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Whereas I am quite content to talk to noble Lords about whether we have the wording of the clause right, I find it difficult to know how one could alter it without doing the opposite to what we seek to do, which is to accept the fact that flexibility for the future is important in setting up the new Tribunals Service. That means enabling us from time to time, when we consider the expertise needed in the Tribunals Service, to consider people from another jurisdiction who have the relevant expertise on which we could call. That is all that we are seeking. If Members of the Committee can find a way of saying that with which they feel more comfortable, I have no difficulty, but I have not been able to find one other than that in the Bill. I have tried to give examples of our thinking. If I could give all the examples, I could put them in the Bill and that would be that, but those are the sorts of areas that we have been looking at.
It is essential to keep in mind that this is only about eligibility. If the Judicial Appointments Commission did not exist, there could be reasonable fear that the provision could be moving away from that which we hold dear about appointment on merit for particular roles. That is all we are seeking to do but, as the Committee would expect, I am happy to discuss that.
Lord Kingsland: I thank the Minister for her observations. Bearing in mind that whoever is selected under the provision will be called a judge, I suggest that it would be desirable to be a little more specific in the Bill than the general words that are there at the moment. She helpfully suggested certain possible categories, such as those who have had a career in the academic world, who might be appointable. Would she consider a guideline provision or some similar provision in the Bill which set out the categories which the noble and learned Lord might have in mind?
I entirely agree with the observation of the noble Lord, Lord Maclennan of Rogart, when he said that he thought that the category was too open-ended. I very much share that view and I do not see that the Government would be excessively inconvenienced were they to try to put pen to paper and think about all possible permutations of background that might fall within the description. Otherwise, we will end up calling an extremely wide range of individuals as judges in a way that might be found rather confusing.
Although I am very happy to try to set that out, my note of caution is that if we knew all the possibilities for tribunals in future and the kind of expertise that we may seek, we would put it in the Bill or regulation. I am merely trying to keep the door open to accept that, for particular circumstances, we might want someone from another jurisdiction or with a particular form of expertise. The noble Lord, Lord Kingsland, rightly referred back to the previous amendment about calling people judges, which is hugely important, I believe, for an understanding that there is independence from government and that an independent and proper decision will be made. That is the case that I made for why we went in that direction. It is not about trying to extend so far that noble Lords feel that we have lost something fundamental in the system. I could not agree more with the sentiment behind the amendment to try to ensure that we do not do that, but that is absolutely not the intention.
I hope that Members of the Committee will reflect that sub-paragraph (2)(d) refers to sub-paragraph (2)(a) to (c) and that we have been clear about the criteria there, and do not run the risk of losing what is important, which is retaining that flexibility. I am happy to discuss with the noble Lords, Lord Kingsland and Lord Maclennan, outside the Committee whether there is something I can say or something we can put in the policy statement that would ensure that noble Lords recognised that we did not seek to move so far away from the criteria that they felt it inappropriate.
Lord Newton of Braintree: I wonder whether I might put into the pot a thought that has occurred to me while the debate has been raging, if that word can be used for your Lordships proceedings in the Moses Room. Some of this appears to relate to suspicion about what members of the Executive might do in relation to appointments. If I have that right, all this follows the provision under which the Lord Chancellor
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Baroness Ashton of Upholland: I do not know, because I am mindful of how the commission is set up, what it does and does not do, and what it would wish and wish not to do. It is deliberately not in the business of looking at eligibility in that sense, but we can talk about thatwe can ask it and have a further conversation. As usual, I have no objection to that.
Lord Newton of Braintree: I certainly do not want to press the point, and I do not want to get legalistic about this because I am among those many here, including the Minister, who are not lawyers, and I do not want to pretend that I have become one. However, the Judicial Appointments Commission will clearly have to consider peoples suitability for appointment, and this is an issue of suitability, on which I would have thought it could perfectly well be asked to play a part.
Lord Kingsland: There are two other amendments in the group, Amendments Nos. 65 and 66, which are there because they also relate to clarifying provisions about judicial appointments, this time in Clauses 47 and 48. Before I make the short point that we are not in any way against what the Government are trying to do in those clauseswe simply seek clarification about the Governments precise intentions, because once again they are giving themselves some very wide-ranging powersI would like to know to what extent the noble Baroness can tell us how the noble and learned Lord intends to use the powers. I emphasise that we are not trying to in any way impede any opportunities that may lie open to those from either the legal executive profession or the trademark attorneys profession to be appointed in these circumstances. We simply want to know what the Governments approach will be.
