Draft Medical Devices (In Vitro Diagnostic Devices etc.) (Amendment) Regulations 2023
(4 months ago)
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The Chair
Before I call the Minister to move the motion, let me I make it clear to the Committee that this is not exclusively a Northern Ireland instrument, as items to which it refers can be sold in the rest of the UK. I will therefore allow this Committee to run for 90 minutes.
The Minister for Health and Secondary Care (Andrew Stephenson)
I beg to move,
That the Committee has considered the draft Medical Devices (In Vitro Diagnostic Devices etc.) (Amendment) Regulations 2023.
It is a pleasure to serve under your chairmanship, Dame Maria.
I will begin by setting out the policy context of the draft regulations. The Medicines and Healthcare products Regulatory Agency is the UK regulator for medical devices, including in vitro diagnostic devices. The agency is responsible for enforcing the regulations and protecting patient safety. The provisions in the instrument will enable the MHRA to carry out its duties effectively in Northern Ireland.
IVD devices are used to test samples taken from the human body, to monitor a person’s overall health or to treat and prevent diseases. These can include complex tests, such as blood tests to detect HIV or hepatitis and tests for cancer biomarkers, or more commonly used tests, such as pregnancy tests. In May 2022, the EU replaced its regulatory framework for IVD devices with a new regulation, the EU in vitro diagnostic regulation. The EU IVDR has automatically applied in Northern Ireland since 2022 under the terms of the Windsor framework.
This statutory instrument brings important benefits to patients and businesses across Northern Ireland. First, it enables the MHRA and the Department of Health and Social Care to protect patients in Northern Ireland more effectively. Without it, the MHRA will lack important powers equivalent to those in place across Great Britain, leaving NI patients lacking important safety protections available elsewhere.
Secondly, the SI is particularly important because life sciences and medical technology are major growth sectors for the Northern Irish economy. It provides for a stable regulatory environment in Northern Ireland, enabling the whole of the UK to remain an attractive market for research and the development of medical technologies. Thirdly, the SI will unblock UK-wide clinical studies of medical devices and IVD devices that include Northern Irish locations. Last, the SI facilitates consistency between the operation of devices regulation in Northern Ireland and GB where beneficial to Northern Ireland, including through provisions to charge comparable fees and to reflect the unfettered access of NI IVD devices into the GB market.
I will summarise the key provisions in the instrument. It lays down proportionate penalties and gives the MHRA powers to serve enforcement notices for breaches of the EU IVDR in Northern Ireland. Although the MHRA previously had the necessary tools to respond to safety concerns, the draft regulations further strengthen that toolkit. The SI also gives the MHRA powers to designate and monitor notified bodies in relation to the EU IVDR and charge fees relevant to those services. Notified bodies in the UK can carry out the technical conformity assessment of IVD devices for EU regulatory compliance, allowing manufacturers to affix the CE and UK(NI) marks for placing their devices on the market across the UK.
Sponsors of performance studies for new IVD devices in Northern Ireland will need to apply to an ethics committee in the UK for an ethics review, and hold sufficient insurance to meet any potential financial liability in the event of injury or death as a result of participation in the study. The instrument also creates an arbitration procedure for refused performance study applications. It allows performance studies of IVD devices and clinical investigations of medical devices taking place in both Northern Ireland and Great Britain to require only a contact person to be established in Northern Ireland, rather than a legal representative, supported by a sponsor or legal representative established in Great Britain. That reduces the burden on business and makes it straightforward for investigations to include sites across the whole of the UK. This will enable more studies and investigations to go ahead in Northern Ireland.
The instrument includes specific provisions to ensure unfettered access of qualifying NI IVD devices to be placed on the GB market with no additional barriers or burden. This product-specific legislation sits alongside general protections for Northern Ireland’s unfettered access to the rest of the UK market under the United Kingdom Internal Market Act 2020.
IVD devices play a critical role in maintaining patient and public health, and this statutory instrument will strengthen the regulation of these devices in Northern Ireland. It protects patient safety and facilitates consistency in IVD regulation between Northern and Great Britain, which will enable the whole of the UK to remain an attractive market for research and development of medical technologies, bolstering the UK Government’s commitment to the life sciences sector.
