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Grand Committee

Thursday, 14 December 2006.

The Committee met at two o’clock.

[The Deputy Chairman of Committees (Viscount Allenby of Megiddo) in the Chair.]

Tribunals, Courts and Enforcement Bill [HL]

(Second Day)

Clause 23 [Practice directions]:

Lord Kingsland moved Amendment No. 61:

The noble Lord said: Clause 23(1) states:

in certain circumstances. My amendment relates to subsection (6), which states:

Members of the Committee will have observed that, under subsections (4) and (5), the Senior President of Tribunals can give directions only with the approval of the noble and learned Lord the Lord Chancellor. However, in subsection (6) there is no such qualification.

Under subsection (6)(a), the Senior President of Tribunals is entitled to give directions on,

without any reference to the noble and learned Lord the Lord Chancellor. Generally speaking, we have been wary of the extension of the Lord Chancellor’s powers in the Bill. However, we wonder whether in this case the scope of the Senior President of Tribunals is cast too widely. Of course, it depends to some extent what the statutory intention is behind his power to give directions on,

On the face of it, it looks a very wide discretion indeed: it looks as though the senior president can effectively direct tribunals on matters of law, which ought—in principle, at any rate—to be within their sole compass.

The amendment is really an amalgam of a genuine amendment and, plainly, an element of probing, because we are not exactly sure what the intention of the legislator is. I beg to move.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I am grateful to the noble Lord. I made sure that I had seen some examples of practice directions; as he knows, it is important to be clear what we are trying to do. He is right in his interpretation of the clause—that we seek to ensure that the role of the senior president is well defined.

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The view that we have taken is from the Constitutional Reform Act 2005. The judicial-related functions transferred to the Lord Chief Justice, and it is not appropriate for the Lord Chancellor to be involved in the making of practice directions concerning the interpretation of law or the making of decisions by tribunal members. Those rest firmly with the judiciary, in this case the Senior President of Tribunals. It is part of making sure that we do nothing that could undermine the independence of the judiciary.

The noble Lord rightly recognises that, for other practice directions, the Lord Chancellor’s authority would be required. That is simply because there are resource and staffing implications for which the Lord Chancellor is responsible. A practice direction on the listing of cases would be an example. Listing is a judicial function but much of the work is carried out by staff, and the Lord Chancellor has a legitimate interest in how staff are used and in the resource implications. That is how it is done.

I take what the noble Lord says about the breadth, but nothing that I have seen suggests to me that it is particularly unusual or inappropriate. Perhaps I may think further to see whether I can add anything to that for the noble Lord between now and Report, but the provision is not designed to do anything other than differentiate and to do what has been part of what the Lord Chief Justice has done since the Constitutional Reform Act. In this case, the senior president will consider the issues as the head of the Tribunals Service.

Lord Kingsland: I am most grateful for the noble Baroness’s reassuring words. However, in the light of what she said, she might consider some tightening up of the drafting of subsection (6). My worry is that the present draft would introduce a blurring at the edges between a practice direction on one hand, which indicates the methodology for applying or interpreting the law, and, on the other, being in danger of trespassing on the substance of the application or interpretation. I do not want the Bill to cast any doubt on the fact that the senior president, eminent though he or she may be, cannot stray into what is properly the territory of—

Baroness Butler-Sloss: May I interrupt? I used to give practice direction when I was President of the Family Division. There is a clear understanding by judges, particularly judges who are head of a division, as the president of the upper tribunal will be, as to the distinction between substance, which is not the matter of a practice direction, and procedure, which is eminently the matter. I feel confident that the president—I think that the first president will be a Court of Appeal judge—will totally understand that distinction. If he did not, I have no doubt that he would consult either the President of the Queen’s Bench Division or the Lord Chief Justice.

Lord Kingsland: The noble Baroness has displayed her confidence in the draft on the basis of her experience. The Committee must give very great weight to what she has said. However, I think that the

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Minister has got the point. If she is sufficiently reassured by what she has heard in the debate, she will no doubt tell me so, but we thought that it was at least a point worth raising by amendment.

Baroness Ashton of Upholland: Of course I am pleased that the noble Lord has raised the point. Lord Justice Carnwath, as the noble Baroness will know, is a very eminent judge. I am sure that what she said would apply, but of course the noble Lord is right to raise issues. I will write to him if there is anything that we need to add to what the noble Baroness said.

Lord Kingsland: In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clauses 24 to 35 agreed to.

Schedule 6 agreed to.

Clauses 36 to 42 agreed to.

Schedule 7 [Administrative Justice and Tribunals Council]:

Lord Kingsland moved Amendment No. 62:

(a) that the member has been absent from meetings of the Council for a period longer than 6 months without permission,(b) that the member has been convicted of a criminal offence, or(c) that the member is otherwise unstable or unfit to discharge the functions of a member of the Council.”

