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

Lord Blencathra Excerpts

Tuesday 27th March 2018 Grand Committee

I point out that the requirement to have regard to a practice does not require the senior president slavishly to follow it. All I say is that we can learn from experience. In fact, the system works pretty well. We appreciate the need for it to be proportionate and efficient. Broadly, we accept that that means introducing cost-saving measures, and they are fine if they will have no impact on fairness. At best, the order could keep that, but at worst, the impact could be serious. We suggest that having regard to experience is often helpful in preserving the best of what we have.

[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?