The Law Commission

PART VII

A LEGISLATIVE MODEL

Introduction

7.1      We have not been asked to produce a draft Bill with this report. However, some aspects of our proposed scheme would operate differently depending on how they were set out in legislation. The division between primary and secondary legislation would be especially important. We therefore set out in this Part our views about how any legislation relating to our scheme could be structured. If our proposed PVT and reformed Lands Tribunal were to be incorporated into a larger unified Tribunals Service, we presume that they would have to fit into the legislative scheme for that Service.
7.2      In this Part, we first consider the Council on Tribunals guidelines on the division of functions for primary and secondary legislation. Secondly, we briefly discuss the way in which the project tribunals have been established in legislation. Thirdly, we examine a possible model for our scheme in the Appeals Service legislation. Fourthly, we make suggestions for how we consider our scheme might be set out in legislation.
7.3      Many of the divisions between primary and secondary legislation are similar in most of the legislative schemes relating to tribunals that we have examined, and are therefore relatively uncontentious. Tribunals are usually set up in primary legislation. Of the Valuation Tribunal, which is a notable exception to this general rule, the Council on Tribunals has said that "it is more usual for provision to be made in the principal legislation itself for a nationwide system of tribunals the members of which are to be centrally appointed."^[1] It is common for primary legislation to contain only a broad enabling power in relation to procedural rules with the details being left to secondary legislation.
7.4      Some of the divisions need to be more closely examined. We have considered the model of the Appeals Service tribunal, which has some similarities to our proposed unified scheme. The Appeals Service legislation leaves many matters to delegated legislation. This has the benefit of the flexibility which is a key feature of our proposed scheme. The counter-argument is that this may be at the cost of the opportunity for parliamentary scrutiny. This is discussed in paragraphs 7.39 and 7.40 below.

Council on Tribunals guidelines

7.5      The Council on Tribunals Model Rules of Procedure for Tribunals^[2] contains a checklist of matters to be considered when preparing legislation which establishes a tribunal or other adjudicative body. It sets out two lists of matters customarily included in the Principal Legislation (Part A) and matters for consideration for inclusion in rule-making powers (Part B).
7.6      The Council on Tribunals points out that there are no hard and fast rules about whether matters should be in primary or secondary legislation, and that there is a variety of practice in particular about the appropriate legislative place for matters to do with the establishment of tribunals,^[3] tribunals' jurisdictions and principal powers, appeals and the composition of tribunals. They point out that decisions should be taken in the light of the requirements of the particular subject matter of a tribunal's jurisdiction, the political interest in particular issues and the need to respond to that interest.
7.7      The Council on Tribunals provides detailed lists of matters customarily included in primary and secondary legislation. This report summarises some of the matters contained in them, as follows.

Primary legislation

7.8      Part A, matters customarily contained in primary legislation, includes matters such as

(1) the establishment of the tribunal,

(2) the tribunal's jurisdiction and principal powers,

(3) restrictions on rights to appeal or apply,

(4) composition of the tribunal, and

(5) staff.

7.9      It is suggested that primary legislation relating to the composition of tribunals might include the rules about different categories of members and panels, the composition of the tribunal for hearings, provision for the composition of the tribunal in special cases or when exercising a special jurisdiction and provision for transfer of cases between tribunals having the same jurisdiction.

Secondary legislation

7.10      Part B, matters for consideration for inclusion in rule-making powers includes

(1) matters relating to the establishment, composition and sittings of the tribunal which are not provided for in primary legislation,

(2) general provision for practice and procedure, and

(3) specific procedural rules such as rules about evidence, hearings, delegation of powers to registrar and staff, fees and costs and so on.

