Tribunals, Courts and Enforcement Bill

Public Bill Committee, 15 March 2007.

Joan Humble (Labour, Blackpool North and Fleetwood)

I remind the Committee that there is a money resolution in connection with this Bill, copies of which are available in the room. I should also like to remind hon. Members that adequate notice shouldbe given of amendments. As a general rule, I and my co-Chairman do not intend to call starred amendments, including any starred amendments that are introduced for an afternoon sitting of the Committee. Finally, hon. Members may remove their jackets, as the sun is shining.

Vera Baird (Labour, Redcar)

I beg to move,

That—

(1) in addition to its first meeting on Thursday 15th March at 9.00 a.m., the Committee shall meet on—

(a) Thursday 15th March at 1.00 p.m.,

(b) Tuesday 20th March at 10.45 a.m. and 4.00 p.m.,

(c) Thursday 22nd March at 9.00 a.m. and 1.00 p.m., and

(d) Tuesday 27th March at 10.45 a.m. and 4.00 p.m.;

(2) the proceedings shall be taken in the order shown below and shall (so far as not previously concluded) be brought to a conclusion at 7.00 p.m. on Tuesday 27th March. Clauses 1 and 2; Schedule 1; Clauses 3 and 4; Schedule 2; Clause 5; Schedule 3; Clauses 6 and 7; Schedule 4; Clauses 8 to 22; Schedule 5; Clauses 23 to 36; Schedule 6; Clauses 37 to 44; Schedule 7; Clauses 45 to 47; new Clauses and new Schedules relating to Part 1; Clause 48; Schedules 8 and 9; Clauses 49 and 50; Schedule 10; Clauses 51 to 53; Schedule 11; Clauses 54 to 57; Schedules 12 and 13; Clauses 58 to 81; Schedule 14; Clauses 82 to 85; new Clauses and new Schedules relating to Part 3; Clause 86; Schedule 15; Clauses 87 to 100; new Clauses and new Schedules relating to Part 4; Clause 101; Schedule 16; Clauses 102 and 103; Schedules 17 to 20; Clauses 104 to 108; Schedule 21; Clauses 109 to 128; new Clauses and new Schedules relating to Part 5; Clauses 129 to 133; new Clauses and new Schedules relating to Part 6; Clause 134; Schedule 22; Clauses 135 to 141; Schedule 23; Clauses 142 to 144; remaining proceedings on the Bill.

Good morning, Mrs. Humble. I welcome you to the Chair. I am looking forward to renewing the close working relationship that you and I had on the Select Committee on Work and Pensions not so long ago.

I am extremely pleased that the Committee’s programme has been agreed through the usual channels in an amiable way. I am grateful to those who took part in that process. I expect that our proceedings will be pleasant, although I hope not too long an experience. The last time that I served on a Committee, we discussed the Company Law Reform Bill, which had 925 clauses and is the longest Bill that has ever been introduced to Parliament. That Committee was also notable for a further reason: since her child care provision failed, my hon. Friend the Member for Burnley (Kitty Ussher) had to bring her one-year-old daughter with her to all the sittings. So long were our deliberations that the young girl learned to walk. Indeed, when needing a break, many hon. Members were seen holding the baby’s arms and strutting down the corridor with her. We cannot offer such nice distractions on this Committee, so we shall have to make what positive steps we can.

This is a good Bill. It was well received in the House of Lords, and I pay tribute to my colleague there, Baroness Ashton, whose open-minded, co-operative approach I intend to emulate, since I am sure that the Bill can be improved and that its rationales can be probed so that we understand it better. It will transform the Tribunals Service of this country, which plays such a vital role in relations between the individual and the state, adjudicating independently. It will introduce other beneficial changes to help the indebted who need help and who cannot pay, and enforce debts against those who will not pay. Finally, it will assist the museums and art galleries of the country to obtain loans of cultural objects without risk.

I look forward very much to our deliberations. I welcome my hon. Friends and gentlemen and ladies on the Opposition Benches to the Committee and look forward to some co-operative, helpful and improving work.

Henry Bellingham (Conservative, North West Norfolk)

It is a pleasure to serve for the first time under your chairmanship, Mrs. Humble.

I certainly endorse what the Minister said about the Bill. We support it in principle and we endorse much of its detail. We wish to probe some matters, and there may even be areas on which we shall push the hon. and learned Lady quite hard, particularly when we reach parts 3 and 4, which deal with bailiffs and powers of entry. In the main, we support the Bill. It has a lot of detail, but if we move at a sensible place I am sure that we shall get through it and give it proper scrutiny. I support the programme motion.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I, too, welcome you to the Chair, Mrs. Humble. This is the first time that I served with you in the Chair, and the first time I have served on a Public Bill Committee as opposed to one of the myriad other predecessor Committees on which—with some exceptions—I have had the pleasure of serving. I share the view of the hon. Member for North-West Norfolk that the controversial parts of the Bill come later, in parts 3 and 4.

I should like to raise one further matter, if I may.The Minister has tabled a second motion about evidence, which she will no doubt move in a second. The guidance notes sent to Members on Public Bill Committees state:

“The programme for oral evidence will be included in the programme motion agreed by the Programming Sub-Committee and proposed by the Minister at the first meeting of the Public Bill Committee. The motion is debatable.”

I seek your guidance, Mrs. Humble. I want to propose that we take oral evidence from two organisations, so I assume that that request should come under the next motion for discussion, although the leaflet suggests that it might covered by the one we are considering. I shall take your guidance.

Joan Humble (Labour, Blackpool North and Fleetwood)

If the hon. Gentleman wishes to move that proposal, he needs to do so as an amendment to the programme motion. We would need to have the text of any such proposal now.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

In that case, I shall write the proposal as I speak. I want to submit a manuscript amendment asking that the Committee hear evidence from National Association of Citizens Advice Bureaux and from the Local Government Association. This relates to the issues in parts 3 and 4—[Interruption.] I find it surprising that some people are so reluctant to see members of our local government family of friends. I have written the proposal, which is not in the best script in the world, but it will do.

Joan Humble (Labour, Blackpool North and Fleetwood)

I must tell the Committee that I am not selecting the amendment.

Joan Humble (Labour, Blackpool North and Fleetwood)

I call the Minister to move the motion to report written evidence.

Written evidence to be reported to the House

Clause 1

Vera Baird (Labour, Redcar)

The purpose of the clause is manifest. It puts beyond doubt the fact that the tribunal judiciary are independent of the Executive. It does so by ensuring that the duty on the Lord Chancellor and other Ministers of the Crown to uphold the continued judicial independence of the judiciary, which is enshrined in section 3 of the Constitutional Reform Act 2005, extends to all the tribunals for which the Lord Chancellor is responsible. That includes the employment tribunals in Scotland and criminal injuries compensation appeal panel adjudicators appointed by Scottish Ministers under section 5 of the Criminal Injuries Compensation Act 1995. The guarantee also covers non-legal members of tribunals, as well as the legally qualified ones.

It is right that the Bill begins by making it clear that tribunals have the same constitutional and legal guarantee of independence as the courts, and I ask that the clause stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Are there any tribunals for which the Lord Chancellor does not have responsibility and which therefore will not be covered by the clause?

Vera Baird (Labour, Redcar)

Yes, there are a number. The competition tribunal, for example, will not be covered either by that provision or by the Bill in any other way. All the tribunals that are dealt with by the Bill have this guarantee of independence enshrined in the clause.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

If, at a later stage, the Minister were to be kind enough to let us have a note detailing the other tribunals that are not covered and to tell us whether they are protected by any similar independence provision, it would be helpful. I do not intend to press the matter further now.

Clause 2

Vera Baird (Labour, Redcar)

Taken together, this clause and schedule 1 create the post of senior president of tribunals. They set out the procedure for filling that post and provide for him to represent the views of tribunal members—an important provision. We indeed have a “him” designate at the moment, although his post rather than his gender is designated and we hope to turn it quickly into a reality. As I am sure everybody knows, Lord Justice Carnwath is the senior president designate. The clause and schedule closely follow Sir Andrew Leggatt’s recommendation that the leadership of the tribunals system should promote

“by leadership and co-ordination, both consistency of decision-making and uniformity of practice and procedure”.

The senior president will be a free-standing senior judicial official who will oversee the tribunal judiciary, and his powers and duties are set out in the Bill. Furthermore, not only is his office clearly independent of the Executive, but in carrying out his functions, the senior president will not be subject to the direction of the chief justices responsible for the courts. Clause 2 places a duty on the senior president to ensure that tribunals are accessible, that proceedings are fair and are handled quickly and efficiently, that members are expert and that innovative dispute resolution methods are developed in respect of the type of cases that come before tribunals. Those criteria are based on the long-standing principles underlying the jurisdiction of tribunals which go back to the Franks report in the 1950s.

The White Paper “Transforming Public Services: Complaints, Redress and Tribunals” signalled that the senior president would

“provide a clear single voice able to speak for the tribunal judiciary collectively.”

Paragraphs 13 and 14 to schedule 1 enable the senior president to do just that—represent tribunal members’ views to Parliament, to the Lord Chancellor and to Ministers of the Crown generally, giving the tribunals a distinct, unified voice for the first time.

It is crucial to ensure that the right person of the right calibre is appointed. Schedule 1 provides two possible routes by which any vacancy for the senior president position may be filled. The first will be when the Lord Chancellor, the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland all agree on the nomination of a lord or lady justice of appeal, or a member of the inner house of Court of Session, as a suitable candidate.

As an alternative, the Lord Chancellor wouldask the Judicial Appointments Commission to selecta candidate for recommendation for appointment.The process for doing that follows as closely as is appropriate the process under the Constitutional Reform Act 2005 for appointing heads of division.

The successful candidate will be appointed by Her Majesty the Queen. To underpin the independenceof the role, the senior president, unless disabled by a permanent infirmity or incapacitated from resigning, may be removed from office only by Her Majestyon an address presented to her by both Houses of Parliament.

Henry Bellingham (Conservative, North West Norfolk)

We certainly support this part of the Bill. The hon. and learned Lady made a point about the Judicial Appointments Commission. We supported the Constitutional Reform Act 2005 because one ofthe key principles behind it was the separation of powers—that is, that the process of judicial selection should be totally separate from the Executive. Obviously, taking the power away from the Lord Chancellor and putting it into the hands of the commission was an important part of that Act.

I have a question about the clause. Obviously, the Lord Chancellor himself will appoint the person tothe office of senior president. I take on board the Minister’s point about the default position in respect of the Judicial Appointments Commission, but may I ask how that ties in with the 2005 Act?

I want to make another quick point. We support the whole essence of trying to bring the tribunals together into one consolidated organisation. However, how will Parliament be involved in scrutinising how the new process works? Obviously, we can question Ministers; the Select Committee on Constitutional Affairs will call evidence at different times in different inquiries. However, will the Minister comment briefly on how Parliament will be able to scrutinise how the new process will work?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The initiative is welcome. Bluntly, the Tribunals Service has long lacked both coherence and co-ordination, and somebody should be seen to be leading it. As we all know from our communities and constituencies, that is an important part of the process. The Tribunals Service probably has more people going through its doors than the courts, and certainly more than the non-criminal courts. Given that some tribunals are territorial, and limited to either England and Wales, Scotland or Northern Ireland, I assume that the implication is that the president looks after and speaks on behalf of all of them. Is it envisagedthat someone will be chosen, who will come under the president, whose particular role will be to speak for the Northern Ireland, Scotland or England and Wales tribunals? In other words, if a particular issue arisesin one of the jurisdictions within the UK, is there someone within the process who will lead on that?

Vera Baird (Labour, Redcar)

The appointment is not made by the Lord Chancellor under either route; it is made, on his recommendation, by Her Majesty the Queen. The purpose of outlining the first way forward to the appointment of a senior president is that if an obvious candidate emerges from the judiciary and consequently comes from that independent source, it might be appropriate for the Lord Chancellor, having been consulted, to sanction that appointment. In default of absolute consensus among the judiciary—essentially a proposal coming from the judiciary—it is appropriate that the appointment should be made in the ordinary way by the Judicial Appointments Commission.

If I have understood the hon. Member for North-West Norfolk correctly, he is asking how the Judicial Appointments Commission will be scrutinised by Parliament. My understanding—I shall write to correct it if I am not accurate—is that the commission will prepare an annual report that will be presented to Parliament and debated.

To answer the territorial question asked by the hon. Member for North Southwark and Bermondsey, the position is that it will be the senior president’s role to make representations on behalf of the tribunals, and he will serve all the jurisdictions. Therefore, he is the voice of the Tribunals Service.

I hope that that has dealt with the questions asked by Opposition Members, and that the clause will stand part of the Bill.

Henry Bellingham (Conservative, North West Norfolk)

The question that I asked about parliamentary scrutiny was not so much about the appointments process as about the operations of the whole Tribunals Service, and what DCA Ministers will be doing to keep Parliament informed of the new working arrangements.

Vera Baird (Labour, Redcar)

The new working arrangements are pretty inchoate at present. There will be extensive consultation as they proceed. A detailed policy statement has been put into the Library. It spells out our intentions regarding the next steps, and states that there will be consultation at every stage. It seems to me to be correct to say that there needs to be some formula by which working practices, once they emerge, can be checked by Parliament to ensure that they are functioning accurately. However, I cannot tell the hon. Gentleman now specifically how that will occur beyond a Member who is troubled raising it in the ordinary way on the Floor of the House. Some provision must be put in place, however, and that will be part of the consultations that will follow.

Tobias Ellwood (Conservative, Bournemouth East)

I should like to go back to the question raised by my hon. Friend the Member for North-West Norfolk. The post was created on the recommendation of Sir Andrew Leggatt, who wanted more unified leadership within the tribunals’ judiciary. My concern is that if we are introducing major changes to the tribunals system, the only people who will see them will be us as Members of Parliament. How is there a connection between us being able to scrutinise those changes to confirm that they have met the objectives that have been sought and to make any adjustments that might be required in six months or a year’s time?

Vera Baird (Labour, Redcar)

I think that I now fully understand the cause of concern that both the hon. Gentleman andthe hon. Member for North-West Norfolk have raised. I think that I can reassure them by referring toclause 39(3), which states:

“The Lord Chancellor must annually prepare and lay before each House of Parliament a report as to the way in which he has discharged his general duty in relation to the tribunals”.

That will facilitate scrutiny of the kind that is being referred to.

Tobias Ellwood (Conservative, Bournemouth East)

That is very helpful. Would that report lead to a debate on the Floor of the House?

Vera Baird (Labour, Redcar)

There is no reason why it should not, and it would be wise, particularly in the early years of the tribunals, if it could, because this will be an emerging structure and set of powers, so it will be worth keeping it under close scrutiny.

Tobias Ellwood (Conservative, Bournemouth East)

Subject to the usual channels, I suppose.

Vera Baird (Labour, Redcar)

I am sure. Indeed, the hon. Gentleman is a usual channel, I understand.

Clause 3

Vera Baird (Labour, Redcar)

Clause 3 provides for the creation of two new generic tribunals—a first-tier tribunal and an upper tribunal—over which the senior president will preside. The upper tribunal is to be a superior court of record. Each tribunal will consist of judges—its legally qualified members—and other members. Establishing a single, two-tier structure for tribunals will lead to a simpler, more coherent tribunals system that will be flexible enough to accommodate the needs of different users and different jurisdictions, both now and in the future.

The first-tier tribunal will be the first instance tribunal, and will hear appeals from the original decision-making body. The upper tribunal will be primarily, but not exclusively, an appellate tribunal from the first tier. Both are intended to be adaptable and able to take on any existing or new tribunal jurisdictions. In future, when Parliament decides to create a new appeal right or jurisdiction, it will not need to create a new tribunal to administer it.

Because of its specialist nature, the Asylum and Immigration Tribunal will act as a separate pillar of the new structure outside the new legal framework, although the Bill is sufficiently flexible to allow for future transfer if appropriate. We would not, however, exercise that ability to transfer unless the Home Secretary agreed, and as the tribunal will remain outside the new generic tribunals, the associated rule-making power will also remain with the Lord Chancellor in respect of the AIT and not move to the new tribunal procedure committee.

For similar reasons, the employment tribunals and the Employment Appeal Tribunal will also act as separate pillars of the new structure, remaining outside the new framework for the unified system, but the AIT and the EAT will still enjoy the benefits of the single administrative structure of the Tribunals Service.

Those reforms will ensure that, as Sir Andrew Leggatt recommended, tribunals will be independent and separate from the Departments that make the decisions under review. They will deliver more than just a federation of existing tribunals. They will produce a framework within which tribunal users will be ableto benefit from authoritative, timely, consistent and comprehensible decisions. They will deliver a cost-efficient system providing good value for the taxpayer, and as Sir Andrew Leggatt prescribed, they will be fit for the users for which they are intended.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I should be grateful if the Minister would put on the record the reason for not including the Asylum and Immigration Tribunal in the system. She has explained that the Home Office has an interest—it clearly does—and that the tribunal can be brought back, but she has not given the reasons why the system is not the same as for all the other tribunals.

