HC Deb 03 July 1975 vol 894 cc1845-56

11.15 p.m.

Mr. Bryan Gould (Southampton, Test)

The Council on Tribunals was set up under the Tribunals and Inquiries Act 1958 following the recommendation of the Franks Commission. The 1958 Act has been replaced by the 1971 Act, which imposed and conferred upon the council a certain number of functions.

The council has a general duty to keep under review and to report upon the constitution and working of a number of specified tribunals, and it has the right to be consulted when procedural rules affecting those tribunals are to be made. The council also in practice is consulted, although it has no right to claim to be consulted, when draft legislation is in preparation which will affect administrative procedures. The council is also required to make reports on matters referred to it by the Lord Chancellor and matters which the council itself thinks of special interest.

It is extremely difficult to assess the council's effectiveness in performing a range of such vaguely defined functions. The rôle of a body which is consultative only, which has no machinery for making sure that its views are enforced, is always difficult. No one can have read the annual reports of the council without appreciating the limitations and the frustrations of that rôle. I think, however, that the suspicion persists that Governments have increasingly seen their consultation with the council as a necessary preliminary which simply establishes their virtue, after which they can go on to make the real decisions.

I think that the suspicion is also present that the council has all too often acquiesced in this apparently supine rôle.

It is to a particular aspect of the council's functions that I wish to draw attention. The function that I have in mind is not described in terms of the Act, but it was described by the council in its annual report of 1960 as being to act as a watchdog for the ordinary citizen and to see that he gets fair play. Although those words are not in the Act, there are very few people who would disagree with that description of a vital function of the council, because in truth, apart from a very limited programme of visits to special tribunals, and an even smaller number of special reports, the council is restricted to the investigation of complaints from the public as its major means of carrying out its functions of keeping tribunals under review. Therefore, the way in which the council has performed this aspect of its functions is very important in assessing its overall effectiveness.

The council's responsibilities are of some significance. There are no fewer than 58 different types of tribunals for which the council is directly responsible and which fall under the direct supervision of the council. In 1973 these tribunals dealt with approximately 1¼ million cases. In other words, the tribunals for which the council is responsible are likely to affect the ordinary citizen more directly and more frequently than do the ordinary courts of law. Not only is the area of responsibility very great, but so also is the degree of responsibility, because the council is virtually alone in this field in having imposed on it some degree of supervisory responsibility over the whole range of tribunals.

The Parliamentary Commissioner Act 1967 excluded from the jurisdiction of the Ombudsman those issues where the complainant had a right to seek a remedy before a tribunal. That means that the ordinary complainant who wishes to show that he has not been properly treated by a tribunal is precluded from going to the Ombudsman. It may be true that he has a right to take his case to the courts, but that is likely to be such a time-consuming and expensive procedure that one can expect very few people to pursue it.

The ordinary complainant has no remedy with the Ombudsman or with the courts. In some areas, particularly in connection with supplementary benefits, he will not even be able to appeal against tribunal decisions. The council has a very great responsibility.

Virtually the only attempt to assess the effectiveness of the council has been a report published recently by the Child Poverty Action Group on the outcome of 10 cases it has submitted to the council in the past three-and-a-half years. The group's report is entitled to respect. It has undoubted expertise in social security matters, and only a body which has submitted a series of cases to the council is able to form a judgment and take a wider view. The report is a sad and sorry catalogue. In some cases no reply was received by the complainant; in other cases replies were received only months or years after the matter was first raised. Action was delayed and ineffective and sometimes was not even notified to the complainant. In only one or two cases does the group feel even moderately satisfied.

The conclusion to which any objective reader must be driven is that the council is not only hopelessly ineffective, it is guilty of maladministration in terms of delay and ineptitude that would attract the attention of the Ombudsman if it came under his jurisdiction.

The report is not the only evidence. A voluntary advice service I set up in Southampton three years ago is now handling 1,000 cases a year under the capable guidance of a member of the law faculty of Southampton University. It has had unhappy experiences of the council. A case raised over a year ago involved a complaint that the chairman of a national insurance tribunal had failed to give an adequate statement of reasons for his decision and that the clerk of the tribunal had failed to pass on a request to the chairman for a detailed statement. No action or substantive reply has yet been forthcoming from the council.

