|Draft Contracting Out of Functions (Tribunal Staff) Order 2001
Mr. Cash: I am glad that the Minister had the opportunity to speak again, and I hope that she will not take it amiss if I say that I tried to help her a little along the way. I am grateful for her comments.
First, I return to a point that I made in an intervention. The procedure is becoming an expensive operation. Last year, the cost was £2.8 million, and I put it on record that it will become more expensive, as we can reasonably assume, in the present circumstances, that there will be greater use of the tribunal. Secondly, with the greatest respect, vires is a matter not just for the Committee, but for the courts, if they were ever to adjudicate on the matter. Therefore, assurances from the Minister are well intentioned, but without the degree of certainty on which we can all agree.
Thirdly, there is a substantive question about what the order states and achieves. I can be brief, because much has already been said. Article 2 states:
(b) to exercise any judicial discretion or advise any person exercising any such discretion; or
(c) to exercise any power of arrest.''
Given the concerns that have been expressed and the arguments that have been made, it seems a little unnecessary to agree to the order without making it crystal clear that the authorisation may not exceed 10 years. In so far as there is an exclusion from the arrangements under section 71, there is also an exclusion with respect to the 10-year period. We heard a good point from the hon. Member for Torridge and West Devon about the cumulative effects of the contracts.
If we are to be as clear as possible, we may need to insert a new paragraph (d) in article 3, stating:
I go further. The explanatory note, although not part of the order, states that the Lord Chancellor has the power to contract out his functions, and so on. Again, curiously, there is no reference to 10 years. Given the constructive and good-humoured way in which we have dealt with the matter, it would have been simple to do what I suggested, and it is a pity that that has not been done. I have nothing further to add, but if the Minister is not minded to make the proposed changes, we shall divide the Committee.
Mr. Burnett: In round two and, probably, the final round of this epic, I shall briefly revisit the point about subsequent authorisations that I made during an intervention and which the hon. Member for Stone rightly took up. I said previously that we feel strongly about the matter. At our previous sitting, the Minister stated, rightly:
On the other matters that I raised at our previous sitting, I was delighted to hear about the pre-employment checks, which are similar to those to which the regular civil service is subjected. However, I should like the Minister to flesh out the issues of discipline and confidentiality, to which I also referred. The contractual arrangements are between the Ministry and the agency, and there is no privity of contract between the employee and the Lord Chancellor's Department, so how does the Lord Chancellor's Department enforce contractual arrangements between agency staff and the Department? I look forward to hearing the Minister's response.
Norman Lamb (North Norfolk): I want to return to a question that I raised at our previous sitting. The purpose of the order is to regularise the employment of agency staff and I should be grateful if the Minister would simply confirm whether employment of agency staff to date has been without legal basis. If so, does she agree that all employment contracts of agency staff are without legal basis?
Ms Winterton: Perhaps I might give a fuller explanation of the argument that the hon. Member for Stone has made about the vires of the order. Difficulties are occurring because his argument confuses the order with the authorisation provisions under the order. The structure of the 1994 Act is clear. It does not require any time limitation to be imposed on the order; it does impose strict statutory limitations on the consequent authorisations, which must always be for specific periods and not exceeding 10 years. As I explain further, I hope that it will be clear why I do not accept the hon. Gentleman's suggestion.
The terms of reference of the Joint Committee on Statutory Instruments requires it to report doubts about the vires of an order, and it has reported that the order is one to which the House's attention need not be drawn. It clearly does not share the hon. Gentleman's doubts.
I shall explain what is allowed under the Deregulation and Contracting Out Act 1994. Section 69(4) states:
The Act allows an order to be introduced that provides functions that can be contracted out. Limitations are also placed on what functions can be performed. Section 69(5) states:
(a) shall be for such period, not exceeding 10 years, as is specified in the authorisation;''
Mr. Cash: That explanation does not clarify anything. Introducing provisions into article 3I suggested that they should be included as new paragraph (d)would make the situation crystal clear. The words that I propose are:
Ms Winterton: I realise that the hon. Gentleman does not accept my response, but I return to my point that his suggestion could have the effect of making the order ultra vires. His suggestion is not provided for under the Act. Had that been intended, it would have been included originally.
One could say that it was strictly unnecessary to repeat the effect of part of section 71 in the order, but it helps make clear to the reader the limitations on the functions that the order covers. There is no doubt about the power to impose this restriction, in contrast to the suggestion that we should limit the authorisation by order.
I turn to some of the other points raised, and deal first with the queries of the hon. Member for North Norfolk about how many agency staff there are in each tribunal service, and the current cost of agency staff across the two services. There are at least 140 agency staff employed in the Immigration Appellate Authority and three employed in the Lands Tribunal. The total cost of those staff, in both services, is approximately £2.8 million per annum.
Norman Lamb: I return to the question that I raised today, on the legality of existing arrangements. We know, from the Minister's comments, that many staff are already in place in the tribunals140 in the Immigration Appellate Authority and three in the Lands Tribunal. Can the Minister clarify whether there is a legal basis for their existing employment?
Ms Winterton: The hon. Gentleman mentions the employment of agency staff prior to the order. As I am sure that he is well aware, agency staff have been employed in the tribunals for many years, certainly long before the 1994 Act. Any doubts about the legality of the practices of the past 15 to 20 years can be dealt with only by the courts. The purpose of the order is to put the position beyond doubt.
Mr. Burnett: Can the Minister assure us that since at least 1997 all the correct statutory procedures have been complied with in the employment of agency staff?
|©Parliamentary copyright 2001||Prepared 23 October 2001|