My Lords, on behalf of my noble friend Lady Ashton of Upholland, I beg to move that this Bill be now read a second time.
I am delighted to be moving the Second Reading of the Bill today. I pay tribute to three people who have done the most to bring it before us. My predecessor and noble and learned friend Lord Irvine of Lairg, who sadly is not in his place, started the inquiry into tribunals that led to the Leggatt recommendations that led in part to the Bill. I also pay tribute to the noble Lord, Lord Newton of Braintree—the exit of people who are, I am disappointed to see, not staying for Second Reading obscured him from my view for a moment, but I see him now. He has done so much for tribunals. My noble friend Lady Ashton of Upholland too has pressed within government for tribunals, which has led to the Bill being before us today.
The Bill aims to improve the experience of the public in its dealing with legal and connected problems. In addition, it provides a regime to allow cultural artefacts to come to this country for exhibition without undue risk of seizure. In all too many cases, the public’s experience of legal problems is difficult and complicated. Tribunals are the bodies which resolve most legal disputes in this country. In this Bill we introduce reform to the tribunal system to protect tribunal members’ independence and to make tribunals more accessible and comprehensible to the public. In addition, and separately, we change the eligibility for people who can apply to become non-tribunal judges and we extend the pool for judges. Merit, which is high, will improve. Also, and separately, we make the enforcement of civil debts and judgments more efficient and subject to safeguards and, also separately, introduce additional measures for those who have fallen into debt from which they cannot emerge to put their affairs in order for their benefit and for the benefit of their creditors.
First, tribunals are a large part of the justice system, making a significant contribution. They deal with over 500,000 disputes a year, often involving the most vulnerable in society—those who have been victims of crime, persecution, discrimination or unfair treatment, or who are involved in disputes over benefit entitlement, tax, asylum or employment. Tribunals are one of the most visible aspects of the justice system. Members of the public with a dispute to resolve are more likely to have direct experience of a tribunal than any other part of the justice system. I pay tribute to the many people, legally qualified and otherwise, who play their part in the tribunal system as members or chairs of tribunals. They do an excellent job and should be congratulated.
The public need confidence that they can obtain justice in their dealings with the state and in their workplace. They need access to institutions that enable them to resolve their disputes quickly, fairly and proportionately. They need a place to go where they believe that they can get justice without undue expense. Tribunals have grown in a disparate and unstructured manner over many years. Change is long overdue. That is why my predecessor, my noble and learned friend Lord Irvine of Lairg, asked Sir Andrew Leggatt, with Dame Valerie Strachan, to undertake the Legatt review.
Sir Andrew’s excellent review found many faults with the tribunals system, most notably the lack of independence of tribunals from the government departments that sponsored them. He recommended a system which would be independent, coherent, professional, cost-effective, user-friendly and, as he described it,
“fit for the users for whom they were intended”.
For these reasons, I have already taken steps to bring the administrative support for tribunals together in a single service in my department. I launched the Tribunals Service in April this year with a mission to provide a single coherent administration for central government tribunals, so that the independence of tribunals from government is strengthened and to ensure that they have the best possible support to be able to resolve disputes quickly, fairly and economically. The Bill now reforms the tribunals themselves with a similar aim in mind.
First and foremost, Chapter 1 of Part 1 puts it beyond doubt that the tribunal judiciary is independent from the Executive and that the tribunals themselves are independent of the departments which make the decisions under review. It is right that this has happened and it strengthens our commitment to increasing public confidence in tribunals. It is a vital part of the Bill.
Part 1, Chapter 1, creates a new judicial office, the Senior President of Tribunals. The senior president will be the leader of the tribunals system and will hold a distinct statutory and independent office. Lord Justice Carnwath has filled this post on a non-statutory basis and I pay tribute to the leadership that he has already displayed.
Chapter 2 creates a new statutory framework for tribunals. It creates a two-tier system. The first-tier tribunal will deal mainly with first instance appeals from government departments and local authorities. The upper tribunal will deal with appeals on questions of law from the first-tier tribunal. It will also be able, with the consent of the Lord Chief Justice and the Lord Chancellor, to deal with judicial review cases in the specialist areas covered by tribunals and which are transferred by the High Court or Court of Session.
Chapter 3 of Part 1 will allow me to transfer to this two-tier system the work of the tribunals in Schedule 6. We envisage that occurring 12 to 18 months after Royal Assent. It will bring tribunals dealing with, for instance, social security, tax, mental health and special educational needs into this new structure. The Asylum and Immigration Tribunal, the Employment Tribunals Service and the Employment Appeal Tribunal will retain their existing legal frameworks, acting as separate pillars of the new structure. They will still enjoy the benefits of the overarching Tribunals Service’s single administrative structure. The tribunal reforms will create a single pool of tribunal judges and non-legal members. Judges and members will be able to sit in more than one jurisdiction, provided that they have the appropriate skills or experience.
Chapters 4 and 6 of Part 1 set out ancillary matters in relation to the tribunal system. Chapter 5 replaces the Council on Tribunals with a new Administrative Justice and Tribunals Council. The new body will have a wider remit to look at the administrative justice system as a whole, ensuring that the relationships between the courts, tribunals, ombudsman and alternative dispute resolution routes satisfactorily reflect the needs of users. I pay specific tribute to the noble Lord, Lord Newton of Braintree, for his leadership of the Council on Tribunals and the support and assistance that he and the council as a whole have provided in developing these reforms. I hope I can say these reforms have his support, but he can say so himself later in the debate, if that is his position.
My Lords, on the whole I support what the Bill is intended to do. I am concerned, however, about the fact that legal aid will not be available. My submission is that if the tribunal considers that legal aid, involving legal representation, is helpful as far as time-saving and complex issues are concerned, should that not be dealt with in the Bill?
My Lords, my noble friend has been a staunch supporter of tribunals, and has acted for people on legal aid for many years. In this Bill we deal with the structure of tribunals, in so far as we deal with them at all. Legal aid is a different issue, and I am supportive of the proposition that, for issues such as welfare benefit, legal aid should be more widely available than it is at the moment. However, that requires first of all getting a grip on criminal legal aid to ensure that some money is available.
I see that the noble and learned Lord, Lord Lloyd of Berwick, is poised. I am not sure if he wants me to go on for a bit before he lunges in with legal aid. I shall explain a bit more about the Bill. I am grateful.
My Lords, I have a question to ask before the noble and learned Lord leaves the subject of tribunals. Like him, I entirely support the thinking behind the Bill, particularly this part of it, which is the only part I have so far taken in. I am worried about new Section 31A(7)(b) in Clause 19, which seems to give the Lord Chancellor the power to give a direction to exclude ordinary judicial review as we know it from immigration cases. That has been a great problem in the past, as the noble and learned Lord will remember. If that is the effect of the clause, we will need to look at it very carefully in Committee, but maybe I have misunderstood it.
My Lords, 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; for example, specific tax questions or vires questions about, say, social security, and some immigration questions that, with the agreement of the Chief Justice and the Lord Chancellor, would be better dealt with by tribunals. It is not intended at all to oust judicial review in the sorts of area to which the noble and learned Lord is referring. Perhaps I may give more detail on that. The intention is certainly not to do by the back door that which we withdrew by the front door.
Finally on tribunals, Clause 26, paragraph 42 of Schedule 8 and Clause 133 make it easier for those who are awarded compensation as a result of a tribunal decision or an ACAS-brokered settlement to have that award or settlement enforced. We believe that that will further increase confidence that justice can be delivered effectively.
I move from tribunals to judicial appointments, which are not to tribunals but to the courts. Part 2 amends the minimum eligibility requirements for judicial appointments. Under it, eligibility for becoming a judge will comprise three elements. First, the applicants will have to be suitably qualified as a barrister, solicitor or, for some appointments, legal executive, patent agent or trademark attorney. Secondly, they must have held this qualification for seven or five years, depending on the post. That will be a reduction from the current 10 and seven-year qualification periods. Thus the qualification required for circuit and High Court judges will be reduced from 10 to seven years and the qualification for district judges from seven to five years. Tribunal appointments will also be changed in this way.
Thirdly, during this qualifying period they must have gained post-qualification legal experience. This would include, for example, practice or employment as a lawyer, acting as an arbitrator or mediator, carrying out judicial functions, or teaching or researching law. These changes will increase the pool of those eligible for application and appointment, particularly by enabling fellows of the Institute of Legal Executives, patent agents and trademark attorneys to become eligible to apply for judicial office, and by shortening the qualifying period. But the changes will also ensure that those in the pool have actually been engaged in legal work after qualifying.
Overall, I have no doubt that the numbers in the pool will increase. Of course all appointments will continue to be made on merit and merit alone. This remains the test of suitability.
My Lords, would the Lord Chancellor care to take this opportunity to indicate whether the pool is too small? I have heard that, so far as the appointment of district judges is concerned, there was a pool of 600 from which 60 had to be chosen. It does not suggest a shortage in total numbers.
My Lords, it does not suggest a shortage in numbers; the question is whether one gets the right quality. I think that one does in relation to district judges, but I do not think that a reason for artificially restricting the pool. If there are people with the right qualification, I see no reason why they should not be considered. The wider the pool—or deeper, depending on how you look at it—the higher the merit.
My Lords, the qualifications are defined in statute as seven years’ experience for a circuit judge, X years for a district judge and seven years for a High Court judge. One would also need to have seven years of experience as, for example, a patent agent. However, although seven years acting as, for example, a trademark agent would formally qualify one to be, for example, a Family Division High Court judge, I cannot imagine that the Judicial Appointments Commission would put such a person forward. But such a qualification would obviously fit one to be, for example, a patent judge of some sort. But the qualification is framed for everybody in that way.
Merit remains the test of suitability and the Judicial Appointments Commission, ably led by the noble Baroness, Lady Prashar, will continue to apply it rigorously. But I firmly believe that the larger and deeper the pool of people qualified to apply to be a judge, the higher the quality will be of those who are appointed.
Finally in Part 2, Clauses 50 to 52 and Schedule 11 make improvements in the arrangements for some specific judicial appointments. In particular, they qualify the responsibility for appointing part-time deputy district judges and deputy masters and registrars of the current Supreme Court and change the procedures for making appointments to three tribunals.
I turn to a new topic, enforcement of judgments by taking control of goods. With a few minor exceptions, Chapter 1 of Part 3 provides a comprehensive code for the enforcement of civil debts, judgments and criminal fines by the seizure and sale of goods. Change is long overdue. Some elements of the law relating to enforcement by seizure and sale of goods date back as far as 1267. An enforcement agent’s powers to seize and sell goods when enforcing judgments and debts have hitherto been set out in a variety of places, with different rules applying to different debts, depending, for example, on whether the debt enforced was a tax debt or a county court judgment.
The disparate nature of the rules is confusing. My predecessor and noble and learned friend Lord Irvine of Lairg asked Mr Justice Beatson to conduct a review. This thorough and extremely valuable work forms the basis of much of this part of the Bill. The key recommendation of the review was that the rules relating to the seizure and sale of goods should be set out clearly in one place and that the differences between the various schemes should, where possible, be eliminated. The review also recommended that the rights and responsibilities of all parties should be clearly laid out. The Bill does this through Clauses 54 and 57 and Schedules 12 and 13. It replaces numerous common-law rules and repeals various statutory provisions and replaces them with a comprehensive code for enforcement by taking control of goods. We believe that everyone—creditors, debtors and enforcement agents—will benefit from clear and modernised enforcement law. The changes will also control the actions of enforcement agents and introduce a simplified fee structure applicable to enforcement agents when seizing and selling goods to enforce judgments or debts.
Coupled with this, Clauses 55 and 56 also introduce greater regulation of enforcement agents who are not Crown employees or constables. Currently, only certain enforcement agents are required to hold a certificate issued by a county court judge under the Law of Distress Amendment Act 1888. The Bill extends and modifies certification to cover any enforcement agents wishing to seize and sell goods for the enforcement of judgments and fines who are not exempt. The certification process, which will be set out in regulations made under Clause 56, will also be enhanced. To qualify for such a certificate, agents will have to have completed suitable training and will be subject to a strict criminal record check. The level of fine for acting without a certificate will be increased from £200 to £5,000. Taken together, these measures will help to protect the vulnerable from overzealous or illegal pursuit of debts.
Chapter 2 of Part 3 also abolishes the common-law right of distress for rent and replaces it with a new, more limited power of commercial rent arrears recovery, which will apply only to the seizure and sale of goods in the enforcement of commercial rent arrears. The procedure will not apply to residential premises.
