Draft Contracting Out of Functions (Tribunal Staff) Order 2001

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Mr. Cash: I am glad that the Minister had the opportunity to speak again, and I hope that she will not take it amiss if I say that I tried to help her a little along the way. I am grateful for her comments.

First, I return to a point that I made in an intervention. The procedure is becoming an expensive operation. Last year, the cost was £2.8 million, and I put it on record that it will become more expensive, as we can reasonably assume, in the present circumstances, that there will be greater use of the tribunal. Secondly, with the greatest respect, vires is a matter not just for the Committee, but for the courts, if they were ever to adjudicate on the matter. Therefore, assurances from the Minister are well intentioned, but without the degree of certainty on which we can all agree.

Thirdly, there is a substantive question about what the order states and achieves. I can be brief, because much has already been said. Article 2 states:

    ``The functions described in paragraph (2) below may be exercised by, or by the employees of, such persons as the Lord Chancellor may authorise to do so.''

We all know the provisions in paragraph (2). However, article 3 specifically states:

    ``Nothing in this Order shall have the effect of authorising any person''—

we are back to authorisation; that is the key word in the order—

    ``(a) to make judicial decisions or advise any person making such decisions;

    (b) to exercise any judicial discretion or advise any person exercising any such discretion; or

    (c) to exercise any power of arrest.''

Those provisions are included so that there should be no question of interference with the vires of the order. Indeed, section 71 of the Deregulation and Contracting Out Act 1994 specifies certain functions that are formally excluded from sections 69 and 70, but they are not identical to the provisions in article 3 of the order.

Given the concerns that have been expressed and the arguments that have been made, it seems a little unnecessary to agree to the order without making it crystal clear that the authorisation may not exceed 10 years. In so far as there is an exclusion from the arrangements under section 71, there is also an exclusion with respect to the 10-year period. We heard a good point from the hon. Member for Torridge and West Devon about the cumulative effects of the contracts.

If we are to be as clear as possible, we may need to insert a new paragraph (d) in article 3, stating:

    ``(d) to exercise the functions described in paragraph (2) for more than ten years.''

That would put the whole matter beyond doubt. It relates to the authorisation and would state that nothing in the order shall have that effect. In some respects, it would not be different from the provisions in section 71 of the Act. If it were included, the matter would be crystal clear and there would be no problems. The refusal to do that is a little curmudgeonly, but not untypical, as there is always a desire to save face—I understand that. It applies on both sides of the House, but there is a justification for including proposed new paragraph (d).

I go further. The explanatory note, although not part of the order, states that the Lord Chancellor has the power to contract out his functions, and so on. Again, curiously, there is no reference to 10 years. Given the constructive and good-humoured way in which we have dealt with the matter, it would have been simple to do what I suggested, and it is a pity that that has not been done. I have nothing further to add, but if the Minister is not minded to make the proposed changes, we shall divide the Committee.

10.50 am

Mr. Burnett: In round two and, probably, the final round of this epic, I shall briefly revisit the point about subsequent authorisations that I made during an intervention and which the hon. Member for Stone rightly took up. I said previously that we feel strongly about the matter. At our previous sitting, the Minister stated, rightly:

    ``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''.—[Official Report, First Standing Committee on Delegated Legislation, 16 October 2001; c. 8.]

We support the amendment proposed by the hon. Member for Stone, as it would bring the spirit of the Minister's view within the letter of the law. That is what we are here to do. There should not be an open-ended right to appoint agency staff, because that does not provide value for money, as the Minister clearly demonstrated.

On the other matters that I raised at our previous sitting, I was delighted to hear about the pre-employment checks, which are similar to those to which the regular civil service is subjected. However, I should like the Minister to flesh out the issues of discipline and confidentiality, to which I also referred. The contractual arrangements are between the Ministry and the agency, and there is no privity of contract between the employee and the Lord Chancellor's Department, so how does the Lord Chancellor's Department enforce contractual arrangements between agency staff and the Department? I look forward to hearing the Minister's response.

10.54 am

Norman Lamb (North Norfolk): I want to return to a question that I raised at our previous sitting. The purpose of the order is to regularise the employment of agency staff and I should be grateful if the Minister would simply confirm whether employment of agency staff to date has been without legal basis. If so, does she agree that all employment contracts of agency staff are without legal basis?

Ms Winterton: Perhaps I might give a fuller explanation of the argument that the hon. Member for Stone has made about the vires of the order. Difficulties are occurring because his argument confuses the order with the authorisation provisions under the order. The structure of the 1994 Act is clear. It does not require any time limitation to be imposed on the order; it does impose strict statutory limitations on the consequent authorisations, which must always be for specific periods and not exceeding 10 years. As I explain further, I hope that it will be clear why I do not accept the hon. Gentleman's suggestion.

The terms of reference of the Joint Committee on Statutory Instruments requires it to report doubts about the vires of an order, and it has reported that the order is one to which the House's attention need not be drawn. It clearly does not share the hon. Gentleman's doubts.

I shall explain what is allowed under the Deregulation and Contracting Out Act 1994. Section 69(4) states:

    ``An order under this section may provide that a function to which this section applies may be exercised, and an authorisation given by virtue of such an order may (subject to the provisions of the order) authorise the exercise of such a function—''

The functions covered are subsequently listed.

The Act allows an order to be introduced that provides functions that can be contracted out. Limitations are also placed on what functions can be performed. Section 69(5) states:

    ``An authorisation given by virtue of an order under this section—

    (a) shall be for such period, not exceeding 10 years, as is specified in the authorisation;''

It would not therefore be possible to include the 10 years under the order because it is not allowed under the Act. I can see where the hon. Member for Stone is coming from, but his suggestion would have the effect of making the order ultra vires. I hope that I have clarified the matter.

Mr. Cash: That explanation does not clarify anything. Introducing provisions into article 3—I suggested that they should be included as new paragraph (d)—would make the situation crystal clear. The words that I propose are:

    ``(d) to exercise the functions described in paragraph (2) for more than ten years.''

That seems very simple to me. Nothing that the Minister has said makes any difference, as far as I am concerned.

Ms Winterton: I realise that the hon. Gentleman does not accept my response, but I return to my point that his suggestion could have the effect of making the order ultra vires. His suggestion is not provided for under the Act. Had that been intended, it would have been included originally.

One could say that it was strictly unnecessary to repeat the effect of part of section 71 in the order, but it helps make clear to the reader the limitations on the functions that the order covers. There is no doubt about the power to impose this restriction, in contrast to the suggestion that we should limit the authorisation by order.

I turn to some of the other points raised, and deal first with the queries of the hon. Member for North Norfolk about how many agency staff there are in each tribunal service, and the current cost of agency staff across the two services. There are at least 140 agency staff employed in the Immigration Appellate Authority and three employed in the Lands Tribunal. The total cost of those staff, in both services, is approximately £2.8 million per annum.

Norman Lamb: I return to the question that I raised today, on the legality of existing arrangements. We know, from the Minister's comments, that many staff are already in place in the tribunals—140 in the Immigration Appellate Authority and three in the Lands Tribunal. Can the Minister clarify whether there is a legal basis for their existing employment?

Ms Winterton: The hon. Gentleman mentions the employment of agency staff prior to the order. As I am sure that he is well aware, agency staff have been employed in the tribunals for many years, certainly long before the 1994 Act. Any doubts about the legality of the practices of the past 15 to 20 years can be dealt with only by the courts. The purpose of the order is to put the position beyond doubt.

Mr. Burnett: Can the Minister assure us that since at least 1997 all the correct statutory procedures have been complied with in the employment of agency staff?

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