Tribunals, Courts and Enforcement Bill [HL]

moved Amendment No. 7: 7: Clause 11 , page 7, line 29, leave out ““any point of law”” and insert— ““(a) any point of law, (b) any point of fact, or (c) points of law and fact,”” The noble Lord said: My Lords, this amendment raises the question of the scope of an appeal from the first-tier tribunal to the upper tribunal. The answer given by the Minister when the matter was raised in Grand Committee by my noble friend Lord Maclennan of Rogart was that judicial review would cover the need to appeal on the basis of an unreasonable finding on the facts. Now that is coupled with a resistance to the amendment of the noble and learned Lord, Lord Lloyd, on the basis that too much judicial review is likely to arise, and therefore it has to be delegated back down to the upper tier tribunal. Another fear that the Minister expressed in Grand Committee was that if the upper tribunal were able to hear an appeal on fact, or on points of law and fact, it would become a simple two-tier process whereby people who were turned down by the first-tier tribunal would simply take their case upwards to the upper tribunal. However, our amendment is subject to the granting of leave. Amendments Nos. 8 and 9, which are linked with Amendment no. 7, are in place in order to deal with that very problem, so that it would not be possible for a dissatisfied claimant to appeal from the first-tier tribunal to the upper tribunal on an issue of fact by right as a matter of course. He would have to get consent from the upper tribunal itself. Amendment No. 8 refers to the provision where leave must be granted at the moment, but we suggest leave must be granted for an appeal under subsection (1)(a)—that is, on any point of law—or (1)(c), on points of law and fact, either from the first-tier tribunal itself or from the upper tribunal. However, our Amendment No. 9 makes it quite clear that an appeal on issues of fact could be decided only by the upper tribunal, so a considerable filter is built into the amendment which would make it possible for appeals which involve issues of fact to be heard by the upper tribunal only where there was a real concern and a possibility that the factual findings of the first-tier tribunal were flawed. We are seeking to lift from the High Court the weight of too many judicial review proceedings. This is an appropriate way of doing it. It is subject to a considerable filter. Within a short time, the upper tribunal would have put in place principles whereby appeals involving findings of fact would be considered by it. It would obviously be only a small proportion of the cases. It is appropriate when we are dealing with what is supposed to be an informal hearing that the first-tier tribunal should not be the final arbiter on issues of fact. I beg to move.