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Tribunals, Courts and Enforcement Bill [HL]

moved Amendment No. 37: Page 5, line 30, at end insert- ““( ) Subsection (1) does not apply to functions of the Senior President of Tribunals under section 7(9).”” The noble Baroness said: I shall speak also to Amendments Nos. 45, 49, 50, 52, 64 and 67. I have regrouped the amendments to cover this part of the Bill. The amendments arise as a result of the main recommendations of the Delegated Powers and Regulatory Reform Committee’s scrutiny of the Bill, which, as always, I have accepted. I wish simply to put them on the record. In so doing, and in seeking the Committee’s agreement to the amendments, in no way do I suggest that noble Lords accept the principle behind the clause. I do not want noble Lords to think that I would try to suggest that. Rather, it is much better if the Government are seen to respond to the Delegated Powers and Regulatory Reform Committee as quickly as possible. On Amendment No. 37, the Delegated Powersand Regulatory Reform Committee pointed out that Clause 7(9) enables my noble and learned friend the Lord Chancellor and the Senior President of Tribunals to make orders about the allocation of functions between chambers in either the first-tier or upper tribunal. The committee accepted that that in itself is by no means inappropriate but, under Clause 8, the senior president may delegate any of his functions to any judge or member of the upper or first-tier tribunal or to any member of staff. The committee pointed out that this power is broad enough to enable the order-making power in Clause 7(9) to be delegated and considered that inappropriate. The Government agree. We did not intend to do this and Amendment No. 37 therefore disapplies the delegation power in Clause 8(1) in respect of orders made under Clause 7(9) and so prevents the delegation of the function of allocating functions between chambers. On Amendments Nos. 45 and 52, the committee was also concerned about the uses of powers inClauses 11(5)(f) and 13(7)(f) enabling my noble and learned friend the Lord Chancellor by order to exclude a decision from onward appeal. The committee was content with the level of parliamentary scrutiny. However, it considered that such powers would be more appropriately delegated if the Bill restricted the time when the Lord Chancellor might make such orders to the time that the transfer of the tribunal is made. That would avoid the possibility that the power could be used to remove a, by then, long-established right of appeal long after a tribunal had been transferred. It has never been the Government’s intention that the power to exclude would be used at any time other than the transfer of a tribunal. Amendments Nos. 45 and 52 therefore restrict the use of those powers to when a tribunal to which the order relates is transferred. On Amendments Nos. 49 and 50, Clause 13 gives a right of appeal from the upper tribunal to the Court of Appeal or other UK equivalent. That right may be exercised only with the permission of the upper tribunal or the appellate court. Clause 13(6) enables my noble and learned friend the Lord Chancellor by order, subject to affirmative procedure, to provide that permission should not be given unless there is an important point of principle at stake or some other compelling reason. The intention behind that provision is to limit second appeals on the same point. As noble Lords will know, that is in line with the position on appeals from the High Court to the county court under Section 55(1) of the Access to Justice Act 1999. However, the Delegated Powers and Regulatory Reform Committee has pointed out that the power applies equally to first appeals from the upper tribunal exercising an original first-instance jurisdiction. The Government agree that that is inappropriate and agree with the committee’s recommendation that the power in Clause 13(6) should be restricted to appeals from the upper tribunal’s appellate jurisdiction, excluding its first-instance jurisdiction. Amendments Nos. 49 and 50 achieve that aim. Amendment No. 64 inserts, "““an order under paragraph 15 of Schedule 4””," under which my noble and learned friend the Lord Chancellor may make provision to determine the number and type of members who are to decide matters. The order-making power is currently subject to the negative procedure. However, the committee argued that this is a significant power, and compared it with existing tribunal legislation in which such matters are set out in primary legislation. The committee therefore recommended that the power in paragraph 15 of Schedule 4 be made subject to the affirmative procedure. The Government agree, and Amendment No. 64 amends Clause 46 accordingly. On Amendment No. 67, the committee pointed out that the provision in Schedule 10 on the amendment to the London Building Acts (Amendment) Act 1939 provides for the Lord Chancellor’s order-making power to be subject to no parliamentary procedure. The order-making power enables him to specify qualifications for the office of his nominee on the tribunal of appeal established under the London Building Acts (Amendment) Act 1939. The Government agree with the committee’s recommendation that the order should be subject to the affirmative procedure, which brings it into line with the power to specify relevant qualifications for judicial eligibility criteria in Clause 48. Accordingly, Amendment No. 67 makes this power subject to the affirmative procedure. I am grateful to noble Lords for allowing me to table these amendments. I believe that they are uncontroversial and can be accepted by the Committee, with the proviso that I have already given that this in no way ties noble Lords to accepting the main clause as amended by these amendments. I beg to move.