Baroness Ashton of Upholland: I am grateful to the noble Lord for bringing up these issues. As your Lordships can see from Clauses 47 and 48, we have sought to set out precisely whom we are referring to at present. As the noble Lord, Lord Kingsland, has said, five specific bodies are currently authorised under the Courts and Legal Services Act 1990: the Bar Council, the Law Society, the Institute of Legal Executives, the Chartered Institute of Patent Agents and the Institute of Trademark Attorneys. I understand that the Association of Law Costs Draftsmen is due to become an authorised body, subject to affirmative resolution, from 1 January 2007. We have sought to set out, as far as we could, those additional bodies that will become eligible, so that noble Lords can see what we are seeking to do.
We have been clear in our own minds where we see these eligible people operating. For example, legal executives would be able to apply for district bench posts, such as deputy district judge, district judge, deputy district judge (Magistrates Court) and district judge (Magistrates Court), as well as appropriate tribunals; for example, the Pensions Appeal Tribunal, the Gambling Appeal Tribunal, the Information Tribunal, the Child Support Commissioners and so on.
Patent agents and trademark attorneys would be able to apply only for specialist posts; for example, recorder or circuit judge with limited specialist jurisdiction in the Patents County Court, chairman or deputy chairman of the Copyright Tribunal, persons appointed to decide Trade Marks Act appeals from the registrar and, with limited jurisdiction, specialist appointments in the Patents Court of the Chancery Division. As the noble Lord, Lord Kingsland, understands very well, we are seeking to widen the pool of those who could be eligible where there are clearly links between their expertise and the particular court in which they could serve. I take the view that noble Lords generally are reasonably comfortable with that within the boundaries that I have set, and, again, that the Judicial Appointments Commission plays its role here.
This goes back to what the noble Lord, Lord Newton of Braintree, said on the previous group about the role of the Judicial Appointments Commission, which is why I hesitated to commit anyone to anything until we had discussed it. If there were any extension of relevant qualifications to an authorised body, it is in the Bill that there would have to be consultation with the Lord Chief Justice, or with a person nominated by him if he felt that was appropriate in the circumstances. That would be by affirmative resolution. We have sought to give ourselves a little flexibility to return to this matter in the future if we wish, but I hope noble Lords will see that we have done so in a way that brings in both the Judicial Appointments Commission and the Lord Chief Justice, and ensures that Parliament will be able to consider the orders properly by affirmative resolution.
That is where we are. I hope noble Lords understand why we are seeking to do this. We do not wish to cut it off completely, so that in the future other appropriate bodies to be authorised will be able to come back and say to Parliament, We think for these courts in these particular cases it would be appropriate to do this, with relevant explanations and with the support of the Lord Chief Justice.
Lord Maclennan of Rogart: There is another possible line of inquiry. If there is to be the concept of the Lord Chancellor importing a category of eligibilityalthough that is not what it says; it says the Lord Chancellor will make a particular appointment, not widen the category of eligibilityit might set some minds more at ease if there were a process of consultation. The difficulty is that any individual is fallible in making appraisals of individuals. An institutional consultation to judge the appropriateness of the circumstances that have given rise to the Lord Chancellors view that this person would be eligible seems appropriate.
Baroness Ashton of Upholland: I wonder whether the noble Lord would elaborate for me. As a general principle, consultation is a good thing. I am not always in favour of putting things in Bills, because that can restrict what people can do. Will he give me an example of exactly what he means?
Lord Maclennan of Rogart: It might beI choose a deliberately far-fetched examplethat the Lord Chancellor takes the view that the former chief justice of Malawi has compiled experience of the kind that would be transferable to a tribunal in this country, perhaps based on the Lord Chancellors visit to Malawi 20 years ago and/or that he dined at an Inn of Court with the person in question. That would not seem to me to be an appropriate way to consider the eligibility of the individual; and I do not imagine for a minute that the noble Baroness would think that it was either. But such a sort of ad hoc approach to nomination, however superficially reasonable it might seem, raises questions that cannot be satisfactorily answered.
On the other hand, I quite accept that it would be unsuitable to put in the Bill, or even in subordinate legislation, that former chief justices of Malawi would be considered eligible. But a process that allows some iteration with others who might be thought to be expert about an individuals background, as well as the individual, would seem to me to be a way forward.
