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Secondly, I hear what the noble Lord says, but let us have one more go at this before I sit down. We have senior judges within the Tribunals Service who are used to hearing judicial reviews. They are obviously a critical group. We were seeking to consider the additional expertise that might be available on, for example, tax and social security matters, where the issues under debate would fall to those people’s expertise at an appropriate level. The only disagreement between us is that I have not designated that as a particular category, because I felt the High Court should determine if it felt it was appropriate to transfer or not.

I am always anxious to avoid getting to the point where the Opposition feel the need to call votes. I am happy to have another conversation. There may be another way I can think through the description of this that would satisfy the noble Lord, and if I can achieve that, I would be pleased to.

Lord Kingsland: I see no difficulty in a High Court judge sitting with another judge who is an expert in a particularly complex technical area. That would be quite understandable. In my submission, however, it flies in the face of the constitutional history of judicial review, the nature of the prerogative writs and the nature of the decision-making of the administrative court. It would be entirely inappropriate to have anyone other than a High Court judge dealing with those matters in the upper tribunal. The Minister could have the best of both worlds by having a technical expert sitting with a High Court judge. On the issue of the High Court judge, however, I must remain quite unrepentant.

Clause 15 agreed to.

Clauses 16 and 17 agreed to.

Clause 18 [Limits of jurisdiction under section 15(1)]:

Lord Maclennan of Rogart moved Amendment No. 55:

The noble Lord said: This amendment is, candidly, intended to allow the Minister to explain the purposes behind the provision that the exercise of the upper tribunal’s judicial review jurisdiction can be countenanced only if this prior designated direction has been given under the Constitutional Reform Act. It would be helpful to know what the circumstances are in which the Government intend such arrangements to be made and the extent to which that will be a rolling process, giving consideration to new circumstances as they may arise. These three conditions are spelt out as cumulatively required—all three must be satisfied. The first two are transparent, but the purpose behind the third is not obvious in the Bill. I beg to move.

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5.45 pm

Baroness Ashton of Upholland: I am grateful to the noble Lord for allowing us to return to this matter. I am not sure that I can answer his question in the manner he would wish as the point behind this is to enable the Lord Chancellor and the Lord Chief Justice—the Lord Chief Justice getting the agreement of the Lord Chancellor—to decide the class of case for which the upper tribunal has sole responsibility, and for the High Court to decide cases as they arise. Again, in setting up the service, we seek to define—and this matter will obviously be the subject of debate and discussion—in primary legislation the methodology we would use. We think that in the way we have designed the provision we would be able to designate appropriately. I am not sure that I can give the noble Lord the detail that he probably deserves at this point.

I will see whether I can get more detail on this matter. I will write to the noble Lord and copy that correspondence to the Members of the Committee. That will enable us to have a proper discussion about it. At this stage we have a skeleton of what that might be rather than the detail. The noble Lord is quite reasonable to want to be able to demonstrate, for example, what might be covered within that legislation and the cases which we think may rightly be within the upper tribunal’s remit and those which would need to be thought about separately. I apologise that I cannot be more specific about this point, but I would like the noble Lord to ensure that we discuss the matter further.

Lord Maclennan of Rogart: I am most grateful to the Minister for that undertaking. I very much look forward to reading what she writes and circulates to the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clauses 19 to 21 agreed to.

Clause 22 [Tribunal Procedure Rules]:

Lord Kingsland moved Amendment No. 56:

“( ) that the interests of justice are achieved,”

The noble Lord said: This is a modest point, even by the standards of some of the points that I have made so far. It concerns the powers to make tribunal procedural rules. The noble Baroness will see that a number of categories are set out in Clause 22(4)(a) to (d). We suggest that these could be strengthened by adding the expression “achievement of the interests of justice”. I imagine that the noble Baroness will say to me, “Of course that is one of the things that is either comprised in the expression ‘accessible and fair’ or plainly underlies all the other rules”. I submit that it would be helpful to have that expression in the Bill. I beg to move.

Baroness Ashton of Upholland: My speaking note says:

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My briefing note says:

I do not know whether I can accept the amendment just like that, as I do not know whether there is a parliamentary drafting point. I need to ensure that the noble Lord is not adding in something that I am not sure about—not that he would, of course. However, on the face of what he said I do not see a problem. Can I take the issue away and just check there isn’t something funny?