Preet Kaur Gill (Birmingham, Edgbaston) (Lab/Co-op)
It is a pleasure to serve under your chairship, Dame Maria.
As the Minister set out, we are considering regulations that update legislation pertaining to in vitro diagnostic devices and make supplementary provisions for the EU IVDR in Northern Ireland. The SI appears to be an innocuous measure to support the implementation of new EU regulations that came into operation in Northern Ireland in May last year. Those will continue to be applied, per the annex to the Windsor framework, but with consequential amendments to other legislation, provisions for the fees for certificates and conformity assessment, and some practical provisions for the enforcement of the new regulations.
It is of course critical that we secure continuity of supply and trade in medical devices within the United Kingdom and with the EU. The draft regulations affect a diverse range of equipment and systems to examine specimens in vitro, including things like blood grouping reagents, pregnancy test kits and hepatitis B test kits. From catching killer diseases early to preventing infections, the medtech sector makes a huge contribution to our national health service and our vibrant life sciences sector. These products are found in doctors’ surgeries, hospitals and our own homes, and we saw during the pandemic how difficult it can be to replace them when supply is disrupted.
Although the explanatory memorandum sets out that the draft regulations should affect only 19 businesses in Northern Ireland and cost less than £5 million to implement, they are still a valued part of the UK medtech ecosystem. The Opposition therefore support the regulations to secure unfettered access to the GB market for NI businesses and continuity of supply. None the less, I have a few questions for the Minister.
We welcome the fact that the previous fee structure is being retained to reduce disruption for NI operators, but will the Minister say what assessment has been made of any impact on the MHRA’s responsibilities as regulator, and assure us that it will be resourced to fulfil them? Previously, Ministers have talked about future realignment of regulations on medical devices following our departure from the EU, including consideration of alternative routes to the GB market. Will the Minister comment on the opportunities in this area? What is the timeline for the future regulatory regime that the Government want to bring into force? The Government have still not set out their proposals; is there a timeline for doing so?
It is interesting that medical devices did not receive attention in the Windsor deal. I know that some suppliers are disappointed by this, citing the complexity of navigating the current system. Is the Minister considering adding other product classes, like medical devices, to its scope? Will he also clarify the status of devices on which a conformity assessment has been performed by a UK notified body? Will it be possible to place devices bearing a CE conformity mark as well as the EU(NI) mark on the EU market? To my knowledge, no UK notified body has been appointed; when will this be dealt with and why has it been delayed?
To reiterate, we support the amendments to secure continuity of supply for the critical medtech sector. I look forward to hearing the Minister’s response.
Andrew Stephenson
I thank the shadow Minister for her remarks and her support in principle for the instrument. She asked about the MHRA’s capacity to deal with these new regulations. We have received assurances that the agency sees this as a tidying-up exercise. It welcomes the regulations, which it wanted to be introduced, and sees no capacity constraints.
To update GB regulations on medical devices with a specific focus on patient safety, the Government will bring forward secondary legislation in the near future. I cannot be more granular about the timescale, but we do intend to introduce that at the earliest opportunity.
We consulted widely on the draft regulations. I was in Northern Ireland on 4 January, when I spent the day meeting life sciences companies in Belfast and Lisburn. The Government are committed to promoting access to safe and effective IVD devices for all patients across the whole of the United Kingdom, and this SI supports that commitment by strengthening the MHRA’s enforcement powers in Northern Ireland. The MHRA has worked collaboratively with the Northern Ireland Department of Health throughout the development of the regulations, and will continue to do so to ensure their effective implementation and to monitor impacts on the market.
By supporting the regulations, we will ensure that the MHRA can effectively carry out its role as a regulatory authority in Northern Ireland, ensuring that patients in Northern Ireland and in Great Britain have access to safe and effective IVD devices. The provisions will reduce the burden on NI businesses when placing a device on the market. We believe the measure will generate innovation and attract investment into the UK and UK businesses, build on the life sciences strategy, and realise the opportunities in the life sciences sector. I am grateful to the Opposition for their support and to the Committee for considering the draft regulations today. I commend the regulations to the Committee.
Question put and agreed to.
Draft Child Support (Management of Payments and arrears and fees) (Amendment) Regulations 2023
(4 months ago)
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The Parliamentary Under-Secretary of State for Work and Pensions (Paul Maynard)
I beg to move.
