Deregulation Bill

Lord Kennedy of Southwark Excerpts

Tuesday 11th November 2014 Grand Committee

[Baroness Donaghy (Lab)]

My Lords, I promise that I will be very brief. I was thinking of Lord Newton of Braintree when the noble Lord, Lord Sharkey, moved this amendment—I am sorry that there is only one Conservative in the Room. As Members will know, Lord Newton was chair of the Council on Tribunals, and later chair of the Administrative Justice and Tribunals Council. He argued very strongly against the government proposal to abolish the Administrative Justice and Tribunals Council. I only wish he was alive today, and I hope he is looking down at us. I am sure that he would have been delighted by the way in which the noble Lord, Lord Sharkey, moved this amendment. I am sure that I am not alone in this House in missing him. When I was chair of ACAS I worked very closely with the then senior chairman—as they were called in those days—of the Employment Tribunals Service, my noble friend Lord Noon. He was part of the administrative tribunals system, and I also met Lord Newton on a number of occasions when he was performing the duties of the senior president.

This is part of the chipping away of tribunals. It may not seem very much on its own, but it is part of squeezing the tribunals together—which had totally different functions and history—cutting them back and now not even allowing transparency of decision-making. Also, as a former member of the Committee on Standards in Public Life, I believe that this fails the test of transparency and openness. It is extremely worrying that we have these kinds of developments. It may seem a very small part of a very large Bill, but I hope very much that the Government will reconsider this in the name of transparency and good decision-making.

[Lord Kennedy of Southwark (Lab)]

My Lords, the noble Lord, Lord Sharkey, and my noble friends Lord Rooker and Lady Donaghy have carefully outlined why this clause should not stand part of the Bill, and I very much support the points they have made. I pay tribute in particular to the noble Lord, Lord Sharkey, who made an excellent contribution with some excellent points. All I will say to the noble Lord is, if we do not get the answer he wants today, I hope he will come back to this on Report. If he presses it to a vote, he will find plenty of support on our side of the House and, I am sure, on the Cross Benches as well. This is a very bad clause.

I very much agree with the comments my noble friend Lady Donaghy made about Lord Newton, who would certainly have been on his feet in this Committee and in the Chamber, opposing this, as he did the many other things the present Government brought in regarding welfare.

To remove the duty from the Senior President of Tribunals to produce an annual report on the standard of decision-making by the DWP on appeals to the First-tier Tribunal is a matter of much regret. I am sure that the noble and learned Lord, Lord Wallace of Tankerness, will tell the Grand Committee—as his friend in the other place, Mr Vara, told my right honourable friend Mr Stephen Timms, as was outlined by the noble Lord, Lord Sharkey—that it is all to do with the high cost of producing the report and that the development of alternative methods means that getting feedback in is much easier now and it is all going to be fine. I am sure we are going to be told that the introduction of summary reasons for decisions in employment support allowance cases means that judges can explain why a decision has been overturned on appeal and provide feedback to the department in an effective way, and that this is not necessary.

I was going to ask the noble and learned Lord about costs but the noble Lord, Lord Sharkey, jumped in and put down a very good Parliamentary Question. I think that the issue of costs has now been shot down completely. We are talking about a very small sum.

My noble friend Lord Rooker also mentioned what went on at the DWP Committee. I saw the comments by His Honour Judge Martin in his evidence to the committee. He pointed out the problems and errors that are repeated year after year, with no sign that anyone in the department takes any notice of feedback from tribunals, and that concerns are just not dealt with.

I think the real reason for the clause is that the report has become an embarrassment for the Government. They want to sweep it away—as my noble friend Lady Donaghy said, this is not transparent—so that the annual assessment is not there and they do not have to look at it or address it. That is a really bad thing to do and they need to come back on that.

If the issue is the £20,000 cost of the report, did the Government look at any other ways that this could be done? Does it have to be a glossy report? Can it not be, as the noble Lord suggested, a more regular communication—a letter, perhaps—where the tribunal could highlight the problems it has seen coming forward? It could be every three months or six months. It could be made public. If the Senior President of Tribunals sees problems, there must be a way for him to communicate that to the department and not just leave it to people who will look at judgments and make a decision. That seems a wholly ineffective way of doing that. Perhaps the noble and learned Lord could reflect on that before we come back.

