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Lord Goodhart: 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.
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
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.
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.
Lord Archer of Sandwell: 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
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.
Earl Russell: 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
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.
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