House of Lords
Wednesday, 29 November 2006.
The House met at three of the clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Manchester.
My Lords, in 1996, 119,937 young people aged 10 to 17 were prosecuted, of whom 6,497 received a custodial sentence. In 2004, the latest year for which figures are available, 136,662 were prosecuted and 6,325 given a custodial sentence. In 2004, 172 fewer received a custodial sentence than in 1996.
My Lords, I am most grateful to the noble Baroness for those figures. How many of the 6,325 who received a custodial sentence in 2004 reoffended? Can she tell the House about the National Offender Management Service? What is its status, is it fully operative, has it adequate funding and will its success be evaluated within the next two years?
My Lords, I do not have the precise number of reoffenders from the cadre to which I referred. Overall, however, about 60 per cent of those who offend reoffend within two years; for young offenders the figure is higher.
On the National Offender Management Service, the regional offender managers are in place, with the ability to contract. The National Offender Management Bill, which this House will consider in due course, will enable us to develop that service further. There are resources which will be attached to any such development.
My Lords, I am sure that the thoughts and sympathies of the whole House will go to the fiancée of Tom ap Rhys Pryce as a result of his recent murder. The two who committed the murder were convicted yesterday. Is the Minister aware that a report this morning suggested that people kill in this country not necessarily for the value of the goods they get, but because they want to increase their “street cred”? To what extent does she think that is the case?
My Lords, I join my noble friend in expressing my sympathy to the family of Tom ap Rhys Pryce. The tragedy is that a multiplicity of reasons causes young people and others to offend. It is distressing to hear that one reason may be the extraordinary pleasure it seems to give, but we have no indication that that is a wholesale feeling. We continue to look at these issues carefully.
My Lords, today’s figures from the Prison Service indicating that there are 80,000 inmates in British institutions are shocking for all of us. We have never reached that figure before. Would the Minister accept that those who are sentenced to serve one year or less do not receive probation supervision? What has happened to the Government’s custody plus programme, which was branded as being able to resolve some of those difficulties? It now seems to have been put on the back burner.
My Lords, to correct the noble Lord, the figure is 79,908. However, I can certainly confirm that that is an all-time high, and I join him in expressing concern about it. We have made plain that we would like to introduce custody plus as soon as resources are available. The Probation Service is rightly concentrating on high-risk offenders. There is a huge role for the voluntary sector, perhaps, in helping and supporting those at the lower end of the scale. We will look at the efforts we intend to make to broaden that opportunity for engagement when we debate the National Offender Management Bill.
My Lords, bearing in mind the Government’s recent moves on parenting, which are very welcome, will the Minister look at the possibility of linking up much more effectively, particularly with younger offenders who have committed a second offence or received a second caution—and of parenting assistance for those families? We have never got right the parenting issue along with support for a child in trouble.
My Lords, I agree with my noble friend about the importance of parenting. Noble Lords will remember that the Department for Education and Skills indicated that it would commit £18 million to support parenting educative programmes, particularly for those struggling with a level of dysfunction in their children. That agenda is continuing, and we are looking very carefully at enhancing parenting skills; it appears to have a material impact on the way in which young people offend.
My Lords, many of us believe that children should not be in prison, but the fact that around a third of them are held more than 50 miles from their home can hardly help parenting initiatives. What do the Government intend to do to reduce that number?
My Lords, I reiterate the Government’s policy that sending young people to prison or to a youth offending institution should be the last resort. I hope that my Answer to the noble Lord, Lord Northbourne, indicated that, notwithstanding the fact that we are catching and convicting many more offenders, the number of young people sent to custody is reducing. That is in line with the Government’s intention that only those young people for whom custody is the only safe alternative should go to prison.
Health: Specialist Nurses
My Lords, the Government continue to support the development of a range of specialist roles within nursing. However, it is for local trusts to deploy specialist nurses in accordance with their local needs. There are more than 400,000 nurses working in the NHS, an increase of more than 85,000 since 1997. We recognise that there is now a much closer match between affordable demand for nurses and their supply. That is why we launched on 30 October a new framework for NHS employers for the NHS and social care to work in partnership for the benefit of displaced staff and new qualifiers leaving training.
My Lords, I thank the noble Lord for his reply, but it is rather worrying. Is he aware that, before my husband died, we had the expertise of a special diabetic nurse, a Parkinson’s nurse and a stoma-care nurse, who gave vital help to the family and to the ordinary nurses? Specialist nurses are the vital link between the specialist units within the hospital and the community. If their numbers are cut—this is a serious situation, because PCTs are running out of money—it will be a disaster.
My Lords, I am very pleased that the noble Baroness and her family had that level of support, which is testimony to the vital services that specialist nurses bring to people when they need them. More generally, we recognise the contribution that specialist nurses make, but we have to leave it to people at the local level to make decisions about priorities. It is right that they should continue to look at nursing establishments and how nurses are deployed and ensure that that represents the best way locally of using those skills.
My Lords, we all accept that local NHS organisations have to make decisions about how resources are allocated. Will not the Government nevertheless give a lead—particularly given that Brian Jarman’s research shows that specialist Parkinson’s nurses are cost-neutral to health services—so that we can ensure that the 11 quality requirements of the National Service Framework for Long-Term Conditions are met? I cannot see otherwise how we will be able to do it.
My Lords, the fact that we issued a national service framework indicates that we gave a lead. We set out very clearly what the expectations were around the pattern of services for people with those particular conditions. We continue, as part of the standards for the Healthcare Commission to inspect against, to require people to work in accordance with both NICE guidance and the national service framework. So we have not resiled in any way from giving a lead in this area, but it is down to people locally to make the decisions on the detailed deployment of personnel.
My Lords, is the Minister aware that, with multiple sclerosis, the biggest improvement in the last 10 years is due not to any tablets or treatment but to the access that patients have had to specialist nurses? I understand that the various charities, such as the Multiple Sclerosis Society, make quite a financial contribution to the funding of these nurses. Is that money earmarked for multiple sclerosis patients?
My Lords, it is true that the Multiple Sclerosis Society makes a valuable contribution in this area and indeed funds specialist nurses. The expectation in those cases usually is that the NHS will pick up the tab at the end of two to three years of funding from the charity. The overwhelming majority of those specialist nurses—and there are over 200 of them—are funded by the NHS as part of its services for people with multiple sclerosis.
My Lords, perhaps I may look at another illness—epilepsy. I declare an interest as chair of the All-Party Parliamentary Group on Epilepsy. Epilepsy specialist nurses are being made redundant or are allowed to spend only 10 per cent of their time doing epilepsy work, with the rest on general work. That is in complete contradiction to the NICE guidance, which states:
“Epilepsy … nurses should be an integral part of the network of care of individuals with epilepsy”.
I appreciate that decisions have to be made locally, but what advice and specific guidance are being given to ensure that the NICE guidelines are implemented?
My Lords, I say to my noble friend what I said to the noble Baroness, Lady Neuberger: the national standards, against which all trusts are inspected, require PCTs, acute trusts and other trusts to adhere to national service framework advice and NICE guidance. It is no good the noble Baroness, Lady Neuberger, shaking her head. That is the Government’s policy; it is integrated into the standards and that is the system that operates. We cannot micromanage the NHS from the centre of London. We have to leave people to make their judgments and take the consequences if the quality of their services is found to be inadequate by the Healthcare Commission.
My Lords, we are consistent in saying that it is for clinicians locally to decide what is the most appropriate care for their patients. It is down to the NHS locally to take into account the needs and safety of patients when decisions on resource allocations are made. I draw the noble Lord’s attention to the report produced by the Healthcare Commission, which showed that there was no evidence whatsoever that you cannot combine good-quality management and good-quality services with financial health.
My Lords, I am aware that there is a diversity of training programmes for specialist nurses. It is important to emphasise that those training programmes continue to be applied for and filled and we continue to produce newly trained nurses across the board to take up employment in the NHS.
I beg leave to ask the Question standing in my name. I take this opportunity to thank the noble Baroness, Lady Scotland, and the noble and learned Lord the Attorney-General for the comprehensive replies on rape that I have received over the past few days.
The Question was as follows:
To ask Her Majesty’s Government whether the consultation on rape includes the issue of false accusations.
My Lords, the consultation paper issued earlier this year sought views on whether to reform four different aspects of the law as it affects rape trials, as part of a broader strategy to look for more effective prosecution and support for victims. It does not include any proposals to deal with the issue of false accusations, which, research indicates, represent only a small fraction of the cases reported to the police. I thank the noble Lord for what he said.
My Lords, but should not consultation include a review of statistical data on rape? Why should the rape conviction rate be calculated as a percentage of the total of reported rapes when we know from the Purdue University study in the United States of America that reported rape figures include a high level of false allegations? The Purdue study revealed that 41 per cent of allegations turned out to be false. That was on the basis of admissions by the complainants. Surely the 5.3 per cent conviction statistic in the United Kingdom is fiction and nonsense, and brings criminal justice statistics into disrepute.
My Lords, my noble friend may be surprised to hear that I do not agree with that last remark. I agree that the fact that the level of convictions of reported rape is only 5.3 per cent is a matter of concern. I cannot think that he is suggesting that the balance of those reported cases are false allegations. I certainly do not accept that.
I have taken the opportunity to read the Purdue University report, to which my noble friend has referred before. It was produced 20 to 30 years ago in relation to a small mid-western United States town. I doubt that it has much relevance to here. I also note that, rather surprisingly, the report states that someone thinks that the level of false allegations is 100 per cent. Home Office research much more recently comes up with a much more reasonable figure of 9 per cent or, more likely, 3 per cent.
My Lords, with regard to the level of convictions, to which the noble and learned Lord referred, is he satisfied that the decision to prosecute is on the usual criteria of “more likely than not” that a conviction will be obtained? If more people are prosecuted than convicted, does it not follow that a lot of victims are men against whom false allegations have been made but who are named and shamed in the press nevertheless?
My Lords, the noble Lord draws attention to an important point. Rape is a very serious crime, which undoubtedly many women suffer. It is a difficult allegation to prove because often it is a question of one person’s word against another. That is why, in the consultation paper, we have been looking at whether there are aspects of the law—not the burden or standard of proof; no one is going to touch that—which may mean that those prosecutions can be brought more effectively. We hope to be able to announce the Government’s response to the consultation shortly, and I invite the noble Lord to see what we say then.
My Lords, the noble and learned Lord asked my noble friend Lady Scotland this question on a previous occasion. She said then, and I believe the answer still stands, that it is too early to tell, given when the 2003 Act was brought in. No doubt once there are reliable statistics, we will ensure that they are made known.
My Lords, does the Minister agree that any miscarriage of justice is a tragedy for all concerned? As a result of the consultation, will we see a better conviction rate, for example? Does he agree that most victims of rape are women, and that it is a terrible crime against women? Does he also agree that most women are very reluctant to come forward to report the rape? I hope that the consultation will give support, encouragement and advice to all victims of rape so that they can at least have some satisfaction, if that is the correct word, after the crime that has been committed against them.
My Lords, I agree with the very important points that my noble friend has made. We must strive hard to avoid any miscarriage of justice, but the fact remains, as she rightly said, that a large number of women are real victims of rape who are too afraid or reluctant to report it, and, as a result, prosecutions do not even take place. It is part of our responsibility to give them the confidence to report it so that it can be brought to the courts.
My Lords, I gave those figures for this reason. The report called A Gap or a Chasm? by Kelly, Lovett and Regan looked at the level of false allegations. The police were applying the figure of 9 per cent to their statistics. The researchers examined the cases in detail and thought that the more accurate figure was 3 per cent. That is their preferred figure, but I gave the range for the reason that I have just explained.
My Lords, my noble and learned friend has dismissed the Purdue University research figure of 41 per cent of cases in which the women complainants themselves have admitted that their allegations were false. That is 41 per cent, compared with 9 per cent, compared with 3 per cent. Is there not a huge difference between the statistics, and does that not cry out for some new work to be done to establish what the real statistic is?
My Lords, of course it shows that there is a wide variation in the statistics, as the Purdue University report itself indicated by quoting figures for false allegations ranging from 0.5 per cent to 100 per cent. But, as I have indicated, that was an old report. The Home Office recently commissioned a report, which reported in 2005, and I have indicated to the House the conclusions that it reached.
EU: Bovine Spongiform Encephalopathy
asked Her Majesty’s Government:
What is their approach to the proposed amendment of European Union regulations relating to the slaughter of animals linked by cohort to bovine spongiform encephalopathy (BSE) infection to allow more flexibility in implementation.
My Lords, we welcome the flexibility this amendment would bring. However, the Government would need to consider very carefully whether the UK would want to apply for a derogation to delay the culling of cohorts. It is unlikely that any change would be made before 2008 at the very earliest. Meanwhile, we are required to enforce the legislation that is currently in place and which has created confidence in our beef.
