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Lord Hardie moved Amendments Nos. 33 and 34:


Page 4, line 39, leave out from ("In") to ("who") in line 40 and insert ("subsection (4) above "expert" means a member of the panel constituted under section 6 above").
Page 5, leave out line 1.

On Question, amendments agreed to.

Clause 8, as amended, agreed to.

[Amendment No. 35 not moved.]

Schedule 1 [Appeal tribunals: supplementary provisions]:

Lord Archer of Sandwell moved Amendment No. 36:


Page 54, line 41, leave out ("Secretary of State") and insert ("President").

The noble and learned Lord said: With Amendment No. 36 it may be for the convenience of the Committee if we also discuss Amendment No. 37. These amendments are to one paragraph in a schedule but they raise a fundamental issue which extends to all courts and tribunals. I do not pretend that there is any easy answer.

What is to be the relationship between the judiciary and the administrators? I accept that administrators are not just there to do what the judges tell them to do. At the senior level, an administrator is likely to be the accounting officer for the use of public resources. It is he who may be summoned to appear before the Public Accounts Committee. If he were answerable in the first instance to the president, it is the president who could be summoned to the Public Accounts Committee. Not all heads of tribunal systems would relish that. I have heard different presidents express different personal preferences as to the relationship which they would like to have with their senior administrators. But clearly the president is responsible for decisions affecting the quality of justice. It is for him to say, "I don't think that the tribunal can give proper attention to a case if we have more than four cases in a day's list". But that may well have implications for resources. Who is to have the last word?

My noble friend may recollect that at Second Reading I recommended that she read a report by the Council on Tribunals in 1996 on tribunals, their organisation and independence, in which some of these problems are discussed. I do not know whether my noble friend or my noble and learned friend have had an opportunity to read that report. If not, I shall happily provide them with a free copy. At the moment, they do not seem to have any clear recollection of whether they have read it, but there may be other explanations for that.

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One of the questions which this raises is whether the president is to appoint his own staff, whether they are to be answerable to him or whether they are to be independent of him. Of course, much may depend on the personal relationship of those concerned and on their common sense. From what I know of those concerned, that affords one great reassurance.

I do not propose to press the matter to a Division tonight, but I should like to have some indication of the Government's thinking and to be assured that they have some thinking. I beg to move.

Baroness Anelay of St. Johns: This is becoming addictive as well--I rise again to support the noble and learned Lord, Lord Archer. The Chief Whip invokes the fact that the Government ought to be able to join in criticising their own Bill. I hope that this will not be the last time that the Chief Whip would like the Government to do just that. I have great respect for the experience and views, naturally of the Chief Whip and certainly of the noble and learned Lord, the chairman of the Council on Tribunals. I shall be interested to hear the Government's response on these particular amendments.

During the course of debate, the noble and learned Lord referred to a report prepared by his own in-house organisation. It is a report which the Conservative government did not have the chance to read at the time when they originally drafted this Bill. I hope that, with hindsight, we might be able to take advantage of the noble and learned Lord's wisdom, given that at the time we were not able to do so.

The effect of this amendment is to give the president of tribunals the power to appoint such officers and staff as he or she thinks fit for the president and for appeal tribunals.

I note the points made by the Child Poverty Action Group in its briefing to noble Lords; namely, that, as the Bill stands, the transfer of responsibility from the president to the Secretary of State introduces a potential conflict of interest. The Secretary of State makes first tier decisions and is also responsible for the administration of appeals against them.

The report, Tribunals, their Organisation and Independence, referred to by the noble and learned Lord, lists some of the preconditions for tribunal independence, including the freedom to take judicial decisions uninfluenced by resource or other external considerations; proper administrative support in terms of hearing clerks and support staff; legal and other textbooks; adequate and appropriate hearing accommodation and premises which are not connected with one or other of the parties.

I can give a practical example from my own experience that premises should be,


    "impartial, unthreatening and accessible to all people, including those with disabilities"--
not like the old town hall at Aldershot, where I sat for several years as a member of a social security appeal tribunal hearing incapacity benefit appeals, when the only way of getting into the tribunal room was by climbing two flights of very rickety stairs. On other

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occasions the tribunal had to sit in premises that were part of the magistrates' court--not premises that were particularly suitable for that kind of tribunal.

The report of the Council on Tribunals concludes--and I promise that I am not quoting from it simply to prove that I have actually read it--that,


    "The independence and integrity of a tribunal system is best served if somebody from the judicial side of the tribunal is given a specific role in meeting some or all of those preconditions which the report lays down".

