Public Bodies Bill [HL]

Lord Newton of Braintree Excerpts

Wednesday 23rd November 2011 Lords Chamber

Tabled by

[Lord Newton of Braintree]

As an amendment to the Motion that this House do agree with the Commons in their Amendment 49, leave out from “agree” to end and insert “disagree with the Commons in their Amendment 49 but do propose Amendment 49B in lieu”.

49B: After Clause 5, insert the following new Clause—
“Conditions on the exercise of powers under sections 2 to 5
(1) Unless the conditions in subsection (2) of this section are met, a Minister may not make any order—
(a) under section 2 to merge the Administrative Justice and Tribunals Council and the Civil Justice Council;
(b) under section 3 to modify the constitutional arrangements of the Civil justice Council;
(c) under section 4 to modify the funding arrangements of the Civil Justice Council; or
(d) under section 5 to modify or transfer functions of the Civil Justice Council.
(2) The conditions are that—
(a) the Minister has laid before both Houses of Parliament a report setting out in detail how the Government proposes that the functions of the Administrative Justice and Tribunals Council and the Civil Justice Council will be carried out in future;
(b) 60 days have elapsed between the laying of a report under paragraph (a) and the laying of any order for any of the purposes set out in subsection (1) above;
(c) the Minister has laid before Parliament a response to any report of any Committee of either House of Parliament on the Administrative Justice and Tribunals Council or the Civil Justice Council published within two years of this Act coming into force; and
(d) two years have passed since the coming into force of this Act.”

[Lord Newton of Braintree]

My Lords, I am as delighted as anybody by what has happened on the previous amendment. I am also pleased that a concession has been offered to the noble Baroness, Lady Finlay, though I do not yet know what her reaction to it will be. I bound to say that that leaves me feeling slightly plaintive as the only one to whose modest concerns the Government appear to be unwilling to make any move at all. I have down an amendment in lieu but that is not the one that I am moving. I made it clear to the Minister earlier this morning that I would only move the amendment if it had any attraction to the Government as allowing them to make a move in my direction.

[Lord McNally]

I am advised that if the noble Lord is not going to move these, he should now speak to the amendment that he is going to move, which is Amendment 49C.

[Lord Newton of Braintree]

I am sorry. Because of the complexities of this process, on which I had taken advice earlier, that is certainly right. I am not moving Amendment 49A, a point on which I had given the Minister notice earlier. I intend to move Amendment 49C.

Amendment 49A not moved.

Moved by

[Lord Newton of Braintree]

As an amendment to the Motion that this House do agree with the Commons in their Amendment 49, leave out “agree” and insert “disagree”.

[Lord Newton of Braintree]

My Lords, I beg to move Amendment 49C, with which I also wish to speak to Amendments 50A, 51A and 54A, which are related to the other amendments in what I regard as a group.

These amendments are designed to preserve some amendments inserted into the Bill by this House on an amendment of mine at Report—an amendment on which I had strong support from various parts of the House, including my noble and learned friends Lord Mackay and Lord Howe of Aberavon, and the noble and learned Lord, Lord Woolf, who I am delighted to see in his place. My noble and learned friend Lord Mackay is manifestly not in his place, because I am. I do not want to read too much into that; he supported me before and I have not checked what his view would have been on this occasion, though I hope he would have continued to support me.

The purpose of my amendments was not to frustrate the Government’s original intention to abolish the Administrative Justice and Tribunals Council, if that is what they continue to wish to do, but simply to give them scope for greater flexibility if they wanted to do something more creative, on reflection. Let me be quite explicit in respect of the Civil Justice Council, which is named in some of these amendments. I say this particularly to the noble and learned Lord, Lord Woolf. I had neither wish nor intention to damage the Civil Justice Council in any way, but I have long thought that there could be scope for some rationalisation between these bodies, and I am encouraged by the fact that the Master of the Rolls appeared to indicate that view in his remarks to the annual conference of the AJTC last week.

I shall not rehearse the arguments, as I set them out pretty fully on Report and noble Lords are slightly past wanting to hear them. But I shall make 10 points. First, good administrative justice—a fair system accepted by citizens for resolving disputes between the citizen and the state—is part of the bedrock of a society like ours. The second is that the Ministry of Justice has a sort of responsibility in this area, but its main specific responsibility is simply for that part of it that is covered by the Tribunals Service, not by much other essential machinery. It is not responsible for local authority tribunals, including those very important ones, to many citizens, that deal with education, exclusion and appeal matters and other local authority issues. It has no policy responsibility for ombudsmen, who are a key part of this whole set-up, and it has no policy responsibility for decision making and complaints handling of individual government departments, which is another crucial factor in administrative justice.

