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Mr. Chope:
There is a difficulty with this. I am in favour of encouraging the maximum number of people to join political parties and participate in the political process. My hon. Friend refers to the laudable objective that everyone who sits on a tribunal should be without allegiance to a political party, but if the consequence of introducing such a rule would be to deter people from participating in the political process or joining a political party, it would be counter-productive. We have reached that situation already in some of the appointments in the NHS. Unless people are members of the political party that is in government, they feel, especially if the Minister is making the appointment, that they will be at a potential disadvantage. Often, people who have a party political interest—who have joined a political party and take an interest in public affairs and the welfare of our great nation—have an
important role to play, perhaps on tribunals like the ones we are talking about. They might be party political, but the important thing is that such people, whatever their views, are big enough to be able to suppress their prejudices when it comes to taking decisions—
Mr. Chope: I shall give way to my hon. Friend—
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I hope that the hon. Gentleman will give way to me. We are in danger of hearing an embellishment too far in terms of the new clause that is before the House. It would perhaps have been better if some of the issues that are now being raised had formed part of another amendment or new clause. I direct the House to have regard to the strict terms of the new clause that is being considered.
Mr. Chope: I am grateful to you for that ruling, Mr. Deputy Speaker. You will be aware of how physically exhausting it is to keep rising and sitting down again—
Mr. Deputy Speaker: Order. In which case, the hon. Gentleman will no doubt consider that that also applies to the Chair. Perhaps we will have mutual restraint in that respect.
Mr. Chope: Absolutely. Let us hope so. I abide by your ruling, as always, Mr. Deputy Speaker. I am not going to articulate all the details that would be contained in the regulations which, if I interpret it right, is your concern. Otherwise, we would be here all day, which would obviously be undesirable.
Derek Conway: Obviously we will abide by the directions of the Chair, but in terms of rising and sitting down I note that both the occupant of the Chair and my hon. Friend look in pretty good condition, so this exercise is probably very good for everyone.
My hon. Friend says that he does not want to be pressed on the detail. I am sorry we are having to do that, but we do not have explanatory notes to new clauses in the way that we do for other Bills, so he will understand why we need to press him to clarify the direction in which he is travelling. Although he will not go into absolute detail—the House will understand why—I hope he does not take offence at the fact that we are pressing him a little on these matters.
Mr. Chope: I would never take offence at anything my hon. Friend did or said. What is important is that the House and the Government, whom I hope to be able to persuade to accept the new clause, know why we have chosen to include the words
“composition, conduct and operation of the Tribunal.”
Those are the three key elements of the regulations to be made under the new clause. We discussed the importance of the composition of the tribunal. The nature of its composition would make all the difference in the world to its effectiveness and authority. That is why there
should be detailed regulations relating to that. The conduct of the tribunal would be fundamental to whether the people who appear before it have confidence in it, and whether it is effective and commands public support. The operation of the tribunal is also highly relevant. That is why those three elements have been picked out. The new clause does not say that the Secretary of State cannot make regulations that go wider than that, but any regulations that he does make must include those essential key elements. I hope that that commends itself to the House.
Greg Clark (Tunbridge Wells) (Con): In promoting the new clause, my hon. Friend has given such an alarming picture of the consequences of the tribunal having people of poor quality or not being able to conduct itself properly that he is beginning to persuade me that the new clause is deficient and should have more specifics on the conduct and calibre of the people involved. Can he reassure me on that?
Mr. Chope: All I can do is say that we are where we are, as Mr. Deputy Speaker said. We have the new clause before us. It is not embellished. No one has sought to amend it by making it more extensive. All one can do is hope that if it is incorporated into the Bill and the Bill becomes law, the Government, who control such things, will ensure that the concerns expressed are reflected in the content of the regulations.
Mr. Burns: It grieves me to have to tell my hon. Friend that, like my hon. Friend the Member for Tunbridge Wells (Greg Clark), I am becoming more and more concerned that the new clause does not go far enough. I fear that I shall have to seek to catch Mr. Deputy Speaker’s eye to make it clear why there may be deficiencies in it.
Mr. Chope: It would not be the first time I have been accused of having deficiencies. I am the first to accept that nothing in the world is perfect but, as I candidly explained to the hon. Member for Montgomeryshire (Lembit Öpik), my main concern is to introduce a provision that is in order and relevant.
Philip Davies: I understand the objections that other Members have made, but as at this stage we do not know how many cases would go to a tribunal or how many times it would meet, does my hon. Friend agree that it is difficult to make specific points about its composition?
