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Clause 23

Tribunals, Courts and Enforcement Bill – in a Public Bill Committee at 2:30 pm on 15th March 2007.

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Practice directions

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

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.

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

I want to make two brief points. I am also slightly mystified by the inclusion of such a provision. If there are to be practice directions about the application and interpretation of the law, which are pretty important directions, logically they should have the authority of the Lord Chancellor rather than not. Given that the others do, it seems that we are taking out a group of practice directions that are just as important. They are not about internal workings, but about how the law should be interpreted. I am surprised about that, but the Minister might enlighten us and we may discover something that we did not spot. Subsection (6)(b) does not trouble me nearly as much.

It is important that people have access to the rules governing tribunals. When people are seeking out planning law, they have to go down the waterfall of decisions from regulations under the law that have been made nationally to planning guidance that is set regionally and locally. They then might know what is likely to happen to their application for their extension. Where, at present, do people find consolidated up-to-date practice directions? Can the Minister give an undertaking that, under the new regime, there will be a place where politicians and anyone in the country can see, in electronic form on a website or, more importantly, in a paper-based form at their local library, the current extant practice directions set out in chronological and numerical order and in a way that is comprehensible and easy to understand? Such directions are often important bits of the system and they should be made clear for the lay person as well as practitioners.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs 2:45 pm, 15th March 2007

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.

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

I might have missed one thing, and perhaps I should have asked a question about it when we discussed clause 2. I take the Minister’s point about the independence of the judiciary; I was probably misrepresenting where the accountability should be. Under the new system, will anyone in the hierarchy be senior to the senior president of tribunals? Is the senior president not in some way subject to the Lord Chief Justice as a more superior judge in England and Wales? If that is the case, the Minister is implicitly right that the Lord Chancellor should not, for the reasons she gave, be the person holding the clearance on the interpretation of the law for practice directions, and it should be the Lord Chief Justice. Perhaps she will elucidate the matter. I had assumed—I could be completely wrong—that if one looked at the judicial hierarchy after the implementation of the Bill, one would still see the Lord Chief Justice at the top and the president of the family division and other people with specific responsibilities, including the senior president of tribunals, under him. Perhaps she will tell me whether that is correct.

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

No, the senior president of tribunals is not accountable to the Lord Chief Justice. The senior president is separate and independent, and also, therefore, not accountable to the other chief justices whose jurisdictions his post will cover.

I was asked about publicity for practice directions. The practice directions will be published on the web. There will be a tribunals website—indeed, I believe that there already is a Tribunals Service website—on which practice directions will be published. Many tribunals publish practice directions on the web, such as those relating to the special commissioners or civil procedure. The commissioning policies of individual libraries will determine whether they make hard copies available. We will look at the matter with every intention of ensuring that people going unaccompanied to tribunals have all the information that they need to fight a fair fight, as it were.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I am grateful to the Minister for that reply. With practice directions we are dealing with a complex and technical area, but she has explained the measures with great courtesy. With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.