This is a bad clause. Obviously, it cannot be voted on today. I hope that if we do not get an answer today, the noble Lord, Lord Sharkey, will come back to this on Report. As I said, he will have our support.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I thank my noble friend Lord Sharkey, the noble Baroness, Lady Donaghy, and the noble Lords, Lord Rooker and Lord Kennedy, for their contributions to this clause stand part debate. It is only right and proper that we are challenged as a Government as to why we want Clause 61 in the Bill. I will certainly seek to address the issues and will reflect on the points that have been raised. But there is a good basis for why we might wish to remove this particular, very limited, form of reporting.

Clause 61 repeals a specific and separate duty placed on the Senior President of Tribunals to report annually to the Secretary of State for Work and Pensions on the standard of certain decision-making by the Department for Work and Pensions; namely, decisions whose associated appeal rights are resolved at the First-tier Tribunal: Social Security and Child Support. The duty was introduced in 2007 and replicated an equivalent duty on the then President of Appeal Tribunals, who had produced a separate annual report since 2000.

I cannot agree with the charge that the underlying motivation for this is to reduce transparency. I say to the noble Baroness, Lady Donaghy, who made that charge, that in fact Section 15A of the 1998 Act applies only in two other small respects. One is where ministerial responsibility for certain decisions about national insurance contributions by carers was transferred from the Department for Work and Pensions to Her Majesty’s Revenue and Customs. The second relates to decisions converting certain previous entitlements to employment and support allowance. Otherwise, there are no other areas in this field where a separate statutory duty applies to the Senior President of Tribunals. It is very limited in its application and I will come on to say why I think there are other measures that are effective and provide for proper transparency, which I agree is important. I am confident that we can remove this requirement in a way that narrows our focus without compromising necessary improvements which previous reports have highlighted and meets the concerns that have been raised should it disappear.

--- Later in debate ---

The expression in the annual report from the Senior President of Tribunals is that the previous reporting system “lacked practical value” because it did not allow detailed analysis. It is that which we have sought to address by other means, which is why we believe that the provision as it currently stands on the statute book is redundant. I hope that I have reassured the Committee that in no way will that lead to any less transparency. Indeed, one would hope that through regular and more immediate reporting, trends can be picked up sooner than would have been the case under the previous system.

[Lord Kennedy of Southwark]

I am not convinced by the idea that this is some huge burdensome amount of work for the Senior President of Tribunals. If the senior president, having been relieved of this burden if this provision becomes law, picks up on matters that they feel that they need to write to the department about—maybe annually, every couple of years or so on over time—what would the Government’s response be? Would they make that letter public? There may be concerns here that the provision would not address. It would be useful if the Minister could comment on that.

Would the Minister also comment on the £20,000 saved in judicial time? If they took some action on some of the points that have been raised by the tribunals, it might save far more than the £20,000 that is being talked about for this report.

[Lord Wallace of Tankerness]

The points that the noble Lord raises are fair ones. He asks what happens if the Senior President of Tribunals has problems reported to him. We have indicated that there is now a process by which the department, through the drop-down menu scheme, does get regular indications of where there are problems, so they can be addressed. As I also indicated in my remarks, if the senior president thought that the DWP was systematically ignoring all of them, or if he thought that he had written a letter to the department and the department was still ignoring it and was not making it public, there is a separate statutory power available to him in paragraph 13 of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 to lay representations before Parliament—before noble Lords and in the other place—of any,

“matters that appear to him to be matters of importance relating … to the administration of justice by tribunals”.

If he thought that there were systemic problems that were not being addressed and that his representations, or those from others within the tribunal system, were being routinely ignored, there is quite an important provision there which allows him to, as it were, leapfrog the Government and come directly to Parliament.

The noble Lord’s second question was about the £20,000 of judicial time that can be freed up. I am sure that it is not the only thing that can be done and that it does not come at the expense of other things. I am sure that there are many ways in which better decision-making through the mandatory reconsideration process should, hopefully, reduce the number of cases that are going forward and therefore allow such cases as are put forward to be dealt with more speedily. I hope that reassures the noble Lord.