My Lords, I thank the noble Lord for that reply. He is probably aware that I will ask him about Harriet, the Jersey cow. For noble Lords who do not know, Harriet was born about nine years ago on a holding in Oxford where another cow, born six months later, suffered from BSE and has been slaughtered. Harriet never ate any of the food that the previous cow ate. In fact, she never even shared any of the accommodation. Harriet is now a pet cow whose owners have given the department an assurance that she will never go into the food chain. In any case, she would not be able to because Defra holds her passport. Would the Minister consider asking his right honourable friend the Prime Minister to give Harriet the same treatment that he gave Phoenix, the calf who was saved from foot and mouth slaughter?
My Lords, with respect, those cases are not in any way comparable. The question of Harriet the cow has been looked at on several occasions and has been the subject of a special debate in the other place. All the evidence points to the fact that Harriet is a cohort. In the first year of her life, she was involved in eating the feed that a subsequent animal, designated as having BSE, ate. We have protected our beef chain through rigorous enforcement of BSE rules. We are now exporting 1,000 tonnes of beef a week because of that rigorous enforcement and confidence in our beef. That has been part of the process. There is no definition of pet cattle or a pet cow. If Harriet has been designated as a cohort by all the available evidence, which has been looked at on more than one occasion, she will have to go to slaughter.
My Lords, I will not go down the route of Harriet’s slaughter. Our reliance on the country’s abattoirs in the derogation of orders considering BSE is a problem. We need to look also at a derogation for horned cattle otherwise it will soon be difficult, if not almost impossible, to slaughter highland cattle. Is provision being made in abattoirs for slaughtering horned cattle?
My Lords, will the Minister join me in congratulating the Meat Hygiene Service on how it has implemented the changes that thus far it has had to face and how it is facing further changes with great enthusiasm? I declare an interest as deputy chair of the Meat Hygiene Service.
Yes, my Lords, I congratulate everyone involved in the beef chain—the Meat Hygiene Service, farmers, cattle producers, abattoirs and feed merchants—on rigorously enforcing the controls, which have virtually eradicated BSE, from 37,000 cases in 1992 to fewer than 100 cases so far this year. That has involved the slaughter of an enormous number of animals, including the cohorts. I accept the argument that sometimes we have slaughtered too many, but the fact remains that, in 2005, of 3,043 cohorts that were slaughtered, only six had a confirmation rate of BSE, which is 0.2 per cent. But the confirmation rate in normal, healthy cattle born after 1996 was 0.0007 per cent. That is why the rules require the immediate slaughter of cohort cattle when they are identified. It is also why we have the cattle tracing system, so that when a cow with BSE is identified, we can check the other cattle that it was with in the early years of its life. That has protected the beef chain and given enormous confidence in British beef.
My Lords, I, too, should like to reflect the Minister’s comments. Certainly, the return to our export market is enormously important, so I support that. What representation have the UK Government made to the European Commission, if the Minister feels as strongly as he has indicated today? There will be a risk if they move away from the current stance.
My Lords, they have moved away because the amendment was made on 23 November. As I said in my Answer, the UK Government will need to consider very carefully whether this country would want to apply for a derogation. Even if we did, it would not be done until 2008 at the earliest. However, we have no plans to do so.
My Lords, will the Minister join me in acknowledging the great sympathy of many people following the premature death of Mark Purdey, an amazing pioneer scientist in this field? Recognising his very serious work on the origins of BSE and the possible impact of warble-fly dressing and organophosphates, what is the Ministry’s current view on the causes of BSE?
My Lords, I share the sympathies of the noble Lord, Lord King. When I was at MAFF, some nine years ago, I spoke with Mark Purdey and know how committed he was. I was as distressed as others when I saw the obituaries last week. He was very sincere about this. In answer to the question what causes BSE, I suppose that the non-scientific answer is that we don’t know. However, controlling feed had the effect of eradication. Research over the past 10 years in Defra laboratories in Weybridge and Warwickshire, which involved giving contaminated feed to cattle as an experiment, has shown that contamination levels as low as one milligram can cause BSE. All the indications are that BSE was in the feed, but no one can be certain. However, the figures I have given show that it has been virtually eradicated, with fewer than 100 cases this year.
Corruption Bill [HL]
Investment Exchanges and Clearing Houses Bill
Brought from the Commons; read a first time, and ordered to be printed.
Parliamentary Broadcasting Unit Limited (PARBUL)
Parliamentary Office of Science and Technology (POST)
My Lords, I beg to move the Motions standing in my name on the Order Paper.
Parliamentary Broadcasting Unit Limited (PARBUL)
Moved, That, as proposed by the Committee of Selection, the following members be appointed as members of the Parliamentary Broadcasting Unit Limited (PARBUL):
L Brabazon of Tara,
L Thomson of Monifieth.
Parliamentary Office of Science and Technology (POST)
Moved, That, as proposed by the Committee of Selection, the following Lords be appointed to serve as members of the Board of the Parliamentary Office of Science and Technology (POST):
L Winston.—(The Chairman of Committees.)
On Question, Motions agreed to.
Tax Law Rewrite Bills Committee
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That a Select Committee of six Members be appointed to join with the committee appointed by the Commons to consider tax law rewrite Bills, and in particular to consider whether each Bill committed to it preserves the effect of the existing law, subject to any minor changes which may be desirable;
That, as proposed by the Committee of Selection, the following Members be appointed to the committee:
B Cohen of Pimlico,
L Newton of Braintree;
That the committee have power to agree with the committee appointed by the Commons in the appointment of a chairman;
That the quorum of the committee shall be two;
That the committee have leave to report from time to time;
That the committee have power to appoint specialist advisers;
That the evidence taken by the committee shall, if the committee so wishes, be printed;
That the procedure of the Joint Committee shall follow the procedure of Select Committees of the House of Commons when such procedure differs from that of Select Committees of this House, and shall include the power of the Chairman to select amendments.—(The Chairman of Committees.)
On Question, Motion agreed to; and a message was sent to the Commons.
Liaison Committee: Third Report
rose to move, That the third report from the Select Committee be agreed to (HL Paper 251, Session 2005-06).
The report can be found at http://www.publications .parliament.uk/pa/ld200506/ldselect/ldliaisn/251/25103 .htm
The noble Lord said: My Lords, the report relates to the duration of appointment of Select Committees, to the review of committee work and to three proposals for new committees. The Liaison Committee’s report notes that sessional Select Committees, though reappointed sessionally, are in fact permanent committees. In the past, we have expressed reluctance to appoint new sessional committees in view of the permanent commitment of resources that this represents. We have now agreed that, unless there is a compelling reason to the contrary, in future we will not recommend the appointment of new sessional committees of open-ended duration. Instead, we will recommend the appointment of sessional committees for the duration or remaining duration of the Parliament. This will avoid the presumption that sessional committees will automatically be appointed every Session ad infinitum. I invite the House to take note of this intention.
In considering its own role in fulfilling its remit to review the Select Committee work of the House, the Liaison Committee found merit in the idea of reviewing the work of committees at the beginning of every Parliament. The committee will meet to review the work of policy Select Committees before the Motions of reappointment are tabled. In reaching this decision, we noted the importance of ensuring that the review does not delay the appointment of the European Union Committee. I am sure that the House will agree that it is desirable to review committee work from time to time. Indeed, many of our sessional committees are already doing this and are producing annual or sessional reports on their activities.
I also invite the House to take note of the criteria that we apply in determining whether to recommend the establishment of sessional or ad hoc committees. This is not meant to be an exhaustive list and other considerations may well apply, but I hope that the House finds it helpful.
Finally, the report relates to three requests to establish new committees: from the noble Lord, Lord Fowler, for a sessional committee on broadcasting, the media and communications; from the noble Lord, Lord Soley, for a sessional committee on international organisations; and from the noble Lord, Lord Renton of Mount Harry, for an ad hoc committee on climate change.
It was the view of the Liaison Committee that a sessional Select Committee on communications be established for the remainder of the present Parliament. Given developments in technology and broadcasting and the importance of media industries, and following the work of the recent Select Committee on the BBC Charter Review and the expertise and independence of Members of the House in this area, we were persuaded of the merit of establishing a committee on communications. The Liaison Committee is firmly of the view that Lords Select Committees should complement and not duplicate the work of the Commons and that their remits should be cross-cutting rather than departmental. However, given the importance of the subject matter, we feel that, provided that the Lords committee is scrupulous in avoiding duplication of the work of the Commons Culture, Media and Sport Committee, there is value in establishing a committee in this field. The establishment of a new committee has considerable resource implications. Were the House to agree to the establishment of this committee, staff would have to be appointed to support it. I expect that a new committee could begin its work by Easter of next year.
It was the view of the Liaison Committee that neither of the proposals of the noble Lords, Lord Soley and Lord Renton of Mount Harry, should be supported. In the case of a Select Committee on international organisations, we felt that the range of organisations falling within the scope of the proposed committee was too wide. However, we have said that we will give sympathetic consideration to an application for an ad hoc committee to scrutinise a homogeneous group of organisations were the noble Lord, Lord Soley, to return to the Liaison Committee with such a request.
In the case of an ad hoc Select Committee on climate change beyond the Kyoto Protocol, the Liaison Committee noted that climate change issues had been considered on several occasions in recent years by committees of both Houses. Indeed, it is highly likely that the Economic Affairs Committee and the Science and Technology Committee will return to the subject in due course. We were therefore not convinced that the establishment of a further committee on this subject would add value. I beg to move.
Moved, That the third report from the Select Committee be agreed to (HL Paper 251, Session 2005-06).—(The Chairman of Committees.)
My Lords, as I proposed an amendment to the second report of the Liaison Committee, I strongly welcome the report that the Lord Chairman has just spoken to. I am glad that the case for a communications committee has been accepted. I accept the concept that a Select Committee should be appointed for a Parliament and not in perpetuity. That is extremely sensible.
I do not wish to be churlish, but perhaps I could remind the House that, back in March, when we first set out our case for a permanent committee, we said that the state of independent television was,
“the most obvious extension of the work of the BBC Select Committee”.
“There are important issues of media ownership as raised by the current bid for ITV which could have wider implications”.
We can claim to have been right in our judgment in March.
That brings me to my only point of concern—the issue of timing and when the committee can start work. The committee has been appointed for the remainder of this Parliament, but we are already 18 months into it. I hope that everything will be done to get the committee up and running as soon as possible and that we will be able to do this before Easter of next year. That seems a long time away and I very much hope that we can do it before then.
My Lords, I support the noble Lord, Lord Fowler. I do not want Easter to be the start of the preparations for this committee because we all know that that would probably mean that the committee would not start until the autumn. The events of recent weeks have proved beyond peradventure that there is a need for this committee. As to the need to avoid cutting across the work of any other committees, as far as I am aware no regulator or committee has ever looked at the anti-competitive behaviour of the Sky organisation, so this committee could safely get on with that.
My Lords, I thank the Chairman and members of the committee for the consideration that they gave to my proposal for a committee covering the international organisations, a committee that I have always felt has been seriously lacking in both Houses. I also thank him for the encouragement—I appreciate that it is without any commitment whatever—to narrow down my proposal and to return to the Liaison Committee at a future stage, which I will do.
The committee raised some important points, because the scope of the organisations covered was very wide. However, the amount of money that goes into these organisations, particularly the United Nations, the World Bank and the International Monetary Fund, to which we recently gave £3 billion, is an indication of the financial implications for the taxpayer.
This is a very important subject; I will certainly return to my proposal at the appropriate time and try to hone it into a more focused committee. Again, I thank the committee, but this subject is covered neither in the House of Commons nor here, and it urgently needs to be.
My Lords, I support what the noble Lords, Lord Fowler and Lord McNally, have said. It may appear rather odd for these Benches to oppose something to do with Easter. Nevertheless, Easter is about five months away and, for the reasons that the noble Lord, Lord Fowler, has given and the continuing technological advances that speed by, I believe that the earlier this committee can meet, the better.
My Lords, I thank the noble Lord, Lord Soley, for his words. As the report says, we will look again at a more focused proposal if that were to come before the next meeting of the Liaison Committee. The noble Lords, Lord Fowler and Lord McNally, and the right reverend Prelate the Bishop of Manchester, all want the new communications committee to start as soon as possible. I am well aware of the various developments in the industry, particularly in independent television, with a new chairman who has left the BBC, Sky bids, and so on. Quite possibly those developments would have taken place whether or not the House had the benefit of a committee looking into them. I suggest that the noble Lord, Lord McNally, speaks to Mr Murdoch and finds out whether he was waiting for the House of Lords to report on this before he took his 20 per cent stake in ITV and whether Mr Grade would have been influenced by the committee when he switched from the BBC to ITV.
