Considered in Grand Committee
I shall speak also to the draft Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009, the draft Transfer of Functions (Transport Tribunal and Appeal Panel) Order 2009 and the draft Transfer of Functions of the Charity Tribunal Order 2009.
These orders transfer the entire jurisdictions of the consumer credit appeals tribunal, the estate agents appeal panel, the charity tribunal and most of the jurisdiction of the transport tribunal into the first-tier tribunal and upper tribunal created by the Tribunals, Courts and Enforcement Act 2007. This is a further phase in a series of transfers.
The need to re-examine the tribunals system was first set out in Sir Andrew Leggatt’s review Tribunals for Users—One System, One Service. Accepting his proposals, the Government created the Tribunals Service in 2006 and this was followed by the Tribunals, Courts and Enforcement Act 2007. It provided for the first-tier tribunal and upper tribunal, creating a unified appeal structure.
In November 2008, three first-tier chambers commenced work: the social entitlement chamber, the health, education and social care chamber and the war pensions and Armed Forces compensation chamber. The administrative appeals chamber of the upper tribunal was also established. In April 2009 the first-tier tribunal tax chamber and the upper tribunal finance and tax chamber were established, and this was followed by the creation of the upper tribunal lands chamber this month.
These transfer orders provide for the first transfers into the new general regulatory chamber of the first-tier tribunal, which will be established on 1 September 2009. Part of the jurisdiction of the transport tribunal will also transfer to the upper tribunal administrative appeals chamber. The jurisdiction of the charity tribunal will transfer in part to the finance and tax chamber of the upper tribunal, to be renamed the “tax and chancery chamber” to reflect its new remit.
A separate order, which is subject to the negative resolution procedure, will amend the existing chambers order to establish the general regulatory chamber and assign functions to the chambers as appropriate.
Each chamber under the Act is required to have a chamber president, whose role is the maintenance and improvement of the chamber’s expertise. The first-tier tribunal general regulatory chamber will have a chamber president selected by the Judicial Appointments Commission. An acting chamber president will be appointed by the senior president of tribunals under his powers in the Act until an appointment can be made.
Each of the transfer orders provides for the transfer of existing judges and members to the first-tier tribunal or upper tribunal as appropriate, which is essential for ensuring that a good service is maintained and existing specialist expertise is protected. The provisions of the Act mean that judges and members can be invited to sit in another jurisdiction within the tribunal to which they have been transferred, but that will happen only if the individual has the necessary qualification, is acceptable to the chamber president and has undertaken any necessary training, and if there is a business need.
Rules for the general regulatory chamber will be made by the tribunal procedure committee, which was created under the Act. The committee is chaired by a Lord Justice of Appeal, Lord Justice Elias, and includes representatives from a number of organisations, including the Administrative Justice and Tribunals Council, the Bar Pro Bono Unit and the Free Representation Unit. The rules are made with the agreement of the Lord Chancellor and laid before Parliament under the negative resolution procedure. Rules for the upper tribunal administrative appeals chamber are also made by the tribunal procedure committee and replace existing functions for the transport tribunal.
Transitional provisions in each of the orders ensure that cases currently being heard by the transferring tribunals will not be adversely affected by the transfer. A hearing that has commenced but not completed will be completed by a panel comprising the same members. Directions and orders made by a transferring tribunal prior to each of these orders coming into force will continue in force as if they were directions or orders of the first-tier tribunal or upper tribunal, as appropriate.
I turn to the detail of each order. I will take the consumer credit appeals tribunal and estate agents appeal panel together. Article 2 of the Consumer Credit Appeals Tribunal Order 2009 and the Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 transfers the jurisdictions in their entirety to the first-tier tribunal and abolishes the consumer credit appeals tribunal and the estate agents appeal panel.
Article 3 of both orders provides for members of the tribunal and panel to be transferred to hold offices in the first-tier tribunal and, in the case of the president of the consumer credit appeals tribunal, in the upper tribunal.
Article 4 of the consumer credit appeals tribunal order 2009 and Article 5 of the Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 provide for consequential amendments to and repeals and revocations of primary and secondary legislation, and transitional and saving provisions. These are set out in full in the schedules.
Article 4 of the estate agents appeal panel order adds the London service permits appeals panel to the table in Part 4 of Schedule 6 to the Tribunals, Courts and Enforcement Act 2007. That brings the London service permits appeals panel within the scope of the Lord Chancellor’s power to transfer tribunal functions to the first-tier tribunal or the upper tribunal. The functions of the panel are transferred to the first-tier tribunal in the transport tribunal order.
