Public Bodies Bill [HL]

Lord Lloyd of Berwick Excerpts

Monday 29th November 2010 Lords Chamber

[Lord Newton of Braintree]

My Lords, I rise now not to trample on the noble and learned Lord, Lord Lloyd, whose name is the second listed in support of Amendment 17, but because he indicated that he would like me to speak before he does. I have already declared in earlier stages of the House’s proceedings that I have a really strong, though now historic, interest in this matter, as I was chair of the Council on Tribunals and then of the Administrative Justice and Tribunals Council for all but a month of 10 years—in other words, for, roughly speaking, one-fifth of its entire existence. I did not want to take the lead on the amendment because that might have looked odd against that background, but I am delighted that the noble Lord, Lord Borrie, has done so. For this purpose I regard him as my noble friend not least because, during the passage of the Tribunals, Courts and Enforcement Bill, it turned out that we had a remarkable number of things on which we saw eye to eye. I am very happy to support him.

I was going to give—the noble Lord, Lord Borrie, has done this for me, so I need not give it again—a sort of potted history of the origin of the Administrative Justice and Tribunals Council, the Leggatt report, the part that the council has played in the creation of the proposed integrated courts and tribunals service and the contribution that I, like the noble and learned Lord, Lord Woolf, feel that the council has made. However, the odd thing—which the noble Lord, Lord Borrie, did not mention—is that the Franks report had its origin in something that happened in the mid-1950s, which one or two in the House may remember, in an incident called Crichel Down. The Crichel Down affair was thought to be a scandalous abuse of executive power that led to such great concerns that it was in effect the origin of the Council on Tribunals and of much that has happened in the intervening period. Indeed, that incident constitutes one of the few instances since the war in which there was a principled ministerial resignation following something that had happened in a minister’s department. The Government may contend that there is no longer any risk of any kind of abuse of executive power in the dealings between citizen and state. The situation may be better than it was—I am glad that the Chief Whip is not present to hear this possibly tendentious remark—but I do not think that we would be discussing the Bill today if there was no risk of abuse of executive power. I do not believe that the need for safeguards has disappeared.

We are discussing not an ephemeral body that was set up on a transient whim but a council that has been a consistent part of the scene—and generally valued as part of the scene—for some 50 years. As the noble Lord, Lord Borrie, has said, the council’s powers were extended and its remit widened by Parliament only three years ago, with general support, as far as I can recall, and not a hint of opposition from any quarter in this House. However, now the council is included in Schedule 1 to the Bill. The remarks of the noble and learned Lord, Lord Woolf, have already been referred to, so I will not repeat them, but I will seek to build on what has been said about the council’s importance. The volumes of possible cases—not actual cases—between citizen and state include: 6 million benefit claimants; 2.5 million applications for visas; more than 25,000 applications for asylum; more than 220,000 pupils with statements of special educational needs; nearly 60,000 applications to the Criminal Injuries Compensation Authority; and nearly 25,000 complaints resolved by the Parliamentary and Health Service Ombudsman. What we are talking about is administrative justice in all those areas—involving tribunals, ombudsmen and the like—between the citizen and the state. In reality, the council is probably more important to most citizens than the courts, though with nothing like as high a profile.

Let me give the House the success rates in the appeals over which the Administrative Justice and Tribunals Council has had some kind of oversight function or watchdog—although I never used that word—role. Its success rates are as follows: for criminal injuries compensation, 43 per cent; for social security, 41 per cent; for immigration and asylum, nearly 40 per cent; for education admission appeals, more than 30 per cent; for education exclusion appeals, a quarter; and for the Care Standards Tribunal, 25 per cent. This is not an insignificant corner of the judicial system.