Noble Lords may have forgotten, conveniently, that we have already agreed to set up a new committee on regulators, whose work will start very shortly. I am afraid that that new ad hoc committee this coming Session has to take priority over the communications committee that, if the House agrees to this report, will be set up. It is really a question of staff resources, not of finance. We simply do not have the staff available to clerk another new committee. I hope that it will be before Easter—we will do our best to make it so.
On Question, Motion agreed to.
Mental Health Bill [HL]
My Lords, I beg to move the Motion on the Order Paper standing in the name of my noble friend Lord Warner.
Moved, that it be an instruction to the Committee of the Whole House to which the Mental Health Bill [HL] has been committed that they consider the Bill in the following order:
Clauses 2 to 20,
Clauses 21 to 25,
Schedules 3 and 4,
Clauses 26 to 32,
Clauses 33 to 38,
Schedules 6 to 8,
Clauses 39 to 41,
Clauses 42 and 43,
Clauses 44 to 47.—(Baroness Royall of Blaisdon.)
On Question, Motion agreed to.
Tribunals, Courts and Enforcement Bill [HL]
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.
Merits of Statutory Instruments Committee: Secondary Legislation
rose to move, That this House takes note of the report of the Merits of Statutory Instruments Committee on the Management of Secondary Legislation [29th Report, HL Paper 149, Session 2005-06].
The noble Lord said: My Lords, I shall say a few words initially—because I know that is why noble Lords have come—about what the committee does and what we believe our purpose is. The committee was an innovation set up by the House in April 2004, built out of the concern that the vast volume of secondary legislation that passed through Parliament often received scant attention in the Chamber itself because of the volume of legislation that was passed. We believe that the House was right to have that concern. Therefore the committee’s job, at its nub, is as a sieving committee to try to identify secondary legislation that may be of interest to the House, is of potential importance and potentially has flaws in it. Not to be too grandiloquent, we are a sieve—and we try to do our sieving function with efficiency and humour.
The committee was chaired by my noble friend Lord Hunt of Kings Heath before he was returned to government. I followed him in May this year. I hope that there is no truth in the rumour that goes around that the Chief Whip awards the chairmanship of the Merits Committee to Ministers who have misbehaved as a gulag and an encouragement to others.
In fulfilling our scrutiny function we seek to make essentially political judgments. We try to identify across the committee’s experience whether an issue may be of interest to at least some in the House. That does not necessarily mean that we expect the House to stimulate a debate on it, although we are often interested when that happens; but we think it important that the House has a fairly efficient means of drawing things to its attention without scanning the vast volume of legislation that looks as if it may be of interest in public policy and political terms or because it appears to have faults in it.
In the last Session we reported 41 affirmative instruments to the House and 139 negative instruments. Perhaps reporting the negative instruments is more important than reporting the affirmatives, because the affirmatives naturally come before the House while the negatives are lost in oblivion unless we have some process of bringing them to the House’s attention.
After that brief résumé of what we do, I give warm thanks to the members of the committee with whom I have had the pleasure to work in my period and to the clerks who so supportively and expertly helped and advised us. Sometimes when a Member asks what you are doing in the House and you say, “I serve on the Merits Committee”, a sad sort of smile crosses their face—of pity and wonder that one can cope with the almost Sisyphean task resulting from the mountain of paper that lands on one’s desk. Because we meet weekly, the volume of paperwork is enormous, but the attendance record of the committee is remarkably high and the attention to detail is remarkably high, too—sometimes even higher than the chairman would wish. Lastly, the commitment of the committee and its good humour could hardly be bettered.
In practice, much of the work of the committee takes place outside the committee meetings, because our Clerks engage vigorously with departments, as we want them to, to draw additional information from officials, clarify areas of doubt and at times to put direct challenges to them prior to our meetings. That is a crucial if unseen part of our work. We also try to be balanced and to give praise as well as censure to departments, because we believe that we have a role in that respect.
Perhaps I do not have to say a lot—although that always means that the speaker is going to say a lot—about why it matters that we scrutinise in this way. The fundamental point is that statutory instruments themselves matter, as they are the expression of the power of the state in all its force, detail and volume. They impose burdens, obligations and often costs on a variety of members of society. On the positive side, they are intended to be for a purpose—to create a mechanism by which the Government can achieve their objectives. So the policy debate is whether the statutory instruments achieve the policy objective in practice in the most economical and efficient way possible. I paint the broader picture of what statutory instruments are about and why they matter without necessarily advancing the argument that that is the central focus of our work. We have a more humble focus.
The way in which the Government legislate in practice through statutory instruments and whether they achieve their policy objective—and whether they do that with the least burden and cost commensurate with the policy objective—matters a lot to civil society. There is therefore a question that is not in our remit on which departments need to spend more time reflecting: whether in the policy delivery debate, which is essentially one of the biggest difficulties that all Governments face, this is the best way in which they can achieve their policy objective. As has been said by many, the default mechanism is that if you want to achieve a policy objective you should legislate, regulate and create statutory instruments. The evidence is not perfect that that is always the best way in which to achieve one’s policy objective.
Why did we decide that there should be an inquiry? After the committee had been going for some time and we had scrutinised hundreds and hundreds of instruments, the picture was patchy. By and large, instruments are well made by departments within their remit at that point in the legislative process. However, too often there was evidence that they were not well made, and we wanted to get under the skin of how departments managed their secondary legislation to see whether there were lessons that we could learn from that and lessons that they should learn so as to do things better, for all the reasons that I have touched on.
We have been reinforced on the importance of this—again, this is a point of context—by the stance that the Better Regulation Task Force has set itself, cautioning against the mindset that legislation is always the default solution to problems, and noting the position of the Government themselves that they wish to achieve less regulation and less burdensome regulation. Of course, that has a bearing on the work of the Merits Committee. Only on Monday, the Prime Minister committed the Government at the CBI to a 25 per cent reduction in red tape, form-filling, inspection and record-keeping. If that is to be achieved—I am sure that most of us hope that it is—it will mean less regulation and statutory instruments and fewer and better regulations.
As my noble friend Lord Hunt is now in his place, I should repeat the praises that I granted him before—but I shall probably do that afterwards, at the end.
The inquiry that we set up, which was the first to be held by the committee, sought to cause a number of witnesses to give evidence to us from government departments, Ministers, senior officials, the Better Regulation Executive and the Better Regulation Task Force, as well as representatives who might speak for wider civil society such as the CBI, the National Council for Voluntary Organisations and others, to get a view of how the world seemed to them and what they felt about it.
Our focus was essentially on whether departments achieve the clarity that they should on their secondary legislation, whether the process of consultation was adequate and effective, and how departments planned and timetabled their secondary legislation to avoid—which they do not often do—the enormous end-of-term or end-of-Session rush of legislation. That matters not just because the committee does not want to be overburdened but because it weakens the ability of Parliament to scrutinise the Executive’s actions, which matters a lot. We wanted to engage with the Government about what they were going to do to minimise some of those peaks and troughs so that legislation could be better scrutinised by Parliament and to ensure that there was effective timing of introduction of secondary legislation, such as the 21-day period of laying, to give the House adequate time.
I shall not cover all the areas that the committee covered as I shall be well supported in the debate by many of the eminent members of our committee, but I shall talk on one theme, which was a leitmotif running through our inquiry—the search for who is responsible. We sought to find who was responsible in government overall for the process. The Cabinet Office clearly had some responsibility; it issued guidance that departments were meant to follow. However, it was pretty chary about going much further than that, and about going into the territory of saying it was going to be vigorous about trying to ensure that the guidance was followed and that there was a learning process about making secondary legislation better. HMSO, surprisingly to us, had a significant role, but it was essentially limited to the standards for the drafting and presentation of legislation. It gave us good and clear evidence, but its remit was that and no further.
We were also surprised that the Better Regulation Executive put secondary legislation off limits. It said it was not getting involved in looking at secondary legislation at all; that was not its focus. We question that. We can see that it will prioritise its work to the regulatory burdens that have the most impact, but not occasionally to fish into the detail of secondary regulations seems to us to miss a point of the BRE’s function. You need to put a mineshaft down periodically to have a look at the detail and see what is going on.
There was a less than crisp picture of how the Government themselves led the scrutiny of the secondary legislation process across government. We put that to them and we had a response, which I shall come to. We also took evidence from three departments, either because we thought they appeared to have some very good practice or because there was room for improvement. I shall not name names and leave you to guess which was which. One of the most interesting and touching of the questions was when we asked one department, “Which official in your department is responsible overall managerially for the quality of secondary legislation?”. It took months to get a reply. That was eloquent in terms of what was going on there.
We have had the Government’s response. I do not want to damn it too much with faint praise, but it would be fair if I said that the committee’s response to it was lukewarm. In essence the Government have said, “We have issued the guidance. It’s there. We trust that the departments, which are effectively fiefdoms”—not their words, but mine—“will do it, and we can leave it to them. All will be well”. I wish we believed that. Some of us might say that the ability to join up across government and enforce or promote good standards effectively was a reflection of the surprising weakness of the centre of government in some respects, rather than its excessive centralism. So we have not been overwhelmed by the Government’s response. It is not that they disagreed with the goals of what we said in our report—by and large, we were all in the same territory and saying, “This is what should happen”—but we were doubtful whether we saw the commitment to the means to achieve the goals we thought were important.
I also draw attention to the response of one government department to our report. The Home Office came in for a lot of stick, and it continues to do so. It has not been the easiest of years for it. The response we have had from the Permanent Secretary to the committee’s report, which we have received in the last day or so, is very clear. It raises the bar for a Permanent Secretary by saying, “I will make my department respond to what the committee has said, and I own that”. I commend him on that. He has plenty of other things on his plate at present, and it is good to see a Permanent Secretary standing forward in that respect.
I shall touch on what we think should be done better, and what we will be keeping an eye on in the future. There are two levels of consultation. There is the technical level, where you allow consultation on the draft instrument itself. Departments are meant to allow 12 weeks for that process. It is crucial that they do it, and that they listen to the responses. We believe consultation should be more positive than that, however. We saw that good consultation—there is some evidence of this from the DTI—was when a department brought stakeholders and wider civil society into discussion before it even drafted the instrument to talk with them about the policy objective it was trying to achieve, and had an active discussion with them about what might be the best way of achieving it. In other words, it consulted not about the commas and the semicolons, but about the objectives. It tried to think about whether there were better ways through an active engagement with those groups. We think there is a lot of scope for doing more of that, and we are not convinced that there is a strong enough central mechanism to promote it—see previous remarks.
We also think it important that, although not putting excessive burdens on business is important, there is a recognition that others are affected by secondary legislation. We came across a particular example, which others may speak on, where significant burdens were being placed on ordinary citizens. The Government therefore have to find mechanisms for consulting them as well. It is not always easy, but it is certainly possible. Charities and local government are also affected by secondary legislation, and should not be ignored during the consultation process. Consultation matters massively. It is an issue to which we pay great attention in Explanatory Memorandums; we are looking to see evidence of the quality of the consultation that has been done and of the responses that have been given. Our officials are diligent in going into more detail about that.
We know why simplification is difficult, but, at times, seeing tier on tier of amendments to the original secondary legislation makes it almost impossible for some parts of civil society to understand what is going on. Others of our committee who are much more expert will no doubt speak on this, but the importance of simplification and consolidation needs to be stressed again and again to officials. The problem is that we all see the world from our own position, not from the position of those we are affecting. Legislators and officials who are acting preparatory to legislators need more imagination at times, to think about what it feels like if you are a small business in Wigan and you have a shower of this stuff hitting you. How are you meant to understand and engage with it? They should have that imagination, not because it is a decent and human thing to do, but because if they want their regulations complied with, which is what it is all about, they have to try to make the process of compliance as comprehensible, transparent and simple as possible, otherwise they just will not get compliance. Simplification, clarity, transparency and accessibility matter because they go to the heart of the policy objective.
My last point is on EU directives. We gave evidence as a committee to the House of Lords EU Committee on why EU legislation was an example of how consultation had to be done differently. Essentially our argument was that when Ministers—having been there, I know it is the last thing on one’s mind—are negotiating late at night, with what used to be 12 or 15 others but is now 25, before they can get agreement at the European level they have to have involved those who will be affected by the consequential directives and regulations that will flow from that ministerial decision. Why so? Because if you do something wrong on a domestic piece of legislation, it is conceivable that you can change it. However, it is almost impossible to change European legislation when you are required to get 24 other states to agree. We saw examples where departments, which we commended for it, had brought those who would be affected by a measure right into the discussion before Ministers agreed. We thought the way that was done was superb, and that it needs to be done more often, otherwise you are just locked on to a directive or a regulation, and you are just amending the detail. There is nothing you can do about it in practice, however much you consult about the detail.
