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Clause 4

Tribunals, Courts and Enforcement Bill – in a Public Bill Committee at 9:15 am on 15th March 2007.

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Judges and other members of the First-tier Tribunal

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move amendment No. 2,in clause 4, page 3, line 6, leave out ‘judge’ and insert ‘legal member’.

The essence of the amendment concerns the use of the word “judge”. The Committee will recall that Sir Andrew Leggatt was at great pains to emphasise that tribunals exist for users, as the hon. Member for North Southwark and Bermondsey pointed out. Tribunals   need to be accessible. Day in, day out, we meet people in our constituencies who have had experience of tribunals. In fact, many more of our constituents go to tribunals than go to court. The point of tribunals is that they should be unthreatening and consumer-friendly. There is a huge responsibility on the chairman of the tribunal to ensure that the conduct of its affairs is as informal as possible. That is why we are keen to ensure that everything about tribunals should be relaxed and consumer-friendly.

Does the Minister feel that the use of the word “judge” is appropriate in those circumstances? I can understand that there are plenty of chairs of tribunals who like calling themselves judges. The other day I met someone at a social event about whom everyone was muttering, “My goodness, he’s a judge”. It was all hugely exciting and good for his ego, but in fact he was chairing a tribunal. I submit that those chairs of tribunals of course do a superb job. I do not suggest for a moment that we should try to undermine their standing and credibility in any way. If it makes them feel better to tell their friends that they are judges, all well and good. However, should the users of tribunals, who are our constituents, feel that there is that extra layer of formality inherent in the use of the word “judge”? I would say probably not.

The other important point is that the Lord Chancellor has the power to appoint people with no legal qualifications whatever as legal members of tribunals. Those people may well become chairs of those tribunals. We do not necessarily object to that, but if people are appointed to tribunals as legal members, yet have no legal experience whatever, should they call themselves judges? I suggest to the Minister that that would not really be appropriate.

Earlier we discussed the importance of the Constitutional Reform Act 2005, the essence of which is the separation of powers so that judicial selection should be entirely free of the Executive. However,we find a member of the Executive—the Lord Chancellor—able to designate individuals as judges, in complete contravention of all the principles of that 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 we are keen, as we are, to maintain an atmosphere of informality and want to make the tribunals as user-friendly as possible to our constituents, the Minister should accept the minor change proposed in the amendment, which would be in the interests of the tribunal system.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I am sympathetic to the amendment. In the immigration service, the person at the first tier is called the adjudicator and the person at the second tier, as the Minister will know, is called—

Vera Baird indicated dissent.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

In that case, I stand corrected; but the general point holds. We are having a two-tier system—that has been agreed by the Committee and it is sensible. The Tribunals Service is meant to be less formal. There is a strong case for having a perfectly proper and respectable title at the lower level, but something other than “judge”. Some people are not legally qualified, which is perfectly acceptable. The title of chair of an employment, industrial or social security tribunal and so on seems entirely appropriate. I would be interested to hear what assessment has been made of the benefit of a more legal title at the lowest level.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs 9:30 am, 15th March 2007

Unlike the hon. Member for North-West Norfolk, I do not mind if calling people judges makes them happier. I think that people should be happier if they can be. We in the Labour party want to let the sun shine in on all possible occasions.

Calling somebody a judge has absolutely nothing to do with who appoints them or how they are qualified, and it certainly does not have the remotest relationship with the separation of the Executive and the judiciary, which we promoted in the Constitutional Reform Act 2005. Although the hon. Gentleman now talks about how the Opposition supported the Judicial Appointments Commission, they were actually dragged screaming to that agreement. There is nothing about calling someone a judge that compromises the independence of the way in which they are appointed.

The process is well under way. The hon. Member for North Southwark and Bermondsey hoped to find an analogy with something that has already disappeared. Immigration adjudicators are now called judges. People who used to be called stipendiary magistrates are now called district judges, as are those who were known as registrars in the county court. There are cost judges who adjudicate on lawyers’ fees, and there are even judges in the Eurovision song contest, some of whom usually award nil points to us. There are a lot of good aspects to the proposal to call these individuals judges. The term “judge” describes exactly what the post holders will do. They will make decisions about people’s rights and about Government responsibilities.

