Tribunals, Courts and Enforcement Bill [Lords]


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Clause 22

Tribunal Procedure Rules
Question proposed, That the clause stand part of the Bill.
Mr. Newmark: I shall try to be reasonably brief, because I appreciate that we have more to do. I have always felt that one of the benefits of coming into the House is that we can learn from each other. One thing that I have learned from the hon. Member for Wolverhampton, South-West (Rob Marris), who I am sorry to see is not a member of the Committee, is to look at the explanatory notes, which I have done in detail as the debate has gone on. Paragraph 124 on page 21 states that the purpose of the “overriding objective” stated in clause 22(4) is
“to ensure that the Tribunal Procedural Committee observes certain fundamental principles when exercising its powers to make procedural rules, such as, securing that justice is done in proceedings before a tribunal and that the tribunal system is accessible and fair.”
The explanatory notes stop there, but subsection (4) goes on. Paragraphs (a) and (b) run in parallel with the construction of the explanatory notes, stating
“that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done...that the tribunal system is accessible and fair”.
However, another phrase is then tagged on, saying
“that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently”.
Paragraph (e) also uses the phrase
“are handled quickly and efficiently.”
How do we square the concept of “quickly and efficiently” with being “accessible and fair” in seeing that justice is done? The words “quickly and efficiently” suggest to me that there is not due care and consideration. I am trying to understand the language in the Bill. Perhaps it will happen later, when we have the further consultation that the Minister has talked about, but how can we have inherent in that provision some concept of due care and consideration that fits in with the concept of something happening quickly and efficiently?
Vera Baird: The explanatory notes make it clear—and they are right—that the important underlying principle is that the laws should be put together so that justice is done and the tribunal system is accessible and fair. It is a curious idea that if it can also be quick and efficient there is somehow a clash between the two. Justice delayed is well known to be justice denied, so we intend to deliver the process as speedily as is compatible with our obligations under the first two rules. To equate efficiency with not giving due care to justice seems an over-urgently arrived at elision. The word “and” and not “or” appears in all the provisions, which will need to be compatible with one another. There is no clash between them, and they are all very desirable.
Simon Hughes: The Minister said earlier that it was the Government’s intention that the division between primary and secondary legislation rules should roughly replicate what is done in relation to the court system. I do not need a reply now, but will she ask her officials to check that that is the case? I sense—I have not made the comparison—that this is quite a detailed legislative provision and it could be weeded out a little. I would be content to leave that for she and her officials to look at.
Question put and agreed to.
Clause 22 ordered to stand part of the Bill.
Schedule 5 agreed to.

