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Lord Archer of Sandwell: My Lords, before my noble friend replies, will he say whether he agrees with the two examples that I gave; that is to say, dismissing proceedings where there has been an agreement and dismissing proceedings where there has been a withdrawal?
Lord Lester of Herne Hill: My Lords, before the Minister does that, will he say whether there are any examples other than those obvious examples which might need to be catered for? Are there any examples other than ancillary matters of procedure of that kind?
Lord Haskel: My Lords, I hesitate to interfere in the discussion between my noble and learned friend and the noble Lord. I agree with my noble and learned friend that his examples were relevant. I said that the kind of tasks that we had in mind included disposing of settled or withdrawn cases; granting postponements and extending time limits; making orders for the provision of further and better particulars; and making orders requiring the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.
Lord Lester of Herne Hill; My Lords, I am grateful to the Minister, but does he agree that all the matters, with the possible exception of the first, are what are known in the trade as interlocutory matters? Therefore my amendment would in no way restrict the DTI's power to authorise legal officers to deal with postponements, adjournments, further and better particulars, discovery, and all the other matters which are in the list in the Notes on Clauses?
Baroness Blatch: My Lords, before the Minister replies perhaps I may say in support of the noble Lord, Lord Lester, that, without some amendment along the lines of the amendment tabled by him, it will be difficult for some of us to accept the Bill as it is, because there needs to be some definition of the framework within which the legal officers will work. We should not leave a gaping void on the face of the Bill which then allows secondary legislation merely to define. It is important to have on the face of the Bill a definition of the degree to which those powers will be used. That is something to which we must return at the next stage of the Bill.
Lord Haskel: My Lords, I agree that it is important, but that is the whole purpose of the test that we have in mind. The purpose of the test is to find out, through experience, what those tasks will be.
Lord Archer of Sandwell: My Lords, with the leave of the House, the difficulty about giving examples in this type of debate is that if you can give examples you can of course frequently deal with them in the primary legislation. Problems arise when you have not thought
of the examples and they arise after the legislation is on the statute books. One is then confronted by a practical difficulty. That is why, for reasons with which I sympathise, the Government do not want to set this in concrete at this stage before the pilot schemes.If I accept what the noble Lord said, that the Scrutiny Committee overlooked this point, then as a member of that committee I must share some of the blame, and I do so. Perhaps we may return to the letter of the noble and learned Lord, Lord Hope. His intervention, if I remember, was in response to an intervention by the noble Lord, Lord Renton, who, unhappily, has had to leave us, in which he appeared to assume that the legal officers would exercise their functions by delegation from chairmen or presidents.
At the time, I must have been more than usually obtuse, because I had not grasped that that was what was in the noble Lord's mind. If I had I would have pointed out that this is a different situation; that legal officers will not exercise their functions by delegation from other members of the judiciary; they will exercise their function under regulations made by the Secretary of State. I am surprised that my noble friend Lord McCarthy thinks that it might be surprising that from time to time regulations are amended. Any power to make regulations will of course include a power to amend them as and when required. That is what it is for.
Lord McCarthy: My Lords, I was not surprised, I was suspicious.
Lord Archer of Sandwell: My Lords, I have tried in the past to allay some of my noble friend's suspicions. I do not propose to embark upon that venture tonight. I should have hoped that my noble friend would appreciate two things: first, the difficulty of framing an amendment of the kind which, understandably, the noble Lord, Lord Lester, wishes to propound, without landing the Secretary of State in a situation where he says, "Ah, now we have seen the pilot scheme, we realise that we should do X and not Y. We should put in a couple of exceptions. We cannot do that, because that is not what the Bill now says". The noble Lord said that everyone knows what is meant by an interlocutory matter. We are dealing with a specialised jurisdiction. We have had examples tonight where some of us have had something in mind, and then, "Oh dear, that is not covered by an interlocutory matter". I hope that the noble Lord and my noble friend will accept that there is a problem here if we try to set this in stone.