The great schedule of quangos to be abolished was published on 14 October, but most of those were simply declared subsequently not to be quangos and disappeared—a marvellous piece of smoke and mirrors—although there are still about 500 left. In the original list, the Ministry of Justice included three justice councils—the Administrative Justice and Tribunals Council, the Family Justice Council and the Civil Justice Council—and four procedure rule committees. For some reason, one of those three councils has landed up in Schedule 1, whereas the other two are in Schedule 7. All four procedure rule committees—civil, criminal, family and tribunals—are in Schedule 7. All of those—the two other justice councils and the four procedure rule committees—are said to be retained because they perform a technical function that should be independent of government. The odd one out is the Administrative Justice and Tribunals Council, which operates in this crucial area of justice between citizen and state. The document just said, “Abolish—no longer needed”. It did not say why; it just said that, to use a phrase that I used a week or so ago, the AJTC is for the chop.

That decision is all the more difficult to understand when you compare the terms of reference of the Administrative Justice and Tribunals Council with those of the Civil Justice Council. I shall not read out those terms, as they have been rehearsed briefly by the noble Lord, Lord Borrie, but you could hardly get a piece of tissue paper between them except for some odd bits of drafting. As the noble Lord has rehearsed, the terms of reference of the Administrative Justice and Tribunals Council require the council to look across the scene as a whole and at the needs of users. That seems to me, if anything, to be not less but more relevant in a world of staffing cutbacks, attempted cutbacks in legal aid and the desire to promote alternative dispute resolution as a more efficient way forward. Such objectives are supposed to be advanced by the council, which the Bill proposes to eliminate.

I do not want to say too much more, but I will ask a number of questions. Whatever the reason for the proposal—we have not been given a serious reason—the one thing that it cannot be is the coalition’s rhetoric about taking decisions back from bodies outside government, or at arm’s length, into government itself. I ask the Minister a rhetorical question: at the end of the debate, will he give me a list of the decisions that the Administrative Justice and Tribunals Council takes, or could take, that should be taken by the Government? This is not going to trouble him very much. If he likes, I will give him a blank sheet of paper now, and he can give me a blank sheet of paper back as the answer because there are no such decisions.

I will also pose some questions that are not at all rhetorical. The noble Lord, Lord Borrie, indicated that the Minister had said that there was some kind of oversight role of the administrative justice system in the Ministry of Justice. Unless things have changed much more dramatically in the past year or so than I have caught up with, there is no serious centre of responsibility for administrative justice in the Government. The Ministry of Justice is responsible for the Tribunals Service. This may have changed in the past year, but I think that I am right in saying that the Cabinet Office is responsible for ombudsman policy. However, individual departments often go down their own curious track in respect of ombudsmen. That was illustrated during the passage of the Tribunals, Courts and Enforcement Bill, when the Department for Transport or the Department of Energy—I forget which—argued for competing ombudsmen. The competition was between suppliers of services choosing which ombudsmen they wanted rather than consumers choosing which ombudsmen they wanted—a daft policy, if ever there was one. Therefore, ombudsmen do not seem to be controlled within a principled framework. If I am right in saying that the Cabinet Office is responsible for this matter, the Ministry of Justice is obviously not responsible.

The responsibility for education admissions and exclusion appeals lies essentially with education departments and local authorities. Policy on parking fines is in the hands of the Department for Transport. Each department is responsible for its own standards of complaints handling, review and all the rest of it. This is diffused across government. In reality, that has to be the case, especially for complaints handling and reviews. It seems to me that a body that can look from outside the immediate confines of government across the field is at least as much needed in this area as in any other.

Let me ask a further few questions before I conclude what I had not intended to be so long a speech. Is it the Government’s view that there is no longer a need for this body, or anything like it? If so, why? If not, how will the role and purpose be performed in future, and by whom? Bearing in mind that the structure of the AJTC included a Scottish committee and a newly created Welsh committee, I want to ask whether the devolved Administrations were consulted before the AJTC appeared in Schedule 1. If so, did they agree? What will happen if Scotland or Wales, or both. wishes to maintain the AJTC committees that they currently have?