The project tribunals

7.11      The majority of the project tribunals are established in primary legislation. Provisions about the composition of the tribunals are also mainly contained in primary legislation. The exception is the Valuation Tribunal, the rules about which are almost entirely contained in secondary legislation. The summaries below only give an indication of how some aspects of the tribunals are set out in legislation. It should be noted that the Government has announced a new Independent Judicial Appointments Commission to recommend candidates for appointments as judges, which will apply to tribunal membership.^[4]

Lands Tribunal

7.12      The Lands Tribunal is established by the Lands Tribunal Act 1949. The qualifications for the tribunal's President and members are set out in the Act.^[5] The rules as to tribunal composition are contained in a flexible power in the Act which states that the jurisdictions of the tribunal are to be exercised "by any one or more of its members",^[6] but this is not greatly expanded upon in secondary legislation.^[7] The Act also sets out the appeal route.^[8] Secondary legislation sets out the detail of the procedural rules applicable in cases before the tribunal.^[9]

Commons Commissioners

7.13      The Commons Commissioners are established by the Commons Registration Act 1965.^[10] Commons Commissioners are appointed by the Lord Chancellor and must have legal qualifications.^[11] The matter of which Commons Commissioner is to hear any individual case is determined by the Chief Commons Commissioner.^[12] Secondary legislation contains procedural rules for hearings.^[13]

Adjudicator to HM Land Registry

7.14      The Adjudicator is established by the Land Registration Act 2002.^[14] The Act prescribes the tribunal's jurisdiction^[15] and the appeal route.^[16] As the Adjudicator is a single post, case allocation rules are not needed. Provision is made in the primary legislation for rules prescribing procedure,^[17] and there is a power for fees to be prescribed by order.^[18]

RPTS Tribunals

7.15      The RPTS tribunals are established by the Rent Act 1977.^[19] The Act contains a power for the Secretary of State to draw up panels of persons to act as chairs and members^[20] (to consist of persons appointed by the Secretary of State and the Lord Chancellor).^[21] One out of these persons is to be nominated as the President of the panel and one or more person as Vice-President or Vice-Presidents.^[22] The Rent Act 1977 requires tribunals to be made up of chairman and one or two other members.^[23] Secondary legislation sets out procedural rules relating to tribunal determinations and hearings.^[24]

Agricultural Land Tribunal

7.16      The Agricultural Land Tribunals are established by the Agriculture Act 1947.^[25] The membership and constitution of individual tribunals is also contained in the Agriculture Act 1947.^[26] Members of the Agricultural Land Tribunals are to be drawn from different panels drawn up by the Lord Chancellor,^[27] and the Act prescribes the qualifications or expertise required of these members.^[28] The Act states that the composition of members for each hearing of the Agricultural Land Tribunal shall be a chairman or deputy chairman and one person from each of the panels of experts in agricultural land.^[29] Secondary legislation contains procedural rules related to tribunal hearings.^[30]

Valuation Tribunal

7.17      The Valuation Tribunals are different from the project tribunals discussed above in that the Valuation Tribunals are largely set up in secondary legislation. Schedule 11 of the Local Government Finance Act 1988 makes provision for Valuation Tribunals to be established.^[31] The primary legislation lists a number of matters that may be set out in secondary legislation but does no more than lay out the bare framework of the Valuation Tribunals scheme.
7.18      The secondary legislation that enacts these matters is the Valuation and Community Charge Regulations 1989.^[32] These regulations establish the Valuation Tribunals^[33] and provide for the Secretary of State to determine the number of members of each tribunal.^[34] The regulations provide that individual tribunals shall be made up of three members, to include at least one chairman, or to members where the parties agree.^[35] The regulations also set out procedural rules.

The Appeals Service legislation

7.19      A useful model in considering legislation for a unified tribunals structure for land, valuation and housing cases is the primary and secondary legislation that set up the Appeals Service. In some ways the creation of the Appeals Service is similar to our proposals for the creation of a unified system for the project tribunals. The Appeals Service is a unified tribunal created by the Social Security Act 1998. This Act merged five pre-existing tribunals^[36] and set up an executive agency for administration. There is a common procedure for all cases^[37] and a ticketing system for the selection of appropriate members to hear cases.
7.20      The relevant legislation is the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999.^[38] The following is only a broad outline of the relevant parts of the detailed provisions in the legislation. It will be noted that the Appeals Service legislation sets out the broad framework of the system in primary legislation leaving some of the details to be filled in by secondary legislation.