I move now to the draft Transfer of Functions (Transport Tribunal and Appeal Panel) Order 2009. Article 2 transfers part of the jurisdiction of the transport tribunal to the first-tier tribunal and part to the upper tribunal. That is in line with our proposals in our consultation Transforming Tribunals in 2007. The jurisdiction to hear appeals from decisions of traffic commissioners transfers to the upper tribunal administrative appeals chamber.
Traffic commissioners are in effect an appeal body when they make a decision in cases that can be appealed to the transport tribunal and, in that capacity, are subject to the oversight of the Administrative Justice and Tribunals Council. It is therefore more appropriate to transfer appeals against decisions of traffic commissioners to the upper tribunal, to preserve the current status of the transport tribunal as a superior court of record when dealing with these types of appeals. The remaining jurisdiction transfers to the first-tier tribunal and generally deals with appeals from the Driving Standards Agency. Such appeals are appropriate for the first-tier tribunal, given its first-instance jurisdiction. Appeals to the London service permits appeals panel are also transferred to the first-tier tribunal.
Unlike most other transfer orders, this order does not abolish the transport tribunal, as it is necessary to retain the tribunal to hear appeals under the Transport (Scotland) Act 2001. As a devolved matter, that function of the transport tribunal cannot be transferred in the order. An amendment by way of primary legislation is needed before that can be achieved. The Scottish Government will consider whether they wish to transfer the appeal route in the Transport (Scotland) Act 2001 to the upper tribunal when an appropriate legislative opportunity becomes available.
Additionally, the transport tribunal will retain jurisdiction to hear appeals in relation to quality contract schemes introduced by the Transport Act 2000, as amended, which have yet to be brought into force. We are unable to transfer those provisions at this time as no decision has been taken on where the appeal should lie. A decision will be made after a forthcoming consultation has considered responses to the question. We intend to make an order transferring the functions of the transport tribunal in relation to quality contract schemes as soon as we are able, following completion of the consultation. A separate order will provide for this jurisdiction to be dealt with in the general regulatory chamber of the first-tier tribunal or the administrative appeals chamber of the upper tribunal, as the case may be, and for onward appeals from the first-tier tribunal in this jurisdiction to be heard in the administrative appeals chamber of the upper tribunal.
Article 3 of this order provides for judges and members of the transport tribunal to be transferred to hold offices in the upper tribunal. Since all members of the London service permits appeals panel are also members of the transport tribunal, there is no need to transfer the members of that panel separately. Article 4 provides for consequential amendments to, and repeals and revocations of, primary and secondary legislation, and transitional and saving provisions. Those are set out in full in the schedules.
I turn to the transfer of the charity tribunal. The jurisdiction will be transferred in part to the general regulatory chamber and in part to the finance and tax chamber of the upper tribunal. Cases will be heard in the first-tier tribunal except where it is decided by or under tribunal procedure rules that the upper tribunal is better suited to hear a particular case—for example, where the case raises complex or unusual issues or its importance merits it being dealt with in the upper tribunal, which is a superior court of record and can set precedent.
Onward appeals from the charity tribunal are currently dealt with by the Chancery Division of the High Court. Onward appeals from the first-tier chamber will be dealt with in what is currently the finance and tax chamber of the upper tribunal. This chamber is headed by a judge from the Chancery Division, and other Chancery Division judiciary may sit in the chamber alongside upper tribunal judges. To reflect the extended remit of the chamber, it will be renamed as the “tax and chancery chamber” in the amendment to the chambers order that I referred to earlier. Onward appeals from the tax and chancery chamber, as with other chambers of the upper tribunal, are direct to the Court of Appeal.
I turn to the detail of the order. Article 3 provides for members of the tribunal and panel to be transferred to hold offices in the first-tier tribunal and, in the case of the president of the charity tribunal, in the upper tribunal. Article 4 of the order provides for consequential amendments to, and repeals and revocations of, primary and secondary legislation, and transitional and saving provisions. These are set out in full in the schedules.
The Government are committed to the ongoing transformation of our tribunals, placing the user at the very heart of the service. The unified system will have greater flexibility in absorbing new work and responding to fluctuations. The orders that I bring before the Committee today are another significant step towards achieving this. I commend these draft statutory instruments to the Committee. I beg to move.