The purpose of creating a new title is to give consistency across a wide range of jurisdictions. Currently, legally qualified members are known by a range of titles, including commissioner, president, adjudicator, panel chairman, umpire and even member, which I thought very funny when I was younger. Those titles do not convey a clear picture about who the titleholders are or what they do. Nor do they convey the fundamental message that tribunals are independent of the Government. Everybody knows that judges are independent, but the term “legal member” does not carry the same message.

Calling people “judges” does not mean that tribunals will be run differently. The judges will continue to treat appellants and complainants as they do now. Theywill give matters the same consideration and do soas informally as possible. We intend to retain the informality of tribunal hearings. During hearings, judges will not need to use their titles. In the AIT, legally qualified members are known as immigration judges, and senior immigration judges are usually addressed as “Sir” or “Madam”. That is the guidance from the tribunal president.

The amendments echo those tabled by Lord Kingsland in Grand Committee. We resisted them then and we resist them now. In doing so, we have the support of Mr. Justice Hodge, the president of the AIT, and Mr. Paul Shaerf, the president of the Council of Immigration Judges, both of whom wrote to me expressly on this matter. Mr. Justice Hodge wrote:

“I know that there is very widespread support within the tribunals judiciary as a whole for the use of the title to be adopted. The adoption of the title will be seen by them as a recognition of the important work that is done by the Tribunals Service for the administration of justice as a whole. Further, I believe every effort should be made to maintain and promote the cohesion of the judicial ‘family’ and conferring the title ‘judge’ on those who adjudicate in administrative tribunals will serve this end.”

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

Obviously, we are talking about nomenclature in large measure, so there are fine definitions. I am interested to hear that the Minister has obtained some backing and guidance from one part of the judiciary. Has she consulted the judiciary more widely, particularly Court of Appeal and High Court judges, to establish whether they feel that the changes will have any bearing on their status or standing? Has she considered redescribing tribunals as courts, because they are, ultimately, seeking to establish matters of fact and law? Given that she wants a fairly standard and level approach, has she considered making those changes?

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

There is no indication that the higher judiciary have any reservations about the nomenclature; indeed, Mr. Justice Hodge is, of course, a High Court judge. “Courts” is not a good name for the tribunals because tribunals are more informal, accessible and inquisitorial than courts. “Tribunals” is therefore the right name for the institution and the staff who will the fill the adjudicating role.

Mr. Shaerf said that

“the council of immigration judges believed that the introduction and use of the title ‘immigration judge’” instead of adjudicator

“had worked very well and that such a title is more readily understood by appellants and other tribunal users than the former title of...adjudicator.”

He said that

“the use of the title ‘judge’ is not a material factor in establishing with what degree of formality a hearing is conducted” and that any attempt to remove the title

“would cause considerable dismay, consternation and discontent amongst many of the Council’s members.”

We do not intend to do that.

Photo of Tobias Ellwood Tobias Ellwood Opposition Whip (Commons)

For many people who come across a tribunal, it might well be the second time that they have been confronted by the judicial system, unless they are a frequent offender, in which case they may be a regular. The Minister mentioned district judges, High Court judges and immigration judges, all of which terms have a description prior to the word “judge”. Would it not therefore be sensible to call the judges that we are debating “tribunals judges”? The Conservatives are concerned that the name, qualification and position suggested by the word “judge” is being diluted, which is not good.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

The prefixes point out what the function of those kinds of judges are. They are referred to by their staff as “judges”. There is nothing to be gained by complicating the nomenclature. I am not sure what the hon. Gentleman meant by referring to offenders—I hope that he understands that we are not talking about criminal tribunals. To suggest that the high calibre of people who are going to be put into the tribunals would, by their nature, dilute, weaken, or undermine the calibre of the term “judge” is offensive. Frankly, I suggest that he supports the clause and discards the amendment as soon as possible.

Photo of Emily Thornberry Emily Thornberry Labour, Islington South and Finsbury

Does my hon. and learned Friend agree that the public will use the term “judges” whatever official title is used? When members of the public who are not legally qualified appear before people who judge them, they will refer to such people as “judges”. The public see the people who judge as “judges”, so why do we not give them the name that appears on the tin?