I am out of time. The message to government departments: please attend to this—it matters. Please own the need to improve. Please give it serious attention at the top of departments in the way that I have already suggested. Seek to avoid such legislation when you can, and evaluate the effectiveness. In other words, have some process where, periodically, you take an instrument—perhaps a controversial one—and see whether there is evidence that it actually worked or did not. All too often, that is not done, so there is no learning process within government.
The message to the House is: please engage; please support us, because it is a lonely and sad life we lead in our little gulag; please also do not mistake the convention of the House. I think that the noble Lord, Lord Kingsland, for whom I have the greatest respect, misquoted the convention on secondary legislation. The Companion states:
“The House of Lords has only occasionally rejected delegated legislation”.
It does not say it should not; it does not say it could not. It makes the statement of fact that it happens “only occasionally”.
I think the view of the committee is that the House has probably too infrequently rejected delegated legislation. Without wishing to cause a heart attack to the Chief Whip, I should add that there are occasions when it should be rejected. That does not collapse Parliament or the Government. It usually leads to the Government rushing back with an amending piece of secondary legislation which sorts out the problem. It does not half concentrate the attention. So, without wishing to upset my very good friend the Chief Whip, I do not think we should misquote the Companion in this respect. We should use our powers in the interests of the public with discretion, but periodically.
Moved, That this House takes note of the report of the Merits of Statutory Instruments Committee on the Management of Secondary Legislation [29th Report, HL Paper 149, Session 2005-06].— (Lord Filkin.)
My Lords, it is a pleasure to follow the noble Lord, Lord Filkin, and to congratulate him and other members of the Merits Committee on producing what in my view is an excellent report, and one that I believe may come to be recognised as a seminal document. I shall be reinforcing some of the points that the noble Lord has made in opening.
It has long been recognised that there are problems with our legislative process and with parliamentary scrutiny of legislation. The problems have been quantitative as well as qualitative. As the noble Lord said, there has been a growth decade by decade in the volume of legislation. Bills are getting longer. More and more statutory instruments are being promulgated. Many provisions are complex and not easy for Members of either House, let alone the public, to understand. We know from experience that they do not always work in the way they are intended to work. Unfortunately, we usually know that only when they have gone badly wrong. We lack any systematic means of post-legislative scrutiny.
There have been some improvements in recent years. With primary legislation, there has been the very welcome growth of pre-legislative scrutiny. At the beginning of this month the other place resolved that Bills should normally be referred to evidence-taking public Bill committees, in my view a major advance and possibly the most important reform of the legislative process in recent history. The Law Commission has made recommendations for post-legislative scrutiny.
In respect of delegated legislation, the most important changes have taken place in your Lordships' House. We have the Delegated Powers and Regulatory Reform Committee and now the Merits Committee. Both are doing a superb job. This report alone demonstrates the worth of the Merits Committee.
The committee is part of the answer to the problem of delegated legislation and, in this report, it has succinctly and effectively identified what the problem is. There is, as it shows, a systemic failure in government in promulgating delegated legislation. With primary legislation, there is at least some central co-ordination. Bills have to be agreed by the Cabinet and the Ministerial Committee on Legislative Programme. There is a means of ensuring that measures are appropriate and fit in with the time available in the Session. With delegated legislation, there is no central co-ordination and responsibility is dispersed to departments. As the report shows, departments deal with such legislation in different ways.
As a result, delegated legislation is generated in what is essentially a disparate and discrete manner. There is no co-ordinated mechanism for ensuring that each statutory instrument achieves its goals efficiently, that it is necessary and that it is clear to those at whom it is addressed. The absence of such a mechanism also makes difficult effective parliamentary scrutiny. Consultation and parliamentary scrutiny are means to an end; namely, ensuring that delegated legislation is fit for purpose. There is thus something of a vicious cycle. Because there is no central co-ordination, delegated legislation may be brought forward late and there can be bunching at a particular time of the year. That limits the capacity of the two Houses to consider the legislation. The problem is compounded by limitations of time in the other place, thus putting a particular onus on this House to ensure that delegated legislation is fit for purpose.
To ensure that delegated legislation is fit for purpose, there needs to be action not just by Government but also by the House. The action to be taken by Government is very clearly laid out in the report. I endorse all the recommendations that are made.
The Government's response to the recommendations is, I fear, disappointing. Here I echo what was said by the noble Lord, Lord Filkin. The Government recognise the importance of what the committee is arguing but primarily commit themselves to beefing up the guidance and extending some of the existing practices. In so far as there is an improvement in the existing guidance and in practices, I welcome the changes. But they do not go far enough to deal with the problems identified by the committee. The Government's response does not really engage as much as it should and could with the recommendations. It is a missed opportunity. It really should do more to ensure that there is co-ordination. I believe that the same principle that applies to primary legislation should apply to secondary legislation. I disagree with the Government on the point that they make in their response.
In terms of laying orders at least 21 days before they are to come into force, it is not enough simply to remind departments that the 21-day period is a minimum period. There needs to be some mechanism for ensuring compliance. Simply reminding departments is not going to change the culture within departments. The Government's response appears to be driven from the bottom up, from departments, rather than from the top down, from the Cabinet.
The point that I would stress to the Minister is that it is in the Government’s interest to implement these recommendations. The Government want legislation that achieves its intended goals. They are also committed to ensuring better regulation. I draw attention especially to the opening sentence of paragraph 80 of the report, where it notes that central co-ordination will not be effective,
“unless there is a recognition on the part of the Government machine that efficient planning and management of secondary legislation is as much a part of good regulation as are regulatory impact assessments and consultation”.
As it goes on to note, the Better Regulation Executive cannot distance itself from the matter as being of no more than procedural interest to HMSO. This has to be seen as part of the process of better regulation and not as somehow detached from it. I am not sure that in their response the Government have fully grasped that point.
I very much endorse the recommendations on simplicity and consultation in addition to the core recommendations covering co-ordination and post-implementation review. The committee's recommendation on post-implementation review mirrors the recommendation of the Constitution Committee in its 2004 report on the legislative process. The Constitution Committee, which I chaired, argued the case for post-legislative scrutiny to be undertaken by departments and for Parliament itself to have some mechanism for reviewing whether Acts have fulfilled their purpose. The Law Commission has recommended the creation of a Joint Committee to undertake post-legislative scrutiny. It sees the committee as evolving and it could be that it—or the Merits Committee—could come to engage in oversight of post-implementation review of delegated legislation.
I wish to raise one particular point in respect of government. The Merits Committee wants to encourage officials responsible for producing delegated legislation to see the process from the perspective of Parliament. That will enable them to appreciate the need for laying instruments in a timely manner and to avoid congestion. That touches on a wider problem; namely, the fact that officials often have a limited grasp of Parliament in terms of both its significance and its procedures. That can result in the sort of problem identified in this report, but it results also in problems encountered by other committees. Though senior civil servants often understand the role of Parliament, less senior officials sometimes do not and it is the less senior officials who are frequently responsible for producing statutory instruments as well as other material laid before Parliament. It would therefore be helpful to hear from the Minister what the Government are doing to address this problem. Is there a role for the National School of Government, not least in ensuring that officials responsible for delegated legislation are schooled in understanding Parliament and its procedures?
I turn to the role of Parliament. As the report shows, one of the explanations of why delegated legislation is not given the attention it deserves within government is the fact that there is no strong incentive to do so. Delegated legislation is not subject to the same scrutiny by Government or by Parliament as primary legislation is. Instruments subject to the negative resolution procedure are usually not debated in the Commons; time cannot be found even if they are prayed against. In this House, even if debated, they are not usually subject to a vote. Instruments subject to affirmative resolution are debated, but usually briefly and again without a vote. There is no scope for amendment and, as there is usually no Division, few members take an interest. Delegated legislation is very much the poor relation in the legislative process.
If officials responsible for delegated legislation are to take Parliament seriously, Parliament has to take seriously delegated legislation. We have the Merits Committee, but by itself it cannot ensure that officials take Parliament seriously. We have to be prepared to act on reports from the committee and if a statutory instrument is not fit for purpose to reject it. We will in due course debate the report of the Joint Committee on Conventions. It recognises that there is no convention that prevents the House from rejecting a statutory instrument. As the noble Lord said, it may be exceptional for it to do so, but its ability to do so—as the Merits Committee noted in its evidence to the Joint Committee—gives the House some leverage in ensuring that instruments are fit for purpose. As I argued in my evidence to the Joint Committee, I see no reason why we should not reject statutory instruments. They do not usually deal with great issues of principle and they can be relaid. I do not go along with the recommendations of the Wakeham commission. I think that existing powers to reject an SI should remain, but we should be prepared to use those powers. As the noble Lord said, rejecting an SI that is not fit for purpose will concentrate the minds of Ministers and, especially, officials.
I am not arguing that we should regularly reject SIs. Once there is a clear awareness on the part of departments that poorly drafted and inadequate statutory instruments—those that do not meet the criteria specified by the Merits Committee—will not be approved by the House, I have no doubt that SIs will be better drafted and that they will be more likely, in the words of the Merits Committee at the end of paragraph 119, to be,
“well thought-through and free from defect”.
The publication of the report of the Joint Committee on Conventions prior to this debate is timely. If we put the two reports together, we have the basis for ensuring that we use our power to support the work of the Merits Committee and that delegated legislation is fit for purpose. I reiterate that this is an excellent report. It is essential that we see this debate not as an end point but as the beginning of the process in ensuring that the report’s recommendations—all its recommendations—are implemented.
My Lords, I welcome this debate on the report the Merits Committee on the management of secondary legislation, produced under the guidance of our chairman, the noble Lord, Lord Filkin. I came on to the committee at its inception in 2003, not knowing precisely what I had let myself in for. It was extremely interesting to be there from the start, as we had to decide how we were to operate and report to the House. We were lucky to have such an excellent first chairman in the noble Lord, Lord Hunt of Kings Heath, backed up by our first clerk, Christine Salmon, and our excellent secretariat, who were especially recruited for us from the Civil Service—truly a case of poacher turned gamekeeper.
I say to the noble Lord, Lord Norton, that one task that has been carried out is educating members of the various departments concerned with making statutory instruments on how we wish to have things presented to us and how to improve the general quality. Forums have been run to enable departments to achieve this.
During my three years on the committee, I was amazed at the broad range of subjects covered by statutory instruments, ranging from a single sheet of A4 paper from the Electoral Commission, stating that no party shall call itself “None of the Above”, to hundreds of pages reorganising the medical or dental professions. There was even one on the preservation of Antarctic monuments such as Scott’s hut.
On a more serious note, it is noticeable that the quality of SIs, particularly the Explanatory Memorandum, has improved dramatically, and our insistence on full details of the consultation carried out by the relevant department is starting to achieve our objectives. However, as has been said, there are still too many occasions when the required 12-week period for consultation is not achieved. It is a pity that the Explanatory Memorandum is not—on grounds of cost—a part of the official statutory instrument document and is available only on the departmental website. The Explanatory Note, which is part of the document, is totally useless.
Many of the SIs that we see are completely incomprehensible, consisting solely of amending references to the primary legislation or preceding amending SIs. It is with regard to this that I think a consolidated version of the primary legislation with all the amendments made by the relevant SIs incorporated should be freely available on the relevant departmental website or on the Department for Constitutional Affairs’ proposed statute law database. Such a baseline version must exist, as otherwise it would be impossible to produce the SI.
We had evidence from the Kent Police College concerning the difficulty of knowing which sections of primary legislation had been activated by an SI. An example was quoted whereby a section of a 33 year-old Act—the Criminal Justice Act 1972—still had unactivated sections which could be brought into force at 21 days’ notice, giving the police new powers of which they might be unaware.
Another issue that concerned us was ensuring that adequate publicity was given to SIs affecting the general public. There was one instance, to which I believe the noble Lord, Lord Filkin, referred, concerning the use of licensed waste disposal operators or skip hirers, where we felt that very inadequate provision was made to inform the public of their responsibilities in this matter. Similarly, we had misgivings on the varying impact of SIs on large firms with comprehensive legal departments versus an SME or voluntary organisation where there may be nobody available to be made aware of the significance of the SI or to take any action to implement it. In many cases, it will just be ignored.
Another problem that we observed, and into which no doubt the noble Viscount, Lord Colville of Culross, will go in some detail, is the transposition of EU legislation by SIs imposing undefined penalties for undefined offences that can be determined only by extensive trawling through the parent EU legislation—something quite impractical for most members of the public, such as a farmer who may well be affected by such an SI. Details of the offences and penalties should be clearly defined on the face of the SI in such instances.
Management of the SI process and ensuring that adequate time is allowed for scrutiny and subsequent debate have been constant subjects for concern. On too many occasions the 21-day rule between the laying of the SI and its coming into force has not been observed. While there may be some emergency occasions when this is justified, in most cases it is not. The situation becomes even more acute in the run-up to the common commencement dates in April and October—the latter occasion being aggravated by the long Summer Recess preceding it. Departments must plan to ensure that there is always time for adequate parliamentary scrutiny.