In part, the answer to this sorry state of affairs is that the council is not sufficiently equipped with staff and resources to deal with the volume of complaints one would expect it to receive. The council seems to have abandoned the practice of publishing in its annual report the number of cases received in the preceding year.

I am sure that the council is an estimable body, but it meets only 10 times a year and is, no doubt, concerned with loftier matters than individual complaints. One must conclude that individual complaints are dealt with by the very small executive staff with very few being referred to the council or its complaints committee. Such complaints are, quite wrongly, given very low priority.

There are not only staffing, and machinery problems. The council has no statutory power to enforce any of its recommendations. It is compelled in many senses to sail under false colours, to offer the illusion, rather than the reality, that it is an effective machinery for dealing with complaints about tribunals. I fully accept and understand that it was never intended that the council should be able to redress individual grievances. That is quite properly the province of the appropriate appeal body. We must, however, look for some sign that what the council says in response to individual cases will be said clearly and quickly and he taken into account. I think that is simply not happening.

I think particularly of one area where the council has intervened with recommendations about the giving of reasons, an area where one would hope that its intervention would be effective but where, regrettably, that has not been the case. The whole concept of this aspect of the council's function needs substantial review. It would be nice if replies to correspondence could be given more promptly, but something more is needed. It is not my function to recommend exactly what that should be, but I hope that the Minister might come up with some suggestions.

It would be possible to provide the council with much increased staff and resources to enable it to do an effective job. It would also need increased powers, particularly of enforcement. As an alternative, my hon. Friend might consider the transfer to the Ombudsman of the powers of the council in this respect. There is a further difficulty which would involve tackling this problem at a much more fundamental level. I am thinking of tribunals which fail to provide adequate safeguards to people appearing before them. The answer should be the provision of some statutory form of procedure to which tribunals would be obliged to adhere. Under such a code, individual complainants would be given a simple form of remedy in the courts for breaches of that code.

In the matters which have concerned the Child Poverty Action Group—for example, the question of supplementary benefit appeal tribunals—it would be possible and highly desirable that a second-tier appeal body should be introduced which would greatly improve the operation of those tribunals. That is something for which the group and others, including myself, have argued on many occasions.

All of these suggestions merit consideration, but my real purpose tonight is simply to suggest to my hon. Friend the Parliamentary Secretary, on the basis of the group's report, that something is seriously wrong and needs putting right. This needs to be done initially at the practical level, but arguably also at a more fundamental level. After all, someone should be doing in an effective way the job which the council is claiming for itself of ensuring that the ordinary man has a watchdog and a guarantee of fair treatment from the tribunals of this country.

11.28 p.m.

Mr. Michael Hamilton (Salisbury) rose—

Mr. Deputy Speaker (Mr. George Thomas)

Has the hon. Member reached an agreement with the hon. Member for Southampton, Test (Mr. Gould) and the Minister to speak in the debate?

Mr. Hamilton

That is so, Mr. Deputy Speaker. I intervene for only two minutes, not because I have any particular knowledge of the Child Poverty Action Group but because I would not wish it to be thought that concern about the Council on Tribunals is confined to one side or the other of the House. I was granted an Adjournment debate on this very topic exactly two years ago, and I am not conscious that my words on that occasion had the slightest effect.

Parliament expects the council to speak out fearlessly whenever and where-ever injustice occurs. It was, by coincidence, 17 years ago tonight that the then Mr. R. A. Butler, piloting through the Bill setting up the council, said: some continuous supervision is essential if the confidence of the public is to be inspired and the citizen assured that they"— that is, tribunals— carry out their duties in accordance with the principles of fairness, openness and impartiality."—[Official Report, 3rd July 1958; Vol. 590, c. 1606.] Thus it is the job of the Council on Tribunals to inspire public confidence.

I ask myself whether the council is fulfilling that rôle. If it were not for my considerable personal respect for the chairman of the Council on Tribunals, I should find it easy to dismiss that body as some tame satellite of Government, a sub-branch of the Lord Chancellor's office, a body which opts for the quiet life and is careful to keep its head well down below the parapet.