Clause 23

Practice directions
Mr. Bellingham: I beg to move amendment No. 70, in clause 23, page 20, line 22, leave out subsection (6).
The clause is about practice directions. Subsection (1) states:
“The Senior President of Tribunals may give directions”
in some circumstances. Subsection (6) states:
“Subsections (4) and (5)(b) do not apply to directions to the extent that they consist of guidance about any of the following—
(a) the application or interpretation of the law;
(b) the making of decisions by members of the First-tier Tribunal or Upper Tribunal.”
Hon. Members will have observed that under subsections (4) and (5), the senior president of tribunals can give practice directions only with the approval of the Lord Chancellor. In subsection (6), however, there is no such qualification. As I mentioned, in subsection (6)(a), the senior president of tribunals is entitled to give directions on the
“application or interpretation of the law”
without any reference to the Lord Chancellor.
“the application or interpretation of a law.”
On the face of it, the provision looks a wide discretion and as if the senior president can direct tribunals on matters of law that ought in principle to be within their sole compass.
The amendment is an amalgam of a probing and a genuine one. Will the Minister explain carefully why the clause is drafted in this way? I am concerned that the current draft introduces a blurring at the edges regarding a practice direction on the one hand, indicating a methodology for applying or interpreting the law, and on the other hand, a danger of trespassing on the substance of the application or interpretation.
Simon Hughes: I want to make two brief points. I am also slightly mystified by the inclusion of such a provision. If there are to be practice directions about the application and interpretation of the law, which are pretty important directions, logically they should have the authority of the Lord Chancellor rather than not. Given that the others do, it seems that we are taking out a group of practice directions that are just as important. They are not about internal workings, but about how the law should be interpreted. I am surprised about that, but the Minister might enlighten us and we may discover something that we did not spot. Subsection (6)(b) does not trouble me nearly as much.
2.45 pm
It is important that people have access to the rules governing tribunals. When people are seeking out planning law, they have to go down the waterfall of decisions from regulations under the law that have been made nationally to planning guidance that is set regionally and locally. They then might know what is likely to happen to their application for their extension. Where, at present, do people find consolidated up-to-date practice directions? Can the Minister give an undertaking that, under the new regime, there will be a place where politicians and anyone in the country can see, in electronic form on a website or, more importantly, in a paper-based form at their local library, the current extant practice directions set out in chronological and numerical order and in a way that is comprehensible and easy to understand? Such directions are often important bits of the system and they should be made clear for the lay person as well as practitioners.
Vera Baird: I shall now deal with the substantive points of clause 23 and return to the question of ensuring that the practice directions are available. The point of directions in clause 23(1), which cannot be made without the approval of the Lord Chancellor, is that they are about practice and procedure respectively in the first tier and in the upper tier. It is appropriate that the Lord Chancellor should sanction them because they could have resource implications, for instance, if the practice and procedure became to hold a pre-trial review of the sort that I have conjured up. It is important that the Secretary of State, who is responsible for the budget of the Department, has a say in that sort of practice direction.
Surely the opposite is the case—this is the point of subsection (6)—on directions or guidance about the application or interpretation of the law, let alone the making of decisions by members of either tribunal. It is there that the Constitutional Reform Act 2005, which removed the Lord Chancellor as head of the judiciary, has its bite. It is slightly surprising that the hon. Member for North-West Norfolk, who has so far been championing its bite, now seems to have gone into reverse.
As a Minister, it would be inappropriate for the Lord Chancellor to be involved at all in the making of practice directions about the interpretation of the law, as that should be carried out by a tribunal chair, or the making of decisions by tribunal members. Those matters should rest firmly and clearly with the judiciary and, in this case, with the senior president of tribunals. Otherwise, there will be a danger of fouling the independence of the judiciary.
I can tell the hon. Members for North-West Norfolk and for North Southwark and Bermondsey that, as far as I can see, the formulation in this part of the Bill follows literally word for word the Lord Chief Justice’s direction-making power under schedule 2 of the Constitutional Reform Act 2005. It requires the Lord Chief Justice only to give directions, along the lines of clause 23(1) in the Bill, with the Lord Chancellor’s consent, but it excludes the need for the Lord Chancellor’s consent when he is making directions for the application or interpretation of the law or the making of judicial decisions. Both hon. Gentlemen were clearly satisfied by that wording in the earlier statute, and I invite them to accept the same here.
Simon Hughes: I might have missed one thing, and perhaps I should have asked a question about it when we discussed clause 2. I take the Minister’s point about the independence of the judiciary; I was probably misrepresenting where the accountability should be. Under the new system, will anyone in the hierarchy be senior to the senior president of tribunals? Is the senior president not in some way subject to the Lord Chief Justice as a more superior judge in England and Wales? If that is the case, the Minister is implicitly right that the Lord Chancellor should not, for the reasons she gave, be the person holding the clearance on the interpretation of the law for practice directions, and it should be the Lord Chief Justice. Perhaps she will elucidate the matter. I had assumed—I could be completely wrong—that if one looked at the judicial hierarchy after the implementation of the Bill, one would still see the Lord Chief Justice at the top and the president of the family division and other people with specific responsibilities, including the senior president of tribunals, under him. Perhaps she will tell me whether that is correct.
Vera Baird: No, the senior president of tribunals is not accountable to the Lord Chief Justice. The senior president is separate and independent, and also, therefore, not accountable to the other chief justices whose jurisdictions his post will cover.
I was asked about publicity for practice directions. The practice directions will be published on the web. There will be a tribunals website—indeed, I believe that there already is a Tribunals Service website—on which practice directions will be published. Many tribunals publish practice directions on the web, such as those relating to the special commissioners or civil procedure. The commissioning policies of individual libraries will determine whether they make hard copies available. We will look at the matter with every intention of ensuring that people going unaccompanied to tribunals have all the information that they need to fight a fair fight, as it were.
Mr. Bellingham: I am grateful to the Minister for that reply. With practice directions we are dealing with a complex and technical area, but she has explained the measures with great courtesy. With that in mind, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 ordered to stand part of the Bill.

Clause 24

Mediation
Question proposed, That the clause stand part of the Bill.
Simon Hughes: I have one question on the clause, which I otherwise support. In some parts of the country, including my own borough, there are well established, well used and respected mediation services that deal with many of the issues that are covered by tribunals. Do the Government envisage that either in the legislation or subsequently, the mediation service provided by the Tribunals Service as described in the Bill, will include, incorporate or link with well established, recognised and respected mediation services? I understand that the first step in the process might involve a mediator inviting opposing parties to talk to one another before going to tribunal. If Ministers or officials have not thought about that before, will they do so now?
There is some very good mediation practice out there. I was talking to my hon. Friend the Member for Cardiff, Central, who said that as far as she knows there is no such service in the middle of Cardiff. The mediation service in Southwark is by repute one of the most long standing and best regarded. Rather than creating new bodies, we ought to be folding in existing provision for mediation. I would like there to be a link between the tribunal and a mediation service. That way, a tribunal could tell someone that it would like them first to talk to the mediation service, which could subsequently report back when it had done what it could. In such a situation, the mediation service would be linked to and recognised by the tribunal.
Vera Baird: The provisions in clause 24 are enabling provisions, so they can embrace any kind of mediation. Most immediately, the Government have in mind mediation by tribunal members and staff, which seems to be a wise way forward, but there is absolutely nothing to prevent the involvement of community mediators such as the those to which the hon. Gentleman referred. I know of one such very good scheme in Wandsworth. The county court in Manchester had an excellent scheme that is now being rolled out in other areas and which might be included.
Essentially, mediation is fairly high on our agenda. Clause 24 was added in the House of Lords by the Opposition, not because we did not want mediation, but because we did not think it necessary to include a clause to enable it. That is exactly what it does; it will enable mediation and we will encourage it in whatever form is best for the parties.
Question put and agreed to.
Clause 24 ordered to stand part of the Bill.
Clauses 25 to 28 ordered to stand part of the Bill.
 
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