Amendments to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2013

Debate between Baroness Gardner of Parkes and Lord McNally

Tuesday 12th March 2013 Grand Committee

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the Committee is considering the two draft orders: the Amendments to Schedule 6 to the Tribunals, Courts and Enforcement Act Order 2013, which I will refer to as the amendments order, and the Transfer of Tribunal Functions Order 2013, which I will refer to as the transfer order.

The orders before us today are part of a series that facilitate the transfer of the functions of a range of tribunals into the First-tier and Upper Tribunals. These orders will enable us to establish a new chamber in the First-tier Tribunal, which will be known as the Property Chamber and will transfer the functions of a range of tribunals into the unified tribunal structure. The Property Chamber will deal with land registration, residential and leasehold property, rent and housing matters and in relation to park—that is, mobile—homes. Subject to parliamentary approval, it will be launched on 1 July 2013.

The purpose of the draft amendments order is to add the rent assessment committees and the agricultural land tribunals to the relevant parts of Schedule 6 to the Tribunals, Courts and Enforcement Act 2007. That schedule lists the tribunals that can be transferred into the unified tribunal structure; in this instance, into the First-tier Tribunal and the Upper Tribunal. It is the addition of these tribunals into the appropriate parts of the schedule that activates the powers of the Lord Chancellor to transfer their functions into the tribunals.

Transferring the functions is the purpose of the second draft order, the transfer order. It will transfer to the Property Chamber of the First-tier Tribunal the functions of residential property tribunals, leasehold valuation tribunals, rent tribunals and rent assessment committees—which are composed from the members of rent assessment panels—in England; the agricultural land tribunal in England; and the Adjudicator to Her Majesty’s Land Registry in England and Wales.

It might be worth me going into some detail about why the Government are taking this action and why it is necessary. I think it would be helpful to give some background to tribunals in general and the Property Chamber in particular. Over the past few decades, a number of tribunals have been created to bring together specialist knowledge and expertise to resolve disputes, but they were first recognised as part of the justice system of the United Kingdom in the Franks report of 1957. From then until the turn of this century, a network of tribunals evolved, each with different rules of procedure, with varying powers and different sponsoring government departments.

It was apparent that this haphazard approach to creating tribunals was neither efficient nor economical. In 2004, the Government, through the Lord Chancellor, invited Sir Andrew Leggatt, a former Lord Justice of Appeal,

“to review the delivery of justice through Tribunals”

in England and Wales. The Leggatt report was the result of the review. The report recommended extensive reforms and set out a programme for developing a unified tribunals system. Following the report, the Tribunals, Courts and Enforcement Act 2007 was passed to implement its recommendations. This Act established a two-tier tribunal system, independent from decision-making government bodies, with a First-tier Tribunal and an Upper Tribunal. The Act also provided a number of powers to effect the transfer of existing tribunals or direct new appeal rights into this system.

A system of chambers was established within the two-tier structure, which enabled specialist tribunals with related jurisdictions to be brought together. This arrangement brings a number of benefits by providing cohesion and consistency within the system and allows judges and panel members to be deployed across jurisdictions as appropriate. From November 2008, the Upper Tribunal and the First-tier Tribunal took over the jurisdictions of a number of existing tribunals. Since then, further tribunals have been brought into the new system.

We are now at the stage where a unified tribunals system is almost completed. There are now are six chambers in the First-tier Tribunal and four chambers in the Upper Tribunal. In 2011-12, almost 740,000 applications or claims were received by tribunals. In the same year, more than 730,000 cases were disposed of. The matters dealt with by tribunals are wide-ranging, and cases range from those that can be determined on paper to those that are complex and involved and take a number of days to hear the issues.

When the Property Chamber is launched in July it will be the seventh chamber in the First–tier Tribunal and will bring together jurisdictions concerned with property and lands. These are residential property tribunals, leasehold valuation tribunals, rent tribunals and rent assessment committees—all which are composed from the members of rent assessment panels—the agricultural land tribunals and the Adjudicator to HM Land Registry.

