moved Amendment No. 1:

Will the noble Lord give way?

I am particularly delighted to give way to the noble Lord, Lord Clinton-Davis.

If somebody sits as an assistant recorder, he or she is automatically viewed as a judge. Am I not right? There are instances of that right through the whole panoply of judgeships.

That is in a sense the opposite situation. If you were a recorder—

No, an assistant.

If you are a recorder or assistant recorder, in either case you are not called “judge” as such, but in court you are referred to as “judge”. Here we seem to have the opposite situation, with legal members in tribunals who will be designated as “judges” but not actually referred to as “judges”, so the situation is exactly the reverse of the one to which the noble Lord refers.

I have two reasons why designating legal members of tribunals as “judges” is inappropriate. The first is that, as the noble Baroness knows, under paragraph 1(2)(d) of Schedule 2, certain people can be designated as judges by the noble and learned Lord the Lord Chancellor who have no defined legal qualifications in the Bill. Moreover, it is not clear either from the Bill or from anything said so far, either in guidance or on the Floor of the House, what criteria he will apply in designating that class of person as a judge.

Perhaps my most important concern is to do with the fact that the Government spent almost a year preparing and then making sure of the passage of the Constitutional Reform Act 2005 through Parliament. The key principle behind that Act was the notion of separation of powers—that the process of judicial selection should be entirely free of the Executive. In pursuit of that objective, the Government established a Judicial Appointments Commission that has, as I understand it, the exclusive right to appoint individuals called judges. Yet in the Bill we find a member of the Executive—the noble and learned Lord the Lord Chancellor—designating individuals as judges, in complete contravention of all the principles that underlay the 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 tribunals are to play the kind of role that Lord Justice Leggatt rightly foresaw in his report, they ought to have a large degree of informality. Introducing a judicial notion into their work gives entirely the wrong impression to the users, and I hope that the Committee will support my amendment. I beg to move.

I support the amendment although I do so to some extent in a spirit of inquiry, as I found the noble Lord’s reasoning on Second Reading extremely powerful, particularly his invocation of the arguments for informality and approachability that had been adumbrated by the Franks committee half a century ago in its approach to the regularisation of administrative tribunals.

There is, however, another question that the Minister might also address. The use of “judge” suggests a somewhat different role from that of the member, who is not so described. In practice, the members will operate as equal members when sitting in consideration of a case and reaching their decisions, but the use of “judge” almost suggests a hierarchical ranking of one member over the other. The use of “legal” is purely descriptive of a professional qualification, and it would be unfortunate if some members of the tribunal were more equal than others.

I suspect the precedent has already been set for this. I apologise for not having spoken on Second Reading, but I had a clash of appointments and I could not attend the debate. The chairmen of the Asylum and Immigration Tribunal are called judges, and I think that this is a continuation of that; perhaps the Minister will put me right. I was not very happy about it because, as the noble Lord on the Liberal Benches has said—I apologise for not remembering his name; I am having a senior moment—when you sit as a tribunal member, you sit as an equal, whether you are a non-legal member or a legal member. It used to create a little discomfort, but it was to satisfy certain individuals who wanted to be seen to be a little more senior than they were.

I speak with some diffidence because I must declare my interest, which I declared on Second Reading, as chairman of the Council on Tribunals. I do not know whether I can be given some guidance on whether I must declare that interest every time I say something, but I had better declare it formally now, at any rate.

I was not quite sure whether I wanted to intervene on this point at all, because it is a difficult subject on which it would be fair to say that people have varying views. I follow what the noble Countess, Lady Mar, has said. Frankly, if there was a pass to be sold here, it was probably sold with the Bill that became the Act that set up the Asylum and Immigration Tribunal. That Act imported the title “judge”, which, as the Minister has evidently said in her letter to my noble friend on the Front Bench, does not have to be used and, I think, is not generally used in the Asylum and Immigration Tribunal. It was imported into that tribunal, and it now becomes a little difficult to go back on the whole thing. The Council on Tribunals was not terribly keen on it. It thought “judge” was too formal for a tribunal, which echoes the point that my noble friend is making. The question arises as to whether one wants to reopen this issue now. I look forward to hearing what the Minister has to say about that. It would certainly be very helpful to have a further assurance that you would not have to use it because, whatever else it did, it would undoubtedly create a more formal impression in tribunal proceedings than I believe Ministers are keen to create if it were routinely used, as distinct from being a description of the status of the person involved, which may be important to many of those concerned, some of whom are of course judges. Large numbers of people who are judges by any definition sit on tribunals, so the argument really is quite complicated.

I would also be grateful for clarification of another point that my noble friend seemed to be making. My understanding is that, as with judges, these appointments are made mostly by the Judicial Appointments Commission. I think I am right in saying that its biggest single workload is the appointment of people to tribunals. That is a factor in this argument.

I think that that was the case in the past. I must declare a general interest having been a judge, but not of a tribunal. When I was a registrar at Somerset House many years ago, there was a great move to change that title to “district judge”. “Stipendiary magistrates” became “district judges’ magistrates”. “Immigration tribunal chairmen” became “judges”. There is a real movement among lawyer chairmen of tribunals to be called judges. It is a status symbol. To stop it in the case that we are discussing would be very difficult because the pass has been gradually sold, and was sold completely vis-à-vis the immigration judges.

I entirely agree with the views that have just been expressed. We are making a great song and dance about this. As has been indicated, the people in charge of these tribunals are viewed as being sui generis, and so they should be. Whether we call them judges or legal members is regarded by the public as rather an abstruse matter. They view them as judges, and rightly so. It is not altogether unprecedented that they should be so regarded. I strongly support the view that has just been expressed.

I take rather a different view from that of the noble Baroness, Lady Butler-Sloss. I support the amendment for a reason that has been touched on. It seems to me that there is a possibility of confusion between those members who are actually legal members and those legal members—call them legal members, if you like—who are in fact judges. It seems to me that that distinction is worth preserving.

I am grateful to everyone who has spoken. As ever in Committee, a range of issues was raised under an amendment which the noble Lord, Lord Kingsland, described as straightforward. I shall address the principles that were raised. Members of the Committee will know that not only am I taking this Bill through the House but I am responsible for the policy in this area, so I may be able to wing it rather more than usual.

First, Members of the Committee referred to the informality of tribunal proceedings and the tradition that has grown up which has enabled people to approach tribunals in a different way than they would an ordinary court. We do not wish to lose that. I sent a letter to the noble Lord, Lord Kingsland, and other Members of the Committee in which I pointed out that the title issue does not involve any suggestion of moving away from the good practice exercised in many tribunals in that regard.

Secondly, as was pointed out, the Judicial Appointments Commission selects candidates. That is right and proper. I believe that the Committee is very much in favour of that process. The Lord Chancellor considers issues of eligibility. We shall talk more about those questions on later amendments. However, there is a discussion to be had about ensuring that eligibility, and perhaps widening the pool of those who are eligible, is a positive concept as long as appointments are awarded on clear merit criteria. Noble Lords who are members of the legal profession or the judiciary would be the first to acknowledge that. We wholeheartedly support that.

The main purpose of this part of the Bill is to create a new tribunals service with an opportunity to develop its focus. Across the Tribunals Service a number of different names have been used for those who perform the function that we are discussing. I have come across the names: umpires, adjudicators, commissioners, chairmen and judges. I am not sure whether I accept the point about selling the pass. However, I accept the point about the clarity of previous legislation. We have asked members what name they would prefer. They prefer to be called judges. We need to settle on a name. It is as good a name as any; it sends an important signal to the public that the judiciary is perceived to be independent from government; and it says something about this being a place where you can get justice. I settled on that name for those reasons and no others. I hope that in withdrawing the amendment, which the noble Lord, Lord Kingsland, has no choice but to do in Committee, he will see that this name is as good as any.