Vera Baird (Labour, Redcar)

The AIT was set up a very short time ago, under specific legislation designed to providewhat we believe is the appropriate model. That understanding and determination has not changed. This is the right model for the immigration and asylum jurisdiction. If in due course it looks appropriate, there is flexibility to bring it in, but that is not our intention now.

Clause 4

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 2,in clause 4, page 3, line 6, leave out ‘judge’ and insert ‘legal member’.

The essence of the amendment concerns the use of the word “judge”. The Committee will recall that Sir Andrew Leggatt was at great pains to emphasise that tribunals exist for users, as the hon. Member for North Southwark and Bermondsey pointed out. Tribunals need to be accessible. Day in, day out, we meet people in our constituencies who have had experience of tribunals. In fact, many more of our constituents go to tribunals than go to court. The point of tribunals is that they should be unthreatening and consumer-friendly. There is a huge responsibility on the chairman of the tribunal to ensure that the conduct of its affairs is as informal as possible. That is why we are keen to ensure that everything about tribunals should be relaxed and consumer-friendly.

Does the Minister feel that the use of the word “judge” is appropriate in those circumstances? I can understand that there are plenty of chairs of tribunals who like calling themselves judges. The other day I met someone at a social event about whom everyone was muttering, “My goodness, he’s a judge”. It was all hugely exciting and good for his ego, but in fact he was chairing a tribunal. I submit that those chairs of tribunals of course do a superb job. I do not suggest for a moment that we should try to undermine their standing and credibility in any way. If it makes them feel better to tell their friends that they are judges, all well and good. However, should the users of tribunals, who are our constituents, feel that there is that extra layer of formality inherent in the use of the word “judge”? I would say probably not.

The other important point is that the Lord Chancellor has the power to appoint people with no legal qualifications whatever as legal members of tribunals. Those people may well become chairs of those tribunals. We do not necessarily object to that, but if people are appointed to tribunals as legal members, yet have no legal experience whatever, should they call themselves judges? I suggest to the Minister that that would not really be appropriate.

Earlier we discussed the importance of the Constitutional Reform Act 2005, the essence of which is the separation of powers so that judicial selection should be entirely free of the Executive. However,we find a member of the Executive—the Lord Chancellor—able to designate individuals as judges, in complete contravention of all the principles of that 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 we are keen, as we are, to maintain an atmosphere of informality and want to make the tribunals as user-friendly as possible to our constituents, the Minister should accept the minor change proposed in the amendment, which would be in the interests of the tribunal system.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am sympathetic to the amendment. In the immigration service, the person at the first tier is called the adjudicator and the person at the second tier, as the Minister will know, is called—

Vera Baird indicated dissent.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I stand to be corrected.

Vera Baird (Labour, Redcar)

We changed their names to judges some time ago.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

In that case, I stand corrected; but the general point holds. We are having a two-tier system—that has been agreed by the Committee and it is sensible. The Tribunals Service is meant to be less formal. There is a strong case for having a perfectly proper and respectable title at the lower level, but something other than “judge”. Some people are not legally qualified, which is perfectly acceptable. The title of chair of an employment, industrial or social security tribunal and so on seems entirely appropriate. I would be interested to hear what assessment has been made of the benefit of a more legal title at the lowest level.

Vera Baird (Labour, Redcar)

Unlike the hon. Member for North-West Norfolk, I do not mind if calling people judges makes them happier. I think that people should be happier if they can be. We in the Labour party want to let the sun shine in on all possible occasions.

Calling somebody a judge has absolutely nothing to do with who appoints them or how they are qualified, and it certainly does not have the remotest relationship with the separation of the Executive and the judiciary, which we promoted in the Constitutional Reform Act 2005. Although the hon. Gentleman now talks about how the Opposition supported the Judicial Appointments Commission, they were actually dragged screaming to that agreement. There is nothing about calling someone a judge that compromises the independence of the way in which they are appointed.

The process is well under way. The hon. Member for North Southwark and Bermondsey hoped to find an analogy with something that has already disappeared. Immigration adjudicators are now called judges. People who used to be called stipendiary magistrates are now called district judges, as are those who were known as registrars in the county court. There are cost judges who adjudicate on lawyers’ fees, and there are even judges in the Eurovision song contest, some of whom usually award nil points to us. There are a lot of good aspects to the proposal to call these individuals judges. The term “judge” describes exactly what the post holders will do. They will make decisions about people’s rights and about Government responsibilities.

The purpose of creating a new title is to give consistency across a wide range of jurisdictions. Currently, legally qualified members are known by a range of titles, including commissioner, president, adjudicator, panel chairman, umpire and even member, which I thought very funny when I was younger. Those titles do not convey a clear picture about who the titleholders are or what they do. Nor do they convey the fundamental message that tribunals are independent of the Government. Everybody knows that judges are independent, but the term “legal member” does not carry the same message.

Calling people “judges” does not mean that tribunals will be run differently. The judges will continue to treat appellants and complainants as they do now. Theywill give matters the same consideration and do soas informally as possible. We intend to retain the informality of tribunal hearings. During hearings, judges will not need to use their titles. In the AIT, legally qualified members are known as immigration judges, and senior immigration judges are usually addressed as “Sir” or “Madam”. That is the guidance from the tribunal president.

The amendments echo those tabled by Lord Kingsland in Grand Committee. We resisted them then and we resist them now. In doing so, we have the support of Mr. Justice Hodge, the president of the AIT, and Mr. Paul Shaerf, the president of the Council of Immigration Judges, both of whom wrote to me expressly on this matter. Mr. Justice Hodge wrote:

“I know that there is very widespread support within the tribunals judiciary as a whole for the use of the title to be adopted. The adoption of the title will be seen by them as a recognition of the important work that is done by the Tribunals Service for the administration of justice as a whole. Further, I believe every effort should be made to maintain and promote the cohesion of the judicial ‘family’ and conferring the title ‘judge’ on those who adjudicate in administrative tribunals will serve this end.”

James Brokenshire (Conservative, Hornchurch)

Obviously, we are talking about nomenclature in large measure, so there are fine definitions. I am interested to hear that the Minister has obtained some backing and guidance from one part of the judiciary. Has she consulted the judiciary more widely, particularly Court of Appeal and High Court judges, to establish whether they feel that the changes will have any bearing on their status or standing? Has she considered redescribing tribunals as courts, because they are, ultimately, seeking to establish matters of fact and law? Given that she wants a fairly standard and level approach, has she considered making those changes?

Vera Baird (Labour, Redcar)

There is no indication that the higher judiciary have any reservations about the nomenclature; indeed, Mr. Justice Hodge is, of course, a High Court judge. “Courts” is not a good name for the tribunals because tribunals are more informal, accessible and inquisitorial than courts. “Tribunals” is therefore the right name for the institution and the staff who will the fill the adjudicating role.

Mr. Shaerf said that

“the council of immigration judges believed that the introduction and use of the title ‘immigration judge’”

instead of adjudicator

“had worked very well and that such a title is more readily understood by appellants and other tribunal users than the former title of...adjudicator.”

He said that

“the use of the title ‘judge’ is not a material factor in establishing with what degree of formality a hearing is conducted”

and that any attempt to remove the title

“would cause considerable dismay, consternation and discontent amongst many of the Council’s members.”

We do not intend to do that.

Tobias Ellwood (Conservative, Bournemouth East)

For many people who come across a tribunal, it might well be the second time that they have been confronted by the judicial system, unless they are a frequent offender, in which case they may be a regular. The Minister mentioned district judges, High Court judges and immigration judges, all of which terms have a description prior to the word “judge”. Would it not therefore be sensible to call the judges that we are debating “tribunals judges”? The Conservatives are concerned that the name, qualification and position suggested by the word “judge” is being diluted, which is not good.

Vera Baird (Labour, Redcar)

The prefixes point out what the function of those kinds of judges are. They are referred to by their staff as “judges”. There is nothing to be gained by complicating the nomenclature. I am not sure what the hon. Gentleman meant by referring to offenders—I hope that he understands that we are not talking about criminal tribunals. To suggest that the high calibre of people who are going to be put into the tribunals would, by their nature, dilute, weaken, or undermine the calibre of the term “judge” is offensive. Frankly, I suggest that he supports the clause and discards the amendment as soon as possible.

Emily Thornberry (Labour, Islington South and Finsbury)

Does my hon. and learned Friend agree that the public will use the term “judges” whatever official title is used? When members of the public who are not legally qualified appear before people who judge them, they will refer to such people as “judges”. The public see the people who judge as “judges”, so why do we not give them the name that appears on the tin?

Vera Baird (Labour, Redcar)

Actually, I do not agree. Calling people names such as “commissioners”, “adjudicators” and “umpires” can easily suggest that there is some particular curiosity about the nature of their considerations. Calling a person a “judge” makes it clear what their function is. Furthermore, it is the hallmark of independence—the judiciary is known for its complete independence. Although my hon. Friend comes to the same conclusion, she comes from a different point of view. I invite the hon. Gentleman to withdraw the amendment.

Henry Bellingham (Conservative, North West Norfolk)

The Minister has explained the situation clearly. I hope that she does not object to my prompting debate because it is important for us to discuss these matters and to probe the Government. Conservative Members had concerns, many of which she addressed, so I beg to ask leave to withdraw the amendment.

Vera Baird (Labour, Redcar)

Clause 4 and schedule 2 set out provisions relating to judges and other members of the first-tier tribunal. The hon. Member for North-West Norfolk asked if I minded him raising issues concerning amendment No. 2. Of course, I do not mind. However, I worry enormously when concepts such as diluting the calibre of judges are tossed about in Public Bill Committees merely for the purpose of probing. Obviously, that was not wise because we are only just setting up the new structures and hoping that everybody will contribute and feel that they are highly regarded members of the new teams.

Currently, most tribunals include both legally qualified members and members without legal qualifications. The qualifications of legal members vary from tribunal to tribunal. The range of non-legally qualified members varies a great deal. There are medical practitioners, accountants, people with experience of disability issues, people with experience of the armed services, and many other lay members. That structure will continue.

Judges and other members of the new tribunals will be transferred from existing tribunals, appointed by the Lord Chancellor following selection by the Judicial Appointments Commission, or hold their office in the new system by virtue of another office that they hold in the courts or tribunals. The use of such ex officio members will enable judges with the appropriate expertise and experience to be brought into the new structure on the invitation of the senior president to help out, in effect.

Some non-legally qualified members of other tribunals will automatically be members of the new tribunals. The same principle will apply within the structure of the new tribunals so that, for instance, a judge of the upper tribunal will automatically be an appointed judge of the first-tier tribunal. Deployment will be under the control of the senior president of tribunals and, in the case of judges drawn from the courts, that will be in conjunction with the relevant territorial chief justice.

In order to safeguard the independence of the tribunals, the judiciary and appointed and transferred-in judges are protected by a prohibition on removal without the concurrence of the relevant chief justice. Judges and other members of the first-tier tribunal, transferred-in judges and salaried members are further protected in that they may be removed only by the Lord Chancellor and only for inability or misbehaviour. The senior president has responsibility for maintaining arrangements for the training, welfare and guidance of judges and other members of the first-tier tribunal.

Judges and members will be able to sit in morethan one jurisdiction if they have the right skills and experience. That is undoubtedly an advantage. The tribunal reforms will create a single pool of judges and non-legal members, secure in their independence, free from political interference, and encompassing a wide range of experience and expertise.

Henry Bellingham (Conservative, North West Norfolk)

Of course we support schedule 2, and I want to put on record that we in the Opposition have the greatest admiration for the calibre, commitment, determination and conscientious approach of thetribunal judges.

My hon. Friend the Member for Bournemouth, East was not for one moment trying to undermine those judges. He was simply considering them in the context of the judiciary as a whole, comparing a chairman of a tribunal who might come from a military background with, for example, a High Court judge or maybe a lord justice of appeal. The point that he was making was about the comparison between the lower-tier legal members and a Law Lord or Appeal Court judge. I am pleased to be able to clarify that, and we support the clause.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I wonder whether the Minister could tell us as of now how many tribunal judges are full time and part time. Will she break that down by territory and tell us how many are women and how many are men? How many come from the black or minority ethnic communities? How many are lay people who are not legally qualified? I support the idea that lay people are coming into the Tribunals Service, and I have always supported that, but it would be interesting to know what numbers are in that category and what percentage they make up. I expect that the list might be immediately available, but if it is not will she let ushave it at the earliest available moment? There were announcements last week about widening judicial appointments, which are welcome on the Liberal Democrat Benches. If we are to know how much we need to do that work, we need to know the basis from which it started.

Vera Baird (Labour, Redcar)

I hope that the hon. Gentleman will remember that this is a Committee and not a pub quiz. There are roughly 450 full-time tribunal members and about 6,000 part-time tribunal members. I have no doubt that their diversity will enhance the diversity of the judiciary in general in respect of class, race and gender. I will write to the hon. Gentleman on the statistics.

Schedule 2

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 5, in schedule 2, page 118, line 20, at end insert ‘or’.

Joan Humble (Labour, Blackpool North and Fleetwood)

With this it will be convenient to discuss the following amendments: No. 6, in schedule 2, page 118, line 22, leave out from ‘standing’ to end of line 25.

No. 8, in schedule 3, page 122, line 18, at end insert ‘or’.

No. 9, in schedule 3, page 122, line 20, leave out from ‘standing’ to end of line 23.

Henry Bellingham (Conservative, North West Norfolk)

We are looking at paragraph 1(2) of schedule 2 and the power to appoint judges of first-tier tribunals. This is a probing amendment. Would the Minister tell us the meaning of this sub-paragraph:

“A person is eligible for appointment under sub-paragraph (1) only if the person...(d) in the Lord Chancellor’s opinion, has gained experience in law which makes the person as suitable for appointment as if the person satisfied any of paragraphs (a)to (c).”

Paragraph 1(2)(a) to (c) refers to people with legal qualifications. What kind of influence will the Lord Chancellor bring to bear on his decision under that provision? What kind of legal experience would make that person suitable for an appointment? Of course, the Lord Chancellor’s views in this regard will not appear to be totally subjective. I would be grateful if the Minister filled the Committee in on what sort of considerations the Lord Chancellor will have.

Will the Minister comment on whether that provision runs counter to the philosophy in the Constitutional Reform Act 2005? Have Ministers had discussions with Baroness Prashar, who has done a superb job with the Judicial Appointments Commission? Has she had any input into the thinking behind how those appointments are going to be made, particularly for those people who do not have a legal background but who may have a great deal to offer? We do not want to preclude them being appointed but we would like some more detailed information. Therefore, it is a probing amendment.

Vera Baird (Labour, Redcar)

We are talking not about appointments but about widening the pool of eligibility. The provision does not run counter to the separation of powers or the principles of the Constitutional Reform Act. If we accepted the amendments, which we will not do, we would limit the Lord Chancellor’s power to extend eligibility for judicial office, and limit the ability to appoint someone who has the necessary skills and knowledge but who does not have a professional UK qualification.

The hon. Gentleman asked me what sort of person that might be. It is most likely to be a legal academic or someone qualified in Europe or in a Commonwealth jurisdiction. In a different statute, these provisions have already enabled a small number of appointments to the Asylum and Immigration Tribunal and to the Mental Health Review Tribunal, which already have these eligibility requirements in place. We see no reason why they should not be extended to the new first-tier and upper tribunals in recognition of the specialised fields in which those tribunals operate. Having particular skills or experience in a specialised area can be invaluable to the operation of the tribunal.

As I said, it is important to remember that the extension of eligibility is being proposed, not suitability. All applicants will continue to have to meet the rigorous assessment and the demanding criteria set by Baroness Prashar, and I join the hon. Gentleman in praising her and lauding her highly. Rigorous criteria are set, which will be applied. Merit and merit only will be the criteria on any recommendation for appointment. I hope that he is reassured and that he will be able to withdraw his amendment.

Henry Bellingham (Conservative, North West Norfolk)

The Minister has a very reassuring manner and I beg to ask leave to withdraw the amendment.

Clause 5

Vera Baird (Labour, Redcar)

Clause 5 and schedule 3 are parallel provisions about the membership of the upper tribunal. As is the case with the first-tier tribunal, judges and other members of the upper one will either be transferred in, be appointed by the Lord Chancellor following selection by the Judicial Appointments Commission or hold their office in the new system by virtue of another office that they hold in the courts or tribunals. The latter criteria will enable judges who have the appropriate expertise to be brought into the new structure, on the invitation of the senior president, to help out. Again, as in the first-tier tribunal, some non-legally qualified members of other tribunals will automatically be members of the new tribunal. Appointed judges of the upper tribunal will be appointed by Her Majesty the Queen, on the Lord Chancellor’s recommendation, except where a member of an existing tribunal is transferred into the upper tribunal, and appointment will follow the JAC selection process.

