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Philip Davies: May I drag my hon. Friend back to something that he said earlier? I was intrigued by his observation that the Government of the day—I was not an MP at the time—were hostile to the new clause. Given its rather benign nature and the modest proposals that it contains, will my hon. Friend explain what the objections were?
Mr. Chope: I shall come to that shortly. I am afraid that my hon. Friend will have to wait expectantly for me to remind the House of what happened on that occasion. But, as I have said, my hon. Friend the Member for Beaconsfield was supportive of, indeed enthusiastic, about the new clause, which he considered to be a necessary safeguard for those who might be disadvantaged by clause 2.
Andrew Stunell (Hazel Grove) (LD): Would such a person be an individual who had, say, been excluded from the process of application for a job, or does the hon. Gentleman think that a class of people might be disadvantaged? If it were a class of people, would he have United Kingdom citizens in mind?
Mr. Chope: I did not have a class of people such as United Kingdom citizens in mind, although the hon. Gentleman has raised an interesting point. I had in mind particular individuals who found themselves counted out as a result of the operation of the discretionary procedures in clause 2. I had in mind an individual, which raises the issue of how practical it is for an individual to seek redress unless we insert something rather like the tribunal procedure in the new clause. The hon. Gentleman, however, has raised a much wider issue—which goes beyond the terms of my new clause—about the Bill’s impact on United Kingdom citizens in general rather than individual aliens, or foreigners, who might be disadvantaged by clause 2.
My hon. Friend the Member for Beaconsfield expressed the fear that expectations would be raised among the foreign population of this country about the ability to apply for civil service jobs. He feared that when people examined the details, they would find that they were being blocked by a new set of potentially complex Government rules. They might be excluded because of their nationality, which the Government might regard as undesirable or prejudicial to their ability to act impartially or be loyal to the Crown. But—as I think many Members accept—the fact that someone in this country has a particular nationality does not necessarily mean that he supports the Government of the country of which he is a national. Indeed, the reverse often applies: a person may have come here from Sudan, Burma or—especially in the current context—Zimbabwe precisely because he despises and loathes his own country’s current regime. The fact that a person is a national of a country—North Korea or Iran, for example—that is on a blacklist should not of itself automatically put them at a disadvantage because the Government regard any national of that country as being a potential threat to our national security.
Derek Conway (Old Bexley and Sidcup) (Con):
I have secured today’s Adjournment debate and I have been following my hon. Friend’s remarks in my
office—I hope he will forgive me for not having followed them from the outset. He is setting out the difficulty that people—particularly those foreign to our country—will have in understanding the proposed legislation and its intent. The Bill is accompanied by helpful explanatory notes, however, but although we can follow the content and purpose of the Bill with the aid of those notes, I am finding it difficult to follow my hon. Friend’s arguments closely as all we have to help us is his new clause on the Order Paper—we do not have any explanatory notes on it. Such notes can be circulated in scrutiny Committees, and I wonder whether my hon. Friend might—if not during this debate, then subsequently—consider whether it might be helpful to the House, especially on private business days, to have explanatory notes on amendments and new clauses circulated.
Madam Deputy Speaker: Order. I hope that the hon. Member for Christchurch will confine his remarks to the new clause and its contents.
Mr. Chope: Certainly; that has always been my intention. I do not think it is necessary for us to have written documents explaining what the new clause is about, as the House has the benefit of my presence to explain it.
Mr. Burns: As we have the benefit of my hon. Friend explaining things, will he explain proposed new subsection (3)? It states:
“The Secretary of State shall make regulations with respect to the composition, conduct and operation of the Tribunal.”
There were problems—in the late 1990s, for example—with regard to the composition of public bodies, which led to the setting up of the independent Appointments Commission. Why does my hon. Friend want the Secretary of State to make the regulations—presumably that would give the Secretary of State the powers to appoint the members of the tribunal—or does he intend that the regulations should specify that the appointments should be made by the AC, so as to avoid any accusations of packing public bodies by one political party or another?
