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Session 2001- 02
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Delegated Legislation Committee Debates

Draft Contracting Out of Functions (Tribunal Staff) Order 2001

First Standing Committee on

Delegated Legislation

Tuesday 16 October 2001

[Mr. Frank Cook in the Chair]

Draft Contracting Out of Functions (Tribunal Staff) Order 2001

10.30 am

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I beg to move,

    That the Committee has considered the draft Contracting Out of Functions (Tribunal Staff) Order 2001.

This is my first Committee as a Minister. I am pleased, Mr. Cook, that you are its Chairman, and I am sure that I speak on behalf of all members of the Committee when I say what a pleasure it will be to serve under your chairmanship.

The Chairman: Let us hope that that will continue.

Ms Rosie Winterton: Section 69 of the Deregulation and Contracting Out Act 1994 enables the Lord Chancellor, by making an order, to permit the authorisation of functions conferred on him to be carried out by another person or by that person's employees.

The purpose of the Contracting Out of Functions (Tribunal Staff) Order 2001 is to authorise an external contractor to provide staff for the Lands Tribunal and for the Immigration Appellate Authority, so that agency staff can service those tribunals when necessary.

The current provision for the appointment of staff to the Lands Tribunal is section 2(7) of the Lands Tribunal Act 1949. The relevant provision for the Immigration Appellate Authority is paragraph 15 of schedule 5 to the Immigration Act 1971. Those provisions require the administrative work of the courts to be undertaken only by officers and staff appointed by the Lord Chancellor for that purpose.

This legislation is required to enable agency staff to be used in those tribunals on occasions when it is difficult to recruit permanent and casual civil servants, or when staff are required at short notice, to cover staff shortages or to deal with peaks in the work load.

The employment of agency staff in the Court Service is not new. They have been being used for at least 10 years, but there is a significant need in the Immigration Appellate Authority, due to an increase in the number of asylum cases being transferred from the Home Office, to employ more agency staff to deal with the increased work load as a temporary expediency. Agency staff are not deployed in the direct administration of immigration cases. Most are typists whose role is to type adjudicators' decisions, or ushers who support the temporary courts that have been set up to cope with the increase in the number of immigration appeals.

Agency staff give the Immigration Appellate Authority the necessary flexibility to operate in what is still an uncertain operational climate. Should it stop using agency staff, the greatest impact would be on its ability to meet its operational targets, which would have a significant impact on the levels of customer service provided. The Immigration Appellate Authority will seek to balance the correct level of permanent work force with business needs once work load levels return to normal.

The number of agency staff employed by the Lands Tribunal is minimal—usually only two or three at any one time—but their use still needs to be put on a legal footing. It makes sense, therefore, to use the instrument to cover both tribunals.

I stress that agency staff are employed in the tribunals purely for administrative tasks, including typing, data processing and filing. There are no proposals to contract out any judicial functions, such as listing. I also assure the Committee that there are no proposals to employ agency staff on a widespread basis. They will be employed only to meet genuine emergencies.

I intend to ensure that judicious use is made of agency staff, and I will expect to be kept updated on the numbers recruited and on the progress that is being made on any on-going recruitment campaign for permanent staff at the tribunals.

The Court Service is looking to use a variety of employment contracts to provide flexibility in its approach to support the changing needs of the business while continuing to offer the highest standard of customer service. The use of agency staff is just one of the methods that are being used to meet those needs. Other approaches include the introduction of alternative working patterns for permanent staff, the use of casual staff and fixed term contracts.

The draft order seeks to enable the employment of agency staff in the tribunals to be put on a firm statutory basis. That will assist the Lands Tribunal and the Immigration Appellate Authority in exercising their functions effectively when there is a shortage of permanent staff.

Similar legislation is being proposed to regularise the employment of agency staff in the courts where staff are appointed under section 27 of the Courts Act 1971, but that is by means of negative resolution requiring consultation with the senior judiciary. The negative resolution has been drafted and, subject to the Committee's approval of the order, it will be laid and made shortly.

I commend the order to the Committee.

The Chairman: I notice that members of the Committee are already cracking bottles of water. That may indicate that they are feeling somewhat warm, so in order to facilitate their concentration on the matters under consideration, male Members may divest themselves of their upper garments.

10.37 am

Mr. William Cash (Stone): Having heard from the Minister that this is the first occasion on which she has addressed a Committee in her present capacity, I had better disclose that it is mine too—from this position. Hon. Members will know that I have been addressing Committees for a long time, since I first entered the House in 1984.

This is an interesting order, not least because of the Minister's explanation of why it was needed. Why is it necessary to shift the responsibility from the Lord Chancellor in the way that the order proposes? This is not the first time that there has been such a shift. A few years ago the Secretary of State exercised such functions. There has been a leapfrogging exercise from the Secretary of State to the Lord Chancellor and now downwards to these other persons—the employees—who will be authorised by the Lord Chancellor. The functions are described in paragraph 2(1) as being

    ``exercised by, or by the employees of, such persons as the Lord Chancellor may authorise to do so.''