There are dozens more questions to be asked, but I will not go on any further. I am not expecting immediate answers from the Minister, and I certainly do not want answers hastily concocted by his excellent officials on the basis of briefing provided by departments to which they do not belong. I am not saying that there is no case for any kind of change or movement. There could well be some scope for rationalisation. Rather curiously, since I do not much like Schedule 7, I would be far happier if the AJTC was in Schedule 7 rather than in Schedule 1, so that at least the Government would have some time to give proper thought to it and come forward with some serious proposals. If the Minister says that all these questions will be answered when an order is made under Schedule 1, I have to say to him that, in my view, we should have both the rationale and the answers to these questions before—not after—his colleagues are given powers to abolish such a body by not much more than the stroke of an administrative pen. I look forward to his comments on these and other points.

[Lord Lloyd of Berwick]

My Lords, I, too, support this amendment, and I am very glad to follow the noble Lord, Lord Newton, with all his lengthy experience of how the council actually works and how much good it has done over the past 10 years and, indeed, for far longer. I add something only because I was much involved when the Tribunals, Courts and Enforcement Bill was going through the House in 2007. I thought it might be of interest to the Committee to look again at what Sir Andrew Leggatt said in 2001 about the old Council on Tribunals, since it was on his report that the 2007 Act was based. It does not seem to have occurred to Sir Andrew Leggatt that the council would cease to be of any utility once the new system had come into operation—quite the contrary. Briefly, he said in his overview:

“The Council—

that is, this council—

“should act as the hub of the wheel that is the Tribunals System. Its functions should include taking evidence from user groups, from the Tribunals Service, from the departments, and from the Judicial Studies Board about how well the system is working. This oversight”—

note the word “oversight”—

“should be in addition to, not instead of, the direct relationship that will exist between the participants in the tribunal process”.

A little later he says:

“Departments”—

that now would include the Ministry of Justice—

“should be under a duty to consult the Council on primary (in addition to secondary) legislation, and it should be given specific … authority to comment on it”.

Those were Sir Andrew’s views, and they were, of course, adopted by Parliament in the 2007 Act. Section 44 sets up the new council, and it is included under the following chapter heading:

“Oversight”—

again, note the word—

“of Administrative Justice System, Tribunals and Inquiries”.

In the schedule, its functions are described as follows:

“The Council is to … keep the administrative justice system under review”.

The schedule goes on to say that,

“‘the administrative justice system’ means the overall system by which decisions of an administrative or executive nature are made in relation to particular persons”.

It really could not be clearer than that.

--- Later in debate ---

[Lord Taylor of Holbeach]

We have no reason to suppose that that will happen. We are talking to the devolved authorities about this whole business. Indeed, the Scottish Parliament has already passed its own public bodies review, which has been running for two years now, so it is not a strange thing for people involved in Scottish politics to come to terms with a Bill such as this.

To return to my remarks, one of the council's functions is to keep under review the constitution and working of tribunals. That function dates back to the AJTC’s predecessor body, the Council of Tribunals, which, as noble Lords have said, was established by the Tribunals and Inquiries Act 1958. That Act was the result of Sir Oliver Franks’s report on administrative tribunals and inquiries, which was published in 1957. The tribunals landscape has changed immensely since the late 1950s, and much of that change has been relatively recent. I hope that I have paid adequate tribute to the previous Government’s work in that regard. Sir Andrew Leggatt’s 2001 review, Tribunals for Users, calls for a more unified tribunal structure supported by an independent Tribunal Service. April 2006 saw the beginning of that. The Tribunal Service was set up to administer the tribunals within the Department for Constitutional Affairs. Then came the Tribunals, Courts and Enforcement Act, which received Royal Assent in 2007. The main effects of this legislation included the creation of a new, simplified statutory framework for tribunals to provide coherence and enable future reform and the unification of the tribunals’ judiciary under the Senior President of Tribunals.