My next point is that the Council on Tribunals, now the Administrative Justice and Tribunals Council, is agreed to have played a major part over 50 years in improving a system of administrative justice that was bordering on a disgrace in the middle 1950s. There have been major improvements to which the council, under both titles, has contributed, not least the creation of the new Tribunals Service.

I am not sure which point this is—I have 10 in all. My next point is that the creation of the wider remit of the reformed Administrative Justice and Tribunals Council was fully supported less than four years ago by every group in this House, including the then Conservative opposition Front Bench and the then Liberal Democrat Front Bench. So to an extent this is going back to something that was committed to very shortly before the election. There was no manifesto commitment to its abolition and no mandate that can be claimed for its abolition.

My next point is that a key ingredient was the need for an independent voice for the interests and needs of the user of administrative justice systems. That cannot and would not be done by the Ministry of Justice—by people whose primary day-to-day accountability is to the Minister, not to the user or the stakeholder.

My next point is regarding the Parliamentary Ombudsman, whom people may like or not, but the Ombudsman’s comments on the proposed abolition in relation to the consultation document is worth a guinea per minute and quite short. I am not going to read it all out, but one paragraph of it says that her extensive contact with the Ministry of Justice in its various guises over many years gives her no confidence whatever in the ability of the Ministry to assume the functions of the AJTC. She goes on to say that however well-meaning and diligent individual officials may be, the Ministry simply lacks the institutional history, capability and technical knowledge to do that. I say hear, hear to that.

Then there is a devolution angle, which the Minister may not even have thought about. The Administrative Justice and Tribunals Council has a Scottish Committee and has always had one, based in Edinburgh. Since its reincarnation as the AJTC, it also has a Welsh Committee. Both these bodies are valued by the devolved Administrations. Nobody has made any decisions, but the Scottish Administration is looking at the possibility of creating a civil justice council, embracing the work of the Scottish Committee of the AJTC. Northern Ireland, which at present has nothing much at all in this field, is also looking at a model of that kind. From what I was told on Thursday, Wales, too, is looking at a council that would take on the work of the Welsh Committee. Would it not be ridiculous if, as a result of this, England—which started all this—became the only part of the United Kingdom without a body to provide what has been provided in England by the council and tribunals of the AJTC for more than 50 years in respect of oversight and a voice for administrative justice? I think it would be almost unbelievable.

Finally, not everybody will know—I hope the Minister does, certainly his departmental colleague, Mr Djanogly, does—that the Public Administration Select Committee in another place is conducting an inquiry into this abolition proposal. Having attended the hearing yesterday, I make the following points. First, the Ministry, according to the Minister in the other place, Mr Djanogly, as I heard him, intends to take in all the AJTC staff alongside building some modest increase in its own previously non-existent capability even to offer policy advice in this area. I must say that casts huge doubt on the savings figures we have been given, and it was clear yesterday that nobody knows what those figures are.

Secondly, it appears to be accepted by everyone that the MoJ cannot replace much of the work that the AJTC does, especially on the user front and in creating effective stakeholder relationships on a wide scale, as represented by the conference that the noble and learned Baroness, Lady Scotland, attended and spoke at with great distinction last week. I do not believe the MoJ can do that. I do not know what the report will say, of course, because it has not yet been written, but from what I heard yesterday, I think it is highly likely that the Public Administration Select Committee will say that the Government need to look again at this. If they do, that means that an important committee in another place will in effect be saying that another place itself needs the opportunity for further reflection on this proposal. I suggest that your Lordships should give it that opportunity and I intend, subject only to the miracle of the Minister saying something that I do not expect him to say, to seek the opinion of the House.

[Lord McNally]

My Lords, I had better intervene now so that I do not keep my noble friend Lord Newton in suspense for too long. Alas, as he knows, because we have discussed this on a number of occasions, I am not able to deliver the kind of assurances that I was able to deliver for the noble Lord, Lord Ramsbotham.

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[Lord McNally]

Indeed. One of the thrusts of our argument is that the sooner the Government get back into the habit of taking responsibility for their own inefficiencies, the better. My department and HMCTS are already working closely with DWP on a range of initiatives to improve initial decision-making. It is about time that government departments took responsibility and I concede a whole range of areas where initial decision-making is poor and causes expense. But that is not a reason to pass the buck to some other body. The job is for government to get on with improving the efficiencies.

