House of Lords
Wednesday, 31 January 2007.
The House met at three o’clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwark): the LORD SPEAKER on the Woolsack.
My Lords, the country information before immigration judges depends on the appellant’s appeal grounds. The information generally includes Home Office country reports, US State Department reports, Amnesty International reports and Human Rights Watch reports. Some parties may commission experts on country conditions to prepare independent reports for immigration judges. The Asylum and Immigration Tribunal also sets authoritative country guidance determinations to assist its judiciary. They can all be found on the tribunal’s website.
My Lords, many of those most involved in these questions would hear the Minister’s response with the sheerest incredulity. I wonder how she explains the adjudications that I have read, which those working in the field assure me are quite typical, that suggest that those responsible have no conception of the lack of any order and of the unpredictable cruelty and/or lack of discipline of whatever officials, police or military there may be. That suggests that those responsible have not read any of the documentation that she mentioned. I have sought to read much of it in particular cases, and it flies utterly contrary to the view of the adjudications. Does the noble Baroness agree with me that during the past 10 years, the DRC, Rwanda and Uganda, for example, have not been the peaceful, predictable, English suburban kind of places that adjudications seem to imagine are the places from which those people have come?
My Lords, the right reverend Prelate’s suggestion is far-reaching. It is crucial that immigration judges receive ongoing training, which they do, that they understand refugee law, which they do, and that they understand diversity issues, which are critical. They make decisions based on the evidence before them, apply the law to the facts as they find them and rely on case law. They take seriously allegations of violence, torture or rape that are put before them.
My Lords, the right reverend Prelate appears to be criticising individual adjudicators rather than the system as such. Since much will depend upon an individual’s interpretation of conditions in a country, will my noble friend indicate how often the website is updated, whether there is sufficient detail on conditions in particular regions within a country and whether, if an adjudicator has a particular problem, it is possible for him to refer to the Foreign Office or an appropriate official for more detailed background?
My Lords, the website is updated quite regularly—I can notify the noble Lord and the House of details of precisely how often—but it depends, to a degree, on when new information is available, as noble Lords would expect. On the ability of the judiciary to get information, applicants provide the information and ask for it to be brought forward. The judiciary responds to that information because, in making the application, applicants put forward evidence to suit their case.
My Lords, is the Minister aware that the standard of country information reports has greatly improved in the past couple of years, particularly since the recommendations of the advisory panel last October? However, immigration judges and practitioners may not always have time to read the lengthy reports, some of which extend to 150 pages. They therefore rely heavily on Home Office presenters to extract information relevant to particular cases from the country information reports. That does not always happen, so the right reverend Prelate is putting his finger on the failure of Home Office presenters rather than of the country information unit.
My Lords, I am not sure that the right reverend Prelate was alluding to that because he was very specific in describing his concerns. However, I take the noble Lord’s point that he would wish to raise those concerns in this House. It is very important that members of the judiciary take the time, as I believe they do, to ensure that the information they have before them is well understood. It is part of the practice to listen to the evidence as it is presented.
My Lords, in the case of Zimbabwe up to 2005 the Home Office reports were so flawed that very bad decisions were given for some very deserving cases. The FCO has great experience in gathering information overseas, as the right reverend Prelate said, but can we be assured that future reports will draw on the wealth of knowledge of FCO posts abroad, particularly given that many of our diplomatic missions in Africa and elsewhere are closing, and ensure that there are no further inaccurate reports that result in HMG failing to meet their international obligations to look after human rights?
My Lords, as the human rights Minister I am deeply concerned that we meet our international obligations. I am very proud of our record. The Foreign and Commonwealth Office compiles the reports, so we rely very heavily on its information. I am delighted that noble Lords feel that the information is getting better all the time.
My Lords, does my noble friend agree that it is impossible for adjudicators, any more than anybody else, to be totally immune to the context in which they are working? If too much of the media and, indeed, too much of the body politic are constantly saying that asylum seekers are bad news and should be sent home unless there is some overriding reason for not doing so, it is very difficult for adjudicators to do their job with real objectivity. Should not this House and everybody else give all possible support to adjudicators by saying that when they see an asylum seeker their job is to determine what is right in that individual’s circumstances?
My Lords, I am very proud of the objectivity of our adjudicators; they do an important and occasionally difficult job because they are looking at very difficult pieces of information and making judgments. I have no doubt about the objectivity of the judiciary in this country or of its independence; so perhaps I would not agree with my noble friend on that. We have a long and proud tradition of supporting genuine asylum seekers. One of our ambitions is to make sure that those in genuine need, whom we would wish to support, can be supported as speedily as possible. We also recognise that there are cases that do not warrant our support.
My Lords, I declare an interest as a member of the newly formed Independent Asylum Commission. Is the Minister aware that we shall be devoting early attention to this subject and that we look forward to reporting back, perhaps in advance of our findings, which will be published early next year?
People Trafficking: Operation Pentameter
My Lords, the United Kingdom Human Trafficking Centre has already commenced planning for Pentameter 2. Although the precise scope, timeframe and scale of the operation have not yet been finalised, it is intended that it will take place during 2007.
My Lords, I thank the noble Lord for his reply. Is not much greater clarity desirable on who does what in relation to both trafficked adults and trafficked children? Will the Government do their best to resolve the underlying tension between immigration law and policy and the proper care of victims of crime?
My Lords, I agree that it is important that we have high-quality, high-grade co-ordination. That is why in June last year we launched the United Kingdom Human Trafficking Centre, which came about partly as a result of the success of Operation Pentameter, which was a national police-led multi-agency operation, as the noble Lord will know. On his second point, I agree that Governments attempt to achieve that very difficult exercise. We need to keep the two things in balance in protecting our borders—ensuring that we have sensible immigration legislation and regulation in place, while dealing with those who are victims of trafficking with care and compassion.
My Lords, the Minister recently announced that the Government were putting together a timetable for the signing of the Council of Europe's treaty on human trafficking and for ratification of the treaty. It would be better if we could know when that timetable is to be announced, as there is great concern in all parts of this House.
My Lords, the noble Baroness is right to say that we need to have a route map and timetable set out. We are wholly sympathetic with the objectives behind the Council of Europe convention. We are compliant with most, if not all, the convention provisions on enforcement and criminalisation but, as I am sure that she will appreciate, it is only right that we seek to get things in good order before we proceed. We have signed up to it; we then move to ratification; but we want to ensure that before ratifying conventions, we have all the domestic legislation and guidance in place.
My Lords, it is clearly reassuring to hear that the exercise will be repeated, but can the Minister tell us what the ongoing benefits of the previous exercise have been? In particular, are the police able to reassure trafficked women that if they come to them with their story, they will be protected against the vengeance of those who have trafficked them?
My Lords, there are continuing benefits from the original operation, which identified 84 victims, some minors aged 14 to 17. More than 230 people were arrested and more than 130 charged. Those charges varied greatly, but many of them were very serious. That has enabled us to have a much better picture and understanding of the true nature and extent of trafficking. The Government continue to put money into the POPPY project, which helps victims of trafficking to recover and develop a sense of where they need to go next.
My Lords, is my noble friend aware that as recently as last week, in Strasbourg, in the plenary session of the Parliamentary Assembly of the Council of Europe, the president of UNICEF called on all Governments of the member states of the Council of Europe to sign and ratify the convention as one of the most important steps? She emphasised the urgency of that. If there are obstacles in existing legislation that prevent us signing it, as my noble friend seemed to imply, can he tell us what they are and not only the timetable for signing and ratification but how we propose to get over those obstacles?
My Lords, I entirely agree that it is urgent that we proceed with the matter, but I am sure that the noble Lord will agree that we need to ensure that we have our policies, procedures and guidance properly in place before we move forward. Only three countries have moved from signing to ratification. Greatly to our credit, during our presidency in 2005, the UK took an important lead in this policy field towards ensuring that we have effective measures in place to combat trafficking.
My Lords, I am not in a position to make that evaluation or judgment. That is why we need to carry on doing the research and undertaking the current operations. It would be misleading of me to make an off-the-cuff assessment, as the noble Lord suggests.
My Lords, at the end of last year, we were promised an action plan on human trafficking and that it would be published before the end of 2006. Right at the beginning of this year, we were told that it had been delayed but that it would be published during January. This is the last day of January. Why this delay? Why are the Government dragging their feet on such important issues?
My Lords, we properly consulted on tackling human trafficking. I am sure that noble Lords will agree that this is a complex area of policy and one that we need to get right. There were many responses to the consultation document, and they dealt very comprehensively with issues of prevention, investigation, prosecution, and the support of victims. I emphasise that the Government and law enforcement agencies want to ensure that we get our policies in the right order. Only then can we ensure that victims of human trafficking are properly protected.
My Lords, that is one of the important issues and one reason why it has taken longer to resolve some of these issues than we would have otherwise desired. We may well have to reflect on our current legislative arrangements for dealing with these issues.
Kenya: Electoral Commission
My Lords, Section 41 of the Kenyan Constitution grants the president exclusive rights to appoint commissioners to the Electoral Commission of Kenya. However, in the interests of a sound electoral process, it is essential that the Electoral Commission be perceived as independent and impartial by the Kenyan electorate. We, along with our EU partners, stressed the importance of this to Foreign Minister Tuju on 18 January. We will continue to make these points to the Kenyan Government.
My Lords, I warmly welcome the Minister’s reply. Does he agree that it is an absolute prerequisite of a free and fair election in any country that the commission organising it is clearly seen to be independent? That has been assured in this country by consulting opposition party leaders on appointments to the commission, as President Moi did. Does the Minister therefore agree with the outgoing chairman of the commission, who is quoted in the Kenyan press as saying that if it is constituted in a way that people are not happy with, they will not trust the result?
My Lords, there is a very real risk that people will not trust the result. The objections that I have read appear to be not so much to the individuals named—they are clearly legally appointed by the President under the Kenyan Constitution—but to the fact that opposition parties have plainly not been consulted. That is a weakness which we will continue to bring to the attention of the Kenyan Government.
My Lords, the Foreign Minister of Kenya takes the view that the President has powers under Section 41 of the Kenyan Constitution and that he has exercised them properly. However, he also takes into account the considerable apprehension felt about the fact that the opposition have not been consulted and that we regard that as a weakness.
My Lords, with respect, the question misconceives the way in which aid goes to Kenya. There is no general government support, because corruption in the country is so acute that it would not be possible to give budgetary support as we do, for example, in Tanzania. Rather, there is support for particular NGOs and to tackle particular famine problems, and we are trying to ensure—I believe we have succeeded in ensuring—that the money goes to those who should not suffer further from climatic and other disasters.
My Lords, is not the failure of the Government of Kenya to tackle the Anglo Leasing scandal, and the appointment of the nine new members of the Electoral Commission without regard to political balance and without consultation, evidence that the new Government have disappointed all those who supported the previous one’s dismissal? Furthermore, were these matters raised by the Commonwealth Secretary-General on his recent visit when he said that the secretariat’s involvement with Kenya was intense, and could the secretariat play any part in mediating between the Government and the opposition to sort these matters out to the satisfaction of the public?
My Lords, I am not aware of the entire content of Don McKinnon’s discussions with the Kenyan Government, but I can say on behalf of this Government that the promises President Kibaki made, especially about the kinds of reforms he will achieve in the first 100 days of taking office, have been worse than disappointing. There is plainly a great deal to be done, and I believe that the Commonwealth, together with sovereign Governments such as our own, must continue to press these points.
My Lords, I do not think it can be said that this is corruption in the sense that I used the words a few moments ago, but it is plainly a distortion of a political process if people do not try to secure the arrangements which will give confidence in the electoral outcome. We are seeing the simple use of complete executive power without regard to opposition interests, which is a frailty if people wish to construct a democracy.
My Lords, is the Minister aware that many Members of this House may be more concerned about the Electoral Commission of Kenya than the Electoral Commission of our own country? Is he also aware that there is now more fraud in postal voting in Britain than there is in Kenya?
My Lords, no one has drawn my attention to any postal voting in Kenya. I do not know whether there is provision for postal voting in Kenya. The potential flaws in the Kenyan election system, were they to occur in the United Kingdom, would probably create an outcry far greater than the noble Lord has just made.
My Lords, we have held an extensive formal consultation, and the Prime Minister and the Secretary of State for Communities and Local Government have listened to strongly held views from all sides on adoption agencies and the new sexual orientation regulations. The Prime Minister said on Monday that,
“there is no place in our society for discrimination … And … there can be no exemptions for faith-based adoption agencies offering publicly-funded services from regulations which prevent discrimination”.