I will be brief. I thank the Minister for introducing these four orders. We have had a number of transfer of functions orders over the past few months, some of which—for example, those dealing with war pensions—were somewhat more controversial than others. These come at the bottom end of the scale of controversy; in fact, there is very little controversy in them as they build on the original report by Sir Andrew Leggatt, Tribunals for Users, and the subsequent 2007 Act. I have two or three questions. First, will there be yet more orders in due course? He referred to legislation that has not yet been brought into force. When decisions are made on that under the Transport Act 2000, presumably that will mean more such orders. Is most of the new set-up in place, or in due course will yet more orders come in?
Secondly—I really ought to be able to remember this from whatever assurances the Government gave at the time of the 2007 Act, or when Sir Andrew Leggatt’s report originally came out—but presumably the department will make savings as a result of this streamlined system of tribunals. What estimate did the Government make of those savings at the time of the 2007 Act? Are they on target to meet those savings when all this comes into effect?
Finally, as the Minister made clear, and as is made clear by the Explanatory Memorandum, the transport tribunal will remain in place when dealing with two matters, the first of which concerns Scotland. It is for the devolved Parliament to decide whether to abolish it or whether we shall continue with different systems in different countries, as we have with war pensions. As paragraph 7.7 of the Explanatory Memorandum makes clear, it will remain in place until Sections 127A, 131E, 131F, 132, 132A and 132B of the Transport Act 2000 come into effect. When exactly were all those sections originally enacted, and when might they be brought into effect? Since they have letters behind them, I imagine that some were not part of the original 2000 Act. I am just interested in view of the amount of legislation that comes from the Government, particularly the Ministry of Justice, which is enacted but then not brought into effect. I hope that the Minister can answer those questions.
I do not rise to confuse the Minister. I have not been transferred from what I still refer to as the Department of Trade and Industry to be shadow spokesman for the Ministry of Justice; it is just that sometimes one does one’s duty. Generally, my party supports this order, as does the noble Lord, Lord Henley. We have supported the reform of the tribunal system through another place, if for no other reason than that it seemed to us, and indeed the Government, slightly strange to have a system under which there was a whole series of tribunals that were responsible for monitoring the decisions of government departments, but the government department was responsible for monitoring what the tribunal was doing. In any sensible world, that would not be sensible. For that reason, above others, we have supported these reforms. I have three points to raise with the Minister.
First, as the Minister will know from his time on trade and industry matters, I have asked this about endless statutory instruments that have been brought forward in this area. I find it very difficult to keep track of what the department is now called, so I continue to refer to it as trade and industry matters. The Government are very good at entering into consultation—much better than many other Governments have been before bringing in such instruments, or indeed legislation. We always get a document that tells us—as this one does at paragraph 8.1—that the Government have consulted and received 140 responses. As I think one of my honourable friends in another place said, it would be very interesting if the Government, in responding to the consultation, could indicate, first, what changes were made to the orders as a result of the consultation; and, secondly, what important points were made by those who were consulted but not taken on board by the Government? I know that this is quite a complicated issue but I always ask this about these orders in the hope that one day the Explanatory Memorandum will set out the arguments for and against, and why the Government rejected them.
Secondly, the transport tribunal stays in existence, notwithstanding these changes. I think the noble Lord, Lord Henley touched on this. I understand that the difficulties, which I gather have been referred to as the “floating in limbo” provisions of the Transport Act, still need to be resolved. The more important issue, which I think is unclear, is of how the Government envisage dealing with the Scottish issue. Does this mean that primary legislation must take place in Scotland? Must it take place in the UK? Wherever it takes place, when do the Government think that it will occur?
The third issue that I want to raise, which the noble Lord, Lord Henley, did not, was raised by his honourable friend the MP for North West Norfolk in another place, and I thought it was a very good point. Could some indication be given of the basis on which certain matters are referred to a first-tier tribunal and others to an upper tribunal? Is it to do with levels of judicial expertise? If so, yes; if not, why not?
I thank noble Lords for their support. The noble Lord, Lord Henley, asked what further transfers were planned. Subject to parliamentary approval, further transfers into the general regulatory chamber are planned for January 2010 when we will transfer the jurisdictions of the gambling appeals tribunal, the immigration services tribunal, the adjudication panel for England, the information tribunal and the claims management tribunal to the first-tier tribunal general regulatory chamber. Draft rules for the general regulatory chamber have been proposed by the Tribunal Procedure Committee and a public consultation has recently closed.