Part 4 aims to ensure that creditors receive the money to which they are properly entitled. Clause 83 will simplify and streamline the arrangements for deducting payment of a judgment debt direct from a debtor’s salary. In future, deductions from salary will be made according to fixed rates, as they are for council tax debtors, rather than on an individual case-by-case basis. A further difficulty which Part 4 seeks to address is the lapse of these orders where debtors change employers. Currently, the court depends on the debtor to provide up-to-date information. This is unsatisfactory, so Clause 84 will allow Her Majesty’s Revenue and Customs to provide the court with the new employer’s details in such cases.
Clauses 85 and 86 in Part 4 also make changes to the law governing charging orders. In particular, they close a loophole in the current law that prevents the sale of a charged property if the debtor is maintaining payments under an instalment order. Part 4 will also help the civil courts track missing judgment debtors. It cannot be right for those who owe money and have a judgment made against them to avoid payment by going to ground. Clauses 87 to 94 therefore include measures to allow the courts to seek information about a debtor from Her Majesty’s Revenue and Customs and a designated Secretary of State. The Secretary of State for Work and Pensions is likely to be designated for those purposes. The courts will also be empowered to request information from other bodies designated in regulations made by me to assist in the enforcement of judgments. We anticipate that banks and credit reference agencies will be designated for those purposes. Safeguards are built into the process in Clause 94 in the form of new offences to ensure that information collected in this way is not abused.
At the same time, Part 5 affords greater protection to those who should be able to pay but are unable to deal with their financial problems or require temporary protection to enable them to get back on their feet. It also deals with those who cannot pay their debts and are unable to access current procedures of debt relief. Part 5 introduces a package of targeted measures that improve and extend the range of solutions available to assist debtors with relatively low income and debts. Those solutions seek to promote financial inclusionand are targeted, in particular, at those who are disproportionately affected by debt and are generally least able to deal with a range of creditor demands.
Part 6 covers an entirely separate category to the rest of the Bill. It will provide immunity from seizure for cultural objects that are lent to the United Kingdom for temporary exhibitions to the public at any museum or gallery that is approved by the Secretary of State. We currently have no such anti-seizure legislation, and foreign lenders are becoming increasingly reluctant to lend works of art to the United Kingdom. The problems that that may cause were illustrated by the seizure, in 2005, of 55 Russian impressionist paintings on loan to an exhibition in Switzerland, under a court order obtained by one of Russia’s creditors. That places us at a serious disadvantage compared with other countries, which will ultimately limit our museums’ ability to stage major exhibitions.
Our museums are already having problems in arranging exhibitions. An important Chinese exhibition planned by the British Museum for 2004 was cancelled after a major loan from Taiwan could not be secured because the lender could not be assured that the material would be protected from seizure while it was in the United Kingdom. The immunity that we propose will be for only a temporary period and will apply only to works of art that are to be put on public display. It will not apply to objects that are coming here for sale, or objects on long-term loan to museums. Works of art that are usually kept in the United Kingdom, or are owned by a UK resident, will not qualify for protection. The immunity will only provide protection from seizure. It will not protect museums in the UK or lenders from being subject to a claim in conversion. Specific restitution of a work of art being claimed is only one of the remedies that the court can award; it can also award damages.
The immunity will only be given to museums and galleries approved by the Secretary of State for Culture, Media and Sport. We will be looking very carefully at the procedures for due diligence followed by each museum wanting immunity before approval is given. We have published a code of practice setting out guidelines on the due diligence that should be undertaken by a museum that is considering the acquisition or loan of cultural material. If museums do not maintain high standards of due diligence, and in particular if they do not follow these guidelines, they risk that approval—and the protection given by these provisions—being withdrawn.
Part 7 contains miscellaneous provisions, including measures to allow the High Court in judicial review proceedings to substitute its decision for that of a court or tribunal where the original decision is quashed on the grounds that there has been an error in law. Part 8 contains general provisions, including those relating to extent and commencement.
This is an excellent Bill. The proposed reforms will have a profound effect on the lives of many people. The Bill will improve access to justice, reform institutions to deliver better services to users and deliver reforms to protect many of the most vulnerable in society. I commend this Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
My Lords, I had been going to start by declaring my rather direct and specific interest as chairman of the Council on Tribunals, but the noble and learned Lord the Lord Chancellor has very kindly already done that for me, and I am grateful to him. I certainly should declare that interest in opening my remarks. Unlike those of the noble and learned Lord the Lord Chancellor, my remarks will focus entirely on the part of the Bill concerning tribunals. On that front, I am rather in the same situation as the noble and learned Lord, Lord Lloyd of Berwick, in that on the rest of the Bill I am less well sighted, and I certainly have no wish to become embroiled today in the controversy which appears to surround the recently added Part 6, on which I make no comment.
Even if I did not have the interest which I have just mentioned, I would welcome the most significant legislation on tribunals since the Tribunals and Inquiries Act 1958, which flowed from the 1957 Franks report and which, among other things, established the Council on Tribunals.
As the noble and learned Lord the Lord Chancellor indicated, in the intervening period of nearly 50 years, tribunals have proliferated—some would say over-proliferated—as an accepted and important means of resolving disputes between the citizen and the state, as well as in resolving disputes between one private party and another, notably, but not only, in the field of employment. Indeed, even as long as a quarter of a century ago—here, again, I echo something that the Lord Chancellor said but in a slightly different way—the Royal Commission on Legal Services, which reported in 1979, pointed out that the number of cases heard by tribunals was six times the number of contested civil cases disposed of at trial before the High Court or the county courts.
Despite the growing importance of all this to the citizen, tribunals have generally had much less attention than courts, whether civil or criminal. They have—to use a phrase that I first learnt in relation to mental health in another capacity many years ago—been a bit of a Cinderella in our system of justice. Therefore, as the Lord Chancellor rightly said, it is much to the credit of his predecessor, the noble and learned Lord, Lord Irvine of Lairg, that he recognised the need for a wide-ranging fresh look at the tribunal scene in the 21st century and commissioned Sir Andrew Leggatt to produce his report of March 2001. I, too, pay tribute to Sir Andrew for producing such a significant report in a remarkably short time—only about a year. Its title, Tribunals for Users: One System, One Service, was a good reflection of its recommendations, and it has very much paved the way for where we are today.
I want to pay tribute to one or two others. The first is the present Lord Chancellor, who carried the work forward so effectively into the 2004 White Paper, Transforming Public Services: Complaints, Redress and Tribunals. The second is the predecessor of the noble Baroness, Lady Ashton, the noble Lord, Lord Filkin, who, I am glad to see, has now joined the proceedings. He played a key role in bringing into that White Paper the wider perspective of the administrative justice landscape as a whole and set tribunals into the broader context.
Now we have this Bill, which—again, I am almost repeating what the Lord Chancellor said—brings another name into the list of credits. I agree with the noble and learned Lord that the noble Baroness, Lady Ashton, who will be winding up the debate, has played a huge part with her energy, enthusiasm and commitment, not to mention what I hope I may call without embarrassing her some pretty skilful manoeuvring with the business managers behind the scenes—I ask the Minister whether I am allowed to say that—to get this Bill before us today.
I am happy that, from what the Lord Chancellor said, it has been possible to make much progress in the direction of the Leggatt recommendations, even in advance of the Bill. Since April this year we have had the Tribunals Service, under the auspices of the Department for Constitutional Affairs, bringing together many of the largest and most significant tribunal systems from around Whitehall. That is already opening the way to better service, better use of resources and better career opportunities for staff. There is a senior president-designate in place—a role that Lord Justice Carnwath has fulfilled to very good effect.
All of that is a clear gain and it moves us in the right direction towards real independence of tribunals. If I may indulge in a small reminiscence, nearly 25 years ago, when I was working for my noble friend Lord Fowler in the modest capacity of a junior Minister, I was responsible for a reform of the social security appeals system, although officials did a lot of the work, of course. One ingredient of that was the creation of a presidential system and transferring the appointment of the senior judiciary from what was then the DHSS to the Lord Chancellor’s Department. I remember thinking and, indeed, saying—although not in public at the time—that I did not see why we could not sensibly transfer the whole lot to the Lord Chancellor’s Department. That was a bridge too far, and I am glad that, nearly 25 years later, what I thought was right then is being done.
For all the advantages of the practical progress made, we need this Bill, for reasons that the Lord Chancellor touched on, not least to allow more flexible use of the tribunal judiciary, to reinforce the role of the Senior President of Tribunals and to get rid of something that I know he is a little sensitive about: the slightly tentative flavour conveyed by the word “designate”. It will be much easier when he is senior president and not senior president designate, so the sooner the Bill is enacted the better.
In the few minutes left to me, I want to acknowledge my special interest in Clauses 42 and 43 and Schedule 7, concerning the evolution of the Council on Tribunals into an Administrative Justice and Tribunals Council, which will play a part on that wider Filkin landscape. Although the form of the Bill suggests revolution, abolition and then a new body, I hope that the Minister will confirm that an evolutionary, rather than a revolutionary, process is intended, as far as is possible. In answer to the Lord Chancellor, the Council on Tribunals and I strongly support evolution into a somewhat different body with a wider role.
It is intended that we retain our oversight of tribunals and inquiries but be given a wider function of keeping under review the administrative justice system as a whole. That fulfils a long-standing aspiration of the council, going back to a special report in 1980—I did not know that until I received some notes for today’s debate—which gives concrete expression to Leggatt’s concept of the council as the hub of the wheel of administrative justice. With the support of the department, we are already preparing for that new role, even in advance of the legislation, as far as we can.
We have greatly developed our partnerships with other interested bodies—academics, the advice sector, the Judicial Studies Board in particular, the Law Commission and the British and Irish Ombudsman Association—and we have started to be more proactive in arranging and attending conferences and seminars. Indeed, both the Ministers on the Front Bench did me the honour of attending the Council on Tribunals conference less than a fortnight ago. It is not often that Ministers hunt in pairs; I am grateful to them. We are already moving in a direction which I hope will, with the support of Ministers and the department, fulfil both the aspirations and provisions of the Bill.
I conclude by saying simply that one thing will not change. The watchwords of Franks, which have been watchwords of the Council on Tribunals, were “openness, fairness, impartiality”. Those will continue to be the watchwords of the Administrative Justice and Tribunals Council, and I share the view of the government Front Bench that the tribunal provisions of the Bill will help to make those concepts even more of a reality in the day-to-day working of the system. The sooner this part of the Bill becomes law the better.
My Lords, as we have already heard, the menu is slightly mixed up today. I hope that your Lordships will forgive me if I open and my noble friend Lord Maclennan replies.
I will not follow the noble Lord, Lord Newton of Braintree, in lengthy credits, but I detect here the hand of the noble and learned Lord, Lord Irvine of Lairg, who started this process and has been responsible for the most important and significant reforms in 10 years of this Government. I pay tribute to his successors for bringing this work forward. Equally, I pay tribute to Sir Andrew Leggatt for his excellent report.
We welcome the Bill as a whole. Parts require clarification and explanation, and we shall no doubt delve into it in considerable detail in Committee. The first principle emerging from this reformed single structure for tribunals is its independence of the government departments concerned in having decisions appealed. In the past, it was always difficult to feel that one was getting a fair hearing when one appealed a government decision, perhaps made at a lowly level, to a tribunal within the same ministry. I welcome the independence of the new tribunals. Equally, there is the independence of those who will administer and man the tribunals both as judges and members. We are glad to see that.
The provision of the first-tier and upper tribunals appears to envisage an appeal from one to the other. I would like clarification. Under the “Review of decisions and appeals” part of Chapter 2, it seems that someone aggrieved by a decision may appeal to the upper tribunal only with leave. It is not an appeal as of right. The decision of the upper tribunal is discretionary, because it may refuse a remedy even if there is an error on a point of law. That smacks of judicial review, and it is consequently rather surprising to see that the process by which appeals are to be carried out by judicial review is parallel to this right of appeal requiring leave and with a discretionary remedy. I wondered which way I would choose if I were advising a person aggrieved by a decision to appeal against the first-tier tribunal. Would it be Clause 11 or Clause 15(1)? What is the difference? What is the practical reason for such duplication of a right of appeal?
The tribunal procedure rules must be simple and straightforward. I am sure that it is envisaged by those who put the Bill forward that, as at present, many individuals will appeal without legal assistance. The procedure rules will therefore need to be very clear and straightforward and the practice directions that are laid down for the procedures of these tribunals must be user-friendly. It must be possible for individuals to exercise their powers simply and easily. However, if one sets up tribunals of this nature, a structure of precedents that will apply across the range of the tribunals is bound to develop, so that what happens in one chamber, as it is proposed, and the decisions that are made there will be relevant to future decisions and the future consideration of whether application should be made.