I make one other point. As Members of the Committee will know, I am carrying out a review of the role of non-legal members of tribunals. One of the really interesting and tricky issues is finding appropriate terminology to describe people. It is important that due credit is given to those who perform fantastic work in our Tribunals Service. When I received that response, I felt that it was right to go with that name. It brings it all together under one name. It does not in any way suggest a loss of informality or focus.

Has the Minister a view on what non-legal members of the tribunal should be called?

I have offered a bottle of champagne, which I will personally purchase, if we can find a name that people feel recognises the role they perform. There are medical members, lay members and non-legal members of tribunals. The problem with using “non-legal members” is that it is a negative term. I would be one were I on a tribunal. I would rather have a positive than a negative term. Perhaps the noble Lord, Lord Maclennan, will come up with something and I may award him the champagne.

I hesitate to offer a neologism to the Minister, but I am bound to say that “member of the tribunal” seems to me to be a very good description of them all. The mere attachment of “legal” to those who are is not a diminution of their status. Being a member of a tribunal of this kind is an important role in society and it should be recognised as such.

I could not agree more, but there are not just legal members, but medical members of tribunals who, while not clinging to any title, feel very strongly that their function on a tribunal—I have met many of them to date—is because of their medical expertise. They enjoy and value having that distinction as it sets out clearly the function they perform, so it is not that simple. I agree completely with the noble Lord that those who sit on tribunals are a credit to this service. In my discussions I have had the privilege of meeting some members in different parts of the country.

I thank all noble Lords who have spoken in what I can describe only as an extremely lively debate. The noble Countess, Lady Mar, rightly drew the Committee’s attention to immigration tribunals, which, to some extent, lie outside the Bill. They are not part of the classified divisions, although at some future stage they might be made so. She rightly said that about two years ago when these issues were debated in the context of different legislation, it was decided, rightly or wrongly, to describe immigration adjudicators henceforth as judges. The fact that immigration adjudicators are now described as judges does not in itself justify us generalising the description to all—

I hesitate to interrupt the noble Lord, but I want to make it clear that that was absolutely not the reason why I took the decision that they should be called judges.

I was not suggesting that it was the reason; I was simply responding to what the noble Countess, Lady Mar, said. The fact that one single category of tribunal legal member is now described as “judge” is not a strong enough argument to justify generalising the description. I certainly did not suggest that part of the Minister’s case to justify the description “judge” was that it had for two years been used in immigration tribunals.

I cannot press this amendment to a vote, because we are not allowed to vote in the Moses Room. I shall withdraw it and reflect upon the matter before Report. However, I note the support I have received, both from the Liberal Democrat Benches and from the noble and learned Lord, Lord Lloyd of Berwick, who, from what he said, was very much influenced by the philosophy of Lord Justice Leggatt. I continue to take the view that “judge” is overformal for the legally qualified members of these tribunals, and I shall need a great deal of persuading before I have second thoughts about presenting this matter again on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 4 agreed to.

Schedule 2 [Judges and other members of the First-tier Tribunal]:

moved Amendment No. 3:

I am grateful to the noble Lord for so succinctly explaining what he is seeking to achieve. This goes back to what I was alluding to in the previous group: looking for the flexibility that recognises that the Tribunals Service has developed over a number of years and has expertise in a number of different fields. I assume we recognise that that may well continue to be the case in the future. We may find that new tribunals grow up as a consequence of changes, either in the operation of government or in the operation of specific pieces of legislation. Part of what we seek to do with this Bill is not to rule out possibilities. I think the noble Lord, Lord Kingsland, accepts the principle behind that, though I understand his desire to understand what we have in mind.

I can point to examples: there are occasions when expertise from a Commonwealth jurisdiction or another European jurisdiction may be relevant, or when, for particular tribunals that have expertise way beyond me in matters of taxation and so on, it might be appropriate to look for someone who has acquired expertise in a more academic field. We have sought the flexibility in paragraph 1(2)(d) of Schedule 2 to enable the Lord Chancellor, looking at the breadth of the Tribunals Service, to identify people with specific expertise who might be eligible to serve on a particular tribunal. I have given examples of other jurisdictions—Commonwealth and European—and particular areas of expertise. The Lord Chancellor will have in mind the specific function of a tribunal, the particular areas of expertise that could be drawn down and where such expertise exists. But, again, this is about eligibility. I think the noble Lord accepts the principle that this does not mean that such people will be appointed but that they may be eligible for appointment. That is the current thinking in those areas.

I am grateful to the Minister for her explanation. However, it is not wholly satisfactory. I understand the desirability of retaining and providing for the possibility that someone whose legal qualifications do not conform to those set out in paragraph 1(2) of Schedule 2, but which are none the less real, palpable and relevant, should be open to consideration as a member. Amendments Nos. 3 and 5 are broadly similar in respect of the upper tribunal. Sub-paragraph (2)(d) deals with something that is not objectively tested by reference to particular experience, as are the earlier criteria in the paragraph, but imports the opinion of the Lord Chancellor to the relevance of the experience. That is not objective—it is subjective—and, consequently, it is a very different principle.

That argument lay behind the Constitutional Reform Act, which was touched upon on the first, warm-up amendment, but Schedules 2 and 3 run counter to the philosophy underlying that Act. I am a little puzzled. Whether or not the Lord Chancellor is a lawyer qualified to appraise the legal qualifications of others may not be resolved for all time, but I would be distrustful of simply allowing a dispensing power to him to bring forward to tribunals virtually anyone who, in his judgment, had a legal qualification which he considered appropriate.

My Lords, I hope the noble Lord will find nothing to mistrust in anything we are seeking to do.

I have listened to the noble Lord with great interest. I reiterate that this is about eligibility and not appointment. It is critical that we keep in mind the importance of the Judicial Appointments Commission in everything we do in this area. This is not about the Lord Chancellor simply choosing someone he considers might be appropriate; it is about thinking through the category or type of expertise needed and saying that appropriately qualified people can apply. It does not mean that they will be appointed. It is very important to keep that in mind throughout all our discussions on the widening of the pool and the role of the noble Baroness, Lady Prashar, in holding together the Judicial Appointments Commission. Making that clear in the work that she is doing is fundamental to it.

Whereas I am quite content to talk to noble Lords about whether we have the wording of the clause right, I find it difficult to know how one could alter it without doing the opposite to what we seek to do, which is to accept the fact that flexibility for the future is important in setting up the new Tribunals Service. That means enabling us from time to time, when we consider the expertise needed in the Tribunals Service, to consider people from another jurisdiction who have the relevant expertise on which we could call. That is all that we are seeking. If Members of the Committee can find a way of saying that with which they feel more comfortable, I have no difficulty, but I have not been able to find one other than that in the Bill. I have tried to give examples of our thinking. If I could give all the examples, I could put them in the Bill and that would be that, but those are the sorts of areas that we have been looking at.

It is essential to keep in mind that this is only about eligibility. If the Judicial Appointments Commission did not exist, there could be reasonable fear that the provision could be moving away from that which we hold dear about appointment on merit for particular roles. That is all we are seeking to do but, as the Committee would expect, I am happy to discuss that.

I thank the Minister for her observations. Bearing in mind that whoever is selected under the provision will be called a judge, I suggest that it would be desirable to be a little more specific in the Bill than the general words that are there at the moment. She helpfully suggested certain possible categories, such as those who have had a career in the academic world, who might be appointable. Would she consider a guideline provision or some similar provision in the Bill which set out the categories which the noble and learned Lord might have in mind?

I entirely agree with the observation of the noble Lord, Lord Maclennan of Rogart, when he said that he thought that the category was too open-ended. I very much share that view and I do not see that the Government would be excessively inconvenienced were they to try to put pen to paper and think about all possible permutations of background that might fall within the description. Otherwise, we will end up calling an extremely wide range of individuals as judges in a way that might be found rather confusing.

My secret plan is to become a judge, as the noble Lord knows.