What will happen to these three tribunals when the Property Chamber is launched? In short, they will cease to have any functions in England, although they will continue as before in Wales. Their jurisdictions will be transferred into the new tribunal. All the judicial office holders and panel members in post at the point of the transfer will become a transferred-in judge or member of the new tribunal. These jurisdictions deal with a wide and diverse range of issues, some of which are technical and complex. They include cases concerning residential property, including rent, park homes and leasehold disputes, issues over agricultural land and disputes about registered land in England and Wales, most of which will be referred to it by the Land Registry.

Why is the Property Chamber being created? Currently, the three jurisdictions that will transfer into the chamber operate independently of each other. They have their own sets of procedural rules, different terms and conditions for office holders and administrative staff, various locations and diverse practices. The benefits of creating the chamber are clear: it will be the centre of expertise for matters relating to land, property and housing; it will bring greater consistency in decision-making and effective case management, with one set of rules for all the jurisdictions; there will be administrative efficiency leading to a reduction in costs; it will enable good practice to be spread across the jurisdictions, also leading to greater efficiency; it will allow more flexible and efficient judicial deployment; and it will deliver administrative efficiency, leading to a reduction in costs.

There is no doubt that the creation of the Property Chamber in the First-tier Tribunal and the transfer of the jurisdictions into the chamber will mark a significant milestone in the achievement of the long-held vision of a unified Tribunals Service. It will signify a further step in delivering the chamber structure within the First-tier Tribunal, as envisaged by the Tribunals, Courts and Enforcement Act 2007. I therefore commend these draft orders to the Committee, and I beg to move.

[Baroness Gardner of Parkes]

My Lords, I wish to speak on this because I feel that the statements that are being put forward are not necessarily as good as they sound. My interest in property is in the register, but I state again that I have a personal interest. However, my interest is much wider than that; it is also about other people. I have asked the noble Lord, Lord McNally, Questions on the Leasehold Valuation Tribunal in particular. He replied by letter and it was very interesting. I was concerned because at the moment the applicant cannot be asked to pay more than £500. Under the new proposals, the amount will vary from £65 to considerably more—over £500—but no one quite knows where they will come in that scale. If there is a hearing, you might be asked to pay another £190 for it. That is the minutiae of the answer, which I think is worth putting on record. Over the years, the amount has never varied. Although when we established the Leasehold Valuation Tribunal in 1996, we had hoped that the amount would never vary, we cannot expect prices to remain static for ever. That is an incidental point.

I am concerned about the whole structure of the Leasehold Valuation Tribunal going into the Property Chamber. I was particularly concerned when I read the Explanatory Memorandum supplied with the order. At paragraph 3.1 it refers to Paragraph 22 of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 which,

“alters the type of power used for prescribing one particular fee … and inserts a negative resolution procedure”.

That is considerably weaker than the affirmative procedure but, nevertheless, I am just pointing out that that is what is proposed.

I am more concerned by paragraph 3.3 of the document, which states:

“The Upper Tribunal already hears unlimited onward appeals from residential property tribunals”.

That was always envisaged. It was always envisaged that the first stage would be within the means of ordinary people. There is a separate argument here which I shall bring up on the Enterprise and Regulatory Reform Bill, on which I propose to table amendments on a number of issues. I am sorry to say that on some issues I have been told that the difficulty is to get the Ministry of Justice to co-operate sufficiently to get important changes through on housing issues. That is not good enough. I draw that to the Minister’s attention. Those amendments will be coming up at Third Reading on 20 March, and I hope that the Ministry of Justice will have looked at things a bit thoroughly by that time and got things going because it is important to realise that this is a very dramatic change.

The suggestion in the Explanatory Notes that they will all be expert people is quite frightening because a separate matter in the housing issue that we have been talking about is that the management, who are not supposed to be putting up big legal people in round one, which was for the ordinary person to bring their case, are now bringing in very expensive legal people and, what is worse, the cost of that, win or lose, is charged back to the people who brought the application for £500 because it is claimed to be a legitimate management expense to provide the most expensive lawyers. Going back to 1996, when this Act went through, it was always acknowledged that when it came to the upper-level tribunal major experts and huge fees would be involved and everyone realised that at that point the large property owner or the person or company who had multimillions of pounds would be at a huge advantage because they could afford to employ such people, but the lower level was always meant to help the ordinary person and give them a fair go. I am concerned about whether that is going to continue. I am being quite tough about this because it is not often that I get the opportunity to have this word in the ear of the people who come from the Ministry of Justice, whereas poor old housing suffers from me all the time.