In order to safeguard the independence of the tribunal judiciary, appointed and transferred-in judges are protected by a prohibition on removal without the concurrence of the relevant chief justice. Judges and other members of the upper tribunal and transferred-in judges and members who are appointed on a salaried basis are protected further and can be removed only by the Lord Chancellor on the grounds of inability or misbehaviour.

Judges and members of the upper tribunal willbe partly ex officio judges and members. Their deployment, again, will be under the control of the senior president, with the concurrence of the relevant chief justice. The Lord Chancellor will have a powerto appoint deputy judges to the upper tribunal, particularly if they have special expertise that will be helpful. As is the case with the first-tier tribunal, the senior president will maintain arrangements for the training, welfare and guidance of judges and other members of the upper tribunal.

James Brokenshire (Conservative, Hornchurch)

Will the Minister clarify whether the powers are structured in such a way as to allow the appointment of retired High Court judges, so that they may be drafted in to meet the criteria?

Vera Baird (Labour, Redcar)

We have considered whether it is necessary to table an amendment to provide for that, because it seems a good idea. If the hon. Gentleman is content to leave that with us, we will produce some definitive answer about a way forward on Report.

Judges and members will be able to sit in more than one jurisdiction if they have the skills and experience. Judges of the upper tribunal will automatically be judges of the first-tier tribunal. These tribunal reforms will create a single pool of tribunal judges and non-legal members, who are secure in their independence and free from political interference, and they will encompass a wide range of experience and expertise.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am sorry. The Minister may say several times that this is not a pub quiz, but I will continue to ask questions that she has answers to and we do not. Can she tell us, please, what is the lowest and highest remuneration—the range of remuneration—for people who are full-time tribunal members at the moment? What is the starting point? What is the total bill, which we currently pay, for tribunal members and judges across the four jurisdictions?

Vera Baird (Labour, Redcar)

I should think that the answer is ever such a lot, but I shall see if I can be more specific, by letter, later in the day. It is a pity that the hon. Gentleman does not do his own research.

Clause 6

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 10, in clause 6, page 4, line 40, at end insert ‘or’.

Joan Humble (Labour, Blackpool North and Fleetwood)

With this it will be convenient to discuss the following amendments: No. 11, in clause 6, page 4, line 41, leave out from ‘Ireland’ to end of line 42.

No. 12, in clause 6, page 4, line 43, leave out (i) and insert (h).

Henry Bellingham (Conservative, North West Norfolk)

This is a small, probing amendment. I do not plan to detain the Committee for more than a minute or so. The clause is headed, “Certain judges who are also judges of First-tier Tribunal and Upper Tribunal” and runs through a number of categories of different people, including judges of a Court of Session and circuit judges. The amendment would remove the final category, which

“is a District Judge (Magistrates’ Courts)”.

We are trying to maintain consistency. The clause confers automatic qualifications to various types of judges to become tribunal judges. We are not saying that

“a District Judge (Magistrates’ Courts)”

should not be appointed; we are saying that they should not necessarily qualify automatically. The list is wide ranging. Subsection (1) takes it too far.

The amendment is a probing amendment, and we are entitled to ask questions. I am not being pedantic; I am being, I hope, consistent in my approach. I should like the Minister to clarify the reason why the clause extends that automatic right as far as it does.

Vera Baird (Labour, Redcar)

As the hon. Gentleman said, the point of the clause is to supplement the judges of new tribunals with judges from the courts. Most tribunal judges will be transferred from existing tribunals—the EAT, the AIT or the JAC—to one of the new offices. We expect that judges from the courts will be deployed in small numbers from time to time to bring in skill and expertise that is not readily available, or just to help out. The list of the people who can be used in that way comprises almost all the salaried judicial offices in the mainstream core. None of them has a right to sit in the tribunal; they can sit only if the senior president invites them and the relevant chief justice agrees. We have made the pool as large as possible, because the necessary expertise might reside in all sorts of unexpected places, and

“a District Judge (Magistrates’ Courts)”

should not be excluded from that consideration. They are not only experts in crime; they often have to evaluate technical evidence, and they have a great deal of day-to-day, real life experience in the lower courts. Some sit on family matters, too, and undertake such work as licensing appeals, so they have a diversity of experience.

The users of tribunals are entitled to expect the best arrangements that we can manage, but that objective will not be met if we exclude suitable judges from hearing a case because of unnecessary restrictions on their deployment. I hope that that explanation is sufficient to persuade the hon. Gentleman not to press his amendment to the vote.

Henry Bellingham (Conservative, North West Norfolk)

In the light of what the Minister has said, it would indeed be churlish to press the amendment. I am grateful to her for her clarification, and I beg to ask leave to withdraw the amendment.

Clause 7

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 13, in clause 7, page 5, line 3, after ‘Tribunals’ insert

‘and after consultation with such persons as he considers appropriate’.

Joan Humble (Labour, Blackpool North and Fleetwood)

With this it will be convenient to discuss amendment No. 37, in clause 7, page 5, line 30, after ‘other’ insert

‘and after consultation with such persons as he considers appropriate’.

Henry Bellingham (Conservative, North West Norfolk)

The amendments are, again, probing amendments. The Bill states that the Lord Chancellor must consult such persons as he considers appropriate. What exactly does that mean? I should like to ask the Minister about the Constitutional Reform Act and the separation of powers inherent in it, because I am concerned that a great deal of theBill is moving slowly but surely—indeed, gravitating relentlessly—away from the spirit of that earlier legislation, hence the probing nature of the amendments. Will she clarify those points?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have a couple of additional questions, and the Minister will see that I have added my name to the amendments, both of which come from the Law Society of Scotland, which raised questions with the hon. Gentleman and with me. The amendments probe the wider question of what is behind the organisation of the new system. There are later amendments about what we will call the groupings of the organisation, but it would be helpful if the Minister explained the theory behind the way in which the tribunal system will be divided into areas. For example, the European Court of Human Rights sits in chambers subdivided into groups of judges, so that more people can deal with cases at any one time. There is obviously a logic in having groupings, but if she could flesh out the thinking behind the provisions, that would be helpful not only to us but to others who have an interest in such matters.

Vera Baird (Labour, Redcar)

The amendments in the group concern clause 7, which is about chambers, which is the term that has been selected to define the way in whichthe new Tribunals Service is likely to be grouped. At present, in order to form chambers the Lord Chancellor requires the concurrence of the senior president. The amendment would additionally require him to consult more widely about the formation of chambers. Amendment No. 37 relates to the assignment of functions between the chambers. At present the Lord Chancellor or the senior president make the order to assign the functions, each with the concurrence of the other. Amendment No. 37 would also require whichever of them was concerned to consult.

A detailed policy statement has been published that explains how the order-making powers in the Bill will be used, a copy of which has been placed in the Library. If it is inconvenient for any member of the Committee to get a copy of that policy statement, I am sure that we can bring some to the Committee, if there are not some here already. The statement sets out how it is proposed the order-making powers will be used. That document makes it clear that the Government have already undertaken to consult widely and fully on the establishment of the chamber structure, as one would expect with such a new structure. The statement also gives an early indication of the Government’s thinking on both the criteria for groupings and possible groups for the first tier, which will be useful for hon. Members.

Our starting point is that there might be three chambers. The hon. Member for North Southwarkand Bermondsey asked me about the Government’s thinking. We are thinking in the direction of one chamber to deal with tax and regulation, one to deal with social security, and one to deal with mental health and related welfare issues. However, the document also makes it clear that a final decision on the initial shape of the chambers will be taken only after a full and wide consultation, which we plan to hold later this year. That will allow everybody who will use the chamber structure—office holders, judicial leaders, tribunal users and their representatives—to have the maximum involvement in the development of the structure.

We plainly have no resistance to consultation andwe intend to hold it. The only difficultly in reinforcingthat consultation as proposed in the amendment isas follows: quite minor changes to the allocation of functions might subsequently need to occur, yet we would have encumbered ourselves with a broad duty to consult in every case, which might be disproportionate.

I hope that I have helped the hon. Member forNorth Southwark and Bermondsey to understand our embryonic thinking. We shall supply him with a copy of the policy document, so that he can study it further. I also hope that I have satisfied the hon. Member for North-West Norfolk that we are very much in favour of full and wide consultation, but that we do not wantany subsequent minor changes to be saddled with a disproportionate demand that we should consult. I therefore hope that I have persuaded him to withdraw the amendment.

Henry Bellingham (Conservative, North West Norfolk)

I am grateful to the Minister for that confirmation. She has made it clear that the Government will hold that wider consultation. In the light of that, I beg to ask leave to withdraw the amendment.

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 14, in clause 7, page 5, line 4, leave out ‘chambers’ and insert ‘divisions’.

Joan Humble (Labour, Blackpool North and Fleetwood)

With this it will be convenientto discuss the following amendments: No. 15, in clause 7, page 5, line 6, leave out ‘chamber’ and insert ‘division’.

No. 16, in clause 7, page 5, line 7, leave out ‘chamber’ and insert ‘division’.

No. 18, in clause 7, page 5, line 9, leave out ‘chamber’ and insert ‘division’.

No. 19, in clause 7, page 5, line 11, leave out ‘chamber’ and insert ‘division’.

No. 20, in clause 7, page 5, line 12, leave out first ‘chamber’ and insert ‘division’.

No. 21, in clause 7, page 5, line 12, leave out second ‘chamber’ and insert ‘division’.

No. 22, in clause 7, page 5, line 14, leave out ‘chamber’ and insert ‘division’.

No. 23, in clause 7, page 5, line 15, leave out ‘Chamber’ and insert ‘Division’.

No. 25, in clause 7, page 5, line 17, leave out first ‘chamber’ and insert ‘division’.

No. 26, in clause 7, page 5, line 17, leave out second ‘Chamber’ and insert ‘Division’.

No. 27, in clause 7, page 5, line 19, leave out ‘chamber’ and insert ‘division’.

No. 28, in clause 7, page 5, line 21, leave out first ‘Chamber’ and insert ‘Division’.

No. 29, in clause 7, page 5, line 21, leave out second ‘chamber’ and insert ‘division’.

No. 30, in clause 7, page 5, line 22, leave out ‘chamber’ and insert ‘division’.

No. 31, in clause 7, page 5, line 24, leave out first ‘Chamber’ and insert ‘Division’.

No. 32, in clause 7, page 5, line 24, leave out second ‘chamber’ and insert ‘division’.

No. 33, in clause 7, page 5, line 26, leave out first ‘Chamber’ and insert ‘Division’.

No. 34, in clause 7, page 5, line 26, leave out second ‘Chamber’ and insert ‘Division’.

No. 35, in clause 7, page 5, line 28, leave out ‘Chamber’ and insert ‘Division’.

No. 36, in clause 7, page 5, line 28, leave out ‘chambers’ and insert ‘divisions’.

No. 38, in clause 7, page 5, line 32, leave out ‘chambers’ and insert ‘divisions’.

No. 48, in clause 7, page 5, line 34, leave out ‘chambers’ and insert ‘divisions’.

Henry Bellingham (Conservative, North West Norfolk)

This group of amendments looks horrendous. It looks like the debate could go on for hours and hours, but I assure the Committee that it will not. The group is really very simple and looks much worse than it is.

Our approach is twofold. First, we have tabledthe amendments because we feel that language is important. I said earlier that the tribunals need to be as user-friendly as possible. There is a body of opinion that takes the view that the word “chambers” is old-fashioned, formal and little bit arcane. If we want the system to be as accessible as possible, we may have to look at the language. “Division” is more purposeful, focused and, perhaps, less formal. I ask the Minister to consider changing “chamber” to “division”. She will correct me if I am wrong, but Lord Denning once said, “It matters less what you say, but how you are heard.” If we are saying strongly that these will be informal bodies, it makes sense to change the terminology and use “division”, which has more consumer resonance than “chamber”. That is the first raison d’être for the amendments.

I should like to probe the Minister further aboutHer Majesty’s Government’s intentions in relation to the organisation of the new tribunal system and the different chambers/divisions. Obviously, we would like those to be called divisions. Can the Minister tell us a little more about the proposed groupings? Presumably, the plan is to group together similar jurisdictions, thus allowing judicial deployment to be as flexible as possible. Presumably, that is what she has in mind. We must also ensure that expertise is maintained. How are we going to maintain expertise within the new system?

The Minister mentioned the policy statement. Many Committee members will have got their copies from the Library. I am not asking her to do our research for us, but she could make life easier by having copies of the policy statement put on a table in the Room, because some Committee members may not have had time to collect theirs from the Library.

We are talking about work in progress. The Minister said a moment ago that there is substantial work in progress and a substantial consultation taking place. I should like her to confirm that HMG will go down the subject-matter route, rather than the geography route, in grouping chambers throughout the country. We are concerned about the work load of the legal members, particularly the non-legally qualified tribunal members. When the Minister mentioned that a moment ago, she hinted, as the policy statement makes it clear, that the Government are moving away from the current silo system into three main groupings and gave some details about what those will be. Will we have the same pattern for the upper tribunals as well?

Finally, will the Minister tells us how the consultation process is going? It is an important consultation. Are all the different people who need to be consulted being consulted? What form is the consultation taking? What time scale is she considering in the process? I move the amendment in the spirit of my two arguments for this probing exercise.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall be brief because I know that this matter was raised in the House of Lords and that there was discussion about the names. Unless the Minister is going to tell me that something has changed in the last couple of days, the courts in this country are divided into divisions, not chambers. That appears to work well. However, I am all for trying to use words that the public relate to, rather than words that sound more Victorian or old-fashioned. I should be grateful if the Minister would seriously consider the amendments, which would make the system sound more accessible to the public. That must be in everybody’s interest.

Vera Baird (Labour, Redcar)

The last group of amendments that the hon. Member for North-West Norfolk moved was tabled in the House of Lords Grand Committee, but not moved. The discussion last time round was, in effect, held under the present group of amendments, so I shall try not to be too repetitive but to answer the hon. Gentleman’s questions as directly as I can.

The proposal would be to have within chambers, jurisdictions that were similar in nature and of similar subject matter. I guess that that would also require similar skills of scrutiny and similar experience. That is what is in our minds at the moment, and we are thinking of that direction, rather than geography. We will consult widely, although the consultation is not yet under way. There will be a full consultation document in the autumn, and any orders that emerge to set up the chambers will be subject to affirmative order. There will be a full opportunity for everyone who wishes to do so to contribute.

On the work load, people will be moved in and moved across jurisdictions only if they agree, so they will have an understanding of their own work load. Whether the upper tribunal will have chambers to correspond with those of the first-tier tribunal is a very good question, but we have not yet resolved it. We suspect that if there were, they would follow those that we have in mind for the lower tribunal. We are interested in having input on that.

On the timescale, we will start this autumn, and I presume that there will be the usual Cabinet Office requirement of three months’ consultation. Happily, there will be every opportunity for people to have some input.

The other limb of the amendments and the only one that has not been covered is the chambers. The point of creating chambers is to concentrate expertise. They will be set up when their nature has been determined by the Lord Chancellor, with the concurrence of the senior president. The pointers are in the policy document.

The word “chambers” will not be in everyday use. The Law Society or the Law Society of Scotland criticised the word because it thought that it was confusing and not modern. I am cheered that the hon. Member for North-West Norfolk believes that language is important and I suppose that he will give three cheers for the gender-neutral drafting that my right hon. Friend the Leader of the House announced. We agree totally that language is important and we are pleased to have the hon. Gentleman’s support. Indeed, we shall make him an honorary sister later.

To be fair to the hon. Gentleman, Sir Andrew Leggatt proposed using the word “division” because it is consistent with terminology in the High Court. We chose “chambers” because it is different and is not used daily in the courts. They will call a tribunal whatever they call it now, but “chambers” as opposed to “division” is intended to be a little more flexible because the Court of Appeal and the High Court, which have jurisdictional divisions, are quite rigid in that effect. We chose a word that indicates flexibility in jurisdiction.

I hope that that explanation is sufficient to persuade the hon. Gentleman that the language is tolerable, and that he will not press his amendment.

Tobias Ellwood (Conservative, Bournemouth East)

The Minister mentioned a consultation exercise in the autumn. Will she explain a little more about that consultation for the record and how it dovetails in with any legislation that we may confirm this week?

Vera Baird (Labour, Redcar)

I have already set out the nature of the consultation. The Cabinet Office requires it to be three months and there will be a full paper. We have already started the process in the sense that we have issued a detailed policy statement so that people can see which way our thoughts are going and prepare themselves for the fuller consultation document. It will be the usual open consultation and anyone who wants to make a submission can do so. I am sure that Ministers will actively look for responses and input from relevant people, which is common form. I assure the hon. Gentleman that we have every intention of making the consultation as thorough as possible. A whole series of new structures is being proposed and it is important that we leave no stone unturned to ensure that we get the structures right.

