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Tribunals, Courts and Enforcement Bill [HL]

My Lords, I am extremely grateful to the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Kingsland, not least for the work that they have done today in helping us to reach what I hope will be a very satisfactory conclusion. I am extremely grateful that the noble and learned Lord, Lloyd of Berwick, and the noble Lord, Lord Kingsland, have tabled revised amendments, which incorporate the flexibility that this whole Bill seeks to achieve for tribunals. Amendments Nos. 1 and 2 retain the noble and learned Lord’s original concept: that judicial review cases transferred to the upper tribunal are to be heard by High Court judges or their equivalent. They also acknowledge that the Lord Chief Justice, the Lord President or the Lord Chief Justice of Northern Ireland, together with the Senior President, can agree on others they consider suitable within the terms just described by the noble Lord, Lord Kingsland. On Report, the noble and learned Lord, Lord Lloyd of Berwick, tabled amendments which would have permitted only High Court judges or their equivalents to hear applications. The noble and learned Lord did not press the amendments and we agreed to explore further, not least with the Lord Chief Justice, what we might then do. The Lord Chief Justice wrote to me on 7 February and set out his thoughts, copying his letter to the noble and learned Lord, Lord Lloyd, the noble Lord, Lord Kingsland, the noble Lord, Lord Thomas of Gresford, and Lord Justice Carnwath. The Lord Chief Justice was sympathetic to the issues raised, but did not support this amendment, because, "““some cases in the Upper Tribunal will need High Court judges to hear them, and I intend to make such judges available to sit on those cases. However, it is imperative that there is flexibility in relation to the circumstances where cases should be transferred to the upper tribunal, and flexibility as to who they will be heard by””." That flexibility would be disturbed if the Bill included a provision limiting such cases to High Court judges, regardless of the circumstances of the case. There are some persuasive examples of cases where judges of the upper tribunal will have the expertise to handle particular cases in the most appropriate way. Technical tax cases, for example, have been mentioned in the course of our discussions. Given that Amendments Nos. 1 and 2 meet the requirements of the Lord Chief Justice, as well as those of the Government, I am pleased to be able to accept them. I am sure that, as the noble and learned Lord has said, as the Bill progresses, we will look again at Amendments Nos. 3 to 5. We will, of course, look at Amendment Nos. 1 and 2 to make sure that we have got this absolutely right. I am delighted to accept Amendments Nos. 1 and 2 and I am grateful to the noble and learned Lord for agreeing not to press Amendments Nos. 3 to 5.