First Standing Committee on Delegated Legislation
Tuesday 23 October 2001
[Mr. Frank Cook in the Chair]
Draft Contracting Out of Functions (Tribunal Staff) Order 2001
Motion made, and Question proposed [16 October],
That the Committee has considered the draft Contracting Out of Functions (Tribunal Staff) Order 2001.[Ms Rosie Winterton.]
Question again proposed.
The Chairman: Before I call the Minister, I remind the Committee that we are resuming a debate begun last Tuesday on the motion moved by the Minister that the Committee has considered the draft Contracting Out of Functions (Tribunal Staff) Order 2001. Members of the Committee who do not remember might read the Official Report at column 11, where the Chairman said:
``As the order has already been moved, I am obliged to put the question.''
At column 12, the Chairman continued:
``I advise the Committee that if the order were withdrawn, the Committee would be discharged. It would have to be reconstituted, and we would have to go through the process again. It would be easier to act with expedition and adjourn the sitting to another date. In that case, the same Committee would convene, with its previous dialogues on record.''[Official Report, First Standing Committee on Delegated Legislation, 16 October 2001; c. 11-12.]
The Chairman's task is to ensure that Standing Orders and procedures are followed in an orderly fashion, so that misunderstandings, especially relating to procedure, are avoided. Perhaps I should apologise to the Committee for not having been sufficiently clear. I shall now make the matter perfectly clear, as I understand that not everyone present has the benefit of a Jesuit education. I must take the blame firmly on my shoulders for a misunderstanding that took place not only in Committee, but which has been transmittedrather like anthraxto another 33 Members of the House.
Early-day motion 271 states that a
``Standing Committee on 16th October was driven to withdraw a draft statutory instrument'',
a statement that runs directly counter to the advice that I gave the Committee. I am sure that that is my responsibility or the result of a member of the Committee falling asleep for a secondor perhaps more than a second, which would be most reprehensible. In the interests of accuracy and good history, I suggest that rather than the order being withdrawnabout which we shall learn more in due coursethe early-day motion should be withdrawn.
Debate on the motion lasted 44 minutes last Tuesday. Accordingly, as debate on the order is limited to one and a half hours, I must put the question at 11.16 am today if proceedings are not concluded before then.
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): Thank you, Mr. Cook, for agreeing to adjourn
The Chairman: Suspend.
Ms Winterton: suspend debate on the order that we began in Committee last Tuesday.
The current provisions for the appointment of staff to the Immigration Appellate Authority are paragraph 7 of schedule 2 and paragraph 7 of schedule 3 to the Immigration and Asylum Act 1999, not paragraph 15 of schedule 5 to the Immigration Act 1971, as I said before. The relevant provision for the appointment of staff to the Lands Tribunal is, as I said before, section 2(7) of the Lands Tribunal Act 1949.
I am grateful to have had the opportunity to consider fully the anxiety expressed by the hon. Member for Stone (Mr. Cash) about the vires of the order. I am pleased to confirm that the order is intra vires.
It may help if I give hon. Members a full explanation. In this instance, the purpose of contracting out is to enable Ministers and office holders to delegate some of their powers to employ staff. The Conservative Government introduced the Act which achieves that, and I understand that you, Mr. Cook, had the pleasure of chairing the Standing Committee that discussed the Bill between February and April 1994. As I explained last week, the order's purpose is to enable the Lord Chancellor to authorise external contractors to provide staff for the Lands Tribunal and the Immigration Appellate Authority.
It is clear that the ministerial duties that may be contracted out in that manner must be closely circumscribed and there are three restrictions in the 1994 Act. First, section 71 stipulates that certain functions cannot be delegated . Secondly, the functions that can be delegated must be the subject of an order approved by both Houses of Parliament, which explains our presence this morning. Finally, when the draft order is agreed and the Minister has the power to authorise another person to carry out his functions, he cannot grant that authorisation for all time. Section 69(5)(a) states:
``An authorisation given by virtue of an order under this section shall be for such period not exceeding 10 years as is specified in the authorisation''.
