I always think that a Division in Committee is rather like a good brisk run. It turns everything up a little, but we do not have to continue at the same sprinting pace all the time. Clause 19 is long, complex and mainly procedural, and I reassure hon. Members that I do not want to generate heat or to divide the Committee. However, I want the Minister to respond to some points.
The co-hearing of claims under the special educational needs provisions and the disability discrimination provisions was touched on in another place and in the explanatory notes. There should be a single forum wherever possible, if only to spare individual families from hassle, distress, difficulty and even expense. That is a good and sensible aspiration. On occasion, a family may have good reason to think that two matters are discrete, even if othersan LEA, for examplethink that they are the same. In other cases, the tribunal may feel that the issues are separate, although closely related.
I should be grateful for the Minister's guidance on whether separate hearings would be possible, with the same base data. How would that work, and would it satisfactorily cover the field? My day-to-day preference would be one hearing for all concerned, where a determination could be reached on both matters at once. However, it is possible that that would not be appropriate in certain circumstances.
My other points touch on my tribunal experience of some years ago. There is provision for hearings to be conducted in the absence of any member other than the chairman. That seems sensible in cases of indisposition, in which it would be a pity to have to wait for the person concerned to be available again. I was once empanelled on a tribunal in an incredibly unusual case, which had gone, in a manner of speaking, to the full arms race. Leading counsel had been briefed, at great expense. I shall mention, to cheer the Minister up, that the counsel concerned was an extremely distinguished planning silk, who is a leading light of the Society of Labour Lawyers and head of an Oxford college. The Minister may be able to guess who it was.
We listened with amazement to counsel's eloquence for several days, but I was then appointed as a special adviser at the Ministry of Agriculture, Fisheries and Food and immediately disqualified myself from the tribunal. That is about the next worst thing to a judge dying, and the huge expense of the proceedings raised concern. By way of a solution, the parties agreed that I could continue to sit for what was, at that stage, effectively a formal procedure.
Bearing in mind that members of the tribunal, as distinct from the chairman, have experience in special educational needs and disability issues, it may sometimes be sensible for them to carry out an investigation when the chairman is not available. I appreciate that the chairman's presence may be necessary when it comes to judgment. However, I remember a case in which two members with farming experience were sent to study how some agricultural procedure was conducted, or a drainage problemI cannot remember exactly what. The chairman said, ``You know about those things. Give us a report, I will consider it and it can be included in the judgment.'' I do not think that that is inherently unreasonable, and it would be useful to make provision for it.
Proposed new section 28J(2)(m) provides for
``taxing or otherwise settling costs or expenses''.
The Minister has helpfully explained that the arrangements are supposed not to encourage litigiousness and that they should not, wherever possible, involve the use of lawyers to break the informality of the tribunal. There is a danger that some families may be denied justice if they fear that, in accordance with the British legal principle that costs follow the event, they might suddenly receive a bill for local authority costs in relation to a discrimination case, as opposed to a special educational needs case.
I recall from my tribunal work that, although we were empowered to make an order for costs, and were tempted once or twice to do so, that could be done only when someone had brought a frivolous, vexatious or otherwise inappropriate case. It had to be very extreme for us to proceed in that way. However, people who feel strongly about the way in which their child is taught or provided for should not be deterred from attending a tribunal because the full weight of the law and costs might fall on them if they were unsuccessful. That would add insult to injury.
Proposed new section 28J(5) deals with allowances. It has always been a cause of modest rancour with me that the tribunal on which I served did not pay its members a fee, although it paid expenses. I think that the usual practice that has developed, for example in employment tribunals, is to pay a reasonable rate for the day. If the Minister wants to find good people for the tribunal, she should expect that to be necessary. My recollection is that the special educational needs tribunal operates in that way. However, it might be helpful if the Minister could say something about that when she rises to respond to my points.
I have a small and detailed point, not made by my hon. Friend, which I hope can be dealt with easily. Proposed new section 28J(3) stipulates that the proceedings of the tribunal are to be held in private. We all welcome that, as it would be inappropriate to do anything else. However, it would be helpful to have an assurance from the Minister that it will be considered appropriate, when the tribunal publishes its conclusions, to refer to some aspects of the proceedings, as long as all parties are happy with that. Some issues that arise during the course of the tribunal's proceedings will have a direct bearing on its conclusions, and it may be appropriate to air them.
If all parties are happy with such references, it is appropriate for such aspects of the proceedings to be made public. It may be implicit that that will happen, in which case there is no problem. However, if that is not implicit, will the Minister say something about the matter?
I hope that I can respond to the good, detailed and technical questions that hon. Members have asked. The first point raised by the hon. Member for Daventry concerned whether separate hearings could take place. I hope that he agrees that the structure that we are attempting to set up is designed to bring everything together into one hearing. That is why we have chosen the format of the SEN tribunal.
Following the passage of the legislation, we will make regulations that set out the precise circumstances in which a hearing can be a joint hearing on issues of discrimination and SEN. We will hold consultations on the issue, so there should be some clarity on it. Of course, nothing in the legislation would prevent two hearings from being held, if that were appropriate.
I am grateful to the Minister. In cases where the interests of justice demand it, or in which, although they are closely related and may converge in the treatment of the individual child, the issues are separate, it is important to provide that separate hearings can occureven if the normal, sensible practice is for them to be conducted together.
I hope that I have given the assurances that the hon. Gentleman sought.
I am delighted that the hon. Gentleman approves of the provisions in proposed new section 28J(2)(d), which will enable hearings to be conducted in the absence of any member other than the chairman. That has happened occasionally in SEN hearings, but always with the consent of all the parties involved. Obviously, it would occur only in exceptional circumstances, for example where a member had been unavoidably delayed.
In that context, will the Minister assure the Committee that the consent of all parties will be required for that to happen? It is a matter of the vires not overriding the individual's rights.
Yes, I can assure the Committee of that.
The hon. Gentleman's third point related to costs. Under the current system for the SEN tribunal, the regulations state that costs will be awarded only in exceptional circumstances. Indeed, they have been awarded in a handful of cases during the five years since the tribunal's creation. The regulations that we intend to make for the new tribunal will be replicated in disability cases. We do not want parents to be deterred by the prospect of costs.
The hon. Gentleman asked whether members would receive allowances, and we already pay fees to members, as well as travel and subsistence expenses. We will do so for new members.
The Minister may not want to answer this question substantively, and I do not want to cause a flurry of briefing. On the matter of hearings being conducted in the absence of any member other than the chairman, will she, in due course, consider situations in which it might be sensible for the lay members of a tribunal to examine potential provision in a particular place even when the chairman is unavailable?
We shall obviously have to consider the implications of that, and I shall write to the hon. Gentleman to give him a proper answer.
The hon. Member for South Holland and The Deepings asked about the tribunal's ability to comment in its summing up on any issues that arise in a particular case. I thought that I had given the Committee some reassurance on that during our previous debate. The tribunal may comment on any issue that it feels is pertinent and that may have arisen as a side issue to the one that impacts directly on the child. We do not want to extend that provision beyond the power to comment. Our view is that the anticipatory powers provided for elsewhere will be sufficient to allow the wider implications of any case to be taken into account.
Question put and agreed to.
Clause 19 ordered to stand part of the Bill.