Lord Clinton-Davis: Before my noble friend sits down, does she not agree that this amendment is also the subject, invariably, of appealing against the decision involved? All cases must be judged by this criterion. In all cases before courts and tribunals the interests of justices must be achieved. So why is she taking the amendment away?

Baroness Ashton of Upholland: I am only taking it away because I did not clear its acceptance. I had not heard what the noble Lord, Lord Kingsland, had to say until now. I am not taking it away with a view to doing anything strange with it; it is simply that the rules of the game are that before I accept something on the hoof, which is what I appear to be about to do, I need to check that I have not added anything in by accident. I do not think that the noble Lord, Lord Kingsland, will mind if I do this and I hope that my noble friend does not mind. I am not seeking to wriggle in any way, shape or form; I merely need to be absolutely certain.

The argument against putting-in the words in the amendment is that it is inherent in all the things that tribunals do, which I think noble Lords accept. There is no suggestion that we need this provision because it is not there. I think that what the noble Lord, Lord Kingsland, is saying is that sometimes declaratory words can be important.

Lord Clinton-Davis: While my noble friend is looking at that matter, will she also confirm that Amendment No. 58 is also necessary? I think that it is. The European Convention on Human Rights is overarching, is it not?

Baroness Ashton of Upholland: This is why I should not do things on the hoof, is it not? I immediately find myself in a different place.

Lord Kingsland: This is partly my fault. I have just realised that Amendments Nos. 57 and 58 are in the same group as Amendment No. 56, and I neglected to speak to them. So I think I am the source of the noble Baroness’s confusion, for which I apologise.

I will quickly speak to those two amendments to allow the noble Baroness to come back on the whole group. I am in two minds about whether it is necessary to put Amendment No. 58 in the Bill because I think that it is self-evident that the Government have to meet that criterion anyway. It would be helpful if she could confirm that.

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On Amendment No. 57, the noble Baroness will be aware that in certain tribunals legal aid is already available—for example, the Lands Tribunal and two or three others. But it is not generally available in tribunals and she will be alert to the fact that institutions such as the Law Society have been pressing for some time for a general provision to allow legal aid to be available in front of tribunals in certain circumstances.

The Government are currently wrestling with a number of problems concerning legal aid. I am aware that it is a highly sensitive area and that there may be some reticence in the Lord Chancellor’s Department about giving any sort of undertakings about legal aid at the Dispatch Box. There seems to be some merit in having a clause— even if the criteria are extremely strict—which would allow legal aid in exceptional cases in all tribunal cases. I would be interested to know the Government’s formal view on that point.

Lord Clinton-Davis: As I said at Second Reading, I support the view that legal aid should be available under certain circumstances. This amendment tries—I do not know whether in law it succeeds—to encompass that particular point. I find it very difficult to accept the view that legal aid should be somehow hedged, somehow not available, or available under circumscribed circumstances. After all, for the individual, the matter before the tribunal is of the utmost importance and it should not be lightly discarded. I am not saying—nor does the amendment—that legal aid should automatically apply. Nobody is arguing that point. The judge of the first-tier tribunal should be able to express the view that the tribunal would be helped by the provision of legal aid.

I find it very difficult to accept the view that in a very small minority of cases legal aid would be available. As I say, it should be for the chairman of the first-tier tribunal to express a view. This view is extremely important. Legal aid can be of enormous help to a tribunal when it comes to arguing a point of law. That help would certainly not be available without an experienced lawyer. It is incumbent on my noble friend to express a view today, which I hope complies with what I have said. If not, I hope that she will be able to express a view that I am wrong. All in all, the issue is of vital importance. That is why I have stood up to express forcefully this point of view. I will certainly return to the point on Report.