In the interests of vulnerable children, the regulations will, however, include a transition period which will give adoption agencies time to adapt their methods of operation.
My Lords, while thanking the noble Baroness for that Answer, I confess that I find the decision by the Prime Minister very odd. Was not the Education Secretary, Alan Johnson, clearly wrong in saying that this decision was the right outcome for it puts the interest of children first? Is not the case, in fact, that the interest of same-sex couples—for whom I have every respect—has been put first? One has to expect and understand that there is much more chance of an adoption working if the child goes to a family where there is a male and female parent, a possible mother and father. Would it not make much more sense to leave things as they are and allow any adoption agency that does not process applications from same-sex couples to refer them to an agency that does? Is that not what happens and will happen in Scotland?
My Lords, when this House debated the adoption Bill in 2002, it was on the knowledge and presumption that children need loving, stable family homes, which includes gay and lesbian couples. As the Prime Minister has said, the arrangement made this week is very much in the interests of the children, who have been paramount in the continuing, complex discussions. It would not have been in the interests of any child for any agency to close. We know how well the Catholic Church cares for children. We are confident that the agencies will want to engage constructively with us to secure in the transition processes being set up the interests of those most vulnerable children. We have the assurance of Cardinal Murphy-O’Connor that he is more than prepared to work constructively with us on that, which will secure the interests of those children and the widest pool of adopters for children under the rule of law.
My Lords, can the Minister reassure me that we will stick solidly by the principle of the best needs of the child? I have known for a fact for many decades, never mind years, that children have been placed with gay couples, very often where the child, for whatever reason, has a good relationship with that couple. I would be very alarmed by the recent debate if I was led to believe that church agencies or any other agencies had over-ruled that on grounds of individual conscience about sexuality and sexual orientation which over-rode the principle of the needs of the child. That is the first cause, which over-rides individual conscience. A gay relationship can in many respects be far better than unstable heterosexual relationships. It depends on the needs of the child and the quality of the relationship. That is what should guide us. Does the Minister agree?
Yes, my Lords. Again, I turn to the Prime Minister’s statement, which says that,
“this is a package which has the interests of children, and particularly the most vulnerable, at its heart”.
The assessment process for placing children for adoption is extremely rigorous and thorough and the judgment is based on the suitability of the adoptive parents to provide a loving and stable home for the child, no matter what their domestic arrangements and circumstances.
My Lords, Members on these Benches welcome the Prime Minister’s statement. Does the Minister recall that when the Human Rights Act was passed, instead of giving church organisations the blanket immunity which they sought, it instead provides that the courts have to pay particular regard to the right to freedom of conscience and religion as exercised by a religious organisation,
“itself, or by its members collectively”?
Does the Minister agree that the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, which we recently approved, balance fairly the duty of public authorities such as publicly funded Catholic adoption agencies not to practise sexual orientation discrimination in providing their public services with freedom of conscience and religion? Perhaps I may also ask—slightly cheekily, but not entirely so—whether, when senior clerics accuse Ministers and other politicians of arrogance, they could be asked,
“Why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own?”.
My Lords, I do not think I can contest anything the noble Lord has said on the basis of either experience or judgment. The debate on this issue has been extremely important, and I note that the most reverend Primate the Archbishop of Canterbury has asked for a wider debate; that is perfectly reasonable. Our debate has not diminished the place of religious conviction in our society at all, but it has upheld the rule of law.
My Lords, does the noble Baroness agree that when eminent churchmen such as Cardinal Murphy-O’Connor and the most reverend Primate speak out, they have a perfect right to do so and they should be listened to with respect? Further, is she aware that throughout the tangled web of English family law there is one golden thread always to be seen, and that is that the interests of the child must be paramount? Can she assure the House that that has been, is and will be the policy of the Government?
My Lords, I can certainly give that assurance, and I quote the Cardinal himself in recognising that this is exactly what the Government intend to do:
“We note and welcome … the Government’s expressed desire that the experience and excellent work of our agencies is not lost, especially for the benefit of needy children”.
The paramount importance of the needs of the child is written throughout our legislation and is observed in our action in government. This is certainly the latest expression of it.
My Lords, surely the principle of non-discrimination is important, but not absolute. With some good will, does she agree that there must be a way through this problem without the two-year deferment mentioned by my noble friend—by, for example, setting up a close twinning arrangement between the Roman Catholic agencies and other agencies which are prepared to follow the legislation? I speak not as a Roman Catholic, but as a Welsh nonconformist.
My Lords, I understand the background of my noble friend. What has been agreed with the Catholic Church is that a process should be set up for the two-year transition period. An independent team has been appointed by the Prime Minister and will report directly to him. As he has said, no one wants to lose these excellent adoption services that help some of our most vulnerable children. The independent assessment team will look at all the practicalities of the transition period to ensure that the needs of these children and their adoptive parents within the process are secured during the transition period, and that they will continue to be met afterwards. That will include the requirement for any faith-based adoption agency that wishes to take advantage of the transitional arrangements to refer gay, lesbian and bisexual couples to agencies which are able to assist. Further, the independent panel will look at issues such as funding and partnerships as well.
Welfare Reform Bill
Northern Ireland Arms Decommissioning Act 1997 (Amnesty Period) Order 2007
Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007
Street Works (Amendment) (Northern Ireland) Order 2007
District Electoral Areas Commissioner (Northern Ireland) (Amendment) Order 2006
Northern Ireland Assembly (Elections) (Amendment) Order 2007
My Lords, I beg to move the Motions standing in my name on the Order Paper.
Moved, That the draft orders laid before the House on 30 November, 4 December, 11 December 2006 and 8 January be approved [4th and 5th Reports from the Statutory Instruments Committee and considered in Grand Committee on 24 January].—(Lord Rooker.)
On Question, Motions agreed to.
Cluster Munitions (Prohibition) Bill [HL]
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Dubs.)
On Question, Motion agreed to.
Tribunals, Courts and Enforcement Bill [HL]
Clause 1 [Independence of tribunal judiciary]:
1: Clause 1 , page 1, line 9, leave out “the office of Senior President of Tribunals” and insert “an office listed in subsection (7B)”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 2 to 4. Amendments Nos. 1 and 2 are designed to ensure that the guarantee of judicial independence set out in Clause 1 includes all the tribunals which are administered by the Lord Chancellor. As it currently stands, the guarantee in the Bill does not cover the employment tribunals in Scotland, nor does it cover the Criminal Injuries Compensation Appeals Panel adjudicators appointed by Scottish Ministers under Section 5 of the Criminal Injuries Compensation Act 1995. These are the only tribunals administered by the Lord Chancellor that fall outside Schedule 14 to the Constitutional Reform Act 2005. A further difficulty is that members of employment tribunals are not within Schedule 14 to the 2005 Act and so do not come within the guarantee in Clause 1 if they are not chairmen. These would be unfortunate anomalies if they were not remedied, and Amendments Nos. 1 and 2 do so.
Amendments Nos. 3 and 4 amend Clauses 4 and 5 in order to clarify which legally qualified members of the Asylum and Immigration Tribunal are to be considered judges of a first tier tribunal and which are to be considered judges of the upper tribunal. As presently drafted, the Bill provides that all legally qualified members should be considered judges of the upper tribunal. The Government’s intention, which was reflected in the Bill that we published in draft last July, is that only the president or deputy president or a senior immigration judge would sit as a judge of the upper tribunal. All other AIT judges are to be part of the first tier tribunal only.
In the process of redrafting the Bill for introduction in your Lordships’ House, that visible distinction was lost, although the practical effect would have been no different. These amendments revert to what was contained in the draft Bill and provide clarity on the face of the Bill in respect of the AIT and the mapping of judicial office holders into the appropriate tier. I should add that the amendments do not in any way change the position of the Asylum and Immigration Tribunal, which remains outside the first tier and upper tribunal and will remain so unless and until the Home Secretary agrees to its transfer into the new tribunal structure. I beg to move.
On Question, amendment agreed to.
2: Clause 1 , page 1, line 12, at end insert—
“(7B) The offices are those of—
(a) Senior President of Tribunals; (b) President of Employment Tribunals (Scotland); (c) Vice President of Employment Tribunals (Scotland); (d) member of a panel of chairmen of Employment Tribunals (Scotland); (e) member of a panel of members of employment tribunals that is not a panel of chairmen; (f) adjudicator appointed under section 5 of the Criminal Injuries Compensation Act 1995.””
On Question, amendment agreed to.
Clause 4 [Judges and other members of the First-tier Tribunal]:
3: Clause 4 , page 3, line 7, after “Tribunal,” insert—
“(ca) is a member of the Asylum and Immigration Tribunal appointed under paragraph 2(1)(a) to (d) of Schedule 4 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (legally qualified members) and is not a judge of the Upper Tribunal,”
On Question, amendment agreed to.
Clause 5 [Judges and other members of the Upper Tribunal]:
4: Clause 5 , page 3, line 34, after “members)” insert “who—
(i) is the President or a Deputy President of that tribunal, or (ii) has the title Senior Immigration Judge but is neither the President nor a Deputy President of that tribunal,”
On Question, amendment agreed to.
Clause 9 [Review of decision of First-tier Tribunal]:
5: Clause 9 , page 6, line 10, at end insert—
“( ) Tribunal Procedure Rules may—
(a) provide that the First-tier Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules; (b) provide that the First-tier Tribunal’s power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the tribunal’s own initiative; (c) provide that an application under subsection (2)(b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules; (d) provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the First-tier Tribunal’s power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules.”
The noble Baroness said: My Lords, in moving Amendment No. 5 I shall also speak to Amendment No. 6. These amendments relate to Clauses 9 and 10, and make the powers of the first-tier and upper tribunals to review their own decisions subject to tribunal procedure rules. The tribunals committee will thus be able to restrict review where that is appropriate.
As I explained in Grand Committee to the noble Lord, Lord Kingsland, when he moved his Amendment No. 38, the purpose of the review power is to enable the swift and easy correction of accidental errors without putting users to the trouble of an appeal. However, the noble Lord was concerned that the powers should be relatively narrow in their effect, and we have been thinking about whether, as currently drafted, they are rather wide. We have also thought further about whether there is any potential for abuse of the powers by vexatious or delaying litigants.
We have concluded that there needs to be provision for more specific criteria for exercise of the review power. The need may vary from jurisdiction to jurisdiction, so we have concluded that the right way to approach this is to give the Tribunals Procedure Committee the power to set the criteria. With existing tribunals it is not unusual for legislation to allow criteria to be set in rules; the employment tribunals and the Special Educational Needs Tribunal are examples.
Amendments Nos. 5 and 6 therefore make the necessary adjustments to Clauses 9 and 10. They will allow tribunal rules to exclude from review decisions of a description specified in the rules, whether by the tribunal of its initiative or on abdication by the parties. I beg to move.
On Question, amendment agreed to.
Clause 10 [Review of decision of Upper Tribunal]:
6: Clause 10 , page 7, line 5, at end insert—
“( ) Tribunal Procedure Rules may—
(a) provide that the Upper Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules; (b) provide that the Upper Tribunal’s power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the tribunal’s own initiative; (c) provide that an application under subsection (2)(b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules; (d) provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the Upper Tribunal’s power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules.”
On Question, amendment agreed to.
Clause 11 [Right to appeal to Upper Tribunal]:
7: Clause 11 , page 7, line 29, leave out “any point of law” and insert—
“(a) any point of law, (b) any point of fact, or (c) points of law and fact,”
The noble Lord said: My Lords, this amendment raises the question of the scope of an appeal from the first-tier tribunal to the upper tribunal. The answer given by the Minister when the matter was raised in Grand Committee by my noble friend Lord Maclennan of Rogart was that judicial review would cover the need to appeal on the basis of an unreasonable finding on the facts. Now that is coupled with a resistance to the amendment of the noble and learned Lord, Lord Lloyd, on the basis that too much judicial review is likely to arise, and therefore it has to be delegated back down to the upper tier tribunal.
