Tribunals, Courts and Enforcement Bill [Lords]

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Schedule 2

Judges and other members of the First-tier Tribunal
Mr. Bellingham: I beg to move amendment No. 5, in schedule 2, page 118, line 20, at end insert ‘or’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 6, in schedule 2, page 118, line 22, leave out from ‘standing’ to end of line 25.
No. 8, in schedule 3, page 122, line 18, at end insert ‘or’.
No. 9, in schedule 3, page 122, line 20, leave out from ‘standing’ to end of line 23.
9.45 am
Mr. Bellingham: We are looking at paragraph 1(2) of schedule 2 and the power to appoint judges of first-tier tribunals. This is a probing amendment. Would the Minister tell us the meaning of this sub-paragraph:
“A person is eligible for appointment under sub-paragraph (1) only if the person...(d) in the Lord Chancellor’s opinion, has gained experience in law which makes the person as suitable for appointment as if the person satisfied any of paragraphs (a)to (c).”
Paragraph 1(2)(a) to (c) refers to people with legal qualifications. What kind of influence will the Lord Chancellor bring to bear on his decision under that provision? What kind of legal experience would make that person suitable for an appointment? Of course, the Lord Chancellor’s views in this regard will not appear to be totally subjective. I would be grateful if the Minister filled the Committee in on what sort of considerations the Lord Chancellor will have.
Will the Minister comment on whether that provision runs counter to the philosophy in the Constitutional Reform Act 2005? Have Ministers had discussions with Baroness Prashar, who has done a superb job with the Judicial Appointments Commission? Has she had any input into the thinking behind how those appointments are going to be made, particularly for those people who do not have a legal background but who may have a great deal to offer? We do not want to preclude them being appointed but we would like some more detailed information. Therefore, it is a probing amendment.
Vera Baird: We are talking not about appointments but about widening the pool of eligibility. The provision does not run counter to the separation of powers or the principles of the Constitutional Reform Act. If we accepted the amendments, which we will not do, we would limit the Lord Chancellor’s power to extend eligibility for judicial office, and limit the ability to appoint someone who has the necessary skills and knowledge but who does not have a professional UK qualification.
The hon. Gentleman asked me what sort of person that might be. It is most likely to be a legal academic or someone qualified in Europe or in a Commonwealth jurisdiction. In a different statute, these provisions have already enabled a small number of appointments to the Asylum and Immigration Tribunal and to the Mental Health Review Tribunal, which already have these eligibility requirements in place. We see no reason why they should not be extended to the new first-tier and upper tribunals in recognition of the specialised fields in which those tribunals operate. Having particular skills or experience in a specialised area can be invaluable to the operation of the tribunal.
As I said, it is important to remember that the extension of eligibility is being proposed, not suitability. All applicants will continue to have to meet the rigorous assessment and the demanding criteria set by Baroness Prashar, and I join the hon. Gentleman in praising her and lauding her highly. Rigorous criteria are set, which will be applied. Merit and merit only will be the criteria on any recommendation for appointment. I hope that he is reassured and that he will be able to withdraw his amendment.
Mr. Bellingham: The Minister has a very reassuring manner and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.

Clause 5

Judges and other members of the Upper Tribunal
Question proposed, That the clause stand part of the Bill.
Vera Baird: Clause 5 and schedule 3 are parallel provisions about the membership of the upper tribunal. As is the case with the first-tier tribunal, judges and other members of the upper one will either be transferred in, be 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 latter criteria will enable judges who have the appropriate expertise to be brought into the new structure, on the invitation of the senior president, to help out. Again, as in the first-tier tribunal, some non-legally qualified members of other tribunals will automatically be members of the new tribunal. Appointed judges of the upper tribunal will be appointed by Her Majesty the Queen, on the Lord Chancellor’s recommendation, except where a member of an existing tribunal is transferred into the upper tribunal, and appointment will follow the JAC selection process.
In order to safeguard the independence of the tribunal judiciary, 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 upper tribunal and transferred-in judges and members who are appointed on a salaried basis are protected further and can be removed only by the Lord Chancellor on the grounds of inability or misbehaviour.