Of course, Ministers encourage the impression that the Council on Tribunals is some obscure academic advisory body. It may be that we shall hear more of this theme tonight. Of course, Ministers wish to damp down the rôle of the fearless independent critic. Ministers do not welcome the idea of an independent watchdog such as the hon. Member for Southampton, Test (Mr. Gould) referred to. But that is not what Parliament intended, whatever Ministers may say.

I remember that in July 1969 a Minister told this House: We are having these discussions and can rely upon the Council on Tribunals to insist"— that was the word he used— if it is thought necessary."[Official Report, 25th July 1969; Vol. 787, c. 2344.] Most Ministers, however, prefer to stifle the idea that this is a strong and independent council. I well remember my hon. and learned Friend the Member for Wimbledon (Sir M. Havers) saying: There is no power for the Council … to insist".—[Official Report, 19th July 1973; Vol. 860, c. 984.] With respect to him, I would say that this is a ministerial conspiracy and that it is a travesty of Parliament's original intention.

Yet, if I have doubts, I do not yet despair of the Council on Tribunals. Distinguished public figures would not be prepared to serve on such a body without the assurance that their recommendations carried decisive weight. Moreover, they are courteous people, people of eminence in their several spheres. I therefore reserve judgment. I hope that they will realise that, while Lords Chancellors come and go, Parliament looks to them to speak out. I intend approaching the council very shortly for its help, and I hope that it will give it.

11.33 p.m.

The Parliamentary Secretary to the Law Officers' Department (Mr. Arthur Davidson)

I have listened with great interest to my hon. Friend the Member for Southampton, Test (Mr. Gould) on a matter on which I know he has considerable expertise and about which he feels great concern. I congratulate him on the manner in which he presented his argument—all the more commendable, because he has been engaged, night after night, in the deliberations on the Community Land Bill. It must be a welcome relief for him, even at 11.30 at night, to speak on a different matter.

I am not surprised that the hon. Member for Salisbury (Mr. Hamilton) spoke on a matter concerning the Council on Tribunals, because he has been concerned about this topic over the years. Indeed, he has done the council a great service by consistently raising what he genuinely regards as great shortcomings in the way that it operates. Speaking for this Minister, I certainly welcome the idea of the council being an independent watchdog and being so regarded.

I hope that the House will forgive me if I detail the composition of the council. I know that both hon. Members who have spoken in the debate are familiar with it, but, as they are aware, it goes to the very root of the issues which have been raised tonight.

The council at present has 16 members, one of whom has been appointed primarily to represent Welsh interests. There is also a Scottish committee which at present has eight members, of whom four are members of the council.

The chairman of the council, whom the hon. Member for Salisbury has rightly praised, is the right hon. Lord Tweedsmuir. The Parliamentary Commissioner for Administration, by virtue of his office, is a member of both the council and the Scottish committee. The chairman's post, as I am sure my hon. Friend knows, is a part-time salaried post, but the other members are unpaid. The council is supported by a small staff of officials. The staffing of the tribunal was a point raised by my hon. Friend. The staffing requirements are being reviewed now by my noble Friend the Lord Chancellor.

As my hon. Friend said, the council was set up in 1958 to supervise the operation of tribunals which were growing in number and which covered an extremely wide field. As my hon. Friend will be the first to appreciate, the numbers have grown considerably since then and, indeed, the matters with which the council deals have consistently grown more complex.

My hon. Friend also stated quite accurately that the Tribunals and Inquiries Act 1971 confers three duties upon the council: first, to keep under review the constitution and working of tribunals and to report on this; second, to consider and report on particular matters referred to the council—such references being usually made by the Lord Chancellor or the Lord Advocate; and third, to consider and report on such matters as the council may consider to be of special importance with respect to administrative procedures involving statutory inquiries.

