APPENDIX 1: CORRESPONDENCE WITH THE
LORD CHANCELLOR AND BARONESS ASHTON OF UPHOLLAND
Letter from the Chairman to the Lord Chancellor,
6 September 2006
As you know, the terms of reference of the Constitution
Committee, which I chair, require us "to examine the constitutional
implications of all public bills coming before the House; and
to keep under review the operation of the constitution."
In performing our scrutiny function, which includes consideration
of draft bills, we ask ourselves whether proposed legislation
raises issues of principle affecting a principal part of the constitution.
The subject matter of the draft Tribunals, Courts and Enforcement
Bill clearly does affect important constitutional arrangements,
most notably the administration of justice through tribunals (which
provides a system for accountability over government decisions
as well as practical remedies in particular cases), judicial review
and appointments of judges.
On more than one occasion in the recent past the
Committee has expressed disappointment that Government proposals
affecting important constitutional issues have not been published
in draft before formal introduction to Parliament. The current
draft bill is therefore welcome. What is less encouraging is your
Department's choice of the consultation period (25 July to 22
September 2006). As the Cabinet Office's Guide to Legislative
Practice makes clear, one of the main purposes of draft bills
is to elicit potential parliamentary objections (paragraph 18.4).
The draft of this bill was published on the same day that this
House rose for the summer recess and the consultation period ends
more than two weeks before the House resumes. As could readily
have been anticipated, this has prevented any effective scrutiny
and deliberation on the draft bill by the Committee. Our substantive
comments on the proposals will therefore have to wait until the
bill is introduced to the House. You may however find it helpful
if I were to provide a preliminary summary of three broad areas
of constitutional concern.
The first relates to the need to encourage diversity
in the range of persons available for selection for appointments
to the judiciary, which is now of course a statutory duty enshrined
in the Constitutional Reform Act 2005, and one that commands widespread
support. The policy of the draft bill, in clause 41 and schedule
10, to reduce the qualifying periods for eligibility for appointment
to a wide range of judicial posts from10 to 7 years, or 7 to 5
years, is of a different type. It is not obvious that allowing
people with less experience than is currently the case to be appointed
as judges is a satisfactory trade-off to achieve the goal of a
judiciary that is more reflective of the society it serves. Indeed,
I understand that the Judges' Council is opposed to this proposal
and fears that shortening the qualification period may have an
adverse effect on public perceptions of and confidence in the
judiciary. When the bill is introduced, I am sure the Committee
will wish to examine this aspect of the bill with care and weigh
up the competing arguments.
Secondly, the draft bill also introduces a number
of innovations in relation to judicial review of tribunal decisions,
including a judicial review role for the newly established Upper
Tribunal. When the bill comes before the Committee, we will be
concerned to ensure that these new arrangements do not have any
unintended impact on the robust upholding of the rule of law.
Thirdly, the consequences of asymmetric devolution
are apparent in the arrangements for the composition of and appointment
to the proposed Administrative Justice and Tribunals Council (in
schedule 7 to the draft bill). I note that while express provision
is made for the inclusion of the Scottish Public Services Ombudsman
in the Scottish Committee, and the Public Services Ombudsman for
Wales in the Welsh Committee of the AJTC, there appears to be
no guaranteed place for the Local Government Ombudsman (the Local
Commissioners for Administration in England) on the Council. I
am sure that the Committee will in due course consider any constitutional
issues arising from the Council's proposed composition and role.
Reply from the Lord Chancellor, 5 October 2006
Thank you for your letter of 6 September about the
constitutional implications of the Tribunals, Courts and Enforcement
Bill.
I am sorry that you feel that the time limit for
commenting on the Bill has prevented any effective scrutiny by
the Committee at this stage, and I am grateful that you have been
able to comment, notwithstanding that Parliament is in recess.
I had hoped to publish the Bill well before the summer recess,
as with the other two draft Bills I published this Session, but
this was not possible. While the formal deadline for comments
has now passed, if the Committee wishes to feed in any further
points on the drafting before the Bill is introduced to Parliament,
then I would of course be happy to consider them, time permitting.
On the preliminary points you have raised. I disagree
that reducing the qualifying periods for eligibility for appointment
to judicial office is a trade-off to achieve a more diverse judiciary
at the expense of the requisite experience for judicial office.
The current eligibility criteria, which merely require an applicant
for judicial office to have held rights of audience for a particular
period of time, do not provide a meaningful measure of experience
or expertise as there is no necessity to have exercised these
rights during that period.