Other suggestions in our report were that more consideration should be given by departments to whether an SI was the best way to achieve the objective required, or whether a non-legislative approach was possible and desirable.
I have enjoyed my time on the Merits Committee. I thank the noble Lord, Lord Filkin, for introducing the debate.
My Lords, not having been involved or having any great expertise in this area, I hope that the House will forgive my intervening. However, I do so if only to thank the noble Lord, Lord Filkin, and his committee for their excellent report. I despair as I listen to the Government say that they will reduce the regulatory burden by 25 per cent. I remember saying the same thing when I was in government, and failing to do so. When I was first appointed a Minister in the Department of Employment, with responsibility for health and safety, I recall asking officials if they would get me all the regulations that applied to small and medium-sized businesses, with which request they had to comply.
My Lords, I shall just say briefly to the noble Lord, Lord Methuen, that I am not going to resurrect the point about transparency of criminal offences that are imposed under EU regulations. The happy outcome of our previous discussions on that is that it is in the hands of the noble and learned Lord, Lord Davidson of Glen Clova, and he will include something about it in his review. I believe it is relevant to what he is doing, and I look forward very much to the results.
I am happy to support my chairman, the noble Lord, Lord Filkin. He said that the Better Regulation Executive did not go in any depth into statutory instruments. The same of course applies to the Joint Committee on Conventions. It dealt with the rejection of statutory instruments, about which various things have been said. It said, in terms, that it had not been asked to consider amendments. Very few statutory instruments can be amended. This is a point that a number of noble Lords are interested in. In fact, it simply is not feasible to have a system of amending statutory instruments in Parliament; the volume alone would preclude that. On the Library shelves, as an example, the statutory instruments from 2001 run to 10,800 pages and, looking at a slightly smaller set of books, those from 2005 go to 8,800 pages. Not all of those are subject to the parliamentary process, but quite a lot of them are, and it just would not be possible for either House to contemplate amending them.
If the departments that produce statutory instruments are going to be immune from a process of detailed scrutiny and amendment in the House, we must ask for compensation by return. It has already been mentioned by previous speakers, and it comes in the form of consultation. The experience so far is that if there is adequate consultation, changes can be made before the instrument is made or laid. It depends entirely on the adequacy of the consultation. This must be particularly important, with the ever-increasing number of framework Bills where, on the hangers, will come an enormous number of details in the form of statutory instruments. Some Ministers are better than others at giving the House notice when the actual Bill is being discussed of what those details are going to be. We need more consultation.
It is all about this cult word “stakeholders”. I am bound to say that I have found this very confusing. I understand what it is in the business context, but what about others? What about the people who have to enforce the requirements of the statutory instrument—particularly, perhaps, local authority trading standards departments, who are notoriously short of staff and money? When we are told that the Local Government Association is being consulted, are we to suppose—because we are never told—that it has actually asked trading standards departments round the country whether they can take this on, or are we simply to understand that it will later notify the trading standards departments that this subordinate legislation has been passed? It goes into innumerable types of investigation that they will have to enforce—chemical levels in crops, seeds and food, pesticides, cosmetics, grades of animal feedstuff, and so on. We never hear whether these things are enforced, and we never hear whether the trading standards departments say that they are able to do it. I do not know, but I have been to a number of trading standards departments, and I know that they are very stretched as it is.
Are the Government therefore satisfied that the people who are supposed to enforce these requirements do so? What are the figures? We do not know. We have never been told. They do not turn up in the Home Office statistics. We do not know whether this is simply an exercise on paper to which no one pays the smallest attention. It would be very interesting to know more detail about that. Then there is the public. The Government say, in their response to the report at paragraph 38, that they are committed to ensuring that consultation exercises are accessible to all relevant “stakeholders”—again—whether they are citizens, businesses, charities or voluntary groups. The Cabinet Office code of practice on consultation emphasises the importance of making special efforts to reach certain stakeholders, such as small businesses, children, consumers, and those from minority groups. It can be done by public surveys, focus groups, regional events, and so on. Is it? We are not told. We see a few examples of it, but not very many. An enormous number of these instruments affect individual members of the public, and I am very uncertain whether they have any idea that these instruments have been passed and that they will affect their lives.
There was one example in the bundle of papers that we had at yesterday’s meeting about compensation claim management. The Explanatory Memorandum says that the sectors intended to be regulated were announced during the passage of the Act and that the Government consulted last July and August. There was a series of meetings with key stakeholders. Who were they? Did they include the people who are dissatisfied, for instance, with pneumoconiosis claims, who we know have been trying to get better justice round the country? Are they key stakeholders? We are not told whether they were consulted and, if so, what they said.
It really is not good enough that the process of consultation is so obscured. I very much hope that the noble Lord, Lord Bassam, if he cannot do it today, will at any rate say something later about this and be able to reassure us. If people like that do not go to the workshops, do not go to the meetings and do not go to the focus groups because they are not invited, their point of view will not be taken into account. That is one point about consultation.
The other thing that is missing at the moment is any account of the results. We are told that some changes have been made. Is that the replacement of a semi-colon, or is it a much more substantial change in the text of the instrument? I am not sure that the Merits Committee quite made that point in paragraph 11 but, if it did not, I think that we have learnt more since then and I believe it to be a valid point which requires attention now. After all, we learnt in the Legislative and Regulatory Reform Act that transparency is a key concept in the Cabinet Office. If that is so, the sort of improvement that I have just suggested must be a small price to pay for not having to go into detailed examination and amendment of the instrument when it comes before Parliament.
I shall be brief on my last point because it has already been covered by previous speakers, including the noble Lord, Lord Filkin. As the noble Lord said, it is absolutely true that, whatever the European Communities Act may say about consultation, it is too late once the European instrument has been made and has to be transposed in this country. At that stage, it cannot be changed, however much consultation you engage in, and possibly you will simply be able to make some minor alterations around the edges. The noble Lord was right: it may have been very difficult for him as a Minister, but he took the right approach if he tried to get consultation at the early stage before going to Brussels to meet the other state delegations and discuss the proposed instrument. Such action would give us the basis of some sort of view from the stakeholders, whoever they may be, and then perhaps we would not be so upset if there was less opportunity for meaningful consultation when the instrument came back to be transposed.
I have concentrated on consultation because I believe that it is the essence of improving the standard of these instruments. I hope that we shall go on imploring the Government to improve their act on this matter.
My Lords, some 18 months on the Merits Committee provided a chance to reflect not only on process but on wider issues which face Parliament. The volume of domestic primary and European legislation over the past 10 years has, as has already been referred to, led to a doubling in the length of manuals setting out the state of the law. The Merits Committee considers more than 1,000 regulations each year and, although the net addition to the total is considerably smaller, nevertheless the appetite for regulations persists. There are some 60 order-making powers in the Bill that was read for the second time in this House this afternoon.
The impact on institutions and the public has been given some recognition. The Better Regulation Executive has been set up, as has the Better Regulation Commission. We now have what remains of the Legislative and Regulatory Reform Act, during the passage of which the Minister several times told the House that, if deregulation was wanted, the Act would achieve it. We shall see how busy the Delegated Powers and Regulatory Reform Committee becomes.
This mounting pile of regulation is, I believe, a major contributor to the worrying trend of public indifference to our democratic process; nor would much necessarily follow from a fuller explanation of the importance and system of secondary legislation. Indeed, given its complexity and detail, there might well be greater disenchantment as people spotted unresolved policy dilemmas and did not see much sign that they were being tackled. For example, business consistently says that it is over-regulated both by the number of regulations and by what has to be done to comply. Indeed, Parliament may well need to achieve a greater understanding of what people have to do to comply. Simpler, shorter and less frequent reporting would reduce burdens.
It follows that, although there is some awareness in both London and Brussels that business has a case and that Europe’s competitive position, and that of the United Kingdom, is weakening, there is no certainty—is there even a likelihood?—that those who like and lobby for more regulation will take heed. It must be doubtful, for the search for villains is the daily fare of pressure groups, and the media delight in feeding their addiction.
Here lies the dilemma, because the search for the perfectly regulated level playing field, with penalties for all infringements, runs directly counter to the market-driven dynamic of business. Business would always tilt the playing field if it could. If regulation is too prescriptive, it flies in the face of comparative advantage and product differentiation. To combat all such levelling, business will be less open and as ingenious as possible in coping with and outflanking regulation, while staying—just—within the rules. The business operators in the field will always know things which the politicians and administrators do not, and, when that becomes clear, the temptation is to tighten up. Then we face a self-reinforcing process, which, to some extent, may well have happened already. Now, we await deregulation or, perhaps more realistically, less and lighter regulation, which will not come just as a result of changed—shall I say “better”?—procedures; a change in political direction is also needed.
In a quite different category comes regulation designed to be in the interests of the most vulnerable members of society. I am not sure how often Ministers or, indeed, Members of this House would confidently tell an individual that he or she was “most vulnerable”. It is not a flattering description but has become a catch-all to refer, for example, to the 10 million people classified as disabled, to all those people over a certain age who live alone or to retired miners who have claims for compensation. The recent Compensation Act relies heavily on regulation in the interests of the most vulnerable, and I suppose that similar thinking lies behind the drive towards home information packs.
The dilemma here is that society is too diverse. Its standards of living and education—rising, as we hope and expect—spread so widely that many people who might qualify under departmental rules will neither see themselves as most vulnerable nor wish to be described as such. It is, in fact, undemocratic to compartmentalise society.
Here again, much careful thought is needed about what will be appropriate and acceptable within the very varied expectations of the many. It is not enough to listen to the vocal few; nor will this issue be tackled to the benefit of the public interest by process alone. It needs political leadership and direction because the five accepted principles of proportionality, accountability, consistency, transparency and targeting, sensible as they are, can be and are being interpreted in many different ways in default of clear policy.
It would be good to be assured that, when we write our next report, we will record continuous improvement in procedure and will be able to identify from the Explanatory Memoranda in front of us policy clarification.
My Lords, it is with great pleasure that I take part in this debate, although I do not plan to speak for long. I shall refer to the report, but I hope that the House will forgive me if I indulge in a little nostalgia.
Having worked here in my party’s Whips’ Office since 1977, I have watched with some alarm the growth in the importance of legislation by statutory instrument. It was not the volume of statutory instruments that caused that alarm, but the fact that much secondary legislation was being created about matters that some Peers believed should more properly be contained in primary legislation and, particularly, that those matters should be amendable by Parliament.
A few voices crying in the wilderness drew attention to that unsatisfactory state of affairs. One was that of my noble friend Lord Hooson, whose speech on 19 December 1984, in a debate about the parliamentary role of the House of Lords, was strangely familiar when I looked it up the other day. I shall quote one sentence, which I believe I may have written. He stated:
“It seems to me that the scope and quality of powers reserved to Ministers in vital Bills for changing the state of things by means of statutory instruments indicates a fairly determined effort to bypass effective parliamentary scrutiny, particularly in your Lordships' House”.—[Official Report, 19/12/84; col. 661.]
Much water has flowed under the bridge since those days. In 1992, the Jellicoe committee recommended the establishment of the Delegated Powers Scrutiny Committee to examine whether the Government were using delegated legislation appropriately in new Bills. Since 2003, that committee’s successor, the equally powerful Delegated Powers and Regulatory Reform Committee, has been joined by the Merits Committee, which I am very pleased to be joining this Session.
I found the report that we are debating to be a model of lucidity. Its recommendations are constructive, although I do not believe that they will all be acted on with the alacrity and enthusiasm that the committee would perhaps like. The need for action was borne out by much of the evidence.
Like my noble friend Lord Methuen, I was struck by the written evidence of Mrs Linda Weeks, the learning support centre manager at Kent Police College. She provides monthly updates on new legislation that she obtains from Parliament and from other sources, but states that she would very much like more notice of instruments coming into force, particularly as the press often know about these things in advance. I wonder how on Earth police officers keep track of these things when they suddenly find out via the press that they have new powers as from that very day.
Mrs Weeks went on to say that there could often be confusion when parts of Acts come into force—sometimes only part of a subsection. She wrote tellingly of all the various criminal justice Acts—for example, those of 1972, 1982, 1988 and 1991, all of which have parts in force and parts not in force. I repeat my noble friend’s astonishment that part of an old Act might suddenly be brought into effect in 21 days’ time. Her evidence makes the case for the report’s recommendation that annual statutory instrument plans by government departments should be compiled and published to give valuable long-range warning to those affected.
The other matter that I was pleased to read about in the report was the emphasis on clear Explanatory Notes. Many is the time that I have looked to those for enlightenment, only to be completely daunted by complicated cross-referencing and minimal explanation that give absolutely nothing away as to the meaning of the instrument. I fervently endorse the committee’s recommendation that statutory instruments and their Explanatory Notes in particular should be subjected to review by a senior official—although a junior official might better mirror the general public—who is,
“sufficiently detached from the subject in question to be able to assess its intelligibility to the layman reader”.