Judges and members of the upper tribunal willbe partly ex officio judges and members. Their deployment, again, will be under the control of the senior president, with the concurrence of the relevant chief justice. The Lord Chancellor will have a powerto appoint deputy judges to the upper tribunal, particularly if they have special expertise that will be helpful. As is the case with the first-tier tribunal, the senior president will maintain arrangements for the training, welfare and guidance of judges and other members of the upper tribunal.
James Brokenshire: Will the Minister clarify whether the powers are structured in such a way as to allow the appointment of retired High Court judges, so that they may be drafted in to meet the criteria?
Vera Baird: We have considered whether it is necessary to table an amendment to provide for that, because it seems a good idea. If the hon. Gentleman is content to leave that with us, we will produce some definitive answer about a way forward on Report.
Judges and members will be able to sit in more than one jurisdiction if they have the skills and experience. Judges of the upper tribunal will automatically be judges of the first-tier tribunal. These tribunal reforms will create a single pool of tribunal judges and non-legal members, who are secure in their independence and free from political interference, and they will encompass a wide range of experience and expertise.
Simon Hughes: I am sorry. The Minister may say several times that this is not a pub quiz, but I will continue to ask questions that she has answers to and we do not. Can she tell us, please, what is the lowest and highest remuneration—the range of remuneration—for people who are full-time tribunal members at the moment? What is the starting point? What is the total bill, which we currently pay, for tribunal members and judges across the four jurisdictions?
Vera Baird: I should think that the answer is ever such a lot, but I shall see if I can be more specific, by letter, later in the day. It is a pity that the hon. Gentleman does not do his own research.
Question put and agreed to.
Clause 5 ordered to stand part of the Bill.
Schedule 3 agreed to.

Clause 6

Certain judges who are also judges of First-tier Tribunal and Upper Tribunal
Mr. Bellingham: I beg to move amendment No. 10, in clause 6, page 4, line 40, at end insert ‘or’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 11, in clause 6, page 4, line 41, leave out from ‘Ireland’ to end of line 42.
No. 12, in clause 6, page 4, line 43, leave out (i) and insert (h).
Mr. Bellingham: This is a small, probing amendment. I do not plan to detain the Committee for more than a minute or so. The clause is headed, “Certain judges who are also judges of First-tier Tribunal and Upper Tribunal” and runs through a number of categories of different people, including judges of a Court of Session and circuit judges. The amendment would remove the final category, which
“is a District Judge (Magistrates’ Courts)”.
We are trying to maintain consistency. The clause confers automatic qualifications to various types of judges to become tribunal judges. We are not saying that
“a District Judge (Magistrates’ Courts)”
should not be appointed; we are saying that they should not necessarily qualify automatically. The list is wide ranging. Subsection (1) takes it too far.
The amendment is a probing amendment, and we are entitled to ask questions. I am not being pedantic; I am being, I hope, consistent in my approach. I should like the Minister to clarify the reason why the clause extends that automatic right as far as it does.
Vera Baird: As the hon. Gentleman said, the point of the clause is to supplement the judges of new tribunals with judges from the courts. Most tribunal judges will be transferred from existing tribunals—the EAT, the AIT or the JAC—to one of the new offices. We expect that judges from the courts will be deployed in small numbers from time to time to bring in skill and expertise that is not readily available, or just to help out. The list of the people who can be used in that way comprises almost all the salaried judicial offices in the mainstream core. None of them has a right to sit in the tribunal; they can sit only if the senior president invites them and the relevant chief justice agrees. We have made the pool as large as possible, because the necessary expertise might reside in all sorts of unexpected places, and
“a District Judge (Magistrates’ Courts)”
should not be excluded from that consideration. They are not only experts in crime; they often have to evaluate technical evidence, and they have a great deal of day-to-day, real life experience in the lower courts. Some sit on family matters, too, and undertake such work as licensing appeals, so they have a diversity of experience.
The users of tribunals are entitled to expect the best arrangements that we can manage, but that objective will not be met if we exclude suitable judges from hearing a case because of unnecessary restrictions on their deployment. I hope that that explanation is sufficient to persuade the hon. Gentleman not to press his amendment to the vote.