I am very happy to talk further about this. I draw the Committee’s attention to the fact that sub-paragraph (2)(d) states that it,

“makes the person as suitable for appointment as if the person satisfied any of paragraphs (a) to (c)”.

The Committee will know that sub-paragraphs (2)(a) to (c) provide that the person,

“satisfies the judicial-appointment eligibility conditions on a 5-year basis ... is an advocate or solicitor in Scotland of at least five years’ standing ... or is a barrister or solicitor in Northern Ireland of at least five years' standing”.

That is a benchmark of the kind of things that we are looking for.

Although I am very happy to try to set that out, my note of caution is that if we knew all the possibilities for tribunals in future and the kind of expertise that we may seek, we would put it in the Bill or regulation. I am merely trying to keep the door open to accept that, for particular circumstances, we might want someone from another jurisdiction or with a particular form of expertise. The noble Lord, Lord Kingsland, rightly referred back to the previous amendment about calling people judges, which is hugely important, I believe, for an understanding that there is independence from government and that an independent and proper decision will be made. That is the case that I made for why we went in that direction. It is not about trying to extend so far that noble Lords feel that we have lost something fundamental in the system. I could not agree more with the sentiment behind the amendment to try to ensure that we do not do that, but that is absolutely not the intention.

I hope that Members of the Committee will reflect that sub-paragraph (2)(d) refers to sub-paragraph (2)(a) to (c) and that we have been clear about the criteria there, and do not run the risk of losing what is important, which is retaining that flexibility. I am happy to discuss with the noble Lords, Lord Kingsland and Lord Maclennan, outside the Committee whether there is something I can say or something we can put in the policy statement that would ensure that noble Lords recognised that we did not seek to move so far away from the criteria that they felt it inappropriate.

I wonder whether I might put into the pot a thought that has occurred to me while the debate has been raging, if that word can be used for your Lordships’ proceedings in the Moses Room. Some of this appears to relate to suspicion about what members of the Executive might do in relation to appointments. If I have that right, all this follows the provision under which the Lord Chancellor may appoint. Then it refers to the categories of person, all of whom will have been recommended by the Judicial Appointments Commission, which will presumably have procedures for checking whether they are solicitors of five years’ standing and all the rest of it. Could we not say that the person should be eligible for appointment if, in the opinion of the Judicial Appointments Commission, they fulfilled the conditions of sub-paragraph (2)(d)?

I do not know, because I am mindful of how the commission is set up, what it does and does not do, and what it would wish and wish not to do. It is deliberately not in the business of looking at eligibility in that sense, but we can talk about that—we can ask it and have a further conversation. As usual, I have no objection to that.

I certainly do not want to press the point, and I do not want to get legalistic about this because I am among those many here, including the Minister, who are not lawyers, and I do not want to pretend that I have become one. However, the Judicial Appointments Commission will clearly have to consider people’s suitability for appointment, and this is an issue of suitability, on which I would have thought it could perfectly well be asked to play a part.

There are two other amendments in the group, Amendments Nos. 65 and 66, which are there because they also relate to clarifying provisions about judicial appointments, this time in Clauses 47 and 48. Before I make the short point that we are not in any way against what the Government are trying to do in those clauses—we simply seek clarification about the Government’s precise intentions, because once again they are giving themselves some very wide-ranging powers—I would like to know to what extent the noble Baroness can tell us how the noble and learned Lord intends to use the powers. I emphasise that we are not trying to in any way impede any opportunities that may lie open to those from either the legal executive profession or the trademark attorneys’ profession to be appointed in these circumstances. We simply want to know what the Government’s approach will be.

I am grateful to the noble Lord for bringing up these issues. As your Lordships can see from Clauses 47 and 48, we have sought to set out precisely whom we are referring to at present. As the noble Lord, Lord Kingsland, has said, five specific bodies are currently authorised under the Courts and Legal Services Act 1990: the Bar Council, the Law Society, the Institute of Legal Executives, the Chartered Institute of Patent Agents and the Institute of Trademark Attorneys. I understand that the Association of Law Costs Draftsmen is due to become an authorised body, subject to affirmative resolution, from 1 January 2007. We have sought to set out, as far as we could, those additional bodies that will become eligible, so that noble Lords can see what we are seeking to do.

There is another possible line of inquiry. If there is to be the concept of the Lord Chancellor importing a category of eligibility—although that is not what it says; it says the Lord Chancellor will make a particular appointment, not widen the category of eligibility—it might set some minds more at ease if there were a process of consultation. The difficulty is that any individual is fallible in making appraisals of individuals. An institutional consultation to judge the appropriateness of the circumstances that have given rise to the Lord Chancellor’s view that this person would be eligible seems appropriate.

I wonder whether the noble Lord would elaborate for me. As a general principle, consultation is a good thing. I am not always in favour of putting things in Bills, because that can restrict what people can do. Will he give me an example of exactly what he means?

It might be—I choose a deliberately far-fetched example—that the Lord Chancellor takes the view that the former chief justice of Malawi has compiled experience of the kind that would be transferable to a tribunal in this country, perhaps based on the Lord Chancellor’s visit to Malawi 20 years ago and/or that he dined at an Inn of Court with the person in question. That would not seem to me to be an appropriate way to consider the eligibility of the individual; and I do not imagine for a minute that the noble Baroness would think that it was either. But such a sort of ad hoc approach to nomination, however superficially reasonable it might seem, raises questions that cannot be satisfactorily answered.

On the other hand, I quite accept that it would be unsuitable to put in the Bill, or even in subordinate legislation, that former chief justices of Malawi would be considered eligible. But a process that allows some iteration with others who might be thought to be expert about an individual’s background, as well as the individual, would seem to me to be a way forward.

With the greatest respect to the chief justice of Malawi, this is not about specific individuals or specific jobs; it is about possible qualifications. The Lord Chancellor would not be able under this piece of legislation to do what the noble Lord quite rightly fears might happen. The provision sets out certain qualifications that people have that would make them eligible for the pool; it is not about specific appointments. The noble Lord’s worst fears would not be realised within the current legislation. That is my understanding of the drafting from parliamentary counsel. We sought to say that there are people within a category of qualification. The example I use, which is as far-fetched as the noble Lord’s one but which makes the point, is that those who have held Commonwealth chief justice positions for more than 10 years and have received the qualifications set out in so doing would as a category be eligible. That would be the equivalent, which I hope gives the alternative view.

I am most grateful to the noble Baroness for her response. In the circumstances, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 5 [Judges and other members of the Upper Tribunal]:

[Amendment No. 4 not moved.]

Clause 5 agreed to.

Schedule 3 [Judges and other members of the Upper Tribunal]:

[Amendment No. 5 not moved.]

Schedule 3 agreed to.

Clause 6 [Certain judges who are also judges of First-tier Tribunal and Upper Tribunal]:

[Amendment No. 6 not moved.]

Clause 6 agreed to.

Clause 7 [Chambers: jurisdiction and Presidents]:

[Amendment No. 7 not moved.]

Clause 7 agreed to.

moved Amendment No. 8:

As my intentions are similarly probing, it will not be necessary for me to take much longer than the noble Lord, Lord Kingsland, in speaking to the amendment, to which my noble friend Lord Thomas of Gresford has attached his name.

The Law Society supports this change of language, simply because it is again anxious to make the tribunal system as consumer-friendly as possible and “division” is thought to be more so than “chamber”. I must confess that my real interest is in the structure and I hope that the Minister will be able to say something about that.

I have to say that the noble Lords have totally spoilt my fun, because I was going to say that I do not care what we call them. However, I might have known that that was not actually the reason that they tabled the amendment. I genuinely do not care what we call them. Should the Law Society want to come back to me on that, I should be grateful. We chose “chambers” because we thought it was good to get away from “divisions” because they have particular connotations with the High Court divisions, and so on. That is why “chambers” was chosen. I do not think that the noble Lord, Lord Newton of Braintree, minds either.

No, I certainly have no strong view. If one wants to illustrate that they are not quite the same as courts, there is merit in having some different language but, like the Minister, I do not feel strongly about it.

