Clause
3
The
First-tier Tribunal and the Upper
Tribunal
Question
proposed, That the clause stand part of the
Bill.
Vera
Baird:
Clause 3 provides for the creation of two new
generic tribunals—a first-tier tribunal and an upper
tribunal—over which the senior president will preside. The upper
tribunal is to be a superior court of record. Each tribunal will
consist of judges—its legally qualified members—and other
members. Establishing a single, two-tier structure for tribunals will
lead to a simpler, more coherent tribunals system that will be flexible
enough to accommodate the needs of different users and different
jurisdictions, both now and in the
future.
The first-tier
tribunal will be the first instance tribunal, and will hear appeals
from the original decision-making body. The upper tribunal will be
primarily, but not exclusively, an appellate tribunal from the first
tier. Both are intended to be adaptable and able to take on any
existing or new tribunal
jurisdictions. In future, when Parliament decides to create a new appeal
right or jurisdiction, it will not need to create a new tribunal to
administer it. Because
of its specialist nature, the Asylum and Immigration Tribunal will act
as a separate pillar of the new structure outside the new legal
framework, although the Bill is sufficiently flexible to allow for
future transfer if appropriate. We would not, however, exercise that
ability to transfer unless the Home Secretary agreed, and as the
tribunal will remain outside the new generic tribunals, the associated
rule-making power will also remain with the Lord Chancellor in respect
of the AIT and not move to the new tribunal procedure
committee.
For similar
reasons, the employment tribunals and the Employment Appeal Tribunal
will also act as separate pillars of the new structure, remaining
outside the new framework for the unified system, but the AIT and the
EAT will still enjoy the benefits of the single administrative
structure of the Tribunals
Service.
Those reforms
will ensure that, as Sir Andrew Leggatt recommended, tribunals will be
independent and separate from the Departments that make the decisions
under review. They will deliver more than just a federation of existing
tribunals. They will produce a framework within which tribunal users
will be ableto benefit from authoritative, timely, consistent
and comprehensible decisions. They will deliver a cost-efficient system
providing good value for the taxpayer, and as Sir Andrew Leggatt
prescribed, they will be fit for the users for which they are
intended.
Simon
Hughes:
I should be grateful if the Minister would put on
the record the reason for not including the Asylum and Immigration
Tribunal in the system. She has explained that the Home Office has an
interest—it clearly does—and that the tribunal can be
brought back, but she has not given the reasons why the system is not
the same as for all the other
tribunals.
Vera
Baird:
The AIT was set up a very short time ago, under
specific legislation designed to providewhat we believe is the
appropriate model. That understanding and determination has not
changed. This is the right model for the immigration and asylum
jurisdiction. If in due course it looks appropriate, there is
flexibility to bring it in, but that is not our intention
now.
Question put
and agreed
to.
Clause 3
ordered to stand part of the
Bill.
Clause
4
Judges
and other members of the First-tier
Tribunal
Mr.
Bellingham:
I beg to move amendment No. 2,in
clause 4,
page 3, line 6, leave out
‘judge’ and insert ‘legal
member’.
The
essence of the amendment concerns the use of the word
“judge”. The Committee will recall that Sir Andrew
Leggatt was at great pains to emphasise that tribunals exist for users,
as the hon. Member for North Southwark and Bermondsey pointed out.
Tribunals
need to be accessible. Day in, day out, we meet
people in our constituencies who have had experience of tribunals. In
fact, many more of our constituents go to tribunals than go to court.
The point of tribunals is that they should be unthreatening and
consumer-friendly. There is a huge responsibility on the chairman of
the tribunal to ensure that the conduct of its affairs is as informal
as possible. That is why we are keen to ensure that everything about
tribunals should be relaxed and consumer-friendly. Does the Minister feel that the
use of the word “judge” is appropriate in those
circumstances? I can understand that there are plenty of chairs of
tribunals who like calling themselves judges. The other day I met
someone at a social event about whom everyone was muttering, “My
goodness, he’s a judge”. It was all hugely exciting and
good for his ego, but in fact he was chairing a tribunal. I submit that
those chairs of tribunals of course do a superb job. I do not suggest
for a moment that we should try to undermine their standing and
credibility in any way. If it makes them feel better to tell their
friends that they are judges, all well and good. However, should the
users of tribunals, who are our constituents, feel that there is that
extra layer of formality inherent in the use of the word
“judge”? I would say probably not.