Finally, I pay tribute to all those Peers who have in the past 30 years to my knowledge flagged up the importance of the proper scrutiny of secondary legislation, and particularly to those no longer with us, including Lord Rippon and Lord Simon of Glaisdale and, from these Benches, the much missed Lord Russell. I am very honoured to have a place on this important committee.
My Lords, I have worked man and boy in this building for 42 years and I spent a great many of them doing everything that I could to keep as far away as possible from secondary legislation. I did that successfully until three years ago when, out of nothing else but love for my Chief Whip, I agreed to serve on this new committee. Years ago, there was a time when I was responsible in another place for recommending Members of the rather desultory Statutory Instruments Committee that met down the other end of the Corridor. Mercifully, a great and good man, Sir Graham Page, whom some of my colleagues may remember, was the ultimate guru on statutory instruments and I was delighted to be able to recommend his appointment on to that committee down the Corridor.
I have now spent some three years as a Member of this committee and have found it immensely absorbing. We have been graced by two helpful and patient chairmen—I was particularly glad to see the noble Lord, Lord Hunt, pop in for a few moments earlier in this debate. We have been given outstanding help by our clerks and advisers. Although I am not allowed to refer to people outside the House, they sit not as my personal advisers, but as advisers to the whole committee.
One matter that has struck me forcefully in those three years is that even in this building there are few who realise the massive scale and scope of secondary legislation. I am glad that the committee has concentrated its thoughts and work over these first years by looking at secondary legislation in terms of how it will affect the individual citizen, the small businessman, the charity and the local authority. This is exactly the way that we should conduct ourselves, because secondary legislation often affects the individual citizen, the individual business and the small organisation much more heavily than does primary legislation. Parliament as a whole has been woefully inadequate over the years in the way in which it deals with secondary legislation.
I want to talk about what I call “the three cons”, all of which have been referred to. I do not mean confidence tricks; I mean consultation, consolidation and content. First, I cannot add very much to the wise things that have been said in the field of consultation. I believe that the work of the committee has already concentrated the minds of most departments on the need for consultation and the need to explain the result of that consultation in detail to Parliament. The noble Viscount, Lord Colville, spoke about the need to be more precise in these matters. Over the past few years, the quality of Explanatory Memoranda has improved notably. I agree with those who have said that proper and full consolidation is likely to mean that the legislation itself will be more sensible and workable.
On consolidation, briefly, I was struck by the words of the noble Baroness, Lady Thomas of Winchester, just a moment ago. She said that she remembers having pored over some of these instruments and being able to make neither head nor tail of them; I hope that is what she meant—she nods. Looking at some of these things, you sometimes cannot begin to understand what they are all about. There is often a desperate need for more regular consolidation; you cannot say that there should be consolidation every year, or even every few years, but there must be much more regular consolidation of legislation than at present. So many people and organisations do not have the time, the facilities or the expertise to go progressively back into prior legislation to uncover all the implications.
The third “con” is content. In my time on the committee, I have continually drawn attention to sloppy drafting, which has led to orders being reprinted free of charge after an error has been found in the original drafting. It is lamentable to see, on the back of our report, that no fewer than 62 negative instruments over the last Parliament—March 2005 to 9 November, a week or two ago—had to be reprinted. In addition, 21 instruments were laid including a correction, bringing the total up to 83. A number of departments are woefully inadequate when it comes to proper, careful, accurate drafting. The noble Lord, Lord Filkin, said that he was not going to refer to departments. I am afraid that I shall be less delicate.
Four departments are really awful culprits. One in 16 of Defra’s orders has had to be reprinted free of charge. The figure for the Home Office is one in 15 and the figure for the Department of Health is one in 14. One in 12 orders from the Department for Work and Pensions—I cannot believe it—has contained errors. It is absolutely infuriating for the customers—the public and organisations that must note and deal with these things. When they have been through one, it is infuriating to find that a mess has been made of the drafting and that they must start considering what the orders are about all over again. It is not good enough. I hope that those four departments will take careful note of the black list on the back of our report, of which they should be most embarrassed.
Some departments are better than others, but I must draw attention to two particular culprits. I declare an interest in Defra, as I was once a Minister at the Ministry of Agriculture, Fisheries and Food. I am shamed by how that department conducts itself nowadays. I will not weary your Lordships tonight with the dreadful scandal that it has brought about with the single farm payment, with the Rural Payments Agency continually in a state of collapse. The chief executive, our friend and colleague, was quoted in the press the other day as saying that he had been fired because of the mess. Strangely, the Secretary of State responsible for all of it became the Foreign Secretary. The Government conduct themselves in funny ways. I also note that, in one of our documents before the House, Defra is again a disgraceful culprit in laying instruments where the date in force is less than 21 days after the laying date. Of the 61 orders that have broken the 21-day rule, Defra is responsible for no fewer than 11. It certainly ought to be very ashamed indeed.
Finally, the Home Office seems to show very little respect for Parliament as a whole. I shall cite two examples demonstrating its apparent indifference and contempt. In your Lordships’ House, the noble Lord, Lord Lester of Herne Hill, put down two Questions for Written Answer on 5 June. The rule is that they should be answered within two weeks. It took the Home Office until the very last day of the last Session, in excess of 22 weeks, to answer those Questions. That is the most lamentable record of idleness and contempt from that woeful department.
I cite another case, from just over a year ago, where the clerk of our committee wrote to the Home Office’s parliamentary and briefing delivery unit about four instruments that the committee was concerned about. It took this person, a parliamentary adviser whom I shall not name, just short of three weeks to reply to this, saying,
“the Home Office Parliamentary Briefing and Delivery Unit play no part in the drafting or laying of delegated legislation. This is dealt with by the Legal Advisers Branch and our role is to arrange and oversee the parliamentary debates required for Affirmative Orders or prayed against Negative Orders after they have been laid”.
This is three weeks after we approached him, and I cannot remember whether the orders were held in abeyance or not. Then he has the impertinence to end his letter saying,
“having now received advice from the Legal Adviser’s Branch on this, I am advised that it is to these officials you should be approaching for the information sought”.
The idle beggar did not even have the courtesy to say, “I have passed your queries on to them and hope they will respond very soon”. That department is an absolute scandal in Whitehall. I hope somebody is doing something about it. It keeps writing letters saying, “We are trying to do better; we are going to do better”. Yet it almost exactly analogous to a schoolboy I heard of some time ago, whose end-of-term report said, “This boy sets himself lamentably low standards and usually fails to attain them”.
The committee must continue this work. The importance of secondary legislation is huge, and this committee is doing a fine job in getting departments to help Parliament and the public to better understand the implications of these instruments.
My Lords, I apologise to the noble Lord, Lord Methuen, for barging in ahead of him. That was an example of failure to self-regulate, and I am grateful to the Front Bench for regulating me appropriately. I wished to indicate that, when I was the Minister in the Department of Employment responsible for health and safety, I thought it might be a good idea to read all the regulations that applied to small and medium-sized businesses. After about three months, no regulations had arrived, and when I made queries I was told that the Health and Safety Executive would have to hire a special van to deliver them. That illustrates the extent of the problem.
I am greatly encouraged by this report, for a number of reasons that were eloquently spelt out by my noble friend Lord Norton of Louth. It makes a series of recommendations which, if taken seriously and implemented with zeal by Ministers in their departments, would make a huge difference. I am not making a partisan point when I say that the Government’s response is a little disappointing. I understand why it is disappointing; it is because it is part of the culture of government, whichever party is in power. I plead guilty to it. There is a story in the newspapers, there is a campaign or there is a need for action, so Ministers give a commitment that they will produce a Bill. The Bill is rushed through the House; it comes to this place; the detail has not been thought through and is left to secondary legislation. The caravan moves on, and Ministers are no longer interested in the detail.
Wherever I go in the country—not just in business, but in sport or other aspects of everyday life—I see that there is a real head of steam about regulation and a resentment that it seems to be out of touch and insensitive. The Merits Committee is an innovation and an example of the sort of work that is done by this House of which we should be proud, but around the Chamber its importance is not always recognised. This is one of the most important reports to come before the House. In terms of the impact on the country, this issue is of the greatest importance and is the single issue that is causing concern in business and throughout society, so I welcome the report.
There is a tendency for us to assume, when looking at regulation, that it is all the fault of Europe. People will say, often in error, that regulations that they do not like were produced by the European Union. It has also been suggested that the problem is caused by civil servants in government departments gold-plating legislation—that may be partly true. The noble Lord, Lord Filkin, made the extraordinarily important point that it is difficult to reverse decisions of the Council of Ministers. It is difficult not only to get agreement on a change but to get agreement even to put it on the agenda. That is a fundamental failure of the operation of the European Union.
I have only one more minute, but I want to say to all the members of the committee that their work is valued greatly by those of us who are concerned about the problem of regulation, and I hope that the Government will think about instructing Ministers to take these recommendations seriously and to change the culture by which they operate. I know what it is like to get four red boxes at night, with the statutory instruments at the bottom. The tendency is just to sign them off and not read through them, even if you can understand what they are about. If the Prime Minister is serious, he and the whole Government should read this report, tell all the Permanent Secretaries that they should act on its recommendations and hold them to account for so doing.
My Lords, I am pleased to be able to take part in this debate, which was so ably introduced by our chairman, the noble Lord, Lord Filkin. I have been on the Merits Committee for only a relatively short time, but two things struck me very forcibly when I became a member. One has already been mentioned by the noble Lord, Lord Jopling: the incredible workload of the committee advisers. They get on top of a huge raft of information. There are thick agendas each week, and they get on top of them and are always there, being very helpful and giving us excellent advice. Secondly, individual members of the committee—and I am sorry that, at the last minute, the noble Lord, Lord Armstrong, was unable to be with us—have a wealth of experience and knowledge.
I have been a Front-Bench spokesman for the Liberal Democrats for most of my parliamentary career, here and in another place, so the majority of my time has been spent on primary legislation. However, to echo the comments of the noble Lord, Lord Jopling, it has been fascinating to look closely at how secondary legislation is scrutinised and dealt with. As a Front-Bencher, I rarely had much time for it, and in this House, where I am unable to pay a researcher to work for me full time, trying to keep up with the progress of secondary legislation has been difficult. Our committee is a good aid for people in this House.
The last Bill that I dealt with as a Front-Bencher was the Housing Act 2004, which was so thick that I decided that I did not want to be a Front-Bencher any more. The trouble with local government and housing is that those concerned have to fight to get time in Parliament therefore the Bills become very thick. As with many Bills, the detail of large parts of secondary legislation was not available during the passage of the Bill, which meant that, after the Act was passed in 2004, a large number of statutory instruments came forward. They were still coming forward when I arrived on the committee in 2006, which was quite helpful because at least I knew about them already. We have discussed the required processes and the importance of consultation, which was addressed by the noble Lord, Lord Jopling, and the noble Viscount, Lord Colville of Culross, who explained how we should try to be better at it. However, what I described illustrates our passion as a Parliament for long, complicated legislation.
I have not clocked up 42 years like the noble Lord, Lord Jopling. I discovered yesterday that the noble Viscount has clocked up 52 years. I have done only 13 years across the two Houses, but in that time I have seen huge growth in the amount of legislation. In this Session’s Queen’s Speech we have the 11th education Bill, the 12th health and social care Bill, the 8th terrorism Bill and the 24th criminal justice Bill since Labour came into Government in 1997. What is more, 52 sections and five schedules of the Criminal Justice Act 2003 have still not been brought into force, two sections were repealed without having been brought into force and a further three were brought into force and then repealed, so some of the comments made by the noble Lord, Lord Jopling, are borne out in my experience. Since 1997, 365 Acts have been passed and there have been 32,000 statutory instruments, so there has been no shortage of work for our committee, and there will be lots to come.
Our chairman, the noble Lord, Lord Filkin, referred to the Prime Minister wanting to do something about regulation, and we were all disappointed by the evidence from the Better Regulation Task Force to our committee. Despite its intentions, it did not seem to be taking this terribly seriously, so one of the things that I particularly support in our committee’s report is that we urge all government departments to do something about consolidation. We have heard graphic descriptions of the problems of trying to understand Bills that amend this, that and the other, going a long way back. Some departments do better than others. As the noble Lord, Lord Filkin, said, we have been very critical, but we try to praise people when they get it right. There is no doubt that our committee and the House of Lords play a vital role in scrutinising secondary legislation, as reflected in the comments of the noble Lord, Lord Norton of Louth.
When writing this speech I was reminded of the comments of the noble and learned Lord the Lord Chancellor last week, when he was talking to us about the future of the House. He said:
“Members of this House, of all parties and of none, are loyal and dedicated servants of Parliament”.