I am grateful to the noble Lord, but I will not walk into that trap, because that takes me back to judges before I can blink.

I hope that yesterday, noble Lords received our detailed policy statement, which I published, as they would expect me to do. It is quite a lengthy document; I deliberately made it so because I felt that it was important to set out as much detail as I could to explain precisely what we seek to do. I shall paraphrase from it, but I hope that noble Lords will have the opportunity to study it in greater detail.

First, with the concurrence of the Senior President of Tribunals, the Lord Chancellor will set up the chambers. The specific idea is to try to group together jurisdictions which are similar in nature and thus allow judicial deployment, because the opportunity to be able to use judges flexibly will happen as a result. Of course, we also want to preserve expertise. By grouping people to work together and have a focus in a specialist area, we hope to preserve everything that is valuable and important about that. We are also trying to ensure that we are providing as efficient a service as we can for those who are to use it.

As this is a joint piece of work, the document states that it is work in progress. What we have set out in the paper is provisionally where we think that we will be but, because we want to ensure that it is done by concurrence, noble Lords must recognise that it may change in some ways. In other words, it does not bind the senior president—not that I would try to—to this particular formula.

We have specified subject matter rather than geography, looking at similarity of law, the common skills that are needed, the extent to which judges and members already sit across jurisdictions and the size and distribution of the workload. Workload is a big issue raised consistently by the non-legal members to whom I have spoken. We do not want to go for very small chambers, because we do not want to replicate the silos of the current system; we want to bring it together. For example, we envisage three separate chambers for social security, for tax and regulation, and for mental health and other welfare appeals.

I am most grateful to the Minister for an extremely helpful reply. We look forward to the further information that she will give us. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 9 and 10 not moved.]

moved Amendment No. 11:

I would be delighted to do so. The clause simply gives us a little flexibility. Two people might each preside over the chamber part-time, if that suited the work that they sought to do, or, if you wanted to merge two chambers in the future, you might want to keep the expertise that both brought to the job and ask them to work jointly. It is there simply for those reasons.

I am most grateful to the Minister. Surely she would not envisage two people assuming the chair of the tribunal in the course of a hearing, which is the impression that the Bill gives to me.

Not at all. It is about looking after the chamber and what goes on in it. The person in charge of that whole area of work is like the head of a division, or whatever. It simply enables two people to preside over the chamber, if, for the reasons that I have outlined, that were more practical or pertinent because of what was going on. It is about their responsibilities.

Following the Minister’s reasoning, why stop at two?

To have more than two would take us into a different set of reasons from the one that I have given. It is completely logical to have some form of job-sharing between two people. That is very common in all walks of life, but it is very rare to find a job that is shared by more than two people. If chambers were being merged, my instinct would be that you would not want to end up with more than two people bringing together their expertise. Two is therefore probably practical. I fear that if I said there could be more than two, I would be faced very swiftly with an amendment, possibly from the noble Lord, seeking to take the number back down to two.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 to 35 not moved.]

Clause 7 agreed to.

Schedule 4 [Chambers and Chamber Presidents: further provision]:

[Amendment No. 36 not moved.]

Schedule 4 agreed to.

Clause 8 [Senior President of Tribunals: power to delegate]:

moved Amendment No. 37:

It would be churlish not to acknowledge the wisdom of the Minister in tabling the amendments in the light of the committee’s recommendations. I particularly welcome Amendment No. 64, which provides for the Lord Chancellor’s order-making power on the number and type of members of the tribunal to be subject to the affirmative procedure. That is a significant power, which we will want to review in the light of the arguments at the time.

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Review of decision of First-tier Tribunal]:

moved Amendment No. 38:

I am grateful to the noble Lord, Lord Kingsland. I shall clarify, so far as I can, what we seek to do. He knows far better than I do that appeals correct errors of law and that decisions can be reviewed for a number of different reasons, either through the tribunal’s own initiative or through an application from a person who has a right to appeal. We deliberately designed the provision to ensure that only cases that need to go to appeal do so and that other issues can be dealt with in a simple and speedy way as befits our ambitions for the Tribunals Service both at present and in future.

As I understand it, the Minister has described a very narrow jurisdiction. She mentioned the slip rule, for example, which suggests that she is not seeking on behalf of the Government something wider than a first-instance tribunal would normally apply to itself in the circumstances that she outlined. In those circumstances, I am very happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 to 41 not moved.]

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Right to appeal to Upper Tribunal]:

[Amendment No. 42 not moved.]

moved Amendment No. 43:

I am grateful to the noble Lord both for raising the case, which he raised on Second Reading, and for referring to the letter that I sent. I will deal with the amendment in two bits. First, I shall say a little about the case from the Government’s perspective, which will enlighten noble Lords who might not be as familiar as, sadly, I feel that I will become with this case over time. I shall then say more about the principle behind the amendment, if that would work.

I reiterate what the noble Lord said. This case was about an application concerning the judicial review of a housing benefit and council tax benefit review board decision. One of the grounds in that appeal was that the tribunal was not sufficiently independent or impartial under Article 6 of the European Convention on Human Rights on the right to a fair trial.

The board that carried out the review included five councillors from the local authority, who would have been responsible for paying the disputed benefit if the claim was upheld. We accept that the appeal process in the circumstances was flawed, and, as the noble Lord, Lord Maclennan, has said, it has been replaced. We argued that judicial review could provide a remedy to judicially flawed decisions. The court found that judicial review could not cure the inadequacy of a flawed decision where that decision relied on facts. In other words, the central issue of the original appeal—that is, whether the housing benefit claim should be upheld—could not be remedied.

Our position is that we have replaced the appeal process. We believe that that set of circumstances was confined to that particular case—from my description I suspect that noble Lords may well agree with me on that—and do not believe that it casts doubt on judicial review as a remedy where a decision-maker has acted unreasonably. There is no question that there would be grounds for judicial review in such circumstances. Judicial review is still an important process to provide remedy. We feel reasonably content.

There is a broader point about the Tribunals Service that is not at all about that case, the convention or Article 6. One of the great advantages of bringing the service into the Department for Constitutional Affairs, with all the different jurisdictions coming together, is that they are not linked back to the people who are making policy decisions. One of the critical questions that I have been considering is how we can use the independence of the DCA, if I can describe it like that, to point out to government departments—when, for example, we see decisions consistently being overturned—that a policy should perhaps be reviewed. I am not suggesting that is anything to do with that case, but it is an interesting and important point.

We think that the particular circumstances of that case have been addressed, and that the unreasonableness test was appropriate in that case. We are content with where we are at present. Within the new Tribunals Service, however, we need to ensure that we have a structure that is user-friendly, easy to access and speedy in determining decisions. We think, therefore, that the way that we have set up the Tribunals Service allows the opportunity for the first-tier tribunal to hear appeals from decision-makers, consider the relevant evidence and make findings of fact and, where necessary, decisions of law, with enough power and standing for its decisions in general to be accepted by all parties, as is the case now. We do not want to set up another tribunal that would effectively rerun every case.

It may be that the first-tier tribunal could get the law wrong, or there may be substantive issues of law that need a more authoritative ruling for future cases. That is why we have the upper tribunal system in place; without it, those rulings would have to be made by the High Court or the Court of Sessions. The main second-tier tribunals we have at present, the Employment Appeal Tribunal and the Social Security Commissioners, operate on precisely that basis. That is why we have set it up in this way. It enables us to have a relatively straightforward and flexible system, with clarity about who is making the decisions. To have what the noble Lord suggests in the amendment would, in a sense, attack the finality of the first-tier decision-making process. People would see that it was merely one step in a two-step process, which we do not want.

I can see where the noble Lord is seeking to go with his amendment, which would remove the point-of-law filter for onward appeals and widen the grounds for appeal to the tribunal to include issues of fact. There would be little point in maintaining a filter if, in effect, there were no limits on what could be appealed. For the reason I have given, however, I do not see that as an improvement on what is presently in the Bill.

