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Grand Committee

Wednesday, 13 December 2006.

The Committee met at quarter to four.

[The Deputy Chairman of Committees (Lord Tordoff) in the Chair.]

Tribunals, Courts and Enforcement Bill [HL]

(First Day)

Clauses 1 and 2 agreed to.

Schedule 1 agreed to.

Clause 3 agreed to.

Clause 4 [Judges and other members of the First-tier Tribunal]:

Lord Kingsland moved Amendment No. 1:

The noble Lord said: On Second Reading, I had the opportunity to draw your Lordships’ attention to the distinguished report by Lord Justice Leggatt, in which he emphasised the importance of the informality of tribunal proceedings. He said that essentially tribunals were not courts, but institutions for the users and should be as approachable as possible if we are to maximise the contribution that they will make to our constitutional system. That is why I tabled this straightforward amendment, which is to remove “judge” as the name of the legal members of tribunals and substitute it with “legal member”.

I spoke at some length on that at the time and do not intend to repeat everything that I said then. I have since had a letter from the noble Baroness on the point, in which she says that although on balance she believes that “judge” is right, it would never be used in tribunal proceedings; normally a legal member would be referred to as either “sir” or “madam”. If that is so, I cannot understand why the Government have chosen to persist with the idea of “judge”.

Lord Clinton-Davis: Will the noble Lord give way?

Lord Kingsland: I am particularly delighted to give way to the noble Lord, Lord Clinton-Davis.

Lord Clinton-Davis: If somebody sits as an assistant recorder, he or she is automatically viewed as a judge. Am I not right? There are instances of that right through the whole panoply of judgeships.

Lord Kingsland: That is in a sense the opposite situation. If you were a recorder—

Lord Clinton-Davis: No, an assistant.

Lord Kingsland: If you are a recorder or assistant recorder, in either case you are not called “judge” as such, but in court you are referred to as “judge”. Here

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we seem to have the opposite situation, with legal members in tribunals who will be designated as “judges” but not actually referred to as “judges”, so the situation is exactly the reverse of the one to which the noble Lord refers.

I have two reasons why designating legal members of tribunals as “judges” is inappropriate. The first is that, as the noble Baroness knows, under paragraph 1(2)(d) of Schedule 2, certain people can be designated as judges by the noble and learned Lord the Lord Chancellor who have no defined legal qualifications in the Bill. Moreover, it is not clear either from the Bill or from anything said so far, either in guidance or on the Floor of the House, what criteria he will apply in designating that class of person as a judge.

Perhaps my most important concern is to do with the fact that the Government spent almost a year preparing and then making sure of the passage of the Constitutional Reform Act 2005 through Parliament. The key principle behind that Act was the notion of separation of powers—that the process of judicial selection should be entirely free of the Executive. In pursuit of that objective, the Government established a Judicial Appointments Commission that has, as I understand it, the exclusive right to appoint individuals called judges. Yet in the Bill we find a member of the Executive—the noble and learned Lord the Lord Chancellor—designating individuals as judges, in complete contravention of all the principles that underlay the Act. How can a member of the Executive appoint a judge when that plainly breaches the principle of the separation of powers to which the Government claim to be so attached?

If tribunals are to play the kind of role that Lord Justice Leggatt rightly foresaw in his report, they ought to have a large degree of informality. Introducing a judicial notion into their work gives entirely the wrong impression to the users, and I hope that the Committee will support my amendment. I beg to move.

Lord Maclennan of Rogart: I support the amendment although I do so to some extent in a spirit of inquiry, as I found the noble Lord’s reasoning on Second Reading extremely powerful, particularly his invocation of the arguments for informality and approachability that had been adumbrated by the Franks committee half a century ago in its approach to the regularisation of administrative tribunals.

There is, however, another question that the Minister might also address. The use of “judge” suggests a somewhat different role from that of the member, who is not so described. In practice, the members will operate as equal members when sitting in consideration of a case and reaching their decisions, but the use of “judge” almost suggests a hierarchical ranking of one member over the other. The use of “legal” is purely descriptive of a professional qualification, and it would be unfortunate if some members of the tribunal were more equal than others.

