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Baroness Blatch: I smile a great deal across the Dispatch Box, but the noble Lord has not been in the Chamber enough to see that.

Lord Harris of Greenwich: I do my best to study the features of the noble Baroness because that always gives me great pleasure but, unhappily, not on this occasion.

The Minister dodged answering the specific question from my noble friend about the statement made by the noble Lord, Lord Waddington. The Minister may recall

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that the noble Lord, Lord Waddington, happened to hold the office of Home Secretary for a substantial period of time. May I ask her now whether she will reply to the question? On that occasion, the noble Lord, Lord Waddington, said that the Government were contemplating doing precisely what the Government are apparently now doing; namely, saying that in a number of cases the appeals should be carried out solely on the basis of the papers, without the appellant being present. If that was the position of the Government on that occasion and the Government then decided not to proceed, the question that arises is: why did they change their mind on that occasion and why do they appear to have changed their mind yet again? That seems to be an entirely reasonable question and I hope that the Minister will now reply to it.

The noble Baroness sometimes gives the impression that any criticism, however faint, about any action taken by the Home Secretary or any Minister is in some sense a grave breach of our constitution. Let me reassure her: we do not see things in quite that way. The noble Baroness should not be quite so sensitive when even the mildest points are made, as on this occasion.

Baroness Blatch: The noble Lord presses me to say why the decisions have changed. When speaking to the amendment, I said that we had had the benefit of the KPMG report. I also said that what has changed is that the decision and the discretion are given to the adjudicator. We think that that is absolutely right. I also plead in defence the fact that this is a democratic process. As the noble Lord knows, government is a dynamic. We base our thinking on the latest information available to us. The Lord Chancellor has seen fit to put his proposals out for consultation. They are now out for consultation and if the noble Lord is concerned about them, we hope that he will respond. The proposal is that the special adjudicator should be satisfied, having regard to the material before him, the nature of the issues raised, and the extent to which any directions given under rule 23 have been complied with, that the appeal could be so disposed of justly. It is the adjudicator who must make that consideration. It is the judgment of the adjudicator that it should be appropriate. As I have already said, if the adjudicator acted unreasonably, that would be subject to judicial review.

Earl Russell: Perhaps I may say this in clarification: I made no complaint at all about the Government changing their mind. That must happen. I merely wanted to know why they have changed their mind. I did not think that I was raising a major mystery, but I am now beginning to wonder whether I was.

Lord Avebury: I wonder whether the noble Baroness is aware that the draft procedural rules which she said had been issued by the Lord Chancellor are not available in the Printed Paper Office.

Lord McIntosh of Haringey: Perhaps I may return to Amendment No. 23, to adapt a phrase which I think has been used before. It is entirely legitimate for the Minister to quote from the KPMG report. We quote from reports from time to time when we think that

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appropriate. It is, however, somewhat curious that the noble Baroness should quote from that report and then have to admit that the Government have rejected the report's principal conclusion on this issue. After all, the KPMG report said, as I understand it, that all such hearings should be heard on the basis of the papers rather than orally.

My amendment does not propose any such thing. It states that no appeal should be heard on the papers unless the appellant has been,


    "given the opportunity to present evidence both orally and otherwise",

and has chosen not to do so. We are not talking about whether all appeals should be on the basis of oral hearings. We are talking about the opportunity for an appellant to seek an oral hearing if he desires to do so. If I caused confusion by the way in which I moved the amendment, I apologise; but I do not think that the contrast between us is as stated by the Minister. I was arguing that there should be an opportunity for an oral hearing. None of the Minister's arguments seems to address that issue--

Baroness Blatch: I think that I precisely addressed that issue. A very real difference between us is that if the amendment is accepted, the decision as to whether there should be an oral hearing would rest with the appellant. The KPMG report extensively catalogues the abuse of that procedure. We believe that it is right that an oral hearing should be considered, but the decision as to whether there should be an oral hearing should belong to the adjudicator, not the appellant.

Lord McIntosh of Haringey: Then we have correctly identified the difference between us because I certainly take the view that it should be the decision of the applicant for the reasons that I have outlined. Oral hearings produce different results from hearings on the papers and are self-evidently, I should have thought, superior to appeals held purely on the basis of the papers because of the possibilities of cross-examination and of eliminating misunderstandings. I should have thought that that was fundamental not just with regard to tribunals, as the Council on Tribunals recognises, but in all aspects of the law. Where there is conflict of this kind which has to be resolved by judicial or quasi-judicial means, there should be an opportunity for cross-examination and for the matter to be heard in person rather than on the papers alone.

I question whether by these measures the Government will achieve any significant reduction in delays. Surely when issues cannot be resolved on the spot, the adjudicator will seek adjournments in order to solve the discrepancies in the papers. It would be possible to say that an oral hearing should be held at relatively short notice and that there should be a limitation on the time taken for oral hearings. The Minister based her argument heavily on the number of adjournments that are necessary. I suggest that what she proposes--enforced written hearings on the papers alone--will increase the number of adjournments and delays rather than the other way around. The Minister did not seek to provide any evidence--I do not have any--of the

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number of cases in which applicants sought oral hearings. It would interesting to find out, if the proposal to have hearings on the papers alone were implemented, how many applications for oral hearings there would be. I suspect that neither of us knows. Therefore, we are not in a position to make a final judgment. Much to my regret, I suspect that what the Government propose will increase delays and injustice. This is a matter to which I am very likely to return at another stage.

Baroness Seear: Can the noble Minister tell us of any other case in which a matter of this importance can be dealt with by any court in this country without the person concerned having the right to appear in person?

Baroness Blatch: I understand that there are occasions when either the chairman of the tribunal or an adjudicator can make a determination without an oral hearing. I cannot give chapter and verse, and I will write to the noble Baroness.

Lord Winston: Surely the crucial issue is Britain's reputation for fairness and justice. Is that not the key to the whole question? It may not be seen to be a just decision if there is no possibility of making representations in person.

Baroness Blatch: I refer yet again to the proposal put out for consultation by my noble and learned friend the Lord Chancellor. He refers to directions given under Rule 23. It is only if the case can be disposed of justly that my noble and learned friend will not have an oral hearing.

I refer again to the KPMG report. Some of the practices that the parties employ to good effect to win adjournments, which are not treated robustly by all adjudicators, include: seeking multiple adjournments, especially in without foundation cases, where the longer the hearing can be delayed the more likely it is that the case will have to be treated substantively; introducing late evidence, even when there has been plenty of time to collect and submit documents, thus forcing an adjournment; and failing to turn up or to produce the appellants on the basis that they will be given a second chance at a later date, because few adjudicators will use their power to determine the matter on the papers. Even if adjudicators go ahead on the papers, the appellant has a fair chance of having the case remitted for an oral hearing by the tribunal. Those are just some of the abuses. We believe it is fair and proper, and should at least be given fair consideration--which is what my noble and learned friend the Lord Chancellor has done--to submit proposals that say that on the basis of a just disposal the adjudicator should have power to determine the appeal on the basis of papers rather than an oral hearing.

5.45 p.m.

Lord McIntosh of Haringey: I repeat that the Government are not only wrong in principle that oral hearings should be denied despite the wish of the applicant, as my noble friend Lord Winston has pointed out, but it is likely to be counter-productive. When the Minister goes on to quote evidence that has been

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adduced in favour of a policy which the Government have not accepted, I am confirmed in my view that it is a matter which deserves further consideration at a later stage, although I will not pursue it into the Division Lobby today.


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