Tribunals, Courts and Enforcement Bill [HL]

My Lords, my diplomatic approach is to try to agree with everybody, on the grounds the more that we can have ““law by consensus””, which is a phrase that I heard yesterday evening, the better we all will be. I thought carefully about the amendment. We consulted widely across government on its impact, because I know that the noble Lord quite reasonably took my words from Committee and sought to develop the filter system. I therefore took the time and trouble to pass the amendment right across government to get their views. I cannot accept the amendment, but I want to explain why, because it is important that it is understood why, when we looked at the possible implications, there were genuine concerns. Although the noble Lord may not agree with them, I hope that he will accept them as such. We have tried to make the tribunal system that is proposed in the Bill as simple and as straightforward as possible. It includes the full right to appeal on fact, law and other relevant bases to the independent and expert tribunal. That gives a reasoned decision. There is a further right of appeal to the upper tribunal if there has been a mistake about the law. My fear is that the amendments could unintentionally undermine both tribunals, because there would not necessarily be finality about any aspect of the first-tier tribunal’s decision, and the upper tribunal, we fear, would be inundated. We cannot estimate the number of applications that the prospect of appeal on the facts might generate but, for instance, there are about 250,000 social security and child support appeals each year. There is a right to apply for leave to appeal on a point of law to the Social Security Commissioners but there are about 4,000 applications a year, so that is less than 2 per cent of the total. Where there is a right of appeal on facts there are no constraints to the number of applications; each appellant can make an application for permission purely because they are unhappy with the decision against them. The noble Lord’s answer to this is to maintain the permission requirement and to restrict the power to grant permission on questions of fact to the upper tribunal. I understand that but I am not sure that it would not result in a complex and potentially cumbersome system, quite apart from the potential intolerable increase in the number of applications. We must recognise that that could be the case. The noble Lord is a lawyer and I am not, but lawyers talk about distinctions between fact and law not always being completely clear. Therefore, it is a reasonable assumption that applicants could raise questions both of fact and law. The first-tier tribunal can decide only if there is a point of law or a mixture of law and fact, and so if it decides neither is the case, the application will have to go on to the upper tribunal. We could end up with two bites of the cherry becoming the norm. Although the effect might be to filter out those cases that should not be heard, we would have to address the real practical implications of the process. Dealing with the applications themselves and whether they would fulfil the criteria for onward appeal could be a huge undertaking for the tribunals and the decision-making department. Of course, volume alone should not be a reason to bar change but we believe that we have a proportionate system of appeals. Having consulted very widely, we believe that we have adequate means of redress for appellants without this amendment. For that reason, I hope that the noble Lord will feel able to withdraw it.