Another fear that the Minister expressed in Grand Committee was that if the upper tribunal were able to hear an appeal on fact, or on points of law and fact, it would become a simple two-tier process whereby people who were turned down by the first-tier tribunal would simply take their case upwards to the upper tribunal. However, our amendment is subject to the granting of leave. Amendments Nos. 8 and 9, which are linked with Amendment No. 7, are in place in order to deal with that very problem, so that it would not be possible for a dissatisfied claimant to appeal from the first-tier tribunal to the upper tribunal on an issue of fact by right as a matter of course. He would have to get consent from the upper tribunal itself.
Amendment No. 8 refers to the provision where leave must be granted at the moment, but we suggest leave must be granted for an appeal under subsection (1)(a)—that is, on any point of law—or (1)(c), on points of law and fact, either from the first-tier tribunal itself or from the upper tribunal.
However, our Amendment No. 9 makes it quite clear that an appeal on issues of fact could be decided only by the upper tribunal, so a considerable filter is built into the amendment which would make it possible for appeals which involve issues of fact to be heard by the upper tribunal only where there was a real concern and a possibility that the factual findings of the first-tier tribunal were flawed.
We are seeking to lift from the High Court the weight of too many judicial review proceedings. This is an appropriate way of doing it. It is subject to a considerable filter. Within a short time, the upper tribunal would have put in place principles whereby appeals involving findings of fact would be considered by it. It would obviously be only a small proportion of the cases. It is appropriate when we are dealing with what is supposed to be an informal hearing that the first-tier tribunal should not be the final arbiter on issues of fact. I beg to move.
My Lords, I am always reluctant to sound a discordant note when it comes to an intervention by the noble Lord, Lord Thomas of Gresford, not only because I admire the maturity of his judgment, but also because we can win a vote in your Lordships' House these days only with the co-operation of his party; so, for diplomatic in addition to jurisprudential reasons, I like to harmonise with the noble Lord.
I have great difficulty with the amendment, because, on balance, I am inclined to take a different position from that of the noble Lord. However, it is a very fine balance, and, perhaps on a different day or in a different month, I might have come to a different conclusion.
My view is that if there is a dispute of fact, it will be heard by the first-tier tribunal. It will take a view on the facts. If the matter is appealed to the upper tribunal on a point of law, it does not exclude the upper tribunal taking facts into account if the decision on the facts by the first-tier tribunal is unreasonable or perverse. So there will be circumstances in which the facts will still be in play in an upper tribunal. For those reasons, I have come down on balance to the view that, on this occasion, the provisions in the Bill are satisfactory, but I say that with the greatest respect to the noble Lord.
My Lords, my diplomatic approach is to try to agree with everybody, on the grounds the more that we can have “law by consensus”, which is a phrase that I heard yesterday evening, the better we all will be.
I thought carefully about the amendment. We consulted widely across government on its impact, because I know that the noble Lord quite reasonably took my words from Committee and sought to develop the filter system. I therefore took the time and trouble to pass the amendment right across government to get their views.
I cannot accept the amendment, but I want to explain why, because it is important that it is understood why, when we looked at the possible implications, there were genuine concerns. Although the noble Lord may not agree with them, I hope that he will accept them as such.
We have tried to make the tribunal system that is proposed in the Bill as simple and as straightforward as possible. It includes the full right to appeal on fact, law and other relevant bases to the independent and expert tribunal. That gives a reasoned decision. There is a further right of appeal to the upper tribunal if there has been a mistake about the law. My fear is that the amendments could unintentionally undermine both tribunals, because there would not necessarily be finality about any aspect of the first-tier tribunal’s decision, and the upper tribunal, we fear, would be inundated. We cannot estimate the number of applications that the prospect of appeal on the facts might generate but, for instance, there are about 250,000 social security and child support appeals each year. There is a right to apply for leave to appeal on a point of law to the Social Security Commissioners but there are about 4,000 applications a year, so that is less than 2 per cent of the total. Where there is a right of appeal on facts there are no constraints on the number of applications; each appellant can make an application for permission purely because they are unhappy with the decision against them.
The noble Lord’s answer to this is to maintain the permission requirement and to restrict the power to grant permission on questions of fact to the upper tribunal. I understand that but I am not sure that it would not result in a complex and potentially cumbersome system, quite apart from the potential intolerable increase in applications. We must recognise that that could be the case. The noble Lord is a lawyer and I am not, but lawyers talk about distinctions between fact and law not always being completely clear. Therefore, it is a reasonable assumption that applicants could raise questions both of fact and law. The first-tier tribunal can decide only if there is a point of law or a mixture of law and fact, and so if it decides neither is the case, the application will have to go on to the upper tribunal. We could end up with two bites of the cherry becoming the norm. Although the effect might be to filter out those cases that should not be heard, we would have to address the real practical implications of the process. Dealing with the applications themselves and whether they would fulfil the criteria for onward appeal could be a huge undertaking for the tribunals and the decision-making department.
Of course, volume alone should not be a reason to bar change but we believe that we have a proportionate system of appeals. Having consulted very widely, we believe that we have adequate means of redress for appellants without this amendment. For that reason, I hope that the noble Lord will feel able to withdraw it.
My Lords, I am most grateful to the noble Baroness for the care with which she has considered the matter and for taking the trouble to consult across government departments, as she said. I fear that instead of appeals to the upper tier, the High Court will be swamped with applications for judicial review on the basis that findings of fact made at the first-tier tribunal are unreasonable. There is a balance. The judicial review hearings are likely to go up even if the noble Baroness succeeds in keeping down the volume of appeals between the two tribunals.
However, I am happy to have aired this issue and to have heard the noble Baroness’s response. I do not seek to press the amendment to a vote tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
Clause 18 [Limits of jurisdiction under section 15(1)]:
10: Clause 18 , page 14, line 7, leave out “3” and insert “4”
The noble and learned Lord said: My Lords, in moving Amendment No. 10, I wish to speak also to Amendments Nos. 11, 12, 13 and part of Amendment No. 17.
It might be helpful to the House if I try to put these amendments into context. That means starting with Clause 13, which provides for an appeal from the upper tribunal to the Court of Appeal, but only on a question of law and only with leave. Like many other clauses, Clause 13 is pretty complex. As so often, subsection (1) gives with one hand and subsections (6) and (8)(f) enable the Lord Chancellor to take away with the other hand. But in general, Clause 13 follows well trodden ground.
Clause 15, on the other hand, is something entirely new. It confers on the upper tribunal a power to hear applications for judicial review. That has never happened before. That in itself should not be a reason why it should not happen now but it is surely a good reason why we should tread somewhat carefully.
Hitherto, the power to grant judicial review has been confined to the High Court. One can see that from the very fact that Clause 15 puts “judicial review” in inverted commas. It is not ordinary judicial review as we know it. Again, one can see it from subsection (3), which says that relief granted by the tribunal shall have the same effect as if it had been granted by the High Court. A similar reference to the High Court is in subsection (3)(b) and subsections (4) and (5). They refer always to the High Court, not to the county court. The reason is quite simple; the county court does not have, and never has had, a power to grant judicial review. The explanation for that, as so often, is partly historical; the power of the High Court to grant judicial review, which was then called by a different name, existed for many generations before the county court even came into existence.
One may then ask why it is that judicial review has never been extended to the county courts or to other judicial or quasi-judicial bodies. Why has it never been extended to tribunals? The reason is that judicial review is the means by which the individual citizen can challenge the decisions of government departments and other public bodies. Such applications are often very high profile. One thinks of applications to challenge the Government’s anti-terrorist legislation, and many other applications of that kind. It is important that such very high-profile applications should be heard by judges of the highest standing and the longest experience; and by judges who cannot be removed save by a Motion of both Houses of Parliament. Such judges exist in the administrative court, as we have it today; the names of Mr Justice Collins and Mr Justice Sullivan stand out as judges who have played a very important role in that capacity. Because these are high-profile cases, the judges often find themselves subject to attack. One remembers how Mr Justice Collins was attacked by Mr Blunkett when he was Home Secretary. Not all applications for judicial review are high-profile; some, as the noble Lord, Lord Thomas, has pointed out, are fairly rubbishy, but these are weeded out at an early stage, because you can only apply for judicial review if you already have leave.
On the amendment, I am in favour of extending judicial review to the upper tribunal—it would have very many advantages—but I would only be in favour on one condition; that the judge presiding at the hearing for judicial review by the upper tribunal should be a High Court judge. He would gain much from having the expertise of his fellow members on the tribunal, and the Employment Appeal Tribunal would provide a useful precedent for that. He would provide the authority and experience that go with the office of High Court judge. That is of particular importance at the early stages of this new experiment, which I strongly support. I venture to suggest that an important principle lies behind the amendment and that the principle is worth fighting for.
However, the last thing we want to do is to make life more difficult for the Lord Chief Justice. I spoke to him this morning. He pointed out that it was his responsibility under the Constitutional Reform Act to deploy the judges as he thought best. That must be right and one readily accepts that. He also pointed out that there might be circumstances in which he simply did not have a High Court judge available to hear an application for judicial review. I am sure that the House will not seek to tie his hands. He said that he needed some flexibility and I am sure that we can all understand that.
It occurs to me that we can meet his needs by inserting in the amendment words such as, “unless the Lord Chief Justice directs otherwise in a particular case”. We cannot alter the amendment today, but if the Minister were to indicate that she would seek a solution along those lines and perhaps bring the matter back at Third Reading, I would not wish to press my amendment to a vote today. Meanwhile, I beg to move.
My Lords, we on these Benches strongly support the principle that lies behind the amendment of the noble and learned Lord, Lord Lloyd. We note that he wishes to add some words and perhaps we can reach the consensus to which the noble Baroness referred a short while ago. The principle is absolutely fundamental. It is a bulwark of our constitution—that may be a hackneyed phrase—that we have the High Court to check government through the judicial review process. In no other sort of case is there such a direct clash between the Government and the court, which acts to protect the individual.
It would be wrong to weaken that principle in any way, simply because we are seeking to extend the jurisdiction of the courts by this tribunals Bill. We are trying to increase the profiles of tribunals in an important way and to have a rational consensus on how they should work. But it would be wrong to allow the principle that has lasted a thousand, or at least very many, years to be weakened with a Bill such as this. The names of the prerogative writs—certiorari, mandamus and the rest of them—are absolutely fundamental to our law. I look forward to hearing what the noble and learned Lord can agree with the noble Baroness or, if they cannot agree, to seeing what he brings forward at Third Reading, when he will have our support.
My Lords, I agree with what has just been said. The noble and learned Lord, Lord Lloyd, has made a powerful case and the amendment that he suggests, which is not before us at the moment, would also be practical. I hope that my noble friend will accept the suggested amendment. If she cannot, she will need to put forward a case that would appeal to many of us. At the moment, the suggestion that has been made to the House is compelling—and that is not a party point of view in any way. I hope she will recognise that this matter is very important in terms of practicality and would add to the reputation of the court, a point that I hope will not be forgotten in this context.
My Lords, I find myself in complete agreement with all the previous speakers on this amendment. There is an important distinction between High Court judges and all other judges, a distinction that the noble and learned Lord, Lord Lloyd of Berwick, brought out in his speech. High Court judges can be dismissed only on an address of both Houses of Parliament; whereas all other judges can be dismissed by decision of the Lord Chancellor in conjunction with the Lord Chief Justice. So the constitutional status of High Court judges is very different from the status of other judges. As the noble and learned Lord, Lord Lloyd of Berwick, rightly said, it is increasingly, and lamentably, the case that judges are criticised by politicians. They need the robust protection that High Court judges have under our constitution.
It was particularly interesting in listening to the noble and learned Lord, Lord Lloyd of Berwick, to learn that the Lord Chief Justice’s concerns are not constitutional ones. It appears that he absolutely accepts the importance of High Court judges hearing judicial review matters. His concerns are matters of practicality. There may be circumstances in which there are simply not sufficient High Court judges to serve the needs of the upper tribunal; therefore, he is seeking some flexibility in that respect. I think that the noble and learned Lord, Lord Lloyd of Berwick, who rightly feels so strongly about this, nevertheless has to take that concern into account in deciding what to do about his amendment. I am completely at one with the noble and learned Lord and he will have our support.
My Lords, I wonder whether before the Minister replies I might just add a few words in support of the noble and learned Lord, Lord Lloyd of Berwick. I entirely agree with all the previous speakers. I add only that I do not think that it would be very difficult to find phraseology that would permit of deputies approved by the Lord Chief Justice or the judge in charge of the administration of the judges on suitable occasions, so long as one has the principle that a High Court judge should sit. It is well known that from time to time deputies do sit. That may be the way round some of the practical difficulties.
