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Lord Higgins: My Lords, I am surrounded by lawyers, but there seems to be a degree of unanimity about this. I listened with great care to the noble Lord, Lord Goodhart, and, subject to being persuaded the other way by the Minister, the noble Lord, Lord Goodhart, seems to have a good point.

In an earlier discussion on a previous amendment, we were told that there was no difference between "may" and "shall" in relation to drafting. Now we all seem to be agreed that we should change "shall" to "may". I am not quite clear what is the relationship between those two issues.

Lord Hardie: My Lords, in supporting Amendment No. 20, I should like also to speak to Amendments Nos. 21 and 22. Our previous debates on this matter have resulted in our decision to improve the drafting of the clause through Amendments Nos. 20 and 21. In fact, when the Government amendment was tabled, it was in identical terms to that tabled by the noble Lord, Lord Goodhart. Hence, the name of my noble friend Lady Hollis has been added to that amendment. However, we can support Amendment No. 22 and it may be helpful if I explain the Government's thinking.

Where leave to appeal against a decision of a tribunal is sought, Clause 13(2) requires that, if the chairman or other person considering the application agrees that the tribunal erred in law, he will set aside the decision. The case may then be referred for re-hearing by a tribunal. The intention is to prevent cases being passed to the commissioners unnecessarily.

Where the chairman does not consider that the tribunal erred in law, he may grant leave to appeal to the commissioner. If the chairman is not available, regulations will provide for another panel member to consider the application.

Amendment No. 20 will give the chairman the power to remit a case to a tribunal or grant leave to appeal to the commissioners instead of, as currently drafted, impose a duty on them to remit the case to a tribunal

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where they considered there had been an error in law. That introduces an element of discretion and that is the difference between "may" and "shall" on this occasion.

During debate in Committee, the noble Lord, Lord Goodhart, raised the question of a chairman, outvoted at the tribunal, and he raised that point today. As drafted, the subsection could require him to consider the application for the decision to be set aside. That might place him in a difficult position.

I promised to give the matter further consideration and am now pleased to support Amendment No. 20. Government Amendment No. 21 is a simple tidying amendment.

I turn now to Amendment No. 22. Currently, even if all the parties to an appeal agree that a tribunal decision is wrong in law, the appeal must proceed to a commissioner. Of course I agree that there may be different reasons for thinking that something is wrong in law, as the noble Lord, Lord Goodhart, has indicated. But if everyone is agreed, for different reasons, that it is wrong in law, on any view, the decision is wrong. There are very few exceptions to the rule which requires that a decision wrong in law must proceed to a commissioner.

The effect of that is that commissioners have to deal with many appeals which a tribunal could resolve more easily and quickly. Many of those appeals relate simply to procedural errors; for example, where a tribunal has failed adequately to record facts or give adequate reasons for a decision. From my experience as a chairman of a tribunal, I am aware that many of the commissioners' decisions relate to the fact that a tribunal has failed to give adequate reasons for a decision. If parties were agreed that there were not adequate reasons, it seems inappropriate to burden the commissioners with that.

Clause 13(3) requires that where the principal parties to the appeal agree that the tribunal's decision was wrong in law, the tribunal chairman must set aside the decision and refer the case to a different appeal tribunal for determination. That will have the effect to which I referred that commissioners will not be burdened except in cases which concern substantive points of law. That is a more sensible use of the expertise of commissioners.

The effect of Amendment No. 22 would be that even in cases where the appellant and the Secretary of State agree that the decision was wrong in law, chairmen could refuse to refer the case for redetermination. Such discretion is not appropriate in those cases. If the principal parties to the case agree that the decision was wrong in law, there is little value in passing on the case to the commissioner. Appellants could be denied speedy resolution of their appeals and backlogs and long delays at the commissioner stage would continue.