The Ministry of Justice is well placed to ensure that administrative justice is a key part of the wider justice reform agenda. We are committed to developing a strategic UK-wide approach. We are also committed to ensuring that the right decisions are made the first time. When disputes arise we will provide proportionate, timely and cost-effective solutions and drive ongoing improvements in the system. The MoJ already has strong links with the devolved Governments and other government departments and is already demonstrating the benefits of this. The department is currently considering priority areas and the resources needed to take them forward. At present there is a core team consisting of staff of a range of grades which has access to the wider justice policy group. The team can freely call on legal and analytical experts.

Other issues were raised. Any idea of a merger with the CJC has been ruled out by the judiciary. I mentioned in my initial intervention that we would establish a group of administrative justice experts and key stakeholders to draw on their views. As for the Public Accounts Committee inquiry, my honourable friend Jonathan Djanogly gave evidence yesterday. We will certainly take note of any recommendations that the committee makes. However, I do not think that it will remove the central piece of our analysis, which is that the AJTC is an advisory body that is no longer required in the field of administrative justice. Robust governance and oversight arrangements are now in place with regard to tribunals and the development of administrative justice policy is properly a function of government. A source of advice that is independent of government is not a prerequisite. Civil servants in the MoJ already offer Ministers balanced, objective, impartial advice, and they can draw on expert advice on administrative justice reform.

The Government will ensure that they exercise effective oversight of the administrative justice system in a way that best serves its users. They will develop, maintain and enhance a UK perspective of the system as well as enhancing their links with stakeholders. The Government will expand the channels by which best practice can be shared and collaborative working developed across the administrative justice system.

I have been asked to think again but I say to the House that we have had ample time to think about this. This House has already made one decision on this body. The amendments of my noble friend Lord Newton may be either helpful or ingenious, whichever way one likes to approach them. However, at this stage of a Bill, when the other place has had ample time and ample consideration of these matters, the Government are entitled to say to this advisory House that we have listened to this advice but that we want to abolish this body.

[Lord Newton of Braintree]

My Lords, I started off slightly plaintive and have ended up more than slightly depressed. I can assure the Minister that I do not wish to become personal non-chums with him. Actually, I rather sympathise with him having to trot out all this stuff for the third or fourth time. He said he thought that the arguments were as sound now as they were at the beginning. From my point of view, they are as weak now as they were at the beginning.

I will make very few points as there is no point in going over all the ground again. I am hugely grateful to those who have spoken in my support. Rather unusually for this kind of debate, they have not only supported me and repeated some of the things that I have said, but all of them have added something significant to the arguments in the debate. I will not pick noble Lords out except for the noble and learned Lord, Lord Woolf, because the Minister said that the judiciary rules out any idea of this being combined in some way—the noble Lord used the word “merging”—with the work of the Civil Justice Council. At least in historical terms, you cannot get much more senior than the noble and learned Lord Woolf. I also have from three separate sources a report that the Master of the Rolls, the noble and learned Lord, Lord Neuberger, who is also pretty senior, said at the AJTC conference last week that he could easily envisage an administrative justice committee of the Civil Justice Council and he seemed to think that it would be a good thing if the set-up were right. I see the noble and learned Lord the former Lord Chief Justice nodding. I do not think that it is right to say that members of the senior judiciary have set their faces against this. It seems to me that that is not the case. I believe that efficiency, economy and effectiveness have been covered with the figures that I gave and that have been given by others.

I must make the point that remarks about Ministers taking responsibility for decisions are completely irrelevant. This is not a decision-making body. This is an advisory body. The Minister said that the department would need to assemble some kind of stakeholder group. I do not recall his exact words. He put the emphasis on practitioners. That means reinventing the AJTC, in one way or another, when it already broadly carries out this function and more, because it links with users, not just stakeholders, judges and advocates. This ties in with the fact, as I learnt on Thursday last, that the tribunal service, which in my time asked the AJTC to run two of its user groups because it was thought that we did it better, has now scrapped all its user groups on the grounds that it cannot afford them. Where does that leave this argument?

There is very little else that I want to say. I do not think that the case stands up. I do not think that the Minister’s arguments stand up. I think that we need a body like this. I wish to seek the opinion of the House.

--- Later in debate ---

Moved by

[Lord Newton of Braintree]

As an amendment to the Motion that this House do agree with the Commons in their Amendment 50, leave out “agree” and insert “disagree”.

--- Later in debate ---

As an amendment to the Motion that this House do agree with the Commons in their Amendment 51, leave out “agree” and insert “disagree”.

[Lord Newton of Braintree]

My Lords, I do not intend to move Amendment 51A. I thought that it was worth a try, given the narrowness of the defeat on the first vote. However, I know when I am beat, and I am not going to grumble any further. I will go quietly—at least for this evening.

