of the Royal College of Surgeons could not be at least an equally suitable candidate.

It may be that there is not very much between us and that we shall be able to consider whether there is an alternative candidate. For the moment, however, I am content to reflect on these matters and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 20 not moved.]

moved Amendment No. 21:

Page 3, line 29, at end insert ("and, in the case of persons holding office as Commissioners for the special purposes of the Income Tax Acts, with the presiding Special Commissioner designated under section 4 of the Taxes Management Act 1970").
The noble Lord said: I beg to move Amendment No. 21. This is the first of a group of amendments which is intended to ensure that national insurance contribution appeals are dealt with by the Special Commissioners of Income Tax and not social security appeals tribunals. This amendment stands on a somewhat different footing from other amendments which my noble friend Lord Russell and I have moved or will move this evening. In this case the impetus has come not from my party but from a body known as the Tax Law Review Committee. That is a body of which the noble Baroness, Lady Wilcox, and I are members. It is a powerful body on which all three parties are represented. Its president is the noble and learned Lord, Lord Howe of Aberavon and its members include judges, former senior staff members of the Inland Revenue, tax experts, businessmen and accountants.

The Government have recognised that the present way of dealing with contribution questions is unsatisfactory. Currently, the Secretary of State has the sole power to decide contribution questions under Section 17 of the Social Security Administration Act 1992. She has delegated that power to a body known as the Office for Determination of Contribution Questions. From the decision of that body there is a right of appeal to the High Court, but not beyond it, only on questions of law. There have been very few appeals, and the absence of an appeal beyond the High Court means that the higher courts have been unable to develop the law.

This Bill introduces for the first time a proper appeals system for contribution questions, and to that extent it is extremely welcome. It does so by means of Clause 13 and Part II of Schedule 3. Those provisions refer contribution questions to the social security appeal tribunal set up under Part I of the Bill. The Tax Law Review Committee believes, as do I, that this is the wrong forum and that these matters should be dealt with by a tax tribunal. Undoubtedly, as the appeal system for tax questions now stands the appropriate tribunal is the Special Commissioners of Income Tax.

It has become increasingly clear that national insurance contributions are not in fact insurance contributions but a tax. Employers' national insurance contributions are a form of payroll tax; employees' national insurance contributions are a form of hypothecated income tax. The integration of national insurance contributions and income tax has been going on for years. It is many years since national insurance contributions ceased to be collected by means of the weekly stamp and started to be collected through the PAYE system. In this year's Budget three further stages of integration were introduced. First, it was announced that the starting point for national insurance contributions would be raised to the same point as the single personal allowance for income tax. Secondly, various national insurance contribution avoidance schemes through payment of employees in hay, bismuth or other tradeable commodities were to be eliminated by application of a stricter income tax definition of what constituted earnings. Thirdly, the Contributions Agency is to be transferred from the Department of Social Security to the Inland Revenue. The Inland Revenue statement published on Budget day said that the advantages of the transfer of the Contributions Agency included making it easier to align the tax and national insurance contribution rules.

The same issues often arise in relation to contributions as to income tax, in particular the question whether someone is employed or self-employed. This is a crucial question for income tax because it decides whether the earner of this income is taxable under Schedule D or Schedule E and whether the earnings are subject to PAYE. It is also crucial for national insurance contributions because this question decides whether there is an employer who pays employers' national insurance contributions and what kind of NICs the earner pays. It makes no sense whatever for these very similar questions to be decided by different tribunals. NIC avoidance schemes are very similar to tax avoidance schemes, and it makes obvious sense for NIC schemes to be dealt with by tribunals with experience of tax schemes. The process of alignment of income tax and NICs has now plainly reached the point where it is clear that contribution issues should be dealt with by the same tribunal as tax issues.

In this group of five amendments, there are two sub-groups which offer alternative solutions. Amendments Nos. 42 and 52 transfer contribution appeals straight into the tax appeal system. I believe that to be the simplest and best of the two solutions.

The other sub-group (Amendments Nos. 21, 22 and 30) provides that on contributions appeals the chairman of the Social Security Appeal Tribunal, or its sole member if there is only one member, is to be a special commissioner. That is less satisfactory, if only because it leads to an appeal lying from a special commissioner, who is an expert, to a social security commissioner, who is not.

We have had an earlier statement from the noble Lord, Lord Haskel, and I have received a letter from the noble Baroness, Lady Hollis, a copy of which she has placed in the Library. I find the statement and the letter helpful in undertaking that the Government have this matter in hand. I understand why they think that it is appropriate to deal with legislation at a later stage rather than in the Bill.

However, I have still thought it desirable to move the amendment in order to place the matter on record and to obtain the Government's formal answer on this matter. I beg to move.

I shall respond to Amendments Nos. 21, 22, 30, 42 and 52 as a group, because I appreciate that the noble Lord is raising a question of principle at this stage, as his last remarks made clear.

However, before responding to the amendments, perhaps I may put on record my appreciation of the Tax Law Review Committee's Report on appeals procedures on national insurance disputes. The report, which was published on 18th February, reflects the calibre of the committee's expertise, of which the noble Lord is a valued member.

As the Committee will be aware the situation regarding the future handling of national insurance contributions appeals is now rather different from what it was when the arrangements described in this Bill were first decided.

As has been said, the Chancellor of the Exchequer announced in the Budget that the administration of national insurance through the Contributions Agency, which is currently an executive agency of the Department of Social Security, will be transferred to the Inland Revenue.

The related national insurance contributions policy functions will also be transferred once decisions on the future of contributory benefits have been reached as part of the wider work on welfare reform.

The transfer will require a lot of hard work to ensure a smooth transition. I am sure that the Committee will appreciate that, so soon after the Budget Statement, I am not able to give details of how the national insurance scheme will fit into the Inland Revenue's work, or of how contributions appeals will be handled. However, I can give the assurances that, in formulating their plans, the Government will give due and proper consideration to the Tax Law Review Committee's Report.

As my noble friend Lord Haskel has already explained, we do not intend to pre-empt Parliament by making amendments to this Bill to reflect the transfer, in advance of Parliament's agreement that the transfer should take place. Nor, indeed, are we in a position to make wholesale changes to appeals provisions so quickly after the announcement. It seems to us far more logical that the necessary changes should be made as part of the legislation which will enact the transfer, giving both the Government and Parliament time to scrutinise the implications in appropriate depth.

I therefore must ask the Committee to agree that the arrangements on the face of this Bill should stand, but with the firm undertaking that they will be quickly reviewed and revised in the light of the proposed transfer; and that the revised arrangements will draw on the considerations that have been so ably expressed by the noble Lord, Lord Goodhart, and the Tax Law Review Committee. In the light of these assurances I hope that the noble Lord, Lord Goodhart, will feel able to withdraw the amendment.

9.45 p.m.

I am grateful for the statement made by the noble and learned Lord the Lord Advocate. That statement, together with that made earlier by the noble Lord, Lord Haskel, and the letter which I received from the noble Baroness, go further than I had expected when I tabled the amendment. I understand the reasons why the Government wish to defer the matter to a later date. I fully accept that it would not be appropriate to proceed with these issues in this Bill. I hope that in due course we shall see the legislation enacted in the form which the Tax Law Review Committee has proposed. In that hope, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 22 not moved.]

moved Amendment No. 23:

Page 3, line 41, at end insert ("and
(c) in relation to Scotland, the Chief Medical Officer of the Scottish Office.").
The noble and learned Lord said: In moving Amendment No. 23, I shall speak also to Amendments Nos. 24, 33, 34, 38, 40, 41 and 137.

This group of government amendments makes changes to the provisions for the appointment of persons to the panels to act as members of appeal tribunals. Clauses 6 and 7 currently provide for the appointment of separate panels by the Lord Chancellor and the Lord Advocate respectively. I intend to oppose the Question that Clause 7 stand part of the Bill. Taken together, these amendments will result in the appointment by the Lord Chancellor (under Clause 6) of a single panel of persons for the whole of Great Britain.

The amendments have become necessary following the introduction of the Scotland Bill, which interacts with the way in which Clause 7 in its current form is intended to operate. Under the terms of the Scotland Bill, the Lord Advocate will remain as head of the Systems of Criminal Prosecution and Deaths Investigation in Scotland. He will also be the Law Officer to the Scottish Executive. Most of his other ministerial policy functions, including those relating to tribunals, will be transferred to the Scottish Ministers. With the exception of the Lord Advocate's retained functions and any conferred specifically on the First Minister, it will be for the latter to determine the allocation of ministerial responsibilities in his team. That does not preclude the possibility that the Lord Advocate, as a Minister in the Scottish Executive, might have similar functions to those he exercises at present in relation to tribunals. But it will not be clear who would be the Minister responsible for these functions in Scotland until after Scottish devolution has taken place. In my view, it would not be right to retain the present Clause 7 in the knowledge that the functions it lays on the Lord Advocate would be removed through another Bill currently before Parliament.