The Bill contains some detailed provisions on how the new structure will function—provisions which set out the essential bedrock guarantees of independence, security of tenure and so on for the new tribunal judiciary. Further detail will emerge in the form of orders and regulations after we have consulted within the framework, and after people have had an opportunity to digest how the framework would work. Those measures will have to be considered by the House by way of affirmative resolution, so I do not think that the hon. Gentleman need worry.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have heard the Minister’s arguments and it is not the most important matter, but will she reflect on the wording? In addition—I shall not press it now and if necessary we can address it on Report—will she say whether the senior president-designate has expressed a view on the issue? If so, what is that view?

Vera Baird (Labour, Redcar)

No, he has not.

Henry Bellingham (Conservative, North West Norfolk)

It is always nice when a Minister describes a question as being a good one and says that it is being considered, such as my question about the upper tribunals and whether the same system will be used for them. She has pledged to my hon. Friendthe Member for Hornchurch to consider a possible amendment on the clause that we considered earlier, so we have had not too bad a morning’s work, particularly as hon. Members from my party have not been told off for not doing our own research.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Government have the civil service.

Henry Bellingham (Conservative, North West Norfolk)

Indeed, and we do not have the civil service.

Will the Minister continue to reflect on the terminology, because it is important in relation to the public’s perceptions of the legal system? That is why I hope that she will not have a completely closed mind on the amendment and on the use of the word “divisions”. Obviously, we shall not press the amendment to a vote, but I hope that the Minister will be prepared to continue the discussion on terminology. I beg to ask leave to withdraw the amendment.

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 17, in clause 7, page 5, line 8, leave out ‘, or two persons,’.

Joan Humble (Labour, Blackpool North and Fleetwood)

With this it will be convenient to consider amendment No. 24, in clause 7, page 5,line 16, leave out subsection (5).

Henry Bellingham (Conservative, North West Norfolk)

This is a short, sharp, probing amendment. Clause 7(2) refers to one or two persons being required to preside over each chamber. I am intrigued as to why two people are needed, and I am concerned that two different people might chair a tribunal during the course of one hearing. Could that happen? It is unlikely, but will the Minister clarify the point?

Vera Baird (Labour, Redcar)

I am grateful to the hon. Gentleman. The answer to his specific question is that one could not change the personnel in the middle of the case.I recall once going to do a university disciplinary tribunal case for 10 students who had been demonstrating. Half way through the summer during which the case was being heard, the academics on the tribunal went off on their usual interesting fact-finding missions overseas, and I came in one morning to find that half the members of the tribunal who had been present for the previous three weeks had gone, and completely different people had replaced them. The appellate tribunal had no difficulty whatever in quashing such convictions as there had been, and there would be a similar outcome in any other cases of swapping in the middle of a case. So the answer is no.

The purpose is one of flexibility. We have not yet worked out, through the consultation and input that I have mentioned, exactly what the jurisdictions will be, what the chambers will consist of, and what the exact size of chambers will be. It is hard to predict how many presidents will be required to cover each chamber. There might be good reasons to have two people presiding over one chamber, because of job sharing,for instance, or other reasons of flexibility. If two chambers merged to create a single chamber, it would probably be a good idea to keep two presidents. It is all about flexibility, and there is nothing to be gained from restricting it while so much is still at large. I invite the hon. Gentleman to withdraw the amendment.

Henry Bellingham (Conservative, North West Norfolk)

I beg to ask leave to withdraw the amendment.

Vera Baird (Labour, Redcar)

Clause 7 and schedule 4—the latterhas yet to be debated—set up the boundaries of jurisdiction between the first and upper tiers. Together, they impose a duty on the senior president to developa policy on the assignment of judges to chambersand to enable tribunal judges to sit across different jurisdictions. Once existing tribunals transfer in, a wide range of specialist jurisdictions will be brought together, and it would dilute expertise and damage the service if all judges and members were expected to deal with all kinds of case.

The Government want a structure, a grouping of jurisdictions, so that similar work can be dealt with appropriately by those who have the relevant experience to deal with it. I call them chambers, but I keep an open mind on that at the request of the hon. Member for North-West Norfolk. At the moment, however, the term chambers commends itself to us. The division into chambers will, I guess, follow the current jurisdiction or boundaries, but it is intended to be more flexible. The Lord Chancellor and the senior president can create chambers by order.

Schedule 4 deals with the appointment of presidents by the Lord Chancellor. The presidents are intended to provide judicial leadership within their chambers and to guarantee levels of expertise, so that the chambers will be able to issue guidance on changes in law and practice as they relate to the functions allocated to their chambers. Deputy chambers presidents will take on functions that can be delegated when necessary. Some chambers presidents may be appointed directly; others might come from the senior judiciary. The Lord Chancellor has to consult the senior president at all times about such appointments, and if a senior judge is appointed, he will have to seek nomination from the relevant chief justice. If no appropriate candidatesfor tribunal presidents come forward, the Judicial Appointments Commission will suggest some.

No one will be able to preside at the same time over more than one chamber in either the first tier or the upper tribunal, but someone might preside over one chamber of the upper tribunal and a first tier tribunal at the same time. We want to use our experienced and skilled judiciary as flexibly as possible, and the senior president has responsibility for policy on the matter. To ensure the openness and transparency of the system, the senior president will have to publish that policy, saying how he proposes to assign judges and members. To ensure appropriate executive accountability to Parliament—something that troubles the hon. Gentleman, particularly because of the resource implications—the concurrence of the Lord Chancellor will be required before the senior president’s policy can be adopted.

Panel composition requirements will be set by order of the Lord Chancellor; that will be done jurisdiction by jurisdiction. The number and qualifications of members assigned to sit on particular appeals must take account of recourse implications, and scrutiny will be provided. The chamber structure will enable the system to adapt swiftly as circumstances change, while guaranteeing the experience and expertise that is so important to the user.

Clearly, much has yet to be fixed and determined through consultation, but clause 7 provides a good framework. I therefore move that it stands part ofthe Bill.

Brooks Newmark (Conservative, Braintree)

I apologise, Madam Chairman, for not catching your eye a little earlier.

I support the Minister in the use of gender neutral language. It is important. As co-chairman of the Conservative party’s women2win group, I approve. On a technical point, I use the phrase “Madam Chairman” because the man of “chairman” comes from the Latin derivative of mano—a hand on the chair—and has nothing to do with men or women.

I turn to the substantive question.

John Bercow (Conservative, Buckingham)

In common with my co-Chairman, I am content that right hon. and hon. Members should take off their jackets if they wish.

Brooks Newmark (Conservative, Braintree)

It is a delight to see you in the Chair, Mr. Bercow.

I was in full flow at the end of this morning’s sitting, but I shall get to what I was hoping to ask the Minister. I was surprised at a point that she made in response to my hon. Friend the Member for North-West Norfolk. She suggested that it would be best to have a consultation after the Bill has come to the House. I am curious about that practice. I appreciate that I am a fairly new boy, but would it not be better to have a consultation, as my hon. Friend suggested, prior to the Bill coming to the House, rather than afterwards?

Vera Baird (Labour, Redcar)

I, too, am delighted to see you in the Chair, Mr. Bercow; it is wonderful to serve under your chairmanship again. I mentioned the previous Bill this morning, but we shall not compete with 925 clauses.

The hon. Member for Braintree asks a germane question. However, there has been a sizeable amount of consultation and it is still ongoing. It has given us the confidence to introduce the Bill into the Lords, which, again, has done a good job of refinement and already ensured that interest groups fed into the process. We believe that we are fully informed and that we can put forward a sufficient framework to get the new structure on the move. Thereafter, there will be a huge amount of detail that will require yet further consultation. That is the process that we have adopted; I hope that that reassures the hon. Gentleman.

Clause 9

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 40, in clause 9, page 6, line 11, after ‘review’ insert ‘on any point of law’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments: No. 45, in clause 11, page 8, line 24, after ‘any’ insert ‘question of fact or’.

No. 46, in clause 11, page 8, line 24, after ‘of’ insert ‘fact or’.

No. 49, in clause 12, page 9, line 34, at end insert

‘or is manifestly unreasonable on the facts’.

Henry Bellingham (Conservative, North West Norfolk)

It is a great pleasure for me to serve under your chairmanship for the first time, Mr. Bercow. I look forward to this Committee being happy and constructive.

Clause 9(1) states:

“The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1)”.

My amendment probes the powers of the first-tier tribunal to review its own decision. What is the scope of that power of review? Is it merely limited to points of law or does it go beyond that to evidential matters? If it is only a power of review, does it refer purely to formal matters or does it extend to something more substantial?

Presumably, the essence of the subsection is to ensure that the only cases that go to appeal will be those that really need to—the power is to enable minor errors to be corrected swiftly and informally. I recall from my time at the Bar that there are certain rules of procedure allowing magistrates courts, for example, to overturn their own decisions quickly within a certain period. I believe that there are other precedents as well. Will the Minister say what other precedents there are for the correction of minor mistakes without the need for a full appeal?

If the power is all part of trying to make the tribunal system more informal, user-friendly and generally more efficient, we would support it. However, I should be grateful if the Minister enlightened us further. These are probing amendments.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There are four amendments in the group, but only the lead amendment relates to the clause; the other three relate to clauses 11 and 12. I do not support the first amendment in the group, because I believe it is important that there should be a general power of review left to the lower-level tribunal. That is something that tribunals need to do, because there may be factual inaccuracies or information given may need to be corrected. There are all sorts of reasons why it is sensible for the same tribunal to return to a matter if something is pointed out, whether on direction from elsewhere or, as the Bill says, instigated by the tribunal. That process should not be fettered. I understand that, at the moment, although the Minister will no doubt correct us, such a return is generally likely to be on points of fact, evidence or procedure, but it could be on a point of law as well if that were necessary.

The more substantive matters are covered by amendments Nos. 45, 46 and 49, which would allow a right of appeal to the upper tribunal, and not only on a point of law. That is a significant matter. There is merit in amendment No. 49, which would allow a right of appeal not just on a matter of law, but in respect of where the facts did not bear out or justify the decision, or on a question of fact with the leave of the higher tribunal. However, I am nervous about the idea that factual matters cannot be appealed against and that only legal matters can be appealed against. There are all sorts of cases, from past experience, where the facts do not lead to the tribunal’s conclusion. I have been involved in some cases like that and I am sure that Committee colleagues have, too.

I realise that this is not a new matter—like most things in the Bill—because it has already been to the House of Lords and there has already been at least one set of discussions on it. However, a fairly strong case was put in the Lords for ensuring that there was a wider power of review by the upper tribunal of the lower tribunal. If we are going to keep things in the tribunal system and prevent them from going to the Court of Appeal, or from going outside the tribunal system to a higher court, which is more expensive, would take longer and so on, we should allow the two levels of tribunal to sort things out as much as possible.

One does not want the ability to have a completely new run of the case at the upper tribunal, in the same way as it was run in the lower tribunal. One should not be able simply to appeal for the sake of it, with no check or balance. At the moment, in your constituency, Mr. Bercow, as in mine, many parents will have received letters telling them that their child cannot go to the school that was the family’s first choice. An appeal system is permitted in such cases in almost every school, apart from—anomalously—city technology colleges, where there is no appeal system, which is an injustice that has never been corrected. Many people appeal against such decisions as a matter of course, simply because they want a review and cannot believe that they should not get into the school that is near them. I understand that we do not want a tribunal system that allows an appeal as a matter of course, in effect, to a similar body, although one tier up, simply to hear the facts. The onus is on the Government to argue for such a restriction. I hope that the Minister is sympathetic, at least to amendment No. 49 and, if not, to a variant of amendment No. 45, but resists amendment No. 40.

Vera Baird (Labour, Redcar)

This is about the tribunal’s review powers and the right of onward appeal. The first tier tribunal can be reviewed or appealed against. Appeals are only to correct errors of law or to clarify the law, but essentially they are to correct accidental errors. The hon. Member for North-West Norfolk has put his finger on what the review panel is about. A review can be done either through the tribunal’s own initiative or on application by a person who has a right of appeal. As he said, the point is to ensure that only those cases that lead to appeal go there.

There are parallels. The hon. Gentleman referred to the civil procedure rules. Rule 40.12 provides for slips and omissions in civil courts to be corrected without the need for an appeal. Section 155 of the Criminal Courts (Sentencing) Act 2000 provides a slip rule for the criminal courts to vary or rescind a sentence within 28 days. There is a similar power in section 142 of the Magistrates’ Courts Act 1980. Those are the precedents that he sought from me.

Similar amendments were tabled in the House of Lords. We modified the review provisions to make sure that they were not too wide. They are now subject to tribunal procedure rules that can be used, for example, to stop frivolous applications for review for the sake of it—of the sort that the hon. Member for North Southwark and Bermondsey conjured up in his analogy of school appeals. I hope that I have satisfied him about reviews.

As for broadening the scope of appeal to the upper tribunals, the pattern is that the first tier is to hear appeals from the decision maker. It will consider all the evidence. It will make findings of fact and, where necessary, law. It would be completely disproportionate to set up another tribunal that could rerun that. However, if the first tier tribunal gets the law wrong or substantive issues of law need an authoritative ruling, the upper tribunal is there to deal with such matters. Without it, those rulings would have to go to the High Court or the Court of Session to be made. It is exactly the model that we are used to through the employment tribunals, the Employment Appeal Tribunal and the social security commissioners. It is straightforward and flexible.

The hon. Member for North Southwark and Bermondsey mentioned manifestly unreasonable conclusions on the facts and the importance of having a ground of appeal wide enough to stop those automatically from going out into the more expensive, more complex and longer procedure of judicial review. We feel confident that our error of law is wide enough to deal with manifestly unreasonable conclusions on the facts. I hope that both hon. Gentlemen will accept that we have struck a fair and proportionate balance and that the amendments can be withdrawn.

Henry Bellingham (Conservative, North West Norfolk)

I am grateful to the Minister for her explanation of the amendments to which I spoke earlier. Further to the point made by the hon. Member for North Southwark and Bermondsey, will the hon. and learned Lady comment on the Tsfayo case that was raised in the other place by Lord Maclennan of Rogart? It is not sub judice; the case was heard before the European Court of Human Rights. The Tsfayo party won the case. The decision was that the facts could be brought forward on appeal, not only a point of law. Will she comment on what was discussed in the House of Lords? I understand that her colleague said that the Government would provide more detail about it at a later stage. I beg to ask leave to withdraw the amendment.

Clause 12

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 50, in clause 12, page 9, line 36, leave out ‘may (but need not)’ and insert ‘must’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments:

No. 51, in clause 12, page 9, line 37, leave out ‘if it does,’.

No. 53, in clause 14, page 11, line 46, leave out ‘may (but need not)’ and insert ‘must’.

No. 54, in clause 14, page 12, line 1, leave out ‘if it does,’.

Henry Bellingham (Conservative, North West Norfolk)

The principal amendment is a simple probing amendment that would replace the word “may” with the word “must”. The others are consequential on it. If the upper tribunal decides against the lower tier, it is surely not the case merely that the upper tribunal may be able to set aside the decision. Rather, surely it is the case that it must set the decision aside. There should not be any “mays”, “perhapses” or “coulds”; the word should be “must”. That would represent better drafting and would be altogether neater and clearer.

Vera Baird (Labour, Redcar)

The question is one of the discretion to set a decision aside when the upper tribunal finds an error of law, and I remind the Committee that we are concerned with matters relating to the senior judiciary. An error of law might be found that none the less does not render the corresponding decision incorrect. To force the upper tribunal to set the decision aside in that situation would clearly not be wise. I hope that those few words of explanation will persuade the hon. Gentleman to withdraw his amendment.

Henry Bellingham (Conservative, North West Norfolk)

I am in a good mood, because it is a lovely spring day. The Minister has made the Government’s intention clear. I beg to ask leave to withdraw the amendment.

Clause 13

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 52, in clause 13, page 10, line 30, at end insert—

‘(7A) The Lord President may, as respects an application under subsection (4) for which the relevant appellate court is the Court of Session, by order make provision for leave not to be granted on the application unless the Upper Tribunal or (as the case may be) the Court of Session considers—

(a) that the proposed appeal would raise some important point of principle or practice, or

(b) that there is some other compelling reason for the Court of Session to hear the appeal.’.

The amendment is on the same subject matter as the clause title and was recommended by the Law Society of Scotland, of whose opinions I believe we should take due note. It is an eminent body and it should know what it is talking about. It is concerned that clause 13 does not contain a provision relating to the Lord Presidency and the Court of Session.

In the House of Lords, Baroness Ashton kindly said that she would consider the equivalent amendment carefully, positively and with an open mind. The reason why we have tabled the amendment again is to remind the Minister of those commitments, and I hope that in the spirit of good will that is permeating the Committee the Minister will accept the amendment.