Mr. Bellingham: In the light of what the Minister has said, it would indeed be churlish to press the amendment. I am grateful to her for her clarification, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.

Clause 7

Chambers: jurisdiction and presidents
Mr. Bellingham: I beg to move amendment No. 13, in clause 7, page 5, line 3, after ‘Tribunals’ insert
‘and after consultation with such persons as he considers appropriate’.
The Chairman: With this it will be convenient to discuss amendment No. 37, in clause 7, page 5, line 30, after ‘other’ insert
‘and after consultation with such persons as he considers appropriate’.
Mr. Bellingham: The amendments are, again, probing amendments. The Bill states that the Lord Chancellor must consult such persons as he considers appropriate. What exactly does that mean? I should like to ask the Minister about the Constitutional Reform Act and the separation of powers inherent in it, because I am concerned that a great deal of theBill is moving slowly but surely—indeed, gravitating relentlessly—away from the spirit of that earlier legislation, hence the probing nature of the amendments. Will she clarify those points?
Simon Hughes: I have a couple of additional questions, and the Minister will see that I have added my name to the amendments, both of which come from the Law Society of Scotland, which raised questions with the hon. Gentleman and with me. The amendments probe the wider question of what is behind the organisation of the new system. There are later amendments about what we will call the groupings of the organisation, but it would be helpful if the Minister explained the theory behind the way in which the tribunal system will be divided into areas. For example, the European Court of Human Rights sits in chambers subdivided into groups of judges, so that more people can deal with cases at any one time. There is obviously a logic in having groupings, but if she could flesh out the thinking behind the provisions, that would be helpful not only to us but to others who have an interest in such matters.
10 am
A detailed policy statement has been published that explains how the order-making powers in the Bill will be used, a copy of which has been placed in the Library. If it is inconvenient for any member of the Committee to get a copy of that policy statement, I am sure that we can bring some to the Committee, if there are not some here already. The statement sets out how it is proposed the order-making powers will be used. That document makes it clear that the Government have already undertaken to consult widely and fully on the establishment of the chamber structure, as one would expect with such a new structure. The statement also gives an early indication of the Government’s thinking on both the criteria for groupings and possible groups for the first tier, which will be useful for hon. Members.
Our starting point is that there might be three chambers. The hon. Member for North Southwarkand Bermondsey asked me about the Government’s thinking. We are thinking in the direction of one chamber to deal with tax and regulation, one to deal with social security, and one to deal with mental health and related welfare issues. However, the document also makes it clear that a final decision on the initial shape of the chambers will be taken only after a full and wide consultation, which we plan to hold later this year. That will allow everybody who will use the chamber structure—office holders, judicial leaders, tribunal users and their representatives—to have the maximum involvement in the development of the structure.
We plainly have no resistance to consultation andwe intend to hold it. The only difficultly in reinforcingthat consultation as proposed in the amendment isas follows: quite minor changes to the allocation of functions might subsequently need to occur, yet we would have encumbered ourselves with a broad duty to consult in every case, which might be disproportionate.
I hope that I have helped the hon. Member forNorth Southwark and Bermondsey to understand our embryonic thinking. We shall supply him with a copy of the policy document, so that he can study it further. I also hope that I have satisfied the hon. Member for North-West Norfolk that we are very much in favour of full and wide consultation, but that we do not wantany subsequent minor changes to be saddled with a disproportionate demand that we should consult. I therefore hope that I have persuaded him to withdraw the amendment.
Mr. Bellingham: I am grateful to the Minister for that confirmation. She has made it clear that the Government will hold that wider consultation. In the light of that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Bellingham: I beg to move amendment No. 14, in clause 7, page 5, line 4, leave out ‘chambers’ and insert ‘divisions’.
The Chairman: With this it will be convenientto discuss the following amendments: No. 15, in clause 7, page 5, line 6, leave out ‘chamber’ and insert ‘division’.
No. 16, in clause 7, page 5, line 7, leave out ‘chamber’ and insert ‘division’.