Once one gets into precedents, reports and so on, lawyers are inevitably going to be involved, and it will be difficult for an individual to present his case properly without proper legal assistance. For that reason, I support the intervention of the noble Lord, Lord Clinton-Davis, about legal aid. I note that the noble and learned Lord the Lord Chancellor said that legal aid would be more widely available. In practice at the moment, young barristers and solicitors act pro bono in many of these tribunals and cut their teeth on them. I remember doing so myself. In 1972, I appeared on a judicial review on the War Pensions Tribunal. I was entirely on my own and had a back sheet from my brother, who is a solicitor, but no instructions except from the client. On the other side was the noble and learned Lord, Lord Woolf, who was the Senior Treasury Counsel at that time, and who was backed, as I recall, by some 12 civil servants, lawyers and so on. I am afraid that he lost, but that was the nature of the case.
It is important that there is equality of arms and that lawyers who appear in these tribunals should not simply do it for nothing. Nobody can make a living by appearing in tribunals as they have been structured to the present time, so I hope that the construction of a proper division of the Supreme Court for these tribunals will produce proper rewards for those who seek to make a career in the very rewarding area of assisting the most vulnerable people in the community. For that reason, I will look with some care at the circumstances in which costs can be awarded against an unsuccessful litigant under Clause 28 and shall also want to know a little more about the fees that it is proposed to charge under Clause 40.
I wish that the part of the Bill on tribunals had come forward separately, not with all the stuff that follows tagging along. However, it contains the outlines of an excellent structure that will serve the people of this country well for a long time. None the less, we must try to clarify some of the issues that arise.
I welcome the extension of the pool for judicial appointments. I am glad that the noble and learned Lord the Lord Chancellor has recognised my friends in ILEX, who do sterling work as legal executives. They deserve to be considered for judicial appointments. I am sure that the same goes for patent agents and trademark attorneys. I am a little concerned about the manner in which the Lord Chancellor may extend, by regulation, the categories of people available for judicial appointments. I suppose that it is impossible to tie his hands at this stage, but I should like to know a little more about which areas he is thinking of.
Part 3 is on enforcement by taking control of goods. I am very sorry that the Government have held back from pursuing the proposals set out in the White Paper Effective Enforcement, which was to require the regulation of bailiffs. I am delighted that the noble Lord, Lord Lucas, is raising this point and has tabled a Bill to that effect. It seems to me that bailiffs should be properly regulated.
Some of your Lordships may recall that my noble friend Lady Walmsley took a case on judicial review to the High Court, which she conducted herself. Incidentally, there were 19 lawyers and civil servants on one side and only her conducting her case—and she won. She was judicially reviewing the decision of PATAS, a parking authority. On the very day of, or the day before, the hearing, bailiffs were standing at her door demanding her furniture. She already had leave to bring judicial review proceedings. She was all ready to go and to pursue her remedies in the High Court, but the court had instructed the bailiffs. The bailiffs were there, and an attempt to reverse that situation showed that there was absolutely no communication between this firm of bailiffs, the court and the ultimate client. It is a very unhappy fact that those who operate as private firms do not seem to have proper communication with those who instruct them. I shall support very much the comments of the noble Lord, Lord Lucas.
Part 4 is about the enforcement of judgments and orders. The first thing one learns as a young solicitor is that it is not enough to get the judgment; you have to get the money, too. Consequently, ways of enforcing judgments that are more streamlined are to be commended. We need to discuss whether it is right to standardise the fixed rates for attachment of earnings orders. At the moment, the attachment of earnings goes before a judge and the individual circumstances of the person who is the debtor are considered on a case-by-case basis. This is to be replaced by standardised rates, which are all very bureaucratic and simple, but may very well bring about injustice in particular areas.
Information requests and orders must also be considered. Is it right that the Inland Revenue should be handing out information concerning its clients? We will need to see what regulations are put forward to prevent disclosure of the information to be obtained from the Inland Revenue and what safeguards are to be put in place as a result.
Part 5 deals with what is a major social problem and may very well be an increasingly major social problem. People are unable to deal with the amount of debt imposed on them in modern society, through advertising and so on. The various ways in which they may deal with that debt are addressed in Part 5. Some of those seem to be good ideas, and we will look at them with some care.
Part 6 is on the protection of cultural objects on loan. What on Earth that is doing in the Bill I cannot imagine. It has nothing to do with anything else that the Bill deals with. I understand the Government to be giving an assurance to those who would seek to loan items temporarily to selected museums in this country that the items loaned will not be seized in pursuance of a judgment debt by a creditor in this country. That is a good aim, but we must have regard to looted objects that find their way to this country. Is it enough to have a code of due diligence imposed on museums, as is currently the case, or do we need to strengthen that code significantly? Part 6 cannot go unchallenged. We will need to ensure that proper safeguards are in place.
I mention only one last matter, which is tucked in at the very end in Clause 132. It states that the court, on judicial review, has power to substitute its own decision for the decision subject to that judicial review. That is contrary to the whole tide of history, but here it is, slipped under the carpet just as we are leaving the house. It is an extraordinary change of constitutional practice and procedure, but so far it seems to have created no stir at all. I am sure that it will before our proceedings come to a close.
I may say that I fully approve of the proposal; I have often found with judicial review that the final decision to remit the case back to those who made the wrong decision in the first place is an extremely irritating result, even if the largest amount of costs are awarded in addition. Although it is extraordinary to find this under the heading “Miscellaneous” in Part 7 of a Bill that also deals with cultural objects and loans, we welcome it.
There is clearly a lot of work to be done to consider all that and I look forward to that and to testing the stamina of the noble Baroness, Lady Ashton, and others in the process.
My Lords, this is a large Bill and I will devote my speech only to Part 3. The noble Lord, Lord Newton, had a rather elegant phrase for avoiding dealing with other parts of the Bill; I will merely say that in my case it is due to pure ignorance. I will be asking for information from the Minister on various points on which my colleagues and I have been unable to collect the correct answers and will later suggest a new clause.
I regret that there is no attempt in the Bill to repeal or amend Schedule 4 to the Domestic Violence, Crime and Victims Act 2004, in particular, paragraph 3 of the new Schedule 4A to the Magistrates’ Courts Act 1980, which abolished the centuries-old common law preventing forced entry by bailiffs. It was abolished on 6 July 2004 by Standing Committee E considering a Department for Constitutional Affairs amendment to the Home Office’s Domestic Violence, Crime and Victims Bill in another place and passed in this House on 2 November 2004 without objection, after off-the-record discussions between the major parties.
Bailiffs’ powers are already excessive and the Bill increases them. In neither House was there any mention of either Semayne’s case in 1604 or Lord Denning's judgment in Southam v Smout, in which he cited William Pitt the Elder, the first Earl of Chatham. He said that it was the classic passage on the principle that an Englishman’s house is his castle. In 1767, William Pitt said:
“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement”.
Neither the enforcement nor the creditors nor the advice sector were consulted, and no notice was given to the public. Even though the citizen has a right to refuse forced entry, 76 per cent of fines were collected. A substantial part of the balance was due to disproportionate fines that could not be paid in full; to fines that should have been reduced or remitted due to a change of circumstances such as illness, unemployment or bankruptcy; and to fines directed to the wrong person or address which cannot be collected. Apparently, enforcement agencies are quite unable to read. I have been advising one enforcement agency that the person whom they are trying to pursue has not, to my knowledge, lived in my house for the past 20 years. It is quite unable to take this in, and continues to serve me with dark threats.
The reason given for allowing forced entry, as reported at col. 239 of the House of Lords Official Report for 2 November, was to enforce criminal penalties. We were not told that many of the criminal penalties involving fines were simply for petty shoplifting, truancy, having no TV licence, fare-dodging or having no tax disc on a car—offences very often fuelled by poverty. A parliamentary Question, answered on 20 July 2004, illustrates that all unemployment benefits are below the Government’s poverty threshold. They remain so. Magistrates’ courts are faced with taking the fine from the jobseeker’s allowance, of £45.50 a week, of unemployed single adults aged between 18 and 24. It is very likely that a social fund loan is being deducted from that allowance, at £10 a week, when the allowance is already at half the level of the Government’s poverty threshold. The fine is then deducted at £5 a week, leaving the person with £30.50. When it is not paid, a warrant is issued to the bailiff. We have created such poverty in this country that all fines for unemployed people, who are struggling to survive below the poverty line on state benefits, are disproportionate.
The Zacchaeus 2000 Trust, which has been advising me on this matter and which I shall refer to using the rather ugly abbreviation Z2K, has met these “criminals”. They have had a contract for nine years with Wycombe magistrates’ court to help people to fill in their means-test statements at the enforcement court on Wednesday mornings. They used to be able to assist vulnerable defaulters and, with the permission of the bench, get their facts before the court so the fines could be as proportionate as possible or reduced if circumstances, such as unemployment, illness, divorce or bankruptcy, had changed their means.
In 2002, the then Lord Chancellor, the noble and learned Lord, Lord Irvine, wrote to Z2K:
“For fines to be effective, they must be proportionate to income. Setting the correct level of fine is the key to successful enforcement. To enable it to be set correctly, it is vital that magistrates have accurate and up-to-date information about an offender’s means at the time of sentencing and, indeed, throughout the enforcement process”. However, with the arrival of the fines officers, who took over enforcement under the Courts Act 2003, Z2K intervention has been all but shut out. The procedures have become merciless. If the fine is not paid, a warrant is given to the bailiffs to smash and grab. Z2K has been told by officials at the Department for Constitutional Affairs that forced entry will be used only as a last resort, but the DCA will not say who decides, and in what circumstances, that that time has been reached. I ask the Minister to write to me with that information.
Z2K asked the Department for Constitutional Affairs for a copy of the civilian enforcement officers’ guidance. On 31 October, it received a letter from Her Majesty’s Court Service, which states that, to release a copy,
“would prejudice the administration of justice by sharing guidance which provides advice to CEOs on what to do in specific situations. The disclosure of methods used by enforcement agents could assist defaulters to evade enforcement officers in the execution of their duties. This information is therefore exempt from disclosure under Section 31(1)(C) of the Freedom of Information Act 1999”.
These days, “civil enforcement officers” is the official upmarket vernacular for bailiffs, which means that they have secret instructions from the Government about how to break into your home and seize your goods.
Z2K has sought an internal review by the Access Rights Unit at the DCA on the grounds that justice on the doorstep and in the home by bailiffs, like everywhere else, should be seen to be done; and fine defaulters or their advisers cannot call the bailiffs to account for failing to carry out the correct procedures if they do not know what procedures the Government require the bailiffs to implement. The effect is to make the bailiffs untouchable. Z2K has not yet had a reply. Perhaps the Minister would like to expedite that.
The Government get a free service from bailiffs; the fine defaulter pays their fees: no wonder forced entry falls very short of a last resort. In one case, a bailiff seized a TV, DVD player and 60 CDs from a lone mother, sold them for £72 and gave £30 to the auctioneer, which did not pay off the disproportionate fine of £1,072. In another case, an unemployed young man on state benefits had a fixed penalty for fare dodging. He is homeless and used his girlfriend’s address; the bailiff called and threatened to seize her property to cover his fine and the bailiffs’ costs. Another bailiff from the same company threatened to seize a pensioner’s property because her unemployed grandson used her address.
I seek the introduction into law of page 9 of the National Standards for Enforcement Agents, which would protect vulnerable households from excessive and disproportionate enforcement against inadequate, poverty-level incomes. It currently has no legal force and is largely ignored. It suggests:
“Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with”.
The Bill also needs to clarify who, in the case of a fine, is the creditor and who should agree the procedures. Is it the magistrates, HM Court Service or the DCA? I also ask for the publication during the passage of the Bill of a list of goods exempt from seizure by bailiffs; for example, cookers and fridges, which are essential for daily living, and tools of trade such as personal computers used by self-employed people working from home. In addition, bailiffs are permitted to seize cash, but they should be required to leave enough to live on in the house.
The law should be amended to bring magistrates back into the supervision of the bailiffs who enforce the orders they make. Parliament has carelessly removed magistrates from that task in the Courts Act 2003 and the Domestic Violence, Crime and Victims Act 2004. By also allowing forced entry by bailiffs, it has diminished the administration of justice by the British courts. An Englishman’s home is no longer his castle.