Vera Baird (Labour, Redcar)

The amendment would extend to the Court of Session the possibility of limiting second appeals in the way in which they are limited for the rest of the UK. The limitation is established in England, Wales and Northern Ireland, but there is no equivalent provision for Scotland. The hon. Gentleman is right: his noble colleague, Lord Kingsland proposed the same amendment in the other place, and my noble Friend, Baroness Ashton undertook to consult the Lord President and the Scottish Executive.

As a result of the consultation, we concluded that the judicially led review of the Scottish civil courts announced by the Minister for Justice in the Scottish Executive in March 2006 would be best placed to consider the detail of possible application for second appeals in Scotland across all Scottish civil courts. I hope that the hon. Gentleman agrees with that conclusion and can be persuaded to withdraw his amendment.

When the hon. Gentleman referred to the Tsfayo case, he referred to a similar undertaking made by my noble Friend, Baroness Ashton to give further information about the case. I shall write to him about that.

Henry Bellingham (Conservative, North West Norfolk)

I welcome what the Minister has said. As we have such good will from her I hope that at some stage she will say that she will come back on Report with a Government amendment to satisfy those points. Perhaps she can consider what I have said in the light of tabling a Government amendment at that stage if she feels that it is possible. I beg to ask leave to withdraw the amendment.

Clause 15

Henry Bellingham (Conservative, North West Norfolk)

We are now moving into an important part of the Bill, which relates to judicial review. I do not want to anticipate some amendments that I have tabled to clause 22, which I feel are very important, but I want to set the scene and to point out to the Minister that judicial review is an important part of our jurisprudence and whole legal system.

Any student at the Bar or trainee solicitor is taught about judicial review from the earliest stage. It is a vital part of our law and this piece of the Bill has to be regarded in that context. Will the Minister say a bit more about how the judicial review process will work and give us a little more detail? How often does she expect it to be used? I do not want to go into the detail of what we will discuss on clause 18, where we will consider the limits of jurisdiction, but clause 15(1) sets out exactly what the power will be and what kinds of relief will be available under judicial review. I do not want to anticipate my amendments to clause 18, because they are the ones that we feel strongly about. However, all these clauses are of profound importance and I am anxious that we should not let them go by without some explanation from the Minister. I would be grateful if she could give that.

Vera Baird (Labour, Redcar)

Essentially, the point of enabling the judiciary to transfer cases from the normal judicial review jurisdiction into the upper tribunal is to harness the expertise that is likely to be available in that forum on the special kinds of business that the tribunal system takes care of. The provisions do not remove or resist judicial review, but make it possible for selected judicial reviews that would normally be heard before the High Court to be dealt with in the upper tribunal. The powers will be the same as those of judicial review, so the fact that it is in the tribunal system does not mean that there will not be the power to grant mandatory orders, prohibition, quashing orders, declarations or injunctions. The hon. Gentleman will recall from Second Reading that the range of judiciary available to deal with quasi-judicial reviews in the upper tribunal is restricted to the High Court and those approved by the chief justices.

We expect the power to be used comparatively rarely—dozens of times at most and certainly not in large numbers—and that its use is likely to be confined to technical situations that would be better dealt with by technically expert people.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister is right, as is the hon. Member for North-West Norfolk. This is an important development, which I do not resist. Can the Minister say whether it is expected that this will be a quicker procedure and, as many assume, a cheaper one? When thinking about judicial review, people are always concerned about the potential cost implications and the delay. There is a linked question which, although we may debate it later, is relevant to this set of clauses, of which clause 15 is the first. Will legal aid be available for judicial review proceedings in an upper level tribunal, as it is normally available for a judicial review in the High Court?

Vera Baird (Labour, Redcar)

Will it be quicker and cheaper? One imagines that it will be cheaper, because the informality of the tribunals makes them quicker, generally, than courts. Whether they are quicker depends on listing, the number of cases and the backlog in the upper tribunal. Granted that there is frequent discussion about shortages of judicial manpower in the High Court, one imagines that it is likely that cases could be heard more quickly. However, I cannot say more than that. I am told that judicial reviews are being got to court quite quickly now. That is not what it used to be like. I can give no promises as to whether the process will be quicker, but it ought to be cheaper.

The hon. Member for North Southwark and Bermondsey asked me about legal aid. That is an important point. There is not, on the face of it, a right to legal aid in the tribunal system. I have raised that matter and I will write to the hon. Gentleman, if I may, with a more comprehensive answer. There are situations where it is probably not necessary, but there may still be situations that he would continue to be concerned about, so I shall write to him.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am grateful for the Minister’s generically helpful answer. I have experience of, and am involved at arm’s length with, a judicial review application at the moment on a Government decision to close the 24-hour emergency clinic at Maudsley hospital. The application was made some weeks ago and nothing has happened yet, so my honest view is that judicial reviews do not always swing into the courts on the next day after the application—although some may be quicker.

This is an important matter. The presumption should be that a judicial review for somebody who does not have the resources should be legally aided, whichever tribunal is dealing with the matter. Depending on the Minister’s answer, we would be keen to reserve the right to return to this matter. There is general concern about some important cases currently in tribunals. I hope that we can reach agreement and, if not, I give notice now that we may be able to work together to achieve an amendment on Report that would deal with the concerns.

Vera Baird (Labour, Redcar)

There are always applications with exceptional circumstances where ministerial discretion should be exercised. Certainly, if I were being asked to exercise such discretion in respect of an important technical case, one would expect it to be exercised benevolently. It is not a desert at present.

Clause 18

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 55, in clause 18, page 15, line 3, leave out ‘to’ and insert ‘, 2 and’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss amendment

No. 56, in clause 18, page 15, line 16, leave out subsections (6) and (7).

Henry Bellingham (Conservative, North West Norfolk)

This clause is important and we have decided to table some amendments to it, because there is an overwhelming argument for judicial review cases in the upper tribunal to be heard only by a High Court judge. There was substantial debate about that in the other place. Clause 18(8) says:

“a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or...such other persons as may be agreed from time to time between the Lord Chief Justice”

and so on. This amendment seeks to delete paragraph (b) which gives power to appoint someone other than a High Court judge. Why do we feel strongly about it? For a number of reasons—

John Bercow (Conservative, Buckingham)

Order. I fear that the hon. Gentleman is eliding into another group of amendments with which the Committee is not currently dealing. I am sure that he has done so inadvertently. I say that in the most courteous terms and hope that he will focus on amendments Nos. 55 and 56.

Henry Bellingham (Conservative, North West Norfolk)

I will most certainly do so, because you are absolutely right, Mr. Bercow, to correct me. Subsections (6) and (7), which we are seeking to remove, lead on to the next group of amendments. Forgive me for entering into a wider discussion about High Court judges.

Vera Baird (Labour, Redcar)

The amendments would remove the ability of the High Court to transfer any class of case to the upper tribunal for the purposes that we have already started to discuss. It would be for the Lord Chief Justice, with the agreement of the Lord Chancellor, to designate classes of cases for which the upper tribunal would have sole responsibility and for the High Court to decide other cases, as and when they arise. That seems the right balance. The initiative is with the judiciary throughout, which again seems correct.

If the amendments were carried, it would not be possible for a class of cases to be transferred. The whole power would not have been excluded, but it would have to be exercised on a case-by-case basis. That seems a wasteful use of judicial resources. As I said, the power is intended to be used only in fairly technical cases. Classes of cases would be more likely to be moved when there were good technical reasons to do so and not otherwise. It seems sensible to have that power so that a tranche of cases, which might be similar or which might have the same technical components, could go over at once, instead of each case having to be considered separately.

The Lord Chief Justice is content that he can define a class of case of this nature. Therefore, we should not gainsay that by saying that each and every individual one ought to be considered separately. I hope that it is the judiciary’s approval and support, which I have now brought to the Committee, that will facilitate the hon. Gentleman’s seeking to withdraw his amendment.

Henry Bellingham (Conservative, North West Norfolk)

I apologise for jumping the gun. I did not look closely enough at the groupings. I beg to ask leave to withdraw the amendment.

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 57, in clause 18, page 15, leave out line 23.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments: No. 58, in clause 18, page 15, line 25, leave out from ‘Session’ to end of line 29.

No. 59, in clause 19, page 16, line 13, leave out ‘and 4’ and insert ‘, 4 and 5’.

No. 60, in clause 19, page 16, line 15, leave out ‘and 4’ and insert ‘, 4 and 5’.

No. 61, in clause 19, page 16, line 37, at end insert—

‘(8) Condition 5 is that the application would, if transferred, be heard by a tribunal complying with section 18(8) of the Tribunals, Courts and Enforcement Act 2007.’.

No. 62, in clause 19, page 17, line 1, leave out ‘and 4’ and insert ‘, 4 and 5’.

No. 63, in clause 19, page 17, line 3, leave out ‘and 4’ and insert ‘, 4 and 5’.

No. 64, in clause 19, page 17, line 25, at end insert—

‘(8) Condition 5 is that the application would, if transferred, be heard by a tribunal complying with section 18(8) of the Tribunals, Courts and Enforcement Act 2007.’.

Henry Bellingham (Conservative, North West Norfolk)

I certainly take the view that it makes sense to refer judicial review matters to the upper tribunal. The Opposition broadly support what the Government are trying to do. We feel that it makes sense and in some ways is an overdue step.

Nevertheless, this is an area of great importance. In the past, the power to grant judicial review has been confined to the High Court. We should look at the phrasing of the Bill and the way in which the term “judicial review” has been put in inverted commas in clause 15. The reason why judicial review is so important is that it allows the individual citizen to challenge the decisions of Departments and of other public bodies. Judicial review cases are often extremely high-profile. One thinks of certain recent cases that have hit the headlines, and of the occasions when previous Home Secretaries have been overruled on judicial review, such as when Mr. Justice Collins overruled the Home Secretary on a matter of anti-terrorist law.

Given the history of judicial review and its importance in our whole legal system and our constitution, I share the view of many other Conservative Members that there has to be a High Court to keep the Government in check by means of the judicial review process. An important aspect of the fulfilment of that function is that High Court judges decide such vital issues. If the Bill proceeds as it stands, however, matters could be decided by

“such other persons as may be agreed from time to time”.

Obviously, those other such persons will not be High Court judges, although they will be hugely eminent and experienced, and the agreement on who they are will be made between the Lord Chief Justice, the Lord President or the Lord Chief Justice of Northern Ireland, or, as the case may be, the senior president of tribunals. I do not suggest for one moment that they will not be of the highest calibre, nor that they will lack the advice of experienced people. Maybe the Opposition are being purist. However, there is a significant body of opinion in legal circles to the effect that the decisions should be made by High Court judges, that that is what the Bill should say expressly, and that the words that I have quoted should be removed. If they were, the Opposition would be far more content.

Only in rare circumstances will it be the case that such key judicial review applications do not go before a High Court judge—once or twice a year, maybe. Perhaps the Minister will tell us how often she expects that to happen. It might be only once every five years. However, those few cases could be of overwhelming importance, and in those circumstances we believe that it would always be appropriate for them to be heard by a High Court judge.

The Minister, and the Department for Constitutional Affairs, might well say that there are not enough High Court judges around and that there will at all times be insufficient such judges to take on the task. However, if there is such a shortage, and if there is an argument that more are needed, there is a vast pool of talent out there. We shall shortly be debating the widening of the pool for judicial appointments. If the DCA’s position is based on unavailability of High Court judges, my response is that there are easily enough people around with the serious talent and intellect to fill the spare places on the High Court bench.

If the Government are concerned about a lack of judges, they should make one or two additional appointments, which would immediately remove the administrative concern about such a lack. We could then put the Bill to Her Majesty in due course knowing that a very important part of our constitution had been preserved. The ability for such cases to be properly heard has been a part of our legal system for a very long time indeed. It provides the modus operandi whereby citizens of this country can actually challenge the Executive in cases that go to the root of our freedoms. I might be getting slightly carried away, and it might be that the matters that will come from tribunals on judicial review will not be anything like as weighty as I have suggested, but they could be. Given the types of issue that tribunals deal with day in, day out, it might well be that from time to time there will be appeals on judicial review that are pretty fundamental to the citizens of this country, our electors and our constituents. That is why we feel strongly that, at the very least, the Government should give a further explanation than the one that they gave in another place. We need to be satisfied that there is an overwhelming reason why the Bill cannot state that High Court judges will exclusively hear the applications.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I added my name to the amendment because I share the strong views that are held about this matter. So far judicial review is carried out only by the High Court, but using the relatively newly developed opportunity in this country, people can use administrative law to challenge the Executive. Citizens have the opportunity to go to the independent judiciary to challenge the Executive. The Executive could be a Secretary of State, an agency, a Department or an official of the Government. That principle, certainly in the early days of the newly structured Tribunals Service, should be subject only to the judgment of someone who has the authority of a High Court judge. Clause 18(8) and its condition 4 give flexibility for other appointments.

Of course, people acting in the best interests of the system and the post holders, such as the Lord Chief Justice, the Lord President, the Lord Chief Justice of Northern Ireland and the senior president of the tribunals, will obviously consider such matters wisely. However, it should be not for them, but for us, to decide the matter. A lot of things in the Bill could be dealt with by secondary legislation or even rules of court or tribunals, not primary legislation.

However, what we are discussing should, first, be dealt with by legislation and, secondly, retain its present position. It is an innovation. It will give tribunals in the upper tier that we are creating the power to deal with judicial review applications. They are matters in which decisions are of major significance. They could go to the highest authorities in the land, so my request is for the Minister to reconsider the matter and accept that for the time being and for the first five or 10 years of the system, such a provision should be excluded. The best way in which to do that is to support the amendment. If later experience suggests that we can change things, we can return to the matter in the fullness of time. I would far rather that we struck out the provision now and kept the authority of the High Court for judicial review. I support the amendment.

Vera Baird (Labour, Redcar)

We do not agree. I agree with the hon. Member for North-West Norfolk that the current provisions will guarantee the highest calibre of judiciary in the upper tribunal to deal with judicial reviews. I also agree that there is a significant pool of talent able to be appointed, but this is not about personnel availability, but about flexibility.

The hon. Gentleman asked how many cases we expect to be dealt with. We expect there to be a mixture. The Lord Chief Justice will second some High Court judges to the upper tribunals. They will do some of the work, but many of the cases will be dealt with by the expert judges who are already in the upper tribunal. As my noble Friend Baroness Ashton explained in the other place, we regard a blanket requirement saying that a High Court judge is necessary for every judicial review in the upper tribunal as neither desirable nor necessary. The lengthy debate in the other place resulted in a clause that now encapsulates the principle that judicial review should be heard only by those judges who have the experience and expertise to do so. The clause would not do that by limiting the judges to those who are currently hearing judicial review in the courts.

I should emphasise that both the senior president and the Lord Chief Justice agreed that the amendments are workable and practical. I do not agree with the hon. Member for North Southwark and Bermondsey, who said that in this case the allocation of judges ought to be done by legislation; I think that it is better done internally, by the judiciary itself.

I would also point out to the hon. Member for North-West Norfolk that deputy High Court judges now hear judicial reviews. Sometimes they are circuit judges and sometimes they are QCs who are not judges at all, so we are not exactly striking out on a new line.

The hon. Member for North-West Norfolk has discerned a significant body of opinion in legal circles that the ability to decide on judicial reviews ought to be confined to High Court judges. I should tell him that the Lord Chief Justice is not a member of that body of opinion. He states:

“Some cases in the Upper Tribunal will need High Court judges to hear them, and I intend to make such judges available to sit on those cases. However, it is imperative”

—imperative—

“that there is flexibility in relation to the circumstances where cases should be transferred to the Upper Tribunal, and flexibility as to who they will be heard by. That flexibility would be disturbed if the Bill was to include a provision limiting such cases to High Court judges, regardless of the relevant circumstances of the case. There are some persuasive examples of cases where judges of the Upper Tribunal will have the expertise to handle particular cases in the most appropriate way. Technical tax cases have, for example, been mentioned in the course of our discussions.”

Of course, we would expect special commissioners of income tax and social security—people who might hear judicial reviews in their own area of technical expertise—to be people of the highest imaginable calibre, as the hon. Member for North-West Norfolk said. However, flexibility is imperative, so I invite the hon. Gentleman to feel persuaded to withdraw his amendments because they are opposed by the Government.

Henry Bellingham (Conservative, North West Norfolk)

The Minister quoted from the Lord Chief Justice and put an important point of view on the record. However, we should continue to discuss the matter because it is of fundamental importance. I am conscious of the fact that if we talk about it for too long in Committee, we might jeopardise our chances of returning to it on Report. I am grateful for the Minister’s response and the wise words contained in it, in which spirit I beg to ask leave to withdraw the amendment.

Clause 22

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 65, in clause 22, page 19, line 38, at end insert—

‘(za) that the interests of justice are achieved,’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments: No. 66, in clause 22, page 20, line 1, after ‘expressed,’, insert—

‘(da) that the tribunal system complies with the European Convention on Human Rights,’.

No. 68, in clause 22, page 20, line 5, leave out ‘(4)(b)’ and insert ‘(4)’.