Lord Newton of Braintree: I hope that the Minister will give serious consideration to what the noble Lord, Lord Clinton-Davis, has said. I would not wish to disguise from the Committee the fact that, like other Members, I have notes in this case from the people at the Council on Tribunals. Mine state:

says he with some nervousness in this particular gathering. It is often the case that advice bodies such as the citizens advice bureaux are more appropriate for the sort of advice or assistance that is needed. I would not want this provision confined to lawyers. The question

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is on adequate provision for those who clearly need some additional help in presenting their case. One of the few things that I and the Council on Tribunals differed from Andrew Leggatt on was his general assumption—not a universal, but a fairly wide assumption—that people could be expected always to present their own cases to tribunals. I am sure that that is true in many cases, with perhaps relatively modest assistance, but it depends much more on the person rather than the subject matter of the tribunal. There is need for flexibility here, which, I think, is what the noble Lord, Lord Clinton-Davis, is calling for.

Lord Clinton-Davis: Issues of complexity can also arise, which the noble Lord has not dealt with. That is very important as well.

Lord Newton of Braintree: I accept that. I am certainly not trying to pick a fight with the noble Lord, Lord Clinton-Davis. I was trying to be helpful and friendly towards him, while at the same time gently saying to the Minister that I think that many people are a little concerned about whether there is sufficient help for those who cannot be expected to look after themselves, whether because of complexity or because they have not had as good an education as we would wish everybody to have, or because of other personal circumstances. There is an issue here that is also raised by the amendment of the noble Lord, Lord Maclennan, which has virtually been brought into this debate now. I hope that the Minister will give further consideration to this between now and Report. I say no more than that.

The only other thing that I will say while on my feet is that I urge the Minister on in her constructive approach to my noble friend Lord Kingsland in respect of the business of the interests of justice being achieved.

6 pm

Of course we can hope that in all these proceedings, whether in courts or in tribunals, the aim is to serve the interests of justice; but I share the view that there could be some merit in making this clear, not least because the clause twice refers to the desirability of speed and efficiency. We could also assume that that should be taken for granted in all cases, but there can sometimes be a tension between speed and efficiency and the interests of justice. If you are going to make declaratory remarks about one, you might just as well make declaratory remarks about the other.

Lord Maclennan of Rogart: I shall revert briefly to Amendment No. 59 in my name, to which the noble Lord, Lord Newton, has just referred, and will combine it with specific inquiry into the interaction between Clause 22 and the procedures described in Clause 28. I would be grateful if the Minister could enlarge a little on how the Government practically propose to give effect to their intentions towards the particularly needy sections of the community. The cost and expenses provisions of Clause 28 are subject to the tribunal procedure rules, which we are considering under Clause 22.

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I am concerned about whether the unfettered power to award costs in any tribunal conferred by Clause 28(1) could be lawfully cut down by a tribunal procedure rule issued under Clause 22. Is it intended that the rules are wide enough lawfully to enable a whole class of tribunals to be exempt from the general rule in Clause 28(1)? If such an exemption is to be made possible, will the Minister use this opportunity to amplify what she said to me on Second Reading about the Government’s intention that social security and child support appeals should be exempt? As she knows, because she has been engaged in correspondence about this, this matter is exercising the Child Poverty Action Group. This is the point in our deliberations when we have to consider whether these rules should make specific provision to take account of these concerns. I say this to amplify the general concerns that have been expressed by the noble Lord, Lord Clinton-Davis, and other Members of this Committee.

Baroness Ashton of Upholland: I begin by saying to the noble Lord, Lord Kingsland, that it is always helpful when the whole group is spoken to rather than bits of it, because it helps me enormously to not stray too far. I shall deal with the different issues that have been raised first.

On the interests of justice, who am I not to do what the noble Lord, Lord Newton, tells me to do? I hold my hand up and say that I do not have a problem; I am simply not agreeing to the words for the reasons that I have given. I need to check that they are in the right place and that they do the right thing. I shall bring this matter back, or even better I shall give it to the noble Lord, Lord Kingsland, to bring back formally, as it is his amendment. I take the point. It is resisted only because we think it is inherent in what is said, but I am one for occasional declaratory remarks, so I am quite comfortable with looking at that properly.

Legal aid is a really interesting and, at times, quite difficult subject when it comes to tribunals because, on the one hand, I am very keen that we do not use lawyers, however wonderful they are, if we do not need to in tribunals. One of the great joys of much of the work of the tribunals has been that the legal profession has not needed to be involved in them. I mean no disrespect to the legal profession: rather, it is because the nature of the Tribunals Service has been different. I am therefore always reluctant to make a general statement that somehow implies that we have turned the tribunals into a fully fledged traditional court system. That is my first point of resistance.