The other important point is
that the Lord Chancellor has the power to appoint people with no legal
qualifications whatever as legal members of tribunals. Those people may
well become chairs of those tribunals. We do not necessarily object to
that, but if people are appointed to tribunals as legal members, yet
have no legal experience whatever, should they call themselves judges?
I suggest to the Minister that that would not really be
appropriate.
Earlier
we discussed the importance of the Constitutional Reform Act 2005, the
essence of which is the separation of powers so that judicial selection
should be entirely free of the Executive. However,we find a
member of the Executive—the Lord Chancellor—able to
designate individuals as judges, in complete contravention of all the
principles of that Act. How can a member of the Executive appoint a
judge, when that plainly breaches the principle of the separation of
powers to which the Government claim to be so attached?
If we are keen, as we are, to
maintain an atmosphere of informality and want to make the tribunals as
user-friendly as possible to our constituents, the Minister should
accept the minor change proposed in the amendment, which would be in
the interests of the tribunal
system.
Simon
Hughes:
I am sympathetic to the amendment. In the
immigration service, the person at the first tier is called the
adjudicator and the person at the second tier, as the Minister will
know, is
called—
Vera
Baird
indicated
dissent.
Simon
Hughes:
I stand to be
corrected.
Vera
Baird:
We changed their names to judges some time
ago.
Simon
Hughes:
In that case, I stand corrected; but the general
point holds. We are having a two-tier system—that has been
agreed by the Committee and it is sensible. The Tribunals Service is
meant to be less formal. There is a strong case for having a perfectly
proper and respectable title at the lower level, but something other
than “judge”. Some people are not legally qualified,
which is perfectly acceptable. The title of chair of an employment,
industrial or social security tribunal and so on seems entirely
appropriate. I would be interested to hear what assessment has been
made of the benefit of a more legal title at the lowest
level.
9.30
am
Vera
Baird:
Unlike the hon. Member for North-West Norfolk, I do
not mind if calling people judges makes them happier. I think that
people should be happier if they can be. We in the Labour party want to
let the sun shine in on all possible occasions.
Calling somebody a judge has
absolutely nothing to do with who appoints them or how they are
qualified, and it certainly does not have the remotest relationship
with the separation of the Executive and the judiciary, which we
promoted in the Constitutional Reform Act
2005. Although the hon. Gentleman now talks about how
the Opposition supported the Judicial Appointments Commission, they
were actually dragged screaming to that agreement. There is nothing
about calling someone a judge that compromises the independence of the
way in which they are appointed.
The process is well under way.
The hon. Member for North Southwark and Bermondsey hoped to find an
analogy with something that has already disappeared. Immigration
adjudicators are now called judges. People who used to be called
stipendiary magistrates are now called district judges, as are those
who were known as registrars in the county court. There are cost judges
who adjudicate on lawyers’ fees, and there are even judges in
the Eurovision song contest, some of whom usually award nil points to
us. There are a lot of good aspects to the proposal to call these
individuals judges. The term “judge” describes exactly
what the post holders will do. They will make decisions about
people’s rights and about Government responsibilities.
The purpose of creating a new
title is to give consistency across a wide range of jurisdictions.
Currently, legally qualified members are known by a range of titles,
including commissioner, president, adjudicator, panel chairman, umpire
and even member, which I thought very funny when I was younger. Those
titles do not convey a clear picture about who the
titleholders are or what they do. Nor do they convey
the fundamental message that tribunals are independent of the
Government. Everybody knows that judges are independent, but the term
“legal member” does not carry the same message.
Calling people
“judges” does not mean that tribunals will be run
differently. The judges will continue to treat appellants and
complainants as they do now. Theywill give matters the same
consideration and do soas informally as possible. We intend to
retain the informality of tribunal hearings. During hearings, judges
will not need to use their titles. In the AIT, legally qualified
members are known as immigration judges, and senior immigration judges
are usually addressed as “Sir” or “Madam”.