My Lords, I rise with some trepidation because on looking at the list of speakers I realise that a number of them are members of the legal profession, bringing their specialist knowledge of this particular area of work to the debate. I do not have their expertise and my intervention will be short. I shall speak only to Part 1 of the Bill, specifically the proposals relating to employment tribunals, about which I seek some clarification.
The aim of Part 1 is to create a new framework for tribunals with new jurisdictions and new rights of appeal. I am not an expert on employment tribunals, but here I declare an interest in that my husband has served on such tribunals for the past 11 years. I know, therefore, about the expertise of current employment tribunal members and the difficult and sometimes complex cases that can come before them. Paragraph 23 of the Explanatory Notes makes it clear that, although employment tribunals will share a common administration with other forms of tribunal and come under the leadership of the proposed Senior President of Tribunals, the jurisdiction of employment tribunals will not be transferred to the new two-tier structure. This is because of the nature of the cases that come before employment tribunals, involving one party against another rather than hearing appeals from citizens against the state. That seems clear and unambiguous: the current jurisdiction of employment tribunals will remain as it is.
However, paragraph 133 of the Explanatory Notes refers to the two new tribunals, the first-tier tribunals and the upper tribunals, and the transferral of functions to them from the tribunals listed in the relevant part of Schedule 6, such as, for example, the Pensions Appeal Tribunal or the Mental Health Review Tribunal. But here is the confusing factor for me. Reference is made in this paragraph to the transferral of jurisdiction from the tribunals listed in Schedule 6 not only to the first-tier and upper tribunals, but also to employment tribunals. This reference has caused some concern among those currently serving on employment tribunals, because it appears to be saying that, in future, members of employment tribunals may have to consider cases from other kinds of tribunal. This appears somewhat contradictory. While on the one hand the Government acknowledge the uniqueness of employment tribunals, on the other hand they appear to be proposing that, in future, employment tribunals may consider other kinds of cases; they may consider cases that currently do not come before them in addition to the cases that do.
When industrial tribunals, now known as employment tribunals, were originally established, they were widely recognised as the working people’s courts. Their aim was to bring simplicity to industrial disputes between an employee and his or her employer. Of course, subsequent employment legislation has evolved—in discrimination legislation, for example—so employment tribunals have become more complex and often more costly. Today, employment tribunals can award hundreds of thousands of pounds to an individual. If I have read the Bill correctly, this extra burden on what I understand to be already busy—in some parts of the country, overburdened—employment tribunals could have a direct impact on their ability to work effectively. Even more important, if employment tribunals are now to be asked to consider other types of cases, this may cause confusion about their exact role, and their uniqueness could be undermined.
Finally, I shall make a brief comment about the overall proposals in this part of the Bill. Making the tribunals system more efficient and ensuring that it is easier to approach are obviously worthy aims, which I support. However, I am on record as being something of a sceptic when it comes to amalgamating administrations. My first instinct is to ask why, whether it is logical and what would be the advantage. My second instinct is to ask whether such proposals could be considered as cost-cutting exercises rather than as measures that will streamline and increase efficiency. On the surface, the proposals in this Bill appear to be the latter. I am sure that my noble friend will be able to assure me that this is the case.
My Lords, I had intended to concentrate on Part 3 of the Bill but, after listening to the speech of the noble Lord, Lord Thomas of Gresford—you tend to listen to a speech when someone is being nice about you—I am tempted to take an interest in Part 4, on the information provisions, when it passes by us in Committee.
I was going to ask the Minister today whether there is any hope of including PATAS in Schedule 6—I had a quick look through to see whether it was included—because it always seems iniquitous that that tribunal should be owned and controlled by the boroughs whose parking tickets it is enforcing. It is the London parking tribunal in front of which you appear if you want to appeal a parking ticket or a congestion charge. It would be nice to see it in Schedule 6, as that would be a welcome addition to its independence. I know that it is possible to win cases against it, but I would prefer to see cases going right at PATAS rather than having to go for judicial review.
As regards Part 3, perhaps I may start with my problems with what is in the Bill and then come on to my problems with what is not in the Bill. The noble and learned Lord the Lord Chancellor said that it is a single piece of bailiff law. I do not think that it is. I am not entirely clear that it extinguishes the common law in the way that it might or that it covers all aspects of enforcement legislation. Doubtless we shall have an opportunity to explore this in Committee.
I share the concerns of the noble Lord, Lord Beaumont of Whitley, about the provisions on forced entry. I like Schedule 12 paragraph 15, which seems to provide a good basis, but, as the noble Lord, Lord Beaumont, said, we have not dealt with the alternative powers in the 2004 Act. Schedule 12 paragraph 19 would seem to allow forced entry to premises if some part of that premises is being used for business. So, if I have my office in a back room of my house, the bailiffs can come in because the house is treated as a commercial premises. However, in Clause 67 et al, the exact opposite principle seems to apply to rent, because where there is only domestic use of premises, landlords cannot get their rent by using the bailiffs. There is some confusion here and I very much tend towards what the noble Lord, Lord Beaumont, said is a matter of principle: we should have a system that gives a debtor a measure of reasonable security in their own home.
I am also concerned that the method of taking control set out in Schedule 12 paragraph 13 is too prescriptive; it could have the effect in practice that the bailiffs will have to remove goods on their first visit, particularly if the debtor is not there. I urge the Government to look at the Scottish system whereby the bailiff can take control without consent. He just says, “I am taking control of these goods”, but does not have to possess them; he does it by fiat.
I would like to see proper protections for essential household items and tools of trade on the face of the Bill. To leave this very important protection in relation to the seizure of goods entirely to secondary legislation is just too bare.
My main concerns lie in the absence of proper bailiff regulations, which, as the noble Lord, Lord Thomas, mentioned, were supposed to be in the Bill. To my mind and to the minds of many other people, such regulations are needed—and here they are in the Bailiffs (Licensing) Bill. That Bill is not before us today—it is sitting in the Printed Paper Office—but doubtless we will discuss it extensively at the Committee stage.
The concept of proper regulations governing bailiffs is widely supported. The Association of Civil Enforcement Agencies has written to me asking for it, as has The National Association of Citizens Advice Bureaux. The Local Authority Civil Enforcement Forum, adviceUK and the Institute of Money Advisers all support it. I have had extensive support in preparing the Bill from the Enforcement Law Reform Group and not least from the London Motorists Action Group, of which I am chairman. So support for the Bailiffs (Licensing) Bill extends from the industry and the main bailiffs’ organisation to “Disgusted of Camden” who is their victim. Faced with such a wide call for proper regulation, I hope that the Government will feel able to respond.
As the noble and learned Lord said, the Bill addresses the matter, but it contains so many exemptions and its provisions are so thin that it does not amount to what any of us are asking for. It does not amount to satisfactory law.
As to the reasons why we need bailiff regulation, many of your Lordships may have received the briefing from the National Association of Citizens Advice Bureaux, which contains a number of case histories, and may have seen the BBC’s “Whistleblower” programme, with which LMAG helped considerably. LMAG has its own experience of the practices of bailiffs. There are phantom and fabricated visits, and work is done that is not required to be done. Letters are pushed through the door by a courier who runs away, and when the letter is opened, it says, “I … certified bailiff”, which the courier clearly was not. That is all done by large and “reputable” firms. We have not regulated the industry and it has taken advantage. I do not particularly blame the industry for that; if you leave a pot of money on the table, people will take it.
The noble Baroness may have read the Deloitte report on Drakes bailiffs. I do not know whether she is prepared to make it or any of its content public, but I would be fascinated to know what it says. The piece of evidence that convinces me most is the accounts of Equita; after presumably putting to expense everything it can, it still makes 40 per cent net profit. That is out of charging fees mostly to vulnerable people. There is supposed to be a set scale—clearly it is not being complied with, because no such scale set by any rational Government provides a 40 per cent net profit for its operators.
The national standards for enforcement agents are in place, but they are voluntary. As the noble Lord, Lord Beaumont, has said, they are widely disregarded, even by magistrates’ courts, which will not enforce their provisions when it comes to vulnerable debtors. Transport for London has now invented a whole set of additional fees that bailiffs can charge, increasing their profits even further.
The situation needs proper regulation and we must get it right. For those who rely on the revenue that bailiffs provide or give security to, it is important that that revenue is protected. It is only fair to all of us who pay up promptly that those who do not should be pursued, but we must also be fair to those who are being pursued. When a bailiff goes to someone’s door, that person must be able to know who it is, as they would a policeman or traffic warden. These people are essentially unidentified and many claim to be what they are not.
We must not think that the bailiffs are pursuing the bad boys. Bailiffs do not bother with the bad boys. They do not bother with people who have a string of unpaid parking fines—100, 200 or even a dozen—because they know they will not pay. They are cute; they know the rules and know that they will get away with it. Bailiffs go after the easy money. The only money they receive is what they get from the debtor. They do not get paid for doing the job by the person whose money they are collecting, so they go after the easy money.
The system in this country is almost unique in that the bailiffs are agents of the creditor rather than of the state. The Scots have it the other way round, which perhaps we should consider when we are looking at the more fundamental aspects of bailiff law. We certainly need proper protections for the vulnerable. In so many cases, people are pushed further into misery when, had we had a chance to take a reasonable look at their case, we would not have wished that to happen.
The Bailiffs (Licensing) Bill is based on the Gangmasters (Licensing) Bill, so it follows an established government pattern. It is workable and fair but, of course, it is illustrative; there are many other ways in which to do this. I hope to persuade the Government that this is something that needs to be done and that we and all the other people involved, including Z2K—which has been very constructive in criticising this Bill, although it would wish to do things differently to some extent—can all join in producing a system that commands this House’s respect and will perhaps form part of this Bill but, if not, will follow soon thereafter.
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, worth while. 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.
My Lords, I shall confine what I have to say to Part 6, which would provide immunity from seizure of works of art loaned from other countries for temporary exhibition in this country. Democratic politics and parliamentary government are about the reconciliation of conflicting interests and Part 6 is a case in point. It seems to me a sensible attempt to find a solution to a practical problem which is pressing on us. I believe that it represents an honourable attempt to resolve the tension between two public goods: that there should be the continuation of great exhibitions of works of art, and that there should be access to justice.
As my noble and learned friend the Lord Chancellor said in his opening remarks, since the Noga case last year, the Russians in particular have been insisting that they will not continue to lend works of art for exhibition in this country unless we introduce anti-seizure legislation, as a number of other countries—the USA, France, Germany, Belgium, Austria and Australia—have done. It is not only the Russians but the Greeks, the Taiwanese and the Romanians who are becoming increasingly resistant to making loans if there is not anti-seizure legislation. The difficulties in organising exhibitions are multiplying. The number of refusals of loans has been increasing. The National Museum Directors’ Conference and the Royal Academy have warned that plans for some 34 exhibitions are likely to be affected—damaged—unless we have anti-seizure legislation.
What is the public interest in the continuation of exhibitions of works of art in this country? Of course, we wish London to remain a great cultural centre. In recent years we have had the wonderful exhibitions of Titian and Michelangelo. We currently have the exhibitions of Holbein and Velazquez, and it is not only in London that we have these great opportunities. Such exhibitions allow people to see great works of art together in ways that are newly illuminating and stimulate new interpretation. They engage the public with art. They promote the education of the public. There are important economic benefits. Consultants calculated that the National Gallery’s Raphael exhibition had a beneficial economic impact of some £30 million even before the benefit to the gallery of admissions charges was taken into account.
Very importantly, such exhibitions promote better international understanding. Let us take as an example the wonderful exhibition of ancient Persian art that was held at the British Museum, which was jointly opened by the Vice-President of Iran and our own Foreign Secretary. I believe that there is important scope for this kind of cultural diplomacy, of which the British Museum and its director, Neil MacGregor, are such good exponents. The lending of works of art between countries promotes bonds between them, a point strongly made in the de Leeuw report, and it is the policy of the European Union to promote more lending between member states to bridge cultures and develop our sense of common heritage.
So the cultural, economic and political case for anti-seizure legislation is strong. But we must also consider whether there is an important case, on the other hand, in terms of justice under the law. Situations in which works of art might be seized are when a claimant to title of a particular work is enabled to seize it, when a work of art is seized in settlement of a debt or when the police are pursuing investigations and assembling evidence. These are very serious concerns. We should in particular be very heedful of the anguish of a survivor of a Nazi concentration camp or the descendant of someone who was killed in the Holocaust era for no other reason than that he was Jewish. They may seek restitution of a work of art which they claim belongs to their family, not only because that is an act of justice but because, in a much broader sense, it is a way to bring settlement or put wrong to right.