The Countess of Mar: I suspect the precedent has already been set for this. I apologise for not having spoken on Second Reading, but I had a clash of

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appointments and I could not attend the debate. The chairmen of the Asylum and Immigration Tribunal are called judges, and I think that this is a continuation of that; perhaps the Minister will put me right. I was not very happy about it because, as the noble Lord on the Liberal Benches has said—I apologise for not remembering his name; I am having a senior moment—when you sit as a tribunal member, you sit as an equal, whether you are a non-legal member or a legal member. It used to create a little discomfort, but it was to satisfy certain individuals who wanted to be seen to be a little more senior than they were.

Lord Newton of Braintree: I speak with some diffidence because I must declare my interest, which I declared on Second Reading, as chairman of the Council on Tribunals. I do not know whether I can be given some guidance on whether I must declare that interest every time I say something, but I had better declare it formally now, at any rate.

I was not quite sure whether I wanted to intervene on this point at all, because it is a difficult subject on which it would be fair to say that people have varying views. I follow what the noble Countess, Lady Mar, has said. Frankly, if there was a pass to be sold here, it was probably sold with the Bill that became the Act that set up the Asylum and Immigration Tribunal. That Act imported the title “judge”, which, as the Minister has evidently said in her letter to my noble friend on the Front Bench, does not have to be used and, I think, is not generally used in the Asylum and Immigration Tribunal. It was imported into that tribunal, and it now becomes a little difficult to go back on the whole thing. The Council on Tribunals was not terribly keen on it. It thought “judge” was too formal for a tribunal, which echoes the point that my noble friend is making. The question arises as to whether one wants to reopen this issue now. I look forward to hearing what the Minister has to say about that. It would certainly be very helpful to have a further assurance that you would not have to use it because, whatever else it did, it would undoubtedly create a more formal impression in tribunal proceedings than I believe Ministers are keen to create if it were routinely used, as distinct from being a description of the status of the person involved, which may be important to many of those concerned, some of whom are of course judges. Large numbers of people who are judges by any definition sit on tribunals, so the argument really is quite complicated.

I would also be grateful for clarification of another point that my noble friend seemed to be making. My understanding is that, as with judges, these appointments are made mostly by the Judicial Appointments Commission. I think I am right in saying that its biggest single workload is the appointment of people to tribunals. That is a factor in this argument.

4 pm

Baroness Butler-Sloss: I think that that was the case in the past. I must declare a general interest having been a judge, but not of a tribunal. When I was a registrar at Somerset House many years ago, there was

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a great move to change that title to “district judge”. “Stipendiary magistrates” became “district judges’ magistrates”. “Immigration tribunal chairmen” became “judges”. There is a real movement among lawyer chairmen of tribunals to be called judges. It is a status symbol. To stop it in the case that we are discussing would be very difficult because the pass has been gradually sold, and was sold completely vis- -vis the immigration judges.

Lord Clinton-Davis: I entirely agree with the views that have just been expressed. We are making a great song and dance about this. As has been indicated, the people in charge of these tribunals are viewed as being sui generis, and so they should be. Whether we call them judges or legal members is regarded by the public as rather an abstruse matter. They view them as judges, and rightly so. It is not altogether unprecedented that they should be so regarded. I strongly support the view that has just been expressed.

Lord Lloyd of Berwick: I take rather a different view from that of the noble Baroness, Lady Butler-Sloss. I support the amendment for a reason that has been touched on. It seems to me that there is a possibility of confusion between those members who are actually legal members and those legal members—call them legal members, if you like—who are in fact judges. It seems to me that that distinction is worth preserving.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I am grateful to everyone who has spoken. As ever in Committee, a range of issues was raised under an amendment which the noble Lord, Lord Kingsland, described as straightforward. I shall address the principles that were raised. Members of the Committee will know that not only am I taking this Bill through the House but I am responsible for the policy in this area, so I may be able to wing it rather more than usual.

First, Members of the Committee referred to the informality of tribunal proceedings and the tradition that has grown up which has enabled people to approach tribunals in a different way than they would an ordinary court. We do not wish to lose that. I sent a letter to the noble Lord, Lord Kingsland, and other Members of the Committee in which I pointed out that the title issue does not involve any suggestion of moving away from the good practice exercised in many tribunals in that regard.

