Considered in Grand Committee
In moving this order, I shall speak also to the other two Motions standing in my name on the Order Paper.
The orders transfer the jurisdictions of the gambling appeals tribunal, claims management services tribunal, information tribunal, immigration services tribunal, adjudication panel for England, financial services and markets tribunal, pensions regulator tribunal, family health services appeal authority and the asylum and immigration tribunal into the unified tribunal structure created by the Tribunals, Courts and Enforcement Act 2007—the 2007 Act.
As noble Lords will recall, Sir Andrew Leggatt’s review, Tribunals for Users: One System, One Service, led to the creation by the Government of the Tribunals Service in 2006, and this was followed by the Tribunals, Courts and Enforcement Act 2007. The 2007 Act provided for the first-tier tribunal and upper tribunal, creating a unified appeal structure.
These orders form a further part of a series of tribunal transfers into the unified appeal structure under the 2007 Act, which commenced in November 2008. This has since been followed by subsequent transfer orders in 2009.
I shall deal, first, with the draft Transfer of Tribunal Functions Order 2009. It provides for the transfer of the gambling appeals tribunal, adjudication panel for England, claims management services tribunal and immigration services tribunal into the general regulatory chamber of the first-tier tribunal. This chamber commenced work on 1 September 2009 and the functions of these tribunals are already allocated under the existing chambers order.
The order also provides for the transfer of the information tribunal into the first-tier tribunal—general regulatory chamber—and the upper tribunal, with the question as to which one of them is to exercise the functions in a particular case being determined by or under the tribunal procedure rules. Appeals from all these jurisdictions will be heard in the administrative appeals chamber of the upper tribunal.
The jurisdiction of the family health services appeal authority is transferred to the first-tier tribunal—health, education and social care chamber. A separate order, which is subject to the negative resolution procedure, will amend the existing chambers order to assign the functions of this tribunal to the chamber.
The transfer of the family health services appeal authority, as well as the tribunals transferring into the general regulatory chamber, is to take effect on 18 January 2010.
The jurisdiction of the financial services and markets tribunal is transferred to the upper tribunal and the former tribunal is abolished. An amendment to the chambers order will provide for the former jurisdiction of the financial services and markets tribunal to be dealt with by the tax and chancery chamber of the upper tribunal.
The jurisdiction of the pensions regulator tribunal in Great Britain is transferred to the first-tier tribunal and the upper tribunal. Currently, that jurisdiction arises under the Pensions Act 2004, and amendments to that Act made by the order provide that those cases will be heard by default in the upper tribunal. An amendment to the chambers order will provide for those cases to be dealt with by the tax and chancery chamber of the upper tribunal.
The pensions regulator tribunal in Great Britain and the financial services and markets tribunal transfer into the unified structure with effect from 6 April 2010 to coincide with the start of the financial year. In all cases, the tribunals are abolished and the existing judges and members are transferred into the first-tier tribunal or upper tribunal as appropriate. This is essential for ensuring that a good service is maintained for users and existing specialist expertise is protected.
The amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009 adds the Asylum and Immigration Tribunal to the list of tribunals that are transferable into the unified structure created by the 2007 Act. The transfer of the Asylum and Immigration Tribunal was consulted on for 12 weeks from August 2008. The majority of consultation respondents were in favour of the transfer and, on 8 May 2009, it was announced that the tribunal would transfer as proposed.
The Transfer of Functions of the Asylum and Immigration Tribunal Order 2009 provides for the transfer of the Asylum and Immigration Tribunal into the first-tier tribunal. The transfer will take effect on 15 February 2010. Appeals from the immigration and asylum chamber of the first-tier tribunal will be heard in the upper tribunal. A separate order, which is subject to the negative resolution procedure, will amend the existing chambers order to establish an immigration and asylum chamber of the first-tier tribunal and an immigration and asylum chamber of the upper tribunal, and assign functions to the chambers as appropriate.
Again, in common with previous transfer orders, transitional provisions ensure that cases currently being heard by the transferring tribunals will not be adversely affected by the transfer. 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 the orders. Articles 1, 2 and 3 of the draft Transfer of Tribunal Functions Order 2009 provides for the abolition and transfer of each tribunal into the unified structure on the dates outlined above. All the tribunals are transferring into chambers within the first-tier and upper tribunal that have already been created and are currently in operation. Article 4 of the order provides for existing judges and members of each tribunal to be transferred to hold offices in the first-tier tribunal and in the upper tribunal as appropriate. Article 5 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 Amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009 amends Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 by adding the Asylum and Immigration Tribunal to the list of tribunals that are transferable into the unified structure as created by the 2007 Act. Following on from that order, Article 2 of the draft Transfer of Functions of the Asylum and Immigration Tribunal Order 2009 transfers jurisdiction of that tribunal into the first-tier tribunal in its entirety and abolishes the Asylum and Immigration Tribunal.