My Lords, I am not quite sure whether I dare, as a non-lawyer, to intervene in these proceedings. I ought to declare my interest as chairman of the Council on Tribunals, although what I am about to say is entirely my view having listened to this debate. I can quite understand the force of the point that is made about a High Court judge, particularly in respect of the high-profile cases that the noble and learned Lord, Lord Lloyd, referred to. But if my ears were not deceiving me he also referred to large numbers of what he described as—this is his word, not mine—rubbishy applications for judicial review. I have to express some reservations about the desirability of insisting that the scarce resource of High Court judges should be used to deal with such applications. Some element of flexibility or, one could even say, judgment probably needs to be applied to what is required in particular cases. That is my individual reaction to what I have heard.
My Lords, I am very grateful, not only for all the contributions but for the spirit of the contributions. In particular, I thank the noble and learned Lord, Lord Lloyd of Berwick, for his introduction of this issue. I completely understand that these issues are of great import to Members of your Lordships’ House.
Let me begin by explaining again, particularly for the benefit of noble Lords who were not with us in Committee, precisely what we are seeking to achieve and why. We are trying to make sure that we get the best possible service that the justice system can provide to users by making it possible that cases can benefit from the specialist skills and the knowledge of a senior judge in a tribunal, rather than—and I mean this in the best sense of the word—the generalist skill and knowledge of a judge in the administrative court.
We think that the provision would mean more appropriate access to justice, but we have hedged this power with safeguards. There is no reduction in the right to apply for judicial review. It is not the Government but the senior judiciary who decide which cases are suitable for transfer. Under the Bill, a senior president, a Lord Justice of Appeal or his delegate would decide which judge heard which case. The amendments would remove the advantages conferred by the transfer, so noble Lords will understand why I am extremely hesitant about them.
I know from a discussion that I had earlier with the noble and learned Lord, Lord Lloyd of Berwick, that he, along with other noble Lords, is very keen to see whether there is a way through this issue. I, too, have spoken to the Lord Chief Justice. I do not have his permission to quote him but I think that his position in this set of circumstances may not be quite as noble Lords have indicated. He is very keen to ensure that I, together with the Lord Chief Justice, Lord Justice Carnwath as president of the Tribunals Service, the noble and learned Lord, Lord Lloyd of Berwick, the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and anyone else who wishes to join in have a conversation to see whether we can find a way through this. It is not simply a question of resources; there is a point of principle behind it as well. We would all benefit from hearing the Lord Chief Justice speak for himself. That would be better than my attempting to interpret what he said, which, as I said, I would not do without his permission.
I hope that noble Lords accept that I agree to do exactly as the noble and learned Lord, Lord Lloyd of Berwick, wishes—that is, I shall take this matter away with the understanding that, if I am unable to convince him, the amendment will reappear and your Lordships will be able to exercise their right to, as it were, decide for me on this issue. However, I believe that our conversations will find a way to tackle the underlying concerns without removing the principle, on which I think we agree.
My Lords, I, too, am hopeful, and I am very grateful for the Minister’s response. It was very typical of her willingness to agree where agreement can be reached. On the basis of her undertaking, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
Clause 19 [Transfer of judicial review applications from High Court]:
[Amendments Nos. 12 and 13 not moved.]
14: Clause 19, page 15, line 24, leave out “either”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 16, 18, 19, 20 and 21. These amendments would remove the direction-making power of the Lord Chancellor inserted into the Supreme Court Act 1981 by Clause 19 and would make corresponding adjustments to Clause 20 in respect of Scotland. Their effect is to exclude judicial review cases arising under the nationality and immigration Acts from transfer to the upper tribunal. Further primary legislation would be needed to amend that position.
In speaking to these amendments, I am of course conscious that the noble and learned Lord, Lord Lloyd of Berwick, has tabled Amendment No. 16 with the same object in mind. We acknowledge the strength of feeling expressed by the House and take the view that any opening-up of these provisions to immigration, asylum and nationality cases should occur only as a result of further primary legislation.
I hope that the noble and learned Lord, Lord Lloyd, will understand that I tabled my amendments because they would also make consequential changes to Clauses 19 and 20 to carry the same amendments through to the equivalent clauses for Scotland and Northern Ireland. Therefore, they are technically more able to do the job than I think is the case with his amendment, and I hope he will understand that that is the basis on which I tabled them. I beg to move.
My Lords, I have already complimented the noble Baroness on her ability to see the light, and the light is there on this occasion. She has seen the light and I entirely support her amendment. I shall not move my amendment in favour of hers, which I think provides exactly the same result.
On Question, amendment agreed to.
15: Clause 19 , page 15, line 33, leave out from “citizenship” to end of line 40
On Question, amendment agreed to.
[Amendments Nos. 16 and 17 not moved.]
18: Clause 19 , page 16, line 21, leave out “either”
19: Clause 19 , page 16, line 30, leave out from “citizenship” to end of line 35
On Question, amendments agreed to.
Clause 20 [Transfer of judicial review applications from the Court of Session]:
20: Clause 20 , page 17, line 38, leave out “either”
21: Clause 20 , page 18, line 2, leave out from “citizenship” to end of line 5
On Question, amendments agreed to.
Clause 22 [Tribunal Procedure Rules]:
[Amendment No. 22 not moved.]
moved manuscript Amendment No. 22A:
22A: Clause 22 , page 19, line 13, at end insert—
“(za) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,”
The noble Lord said: My Lords, I apologise for bringing Amendment No. 22A to your Lordships so late in the day. It is a consequence of a discussion with the Minister yesterday about the appropriate wording for an “interest of justice” provision. There was a debate on this in Committee, and I draw your Lordships’ attention to the thoughts of my noble friend Lord Newton at that time.
In Clause 22, “Tribunal Procedure Rules”, on page 19 of the Bill, the power to make tribunal procedure rules is to be exercised with a view to doing things set out in four separate categories, two of which require both the tribunal and the upper tribunal to ensure that matters before them are handled “quickly and efficiently”. In Committee, my noble friend Lord Newton rightly pointed out that, whereas two of the four requirements referred to speed and efficiency, no requirement referred to the interests of justice. He suggested to the Minister that there needed to be more balance in these categories—a suggestion to which she was eager to respond appropriately.
The appropriate solution is found in manuscript Amendment No. 22A, on which the Opposition believe there is complete agreement with the Government, and which fulfils the wishes of my noble friend Lord Newton. I am not sure whether my noble friend was speaking for himself or the Council on Tribunals in Committee. Either way, it was a most constructive intervention, and we have done our best to meet the requirements he laid down. I beg to move.
My Lords, I am grateful for the generosity of my noble friend’s remarks, which reveal that he has pursued the point I raised in direct response to the debate in Committee with greater assiduousness than I did. I was undoubtedly speaking for myself rather than the Council on Tribunals on that occasion, but I presume that it would support a proper balance between the interests of justice and those of speed and efficiency. I strongly support my noble friend’s amendment.
My Lords, the amendment has been grouped with Amendment No. 23, possibly before the two sides got together. We do not think that the interests of justice will be achieved or that the proceedings before a tribunal will be accessible and fair if one party cannot afford to be there. It is vital that legal aid is available at all hearings before the first tribunal. That has not been the case in the past and, as I said at Second Reading and in Committee, much of that work has been done for nothing by young lawyers, who have taken it to a high point without the benefit of legal aid.
If we are to raise the profile of tribunals and have a new system that is accessible, fair and in the interests of justice, it is essential that those members of society who normally appear before tribunals, who tend not to have any resources, have the opportunity of being properly represented. It may be that the rules can lay down the circumstances in which legal aid is available. We are not giving a blank cheque by tabling this amendment, but it is right that, in this context, legal aid should be foremost in the thoughts of those who prepare the rules. It may be that we will get some assurances that it will happen in other legislation at some time in future and so on, but I respectfully submit that it should happen now, with this Bill, when the new structure is brought into being. I shall move Amendment No. 23 in due course.
My Lords, Amendment No. 22A can be described as “win, win, win”. I am extremely grateful to the noble Lord, Lord Kingsland, for responding so quickly to enable us to accept the amendment he tabled. It was the noble Lord, Lord Newton of Braintree—and who am I to do anything other than what he tells me to?—who put this forward, and I agree with it completely. Rather than having to take the amendment away, I am delighted that we can simply accept it with grateful thanks. It does everything that noble Lords have said.
The noble Lord, Lord Thomas of Gresford, raised an important point about legal aid. I know he feels strongly about it. At Second Reading, my noble and learned friend the Lord Chancellor said:
“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”.—[Official Report, 26/11/06; col. 762.]
My noble and learned friend made clear the importance that we attach to legal aid. I know that the noble Lord, Lord Thomas of Gresford, does not dispute that one of the great joys of tribunals is that they operate differently from the traditional court system. We hope that the more informal and, perhaps, more inquisitorial system will enable people to represent themselves when that is appropriate. However, it is important that they are able to get high-quality advice and support and, in bringing together tribunal services, I am looking at how we provide that advice to those who come to tribunals; it is an important issue. I also accept that there will be circumstances where we would want to do more than that and where legal aid might be appropriate.
I am, therefore, resisting Amendment No. 23, but a huge review of legal aid is going on—there have been 2,372 replies to the consultation paper. Noble Lords know that the amount of money spent has risen from £1.5 billion in 1997 to more than £2 billion now and that Lord Carter examined the position in depth. However, I am resisting the amendment in the light of the commitment given by my noble and learned friend at Second Reading. In civil justice and in the Tribunals Service he wishes to make sure that where legal aid is needed, we will consider it, for precisely the reason indicated by the noble Lord—to make sure that people get access to justice. I cannot simply insert it in the Bill without putting it in the broader context of the legal aid reforms; however, I shall take the proposition forward. My noble and learned friend said clearly what his view is, and I hope that noble Lords will recognise that that commitment is there and will hold the Government to account in future to make sure that we fulfil it.
My Lords, as I understand it, the noble Baroness has accepted not only the principle that lies behind Amendment No. 22A but also its wording.
On Question, manuscript amendment agreed to.
23: Clause 22 , page 19, line 20, at end insert—
“( ) The Tribunal Procedure Rules shall make provision for the granting by a judge of the First-tier Tribunal of legal aid for appropriate advice and representation in relation to any decision within the jurisdiction of the tribunal system.”
The noble Lord said: My Lords, in responding to what the noble Baroness said a few moments ago I remind myself of what was said at Second Reading. The noble Lord, Lord Clinton-Davis, raised the question of legal aid at the beginning of the Lord Chancellor’s introductory speech. He said that he was concerned that legal aid would not be available. The noble Baroness has quoted the Lord Chancellor’s response, but I shall repeat it. He said:
“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”.—[Official Report, 29/11/06; col. 762.]
Nothing could be vaguer than that. I do not regard it as a commitment for the future. It is limited to issues such as welfare benefit; and “more widely available” could mean anything. For that reason I seek to obtain the opinion of the House on this issue. I beg to move.
Schedule 5 [Procedure in First-tier Tribunal and Upper Tribunal]:
24: Schedule 5 , page 131, line 21, at end insert—
“(e) provision for costs or expenses— (i) not to be allowed in respect of items of a description specified in Rules; (ii) not to be allowed in proceedings of a description so specified; (f) provision for other exceptions to either or both of subsections (1) and (2) of section 28.”
The noble Baroness said: My Lords, Amendment No. 24 is a minor drafting amendment to clarify the provisions on costs in Clause 28, which grants the first-tier tribunal and the upper tribunal the power to order costs and expenses, which are the Scottish equivalent, in the same way as the courts, but makes this subject to tribunal procedure rules. I am grateful to the noble Lord, Lord Maclennan of Rogart, who is not in his place at the moment, for his intervention on Clause 28 and Schedule 5 at Second Reading. The Child Poverty Action Group has also expressed concern that the clause might call into question the ability of the Tribunal Procedure Committee to make rules that offered exemptions from the general power to award costs. The Government never intended the cost provisions to apply to all the functions exercised by the first-tier or upper tribunals. The provisions are intended to provide flexibility so that cost regimes can develop in tandem with their associated jurisdiction. I beg to move.
25: After Clause 23 , insert the following new Clause—
(1) A person exercising power to make Tribunal Procedure Rules or give practice directions must, when making provision in relation to mediation, have regard to the following principles—
(a) mediation of matters in dispute between parties to proceedings is to take place only by agreement between those parties; (b) where parties to proceedings fail to mediate, or where mediation between parties to proceedings fails to resolve disputed matters, the failure is not to affect the outcome of the proceedings. (2) Practice directions may provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings.