The Minister did not give the fullest explanation of the measure, other than to say that it is to deal with questions relating to work load and the shortage of permanent staff. The arrangement will not be entirely confined to typists and ushers, as she described, because it is much more open-ended.

I am concerned not only about who will be doing the work in question, but about remuneration and expenses, which the Minister also failed to clarify. What will the remuneration and expenses be, and under what contracted-out arrangements? Is the amount guaranteed to be less than it would have been had the services been provided by permanent civil service staff? That is an important question. It would be pointless to introduce outside people because of a crisis in a part of the Lands Tribunal, or the Immigration Appeal Tribunal, that meant that they could not cope with the work load. Bringing in new people could cost the taxpayer more money in remuneration and expenses, which could exceed what we regard as fair and proper, or that which is provided by the civil service. An explanation would be helpful.

The Deregulation and Contracting Out Act 1994 states that where an order is made the period in question should not exceed 10 years. I do not see anything in the order that prescribes a period of time and I should be grateful if the Minister would consider that. The provision may have been repealed without my realising it, but the order appears to be open-ended with no time limit and I should be grateful to the Minister for an explanation.

If the arrangements are to work, be beneficial and leave us with a satisfactory system, we need some explanation, particularly with regard to the Immigration Appeal Tribunal, and in the light of the tragedy of 11 September and the question of terrorism, and the extent to which we will be faced with increasing care and scrutiny in respect of immigration and asylum. We have yet to see the legislation, but when it is introduced the work load will undoubtedly further increase because there will be a greater necessity to ensure that processes are conducted in an orderly, efficient and prudent manner. On the surface, it might appear that the transfer of such functions to contracted out services is likely to increase, not decrease, in light of the need to contain the difficulties of new terrorist threats.

That raises the question of the extent to which the permanent staff should be increased within the civil service and, if they are to be supplemented by people from outside, whether those people's remuneration and expenses are in line with what is in the public interest. I look forward to the Minister's response.

10.43 am

Mr. John Burnett (Torridge and West Devon): I, too, welcome you to the Chair, Mr. Cook. I have frequently served under your benign chairmanship. I remember it particularly during marathon sittings on a Finance Bill—was it last year, or the year before? I also take the opportunity to welcome the Minister. Since the advent of a Labour Government, she arrives after a long line of Ministers. It is not exactly a hall of fame, but rather snakes and ladders. There was the right hon. Member for Ashfield (Mr. Hoon) and then the hon. Member for Leicester, East (Mr. Vaz). Next, the Lord Chancellor decided he needed two wingers and brought in the hon. Member for Liverpool, Wavertree (Jane Kennedy) and the former hon. Member for Wyre Forest (David Lock), who is no longer with us and has been hospitalised—he was a conscientious and able Minister. I welcome the new Minister.

I also welcome the hon. Member for Stone (Mr. Cash). It is not yet clear whether he is to combine the jobs of Shadow Attorney-General and scrutineer of the Lord Chancellor's Department, but I am sure that he will make it clear in due course.

Two of the points that I wanted to raise have already been mentioned by the hon. Gentleman, but it is worth revisiting them. I should like to know whether it would be cheaper to recruit agency staff or further civil servants or temporary civil servants? Has the Department calculated the cost of employing agency staff? Presumably the overall cost will include such matters as an agent's commission. Is the Department paying commission? Will the Department incur additional advertising costs? It is for us to scrutinise public expenditure and to see that the public get value for money.

The hon. Gentleman made another valid point. The Minister told the Committee that the measure is only a temporary expedient. For how long will it last? When the logjam is overcome, will the Minister come back to the House to rescind the order, or should the Minister think again and have a provision that it lasts for only a finite period of time—say two or three years? We do not and should not have an open-ended commitment on a matter such as this.

I should like to know more about the status of the new agency ``employees''. Will the people who are contracted to do the work be employees, or will they be self-employed? Will they be subject to schedule E or schedule D income taxation? Who will receive the payment? Will it be the agency company itself? Under whose aegis will such people work? How will the civil service disciplinary code of conduct impact upon them? That is particularly important with regard to court employees, where there are important matters of confidentiality. Will such employees or operators be offered pensions? What other benefits will be offered that the Minister can tell us about and quantify?

Finally, what qualifications will be expected of the staff? Will they be looking for minimum qualifications? Will they be looking for any additional experience or qualifications to that usually associated with ordinary administrative work? Those are four or five matters to which I should like replies. I am grateful for the opportunity to address the Committee and the Minister.

10.48 am


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