Mr. Chope: My hon. Friend makes a fair and pertinent point. In considering whether to adopt the wording that our late lamented friend, Eric Forth, former Member for Bromley and Chislehurst, proposed, I faced the following dilemma: if we were to try to incorporate the point that my hon. Friend the Member for West Chelmsford (Mr. Burns) makes, that would make it less likely that such a new clause would be acceptable to the Government. Sometimes in legislation, perfection can be the enemy of the good.
Mr. Burns: This Government have repeatedly said that they want there to be independent appointments, particularly following the furore over the packing of appointees to NHS public bodies in the late 1990s, so they might not be as averse as my hon. Friend thinks to making such bodies independent, in order that it is seen that they are whiter than white.
Mr. Chope:
I hope that the Government have taken that point on board. As my hon. Friend knows, under proposed new subsection (3) it would be for the
Secretary of State to make the regulations, and they would be all the better if they were to incorporate all the points my hon. Friend rightly raises.
Derek Conway: I do not wish to belabour the contribution of my hon. Friend the Member for Christchurch; he was clearly trying to be helpful to the Government. However, to pick up on the point that my hon. Friend the Member for West Chelmsford (Mr. Burns) raises on subsection (3), my hon. Friend the Member for Christchurch has included the word “conduct” in it. Is he aware that some tribunal chairmen tend to feel that they are High Court judges and often try to go much further than the legislation allows them? Has my hon. Friend used the term “conduct” in order to mean that the Secretary of State would have a mind to what training those chairmen have and that they understand the limits of the powers Parliament has given them—or does he have a different intention?
Mr. Chope: I accept the criticism that the word is vague. However, as I said, the Secretary of State would ultimately interpret what we meant by “conduct”. In the light of the previous debate, it seems that there is a good precedent, at this stage of a Bill, for the Government not really to know what that means. The issue of what we mean by “conduct” would ultimately have to be decided by the Secretary of State in regulations.
12.30 pm
Mr. Burns: May I help my hon. Friend? As he drafted the new clause, he will have noticed that under proposed new subsection (4), the regulations that will lay out the composition, conduct and operations of the tribunal will be subject to affirmative resolution, so will have to be scrutinised by this House and another place. Furthermore, the Secretary of State will have to make draft regulations first. There is a problem: regulations in statutory instruments cannot be amended. However, if the Secretary of State produced draft—
Madam Deputy Speaker: Order. This intervention is taking far too long.
Mr. Chope: What my hon. Friend is saying, I think—if I can encapsulate his remarks—is that he would like the Secretary of State to make the draft regulations before the statutory instrument came to this House. Although it is not spelt out in the new clause, I certainly hope that the Government would adopt that practice. If we have the opportunity to see draft regulations in advance, there will be the opportunity for consultation on them. Such regulations might be important and far-reaching. Issues might arise about the potential cost of the regulations; that is why we would want to see whether there was a regulatory impact assessment and cost-benefit assessment when they were brought forward in draft. In that way, we could have the fullest debate about them before they came into operation.
I am sorry that my hon. Friend the Member for Old Bexley and Sidcup (Derek Conway) was not in the Chamber at the outset of my remarks. I should say to him that the whole purpose of the new clause is to
introduce the appeal procedure so that an individual—we are talking about individuals, rather than groups—
“who is ineligible to be employed or hold office...by reason of the rules made under section 2...may appeal”.
That is important because a national of another country may be one of our country’s strongest supporters. There are many examples of that; we may find that the Government have inadvertently put lots of really strong supporters of the United Kingdom—who might even support England in the big match this weekend—on the wrong side of section 2.
Mr. Burns: My hon. Friend raises an interesting point. He seeks to establish justice through an appeal, but I am concerned about proposed new subsection (2), which states:
“In determining an appeal the Tribunal may recommend to a Minister...that an exemption to the rules be made.”
Does that recommendation add any weight towards making the Minister make such an exemption, or will it be up to the Minister’s discretion whether to accept the tribunal’s recommendation?