Article 3 of the order provides for immigration judges of the Asylum and Immigration Tribunal to be transferred in as first-tier tribunal judges, and for designated immigration judges of the Asylum and Immigration Tribunal to be transferred in as first-tier tribunal judges and deputy judges of the upper tribunal. Senior immigration judges and non-legal members are transferred in as judges and members of the upper tribunal respectively.
Article 4 of the order provides for the current Asylum and Immigration Tribunal (Procedure) Rules 2005 and the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 to transfer to the immigration and asylum chamber of the first-tier tribunal and to have effect as if they were tribunal procedure rules upon commencement, as mentioned earlier. I confirm that the power to make procedure rules for this chamber will in future lie with the Tribunal Procedure Committee.
The Tribunal Procedure Committee was created under the Act and is chaired by a Lord Justice of Appeal—currently Lord Justice Elias—and includes representatives from a number of organisations, including the Administrative Justice & Tribunals Council, the Bar Pro Bono Unit and the Free Representation Unit. Noble Lords may be aware that we had originally proposed that the procedure rules for immigration and asylum should continue to be made by, and under the ownership of, the Lord Chancellor. However, following consultation on this we have decided that it is appropriate that this power should rest with the Tribunal Procedure Committee.
Article 5 of the order provides 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 and include the revocation of Section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which inserted Sections 103A to E into the Nationality, Immigration and Asylum Act 2002. Those sections of the Nationality, Immigration and Asylum Act 2002 established the higher court review and reconsideration process following an appeal to the Asylum and Immigration Tribunal.
The schedules also provide for the revocation of Part 2 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which established the higher court filter review and reconsideration process. This process enabled a disappointed party, following an appeal to the Asylum and Immigration Tribunal, to apply to the tribunal for reconsideration of its decision. If the tribunal decided not to reconsider its decision, the party could then go to the higher courts to seek an order for reconsideration. This will be replaced by the onward appeals process provided by Section 11 of the TCE Act, whereby initial appeals will be dealt with by the first-tier tribunal and the reconsideration process will be replaced by onward appeals to the upper tribunal. Those wishing to appeal to the upper tribunal will be required to seek permission to appeal from the first-tier tribunal in the first instance. Where the first-tier tribunal refuses to grant permission, a party may then apply for permission directly to the upper tribunal. We will, however, maintain the current bar on onward appeals against procedural, ancillary, preliminary or interlocutory decisions and decisions on bail applications. We will be bringing forward an excluded decisions order under Section 11(6) of the TCE Act for this purpose.
The Government are committed to ongoing transformation of our tribunals, placing the user at the heart of the service. The unified system will have greater flexibility in absorbing new work and responding to fluctuations. The order before the Committee today is another step in achieving this process. I commend the draft statutory instruments to the Committee.
My Lords, again I thank the noble Lord, Lord Tunnicliffe, for such a detailed explanation of these orders. I do not know whether he was using the same speech as was used in another place when these orders were taken—I am not even sure whether they have been taken in another place—but I noticed that he referred to us as “honourable Members” rather than “noble Lords”. So it possibly was lifted from another place.
We have dealt with a number of these transfer of tribunal function orders over the past few months, some of which were controversial—the noble Lord will remember when we were dealing with war pensions—and some of which were negative orders, as the noble Lord pointed out. Are these the last of the transfer of function orders to be brought forward under powers created by the Tribunals, Courts and Enforcement Act 2007? In dealing with that point, given the difficulties of dealing with secondary legislation, would it not have been possible for these to have been brought together into one order on which we could have had one simple debate and got it over at once?
That point is underlined by the amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009. Again, would it not have been possible to get all these matters right at once, rather than bringing forward an amendment as early as this? I hope the Minister will give an assurance that we will be able to deal with these matters in a more felicitous manner in the future. A raft of orders going through in this manner is not the easiest of way of dealing with the issue and, to some extent, brings the process of secondary legislation into disrepute. Having said that, we welcome the range of tribunals—the gambling appeals tribunal, the claims management services tribunal, the information tribunal, the immigration services tribunal, and so on—that are moving over and we wish them well under the new system.
I am grateful to the Minister for his statement. We have always supported the concept of the tribunals being unified into one body, and the division into a lower or first tier and an upper tier has been very acceptable. We welcome, in particular, the transfer of the Asylum and Immigration Tribunal into its own chamber of the first-tier tribunal. That is a very good step. One reason that we welcome it is that the previous tribunal had procedures which favoured the Home Office over the applicant. I noted that the Minister said that the applicant—I think that he meant the applicant—was to be placed at the centre of the new tribunal procedures. I hope that that is right and that his rights are considered.
Having regard to the unsatisfactory nature of the procedural rules in the old system, we also welcome the fact that the procedural rules are now to be put in the hands of the Tribunal Procedure Committee. When the consultation paper, Immigration Appeals: Fair Decisions; Faster Justice, was published by the UK Border Agency in 2008, it asked for comments on the rule-making powers for the new chamber. As a result of representations made to it, the border agency decided that the Lord Chancellor would no longer make and amend the procedure rules but that the Tribunal Procedure Committee would have that job.