To ensure that there are clear arrangements in place, the Government now propose that there should be a single panel and that the Lord Chancellor should retain the appointment function for the whole of Great Britain until after devolution. However, it would still he the position that the Lord Chancellor would consult the Lord Advocate in making appointments to the panel. At that stage, the UK Government may consider transferring to a Scottish Minister the function of making appointments to a panel in relation to Scotland. This would be achieved through provisions in the Scotland Bill for the further transfer of functions. Such transfers would be by Order in Council and would be subject to the affirmative procedure in both the United Kingdom and the Scottish Parliaments. Before bringing an order forward, the UK Government would want to satisfy themselves as to the arrangements which would be made for handling this function. In particular we would have regard to the distribution of responsibility within the Scottish Executive for relevant judicial appointments matters.

We believe that this course offers clarity about the responsibility for the appointment of panel members across the initial period of establishment of a Scottish Executive. I commend these amendments to the House. I beg to move.

I presume from what the noble and learned Lord the Lord Advocate has said that it is proposed that we should discuss the deletion of Clause 7 together with these amendments. That seemed to be what he was saying. Perhaps I may comment on the amendments and on Clause 7 at this stage of the proceedings.

The noble and learned Lord, Lord Archer, was somewhat premature a little earlier when he apologised for overlooking the role of the Lord Advocate because, as I understand it, if we accept these amendments, the Lord Advocate will not have the responsibilities which are attributed to him.

At all events, I wonder whether I may seek to clarify the situation with regard to the question of timing. As I understand it, the Government are proposing to bring forward further amendments on Report. Is that correct? The letter which we received from the noble Baroness seemed to indicate that there were later amendments to come and I am not clear whether that is so or whether these are the amendments which the Government have in mind.

Be that as it may, perhaps I may seek to establish exactly what is the sequence of events. As I understand it, the Government thought that it would be wrong to go ahead with Clause 7 given that the Scotland Bill is also going through Parliament. But are we to understand that, under the transitional arrangement, the Lord Chancellor will have sole responsibility, albeit in consultation, for the appointments but then subsequently, an order by affirmative resolution will be taken to reverse the situation? It is a somewhat confused picture. I am not even clear under which piece of legislation—the Bill now before us or the Scotland Bill— those resolutions, subject to affirmative resolution, will be made. Perhaps the noble and learned Lord the Lord Advocate will answer those matters and we can then take the matter from there.

It is not the Government's intention to bring forward any more amendments in relation to this matter on Report. There may be other amendments which deal with different aspects on Report but none to deal with this issue.

As regards the effect of this, if Clause 7 is deleted, then the noble Lord, Lord Higgins, is right that the Lord Chancellor will have sole responsibility for making the appointments, albeit in consultation and one of the consultees will be the Lord Advocate.

The affirmative resolution will be made by both the UK and Scottish Parliaments. Therefore, it will be under the Scottish legislation and not under this legislation. And, yes, the intention is that once the Scottish Parliament is established and the First Minister of the Scottish Parliament, of the executive, has decided which of his Ministers should have responsibility for that particular function, that will then be known to the United Kingdom Government. They will then consider whether those arrangements are appropriate and will bring forward the necessary affirmative resolution.

As I indicated, the fact that that transitional arrangement is being entered into will not preclude the First Minister from appointing the Lord Advocate to deal with that matter in Scotland. But the whole point of devolution is devolving to the First Minister all ministerial functions other than those dealt with specifically in the Scottish Bill. It would be inappropriate to fetter the discretion of the First Minister in the allocation of ministerial functions. That would be a matter for the Scottish executive.

I am tempted to use what I believe is a quotation from Sir Walter Scott:

"O what a tangled web we weave",
but I have forgotten the first half of it. However, be that as it may, I am grateful to the noble and learned Lord for clarifying the position. I was misled by the letter that the noble Baroness was kind enough to send me, which indicated that it was proposed to vote against Clause 7 at this stage, but that the amendments would be tabled at a subsequent stage. I also now understand why it is that the question that I might otherwise have posed—namely, why cannot we do the whole thing now?—is precluded by the fact that the people who will make such decisions still need to be able to exercise their options once the Scotland Bill is put through. I am a great deal clearer on the situation than I was 10 minutes ago.

Where there is politics there must be change; where there is change there must be transition; and, where there is transition, it must be managed. As far as we on these Benches can see, this transition is being managed in as sensible a way as possible. We are happy with the proposed arrangements.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [ Lord Advocate's panel for appointment to appeal tribunals]:

On Question, Whether Clause 7 shall stand part of the Bill?

I have indicated that, for the reasons already explained, I would oppose the Question that Clause 7 should stand part of the Bill.

On Question, clause negatived.

Clause 8 [ Constitution of appeal tribunals]:

moved Amendment No. 24:

Page 4, leave out lines 21 to 23 and insert ("one, two or three members drawn by the President from the panel constituted under section 6 above.").
On Question, amendment agreed to.

I have to advise the Committee that I am unable to call Amendments Nos. 25 and 26 because Amendment No. 24, which pre-empts them, has been agreed to.

[ Amendments Nos. 25 and 26 not moved.]

10 p.m.

moved Amendment No. 27:

Page 4, line 23, at end insert—
("( ) Where an appeal tribunal has one member, that person shall
  • (a) have a 5 year general qualification (construed in accordance with section 71 of the Courts and Legal Services Act 1990); or
  • (b) be an advocate or solicitor in Scotland of at least 5 years' standing.").
  • The noble Baroness said: This amendment provides that, if a tribunal is constituted of only one person, that person should be legally qualified with five years' experience. If I had had the chance, I should have lent support to the noble Earl, Lord Russell, and the noble Lord, Lord Goodhart, in their amendment which relates to the retention of legally qualified chairmen, regardless of the number on the tribunal. I am sure that we are all considering the same objective.

    I believe that the present structure of a three-person tribunal which is chaired by a legally qualified person works well over all. Having been a little pre-empted by not being able to discuss Amendments Nos. 25 and 26 this evening, I rather suspect that we may return to the matter in some form or another on Report. There is a serious risk that the model of the so-called flexible tribunal arrangements proposed under the Bill will alter the balance of fairness between the appellants and the Secretary of State.

    Members of this Chamber have received several excellent briefings on the clause from national CAB, the Child Poverty Action Group, the Legal Action Group, the Law Society, and others. I thank all of them for those briefings and declare an interest here as president of my local CAB branch in Woking. All those briefings refer to the academic research carried out in the 1970s by Professor Kathleen Bell. That research was very critical of the standards achieved by non-lawyer chairmen. It was such research that led to the 1984 Act, under which all social security tribunals were chaired by a lawyer.

    While others may reach for the text of that research by Professor Bell I delve into my memory to recollect what I observed at tribunals at that time. In case my memory was faulty I consulted the notes I made at the time too. That was at a stage in my life when I had returned to Brunel as a bit of an "oldie" aged 30, although I have to say that these days that seems rather young. I returned to take a further degree. For six months I observed the proceedings of my local supplementary benefit appeal tribunal. I observed how the system of lay chairmen was working, or not working. As a result of studying that process and making proposals I was invited in the following terms—"If you think you know better, come and do it"—to become a member of the tribunal. That practical experience of 14 years serving on the tribunals and having observed lay chairmen in operation confirms my view that three-member tribunals with a legally qualified chairman is vital to the fairness of the system.

    Social security law is notoriously complex. We certainly had a flavour of that earlier today. If we must have only one person on a tribunal—that would be the outcome of the Bill in its present form—it seems an odd use of language to describe a tribunal as one person. If that is the case, surely that one person ought to be legally qualified. There are detailed regulations to consider and a large body of case law. I had some practical experience of being tangled up in that when I was "volunteered" to set up the tribunal advisory service for the Surrey and West Sussex CABs in the early 1980s. As a layman I certainly struggled with social security law. I have done so with a greater or lesser degree of success ever since.

