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Baroness Anelay of St Johns: I should like to support the amendment moved so ably by the noble and learned Lord, Lord Archer of Sandwell. Indeed, as he asked at the end of his remarks, if there are to be regulations--and we have been told that there "shall" be--why should that not be spelt out on the face of the Bill? If the amendment were rejected and if Members of the Committee were to accept that regulations "may" be made, there would be a danger that we could fall into a limbo land of administrative convenience, whereby it could be more convenient not to make regulations which would make the allocation of cases more clearly open to review and to objection by others. To me, that would be a matter of great concern. The issues which the noble and learned Lord says must be laid down in regulations are all at the core of our concerns as regards the way in which the tribunals shall be run in the future.

Lord Goodhart: I, too, support the amendment. It seems absolutely clear that regulations under subsection (3) will have to be made. We really cannot have a tribunal system which does not have regulations as to the procedure to be followed on appeals. In those circumstances, I cannot see any possible reason why

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they should not be spelt out in the very simple way suggested by the noble and learned Lord, Lord Archer of Sandwell.

Lord Hardie: Before I respond to the amendment, perhaps I should correct something that I indicated earlier in relation to tribunals when I referred to three-quarters, one half, and so on. There seems to be some confusion about the percentages. I prefer to write formally to noble Lords so there is no doubt at all about the situation.

I can assure the Committee that it has always been the Government's intention to make regulations to provide for the matters referred to; namely, the composition of appeal tribunals; the procedure to be followed on proceedings before appeal tribunals; and the procedure to be followed for allocating cases among differently constituted tribunals. It may be helpful if I explain what we have in mind. First, the regulations detailing tribunal composition are to be made so that those operating the new, unified tribunal arrangements are clear about the appropriate use of medical, legal or other expertise.

Secondly, the regulations will outline the procedure which takes place on an appeal or an application before an appeal tribunal and will be supplemented by detailed guidance. Thirdly, the regulations will ensure that similar cases are allocated consistently to similar types of tribunals. Administrators responsible for arranging an appeal hearing will be able to seek legal advice if there is any doubt as to the appropriate constitution of a tribunal. These regulations will of necessity contain sufficient detail to provide appeal arrangements which are both fair and consistent. As I said earlier, they will be subject to the affirmative procedure.

I hope I have explained to the satisfaction of my noble and learned friend Lord Archer what the regulation making powers in the clause will be used for. However, I appreciate his concern that their use should be made more explicit on the face of the Bill. We cannot, however, accept this amendment as it stands because there are consequential changes which will be required to achieve the desired effect. For example, the power to make procedure regulations, now set out in Clause 8(3)(b), may be better situated in Schedule 5 with others of that type. But I am happy to take this matter away and look at how we can amend the Bill at Report to meet my noble and learned friend's concerns. In those circumstances I invite my noble and learned friend to withdraw his amendment.

Lord Archer of Sandwell: It is a pleasure doing business with my noble and learned friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Archer of Sandwell moved Amendment No. 32:


Page 4, line 38, at end insert--
("( ) Regulations shall make provision for the procedure to be followed in requiring and providing expert assistance under subsection (4) above.").

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The noble and learned Lord said: This amendment addresses a specific example of the general unease which I endeavoured to discuss a few moments ago. Subsection (4) provides that,


    "the tribunal may require one or more experts"
to assist it on a matter of special difficulty.

There is nothing new about a court or tribunal receiving assistance from an expert in the subject matter on which it has to adjudicate. There are many ways of doing that. One or more of the parties may call an expert witness who can give evidence and be cross-examined; or the court or tribunal may call an expert witness of its own motion, and again, the witness may give evidence and then be asked questions by all those concerned; or the expert may be appointed as an assessor to advise the tribunal on matters on which it feels the need for advice; or the expert may be a member of the tribunal. We know that under the proposals we are discussing a person may be appointed to a specific tribunal because he or she has a specific expertise. But subsection (4) gives no indication at all as to how the expert assistance is to be supplied.

