CONSTITUTION OF APPEAL TRIBUNALS (Hansard, 13 May 1998)

§ Mr. Keith Bradley
I beg to move, That this House doth agree with the Lords in the said amendment.

§ Madam Speaker
With this, it will be convenient to discuss also Lords amendments Nos. 5, 6, 9 and 108.

§ Mr. Bradley
Lords amendments Nos. 3 and 5 are about the legal qualifications of tribunal chairmen or members. Concerns were expressed in Committee, and in other places, about the proposal that not all tribunals needed a legally qualified member. It was suggested that only a lawyer would have the skills and experience necessary to conduct the hearing of an appeal.
The Government believe that a number of appeals could be determined by an appropriately trained person who does not have formal legal qualifications, but we want to adopt a pragmatic approach, and to introduce new, more effective and efficient arrangements for handling appeals. We have reconsidered both the kind of appeal that could be dealt with by a single, non-legally qualified panel member, and the administrative arrangements for selecting such appeals. We found that fewer than 5 per cent. of appeals could be dealt with in that way, and concluded that there would be no benefit in introducing such an arrangement at present, as the estimated number of cases is very small.
381 We have decided that, at least for the time being, the practicalities suggest that there is a case for retaining lawyers on all tribunals. We may wish to reconsider the position following welfare reform and the introduction of simpler benefit structures, when it is possible that more cases would be suitable for determination by panel members without formal legal qualifications.
Lords amendments Nos. 6, 9 and 108 clarify issues of detail concerning regulations—also in response to anxieties expressed here and in another place. Amendment No. 9 stipulates that regulations shall be made to provide for the composition of appeal tribunals; (b) the procedure to be followed in for allocating cases among differently constituted tribunals; (c) the manner in which expert assistance is to be given to the tribunals.
As I said in Committee, it has always been the Government's intention to make regulations to provide for these matters; the amendments simply do so in the Bill. I remind the House that regulations made under clause 8(3) will be subject to the affirmative resolution procedure. I commend the amendments to the House.

§ Mr. David Rendel (Newbury)
As the Minister might expect, I am delighted with the amendments, and I fully support what he is doing. We said in Committee that it might not be obvious at these appeals that legal points might be about to be raised, so I am pleased that Minister now accepts that many cases may involve legal implications, and that the cases which do not are so few and far between that it is not worth the risk of leaving out legally qualified people.
It has always seemed to us likely that time and money would be saved by putting someone with legal qualifications on every panel. I still believe that to be true, and it seems that the Minister now more or less agrees. Even in Committee, the Government accepted that it was important that legal advice should be available at all times. The amendments are the obvious and logical conclusion of what they said then.
In Committee, my good and hon. Friend the Member for Northavon (Mr. Webb) said: The Bill will make it possible for a single person to decide a social security appeal. Although the Minister has assured the Committee that that person will be 'a decent chap or chapess', there is no requirement that he or she have legal qualifications…it is possible that the person who comprises a single-member tribunal will have no legal qualification. Despite what the Minister has said today about including the requirement in the Bill, it is worth reminding the House of what he said in Committee: We do not accept that qualification requirements of tribunal members should be in primary legislation." — [Official Report, Standing Committee B, 4 November 1997; c.15–6.] I am delighted that the Minister has reversed what he said in Committee, and proud that my party made the point at the time.

§ Mr. Nigel Waterson (Eastbourne)
I, too, welcome the amendments. It is also a great pleasure to see the Minister in his place, reminding me of many pleasant hours spent in Committee. As he rightly said, concerns were expressed there and elsewhere about this point—and I was 382 one of those who expressed them. The Minister used the phrase "adopting a pragmatic approach", for which read "U-turn". I assume that that is the new spin doctor's term for a U-turn, and I look forward to the phrase appearing with dismal regularity throughout the rest of today.
I had written down the phrase "a listening Government", but it seems that that hoary old chestnut has been put out to pasture—[Interruption.] I do not believe that the Minister actually used the phrase today, although it is perhaps so deeply embedded in his psyche that he thinks he did. At any event, we heard it used a great deal in Committee. It is just a pity that the Minister did not listen to us on this particular point.
In Committee, the Minister was adamant that this was not the right way to go, but he left himself a small escape hatch by saying that the Government might have to revisit the issue following welfare reform. We know that that is a very long way off yet so we need not dwell on that at great length today.
The Minister touched on the question of the affirmative resolution procedure. He is right to say that we will come to that in much more detail later.
It is worth revisiting the Committee stage, when members of both Opposition parties not only put their views on the question of a legally qualified member or members of an appeals tribunal, but prayed in aid the views of several independent organisations. The Law Society was one. In its brief on the subject, the Legal Action Group said that it was opposed to the proposed change to the composition of tribunals, which would be a retrograde step. It went on to commend the present practice of a legally qualified chair.
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In Committee, on Report and on Third Reading, the Opposition pressed the Government hard on the point that it was unacceptable for an appeal to be heard by a one-man tribunal who did not even have to be legally qualified. There was quite a long debate on the subject. The Minister remained courteous but absolutely adamant on the subject. He said that the proposed amendments to clause 8 would undermine one of the Government's key objectives—that of introducing an efficient and responsive appeals service".