    Over half the people who attend tribunals are unrepresented. That emerges from the social security statistics of 1997. By definition, many of those people are disadvantaged by poverty and ill health. Some people who appeal have literacy problems or do not speak English as their first language. Appellants who have been successful in their own form of work or their own professions and have no literacy problems can still be at a real disadvantage when they enter the world of social security law. The very fact that they may never have been unemployed before means that when they have their first contact with the somewhat arcane world and the intricacies of social security law and regulations they can experience a culture shock. That may be exacerbated by the shock they may feel at being unemployed for the first time in their lives. For the first time they may perceive themselves in their own terms as having failed. They may simply be unable to cope with the experience. At this stage chairmen play a crucial role in ensuring that the appellants are able to put the relevant facts of the case fully and that the rules—of which the appellant may be unaware through no fault of his or her own—are applied correctly.

    On countless occasions I have seen submissions put forward by the Benefits Agency in which the statement has been made, "The relevant law is available in the local office or at your local citizens advice bureau". It is, but for some people who live in a rural area access to that is next to impossible. For those who can gain access to the document, explanation and understanding may be attempted but may still not be appreciated by the appellant. Surely the tribunal should be able to rely upon submissions made on behalf of the Secretary of State as being the authoritative guide to law. The Minister may say that the explanation is given in the case papers. However, when the explanation is given correctly in the case papers, on occasion it has been less than clear to people who are not aware of the law. I hesitate to use the word "gobbledegook" but it may appear that way to some people.

    Earlier we were given details of the findings of the chief adjudication officer that 43 per cent. of income support appeal submissions which were examined were fundamentally flawed mainly as a result of a submission supporting an incorrect decision or because it failed effectively to argue the case. That was stated in the annual report of the chief adjudication officer for 1997.

    Of course I applaud the Government's objective underlying their approach to this Bill that one should get decisions right the first time. Of course that is the right approach. That is exactly what the DSS and the agency staff have been making valiant efforts to do so far. When I have visited local offices they have shown me the targets they have been trying to meet. They have made good efforts to achieve them but, in the imperfect world we live in, there will continue to be errors.

    The fact that chairmen are now legally qualified underpins the independence and impartiality of tribunal hearings and gives confidence that the law will be properly examined on those occasions. There are lawyers who are excellent chairmen, who combine the ability to chair a meeting fairly and impartially. Where there is more than one person, they make sure that the lay members bring out evidence and are inquisitorial. There are good people who combine being a good chairman with being an excellent lawyer and are able to explain the law well, but there are some lawyers who could do better. I am married to a lawyer, who of course is excellent. Whatever the quality of the lawyer, the legal qualification ensures that the person has the advantage of training and experience in judicial matters, in considering and weighing evidence, establishing the facts, identifying the relevant law to be applied in the case and making a decision based fully on the facts and the law.

    As a lay magistrate, I have had to make decisions about the law, but not on the law. Lay magistrates are carefully advised by qualified justices' clerks, and it is they who interpret the law upon which justice is then applied.

    In the special circumstances of the complex world of social security law and the vulnerability of the people who come as appellants to those tribunals, it is vital that where there is just one person sitting as the tribunal to hear cases that person should have a legal qualification and five years experience. I beg to move.

    I support the noble Baroness, Lady Anelay of St. Johns, on Amendment No. 27. Somewhat to my surprise, and to the surprise of the noble Baroness, Lady Hollis, I was deprived of the opportunity of moving Amendment No. 25. That is a matter which I will come back to on Report.

    Amendments Nos. 25, 27 and 28 are linked, although not formally grouped, as amendments concerning the size and composition of tribunals. The effect of Amendment No. 25 would have been to reserve the right to a three-person tribunal. The effect of Amendment No. 27 is that, assuming a single member tribunal is possible, that member should be legally qualified. The effect of Amendment No. 28 is to ensure that the chairman of a three-member tribunal is legally qualified. Amendment No. 28 has not been formally grouped with Amendment No. 27, but they are two sides of the same coin and it would be convenient if I spoke to that now rather than moving it separately as the next amendment.

    The argument for changing the appeal system is largely based on the desire to reduce delays and costs. These are admirable objectives. There is a need to improve the decision-making system at lower levels before we reduce the safeguards for appellants under the present system. That improvement has not yet been achieved and might not be achieved for some time to come.

    Under the Bill, the effective decision on the size and make up of any tribunal, although nominally taken by the president, will have to be delegated to administrators appointed by the Secretary of State. It will be they who will decide whether an appeal is fit for decision by a single member tribunal on the grounds that it is either straightforward and therefore simple, or meritless. However, cases seeming straightforward and meritless at first sight may not be so, and if a single member sees the complications after the administrator has decided that a single member tribunal is appropriate, the case may have to be redesignated and brought back before a full tribunal. That involves further delay.

    If a single member is appointed who has the wrong expertise for the case, he or she may not realise the complications and may therefore deal with the appeal in an improper way. Alternatively, he or she may realise that he or she does not have the right expertise and again have to ask for it be redesignated and brought back before a member of the tribunal who has that expertise.

    The cost of social security appeals is not great. In 1996 the average cost per appeal was £88. Therefore the savings from sending a few of those cases to single member tribunals would not be great.

    Having a three-member tribunal is a safeguard for a claimant because it improves the chance that the case will be properly heard. We all know of cases where something which looks to one member at first sight as perfectly straightforward turns out, when two other minds are addressed to it, to have genuine issues and complications that need to be more fully considered. The three-member tribunal is, I believe, an important safeguard to claimants. It believe that it is wrong to deprive claimants of that safeguard.

    However, if it is important that the three-member tribunal should be retained, it is even more important that the chair, or sole member as the case may be, is legally qualified. As the noble Baroness, Lady Anelay, told us, legally qualified chairs were introduced in 1984 as a result of the earlier research by Professor Kathleen Bell showing the low standards of tribunals with non-legally qualified chairs. We now propose to go back to the old discredited system.

    Social security law is complex. It involves massive and detailed regulations and a great deal of case law. Over half the people who attend tribunals are unrepresented. Some have literacy problems or problems with the English language. It is essential for chairs to ensure that the hearing is handled properly and the rules applied correctly. The tribunal cannot rely on submissions on behalf of the Secretary of State to state the law correctly. The legal qualification of a chairman makes it more likely that a tribunal will consider the evidence properly, identify the relevant facts, reach proper conclusions on those facts, identify the law to be applied in the case and will apply that law correctly. If single member tribunals are allowed, the reasons why the chairman should be legally qualified apply equally to the sole member of a single member tribunal.

    The administrator's decision that the case is to be treated as straightforward or meritless needs to be checked. The member needs to be able to recognise a legal point. It is much less likely that this will happen if the case is decided by an unqualified single member tribunal.

    In their comments which have been quoted several times today, the presidents of the Independent Tribunal Services said:
    "We are not therefore comfortable with the proposition that a single decision maker conducting an oral hearing alone should not be a lawyer or be legally trained. The demands of conducting and recording the proceedings and decisions of a tribunal in such a sensitive jurisdiction are such that it is argued that it may simply be too great a demand to place on such a person. Further, where the tribunal is made up of more than one person, the chairman will invariably require legal training because of the additional procedural skills involved".
    Those comments come from two people of enormous experience in this field in an extremely well-argued paper. All I can do is endorse them, as I endorse the earlier remarks of the noble Baroness, Lady Anelay.

    10.15 p.m.

    Like the noble Lord, Lord Goodhart, I still find myself in the breathless condition of an aspiring show-jumper who has just had his horse whipped from under him. Perhaps it would not be out of order to comment in one sentence: I believe that the ITS is a good system. It is a pity that we may be deprived of the opportunity to see how it would function if it were allowed to function without undue pressure, after the reform of the system of first instance decisions, and so that it would not be choked by so many of the mistakes which are now made at first instance.

    I wholly agree with the reasons given by the noble Lord, Lord Goodhart, for retaining three-member tribunals—although I suspect that, since I am not moving his amendment, it would be out of order for me to say so.

    The importance of a legal expertise is one which, as the noble Baroness, Lady Anelay, pointed out, has occasioned great anxiety to a whole range of people and a very large number of experienced and wise NGOs. It is also a matter on which the Council on Tribunals has been pressing the department, as will be apparent to anyone who read our last annual report.

    I understand that there are some cases which require an expertise which does not consist of a legal training. Of course some cases require a medical or actuarial expertise. In a three-member tribunal there would be no difficulty in accommodating that. However, that does not render a legal expertise unnecessary. The functions were described by the noble Baroness and the noble Lord, Lord Goodhart—identifying the issue to be decided; ruling on the relevance of a particular piece of evidence; spotting where there is no evidence of some essential factor; extracting information from a witness while putting him or her at their ease; affording everyone an opportunity to address the arguments; and analysing the issues and the evidence at the conclusion of the hearing. Those skills in themselves constitute an expertise. If I may say so, it is an expertise which is most frequently found among lawyers. As the noble Baroness said, it is not found exclusively among lawyers. It is not found among all lawyers. But if we had the statistics, and if there were a way of defining the necessary terms, I believe it is most frequently found among lawyers.