I hope that my explanation has clarified for the noble Lord, Lord Goodhart, why the Government consider Clause 13(3) as drafted offers benefits both to claimants and to the commissioners and that he will, therefore,

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not move Amendment No. 22. As I indicated, I support Amendment No. 20 and will move Amendment No. 21 in due course.

7 p.m.

Lord Goodhart: My Lords, I greatly welcome the fact that the Government have accepted Amendment No. 20. As regards Amendment No. 22, I must say that I still believe that the Government are wrong. It is well known in the ordinary courts to have situations where both parties think that the judge has got part of the decision wrong and where the conclusion is one which satisfies neither party. I believe that that could well occur from time to time--although I do not suppose that it will be at all frequent--in the appeal tribunals here. However, I am quite happy to accept half a loaf rather than no bread. In the circumstances, it is not my intention to move Amendment No. 22.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 21:


Page 8, leave out lines 13 to 16 and insert ("each of the principal parties to the case expresses the view that the decision was erroneous in point of law,").

On Question, amendment agreed to.

[Amendment No. 22 not moved.]

Clause 14 [Appeal from tribunal to Commissioner]:

Lord Hardie moved Amendment No. 23:


Page 10, line 2, leave out ("The Lord Chancellor may by regulations") and insert ("Regulations may").

The noble and learned Lord said: My Lords, in speaking to this Amendment I shall, with the leave of the House, speak also to Amendments Nos. 24, 25, 64, 65 and 66: The amendments are designed to ensure that the Lord Chancellor retains the necessary regulation-making powers in respect of proceedings before commissioners. Section 189(2) of the Social Security Administration Act 1992 provides the Lord Chancellor with the power to make procedural regulations with respect to proceedings before commissioners. Section 189(10) goes on to state that the Lord Chancellor must consult the Lord Advocate before making regulations under the administration Act. Both subsections are repealed by the Bill.

Amendment Nos. 65 will re-enact the provisions to ensure that, as now, only the Lord Chancellor will be able to make regulations in respect of proceedings before commissioners. The regulations in respect of proceedings may relate to the determination of any matter by commissioners, or leave to appeal to, or from, the commissioners. Where the Lord Chancellor proposes to make such regulations he shall consult the Lord Advocate. In the light of that amendment, references to the Lord Chancellor's regulation-making powers in Clauses 14 and 15 are no longer necessary. As a result, Amendments Nos. 23, 24, 25 and 64 remove references to the Lord Chancellor in Clauses 14(11), 15(6) and consequently Clause 77(1).

Amendment No. 66 simply clarifies that the definition of a commissioner in Clause 77 has the same meaning as in Chapter 11 of Part I of the

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Bill, as a reference to "Commissioners" is made in Amendment No. 65. The amendments clarify the Lord Chancellor's regulation-making powers in respect of proceedings before commissioners. I trust that your Lordships will agree to them. I beg to move.

Baroness Anelay of St. Johns: My Lords, I simply rise to ask a question of the noble and learned Lord. Indeed, far be it from me to object to anything which I suppose strikes out reference to the Lord Chancellor in such matters. However, be that as it may, reference is made in Amendment No. 65 to consultation with the Lord Advocate. In Committee, I recall that we removed Clause 7 with regard to the Lord Advocate's powers. As noble Lords will recall, that was as a direct result of the procedure that will be required upon the introduction of devolution.

The question that I have for the noble and learned Lord is: does he foresee that there will be any further amendments put forward on Third Reading with regard to the Lord Advocate's powers, or absence of them? It appears that we are having a considerable number of government amendments placed before us in an attempt to improve the Bill--amendments which are of their own, shall we say, promulgation or gestation, rather than being prompted by either of the Opposition parties. Since the Bill started its passage through another place last July, there have been several months in which to consider the administrative side of such matters. I am somewhat concerned that there appears to be quite a large number of amendments that might, perhaps, have been thought through earlier. Therefore, can the noble and learned Lord tell the House whether there will be other consequential amendments on Third Reading with regard to devolution matters.


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