Draft Contracting Out of Functions (Tribunal Staff) Order 2001

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Norman Lamb (North Norfolk): That is impressive. This is my first occasion in Committee. I am unsure whether, as a new Member, it is appropriate for me to welcome the Minister, but I may as well do so in any event.

I understand that this is a case of putting existing practice on to a legal footing. The Minister used that specific wording. The order is also intended to regularise the employment of existing agency staff. I assume from that there are currently a significant number of agency staff who are not on a legal footing within the two tribunal services.

How many agency staff are there within each of the tribunal services, what is the current cost of agency staff across the two services, and are they earning income at a higher level than the civil servants whom they work alongside?

Ms Winterton: I thank hon. Members for their kind welcome and I welcome them in return.

The hon. Member for Stone was correct in saying that the Immigration Appellate Authority should work properly and be able to deal with the current increase in the work load. That is why the order is so important.

The shift of responsibility from the Lord Chancellor is necessary to enable employment agencies, for example, to send staff, when required, without the need for approval of each individual worker by the Lord Chancellor or someone representing him. If we did not take that power, the use of agencies would become inoperable. That is the purpose of the order.

The hon. Gentleman also referred to employees of another person and asked who that is. It is the agencies.

The majority of agency staff are employed as typists and ushers. Audio typists are required to produce appeal determinations and there may be shortages because in some areas there are very few audio typists in the labour market and there may be considerable competition for their skills. The order covers areas where there are shortages of certain skills when we have not yet been able to recruit permanent staff.

Mr. Cash: Given present circumstances, what arrangements have been made for security checks on the people employed?

Ms Winterton: The hon. Gentleman is right to ask about that and I shall write to him about the security checks that will be carried out. The Court Service is aware of the need to ensure that staff are completely aware of the confidentiality clauses to which court staff need to sign up.

It is undoubtedly more expensive to use agency staff, so I am anxious that the use of such staff is kept to a minimum to cope with areas where there are shortages and temporary increases in tribunal work.

Mr. Burnett: I am interested in the Minister's response, which adds cogency to our point that the order should have a finite duration.

Ms Winterton: I accept that and I hope that the hon. Gentleman accepts that it would be unwise at this stage to say when the order might come to an end, but it will be kept under review. I do not want the use of agency staff to become an inherent part of the way in which the Court Service works. I want the order to be used only in the short term when there are difficulties, but we shall examine the timetabling to ensure that the need to continue its use is kept under review.

Mr. Cash: I do not want to be difficult, but sections 69, 70 and 71 of the 1994 Act state that, when an authorisation is made, a period not exceeding 10 years must be specified. I do not have the Act and I speak from memory, but I should be grateful if the hon. Lady would seek advice on the matter. She says that she agrees that, for reasons connected with expense and so forth, there should be a finite period, but unfortunately that is not what the order states. Perhaps she will consider that point and say how she will accommodate the provision within the order.

Ms Winterton: The hon. Gentleman is right. I shall seek legal advice and write to him about that issue.

Mr. Burnett: I hope that the Minister will circulate copies of that correspondence to all members of the Committee.

Ms Winterton: I certainly will.

The hon. Member for Torridge and West Devon (Mr. Burnett) also asked about the number of agency staff used within the Court Service. There are 200 agency staff and 10,000 permanent staff. That is more than we would like, but I hope the hon. Gentleman will accept that in that context the figure is not enormous. About two or three agency staff work in the Lands Tribunal, and more than 140 work in the Immigration Appellate Authority. The rest work in other parts of the Court Service.

Mr. Cash: I do want to harry the Minister unduly over the question of vires, but I am concerned that a provision in the 1994 statute appears to be missing from the order. No doubt there is a lawyer here who can advise the Minister immediately on the matter. It will not quite be good enough for her to say that she will write to me. If there is a vires problem, it should be dealt with under the order itself. That being so, might I make a constructive suggestion? One could solve the problem by rapidly introducing another provision, either by amending this order, or by introducing a parallel order, allowing for a specified period. I am not trying to be difficult; my worry is that an order that is ultra vires raises a rather serious matter. I am trying to be constructive—I do not believe in opposition for opposition's sake.

