Draft Employment Tribunals and Employment Appeal Tribunal (Composition of Tribunal) Regulations 2023

Mike Freer Excerpts

Tuesday 16th January 2024 General Committees

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

I beg to move,

That the Committee has considered the draft Employment Tribunals and Employment Appeal Tribunal (Composition of Tribunal) Regulations 2023.

This draft instrument delegates the power to determine the composition of employment tribunals and the Employment Appeal Tribunal to the Senior President of Tribunals. The proposed regulations form part of the Government’s ongoing work to reform and improve the employment tribunal system.

Until now, panel composition in the employment tribunals has been determined by the Employment Tribunals Act 1996. It contained a list of case types that must be heard by a judge alone; cases that do not fall into those categories must be heard by a panel of three, or, with the consent of the parties, two. I know some people are concerned about why we are making changes, but the current arrangements are quite restrictive and prescriptive. Changing them requires a statutory instrument.

The panel composition rules suffered from a high degree of inflexibility, requiring a substantial amount of time and resources to make even reasonably minor amendments. This approach also meant that panel composition was determined by Ministers with the approval of Parliament through Acts of Parliament and statutory instruments, rather than by the judiciary, which is out of step with the wider unified tribunal system, where all decisions on panel composition are made by the Senior President of Tribunals. It also raises constitutional questions regarding the separation of powers.

The Judicial Review and Courts Act 2022 sets out a new framework that addresses these concerns. It gives the Lord Chancellor new powers to determine panel composition, while also making this delegable to a member of the senior judiciary. As the Committee will know, the intention when that Act was passed was to delegate this power to the Senior President. This instrument puts that commitment into effect.

If the draft regulations are approved, and following consultation with the Lord Chancellor, the Senior President will be able to issue practice directions specifying the types of cases that can be heard by a judge alone across the employment tribunals—a far more flexible process than before. Where the matters for discussion or decision concern narrow points of law, the Senior President may use the power to have a single judge, rather than a wider tribunal. That will enable the tribunal to be better tailored to the needs of users and the complexities of the cases it handles, while also aiming for far more efficient use of tribunal resources.

More widely, the draft regulations will align the employment tribunals and the Employment Appeal Tribunal with the arrangements that apply in the unified tribunal system by ensuring that panel composition is a judicial function, allowing the development of a more closely aligned tribunal system while retaining the separate nature and unique characteristics of the employment tribunals. The Senior President will be able to ensure that the tribunals have the appropriate composition to make fair and informed decisions, while also being used in the most efficient and proportional manner possible.

The challenges faced by the tribunals system in recent years, particularly the pressures posed by the covid-19 pandemic, have emphasised the importance of flexible and efficient resource use to meet the needs of the tribunals and their users. The employment tribunals have recovered well from the pandemic, with the current outstanding case load sitting far below its pandemic peak. The reduction is thanks in part to the steps the Ministry of Justice, working closely with His Majesty’s Courts and Tribunals Service and the Department for Business and Trade, has taken to increase capacity, such as through the recruitment of additional judges, the deployment of legal caseworkers, and a new electronic case management system. In particular, the judiciary has played an instrumental role in this easing of pressures, such as through the establishment of a virtual region of judges able to hear employment tribunal cases remotely from any region. Since its inception, this virtual region has allowed thousands of additional cases to be heard that otherwise would have been postponed. Nevertheless, challenges remain and the outstanding case load remains high, which means that parties may have to wait a considerable time for their claim to be determined.

The senior judiciary has continually shown its ability to make decisions to the benefit of the tribunals. I have every confidence that the Senior President’s role in deciding panel composition across the employment tribunal system will help to ensure we make the best use of the resources at our disposal.

As the Committee may be aware, in anticipation of this delegation of powers, the Senior President conducted a public consultation in February last year seeking views on his proposals for employment tribunal panel composition. I understand that he intends to publish a response to the outcome of the consultation once these powers have been delegated to him. None the less, I anticipate that some Members of this House may have concerns regarding the proposals set out in the consultation, particularly on the role of lay members and the potential for their reduced presence in the tribunals.