Primary legislation

Establishment of the tribunal

7.21      The Appeals Service tribunal is established in primary legislation. Primary legislation sets out the Presidential system, the broad membership structure and sets up the framework for the allocation of cases to members. The details of the necessary qualifications for members, and of how individual tribunals are to be constituted for hearings is left to secondary legislation.
7.22      Section 4 of the Social Security Act 1998 sets up the unified tribunal by transferring the functions of the five original tribunals to the tribunal constituted under the Act. Section 5 provides for the appointment of the President by the Lord Chancellor,^[39] and states the qualifications the President must have.^[40] This is supplemented by Schedule 1, which sets out details to do with the President's tenure of office, remuneration, officers and staff, the functions of the President and appeal tribunal clerks.
7.23      Under section 6, the Lord Chancellor is to constitute a panel of persons to act as the members of the tribunals. The panel is to be composed of such persons as the Lord Chancellor thinks fit to appoint (in the case of medical practitioners after consultation with the Chief Medical Officer).^[41] The panel is to include persons possessing such qualifications as may be prescribed by regulations with the concurrence of the Lord Chancellor.^[42] The number of persons appointed to the panel and the terms and conditions of their appointment is to be determined by the Lord Chancellor with the consent of the Secretary of State.^[43]
7.24      Section 7 states that an appeal tribunal is to consist of one, two or three members drawn by President from the panel drawn up under section 6.^[44] The member or at least one member must have a prescribed legal qualification.^[45] Where an appeal tribunal has more than one member, the President can nominate one of the members as chairman.^[46] Provision is made for regulations to deal with the composition of appeal tribunals and the procedure to be followed in allocating cases among differently constituted tribunals.^[47]
7.25      The details about the panels and the composition of appeal tribunals are contained in regulations 35 and 36 of the regulations, discussed in paragraphs 7.34 – 7.35 below.

Appeals system

7.26      Primary legislation sets up the appeal structure from the initial decision to the Appeals Service tribunal, from that tribunal to the Social Security and Child Support Commissioners, and from the Commissioners to the Court of Appeal. This is a similar appeal structure to that which would operate in our proposed system for appeals from the PVT to the Lands Tribunal, and onwards to the Court of Appeal. The more practical mechanics of the appeal system are left for regulations.
7.27      Section 12 provides for appeal from the initial decision to the appeal tribunal. Provision is made for regulations to prescribe how and when appeals can be brought.^[48]
7.28      Section 14 provides for onward appeal from the tribunal including the grounds for appeal,^[49] who can appeal,^[50] the powers of the Commissioner on the appeal,^[51] the provisions for the permission requirement.^[52] The Act provides for regulations to set out the way and the time in which appeals are to be brought and applications to be made for permission to appeal.^[53]
7.29      Section 15 provides for further appeals from the Commissioner to the court (normally the Court of Appeal in England and Wales).^[54] It makes provision for a leave requirement,^[55] and states who is entitled to bring a further appeal.^[56] Regulations are to specify how and when applications for permission to appeal must be made.^[57]

Procedure

7.30      By section 16, regulations are to make provision for tribunal procedures.^[58] Schedule 5 further empowers certain regulations to be made.

Secondary legislation

7.31      The Social Security and Child Support (Decisions and Appeals) Regulations 1999^[59] is the secondary legislation made under the Social Security Act 1998. Those sections that are relevant for a consideration of possible legislation for our proposed scheme are as follows.

Procedure for bringing appeals

7.32      The regulations contain the detailed rules about when and how appeals can be made to the Appeals Service tribunal.
7.33      Regulation 31 contains the rules about the time limits within which an appeal is to be brought, and regulation 32 states how applications for extension of time are to be dealt with. Regulation 33 contains the practical details of how an appeal is to be made, including what an appeal notice must contain and where it must be sent.

Panels and composition of tribunals

7.34      Primary legislation contains broad provisions about the panel of members for the tribunal.^[60] The details are set out in regulation 35 and Schedule 3. These provisions require those on the panel to have certain legal, medical, financial or disability qualifications.
7.35      Similarly, primary legislation contains only a broad power about the composition of individual appeal tribunals for each sitting of the tribunal.^[61] Regulation 36 provides the details of how cases are to be allocated by the President to differently constituted tribunals. The regulation requires cases to be allocated to an appeal tribunal consisting of a medically qualified panel member and a legally qualified panel member in certain cases;^[62] a financially qualified panel member and a legally qualified panel member in certain other cases^[63] and so on.