(3) The provision that may be made by virtue of subsection (2) includes provision for a member to act as a mediator in relation to disputed matters in a case even though the member has been chosen to decide matters in the case.
(4) Once a member has begun to act as a mediator in relation to a disputed matter in a case that is the subject of proceedings, the member may decide matters in the case only with the consent of the parties.
(5) Staff of the First-tier Tribunal or the Upper Tribunal may, subject to their terms of appointment, act as mediators in relation to disputed matters in a case that is the subject of proceedings.
(6) Before giving a practice direction that makes provision in relation to mediation, the person giving the direction must consult the Advisory, Conciliation and Arbitration Service.
(7) The Lord Chancellor may by order prescribe fees payable in respect of mediation conducted by staff of the First-tier Tribunal or the Upper Tribunal.
(8) Fees payable under subsection (7) are recoverable summarily as a civil debt.
(9) Subsection (8) does not apply to the recovery in Scotland of fees payable under subsection (7).
(10) In this section—
“member” means a judge or other member of the First-tier Tribunal or a judge or other member of the Upper Tribunal;
“practice direction” means a direction under section 23(1) or (2);
“proceedings” means proceedings before the First-tier Tribunal or proceedings before the Upper Tribunal.”
The noble Lord said: My Lords, this new clause has something of a history. It first appeared as Clause 23 in the first draft of the Tribunals, Courts and Enforcement Bill, as originally published by the Government. “New clause” may be something of a misnomer. The Constitution Select Committee, of which I have the honour to be a member, said in its report on the Bill to your Lordships’ House, dated 11 December 2006, that we saw merit in Clause 23 of the draft Bill, unlike the Bill before your Lordships today, which contains only a cursory—the Select Committee said “terse”—and passing reference to alternative dispute resolution techniques.
This new clause provides a clear, statutory basis for the use of mediation and guarantees for citizens against undue pressure to use ADR rather than seek access to justice more formally at a tribunal hearing. When challenges are made to the merits or lawfulness of a public authority’s decision, there is often a considerable imbalance of power between the parties. The Select Committee therefore came to the view that ADR should take place in a proper legal and constitutional framework.
I have some, but not much, sympathy with the view that this clause is not wholly necessary. When the Government introduce legislation to create a major new scheme and establish important public authorities, the provisions of the legislation ought to reflect the Government’s underlying policy goals. If a Bill fails to do this, Parliament is denied the opportunity to scrutinise the policy during its passage through Parliament. The omission from the Bill of a clause dealing fully with mediation would create a significant mismatch between the legislative scheme put before Parliament and the Government’s avowed policy goals in establishing the new tribunal system.
The Select Committee did not share the Government’s confidence that tribunal members and their staff, like their counterparts in the courts, do not need express statutory power to mediate disputes; our lack of confidence being based on broad constitutional principle and a view of the law as it is. Superior courts, such as the High Court of England and Wales, have an inherent jurisdiction—powers derived from common law rather than statute. However, the position of tribunals is far from settled. Even if it is accepted that tribunals have such inherent jurisdiction and powers, their scope is far from certain.
The broad constitutional question is whether public authorities established by Act of Parliament should derive their principle powers from express legal provisions. Mr Justice Laws, as he then was, in his judgment in 1995 in the case of R v Somerset County Council ex parte Fewings answered that question in the affirmative. He said that,
“the freedoms of the private citizen are not conditional upon some distinct and affirmative justification for which [we] must burrow in the law books. Such a notion would be anathema to our English legal traditions. But for public bodies the rule is opposite, and of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake; at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose ... Under our law, this is true of every public body. The rule is necessary in order to protect people from arbitrary interference by those set in power over them”.
I submit that if the new tribunal system is to engage in the widespread use of ADR, it should be done on the basis of express legal authority contained in primary legislation.
Access to justice is a principle of the British constitution. The new clause we are debating provides some assurance that appellants who are often vulnerable by reason of poverty, of age or of ill health, will not be or feel pressurised by officials into using ADR when what they seek is a hearing before an independent tribunal judge.
The Department for Constitutional Affairs has made it clear in a number of ministerial speeches and in the White Paper Transforming Public Services: Complaints, Redress and Tribunals that it wishes to see ADR used on a very large scale in the new tribunal system to be created by this Bill. Anyone reading the Bill would find it hard to see where this major change in policy is reflected in the legislation. The Bill in its present form does not refer to this shift in the relationship between citizens and tribunals save for the requirement placed on the senior president of tribunals, the senior judicial figure responsible for leadership in this field, to have regard to the need to develop innovative methods for resolving disputes that are of a type which may be brought before tribunals.
In terms of parliamentary accountability and legal authority, I do not believe that that is nearly adequate. This new clause emphatically does not, as the Government may have feared, seek to instruct tribunals on what they should or should not do; rather, it enacts basic constitutional protections for aggrieved citizens against the risk of oppression or unfair requirements to use ADR. For those noble Lords in this House—and I suspect that this involves nearly all of us—who believe that ADR will be a useful method of resolving disputes between parties who might otherwise have to resort to formal litigation, this new clause represents an important safeguard. Some may argue that the new clause unnecessarily employs both belt and braces. However that may be, I would prefer that the new tribunals should enter the world wearing both belt and braces rather than neither. I beg to move.
My Lords, I rise briefly to support the general thrust of my noble friend’s remarks. The background from my point of view is slightly ironic. I too had noticed this and discussed it with the Minister. I told her that I was minded to put down the clause from the draft Bill today only to be told that my noble friend had got in ahead of me. I am happy, as it were, to hitch my wagon to his, with thanks to him.
I had noticed the disappearance of this clause, but I also have some sympathy with the point that it may not be needed strictly in terms of what you can or cannot do. Without doing quite as much constitutional heavy breathing as my noble friend, I see some merit in running up this particular flag as part of the legislation—or something like it—not least because of the point he made about the policy goals and the advantage perhaps for the development of the approach. I am not going to comment on whether the detail is right. I know that some members of the Council on Tribunals were concerned about the omission of the clause. Some also have concerns about whether it may not be too restrictive or need some refinement in detail. I do not want to enter into that, but I hope that in general terms—
My Lords, on that point I have a fairly clear-cut view. The policy background to the Bill is a very wide-ranging White Paper in which the Government rightly took the view that there were various needs in this area, one of which was to create a more coherent tribunal system. We now have that in the form of the Tribunals Service, which can be developed still further in some aspects with the passage of the Bill. Another need was the desirability of ensuring that disputes between the citizen and the state—and sometimes between citizens themselves—should be resolved in the most proportionate, effective and sensible way. That is what we are talking about here and, in my view, it belongs fairly and squarely in a Bill which is designed to advance that wider and sensible objective.
I have a great deal of sympathy with what my noble friend has said. I am not going to argue about the detail but, knowing the spirit in which the Minister approaches these matters, I am sure she will find some way of accommodating the main point while improving the detail if she feels that is necessary.
My Lords, I support the amendment so eloquently introduced by my noble friend. There are two reasons why the amendment is of particular merit. The first reason, in my view, is that it falls directly in line with the philosophy that Sir Andrew Leggatt was seeking to promote in his excellent report—that is to say, that it is desirable that the tribunal system should be as informal and flexible as possible so that those who are its consumers feel at ease in utilising it. I certainly take the view that mediation is a very important component of that approach. In a sense, if such problems can be mediated, that is much better than having to go through the tribunal system itself.
The second reason why I think the amendment adds to the legislation—and here I am merely reinforcing a point made so powerfully by my noble friend—is that there are occasions when mediation can be forced on individuals in circumstances where they do not entirely understand what it can do for them. It is extremely helpful, therefore, to have the circumstances in which mediation would be appropriate, and also the terms on which it is to be provided, set out clearly on the face of the Bill. In that sense, as my noble friend said on more than one occasion in his intervention, it has constitutional importance.
I am in favour of the amendment and I hope the Minister will be supportive as well.
My Lords, we also support the amendment. The noble Lord, Lord Kingsland, has just made the point that people should not be pushed into mediation. They should always have at the back of their mind that they are entitled to a hearing within the structure of the tribunal system and that an independent judge will decide. The problem with mediation is that you have the Government or a similar body on the one side and the individual on the other, and the bargaining power is not equal. Mediation is very attractive because you do not have to face a tribunal, you can agree things and so on, but, ultimately, the remedy through the tribunal should always be available. I agree with the sentiment behind the amendment.
My Lords, I agree too, both with the sentiments and with the amendment. The amendment appeared, as the noble Lord, Lord Goodlad, eloquently said, as a consequence of what was in the White Paper and in the draft Bill. We listened with care to what the Constitution Committee said. Its interpretation of ADR is a little different. I say to noble Lords who have not had the opportunity to meet those involved in mediation that I had the privilege of meeting our mediator in Manchester, and met some of the clients who have been extremely well served by his work in the court system.
I accept what all noble Lords have said about the value of alternative dispute resolution—particularly mediation, in this context—in providing greater opportunities for access to justice. The caveat has been put forward that it does not preclude users from pursuing their cases in the courts of the tribunals. That is important too.
We took ADR out only because we did not think we needed it, not because there was anything wrong with the principle. I am perfectly happy to accept the amendment, and I am grateful to the noble Lord for tabling it. I give notice that I will have to make one or two consequential amendments at Third Reading, just to ensure that it fits properly back in, but I am sure noble Lords will be happy with that. I have nothing to add; everything has been said.
On Question, amendment agreed to.
Clause 29 [Transfer of functions of certain tribunals]:
26: Clause 29, page 23, line 9, at end insert—
“(aa) functions of the Consumer Credit Appeals Tribunal,”
The noble Baroness said: My Lords, in moving Amendment No. 26 I shall also speak to Amendments Nos. 28, 29, 30 and 96. These are technical measures to tidy up the transfer of tribunal function provisions in the Bill so they take proper account of devolution in Northern Ireland. These amendments cover the transfer of the consumer credit appeals tribunal to the new tribunals structure.
Under Clause 29(5), the general rule is that functions of tribunals within the legislative competence of the Northern Ireland Assembly or Scottish Parliament may not be transferred to the first-tier or upper tribunal. Exceptions are made in respect of both Section 41 of the Consumer Credit Act 1974 and the Secretary of State’s function of deciding appeals under Section 7(1) of the Estate Agents Act 1979. Appeals under those provisions can therefore be transferred into the new structure.
The need for government amendments arises because the Consumer Credit Act 1974 is being amended by the Consumer Credit Act 2006. The 2006 Act will ensure that appeals, which are currently heard by a panel nominated by the Secretary of State, will go to a new consumer credit appeals tribunal. The timetable for commencement of those provisions has not yet been settled, and the consumer credit appeals tribunal may not be up and running before the Bill receives Royal Assent. We therefore need to cater for both the current and future consumer credit appeal regimes.
The current regime is catered for in the Bill, but the new one is catered for only in respect of England and Wales. Since in Northern Ireland consumer credit is a devolved matter and so within the competence of the Northern Ireland Assembly, Amendment No. 26 inserts a reference to the new consumer credit appeals tribunal in Clause 29(6) so that the transfer can take place. Consequential amendments are needed to Clauses 33 and 34, which will allow the transfer of the relevant functions and rule-making powers in respect of the Consumer Credit Act appeals, whether they are decided by the Secretary of State under the present system or by the new tribunal once the provisions are commenced. Amendments Nos. 28, 29 and 30 make these changes. Amendment No. 96 to Schedule 8 deals with the repeal that may be necessary, depending on when the Consumer Credit Act 2006 is brought into force. I beg to move.
On Question, amendment agreed to.
27: After Clause 32, insert the following new Clause—
“Power to provide for appeal to Upper Tribunal from tribunals in Northern Ireland
(1) Subsection (2) applies if—
(a) a function is transferred under section 29(1)(a), (c), (d) or (e) in relation to England (whether or not also in relation to Wales) but is not transferred under section 29(1) in relation to Northern Ireland, (b) an appeal may be made to the Upper Tribunal against any decision, or any decision of a particular description, made in exercising the transferred function in relation to England, and (c) no appeal may be made against a corresponding decision made in exercising the function in relation to Northern Ireland. (2) The Lord Chancellor may by order provide for an appeal against any such corresponding decision to be made to the Upper Tribunal.