No. 18, in clause 7, page 5, line 9, leave out ‘chamber’ and insert ‘division’.
No. 19, in clause 7, page 5, line 11, leave out ‘chamber’ and insert ‘division’.
No. 20, in clause 7, page 5, line 12, leave out first ‘chamber’ and insert ‘division’.
No. 21, in clause 7, page 5, line 12, leave out second ‘chamber’ and insert ‘division’.
No. 22, in clause 7, page 5, line 14, leave out ‘chamber’ and insert ‘division’.
No. 23, in clause 7, page 5, line 15, leave out ‘Chamber’ and insert ‘Division’.
No. 25, in clause 7, page 5, line 17, leave out first ‘chamber’ and insert ‘division’.
No. 26, in clause 7, page 5, line 17, leave out second ‘Chamber’ and insert ‘Division’.
No. 27, in clause 7, page 5, line 19, leave out ‘chamber’ and insert ‘division’.
No. 28, in clause 7, page 5, line 21, leave out first ‘Chamber’ and insert ‘Division’.
No. 29, in clause 7, page 5, line 21, leave out second ‘chamber’ and insert ‘division’.
No. 30, in clause 7, page 5, line 22, leave out ‘chamber’ and insert ‘division’.
No. 31, in clause 7, page 5, line 24, leave out first ‘Chamber’ and insert ‘Division’.
No. 32, in clause 7, page 5, line 24, leave out second ‘chamber’ and insert ‘division’.
No. 33, in clause 7, page 5, line 26, leave out first ‘Chamber’ and insert ‘Division’.
No. 34, in clause 7, page 5, line 26, leave out second ‘Chamber’ and insert ‘Division’.
No. 35, in clause 7, page 5, line 28, leave out ‘Chamber’ and insert ‘Division’.
No. 36, in clause 7, page 5, line 28, leave out ‘chambers’ and insert ‘divisions’.
No. 38, in clause 7, page 5, line 32, leave out ‘chambers’ and insert ‘divisions’.
No. 48, in clause 7, page 5, line 34, leave out ‘chambers’ and insert ‘divisions’.
Mr. Bellingham: This group of amendments looks horrendous. It looks like the debate could go on for hours and hours, but I assure the Committee that it will not. The group is really very simple and looks much worse than it is.
I should like to probe the Minister further aboutHer Majesty’s Government’s intentions in relation to the organisation of the new tribunal system and the different chambers/divisions. Obviously, we would like those to be called divisions. Can the Minister tell us a little more about the proposed groupings? Presumably, the plan is to group together similar jurisdictions, thus allowing judicial deployment to be as flexible as possible. Presumably, that is what she has in mind. We must also ensure that expertise is maintained. How are we going to maintain expertise within the new system?
The Minister mentioned the policy statement. Many Committee members will have got their copies from the Library. I am not asking her to do our research for us, but she could make life easier by having copies of the policy statement put on a table in the Room, because some Committee members may not have had time to collect theirs from the Library.
We are talking about work in progress. The Minister said a moment ago that there is substantial work in progress and a substantial consultation taking place. I should like her to confirm that HMG will go down the subject-matter route, rather than the geography route, in grouping chambers throughout the country. We are concerned about the work load of the legal members, particularly the non-legally qualified tribunal members. When the Minister mentioned that a moment ago, she hinted, as the policy statement makes it clear, that the Government are moving away from the current silo system into three main groupings and gave some details about what those will be. Will we have the same pattern for the upper tribunals as well?
Finally, will the Minister tells us how the consultation process is going? It is an important consultation. Are all the different people who need to be consulted being consulted? What form is the consultation taking? What time scale is she considering in the process? I move the amendment in the spirit of my two arguments for this probing exercise.
Simon Hughes: I shall be brief because I know that this matter was raised in the House of Lords and that there was discussion about the names. Unless the Minister is going to tell me that something has changed in the last couple of days, the courts in this country are divided into divisions, not chambers. That appears to work well. However, I am all for trying to use words that the public relate to, rather than words that sound more Victorian or old-fashioned. I should be grateful if the Minister would seriously consider the amendments, which would make the system sound more accessible to the public. That must be in everybody’s interest.
