First-tier Tribunal and Upper Tribunal (Composition of Tribunal) (Amendment) Order 2018

Lord Beecham Excerpts

Tuesday 27th March 2018 Grand Committee

[Lord Blencathra (Con)]

My Lords, the noble Lord has just mentioned the little question I was going to ask and I apologise if my noble friend covered the point while I was scribbling some notes and trying to listen to the technical detail. It is simply about the cost: is there any additional cost to this measure or is there a cost saving? That is all I want to know.

[Lord Beecham (Lab)]

My Lords, there is no objection to reviewing the composition or indeed the working of tribunals in a system that covers significant areas of public policy and provision but which also extends to areas of law and practice in which the Government do not have a direct interest. The effect of the order as drafted is to enhance the role of the Senior President of Tribunals, notably in relation to the composition of panels, which hitherto has been the responsibility of the Lord Chancellor.

In many areas the tribunals will be adjudicating on claims and issues between the citizen and the state in relation to a variety of claims, and it may be that in many and even perhaps most of the cases in this category the proposed changes will not be controversial. There are, however, real concerns about the impact of the changes on the employment tribunal system in which the adjudication is between two independent parties, employees and employers, rather than the citizen and the state in one of its many manifestations. This is already an area in which the Government have intervened when they imposed fees for applications to the employment tribunals, an action which was of course struck down by the Supreme Court last year. The number of claims to employment tribunals has since risen by 60% with no perceptible increase in staffing and a consequential growing backlog in cases, to the detriment of both employees and employers. Can the Minister say what measures will be taken, and when, to address this issue?

However, there are issues about the application of the provisions of this order to employment cases. In a previous incarnation I had some professional experience of employment law, in all but one case on the part of employees. Employment law is, as the TUC has pointed out, a complex and specialist field of law. Among other things it is frequently concerned with equalities issues and, at least for the moment, the provisions of European law. There is therefore a very strong case for excluding these tribunals from the general provision in the order removing the requirement for the panels in the First-tier Tribunal and Upper Tribunal to have expertise in this area of law. In this I concur with what the noble Lord has said.

The TUC urges that the panels from which employment tribunals are drawn should be composed of people with experience of employment law, although not necessarily lawyers. This has the support of the CBI and other employers’ organisations. A majority of those responding in 2011 to a government consultation on the issue opposed the proposal to limit the role of lay members in unfair dismissal cases. Specifically, the TUC urges that lay members should sit in all employment-related cases, including fast-track cases, unfair dismissal and discrimination cases. It concedes, however, that where a case involves complex legal issues and, importantly, all the issues of fact are uncontested, employment judges should have discretion to sit alone.

The Government are keen, perhaps for understandable reasons, to promote virtual hearings and teleconferencing. Can the Minister say whether this extends to tribunals in general, and employment tribunals in particular? There are concerns about the reliability of these approaches and the stress on those who are unfamiliar with these systems, among whom I would probably have to include myself. There would need to be safeguards where, for example, the parties to an employment case give evidence of that kind rather than in a conventional forum, and there are some doubts about the ability of panel members to assess the credibility of witnesses or parties when such approaches are used. At the very least, will the Government pilot such methods before requiring them to be applied across the piece? Finally on this aspect, do the Government agree that virtual hearings of this kind should have to be agreed by both parties?

[Baroness Vere of Norbiton]

My Lords, I thank all noble Lords for their contributions. I agree with the noble Lord, Lord Marks, that the system does indeed work pretty well. The proposals today are just to make sure that it works slightly better than it currently does by focusing resources in the areas where we need them most.

Perhaps I could tick off an easy win by turning to the question raised by my noble friend Lord Blencathra. There are no costs relating to the proposals and indeed, there may be some cost savings, but of course the proposals themselves do not assume that. It will be up to the SPT to do the panel composition. However, in certain circumstances, lay members may not be required as a member of the panel, and in that case there will be a saving. One might assume that if there was a 25% reduction, for example, the saving would be somewhere in the region of £3 million. Again, I do not think that we should bank that; we need to be aware that resources need to be used effectively, but that is one possible consequence.

I turning to the point made by the noble Lord, Lord Marks, about the risk of damage to the quality of decision-making. I would point him to the changes which have already been made to panel composition and various other elements. For example, the Immigration and Asylum Chamber made some changes in June 2014. It decided that there would no longer routinely be a non-legal member on those panels. Over the period it looked at the proportion of cases that went to appeal and found that there was no change. I think that there is evidence that there is no risk of damage to the quality of decision-making. It will always be front of mind for the SPT to make sure that the panels are made up appropriately.

The appropriateness of the panel was raised by a number of noble Lords. It is clear that the SPT must ensure that in making these decisions, he or she has a legal duty to consider the need for tribunals to be accessible, for the proceedings to be fair and to be handled quickly and efficiently, and where needed, for the members of the tribunal to be experts in the subject matter. We do not see that that would need to change under this order. It will be up to the SPTs to decide the panel composition, whether that is for different types or groups or cases or sometimes on a case-by-case basis for very complex cases. I would go back to the original thing about this order which is that it will respond to the sort of triage system that we hope will come into force, whereby some very straightforward cases can be dealt with much more swiftly within the new system, which is good in terms of access to justice for people wishing to make a claim. On the impact of the changes in the panel composition, HM CTS routinely collects data relating to all tribunals, covering success rates, appeal rates and overturn rates of first instance appeals. We will continue to monitor that data as these changes come into effect.

The noble Lord, Lord Beecham, referred to employment tribunals. The order does not impact on those at all as it is not related to them, so it is probably not wise for me to go down that particular road today. We may look at similar provisions for employment tribunals in the future, but that would come under a different type of legislation and it is certainly not on the short-term horizon. If there are issues about employment tribunals that the noble Lord mentioned, I will be happy to write, but I am afraid that at the moment it is not wise for us to discuss it.

The provisions we have discussed today are an essential component of the Government’s ambitious plans to modernise Her Majesty’s Courts and Tribunals Service, and I commend the draft order to the Committee.