Clause
22
Tribunal
Procedure
Rules
Question
proposed, That the clause stand part of the
Bill.
Mr.
Newmark:
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:
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:
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.
Question put
and agreed
to.
Clause 22
ordered to stand part of the
Bill.
Schedule
5 agreed to.
Clause
23
Practice
directions
Mr.
Bellingham:
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:
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.
2.45
pm
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:
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:
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:
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.
Mr.
Bellingham:
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.
Amendment, by leave,
withdrawn.
Clause
23 ordered to stand part of the
Bill.
Clause
24
Mediation
Question
proposed, That the clause stand part of the
Bill.
Simon
Hughes:
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:
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.
Question
put and agreed
to.
Clause 24
ordered to stand part of the
Bill.
Clauses
25
to
28 ordered to stand part of the
Bill.
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