The Bill introduces a requirement that a person with
a relevant qualification must also have gained legal experience
to be eligible for office. Requiring a candidate to have gained
real post-qualification experience in law in order to be come
eligible is a much better indicator of suitability and justifies
the reduction the qualifying time period. This, coupled with other
measures in the Bill, will in fact enable candidates with a wider
range of skills and experience, who have previously been excluded
from consideration, to apply for judicial office.
Ensuring that public confidence in the judiciary
is maintained is of critical importance, but there is no indication
that opening up judicial appointments to a wider range of applicants
would diminish this. Indeed extending eligibility and creating
a broader and more diverse pool of potential candidates is likely
to lead to a judiciary that is, and is perceived to be, more representative
and in touch with the society it serves.
Regardless of any changes to the statutory eligibility
requirements, all applicants will continue to be rigorously assessed
and have to meet the demanding criteria set by the Judicial Appointments
Commission in order to be recommended for appointment. There will
be no compromise on ensuring the existing high standards of our
judiciary are maintained.
I note your concerns about the provisions governing
judicial review of tribunal decisions. These provisions are designed
to give tribunal users the benefit of the specialist expertise
of the new Upper Tribunal in certain judicial review cases. This
will be limited to types of cases specified in a direction to
be made by the Lord Chief Justice of England and Wales, or where
the High Court orders the transfer of an individual case, because
it considers it just and convenient to do so. The idea for this
change came from the judiciary and it does not in any way reduce
the availability of judicial review.
On your final point about the composition of the
Administrative Justice and Tribunals Council, I am keen to keep
the size of the new Council manageable and to ensure that its
composition means that members can devote a reasonable amount
of their time to its work. I do not want to increase the ex
officio membership any further for that reason. I have in
the past year appointed a recently-retired Local Government Ombudsman
to the Council on Tribunals and I believe that will prove to be
a more effective way of bringing that kind of expertise to both
the existing and the future Council.
I hope this letter allays your concerns. But if the
Clerk to your Committee would like further information on these
or any other points raised by the Bill, then members from the
Bill Team stand ready to assist.
Letter from the Chairman to Baroness Ashton of Upholland,
23 November 2006
On behalf of the Committee, which I chair, in September
I wrote to the Lord Chancellor about the draft Tribunals, Courts
and Enforcement Bill; our exchange of correspondence was published
in the Committee's Sixteenth Report: Final Progress Report (2005-06,
HL Paper 255, Appendix 3).
At its meeting on 22 November, the Committee was
able to consider the bill in the form it was introduced to the
House on 16 November and have asked me to write to you to seek
clarification on several aspects. I should welcome your views
on them, if possible before Second Reading of the bill next week.
I should perhaps add that a copy of this letter will be put on
our website in the next day or so. Naturally, so too will your
reply when it is received.
Outcome of the consultation exercise on the draft
bill
The first point is whether the Department for Constitutional
Affairs proposes to publish an analysis of the responses to the
consultation on the draft bill, carried out over the summer. In
my letter to the Lord Chancellor about the draft bill, I expressed
concern that publication of a draft bill during the parliamentary
summer recess undermined one of the main purposes of draft bills,
namely to elicit potential objections to the bill from within
Parliament. That is now a matter for the past, though the Committee
hopes that lessons have been learnt. In the immediate future,
the Committee's concern is for parliamentary consideration of
the bill to be enhanced by timely access to information about
the responses to the consultation exercise. You will not need
to be reminded that one of the six consultation criteria laid
out in the Code of Practice on Consultation is "Give
feedback regarding the responses received and how the consultation
process influenced the policy".
Delay in publishing Explanatory Notes
I would also register disappointment that the Explanatory
Notes for the bill were not published on the parliamentary website,
or that of your Department, on the day the bill was published.
Indeed, they were not published until some four days after the
bill. Our Committee seeks to report to the House before a bill's
Second Reading and so time is of the essence. Access to Explanatory
Notes is a vital part of the scrutiny process. Again, you will
not need to be reminded that the Guide to Legislative Procedures
states that Explanatory Notes "should be published at the
same time as Bills" (p 35).
Safeguards relating to the use of ADR
We seek clarification on provision in the bill relating
to alternative dispute resolution (ADR) procedures associated
with tribunal appeals. In several ministerial speeches and departmental
publications, the DCA has emphasised the importance that will
be attached to the use of mediation, early neutral evaluation,
conciliation and other techniques to resolve disputes between
the citizen and public authorities. The White Paper Transforming
Public Services: Complaints, Redress and Tribunals described
an ambition "to re-engineer processes radically so that just
solutions can be found without formal hearings at all" (para
6.20). While we have no doubt that ADR has a useful role to play
as an adjunct to formal tribunal proceedings, citizens are entitled
to assurances that such procedures will be fair, that they will
not hamper the right to a formal hearing and that they take place
within an appropriate constitutional setting.