Procedure in tribunal hearings

7.36      The regulations contain a number of rules relating to the procedures to be followed in tribunal hearings and in the determination of cases generally. It is not necessary to summarise all of these rules here. As noted in paragraph 5.40 above, there are two rules that relate only to child support appeals,^[64] but the remainder of the rules relate to any type of case that is before the tribunal. There is therefore essentially a common set of procedures for cases that were previously within the jurisdiction of different tribunals.

Appeals

7.37      Regulation 58 sets out the details of applying for permission to appeal to a Commissioner from the tribunal.

The Appeals Service legislation as a model

7.38      We think that the Appeals Service legislation is a good starting point for a legislative model for the PVT and the reformed Lands Tribunal. It is a relatively modern example of legislation that has been used to set up a unified tribunal by bringing together previously separate tribunals. It is therefore similar to the system which our proposals aim to achieve. In most ways, the Appeals Service legislation as a model seems uncontroversial. Primary legislation is used to establish the tribunal, to set out the tribunal's jurisdictions and to make provision for appeal routes. Regulations set out matters of procedure in tribunal hearings. However, the scheme differs from other schemes establishing tribunals and from the Council on Tribunal's guidelines in placing the rules about tribunal membership and appointment and individual tribunal composition in secondary legislation.^[65]
7.39      We think that there would be advantages in the rules about tribunal membership and individual tribunal composition being contained in secondary legislation. At present the members of the project tribunals have a diverse range of qualifications.^[66] In a unified system, there would probably need to be some harmonisation of these qualification requirements either initially or over time. A key advantage of our proposed system is the opportunity for new jurisdictions to be added over time.^[67] The addition of new jurisdictions might necessitate the addition of new members to the tribunal with different qualifications. If member qualification requirements are set out in secondary legislation, they can more easily be adapted in the future. We envisage that within our proposed system different types of cases would at least initially be heard by the same combination of members as hear each type of case now. An example is given at paragraph 5.54 above. If the government were to take a policy decision in the future that some types of cases should instead be heard by a different combination of members,^[68] or if new jurisdictions were added to the tribunals, new rules would be needed to stipulate the appropriate tribunal composition and case allocation rules. Rules about tribunal composition and case allocation would be more flexible if they were contained in secondary legislation.
7.40      There are potentially disadvantages to a flexible scheme. It has been noted of the Appeals Service legislation that "the composition of appeal tribunals is now a matter of secondary legislation, with the concomitant lack of parliamentary scrutiny that this entails for any future changes."^[69] The argument is that secondary legislation can be easily changed without it being scrutinised by parliament. However, as discussed at paragraph 7.39 above, there are good reasons for using delegated legislation in some circumstances.^[70] We think that the benefits of flexibility would justify the use of secondary legislation to substantially set out the membership requirements and case allocation mechanisms in our proposed scheme.

Legislation for our proposed scheme

7.41      Based to a certain extent on the Appeals Service legislation and taking into account the Council on Tribunals guidelines, the current legislative schemes for the project tribunals and the aims and purpose of our proposed scheme, we consider here how our scheme could be enshrined in legislation.

Primary legislation

7.42      We think that the following matters could be contained in primary legislation in relation to our proposed scheme.

(1) The establishment of the reformed Lands Tribunal and the PVT.

(2) The initial jurisdictions of the tribunals, that is a transfer of the jurisdictions from the existing project tribunals to either the reformed Lands Tribunal or the PVT.^[71] A complete list of each tribunal's jurisdiction could be contained in a Schedule to the primary legislation.

(3) The appeal route from the PVT to the reformed Lands Tribunal and from the Lands Tribunal to the Court of Appeal, and the establishing of a permission requirement.

(4) The qualification requirements for the President of the reformed Lands Tribunal and the President and Regional Chairs of the PVT.^[72]

(5) Provision for the appointment of a legally qualified registrar, with powers and duties to be set out in secondary legislation.

(6) A provision establishing three panels of members for the tribunals: a legal panel, an expert panel and a lay panel. Provision for the Secretary of State to appoint members to the panels, with such qualifications or experience as shall be set out in regulations. We would expect the Government to either state in transitional provisions or to make an announcement that the existing members of the project tribunals would be the initial members of the PVT and reformed Lands Tribunal.