    I am the last to denigrate the importance of training. However, I do not believe that training is always a substitute for experience in exercising those skills. It may augment it. I do not believe it will replace it.

    If dispensing with a legal qualification is led by budgetary considerations—and that may be an unworthy thought on my part—I wonder how many judicial reviews will take place before it becomes clear that it was a poor economy. I hope that my noble and learned friend will find it possible to reflect further on this issue.

    I had fortunately intended, before we discovered a pre-emption which I should have foreseen, to say that there is a continual read-across between the arguments for a lawyer and chairman, and for three-member panels. In a perfect world, those arguments are entirely complementary; they go with each other. In the world of the second best, they are mutually exclusive.

    If I should develop arguments against the case made by the noble Baroness, Lady Anelay, in moving her amendment, it is not because I disagree with anything she said; I think she put her case extremely well and extremely persuasively. But her amendment envisages a second-best, single-person tribunal. If we are to have a single-person tribunal, it must be conducted by a lawyer because no one else is capable of the range. If we accept the noble Baroness's amendment, we shall lose the skill of a medical member, who will be extremely important in many types of appeal. For example, I do not look forward to an appeal on incapacity benefit with no medical member on the panel.

    If we are to have a choice of different types of panel, this will give an importance to the sift of appeals which it has not had before. This is something to which Judge Bassingthwaighte has drawn attention. When all appeals go to fairly similar types of panel, with three members including at least one lawyer, it may not be a disaster if the wrong selection is made because it can be recovered from. But where only one member conducts the panel, the selection of the wrong type of person may fatally pre-empt the outcome of the appeal.

    I know that it is thought that it may be obvious on the papers what the case will be like, but I am reminded of a story told in this Chamber by the noble Lord, Lord Mishcon, a few weeks ago in the debate on legal aid. He remembered a case immediately after he qualified when someone came into his office who wanted to sue for damages because he had been run over while walking along the pavement. The noble Lord said that the words res ipsa loquitur rose unbidden to his mind. He said that for the only time in his career he assured a client that he was certain of success. He never did it again because he discovered immediately proceedings commenced that the driver of the car which had run over his client had had a heart attack shortly before the collision and therefore could not be held responsible for what he did. That goes to show that decisions made at the stage of sift of the papers may be very wrong indeed, that therefore a selection of a panel made on the strength of those reflections on the papers may be equally disastrously wrong and that that may well pre-empt the result of the case.

    That brings me to the other point made by Judge Bassingthwaighte about the importance of the fair-trial provisions of the European Convention on Human Rights. I am not aware of any case law on whether the fair-trial provisions as understood in convention law necessarily require the presence of a lawyer, but I do not think that it would be a good idea for this country to have that issue decided for the first time. When I lived in New York my lawyer there once advised me, "Never be a lawyer's interesting case". I believe that that is also good advice for Her Majesty's Government. Therefore I too very much hope that the whole of this issue will be looked at again with some care.

    Like others, I too feel deprived at not being able to discuss the earlier amendment relating to three-person tribunals, but we must at this stage make do. While it is surely gratifying to any lawyer to hear the words that have been spoken on various sides of this House as to how important it is that legal qualification should be available for the chairmanship of a tribunal and, if it be a one-person tribunal, that that person be a lawyer, I believe that that is all a little too rigid and inflexible. The noble Baroness, Lady Anelay, said that she thought it odd to have a tribunal with only one person upon it. But surely we all realise that, on appeal from social security appeal tribunals, the appeal goes to a single social security commissioner.

    Perhaps the noble Lord will allow me to intervene. I was attempting—obviously failing dramatically—to make the point that the word "tribunal" from its classical root refers to three people. I know that we commonly use it to refer to one, but I am afraid that my joke fell as flat as a pancake.

    I am delighted with that explanation. However, one should not feel that it is only appropriate for adjudications to be performed by at least three people. The desire on the part of the Government, which I accept, to get away from the rigidity of a three-person tribunal is not in any way due to a feeling that a three-person tribunal is in some way bad or should not be the norm. I believe everybody will accept that a three-person tribunal with a lawyer chairman should be the norm; that most cases should go to such tribunals. There is a legal complexity in this field of law which suggests that that is the best kind of tribunal.

    We have heard referred to more than once the excellent research done by Professor Kathleen Bell, indicating how poor were some of the decisions at supplementary benefit tribunals when they did not have a lawyer as chairman. But there was a certain rigidity in the views expressed which made me want to intervene.

    One of the most popular forms of adjudication at the present time, and one which has been much praised by the noble and learned Lord, Lord Woolf, in his examination of civil justice, is the system of arbitrators and ombudsmen who sit typically alone in order to determine complaints of various kinds. I remind the Committee that some of the existing ombudsmen, including the first one on a statutory basis—namely, the Parliamentary Commissioner for Administration—are not lawyers. Indeed, in one of the fields in the private sector most close to social security—namely, insurance—while the present ombudsman is a lawyer (though he was never a practising lawyer; he was a professor of law), the Legal Services Ombudsman is, by statute, specifically not to be a lawyer.

    I draw attention to those examples by way of indicating what does not seem to have been mentioned so far and I feel should be mentioned; that is, that good chairmanship, impartiality and fairness are not exclusive attributes of lawyers; they are perfectly capable of being displayed by others. I feel therefore that some of the contributions were a little extreme. Indeed, some of the briefing which I—probably because I spoke in the Second Reading debate—and no doubt other Members of the Committee received went a bit overboard.

    Perhaps the Government can reassure me that the three-person tribunal with a lawyer chairman towards which over the years we have moved in this field and in industrial tribunals and so forth is to be the norm, but that for purposes of flexibility and because some cases are straightforward, there can be, for instance, a medical practitioner or an expert in disability sitting alone. One should not insist that in every single case there should be a three-person tribunal, or a lawyer chairman or, if the single-person tribunal is allowed to exist, that it must always be a lawyer who sits.

    I find a certain rigidity present in the provision and therefore, despite the respect with which I hold all those who have put their name to the amendment from all parts of the Chamber, they are a little more extreme than I would wish.

    10.30 p.m.

    I wish to make a brief point. The noble Lord, Lord Borrie, referred to having received briefings. I should point out that on this occasion I have received briefings in support of the legally qualified chairman or member from the National Association of Citizens' Advice Bureaux, the Legal Action Group, the Child Poverty Action Group and the Law Society. While one might well say that the Law Society "would say that, wouldn't it?", I do not think one would take the same attitude towards the CABs or the Child Poverty Action Group; or even to the Legal Action Group, which, after all, is regarded by many mainstream lawyers as something of a pain in the neck.

    There is no dispute between us. I have received briefing of the very kind the noble Lord has mentioned from all those bodies. I hold them in respect as I hold noble Lords in respect. I feel a little lonely in this regard but I feel that they, like some of your Lordships, have been a little extreme is saying that there is only one possible way to deal with appeals—there must be three persons and there must be a lawyer chairman.

    The noble Lord, Lord Borrie, is, as always, absolutely fascinating to listen to and what he says calls for a great deal of thought. But I wonder whether the cases he has advanced are on all fours with the one we are discussing here. He dwelt for some time on the ombudsman. He is right about the ombudsman's functions and how he discharges them. But the ombudsman is not exactly a judicial officer. He does not try cases and give a judgment. The ombudsman is a conciliator and a negotiator. He is, if I may so put it, part of the usual channels of administration. We know perfectly well that that is a great skill and a valuable one. But it is not exactly the same skill that leads to judgment in a case, which is what one has in a tribunal.

    The noble Lord, Lord Borrie, touched on the parallel of what happens in the insurance industry. But that does not quite match—indeed, very few things exactly match—the extraordinary range of topics which come to be discussed within a social security appeal tribunal, because that tribunal is dealing both with law and with fact. The facts with which it is dealing may be of a quite extraordinarily wide range. An industrial injury dispute or a habitual residence dispute may involve totally different types of expertise. I take the noble Lord's point about there being a single commissioner. But the commissioner is concerned normally with establishing law. It is the peculiar combination of the need to establish both the law and the facts which means that the range of skills needed here is so extraordinarily wide; and that is why I am rather doubtful whether one person ever can have all of them.

    I start by apologising to my noble and learned friend Lord Archer for unwittingly unsaddling him from his horse. I would also make a similar apology to the noble Lord, Lord Goodhart, if I knew what particular games or sports he indulges in. I compliment the noble Baroness, Lady Anelay, on her judgment in choosing a lawyer for a husband. I am grateful to my noble friend Lord Borrie for his intervention.