Then we get to the residential property tribunals and the three that will be changed over. I have no views on the agricultural side because I know nothing about that and I would not attempt to mention it. However, the leasehold valuations, the rent tribunals and the rent assessment committees are all property issues. Another major issue with property, which again is a justice situation, is why do we not have one decent housing Act? Is it not time to consolidate housing? When I tabled a Question on this issue, I was told by the former Lord Chancellor, the noble and learned Lord, Lord Mackay, exactly what wording to put in so that the justice department would answer it. Instead, it was answered by the communities department again. The Ministry of Justice did not answer it at all. I thought that was rather a tragedy because the noble and learned Lord had told me that with that wording it could not be replied to by anyone other than the Ministry of Justice. There is something wrong with the system if things are not getting through. It could be that we are not getting any response because the justice department is not even aware of what we are asking.

Property: Leasehold Valuation Tribunal

Debate between Baroness Gardner of Parkes and Lord McNally

Wednesday 16th January 2013 Lords Chamber

[Baroness Gardner of Parkes]

My Lords, in asking the Question in my name on the Order Paper, I declare that my interest is recorded in the register.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, we have no plans to review the working of the leasehold valuation tribunal. However, later this year, the tribunal will transfer into the newly established property chamber in the First-tier Tribunal, in line with our recently published administrative justice strategic work programme. In addition to improved deployment of judicial resources, the tribunal will operate under new procedural rules, which will continue to ensure that all parties will have greater access to an efficient, proportionate and fairer system of justice.

[Baroness Gardner of Parkes]

Is the Minister aware that in the Housing Act 1996, when the leasehold valuation tribunal was set up, the aim was to make it within the reach of every leaseholder to be able, for the amount of £500, to bring his case to the tribunal? Is he aware that now many landlords—whether they win or lose, even if they have no hope of costs—are charging their heavy legal expenses back through the management schemes in the blocks of flats?

[Lord McNally]

I pay tribute to the noble Baroness’s long campaign on this issue. She was an active participant in the Bill that became the 1996 Act. She is absolutely correct that the right of the managing agent to claw back costs of litigation can be written into leases. This can be countermanded by an application to the court under Section 20C of the Landlord and Tenant Act 1985, but that has to be a proactive action by the leaseholder. We are looking at ways to make leaseholders more aware that, if such a clause is written into their lease, they have this power to take action to have it set aside by the tribunal.

Claims Management Companies: Unwanted Text Messages

Debate between Baroness Gardner of Parkes and Lord McNally

Monday 5th November 2012 Lords Chamber

[Lord McNally]

The Government are making sure that there are joined-up investigations, co-operation between the various bodies responsible for various aspects of the industry and carried-through enforcement action. This is feeding through into weeding out the rogue traders and making sure that the consumer has sufficient information to be able to make rational decisions as to whether they use the services offered.

[Baroness Gardner of Parkes]

My Lords, is the Minister aware that I have asked Questions several times of both this and the previous Government, not so much about texts but about unsolicited phone calls on exactly the same matter? I have been told that you can go on to a site and put yourself on a list, saying that you do not want to receive things. But, unfortunately, that does not really work. The latest statement that I had from the Government was that if things come through overseas channels or other satellite means, they cannot control it; they can control things only within certain parameters in this country. Is that still the case? I am getting about six phone calls a week and sometimes three or four a day, all offering me wonderful things.

[Lord McNally]

I have some sympathy for the point that the noble Baroness makes, because we at home are supposed to be on this blocking mechanism that you sign up for, but the calls still get through. I will investigate the point that she made about whether international calls get round the blocking. I know that Ofcom is very much aware of this problem. I know that it is no use me telling the noble Baroness that she can go on to this register and that Ofcom is on the job and so on, because from the noises around the Chamber and my own experience, I know that these nuisance calls are still getting through. I will contact Ofcom and write to the noble Baroness with the reply, which I shall put in the Library of the House.

Freedom of Information Act 2000

Debate between Baroness Gardner of Parkes and Lord McNally

Thursday 15th March 2012 Lords Chamber

[Lord McNally]

That is an interesting prospect, which I suspect Sir Alan Beith may well look into.