That is the guidance from the tribunal president.
The amendments echo those tabled
by Lord Kingsland in Grand Committee. We resisted them then and we
resist them now. In doing so, we have the support of Mr.
Justice Hodge, the president of the AIT, and Mr. Paul
Shaerf, the president of the Council of Immigration Judges, both of
whom wrote to me expressly on this matter. Mr. Justice Hodge
wrote:
“I know
that there is very widespread support within the tribunals judiciary as
a whole for the use of the title to be adopted. The adoption of the
title will be seen by them as a recognition of the important work that
is done by the Tribunals Service for the administration of justice as a
whole. Further, I believe every effort should be made to maintain and
promote the cohesion of the judicial ‘family’ and
conferring the title ‘judge’ on those who adjudicate in
administrative tribunals will serve this
end.”
James
Brokenshire (Hornchurch) (Con): Obviously, we are talking
about nomenclature in large measure, so there are fine definitions. I
am interested to hear that the Minister has obtained some backing and
guidance from one part of the judiciary. Has she consulted the
judiciary more widely, particularly Court of Appeal and High Court
judges, to establish whether they feel that the changes will have any
bearing on their status or standing? Has she considered redescribing
tribunals as courts, because they are, ultimately, seeking to establish
matters of fact and law? Given that she wants a fairly standard and
level approach, has she considered making those
changes?
Vera
Baird:
There is no indication that the higher
judiciary have any reservations about the
nomenclature; indeed, Mr. Justice Hodge is, of course, a
High Court judge. “Courts” is not a good name for the
tribunals because tribunals are more informal, accessible and
inquisitorial than courts. “Tribunals” is therefore the
right name for the institution and the staff who will the fill the
adjudicating role.
Mr. Shaerf said
that
“the council of
immigration judges believed that the introduction and use of the title
‘immigration
judge’”
instead of
adjudicator
“had worked
very well and that such a title is more readily understood by
appellants and other tribunal users than the former title
of...adjudicator.”
He
said that
“the use of
the title ‘judge’ is not a material factor in
establishing with what degree of formality a hearing is
conducted”
and that any
attempt to remove the title
“would cause considerable dismay,
consternation and discontent amongst many of the Council’s
members.”
We do not
intend to do that.
Mr.
Ellwood:
For many people who come across a tribunal, it
might well be the second time that they have been confronted by the
judicial system, unless they are a frequent offender, in which case
they may be a regular. The Minister mentioned district judges, High
Court judges and immigration judges, all of which terms have a
description prior to the word “judge”. Would it not
therefore be sensible to call the judges that we are debating
“tribunals judges”? The Conservatives are concerned that
the name, qualification and position suggested by the word
“judge” is being diluted, which is not
good.
Vera
Baird:
The prefixes point out what the function of those
kinds of judges are. They are referred to by their staff as
“judges”. There is nothing to be gained by complicating
the nomenclature. I am not sure what the hon. Gentleman meant by
referring to offenders—I hope that he understands that we are
not talking about criminal tribunals. To suggest that the high calibre
of people who are going to be put into the tribunals would, by their
nature, dilute, weaken, or undermine the calibre of the term
“judge” is offensive. Frankly, I suggest that he supports
the clause and discards the amendment as soon as
possible.
Emily
Thornberry (Islington, South and Finsbury) (Lab): Does my
hon. and learned Friend agree that the public will use the term
“judges” whatever official title is used? When members of
the public who are not legally qualified appear before people who judge
them, they will refer to such people as “judges”. The
public see the people who judge as “judges”, so why do we
not give them the name that appears on the
tin?
Vera
Baird:
Actually, I do not agree. Calling people names such
as “commissioners”, “adjudicators” and
“umpires” can easily suggest that there is some
particular curiosity about the nature of their considerations. Calling
a person a “judge” makes it clear what their function is.
Furthermore, it is the hallmark of independence—the judiciary is
known for its complete independence. Although my hon. Friend comes to
the same conclusion, she comes from a different point of view. I invite
the hon. Gentleman to withdraw the
amendment.
Mr.
