Tribunals, Courts and Enforcement Bill [HL]

moved Amendment No. 25: 25: After Clause 23 , insert the following new Clause— ““Mediation (1) A person exercising power to make Tribunal Procedure Rules or give practice directions must, when making provision in relation to mediation, have regard to the following principles— (a) mediation of matters in dispute between parties to proceedings is to take place only by agreement between those parties; (b) where parties to proceedings fail to mediate, or where mediation between parties to proceedings fails to resolve disputed matters, the failure is not to affect the outcome of the proceedings. (2) Practice directions may provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings. (3) The provision that may be made by virtue of subsection (2) includes provision for a member to act as a mediator in relation to disputed matters in a case even though the member has been chosen to decide matters in the case. (4) Once a member has begun to act as a mediator in relation to a disputed matter in a case that is the subject of proceedings, the member may decide matters in the case only with the consent of the parties. (5) Staff of the First-tier Tribunal or the Upper Tribunal may, subject to their terms of appointment, act as mediators in relation to disputed matters in a case that is the subject of proceedings. (6) Before giving a practice direction that makes provision in relation to mediation, the person giving the direction must consult the Advisory, Conciliation and Arbitration Service. (7) The Lord Chancellor may by order prescribe fees payable in respect of mediation conducted by staff of the First-tier Tribunal or the Upper Tribunal. (8) Fees payable under subsection (7) are recoverable summarily as a civil debt. (9) Subsection (8) does not apply to the recovery in Scotland of fees payable under subsection (7). (10) In this section— ““member”” means a judge or other member of the First-tier Tribunal or a judge or other member of the Upper Tribunal; ““practice direction”” means a direction under section 23(1) or (2); ““proceedings”” means proceedings before the First-tier Tribunal or proceedings before the Upper Tribunal.”” The noble Lord said: My Lords, this new clause has something of a history. It first appeared as Clause 23 in the first draft of the Tribunals, Courts and Enforcement Bill, as originally published by the Government. To call it a new clause may be something of a misnomer. The Constitution Select Committee, of which I have the honour to be a member, said in its report on the Bill to your Lordships’ House, dated 11 December 2006, that we saw merit in Clause 23 of the draft Bill, unlike the Bill before your Lordships today which contains only a cursory—the Select Committee said ““a terse””—and passing reference to alternative dispute resolution techniques. This new clause provides a clear, statutory basis for the use of mediation and guarantees for citizens against undue pressure to use ADR rather than seek access to justice more formally at a tribunal hearing. When challenges are made to the merits or lawfulness of a public authority’s decision, there is often a considerable imbalance of power between the parties. The Select Committee therefore came to the view that ADR should take place in a proper legal and constitutional framework. I have some, but not much, sympathy with the view that this clause is not wholly necessary. When the Government introduce legislation to create a major new scheme and establish important public authorities, the provisions of the legislation ought to reflect the Government’s underlying policy goals. If a Bill fails to do this, Parliament is denied the opportunity to scrutinise the policy during its passage through Parliament. The omission from the Bill of a clause dealing fully with mediation would create a significant mismatch between the legislative scheme put before Parliament and the Government’s avowed policy goals in establishing the new tribunal system. The Select Committee did not share the Government’s confidence that tribunal members and their staff, like their counterparts in the courts, do not need express statutory power to mediate disputes; our lack of confidence being based on broad constitutional principle and a view of the law as it is. Superior courts, such as the High Court of England and Wales, have an inherent jurisdiction—powers derived from common law rather than statute. However, the position of tribunals is far from settled. Even if it is accepted that tribunals have such inherent jurisdiction and powers, their scope is far from certain. The broad constitutional question is whether public authorities established by Act of Parliament should derive their principle powers from express legal provisions. Mr Justice Laws, as he then was, in his judgment in 1995 in the case of R v Somerset County Council ex parte Fewings answered that question in the affirmative. He said that, "““the freedoms of the private citizen are not conditional upon some distinct and affirmative justification for which [we] must burrow in the law books. Such a notion would be anathema to our English legal traditions. But for public bodies the rule is opposite, and of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake; at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose ... Under our law, this is true of every public body. The rule is necessary in order to protect people from arbitrary interference by those set in power over them””." I submit that if the new tribunal system is to engage in the widespread use of ADR, it should be done on the basis of express legal authority contained in primary legislation. Access to justice is a principle of the British constitution. The new clause we are debating provides some assurance that appellants who are often vulnerable by reason of poverty, of age or of ill health, will not be or feel pressurised by officials into using ADR when what they seek is a hearing before an independent tribunal judge. The Department for Constitutional Affairs has made it clear in a number of ministerial speeches, and in the White Paper Transforming Public Services: Complaints, Redress and Tribunals, that it wishes to see ADR used on a very large scale in the new tribunal system to be created by this Bill. Anyone reading the Bill would find it hard to see where this major change in policy is reflected in the legislation. The Bill in its present form does not refer to this shift in the relationship between citizens and tribunals save for the requirement placed on the senior president of tribunals, the senior judicial figure responsible for leadership in this field, to have regard to the need to develop innovative methods for resolving disputes that are of a type which may be brought before tribunals. In terms of parliamentary accountability and legal authority, I do not believe that that is nearly adequate. This new clause emphatically does not, as the Government may have feared, seek to instruct tribunals on what they should or should not do; rather, it enacts basic constitutional protections for aggrieved citizens against the risk of oppression or unfair requirements to use ADR. For those noble Lords in this House—and I suspect that this involves nearly all of us—who believe that ADR will be a useful method of resolving disputes between parties who might otherwise have to resort to formal litigation, this new clause represents an important safeguard. Some may argue that the new clause unnecessarily employs both belt and braces. However that may be, I would prefer that the new tribunals should enter the world wearing both belt and braces rather than neither. I beg to move.