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With this it will be convenient to discuss the following amendments: No. 45, in clause 11, page 8, line 24, after ‘any’ insert ‘question of fact or’.
No. 46, in clause 11, page 8, line 24, after ‘of’ insert ‘fact or’.
No. 49, in clause 12, page 9, line 34, at end insert
‘or is manifestly unreasonable on the facts’.
It is a great pleasure for me to serve under your chairmanship for the first time, Mr. Bercow. I look forward to this Committee being happy and constructive.
Clause 9(1) states:
“The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1)”.
My amendment probes the powers of the first-tier tribunal to review its own decision. What is the scope of that power of review? Is it merely limited to points of law or does it go beyond that to evidential matters? If it is only a power of review, does it refer purely to formal matters or does it extend to something more substantial?
Presumably, the essence of the subsection is to ensure that the only cases that go to appeal will be those that really need to—the power is to enable minor errors to be corrected swiftly and informally. I recall from my time at the Bar that there are certain rules of procedure allowing magistrates courts, for example, to overturn their own decisions quickly within a certain period. I believe that there are other precedents as well. Will the Minister say what other precedents there are for the correction of minor mistakes without the need for a full appeal?
If the power is all part of trying to make the tribunal system more informal, user-friendly and generally more efficient, we would support it. However, I should be grateful if the Minister enlightened us further. These are probing amendments.
There are four amendments in the group, but only the lead amendment relates to the clause; the other three relate to clauses 11 and 12. I do not support the first amendment in the group, because I believe it is important that there should be a general power of review left to the lower-level tribunal. That is something that tribunals need to do, because there may be factual inaccuracies or information given may need to be corrected. There are all sorts of reasons why it is sensible for the same tribunal to return to a matter if something is pointed out, whether on direction from elsewhere or, as the Bill says, instigated by the tribunal. That process should not be fettered. I understand that, at the moment, although the Minister will no doubt correct us, such a return is generally likely to be on points of fact, evidence or procedure, but it could be on a point of law as well if that were necessary.
The more substantive matters are covered by amendments Nos. 45, 46 and 49, which would allow a right of appeal to the upper tribunal, and not only on a point of law. That is a significant matter. There is merit in amendment No. 49, which would allow a right of appeal not just on a matter of law, but in respect of where the facts did not bear out or justify the decision, or on a question of fact with the leave of the higher tribunal. However, I am nervous about the idea that factual matters cannot be appealed against and that only legal matters can be appealed against. There are all sorts of cases, from past experience, where the facts do not lead to the tribunal’s conclusion. I have been involved in some cases like that and I am sure that Committee colleagues have, too.
I realise that this is not a new matter—like most things in the Bill—because it has already been to the House of Lords and there has already been at least one set of discussions on it. However, a fairly strong case was put in the Lords for ensuring that there was a wider power of review by the upper tribunal of the lower tribunal. If we are going to keep things in the tribunal system and prevent them from going to the Court of Appeal, or from going outside the tribunal system to a higher court, which is more expensive, would take longer and so on, we should allow the two levels of tribunal to sort things out as much as possible.
One does not want the ability to have a completely new run of the case at the upper tribunal, in the same way as it was run in the lower tribunal. One should not be able simply to appeal for the sake of it, with no check or balance. At the moment, in your constituency, Mr. Bercow, as in mine, many parents will have received letters telling them that their child cannot go to the school that was the family’s first choice. An appeal system is permitted in such cases in almost every school, apart from—anomalously—city technology colleges, where there is no appeal system, which is an injustice that has never been corrected. Many people appeal against such decisions as a matter of course, simply because they want a review and cannot believe that they should not get into the school that is near them. I understand that we do not want a tribunal system that allows an appeal as a matter of course, in effect, to a similar body, although one tier up, simply to hear the facts. The onus is on the Government to argue for such a restriction. I hope that the Minister is sympathetic, at least to amendment No. 49 and, if not, to a variant of amendment No. 45, but resists amendment No. 40.
This is about the tribunal’s review powers and the right of onward appeal. The first tier tribunal can be reviewed or appealed against. Appeals are only to correct errors of law or to clarify the law, but essentially they are to correct accidental errors. The hon. Member for North-West Norfolk has put his finger on what the review panel is about. A review can be done either through the tribunal’s own initiative or on application by a person who has a right of appeal. As he said, the point is to ensure that only those cases that lead to appeal go there.
There are parallels. The hon. Gentleman referred to the civil procedure rules. Rule 40.12 provides for slips and omissions in civil courts to be corrected without the need for an appeal. Section 155 of the Criminal Courts (Sentencing) Act 2000 provides a slip rule for the criminal courts to vary or rescind a sentence within 28 days. There is a similar power in section 142 of the Magistrates’ Courts Act 1980. Those are the precedents that he sought from me.
Similar amendments were tabled in the House of Lords. We modified the review provisions to make sure that they were not too wide. They are now subject to tribunal procedure rules that can be used, for example, to stop frivolous applications for review for the sake of it—of the sort that the hon. Member for North Southwark and Bermondsey conjured up in his analogy of school appeals. I hope that I have satisfied him about reviews.
As for broadening the scope of appeal to the upper tribunals, the pattern is that the first tier is to hear appeals from the decision maker. It will consider all the evidence. It will make findings of fact and, where necessary, law. It would be completely disproportionate to set up another tribunal that could rerun that. However, if the first tier tribunal gets the law wrong or substantive issues of law need an authoritative ruling, the upper tribunal is there to deal with such matters. Without it, those rulings would have to go to the High Court or the Court of Session to be made. It is exactly the model that we are used to through the employment tribunals, the Employment Appeal Tribunal and the social security commissioners. It is straightforward and flexible.
The hon. Member for North Southwark and Bermondsey mentioned manifestly unreasonable conclusions on the facts and the importance of having a ground of appeal wide enough to stop those automatically from going out into the more expensive, more complex and longer procedure of judicial review. We feel confident that our error of law is wide enough to deal with manifestly unreasonable conclusions on the facts. I hope that both hon. Gentlemen will accept that we have struck a fair and proportionate balance and that the amendments can be withdrawn.
I am grateful to the Minister for her explanation of the amendments to which I spoke earlier. Further to the point made by the hon. Member for North Southwark and Bermondsey, will the hon. and learned Lady comment on the Tsfayo case that was raised in the other place by Lord Maclennan of Rogart? It is not sub judice; the case was heard before the European Court of Human Rights. The Tsfayo party won the case. The decision was that the facts could be brought forward on appeal, not only a point of law. Will she comment on what was discussed in the House of Lords? I understand that her colleague said that the Government would provide more detail about it at a later stage. I beg to ask leave to withdraw the amendment.