§ Mr. Letwin
While my hon. Friend is expanding that extremely important point, let me ask him this. Does he agree that it would have been helpful if the Lords had brought forward amendments on what must have been 120 or so other subjects about which the Minister was equally adamant; I am thinking of all the occasions when we drew attention to excessive regulatory powers and he explained that it would be against the spirit of the Bill to make any changes?

§ Mr. Waterson
My hon. Friend is exactly right. On any number of issues, the Minister stuck to his brief like glue, presumably for fear of something worse. There are some matters before us today on which we genuinely welcome his change of mind. It is a pity that we had to go through the entire Committee stage, and, indeed, other stages of the Bill's proceedings before that change of 383 mind occurred—but we must not be churlish, and we must recognise that, on this issue, if not on others, he has got it right in the end.
The Minister went on to say in Committee: We do not accept that qualification requirements of tribunal members should be in primary legislation." — [Official Report, Standing Committee B, 4 November 1997; c. 158.] That is very clear. He did say at one point that he would reconsider matters, but, after an intervention from the hon. Member for Northavon (Mr. Webb), he made it clear that it was a question of doing so not in drafting any amendments to the Bill, but in drafting the regulations.
Therefore, it seems that the Minister has done a U-turn—or adopted a pragmatic approach, to use the correct language—on two issues in this instance. One is the need for the matter to be dealt with in the Bill itself, and the other is the central principle of legally qualified members of tribunals.
The matter went to another place, which carried out its historic function of revising legislation. There, for reasons that remain a mystery to Conservative Members of this House, the Government did finally see sense. In answer to an amendment that was moved by Lord Archer of Sandwell, the Government accepted that at least one of the members of a tribunal should be legally qualified.
As Lord Archer of Sandwell said in his speech on the Bill: at least one member of the tribunal shall have such a quality, leaving it to the president to decide who should take the chair on any specific occasion", making it a somewhat compromised proposal, but that found favour with the Government in the other place.
There was a helpful contribution from Baroness Anelay about her experience as a member of tribunals for some 14 years. She said: Social security law is notoriously complex". I think that all right hon. and hon. Members agree with that, given the sort of problems with which we regularly have to deal at our advice surgeries and in our mail bags.
It fell to Lord Hardie to accept the proposals in the other place. As he said: the Government have concluded that, for the time being at least, there is a case for the retention of lawyers on all tribunals." — [Official Report, House of Lords, 20 April 1998; Vol. 588, c. 94–2.] That was after discovering, after all this time—and as the Minister has acknowledged—that only about 5 per cent. of all cases heard by all tribunals can be dealt with by a one-man tribunal who is not legally qualified.
The Minister was good enough not to use the phrase "the listening Government". The Government had every opportunity to listen at the time. As the Minister said in Committee, the Government wish to get the Bill into the public domain and to use the period between Second Reading and the Committee stage to listen to the views of interested parties and ensure that corrections and changes are made so that they can be properly debated in Committee." — [Official Report, Standing Committee B, 28 October 1997; c. 20.] That was a pious hope; the present change has been made very much at the last minute.
I want to make a couple of points about another matter that is the subject of one of the amendments—the curious distinction between "shall" and "may". We had some 384 debates about that in Committee, on one instance at my behest. We pointed out the strange wording in a number of different parts of the Bill. The Minister then said: I have a small comment about "may" and "shall". I am assured that this is the normal way of drafting regulations in the Bill; there is no sinister intention behind it."— [Official Report, Standing Committee B, 4 November 1997; c. 192.] Yet both in this and in later clauses, such as clause 13, the drafting has been changed to "shall". We might as well have saved our breath. I would be interested to hear from the Minister who is now assuring him that this is the normal way to draft these matters.
In the other place, Lord Hardie argued that the change was necessary to make clear that regulations shall be made, to provide for the composition of tribunals." — [Official Report, House of Lords, 20 April 1998; Vol. 588, c. 961.] That was precisely the argument advanced by the Conservatives in this House, but again it was ignored by the Government.
Having said that, we welcome the amendments, which have our support.

§ Mr. Keith Bradley
There is obviously some disappointment that I did not make it clear that we are a listening Government, so I put that on the record now. As a result of that listening, there is universal support for the amendments on both sides of the House.