    I should perhaps declare an interest. As noble Lords will be aware, I am a lawyer, and I have never been in receipt of so many compliments about my profession as I have heard in the past 35 minutes. I have taken it to mean Scottish lawyers as well.

    There may well be a misunderstanding on the part of noble Lords as to what is being proposed and the reasons for it. The reasons have already been referred to. Appeals currently take, on average, more than six months to resolve and some take a year or even longer. I think all noble Lords will accept that that is quite unacceptable. An enormous variety of cases come before tribunals under the current system. The effect of that is that fairly straightforward cases have to wait their turn in the queue and require to wait longer than one might reasonably expect for a decision.

    The aim of the Government and of these provisions is to match the types of appeal to the right type of appeal tribunal. Perhaps I may continue to use the word "tribunal", even in the context of single-person hearings, for the sake of simplicity and consistency in Hansard. If we match the types of cases to the right type of tribunal, cases can he resolved more quickly. The proposals will enable the expertise of members to be targeted more effectively on those appeals which need it. That means improved waiting times for all appellants.

    Perhaps I may give your Lordships some examples and thus reassure the Committee that every appeal will receive appropriate consideration. A three-person tribunal comprising experts in law, medicine and the needs of disabled persons will be required for an appeal against a decision on the disability living allowance relating to the mobility or care components of the benefit. A tribunal of two people—a legally qualified member and a member with knowledge or experience of employment opportunities—might hear an appeal against a decision on a job-seeker's agreement. A case where the only issue in dispute is whether a particular disease has been diagnosed could be heard by a medical practitioner with knowledge of the condition sitting alone. An appeal which is solely about whether a claimant satisfies—

    With respect, how would it be known in advance that that would be the only issue that would arise? We should remember the fate of the noble Lord, Lord Mishcon.

    I take on board what the noble Earl says, but I shall explain later that there will be detailed regulations setting out the types of cases which will go to a three-person tribunal, which I expect will be the majority of cases: the types of cases that will go to a two-person tribunal; and the types of cases that will go to a one-person tribunal. I shall also indicate that, to meet the concern of the Delegated Powers Scrutiny Committee, we shall bring forward an amendment to make regulations under Clause 8 subject to the affirmative procedure so that your Lordships will have the opportunity to scrutinise the proposals on which types of appeal will go to the different types of tribunal. Your Lordships and Parliament can thus be satisfied that all appeals will be dealt with by people with appropriate expertise.

    Our aim and the object of the regulations will be to secure that people are dealt with not only expeditiously, but also, and more importantly, that they are dealt with by an appropriate tribunal comprising people or an individual with the appropriate skills to determine that type of case.

    Having discussed this matter in some detail prior to this week, I understand that the regulations will err on the side of caution, so that if there is any doubt about whether a case should be heard by one person or two persons, it will be heard by two persons; and if there is any doubt about whether it should be heard by two or three persons, it will be heard by three persons. That is how the regulations will be formulated. Again, I expect that in a three-person tribunal it is likely—although I cannot say absolutely—that the chairman will be legally qualified.

    In the context of an individual hearing a case, it is my position and that of the Government that it does not necessarily follow that that person should be legally qualified. There may be matters which can more appropriately be determined by an individual who does not have a legal qualification but who has been given appropriate training to enable him or her to determine the issues which he or she will face.

    I take the point made by my noble friend Lord Borrie. There are other examples of individuals who are not legally qualified and who make decisions on important issues involving questions of law and fact. I do not believe that it is necessary to have a legally qualified chairman in cases where there is only one person. Having said that, I am aware of the strength of feeling expressed, this evening. In view of the concerns expressed I shall reflect further on whether the individual should be legally qualified. In case there is any doubt, I do not undertake to table an amendment at a later stage. It is very much like the indication that my noble friend Lord Williams, the Solicitor-General and I gave at various stages of the Crime and Disorder Bill. While we shall think about it, there is no commitment on our part to table an amendment on this issue at a later stage.

    As to the "three persons" issue, the Committee has heard the Government's position. The regulations, which will be subject to the affirmative procedure, will be laid before Parliament and will be subject to scrutiny. Noble Lords will have an opportunity to ensure that appropriate safeguards are in place when the regulations are debated.

    In the light of those explanations, I invite the noble Baroness to withdraw her amendment and the noble Lord, Lord Goodhart, not to move Amendment No. 28, which are the only two that the Committee has been discussing.

    I thank the noble and learned Lord for his full reply. I appear to be the only participant in the debate to restrict myself to my own amendment. That is not a criticism of others but an expression of thanks. The noble Baroness says that if I do not do that, who else should? I rather regret the fact that I was so self-disciplined, but I am relieved that other noble Lords did not feel so constrained. Although we were somewhat pre-empted unexpectedly by not being able to deal with the previous two amendments concerning the value of three-person tribunals, nonetheless those arguments have in part been rehearsed. I am pleased that I held my fire as to that. I believe that, despite the speech of the noble and learned Lord, there are serious issues to be considered with regard to three-person tribunals to which noble Lords may wish to return or approach at Report stage, since the Committee has not had a chance to deal with those matters effectively today.

    The noble and learned Lord said that regulations would spell out ways in which tribunals of fewer than three people could tackle certain cases and that it would be possible to match cases to the expertise on tribunals. But I believe that the noble Lord, Lord Goodhart, and the noble Earl, Lord Russell, said that that in itself required a degree of pre-sifting—in other words, pre-judgment—by the tribunal service as to what the core issues of an appeal might be.

    Later noble Lords will have the opportunity to discuss an amendment relating to the inquisitorial nature of the tribunal. If it is the Government's intent that tribunals should cease to have a full inquisitorial function, naturally I accept the argument of the noble and learned Lord that it is easier to match tribunals to cases. However, I hope to be able to persuade the Government to retain some of the inquisitorial nature of the tribunal. It performs a very valuable function.

    The noble and learned Lord also said that if a person sitting alone was not legally qualified he or she would nevertheless be legally trained in order to deal with the particular issues.

    In this case, such a person would not have recourse, on the spot, to detailed, legal back-up. As the Committee will be aware, the clerk who services an appeal tribunal is a person who pays the expenses, and carries out the functions for which I was grateful, such as making the tea and providing biscuits out of the allowances from the ITS. The clerk's function is not to provide legal advice.

    When the changes were made to the tribunal structure in 1984 the grade of the civil servant, as it then was, who provided the service of clerking the tribunal was downgraded. It has remained at a lower grade. That layman would not have recourse to an intimate knowledge of social security law, which I still believe he or she would need whether deciding on incapacity benefit, vaccine cases or income support. I remain very worried about these issues.

    Despite the noble Lord, or noble and learned Lord, I should say,—I seem to have some mental block about lawyers, having admitted earlier to being married to one—doing so much to try to reassure me, I am afraid that he has failed to do so. But at this hour, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    10.45 p.m.

    had given notice of his intention to move Amendment No. 28:

    Page 4, line 25, at end insert ("but no person shall be appointed chairman of a tribunal unless he has a 5 year general qualification or he is an advocate or solicitor in Scotland of at least 5 years' standing").
    The noble Lord said: I do not intend to move the amendment, but it is a matter which it is likely that we shall bring back on Report.

    [ Amendment No. 28 not moved.]

    moved Amendment No. 29:

    Page 4, line 27, leave out ("any casting vote") and insert ("a casting vote if the votes are equally divided").
    The noble and learned Lord said: I shall talk also to Amendment No. 65. The amendments enable tribunals to reach clear decisions even if the votes of the members of the tribunals are equally divided.

    Amendment No. 29 makes it clear that unless regulations prescribe otherwise, the chairman of an appeal tribunal shall have a casting vote where the votes of the members of the tribunal are equally divided.

    The provisions of Clause 8(1)(b) allow for tribunals to be constituted of one, two or three members. Where a tribunal consists of more than one member the tribunal decision will be taken by a majority of votes. However, as currently drafted the chairman might be thought to have a casting vote regardless of whether votes are equally divided or not. It is intended that the casting vote will be appropriate only if the votes are equally divided.

    It is possible that a tribunal consisting of two members will disagree. In that case it is only sensible to allow for a casting vote in order that a decision can be made.

    Amendment No. 65 will allow a casting vote to be made by the presiding social security commissioner where there is an equal division in votes. Cases will usually be considered by a single commissioner. However, if the chief commissioner considers that a case involves a question of law of special difficulty he may direct that the case be heard by a tribunal of three or more. Decisions will be made according to the vote of the majority, if the commissioners are not unanimous. Occasionally a tribunal may consist of an even number of commissioners. If unusually they disagree on a decision it is only right that a presiding commissioner shall have a casting vote to enable a clear decision to be reached.

