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

Lucy Frazer Excerpts

Thursday 26th April 2018 General Committees

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

I beg to move,

That the Committee has considered the draft First-tier Tribunal and Upper Tribunal (Composition of Tribunal) (Amendment) Order 2018.

It is a pleasure to serve under your chairmanship, Mr Pritchard. This statutory instrument introduces flexibility to the membership of tribunal panels. The changes are supported by the senior judiciary and the current Senior President of Tribunals, Sir Ernest Ryder.

I will start by describing our tribunal system, which is an important part of the justice system. Tribunals were initially designed to be proportionate, user-friendly ways of determining disputes. The SI seeks to bring more flexibility into the system. At the moment, both judicial and lay members sit on various panels. The current statutory scheme provides that, in determining the composition of the panel, regard should be had for the previous arrangements, which means that many tribunal panels are based significantly on historical precedents.

The SI provides the Senior President of Tribunals with more flexibility in when and how panel members are used. Experts will be used when they are needed, not simply because they have always been used. The context of the SI is that we are reforming the courts and tribunals system, using technology to bring it up to date. The SI allows the Senior President of Tribunals to consider what composition might be needed as our reform programme develops.

Quite simply, the SI removes the requirement to consider historical composition, but it provides safeguards. It provides that the Senior President of Tribunals must have regard to the nature of the dispute and the means by which it is to be determined, and the need for tribunal members to have particular expertise, skills and knowledge. The Senior President of Tribunals will still have a statutory duty, when determining the composition of panels, to consider the need for panel members to be experts in the law, or the subject matter being heard, and to ensure that the hearing is fair and efficient.

The SI also provides for ministerial oversight, so the panel composition will be set by practice direction. That will bring the position of the first-tier and upper tribunals into alignment with the wider justice system, as the Senior President of Tribunals will need to consult the Lord Chancellor on any panel changes but will continue to make the final determination.

In conclusion, the SI does not change any composition; that remains for the Senior President of Tribunals to review and consider. Safeguards are in place to ensure that users are not adversely affected. Whenever the Senior President of Tribunals has previously sought to amend panel arrangements, he has done so in collaboration with senior members of the judiciary. On that basis, I commend the order to the House.

--- Later in debate ---

[Lucy Frazer]

The hon. Lady makes some important and valuable points. The lay element is incredibly important in such tribunals, which play an important role. I will touch on three points by way of response. First, the lay element will not be overridden by the changes made by the SI. The Senior President of Tribunals has a statutory duty to consider whether there is a need for a lay member. If there is, that will be the result. He has a statutory duty to consider the nature of the dispute and whether members with particular knowledge are needed.

Secondly, it is already the case, following consultation, that in the Asylum and Immigration Tribunal deportation cases are not routinely operated with lay members, although they can be if the resident judge thinks that is appropriate. There have been no significant changes in that regard, so no significant results. The appeals allowed are unchanged as a result of that. There are not routinely three members and that system works well.

Thirdly, I too have some experience of appearing before tribunals. In those cases I have found that lay members play an important role, but the judges, who are legally trained, are very used to litigants appearing before them and to dealing with the matters before them.

The hon. Lady mentioned employment tribunals. I want to make it clear that employment tribunals do not fall within the remit of this SI. We believe that the order will ensure the right flexibility for our tribunals system.

--- Later in debate ---

[Lucy Frazer]

On the first point, the Senior President of Tribunals does not currently have to consult the Lord Chancellor. This measure will bring the tribunals into line with all the other courts, where the Lord Chancellor is consulted on changes to the composition of panels. On the point about a review, I am confident that there will be an impact assessment.

[Mhairi Black]

If the Senior President of Tribunals does not have to go to the Lord Chancellor already, what is the logic in introducing the change just now? The impartiality of the Senior President of Tribunals might be called into question if he is suddenly having to justify things. Would the impact assessment be within a year’s time, or is it two or three years away?

--- Later in debate ---

[Lucy Frazer]

The order will not affect impartiality. It follows the process already adopted in other senior courts and brings in ministerial involvement. The Senior President of Tribunals will have to consult the Lord Chancellor but will still have the final say. This measure just brings it in line with the wider legal system. On the timing of the impact assessment, it is one year.

Question put.