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Lord McCarthy: My Lords, not for the first time the noble Lord, Lord Renton, helps me when he says that he is more or less satisfied with the amendment of the noble Lord, Lord Lester. I hope the noble Lord,
Lord Lester, remains satisfied with his amendment because the noble and learned Lord, Lord Archer, has explained to me his amendment and if he has explained it, it must be clear, but I cannot follow it. I do not think, if I could follow it, that it would help very much because he says that there are going to be two lists. The noble and learned Lord says that they will only put the tasks of the legal officer on the first list, but he does not tell me what will be on the first list and he does not tell me what will be on the second list. He does not tell me whether subsequently he might transfer something from the second list to the first list. So what is the distinction? Therefore, everything could go.
Lord Archer of Sandwell: My Lords, I am sorry if my explanation was not followed by my noble friend. We could probably differ as to where the responsibility for that lies. The whole point about giving power to make regulations is that the regulations can add to or take from a list.
Lord McCarthy: My Lords, that is why we want something on the face of the Bill. That is precisely what it is all about. You are not helping us if you give us two lists and then say that you will fill them in later on and shift things about from one to another as it seems fit. That does not help. The reason why we are worried, of course, as the noble Lord, Lord Lester, said, is because of the Notes on Clauses. Ministers have said from time to time that they would be satisfied with the interlocutory duties, but first Notes on Clauses said that they wanted some interlocutory duties that are currently carried out and then they made a list of the interlocutory duties that would be included. If they had stopped there and told us that that was the list and that they were not going to add to that list, we might have been lulled into a state of satisfaction; but they then went on to say--and I would like the Minister to tell me whether they still say this--in paragraph 4 of the first Notes on Clauses,
- "The amendment to Section 4(6) will enable the rules of procedure to give legal officers the same power as a chairman under the rules. However, the intention is initially to limit their role to the administrative or interlocutory duties which are currently performed by a chairman".
In other words, subsequently we may add to these lists. Later, they produced another set of Notes on Clauses and, strangely and subsequently, they took out the word "initially". If I were to read paragraph 4 of the second list one would see that the word "initially" has disappeared.
My question is, do the Government think, as the noble and learned Lord, Lord Archer, thinks, that they can pop things in and out, from one list to another and that they can add new things subsequently which are not there initially? If they think they can, I must say I am surprised.
Baroness Blatch: My Lords, I am grateful to the noble Lord, Lord Lester of Herne Hill, for dealing with the technicalities because I hesitate to intervene in this debate with such learned people around me. Could I confirm that I too would wish to raise the whole issue of the breadth of the delegation, the issue about limiting
it to interlocutory and incidental procedural issues, and to express a concern about legal officers dealing with more substantive issues. I think that is a point of concern.My noble friend Lord Renton, who has now left the Chamber, referred to having a preference for Amendment No. 2. I would wish to say the same. Whether Amendment No. 1 and/or Amendment No. 2 are accepted by the Government, I have no doubt that this is an issue which one would probably want to continue to think about and possibly return to at Third Reading.
When this issue was discussed at the previous stage of the Bill an analogy was made with the clerks of the court in Scotland, and I believe it was fallacious. It is true that clerks do carry out certain routine matters which judges previously carried out. However, they do so in terms of powers delegated to them by the court itself, rather than by virtue of powers vested in them by a Minister of the Crown. The powers delegated to them could be revoked at any time by the court, if there was any concern on the court's part as to the manner in which the powers were being exercised. That could not happen under the Bill, as I understand it, if the tribunal members were concerned about what was going on.
We will continue with this concern but I would like to offer my support to the noble Lord, Lord Lester, on the understanding that I suspect we will need to continue to consider this issue as the Bill moves on to its next stage.
Lord Haskel: My Lords, I am speaking to Amendments Nos. 1, 2 and 11. The Government fully support my noble and learned friend Lord Archer's initiative in tabling Amendments Nos. 1 and 11.
It might help if I remind noble Lords of the Government's policy behind testing the concept of legal officers. If, as my noble and learned friend Lord Archer reminded us, I indicated at Committee that the aim of the legal officer pilot scheme is to test whether it is viable to provide useful support for chairmen, particularly those working in the overstretched major city centres, from a qualified legal officer. It might be possible to release chairmen from some of their interlocutory and preliminary work to leave them free to sit in tribunals hearing cases.
The kinds of tasks which we had in mind for them include disposing of settled or withdrawn cases, granting postponements and extending time limits, making orders for the provision of further and better particulars and making orders requiring the attendance of witnesses or discovery or inspection of documents. However, we shall discuss these with the presidents of the tribunals, who will be closely involved, both in drawing up the pilot experiment and in operating and evaluating it.
As my noble and learned friend Lord Archer has indicated, I can confirm that legal officers will not be empowered to conduct pre-hearing reviews, determinations under the new provisions introduced under Clause 2 of the Bill, or rule 6 determinations. I hope that this will help satisfy one of the points of the noble and learned Lord, Lord Hope.
Since the Committee stage we have given much thought to the issues which have been raised regarding legal officers, and DTI officials have been in consultation with the tribunal presidents on this matter. Given the concerns expressed, that the power taken by the Bill was too wide, we have looked into amending the drafting of the provision. At the request of the presidents of the tribunal we have considered whether it could be made clearer in the primary legislation that, under the regulations, legal officers need not be given the same powers which chairmen will have.
With my noble and learned friend Lord Archer's agreement, the amendment tabled by my noble and learned friend will clarify that those Acts, which the regulations specify, to be exercised by legal officers, need not be the same as those to be exercised by chairmen. Legal officers will be able to exercise only those specific Acts designated in subsequent regulations.
My noble and learned friend Lord Archer asked for assurances and I can confirm that his amendment meets the concerns of the tribunal presidents, and therefore I hope that it will also allay the fear of the noble Lord, Lord Lester.
Turning to the amendment of the noble Lords, Lord Lester and Lord Renton, Amendment No. 2, my noble and learned friend Lord Archer has given a detailed explanation as to why the powers relating to legal officers have been so drafted. He has explained why the amendment tabled by the noble Lord, Lord Lester, would restrict the legal officers' powers too much. As he said, it is difficult satisfactorily to define "interlocutory". There are some acts which we consider would be suitably undertaken by a legal officer, which we think may not fall, strictly speaking, in the category of interlocutory.
I do not intend to repeat the points that the noble Lord has raised. However, I should like to stress to the noble Lord, Lord Lester, that the powers given to legal officers by the regulations will be drafted in full consultation with tribunal presidents. They will also be subject to consultation with the Council on Tribunals, and of course subject to parliamentary scrutiny.
I turn now to another of the concerns of the noble and learned Lord, Lord Hope, which the noble Lord, Lord Lester, read out. I hope that the consultation with the presidents will ensure that the pilot exercises will work satisfactorily in that they will be able to work with the Government in deciding what duties will be appropriate to the legal officer. I hope that the amendment moved by my noble and learned friend Lord Archer, and my further assurances on this matter, will meet the concerns of the noble Lord, Lord Lester, and convince him not to pursue his amendment.
6.30 p.m.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister, but before he sits down I wonder whether he could clarify just one matter. I think that I heard him say that my amendment would restrict the powers of the DTI too much. Will he explain, with one or two examples, what are the powers which the Government wish to delegate to legal officers, other
than in respect of interlocutory matters, that would be hobbled or fettered if the Bill limited delegated powers to interlocutory matters? Could we have one or two examples of the kind of thing that the DTI has in mind which mean that my amendment is too restrictive?
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