The Tribunal Procedure Committee has consulted on draft rules which it has promulgated, and the Immigration Law Practitioners’ Association has responded in a document dated 23 November 2009. It raises certain very serious issues, and I should like to have a response one way or the other on some of them. It mentions reporting determinations, which I do not need to follow up on, but it also refers to evidence in the upper tribunal, the European Court of Justice and fast-track provisions. It makes some very worthy comments and I shall read the Government’s response to its submission in due course.
However, ILPA also states that, whereas previously there was a case management review hearing, nothing in the draft rules that are now promulgated maintains that hearing. It is a hearing of great advantage in determining what issues the tribunal has to determine. There has been no consultation on abandoning case management review hearings. There is undoubtedly concern that, for many years, applicants and appellants have faced endemic and systemic obstacles in persuading the Home Office to disclose its case on the relevant issues with sufficient clarity and sufficiently in advance. There are a number of aspects to that, but basically the problem is that presenting officers are told that they can change the basis of the Secretary of State’s decision, including raising new matters, without reference to the original decision-maker, so long as notice is given. That is to say that the applicant will receive reasons for the refusal of his application, but they can be changed by the Home Office when the matter goes on appeal.
The Home Office has said that, as a matter of policy, the “reasons for refusal” letter will not necessarily identify all matters that the Secretary of State for the home department proposes to raise at the hearing, and that new issues may well be raised much less than 48 hours before the hearing, including at the hearing itself. It is fundamental, and contrary to basic justice, that a person bringing an appeal against a decision based on particular reasons should know, and know plenty of time in advance, if those reasons are to be fiddled about with and changed to the advantage of the Home Office. If that system has become, as ILPA says, the practice in the old tribunal, I hope that when this comes before the first-tier or upper tribunals we will not have a similar system in operation, whereby reasons can be changed at any moment, even up to the hearing itself. That is one aspect that I would like some response to, not necessarily now but certainly in due course. I want to hear from the Home Office why it has had this practice in the past and whether it will persist with it in the future.
The other matter about which ILPA has considerable concern is that the draft practice directions that have been put forward do not include the provisions that exist with respect to children and vulnerable adult witnesses. Children involved in asylum appeals are likely to have experienced serious physical and psychological harm and ILPA considers that their treatment should be addressed by a further practice statement in the immigration and asylum chamber of both tribunals. This matter is the subject of a Private Member’s Bill coming before your Lordships shortly, dealing with the United Nations Convention on the Rights of the Child. It is very important when we are dealing with practice rules for a new tribunal and for a new procedure that the articles of the United Nations Convention on the Rights of the Child should be followed, so that, in all decisions affecting children, whether directly or indirectly, the tribunal must ensure that its procedures satisfy the highest standards in relation to children’s rights. We all know of the detention of children that is taking place in the Yarl’s Wood detention centre in asylum cases; that is highly unsatisfactory. Concern for children should apply to all judicial administrative hearings.
The new procedure rules, when they are produced, should be flexible in order to give positive effect to the rights of children in terms of their immediate and longer term best interests, principles of non-discrimination and effective participation rights. Such practice directions exist in the Family Division of the High Court and in the criminal courts, and it is essential that they apply in asylum and immigration cases. I hope the Minister will be able to give me some satisfaction, either now or at some later stage, that these principles will be followed in the practice rules put forward by the tribunal. Having said that, we do not object to these orders and will not oppose them.
My Lords, I apologise for using an inappropriate form of address. I shall scrutinise my speeches with even more care in the future to make sure that does not happen. I had the same thought as the noble Lord, Lord Henley—can there be any more of these orders? We are considering how best to transfer the remaining tribunals, many of which have few or no cases, and will do so when the benefits for users and the Tribunals Service can be gained. We have one further appeal to consider under the Transport Tribunal, which was not transferred, and I will consider when to bring this forward. Are they the last? I think the answer is that they are almost the last. I share the noble Lord’s reaction.
Would it not have been possible to have put all the transfers into one order? A large number of tribunals have been transferred. Perhaps it is slightly unfair to call it a messy system, but this Act addressed a very diverse system, and it has been appropriate to do this in phases, with more than one order, to ensure that the system could properly support the transfers.
The points raised by the noble Lord, Lord Thomas, seem to be generally welcoming. I did say the systems were designed to bring the applicant to the centre of the system. As he pointed out, we responded to consultation and transferred the rule-making process from the Lord Chancellor to the Procedure Committee. I think the noble Lord was responding, in a sense, to a Procedure Committee consultation of 21 November, and I acknowledge the importance of the points he made. Equally, given their importance, it would be much more satisfactory if I were to respond to them in writing, which would give officials and Ministers time to consider his points in some depth.