Vera Baird: The last group of amendments that the hon. Member for North-West Norfolk moved was tabled in the House of Lords Grand Committee, but not moved. The discussion last time round was, in effect, held under the present group of amendments, so I shall try not to be too repetitive but to answer the hon. Gentleman’s questions as directly as I can.
The proposal would be to have within chambers, jurisdictions that were similar in nature and of similar subject matter. I guess that that would also require similar skills of scrutiny and similar experience. That is what is in our minds at the moment, and we are thinking of that direction, rather than geography. We will consult widely, although the consultation is not yet under way. There will be a full consultation document in the autumn, and any orders that emerge to set up the chambers will be subject to affirmative order. There will be a full opportunity for everyone who wishes to do so to contribute.
On the work load, people will be moved in and moved across jurisdictions only if they agree, so they will have an understanding of their own work load. Whether the upper tribunal will have chambers to correspond with those of the first-tier tribunal is a very good question, but we have not yet resolved it. We suspect that if there were, they would follow those that we have in mind for the lower tribunal. We are interested in having input on that.
On the timescale, we will start this autumn, and I presume that there will be the usual Cabinet Office requirement of three months’ consultation. Happily, there will be every opportunity for people to have some input.
The other limb of the amendments and the only one that has not been covered is the chambers. The point of creating chambers is to concentrate expertise. They will be set up when their nature has been determined by the Lord Chancellor, with the concurrence of the senior president. The pointers are in the policy document.
The word “chambers” will not be in everyday use. The Law Society or the Law Society of Scotland criticised the word because it thought that it was confusing and not modern. I am cheered that the hon. Member for North-West Norfolk believes that language is important and I suppose that he will give three cheers for the gender-neutral drafting that my right hon. Friend the Leader of the House announced. We agree totally that language is important and we are pleased to have the hon. Gentleman’s support. Indeed, we shall make him an honorary sister later.
To be fair to the hon. Gentleman, Sir Andrew Leggatt proposed using the word “division” because it is consistent with terminology in the High Court. We chose “chambers” because it is different and is not used daily in the courts. They will call a tribunal whatever they call it now, but “chambers” as opposed to “division” is intended to be a little more flexible because the Court of Appeal and the High Court, which have jurisdictional divisions, are quite rigid in that effect. We chose a word that indicates flexibility in jurisdiction.
I hope that that explanation is sufficient to persuade the hon. Gentleman that the language is tolerable, and that he will not press his amendment.
Mr. Ellwood: The Minister mentioned a consultation exercise in the autumn. Will she explain a little more about that consultation for the record and how it dovetails in with any legislation that we may confirm this week?
Vera Baird: I have already set out the nature of the consultation. The Cabinet Office requires it to be three months and there will be a full paper. We have already started the process in the sense that we have issued a detailed policy statement so that people can see which way our thoughts are going and prepare themselves for the fuller consultation document. It will be the usual open consultation and anyone who wants to make a submission can do so. I am sure that Ministers will actively look for responses and input from relevant people, which is common form. I assure the hon. Gentleman that we have every intention of making the consultation as thorough as possible. A whole series of new structures is being proposed and it is important that we leave no stone unturned to ensure that we get the structures right.
10.15 am
The Bill contains some detailed provisions on how the new structure will function—provisions which set out the essential bedrock guarantees of independence, security of tenure and so on for the new tribunal judiciary. Further detail will emerge in the form of orders and regulations after we have consulted within the framework, and after people have had an opportunity to digest how the framework would work. Those measures will have to be considered by the House by way of affirmative resolution, so I do not think that the hon. Gentleman need worry.
Simon Hughes: I have heard the Minister’s arguments and it is not the most important matter, but will she reflect on the wording? In addition—I shall not press it now and if necessary we can address it on Report—will she say whether the senior president-designate has expressed a view on the issue? If so, what is that view?
Vera Baird: No, he has not.
Mr. Bellingham: It is always nice when a Minister describes a question as being a good one and says that it is being considered, such as my question about the upper tribunals and whether the same system will be used for them. She has pledged to my hon. Friendthe Member for Hornchurch to consider a possible amendment on the clause that we considered earlier, so we have had not too bad a morning’s work, particularly as hon. Members from my party have not been told off for not doing our own research.
