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Lord Lester of Herne Hill: Before the Minister sits down, can he clarify two points in his helpful statement? First, am I right in thinking that the legal officers will not be appointed by the Lord Chancellor or by the Lord Advocate in Scotland, but by the Secretary of State? If that is right, might there not be problems about the appearance of independence and impartiality in terms of the European Convention on Human Rights if the appointment is by the Minister and not by either of the high judicial officers of the state?

Secondly, when the Minister referred to "qualified barristers, solicitors or advocates," will it be enough if they simply have the bare qualifications? Alternatively, will there be some requirement, as I hoped, that they would have some experience, even if it were only two or three years? That is because they will be dealing with matters like discovery which can require quite difficult matters of judgment which can determine the outcome of a case.

Lord Haskel: In reply to the noble Lord, I can confirm that the Secretary of State will appoint the legal officers and that they will have some experience. However, the definition of that experience has not yet been decided.

Baroness Turner of Camden: I thank the Minister for his explanation of what is intended here, and what it is intended that the legal officer should do. In response to the noble Lord, Lord Lester, I should say that my noble friend and I had intended that Amendments Nos. 11 and 12 should stand together. I had envisaged a much lower level of function than has been explained today. Perhaps I had envisaged it as a possible career opportunity for the numbers of law graduates who now leave universities sometimes wondering whether they will obtain employment.

However, as regards the proposed range of functions, I can quite see that it would be necessary for the people concerned to have relevant experience. I take note of what has been said about the pilot scheme and the consultations which are to take place--indeed, which are currently taking place--and the fact that once the pilot scheme has been completed the results will be considered. No doubt, if amendments have to be made to the scheme, they will be made. In view of what has been said this afternoon, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11 and 12 not moved.]

On Question, whether Clause 5 shall stand part of the Bill?

Lord Lester of Herne Hill: I gave notice that I should like to be heard on this Question. There has already been a fairly full debate and much useful clarification. My attention was drawn to the problems raised by Clause 5 by an extremely experienced chairperson, sitting well north of Hendon. I had better not name her or him; suffice it to

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say that the person concerned is extremely experienced and most concerned about possible unfairness that could result from an over-broad use of this power.

I confess that I still have two difficulties. One is that, on its face, the provision is not limited to interlocutory matters at all. The power permits regulations to be made to allow the legal officers to do everything that a chairman is permitted to do under the rules of procedure. I shall not take up the time of the Committee in going through the question of how wide those functions are: they are very wide indeed. If, in truth, this provision is to deal only with interlocutary matters in the way that, say, in England and Wales a Master does in the High Court of Justice, I should have thought it was not asking too much for the power to be limited to interlocutory matters. Certainly, that would allay my concerns. I should be grateful if further thought might be given to that point.

My second point concerns the power of appointment. This matter indeed troubles me. It is not a mere technicality if the Secretary of State is to appoint judicial officers. There are cases in Strasbourg which hold--certainly where a government is involved in any matter, and governments can be involved in cases before employment tribunals, as the equal pay cases exemplify--that, where a judicial officer is appointed by a Minister and not by someone wholly independent (in the way in which the Lord Chancellor guarantees separation of powers in his one body, or as the Lord President in Scotland guarantees more formally as well), serious questions may be raised.

I certainly do not wish to divide the Committee on this matter. But I hope that further thought may be given to those two main points, which would allay my concerns.

Lord Renton: The noble Lord, Lord Lester, has done good service by drawing attention to this rather strange clause. I support what was said but I should like to add one or two comments. It looks as though on a wide range of matters, as the noble Lord said, the chairman of the tribunal or a legal officer, who may not have consulted each other at all, can exercise powers which the tribunal as a whole would have power to exercise and can do so without even consulting it.

It may be that the noble Lord hopes and believes that there will be such consultation. But, on the face of this clause, that is what can happen.

