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Lord Goodhart: I am afraid that I have to criticise Amendment No. 29, because there is a serious technical problem. It is that in a two-member tribunal the chairman can always secure that the decision goes the way that he or she wants it to. One may well find a situation where the second member of the tribunal will say, "Well, what on earth am I doing here?", because the chairmen can always decide it in the way that they want to.

That circumstance reminds me of what President Lincoln once said when he put a proposal to his cabinet which unanimously rejected it. He took a vote and he said at the end:

In a less extreme way the principle is the same here, because the second member of the tribunal can play no possible part in the taking of the decision. Surely, in those circumstances the only proper course is to do what is done in a two-member Court of Appeal. In the great majority of cases before a two-member tribunal, the two members will be able to agree. But where the only two members of a tribunal disagree, surely the proper course is to adjourn the case and bring it forward again before a three-member tribunal. That may involve an element of delay, but it is the only fair and proper way of dealing with the situation.

The same problem does not arise with Amendment No. 65 because a tribunal of several social security commissioners is brought together to decide a question of particular difficulty. The minimum size of such a tribunal is three. It follows that the minimum size for an even numbered tribunal is four. In those circumstances, the chairman is not in a position to decide the case exactly as he likes against the opposition of all the other members of the tribunal. I accept that a casting vote would be a proper way of proceeding.

However, Amendment No. 29 is not appropriate. Perhaps the noble and learned Lord will withdraw his amendment tonight, take it away and think about it, and return at the Report stage with another proposal.

Lord Hardie: As the noble Lord, Lord Goodhart, observed, in practically all cases of two-member tribunals there will be agreement, just as there is in the court. I do not share his pessimism about the feeling of the second member who is outvoted. One would anticipate that before a division of opinion there would have been a full discussion of views as between the two members. One must assume that the members, having been chosen in the way we have described, are not unprincipled and will be acting in good faith, expressing genuine views based on their own assessment of the evidence before them.

In the context of assuring that cases are determined properly and reasonably expeditiously, it is my view that it is appropriate to give to the chairman of a

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two-member tribunal a casting vote to use on the extremely rare occasions when there is likely to be a division of opinion. In those circumstances--

Lord Archer of Sandwell: I am grateful to my noble and learned friend for giving way. The point made by the noble Lord, Lord Goodhart, may not apply to many cases. It is probable that the two members of the tribunal will agree in the majority of cases. In that case, there is no problem. Inevitably, however, there will be cases when the two disagree. We have all encountered courts and tribunals consisting of two members where there has been a disagreement. The point which the noble Lord makes is that when that happens, however infrequently, there should be some provision to deal with it. If not, the second member of the tribunal has no part in the decision-making process. It would not be difficult to make appropriate provision in those few cases.

Lord Hardie: I am grateful to my noble and learned friend for his intervention. In that situation, the chairman of the tribunal, like any other chairman, will be in a position of authority--

Lord Goodhart: A dictatorship.

Lord Hardie: With respect, it is not a dictatorship because, prior to the point of voting, the members of the tribunal will have discussed the case fully and each will have tried to persuade the other of the correctness of his views. I do not see that that is any different from any other situation where there are two people who must make a decision, or an even number of people who must make a decision.

Lord Goodhart: I am grateful to the noble and learned Lord for giving way. But as I tried to point out, that is exactly the situation which may arise if we have, in the English legal system, a two-member Court of Appeal or a two-member Divisional Court. In that case, the senior member of the court does not have a casting vote. When a difference arises--and it arises only rarely and usually in relation to an important issue--the matter is adjourned so that it can be brought back before a three-member tribunal. That is surely the appropriate way of dealing with the matter.

Lord Hardie: I am not persuaded by the arguments advanced by the noble Lord and my noble and learned friend. However, having said that, I appreciate the strength of feeling and I shall reflect on the matter. But that will be in the same spirit as the reflection which I mentioned earlier. There is no guarantee that we shall not return on Report with an identical amendment. Therefore, I shall withdraw Amendment No. 29 at this stage.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

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Lord Archer of Sandwell moved Amendment No. 31:

Page 4, line 29, leave out ("may") and insert ("shall").

The noble and learned Lord said: This is an amendment to provide not that there may be regulations but that there will be regulations. Clause 8 deals with the constitution of appeal tribunals, as we have just been reminding ourselves. Therefore, we might expect to find there specific guidance as to how they are to be comprised and as to their procedures and, in the light of the debates which have just taken place, who is to allocate a specific tribunal for a particular case.

It has been mentioned already in our debates, and it was certainly mentioned by Judge Bassingthwaighte in his memorandum, that there is a danger of a reference to the European Commission on Human Rights in this regard on the ground that the tribunal is constituted not by law but by the administrative decision of a government employee.

My noble friend Lady Hollis was kind and courteous enough to write to me to indicate some of the department's thinking on this question. I am grateful to her for setting out the proposals so clearly, although I am rather troubled by the number of detailed questions which are apparently still under consideration.

It seems that there will be rules indicating which categories of appeal will be allocated respectively to single-member, two-member and three-member tribunals and which cases may be allocated to a single member without legal expertise. Apparently those rules are still in the process of being worked out. I understand that. But two matters have already emerged. The first, as I understand it--and I believe it was rather inconsistent with something which my noble and learned friend said in one of our earlier debates--is that, if what is said in the letter is correct, something over half the total of appeals are likely to be heard by two-member tribunals. If I have misunderstood that, then of course, I shall be corrected. My noble friend is busily shaking her head. I am quite willing to be corrected.

11 p.m.

Lord Hardie: It is my understanding that about three-quarters of the hearings will be by three-member tribunals.

Earl Russell: If the noble and learned Lord will forgive me for intervening, perhaps I may ask for some clarification in that respect. The noble and learned Lord has just mentioned "three-quarters". Does that mean that there is a quota system regardless of the content of the appeals? If so, that might cause concern.

Lord Hardie: There is no quota system. I was merely giving an estimate of what I understand from my noble friend would be the position.

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Lord Archer of Sandwell: I was simply quoting from my noble friend's letter which says:

    "Our initial work indicates that more than half of all appeals are likely to be heard by two-person tribunals, with around a quarter falling to one-person and three-person tribunals respectively".
I am not trying to make a debating point. If that is a mistake, I am perfectly willing to be corrected. However, that is what the letter says. If that is the position, I would find it slightly worrying. Perhaps that can be sorted out at a later stage.

I said that two matters appeared to have emerged out of the situation. I have indicated the first, but the second refers to the composition of the tribunal in any specific case. The letter says that that will come from a database operated by administrative staff. That, in itself, raises some further questions. How senior will the staff be and how tightly will the criteria be drawn? I understand that those criteria, and the other matters referred to in the subsection, are likely to be embodied in regulations. I believe that my noble and learned friend confirmed a few moments ago that those regulations will be subject to the affirmative procedure. I see that he is nodding his head in agreement; that certainly gives me a high degree of reassurance.

If my noble and learned friend can assure us in that respect, it would go some way towards alleviating our anxieties. But there remains the dominating question; namely, if there are to be regulations dealing with such matters, why not write rather more of the detail into the Bill? If it is intended that those regulations "shall" happen, why provide that they "may"? Many people have deep anxieties about this whole subject. I believe that some of those anxieties are well founded at present. However, where those people do not need to worry, why not make it clear? I beg to move.

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