On the basis that I have tried to deal with the case separately, but in the context of why I think it is important to have the first-tier and upper tribunal doing the work that we have suggested, I hope that the noble Lord will feel able to withdraw his amendment.

I thank the Minister for her reply. I will of course study her remarks with care and consult widely. The absence of an appeal on fact seems to have played a considerable part in the decision in the Tsfayo case. I will review that before we come to a later stage of the Bill but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 44 not moved.]

moved Amendment No. 45:

had given notice of his intention to move Amendment No. 46:

moved Amendments Nos. 49 and 50:

moved Amendment No. 51:

To clarify, the amendment would extend to the Court of Session the possibility of limiting second appeals in the same way as they could be limited in the remainder of the United Kingdom. As the noble Lord, Lord Kingsland, well knows, the measure is already established for appeals from the courts in England, Wales and Northern Ireland, but there is no equivalent provision in Scotland. We do not want to impose on the Court of Session a limitation in respect of tribunals which it does not have in respect of courts. However, there is a good argument that the criteria and approach should be the same throughout the United Kingdom. But before I accept the amendment, I hope that the noble Lord will give me a chance to consult the Lord President and the Scottish Executive, which I shall do as a matter of urgency, and come back to the noble Lord as soon as I can.

I am, of course, most grateful to the noble Baroness. In those circumstances I am very pleased to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 52:

We gave notice of our intention to oppose Clauses 15 to 20 standing part to raise three issues. I shall not necessarily mention them in order of importance. The first concerns Clause 17(2)(c). The clause is headed, “Quashing orders under section 15(1)”. The provision in Clause 17 is identical in terms to that in Clause 132, which applies to judicial review generally. I do not propose to say anything further about this matter until we get to Clause 132 because the issue that is raised is identical. There is no point whatever in requiring the noble Baroness to say what she would have said, had I thought this an appropriate moment, on two separate occasions. I just signal that and leave it aside.

The second issue concerns the specific case of immigration, which is raised in Clause 19(1)(7). This point was raised at Second Reading by the noble and learned Lord, Lord Lloyd of Berwick. Once again, I do not want to anticipate what the noble and learned Lord will say about this in the debate that will ensue. I am going to leave it to him to develop the arguments that he drew to the Minister’s attention at that earlier stage. I would say only that the Committee will recall some two years ago the dramatic events that surrounded the attempt by the Government to introduce an ouster clause over judicial review in relation to immigration matters, and the statutory consequences of that. The Committee will note that the Government have returned to this matter.

I shall say something about the third issue in a little more detail. It concerns the question of granting to the upper tribunal judicial review jurisdiction. As the Committee well knows, judicial review jurisdiction is traditionally a jurisdiction of the High Court. It derives from the great ancient prerogative writs and, although a series of civil rule reforms have refined the procedure, the principle remains the same. Judicial review was a matter originally for the King’s Bench; now for a court called the administrative court. As I understand it, the Government are seeking to set out in the Bill the circumstances in which the administrative court can grant to the upper tribunal powers equivalent to the old King’s Bench powers.

As I understand it, there are two sets of circumstances in which this might happen. The first set is that in which the noble and learned Lord the Lord Chancellor and the Lord Chief Justice can together designate certain categories of matter which can be granted by the High Court to the upper tribunal court to consider as judicial review matters. So if a matter within that category arises in the High Court, the High Court can simply designate it as a matter to be dealt with by the upper tribunal. Or there may be individual cases which the administrative court considers suitable to be dealt with by the upper tribunal. In those circumstances also, the upper tribunal can exercise powers equivalent to the administrative court.

I regard this as a rather dramatic innovation. As someone who espouses the Conservative cause in political life, I am extremely cautious of any change to something which has worked extremely well in this country over the centuries and I think it is up to the Government to justify it.

But there is one point of particular concern. On the assumption that this proposal by the Government goes ahead, it is extremely important that the judges who hear judicial review matters in the upper tribunal are of the same quality and experience as the judges one would expect to find in the administrative court. It may well be that in the Bill there is some provision that obliges that situation, but I have not identified it. In my submission, it would be most unfortunate if the administrative court were to delegate a judicial matter to the upper tribunal only to find it dealt with by judges who did not have those qualifications that I have just set out.

So, with apologies to the noble and learned Lord, Lord Lloyd of Berwick, for passing the buck on matters of immigration, I beg to move.

I shall say a few words on the general points raised by the noble Lord’s third issue.

It will be helpful to go back briefly to the report of Sir Andrew Leggatt, upon which the Bill is based. The problem which he identified in relation to judicial review was a practical one: that if the upper tribunal is presided over by a High Court judge—and still more, of course, if it is presided over by a Lord Justice of Appeal—it does not make sense to have an appeal by way of judicial review from that High Court judge to another High Court judge.

Sir Andrew solved that problem by suggesting that judicial review should be excluded altogether in tribunal cases. Of course, that is not acceptable and, in fairness to Sir Andrew, he made that recommendation before the concern felt on the last occasion when there was an attempt to exclude or oust judicial review in immigration cases. The problem still remains, although it is a slightly different one—this is the point rightly referred to by the noble Lord, Lord Kingsland—that in order to substitute the upper tribunal as an alternative to judicial review by a High Court judge, it seems to me essential that the upper tribunal should be presided over in such a case by a High Court judge. The objection that would otherwise arise is that a decision on a matter that relates to judicial review is being taken by what I fear to say is called an inferior judge, a judge of the county court, not by a judge of the High Court.

That problem could be easily resolved by another exclusion in Clause 19—in other words, another condition for the exclusion of judicial review should be that the decision from which the appeal is brought is one which has been presided over by a High Court judge. I do not think that there would be any difficulty in providing that exclusion.

At Second Reading I also raised a separate problem, which is the second issue raised by the noble Lord, Lord Kingsland. That relates to new Section 31A of the Supreme Court Act 1981 and, in particular, subsection (7)(b). I have not tabled a specific amendment to cover the question that I raised at Second Reading, but I hope that it is accepted that it is covered under the stand part debate.

The point I made has been the subject of a letter that I have received from the noble Baroness, for which I am very grateful, but I am not completely satisfied with the answer and therefore hope to take this opportunity to probe the matter a little further. The drafting of Clause 19 and new Section 31A of the Supreme Court Act is very complex. That was accepted by the noble Baroness in her letter. It is the structure rather than the language that is complex. The overall effect of the new section will be to exclude immigration cases from the new procedure, and to do so for a very obvious reason: that immigration cases are at the most sensitive end of judicial review cases. That is the reason why one finds in new subsection (7)(a)(i) a specific exclusion of immigration Acts.

That being so, surely it makes little sense to go on in new subsection (7)(b) to create an exception on that exclusion. Either the exclusion is justified on the basis that immigration cases are at the most sensitive end of judicial review, or not. If that presumption is established, it seems to me wrong that the Lord Chancellor by direction can override that presumption. That is why, unless I can be given some good reason why the overall objective should be set aside by a direction of the Lord Chancellor, I shall in due course seek leave to amend this clause so as to exclude paragraph (7)(b).

I support my noble and learned friend Lord Lloyd of Berwick in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. It would be invidious for there not to be a judge of that rank dealing with it. I support my noble and learned friend very strongly.

I am grateful to the noble Lord, Lord Kingsland, for introducing a number of issues. I shall try to deal with them, but I hope that the noble Lord will leap in if I do not get it quite right.