Baroness Ashton of Upholland: With the greatest respect to the chief justice of Malawi, this is not about specific individuals or specific jobs; it is about possible qualifications. The Lord Chancellor would not be able under this piece of legislation to do what the noble Lord quite rightly fears might happen. The provision sets out certain qualifications that people have that would make them eligible for the pool; it is not about specific appointments. The noble Lords worst fears would not be realised within the current legislation. That is my understanding of the drafting from parliamentary counsel. We sought to say that there are people within a category of qualification. The example I use, which is as far-fetched as the noble Lords one but which makes the point, is that those who have held Commonwealth chief justice positions for more than 10 years and have received the qualifications set out in so doing would as a category be eligible. That would be the equivalent, which I hope gives the alternative view.
The noble Lord said: I shall be very brief. The names of the noble Lords, Lord Maclennan of Rogart and Lord Thomas of Gresford, are also attached to the amendment. I cannot speak for either noble Lord, but as far as I am concerned, the purpose of the amendment is simply to probe the Government about their intention in relation to the organisation of the chambers or, as we prefer, the divisions, in the tribunal system. The Bill is rightly intended to rationalise the way in which the whole structure of tribunals is administered. In our view, the chamber or divisional approach is a good one, but I should like to find out a little more from the Government about what practical steps they intend to take to make that a reality. I beg to move.
Lord Maclennan of Rogart: As my intentions are similarly probing, it will not be necessary for me to take much longer than the noble Lord, Lord Kingsland, in speaking to the amendment, to which my noble friend Lord Thomas of Gresford has attached his name.
The Law Society supports this change of language, simply because it is again anxious to make the tribunal system as consumer-friendly as possible and division is thought to be more so than chamber. I must confess that my real interest is in the structure and I hope that the Minister will be able to say something about that.
Baroness Ashton of Upholland: I have to say that the noble Lords have totally spoilt my fun, because I was going to say that I do not care what we call them. However, I might have known that that was not actually the reason that they tabled the amendment. I genuinely do not care what we call them. Should the Law Society want to come back to me on that, I should be grateful. We chose chambers because we thought it was good to get away from divisions because they have particular connotations with the High Court divisions, and so on. That is why chambers was chosen. I do not think that the noble Lord, Lord Newton of Braintree, minds either.
Lord Newton of Braintree: No, I certainly have no strong view. If one wants to illustrate that they are not quite the same as courts, there is merit in having some different language but, like the Minister, I do not feel strongly about it.
I hope that yesterday, noble Lords received our detailed policy statement, which I published, as they would expect me to do. It is quite a lengthy document; I deliberately made it so because I felt that it was important to set out as much detail as I could to explain precisely what we seek to do. I shall paraphrase from it, but I hope that noble Lords will have the opportunity to study it in greater detail.
First, with the concurrence of the Senior President of Tribunals, the Lord Chancellor will set up the chambers. The specific idea is to try to group together jurisdictions which are similar in nature and thus allow judicial deployment, because the opportunity to be able to use judges flexibly will happen as a result. Of course, we also want to preserve expertise. By grouping people to work together and have a focus in a specialist area, we hope to preserve everything that is valuable and important about that. We are also trying to ensure that we are providing as efficient a service as we can for those who are to use it.
As this is a joint piece of work, the document states that it is work in progress. What we have set out in the paper is provisionally where we think that we will be but, because we want to ensure that it is done by concurrence, noble Lords must recognise that it may change in some ways. In other words, it does not bind the senior presidentnot that I would try toto this particular formula.
We have specified subject matter rather than geography, looking at similarity of law, the common skills that are needed, the extent to which judges and members already sit across jurisdictions and the size and distribution of the workload. Workload is a big issue raised consistently by the non-legal members to whom I have spoken. We do not want to go for very small chambers, because we do not want to replicate the silos of the current system; we want to bring it together. For example, we envisage three separate chambers for social security, for tax and regulation, and for mental health and other welfare appeals.
We have not yet come to a view on the upper tribunal. Noble Lords may have views on whether it should be divided into chambers. If it were, we would probably follow the pattern of the first-tier tribunals, but we would also have one for land and property that reflected the role of the Lands Tribunal. We want to consult very widely on this across the system. A consultation is planned for 2007 that will enable office-holders, those in the leadership posts, users of tribunals and as many representatives as possible to have the maximum involvement in how they develop. That is the plan. There will be proper consultation, and the senior president and the Lord Chancellor will work together, looking for flexibility and economies of scale in the operation of the tribunals, which should not be too small, better use of legal and non-legal members, and the opportunity to address workload issues as far as possible. I hope that gives noble Lords as much relevant information as possible at this point. I ask them to look at pages 5 and 6 of the policy document and to come back to me if there is anything I can usefully add.
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