That the Committee has considered the draft Child Support (Management of Payments and Arrears and Fees) (Amendment) Regulations 2023.
It is a pleasure to serve under your chairmanship, Mrs Latham, and I am pleased to introduce this statutory instrument, which, subject to approval, will help more families to access vital support through the Child Maintenance Service. It will also ensure that efforts and resources can be focused on taking action to collect unpaid arrears in those cases that will make the biggest difference to children.
The draft regulations are intended to further improve access to the Child Maintenance Service for all families, and to ensure that it runs effectively to focus on getting more money to children. First, to improve access, the regulations remove the £20 application fee to access the Child Maintenance Service. The fee was introduced in 2014 to encourage parents to come to their own collaborative family-based maintenance arrangements, rather than go down the statutory route by default. Evidence published by the Department for Work and Pensions as part of an evaluation of the fee and its impact shows that the £20 fee is not a significant factor for parents when making decisions about their child maintenance arrangements.
However, the evaluation found that families on lower incomes, whom we know disproportionately experience conflict and therefore are often in need of support, can find the application fee a financial barrier to accessing the service. It is important to highlight that around 54% of all applicants already pay no fee because of existing waivers, such as those for victims of domestic abuse and those aged under 19. Therefore, it is sensible to remove the application fee completely for all, ensuring that those most in need can get support more easily.
The regulations will also ensure that the service can more efficiently focus resources on getting larger, more recoverable unpaid payments flowing to children. To be clear, we continue to come down on parents who refuse to pay child maintenance and fail to take responsibility for their children. We do so using a range of enforcement powers to collect unpaid amounts. However, we are taking a pragmatic approach in these regulations by bringing forward powers to write off minimal amounts of £7 or less in a small number of inactive cases that would have been closed were it not for small outstanding balances.
We are introducing that measure for two reasons. First, keeping such cases open requires considerable resource, and taking action to recover such small amounts often costs more than the value of the debt. The cost of leaving such cases open could increase for decades, with no greater chance of money being paid to receiving parents. We need to ensure that taxpayers’ money, as well as caseworker time and effort, is directed effectively, for example by focusing action against parents who owe significantly larger sums and where the impact on children missing out on money is greater. Secondly, given that we close cases only when we have stopped calculating child maintenance payments, it is likely that such cases will no longer be needed. That could be because the child has become an adult, the parents have reconciled, or the absent parent has sadly passed away. It therefore makes sense to close these cases, not least for the certainty and clarity it provides for families.
Siobhan Baillie (Stroud) (Con)
I have just been before the Backbench Business Committee with the right hon. Member for East Ham (Sir Stephen Timms) to ask for a debate on child maintenance, so if we get our way, the Minister will hopefully be talking about this again. I see that the proposals affect only 2,800 cases, and both measures seem sensible, but every single MP gets many cases about the service, response times, or things being lost. How will the Department and the Government make sure that even this small change does not send the message that they are not interested in such cases or in ensuring that arrears are paid to families?
Paul Maynard
I very much look forward to the next debate that comes my way. I am slightly trepidatious, because this is not my policy area, but it is a good chance for me to learn a bit more and understand it better. My hon. Friend is quite right that we all get many such pieces of constituency casework, which shows the importance of getting this right. I can talk at much greater length about what we are doing, so I look forward to the debate.
The full details of the criteria permitting a debt to be written off are set out in the regulations. They include the maintenance calculations having ceased, and no payments having been made in the previous three months. In addition, the Child Support Act 1991 provides that for write-off powers to be exercised, we must be satisfied that it would be unfair or otherwise inappropriate to enforce liability in respect of the debt.
The changes build on a number of improvements that we have already made, and they are among the first in a wave of measures that we plan to bring forward to ensure that the service is more accessible, simpler and speedier, and ultimately gets more money to more children more quickly.
The measures represent proportionate, common-sense changes that will further improve the Child Maintenance Service. They are good for parents, good for the taxpayer and, most importantly, good for children. I hope that colleagues will join me in supporting them.
Alison McGovern (Wirral South) (Lab)
It is a great pleasure to serve under your chairship, Mrs Latham. Without rehearsing all the arguments ad nauseam, let me say that we support the measure and think it is good that it removes the application fee. The Minister has already explained why that is positive, and we agree with him.