Ms Winterton: I thank the hon. Gentleman for being so constructive and supportive. I take on board what he says, and I can assure him that if the time limit is missing we will correct matters when the further order is brought forward. I hope that that reassures him.

The hon. Member for Torridge and West Devon also asked about the status of employees. Employees are employed by the agencies themselves. An agency has a contract to supply staff to the court and tribunal service.

Mr. Burnett: On that point, exactly how will the Court Service secure confidentiality arrangements and disciplinary processes? What process will secure a contractual relationship with the employees?

Ms Winterton: All staff who are employed through the agencies are vetted beforehand on security grounds, and the proper checks are made prior to appointment. I stress again that the agency staff are used solely for administrative tasks, and not in matters connected with judicial tasks—a point that has concerned the judiciary. I do, of course, take the point about confidentiality.

The hon. Member for Torridge and West Devon asked about civil service terms and conditions. Agency staff are governed not by the terms and conditions of the civil service, but by the terms and conditions of their agencies. Although the agency staff are engaged by the Court Service, they are managed by a civil servant and enjoy the same working conditions as civil servants.

Mr. Burnett: Some contractual or disciplinary arrangements must already exist between temporary agency staff and the Court Service, and agency staff must already have entered into a contract to secure such arrangements. Is that covered?

Ms Winterton: As I said previously, agency staff are managed by Court Service contracts, and the agencies handle disciplinary action and performance in line with civil service guidelines. I hope that that reassures the hon. Gentleman.

With regard to the matter raised by the hon. Member for North Norfolk (Norman Lamb), the cost of employing staff through an agency is higher than the cost of the civil service employing staff directly, but we must take into account the fact that those staff do not have the same pension arrangements, and so on. I stress that I am conscious of the importance of cost. I certainly want regular reports on our continuing recruitment campaign for permanent staff, but I accept the points that have been made. It would be better if staff were permanent, but it has been difficult to recruit staff in some areas. We must devise campaigns to ensure that we can recruit permanent staff and get back on to a proper footing. Trade unions have raised that issue, and I am glad to reassure all those who are concerned about it that, wherever possible, permanent staff are employed in the courts and in the tribunal service.

Mr. Cash: At one level, as I said, I am glad to know that we will seek to make arrangements to relieve the pressure on those important tribunals. We want to make the tribunals efficient, in the public interest. However, it is possible that staff other than typists or ushers could be involved, and that they will be more expensive—perhaps much more expensive—than permanent civil service staff, as the Minister conceded. That raises the wider question—in relation to the Treasury, for example—of the extent to which the Government are having problems in meeting their public expenditure requirements. That takes us into different territory, and I do not need to pursue the point now, even if it is relevant to the issue, the Minister having told us that there would be greater expense.

That relates to my argument, which is a matter not just of criticism or policy, but of vires. By the Minister's admission—she has had had the opportunity to consult advisers—the order is defective in referring to a 10-year period. In that case, the Minister does not have much room for manoeuvre. I see that she has just been handed a piece of paper, and I shall be glad to hear what she has to say before I conclude. Is it relevant?

Ms Winterton: Yes. Agency staff have been used for about 10 years, so that happened under the present Administration and the previous one. However, as the hon. Gentleman has rightly raised the matter, I assure him that we will consider it, and, if it is right, we will introduce another order immediately. Therefore, I will not move the order today. Instead, I shall seek an adjournment, so that a revised order can be drawn up, if necessary.

Mr. Cash: I am extremely grateful to the Minister. I do not want to be difficult, but when orders are ultra vires, it is essential that we get them right. I am sure that that can be done rapidly, and that we shall take a constructive view of that process. No doubt the Minister is also aware that if her response had not been so constructive, I would have been obliged to seek to divide the Committee. However, that will not be necessary, as she has agreed to withdraw the order.

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Prepared 16 October 2001