We have to consider whether our cultural pleasure and convenience outweigh the requirement of justice. The DCMS consultation paper issued earlier this year addressed that very issue strenuously and decently. Paragraph 1.16 states:
“The effect of anti-seizure legislation would be to suspend a claimant’s ability to be granted a particular form of relief for a strictly limited period of time, rather than removing it. However, in practice, the legislation is likely to prevent claims being made to works of art which are temporarily in this jurisdiction while they are in the jurisdiction, when, from the point of view of a claimant, it would be most useful to bring such a claim”.
The consultation paper went on to discuss whether anti-seizure legislation would contravene Article 6 of the ECHR—the article that provides a right to a fair and public hearing in court in a reasonable time. The department made the case that it would not, saying that:
“The right of access to court is not an absolute right, but subject to limitations. It must be regulated by the State, and the State has a margin of appreciation in making such regulations, provided that any limitations imposed serve a legitimate aim, are proportionate to that aim and do not restrict or reduce the access left to the individual in such a way, or to such an extent that the very essence of the right is impaired”.
Paragraph 1.19 states:
“Where a claim stems from action taken in the Nazi era, there may already be serious doubt as to whether claimants would be able to bring a substantive claim in this jurisdiction (the expiry of limitation periods for claims which stems from action taken in the Nazi era, may have extinguished the original owner’s title to the object being claimed). Claims to objects which have been nationalised or expropriated by a State act may also fail on the grounds of sovereign immunity. Where a claimant is seeking to enforce a judgment debt, the limitation proposed merely prevents execution of that debt against one form of asset—for a limited period”.
The Government concluded that,
“we do not consider that our proposals would contravene the rights of potential claimants under Article 6 of the Convention ... We consider that preventing a potential claimant from seeking a particular form of relief in this jurisdiction for a limited period of time does strike a fair balance between the rights of the claimant and the public interest”.
It is a key question for Parliament whether that fair balance has been struck in the Government’s proposals. Is it contemplated in the ECHR or the associated jurisprudence that there should be a temporary suspension of this human right? If, realistically, there is no possible remedy in the lender country and we block off access to court for the survivor of the Holocaust or one of his descendants, is the very essence of that human right impaired? These seem to me very serious and important questions.
We should note that while the Bill precludes seizure of the work of art, it does not preclude suit. It would still be possible to bring an action for damages against, for example, the museum, or for restitution for unjust enrichment, conversion or declaration of title. The only remedy precluded under the Government’s proposals is physical seizure. I understand that criminal liability is also unaffected. For example, Section 1 of the Dealing in Cultural Objects (Offences) Act 2003, which makes it an offence dishonestly to deal in a cultural object that is tainted, knowing or believing that it is tainted, would still apply, as would the provisions for possession of criminal property in the Proceeds of Crime Act and the Theft Act. It is quite wrong to suggest, as some noble correspondents to the Times did in a letter published yesterday, that this Bill would create complete immunity.
If there is to be anti-seizure legislation, the question arises whether it should be automatic or whether it should be a discretionary system, whereby the borrowing institution is required to itemise those works that it is proposed should be borrowed and give notice, allowing objectors time to make representations. The museums and the Government say that it should be automatic because of the complexity and costs of a discretionary system. I suspect that the complexity and the cost may have been overstated; due diligence is going to have to be performed anyway, and the evidence from Switzerland is that the cost need not be exorbitant. That consideration should not determine which course we choose. The question is whether an automatic system of immunity, as has been suggested, would let museums off the hook or positively encourage them to relax their vigilance and due diligence. I believe that it would not; as I have just said, museums would continue to have liability under both civil and criminal law. Nor do I think that museums want to see standards relaxed. The culture in this regard has been transformed in recent decades, as is evidenced from the report of the spoliation advisory panel on the Benevento missal.
In 1994, the Museums Association produced its code of practice, which was followed by the National Museum Directors’ Conference statement of principles. The NMDC set up a committee, chaired by Sir Nicholas Serota, which has continued to develop good practice in this field. The Department for Culture, Media and Sport has issued guidelines on due diligence which are very stringent. It is a condition of the government indemnity scheme, which provides insurance for works of art loaned to exhibitions in this country, that due diligence should have been carried out. As my noble and learned friend the Lord Chancellor stressed in his opening remarks, the Bill allows the Secretary of State to withhold approval from an institution—that is in Clause 128(3)—if she considers that an institution is not performing its duties of due diligence as it should. Withholding of approval brings with it deprivation of immunity, which is an important sanction. Perhaps, when she winds up, my noble friend will tell us whether the Government mean business and would be ready to use that sanction.
What advantage then would there be in a discretionary system of immunity? To the extent that it highlighted dubious title and stopped lenders parading their stolen art and their bogus national patrimony in this country, one might certainly say that was a benefit. I do not see how a discretionary system would help claimants. If it were more likely that loans would not be made, I do not see how they would be made better off. Indeed, it seems to me that a rational claimant would lie low and would not raise an objection, and would wait and see whether they could take their chance when the object did come into this country, perhaps under European Union or international law.
How might anti-seizure legislation as proposed by the Government work? I had the privilege of spending two days recently at a seminar organised by the Institute of Art and Law. I listened to the best lawyers and the best academics in this field, and I was struck by the fact that they could not agree on the interplay of jurisdictions or on what an appropriate model for anti-seizure legislation might be. They were feeling their way towards understanding the scope for and the effects of clashes between legal traditions, between different national laws, between national law and European Union law and between private international law and public international law. I was persuaded that what we are embarked on in Part 6 is not a simple undertaking. It may well be that the legal difficulties are underestimated by museum directors and Governments, and even by lawyers.
Certainly, no other country is happy with the legislation that it presently has on the statute book. The French police, notwithstanding the 1994 legislation in France, continue to conduct their investigations in the usual way and seized a painting by Franz Hals. In Chicago, notwithstanding that there has been legislation on the federal statute book since 1965, in June this year an American judge ordered the confiscation of a valuable collection of Iranian artefacts that had been lent decades before by Iran to the Oriental Institute of Chicago University. He ordered that they should be put up for auction to compensate Israeli families who lost members in a bomb explosion at Ben Yehuda mall in September 1997—this, on the grounds that the Islamic regime in Tehran sponsored terrorism.
I hope that, in our scrutiny of the Bill, noble and learned Lords in particular will advise us on how this legislation might play against other laws and obligations. It seems clear that the powers of seizure under the anti-money-laundering provisions of the Proceeds of Crime Act 2002 would be suspended in the case of a work of art that had been lent from abroad for an exhibition. None the less, would a UK court still be required by the 1990 international Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime or the European Union Council framework decision of 26 June 2001 on money-laundering to seize the object?
What would be the relation of our anti-seizure legislation to Council directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a member state? The directive provides for a procedure under which a cultural object that has been unlawfully removed from a member state and is found in the territory of another member state can be returned to the state from which it was removed. Objects can be returned administratively by co-operation or by the requesting state commencing proceedings before the courts of the requested state. In addition, Council regulation (EC) 1346/2000 on insolvency proceedings provides for recognition and enforcement of insolvency judgments in other member states.
Do the Government contemplate that someone who believed that his rights under Article 6 of the ECHR had been extinguished could take his case to Strasbourg? What will be the continuing effect of the Council of Europe legal convention that provides that police in one country can ask the police in another to seize and return stolen property? That recently worked in a case between France and Italy. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which we signed recently—I am very glad that we did—provides for the return of cultural objects.
The “one exception”, as described in the letter that my noble friend Lady Ashton wrote to us, may prove to be many-headed and important. It will be unpredictable in its consequence. It remains to be seen how lenders will view it and whether they will consider that the legislation now before us provides enough comfort.
If we accept that the Government have struck a fair balance and that this is a sensible and pragmatic measure, as on balance I do, nevertheless should not the Government also address the heart and origin of the problem, which I believe lies in the inadequacy of the rule of law and of access to justice in some countries? Where satisfactory dispute resolution procedures obtain, the issue of seizure does not arise. I am attracted to the thinking in a draft law in Israel which says to museums, “Okay, you can have your immunity where the lender country has proper dispute resolution procedures”. So, if the Russians will not allow access to justice, Israeli museums will go without their loans and they may take the view that, in the moral balance, there are worse disasters. Our due diligence should achieve the same effect as regards claims to title.
I believe that we should enact these clauses, but that we should also work to build an international system to adjudicate claims and a strong modern international treaty governing the movement of cultural objects across national frontiers.
My Lords, I listened with interest to my noble friend Lord Howarth of Newport. He referred to the Times correspondence page, which today carries a very interesting letter from him occupying a column. I am only sad that he does not understand that the key to this legislation should be justice, decency and morality. It should not be about removing now, from people who have already had mercy, justice and decency removed from their lives, the potential right to their property.
At present, if a Holocaust survivor sees a painting or object that belonged to his or her family, they can go and claim. If the Bill becomes law in its present form, if they see such property, they will be unable to prevent the people who have brought that property and exhibited it in this country at least keeping it, hiding it or taking it home. That is totally wrong and immoral and is not a fair balance.
Yes, my noble friend is right to refer to the misery suffered by people in the Holocaust. Yes, I declare an interest. My entire family who lived on the Continent, with the exception of those in Denmark, was wiped out by the Nazis. Yes, I declare an interest. I served in the British Army of the Rhine as a war crimes investigator. We know what the Nazis did. We know how property was stolen. We know who bought it. Yes, I have an interest. I recently came back with the noble Lord, Lord Hunt of Wirral, from another attempt to get the Vatican to hand over property. It has not handed over any of the items that were put into its care by people who knew they were being taken away by the Nazis and would probably be murdered. Not one item has been returned by the Vatican.
Yes, I am referring also to visits to Austria, which has passed a law stating that property taken from people who were murdered in the Holocaust should be handed back to their families. But that has not prevented a range of excellent paintings, which belonged to people who now live in this country and who provided us with the details, being put by the Austrians into a gallery that is open to the public, but is privately owned so that the law does not affect it. But 50 per cent of the directors of that gallery are appointed by the Viennese, so the family cannot get the paintings back. This is not justice and, with respect, neither is it justice to say, “The rights you have now are going to be diminished”. It is not justice to say, “This Bill will retain certain rights and you can take action in the international court”. That is not the way to treat people.
The provisions are hidden away in Part 6 of a Bill that mainly deals with other matters, as this debate has done today. That is not the way to obtain decency, fairness and justice. Part 6 provides British institutions with immunity from potential prosecution or seizures of objects brought to the United Kingdom for public display and temporary exhibition for up to 12 months, either at one location or many. The potential is that spoliated, stolen artwork cannot be restored to the true owners, if they turn up, unless an order has been made by a court. Meanwhile, people can take those objects—it is theirs. Why? The answer we are given is, “If we can’t do this, we will not get exhibitions in this country. People will not want to bring their art here”. Well, if it is stolen art, I do not want them to bring it here, and I am sure that other Members of this House do not want that.
The Bill does not define which objects are protected. They should be cultural objects. The period of protection is not carefully thought through. There is nothing to ensure that items on loan are not brought into the United Kingdom on a semi-permanent basis. Items can be sold while they are on display in the United Kingdom. The safeguards for the true owners of such property, who have been robbed of them, are totally insufficient. It is not justice, it is not fair and it is certainly not something that I would have expected to happen in this country.
In many ways, the Bill is incompatible with the United Kingdom’s support for the principles laid down in the 1998 Washington Conference on Holocaust-Era Assets, which I attended. It overrides our existing law, policy and practice on illicitly traded works of art, and art stolen by the Nazis. Britain stood up against the Nazis when no one else did. My father was a Member of the other place for years, a leader of the Jewish community who stayed through the Blitz with my mother while I was shipped off to Canada for four years because they believed the Nazis were going to invade—thank God they did not. Do not give them something back like this.
How could it be right, if an artefact is proved to be stolen property, that it is not attacked when it comes here for an exhibition? “Well, maybe they would not want to put artwork into exhibitions here if they knew they were in that danger”. Well, too bad. We do not want to be a place which exhibits stolen art. This part of the Bill should be removed, not least because this county stood alone against the Nazis. To allow it back in is a disgrace.
My Lords, I merely wish to say that, while I deeply appreciate the strength of the feelings of the noble Lord, Lord Janner, I do not agree with his conclusions on this Bill. In a previous job at the Foreign Office I was able to assist the noble Lord in finding Jewish graves in the Baltic states, and I pay tribute to his work.