Also in 2010 we plan to transfer the Family Health Services Appeal Authority to the first-tier tribunal health, education and social care chamber and the pensions regulatory tribunal and financial services and markets tribunal into the finance and tax chamber of the upper tribunal. The Tribunal Procedure Committee will shortly be consulting users of these tribunals to assess whether amendments to procedure rules will be required when they transfer in.
In May we announced plans to transfer the work of the asylum and immigration tribunal in 2010 and set up the first-tier tribunal and upper tribunal chambers for immigration and asylum. The Tribunal Procedure Committee will be consulting on rules for the upper tribunal chamber and will modify the existing AIT procedural rules and fast-track rules so that they apply for proceedings in the first-tier chamber. After this set of transfers, we will consider how best to transfer the remaining tribunals, many of which have few or no cases.
The reason for setting up the unified tribunal system was to provide a better system for users and was not, therefore, primarily a cost-saving measure. Moreover, the regulatory impact assessment for the Tribunals, Courts and Enforcement Act 2000 did not identify any additional costs from setting up the first-tier tribunals and upper tribunals. However, it is expected that the new structure will facilitate improved use of resources as well as offering greater flexibility in absorbing new work and responding to fluctuations, which will lead to savings in the longer term.
As to when the provisions will be brought into effect, the transport tribunal retains jurisdiction for tribunals relating to the quality contract scheme under sections—and there are an awful lot of sections—of the Transport Act 2000, as amended, which have yet to be brought into force and, as yet, no decision has been taken on whether the appeal should lie to the first-tier tribunal or the upper tribunal. There will be further consultation on this by the Department for Transport and a further transfer order will be laid before Parliament following completion of that consultation. It will be brought into force after consultation is concluded. The consultation is planned to be published shortly.
As regards the Government’s consultation regarding tribunals and the response to it, 48 respondents thought that the proposed allocation of jurisdictions was correct. Of the 19 who disagreed, three respondents commented on the mental health review tribunal, one on the information tribunal and a few respondents disagreed on the proposals for the tax credit appeals tribunal. Seven respondents commented on the proposals for the pension appeals tribunal and these concerns were met during the debates on the transfer of this tribunal. Of relevance to today’s transfers were the comments provided by two respondents, who thought that the consumer credit appeals tribunal and estate agents tribunal should be in the upper tribunal on the basis that they dealt with issues similar to those of the financial services and markets tribunal. The Government rejected these arguments on the basis that the level of complexity and breadth of the issues dealt with by the financial services and markets tribunal was not replicated in either the consumer credit appeals tribunal or the estate agents appeals panel. The Government have considered and listened carefully to all respondents’ comments and have responded accordingly where concerns have been raised.
As to when the transport tribunal will be abolished—in other words, when are we going to solve the Scottish question?—we are unable to provide an exact timetable, given the legislative amendments needed, but we plan to do so as soon as we are able. In respect of the devolved matter, a suitable legislative vehicle will need to be found to amend the Transport (Scotland) Act 2001 or the Tribunals, Courts and Enforcement Act 2007. This could be done directly by the Scottish Government or in Westminster with their agreement.
On the question of what goes where, my relatively simple understanding—I will write if I get this wrong—is that most matters from first appeal will go to a first-tier tribunal. The big exception is the traffic commissioner, because the appeal was to the commissioner in the first place. In that case, it goes directly to the upper tribunal. Appeals from the first-tier tribunal—shall we start again on this bit, now that I have a script? The jurisdiction to hear appeals to decisions of the traffic commissioner transfers to the upper tribunal. Traffic commissioners are, in effect, an appeal body when they make a decision in cases that can be appealed to the transport tribunal. In this capacity, they are subject to the oversight of the Administrative Justice and Tribunal Council. It is therefore more appropriate to transfer appeals against decisions of the traffic commissioners to the upper tribunal, which preserves the current status of the transport tribunal as a superior court of record when dealing with these types of appeal.
The remaining jurisdiction transfers to the first-tier tribunal and generally deals with appeals from the Driving Standards Agency. Such appeals are appropriate for the first-tier tribunal, given its first-instance jurisdiction. In other words, the first tier will normally deal with first-instance jurisdiction and the upper level will hear appeals for the first level, but in some areas particularly complex or important cases will go directly to the upper tribunal. The issue is that, it being a superior court of record when dealing with these types of appeal, it can create precedent.