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


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.

Earl Russell: 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

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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?

Lord Hardie: 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]:

Lord Hardie 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.

The Deputy Chairman of Committees (Lord Brougham and Vaux): 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.

Baroness Anelay of St. Johns 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,

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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

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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

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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.


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