The point has been made by the Child Poverty Action Group that the president will no longer, as a result of this Bill, have a specific role in ensuring that administrative systems are adequate to support judicial independence. The question is posed: will the removal of this responsibility therefore undermine the independence of the appeals system? I believe that it will. I hope that, in replying, the Minister will be able to reassure us and accept this amendment.

Lord Goodhart: I rise to support the amendment, to which I have my name. At this time of night I wish to do very little except to say that I strongly support the noble and learned Lord, Lord Archer, who has far more experience than I of the role of tribunals of this kind. The points that he has made are absolutely right. He has very fairly explained, not only the advantages of having the president as the person with the power to make the appointments, but also the complications so far as accounting is concerned which would arise from that.

Nevertheless, it seems to me entirely right that the staff to service the president and appeals tribunals should not be appointed by the Secretary of State from whose department these appeals are being heard. As to whether it is right for the appointment to be made by the president, there are perhaps alternatives. One possibility may be that appointments should be made by the Lord Chancellor who, after all, is the person responsible for appointing the president and members of the tribunal. Be that as it may, I do not believe that the present situation as set out in the first schedule is correct. I hope that the noble and learned Lord will re-examine that and consider a solution whereby the staffing of the tribunal would not be the responsibility of the Secretary of State.

Earl Russell: This amendment may be small but it raises issues of great importance. The first is that of judicial independence. Since it is contrary to the principles of natural justice to be judge and party in one's own cause, if the Government do not get that issue right great expense will be involved in judicial reviews. The second issue is the great difficulty of separating administrative and judicial functions in the way that is intended. In her phrase about administrative systems sufficient to support judicial independence, the noble Baroness, Lady Anelay, hit the nail absolutely on the head. The Government must give thought to that matter: they will be in trouble if they do not.

Lord Hardie: I am sorry that I require to break the habit of this evening and say that I regret that I am unable to accept my noble friend's suggestions. These amendments seek to transfer from my right honourable

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friend the Secretary of State to the president of appeal tribunals the responsibility for appointing officers and staff for himself and for the tribunals.

I can assure Members of the Committee that we are committed to preserving the independence of the president of appeal tribunals and of the decisions they make. The provisions in Clauses 5 and 6 for the president and all panel members to be appointed by the Lord Chancellor reinforce that commitment.

The current system of a judge as president with responsibility for administrative as well as judicial functions is unique to the Independent Tribunal Service. This contributes one element of independence, but it has other implications. Because the president is a member of the judiciary, he cannot be held accountable for the efficiency of the administration of appeals because of the constitutional separation of powers between the judiciary and the executive.

Under the new system the president will be the judicial head of appeal tribunals. He will be responsible for approving panel members for their expertise and suitability to deal with particular types of appeal. His responsibilities will also extend to arranging the training of all panel members, in consultation with the chief medical officers and the Secretary of State, as appropriate.

The Secretary of State will take on responsibility for the administration of appeals. She intends to set and publish demanding targets for administration and to report on the results. We have also announced our decision in principle to set up a new executive agency to deal solely with the administration of appeals on a day-to-day basis. This will enable the Secretary of State to set objectives and targets for the service. The chief executive will be required to report regularly to Ministers to ensure the efficient running of the service. Importantly, the chief executive may be appointed accounting officer, directly responsible to Parliament for the public money spent on administration and the efficiency of the service provided. That is an important development which could not be achieved if the president of the tribunal service maintained his present dual role.

This separation of administration and judicial functions happens in other appeal systems. For example, pensions appeal tribunals are administered by the Court Service, an executive agency of the Lord Chancellor's Department; and industrial tribunals and employment appeal tribunals are administered by the Employment Tribunals Service, an executive agency of the Department of Trade and Industry. We believe that that is the best way to meet our objectives for improving services and accountability of performance. Agency status will enable the service to operate at arm's length from Ministers. It will provide scope for greater accountability in terms of expenditure and performance, and a better service for claimants.

Clearly the Secretary of State will wish to take views from the president of the numbers and types of administrators needed to provide a proper support service. I take the point made by the noble Baroness, Lady Anelay, in quoting from the report. However, it is essential that the Secretary of State retains the power to appoint administrative staff. It is she and not the president who is

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responsible for the appeal service as a whole, and it is she who is accountable for the standards of administration and public money spent. I hope that my noble and learned friend Lord Archer will therefore feel able to withdraw the amendment.


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