Every week there are jolly dedicated members on the Merits of Statutory Instruments Select Committee, I can tell you. The Lord Chancellor continued:
“They attend, they stay, they vote—and they do so, day after day, night after night, very often little noticed by the other place or the wider public. But without those efforts, that consistency and that application, regardless of party affiliation, the legislative process in our Parliament would not and could not work”.—[Official Report, 23/11/06; col. 439.]
His words are very relevant to the debate tonight.
How we scrutinise legislation has been looked at recently not only by our own committee but also by the Joint Committee on Conventions. The noble Lord, Lord Norton of Louth, referred to that as well. He and other noble Lords pointed out that, although we often have debates on instruments and Ministers are required to reply—sometimes very constructively and at other times not quite so constructively—the House can reject a statutory instrument by Motion. It is not the usual practice; more often than not it is a non-fatal Motion. Even if we win a vote on a non-fatal Motion, the Government are completely at liberty to ignore what we have said. Sometimes they do take notice—I give praise where it is due.
The Joint Committee on Conventions addressed that matter and the noble Lord, Lord Norton of Louth, referred to it. The committee also obliquely referred to the fact that we are not allowed to amend statutory instruments here. The noble Viscount, Lord Colville of Culross, thought that we would grind to a halt if we tried to do that, but the matter was raised in the committee’s report and we should look at it again when considering Lords reform. I think that many of us would agree that, if the process is not working properly, we should use our powers more boldly. That came out in much of the evidence to the Joint Committee on Conventions. I remind the House that that committee has members from both Houses. That is very important.
I hope that this short debate will inform the House and a wider audience of the important and very useful role played by the Merits of Statutory Instruments Committee. As the noble Lord, Lord Forsyth, said, many people do not understand how secondary legislation operates. Every instrument we deal with affects individuals; the committee was very conscious of that in making its recommendations. We need to ensure that the laws are fair and effective and that those affected by them have the information they need to respond in the right way. One of our members explained graphically the terrible legal difficulties for people who do not understand that they might be committing a heinous crime and who must try to find their way through the legislation to discover what it is they have done.
The committee has been trying to find ways to get its reports circulated more widely. This week I rang the local government solicitor on Northumberland County Council, of which I am now a member. In our conversation it emerged that he reads our reports weekly. That was very encouraging. I am not surprised, because a great deal of what passes through our committee affects local government.
As we start this new Session, membership of the committee has changed slightly. I am very pleased to be able to welcome my noble friend Lady Thomas of Winchester. I am sure noble Lords will agree with me that she has added greatly to our debate. I am sure that she will be an enthusiastic member of the committee. There will clearly be plenty of business this Session. As we say on page 3 of our most recent report about the work of the previous Session,
“Despite this workload, the Committee has maintained good humour and a consensual approach”.
I am sure we will continue to do so under the very good leadership of our chairman, the noble Lord, Lord Filkin.
Tonight we have seen around the Chamber cross-party consensus about where we go on this. I sincerely hope that we will get a satisfactory response from the Government and that they will look again at our recommendations. There has been huge agreement around the Chamber tonight.
My Lords, many years ago I was asked by the then government Chief Whip, my noble friend Lord Denham, to serve on the Joint Committee on Statutory Instruments. Being a dutiful and relatively new Member of this House of course I agreed, only to find that on that committee there was no discussion of the merits of the statutory instruments, but it was merely a question of looking at their vires. It was all what one might call pretty dry stuff. I think that it was the noble Lord, Lord Filkin, who referred to his own committee as being something of a gulag. Well, the Joint Committee on Statutory Instruments in those days was positively the outer Siberia of committees. I discovered that even more, like my noble friend Lord Jopling, many years later when I was Chief Whip and trying to find people to go on to that committee. One really had to approach them at a very early stage in their career in this House if they were to be persuaded to serve on it.
I remember one or two keen enthusiasts. The noble Baroness, Lady Thomas of Winchester, will remember the late Lord Airedale, who was certainly a very enthusiastic member of that committee, and probably kept it going. But its particular problem was that it could not discuss the merits of the statutory instruments put before us. That is why I welcome the fact that this committee was created some years ago. I am very grateful for the explanation we have had from its chairman, the noble Lord, Lord Filkin, about exactly what it does and how it goes about it.
I would like from these Benches to pay our tribute to the work of that committee. One particular innovation it has brought in in the way committees are run is that regular e-mails are sent out. I do not know whether they are sent to all Members of the House or only to those who request them—I must have requested them at some stage because I receive them—but to receive e-mails highlighting the statutory instruments to which the committee wants to draw the House’s attention is very useful, and leads one to go down to get hold of the statutory instrument if it is relevant to one’s sphere of work in the House.
I remember, when first in opposition, sharing an office with my late friend Lord Mackay of Ardbrecknish, finding as one went through the Order Paper—this was especially true when we returned after the long Summer Recess—that a vast number of statutory instruments were laid. We had no idea where to start or how to set about doing the proper job that anyone in opposition or, for that matter, anyone in this House other than those on the government Front Bench, should do—the proper job of scrutinising what comes before us—because of the sheer size and number of instruments brought before the House.
That brings me to my first point, which is that, as we all know, there is far too much delegated, secondary legislation. It is easy to say that; we have all said it; and those of us who have been in government, like my noble friends Lord Forsyth and Lord Jopling, have probably been as guilty as anyone else in putting it about. But it is still worth reminding the Government again, again and again that they are the guilty ones and must do something to reduce it.
To give just one example from the primary legislation that we were debating only this afternoon, we have a Bill, the Tribunals, Courts and Enforcement Bill. It is a thick, heavy, large Bill. It has 290 pages; it has 140 clauses; it has 23 schedules. But it still manages rightly to be described by my noble friend Lord Kingsland at Second Reading, only a few hours ago, as a skeleton Bill. That was not denied by the Government. Far too much in it is left to secondary legislation. I thought that he was probably exaggerating, so I opened it at random. First, I opened page 130 in Schedule 5. I counted up to 12 occurrences of:
“Rules may make provision for”.
It may be quite appropriate that rules should be made, but it is jolly difficult to consider all these matters in advance of seeing the rules. Those may be matters that should quite rightly be left to secondary legislation.
Turning to page 86 of the Bill—Clauses 103 and 104—in a short space, without trying to, I found “Regulations may make” or “Regulations under this section” four times. No doubt if we went through the rest of the Bill, we would find even more and I am sure that someone fairly assiduous will, by the time that the Bill goes into Committee, have counted the number of order-making powers that the Government are giving themselves and can then offer some advice to the Merits of Statutory Instruments Committee on how much extra work that Bill will provide in due course.
I hope that the Government realise that not only is that unsatisfactory in that it makes it harder for end-users to know what will come out, but it makes it very difficult to discuss the primary legislation—the Bill itself—when all we have is a skeleton on which will be tacked all the orders in due course. I hope that the Government will take some note of that.
I welcome the fact that the Government responded to the 29th report of the Merits of Statutory Instruments Committee. I must say that I found it difficult to find that response. In fact, when I went to the Printed Paper Office, I was assured that it did not exist. I was given the response to another report. So, as I always do, I went to the Library, which is rather good at these things, and someone dug out the response for me. There it was in some other volume, where it was supposed to be.
I had a sneaking suspicion that the Government would not mind if their response was not noticed that much. It has not received what one would call a wholehearted welcome. The words that I seem to remember being used by the noble Lord, Lord Filkin, were that the committee's response was “somewhat lukewarm”. I think that another expression that he used was that the committee was “not exactly overwhelmed” by the government response. Perhaps I misunderstood him; but listening to the reaction of other noble Lords who have spoken in the debate, his words might have been an understatement. The noble Lord made, if I may say so, an excellent speech but one that was moderate, calm and considered. He was very careful, as he put it, not to name names. I was grateful that my noble friend Lord Jopling took it on himself to name names, and mentioned what we might call some of the guilty departments. It is quite right that they should be named, and one hopes that will have some effect.
I have been only the second non-member of the committee to speak in this debate, and I am grateful to have been joined by my noble friend Lord Forsyth, who brings a great deal of experience to these matters. I think both of us would hope that many other Members of the House who are not members of the committee will take part in any future debate, or even if not taking part in the debate will listen to it. It is rather sad that it is happening late at night, and that there are very few Members here. We would like the Government to be held properly to account, and to hear their response in due course.
My noble friend stressed, and the noble Baroness, Lady Maddock, echoed, the great importance of the report. Others have underlined the weakness of the Government’s response. I simply hope that we can now have a slightly stronger response from the Minister on behalf of the Government, and an assurance from him that, even after his response, the Government will continue to take notice of the report and to push all departments—in particular the guilty departments named by my noble friend Lord Jopling—to get their act together and try to ensure that there is proper consultation on statutory instruments, and that statutory instruments are properly drafted, properly brought before the House, and can be used by everyone, whether or not they are called stakeholders, in due course.
My Lords, I thank my noble friend Lord Filkin for introducing his report, and for the very constructive and challenging way in which he did so. I also thank all other members of the committee who have attended the debate this evening and who have made their telling contributions. It might surprise some Members of your Lordships’ House to know that I have enjoyed listening to the comments and commentary on the content of the report, and have found the debate very valuable.
I reassure my noble friend Lord Filkin that I, and other members of the Government, do not see the Merits of Statutory Instruments Committee as a gulag. That denial is very important and we should have it on the record because the committee is certainly not a gulag. The Merits Committee, with the Delegated Powers and Regulatory Reform Committee, does first-rate work. Indeed, it does exactly what my noble friend says it should do: it considers, and makes telling points about, whether key statutory instruments achieve the policy objectives behind them—something that is very important to the development and implementation of policy.
I should also tell your Lordships’ House that I struggled this morning when I was explaining to my 16 year-old daughter Lauren, who is a politics student, what the content of the debate might be. She was not entirely convinced that my time would be well spent, but I intend to return home this evening and advise her that she was quite wrong and that an urgent study of Hansard will demonstrate that to her satisfaction.
To the debate. It is worth noting that, since the committee published its report and following a machinery of government change, ministerial responsibility for the management of the statutory instruments procedures recently transferred to the Department for Constitutional Affairs as a consequence of the merger of Her Majesty’s Stationery Office, the Office of Public Sector Information and the National Archives. I suppose I should take some joy in that, because it means that I may no longer have to respond to these points. Having heard the quality of the debate, however, I should add that that would be a disappointment for me. As a result of this, many of the issues discussed in the committee’s report will henceforth be matters for the DCA, as I said.
It is many years since any parliamentary committee has carried out such a far-reaching inquiry into the arrangements for the management of secondary legislation. For that reason, if for no other, the committee must be congratulated on its work, and the Government record their gratitude for a report that addressed a wide range of issues and highlighted a number of areas in which the committee believes improvements will be required. These are important issues and, although the House will not expect the Government fully to accept all the committee’s recommendations, we acknowledge the importance of the issues. In our formal written response and in our response this evening, we also acknowledge the value of the recommendations and conclusions that the committee made. Noble Lords today have given very good voice to those.
This debate comes at a highly opportune time following the Prime Minister’s speech to the CBI, to which a number of noble Lords referred, and the reports that the Chancellor of the Exchequer published yesterday. The Prime Minister told industry leaders at the CBI conference that the Government are embarking on one of the most radical programmes of regulatory reform in the world. He announced to the conference that government departments will, as the noble Lord, Lord Forsyth, said, plan to reduce by 25 per cent the red tape that they oversee through form-filling, inspections and record-keeping, thus reducing the administrative burdens on business and third-sector organisations, which we believe will offer savings worth up to £2.2 billion. These new measures will be formally launched when 18 departments and regulators publish their simplification plans, which many noble Lords seek, before the end of the year.
Yesterday, the Chancellor published the report from the noble and learned Lord, Lord Davidson, to which the noble Viscount, Lord Colville, referred, on his review of the implementation of EU regulations. Its overall findings are that inappropriate gold-plating of European legislation is perhaps not as widespread as is sometimes claimed. The progress report was published on the implementation of the Hampton report relating to enforcement and compliance. This week, the Cabinet Office has also published the report of the Macrory Review of Regulatory Penalties, which makes a number of recommendations that aim to ensure that regulators have access to a flexible set of modern, fit-for-purpose sanctioning tools that are consistent with the risk-based approach to enforcement outlined by Philip Hampton. In his telling contribution, the noble Viscount, Lord Colville, referred to the fact that these issues were discussed in detail. I hope that the House will have the opportunity to discuss these reports on another occasion and I shall therefore concentrate on the report from the Merits Committee.