I turn to the noble and learned Lord, Lord Lloyd of Berwick. If he does not mind, I shall reiterate a little of what I said in my letter to him to put it on the record as it is important. Noble Lords who know that I am not a lawyer will realise that this matter constitutes an additional double whammy for me. The clause’s construction is necessarily complex, because, as the noble and learned Lord rightly said, there is great sensitivity about judicial review, particularly as regards immigration. I reiterate what my noble and learned friend Lord Falconer of Thoroton said to the noble and learned Lord, Lord Lloyd of Berwick, at Second Reading. My noble and learned friend said that,

“the intention of the Bill is not to revisit the territory to which I think the noble and learned Lord is implicitly referring. The intention is to refer to the upper tier of the tribunal issues that are currently dealt with by the High Court”,

and gave some specific examples. He continued:

“The intention is certainly not to do by the back door that which we withdrew by the front door”.—[Official Report, 29/11/06; col. 762.]

I reiterate that for the benefit not only of Members of the Committee who may not have been present at Second Reading but to make it clear to those who read Hansard that we are not attempting to do that.

We have sought to establish conditions that must be met before a case can be transferred. These are: limitations on the relief sought, which is the first condition; and that nothing done by the Crown Court is questioned—the second condition. The third is that the case falls into a class specified by the Lord Chief Justice and the Lord Chancellor. That “duet” is particularly important in that case. If the case is in that class and the other conditions are met, the case must be transferred. As the noble and learned Lord rightly says, we have prevented the transfer of any asylum, immigration or nationality cases, but we have allowed ourselves flexibility in the legislation. There is no question that that is what we wish to do at present, but I am trying to ensure that we think always of the future.

The noble and learned Lord well knows the sensitivities surrounding asylum and immigration cases. He rightly recognises that we have sought to identify that in this clause. He also recognises the importance of not transferring them at this point. But we want to ensure that flexibility exists to review that decision in the future, not least because we want to see how the provision works in different areas. We want to see what kind of cases might be captured. The noble and learned Lord knows that we shall look at very specialist areas where it is extraordinarily relevant to use the expertise in the upper tribunal. It is, of course, the High Court’s decision to do that. If a measure is about reasonableness it can hang on to it, if it thinks that it is relevant. It is the High Court’s choice. That refers to the issue of the judiciary. As the noble and learned Lord and the noble Baroness know, High Court judges can indeed sit in the upper tribunal. However, there may be cases where they do not. It is within the High Court’s decision-making powers to determine whether to send a matter to the upper tribunal if it thinks that is appropriate in terms of the kind of decision that is involved, the specialism that is required for that decision and the appropriate person being in charge to deal with it.

We have not said in the Bill that the person has to be a High Court judge, specifically because we sought recognition of the high level of expertise that might be relevant in very particular cases, and to leave that to the High Court to determine whether it felt it appropriate for there to be a transfer. That is where we are with the Bill; I hear what Members of the Committee say and I am sure that we will continue to discuss it, but that is why the flexibility exists in that part of the Bill. I hope that gives a flavour of what we seek to do.

If the Minister wants flexibility to include immigration cases, why not put that in the Bill now? It is in a sense doing by a back door what you are not doing by the front door. Why can we not have the presumption made permanent, subject obviously to further primary legislation?

I understand the noble and learned Lord’s position. We are clear that we do not want to include them at present, for the reasons I have indicated, which he is obviously at complete liberty to not accept. It seems to me that we have no case to include them now, for the reasons that are obvious about the nature of the cases concerned and the desire to continue with cases, because that would definitely be what those applying for cases would wish. We know that; they are very different at present.

We are dealing with a very particular time in terms of asylum and immigration cases, and with very particular issues. We do not yet have the expertise of having done what we propose to do in the legislation. All that I was suggesting to the noble and learned Lord was that we wanted to make sure that we did not rule this out for ever. If there came a point when we ought to look at it, in the view of the Lord Chief Justice and the Lord Chancellor, we should be able to. Cases and circumstances change. Certainly, within asylum and immigration cases, we see that circumstances have changed radically over several years. The noble and learned Lord is at liberty to say that we should wait for the next passing piece of legislation; my experience is that you can wait a long time, and one should have the opportunity to think about how well the system is working and the nature of future cases. That is the reason. We were not seeking to do anything for which he would rightly accuse us of back door-ism, and for the present we have no intention of including such cases. None the less, we want to be sure that in future there will be the opportunity for us all to consider the matter again.

I am most grateful to the noble Baroness for her reply. I share much of the noble and learned Lord’s concern about new Section 31A(7)(b). One anomaly about immigration in the Bill is that immigration tribunals are one category of tribunals that are to some extent outside the system described in it, not for all purposes but for some. Traditionally at the moment, all judicial review matters about asylum and immigration will continue to go to the administrative court—full stop. By virtue of new Section 31(7)(b), the Government have given themselves an opportunity in future to change that. Therefore, we will have a curious situation whereby a set of tribunals that are not integrated into the full system of the Bill, soon to become an Act, nevertheless have their appeals heard in the upper tribunal, which is an integrated part of the Act. Quite apart from the underlying merits of that, I foresee a certain amount of statutory confusion unless the Government think further about the method that they use. I know that the noble Baroness will think about that before Report.

One other matter to which I wish to return is the question of the kind of judge who ought to hear judicial review matters referred to the upper tribunal. I feel strongly that it ought to be a High Court judge. I am not sure I fully understood the Minister’s response to the noble and learned Lord, Lord Lloyd of Berwick, but I think she said that the Government wanted to retain the flexibility for the upper tribunal to hear judicial cases by judges other than High Court judges. I wish to put it on record that, for my part, the Opposition would find that wholly unacceptable. She can be in no doubt that on Report she will be facing an amendment on this matter, upon which we shall call a vote.

I thank the noble Lord for letting me intervene. I wish to say two things. First, we want the Asylum and Immigration Tribunal to be part of the system. It is a single operation, which is why it sits a little awkwardly within the legislation.

Secondly, I hear what the noble Lord says, but let us have one more go at this before I sit down. We have senior judges within the Tribunals Service who are used to hearing judicial reviews. They are obviously a critical group. We were seeking to consider the additional expertise that might be available on, for example, tax and social security matters, where the issues under debate would fall to those people’s expertise at an appropriate level. The only disagreement between us is that I have not designated that as a particular category, because I felt the High Court should determine if it felt it was appropriate to transfer or not.

I am always anxious to avoid getting to the point where the Opposition feel the need to call votes. I am happy to have another conversation. There may be another way I can think through the description of this that would satisfy the noble Lord, and if I can achieve that, I would be pleased to.

I see no difficulty in a High Court judge sitting with another judge who is an expert in a particularly complex technical area. That would be quite understandable. In my submission, however, it flies in the face of the constitutional history of judicial review, the nature of the prerogative writs and the nature of the decision-making of the administrative court. It would be entirely inappropriate to have anyone other than a High Court judge dealing with those matters in the upper tribunal. The Minister could have the best of both worlds by having a technical expert sitting with a High Court judge. On the issue of the High Court judge, however, I must remain quite unrepentant.

Clause 15 agreed to.

Clauses 16 and 17 agreed to.

Clause 18 [Limits of jurisdiction under section 15(1)]:

moved Amendment No. 55:

I am grateful to the noble Lord for allowing us to return to this matter. I am not sure that I can answer his question in the manner he would wish as the point behind this is to enable the Lord Chancellor and the Lord Chief Justice—the Lord Chief Justice getting the agreement of the Lord Chancellor—to decide the class of case for which the upper tribunal has sole responsibility, and for the High Court to decide cases as they arise. Again, in setting up the service, we seek to define—and this matter will obviously be the subject of debate and discussion—in primary legislation the methodology we would use. We think that in the way we have designed the provision we would be able to designate appropriately. I am not sure that I can give the noble Lord the detail that he probably deserves at this point.

I will see whether I can get more detail on this matter. I will write to the noble Lord and copy that correspondence to the Members of the Committee. That will enable us to have a proper discussion about it. At this stage we have a skeleton of what that might be rather than the detail. The noble Lord is quite reasonable to want to be able to demonstrate, for example, what might be covered within that legislation and the cases which we think may rightly be within the upper tribunal’s remit and those which would need to be thought about separately. I apologise that I cannot be more specific about this point, but I would like the noble Lord to ensure that we discuss the matter further.

