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Lord Haskel: I should like to take this opportunity to put on record the Government's commitment to the use of lay members. Their practical experience in the workplace is valuable in the majority of tribunal cases. However, the jurisdictions included under this provision are ones in which the contribution of lay members is less valuable. Therefore the Government must resist these amendments because they are inconsistent with our objectives for the clause. They prevent a chairman or chairwoman sitting alone from hearing cases under eminently suitable jurisdictions where determinations are made on agreed matters of fact and principles of law. As my noble and learned friend Lord Archer said, where factual discrepancies emerge, the chairman is directed by the regulations to consider using his discretion to sit as a tribunal of three. I therefore hope that my noble friend will withdraw his amendment.

Lord Wedderburn of Charlton: I am sure that I shall be able to satisfy the Minister if he will just give me a moment. It should be understood that what has been said about tripartism does not represent the model that all of us share. That is to say, when there is a group of three of this sort, especially if they sit together more than once, they tend to work up a corporate or neo-corporate sense. Indeed, chairs know that if they are outvoted by the wing persons, they should not resent it, even if it is on a point of missed law and fact. It happens all the time. I shall read Hansard very carefully; however, if the model of tripartism advanced in this debate were followed, turning the pages of all the statutes involved I suspect that the wing persons would be present on only a very small number of sections. That

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does not mean a small number of occasions, but a small number of sections. However, I promised to satisfy the Minister and therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Legal officers]:

Baroness Turner of Camden moved Amendment No. 10:


Page 4, line 4, at beginning insert ("in respect of the functions defined in subsection (6A),").

The noble Baroness said: Clause 5 deals with the appointment of legal officers. My amendments Nos. 10, 11 and 12 are grouped; with the permission of the Committee I shall speak to all three. Their intention is to define what are the functions of the legal officer. They do not appear to be defined in the Bill.

The amendment specifies that the functions are to make such inquiries as are necessary at an interlocutory stage of the proceedings, including the taking of statements from a party who appears to be unrepresented, with a view to clarifying the issues in the proceedings.

The range of functions determines what kind of qualifications will be required. If they are to be highly qualified and experienced lawyers, what then is their relationship to the chairman to be? If, however, the functions are as described in the amendment, then it would be an appropriate appointment for, for example, a young law graduate. It would not be necessary to have an experienced solicitor or a barrister, or in Scotland an advocate.

The Notes on Clauses, for whose receipt I am indebted, state that the legal officers appointed will be able to do everything that a chairman is permitted to do under the rules of procedure. If that is so, why not simply have more chairmen rather than this new kind of appointment? On the other hand, it seems that there is a useful limited range of functions which could quite well be performed by a legal officer who perhaps would not necessarily be experienced but would have an appropriate legal qualification. It would not be necessary in that case to have someone who had experience as a solicitor or a barrister. Otherwise there could be some conflict between the legal officer and the chairman if such officers are to be able to do everything that the chairman is permitted to do. There is a case for having this, as it were, superior kind of clerk who handles the kinds of functions referred to in the amendment and who would not therefore need to be quite so experienced but would perhaps have legal qualifications in the sense of having a law degree. I beg to move.

Lord Lester of Herne Hill: I have some difficulty in speaking to these amendments because of the lack of clarity in the Bill itself. My problem is that, on the face of it, the proposal in Clause 5 would permit regulations

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to be made that would allow these legal officers to do what a chairman may do under the rules of procedure. That is anything at all. The provision is widened by an earlier clause in the Bill. On the other hand, the Notes on Clauses that have been most helpfully provided tell us that what is contemplated is narrower than that, but not as narrow as what is proposed in these amendments; namely, that the legal officers are to relieve the tribunal chairmen of some of the interlocutory duties that they currently carry out. Those, we are told, include granting postponements and extensions of time; making witness orders; requiring parties to answer questions; ordering further and better particulars and the discovery of documents; and disclosing the cases being dismissed on withdrawal by parties.

I do not start with any inherent objection to using legal officers, provided they are properly qualified, to take those interlocutory decisions. But the difficulty we are in is that, on the face of it, the Bill allows people with probably only three years' legal qualification to do the work that is presently done by people with 10 years' qualification or more--the chairmen and women--and to do in principle not only the interlocutory work but anything that can be done by the chairmen.

I hope that we shall receive clarification on the matter since I may later suggest to the Committee that if the Notes on Clauses accurately reflect what is intended that is what should be stated in Clause 5. However, my difficulty in supporting these amendments is that they reduce the function of the legal officers to something so narrow that it will not relieve the chairmen of industrial tribunals of the burdens unnecessarily placed upon them.

My other difficulty is that Amendment No. 12 on its own, forgetting Amendment No. 11, would mean that the legal officers would not have to be legally qualified even though they would be taking important interlocutory decisions. I cannot see that anyone without some legal background and qualification could decide important questions such as whether to order further and better particulars or the discovery of documents, which can often be critical in the outcome of a case.

That is a long-winded way of saying that I believe that Amendments Nos. 11 and 12, standing together, give too limited a role to the legal officer; but if one separates them, then the advice in Amendment No. 12 is that judicial powers will be exercised by people without any legal qualifications. The real vice is not addressed by these amendments; namely, that Clause 5 seeks too much--it seeks to give these legal officers all the powers of a chairman, not only the interlocutory powers listed in the Notes on Clauses. I hope that that is clearer than mud.