I quote that provision because, last week, there was confusion about its meaning. It is not the order that the Act requires to be of limited duration; it is the authorisation made by virtue of that order that must be so limited.
Mr. John Burnett (Torridge and West Devon): I am grateful to my hon. Friend the Member for North Norfolk (Norman Lamb), with whom I have discussed the matter. Does the Minister agree that there is no prohibition on giving subsequent authorisation to the same person? That could exceed the 10-year period.
Ms Winterton: Under the system, a contract will be entered into, for example, for an agency to provide staff. The contract may be for three years or five years, but it cannot be for longer than 10 years. At the end of the five-year period, the contract may be renewed. When the order has been agreed
Mr. Burnett rose
Ms Winterton: When the order has been agreedthis may help to clarify matters for the hon. Gentlemanevery authorisation made under it by the Lord Chancellor will be for a fixed time not exceeding 10 years. That is the clear effect of the statute. In 1994, Parliament would have said so if it thought it appropriate to limit the duration of the orders, rather than of the consequent authorisations. Moreover, Parliament would not have needed to insert the statutory restrictions on the duration of the authorisations.
I turn to other points that were raised last week. The hon. Member for Stone asked what arrangements had been made for security checks on the people employed. I undertook to reply to him in writing. The hon. Member for Torridge and West Devon (Mr. Burnett) also raised the matter. As I have been afforded the chance to speak again, I shall deal with it now.
It is standard practice for all the agencies involved in supplying staff to the Immigration Appellate Authority, and to the Lands Tribunal, to carry out pre-employment checks on their employees. Those are the same checks as are carried out by the Court Service when permanent members of staff are appointed. The hon. Member for Torridge and West Devon asked how the civil service disciplinary code of conduct will impact on agency employees, especially in respect of confidentiality. I assure the hon. Gentleman that the employment contracts between the employment agency and the agency staff employees contain clauses to ensure confidentiality and proper conduct in the workplace.
I was also asked about remuneration for those agency employees, and how that compares with the cost of employing permanent staff. The cost of employing an agency typist, for example, is approximately £4,000 a year more than the cost of employing a civil servant over the course of a year. I reiterate, however, that we use agency staff in tribunals because of shortages in the work force, which agency staff with the necessary skills can fill at short notice. The additional cost of £4,000 is the aggregated cost over a full year, and is much greater than the actual additional cost if an agency member of staff is used for only a short period, as many such staff are.
Mr. William Cash (Stone): We know that the practice has been in existence for some time, which is why the order is necessary to authorise it, and to provide for the future. Will the Minister say what costs have already been accumulated in excess of the costs that would have been borne if civil servants had been used during the years in which such activities were in operation?
Ms Winterton: The cost for last year was about £2.8 million. That has increased over the years because of the increased number of agency staff taken on recently, as the hon. Gentleman knows, to deal with the situation in the Immigration Appellate Authority. However, the other great advantage of using agency staff is that vacancies can be filled immediately and there is no severance cost to the Department when their services are no longer required. As I explained to the Committee last week, the Court Service currently employs 200 agency staff in the courts and tribunals, at least 140 of whom work in the Immigration Appellate Authority, and three in the Lands Tribunal. That needs to be put in the context of 10,000 permanent employees. The Court Service has a commitment to use permanent staff wherever possible, and more than 1,000 permanent and 1,000 casual civil servants have been recruited during the past year. As I said last week, I will be monitoring the progress that is being made on the recruitment of permanent staff for those tribunals.
I hope that I have allayed the concerns expressed by Committee members last week about the use of agency staff. I assure the hon. Member for Stone that, despite the concerns that he expressed earlier, the order is intra vires. It was approved in another place on Thursday 18 October. I hope that the Committee does not mind my giving such a full explanation, but it was important for me to clarify the position. If Committee members have other questions about the order, I shall be happy to respond to them. Thank you, Mr. Cook, for allowing the Committee to be suspended, and for giving me the opportunity to provide such additional information.