Secondly, as was pointed out, the Judicial Appointments Commission selects candidates. That is right and proper. I believe that the Committee is very much in favour of that process. The Lord Chancellor considers issues of eligibility. We shall talk more about those questions on later amendments. However, there is a discussion to be had about ensuring that eligibility, and perhaps widening the pool of those who are eligible, is a positive concept as long as appointments are awarded on clear merit criteria. Noble Lords who are members of the legal profession or the judiciary would be the first to acknowledge that. We wholeheartedly support that.

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The main purpose of this part of the Bill is to create a new tribunals service with an opportunity to develop its focus. Across the Tribunals Service a number of different names have been used for those who perform the function that we are discussing. I have come across the names: umpires, adjudicators, commissioners, chairmen and judges. I am not sure whether I accept the point about selling the pass. However, I accept the point about the clarity of previous legislation. We have asked members what name they would prefer. They prefer to be called judges. We need to settle on a name. It is as good a name as any; it sends an important signal to the public that the judiciary is perceived to be independent from government; and it says something about this being a place where you can get justice. I settled on that name for those reasons and no others. I hope that in withdrawing the amendment, which the noble Lord, Lord Kingsland, has no choice but to do in Committee, he will see that this name is as good as any.

I make one other point. As Members of the Committee will know, I am carrying out a review of the role of non-legal members of tribunals. One of the really interesting and tricky issues is finding appropriate terminology to describe people. It is important that due credit is given to those who perform fantastic work in our Tribunals Service. When I received that response, I felt that it was right to go with that name. It brings it all together under one name. It does not in any way suggest a loss of informality or focus.

Lord Maclennan of Rogart: Has the Minister a view on what non-legal members of the tribunal should be called?

Baroness Ashton of Upholland: I have offered a bottle of champagne, which I will personally purchase, if we can find a name that people feel recognises the role they perform. There are medical members, lay members and non-legal members of tribunals. The problem with using “non-legal members” is that it is a negative term. I would be one were I on a tribunal. I would rather have a positive than a negative term. Perhaps the noble Lord, Lord Maclennan, will come up with something and I may award him the champagne.

Lord Maclennan of Rogart: I hesitate to offer a neologism to the Minister, but I am bound to say that “member of the tribunal” seems to me to be a very good description of them all. The mere attachment of “legal” to those who are is not a diminution of their status. Being a member of a tribunal of this kind is an important role in society and it should be recognised as such.

Baroness Ashton of Upholland: I could not agree more, but there are not just legal members, but medical members of tribunals who, while not clinging to any title, feel very strongly that their function on a tribunal—I have met many of them to date—is because of their medical expertise. They enjoy and value having that distinction as it sets out clearly the function they perform, so it is not that simple. I agree completely with the noble Lord that those who sit on tribunals are a credit to this service. In my discussions I have had the privilege of meeting some members in different parts of the country.

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Lord Kingsland: I thank all noble Lords who have spoken in what I can describe only as an extremely lively debate. The noble Countess, Lady Mar, rightly drew the Committee’s attention to immigration tribunals, which, to some extent, lie outside the Bill. They are not part of the classified divisions, although at some future stage they might be made so. She rightly said that about two years ago when these issues were debated in the context of different legislation, it was decided, rightly or wrongly, to describe immigration adjudicators henceforth as judges. The fact that immigration adjudicators are now described as judges does not in itself justify us generalising the description to all—

Baroness Ashton of Upholland: I hesitate to interrupt the noble Lord, but I want to make it clear that that was absolutely not the reason why I took the decision that they should be called judges.

Lord Kingsland: I was not suggesting that it was the reason; I was simply responding to what the noble Countess, Lady Mar, said. The fact that one single category of tribunal legal member is now described as “judge” is not a strong enough argument to justify generalising the description. I certainly did not suggest that part of the Minister’s case to justify the description “judge” was that it had for two years been used in immigration tribunals.

I cannot press this amendment to a vote, because we are not allowed to vote in the Moses Room. I shall withdraw it and reflect upon the matter before Report. However, I note the support I have received, both from the Liberal Democrat Benches and from the noble and learned Lord, Lord Lloyd of Berwick, who, from what he said, was very much influenced by the philosophy of Lord Justice Leggatt. I continue to take the view that “judge” is overformal for the legally qualified members of these tribunals, and I shall need a great deal of persuading before I have second thoughts about presenting this matter again on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 4 agreed to.

