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

Lord Marks of Henley-on-Thames Excerpts

Tuesday 27th March 2018 Grand Committee

[Baroness Vere of Norbiton (Con)]

My Lords, the principal purpose of the draft order before us is to provide the Senior President of Tribunals, to whom I shall refer as the SPT, with greater flexibility in setting panel composition within the First-tier Tribunal. These changes are being made with the support of the senior judiciary in order to address restrictions in the existing law. The order will also introduce a level of ministerial involvement with panel composition in the First-tier Tribunal and Upper Tribunal, bringing their processes in line with other parts of the justice system. The current SPT, Sir Ernest Ryder, has been consulted on the draft provisions and has confirmed his support.

Tribunals were designed to be user-friendly, allowing citizens to seek impartial redress. The tribunal system should be proportionate, accessible and simple to use, though it has become increasingly complex and burdened with bureaucracy. The Government have therefore committed to reforming the tribunals as part of our wider reform of the justice system, delivering a tribunal system that is more efficient and delivers better value for money. This will involve a greater use of technology. New online processes will enable tribunals to be more accessible and easier for users to navigate. As these reforms progress, the use of tribunal panel members should be more tailored and flexible. This will ensure that the tribunal can benefit from panel members’ specialist expertise and knowledge when it adds specific value to the decision-making process.

The terms of the existing composition order specify that in setting panel composition in the First-tier Tribunal, the SPT must have regard to the arrangements that existed before its creation. That requirement means that many tribunal panels are based on historical precedents, dating back over 10 years to 2008 and earlier. In a system that will be reliant on digital processes, the provision of specialist expertise should be looked at afresh to ensure that it remains appropriate. The current legislation restricts the SPT’s ability to do so.

I shall explain further. Tribunal reform will see the introduction of continuous online resolution. Parties will be able to submit a claim and evidence online, and judges will be able to review and request additional information, meaning that where appropriate a decision can be reached without the need for a physical hearing. This will be possible because, unlike the current system where the first interaction between the judge and tribunal user is usually the hearing, there will be an opportunity to offer information and resolve disputes earlier in the process. It will essentially be a triage system, where the most straightforward cases are resolved online and more complex cases continue through to a full hearing.

In this digital context, it would not be reasonable to require the SPT to have regard to panel arrangements that were in place before these alternative means of resolving disputes existed. Rather, the SPT may wish to consider whether specialist expertise could be provided in alternative ways that were more compatible with new online processes. The draft order therefore intends to remove the existing requirement on the SPT to have regard to previous panel arrangements. Instead, it will provide for a requirement to consider the nature of the matter and the means by which it is being decided, as well as the need for members of tribunals to have particular expertise, skills or knowledge.

I turn to ministerial involvement in panel composition. The existing provisions delegate the Lord Chancellor’s responsibility for setting panel composition to the SPT. The current arrangements have been made in practice statements, which do not include any form of ministerial involvement. It is intended to introduce a requirement for the SPT to set panel composition by practice direction. The process for doing this, as set out in legislation, is subject to consultation with the Lord Chancellor. There is nothing unusual about the use of practice directions, and they are used in other parts of the justice system. In the civil courts, decisions on judicial allocation and assignment are similarly matters for the judiciary, and are set by practice direction after consultation with the Lord Chancellor. The existing determinations made by practice statement, however, would continue to apply until such time as they are superseded. Although the SPT will be required to consult the Lord Chancellor, panel composition decisions will remain a judicial matter and the SPT will continue to make the final determination.

As to the number of panel members, two years ago the MoJ consulted on proposals to amend the panel composition provisions. At that time, it was proposed to introduce single-member panels as a default and to provide the SPT with the power to specify where additional members should be used. The intention was to ensure tribunal panel composition was proportionate to the case being determined.

However, we listened to our stakeholders and the Government subsequently announced that they would not proceed in this way. Instead, this statutory instrument provides that the SPT will determine whether a panel should consist of one, two or three members. While this still allows for some cases to be heard by a single-member panel—indeed, many tribunals are already ordinarily heard by a single member—the SPT will have regard to the nature of the matter and the means by which it is to be decided, and the need for particular expertise. We can therefore be confident that single-member panels will be used only in appropriate circumstances. Previous changes to panel composition have not proved to be controversial. In 2014, a former SPT conducted a pilot in the tribunal’s special educational needs and disability jurisdiction, reducing the number of panel members from three to two. This did not affect user experience. Importantly, the tribunal was flexible enough to ensure panel composition could be adapted according to the complexity of the case.

The Government of course recognise the valuable contribution that panel members make to the tribunal system. While there will continue to be a need for specific experts, the greater use of technology and new ways of resolving disputes will be an important new factor to consider. This instrument will not itself change panel composition. It will be for the SPT to review and consider whether new panel arrangements are needed.

There are sufficient safeguards to ensure that users are not adversely affected by any panel changes implemented under this order. The SPT has an existing statutory duty: to have regard to the need for tribunals to be accessible; for proceedings to be fair and handled efficiently; and for members of tribunals to be experts in law or the subject matter applied in cases. Additionally, as I have already stated, the revised order will specify that the SPT must have regard to the nature of the matter to be decided and the means by which it will be decided, as well as the need for members of tribunals to have particular expertise, skills or knowledge. Previously, wherever the SPT has sought to amend panel arrangements, he has done so in collaboration with senior members of the judiciary, who in turn have undertaken consultation appropriate to, and proportionate with, the nature of the proposed changes. The SPT has confirmed that he would remain committed to that practice.

In conclusion, the proposed measures will provide the judiciary with greater flexibility to ensure that tribunal panel composition is proportionate and suitable to the case being heard. I commend the order to the Committee.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have two main concerns as to this order. The first is the risk of damage to the quality of tribunal decision-making because of the reduced recourse to specialist expertise. We welcome the fact that in response to the consultation, as the Minister said, the Government have abandoned their proposal for a default position that tribunals should be single member. Nevertheless, we are concerned that tribunals may not benefit from specialist membership when they would otherwise do so.

My noble friend Lady Thomas of Winchester, who was planning to stay and speak but has had to leave because of the hour, is concerned about the composition of tribunals hearing personal independent payment cases. Her views apply equally, of course, to employment support allowance and disability allowance cases. Presently such appeals are heard by a tribunal judge together with a doctor and a disability specialist. It is important that experts have full membership of the tribunals in important cases because, in my noble friend’s experience, assessors advising tribunals are not always, as she puts it, up to the job. Her views are fully supported by Disability Rights UK, which has done a great deal of work in this area.