The noble Lord said: The amendment deals with the section dedicated to the term of office of appointed members of the council. Paragraph 3(5) states:

The expression to which I wish to address the Minister’s attention is “or without cause”. As she will see, we have suggested an alternative draft setting out what we consider to be the appropriate criteria to which the noble and learned Lord the Lord Chancellor ought to address himself. In our view, “without cause” is too vague and too ill defined in the context of what is a very important decision. I beg to move.

Lord Newton of Braintree: I should make it clear that what I am about to say is not said as chairman of the Council on Tribunals, an interest I have repeatedly declared in these proceedings, but simply as a Member of the Committee. Regardless of the drafting of the substitute proposition, I find it a little difficult to sign up to the proposition that people can be dismissed “without cause”—which, in plain English, apparently means “for no reason”. There needs to be a good explanation before the Committee can be expected to sign up to that proposition.

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Baroness Ashton of Upholland: I am grateful to the noble Lords, Lord Kingsland and Lord Newton, for raising this issue. We have based what is in the Bill on the Cabinet Office guidance on the establishment of non-departmental public bodies. As the noble Lord, Lord Newton, knows, the Administrative Justice and Tribunals Council will be an advisory NDPB, as was the Council on Tribunals.

Let me say out loud, as it were, what the guidance says. It was published in 2006 and states:

The purpose behind paragraph 3(5) of Schedule 7 is to provide for the removal of appointees on the grounds of inability or misbehaviour. I am confident that this formulation is wide enough to cover the point that has been raised. Indeed, noble Lords have not queried it in that sense.

The guidance goes on to state:

I reiterate that the Administrative Justice and Tribunals Council does not fall into the category of a tribunal NDPB—it will be an advisory NDPB—so, in that sense, it is not excluded from the guidance and responding to it. That is why the provision concerning removal without cause is in the Bill.

The Committee will know that this is about enabling us to remove people if they are not performing their functions adequately. Even though the noble Lords, Lord Kingsland and Lord Newton, have not suggested this, I hasten to add, very firmly, that it is not meant to interfere with the independence of the Administrative Justice and Tribunals Council.

Having said that, I see the point that has been raised and I would like, if I might, to go away and reconsider whether we need those words in the Bill. If noble Lords will allow me to discuss it with those who have given me the guidance, to make sure that I can do something about it, I should like to be given the opportunity to do so.

Lord Kingsland: In those circumstances I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Schedule 7 shall stand part of the Bill?

Lord Newton of Braintree: I know it is unusual but I was told that, if I gave notice to the Deputy Chairman, the Clerk and the Minister, it would be in order to raise one or two points on Schedule 7 stand part. The reason I am doing it in this slightly unusual way—for which I ought perhaps to apologise—is that, as I strongly support both Clause 42 and Schedule 7,

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it would be too artificial to put down a blocking motion merely in order to make a point or two. I have indicated the two main points that I want to raise with the Minister. I re-declare my interest, in view of the direct relationship between my present position as chairman of the Council on Tribunals and these provisions.

2.15 pm

The first point relates to membership of the council. I understand that the form of the Bill is revolution: in Clause 43 the Council on Tribunals is out; and in Clause 42 the Administrative Justice and Tribunals Council is in. But the practical understanding—this is the point about which I would like to get some words on the record from the Minister—is that this is not revolution but evolution, and that the members of the council at the time of the change will in general be grandfathered through for their terms of appointment on the old council to the new council. I understand entirely that it is not appropriate to have that provision in the Bill. I am told that there may be something about it lurking in the regulatory impact assessment. But, in Committee, I would like the Minister to reassure my members, who have been very supportive, that they have not been turkeys voting for Christmas, if I may put it in that way. That would be extremely helpful.

The second point, which is a bit more contentious, is more substantive. It relates to the part of paragraph 14 of Schedule 7 which gives the council some duties. Paragraph 14(1)(e) has the duty to,

That reflects one of the few areas where there was some marginal disagreement between the council and those advising the Minister in the department. We thought that it was not unreasonable for the council to be able to commission or conduct research, as distinct from simply proposing research. I continue to believe that that is consistent with the overall general duties put on the new council by the Bill.

I do not want to make a meal out of this. This is not a bid for money to turn this into a sort of great academic institution; it is really a bid for slightly greater flexibility in how we choose to use resources—whatever a generous Minister makes available to us in the future—at a time when I know the Minister is not feeling that generous. I am not trying to take cash out of her pocket, but simply to get reasonable flexibility for the future. I would like to have her comments on that. I take the view—it is the sort of view I would have taken when I was in positions like that of the Minister—that there can often be advantages in having things done by an independent body rather than by the department itself, so I can see some advantages in this for Ministers as well. I leave that thought with her.