It was envisaged that the AJTC, set up under the 2007 Act, would advise on the development of the Tribunals Service and be able to offer proposals for change. This the AJTC did, first under the very capable leadership of my noble friend Lord Newton and more recently under the chairmanship of Richard Thomas. It has played an important role in helping in the creation of the Tribunals Service and deserves proper recognition for this.

However, we have now moved from a structure in which tribunals were funded by the departments whose decisions they reviewed, which left appellants feeling they were always at an away match. We now have a unified Tribunals Service which is well established, supporting the majority of central government tribunals, and run by the Ministry of Justice. So I believe that the AJTC has served its purpose in helping to set up the unified service.

The review of public bodies that the Government have undertaken has resulted in agreement that remaining central government tribunals outside the Tribunals Service will either transfer in or will be considered for transfer in. In addition, the development of tribunals policy—

[Lord Lloyd of Berwick]

On that last point, I find it very difficult—perhaps the noble Lord could deal with this—to reconcile that argument with the fact that the tribunal is contained in the same act. There was no suggestion that the council was to come to an end when the Tribunals Service took effect—not in the slightest.

[Lord Taylor of Holbeach]

At that time that was certainly the case. I accept that. The 2007 Act did not do away with the council. The noble and learned Lord, with a slip of the tongue, said “tribunal”. It is not a tribunal; it is an advisory council. It is very important that noble Lords bear that in mind.

In addition, the development of tribunal policy and the development of governance arrangements for the Tribunals Service mean the AJTC’s review function is no longer needed. I concur with the noble Lord, Lord Borrie, that the input of the judiciary and academics is crucial to the improvement of services and policy development. I do not envisage that their involvement will cease with the abolition of the council. Officials will continue to seek their views as part of policy development in relation to tribunals and administrative justice reform.

The AJTC also has a role in keeping statutory inquiries under review. For any noble Lords present who are not familiar with the AJTC’s work, I should perhaps explain that this role does not include keeping under review public inquiries such as Dunblane or Shipman. The AJTC has focused mainly on inquiries relating to land use.

The Planning Inspectorate, which is an executive agency of the Department for Communities and Local Government, is responsible for the determination of planning and enforcement appeals and routinely holds statutory inquiries into a range of land use developments. The Planning Inspectorate has now established a robust quality assurance unit, operating across all functions of the inspectorate to ensure appropriate standards and procedures are upheld. The quality assurance unit can, if necessary, recommend changes in the inspectorate’s audit committee or the inspectorate’s main board. The inclusion of non-executive directors on the inspectorate’s board ensures external scrutiny. Therefore, the AJTC’s review function in relation to statutory inquiries is no longer required.

Of course, the AJTC was given broader statutory functions under the Tribunals, Courts and Enforcement Act 2007 than its predecessor body, the Council on Tribunals. These are to keep the administrative justice system under review; to consider ways to make the system accessible, fair and efficient; to advise on the development of the administrative justice system; and to put forward proposals for change and make proposals for research.

If the noble Lord, Lord Newton, suggests that one of the functions of the AJTC was to act as a curb on executive power, I have to say that this was not a function of the AJTC and perhaps I can clarify that by going back to the 2004 White Paper Transforming Public Services: Complaints, Redress and Tribunals. It proposed a widened remit for an Administrative Justice and Tribunals Council but it also envisaged that the then Department for Constitutional Affairs would,

“take the lead on co-ordinating redress policy across Government. Its task will be to facilitate development of more integrated and consistent dispute resolution systems for the benefit of the public. It will take a systemic view across the various means of tackling disputes and the roles of the different organisations that provide them (courts, tribunals, ombudsmen, independent complaints handlers, etc). It will propose ways of dealing with gaps, weaknesses and overlaps while drawing on the unique qualities and key strengths of the distinct elements of the current arrangements”.

That was the last Government’s proposal under the 2004 White Paper for the role of the Department for Constitutional Affairs. In recent times, priority has been given to reforms to the tribunals system but, as the Ministry of Justice has taken on what is properly its responsibility and a wider administrative justice capability is being developed, it will take the lead—