Clause 23
Tribunals, Courts and Enforcement Bill
2:45 pm
Vera Baird (Parliamentary Under-Secretary, Department for Constitutional Affairs; Redcar, Labour)
I shall now deal with the substantive points of clause 23 and return to the question of ensuring that the practice directions are available. The point of directions in clause 23(1), which cannot be made without the approval of the Lord Chancellor, is that they are about practice and procedure respectively in the first tier and in the upper tier. It is appropriate that the Lord Chancellor should sanction them because they could have resource implications, for instance, if the practice and procedure became to hold a pre-trial review of the sort that I have conjured up. It is important that the Secretary of State, who is responsible for the budget of the Department, has a say in that sort of practice direction.
Surely the opposite is the case—this is the point of subsection (6)—on directions or guidance about the application or interpretation of the law, let alone the making of decisions by members of either tribunal. It is there that the Constitutional Reform Act 2005, which removed the Lord Chancellor as head of the judiciary, has its bite. It is slightly surprising that the hon. Member for North-West Norfolk, who has so far been championing its bite, now seems to have gone into reverse.
As a Minister, it would be inappropriate for the Lord Chancellor to be involved at all in the making of practice directions about the interpretation of the law, as that should be carried out by a tribunal chair, or the making of decisions by tribunal members. Those matters should rest firmly and clearly with the judiciary and, in this case, with the senior president of tribunals. Otherwise, there will be a danger of fouling the independence of the judiciary.
I can tell the hon. Members for North-West Norfolk and for North Southwark and Bermondsey that, as far as I can see, the formulation in this part of the Bill follows literally word for word the Lord Chief Justice’s direction-making power under schedule 2 of the Constitutional Reform Act 2005. It requires the Lord Chief Justice only to give directions, along the lines of clause 23(1) in the Bill, with the Lord Chancellor’s consent, but it excludes the need for the Lord Chancellor’s consent when he is making directions for the application or interpretation of the law or the making of judicial decisions. Both hon. Gentlemen were clearly satisfied by that wording in the earlier statute, and I invite them to accept the same here.