The council is, therefore, concerned with supervising the procedures and proper functioning of tribunals. It is not, as my hon. Friend said, equipped to deal with individual cases, save where these raise a point of general application. It receives a number of individual complaints, but it is rarely open to the council to intervene to secure any redress for the individual complainant, unless a tribunal is able and willing to review a decision already given or, in the case of an inquiry, the Minister has not given his decision and is prepared to reopen the inquiry.

Complaints about individual cases do, however, enable the council to perform a very important function. They are of great assistance in identifying weaknesses or shortcomings in the procedure or organisation of tribunals. They are also of assistance to the council in framing advice to Departments. The council regards this as its main function and one with which it is fully equipped to deal. On the one hand, it seeks to deal with the issues raised by complainants in a constructive way. On the other hand, it is able to ensure that any proposals it may put forward take account of departmental difficulties or other administrative factors.

After that introduction, perhaps I may deal with the points raised by my hon. Friend. The main criticism he made was the major criticism in the report of the Child Poverty Action Group—he is quite right in supposing that I have read that—which my noble Friend the Lord Chancellor is studying. The main criticism made is that the council is dilatory in dealing with complaints. I certainly have no intention of defending administrative delays. They are always to be regretted wherever they occur. I think that the council would be the last to claim that there has been no delay on its part or that the cause for delays has never lain within the council. I know that the council is aware of the complaints that have been made. I am sure that it will take them to heart, and certainly take to heart the criticisms my hon. Friend has mentioned.

Perhaps I ought to make a few points, not by way of defence but in order to get the matter into perspective. The council covers a very wide range of tribunals, inquiries and other administrative procedures, many of considerable complexity. It would be unrealistic to expect the council's staff to have at their fingertips a detailed and expert knowledge of them all.

In order to appraise itself properly of a complaint, it is invariably necessary for the council to refer the matter to the Department concerned for its comments. It is only in this way that the council can obtain a full and complete account of the surrounding circumstances and ensure that it is aware of all the relevant considerations, particularly those of a procedural nature. This process may, of course, involve inquiries of a tribunal or local office of a Department. All of this takes time. Indeed, it may require a protracted exchange of correspondence with the Department before all the issues have been thoroughly examined and the council is in a position to make proposals, if the proposals are appropriate.

The Lord Chancellor and I are anxious to dispel any impression that the council is an impotent body, while at the same time I would not want to overstate what the council can do.

It may be appropriate if I illustrate this area of the council's work by examples of action taken in respect of the supplementary benefit appeal tribunals as my hon. Friend mentioned those bodies. These tribunals heard 26,000 cases in 1973. The Child Poverty Action Group's criticisms in its pamphlet were specifically concerned with the supplementary benefit appeal tribunals. It is fair to say that the criticisms are directed more at the way in which Parliament constituted the council and the system of supplementary benefit appeals which is placed under the council's jurisdiction than at the way in which the council has carried out the duties entrusted to it by Parliament.

My hon. Friend, the hon. Member for Salisbury and I would not want to comment on individual cases which are the concern of my right hon. Friend the Secretary of State for Social Services.

I have discussed this matter with the Lord Chancellor and I invite my hon. Friend to meet my noble Friend if he wishes to draw his attention to any points. I know that my noble Friend will be only too glad to meet him, and I am sure that my hon. Friend will avail himself of that opportunity.

My hon. Friend said fairly that he wanted to air certain issues. I do not think he would have expected me to go into details or to pass comment on his useful and well-thought-out suggestions. I shall see that they are drawn to the attention of the Lord Chancellor. No doubt my hon. Friend will make the same points when he meets my noble Friend.

This has been a valuable debate, not least because it has enabled the House to discuss a matter which is seldom discussed. It has also reminded the House of what the Council on Tribunals is, what it does and how it carries out its duties. I hope that the misconceptions about its rôle and powers have been dispelled and, what is more important, that I have been able to assure my hon. Friend the Member for Test that the council has a rôle of importance to play. Although I do not suggest that there has not been a lack of communication between the council and the individual complainants, which can be irritating to the ordinary citizen, the council nevertheless has an important rôle. The House is grateful to my hon. Friend for raising this subject tonight.

Question put and agreed to.

Adjourned accordingly at sixteen minutes to Twelve o'clock.