The Committee knows that my noble and learned friend the Lord Chancellor is grappling with the issue underlying this—we are grateful to the noble Lord, Lord Carter, for the work that he has done on the review—in trying to make sure that legal aid is available in the civil system. There is a finite pot of money. Everyone in government knows that you cannot simply make it open ended. Therefore, one has to think carefully about how it is used.

At Second Reading my noble and learned friend made it clear that he was concerned about this issue. I believe that my noble friend Lord Clinton-Davis

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asked my noble and learned friend about the matter at that stage. Therefore, for those reasons I am not keen on including the provision in the way that the Committee wants. I do not want to set hares running that I cannot fulfil as regards what is meant by the phrases that have been suggested. I do not want to imply that what we are discussing is necessarily the norm in all tribunals. However, my noble and learned friend undertook to look at the matter. He has no objection in principle to looking at how tribunals can improve the way they deal with legal aid.

The point about the support that people need is just as relevant. I refer to the advice and support that people receive when they are taking part in tribunals. They may be very familiar with the tribunal system or it may be a quite new experience for them. However, we need to do a lot more in terms of providing support. Often it is not a question of providing support of a legal nature but of providing it to enable someone to understand the proceedings. The relevant people may need someone to act as a mentor to help them. We need to ensure that we look at that. We are committed to making the Tribunals Service user-friendly and easily understood, not daunting and to ensuring that people get justice because they understand what is happening. On occasion, that will require the provision of legal expertise.

Lord Clinton-Davis: The whole impression that has been given so far is that legal aid should not be given under any account unless the circumstances of the person concerned are so serious that there is no alternative but to give it. That is quite wrong. Members of the Committee opposite have suggested that legal aid should be granted where—I stress “where”—it can be of value to the tribunal. Is that suggestion obnoxious to the Government?

Baroness Ashton of Upholland: It is not obnoxious at all. My noble friend’s views on the matter do not differ greatly from mine or those of the Government. I was trying to make three points. First, that what we value in tribunals in many cases is that it is not necessary for lawyers to participate because people are able to represent themselves. People can use the tribunal as an informal procedure or involve other professionals who can give them advice. Secondly, as my noble friend knows, we are reviewing the legal aid system and looking at the balance between criminal and civil cases, including the use of tribunals, and the way in which we can provide appropriate support where it is needed. I resisted defining that in the Bill because we are a considerable way from reaching conclusions on that. When he talked about the legal aid system at Second Reading, my noble and learned friend made it clear that he understood and took on board the points that had been made. Thirdly, I also want to ensure that when we think about money and funding, of which legal aid is a big part, we do not forget that the quality of the advice and support that people get as they enter the world of the Tribunals Service is also very important. I want to make sure that we note that.

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Lord Clinton-Davis: I do not know whether what is being expressed here is in the right terms or the wrong terms, but it should be left to the chairman of the tribunal concerned to say, “It would be of advantage to us if legal aid were to be available”, because, in that way, the case that the person wants to advance can be articulated meticulously and legalistically and take account of all the complexities involved. What is wrong with that?

Baroness Ashton of Upholland: What is wrong with that is that I am not in a position to give an open-ended commitment that in all circumstances the chairman of a tribunal could indicate that and thereby grant legal aid. The Committee will know from the Criminal Defence Service Act and the work that we have been doing that we are trying to think systematically of the circumstances in which it would operate. I could not conceive of giving that kind of commitment. If my noble friend reflects on the work that we are doing around legal aid, I do not think that he would expect me to.

I am trying to draw attention to the fact that the whole purpose behind the review of legal aid, which was instigated by my noble and learned friend and conducted by the noble Lord, Lord Carter, was to look at how best to use this finite pot of money to support access to justice across the system and to recognise the weighting that currently exists in criminal and civil cases. My noble and learned friend has said on a number of occasions that he is mindful of the position of the tribunal system within that. I am merely trying to say that I cannot move from that position to determining in the Bill that person X can be granted legal aid of an undefined amount in an unspecified set of circumstances. That would be completely beyond my remit and would undermine the review on legal aid.

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