Mr. Chope:
That is obviously an issue. The number of times the tribunal met would depend on how the Government used their powers under clause 2. If they were seen to use their powers fairly, only a small number of aggrieved people would appeal to a tribunal. Of course such a process is always open to vexatious litigants or people who are sometimes encouraged—I am ashamed to say—by members of the legal profession who think there is money in it for them too, but such cases would be the exception. However, if the Government were seen to be heavy-handed in the use of their considerable powers under clause 2, there would be a heavy burden on the tribunal, which would eventually lead to additional costs for the taxpayer. In that sense, setting up a
tribunal process with costs for the taxpayer would introduce a deterrent against the Government acting in a high-handed and unfair fashion in the exercise of their powers.
Greg Clark: It is uncharacteristic of my hon. Friend to call for what could be a considerable increase of public expenditure, which has to be financed from taxation. He is usually meticulous in avoiding such charges on the Exchequer, so I assume that he has made an assessment of what he considers a proportionate sum for the costs of the provision. What does he think is a reasonable expenditure consequence of his proposal?
Mr. Deputy Speaker: Order. Before the hon. Gentleman replies, may I point out to the hon. Member for Tunbridge Wells (Greg Clark) that it will be helpful if he addresses both the Chair and the microphone? Otherwise his words may not be properly recorded.
Mr. Chope: My hon. Friend the Member for Tunbridge Wells asks a pertinent question. As a former shadow junior Treasury Minister, I know how important costs are and how important it is that Opposition parties do not support proposals that might be interpreted by a mischievous Government as suggesting that we were making unfunded spending commitments. I do not think that the costs of the tribunal process would be greater than the costs incurred by not having a tribunal. If there is no tribunal to take the steam out of the cauldron, more people would be dissatisfied and the judicial review process would be used instead. Perhaps the Minister will tell us about that process in due course because when we last discussed the issue the Government line was, “Let the people use judicial review”, but that is expensive not only for the applicants but for the Government and thus the taxpayer nationally. It can use up valuable resources.
Greg Clark: Will my hon. Friend explain who will pay the costs of the tribunal? Will the litigants be responsible, which might mitigate the costs to the Exchequer, or is it his intention, and expectation, that the costs would be met from central Government?
Mr. Chope: I am afraid that on this occasion, I will have to hide behind the wording of my new clause and say that that will be a matter for the regulations. Regulations could incorporate rules relating to costs, but I had it in mind that normally the burden of costs should be borne largely by the taxpayer rather than the applicant. We are talking about lots of applicants who are applying for what may be quite modest civil service jobs, where the salary might be only a few tens of thousands of pounds. I would not want them to be deterred from exercising their rights and obtaining justice by the knowledge that, were they to be unsuccessful, they would be penalised significantly by costs.
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I understand where my hon. Friend is coming from on the issue of costs and taxpayers’ money, but an important balance has to be struck. That is one of the
reasons I am so disappointed by the way in which the Government are dealing with legal aid, effectively ruling out access to the legal system for lots of people in our society who are relatively poor. It has almost got to the stage where people have to be extremely wealthy or extremely poor to get access to justice. I would not want my tribunal, as I shall arrogantly call it, to fall foul of that system. I want anybody who is aggrieved—not those who are vexatious—to be able to get access, and the costs would have to be borne as part of the overall cost of society and having fair play.
Philip Davies: I am sure my hon. Friend accepts that there cannot be a differential between the cost and the effectiveness of the tribunal. They are part of the same issue. He said earlier that more people would go to the tribunal if the Government were seen to accept its verdict. Is there a danger that the Government would deliberately not accept the verdicts of the tribunal to deter people from going to it, in order to reduce its costs?
Mr. Chope: My hon. Friend is adopting the mindset of a Minister; I congratulate him on that. It is exactly the convoluted approach, with perverse behaviour and outcomes, that Ministers, or perhaps their advisers, often adopt. I hope that we can have more trust in human nature and rational behaviour on the part of the Government than my hon. Friend suggests. I do not want to make any guarantees, but I live in hope. The issue of costs is important, and when we last discussed it, it was the main reason and justification put forward by the Government for not accepting the new clause. However, I would say, “What price justice?”
Greg Clark: My hon. Friend has made it clear that it is at least possible that the costs might fall on the litigant, but given the terms of his new clause, if the tribunal’s decision were not binding on a Minister, litigants would be enticed into a gamble. They could spend large sums of money and win their case, but find that Ministers completely ignored the tribunal’s ruling. Should we be enticing people who may be, as my hon. Friend says, quite low paid, to risk their money in that way?
Mr. Chope: I draw my hon. Friend’s attention to a relevant analogy, which is what happens under the planning process. If people are aggrieved by a planning outcome, they can seek judicial review, which is an expensive, convoluted process. The result of that review will never overturn the decision and say that the planning permission that was granted is now overturned. A judicial review can only send the matter back for reconsideration. That happens at the moment under the planning process, and it is one of the reasons why I would never advise a constituent to engage in such judicial reviews.
