Draft First-tier Tribunal and Upper Tribunal (Composition of Tribunal) (amendment) order 2018

Yasmin Qureshi Excerpts

Thursday 26th April 2018 General Committees

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. We will be seeking a Division on this order. This is my third Delegated Legislation Committee of the week, and I was very good in the previous two, because I did not speak and I did not seek any Divisions—perhaps I want to make up for that today.

Tribunals, which have existed for many years, perform a vital role in our judicial system. They were designed mostly to deal with decisions made by public authorities—Government, the civil service, local authorities and others—but from time to time they are used when it is people against other people, for example in employment tribunals or the Land Tribunal. The rationale has always been to make them user-friendly and less formal. Strict rules of evidence are often not applied, and common sense is an important part of the process.

Tribunals always have a legal chair, who can bring legal expertise, and they normally have either one or two lay members attached to them. Those lay members tend to include at least one person with expertise in the particular area, and there often used to be another person who knew about the area—they might not have been an expert, but they could bring what I would call common sense. I will illustrate what I am talking about, because sometimes the lay element in tribunals is overridden and its strength not appreciated.

The Employment Appeal Tribunal is a classic example. As we know, traditionally it had one legal chair, one member from the CBI and one person from the trade unions. The reason for that is obvious: when there are employment disputes, and issues arising in the workplace, both those who have dealt with the issue from the employer’s perspective and those who have dealt with it from the employee’s perspective are there. Quite often the issue is not just what the law is; the law is quite straightforward in most cases. It is a question of fact; what weight is given to certain facts, and to certain practices in different companies, organisations and workplaces.

People who are members of trade unions and people who are members of the CBI—employers, businesspeople and so on—will have different experiences. Three people make the determination together, which is important for the ordinary person. We have to remember that most people who go to tribunals are not legally represented. Often their interests are protected, and what they have to say is listened to. The lay aspect is so important, and having a panel that is composed of a greater number of people.

The Minister may say that the provision made by this order does not rule out the Senior President of Tribunals constituting a tribunal in the way he or she—it is a he at the moment—thinks is appropriate for the case. However, the way tribunals have been constituted historically, and the way they operate at the moment, is, in my opinion, and I think in that of many people who use them, the best, fairest and most just.

I do not say that because of anything I might have read in the newspapers, but because many barristers and solicitors try to get some advocacy experience when they are law students. Most of the time their legal experience and advocacy skills come from going to tribunals, because people do not have to be legally qualified to turn up. As a second-year student, before I started working full-time six years later, I went to many such tribunals, including ones on education, health and disability, criminal injuries compensation, immigration and employment. I have first-hand knowledge and experience of the importance of having more than one person, and sometimes three people, at a tribunal hearing. The existing system is right, and we believe that any dilution of it would not be right, appropriate or fair.

I know that some people say that the Senior President of Tribunals, when deciding whether to have one, two or three people, will look at the nature of the case. The truth is that in tribunals—I believe we have 11 first-tier tribunals and six upper tribunals in the United Kingdom, covering vast swathes of people’s lives—often the litigant will not have made a reasonable case for appealing. Sometimes it is just a simple, “I’m appealing,” because they do not know what grounds to put into it.

I have had constituents come to me who are appealing to tribunal. They have said, “I don’t know how to write; I can’t construct sentences.” Some people cannot write and some people, even if they have basic literacy skills, are unable to compose a sentence or a proper coherent application for grounds to appeal. Often there will simply be one line saying, “I don’t agree with this decision,” and at the hearing we find out what has actually been going on and what the person is trying to say. At that point it is too late because the tribunal judge has looked at it and said, “There’s not much here, so we don’t need to have an expert,” or, “We don’t need to have this person in here.” It looks straightforward, but it is not.

I could give hundreds of examples, but I will refer to one classic one from when I represented somebody on a voluntary basis in what used to be called the DSS— Department of Social Security—tribunals. There was a medical report from the GP. In those days there was a doctor, a lawyer and a person from a local authority, who was not a councillor or a political person, but someone on a list of the great and the good or who was active in the community. The claimant had fairly limited English and their understanding was fairly limited. I looked at the medical report and thought, “What does all this medical terminology mean?” I had to go through “Black’s Medical Dictionary”, talk to a few friends who were medical students and create a whole submission on the debilitating effects of the condition on the claimant. The judge and the doctor listened to me, but it was the lay member who said, “Ms Qureshi, you are so right. My aunt has exactly the same condition, and what you are describing happens to her as well.”

I give that as an example of a case that is not straightforward on paper and why it is so important to have a second or third person present. That is one of the reasons why tribunals have been constituted in this way, because they reflect the realities on the ground. In this place sometimes we forget. I am sure that MPs whose constituents come to see them know that a lot of people have difficulty even constructing a sentence. The lay and expert elements are therefore as important as the judicial element. How previous tribunals were constituted is important, and we should not be derogating from that or watering it down.