Henry Bellingham (Conservative, North West Norfolk)

This is a modest point and concerns the powers to make procedural rules for tribunals. A number of categories are set out in clause 22(4)(a) to (e), which we think could be strengthened by adding an expression relating to the achievement of the interests of justice. I imagine that the Minister will say that the achievement of the interests of justice underlies every measure in the Bill, but I would suggest that having the words contained in amendment No. 66 in the Bill would send an important message and that the Bill would be stronger as a consequence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There are three amendments in this group and I want to speak specifically to amendments Nos. 66 and 68. The hon. Member for North-West Norfolk moved amendment No. 65. I anticipate that the Minister will say that that amendment does not materially change what is currently in 22 (4) (a), which also talks about justice. However, does she not agree that the amendment is slightly wider and therefore slightly better? Also, an important point in the amendment establishes that every part of the judiciary and the judicial process complies with the European convention on human rights, which states that people must have access to justice and a fair trial—either civil or criminal. The amendment is a link to amendment No. 67, which comes in the following group.

When we come to debate the next group, which is specifically about legal aid provisions, it is important to see the amendments as part of the debate about access to justice and compliance with the European convention. If the Minister can satisfy us that all aspects of the tribunal system have been checked and proof read for ECHR compliance, as every Bill is required to be, and that all the rules issued to the tribunals are satisfactory, then we will have to accept that for the time being. Does she not think that it would be better to have that sort of statement within the Bill? In that context, I want to ask the wider question. For those who know the workings of the civil and the High Courts relatively well, they will know that there are two books of rules that are used by all practitioners, including judges and lawyers. One is a large white book for the High Court and the other a smaller green book for the lower courts, which is known as the county court book. Many of the rules governing the courts are in those two books rather than in primary legislation. Why, in this case, was the judgment made to put slightly more of the detailed rules into primary legislation than Governments normally wish to do? Is there an exact comparison that has been done to make sure that we are doing here what we have already done in the High Court?

I’m always keen that we have Bills that are as short and as simple as possible. Matters that are entirely technical should be in secondary legislation—unless they are of significance—and in rules if they are of importance to practitioners but not to members of the public. I would be grateful to know what led the Minister to make the judgment that we need as much of the regulation of the process in primary legislation, of which clearly this is part.

Vera Baird (Labour, Redcar)

Amendment No. 65, which was moved by the hon. Member for North-West Norfolk, adds an interest of justice test to the list of principles that the tribunal procedure committee should keep in mind when making rules. Lord Kingsland, the colleague of the hon. Member for North-West Norfolk, moved an amendment with exactly the same effect in Grand Committee in the House of Lords. The Government accepted, as I do now on behalf of the Government in this House, its general intention in principle. An alternative more in keeping with the drafting of the Bill was offered to Lord Kingsland and he tabled the draft on Report, which is now clause 22 (4) (a). It would be extraordinary to add to the Bill the alternative which Lord Kingsland rejected in favour of 22 (4) (a). Therefore, I do not think that we should entertain the prospect of doing that.

The hon. Member for North Southwark and Bermondsey gave almost the same answer that I have given to amendment No. 65, although he asked whether the provision proposed by the hon. Member for North-West Norfolk was not wider and therefore better. However, Lord Kingsland was satisfied that the term “ensure that justice is done” was just as good as “acting always in the interests of justice”. I am inclined to agree.

On the further amendments to which the hon. Gentleman spoke, it is exactly as he said. Of course, the tribunal system and the provisions of the Bill have to be convention-compliant. As the hon. Gentleman said, all Bills have to be considered in detail to ensure that they are compliant, and they are considered in that way before the Minister—in this case, me—signs to say that they are compatible with the European convention. To add something saying that the Bill shall comply with the European convention is pointless. As the hon. Gentleman, who is an experienced Committee member, knows, if something odd and unnecessary is included in a piece of legislation to make things clearer, the next piece of legislation that does not include it is always called into question. There is nothing to be gained from adding such a thing to the Bill and it would add not one iota to its human rights calibre.

Amendment No. 66 would ensure that the rules are compliant with the ECHR. One could say that they may have to be all the more compliant than the legislation. The legislation could be declared incompatible if it were not compliant and, anyway, hon. Members would not want to bring into play legislation that was not convention-compliant. Subsidiary legislation could be overturned by the judiciary if it were not compliant, so the tribunal procedure committee will have to ensure that it is convention-compliant.

Is there more detail about this matter in the Bill than is normal? There is no intention that that should be so. We intend the level of primary and secondary legislation to be broadly similar to that which is customary. I invite the hon. Member for North-West Norfolk to ask leave to withdraw his amendment.

Henry Bellingham (Conservative, North West Norfolk)

In the light of what the Minister said, I beg to ask leave to withdraw the amendment.

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 67, in clause 22, page 20, line 4, at end insert—

‘(4A) The Tribunal Procedure Rules shall make provision for the granting by a judge of the First-tier Tribunal of legal aid for appropriate advice and representation in relation to any decision within the jurisdiction of the tribunal system.’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss amendment

No. 69, in clause 22, page 20, line 4, at end insert—

‘(4A) The Tribunal Procedure Rules may allow for the provision of legal aid.’.

Henry Bellingham (Conservative, North West Norfolk)

The amendments, which both say basically the same thing, would give the Minister a degree of choice. They would introduce a provision whereby the tribunal procedure rules may allow legal aid to be granted by a judge of the first-tier tribunal.

We are having a wide-ranging and, at times, passionate debate about the way in which the legal aid changes proposed by the Government are being implemented. I do not want to go down that route. However, it has struck me for a while as slightly bizarre and unfair that people cannot get legal aid for cases in tribunals, except in a few circumstances. There are a number of exceptions. I gather that in the Lands Tribunal, for example, people can get legal aid. Perhaps the Minister will comment on whether legal aid is available in other tribunals.

We should not like to include in the Bill the power to grant legal aid automatically, because that would be a step too far. I am well aware, as are other Opposition Members, of the pressures within the Department for Constitutional Affairs. We realise that there are pressures on the legal aid budget, which has increased from £1.5 billion 10 years ago to more than £2 billion, and we understand why the Government are now bringing in means-testing in magistrates courts and the fixed-fee system for many civil cases. Although we have some legitimate discussions and arguments with the Government about how that is being implemented, we accept the thrust of what they are doing. However, in respect of tribunals, I should imagine that it would be appropriate for legal aid to be awarded only in a very small number of cases.

A lot of the time lawyers are not wanted in tribunals. We want people to take their case to tribunal and feel that they are performing and presenting their arguments in an informal and relaxed manner, and that they can put their case without any pressure or undue sense of the occasion getting on top of them or stifling their free expression and explanation of the problem. I submit that lawyers often come along and make the matter a whole lot worse. They can give the client a lot of ideas, stand up and make boring speeches on points of law, whereas what we want is for the public to go to those tribunals and feel that they can have their cases heard sympathetically and understandingly by tribunal chairs who can emphasise with the public.

I would have thought that, in the vast majority of cases, there would be no need for the provision of such legal aid. However, there are going to be tribunals—I certainly came across a few during my time at the Bar—in which there are points of laws and complexities. There may even be situations in which a particular case suddenly becomes multi-faceted and unanticipated factors suddenly come into play.

In those circumstances, it might be in the applicant’s interests to seek legal advice. For example, there might be a fairly straightforward case in the Employment Appeal Tribunal, or one of the other tribunals such as the Asylum and Immigration Tribunal, where the case is proceeding quite smoothly and it all looks straightforward, but complexities then arise. At that stage, will the applicant be denied the ability to deal with the matter on a roughly level playing field?

I submit that there will be cases in which respondents might be a corporate entity or a Department. One has only to look at those families in various cases involving the Ministry of Defence. In one case, the MOD employed a host of lawyers and QCs. I am thinking not about a coroner case, but about a tribunal case for injuries caused not in the front line, but during training. I read that the Department in question had a battery of lawyers and the case went from being quite straightforward to being complicated. Yet, the family were unable to get legal aid.

If the tribunal rules allowed for the grant of legal aid by the judge in the first-tier tribunal, it would at least mean that the applicant had a much fairer deal and would not have to suddenly abandon the case. The applicant might be completely overwhelmed by paperwork, legal points and legal statutes that they have absolutely no idea how to handle, however sympathetic the tribunal judge or its non-legal members might be to them.

Despite the expertise and the background of the people involved, and however much they might try—the Minister has made a great deal of their attitude and their desire to help the public and be as open, flexible and user-friendly as possible—things might become very difficult if one starts getting bogged down in technical legal matters. Precedents might need to be looked at and other tribunal decisions might need to come into play. It might be that such factors are not always something that the tribunal judge can help the applicant with.

That is why legal aid might be appropriate in a small number of cases. In that small minority of cases, building such flexibility into the system would bring significant relief to the applicant. It would make the system fairer and more just for a very small number of applicants and cases. I do not believe for one moment that it would have a significant impact on the legal aid budget. When we look at that budget in the round—I might now be told off by our shadow Chief Secretary for making a spending commitment—it is clear that we are talking about a small sum of money. I am a great believer, as are my hon. Friends, not only in getting the best value possible, but in using public money to make a difference to some of the more oppressed and vulnerable people in society.

A number of hon. Members have spoken about how tribunals are very often the only point of contact that members of the public have with the judicial system. The chances are that the tribunal system is the only interface that many of our constituents will ever have with the judicial system, unless they happen to end up in a magistrates court for some minor criminal offence. People who go to tribunals are not criminals; they are applicants—people pursuing their case to try to secure justice for themselves and their families.

We have given the Minister a choice of two amendments, which I hope fits in with the spirit of the Committee. Both amendments are by definition broad and flexible. In fact, amendment No. 69 is more flexible than amendment No. 67. I hope that the Minister will accept the amendments not only in the interests of providing extra assistance and making the system more open and flexible, as the new structure will do, but to ensure that no one is in any way excluded from putting their case.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is probably the most important amendment that we have debated so far. It has the support of the Liberal Democrats, the Conservatives and, I hope, some on the Labour Benches. Even hon. Members who are not lawyers, as some of us are, will have come across in their constituency work cases in which the decision of a tribunal cites legal cases. That goes for both the oral and subsequent written tribunal decisions. In tribunal hearings in which lawyers are present—the system is not set up on the presumption that lawyers will normally be present—there is often quite robust debate about the application of cited cases, which could be judgments from the House of Lords, the European Court, the Court of Appeal and so on. Judgments from the Employment Appeal Tribunal or a higher court that dealt with an employment appeal case might also be cited. It is therefore sometimes necessary for people to have legal assistance to be able to put their arguments.

Some people go to tribunals literally on their own, with no support, and some go with family support, friends or non-legal support from their local advice centre or citizens advice bureau or whatever. Normally, people will go with no lawyers accompanying them, which is as it should be. The best person to judge whether people should have an entitlement or need to receive legal aid is the person running the tribunal—the judge figure whom we have discussed. I have signed my name to amendment No. 67, would give such discretion to the judge, and amendment No. 69 would have the same effect.

The Minister said that there are provisions for Ministers to grant legal aid exceptionally, but that is an exemptive decision. The Opposition are arguing that in the interests of justice it is necessary, and would be better, for the granting of legal aid sometimes to be a judicial decision. Such decisions could be made on the spot, with the judge having assessed the nature of the case and rated a person—the lay applicant—and their ability to put their case against a representative of the Department for Work and Pensions or whoever is on the other side. There is often an official on the opposing side of a tribunal who is fully versed in the legislation and regulations, and who carries a double ring binder file. The tribunal itself will have ring binder files, as will the clerks, and they will contain information on the law, not only matters of fact.

There are strong arguments for the amendments, and it is clear to us that a system of fair access to justice must ensure that people are not disadvantaged. It is good that we are to have a new, streamlined, expanded tribunal system. However, if this area of administrative law is to be separate from the court system, the possibility of people getting legal aid should not be less than in the elements of the legal system that consider matters of criminal, civil and other areas of administrative law.

As the Minister said, magistrates do not deal only with crime. They deal with administrative and licensing matters, civilian disputes and family law, in all of which there is an entitlement to legal aid. There is a strong case in principle for such issues. The proposed approach would not be an open door. We are not saying that we want legal aid as a matter of right for tribunal cases, but arguing that it should be the norm that the judge on the case has the power to make such a judgment.

Yes, there is a financial implication, but justice always has financial implications. I hope that the Minister will not resist the amendment on the basis that it would have an unhelpful or harmful financial implication. There have been debates elsewhere on legal aid and its budget. I accept that it is larger than in some places and that it has grown. However, it has not grown in the same way as much of the welfare state has grown. It has grown less, and there is a strong case for justice being done with legal aid when the judge thinks that that is right. I hope that the hon. and learned Lady will be sympathetic to the amendment. It is certainly something that we want to pursue.

Vera Baird (Labour, Redcar)

I shall deal first with the latter two points made by the hon. Member for North Southwark and Bermondsey. It is not the case that the legal aid budget in the United Kingdom is larger than in some places. It is larger by a very significant factor than anywhere else in the world. I shall leave it there, having made that important point.

I sympathise enormously with the passion with which the hon. Gentleman and the hon. Member for North-West Norfolk assert the right for fairness in access to justice. It is a passion that I share and which the Government accept entirely. It is a bit of an oddity that the hon. Member for North-West Norfolk has sought to introduce such a provision when an identical amendment was defeated resoundingly in the other place, because the Tories did not vote for it. However, that does not alter the merit in its being discussed today.

I shall reiterate the points made during the debate in the House of Lords. The tribunal system is intended and designed so that people should not, as a rule, need lawyers to pursue their points. As we have said in a different context today, tribunals are not courts. Unlike courts, most tribunals do not rely on the strict rules of evidence. They adopt a much more inquisitorial approach, questioning the user to find out the relevant information rather than expecting him to put his case or present an argument. Granted the high level of skills that we have acknowledged in tribunal chairs, the majority of tribunal users should be able to, and can with experience, relay their evidence by answering questions without the need for legal representation.

For those who qualify within the legal aid system anyway, legal help is available across the whole gamut to give advice and assist the users to prepare their cases and answers to questions that might be asked. Legal advice can be obtained about points of law and help can be received to pay for counsels’ advice. That does not present a problem. Aid is readily available in that fashion and it can pay for everything up to its limit to prepare a person for a tribunal, short of their actually being represented.

Both hon. Gentlemen argued strongly that we do not want lawyers to be in tribunals as a matter of course. The right hon. Member for Berwick-upon-Tweed (Mr. Beith), the Chairman of the Select Committee on Constitutional Affairs, said the same on Second Reading: we do not want representation in tribunals as a matter of course. I am glad that both Opposition spokesmen understand and share that view.

We must ensure that people have enough information as users, so that they understand that they can get advice if they need it and understand what they need to do to ensure that they put their best foot forward. We will work on that.

We acknowledge that legal aid for representation has a role in some tribunals. It is not available in the Lands Tribunal now, but it is available in the Asylum and Immigration Tribunal, the Employment Appeals Tribunal, the Mental Health Review Tribunal and in cases of special difficulty in all tribunals. If a case falls within the provision that I have mentioned already—section 6(8)(b) of the Access to Justice Act 1999—legal aid can be granted exceptionally for representation. That will apply in a minority of cases, because in most circumstances tribunal users should not need representation for a just outcome. None the less, legal aid is available in exceptional circumstances, as we have already discussed.

I imagine that, if a case suddenly became more complex than anybody could have predicted, one of two things would happen: either the inquisitor judge would adjourn so that legal help could be obtained—along with counsel’s advice or whatever were necessary to ensure that the legal points that emerged were advanced in a proper fashion in the applicant’s interests—or he would write, as many coroners do, in support of an application for exceptional circumstances, so that a Minister could consider granting legal aid. With those two fall-back positions available, the situation is not immensely troubling.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I hope that the Minister accepts that both situations happen as a matter of practice sometimes.

Vera Baird (Labour, Redcar)

I do.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Both would require a delay, as the case would have to be interrupted and the application would have to be considered, then accepted or rejected. If a judge is able, at the beginning of a case or at any stage, to assess whether a case would need legal aid, to make the decision then and implement it would be much quicker for the tribunal and much quicker and more certain for the individual in terms of the remedy. It is the judge who can assess that. Experienced judges will be able to make such assessments on the spot.

Vera Baird (Labour, Redcar)

The hon. Gentleman slightly contradicts himself. If it is obvious to the judge at the beginning that a case is complex, an adjournment in the middle, with a consequent delay, will not be necessary, because he can make it clear that legal aid should be made available and he can either suggest that the applicant seeks legal help or he can support an application for exceptional circumstances. Given the experience and calibre of tribunal judges, it would be a rare case that suddenly multiplied out of all recognition into a complex legal issue, thereby meriting an application in the middle of it. However, if that were so, everybody’s view would surely be that it was essential that the person had the opportunity to be represented. In such an extremely rare case, it would undoubtedly be the norm for the inquisitor judge to adjourn and support an application for full legal aid or advise the applicant to get legal help. We would like to do more. I think that I said that clearly on Second Reading.