In this case, it is important to look at the scope of Clause 126. The object in question must normally be kept outside the United Kingdom, not owned by a person resident in the United Kingdom, and must be brought in for public display. The immunity extended to such an object would automatically expire after 12 months or at the end of the exhibition, whichever is earlier. The objects in question are not limited to those where there is a suggestion that their ownership might have changed under highly undesirable circumstances between 1933 and 1945. The only recent exhibition in London I know of that had to be cancelled because of objects that would have been on display was a British Museum exhibition of Chinese art, where the Taiwanese lenders could not lend because there was no immunity in force here.
The scope is not limited to Europe. The biggest problem concerns Russia, but our galleries will be unable to borrow for temporary exhibitions from the United States, Canada, France, Germany, Austria and all the countries where an immunity of this kind exists.
It may be a matter of judgment but, in my view, a number of examples of spoliation of art stolen in the Nazi era have come to light precisely because the picture was on temporary exhibition. I am not sure that the noble Lord, Lord Janner, is right to feel that temporary exhibitions are wrong in this connection per se if some of the art turns out to be of suspect provenance. It is important to add that the immunity expires automatically, and in no way affects title. The claim is not extinguished by the temporary immunity; it is perhaps even stronger because the artefact has come to public notice. I hope that the House will support the Bill, and Part 6 in particular.
My Lords, the speeches that we have just heard from the noble Lords, Lord Kerr, Lord Janner and Lord Howarth, have focused exclusively on the provisions of Part 6. Perhaps it would be appropriate to animadvert on what has been said before addressing the major thrust of the Bill.
There can be no doubt that the museums and galleries of this country have a justified concern that, as the law stands, temporary exhibitions with contributions from other countries may become increasingly difficult to mount. While it is possible to have the deepest understanding of the representations that museums and galleries have made to the Government about the need to take action, it is also possible legitimately to question whether the action proposed is appropriate or, as the noble Lord, Lord Howarth, suggested, whether it strikes a proper balance between the interests of exhibition and the interests of justice. For example, it may be called into question whether he is right to say that the problem essentially lies in the inability of other countries to give a remedy to those who believe that their work of art has been stolen. In a number of cases to which the galleries themselves drew attention, that possibility came to light only as a result of public exhibition in another country.
I do not think that the arguments are as clearly established as has been suggested. Indeed, it may be thought that the issue is of sufficient importance for it to have been proper to proceed by way of international agreement rather than by a national measure of this kind. The noble Lord, Lord Howarth, referred to attempts made by UNESCO and by others within the European Union to address this, but if those measures are insufficient, surely the proper approach is to go back and seek agreement. There could be a number of ways in which that could be done. For example, a list of works apprehended to be stolen could be established, and that list could be added to as prima facie but sufficiently compelling evidence to justify such a listing came to light.
It is not entirely satisfactory that we find ourselves being dictated to on these issues by any country, and there is a smack of dictation in the attitude of the Russians on this issue. As the museum directors have stated, the Russians have indicated that they will not be prepared to lend objects to countries that do not have legislation of this kind. That is a serious threat, and it has to be taken seriously. I do not blame the Government in the least for addressing it, but I think that there might have been, and still could be, better ways of tackling this.
I regret that this matter has come before us in the manner that it has. A matter that is arousing deep concern on both sides of the argument should not be appended to a Bill that is basically about the reform and updating of our administrative system. I fear that there may not be proper time during the passage of the Bill—I understand that the Government are anxious to have it on the statute book quite soon—to deal with this matter in a proper way. However, let us address this issue as best we can in the time that we have been given.
The first five parts of the Bill appear by and large to have enjoyed warm support in this House, particularly so far as the modernisation of administrative tribunals is concerned. They are based on careful recommendations by Sir Andrew Leggatt, Professor Beatson and others who set out arguments in extenso for most of the provisions in the Bill, although I will draw attention to one or two areas where the Government have somewhat disappointingly departed from the recommendations.
It may be asked why a system that has operated for 50 years—since the Franks report came out in 1957—needs such a total restructuring. The answer must in part be the amplification of the number of tribunals and the extension of the remedies that they provide in a somewhat ad hoc way. It is interesting to reflect on what the Franks committee said about the extent of the remedies on offer in 1957. It said:
“Over most of the field of public administration no formal procedure is provided for objecting or deciding on objections”.
I think that that no longer reflects the actuality of the relationship between the citizen and public administration in this country today. The network is very widespread and the arrangements are particularised.
The Bill makes provision for specialist areas, which are treated somewhat differently from the generality. The noble Baroness, Lady Gibson, raised in particular the issue of employment tribunals, and I hope that her questions will be addressed in due course. The Government’s proposal to establish an overarching system with basically a single structure and an appeal structure seems to me to be eminently reasonable. It will assist in what has become an extension to the Franks characteristics of openness, fairness and impartiality, which have been embraced by the Council on Tribunals, of the characteristics of efficiency, timeliness and accessibility. These goals are also important. The noble Lord, Lord Newton, who works so hard in this sphere, spoke forcefully on that matter.
It is interesting that a number of the contributions to the debate—including that of the noble Lord, Lord Clinton-Davis, on legal assistance—focused on accessibility. I heard the Lord Chancellor's answer to the noble Lord’s question about why the Bill does not cover legal aid provision. All I can say about that is that, although I understand it as a ministerial response, we have had quite a long time to wait for the restructuring. I hope that we do not have to wait too long for the answer to the arguments about legal aid and assistance because, as these matters become inevitably complex, it is reasonable to dissent from the view of Sir Andrew Leggatt that the best case is likely to be made by the applicant himself or herself. I hope that I do not do an injustice to what he said, but it seems to me a surprising recommendation and one that I hope will not govern the consideration of legal aid as it evolves.
The provisions restructuring the tribunals system seem to have a great deal of merit, but one question immediately arises. Do they take account of the judgment of the European Court of Human Rights against the United Kingdom, as reported on 23 November in the Times law reports? That judgment, as I understand it, held that there was a serious violation of the Article 6 rights resulting from the fact that our law and our judicial review do not allow the review of the facts—they allow only review of the law—and that too many other tribunals permit the appointment to their boards of members who are perceived to be associated with one side of the argument. That is a profound judgment. I do not know whether it is capable of being appealed by the Government, but it was issued last week. Many of the issues arising in the Bill are directly affected by that finding against the British Government's case. I very much hope that the Government will address that matter before the later stages of the Bill.
The importance of the independence of the tribunal has been emphasised by several of those who have spoken. I raise in the most tentative way the issue of appointments to tribunals. We had a general debate on some of the cognate issues with respect to court appointments in our debate on the Constitutional Reform Bill, which led to the establishment of the Judicial Appointments Commission. Are we to continue to regard administrative tribunals as sui generis? As I said, I put the point very tentatively: is it acceptable that such appointments should be made ministerially rather than at arm’s length if we are seeking to achieve independence?
The Bill provides for oversight by the Administrative Justice and Tribunals Council. I understand that it follows very closely the recommendations of the Council on Tribunals itself, and the fact that the chairman, the noble Lord, Lord Newton, who has been pressing for that reform, is content with it must give Members of this House considerable reassurance.
With respect to the provisions for enforcement, I welcome the simplification, especially giving direct access to claimants to courts for payments. I note en passant that that brings the law more closely into alignment with that of Scotland. The omission of those intermediate steps is entirely beneficial to the consumer. Of course, the fact that provision for fees should be prescribed by the Lord Chancellor, which my noble friend Lord Thomas addressed in his opening remarks, is something to which we will need to return. The National Association of Citizens Advice Bureaux, now calling itself Citizens Advice, has made a very strong case that no fee should be required for social security decisions. It has sought precise provision in the Bill to cover that point. Perhaps the Minister could address that.
I turn briefly to the question of judicial appointments, which are dealt with in the second part of the Bill. The expansion of the pool is not something that one should argue against in principle. The Lord Chancellor intervened in response to my inquiry about the size of the pool, but in assessing the qualifications it is obviously important—the Bill provides for this—that merit should be the principal consideration. It must be acknowledged that sometimes qualifications are a necessary guide as a first step in the process of assessment of merit. As long as those making the appointments are of such quality as the noble Baroness, Lady Prashar, there is reassurance that merit will be considered, but reducing the period of qualification from 10 to seven or from seven to five years, although it may introduce some more people to the pool, may make the task of selection just a little more difficult. We shall want carefully to consider any proposal from the Lord Chancellor further to extend the list of relevant qualifications.
A large part of the debate focused eloquently on the issue of bailiffs as raised by the Bill. The noble Lords, Lord Beaumont of Whitley and Lord Lucas, have said more than I can in the time available to me, beyond saying that the points that they raised will definitely need to be addressed. The proposals advanced by the noble Lord, Lord Lucas, in his Bill merit considerable attention and, no doubt, support.
There are several somewhat unsatisfactory aspects of this part of the Bill. The Lord Chancellor did not refer to the fact that the Government originally intended to establish a regulatory system for bailiffs. I regret that he did not do so and did not explain why there has been a redirection of the Bill towards certification, because that does not deal adequately with the matters that would be covered by regulation and it requires the dissatisfied complainant to go to court. I hope that the detailed points eloquently made by Citizens Advice will be considered and that the Government will be able to bring forward amendments later.
We welcome Parts 4 and 5 almost without qualification, although obviously we will wish to probe further. This has been a very valuable debate and I am extremely pleased that the Government have proposed this reform of a most important aspect of the access of citizens to justice in this country.
My Lords, we also support the objectives of the Bill and are delighted that it is before your Lordships' House. Our amendments will be tabled in the light of that statement. However, making it does not mean that we do not have certain reservations. My task this afternoon is to describe them to the noble Baroness, so that she can reflect on them between now and the next stage.
Our first reservation is one that has been had about many government Bills recently: this is a skeleton Bill. I see the Minister nodding. That presents us with two problems, both of which are familiar to your Lordships’ House. First, many important issues will be covered only by delegated legislation, which your Lordships cannot amend. Indeed, as your Lordships know, there is a convention that we can vote against delegated legislation only in very exceptional circumstances. This also poses a problem at the amendment stage, because, if we do not really know what the Government are getting at until we see the delegated rules, how can we cast our amendments sufficiently accurately at this stage to achieve the objectives that we want to achieve?
With that in mind, I do not know how helpful the Minister can be about this, but it would be extremely good if we could, ideally, see some of the delegated legislation in draft or, at least, be given some indication of the lines on which the Minister is working. Some areas are particularly important. For example, in setting up a common tribunal service, which we applaud, it would be very helpful to know something about what the common rules of procedure will be. At the moment, we have 70 tribunals and 70 sets of rules of procedure. Which ones will the Government go for? On enforcement and the very important area of rights of entry, which gives rise to all sorts of questions which my noble friend has asked, the devil will be very much in the detail. This issue touches on fundamental rights, the protection of property and so forth; so we want to know what the Government are minded to do. Unless we know, the whole process of amending the Bill in Committee and on Report will be otiose.
Your Lordships have said many nice things about the noble and learned Lord, Lord Irvine of Lairg, the noble and learned Lord, the Lord Chancellor, the noble Lord, Lord Filkin, and the noble Baroness, and quite rightly too; but I think everyone would agree that the man to whom we owe the greatest tribute is Sir Andrew Leggatt. His report has set out the decisive principles on which the Bill has been based, and I congratulate the Government—with one reservation, which I shall explain in a minute—on following him almost exactly.
As I understand it, Sir Andrew had three principles. First, we need a tribunal system that is completely independent of the Executive. Secondly, we need to rationalise the tribunal system to get the best advantages of economies of scale. Thirdly, tribunals are not courts. They are there for the users. They are a reflection not of the state but of the consumer.
On the first principle, as your Lordships know, the arguments against the existing situation are very strong. At the moment, the department of state provides all the administrative support for a tribunal. It pays the members, appoints a very large number of them, and sets out the legislation defining what their procedural rules should be. They are, quite simply at the moment, not independent. In any case, responsibility for managing these tribunals should not fall to those persons whose policies the tribunal must take into account when it makes its decisions. For all those reasons, the Government have got it constitutionally absolutely right by following Sir Andrew’s arguments.
Secondly, the question of economies of scale also follows in a way from giving the whole responsibility for tribunals to the Department for Constitutional Affairs. In a sense, the problems of economies of scale sort themselves out to some degree because, with a single tribunal system, the appointment of staff, the interchangeability of staff between certain tribunals without having to re-advertise, the purchase of equipment, communication across barriers, the provision of training and the provision of premises should all, in theory, lead to a much more economic tribunal system. I do, however, take what the noble Baroness, Lady Gibson, said about her experience of amalgamations. One might say that it sounds all very well in theory; but we all know what happens when new institutions are set up: people have new ideas of what is needed and, before you know where you are, you have something much more extravagant than you anticipated. I absolutely take that on board; but in principle this is an excellent idea.