The other thing I would have hoped that my noble friend would accept--the noble Lord, Lord Lester, has not said that he does not accept it--is the undertaking given by my noble friend the Minister: first, that there will be the fullest consultation with the presidents before regulations are made; secondly, that the presidents are now content with Amendment No. 1 in the form in
which I have propounded it; and, thirdly, they will consult the Council on Tribunals. My noble friend is muttering. I did not quite catch what he said.
Lord McCarthy: My Lords, I said I do not care what the presidents think. I have never met the presidents. I do not think this is good enough.
Lord Archer of Sandwell: My Lords, of course we could take a national referendum if that is what my noble friend wants. There are limits as to what one can do before reaching a decision on this matter. I am sure that the noble Baroness would not ask us to go as far as that.
Baroness Blatch: My Lords, certainly not.
Lord Archer of Sandwell: My Lords, in the light of those undertakings given by my noble friend the Minister, one cannot go very much further to ensure that nothing will be done which has not been disclosed to the House, and nothing will be done that anyone here would regard as improper. In those circumstances, I hope that there will be no opposition to Amendment No. 1. I hope that the noble Lord, Lord Lester, will feel able to reconsider Amendment No. 2.
On Question, amendment agreed to.
Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 2:
The noble Lord said: My Lords, I am grateful for the support from all sides of the House as regards the concerns which underlie Amendment No. 2. I am grateful to the Minister and to the noble and learned Lord, Lord Archer of Sandwell, for doing their best to justify that which I do not believe to be justifiable. The fact that there is to be a pilot study is admirable but it does not meet the point. The pilot study will ascertain whether legal officers of two or three years' call or legal experience are to be entrusted with judicial powers of an interlocutory kind. They will be tested on no more than that because we are told that the department does not contemplate that they will be doing more than exercising interlocutory functions, dealing with compromise cases and the dismissal of cases where there is no controversy. Therefore, the pilot study is completely irrelevant to the issue of what powers beyond the interlocutory and ancillary procedural powers should be given to legal officers.
The fact that there is to be consultation with the presidents and the Council on Tribunals is welcome, but the ultimate question, which is a question for Parliament, especially a question for this House with its weak powers over delegated legislation, is whether we want a safeguard on the face of the Bill to prevent young and inexperienced legal officers undertaking anything other than routine interlocutory and ancillary procedural functions. Since no example has been given either by the Minister or by the noble and learned Lord, Lord Archer of Sandwell, of anything significant that the
Lord Archer of Sandwell: My Lords, will the noble Lord forgive me? Does he agree with the noble and learned Lord, Lord Hope, that the kind of expressions we might want to use--for example, "incidental procedures"--are difficult to define?
Lord Lester of Herne Hill: My Lords, I agree that they are difficult to define, but that is the job of government, parliamentary counsel and legal advisers within the department. I hope that after this debate they will bend every sinew to seek to produce adequate definitions which will satisfy the House. Perhaps I may remind the House that the noble and learned Lord, Lord Hope, at the end of his letter, states:
I do not believe that it is suitably qualified merely by having two separate lists which, as the noble Lord, Lord McCarthy, pointed out, can simply by amendment be transferred from one list to another. I continue to believe that the Bill must provide some appropriate limitation.
In the absence of the noble Lord, Lord Renton, I would not dream of seeking to test the opinion of the House and I should be proud to stand with him as a Teller. However, I give the Government notice that when the matter comes back on Third Reading, unless we are given something on the face of the Bill it will be my intention to test the opinion of the House. In the meantime, I shall not move the amendment.
Clause 7 [ACAS arbitration scheme]:
Page 4, line 3, at beginning insert ("in respect of interlocutory orders or any other decision on an interlocutory matter,").
"As I understand the proposal in this clause, however, the matter will be in the hands of the Minister and his Department, as the delegation to legal officers is to be dealt with by means of employment tribunal procedure regulations ... and not by the tribunals themselves or by the President. This aspect of the matter increases my concern that, in the interests of justice and to prevent misuse of it, the clause should be suitably qualified".
6.45 p.m.
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