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Tribunals, Courts and Enforcement Bill [HL]

My Lords, as this debate has evidenced, on the whole the Bill is to be thoroughly welcomed. I do not claim that it is perfect; indeed, I hope that it will be improved in Committee and at subsequent stages of consideration by this House and in another place. However, on the whole, although we have benefited from the criticisms voiced today, the advances that have been marked by this Bill are thoroughly to be applauded. I hope that between this and subsequent stages the noble Baroness will consult the Law Society, the Bar Council and everybody else mentioned with regard to the Bill. Only today I had representations from the British Bankers’ Association and the TUC. It was very late in the day, but I hope that my noble friend will hear their criticisms, either by meeting them or hearing from them in writing. My doubts about the Bill have been articulated already. For example, is it necessary to rely so heavily, as the Government do, on secondary legislation? The Law Society expressed that doubt, and I have not heard the Government’s response. Certainly nothing has been said today. Equally, should we have so many general clauses delegating powers to relevant Ministers? Perhaps my noble friend will deal with that as well. The concept of a single tribunal, with a first-tier tribunal and then an upper tribunal, into which existing tribunal jurisdictions can be transferred, is certainly, in my view, worthwhile. The idea of an appellate tribunal for some tribunals should be supported, because it would hear appeals against decisions by state authorities, whereas tribunals that deal with party and party cases should be dealt with under a separate regime. Exempting asylum and immigration tribunals from the new system is a concept which, with respect, I do not think has been made out today. I am concerned that the Bill fails to determine who should be the judges of the new tribunals. In my view, to leave that solely to the Lord Chancellor is not satisfactory, although I consider that the practice should continue to apply to the asylum and mental health review tribunals, where different considerations apply. I also question the Lord Chancellor’s powers under the Bill to extend by affirmative resolution the eligibility for a judicial appointment. Why can that not be dealt with in the Bill? That would give the public complete confidence in the appointment system—a situation that certainly does not prevail at the moment. There is the vexed question of funding for representations before most tribunals. Is proper consideration to be given to the difficulties posed by the increased complexity of the law? Dealing with representations before tribunals by the funding code is absolutely inadequate, and too uncertain at the moment. Why should legal aid for representation before tribunals not be considered where it is deemed likely to be helpful to the tribunal, for example, by saving time? I raised that point with the noble and learned Lord the Lord Chancellor today, but I was not convinced by his answer. It is vital for the functioning of the tribunals, and to create confidence in what they have to say, that legal aid should be available for representation before them. The Bill fails to provide supervisory measures to deal with abuses of power by enforcement agents—although the noble Lord, Lord Lucas, dealt with enforcement agents, I do not think he addressed that fundamental point. Like the Law Society, I believe the court should be able to accept appropriate financial penalties and, where necessary, prevent such agents from acting for a time-limited period. I am all too aware of the draconian attitude towards the provision of legal aid at the moment. It is not a process of which I approve. Perhaps I am old-fashioned. As a practising solicitor, I did legal aid cases along with private work, and there were not too many difficulties for my colleagues and me in that. The situation now is profoundly unsatisfactory, and I am talking about something wider than tribunals. Legal aid, properly administered and applied by those who practise, would be an advantage to the public. Too many practitioners are prevented from rendering an invaluable service to the public, and too many members of the public are denied that vital service. Meanwhile, citizens advice bureaux, debt relief agencies and law centres should all be given increased financial help in providing their relevant expertise. The ordinary man and woman on the street often need to obtain legal advice on the complex issues that are at stake and that vitally affect their daily lives. To deny that is to be purblind to the problems confronting people and to the solutions that can sometimes be found. I therefore hope that we will improve the Bill, particularly on this point, when we consider it in Committee and later in the House.