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Tribunals, Courts and Enforcement Bill [HL]

I am grateful to the noble Lord, Lord Kingsland, for introducing a number of issues. I shall try to deal with them, but I hope that the noble Lord will leap in if I do not get it quite right. I turn to the noble and learned Lord, Lord Lloyd of Berwick. If he does not mind, I shall reiterate a little of what I said in my letter to him to put it on the record as it is important. Noble Lords who know that I am not a lawyer will realise that this matter constitutes an additional double whammy for me. The clause’s construction is necessarily complex, because, as the noble and learned Lord rightly said, there is great sensitivity about judicial review, particularly as regards immigration. I reiterate what my noble and learned friend Lord Falconer of Thoroton said to the noble and learned Lord, Lord Lloyd of Berwick, at Second Reading. My noble and learned friend said that, "““the intention of the Bill is not to revisit the territory to which I think the noble and learned Lord is implicitly referring. The intention is to refer to the upper tier of the tribunal issues that are currently dealt with by the High Court””," and gave some specific examples. He continued: "““The intention is certainly not to do by the back door that which we withdrew by the front door””.—[Official Report, 29/11/06; col. 762.]" I reiterate that for the benefit not only of Members of the Committee who may not have been present at Second Reading but to make it clear to those who read Hansard that we are not attempting to do that. We have sought to establish conditions that must be met before a case can be transferred. These are: limitations on the relief sought, which is the first condition; and that nothing done by the Crown Court is questioned—the second condition. The third is that the case falls into a class specified by the Lord Chief Justice and the Lord Chancellor. That ““duet”” is particularly important in that case. If the case is in that class and the other conditions are met, the case must be transferred. As the noble and learned Lord rightly says, we have prevented the transfer of any asylum, immigration or nationality cases, but we have allowed ourselves flexibility in the legislation. There is no question that that is what we wish to do at present, but I am trying to ensure that we think always of the future. The noble and learned Lord well knows the sensitivities surrounding asylum and immigration cases. He rightly recognises that we have sought to identify that in this clause. He also recognises the importance of not transferring them at this point. But we want to ensure that flexibility exists to review that decision in the future, not least because we want to see how the provision works in different areas. We want to see what kind of cases might be captured. The noble and learned Lord knows that we shall lookat very specialist areas where it is extraordinarily relevant to use the expertise in the upper tribunal. It is, of course, the High Court’s decision to do that. If a measure is about reasonableness it can hang on to it, if it thinks that it is relevant. It is the High Court’s choice. That refers to the issue of the judiciary. As the noble and learned Lord and the noble Baroness know, High Court judges can indeed sit in the upper tribunal. However, there may be cases where they do not. It is within the High Court’s decision-making powers to determine whether to send a matter to the upper tribunal if it thinks that is appropriate in terms of the kind of decision that is involved, the specialism that is required for that decision and the appropriate person being in charge to deal with it. We have not said in the Bill that the person has to be a High Court judge, specifically because we sought recognition of the high level of expertise that might be relevant in very particular cases, and to leave that to the High Court to determine whether it felt it appropriate for there to be a transfer. That is where we are with the Bill; I hear what Members of the Committee say and I am sure that we will continue to discuss it, but that is why the flexibility exists in that part of the Bill. I hope that gives a flavour of what we seek to do.