Like the hon. Member for North-West Norfolk, I do not want to stray into the generality of legal aid reform at present, but it is well known that we intend to put lawyers on to fixed fees for standard cases, starting very soon this year, with only exceptional cases being paid for by the hour thereafter. That should make the legal aid budget become more predictable, which would strengthen our arm in respect of having resources available to be moved over.

It would be our intention, as I have said time and again—and I have no difficulty saying it once more—that such resources should move over into the welfare sector, with which the tribunals basically deal. Whether representation in tribunals is the right place to put those resources or whether they are put elsewhere would be a matter for discussion at that point. I hope that Opposition Members will accept that there is an adequacy of provision within the present system and that when resources are made available by the reforms that we are currently implementing, the intention is to put them into this sector. I hope that the hon. Members will withdraw their amendment, which was, as I have already said, resoundingly defeated in the House of Lords and I fear will suffer the same fate in Committee.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Has the Minister the figures—either numbers or costs—that tell us how many cases under the present regime are given legal aid through the exercise of ministerial discretion? What sort of number is it for the past year?

Vera Baird (Labour, Redcar)

I cannot help with that. I know that I get one or two cases a fortnight to determine. They are mostly coroners’ inquisitions with the occasional tribunal case. I do not know whether that is a fair representation, but we will look into it and give the information to the hon. Gentleman if we can.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I was being generous and trying not to divide the Opposition by not reminding the hon. Member for North-West Norfolk that his party did not support the proposal in the other place. However, I am glad that such enlightenment has come its way as the Bill has moved down the Corridor. That is always to be welcomed. Progressive conservatism often moves more quickly now than it did in the past.

I am very clear that this is right as a matter of principle and is something that we should pursue. I heard what the Minister said on Second Reading and accept her intention that this is an area of law in which practice will feature and in which the Government hope there will be more resources to assist with legal aid and advice as appropriate. I want to make one comment on the practicality of the arrangements, which the Minister cited as her explanation why we do not need the system at the moment. If an issue was spotted on the papers by the judge at the very beginning of a case, then it would require the hearing to stop and start and be adjourned and start again. It may even put back the date when a case is dealt with. When the papers arrive at the tribunal in the normal way and an issue is spotted, there will be a delay, even if it is not the interruption that we are talking about. If a legal case arises during the hearing, then that is interruption and delay.

In any event, it seems that that process is one that takes away the discretion that judges could properly have—through hearing the argument and seeing the nature of the applicant—to determine a case. On paper, an applicant may appear to be competent and able to represent themselves. However, they may not be well; they may be mentally, physically or emotionally ill. There are all sorts of circumstances that are not intrinsic to the case, but may become evident. The person may become distressed. They may have a poor attention span, not be very intelligent and not able to understand things. It seems to me that those are the sorts of reasons where the discretion should be given to the tribunal there and then. I am very keen that we pursue the matter and I hope that the hon. Gentleman will agree with me.

Vera Baird (Labour, Redcar)

It might be wise to rehearse the basis on which exceptional funding is given because it will cover most of what the hon. Gentleman is worried about. It is given, first, if there is a significant wider public interest that the user be represented—that is rather aside from what he is saying—and, secondly, if the case is of overwhelming importance to the user or if a lack of representation would lead to obvious unfairness in the proceedings. Those two provisions are likely to cover all the situations which would produce injustice if they were not covered, as the hon. Gentleman has set out. Thirdly, it is given if it would also be practically impossible for the user to bring or defend the proceedings without representation. I think that he will find that there is already provision for exactly what he is worrying about, although not in the hands of a judge, but in the hands of the executive.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand that. I have in mind a case involving an allegation of unfair dismissal that I have been dealing with and which I chose as the subject of an Adjournment debate on behalf of a constituent. The case was clearly a matter of significance to the individual, who had been summarily dismissed from the job that he had been held for 25 years. The Minister is right that there are exceptions, but as she rightly said, they are not granted at the instigation of a judge. It seems that that is a good place for them to be.

One could start with the same set of criteria. Obviously, some cases are much more likely to get ministerial certification, where a judge spots that it is of prospective national interest, in that it will determine what the law will be in future and will have wide-ranging implications, and deals with a controversial issue. Such cases are likely to get through the system but, from the perspective of the individual, cases in which people lose their jobs or something happens that significantly affects their finances might be another category.

I am not arguing about whether the criteria are more or less correct; I am arguing that the judge should have the opportunity that has been outlined. That is not a million miles away from what the Minister would like to happen in future. Here is the legislation that gives us the opportunity for that to happen. I hope that we have persuaded the Committee that it should happen now.

Henry Bellingham (Conservative, North West Norfolk)

If one considers the high-cost and highly complex cases that receive legal aid, costing the legal aid budget millions of pounds, it becomes clear that we are talking about a small crumb in the trouser turn-ups of one or two High Court judges. It is a small amount of money, but it would help a number of people.

There are three points that I should like to raise with the Minister. She mentioned the changes in the legal aid budget and the reforms that the Government are introducing, the bulk of which we support. We can see exactly where the Minister is coming from and we can see the need for reform. If the reforms lead to significant savings, could Ministers redeploy the legal aid in other directions—including to tribunals, for example—simply by ministerial edict or would that require a statutory instrument? Doing that would certainly not require primary legislation, but would it require an order in the House? Could Ministers simply take such redeployments on board? If so, we would feel that we could push them on the issue.

Amendment No. 67, to which the hon. Member for North Southwark and Bermondsey has added his name, would not exactly put a huge amount of extra pressure on the legal aid budget. We are talking about flexibility and the final decision being in the hands of the tribunal judge. The first-tier tribunal judge would make the decisions and the rules would allow legal aid to be granted in rare circumstances.

The Minister mentioned the rule on exceptional cases that enables the tribunal chair to adjourn proceedings and recommend that legal aid be granted. I would have thought that there would be an inevitable delay, but she has not yet told the Committee what sort of delay there would be. I take on board her point that if it becomes apparent before the tribunal has started, or even on the first day, that exceptional circumstances apply, it might make sense for the tribunal to be adjourned and for a decision to be made on legal aid. However, if the tribunal is adjourned halfway through because of the complexities that the hon. Gentleman mentioned, how long would it take to get the legal aid set up? I imagine that that would take at least three to four weeks, in which time there would be a great deal of added uncertainty, stress and worry.

We want to make the tribunals as user-friendly as possible, but there will always be stress and strain on the applicant. The amendment is modest and does not ask for a great deal. Its public expenditure implications are absolutely minimal. As I said, we are talking about a small fraction of what is spent from the legal aid budget on the high-complexity cases. We Conservatives would certainly want to consider the issue in the context of our ideas for reorganising legal aid. It would be a minor step forward.

Will the Minister answer those points? If she does not do so in a way that we find satisfactory, we may have to push the issue to a Division.

Vera Baird (Labour, Redcar)

The hon. Gentleman is right in saying that primary legislation would not be required to change the legal aid rules. The Lord Chancellor has a power to change legal aid—presumably the funding code. Legal aid is covered by a funding code, so that could be done by the Lord Chancellor’s direction.

I pause to thank the hon. Gentleman very warmly for saying that his party supports the bulk of the legal aid reforms that we are implementing. I am most grateful for that; his support is extremely welcome.

As the budget levels out and comes under control under the impact of the changes, we will need a review of how best and earliest to start using that other money in the welfare benefit sector. That is how we should consider the use of that money; representation for certain tribunals in certain circumstances might well be one way forward. However, there may be other priorities to roll out first. To a large extent, that is why the amendment is not acceptable.

In the extremely rare situation conjured up by the hon. Gentleman, the judge would have looked at his case file and considered how he would deal with the tribunal hearing. He would do that well ahead of time. Perhaps he would require information to be ready for it; perhaps, in writing or some other way, a sort of informal pre-trial review would have to be held to tee up the way forward. Such things all happen. If, having done all that, he had failed to see that there was a complexity, we would be in the territory conjured up by the hon. Gentleman. However, when I set out the process, he can see that it is pretty unlikely that that would happen, save once in what used to be called a blue moon.

If what the hon. Gentleman envisages did happen, one of two things might occur. First, the tribunal chair—soon to be called a judge—might adjourn so that the individual can get legal help. The judge might think that the person needs not representation, but advice on a particular point of law. That adjournment would enable the individual to go to a supplier of legal services—a citizens advice bureau, legal centre or solicitor—that would already be available and empowered to grant legal help, subject to a simple means test, which is done quickly. If legal help were needed, that could be obtained quickly.

Secondly, the tribunal chair might think that actual representation is necessary. That would require an adjournment while some communication—a letter or note from the judge or applicant—was sent to the Legal Services Commission, which would have to recommend that the exceptional circumstances power be used by Ministers. As soon as it had considered the issue and made the recommendation, the issue would come before Ministers. Such applications are often urgent. There need be no very significant delay, although I agree that it would be much better if such a situation were avoided. In 99 per cent. of cases, I am sure that it would be.

I hope that I have satisfied Opposition Members that there is adequate provision and an intention to look again when our now well supported legal aid reforms come to the fore. I hope that I can persuade the hon. Member for North-West Norfolk to seek leave to withdraw the amendment, which was abandoned by his party in the Lords.

Henry Bellingham (Conservative, North West Norfolk)

The Minister has said that there is every possibility of coming back to the matter of legal aid being available once the reforms have moved on. I feel that the amendment would hasten that process, so I shall press it to a vote.

Brooks Newmark (Conservative, Braintree)

I shall try to be reasonably brief, because I appreciate that we have more to do. I have always felt that one of the benefits of coming into the House is that we can learn from each other. One thing that I have learned from the hon. Member for Wolverhampton, South-West (Rob Marris), who I am sorry to see is not a member of the Committee, is to look at the explanatory notes, which I have done in detail as the debate has gone on. Paragraph 124 on page 21 states that the purpose of the “overriding objective” stated in clause 22(4) is

“to ensure that the Tribunal Procedural Committee observes certain fundamental principles when exercising its powers to make procedural rules, such as, securing that justice is done in proceedings before a tribunal and that the tribunal system is accessible and fair.”

The explanatory notes stop there, but subsection (4) goes on. Paragraphs (a) and (b) run in parallel with the construction of the explanatory notes, stating

“that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done...that the tribunal system is accessible and fair”.

However, another phrase is then tagged on, saying

“that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently”.

Paragraph (e) also uses the phrase

“are handled quickly and efficiently.”

How do we square the concept of “quickly and efficiently” with being “accessible and fair” in seeing that justice is done? The words “quickly and efficiently” suggest to me that there is not due care and consideration. I am trying to understand the language in the Bill. Perhaps it will happen later, when we have the further consultation that the Minister has talked about, but how can we have inherent in that provision some concept of due care and consideration that fits in with the concept of something happening quickly and efficiently?

Vera Baird (Labour, Redcar)

The explanatory notes make it clear—and they are right—that the important underlying principle is that the laws should be put together so that justice is done and the tribunal system is accessible and fair. It is a curious idea that if it can also be quick and efficient there is somehow a clash between the two. Justice delayed is well known to be justice denied, so we intend to deliver the process as speedily as is compatible with our obligations under the first two rules. To equate efficiency with not giving due care to justice seems an over-urgently arrived at elision. The word “and” and not “or” appears in all the provisions, which will need to be compatible with one another. There is no clash between them, and they are all very desirable.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister said earlier that it was the Government’s intention that the division between primary and secondary legislation rules should roughly replicate what is done in relation to the court system. I do not need a reply now, but will she ask her officials to check that that is the case? I sense—I have not made the comparison—that this is quite a detailed legislative provision and it could be weeded out a little. I would be content to leave that for she and her officials to look at.

Clause 23

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 70, in clause 23, page 20, line 22, leave out subsection (6).

The clause is about practice directions. Subsection (1) states:

“The Senior President of Tribunals may give directions”

in some circumstances. Subsection (6) states:

“Subsections (4) and (5)(b) do not apply to directions to the extent that they consist of guidance about any of the following—

(a) the application or interpretation of the law;

(b) the making of decisions by members of the First-tier Tribunal or Upper Tribunal.”

Hon. Members will have observed that under subsections (4) and (5), the senior president of tribunals can give practice directions only with the approval of the Lord Chancellor. In subsection (6), however, there is no such qualification. As I mentioned, in subsection (6)(a), the senior president of tribunals is entitled to give directions on the

“application or interpretation of the law”

without any reference to the Lord Chancellor.

With great respect, Mr. Bercow, you were not at this morning’s sitting when the Opposition made a number of references to the Lord Chancellor and the Constitutional Reform Act 2005. With reference to the appointment of judges, we felt that the Lord Chancellor should not have any additional powers because those were effectively taken away from him in that 2005 legislation. It is another matter, however, when it comes to practice directions. We wonder why the scope of the senior president is being cast more widely in this case. That depends, to some extent, on the statutory intention behind the power to give directions on

“the application or interpretation of a law.”

On the face of it, the provision looks a wide discretion and as if the senior president can direct tribunals on matters of law that ought in principle to be within their sole compass.

The amendment is an amalgam of a probing and a genuine one. Will the Minister explain carefully why the clause is drafted in this way? I am concerned that the current draft introduces a blurring at the edges regarding a practice direction on the one hand, indicating a methodology for applying or interpreting the law, and on the other hand, a danger of trespassing on the substance of the application or interpretation.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to make two brief points. I am also slightly mystified by the inclusion of such a provision. If there are to be practice directions about the application and interpretation of the law, which are pretty important directions, logically they should have the authority of the Lord Chancellor rather than not. Given that the others do, it seems that we are taking out a group of practice directions that are just as important. They are not about internal workings, but about how the law should be interpreted. I am surprised about that, but the Minister might enlighten us and we may discover something that we did not spot. Subsection (6)(b) does not trouble me nearly as much.

It is important that people have access to the rules governing tribunals. When people are seeking out planning law, they have to go down the waterfall of decisions from regulations under the law that have been made nationally to planning guidance that is set regionally and locally. They then might know what is likely to happen to their application for their extension. Where, at present, do people find consolidated up-to-date practice directions? Can the Minister give an undertaking that, under the new regime, there will be a place where politicians and anyone in the country can see, in electronic form on a website or, more importantly, in a paper-based form at their local library, the current extant practice directions set out in chronological and numerical order and in a way that is comprehensible and easy to understand? Such directions are often important bits of the system and they should be made clear for the lay person as well as practitioners.

Vera Baird (Labour, Redcar)

I shall now deal with the substantive points of clause 23 and return to the question of ensuring that the practice directions are available. The point of directions in clause 23(1), which cannot be made without the approval of the Lord Chancellor, is that they are about practice and procedure respectively in the first tier and in the upper tier. It is appropriate that the Lord Chancellor should sanction them because they could have resource implications, for instance, if the practice and procedure became to hold a pre-trial review of the sort that I have conjured up. It is important that the Secretary of State, who is responsible for the budget of the Department, has a say in that sort of practice direction.

Surely the opposite is the case—this is the point of subsection (6)—on directions or guidance about the application or interpretation of the law, let alone the making of decisions by members of either tribunal. It is there that the Constitutional Reform Act 2005, which removed the Lord Chancellor as head of the judiciary, has its bite. It is slightly surprising that the hon. Member for North-West Norfolk, who has so far been championing its bite, now seems to have gone into reverse.

As a Minister, it would be inappropriate for the Lord Chancellor to be involved at all in the making of practice directions about the interpretation of the law, as that should be carried out by a tribunal chair, or the making of decisions by tribunal members. Those matters should rest firmly and clearly with the judiciary and, in this case, with the senior president of tribunals. Otherwise, there will be a danger of fouling the independence of the judiciary.

I can tell the hon. Members for North-West Norfolk and for North Southwark and Bermondsey that, as far as I can see, the formulation in this part of the Bill follows literally word for word the Lord Chief Justice’s direction-making power under schedule 2 of the Constitutional Reform Act 2005. It requires the Lord Chief Justice only to give directions, along the lines of clause 23(1) in the Bill, with the Lord Chancellor’s consent, but it excludes the need for the Lord Chancellor’s consent when he is making directions for the application or interpretation of the law or the making of judicial decisions. Both hon. Gentlemen were clearly satisfied by that wording in the earlier statute, and I invite them to accept the same here.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I might have missed one thing, and perhaps I should have asked a question about it when we discussed clause 2. I take the Minister’s point about the independence of the judiciary; I was probably misrepresenting where the accountability should be. Under the new system, will anyone in the hierarchy be senior to the senior president of tribunals? Is the senior president not in some way subject to the Lord Chief Justice as a more superior judge in England and Wales? If that is the case, the Minister is implicitly right that the Lord Chancellor should not, for the reasons she gave, be the person holding the clearance on the interpretation of the law for practice directions, and it should be the Lord Chief Justice. Perhaps she will elucidate the matter. I had assumed—I could be completely wrong—that if one looked at the judicial hierarchy after the implementation of the Bill, one would still see the Lord Chief Justice at the top and the president of the family division and other people with specific responsibilities, including the senior president of tribunals, under him. Perhaps she will tell me whether that is correct.