[Baroness Gardner of Parkes]

Will the changes proposed cover such things as leaseholders being quite unable to get information or transparency? There are over 2 million leaseholders, and they are unable to discover whether the insurance company to which they are paying great money is giving a kickback to the superior landlord. Will that sort of thing be covered, or will it require other types of housing or accountancy legislation?

[Lord McNally]

I am afraid that it would require a different kind of legislation. This is about freedom of information from public bodies.

Loan Companies: Interest Rates

Debate between Baroness Gardner of Parkes and Lord McNally

Thursday 3rd November 2011 Lords Chamber

[Baroness Gardner of Parkes]

My Lords—

[Lord McNally]

I think that the House should hear from my noble friend Lady Gardner.

[Baroness Gardner of Parkes]

My Lords, is the Minister aware that many of us now get six or more phone calls every week? It is not just a high street issue but has become an absolute telephone menace. People are phoning all the time, stating that this is an official announcement and under the new law they can clear all your debts in no time at all. This is absolutely wrong. I have asked this question previously and the Minister told me that there was nothing the Government could do. I understand now that there is a blocking system. Will the Government publicise how to block these calls so that these poor people are not imposed upon again?

Elections: Registration

Debate between Baroness Gardner of Parkes and Lord McNally

Wednesday 26th October 2011 Lords Chamber

[Lord McNally]

My Lords, of course it is not acceptable; but neither is it acceptable for a mature political party to go round shroud-waving on a conclusion which involved joint deliberation by the parties that the old system had become increasingly distrusted and that voluntary registration—which would eliminate, or do a lot to eliminate, fraud, and create greater public confidence in the system—should be the way forward. The way forward proposed in the White Paper gives enough guarantees and assurances to show that the kind of language that the noble Lord has just used is, quite frankly, scare tactics which are not worthy of him or his party.

[Baroness Gardner of Parkes]

My Lords, coming from a country where voting is compulsory, I can understand why it should be compulsory to be on the register. However, as voting is voluntary in this country, what is the difference between not wishing to vote and not wishing to register? Can the Minister please clarify?

Crime: Homeowners’ Liability

Debate between Baroness Gardner of Parkes and Lord McNally

Tuesday 24th May 2011 Lords Chamber

[Baroness Gardner of Parkes]

To ask Her Majesty’s Government whether they will review the rules on homeowners’ liability in the event of injury to intruders on private domestic property.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the Government believe that the civil law provides effective protection to property owners and other victims of crime against possible claims for damages by those engaged in unlawful activity. We have no plans to review the law in this area.

[Baroness Gardner of Parkes]

I thank the Minister for that reply. Can he reconcile the contradictory advice given to homeowners, particularly in rural areas? In some areas, they are advised to lock up their lawnmowers and be very careful about their sheds, whereas in Surrey and Kent the police advise people that, whatever happens, they must not put any wire mesh on their garden sheds in case it injures a burglar.

[Lord McNally]

I saw the report of that advice. All I can say is that it is an example of overcompensation. Certainly, putting wire mesh on a shed is not disproportionate. The law warns against disproportionate protection measures. The property owner has protection in law to protect their property proportionately.

Coroners: Terminally Ill Patients

Debate between Baroness Gardner of Parkes and Lord McNally

Wednesday 3rd November 2010 Lords Chamber

[Lord McNally]

My Lords, I am sorry that the Royal British Legion has made that judgment. The decision not to go ahead with the chief coroner was made, as the noble Lord knows, mainly on financial grounds. The setting up of the post would have been expensive. The alternative that was put forward in my Written Statement is that we are going to take much of what was in the legislation in-house in the Ministry of Justice and do the tasks ourselves. I am well aware that in so doing we set ourselves a pretty important task because, as the noble Lord rightly said, when the Coroners and Justice Bill was going through this House all sides wanted to see an improvement in consistency in the coroners’ service. That is what we intend to do in-house and we will be judged on our performance.

[Baroness Gardner of Parkes]

Can the Minister tell me how lawyer coroners—I understand that most will be legally qualified but they will no longer be obliged to be medically qualified—will obtain assurance of the standards of the post-mortems that they commission?

[Lord McNally]

I understand that my noble friend in the Department of Health will be establishing the post of medical examiner. Medical examiners will be able to give this advice.