    These amendments allow appeal or commissioner tribunals to reach a decision where the members of the tribunals are equally divided. Without the amendment it would not be clear how such cases should be decided; therefore I commend the amendments to the Committee. I beg to move.

    I am afraid that I have to criticise Amendment No. 29, because there is a serious technical problem. It is that in a two-member tribunal the chairman can always secure that the decision goes the way that he or she wants it to. One may well find a situation where the second member of the tribunal will say, "Well, what on earth am I doing here?", because the chairmen can always decide it in the way that they want to.

    That circumstance reminds me of what President Lincoln once said when he put a proposal to his cabinet which unanimously rejected it. He took a vote and he said at the end:
    "The ayes one: the noes 10. The ayes have it".
    In a less extreme way the principle is the same here, because the second member of the tribunal can play no possible part in the taking of the decision. Surely, in those circumstances the only proper course is to do what is done in a two-member Court of Appeal. In the great majority of cases before a two-member tribunal, the two members will be able to agree. But where the only two members of a tribunal disagree, surely the proper course is to adjourn the case and bring it forward again before a three-member tribunal. That may involve an element of delay, but it is the only fair and proper way of dealing with the situation.

    The same problem does not arise with Amendment No. 65 because a tribunal of several social security commissioners is brought together to decide a question of particular difficulty. The minimum size of such a tribunal is three. It follows that the minimum size for an even numbered tribunal is four. In those circumstances, the chairman is not in a position to decide the case exactly as he likes against the opposition of all the other members of the tribunal. I accept that a casting vote would be a proper way of proceeding.

    However, Amendment No. 29 is not appropriate. Perhaps the noble and learned Lord will withdraw his amendment tonight, take it away and think about it, and return at the Report stage with another proposal.

    As the noble Lord, Lord Goodhart, observed, in practically all cases of two-member tribunals there will be agreement, just as there is in the court. I do not share his pessimism about the feeling of the second member who is outvoted. One would anticipate that before a division of opinion there would have been a full discussion of views as between the two members. One must assume that the members, having been chosen in the way we have described, are not unprincipled and will be acting in good faith, expressing genuine views based on their own assessment of the evidence before them.

    In the context of assuring that cases are determined properly and reasonably expeditiously, it is my view that it is appropriate to give to the chairman of a two-member tribunal a casting vote to use on the extremely rare occasions when there is likely to be a division of opinion. In those circumstances—

    I am grateful to my noble and learned friend for giving way. The point made by the noble Lord, Lord Goodhart, may not apply to many cases. It is probable that the two members of the tribunal will agree in the majority of cases. In that case, there is no problem. Inevitably, however, there will be cases when the two disagree. We have all encountered courts and tribunals consisting of two members where there has been a disagreement. The point which the noble Lord makes is that when that happens, however infrequently, there should be some provision to deal with it. If not, the second member of the tribunal has no part in the decision-making process. It would not be difficult to make appropriate provision in those few cases.

    I am grateful to my noble and learned friend for his intervention. In that situation, the chairman of the tribunal, like any other chairman, will be in a position of authority—

    With respect, it is not a dictatorship because, prior to the point of voting, the members of the tribunal will have discussed the case fully and each will have tried to persuade the other of the correctness of his views. I do not see that that is any different from any other situation where there are two people who must make a decision, or an even number of people who must make a decision.

    I am grateful to the noble and learned Lord for giving way. But as I tried to point out, that is exactly the situation which may arise if we have, in the English legal system, a two-member Court of Appeal or a two-member Divisional Court. In that case, the senior member of the court does not have a casting vote. When a difference arises—and it arises only rarely and usually in relation to an important issue—the matter is adjourned so that it can be brought back before a three-member tribunal. That is surely the appropriate way of dealing with the matter.

    I am not persuaded by the arguments advanced by the noble Lord and my noble and learned friend. However, having said that, I appreciate the strength of feeling and I shall reflect on the matter. But that will be in the same spirit as the reflection which I mentioned earlier. There is no guarantee that we shall not return on Report with an identical amendment. Therefore, I shall withdraw Amendment No. 29 at this stage.

    Amendment, by leave, withdrawn.

    [ Amendment No. 30 not moved.]

    moved Amendment No. 31:

    Page 4, line 29, leave out ("may") and insert ("shall").
    The noble and learned Lord said: This is an amendment to provide not that there may be regulations but that there will be regulations. Clause 8 deals with the constitution of appeal tribunals, as we have just been reminding ourselves. Therefore, we might expect to find there specific guidance as to how they are to be comprised and as to their procedures and, in the light of the debates which have just taken place, who is to allocate a specific tribunal for a particular case.

    It has been mentioned already in our debates, and it was certainly mentioned by Judge Bassingthwaighte in his memorandum, that there is a danger of a reference to the European Commission on Human Rights in this regard on the ground that the tribunal is constituted not by law but by the administrative decision of a government employee.

    My noble friend Lady Hollis was kind and courteous enough to write to me to indicate some of the department's thinking on this question. I am grateful to her for setting out the proposals so clearly, although I am rather troubled by the number of detailed questions which are apparently still under consideration.

    It seems that there will be rules indicating which categories of appeal will be allocated respectively to single-member, two-member and three-member tribunals and which cases may be allocated to a single member without legal expertise. Apparently those rules are still in the process of being worked out. I understand that. But two matters have already emerged. The first, as I understand it—and I believe it was rather inconsistent with something which my noble and learned friend said in one of our earlier debates—is that, if what is said in the letter is correct, something over half the total of appeals are likely to be heard by two-member tribunals. If I have misunderstood that, then of course, I shall be corrected. My noble friend is busily shaking her head. I am quite willing to be corrected.

    11 p.m.

    It is my understanding that about three-quarters of the hearings will be by three-member tribunals.

    If the noble and learned Lord will forgive me for intervening, perhaps I may ask for some clarification in that respect. The noble and learned Lord has just mentioned "three-quarters". Does that mean that there is a quota system regardless of the content of the appeals? If so, that might cause concern.

    There is no quota system. I was merely giving an estimate of what I understand from my noble friend would be the position.

    I was simply quoting from my noble friend's letter which says:

    "Our initial work indicates that more than half of all appeals are likely to be heard by two-person tribunals, with around a quarter falling to one-person and three-person tribunals respectively".
    I am not trying to make a debating point. If that is a mistake, I am perfectly willing to be corrected. However, that is what the letter says. If that is the position, I would find it slightly worrying. Perhaps that can be sorted out at a later stage.

    I said that two matters appeared to have emerged out of the situation. I have indicated the first, but the second refers to the composition of the tribunal in any specific case. The letter says that that will come from a database operated by administrative staff. That, in itself, raises some further questions. How senior will the staff be and how tightly will the criteria be drawn? I understand that those criteria, and the other matters referred to in the subsection, are likely to be embodied in regulations. I believe that my noble and learned friend confirmed a few moments ago that those regulations will be subject to the affirmative procedure. I see that he is nodding his head in agreement; that certainly gives me a high degree of reassurance.

    If my noble and learned friend can assure us in that respect, it would go some way towards alleviating our anxieties. But there remains the dominating question; namely, if there are to be regulations dealing with such matters, why not write rather more of the detail into the Bill? If it is intended that those regulations "shall" happen, why provide that they "may"? Many people have deep anxieties about this whole subject. I believe that some of those anxieties are well founded at present. However, where those people do not need to worry, why not make it clear? I beg to move.

    I should like to support the amendment moved so ably by the noble and learned Lord, Lord Archer of Sandwell. Indeed, as he asked at the end of his remarks, if there are to be regulations—and we have been told that there "shall" be—why should that not be spelt out on the face of the Bill? If the amendment were rejected and if Members of the Committee were to accept that regulations "may" be made, there would be a danger that we could fall into a limbo land of administrative convenience, whereby it could be more convenient not to make regulations which would make the allocation of cases more clearly open to review and to objection by others. To me, that would be a matter of great concern. The issues which the noble and learned Lord says must be laid down in regulations are all at the core of our concerns as regards the way in which the tribunals shall be run in the future.

    I, too, support the amendment. It seems absolutely clear that regulations under subsection (3) will have to be made. We really cannot have a tribunal system which does not have regulations as to the procedure to be followed on appeals. In those circumstances, I cannot see any possible reason why they should not be spelt out in the very simple way suggested by the noble and learned Lord, Lord Archer of Sandwell.