I am most grateful to the Minister for that undertaking. I very much look forward to reading what she writes and circulates to the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clauses 19 to 21 agreed to.

Clause 22 [Tribunal Procedure Rules]:

moved Amendment No. 56:

My speaking note says:

“Despite the noble Lord’s eloquence, it is difficult to see exactly why his amendment is really necessary”.

My briefing note says:

“Looked at one way there is no tangible reason for resisting this apparently innocuous amendment”.

I do not know whether I can accept the amendment just like that, as I do not know whether there is a parliamentary drafting point. I need to ensure that the noble Lord is not adding in something that I am not sure about—not that he would, of course. However, on the face of what he said I do not see a problem. Can I take the issue away and just check there isn’t something funny?

Before my noble friend sits down, does she not agree that this amendment is also the subject, invariably, of appealing against the decision involved? All cases must be judged by this criterion. In all cases before courts and tribunals the interests of justices must be achieved. So why is she taking the amendment away?

I am only taking it away because I did not clear its acceptance. I had not heard what the noble Lord, Lord Kingsland, had to say until now. I am not taking it away with a view to doing anything strange with it; it is simply that the rules of the game are that before I accept something on the hoof, which is what I appear to be about to do, I need to check that I have not added anything in by accident. I do not think that the noble Lord, Lord Kingsland, will mind if I do this and I hope that my noble friend does not mind. I am not seeking to wriggle in any way, shape or form; I merely need to be absolutely certain.

The argument against putting-in the words in the amendment is that it is inherent in all the things that tribunals do, which I think noble Lords accept. There is no suggestion that we need this provision because it is not there. I think that what the noble Lord, Lord Kingsland, is saying is that sometimes declaratory words can be important.

While my noble friend is looking at that matter, will she also confirm that Amendment No. 58 is also necessary? I think that it is. The European Convention on Human Rights is overarching, is it not?

This is why I should not do things on the hoof, is it not? I immediately find myself in a different place.

This is partly my fault. I have just realised that Amendments Nos. 57 and 58 are in the same group as Amendment No. 56, and I neglected to speak to them. So I think I am the source of the noble Baroness’s confusion, for which I apologise.

I will quickly speak to those two amendments to allow the noble Baroness to come back on the whole group. I am in two minds about whether it is necessary to put Amendment No. 58 in the Bill because I think that it is self-evident that the Government have to meet that criterion anyway. It would be helpful if she could confirm that.

On Amendment No. 57, the noble Baroness will be aware that in certain tribunals legal aid is already available—for example, the Lands Tribunal and two or three others. But it is not generally available in tribunals and she will be alert to the fact that institutions such as the Law Society have been pressing for some time for a general provision to allow legal aid to be available in front of tribunals in certain circumstances.

The Government are currently wrestling with a number of problems concerning legal aid. I am aware that it is a highly sensitive area and that there may be some reticence in the Lord Chancellor’s Department about giving any sort of undertakings about legal aid at the Dispatch Box. There seems to be some merit in having a clause— even if the criteria are extremely strict—which would allow legal aid in exceptional cases in all tribunal cases. I would be interested to know the Government’s formal view on that point.

As I said at Second Reading, I support the view that legal aid should be available under certain circumstances. This amendment tries—I do not know whether in law it succeeds—to encompass that particular point. I find it very difficult to accept the view that legal aid should be somehow hedged, somehow not available, or available under circumscribed circumstances. After all, for the individual, the matter before the tribunal is of the utmost importance and it should not be lightly discarded. I am not saying—nor does the amendment—that legal aid should automatically apply. Nobody is arguing that point. The judge of the first-tier tribunal should be able to express the view that the tribunal would be helped by the provision of legal aid.

I find it very difficult to accept the view that in a very small minority of cases legal aid would be available. As I say, it should be for the chairman of the first-tier tribunal to express a view. This view is extremely important. Legal aid can be of enormous help to a tribunal when it comes to arguing a point of law. That help would certainly not be available without an experienced lawyer. It is incumbent on my noble friend to express a view today, which I hope complies with what I have said. If not, I hope that she will be able to express a view that I am wrong. All in all, the issue is of vital importance. That is why I have stood up to express forcefully this point of view. I will certainly return to the point on Report.

I hope that the Minister will give serious consideration to what the noble Lord, Lord Clinton-Davis, has said. I would not wish to disguise from the Committee the fact that, like other Members, I have notes in this case from the people at the Council on Tribunals. Mine state:

“Council in favour of more publicly-funded advice, assistance and representation in tribunals, not necessarily provided by lawyers”—

says he with some nervousness in this particular gathering. It is often the case that advice bodies such as the citizens advice bureaux are more appropriate for the sort of advice or assistance that is needed. I would not want this provision confined to lawyers. The question is on adequate provision for those who clearly need some additional help in presenting their case. One of the few things that I and the Council on Tribunals differed from Andrew Leggatt on was his general assumption—not a universal, but a fairly wide assumption—that people could be expected always to present their own cases to tribunals. I am sure that that is true in many cases, with perhaps relatively modest assistance, but it depends much more on the person rather than the subject matter of the tribunal. There is need for flexibility here, which, I think, is what the noble Lord, Lord Clinton-Davis, is calling for.

Issues of complexity can also arise, which the noble Lord has not dealt with. That is very important as well.

I accept that. I am certainly not trying to pick a fight with the noble Lord, Lord Clinton-Davis. I was trying to be helpful and friendly towards him, while at the same time gently saying to the Minister that I think that many people are a little concerned about whether there is sufficient help for those who cannot be expected to look after themselves, whether because of complexity or because they have not had as good an education as we would wish everybody to have, or because of other personal circumstances. There is an issue here that is also raised by the amendment of the noble Lord, Lord Maclennan, which has virtually been brought into this debate now. I hope that the Minister will give further consideration to this between now and Report. I say no more than that.

The only other thing that I will say while on my feet is that I urge the Minister on in her constructive approach to my noble friend Lord Kingsland in respect of the business of the interests of justice being achieved.

I shall revert briefly to Amendment No. 59 in my name, to which the noble Lord, Lord Newton, has just referred, and will combine it with specific inquiry into the interaction between Clause 22 and the procedures described in Clause 28. I would be grateful if the Minister could enlarge a little on how the Government practically propose to give effect to their intentions towards the particularly needy sections of the community. The cost and expenses provisions of Clause 28 are subject to the tribunal procedure rules, which we are considering under Clause 22.

I am concerned about whether the unfettered power to award costs in any tribunal conferred by Clause 28(1) could be lawfully cut down by a tribunal procedure rule issued under Clause 22. Is it intended that the rules are wide enough lawfully to enable a whole class of tribunals to be exempt from the general rule in Clause 28(1)? If such an exemption is to be made possible, will the Minister use this opportunity to amplify what she said to me on Second Reading about the Government’s intention that social security and child support appeals should be exempt? As she knows, because she has been engaged in correspondence about this, this matter is exercising the Child Poverty Action Group. This is the point in our deliberations when we have to consider whether these rules should make specific provision to take account of these concerns. I say this to amplify the general concerns that have been expressed by the noble Lord, Lord Clinton-Davis, and other Members of this Committee.

I begin by saying to the noble Lord, Lord Kingsland, that it is always helpful when the whole group is spoken to rather than bits of it, because it helps me enormously to not stray too far. I shall deal with the different issues that have been raised first.

On the interests of justice, who am I not to do what the noble Lord, Lord Newton, tells me to do? I hold my hand up and say that I do not have a problem; I am simply not agreeing to the words for the reasons that I have given. I need to check that they are in the right place and that they do the right thing. I shall bring this matter back, or even better I shall give it to the noble Lord, Lord Kingsland, to bring back formally, as it is his amendment. I take the point. It is resisted only because we think it is inherent in what is said, but I am one for occasional declaratory remarks, so I am quite comfortable with looking at that properly.