However, at least under my proposals, the costs will be much less for the applicant than those of engaging in judicial review. I accept the comments of my hon. Friend the Member for Tunbridge Wells that, almost by analogy with judicial review of planning decisions, the outcome will be uncertain because applicants may end up with a pyrrhic victory. They believe that the recommendation has been made in their favour, but then the Government overturn it. At least by that stage,
the Government are accountable to the House, the individual Member of Parliament can seek an Adjournment debate on the matter and all the available processes would come into play, including scrutiny by the alert newspapers, which we are lucky enough to have in this country.
Giving a Minister of the Crown discretion about whether to accept a recommendation drives a coach and horses through matters, and I take the point that the proposal is less than perfect, but it is better than the alternative. Indeed, there is no alternative before us today.
It is typical of the responsible way in which hon. Members are tackling the matter that they are so concerned about the potential costs and want to ascertain how the process may interact with the people whom it is designed to benefit. Under clause 2, married people may find themselves penalised by their relationship. I appreciate that amendments in the next group could have an impact on the clause. However, when one considers that the status of a spouse may have a critical impact on an individual’s ambition to serve in a civil capacity under the Crown, it is important to establish proper safeguards for such people. In a sense, they risk being penalised not for their status, beliefs or nationality but because of the person whom they have chosen to marry. That may have to happen sometimes, but, if so, it should be subject to a right of appeal or review, for which the new clause calls.
My hon. Friend the Member for Beaconsfield supported the new clause when we previously discussed the measure. He said that it provided a framework of greater fairness and that it would prevent the Government from having free rein in picking and choosing the countries that they would put on a prohibited list.
Clause 2 gives the Government tremendously wide discretion to outlaw citizens from a range of countries on the basis of a black list, which may have a severe impact on affected individuals. As my hon. Friend the Member for Beaconsfield said on the previous occasion, it would be better to concentrate on the individual qualities of applicants, almost irrespective of their nationality, and consider their ability to serve the country well.
When we discussed the measure previously, the hon. Member for Hendon, the promoter, was dismissive of the new clause, saying that those who supported it were not genuine supporters of the Bill. That did not—and does not, I believe—apply to my hon. Friend the Member for Beaconsfield because he said that he could see some good in the Bill overall. I can see some good in the Bill overall, but I can also see a lot in it that is bad. I am concerned to try to make it better and fairer than it would be without the inclusion of new clause 1.
On the previous occasion, it was said that judicial review would be available and that that would be sufficient—I anticipate that the Minister might have the same brief as her predecessor did three years ago and say that we do not need the provisions in the new clause. The argument was put then, and no doubt it could be put now, that the judicial review process had been streamlined and that there were now effective
mechanisms for settling cases prior to the hearing taking place. However, if one wants a recent example of the reality of judicial review, one does not need to go further than the case reported in the papers in the past 10 days of the challenge to the distribution of the Al Gore film to our schools. An individual took that case to judicial review. Although I do not have first-hand knowledge of it, my understanding of what was contained in press reports is that bringing the case to judicial review could have cost the challenger up to £200,000. If he had lost the case, not only would he have had to pay that £200,000 but he would have been liable for the Government’s very considerable costs.
We do indeed have a new judicial review process, which can be used by the Government, but it is too rarely used by the Government. It could have been used by the Government in that case, because at the end they seemed to be quite satisfied with the outcome, although the taxpayer ended up paying the best part of two thirds of the costs of the challenger, as well as the costs of trying to resist the challenge. However, not many people who seek a position in the civil service will risk such large sums of money in the judicial review process. I therefore do not think that the judicial review argument, which the Minister might deploy, is an effective argument against the new clause.
There it is—the new clause is not perfect, but it would certainly have a beneficial impact on what would be the unfair provisions in clause 2.
Greg Clark: My hon. Friend must forgive me for not being on the Front Bench in the Committee stage of the Bill, but can he brief me on whether the Human Rights Act 1998 offers some protection to people who might be disadvantaged by the decisions of Ministers?
Mr. Chope: Although I am member of the Parliamentary Assembly of the Council of Europe—I am delighted to see the former leader of the British delegation, the hon. Member for Manchester, Central (Tony Lloyd), in his place; he might be able to help us on this—my understanding is that in order to exercise one’s rights under human rights legislation in this country one would need to go to court. That means that one would effectively open oneself up to exactly the same potential costs as going to judicial review. One might then seek to go the European Court of Human Rights in Strasbourg. However, I believe that at the last count the list of cases waiting for determination there was about 100,000, so one would not be guaranteed very speedy justice, and by then the job opportunity might have gone somewhere else.
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Greg Clark: I am grateful to my hon. Friend for that clarification, but at least the Human Rights Act 1998 is judiciable in the British courts. Should we not be sceptical about proliferating these bodies? If there is already a court that is qualified to address and redress some of these concerns, we should make use of it, rather than seeking to replicate it.
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