(3) An order under subsection (2)—
(a) may include provision for the purposes of or in consequence of, or for giving full effect to, provision made by the order; (b) may include such incidental, supplemental, transitional or consequential provision or savings as the Lord Chancellor thinks fit. (4) An order under subsection (2) does not cease to have effect, and power to vary or revoke the order does not cease to be exercisable, just because either or each of the conditions in subsection (1)(b) and (c) ceases to be satisfied in relation to the function and decisions concerned.”
The noble Baroness said: My Lords, in moving Amendment No. 27 I shall also speak to Amendments Nos. 35, 40, 41, 97 and 98. These amendments are minor and technical changes to the tribunals provisions of the Bill.
Amendments Nos. 27 and 40 provide for a new appeal right to the upper tribunal from tribunals in Northern Ireland in circumstances where the equivalent to tribunals in England and Wales have been transferred to the first-tier tribunal, and where there is a new appeal right to the upper tribunal in England and Wales. Similar provisions have already been made in the Bill for Scotland.
Clause 32 provides a power where a jurisdiction is transferred to the new tribunals under Clause 29 and such a jurisdiction is not transferred in relation to Scotland for the Lord Chancellor to provide by order for an appeal to the upper tribunal against a corresponding Scottish decision. It is now clear that a similar situation may arise in Northern Ireland, and Amendment No. 27 makes the necessary provision. Amendment No. 40 will ensure that any order made under this clause by the Lord Chancellor will be subject to the affirmative resolution procedure, as are orders made under Clause 32 in relation to Scotland.
Amendment No. 31 corrects a small but crucial error in the drafting of Clause 35. As currently drafted, Clause 35 would prevent existing tribunals being added to the lists of tribunals which can be transferred in Schedule 6. This is wrong. Our policy has always been that tribunals created before the Bill is passed will be eligible for transfer into the new system. That position is reflected in the Explanatory Notes. Amendment No. 31 corrects the error in the Bill, ensuring that only tribunals created by legislation after the Bill has passed will be precluded from being added to the lists. If the first-tier or upper tribunal is to have jurisdiction created by later legislation, it will need to be conferred by that later legislation rather than transferred using the machinery of Clause 35.
Amendment No. 41 is a result of the recommendation of the Delegated Powers and Regulatory Reform Committee. The committee pointed out that the powers to make orders subject to no parliamentary procedure include powers in Clause 30(2), (7) and (9), and in paragraph 2(1) of Schedule 9. The committee considered that, although these powers might be considered transitional in nature, they should be subject to negative procedure.
Clause 30 gives my noble and learned friend the Lord Chancellor a number of powers to enable the transfer of a tribunal to one of the two new tribunals. Clause 30(2) enables him to provide that, where a tribunal is abolished, judicial office-holders are mapped to one of the new judicial offices within either the first-tier or the upper tribunal. Clause 30(7) enables the Lord Chancellor to provide, by order, for the continuation of procedural rules following a transfer of functions, so that the jurisdiction can function within the new structure prior to the abolition of the original tribunal. Clause 30(9) allows him to make, by order, such incidental, supplemental, transitional or consequential provision or provision for savings as he thinks fit. Paragraph 2(1) of Schedule 9 gives him the power to make provision for a member of a listed tribunal to be considered for appointment by the Lord Chief Justice of England and Wales to the tribunal procedure committee. The Government accept the recommendation of the Delegated Powers Committee that these powers should be subject to the negative procedure. Amendment No. 41 makes the necessary change to Clause 46.
Amendments Nos. 97 and 98 alter the extent clause, which is Clause 138, so that Clause 134 extends to the Isle of Man. Clause 134 abolishes the Registered Designs Appeal Tribunal and diverts its jurisdiction to the Patents County Court and the High Court. We were unable to secure the formal consent of the Isle of Man Government to this clause in time for the introduction of the Bill because of their general election, but they have now indicated that they are content. I beg to move.
On Question, amendment agreed to.
Clause 33 [Transfer of Ministerial responsibilities for certain tribunals]:
28: Clause 33, page 26, line 42, leave out “subsection (1)” and insert “this section”
29: Clause 33, page 27, line 14, at end insert—
“( ) Subsection (4) does not apply to any relevant function of the Secretary of State—
(a) under section 41 of the Consumer Credit Act 1974 (c. 39) (appeals), or (b) under section 7 of the Estate Agents Act 1979 (c. 38) (appeals).”
On Question, amendments agreed to.
Clause 34 [Transfer of powers to make procedural rules for certain tribunals]:
30: Clause 34, page 28, line 11, at end insert—
“( ) Subsection (2) does not apply to—
(a) power conferred by section 40A(3) or 41(2) of the Consumer Credit Act 1974 (c. 39) (power to make provision with respect to appeals), or (b) power conferred by section 7(3) of the Estate Agents Act 1979 (c. 38) (duty of Secretary of State to make regulations with respect to appeals under section 7(1) of that Act).”
On Question, amendment agreed to.
Clause 35 [Power to amend lists of tribunals in Schedule 6]:
31: Clause 35, page 29, line 9, leave out “on or before” and insert “after”
On Question, amendment agreed to.
Schedule 7 [Administrative Justice and Tribunals Council]:
moved Amendment No. 32:
32: Schedule 7, page 141, line 37, leave out “, or without cause”
The noble Lord said: My Lords, Amendment No. 32 relates to paragraph 3(5) of Schedule 7. This paragraph deals with the term of office of appointed members of the council. Sub-paragraph (5) states:
“The Lord Chancellor may remove a person appointed under paragraph 1(2) on the ground of inability or misbehaviour, or without cause”.
The amendment would expunge “or without cause”. As we said in Committee, this expression is too vague and too ill defined to appear in the Bill. It is also too unfair. In those circumstances, we seek the House’s approval to change the sub-paragraph in the way that the amendment suggests. I see that the Minister is both nodding and smiling. I have good reason to hope in those circumstances that the Government will approve. I beg to move.
My Lords, I share my noble friend’s hope, not least because of the interest, which I have already indicated, that I am one of the people who could be dismissed in these circumstances.
In Committee I indicated that I found it difficult to understand this phrase, which would be widely interpreted by persons who are not lawyers, or indeed by persons of any kind, as meaning “for no reason”. That needs a bit of explanation before it is allowed to stay in the Bill. On the whole, I strongly support my noble friend’s amendment. I share the ambition that the noble Baroness should be her usual friendly self about it.
My Lords, I am very worried about the precedent that I have set.
I was going to say that when the noble Lord, Lord Kingsland, opposed the relevant provision, he was ably supported by the noble Lord, Lord Newton, and I said that I would reconsider it. Noble Lords may remember that during that debate I explained that the provisions were based on a requirement of Cabinet Office guidance on the creation of non-departmental public bodies. My officials have since queried the guidance and it has been acknowledged that provisions allowing removals without cause are inappropriate. I understand that the guidance has now been revised accordingly.
I am grateful to the noble Lord, Lord Kingsland, for tabling the amendment. We would have tabled our own had he not done so, but he deserves the credit. I have no hesitation in accepting it.
On Question, amendment agreed to.
moved Amendments Nos. 33 to 35:
33: Schedule 7, page 142, line 29, leave out “, or without cause”
34: Schedule 7, page 143, line 16, leave out “, or without cause”
35: Schedule 7, page 143, line 34, leave out paragraph 11
On Question, amendments agreed to.
36: After Clause 44 , insert the following new Clause—
“Co-operation in relation to judicial training, guidance and welfare
(1) Persons with responsibilities in connection with a courts-related activity, and persons with responsibilities in connection with the corresponding tribunals activity, must co-operate with each other in relation to the carrying-on of those activities.
(2) In this section “courts-related activity” and “corresponding tribunals activity” are to be read as follows—
(a) making arrangements for training of judiciary of a territory is a courts-related activity, and the corresponding tribunals activity is making arrangements for training of tribunal members; (b) making arrangements for guidance of judiciary of a territory is a courts-related activity, and the corresponding tribunals activity is making arrangements for guidance of tribunal members; (c) making arrangements for the welfare of judiciary of a territory is a courts-related activity, and the corresponding tribunals activity is making arrangements for the welfare of tribunal members. (3) Subsection (1) applies to a person who has responsibilities in connection with a courts-related activity only if—
(a) the person is the chief justice of the territory concerned, or (b) what the person does in discharging those responsibilities is done (directly or indirectly) on behalf of the chief justice of that territory. (4) Subsection (1) applies to a person who has responsibilities in connection with a corresponding tribunals activity only if—
(a) the person is the Senior President of Tribunals, or (b) what the person does in discharging those responsibilities is done (directly or indirectly) on behalf of the Senior President of Tribunals. (5) For the purposes of this section—
(a) “territory” means— (i) England and Wales, (ii) Scotland, or (iii) Northern Ireland; (b) the “chief justice”— (i) of England and Wales is the Lord Chief Justice of England and Wales, (ii) of Scotland is the Lord President of the Court of Session, and (iii) of Northern Ireland is the Lord Chief Justice of Northern Ireland; (c) a person is a “tribunal member” if the person is— (i) a judge, or other member, of the First-tier Tribunal or Upper Tribunal, (ii) a judge, or other member, of the Employment Appeal Tribunal, (iii) a member of a panel of members of employment tribunals (whether or not a panel of chairmen), or (iv) any member of the Asylum and Immigration Tribunal.”
The noble Baroness said: My Lords, in moving Amendment No. 36, I wish to speak also to Amendments Nos. 37, 38 and 39.
The Bill gives the senior president responsibility for the maintenance of appropriate arrangements for the welfare, training and guidance of tribunal judiciary and members of the first-tier and upper tribunals under paragraph 8 of Schedule 2 and paragraph 9 of Schedule 3. It does the same for legally qualified members of the employment tribunals, the EAT and the AIT under paragraphs 40, 43 and 53 of Schedule 8. The Lord Chief Justices of England and Wales and Northern Ireland have identical responsibility for the court judiciary under the Constitutional Reform Act 2005 and the Justice (Northern Ireland) Act 2002.
The Government have agreed with the senior judiciary that in carrying out these responsibilities it is desirable for there to be a duty of co-operation between the senior president and the Lord Chief Justices and that this duty should include the Lord President, even though he has no statutory responsibility for such provision at the moment.
In practical terms, this means the use by tribunals of institutions which report to the Lord Chief Justice of England and Wales—for example, the Judicial Studies Board for training, the Judicial Communications Office for advice on media and handling, and arrangements for counselling and supporting judges under the contract that was set up by the Department for Constitutional Affairs and which are now the responsibility of the Judicial Office. We do not at present consider that it would make sense to set up tribunal-specific services separate from the courts provided that the courts-based services can effectively meet the needs of the tribunals.
Amendments Nos. 36, 37, 38 and 39 extend the senior president’s responsibility for training, welfare and guidance to all members of the employment tribunals, the Employment Appeal Tribunal and the Asylum and Immigration Tribunal, not just the legally qualified ones. This will put the non-legal members of these tribunals on a par with members of the first-tier and upper tribunals who are already covered in the Bill. I beg to move.
My Lords, I make a formal objection to the use of the expression, “territory” for “England and Wales”. I do not think that is appropriate and I do not wish it to be a precedent to appear in any future legislation.
On Question, amendment agreed to.
Schedule 8 [Tribunals and Inquiries: consequential and other amendments]:
37: Schedule 8, page 159, leave out lines 33 and 34 and insert “members of panels of members of employment tribunals (in their capacities as members of such panels, whether or not panels of chairmen).”
38: Schedule 8, page 163, line 29, leave out from “of” to end of line 33 and insert “judges, and other members, of the Appeal Tribunal (in their capacities as members of the Appeal Tribunal).”
39: Schedule 8, page 169, line 46, leave out “legally qualified”
On Question, amendments agreed to.
Clause 46 [Orders and regulations under Part 1: supplemental and procedural provisions]:
40: Clause 46, page 34, line 21, after “32,” insert “(Power to provide for appeal to Upper Tribunal from tribunals in Northern Ireland),”
41: Clause 46, page 34, line 38, leave out from “Part,” to end of line 42
On Question, amendments agreed to.
Clause 47 [Judicial appointments: "judicial-appointment eligibility condition"]:
42: Clause 47, page 35, line 40, at end insert—
“( ) At any time before the coming into force of section 59(1) of the Constitutional Reform Act 2005 (c. 4) (renaming of Supreme Court), the reference to the Senior Courts in subsection (5) is to be read as a reference to the Supreme Court.”