Amendment 51A not moved.

--- Later in debate ---

[Baroness Miller of Chilthorne Domer]

My Lords, I am extremely grateful to the noble Baroness, Lady Finlay of Llandaff, for enabling Parliament to get back to the place where it should have been, and was, after the Coroners Act. She has done a tremendous job. It has also brought forth something that she mentioned briefly in her speech—she is now involved in the training of coroners. Already there is tremendous progress. I am also hugely grateful for all the work that my noble friend Lord McNally has put into this matter, because I am sure it is not easy to turn the ship of government around when it is sailing so fast in one direction. I can imagine the sort of effort that he had to put in.

The Royal British Legion and Inquest deserve particular gratitude, as do all the other organisations that signed the letter to the Times. A lot of them are run and supported by bereaved families, and it is not easy to go out and campaign when in the midst of grief. Some of those parents and siblings came to give evidence to parliamentarians about what had happened to them at inquests. I should like to take this opportunity to put on record my thanks to those people for giving us examples of why not only the training but the attitude of coroners to issues such as timeliness are extremely important.

I have one question for the Minister. The charter on the table is not now just for bereaved people but for anyone who comes before the coronial system. Some of us, including me, certainly felt that it should be a charter for bereaved people. It is not yet finalised and I hope that the chief coroner, who will be in a wonderful position to cast his or her eye over the draft charter, will have an opportunity to comment on it and perhaps improve it in the light of the things that he or she hears when talking to coroners.

Finally, I wish to comment from a purely personal point of view on the issue of appeals. The noble Baroness, Lady Finlay of Llandaff, made some very good points about the fact that the issue could lie on the table and be implemented later, if necessary, but my heart lies with the government position, and it is not really a question of cost. In many cases, there will never be real satisfaction for the bereaved because, even though the process may have been thorough, timely and open, that is just the nature of bereavement; there is no satisfaction. If the chief coroner manages with all his other coroners to get the process right, there should be no need for appeals. There will obviously be an interim period that will not be entirely satisfactory, but the package on the table is all that we could have hoped for and is one for which I am particularly grateful.

[Lord Newton of Braintree]

My Lords, I am going quietly on Amendment 54, but not on Amendment 53. I will go more loudly, but briefly, on this. I congratulate the noble Baroness, Lady Finlay, on her success. I thank the Government for giving her that success, even though she is showing some signs of looking the gift horse in the mouth. I have one very small point that is not about appeals, but about suicides. I declare an interest as the chair of a mental health trust.

One of the problems with the coronial system has been the great inconsistency between the verdicts of coroners, some of whom, it is alleged—I am not an expert on this but I have been to a number of meetings with people who have studied it very carefully—prefer to find suicides as accidental deaths to spare the families. I cannot vouch for that, but that is what is reported by reputable researchers. The Department of Health is devising a suicide prevention strategy. I do not see how such a strategy can be devised, let alone measured, unless there is consistency in coronial verdicts around the country. One thing that is required from a chief coroner’s office is the need to ensure consistency. I should be grateful for an assurance that part of the role envisaged will be to seek to bring about greater consistency in the practice of coronial courts around the country. I believe that I see the noble Baroness nodding her head at that proposition.

[Lord Phillips of Sudbury]

My Lords, with reluctance I want to speak against the proposition of the noble Baroness, Lady Finlay of Llandaff. Before I do so, I reiterate all that my noble friend Lady Miller and others have said in this mini-debate about the worth of the efforts of the noble Baroness, Lady Finlay, and indeed about how exemplary the combination of her efforts and those of others in this House as well as in outside bodies has been in bringing about the change in government policy that we have heard about today. That really is democracy in action.

However, there is one practical issue here that may not be sufficiently understood. I speak as one who at the start of his legal career was a coroner’s officer and indeed, on occasion, sat as a deputy coroner. The change we are making in creating the chief coroner post is, I believe, fundamental, and I think that it will have more ramifications than many realise. There is positive merit in waiting to see how it pans out over the next few years. Surely we do not want to rush into the creation of a new appeals mechanism without having the benefit of the experience of that changed situation. For that reason, if no other, I think that the position to which we have come—that is, acceptance of the chief coroner but at this stage not approval of a brand new appeals mechanism, especially in view of the fact that coroners’ juries find as to fact—may be the right one for the time being.

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54: Page 21, line 23, leave out “Civil Justice Council.”

[Lord Newton of Braintree]

My Lords, I am still going quietly, I shall say at the outset, but not, I will say to my noble friend Lady Fookes, on the basis that I am too old to be a rebel.

Amendment 54A not moved.