Schedule 2 [Judges and other members of the First-tier Tribunal]:

Lord Kingsland moved Amendment No. 3:

The noble Lord said: This amendment and Amendment No. 5 refer to an identical issue. Paragraph 1(2)(d) of Schedule 2 deals with the eligibility for appointment of judges to first-tier tribunals. The category in that paragraph states that a person is eligible for appointment under sub-paragraph (1) only if the person,

The purpose of my amendment is to probe the Minister as to exactly what she believes that means in practice. What kind of influences does she think the

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Lord Chancellor would bring to bear on his decision under this sub-paragraph? What kind of experience in law would make a person suitable for appointment in those circumstances? I beg to move.

Baroness Ashton of Upholland: I am grateful to the noble Lord for so succinctly explaining what he is seeking to achieve. This goes back to what I was alluding to in the previous group: looking for the flexibility that recognises that the Tribunals Service has developed over a number of years and has expertise in a number of different fields. I assume we recognise that that may well continue to be the case in the future. We may find that new tribunals grow up as a consequence of changes, either in the operation of government or in the operation of specific pieces of legislation. Part of what we seek to do with this Bill is not to rule out possibilities. I think the noble Lord, Lord Kingsland, accepts the principle behind that, though I understand his desire to understand what we have in mind.

I can point to examples: there are occasions when expertise from a Commonwealth jurisdiction or another European jurisdiction may be relevant, or when, for particular tribunals that have expertise way beyond me in matters of taxation and so on, it might be appropriate to look for someone who has acquired expertise in a more academic field. We have sought the flexibility in paragraph 1(2)(d) of Schedule 2 to enable the Lord Chancellor, looking at the breadth of the Tribunals Service, to identify people with specific expertise who might be eligible to serve on a particular tribunal. I have given examples of other jurisdictions—Commonwealth and European—and particular areas of expertise. The Lord Chancellor will have in mind the specific function of a tribunal, the particular areas of expertise that could be drawn down and where such expertise exists. But, again, this is about eligibility. I think the noble Lord accepts the principle that this does not mean that such people will be appointed but that they may be eligible for appointment. That is the current thinking in those areas.

4.15 pm

Lord Maclennan of Rogart: I am grateful to the Minister for her explanation. However, it is not wholly satisfactory. I understand the desirability of retaining and providing for the possibility that someone whose legal qualifications do not conform to those set out in paragraph 1(2) of Schedule 2, but which are none the less real, palpable and relevant, should be open to consideration as a member. Amendments Nos. 3 and 5 are broadly similar in respect of the upper tribunal. Sub-paragraph (2)(d) deals with something that is not objectively tested by reference to particular experience, as are the earlier criteria in the paragraph, but imports the opinion of the Lord Chancellor to the relevance of the experience. That is not objective—it is subjective—and, consequently, it is a very different principle.

That argument lay behind the Constitutional Reform Act, which was touched upon on the first, warm-up amendment, but Schedules 2 and 3 run counter to the philosophy underlying that Act. I am a

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little puzzled. Whether or not the Lord Chancellor is a lawyer qualified to appraise the legal qualifications of others may not be resolved for all time, but I would be distrustful of simply allowing a dispensing power to him to bring forward to tribunals virtually anyone who, in his judgment, had a legal qualification which he considered appropriate.

Baroness Ashton of Upholland: My Lords, I hope the noble Lord will find nothing to mistrust in anything we are seeking to do.

I have listened to the noble Lord with great interest. I reiterate that this is about eligibility and not appointment. It is critical that we keep in mind the importance of the Judicial Appointments Commission in everything we do in this area. This is not about the Lord Chancellor simply choosing someone he considers might be appropriate; it is about thinking through the category or type of expertise needed and saying that appropriately qualified people can apply. It does not mean that they will be appointed. It is very important to keep that in mind throughout all our discussions on the widening of the pool and the role of the noble Baroness, Lady Prashar, in holding together the Judicial Appointments Commission. Making that clear in the work that she is doing is fundamental to it.

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