I will not detain colleagues for long. I want to make three quick points and ask the Minister some questions. If the hon. Member for Stroud and the Chair of the Work and Pensions Committee are successful in securing a Backbench Business debate, more colleagues will be able to rehearse the issues for longer. A large number of cross-party colleagues would like the country to learn the lessons from their casework. I am one such Member, so I support that initiative for a Backbench debate, and hope that we can discuss these issues again without too much delay.
Following discussion of the measure in the other place, we know that the Government anticipate that the removal of the fee will have the positive impact of increasing the number of agreements. We also know, however, that the Government think that the fee is not the sole reason why there are not as many agreements as we all want. As the Minister has explained, it is very important, for anti-poverty reasons as well as basic fairness, for payments to be made to parents, but the fee is not the only problem. In response to a question asked by my colleague in the other place, the Minister explained in writing that 35%—more than a third—of receiving parents without arrangements said that they wanted a payment arrangement with the other parent. Although we know, as the Minister has explained, that the removal of the fee will have an impact, there is more to do to ensure that more parents secure an arrangement.
What research are the Government undertaking with parents who have experienced the system in order to ensure that it works better? What is the plan? A wide range of MPs and stakeholders know that the system does not work perfectly. It would be good if the Government could say more about how the removal of the fee will help. Furthermore, their own research identifies parents who want an arrangement, so could the Government share their plans for how those parents get one? Could we hear a little more about that research?
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
My hon. Friend makes a very good point about the need to know the details of the Government’s research. When the parent who should be paying is self-employed, or employed via a company that their new partner owns, there are often a lot of disputes about how much they actually earn and their household income. Does she agree that it would be interesting to know whether the Government have researched any of those problems, which seem to cross my desk regularly, and to hear their solutions? This measure is good, but it does not really touch the sides of some of those big issues.
Alison McGovern
I am coming to that, but my hon. Friend makes the point well. I am sure that the Minister and many colleagues would recognise that there is a broader agenda here about making the service much more effective for parents. I think everybody across the House will be anxious to hear more about that from the Government.
Secondly, I have been in touch with Gingerbread, the organisation for single parents—everybody on the Committee will know it well—about these regulations. It raised a couple of things with me, particularly in relation to the point that the Minister made about survivors of abuse. As he mentioned, previously the fee was waived for survivors of abuse. Gingerbread tells me that that enabled the CMS to know how many survivors of abuse were using the service. It is important that that is calculated, and that the service knows about the body of its service users who are survivors of abuse. When the fee is removed, how will the service know how many of its users are survivors of abuse, so that it can ensure an effective service for those people?
As you will know, Mrs Latham, we have gone on a big journey over the past decade on financial abuse and understanding how, unfortunately, abusers often use arms of the state to continue that abuse, even after separation, and even once protection is in place for the victim of abuse. The Child Maintenance Service is therefore on the frontline in protecting parents who have experienced domestic abuse from experiencing further abuse. If the Minister can say a little more about what training the service has planned, and about Gingerbread’s important question on how we will monitor how many parents using the service are victims of abuse, we would all find that helpful. Gingerbread also points out, quite rightly, that we might anticipate that more people will apply to use collect and pay, so it would be good to know how the Department is planning to ensure that that increase in demand is met.
Finally, we all understand the rationale—the Minister set out the case precisely—for writing off small arrears, particularly when the cost of pursuing them would far outweigh their value, but as the Minister also set out, we want writing off small arrears to increase the effectiveness of the service. Gingerbread says that it is not uncommon for its helpline to receive calls from people who are owed tens of thousands of pounds. Those are the arrears that we want tackled, so will the Minister say how writing off these nugatory amounts will enable the service to become more effective? That is what we all really want. If we can have a debate on this in Back-Bench time, I hope that we will hear from a huge number of colleagues, from right across the House, about what parents have experienced in trying to get debts paid. It is no small thing and can be an extremely frustrating experience.