There seemed much to commend about clause 23 of the
draft bill which made express provision for mediation, including
the following principles:
"(a) mediation in matters in dispute between
parties is to take place only by agreement between those parties;
(b) where parties to proceedings fail to mediate, or where mediation
between parties to proceedings fails to resolve disputed matters,
the failure is not to affect the outcome of the proceedings".
Any equivalent of clause 23 of the draft bill appears
to have been removed from the bill as introduced to the House.
In its place is a terse reference in clause 2(3)(d) to the effect
that the Senior President of Tribunals must have regard to "the
need to develop innovative methods for resolving disputes that
are of a type that may be brought before tribunals". We would
like to know why clause 23 of the draft bill was removed from
the bill as introduced and whether there may be some circumstances
in which mediation or other ADR procedures may be compulsory or
a failure to use ADR made subject to sanction.
Delegation of functions by the Senior President
of Tribunals
A further aspect of the bill on which we would welcome
clarification is clause 8(1)(b), which provides that the Senior
President of Tribunals may delegate "any function" to
"staff". On its face, this appears to be a surprisingly
broad power to delegate and we would welcome an explanation as
to what functions may appropriately be delegated to staff (as
opposed to a judge under clause 8(1)(a)). The Senior President
of Tribunals has a number of functions which seem inherently unsuited
to delegation to staff, for example laying before Parliament written
representations (schedule 1, para 13).
Reply from Baroness Ashton of Upholland, 28 November
2006
Thank you for your letter of 23 November and to the
Committee for taking the time to consider the Bill.
Outcome of the consultation exercise on the draft
Bill
The Department has not published an analysis of the
responses to the draft Bill because publication was not part of
a formal consultation exercise. We simply published the Bill and
invited comments on it. (The reasoning for this is that we had
already consulted extensively on the underlying policy in the
Bill through a series of White Papers and consultation papers.)
In view of this, we did not inform respondents that
an analysis of their replies would be published and would need
to seek their approval before doing so.
Delay in publishing the Explanatory Notes
I am sorry that it was not possible to publish the
Explanatory Notes on the same day as the Bill. I introduced the
Bill in the afternoon of Thursday 16 November. It was published
on Friday 17 November. The Explanatory Notes were published on
Tuesday 21 November. I hope that this did not hamper the Committee's
work in any way. Unfortunately in the case of this Bill, there
was a certain amount of last-minute drafting and I am sure you
appreciate that Explanatory Notes cannot be finalised until the
text is finalised.
Safeguards relating to the use of ADR
On the substantive points you raise on the Bill,
the clause on mediation (which was clause 23 of the draft Bill)
did not appear in the Bill as introduced on 16 November because
we concluded that it was unnecessary, and might have given the
impression that existing mediation schemes in the courts and tribunals
needed some kind of statutory cover. Tribunal members and staff
(like their counterparts in the courts) do not need express statutory
power to mediate disputes. Clause 23 was mainly about restrictions
and principles and on reflection we do not think it is necessary
or desirable for Government and Parliament to be instructing tribunals
as to what they should or should not do in this area in order
for the them to be fair to its users.
I note the Committee's view that "… ADR
has a useful role to play as an adjunct to formal tribunal proceedings,
[but] citizens are entitled to assurances that such procedures
will be fair, that they will not hamper the right to a formal
hearing and that they take place within an appropriate constitutional
setting." My starting point is different. In the tribunal
context, I do not see "ADR" as an "adjunct"
to formal proceedings. The tribunals have a duty to be accessible.
Formal proceedings may well hamper that objective. I see "ADR"
not as an alternative but as potential ways of providing justice
in a more practical and effective manner, although of course the
fundamentals of access to justice, such as the right to a fair
hearing under article 6 of the ECHR, cannot be affected.
Delegation of functions by the Senior President
of Tribunals
You also asked for clarification of clause 8(1)(b),
which allows the Senior President to delegate any of his functions
to a member of staff. We anticipate that the Senior President
will work closely with the Tribunals Service (as the Senior President
designate does now) and it is for the Senior President to determine
which functions he or she chooses to delegate. I will draw your
observations to his attention.
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