Legal aid is a really interesting and, at times, quite difficult subject when it comes to tribunals because, on the one hand, I am very keen that we do not use lawyers, however wonderful they are, if we do not need to in tribunals. One of the great joys of much of the work of the tribunals has been that the legal profession has not needed to be involved in them. I mean no disrespect to the legal profession: rather, it is because the nature of the Tribunals Service has been different. I am therefore always reluctant to make a general statement that somehow implies that we have turned the tribunals into a fully fledged traditional court system. That is my first point of resistance.

The Committee knows that my noble and learned friend the Lord Chancellor is grappling with the issue underlying this—we are grateful to the noble Lord, Lord Carter, for the work that he has done on the review—in trying to make sure that legal aid is available in the civil system. There is a finite pot of money. Everyone in government knows that you cannot simply make it open ended. Therefore, one has to think carefully about how it is used.

At Second Reading my noble and learned friend made it clear that he was concerned about this issue. I believe that my noble friend Lord Clinton-Davis asked my noble and learned friend about the matter at that stage. Therefore, for those reasons I am not keen on including the provision in the way that the Committee wants. I do not want to set hares running that I cannot fulfil as regards what is meant by the phrases that have been suggested. I do not want to imply that what we are discussing is necessarily the norm in all tribunals. However, my noble and learned friend undertook to look at the matter. He has no objection in principle to looking at how tribunals can improve the way they deal with legal aid.

The point about the support that people need is just as relevant. I refer to the advice and support that people receive when they are taking part in tribunals. They may be very familiar with the tribunal system or it may be a quite new experience for them. However, we need to do a lot more in terms of providing support. Often it is not a question of providing support of a legal nature but of providing it to enable someone to understand the proceedings. The relevant people may need someone to act as a mentor to help them. We need to ensure that we look at that. We are committed to making the Tribunals Service user-friendly and easily understood, not daunting and to ensuring that people get justice because they understand what is happening. On occasion, that will require the provision of legal expertise.

The whole impression that has been given so far is that legal aid should not be given under any account unless the circumstances of the person concerned are so serious that there is no alternative but to give it. That is quite wrong. Members of the Committee opposite have suggested that legal aid should be granted where—I stress “where”—it can be of value to the tribunal. Is that suggestion obnoxious to the Government?

It is not obnoxious at all. My noble friend’s views on the matter do not differ greatly from mine or those of the Government. I was trying to make three points. First, that what we value in tribunals in many cases is that it is not necessary for lawyers to participate because people are able to represent themselves. People can use the tribunal as an informal procedure or involve other professionals who can give them advice. Secondly, as my noble friend knows, we are reviewing the legal aid system and looking at the balance between criminal and civil cases, including the use of tribunals, and the way in which we can provide appropriate support where it is needed. I resisted defining that in the Bill because we are a considerable way from reaching conclusions on that. When he talked about the legal aid system at Second Reading, my noble and learned friend made it clear that he understood and took on board the points that had been made. Thirdly, I also want to ensure that when we think about money and funding, of which legal aid is a big part, we do not forget that the quality of the advice and support that people get as they enter the world of the Tribunals Service is also very important. I want to make sure that we note that.

I do not know whether what is being expressed here is in the right terms or the wrong terms, but it should be left to the chairman of the tribunal concerned to say, “It would be of advantage to us if legal aid were to be available”, because, in that way, the case that the person wants to advance can be articulated meticulously and legalistically and take account of all the complexities involved. What is wrong with that?

What is wrong with that is that I am not in a position to give an open-ended commitment that in all circumstances the chairman of a tribunal could indicate that and thereby grant legal aid. The Committee will know from the Criminal Defence Service Act and the work that we have been doing that we are trying to think systematically of the circumstances in which it would operate. I could not conceive of giving that kind of commitment. If my noble friend reflects on the work that we are doing around legal aid, I do not think that he would expect me to.

I am trying to draw attention to the fact that the whole purpose behind the review of legal aid, which was instigated by my noble and learned friend and conducted by the noble Lord, Lord Carter, was to look at how best to use this finite pot of money to support access to justice across the system and to recognise the weighting that currently exists in criminal and civil cases. My noble and learned friend has said on a number of occasions that he is mindful of the position of the tribunal system within that. I am merely trying to say that I cannot move from that position to determining in the Bill that person X can be granted legal aid of an undefined amount in an unspecified set of circumstances. That would be completely beyond my remit and would undermine the review on legal aid.

My noble friend should take heart from the fact that the point which he rightly stressed, and which has been raised and supported by other Members of the Committee, is a very valid one. How do we make sure that in the range of services we provide—including legal aid, proper advice and support and the use of professionals—the Tribunals Service serves people by being user-friendly, open, accessible and speedy? How do we make sure that we provide a high-quality service where, at the end of it, people have had access to justice? Legal aid has its part to play, but at this point I cannot define an open-ended part in the Bill. I hope my noble friend will take heart from the fact that I am trying not to lose the point but to put it in its proper context within the service and within the wider review.

The Minister is, as always, disarming, but it is more than 25 years since the Royal Commission on Legal Services spelt out in particularity the tests that should be applied to the giving of legal aid in administrative tribunals. Although no one would seriously argue that the quantification of the Government’s commitment to the money necessary to bring those merit tests to fruition could be undertaken by the Minister in advance of the conclusions of the deliberations to which she has referred, it is not clear to me why those merit tests cannot be incorporated into the Bill as principles to guide the tribunals in arriving at decisions about appropriateness. It would be better if that were specifically provided for.

I am grateful to the noble Lord for understanding the points I was making about why I cannot give that commitment. It was very sweet of the noble Lord to call me disarming but I am not sure that that is what I want to be.

It is very important that we do not take out bits of the legal aid framework and put it into different parts of legislation. We are carrying out a serious review of legal aid. It is important that we are very clear about its direction in the future and that we set that in the right context. This is not a Bill about legal aid. Much as noble Lords might wish it to be, it is not. It is a Bill about the future structure and development of the Tribunals Service. One of the issues as we develop the service will be the proper role of legal aid within it. We are at the beginning of that process, however, and I would be happy to look at anything I felt would benefit it. I am not sure, however, that the legal aid issues around the tribunal system can be dealt with effectively in this Bill, out of context and without looking at the whole framework of legal aid in the future.

I will resist the amendment, but it is not a resistance born of a lack of understanding of the issues being raised, or of a recognition by my noble friend and me that we have an issue that needs to be addressed. Rather, the issue needs to be addressed from the legal aid perspective as a whole. With regard to the tribunal service, the question is: where will the money be best used to serve the people we wish to serve? That will be legal aid within the Tribunals Service, but it will also be the other things I have described. It may well be that we need less legal aid money if the Tribunals Service develops in particular directions and people get high-quality advice earlier, or it may mean more legal aid money because the nature of the Tribunals Service suggests that we need to involve more legal professionals in it. We are not there yet, however. My resistance is because we are simply not in that place, and to try to be there would do a disservice to the work now being done on legal aid and, ultimately, a disservice to the clients and the Tribunals Service.

I shall turn quickly to the other points made about the European Convention on Human Rights. The noble Lord, Lord Kingsland, predicted what I was going to say. We have to sign the statements to say the legislation is compatible with the convention, so the amendment does not add anything. We do not put that into all our legislation, because it is already there. That is why I am resisting the amendment.

I am grateful to the Minister for everything she said about the three issues highlighted by these amendments. I have no doubt that the question of legal aid will reappear on Report. I take her point about human rights. As for the question of the interests of justice, I know she will go away and reflect on that. I am hopeful that she will come back with a positive response. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57 to 60 not moved.]

Clause 22 agreed to.

Schedule 5 agreed to.

This may be a convenient moment for the Committee to adjourn till tomorrow at two o’clock.

The Committee stands adjourned until tomorrow at two o’clock.

The Committee adjourned at 6.17 pm.