It would be useful if the Minister could say more about, first, the Government’s research—what they hope to publish and what they hope for—so that we can understand the effectiveness of getting these agreements in place and what parents might find most helpful, beyond removing the fee. Secondly, perhaps he can say more about victims of abuse—how we will monitor them and make sure that the right training and resources are in place in the service. Finally—this is the major point—we all want an effective service. In the end, this is about all our kids in this country. This is about making sure that they do not grow up in poverty, and that their parents have enough money in their pockets to look after them. If the Minister could explain what the plan is to ensure effectiveness, that would be very helpful.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is good to see you in the Chair, Mrs Latham. I want to briefly put on record the Scottish National party’s support for these draft regulations, and particularly for the scrapping of the £20 fee, which makes perfect sense. The Minister’s arguments for reprioritising resources, so that we chase not very small amounts of money but larger sums, also make sense, but obviously we need to monitor that very carefully. We would, of course, encourage the Government to go further on issues such as collecting pay fees, the 4% in particular. Some of the arguments that the Minister has used today for scrapping the fee could equally apply to that charge. Like Members from across the Committee Room, we want the overall performance of the service improved, but that is for another day. Perhaps it is for the Backbench Business debate that we hope is coming. In the meantime, we support these regulations.
Paul Maynard
I thank both the Front-Bench spokesmen for their support, and for their helpful summary of the questions, which gave me that bit longer to make sure that all my notes for answering them were in the right order. First, the hon. Member for Wirral South mentioned application numbers. The main thing that the Government have been doing is trying to use a more digital service called “get help arranging child maintenance”, which has been operational since 2022 and has seen the number of applications increase. That shows that we can we can create a pathway, so that people going through a breakdown in a relationship can seek out the right support.
The hon. Lady mentioned research. It helpfully says in my notes that research has shown that those on the lowest incomes are least likely to have an effective arrangement. It does not give me much more than that, I am afraid, so I will commit to writing to her on that point. I will try not to have to write to her on any other point, but I am giving the best answers I can.
The hon. Lady rightly raised the issue of domestic abuse. After we have removed the fee, we will continue to capture information about parents who need additional support, including as a consequence of domestic abuse, and ensure that they are able to safely use the service, because there are many safety issues around how money is transferred. We will move away from collecting the figures and towards using externally reported quarterly stats, but we will look at how best to capture the information in a usable format in the future.
The hon. Lady may be aware that CMS has a domestic abuse plan, which outlines key steps for caseworkers to follow to ensure that victims of domestic abuse are supported. That includes advice on contacting the police, for example, if the parent is in immediate danger. CMS can also act as an intermediary in direct pay cases, and provide advice on how to set up bank accounts with a centralised sort code to limit the risk of a parent’s location being traced. We also reviewed our domestic abuse training, and commenced using a single named caseworker to ensure that victims of DA are appropriately supported, so I think we are doing an awful lot on abuse in the home.
Alison McGovern
Could I ask the Minister to be clear on the statistics that will be published about victims of domestic abuse? I understand his point about training and the pathway that will be there, but from the point of view of public transparency, it is important that we can see how many users of the service are victims of domestic abuse, and that the data is publicly reported. I say that simply because, as he will understand, abuse has so often been completely hidden. Many people would be quite shocked to find out how many people are victims of financial abuse, so it is important that that is reported publicly, not just understood within the system. Could the Minister confirm that the Government will still report publicly how many users of CMS are victims of domestic abuse?
Paul Maynard
I take the hon. Lady’s point. It says in my brief that CMS will look at how it captures that information. I will ensure that that point is passed on to Viscount Younger in the other place when he is looking at whether the proposals are adequate. No decision has yet been made. Nothing has been ruled out; nothing has been ruled in. I accept her point, and like her, I am a champion of transparency wherever possible, so I will ensure that Viscount Younger writes to the hon. Lady.
On the points that were made about collect and pay and the calculation more generally, we are consulting on how we can improve both those things. I believe that the consultation on collect and pay is yet to start, but we announced in October that we would be consulting on how to collect and transfer maintenance payments. I understand that the consultation on the calculation side of things will also be launched shortly.