    Before I respond to the amendment, perhaps I should correct something that I indicated earlier in relation to tribunals when I referred to three-quarters, one half, and so on. There seems to be some confusion about the percentages. I prefer to write formally to noble Lords so there is no doubt at all about the situation.

    I can assure the Committee that it has always been the Government's intention to make regulations to provide for the matters referred to; namely, the composition of appeal tribunals; the procedure to be followed on proceedings before appeal tribunals; and the procedure to be followed for allocating cases among differently constituted tribunals. It may be helpful if I explain what we have in mind. First, the regulations detailing tribunal composition are to be made so that those operating the new, unified tribunal arrangements are clear about the appropriate use of medical, legal or other expertise.

    Secondly, the regulations will outline the procedure which takes place on an appeal or an application before an appeal tribunal and will be supplemented by detailed guidance. Thirdly, the regulations will ensure that similar cases are allocated consistently to similar types of tribunals. Administrators responsible for arranging an appeal hearing will be able to seek legal advice if there is any doubt as to the appropriate constitution of a tribunal. These regulations will of necessity contain sufficient detail to provide appeal arrangements which are both fair and consistent. As I said earlier, they will be subject to the affirmative procedure.

    I hope I have explained to the satisfaction of my noble and learned friend Lord Archer what the regulation making powers in the clause will be used for. However, I appreciate his concern that their use should be made more explicit on the face of the Bill. We cannot, however, accept this amendment as it stands because there are consequential changes which will be required to achieve the desired effect. For example, the power to make procedure regulations, now set out in Clause 8(3)(b), may be better situated in Schedule 5 with others of that type. But I am happy to take this matter away and look at how we can amend the Bill at Report to meet my noble and learned friend's concerns. In those circumstances I invite my noble and learned friend to withdraw his amendment.

    It is a pleasure doing business with my noble and learned friend. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 32:

    Page 4, line 38, at end insert—
    ("( ) Regulations shall make provision for the procedure to he followed in requiring and providing expert assistance under subsection (4) above.").
    The noble and learned Lord said: This amendment addresses a specific example of the general unease which I endeavoured to discuss a few moments ago. Subsection (4) provides that,
    "the tribunal may require one or more experts"
    to assist it on a matter of special difficulty.

    There is nothing new about a court or tribunal receiving assistance from an expert in the subject matter on which it has to adjudicate. There are many ways of doing that. One or more of the parties may call an expert witness who can give evidence and be cross-examined; or the court or tribunal may call an expert witness of its own motion, and again, the witness may give evidence and then be asked questions by all those concerned; or the expert may be appointed as an assessor to advise the tribunal on matters on which it feels the need for advice; or the expert may be a member of the tribunal. We know that under the proposals we are discussing a person may be appointed to a specific tribunal because he or she has a specific expertise. But subsection (4) gives no indication at all as to how the expert assistance is to be supplied.

    From indications we have had, it appears that the expert will be a member of the panel, although not a member of the tribunal sitting for a specific case. That raises all kinds of questions. Will the expert advise the tribunal in the absence of the parties, as a magistrates' clerk may sometimes tender advice to magistrates, or will his view be expressed openly where it can be amplified or challenged? Must he wait until he is asked for an opinion, or can he offer unsolicited advice? May he be cross-examined by the parties? I am bound to say I have rarely seen a more laid-back provision or one which answered fewer questions. I hope that my noble and learned friend can offer us some guidance on all these queries in the generous spirit in which he replied to the former amendment.

    No doubt my noble and learned friend has seen the letter on the subject written by Judge Bassingthwaighte to the department on 10th November last year, and appended to the memorandum where he suggests that one way of doing it would be that the tribunal should have power to ask an expert for a report, which would be disclosed to the parties, and the expert would be required to attend only if there is a challenge. When we have the guidance it would be strange to leave it there. Surely those who have to implement the provision will not be left to consult Hansard as to what is intended. Surely it will be in the regulations. If so, why should it not be in the Bill? I beg to move.

    I rise to support the amendment of the noble and learned Lord, Lord Archer.

    I sat as a lay member of a social security appeal tribunal hearing appeals with regard to incapacity benefit, and when I read the Bill I wondered whether the Government intend that this expert he in the same position as currently is the case for a doctor medical expert who may attend at an incapacity benefit hearing.

    That situation was unsatisfactory because the presence of the medical expert seemed to lead both the tribunal and the appellant to expect too much of him and his function was not fully explained to either party. The appellants seemed to assume that because a doctor was present they might be subject to medical examination, which was patently not the case; they expected they might be able to put questions to the medical expert on their own behalf to get information or an explanation of something which was in the papers or something which was being asked of them at the hearing. The medical expert was not allowed to do that. So some frustration built up at the hearing and got in the way of a proper examination of the evidence.

    As to the tribunal, the members of the tribunal felt inhibited as to what the full role of that expert might be. The expert was not allowed to join in the questioning aspect of the tribunal; he was there almost as a Black's medical dictionary—a resource—if only the tribunal knew which questions to ask. One of the difficulties was that the tribunal did not ask the right questions and sometimes, in contravention of the guidance, the medical expert attending would assist the tribunal—quite wrongly but very helpfully—by telling it which questions it ought to ask or by giving the answer without the question being mentioned.

    We should not have to get round that kind of improper situation. Is that the kind of situation that the Government intend to build into the tribunal service system with this Bill or will there be a different way of using the expert which would be of greater benefit to both the appellant and the tribunal?

    Amendment No. 32 seeks to put on the face of the Bill a further regulation-making power which will set out not only the procedure to be followed by appeal tribunals in seeking advice from experts but also the manner in which those experts will provide that assistance. That latter part will address the concerns of the noble Baroness, Lady Anelay of St. Johns.

    My noble and learned friend Lord Archer has explained the reasons for believing this additional regulation-making power to be both useful and necessary for the effective management of tribunal hearings and I am sympathetic to his argument. The Government's intention was to use the powers contained in subsection (3)(b) of Clause 8 and in Schedule 5 to make provisions of the sort that the noble and learned Lord has in mind. In the light of the argument he has advanced, I would like to look again at the merits of the change he has proposed. Although we believe that this amendment will impact on only a very small number of appeals, I should like to reflect further whether this amendment is a sensible addition to our regulation-making powers.

    I hope that my noble and learned friend will feel able to withdraw the amendment in the light of my assurance to give the matter further consideration. I shall write to him when we have had an opportunity to reflect further and will copy the letter to the noble Baroness, Lady Anelay, and the noble Earl, Lord Russell. I shall place a copy in the Library. If we consider that an amendment along the lines suggested by my noble and learned friend would be appropriate, we shall bring forward an amendment at Report stage. In the light of that, I ask my noble and learned friend to withdraw the amendment.

    11.15 p.m.

    This is becoming addictive! I am most grateful to my noble and learned friend for that generous response. I am also most grateful to the noble Baroness, Lady Anelay, for her support. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendments Nos. 33 and 34:

    Page 4, line 39, leave out from ("In") to ("who") in line 40 and insert ("subsection (4) above "expert- means a member of the panel constituted under section 6 above").
    Page 5, leave out line I.
    On Question, amendments agreed to.

    Clause 8, as amended, agreed to.

    [ Amendment No. 35 not moved.]

    Schedule 1 [ Appeal tribunals: supplementary provisions]:

    moved Amendment No. 36:

    Page 54, line 41, leave out ("Secretary of State") and insert ("President").
    The noble and learned Lord said: With Amendment No. 36 it may be for the convenience of the Committee if we also discuss Amendment No. 37. These amendments are to one paragraph in a schedule but they raise a fundamental issue which extends to all courts and tribunals. I do not pretend that there is any easy answer.

    What is to be the relationship between the judiciary and the administrators? I accept that administrators are not just there to do what the judges tell them to do. At the senior level, an administrator is likely to be the accounting officer for the use of public resources. It is he who may be summoned to appear before the Public Accounts Committee. If he were answerable in the first instance to the president, it is the president who could be summoned to the Public Accounts Committee. Not all heads of tribunal systems would relish that. I have heard different presidents express different personal preferences as to the relationship which they would like to have with their senior administrators. But clearly the president is responsible for decisions affecting the quality of justice. It is for him to say, "I don't think that the tribunal can give proper attention to a case if we have more than four cases in a day's list". But that may well have implications for resources. Who is to have the last word?

    My noble friend may recollect that at Second Reading I recommended that she read a report by the Council on Tribunals in 1996 on tribunals, their organisation and independence, in which some of these problems are discussed. I do not know whether my noble friend or my noble and learned friend have had an opportunity to read that report. If not, I shall happily provide them with a free copy. At the moment, they do not seem to have any clear recollection of whether they have read it, but there may be other explanations for that.