The Government fully accept that, although much delegated legislation is not newsworthy, it may none the less be highly significant in its impact on the citizen, business and the voluntary sector. It is important that all secondary legislation is properly thought through and is of a consistently high quality. The primary legislation that Parliament puts in place generally provides a framework and secondary legislation is required to put much flesh on this before practical effect can be given to Parliament’s intentions. One example is the major reforms that Parliament enacted in relation to the introduction of civil partnerships, which required more than 40 separate instruments to effect the changes necessary to the various elements of law that were impacted before the benefits of those reforms could be realised for the benefit of many citizens across the country.
Over recent years, the Government have sought to ensure that the quality of secondary legislation is maintained and improved. We have also made a key commitment to improving the process of regulation so that the impact on businesses and the voluntary sector can be reduced. We were therefore pleased to note the committee’s conclusion that we had put in place resources to give effect to that commitment. The committee also concluded that much of the regulation with which it was concerned lives up to the prospectus for better regulation.
The Government are concerned to make improvements in the process and to aid proper and effective parliamentary scrutiny. One improvement has been made in relation to the supply of Explanatory Memoranda, which were introduced for affirmative instruments in 2001 and extended to negative instruments in 2004. We have been anxious to ensure that the memoranda provide noble Lords and the Merits and Joint Committees with the information that is required so that the task of scrutinising instruments can be thoroughly conducted. I was pleased to hear praise for the improvements in Explanatory Memoranda made by the noble Lord, Lord Jopling, and the noble Baroness, Lady Thomas of Winchester.
When the committee produced its report, it noted that there were examples, however, of a lack of clarity in some memoranda. We note though that in its end-of-Session review the committee has confirmed that the Explanatory Memoranda that departments provide are generally of a high standard. The Government are committed to ensuring that any instances of failure to meet these standards are eliminated. New guidance on their preparation, which officials from HMSO have agreed with the committee’s officials, should assist in that task. That guidance features in the new edition of Statutory Instrument Practice, which is effectively the bible with which departments are required to comply. This guidance is kept under constant review and is reissued periodically. Moreover, it can be downloaded quite readily from the OPSI website, and copies are available in the Library.
The committee suggested that all memoranda should be reviewed by someone who is sufficiently detached from the subject to be able to assess their intelligibility to lay people. That recommendation has been adopted in a number of instances and is now being considered by all departments.
My noble friend Lord Filkin was very concerned to ensure that the case for central co-ordination of the process was understood in terms of whether there should be some mechanism put in place for overseeing departmental programmes. The committee made a number of recommendations about how departments should manage their secondary legislation, the production of annual management plans including milestones to be met, and the publication of annual statements of their projected secondary legislative programme. The committee also proposed that departmental lists of planned secondary legislation should be consolidated into a single list in order to establish whether the resultant Whitehall-wide programme was likely to be manageable at the stage of parliamentary scrutiny.
It should be emphasised that the role of the centre is not comparable to its role in the management of the programme for primary legislation. The Government do not believe that it would be practical to have one Minister responsible for co-ordination across government. Individual Secretaries of State are ultimately responsible and best able to manage their own departments’ secondary legislation.
My Lords, of course the Prime Minister takes the lead in those matters, but as I am sure the noble Lord will appreciate, simply to assert that the Prime Minister should be responsible for the detail of secondary legislation when Secretaries of State are far more closely connected to the need for it has to be understood.
My Lords, the Minister has said that the report suggests that one person should be in charge over the whole of government. If he were to look towards the end of our report, I think he would find that what we said was that we would like one person, a senior official, in each department to be in charge of the production of statutory instruments. As I recall, I do not think we asked for one person over the whole of government to be in charge. While there are organisations doing this already, what we would like to see is one person in each department in overall charge.
My Lords, I understand the point and it is something I intend to address.
In the December 2004 Pre-Budget Report, the Chancellor announced that the common commencement date initiative would be extended progressively to all domestic regulations with a bearing on business. Under this initiative departments are required to prepare an annual statement, to be issued in January, listing regulations affecting business which they expect to commence on the following 6 April and 1 October. Common commencement dates and the accompanying annual statements help businesses to plan for new regulation, increase awareness of new or amended regulations and give Ministers a strategic overview of departments’ regulation programmes. The introduction of common commencement dates has generally been welcomed by stakeholders, who benefit from the knowledge that the regulations which might affect their businesses will be changed on only two dates each year. Alongside that, many departments whose secondary legislation is not formally subject to common commencement dates have in place alternative commencement dates for some of their statutory instruments which have been agreed in conjunction with stakeholders.
Departments’ timetables for projected legislation can be subject to amendment and revision in response to a wide range of policy developments and external events. Any management plans would of course be subject to substantial and frequent revision. As a result, they are likely to be of limited benefit to either Parliament or stakeholders. To attempt to reduce such plans could accordingly impose a disproportionate burden on departments. Given that and the information already published under the common commencement date initiative, the Government do not think that departments can produce effective detailed management plans for all projected secondary legislation, with such plans being centrally consolidated, but the scope for that will be kept carefully under review. The Government acknowledge the importance of good planning and the use of project management techniques in the statutory instrument process.
The Government acknowledge, too, the committee’s concerns about congestion in the parliamentary scrutiny stage and the bunching of instruments at various times of the year. Every effort is made to give sufficient notice of debates on statutory instruments to enable the committee to report beforehand. A good working relationship has been established between the Government Whips’ Office and the committee, which has enabled both sides to show flexibility in the past year.
We share the committee’s view about the desirability of minimising the bunching of instruments during peak periods in March, July and December. Parliamentary scrutiny of instruments is a key part of the process, and departments need to allow adequate time within their planning, including contingencies, to allow for slippage to ensure that this scrutiny occurs. I emphasise again that bunching is not a new phenomenon; it has occurred under previous Administrations. Improved planning is a key issue for departments but, even if that is achieved, it is unlikely that bunching will be avoided completely.
The Government acknowledge that there is scope for improved management of the statutory instrument process in some departments. The committee’s inquiry has helped Government in bringing this to the attention of those departments. However, even with improved management of the departmental statutory instrument process, the Government do not believe it will be possible to eliminate completely congestion or bunching. Departments make every effort to introduce their secondary legislation within the parliamentary calendar to allow for proper scrutiny and approval. The guidance to departments makes it clear that they must allow time for proper and effective scrutiny. They should avoid laying instruments just ahead of the 21-day minimum period before commencement, avoid laying negative instruments in the summer Recess, and allow sufficient time for instruments subject to affirmative resolution to be considered and reported upon by Select Committees before any Motion to approve can be moved.
The guidance also emphasises that good project management and planning skills are key elements of the common commencement date process and that all key stakeholders, policy divisions, legal teams and parliamentary clerks should be involved in that process.
The committee has been particularly concerned that no instruments are laid before Parliament fewer than 21 days before they are due to come into force unless there are clear and compelling reasons of operational urgency for such action. The new edition of Statutory Instrument Practice emphasises that the 21-day period is a minimum and that, whenever possible, instruments should be laid well in advance of this to allow Parliament to consider their impact. The examples highlighted by the committee of failure to comply with this rule include many instances where it was necessary to take urgent action and where, had it not been taken, the Government would probably have been criticised by noble Lords for their slow response. Such examples included preventive measures for dealing with avian influenza, food import emergency control regulations, export control orders, the application of United Nations measures and sanctions against overseas territories, and instruments implementing Budget announcements where prior notice could not be given. As I understand it, the committee noted in its report that some breaches derived from the need to take that urgent action. If the more recent report on the work of the committee is to be understood clearly, it specifically cited food safety issues as one area where urgency might be required.
On internal departmental controls, the committee recommended that each department should have one member of its top management who is accountable to the relevant Minister for the efficiency and effectiveness of preparing SIs and for ensuring that the finished instruments meet the requirements of good regulation. The noble Lord, Lord Jopling, referred to that. It is the Government’s view that it would not be possible for departments to have a single accountable person along the lines suggested. Each department already has a better regulation champion who works with the department’s better regulation Minister, and many already have a member of their management board carrying out a role broadly similar to that envisaged by the committee.
It is worth pointing out that the circumstances of individual departments in the context of secondary legislation are not all the same, and the way they are structured to handle the process needs to accommodate these differences. Against that background, we acknowledge that there is scope for improvement in the way in which individual departments manage their processes, and the committee's report is helpful in promoting such improvement.
The committee also raised concerns about the nature of the guidance on best practice and the need to ensure that this is followed by departments. Extensive guidance on the SI process is available to officials. The statutory instrument practice and the common commencement dates guidance are very helpful in that regard. There is also the code of practice on consultation, regulatory impact assessment guidance and the transposition guide about how to implement European directives effectively. All that is now linked via the new statutory instrument practice section of the Office of Public Sector Information website. The Government do not feel that it is necessary to add to that guidance. In addition, departmental lawyers can access guidance materials and advice on drafting secondary legislation through the Government Legal Service intranet.
Many noble Lords spoke about the importance and value of consultation and the means of improving it. My noble friend Lord Filkin, in particular, expressed the need for greater emphasis on quality of contact with stakeholders. The noble Viscount, Lord Colville, stressed the importance of a pre-secondary legislative consultative process and of making sure that we consulted effectively with those most affected. One would find it hard to disagree with any of those points; we agree with the committee about the importance of ensuring that consultation requirements are met. The Better Regulation Executive already takes action to achieve this in relation to domestic and European legislation. In addition to working on a day-to-day basis with departments on all aspects of better regulation, including consultation, the BRE reports annually on compliance of these consultation arrangements against the code of practice.
Consulting as early as possible is promoted across government not only for domestic policy work but as a way of assisting Ministers to determine UK positions on EU proposals. The transposition guide states that before a proposal is published, departments should carry out appropriate informal consultation with other government departments and with external stakeholders. The code of practice makes it clear that departments are required to consult fully on instruments implementing EU legislation. Moreover, government departments are required to carry out full impact assessments when preparing to transpose EU law into national law, and the consultation of stakeholders is a significant part of the regulatory impact assessment process. We recognise fully the issues noble Lords have raised about the value and importance of consultation, particularly with regard to measures originating from the EU.
The revised guidance on the preparation of Explanatory Memoranda makes it clear that departments should set out who was consulted, over what period and with what responses. There should also be some analysis of the outcome and the department's policy response to the opinions expressed. A summary of the responses given and an explanation of how the proposal will change in the light of the responses received will generally be included in the regulatory impact assessment which is attached to the Explanatory Memorandum.
On consolidation and simplification, the committee was concerned that the Government should put more impetus behind the process of consolidation and that we should aim as a general rule to publish consolidated electronic versions of each instrument following amendment. There is a distinction to be drawn between formal consolidation—making new legislation—and the publication “informally”, without making a new instrument, of an unofficial text of an instrument taking account of textual amendments that have been made to it in subsequent instruments. The key consideration as to whether an instrument should be consolidated is the convenience and ease of comprehension for users, about which noble Lords were particularly concerned. Consolidation can also make a major contribution to better regulation.
The Government agree that consideration should be given to formal legislative consolidation, both in cases in which there are large numbers of instruments and amending instruments, and when minor changes are made in the principal instrument. The Government will continue to dedicate resources to the task of formally consolidating instruments when departmental Ministers can identify appropriate cases for action. The task of consolidation can be a complex and resource-intensive operation, involving not only the mechanical task of applying amendments but a review of the policy objectives.
I am very grateful to the committee for its report and to the noble Lord, Lord Filkin, for his strenuous efforts to ensure that we are kept well informed on the committee and its work. I hope that in this response I have covered most of the major points raised by the committee and noble Lords during the debate. I shall study Hansard closely to ensure that those I have missed are followed up, and I shall happily put those consolidation points in correspondence to the noble Lord, Lord Filkin, as chair of the committee—and to those other noble Lords who have contributed to the debate.
My Lords, I thank my noble friend for his response. He knows, as I do, that the trouble with being a government Whip is that you are expected to read out the stuff that they put before you. The most generous comment that I can make is that there has been a considerable consistency between the Government’s written response and the response from the Dispatch Box. That has been characterised—and I shall choose my words as patiently as I can—by an analysis of the problem that basically listens to what the departments say. The response was the expression of a lowest common denominator of the individual views of departments. It lacked any central sense of a guiding intelligence, energy, commitment or force to own the problem or to do anything about it.
I hope that I am wrong, but we shall wait and see. The committee will be vigorous in watching whether there will be clear evidence of change, because the Government have said that they abide by these standards, so we do not need to worry our heads about all the mechanisms that we have sought for getting progress on these issues.
I am further surprised by the Government’s response because what we are asking for is perhaps the most trivial thing that you could ask a Government to do. We are not asking them to make people happy or stop crime or make a happier world; we are asking them to deal in a fairly straightforward way with some processes and good administrative practice across government. I think that I expected more from my Government in their response to this pretty trivial request. We will wait and see, but we will not wait passively; we will monitor the process actively and, if we find it lacking, will come back again with further action—and we will look for the support of the House in so doing.
On Question, Motion agreed to.
House adjourned at 9.13 pm.