Finally, there is a very valid point, which I often hear in my own constituency, about cases involving vast sums that parents are unable to access for one reason or another. Where parents have certain categories of taxable income that are not captured by a standard child maintenance calculation, they can make a request to CMS to have the calculation varied. We have consulted on proposals to include more types of taxable income held by His Majesty’s Revenue and Customs in the standard maintenance calculation. The proposals were accepted, and legislation will be brought forward when parliamentary time allows. Cases involving complex income can be investigated by the financial investigation unit, which is a specialist team. Where there is evidence of fraud, the FIU will seek to prosecute, or forward the case to HMRC for action.
In summary, as everyone has agreed, the regulations mark the beginning of a more comprehensive legislative journey towards improving the Child Maintenance Service and represent a clear road map to action. I am committed to working with Viscount Younger to drive these plans forward in order to deliver a fairer, faster service for more families, especially the poorest. I thank everyone for attending the Committee.
Question put and agreed to.
Draft Employment Tribunals and Employment Appeal Tribunal (Composition of Tribunal) Regulations 2023
(4 months ago)
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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.
Ruth Cadbury (Brentford and Isleworth) (Lab)
It is a pleasure to serve under your chairship, Ms Elliott. I thank the Minister for his remarks.
It is a pleasure to speak for the official Opposition in this debate on a statutory instrument to bring in the changes to the membership that oversees employment tribunals that were introduced under the Judicial Review and Courts Act 2022. In the previous system, tribunals sat between the MOJ and the Business Department; under the draft regulations, the Secretary of State for Justice will delegate power to the Senior President of Tribunals to decide the composition and make-up of the panels. The reason given by the Government is that it creates greater scope for panels consisting of a single member, who, I understand, will always be an employment judge. We do not oppose the change and will not vote against the instrument today. The decision on whether to have a single judge or a multi-member panel will depend on the case and the need for relevant and appropriate experience.
Turning to the wider context around employment tribunals, the Minister mentioned that the change is being introduced to bring about a more unified justice system; he also mentioned more flexibility and better use of resources. I am sure that those formed part of the Government’s reasoning. However, as the Minister in the other place said, we also have to consider the backlog. At the end of 2022, the employment tribunal backlog stood at 475,000 cases, with a wait of some 49 weeks for a decision. That is a long wait for justice for workers who have been wronged in their workplace—bullied, denied pay, or subjected to other mistreatment—and who decide to pursue their case to tribunal. I was sure that the Minister would mention the coronavirus and say that the backlog is down from its peak. It is, but it is still there, and I note that it is 60% bigger than the backlog in 2010, when we last had a Labour Government. However, I am not here to make party political points, of course—heaven forbid!
When this statutory instrument was debated in the other place, concerns were voiced about ensuring that the changes do not override the important role played by lay members, especially in employment cases where technical and specific knowledge is required and can make a key difference to the outcome of a case. I welcome the Minister’s comments about diversity in membership of the panels, but I hope it encompasses diversity of specialist skills and technical knowledge. That was mentioned in the Government’s consultation. I see that the Senior President of Tribunals has also conducted a consultation and the responses are being considered. I thank the Minister for his clarification on this, and I hope we will see the results very soon.
I also hope the Minister will let us know how the Government will monitor and assess the impact of these changes, especially if we see a significant change in the outcome of tribunal cases that are heard by a single member. As my noble Friend Lord Ponsonby said in the other place, if in the future we see further changes and a further reduction in the number of multi-member panels, that will need profound and serious justification.
I look forward to hearing the Minister’s response.
Chris Stephens (Glasgow South West) (SNP)
It is a pleasure to see you in the Chair, Ms Elliott. As you are aware, I have an extensive trade union background—in fact, I remember we both served on the Committee considering the Bill that became the Trade Union Act 2016. The Minister is always talking me into seeking a Division, and his answers will determine whether I do so today.
As the Minister outlined, there are some concerns about judge-only panels and removing lay members from particular types of case. Does he envisage discrimination or whistleblowing cases, for example, being heard by a judge alone? There would be real concern if lay members were not part of the process, because the lay members have the specialist knowledge of workplace realities needed to determine what has actually happened in such cases. Another worrying example is cases involving illegal deduction of wages. There have already been moves to make such cases judge-only and short-tracked, and there is a dangerous precedent for cases of unfair dismissal.
I hope the Minister answers those questions, because I share the very real concerns the trade union movement expressed in their consultation response about the approach the Government are taking, which may lead to more unfairness in the system.
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.