As some members may be aware, my noble Friend Lord Bellamy made clear the Government’s position on this during the debate in the other place. The Government value the vital contributions that lay members, through their wisdom and experience, bring to bear in proceedings in the employment tribunals. It is not our intention through the measures in this statutory instrument to dilute or weaken their role.

First, and most important, no decisions on the role of lay members or on panel composition arrangements in the employment tribunals more widely, have been made. While the Senior President shared a number of proposals in his consultation, no final decisions have been made. The Senior President has stated that any final decisions will take into account the views expressed by consultees. He will, no doubt, also be following the proceedings in both Houses closely; in addition, he has a statutory duty to consult the Lord Chancellor before making the practice direction.

I stress that this delegation of powers does not mean that we will lose the unique characteristics of employment tribunals, or that we intend to move away from the current structure. I reiterate: no decisions have been taken. However, even under the Senior President’s proposals, the system would allow hearings to be determined by a judge sitting alone, but would not require it. It would be left for the judge to decide the most appropriate arrangements for the particular circumstances of individual cases.

Concerns have been expressed that this statutory instrument threatens the special status of employment tribunals, imposing on them the panel composition arrangements that apply in the wider tribunal system. That is not the case. As some Members may know, different composition arrangements currently apply, under separate practice directions, in each of the chambers of the unified tribunal system, including to different types of proceeding within a chamber. This recognises the different specialisms and circumstances of the proceedings they deal with. The same approach will apply to the employment tribunals under the measures in this instrument.

Finally, judicial diversity is a key priority for the Government and the judiciary, and the lay members are a key part of that diversity. The Ministry of Justice is a member of the judicial diversity forum, through which we work closely with the judiciary, the Judicial Appointments Commission, the Legal Services Board and the legal professions to promote diversity in the judiciary across each jurisdiction.

This statutory instrument will put into effect a commitment to delegate powers over panel composition arrangements in the employment tribunals system to the Senior President of Tribunals. I believe it will allow flexibility without the loss of the valuable input that our lay members offer. Where narrow points of law are being considered, it may be more appropriate for the Senior President to appoint a judge only; where that is not appropriate, a wider panel will be appointed.

--- Later in debate ---

[Mike Freer]

Without prejudging what the Senior President will announce, I expect that where lay members have expertise to give, particularly on trade union membership or non-membership, they will continue to be used because they add value. If the case is about a narrow point of law, where legal training is needed, that is what I expect the judge to focus on.

If the proposals brought forward are unsatisfactory, the Lord Chancellor has the right to “undelegate” the powers. We think this is the right thing to do, because it allows flexibility. Also trying to put multi-member panels together can be resource intensive and time consuming, and sometimes the lay members do not have a particular skill to add. The instrument offers more flexibility and more speed.

Perhaps I can reassure the hon. Member for Glasgow South West by saying that at some point this will be a devolved matter. The Ministry of Justice and the Scottish Government have almost concluded discussions on how to devolve the powers, so any concerns can be addressed locally.

[Chris Stephens]

I thank the Minister for that reply. He mentioned that after the Senior President has reached a decision, the Lord Chancellor has the right to unpick it, but what mechanisms are there to report back to Parliament? Would there be a statement in the House, so that if we had concerns about the Senior President’s decision making, we could raise them in the House?

[Mike Freer]

The delegation of any powers by the Lord Chancellor can be reversed. That is the nuclear option. If Members have concerns about what the Senior President is proposing, let me give some thought to the best mechanism for giving voice to those concerns—whether we come back to debate the matter, or use some other mechanism. That is a perfectly legitimate ask, but let me give some thought to the matter. I am more than happy to have a private conversation with the hon. Gentleman. I will, if Members are happy for me to do so, write to the members of the Committee setting out what I think is the best way to ensure that concerns about the detailed proposals are discussed and addressed.

Question put and agreed to.