192.Section 37 gives the Lord Chancellor the power to amend the lists of tribunals in Schedule 6 to the Act by: addition to a list; removal from a list; removing a list from the Schedule; or adding a list of tribunals to the Schedule.
193.The power is constrained by subsections (2), (3) and (4):
Under subsection (2)(a), a tribunal created otherwise than by or under an enactment (e.g. a private tribunal of some kind) cannot be brought within the new structure.
Under subsection (2)(b), tribunals created after the last day of the Session in which the Act is passed (likely to be a day in October/November 2007) may not be added to any of the lists of tribunals in Schedule 6. If the First-tier Tribunal or Upper Tribunal is to have jurisdiction created by later legislation then it will need to be conferred by that later legislation rather than transferred using the machinery of section 30. As the First-tier and Upper Tribunals are all-purpose in nature it is not expected that there will be a need to create any new tribunals.
Subsections (2)(c) and (3) preserve the position of the Welsh Ministers by requiring the consent of the Welsh Ministers where they have a power in relation to a tribunal.
Subsection (4) prevents the power being used to bring any of the ordinary courts of law into the new tribunal structure. The terms “tribunal” and “ordinary court of law” are not defined but follow the terminology used in the Tribunals and Inquiries Act 1992.
194.Schedule 6 has to be read alongside sections 30 to 36 of the Act. Schedule 6 describes which of sections 30 to 36 apply to the various tribunals listed in the Schedule. There are three main powers that the Lord Chancellor can exercise in relation to the tribunals listed in the Schedule: section 30 deals with the transfer of tribunals’ functions, including adjudicative functions; section 35 deals with the transfer of executive functions in relation to tribunals to the Lord Chancellor; and section 36 deals with the transfer of rule making powers to the Lord Chancellor and the Tribunal Procedure Committee.
195.Because of the number of permutations, Schedule 6 as enacted contains seven lists:
Part 1: tribunals where all three types of function can be transferred.
Part 2: tribunals where only the adjudicative and executive functions can be transferred. There are no rule-making powers to transfer.
Part 3: tribunals where only the adjudicative and rule-making powers can be transferred because all executive functions are already with the Lord Chancellor.
Part 4: tribunals where only the tribunal’s functions can be transferred.
Part 5: tribunals where executive functions can be transferred to the Lord Chancellor and rule-making functions to the Tribunal Procedure Committee or Lord Chancellor but there can be no transfer of the tribunal’s functions.
Part 6: tribunals where only executive functions can be transferred. No change is intended to the tribunal’s functions, and rule-making powers are to remain with the Secretary of State, as indicated in Transforming Public Services.
Part 7: tribunals in Wales where onward appeals can be to the Upper Tribunal instead of the courts.