Lord Archer of Sandwell: It may be for the assistance of the Committee if I indicate first what is proposed in relation to legal officers as I understand it. My noble friend Lord Haskel will correct me if I go wrong. It is hoped that, as the noble Lord, Lord Lester said, they may relieve chairmen of some of the burdens that they are presently required to shoulder. It has been suggested that one could achieve the same objective by having more chairmen. The answer to that is that there

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is little point in using resources to employ more chairmen if some of their functions may be discharged more economically.

I spend hours of my time asking for more resources to be allocated to tribunals to improve the service that they give. In the real world we are not likely very often to win that argument. I should be reluctant to weaken the argument by pressing for resources which do not improve the service which they give.

So the question is: are there some duties at present falling to chairmen which might be more economically carried out equally well by less experienced legal officers? It is not intended that they shall perform all the duties at present performed by chairmen. The Government's intention, as I understand it, is that what duties it would be sensible to confer on them should be tested by a pilot scheme. The kinds of functions such people might fulfil have just been referred to by the noble Lord, Lord Lester: making orders for further and better particulars, making orders about listing and so on.

Perhaps I may turn first to my noble friend's amendment. She seeks to do two things. First, according to the amendment--although I follow that it might not be her intention in moving it--she seeks to use legal officers for a purpose which was never envisaged. Secondly, she seeks to ensure that they cannot be used for any other purpose, not even the purpose for which they were envisaged. My noble friend wants them to be used, as I understand it, to assist unrepresented and unassisted parties. There may well be a need for that role and perhaps my noble friend and I will be on the same side if that issue arises. But it would be quite inconsistent with an adjudicating function adjudicating objectively if they are advising one of the parties. We could not have the same people exercising both functions. So unless my noble friend wishes to say that she opposes even the idea of testing a role for legal officers which the Bill envisages, we could not confer those alternative functions on them. I hope that she does not intend to eliminate them altogether.

As to the qualifications of the legal officers, the noble Lord, Lord Lester, stated the question: are there some functions which people with fewer qualifications or perhaps less experience than chairmen might sensibly carry out? It would relieve chairmen of that burden. I understand that what the Government have in mind in their pilot scheme--and again I shall be corrected by my noble friend if I am wrong--is that they will be barristers and solicitors, probably--although it is not yet set in stone, as I understand it--of three years' experience. It seems to me that the kind of issues which the noble Lord, Lord Lester, ventilated could be carried out perfectly well by people with that experience. That is what is suggested. The decisions will be subject to review, in the same way as a review is now available in interlocutory matters and their decisions will, of course, be subject to appeal.

I should have thought that if one attempted to employ legal officers with fewer qualifications, confidence in the system would be undermined and we might be inviting all kinds of appeals and applications for judicial review and that kind of difficulty. So I hope that my

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noble friend and the noble Lord will agree that, as an experiment, as a recipe for the initial pilot scheme, the Bill has it about right. But again I would not say that we are so right that it is beyond any possibility of amendment. The trouble is: in which direction do we amend? Either someone will say: "You are not providing people with the appropriate qualifications", or they will say: "You are giving them jobs which are beyond what they are qualified to do." I hope that we might be allowed at least to try the pilot scheme.

6 p.m.

Lord Haskel: I am speaking to Amendments Nos. 10, 11 and 12. Perhaps I may clarify the Government's position on legal officers since it might be helpful to the Committee. It is our intention that the concept of legal officers will be tested by way of a pilot scheme. The details of the scheme will be specified in the tribunal procedure regulations after consultation with the tribunal presidents. I can inform the Committee that the consultations are already in progress.

I can also assure Members of the Committee and the noble Lord, Lord Lester, who was concerned, that it is our intention that legal officers will be qualified barristers, solicitors or advocates, to ensure that tribunal users and the public at large can have confidence in their determinations.

Legal officers will not be able to conduct full hearings. We propose to restrict further their competency by the regulations during the pilot study. It is not envisaged in the pilot that they will conduct pre-hearing reviews or a determination under the new procedures introduced under Clause 2 of the Bill. My noble and learned friend Lord Archer has already listed the kind of function which we expect to fall within the legal officers' remit. These might include disposing of settled or withdrawn cases, granting postponements, extending time limits, making orders for the provision of further and better particulars and making orders requiring the attendance of witnesses or the discovery or inspection of documents.

The aim of the legal officer scheme is to provide a useful support for chairmen, particularly those working in the overstretched major city centres. In particular, we want to release them from some of their interlocutory work, to leave them free to sit in tribunals, actually hearing cases. We will work closely with the tribunal presidents to ensure that any pilot is properly tested and evaluated.

Given our aims for the scheme, I am therefore unable to support the amendments as tabled. It is essential that in the primary legislation we are given the flexibility necessary to draw up a scheme and to amend it as the results of the pilots suggest and as experience unfolds. The regulations will strictly define all elements of the scheme, including the functions which the legal officer may perform and the qualifications he or she will have. I have indicated today what those qualifications will be and the kind of work which a legal officer will be

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expected to do. I therefore hope that the Committee will accept those assurances and await the results of the pilot scheme.


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