(7) A provision stating that an individual tribunal sitting of the PVT or the Lands Tribunal is to consist of one, two or three members drawn by President from the panels of members, with further details in regulations.

(8) A provision establishing member specialisms, with details of the experience needed to acquire each specialism to be set out in regulations.

Secondary legislation

7.43      We consider that the following matters should be contained in secondary legislation in our proposed scheme.

(1) Detailed procedural rules relating to hearings in the PVT and the Lands Tribunal.

(2) Details of the powers and duties of the registrar.

(3) Rules about qualifications needed for tribunal membership. The rules would set out the qualifications needed for the legal, professional and lay panels.

(4) Rules about what experience is needed to acquire each of the member specialisms.

(5) Rules about tribunal composition and case allocation. Rules should set out what types of cases are to be allocated to different types of members by reference to the three panels and the specialisms.^[73]

Non-statutory rules

7.44      Practice Directions or perhaps internal tribunal rules would contain further non-statutory matters of detail, for example further rules about member specialisms. For an example of tribunal Practice Directions, see the Practice Directions of the Lands Tribunal.

(Signed) ROGER TOULSON, Chairman
HUGH BEALE
STUART BRIDGE
MARTIN PARTINGTON
ALAN WILKIE

MICHAEL SAYERS, Secretary/Chief Executive
30 July 2003

Note 1    Council on Tribunals Model Rules of Procedure for Tribunals (1991) Cm 1434, as amended in February 2000, para 1. The Council on Tribunals latest model rules were published as a consultative draft in January 2003.    [Back]

Note 2    Council on Tribunals Model Rules of Procedure for Tribunals (1991) Cm 1434, as amended in February 2000.    [Back]

Note 3    The example cited is the Valuation Tribunals, established under the rule-making power in the Local Government Finance Act 1988, Sched 11. This is discussed further at paras 7.17 – 7.18 below.    [Back]

Note 4    The Government announced on 12 June 2003 that a new Independent Judicial Appointments Commission would be established to recommend candidates for appointment as judges. See press release “Modernising Government – Lord Falconer appointed Secretary of State for Constitutional Affairs” dated 12 June 2003, available on www.number-10.gov.uk. A consultation paper has recently been published on how the Commission could be established. This states that the Commission will be responsible for the full range of appointments currently made by the Lord Chancellor, including tribunal appointments. See Department of Constitutional Affairs, Constitutional Reform: a new way of appointing judges (July 2003), para 53.    [Back]

Note 5    Section 2(2).    [Back]

Note 6    Section 3(1).    [Back]

Note 7    The Lands Tribunal Rules 1996 (SI 1996 No 1022), r 3 simply gives the President power to substitute members, gives the chairman of a tribunal the same powers as the President to substitute members and gives a member of a tribunal selected to hear a case the power to do anything, in relation to that case, which the President had power to do under the rules.    [Back]

Note 8    Sections 3(4) and 3(11).     [Back]

Note 9    Lands Tribunal Rules 1996 (SI 1996 No 1022).    [Back]

Note 10    Section 17.    [Back]

Note 11    Under the Commons Registration Act 1965, s 17(1)(a), Commons Commissioners must have a 7 year general legal qualification.    [Back]

Note 12    Section 17(2).    [Back]

Note 13    Commons Commissioners Regulations 1971 (SI 1971 No 1727).    [Back]

Note 14    Section 107.    [Back]

Note 15    Section 108.    [Back]

Note 16    Section 111.    [Back]

Note 17    Section 109. No procedural rules have yet been promulgated. See Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules: a consultation on draft rules, Lord Chancellor’s Department (April 2003).    [Back]

Note 18    Section 113.     [Back]

Note 19    Schedule 10.    [Back]

Note 20    Schedule 10, para 1. No qualifications are prescribed.    [Back]

Note 21    Schedule 10, para 2.    [Back]

Note 22    Schedule 10, para 3. The persons are nominated by the Secretary of State. No qualifications are prescribed.    [Back]