The noble Baroness said: My Lords, in moving Amendment No. 42, I will speak to Amendments Nos. 43 to 55, 94 and 95. It is a rather large group of amendments, but that is because they are extremely minor and technical, and they fit together very well. I hope that noble Lords will bear with me in allowing me to speak to them together.
Amendments Nos. 42, 55, 47, 50 and 53 are simply transitional provisions for references to the senior courts to be read as the Supreme Court until Section 59(1) of the Constitutional Reform Act 2005, Chapter 4, on the renaming of the Supreme Court, comes into force. The amendments ensure that the courts are correctly described for the purposes of the legislation. Their omission from the Bill was an oversight, which the amendments seek to correct.
Amendments Nos. 94 and 95 are standard amendments, which protect the Lord Chancellor’s functions in relation to appointments made under the London Building Acts (Amendment) Act 1939 and the Social Security Act 1998. This means that those functions cannot be transferred to another person simply by order. The amendments correct an earlier omission from Schedule 7 to the Constitutional Reform Act 2005, which has only recently been identified.
Amendments Nos. 43 to 46 and 52 are minor amendments concerning certain judicial offices in the London Building Acts (Amendment) Act 1939 and the Social Security Act 1998. First, the amendments ensure consistency with other provisions in the Bill in relation to when a person qualifies as a barrister. Secondly, they extend the Lord Chancellor’s order-making powers, so that those powers will apply not only to the office of nominee under the 1939 Act, but also to the office of nominee’s deputy. Thirdly, they make minor drafting amendments identified by parliamentary counsel. They are technical amendments, which are being laid at this stage to ensure clarity and consistency with other parts of the Bill.
Amendments Nos. 48, 49 and 54 move from Part 1 to Part 2 of Schedule 10 those references to the Courts-Martial (Appeals) Act 1951, the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 that were repealed by the Armed Forces Act 2006, which received Royal Assent in November last year. The repealing provisions are not yet in force; hence it is appropriate that references to them be moved from Part 1 to Part 2 of Schedule 10. I beg to move.
On Question, amendment agreed to.
Schedule 10 [Amendments relating to judicial appointments]:
43: Schedule 10, page 183, line 7, leave out “In” and insert “For”
44: Schedule 10, page 183, line 7, leave out from “nominee)” to end of line 8 and insert “substitute—
“(b) A person is eligible to be nominated by the Lord Chancellor under paragraph (a) or (h) of this subsection only if the person—”
45: Schedule 10, page 183, line 22, at end insert “, but as if the reference in subsection (3) of that section to section 47 of that Act were a reference to this section.”
46: Schedule 10, page 183, line 22, at end insert—
“( ) For the purposes of paragraph (b) of subsection (1) of this section, a person shall be taken first to become a barrister—
(a) when the person completes pupillage in connection with becoming a barrister, or (b) in the case of a person not required to undertake pupillage in connection with becoming a barrister, when the person is called to the Bar of England and Wales.”
47: Schedule 10, page 183, line 28, at end insert—
“( ) At any time before the coming into force of section 59(1) of the Constitutional Reform Act 2005 (c. 4) (renaming of Supreme Court), the reference to the Senior Courts in the section 109(1)(b) substituted by sub-paragraph (2) is to be read as a reference to the Supreme Court.”
48: Schedule 10, page 184, line 2, leave out sub-paragraph (2)
49: Schedule 10, page 184, line 20, leave out paragraphs 7 to 9
50: Schedule 10, page 187, line 40, at end insert—
“( ) At any time before the coming into force of section 59(1) of the Constitutional Reform Act 2005 (c. 4) (renaming of Supreme Court), the references to the Senior Courts in the Schedule substituted by sub-paragraph (3) of this paragraph are to be read as references to the Supreme Court.”
51: Schedule 10, page 190, line 33, at end insert “, but as if the reference in subsection (3) of that section to section 47 of that Act were a reference to this section.”
52: Schedule 10, page 190, line 33, at end insert—
“( ) For the purposes of subsection (2)(a) above, a person shall be taken first to become a barrister—
(a) when the person completes pupillage in connection with becoming a barrister, or (b) in the case of a person not required to undertake pupillage in connection with becoming a barrister, when the person is called to the Bar of England and Wales.”
53: Schedule 10, page 191, line 9, at end insert—
“( ) At any time before the coming into force of section 59(1) of the Constitutional Reform Act 2005 (c. 4) (renaming of Supreme Court), the reference to the Senior Courts in the section 7(2)(a) substituted by sub-paragraph (3) is to be read as a reference to the Supreme Court.”
54: Schedule 10, page 194, line 20, at end insert—
“ (1) In section 28(2) of the Courts-Martial (Appeals) Act 1951 (c. 46) (Judge Advocate of Her Majesty’s Fleet)—
(a) for paragraph (a) substitute— “(a) a person who satisfies the judicial-appointment eligibility condition on a 7-year basis;”, and (b) in paragraphs (b) and (c), for “10” (in each place where it occurs) substitute “7”. (2) In section 84B(2) of each of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) and the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) (judge advocates), for paragraph (a) substitute—
“(a) a person who satisfies the judicial-appointment eligibility condition on a 5-year basis;”. (3) In section 103B(5) of each of those Acts (qualified officers in field general courts-martial), for paragraph (a) substitute—
“(a) a person who is a barrister or solicitor in England and Wales;”. (4) In section 53B(2) of the Naval Discipline Act 1957 (c. 53) (judge advocates), for paragraph (a) substitute—
“(a) a person who satisfies the judicial-appointment eligibility condition on a 5-year basis;”. (5) In relation to the enactments referred to in sub-paragraphs (1) to (4), the repealing provision is Schedule 17 to the Armed Forces Act 2006 (c. 52).”
On Question, amendments agreed to.
Clause 48 [“Relevant qualification” in section 47: further provision]:
55: Clause 48, page 37, line 19, at end insert—
“( ) At any time before the coming into force of section 59(1) of the Constitutional Reform Act 2005 (c. 4) (renaming of Supreme Court), the reference to the Senior Courts in subsection (11) is to be read as a reference to the Supreme Court.”
On Question, amendment agreed to.
56: After Clause 53, insert the following new Clause—
“Enforcement by taking control of goods
(1) There shall be a form of enforcement against corporeal moveable property for recovery of money owed that is to be known as taking control of goods.
(2) Taking control of goods shall include selling them to recover a sum of money.
(3) Schedule 12 shall apply where an enactment, writ or warrant confers power to take control of goods.
(4) Regulations may make provision about taking control of goods, including provision determining the time when control is taken.
(5) Any liability of an enforcement agent (including criminal liability) arising out of his securing goods on a highway is excluded to the extent that he acted in accordance with Schedule 12 and with reasonable care.”
The noble Lord said: My Lords, I will speak at the same time to Amendment No. 58. The amendments are intended to be entirely helpful. They follow on from discussions in Committee and arise from widespread misunderstanding of what the words “taking control of goods” in the Bill meant. Many people in the industry, and observers, have expressed concern, reading the words in the Bill as they do, that the ability of the bailiff, if I may use that word in the context of this Bill, to take control of goods is unduly restricted by the phraseology in Schedule 13. It is not clear that the bailiff can accept taking control when the debtor is not there, even if some obviously adult, responsible person is there.
It is not clear, although it has been widely canvassed, that the bailiff should be able to take walking possession of goods in the manner in which that is done in Scotland. Both make for a flexible service, because the object of individual bailiffs, although not necessarily the law on bailiffs, is that they should not actually remove goods—what they want to remove is the debtors’ money, and bailiffs use the threat of the removal of goods to achieve that, albeit over a reasonably short timescale. All sectors of the industry would like the Bill to end the necessity for the removal of goods when you cannot take walking possession.
My amendment is an attempt to put that into English and to put it into regulations in which all noble Lords feel that a matter of this complexity best resides. Any problems that arose could then be dealt with easily and we could ensure that the practice, as it would have arisen under this Bill, could be adjusted to ensure that the system was working correctly. I beg to move.
My Lords, I am extremely grateful to the noble Lord, Lord Lucas, for raising these issues. Perhaps I may say at this stage that I am also grateful for the helpful way in which we have debated the issues around this part of the Bill and the amount of work that the noble Lord has done on it.
I have thought very carefully about what the noble Lord is seeking to achieve. I went back and looked at the recommendations of the Independent Review of Bailiff Law, published in 2000 by Professor Jack Beatson. On the face of it, the idea of moving this matter into regulations and being able to manoeuvre the situation in the way that the noble Lord suggests is always attractive, because that would achieve his aims and it is usually my desire to do that. But Professor Beatson’s Recommendation (1)(a) struck me as vital in this context. He said that the fundamental rules governing distress should be set out in one place—in statute. Recommendation (21) set out what the methods of taking control of goods should be. We have set those out in paragraph 13 of Schedule 12. Noble Lords have generally welcomed the bringing of bailiff law together into one place.
We had to make a decision as to whether we used primary or secondary legislation. I have talked the matter through with officials at some length over the past few days to see whether we were in the right place—and I think that we are, because it is important to bring bailiff law together on the face of legislation. That is because my objective is to clarify, rationalise and simplify enforcement agent law for all the reasons that were dealt with in Grand Committee and to bring certainty, both to professionals who deal with the law and to those who are at the receiving end of it. Noble Lords will recall that we talked about all the different pieces of law—some in statute, some in common law—through which bailiff law had grown over the centuries. For that reason, I am inclined to keep it where it is—that is a key recommendation on what we should do.
The fact that there are many regulation-making powers within the Bill does not preclude continuing to talk, not only to the noble Lord, Lord Lucas, and other noble Lords, but to the members of the industry with whom we have begun a dialogue, Citizens Advice and others, about precisely how the regulation-making powers are set out. I am keen to do that over the next few months as we develop this area.
The noble Lord was particularly concerned about those who sign a controlled goods agreement, which we talked about in Grand Committee. I made it clear then, and I reiterate again, that we are not precluding someone else signing on behalf of the debtor, provided that they have been authorised to do so. If a person volunteers to sign, it is for the enforcement agent to ascertain the relationship and to be satisfied that the debtor wants that person to sign. We will look to developing how that will look, the criteria and so on, in conjunction with those involved—both those who are concerned that someone might sign inappropriately and those who are concerned to ensure that if you are able to sign on behalf of the debtor, it is done properly. If no one is willing to claim such authority, the enforcement agency should try to contact the debtor by telephone to explain the situation and see whether they can instruct someone else to sign the agreement. If no one is willing to sign the agreement, the enforcement agency must act within its rights to take control of the goods immediately.
Of course such an agreement should not be signed by someone who is under 18 or would not understand the nature of what they were doing and the consequences of the document that they were signing. We are going to work very carefully to make sure that we set this out properly, which I think is what the noble Lord, Lord Lucas, is keen should be done. In the light of the principle that I have set out, and with the assurance that we will consider carefully how we do this so that we do it properly and get it right, I hope that the noble Lord will not press his amendment.
My Lords, I am grateful for the consideration that the noble Baroness and her team have given this. I still think that she has come to the wrong conclusion, but she is entitled to do that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 12 [Taking control of goods]:
57: Schedule 12, page 200, line 34, at end insert—
“4A (1) The following fall into the definition of exempt goods so as to preclude seizure of—
(a) any goods which are fixtures or fittings attached to the premises including goods which are plumbed in or connected to water, fuel or power supplies, (b) domestic animals and animals kept as pets, (c) guard dogs, (d) any dog on which a blind person relies, (e) any animal which is kept for commercial gain, save as is allowed through common law and where provision for the welfare of the animal has been arranged in advance, (f) in the case of domestic dwellings no sum of money of £500 in cash or below, (g) in the case of domestic dwellings no sum of money which would leave the debtor with less than £500. (2) In the case of domestic dwellings no sum of money above £500 is to be removed without the civil enforcement officer recording the purpose for which the money is to be used.”
The noble Lord said: My Lords, first of all I would like to say a word about the groupings. The next few groups—those down to Amendment No. 73—are almost all in my name. I had an opportunity to change the groupings when I got an e-mail this morning telling me what they were but, for one reason or another, I was not able to do it. I have no complaints about that; I had every opportunity. I merely want to say that the two main speeches that I am going to make are on Amendments Nos. 57 and 62, although I will be speaking to quite a lot of the other amendments on the way. I hope that your Lordships will help me to steer my way through this considerable maze of amendments and I thank the Minister for all the work that she has done in this area and all the people she has seen and talked to about it.
