Clause 23
Tribunals, Courts and Enforcement Bill
2:30 pm
Henry Bellingham (Shadow Minister, Constitutional Affairs; North West Norfolk, Conservative)
I beg to move amendment No. 70, in clause 23, page 20, line 22, leave out subsection (6).
The clause is about practice directions. Subsection (1) states:
“The Senior President of Tribunals may give directions”
in some circumstances. Subsection (6) states:
“Subsections (4) and (5)(b) do not apply to directions to the extent that they consist of guidance about any of the following—
(a) the application or interpretation of the law;
(b) the making of decisions by members of the First-tier Tribunal or Upper Tribunal.”
Hon. Members will have observed that under subsections (4) and (5), the senior president of tribunals can give practice directions only with the approval of the Lord Chancellor. In subsection (6), however, there is no such qualification. As I mentioned, in subsection (6)(a), the senior president of tribunals is entitled to give directions on the
“application or interpretation of the law”
without any reference to the Lord Chancellor.
With great respect, Mr. Bercow, you were not at this morning’s sitting when the Opposition made a number of references to the Lord Chancellor and the Constitutional Reform Act 2005. With reference to the appointment of judges, we felt that the Lord Chancellor should not have any additional powers because those were effectively taken away from him in that 2005 legislation. It is another matter, however, when it comes to practice directions. We wonder why the scope of the senior president is being cast more widely in this case. That depends, to some extent, on the statutory intention behind the power to give directions on
“the application or interpretation of a law.”
On the face of it, the provision looks a wide discretion and as if the senior president can direct tribunals on matters of law that ought in principle to be within their sole compass.
The amendment is an amalgam of a probing and a genuine one. Will the Minister explain carefully why the clause is drafted in this way? I am concerned that the current draft introduces a blurring at the edges regarding a practice direction on the one hand, indicating a methodology for applying or interpreting the law, and on the other hand, a danger of trespassing on the substance of the application or interpretation.