Note 23    Schedule 10, para 5. Under para 5, in certain circumstances, the chairman may sit alone. See para 5.49 above.     [Back]

Note 24    Rent Assessment Committees (England and Wales) Regulations 1971 (SI 1971 No 1065); Rent Assessment Committee (England and Wales) (Leasehold Valuation Tribunal) Regulation 1993 (SI 1993 No 2408) as amended by Rent Assessment Committee (England and Wales) (Leasehold Valuation Tribunal) (Amendment) Regulations 1997 (SI 1997 No 1854); Leasehold Valuation Tribunals (Service Charges, Insurance or Appointment of Managers Applications) Order 1997 (SI 1997 No 1853).     [Back]

Note 25    Section 73.    [Back]

Note 26    Schedule 9.    [Back]

Note 27    Schedule 9, paras 14 and 15.    [Back]

Note 28    By para 14, deputy chairs must have the same qualifications as chairs, who must have a 7 year general qualification. By para 15, the wing members must be persons representing the interests of farmers or persons representing the interests of owners of agricultural land.     [Back]

Note 29    Paragraph 16.     [Back]

Note 30    Agricultural Land Tribunals (Rules) Order 1978 (SI 1978 No 259).     [Back]

Note 31    Schedule 11, para 1.    [Back]

Note 32    SI 1989 No 439.    [Back]

Note 33    Regulation 3.    [Back]

Note 34    Regulation 4(1).    [Back]

Note 35    Regulation 25.    [Back]

Note 36    These were the Social Security Appeal Tribunal, Child Support Appeal Tribunal, Disability Appeal Tribunal, Medical Appeal Tribunal and Vaccine Damage Tribunal.    [Back]

Note 37    There are some small differences in child support cases.    [Back]

Note 38    SI 1999 No 991.    [Back]

Note 39    Section 5(1).    [Back]

Note 40    Section 5(2).    [Back]

Note 41    Section 6(2).    [Back]

Note 42    Section 6(3).    [Back]

Note 43    Section 6(4).    [Back]

Note 44    Section 7(1).    [Back]

Note 45    Section 7(2). The prescribed legal qualification is that the person must have a general qualification under the Courts and Legal Services Act 1990, s 71 or be an advocate or solicitor in Scotland.    [Back]

Note 46    Section 7(3).    [Back]

Note 47    The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991), reg 36.    [Back]

Note 48    Section 12(7).    [Back]

Note 49    Section 14(1).    [Back]

Note 50    Sections 14(3) - 14(6).    [Back]

Note 51    Section 14(8).    [Back]

Note 52    Section 14(10).    [Back]

Note 53    Section 14(11).    [Back]

Note 54    Section 15(4)(a).    [Back]

Note 55    Section 15(2).    [Back]

Note 56    Section 15(3).    [Back]

Note 57    Section 15(3).    [Back]

Note 58    Section 16(1).    [Back]

Note 59    SI 1999 No 991.    [Back]

Note 60    Social Security Act 1998, s 6. See para 7.23 above.    [Back]

Note 61    Social Security Act 1998, s 7. See para 7.24 above.     [Back]

Note 62    Regulation 36(2).    [Back]

Note 63    Regulation 36(3).    [Back]

Note 64    Regulations 44 and 45.    [Back]

Note 65    The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991), regs 35 and 36.    [Back]

Note 66    See para 5.29.    [Back]

Note 67    This is discussed at para 4.23 above.    [Back]

Note 68    See the example of local government finance cases, discussed at para 5.54 above.     [Back]

Note 69    Nick Wikeley, “Burying Bell: Managing the Judicialisation of Social Security Tribunals.” (2000) 63 MLR 475, see p 486. Emphasis in the original.     [Back]

Note 70    For a discussion of some of the general issues, see Garner’s Administrative Law (8th ed 1996), Chapter 5.    [Back]

Note 71    The jurisdictions that would be transferred to the reformed Lands Tribunal and those that would be transferred to the PVT are discussed at paras 4.14 – 4.15 above.     [Back]

Note 72    We discuss the qualifications of the Presidents and the Regional Chairs at para 5.14 above.    [Back]

Note 73    For an example of how case allocation might work, see para 5.53.    [Back]