I have some hesitation about the user-friendliness of the tribunals. Sir Andrew was at pains to emphasise that tribunals exist for users, and they will not fulfil their function unless they are accessible to those who want to use them. It is therefore very important to make them unthreatening, consumer-friendly environments. Tribunal chairmen have a big responsibility to ensure that this is done.
My hesitation about all this—I want to make sure that I am right about this—relates to the decision that the legally qualified members of the tribunal will be called judges. Is that correct? If it is, it severely undermines the whole concept of user-friendliness and informality. A judge is associated with a court and the process of court decision-making. If certain people on the first-instance tribunals—there appears to be some uncertainty about this—will have the title of judge, that flies completely in the face of everything not only that Sir Andrew Leggatt asserts but everything in which Lord Franks, who was the originating genius of this system, believed. He said that, at best, the tribunals have only a quasi-judicial role. So, with great respect to the Minister and the noble and learned Lord the Lord Chancellor, it would be extremely ill advised to call these legally qualified members of the first-instance tribunals judges if that is the intention—and it is not clear to me that it is. The Government should think again about this, because it will create completely the wrong atmosphere.
My Lords, that is a characteristically constructive suggestion from the noble Lord.
There is still no answer from the Front Bench on the question of judges generally.
My Lords, I will answer it. They are called judges. What is interesting is the force of the noble Lord’s argument, which is being well understood on this side of your Lordships’ House.
My Lords, I am most grateful. I very broadly support the observations of the noble and learned Lord the Lord Chancellor on qualifications. It is right to remove rights of appearances. I am perfectly content with dropping the figure of experience to five years, and with the reasons behind that. The noble Lord, Lord Clinton-Davis, and one or two other noble Lords have expressed reservations about the power of the noble and learned Lord the Lord Chancellor to declare that someone who has no defined legal qualification should nevertheless be a legal member of a tribunal. There is something to be said for having more about that in the Bill. This also underlines my point about calling legally qualified members judges. If someone falling into that class is to be called a judge—someone who does not possess a defined legal qualification—that would seem to me to be quite extraordinary. I will leave that matter there because I think I have made my point.
I turn to debts and the second part of the Bill, which is equally important, although perhaps less glamorously advertised by the Government. This is a crucial issue for our economy. We have a market economy, which is underpinned by the law of contract. If contracts are not obeyed, the market mechanism breaks down. The whole enforcement issue is intimately related with wealth creation in this country. It is terribly important and we have to take this part of the Bill just as seriously as the first part. This is at a time when credit is—to borrow the title of that famous song by Miss Marilyn Monroe in the immortal film “Some Like It Hot”—“Runnin’ Wild” in this country. What the Government are doing here is timely; but that does not mean we will leave this part of the Bill unamended, because I think that it is here that the greatest number of amendments will occur.
I have been lobbied by a large number of groups on this, including two which are, in a sense, in opposite camps, although they are not in any way hostile; namely, the National Association of Citizens Advice Bureaux and the Royal Institution of Chartered Surveyors, which both make very good points. We do not accept all their arguments but we nevertheless think that it is right that their concerns should be ventilated in Committee. So we may table some probing amendments because we think that it is right that the answers to these matters should be known, without in any way necessarily accepting everything that is said.
The noble and learned Lord the Lord Chancellor touched on all these matters and I want to draw out a few points on enforcement. He rightly applauded the Beatson review and reminded us that some of our law on writs of execution and writs of possession derives from 13th century feudal law. I entirely agree that it is about time that something is done about it, however great an affection one might have for the history of medieval law in this country. But we have to recognise that the powers of enforcement agents, including the right to enter premises by force and conduct searches, are very substantial. There is a real danger of the over-zealous enforcement officer who, instead of using the minimum necessary powers, uses the maximum possible, which is why this discussion about bailiffs is so important.
I share the disappointment of a number of Members of your Lordships’ House who rightly, on the evidence, observe that the Government have resiled from a position we all thought that they would take before the Bill was published. Both the Green Paper and the subsequent White Paper proposed the statutory regulation of all bailiffs. The 2003 White Paper proposed that an individual would have to be licensed by a regulatory body such as the Security Industry Authority to be allowed to undertake enforcement work and that individual enforcement agents would have to apply for a licence relative to his or her area of work and expertise. But none of that has happened. I hope that the noble Baroness will indicate why the Government have changed their mind on this important matter.
Another matter in this context where the Government appear to have changed their mind has been to make a distinction between the public and private sectors. It appears that we will have different rules for bailiffs operating in those two camps. Why should that be? I know that the public sector deals with different sorts of debts, many of which are backed by the discipline of criminal law. But does that distinction have any intellectual, political or practical merit? It seems to us that it does not. The Government can expect a number of amendments in this area; so, sooner or later, their arguments will have to be deployed.
As regards rent arrears recovery, it seems to us that the common law right of distraint for arrears of rent has been abolished, which is a good thing. In terms of those people who are taking an interest in the Bill, there are very few who would dissent from that. The landlord has to rely on the courts now, which is absolutely as it should be. We have a number of questions about the commercial rent arrears recovery system, including the definition of rent, but those matters are much more appropriate for Committee than Second Reading.
On the enforcement of judgments to the attachment of earnings orders, as I understand it, the experience in magistrates’ courts has been very good. Deducting fixed sums has been an innovation which, rightly now, should be used more widely. But it is a bewildering area because it is extremely difficult to find out exactly the financial circumstances of any individual. Therefore, inevitably, deciding on the fixed sum that is paid over any given period will always be a bit of a stab in the dark, which we have to accept as perhaps an adverse consequence of an otherwise very good system.
I note that there is a related issue of charging orders. As I understand it, under current law, if a court has made an order for an instalment payment, that precludes, at the moment, the making of a charging order, because a charging order is a form of execution. Under the County Courts Act, I think that I am right in saying that if someone is up to date with their instalment payments, they are free of execution. The Government have changed that. However, that will probably work provided the threshold level is right. There should be a threshold before a charging order is made, which is the safeguard that we would like to see to deal with that problem. I think that the noble Baroness has got the point.
On administrative orders, it is important that this should not get confused with changes in bankruptcy law. As your Lordships know, quite substantial changes were made in the bankruptcy law as a result of the Enterprise Act. There has been a remarkable increase in the number of bankruptcies as a result. I hope that the Government will ensure administrative orders are not mixed up with that saga, because they are very useful only in relation to people who are rather impecunious—often people who are on social security benefits. I hope that the operation of administrative orders will itself be subject to a threshold but in the opposite direction to the threshold on charging orders; that is, up to a certain point—£5,000 or something like that—the administrative order regime should apply, but no further than that.
Noble Lords will be relieved to know that I have come to my last two points. The first is on Clause 132, covering judicial review; that is, the power to substitute a decision. A number of noble Lords have expressed astonishment at the appearance of provisions on works of art, so the noble Lord, Lord Thomas of Gresford, and I are probably entitled some astonishment at this clause because it is a constitutionally revolutionary clause. It will allow the administrative court, having quashed a decision, to substitute its own decision for the substantive decision in issue made by the forum which decides the merits of the matter.
Throughout the jurisprudence of the administrative court, even in the world of human rights law and proportionality that we now inhabit, judges, particularly in the higher reaches of the judicial echelons, are at pains to emphasise that judicial review, while of course it is based on fairness, is in the end about the mechanics of the decision-making process; it is not about the merits of the decision made by the lower tribunal or court. Judges in the administrative court cannot place weight on the various relevant considerations that those who are responsible for deciding the merits of a case have to consider.
Perhaps it would be helpful if I read out the scope of Clause 132(5A):
“But the power”—
to substitute its own decision—
“is exercisable only if—
(a) the decision in question was made by a court or tribunal;”—
I have no problems with that—
“(b) the decision is quashed on the ground that there has been an error of law; and
(c) without the error, there would have been only one decision which the court or tribunal could have reached”.
How could the administrative court possibly know that? For example, a decision in a case could be quashed because the administrative court decides that two matters which the lower court in question dealt with and thought were relevant were not relevant at all; and, therefore, the whole basis upon which the lower court performed its balancing act—relevance and weight—has been changed completely. The administrative court is in no position to reconsider the matter unless it rehears the whole case ab initio. If it does that, it must hear evidence from all the people who made submissions to the lower court. In my view, in the context of our jurisprudence and the development of the whole law of judicial review, this marks the most extraordinary reversal. I really do hope that the Government will think very hard about Clause 132 before they take it any further.
Quite apart from anything else, it often takes many months for the administrative court to hear a matter like this. By the time it has made its decision, the situation on the ground might have moved on. In planning law, for example, it is up to the local authority to take into account when making its decision any changes in planning law that may have taken place between the time it made its original decision and the time when something is quashed and it has to go back and consider the issue again. How on earth is the administrative court to know about all these things without engaging in an extremely time-consuming exercise? With the greatest possible respect, I think that the Government have a great deal of explaining to do about this.
I turn finally to the question of works of art. Here I must say that my heart is very much with the noble Lord, Lord Janner. I am sure your Lordships will agree that this afternoon we heard a quite outstanding speech from the noble Lord. Not only was it extremely moving, but it was also impeccably argued. For the moment, however, my head is with the Government; and I must say that I found the speech of the noble and learned Lord the Lord Chancellor rather compelling. The two things that particularly struck me were that these provisions would not apply to objects coming here for sale or to those coming here on a long-term loan. He emphasised that they would apply only to museums and galleries certified by the DCMS. I think that that is important.
What lies behind this is the fact that unless we have a provision of this kind, short and medium-term loans of works of art to this country from abroad will completely dry up, and that has to be set against all the other well merited considerations. However, the noble Lord, Lord Janner, made a number of points which the Government will have to think about. The question of the definition of “cultural” is not easy. What is the scope of this part? In terms of objects, what are we talking about? The noble Lord, Lord Janner, made that point very well. He also asked an important question: for how long should this immunity last? Some pictures come here to be exhibited for three months while others are on show for perhaps two years. The Government need to think hard about how long this immunity is going to last; and in my submission that needs to be set out in the Bill.
There are other aspects about our approach to looted art which we need to think about, quite apart from these provisions. As the noble Lord, Lord Maclennan, pointed out, it is rather strange to find all this in the Bill, but the fact is that the subject has now been opened up and I hope we can have a thorough debate about it in Committee because it touches on absolutely vital questions about human rights and what we stand for as a nation. Indeed, this may turn out to be what forms the longest part of our deliberations.
I have gone on for rather a long time, for which I apologise, and for the moment I shall leave matters there. I look forward to seeing the noble Baroness, and from time to time the noble and learned Lord the Lord Chancellor, in Committee.
My Lords, we have had a good and very interesting debate and I am grateful for the overall welcome expressed for many of the Bill’s provisions. I, too, thank my noble and learned friend Lord Irvine of Lairg for his work, the noble Lord, Lord Newton of Braintree, for his continuing work—I acknowledge the occasional pressure he exerts on me—and my noble friend Lord Filkin, who, I am pleased to see, is still in his place. He too has played an important part in bringing forward this legislation. Moreover, I agree with the noble Lord, Lord Kingsland, that much credit must go to Sir Andrew Leggatt for his work. I should say to my noble friend Lord Clinton-Davis that, as always, I shall keep an open door for those organisations that wish to come and see me about the Bill. I hope that when noble Lords respond to representations made to them about this Bill, they will make it clear that I shall be pleased to see people. Indeed, I have already begun that process with citizens advice bureau representatives and the Civil Court Users’ Association.
Several noble Lords pointed to the role of secondary legislation. In every Bill I have been involved in the role of orders has come into play. That is why the Delegated Powers and Regulatory Reform Committee is so important. I am sure that, under its new chairmanship, it will report to us in good time for the Government to take account of what has been said. However, secondary legislation is very important, and at the risk of using my entire 20 minutes to talk about it, if you want flexibility it is important to recognise in legislation that sometimes you need to make changes because experience tells you that they should be made, and that it is time to change. Noble Lords will be only too well aware, particularly with this legislation, that sometimes it is difficult to find parliamentary time when it is needed to make things better or work more effectively. I do not recognise this as a skeleton Bill but, as always, I recognise my obligations to provide policy statements where I cannot provide draft regulations. I point noble Lords to the schedules, in which we have tried to put as much detail as possible.