Vera Baird (Labour, Redcar)

No, the senior president of tribunals is not accountable to the Lord Chief Justice. The senior president is separate and independent, and also, therefore, not accountable to the other chief justices whose jurisdictions his post will cover.

I was asked about publicity for practice directions. The practice directions will be published on the web. There will be a tribunals website—indeed, I believe that there already is a Tribunals Service website—on which practice directions will be published. Many tribunals publish practice directions on the web, such as those relating to the special commissioners or civil procedure. The commissioning policies of individual libraries will determine whether they make hard copies available. We will look at the matter with every intention of ensuring that people going unaccompanied to tribunals have all the information that they need to fight a fair fight, as it were.

Henry Bellingham (Conservative, North West Norfolk)

I am grateful to the Minister for that reply. With practice directions we are dealing with a complex and technical area, but she has explained the measures with great courtesy. With that in mind, I beg to ask leave to withdraw the amendment.

Clause 24

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have one question on the clause, which I otherwise support. In some parts of the country, including my own borough, there are well established, well used and respected mediation services that deal with many of the issues that are covered by tribunals. Do the Government envisage that either in the legislation or subsequently, the mediation service provided by the Tribunals Service as described in the Bill, will include, incorporate or link with well established, recognised and respected mediation services? I understand that the first step in the process might involve a mediator inviting opposing parties to talk to one another before going to tribunal. If Ministers or officials have not thought about that before, will they do so now?

There is some very good mediation practice out there. I was talking to my hon. Friend the Member for Cardiff, Central, who said that as far as she knows there is no such service in the middle of Cardiff. The mediation service in Southwark is by repute one of the most long standing and best regarded. Rather than creating new bodies, we ought to be folding in existing provision for mediation. I would like there to be a link between the tribunal and a mediation service. That way, a tribunal could tell someone that it would like them first to talk to the mediation service, which could subsequently report back when it had done what it could. In such a situation, the mediation service would be linked to and recognised by the tribunal.

Vera Baird (Labour, Redcar)

The provisions in clause 24 are enabling provisions, so they can embrace any kind of mediation. Most immediately, the Government have in mind mediation by tribunal members and staff, which seems to be a wise way forward, but there is absolutely nothing to prevent the involvement of community mediators such as the those to which the hon. Gentleman referred. I know of one such very good scheme in Wandsworth. The county court in Manchester had an excellent scheme that is now being rolled out in other areas and which might be included.

Essentially, mediation is fairly high on our agenda. Clause 24 was added in the House of Lords by the Opposition, not because we did not want mediation, but because we did not think it necessary to include a clause to enable it. That is exactly what it does; it will enable mediation and we will encourage it in whatever form is best for the parties.

Clause 29

Henry Bellingham (Conservative, North West Norfolk)

First, I should like the Minister to explain clause 29(5), which mentions “wasted costs”, which are

“costs incurred by a party...as a result of any improper, unreasonable or negligent”

behaviour. She will have been contacted by organisations such as the CBI and the Institute of Directors, which are concerned about vexatious claims being brought, particularly in employment tribunals. The vast majority of cases are totally genuine, but some will be vexatious. Does the clause enable the tribunal to award costs against the applicant if the judge decides that the case was, in all circumstances, vexatious, unreasonable and without any proper merit?

Secondly, I should like to ask a question that is appropriate at this stage, because we are talking about costs and expenses, albeit in the context of applicants to the tribunal. The Minister will have seen the note from the Association of Clerks to the General Commissioners of Taxes for Great Britain. The role of the clerk will disappear and these clerks will effectively be made redundant, because the tribunals will be brought into the new Tribunals Service. There is concern that there may not be proper provision for compensation for loss of office. I see you nodding, Mr. Bercow. I hope that I am in order on this matter. This is simply a query for the Minister to consider. Under the changes to the rights of coroners, part-time coroners will be getting compensation when they are made redundant. Why is there no provision for these clerks in the Bill? Has the Minister got something up her sleeve to ensure that they will, at some stage, receive proper compensation for loss of office?

John Bercow (Conservative, Buckingham)

The nod from the Chair signified nothing more nor less than the fact that the hon. Gentleman was indeed in order.

Vera Baird (Labour, Redcar)

On the specific point about wasted costs, it would not be right for me to elaborate on what is meant by clause 29(5)(a), which states:

“In subsection (4) “wasted costs” means any costs incurred by a party...as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative”.

That is a fairly self-sufficient definition. Clause 29(2) states:

“The relevant Tribunal shall have full power”

totally

“to determine by whom and to what extent the costs are to be paid.”

There is sufficient ambit in the clause for the whole issue of conduct and costs to be aired. [Interruption.] Actually, I see now that this is a much more dire provision than I had thought; it is to direct that legal representatives who have wasted costs may pay, so perhaps the hon. Member for North-West Norfolk has also misread it. It is not likely to be a source of concern for the CBI, for instance, that lawyers should be required to pay costs. Perhaps we shall adjourn our consideration of mischievous actions by individuals until we get to the right part of the Bill.

My understanding is that clerks to the commissioners, for instance, are office holders, not employees, so they would not fall within any redundancy cover. There is the issue of the draft Coroners Bill, which would not abolish the existing system, but terminate existing coroners’ appointments. It would not abolish the role, so there is no statutory provision for compensation in that case; there would be no redundancies, in the sense that the role would not stop existing. Provisions in the Coroners Bill provide a mechanism to pay compensation, although no commitment has been made on the level of compensation or the underlying principles that might be used to establish that amount.

The proposed enabling legislation is similar in scope to that in the Taxes Management Act 1970, providing for compensation to clerks who lose office or emoluments as a result of boundary changes. I hope that the hon. Member for North-West Norfolk feels that that has clarified the position; if he does not, I shall write to him and set it out more fully.

Henry Bellingham (Conservative, North West Norfolk)

I am grateful to the hon. and learned Lady. I hope that it will be appropriate for me to drop her a note explaining in more detail the views of the Association of Clerks to the General Commissioners of Taxes for Great Britain, so that its point of view will at least be considered and dealt with.

Clause 39

Henry Bellingham (Conservative, North West Norfolk)

We move on to chapter 4 of the Bill, which is entitled “Administrative matters in respect of certain tribunals”. Clause 39(3) states:

“The Lord Chancellor must annually prepare and lay before each House of Parliament a report as to the way in which he has discharged his general duty in relation to the tribunals.”

As we are talking about a brand new, consolidated system that we hope will provide and deliver a far better service to the public, a lot of expectation is building up. I know that this is a matter for the usual channels, but we want in due course not just a written statement but an oral statement to the House. I hope that the Minister will now say more about how she feels the annual statement should be presented and how important she feels it will be.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Will the Minister say what she expects the cost of the new system to be in its first year of operation?

Vera Baird (Labour, Redcar)

I will write to the hon. Gentleman about the cost. The duty that subsection (3) places on the Lord Chancellor is identical to that which he has in respect of the courts. The provisions mirror section 1 of the Courts Act 2003. One would expect the format of the report and the procedures that follow it to be exactly the same. Those procedures have proved acceptable under the 2003 Act, which holds great promise, I would have thought, for the new provisions to be acceptable in future.

Clause 40

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I should like to ask a question about clerks to the General Commissioners of Taxes. I have received a letter from the treasurer and secretary of the Association of Clerks to the General Commissioners of Taxes, which other members of the Committee might also have received. It said:

“The General Commissioners of Income Tax are a Tribunal which deals with appeals and other matters concerning income and corporation tax. We have been operating since 1797 and our role has evolved to keep pace with the changes in our taxation system.

Our panels are made up of lay members assisted by a suitably qualified Clerk who attends to the correspondence before and after the hearing, arranges for the hearing itself and advises the tribunal on matters of law. We also deal with appeals against their decisions when this happens.

Under the Tribunals, Courts and Enforcement Bill our existence disappears and the tribunal becomes absorbed in the new Tribunals Service. The role of the Clerk disappears completely. There are currently 244, mostly part time, Clerks throughout the UK many of them are retired lawyers, Inspectors of Taxes or businessmen. We are employed by the General Commissioners but paid by the Department for Constitutional Affairs.

In the new Bill there is absolutely no provision for compensation for loss of office. We are trying to negotiate for some compensation but, as things stand, there is no provision at all for us to even negotiate...It is natural justice that some form of compensation for loss of office is made when a job disappears and the current legislation (The Clerks to General Commissioners (Compensation) Regulations, 1973) provides for that, when Divisions are merged or boundaries are altered, thereby making a Clerk redundant. Clearly it was thought appropriate then to compensate a clerk for losing his Division. It follows that this should apply when all Divisions are merged into one, as it were, and all Clerks become redundant.

If you require any further information, please do not hesitate to ask. However, we notice that the Committee stage of the Bill is scheduled to conclude not later than 27 March. We have no time to lose.

Yours sincerely,

Susan Balchin

Secretary”.

As a short postscript, hon. Members may have had occasion to be grateful to the clerks to the commissioners of Revenue when they have been summoned to appear before the commissioners to deal with their tax affairs in this place. It would be invidious of me to ask whether you had been, Mr. Bercow, and I would not expect you to reply, but I certainly have and I know that other colleagues have, too. The Revenue has always been particularly attentive, and its staff and the clerks to the commissioners have in my experience always been helpful. Twice during my life I have had to avail myself of their services. Susan Balchin has made a good case on behalf of herself and her colleagues. I should be grateful if the Minister could answer her concerns. There are 244 people with an interest. I hope the Government are minded to be helpful to them. If those people lose their jobs, I hope that the Government will also be minded to ensure that they are treated fairly, in the same way that others in similar positions have been treated.

Vera Baird (Labour, Redcar)

I hope that I can briefly reassure the hon. Gentleman by saying that my noble Friend Baroness Ashton has agreed to meet the Association of Clerks about the issue, so that it can be thoroughly discussed. I could tell him again about the Taxes Management Act 1970, but the lady who has written to him will know all about that. He should perhaps rely on the agreement that the noble Baroness will discuss the matter with the association.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am reassured by that. Depending on the outcome, we might want to return to the matter on Report, so will the Minister ask Baroness Ashton, if possible, to complete that meeting and any negotiations by that stage? That would give us the opportunity to introduce amendments if we think that they are necessary to ensure that these people are properly looked after.

Vera Baird (Labour, Redcar)

I am happy to ensure that my noble Friend hears the sentiments that have been expressed.

Clause 41

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have just one question. There has been a long running drive promoted by Members from all parties to ensure that courts remain local in all our communities—in your county, Mr. Bercow, in Norfolk, in Wales and in rural and urban areas. What is the plan to ensure that the Tribunals Service, under the new arrangements, is geographically accessible to people in each of the counties of England and Wales and to ensure that that is done in a way that minimises costs for attendance, travel and inconvenience? We are talking about an administrative legal service, and it is not much good if it takes a long time to get to, is a long way away and costs a lot to travel to. I want to be reassured about the plan for the geographical arrangements for the service throughout England and Wales.

Vera Baird (Labour, Redcar)

It is intended that there should be a tribunal location in every significant centre. It is clearly not practical to have them in very small areas, when they have such diverse jurisdiction. I hear what the hon. Gentleman says about courts being closed, but other community courts are being opened in different localities. I imagine we will see the use of technology increasing in tribunals hereafter. Clearly, people might not be able to travel to a centre, for example when disability is an issue. It seems inevitable that there should be video provision. When we refer to the senior president having a duty to consider innovative ways to ensure that the tribunal functions, that is what he is likely to consider. That is the plan at the moment. I suspect that there is likely to be some sharing between the Courts Service and the Tribunals Service, but the intention is to have an installation in every major centre.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am encouraged by that. It is important not only that facilities are shared intelligently—an example could be found in Somerset, where hon. Friends have argued that the magistrates court needs to be retained and where there would be an opportunity to have the magistrates and county courts and the Tribunals Service in one place—but that innovative arrangements are made for both tribunals and other offices that the public need to access to use those services. I hope that the Minister will consult on and be responsive to that, and that as the plans are drawn up they will be consulted on, not least with parliamentary colleagues across the United Kingdom, so that they can be as user-friendly and helpful as possible.

Clause 42

Henry Bellingham (Conservative, North West Norfolk)

I shall be brief. I mentioned vexatious applicants earlier, when we discussed the section relating to costs and expenses. I presume that I ought to have raised that point under clause 44, but I seek clarification that the judge can award costs against a vexatious applicant. The clause mentions fees, which are presumably fees that can be charged to applicants. Will the Minister clarify that?

Vera Baird (Labour, Redcar)

This is, I think, about fees and not costs. It is about paying the court fees, so possibly the hon. Gentleman is just a tad off target again.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

When will the fees that are provided for in the clause be published and what consultation will there be about the publication of the new fees under the new system?

Vera Baird (Labour, Redcar)

I cannot give the hon. Gentleman a date of publication. The fees will be published in due course. What is important for the hon. Gentleman to know is that there is no intention of permitting them to impede access to justice. I am not sure what consultation is required in relation to fees, but I shall write to him about that.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am grateful. I merely say that it would be helpful if there were the same system for assessing the amount that one might pay or for which one might receive an exemption or a reduction, as is the case in other situations. That way, people would not have to deal with different forms for tribunals from those with which they have to deal in other parts of the legal process.

Vera Baird (Labour, Redcar)

There is no intention of having any different priority from that which applies generally in the courts service. The Government do not believe that fees should be charged if they are likely to cause financial hardship. Affirmative resolutions would be needed before fees could be charged for the first time in respect of any matter, so there will be ample opportunity to discuss them if necessary.

Schedule 7

Henry Bellingham (Conservative, North West Norfolk)

I beg to move amendment No. 71, in schedule 7, page 146, line 37, at end insert ‘or insolvency, or—

(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.’.

Paragraph 3 of schedule 7 is entitled:

“Term of office of appointed members of Council”.

Sub-paragraph (1) says:

“Subject to the following provisions of this paragraph, a person appointed under paragraph 1(2) is to hold and vacate office in accordance with the terms of his appointment.”

Sub-paragraph (5) says:

“The Lord Chancellor may remove a person appointed under paragraph 1(2) on the ground of inability or misbehaviour.”

The amendment would add the words, “or insolvency”, which it seems to me would make sense; the tribunals council should not contain members who have been made insolvent, though maybe that would fall within “inability or misbehaviour”. It also covers certain other matters. The first is absence from council meetings for longer than six months without permission, which is a serious dereliction of duty. The second is conviction for a criminal offence. The third is instability or lack of fitness to discharge a council member’s functions.

I hope that the Committee will consider accepting the amendment because it would be nice to end the day with a minor triumph. We are being reasonable; we are giving the Minister the opportunity to clarify the meaning of “inability” and “misbehaviour”. It might be that one would be considered to have misbehaved if one had been convicted of a criminal offence, and it might be that one would be considered unable if one had been declared insolvent, but making it explicit would be a good idea.

Vera Baird (Labour, Redcar)

The same amendment was withdrawn in Grand Committee in the other place. As the hon. Gentleman has said, schedule 7 provides for the removal of appointees on the grounds of inability and misbehaviour. That is in line with the criteria for removing judges, so we think that it is the right approach. If it is deemed necessary to make explicit reference to specific kinds of misbehaviour or inability, that can be covered in the terms of appointment, for which provision is made in paragraph 3(1).

I am sorry to disappoint the hon. Gentleman that we do not accept the amendment, but let me reassure him that he has triumphed time and time again in the Committee by the clarity of his argument.

Henry Bellingham (Conservative, North West Norfolk)

I thank the Minister for those courteous words. I beg to ask leave to withdraw the amendment.

Clause 51

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to put it on the record that although there was some controversy on Second Reading and elsewhere, I am very positive about the proposals in this part of the Bill. It is right that there should be wider eligibility, which this part of the Bill and particularly this clause provide. I welcome that, as I welcome the Government’s intention of widening by gender and ethnicity the pool of people from which the judiciary is drawn. I am grateful to the Minister for giving me the latest information that I asked for this morning.

I want to share one amusing thought with the Committee. There are some helpful tables that set out, for example, the gender balance among the judiciary. I think we all know that in March 2004, there were 11 male Lords of Appeal in Ordinary and one female Lord of Appeal in Ordinary—Lady Justice Hale was the first woman law lord. However, it is amusing to discover that three of them are of unknown ethnicity. It seems to me that when people reach that level of seniority, they should be asked about their ethnicity or it should be noted. I know they do not have to fill in forms, which is understandable, but it does no harm to know about ethnicity in the higher reaches of the judiciary. As it happens, they are all white, but the day may come soon when they are not all white.