    One of the questions which this raises is whether the president is to appoint his own staff, whether they are to be answerable to him or whether they are to be independent of him. Of course, much may depend on the personal relationship of those concerned and on their common sense. From what I know of those concerned, that affords one great reassurance.

    I do not propose to press the matter to a Division tonight, but I should like to have some indication of the Government's thinking and to be assured that they have some thinking. I beg to move.

    This is becoming addictive as well—I rise again to support the noble and learned Lord, Lord Archer. The Chief Whip invokes the fact that the Government ought to be able to join in criticising their own Bill. I hope that this will not be the last time that the Chief Whip would like the Government to do just that. I have great respect for the experience and views, naturally of the Chief Whip and certainly of the noble and learned Lord, the chairman of the Council on Tribunals. I shall be interested to hear the Government's response on these particular amendments.

    During the course of debate, the noble and learned Lord referred to a report prepared by his own in-house organisation. It is a report which the Conservative government did not have the chance to read at the time when they originally drafted this Bill. I hope that, with hindsight, we might be able to take advantage of the noble and learned Lord's wisdom, given that at the time we were not able to do so.

    The effect of this amendment is to give the president of tribunals the power to appoint such officers and staff as he or she thinks fit for the president and for appeal tribunals.

    I note the points made by the Child Poverty Action Group in its briefing to noble Lords; namely, that, as the Bill stands, the transfer of responsibility from the president to the Secretary of State introduces a potential conflict of interest. The Secretary of State makes first tier decisions and is also responsible for the administration of appeals against them.

    The report, Tribunals, their Organisation and Independence, referred to by the noble and learned Lord, lists some of the preconditions for tribunal independence, including the freedom to take judicial decisions uninfluenced by resource or other external considerations; proper administrative support in terms of hearing clerks and support staff; legal and other textbooks; adequate and appropriate hearing accommodation and premises which are not connected with one or other of the parties.

    I can give a practical example from my own experience that premises should be,
    "impartial, unthreatening and accessible to all people, including those with disabilities"—
    not like the old town hall at Aldershot, where I sat for several years as a member of a social security appeal tribunal hearing incapacity benefit appeals, when the only way of getting into the tribunal room was by climbing two flights of very rickety stairs. On other occasions the tribunal had to sit in premises that were part of the magistrates' court—not premises that were particularly suitable for that kind of tribunal.

    The report of the Council on Tribunals concludes—and I promise that I am not quoting from it simply to prove that I have actually read it—that,
    "The independence and integrity of a tribunal system is best served if somebody from the judicial side of the tribunal is given a specific role in meeting some or all of those preconditions which the report lays down".
    The point has been made by the Child Poverty Action Group that the president will no longer, as a result of this Bill, have a specific role in ensuring that administrative systems are adequate to support judicial independence. The question is posed: will the removal of this responsibility therefore undermine the independence of the appeals system? I believe that it will. I hope that, in replying, the Minister will be able to reassure us and accept this amendment.

    I rise to support the amendment, to which I have my name. At this time of night I wish to do very little except to say that I strongly support the noble and learned Lord, Lord Archer, who has far more experience than I of the role of tribunals of this kind. The points that he has made are absolutely right. He has very fairly explained, not only the advantages of having the president as the person with the power to make the appointments, but also the complications so far as accounting is concerned which would arise from that.

    Nevertheless, it seems to me entirely right that the staff to service the president and appeals tribunals should not be appointed by the Secretary of State from whose department these appeals are being heard. As to whether it is right for the appointment to be made by the president, there are perhaps alternatives. One possibility may be that appointments should be made by the Lord Chancellor who, after all, is the person responsible for appointing the president and members of the tribunal. Be that as it may, I do not believe that the present situation as set out in the first schedule is correct. I hope that the noble and learned Lord will re-examine that and consider a solution whereby the staffing of the tribunal would not be the responsibility of the Secretary of State.

    This amendment may be small but it raises issues of great importance. The first is that of judicial independence. Since it is contrary to the principles of natural justice to be judge and party in one's own cause, if the Government do not get that issue right great expense will be involved in judicial reviews. The second issue is the great difficulty of separating administrative and judicial functions in the way that is intended. In her phrase about administrative systems sufficient to support judicial independence, the noble Baroness, Lady Anelay, hit the nail absolutely on the head. The Government must give thought to that matter: they will be in trouble if they do not.

    I am sorry that I require to break the habit of this evening and say that I regret that I am unable to accept my noble friend's suggestions. These amendments seek to transfer from my right honourable friend the Secretary of State to the president of appeal tribunals the responsibility for appointing officers and staff for himself and for the tribunals.

    I can assure Members of the Committee that we are committed to preserving the independence of the president of appeal tribunals and of the decisions they make. The provisions in Clauses 5 and 6 for the president and all panel members to be appointed by the Lord Chancellor reinforce that commitment.

    The current system of a judge as president with responsibility for administrative as well as judicial functions is unique to the Independent Tribunal Service. This contributes one element of independence, but it has other implications. Because the president is a member of the judiciary, he cannot be held accountable for the efficiency of the administration of appeals because of the constitutional separation of powers between the judiciary and the executive.

    Under the new system the president will be the judicial head of appeal tribunals. He will be responsible for approving panel members for their expertise and suitability to deal with particular types of appeal. His responsibilities will also extend to arranging the training of all panel members, in consultation with the chief medical officers and the Secretary of State, as appropriate.

    The Secretary of State will take on responsibility for the administration of appeals. She intends to set and publish demanding targets for administration and to report on the results. We have also announced our decision in principle to set up a new executive agency to deal solely with the administration of appeals on a day-to-day basis. This will enable the Secretary of State to set objectives and targets for the service. The chief executive will be required to report regularly to Ministers to ensure the efficient running of the service. Importantly, the chief executive may be appointed accounting officer, directly responsible to Parliament for the public money spent on administration and the efficiency of the service provided. That is an important development which could not be achieved if the president of the tribunal service maintained his present dual role.

    This separation of administration and judicial functions happens in other appeal systems. For example, pensions appeal tribunals are administered by the Court Service, an executive agency of the Lord Chancellor's Department; and industrial tribunals and employment appeal tribunals are administered by the Employment Tribunals Service, an executive agency of the Department of Trade and Industry. We believe that that is the best way to meet our objectives for improving services and accountability of performance. Agency status will enable the service to operate at arm's length from Ministers. It will provide scope for greater accountability in terms of expenditure and performance, and a better service for claimants.

    Clearly the Secretary of State will wish to take views from the president of the numbers and types of administrators needed to provide a proper support service. I take the point made by the noble Baroness, Lady Anelay, in quoting from the report. However, it is essential that the Secretary of State retains the power to appoint administrative staff. It is she and not the president who is responsible for the appeal service as a whole, and it is she who is accountable for the standards of administration and public money spent. I hope that my noble and learned friend Lord Archer will therefore feel able to withdraw the amendment.

    My noble and learned friend so nearly scored a hat trick! The amendment was moved at least partly in an interrogative mood, and I am most grateful to all Members of the Committee who indicated that the curiosity was not confined to me alone.

    I am grateful also to my noble and learned friend for the information which he gave us. However, I am bound to say that what troubles me is that there was so little indication in his reply that the Government have really reflected on these difficult questions. They seem to think that it is all quite simple and that there are no difficult issues involved. My noble and learned friend did not seize the opportunity to assure us that he had read the report to which I referred at Second Reading and which I invited him to read. Perhaps before we reach Report stage he will find an opportunity of reading it, and I repeat my offer to supply him with a free copy.

    At this time of the evening I cannot do more than beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 37 not moved.]

    moved Amendments Nos. 38 to 41:

    Page 55, line 6, leave out ("panels") and insert ("panel constituted under section 6 above").
    Page 55, line 15, at end insert—
    (" . Each year the President shall make to the Secretary of State a written report, based on the cases coming before appeal tribunals, on the standards achieved by the Secretary of State in the making of decisions against which an appeal lies to an appeal tribunal: and the Secretary of State shall publish the report.").
    Page 55, line 20, leave out ("panels") and insert ("panel constituted under section 6 above").
    Page 55, leave out lines 42 to 44.
    The noble and learned Lord said: With the leave of the Committee, I shall move Amendments Nos. 38 to 41 en bloc. They have already been spoken to. I beg to move.

    On Question, amendments agreed to.

    Schedule 1, as amended, agreed to.

    Clause 13 [ Appeal to appeal tribunal]:

    [ Amendment No. 42 not moved.]

    House resumed.