Bellingham:
The Minister has explained the situation
clearly. I hope that she does not object to my prompting debate because
it is important for us to discuss these matters and to probe the
Government. Conservative Members had concerns, many of which she
addressed, so I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Question proposed, That
the clause stand part of the Bill.
Vera
Baird:
Clause 4 and schedule 2 set out provisions relating
to judges and other members of the first-tier tribunal. The hon. Member
for North-West Norfolk asked if I minded him raising
issues concerning amendment No. 2. Of course, I do not mind. However, I
worry enormously when concepts such as diluting the calibre of judges
are tossed about in Public Bill Committees merely for the purpose of
probing. Obviously, that was not wise because we are only just setting
up the new structures and hoping that everybody will contribute and
feel that they are highly regarded members of the new teams.
Currently,
most tribunals include both legally qualified members and members
without legal qualifications. The qualifications of legal members vary
from tribunal to tribunal. The range of non-legally qualified members
varies a great deal. There are medical practitioners, accountants,
people with experience of disability issues, people with experience of
the armed services, and many other lay members. That structure will
continue.
Judges and other members of the
new tribunals will be transferred from existing tribunals, appointed by
the Lord Chancellor following selection by the Judicial Appointments
Commission, or hold their office in the new system by virtue of another
office that they hold in the courts or tribunals. The use of such ex
officio members will enable judges with the appropriate expertise and
experience to be brought into the new structure on the invitation of
the senior president to help out, in
effect.
Some
non-legally qualified members of other tribunals will automatically be
members of the new tribunals. The same principle will apply within the
structure of the new tribunals so that, for instance, a judge of the
upper tribunal will automatically be an appointed judge of the
first-tier tribunal. Deployment will be under the control of the senior
president of tribunals and, in the case of judges drawn from the
courts, that will be in conjunction with the relevant territorial chief
justice.
In order to
safeguard the independence of the tribunals, the
judiciary and appointed and transferred-in judges are protected by a
prohibition on removal without the concurrence of the relevant chief
justice. Judges and other members of the first-tier tribunal,
transferred-in judges and salaried members are further protected in
that they may be removed only by the Lord Chancellor and only for
inability or misbehaviour. The senior president has responsibility for
maintaining arrangements for the training, welfare and guidance of
judges and other members of the first-tier
tribunal.
Judges and
members will be able to sit in morethan one jurisdiction if
they have the right skills and experience. That is undoubtedly an
advantage. The tribunal reforms will create a single pool of judges and
non-legal members, secure in their independence, free from political
interference, and encompassing a wide range of experience and
expertise.
Mr.
Bellingham:
Of course we support schedule 2, and I want to
put on record that we in the Opposition have the
greatest admiration for the calibre, commitment, determination and
conscientious approach of thetribunal judges.
My hon. Friend the Member for
Bournemouth, East was not for one moment trying to undermine those
judges. He was simply considering them in the context of the judiciary
as a whole, comparing a chairman of a tribunal who might come from a
military background with, for example, a High Court judge or maybe a
lord justice of appeal. The point that he was making was about the
comparison between the lower-tier legal members and a Law Lord or
Appeal Court judge. I am pleased to be able to clarify that, and we
support the clause.
Simon
Hughes:
I wonder whether the Minister could tell us as of
now how many tribunal judges are full time and part time. Will she
break that down by territory and tell us how many are women and how
many are men? How many come from the black or minority ethnic
communities? How many are lay people who are not legally qualified? I
support the idea that lay people
are coming into the Tribunals Service, and I have always supported that,
but it would be interesting to know what numbers are in that category
and what percentage they make up. I expect that the list might be
immediately available, but if it is not will she let ushave it
at the earliest available moment? There were announcements last week
about widening judicial appointments, which are welcome on the Liberal
Democrat Benches. If we are to know how much we need to do that work,
we need to know the basis from which it
started.
Vera
Baird:
I hope that the hon. Gentleman will remember that
this is a Committee and not a pub quiz. There are roughly 450 full-time
tribunal members and about 6,000 part-time tribunal members. I have no
doubt that their diversity will enhance the diversity of the judiciary
in general in respect of class, race and gender. I will write to the
hon. Gentleman on the statistics.
Question put and agreed
to.
Clause
4
ordered to stand part of the
Bill.
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