Mr. Chope: I am bound, in a sense, by the text of my own new clause and, as it is drafted, the tribunal could make only a recommendation, which—given the meaning of the word “recommendation”—the Government could accept or reject. However, if we set up the tribunal properly, with the right people who command respect from all sides of the debate, and if they are properly advised, take proper evidence and go into the necessary detail of individual cases, I would hope that any recommendation would be so compelling that it would be almost impossible for a Government reasonably to reject it.
Mr. Burns: I am not altogether sure that my hon. Friend, unusually, fully understands how this Government operate. However, might there not be a way round this problem? Might not the Government be persuaded to say in the draft regulations, which will be subject to affirmative resolution, that they will accept all recommendations by a tribunal?
Mr. Chope: The Government could do that, and it might be a way of encouraging a better class of person to take on the role of tribunal member. It is quite often a bit demeaning for those involved in a quasi-judicial process to think that, having heard the appeal, their recommendation might not be accepted.
Lembit Öpik (Montgomeryshire) (LD): It is of course worth remembering that we are framing this legislation not for this Government but for any Government, so it has to be robust in all circumstances. Did the hon. Gentleman consider framing subsection (2) of his new clause on the basis of making the tribunal’s recommendations binding? If so, was there a rationale for why he preferred instead the form of recommendation before us—accepting, of course, that ultimately, precedent rather than the letter of this legislation will determine the tribunal’s efficacy in influencing ministerial decisions?
Mr. Chope: I would be being less than frank with the hon. Gentleman and the House if I did not point out that, in deciding whether to retain the wording in the original new clause, it had previously been accepted as being in order and relevant to this Bill. However and as we know, there was not even a quorum in the House when it had to take a decision on it. Rather than tinker with the previous wording, I thought I would be on safer ground in adopting it. Indeed, it is the wording of which the Government and the promoter had had notice on a previous occasion, and they must have been expecting that we would introduce a similar proposal this time. However, I accept that in an ideal world, it would have been open to people to table amendments to my new clause. However, there are no such amendments on the selection list, so we cannot discuss them today.
Derek Conway: I am sorry that we are pressing my hon. Friend on this issue—I hope that he is not offended by that. I am not quite sure who the “better class of person” is to whom he referred. Perhaps my hon. Friend the Member for West Chelmsford (Mr. Burns) is the better class of person whom he wants. May I press my hon. Friend the Member for Christchurch (Mr. Chope) on the point that my hon. Friend the Member for West Chelmsford raised? If a Minister declines to accept the tribunal’s recommendation, what happens then? Would the members of the tribunal resign? Would there be another form of appeal? My hon. Friend will understand why the House would like to hear the detail on the consequences of Ministers’ actions. As we know, Ministers do not always decide as we would like them to.
Mr. Chope: Exactly, and this is where human factors come into play. The most robust judicial figures in our land would probably say, “If we make a recommendation based on evidence after hearing all the parties and Ministers reject it, this is not a role on which we wish to spend our time. We do not want to waste our time hearing cases in detail, only to find that we are overruled.”
If the Government were not to accept recommendations, the ablest people might, ironically, be deterred from continuing in service as members of the tribunal and their places might being taken by ciphers—people more interested in the role’s salary than in the opportunity that the post would give to serve the interests of justice and promoting individual liberty.
Mr. Burns: That gets back to my original point to my hon. Friend: would it not be better for the independent appointments committee, rather than Ministers of the Crown, to appoints the members of these tribunals?
Mr. Chope: I accept that it would be better. I hope that the new clause will be accepted by the Government and by the House, and that the Government will, in due course, have the opportunity of implementing it on the basis of including a practice direction that they will always accept tribunal recommendations.
Philip Davies:
Given my hon. Friend’s answer to a previous intervention about the fact that if a tribunal had considered all the evidence in a robust and thorough manner and everybody could see that it was all above board, a Minister would be unlikely to reject
the recommendations, does he intend that the tribunal would take evidence in public and that its findings would be made public so that people could hold the Minister to account should he overrule the decision?