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

Actually, I do not agree. Calling people names such as “commissioners”, “adjudicators” and “umpires” can easily suggest that there is some particular curiosity about the nature of their considerations. Calling a person a “judge” makes it clear what their function is. Furthermore, it is the hallmark of independence—the judiciary is known for its complete independence. Although my hon. Friend comes to the same conclusion, she comes from a different point of view. I invite the hon. Gentleman to withdraw the amendment.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The Minister has explained the situation clearly. I hope that she does not object to my prompting debate because it is important for us to discuss these matters and to probe the Government. Conservative Members had concerns, many of which she addressed, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

Clause 4 and schedule 2 set out provisions relating to judges and other members of the first-tier tribunal. The hon. Member for North-West Norfolk asked if I minded him raising issues concerning amendment No. 2. Of course, I do not mind. However, I worry enormously when concepts such as diluting the calibre of judges are tossed about in Public Bill Committees merely for the purpose of probing. Obviously, that was not wise because we are only just setting up the new structures and hoping that everybody will contribute and feel that they are highly regarded members of the new teams.

Currently, most tribunals include both legally qualified members and members without legal qualifications. The qualifications of legal members vary from tribunal to tribunal. The range of non-legally qualified members varies a great deal. There are medical practitioners, accountants, people with experience of disability issues, people with experience of the armed services, and many other lay members. That structure will continue.

Judges and other members of the new tribunals will be transferred from existing tribunals, appointed by the Lord Chancellor following selection by the Judicial Appointments Commission, or hold their office in the new system by virtue of another office that they hold in the courts or tribunals. The use of such ex officio members will enable judges with the appropriate expertise and experience to be brought into the new structure on the invitation of the senior president to help out, in effect.

Some non-legally qualified members of other tribunals will automatically be members of the new tribunals. The same principle will apply within the structure of the new tribunals so that, for instance, a judge of the upper tribunal will automatically be an appointed judge of the first-tier tribunal. Deployment will be under the control of the senior president of tribunals and, in the case of judges drawn from the courts, that will be in conjunction with the relevant territorial chief justice.

In order to safeguard the independence of the tribunals, the judiciary and appointed and transferred-in judges are protected by a prohibition on removal without the concurrence of the relevant chief justice. Judges and other members of the first-tier tribunal, transferred-in judges and salaried members are further protected in that they may be removed only by the Lord Chancellor and only for inability or misbehaviour. The senior president has responsibility for maintaining arrangements for the training, welfare and guidance of judges and other members of the first-tier tribunal.

Judges and members will be able to sit in morethan one jurisdiction if they have the right skills and experience. That is undoubtedly an advantage. The tribunal reforms will create a single pool of judges and non-legal members, secure in their independence, free from political interference, and encompassing a wide range of experience and expertise.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

Of course we support schedule 2, and I want to put on record that we in the Opposition have the greatest admiration for the calibre, commitment, determination and conscientious approach of thetribunal judges.

My hon. Friend the Member for Bournemouth, East was not for one moment trying to undermine those judges. He was simply considering them in the context of the judiciary as a whole, comparing a chairman of a tribunal who might come from a military background with, for example, a High Court judge or maybe a lord justice of appeal. The point that he was making was about the comparison between the lower-tier legal members and a Law Lord or Appeal Court judge. I am pleased to be able to clarify that, and we support the clause.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I wonder whether the Minister could tell us as of now how many tribunal judges are full time and part time. Will she break that down by territory and tell us how many are women and how many are men? How many come from the black or minority ethnic communities? How many are lay people who are not legally qualified? I support the idea that lay people  are coming into the Tribunals Service, and I have always supported that, but it would be interesting to know what numbers are in that category and what percentage they make up. I expect that the list might be immediately available, but if it is not will she let ushave it at the earliest available moment? There were announcements last week about widening judicial appointments, which are welcome on the Liberal Democrat Benches. If we are to know how much we need to do that work, we need to know the basis from which it started.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

I hope that the hon. Gentleman will remember that this is a Committee and not a pub quiz. There are roughly 450 full-time tribunal members and about 6,000 part-time tribunal members. I have no doubt that their diversity will enhance the diversity of the judiciary in general in respect of class, race and gender. I will write to the hon. Gentleman on the statistics.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.