From indications we have had, it appears that the expert will be a member of the panel, although not a member of the tribunal sitting for a specific case. That raises all kinds of questions. Will the expert advise the tribunal in the absence of the parties, as a magistrates' clerk may sometimes tender advice to magistrates, or will his view be expressed openly where it can be amplified or challenged? Must he wait until he is asked for an opinion, or can he offer unsolicited advice? May he be cross-examined by the parties? I am bound to say I have rarely seen a more laid-back provision or one which answered fewer questions. I hope that my noble and learned friend can offer us some guidance on all these queries in the generous spirit in which he replied to the former amendment.

No doubt my noble and learned friend has seen the letter on the subject written by Judge Bassingthwaighte to the department on 10th November last year, and appended to the memorandum where he suggests that one way of doing it would be that the tribunal should have power to ask an expert for a report, which would be disclosed to the parties, and the expert would be required to attend only if there is a challenge. When we have the guidance it would be strange to leave it there. Surely those who have to implement the provision will not be left to consult Hansard as to what is intended. Surely it will be in the regulations. If so, why should it not be in the Bill? I beg to move.

Baroness Anelay of St. Johns: I rise to support the amendment of the noble and learned Lord, Lord Archer.

I sat as a lay member of a social security appeal tribunal hearing appeals with regard to incapacity benefit, and when I read the Bill I wondered whether the Government intend that this expert be in the same position as currently is the case for a doctor medical expert who may attend at an incapacity benefit hearing.

That situation was unsatisfactory because the presence of the medical expert seemed to lead both the tribunal and the appellant to expect too much of him

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and his function was not fully explained to either party. The appellants seemed to assume that because a doctor was present they might be subject to medical examination, which was patently not the case; they expected they might be able to put questions to the medical expert on their own behalf to get information or an explanation of something which was in the papers or something which was being asked of them at the hearing. The medical expert was not allowed to do that. So some frustration built up at the hearing and got in the way of a proper examination of the evidence.

As to the tribunal, the members of the tribunal felt inhibited as to what the full role of that expert might be. The expert was not allowed to join in the questioning aspect of the tribunal; he was there almost as a Black's medical dictionary--a resource--if only the tribunal knew which questions to ask. One of the difficulties was that the tribunal did not ask the right questions and sometimes, in contravention of the guidance, the medical expert attending would assist the tribunal--quite wrongly but very helpfully--by telling it which questions it ought to ask or by giving the answer without the question being mentioned.

We should not have to get round that kind of improper situation. Is that the kind of situation that the Government intend to build into the tribunal service system with this Bill or will there be a different way of using the expert which would be of greater benefit to both the appellant and the tribunal?

Lord Hardie: Amendment No. 32 seeks to put on the face of the Bill a further regulation-making power which will set out not only the procedure to be followed by appeal tribunals in seeking advice from experts but also the manner in which those experts will provide that assistance. That latter part will address the concerns of the noble Baroness, Lady Anelay of St. Johns.

My noble and learned friend Lord Archer has explained the reasons for believing this additional regulation-making power to be both useful and necessary for the effective management of tribunal hearings and I am sympathetic to his argument. The Government's intention was to use the powers contained in subsection (3)(b) of Clause 8 and in Schedule 5 to make provisions of the sort that the noble and learned Lord has in mind. In the light of the argument he has advanced, I would like to look again at the merits of the change he has proposed. Although we believe that this amendment will impact on only a very small number of appeals, I should like to reflect further whether this amendment is a sensible addition to our regulation-making powers.

I hope that my noble and learned friend will feel able to withdraw the amendment in the light of my assurance to give the matter further consideration. I shall write to him when we have had an opportunity to reflect further and will copy the letter to the noble Baroness, Lady Anelay, and the noble Earl, Lord Russell. I shall place a copy in the Library. If we consider that an amendment along the lines suggested by my noble and learned

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friend would be appropriate, we shall bring forward an amendment at Report stage. In the light of that, I ask my noble and learned friend to withdraw the amendment.

11.15 p.m.

Lord Archer of Sandwell: This is becoming addictive! I am most grateful to my noble and learned friend for that generous response. I am also most grateful to the noble Baroness, Lady Anelay, for her support. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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