Mr. Chope: The issues of whether the tribunal would sit in public, whether the evidence and its decisions would be published and, if so, how, are dealt with in subsection (3) of the new clause. That provision refers to the
“conduct and operation of the Tribunal.”
I would like tight prescription to be set out in regulations on that matter. In answer to my hon. Friend’s specific point, I would like that prescription to ensure that proceedings were in public, so that justice could not only be done but be seen to be done.
Philip Davies: This is an important point because the way that clause 2, which the new clause seeks to amend, is drafted means that the provision would apply not only to a Minister overruling a tribunal but to any person or body to whom the power has been delegated. It may well be that it is not a Minister who overrules a tribunal’s decision—it could be any unelected and unaccountable body—so it strikes me that it is even more important that the findings are public, so that we can all see where we stand.
Mr. Chope: Although my hon. Friend is right in saying that the decision coming before the tribunal to be tested may not be that of a Minister, but of someone else to whom the power had been delegated, the tribunal recommendation would, under the provisions of subsection (2) of the new clause, be a recommendation to the Minister rather than to the body that had made the original decision. The Minister would thus ultimately have full responsibility and accountability.
My hon. Friend is right to say that transparency is an essential part of accountability. I recall going to a court in Scotland when I was a law student. The case was quite a seamy one. My group was sitting in the public gallery, as the High Court judge knew, and it was not long before defending counsel suggested that the court should sit in camera. The lord justice in question, who recently died, sadly, put his feet up on the bench, not just metaphorically but literally, and said, “Justice must not only be done, but it must be seen to be done.” He gave a big wink to all us students sitting in the public gallery.
I am very much in favour of this principle of transparency and openness. Normally, the only people who are against it are those who fear embarrassment. There is thus always a motive for the Government to be against it, but we pride ourselves on having an open, honest and fair judicial system in this country. I would hope that those principles would be replicated in the rules for the tribunals that would be made under the provisions of the new clause.
12.45 pm
Derek Conway:
My hon. Friend’s reminiscences about his days as a law student are very interesting, but I wish to press him again on the quality of the people who will be involved and their conduct. I recall once
having to give evidence before an employment tribunal at which the chairman went way beyond the terms of reference. He was probably not up to the job, and the lawyers present had to remind him that he was going beyond the scope of the powers that Parliament had given him. Is my hon. Friend concerned about the sort of people who will be running the show? Not only might the Minister who makes the decisions be of varying quality, but so might the person giving advice on exemptions to the Minister not be of a very high calibre. The whole system could be a shambles. Does that worry my hon. Friend?
Mr. Chope: That is why it is important that the composition of a tribunal should be set out in the regulations and, preferably, be the subject of consultation in advance. I do not know whether my hon. Friend has appeared before an industrial tribunal, but in the days when I practised as a lawyer I used to do so. They comprised a chairman, who was normally legally qualified, a “representative” of the trade union movement and a representative of business. Often, one could see that those people were not working together as a collective. Instead, they saw their role as expressing their own sectional interests. If that were to happen in the tribunals that I propose today, I would be dismayed and disappointed because that is not how a fair tribunal should operate. All the people on the tribunal should be concerned only with ensuring that justice is done, and they should not be drawn from any particular sectional interests—in the same way we do not draw our judiciary from sectional interests and people do not have the right to choose the particular judge who will preside over their case. That principle also extends to juries. We have restricted people’s right to choose a jury that they think will be sympathetic to them on some sexual or, dare one say, national or racial basis.
Derek Conway: My hon. Friend makes an important point. If an employer is about to appear before a tribunal and sees that the chairman has a beard, a copy of The Guardian and plastic shoes, he knows that he is probably in for a hiding. My hon. Friend makes a fair point about the quality of people before whom one might appear. Does he think that those who sit on tribunals should have no declared party political allegiance so that at least the petitioners can be assured of a fair hearing, rather a partisan hearing?
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