Perhaps I may point to page 4 of the Bill, where, at lines 6 and 7 it says:

    "any act so done, shall be treated as done by an employment tribunal".
That introduces a legal fiction and is something that we should try to avoid. I hope that the Government will give further thought to this clause. I feel that it needs reconsideration.

6.15 p.m.

Lord Archer of Sandwell: I thought I was fairly clear as to the answer I proposed to give to the noble Lord, Lord Lester. I am not so sure about the point made by the noble Lord, Lord Renton, whose views on these matters we all treat with the greatest respect. Perhaps we should have further discussions on this matter. If the noble Lord was saying that it should not be open either

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to chairmen or legal officers to make interlocutory decisions without consulting the full tribunal, I am not wholly clear about the procedure that he envisages. Judges of the High Court make decisions every day of the week without consulting all the other judges. Consultation within the tribunal is something which it seems to me ought not normally to be provided for. If I have misunderstood the noble Lord, and the fault may well be mine, I should be happy to discuss his anxieties with him.

With regard to the two specific anxieties raised by the noble Lord, Lord Lester, I understand that he prefers to limit the powers in the Bill if it is not intended to use very wide powers. That is almost the precise point that I would have made when I was in this kind of debate. The difficulty that we are always in is that, if we propose to impose a limitation on a power, then just when one needs to use it, we discover that it has been limited in a way that no one intended. Certainly, I should not be adverse to discussing with the Government whether there is a sensible way of imposing some limit on the power, if only so that people are not misled.

As to the noble Lord's second point about who should make the appointments, it has usually been the position of the Council on Tribunals that it would prefer to see appointments made by the Lord Chancellor. I confess that the difficulty had not occurred to me in the context of this clause. But now that the noble Lord has raised it, I should, perhaps, without in any way seeking to predetermine the outcome, like to have some discussions about it with the Government.

Lord Renton: Before the noble and learned Lord sits down, as he was so good as to refer to what I had to say, perhaps I may ask him to bear in mind that it is not just interlocutory procedural matters which are involved. At the bottom of page 3 of the Bill, there is a reference to:

    "any act required or authorised by the regulations to be done by a tribunal".
It says "by a tribunal". That could go very wide indeed. We have not, of course, seen the regulations or been told what they will contain. So this matter must be reconsidered by the Government.

Lord Archer of Sandwell: I believe that the point now made by the noble Lord is precisely the point made by the noble Lord, Lord Lester; namely, that the powers expressed in the Bill are wider than the powers it is intended to use. Certainly, if it were intended to use those powers, I can well understand the noble Lord's anxiety.

Lord Haskel: The Government are certainly happy to discuss the limits on the powers of legal officers in the light of the pilot scheme. It is the whole purpose of the pilot scheme to gain experience of the work of the legal officers.

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As for appointments, certainly we would give further consideration to this matter; but I should say that the tribunal lay members at the moment are appointed by the Secretary of State.

Lord Lester of Herne Hill: Before the Minister sits down, perhaps he would clarify one matter. So far as concerns his first point, am I right in thinking that the Government intend the powers to be limited to interlocutory matters, as the Notes on Clauses made clear, and not to deal with substantive matters going to the merits of the issues in dispute? As I understand the remarks of the noble and learned Lord, Lord Archer of Sandwell, and the Notes on Clauses, that is the intention. It is not, therefore, a question of the pilot study, because the pilot study will simply study the use of the powers to deal with interlocutory matters and nothing more.

As for the power of appointment, although it is right that lay members are appointed by the Secretary of State, the legally qualified chairman--am I not right?--is appointed by the Lord Chancellor. So far as I am aware, all legally qualified chairmen of tribunals are appointed by the Lord Chancellor or, in Scotland, the Lord President. Will the Minister therefore look at the matter again to see whether the legal officer--who is to be the "mini" judge like a master in the Supreme Court--should not also be appointed by the Lord Chancellor and his department?

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