Simon Hughes: The Government have the civil service.
Mr. Bellingham: Indeed, and we do not have the civil service.
Amendment, by leave, withdrawn.
Mr. Bellingham: I beg to move amendment No. 17, in clause 7, page 5, line 8, leave out ‘, or two persons,’.
The Chairman: With this it will be convenient to consider amendment No. 24, in clause 7, page 5,line 16, leave out subsection (5).
Mr. Bellingham: This is a short, sharp, probing amendment. Clause 7(2) refers to one or two persons being required to preside over each chamber. I am intrigued as to why two people are needed, and I am concerned that two different people might chair a tribunal during the course of one hearing. Could that happen? It is unlikely, but will the Minister clarify the point?
Vera Baird: I am grateful to the hon. Gentleman. The answer to his specific question is that one could not change the personnel in the middle of the case.I recall once going to do a university disciplinary tribunal case for 10 students who had been demonstrating. Half way through the summer during which the case was being heard, the academics on the tribunal went off on their usual interesting fact-finding missions overseas, and I came in one morning to find that half the members of the tribunal who had been present for the previous three weeks had gone, and completely different people had replaced them. The appellate tribunal had no difficulty whatever in quashing such convictions as there had been, and there would be a similar outcome in any other cases of swapping in the middle of a case. So the answer is no.
The purpose is one of flexibility. We have not yet worked out, through the consultation and input that I have mentioned, exactly what the jurisdictions will be, what the chambers will consist of, and what the exact size of chambers will be. It is hard to predict how many presidents will be required to cover each chamber. There might be good reasons to have two people presiding over one chamber, because of job sharing,for instance, or other reasons of flexibility. If two chambers merged to create a single chamber, it would probably be a good idea to keep two presidents. It is all about flexibility, and there is nothing to be gained from restricting it while so much is still at large. I invite the hon. Gentleman to withdraw the amendment.
Mr. Bellingham: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Government want a structure, a grouping of jurisdictions, so that similar work can be dealt with appropriately by those who have the relevant experience to deal with it. I call them chambers, but I keep an open mind on that at the request of the hon. Member for North-West Norfolk. At the moment, however, the term chambers commends itself to us. The division into chambers will, I guess, follow the current jurisdiction or boundaries, but it is intended to be more flexible. The Lord Chancellor and the senior president can create chambers by order.
Schedule 4 deals with the appointment of presidents by the Lord Chancellor. The presidents are intended to provide judicial leadership within their chambers and to guarantee levels of expertise, so that the chambers will be able to issue guidance on changes in law and practice as they relate to the functions allocated to their chambers. Deputy chambers presidents will take on functions that can be delegated when necessary. Some chambers presidents may be appointed directly; others might come from the senior judiciary. The Lord Chancellor has to consult the senior president at all times about such appointments, and if a senior judge is appointed, he will have to seek nomination from the relevant chief justice. If no appropriate candidatesfor tribunal presidents come forward, the Judicial Appointments Commission will suggest some.
Panel composition requirements will be set by order of the Lord Chancellor; that will be done jurisdiction by jurisdiction. The number and qualifications of members assigned to sit on particular appeals must take account of recourse implications, and scrutiny will be provided. The chamber structure will enable the system to adapt swiftly as circumstances change, while guaranteeing the experience and expertise that is so important to the user.
Clearly, much has yet to be fixed and determined through consultation, but clause 7 provides a good framework. I therefore move that it stands part ofthe Bill.
Mr. Brooks Newmark (Braintree) (Con): I apologise, Madam Chairman, for not catching your eye a little earlier.
I support the Minister in the use of gender neutral language. It is important. As co-chairman of the Conservative party’s women2win group, I approve. On a technical point, I use the phrase “Madam Chairman” because the man of “chairman” comes from the Latin derivative of mano—a hand on the chair—and has nothing to do with men or women.
I turn to the substantive question.
It being twenty-five minutes past Ten o’ clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at One o’ clock.
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