I agree with the noble Lord, Lord Newton, that an evolutionary approach has been taken, but there is a little touch of radicalism as well. Openness, fairness and transparency are indeed the watchwords of the Tribunals Service. We want to ensure that, in creating the new Tribunals Service, we get the right economies of scale. Yes, releasing resources is important, but this is about using members of the judiciary, non-legal members, buildings, time and energy better and more effectively to give people access to justice. The Tribunals Service will play a critical part in the department’s work to give people access to justice.
I agree with what the noble Lord, Lord Thomas, in particular, said—this was echoed elsewhere—about the importance of independence. The noble Lord, Lord Kingsland, described it as a fundamental part of where Sir Andrew Leggatt had begun his work. I am also very mindful that we need to be as clear as possible about what we are trying to do. I accept that we need to make the rules clear so that they are, as the noble Lord, Lord Thomas of Gresford, said, user-friendly.
I take the points about legal aid. My noble and learned friend was very clear that it is important to look at legal aid in the context of access to justice. The review by the noble Lord, Lord Carter, is a very important part of this but there is a great deal of work still to be done. Of course, we do not need to legislate in those areas. It is important that we use lawyers appropriately in the Tribunals Service while recognising that one of its greatest assets is that a person does not always need to have a lawyer to pursue their case. As a non-lawyer, I wholeheartedly support that.
My noble friend Lord Clinton-Davis asked about the appointment of the judges. As with the courts, judges will be appointed by the Lord Chancellor after selection by the Judicial Appointments Commission. My noble friend also asked about the Asylum and Immigration Tribunal. He will know that immigration appeals are unique in that the appellant perhaps has a vested interest in delaying the decision because of the nature of these cases. It has a single-tier structure, and that is why it is outside but a separate pillar of the Tribunals Service.
My noble friend Lady Gibson was concerned about the role of employment tribunals in this. She should not have any trepidation about her lack of legal expertise because she is in very good company in that—not least with me. It is not the purpose of the Bill to make tribunals do things that they are not qualified to do, but it is intended to provide flexibility. Employment tribunals have already about 70 different jurisdictions. There may be a relevant and appropriate point at which they will take on other or additional work. We are not thinking about that at present, but the flexibility will be there. We are absolutely not thinking of foisting inappropriate work on the Employment Tribunals Service, which, I think, my noble friend is concerned about. We value its expertise and wish to use it appropriately.
The noble Lord, Lord Lucas, asked whether we could include PATAS in Schedule 6. I must confess that I did not know what that was until the noble Lord kindly explained it. Other tribunals can be brought into the schedule by order, and it will be one of the tribunals considered for inclusion as part of the review of local government tribunals promised in the White Paper. So watch this space.
The noble Lord, Lord Maclennan, asked about fees. I have not discussed this with the citizens advice bureau but I have written to Stewart Wright at the Child Poverty Action Group. I shall send the noble Lord a copy of the letter and put it in the Library. In my letter of 27 November I said:
“Let me say straightaway that the Government has no intention of introducing a cost regime which would deter social security claimants from bringing meritorious appeals. The Bill is intended to provide a better service for vulnerable people, not to erect barriers to access to justice for them”.
The noble Lord, Lord Thomas of Gresford, asked about the difference between the right of appeal under Clause 11 and judicial review. I may regret reading this out because I recognise that I am into the legal world. Clause 11 is intended to be the standard way of challenging a decision of the first-tier tribunal on a question of law. The High Court would not grant judicial review where there is an appeal right of this kind, so the advice to the client would be to seek permission to appeal. There is a permission requirement in order to filter out cases that should not be taken forward. I think that is a common and usual practice. The upper tribunal has wider powers than the court. If it allows an appeal it can make any decision that the first tier could have made. So the High Court can only send back or, if Clause 132 is agreed to, make a new decision if there is only one option.
The noble Lord, Lord Maclennan, referred to judicial appointments under Part 2. Merit is the only consideration. It is not the principal consideration or a principled decision; it is the only consideration for appointments. The noble Lord, Lord Thomas of Gresford, and my noble friend Lord Clinton-Davis raised a concern—which, in a sense, was addressed by the noble Lord, Lord Kingsland, in his closing remarks—about the breadth of the ability to place other people within the remit of those eligible to apply for appointment. The noble Lord is absolutely right: this is about ensuring that we have the flexibility to include people where appropriate. We seek to do that. There are no plans at the moment to extend beyond those indicated by my noble and learned friend the Lord Chancellor.
A major part of our discussions in Committee will concern enforcement by taking control of goods and the role of bailiffs. The noble Lord, Lord Kingsland, asked about the different regulatory schemes, as he saw it, within the Bill for private and public sector bailiffs. The reason it looks different is that Crown employees and police constables will be exempt from holding a certificate. Because they are Crown employees they are subject to strict controls and have their own complaints process. Other enforcement agents will have to obtain a certificate.
The core part of the concerns raised by noble Lords is ensuring that these people are appropriately controlled within the Bill. Noble Lords pointed to what the Green Papers and the White Paper said about heading down the regulatory route. The noble Lord, Lord Lucas, has very helpfully brought forward his Bill. I had the privilege of talking to him very briefly about that and we will continue the dialogue.
Behind all that, we have sought to do a number of things. First, we want to be absolutely clear that bailiffs operate within one set of rules. Noble Lords will know that over the years the situation has developed whereby there are different hours when people are allowed to go into premises, to do different things, with different financial arrangements and so on. We seek to provide support for vulnerable people by making it clear what is and is not allowed. That is, in essence, a balancing act between the competing demands of those who, quite rightly, want to see their debts recognised and recovered and those who are vulnerable in this context. Other aspects of the Bill, such as how we are organising repayments and so on, seek to address this problem. No doubt we shall consider that in Committee.
The Bill provides, for the first time, a single piece of enforcement law. It is about updating the language and modernising the terminology to make it easier to understand. I am sure this will help to stamp out any abuse or malpractice that might occur. We have set out in the schedules quite a lot of the detail, which we will no doubt seek to discuss in our debates.
The noble Lord, Lord Lucas, referred to “badging”—bailiffs having clear ID when they go to other people’s houses. That is part and parcel of what is proposed.
I am very grateful to the noble Lord, Lord Beaumont, because, just before he spoke, he gave me a copy of his speech. I shall seek to address the points which he asked me to write to him about, but let me deal with a couple of them now. He asked me about the Zacchaeus 2000 Trust and the situation regarding the civilian enforcement officers’ guidance. It is being reviewed by the Access Rights Unit to see whether some or any of the information could be released without compromising the ability of those who need to be able to do their job to do so. We will be in touch with it shortly.
The noble Lord said the Government were getting a free service from bailiffs as the costs were passed on to the debtor. The Bill will introduce a simplified fee structure which will be less open to abuse. We intend that bailiffs will receive an upfront fee for their work. Having looked in great detail at the noble Lord’s speech, and the report and proposals of the Zacchaeus 2000 Trust, I hope that when he looks back on the Bill he will recognise that it covers many of the issues of great concern to him. I look forward to receiving probing amendments—nothing more, I trust—that will help us to examine that in greater detail.
I will listen to whether noble Lords feel that the Bill adequately deals with the issues raised about the enforcement regime, not only in your Lordships' House but by other organisations. In discussion with noble Lords, I will be looking at whether there are further steps we might consider. I can say no more at this point, but I am open to doing so; as noble Lords have indicated, it is a very important aspect of the Bill, which we will need to consider with great care.
The noble Lord, Lord Beaumont, asked whether there would be a list of exempt goods. We will publish a policy statement in time for the Committee stage on how we intend to use the powers in the Bill. The noble Lord will therefore have that in advance, and I hope that he will get back to me if he has concerns.
I greatly look forward to the amendments that the noble Lord, Lord Kingsland, will table on debt. It is a very important area, as the noble Lord has said and, without going into detail, I agree that thresholds will play an important role in both directions. I have not met the Royal Institution of Chartered Surveyors, but I have met with the National Association of Citizens Advice Bureaux. Perhaps the noble Lord would tell the royal institution that I would be more than happy to meet representatives to talk about these issues. As he indicated, there is a balance between those, like the National Association of Citizens Advice Bureaux, who are very concerned with the most vulnerable in society and others who are concerned to ensure that the issue is dealt with appropriately for the creditors.
The noble Lord, Lord Thomas of Gresford, asked about attachment of earnings. As the noble Lord, Lord Kingsland, indicated, the idea is to make this easier. It seems to work quite well in other places. It allows circumstances such as number of children to be taken into account. The ambition is to standardise in the best possible way, to ensure consistency. We can talk more fully in Committee about how that will work and discuss examples of how it is currently working. Information that is provided will be judicially led—the judiciary can ask for information from government departments or the Inland Revenue but not the creditor.
Part 6 of the Bill is important. It is not uncommon for a Bill that begins in one area to have other aspects of legislation added. This is just such an occasion. I reassure my noble friend Lord Janner that we will make time to ensure that these issues are debated properly and fully.
I was greatly struck by what my noble friend Lord Howarth said. As Minister for the Arts, he has played a huge role; in fact, I think he was responsible for the establishment of the Spoliation Advisory Panel, which advises the Government on the resolution of claims for items in the UK public collection. I pay tribute to my noble friend for his work.
Balance has played a huge part in all the contributions in this area. A critical aspect of how we explore this must be the due diligence with which the museums and galleries which would be granted immunity operate. I have read the code of practice issued by the Department for Culture, Media and Sport; it might be appropriate to put a copy in the Library and send it to all those who have spoken today so that they can be sure that all the issues, some of which are covered in the code, are understood.
I take from my noble friend’s words the need to think about the interplay between EU directives—something I do regularly in other aspects of my work—and international law. I take the point about what role we can play and whether, on balance, we need to consider these provisions very carefully.
If he looks at Clause 128(5), the noble Lord, Lord Kingsland, will see that the maximum length of time an artefact can be here is 12 months. The examples of Taiwan and China are very pertinent. We have looked at the human rights provisions—as Minister responsible for human rights, I am concerned that we should do so. We will have further debates. I say to my noble friend Lord Janner that when we decided to include these provisions, I wrote to 30 Peers. My ambition was to allay fears and to provide opportunities to discuss these questions. That invitation still stands for all Members of your Lordships' House, in Committee and beyond, as well as in other fora, where my honourable friend David Lammy, the Minister responsible, will continue the dialogue he has started today. There is complete understanding across your Lordships' House that the passion with which my noble friend spoke is born of terrible experience. It is not the aim of the Bill to do anything other than continue to right these terrible wrongs and provide justice. I declare my interest on behalf of my family by marriage—they understand only too well the circumstances that my noble friend has described. We do not want stolen art coming into this country. The standards set by the Department for Culture, Media and Sport are very important in this context, and we will look at them.
My noble friend Lord Janner was worried that there was nothing to stop an institution having a temporary exhibition and then selling the items. Clause 128(4) expressly excludes objects which are placed on display with a view to sale from protection in the definition of what is a public display. Objects included in an exhibition arranged by an auction house would not be protected. The Secretary of State will not approve institutions wishing to arrange exhibitions to assist the sale of works of art for the purposes of these provisions. I hope that that will give my noble friend some comfort.
My honourable friend David Lammy has had some meetings; he is listening to proposals for safeguards and wants to work with interest groups to ensure that an appropriate balance is achieved between potential claimants and the interests of the museum. I look forward to playing my very small part in ensuring that these important provisions are passed into law in a way with which my noble friend feels comfortable.
As for Clause 132 going under the carpet, every clause in the Bill is precious to me. The fact that a provision comes under Clause 132 as opposed to Clause 1 is just an accident of design by those eminent parliamentary counsel who do such fantastic work for us all the time. I do not quite see it in the strong terms that the noble Lord, Lord Kingsland, does. What we are trying to do is clear. The noble Lord spoke about planning. We are trying to streamline the procedure. Instead of sending the case back so that the one decision that could have been arrived at is made, the court makes it instead. That is what the provision is designed to do. The noble Lord shakes his head—I have clearly not convinced him that this will be exciting. But when we discussed this last evening, I thought that the noble Lord, Lord Thomas of Gresford, got the point very well.
My Lords, my impression was not as clear-cut as that of the noble Baroness.
My Lords, I did not think for a moment that it would be.
We have raised many issues and I have commented on as many of them as possible. I will write to any noble Lord who has not had a full response, with apologies for not being able to do it within the time. I would have been dead on time but for the fabulous interventions that have just been made.
The purpose of the Bill is to widen access to justice, improve the administration of justice and protect the vulnerable. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Grand Committee.