I have a couple of other points that are a bit more like bouncers, so if the Minister does not want to say anything I shall quite understand. First, at paragraph 23 of Schedule 7 there is a provision about the rights of members of the council to attend proceedings. Occasionally there has been dispute about whether members of the Council on Tribunals have the right

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to attend deliberations, as distinct from public parts of the hearing. I think that that right is covered, or intended to be covered, by the drafting. I would just like, if possible—it does not have to be this afternoon—some clarification that that is the intention, as occasionally there have been tribunals where this has become an issue.

Lastly, has the noble Baroness given any thought—given the speed with which the Bill is progressing and the optimism she therefore has about its relatively early passage—to the time of the change from one council to another?

Baroness Ashton of Upholland: I am very grateful for those comments, including the bouncers. I am grateful to the noble Lord for advising me of at least the first two points that he wished to make, although I hope he realises that I would have answered them anyway, without the briefing.

I describe what is happening as radical evolution. The noble Lord is right to ask what will happen to the members of the Council on Tribunals. They have done an outstanding job. I pay tribute to both the noble Lord and the members of the council. My message to them is that they do not escape that easily. We want to ensure that we do not lose continuity of membership or the expertise that they have. As the noble Lord rightly said, the measure does not contain provisions for the transition because we do not need them; we can do it administratively. But, for the record, those who are members of the Council on Tribunals on the day that it is abolished will become members of the Administrative Justice and Tribunals Council and serve out the remainder of their term of office in the new body. New members of the Council on Tribunals—that is, those who are recruited between now and the creation of the AJTC—will be appointed to the Council on Tribunals in the expectation that their term of office will cover a period as a Council on Tribunals member and a period as an AJTC member. I understand that the Office of the Commissioner for Public Appointments is happy with this approach. I hope that the noble Lord is, too. The answer to the bouncer of a second question is that we are looking at June next year to implement all this.

The noble Lord was kind enough to advise me that he intended to comment on research. We do not want the council to spend time developing a massive in-house research capacity. In any event I do not think that is in the noble Lord’s mind. As he rightly says, there is no money available for that. I completely agree with him that it is often hugely relevant and important for independent bodies, especially those with expertise in a particular field, to do research. We have sought to ensure in the Bill that the council informs us of areas where it thinks that research will be needed. However, there is absolutely nothing to stop the council itself commissioning research. I accept that that would confer advantages on the council and the Government. There is no question but that the council could do other than bid for a share of the departmental research budget if it so wished. I hope that I have fully answered that question.

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On the first bouncer question regarding attendance as observers and deliberations, the answer is yes. That is intended to be included.

Lord Newton of Braintree: I thank the Minister. I could hardly have asked for more, so I shall simply sit down and shut up.

Schedule 7 agreed to.

Clauses 43 to 45 agreed to.

Schedules 8 and 9 agreed to.

Clause 46 [Orders and regulations under Part 1: supplemental and procedural provisions]:

Baroness Ashton of Upholland moved Amendment No. 64:

“(aa) an order under paragraph 15 of Schedule 4;”

On Question, amendment agreed to.

Clause 46, as amended, agreed to.

Clause 47 [Judicial appointments: “judicial-appointment eligibility condition”]:

[Amendments Nos. 65 and 66 not moved.]

On Question, Whether Clause 47 shall stand part of the Bill?

Baroness Butler-Sloss: I am not content that Clause 47 should stand part. Yet again I declare an interest as a former judge. I am concerned about Clause 47(4)(b), together with Clause 48(1); that is to say, the purpose of a relevant qualification, if the person holds a qualification that under Clause 48(1) is a relevant qualification in relation to the office. This, as I understand it, is intended to improve diversity.

I thank the Minister for her very helpful letter on the concern that I had expressed at an earlier stage. I strongly support diversity. I am a product of it, because I was one of the very few women who got to the higher realms of the judiciary. I think I am still a first in certain judicial roles. However, I have a concern about qualifications. Let us take the example of the legal executive. It is an excellent idea that legal executives should have the right to become chairmen of tribunals and, indeed, district judges. My concern, however, is this. It has been thought for some time by many of us who have been judges that it is desirable that those who have an appointment at one level should have an opportunity for promotion. Again, I am a product of that. I moved from being a divorce registrar to a divorce judge to a High Court judge. I can tell noble Lords that the gap is enormous from one post to the next because the intellectual and decision-making requirements for being a High Court judge are completely different from those for someone who sits as a district judge or chairman of a tribunal. It is therefore perfectly possible for a legal executive, having gone on to the Bench quite properly as a chairman, to have displayed characteristics that make one think that perhaps he or she should be promoted. But the training of a legal executive is not of the same calibre as that of either a barrister or a solicitor. Although that candidate for a higher post may have

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extremely good qualifications on the ground, he will not have had the training necessary either for a circuit judge these days or, even more so, for a High Court judge.

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