The crucial paragraph is, where a person falling into the above category,
“is discovered by an enforcement agent to be the occupier … the matter shall be referred back to the court and no seizure of goods may proceed without leave of the court; and the person may be bailed to appear at the court by the enforcement agent”.
I have been told of a case in which a lone mother with two children under 16 was, in her absence, fined £175 for the truancy of one of them. The enforcement agent put her on bail to appear in court on a certain day. It was discovered by a volunteer who prepared her means statement that the child in question was deaf, the mother was long-term unemployed on income support—which is below the Government’s poverty threshold—and their home was more than three and a half miles away from the school. They were vulnerable people. The education authority had failed to inform the magistrates of these essential facts. When they heard them, the magistrates set their decision aside. The case was tried again, and she was acquitted. Under the present regime and the proposed regime of collection orders and warrants for forced entry, the most likely outcome would be that the fine would have been enforced, threats would be made to force entry, goods could have been seized and the magistrates could never know the facts.
Compassionate allowance must be made for the difficulty of paying for transport and telephones for impoverished families to reach and communicate with the court. Lone parents on benefit who do not get to the court for minor misdemeanours, such as the absence of a TV licence or truancy by their children, are all treated as hardened criminals in the Bill. The Government’s list of those in vulnerable situations, set out in a letter to me, to be covered in bailiffs’ training does not include people who are unemployed on benefit with no assets, those who are illiterate or those who do not yet speak English. A clear procedure should also be set out for dealing with a wrong address, wrong name and other bureaucratic errors, which are all too frequent.
In my experience, an awful lot of debt enforcement authorities are totally illiterate. I receive at about 10-day intervals debt demands for someone who has not lived in my house for the past 16 years. I explain this in considerable detail—much more than I think is called for by the law—and send back what I receive, but I get no acknowledgement and, sure enough, in a week’s time the same notice appears. There are considerable inaccuracies in this kind of work.
The only mention of vulnerable groups or persons in the document produced by the DCA relates to the training that enforcement agents will need to undertake before they receive a certificate. Page 9 of the National Standards for Enforcement Agents, which covers vulnerable situations, is ignored. Training is not enough. It is certainly possible that, once the bailiff has received his certificate, he will forget his training under pressure from his management to collect their fees. Mistakes will be made in good faith or bad, and remedies should be sought on behalf of vulnerable people against legal criteria.
Although an upfront fee will be paid by the Government, we do not know how much it will be, and the vast majority of the companies’ profits will come from fees paid by debtors and defaulters. Bailiffs should earn that upfront fee by ensuring that justice is done when they find themselves enforcing disproportionate fines against vulnerable people. At this stage, I add that, in our experience, bailiffs are only too ready to do that.
Very great powers are being given in the Bill to thousands of civilians to exercise force against the persons of other civilians and force entry into their homes. Enforcement agents should receive training on the laws governing their behaviour when they encounter vulnerable situations. That requires description in the Bill under the provisions covering vulnerable people. It is said by the department that these powers will be used only in the last resort, but what that means in practice is a state secret.
The Zacchaeus 2000 Trust has at last been sent the magistrates’ courts’ guidance about the search-and-entry powers in the Domestic Violence, Crime and Victims Act. It has 31 pages, 15 of which have paragraphs redacted. I am far from clear what the word “redacted” means but, so far as I have been able to see by looking at the document, it means “crossed out with a black pencil”. The public are not to be told the secret instructions given by the Government to bailiffs about how to knock on their doors and seize their goods. That information is needed by the volunteers of NGOs working with vulnerable households, because they are the only people who can monitor the performance of the bailiffs against government guidance and call them to account if that guidance is not adhered to or the bailiffs are dishonest, perverse, unreasonable or unlawfully violent, all of which can happen.
I should be grateful to be given assurance that certification of an enforcement agent will apply to agents enforcing fines on behalf of the magistrates’ court and collecting council tax on behalf of local authorities. Short of there being a regulatory body, certification is the only route to a remedy against enforcement agencies exceeding their powers via a complaint to the court issuing the certificate. I beg to move.
My Lords, I am grateful to the noble Lord for, first, identifying that he wanted to cover a range of issues. I shall deal with some of his general points, but he will forgive me if I can better deal with some of the issues—on certification and bailiffs, for example—when addressing them in the round. It is no disrespect to the noble Lord that I do not deal with them effectively.
I also pay tribute to the Reverend Nicolson, from the Zacchaeus 2000 Trust, who did me the courtesy of seeing me on 18 January. We had a good and, at times, robust discussion which I found extremely useful. He gave me a lot of food for thought. Although we come at this from slightly different perspectives, I thank him very much. Many of the things he has written to the department about, and will continue to raise with us, are important as we put this legislation into practice.
I completely understand the desire to recognise vulnerability in everything that we do. We are dealing with circumstances with creditors and debtors, and where the courts have made decisions. We must therefore be mindful of upholding the law. In so doing, however, we must be clear that there are extremely vulnerable people. One reason for bringing the legislation together into one piece of law—from common law, statute, regulations and so on—is to enable greater clarity both for those who enforce the law and those at the receiving end, as I said on the previous amendment. That is an important part of what we have done.
We have done quite a lot in improving the opportunities to deal with debts in different ways. I know that we have not spent a huge amount of time on that in either Committee or your Lordships’ House today. That is not through lack of interest, but because there is a general view among noble Lords that these are good things to do. There is a general recognition in all that we are doing that we must provide a range of opportunities to help and support people who get into debt, while recognising that creditors have a right to get their goods back or have their debts resolved. That is the premise on which I speak to the next groups of amendments.
There are no secret instructions. I would be more than happy to talk about how we intend to talk to the industry and share what we will be doing next with noble Lords as far as I can. There is no secrecy on my part; I find that practically impossible. We want to be as clear as we can. The greater clarity comes because we will be as open as possible. I reassure the noble Lord, and trust that he will hold me to that as we progress from legislation to action.
To answer the noble Lord’s amendments, I think I also read out the list in paragraphs 130 to 133 of our policy statement, a copy of which has been placed in the Library, in Grand Committee. It is a list of exempt items which we intend to contain in regulations so that we can amend them in response to changes; mobile phones might be in or out, but we certainly would not have put them in 20 years ago. It includes fixtures and fittings, including those connected to water, fuel and power supplies. It also includes domestic pets and dogs that aid the blind or hard of hearing, and a minimum amount of cash that must be left on premises for the purpose of sustaining normal everyday living for the debtor and his family.
As I have indicated, it is better to keep this in regulations to give flexibility and ensure that changes can be made easily and quickly in response to experience. For example, the amount of cash that must be left on the premises will vary from household to household, for reasons the noble Lord will know well. We do not want a fixed sum in the Bill, as amending it in future legislation would be difficult and time consuming. That is the basis on which we will be open. I hope that our lists will offer the noble Lord comfort, and that he will feel able to withdraw his amendment.
On Amendments Nos. 59 and 60, we do not want a code of practice to deal with vulnerable debtors; it is not necessary. We want to ensure that everything we do clarifies what enforcement agents are and are not legally entitled to do. Schedule 12 and its underpinning regulations will do that. Paragraph 12 of Schedule 12 in general restricts what may be taken to the value of the outstanding debt plus future costs. Regulations under paragraph 3(1) of Schedule 12 will stipulate a list of exempt goods. Regulations will also reflect the provisions from the National Standards for Enforcement Agents, which state that on discovering that the only person on the premises is a child aged 12 years or under, the enforcement agent must withdraw immediately without making further enquiries. If the enforcement agent were to ignore those regulations, remedies would be available to the debtor under paragraph 66 of Schedule 12.
The training requirements for enforcement agents in Clause 56 and the training for agents who are Crown employees will also cover how enforcement agents should identify and deal with vulnerable and potentially vulnerable debtor groups. Enforcement agents, suitably trained and in full possession of the facts of the case, will then be in the best position to judge and to know what they should do. The concept of vulnerability is difficult to define. The noble Lord would probably say that it is not possible to be sure that he has covered everyone he would want to, but it is difficult to argue that someone who does not speak English as a first language is necessarily always vulnerable.
Finally, I should add that, in many circumstances, debtors already have the right to apply to the court to stay enforcement action, and Part 5 of the Bill introduces a new set of targeted measures to help vulnerable debtors. In particular, they will, where appropriate, allow reduction and remission of debts. I hope those reassurances will enable the noble Lord to withdraw his amendment, and I assure him that I will attempt to make sure that we keep him in touch with what we are doing.
My Lords, I am grateful to the Minister, who is obviously taking immense trouble over this area. Although the two sides are moving together, I cannot say that we are completely satisfied, and we would like to see more in the Bill. However, this is not something that I want to take to Third Reading, particularly under the new definitions of what should be done at that stage, as it is a matter that can be pursued in another place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 58 to 60 not moved.]
61: Schedule 12, page 203, line 19, leave out paragraphs 14 to 30 and insert—
“Entry to take control of goods 14 (1) An enforcement agent may enter relevant premises to search for and take control of goods.
(2) Where there are different relevant premises this paragraph authorises entry to each of them.
(3) This paragraph authorises repeated entry to the same premises, subject to any restriction in regulations.
(4) If the enforcement agent is acting under section 64(1) (CRAR), the only relevant premises are the demised premises.
(5) If the enforcement agent is acting under section 121A of the Social Security Administration Act 1992, premises are relevant if they are the place, or one of the places, where the debtor carries on a trade or business.
(6) Otherwise premises are relevant if the enforcement agent reasonably believes that they are the place, or one of the places, where the debtor—
(a) usually lives, or (b) carries on a trade or business. (7) An enforcement agent may if necessary use reasonable force to enter relevant premises or to do anything for which the entry is authorised if any of these conditions are met—
(a) the enforcement agent is acting under section 64(1) (CRAR) and the provisions of paragraph 15 are met, (b) the conditions of paragraph 17 (re-entry to inspect or remove controlled goods) are met, or (c) in all other cases, if the premises contain no living or domestic accommodation. (8) Where an enforcement agent is not authorised to use reasonable force by virtue of paragraph 14(7) he may apply to the court for an order under paragraph 16 authorising him to use reasonable force if necessary to enter the premises or to do anything for which entry is authorised.
Special entry provisions for Commercial Rent Arrears Recovery 15 (1) When an enforcement agent is acting under section 64(1) (CRAR), the enforcement agent may, if he considers it necessary, use reasonable force to enter or to do anything for which the entry is authorised at the premises if they include domestic or living accommodation in actual use.
(2) This power may be used only if these conditions are met—
(a) it is necessary to traverse a part of the premises used for domestic or living accommodation (other than the common parts) in order to reach the part of the premises where the debtor carries on a trade or business, (b) the enforcement agent uses only the normal methods of entry used by visitors to the premises, and (c) an oral request to allow entry has not been granted. Application for authority to force entry 16 (1) If the enforcement agent applies to the court it may issue a warrant authorising him to use, if necessary, reasonable force to enter the premises or to do anything for which entry is authorised.
(2) Before issuing a warrant the court must be satisfied that all these conditions are met—
(a) an enforcement power has become exercisable; (b) there is reason to believe that there are goods on the premises that the enforcement power will be exercisable to take control of if the warrant is issued; (c) provisions prescribed in regulations are met; and (d) it is reasonable in all the circumstances to issue the warrant. (3) The authorisation may be subject to conditions.
(4) The warrant may require a constable to assist the enforcement agent.
Re-entry to inspect or remove controlled goods 17 (1) An enforcement agent may re-enter any premises where there are controlled goods which have not been removed by the enforcement agent.
(2) The enforcement agent may if necessary use reasonable force to enter the premises to inspect the goods or to remove them for storage or sale.
(3) This paragraph authorises repeated re-entry to the same premises, subject to any restrictions in regulations.
General provisions about entry and re-entry 18 (1) The enforcement agent must on request show the debtor and any person who appears to him to be in charge of the premises evidence of—
(a) his identity, and (b) his authority to enter the premises. (2) The request may be made before the enforcement agent enters the premises or while he is there.
(3) The enforcement agent may take other people onto the premises who may assist the enforcement agent in exercising any power, including a power to use force, but who may not remain on the premises without the enforcement agent.
(4) The enforcement agent may take any equipment onto the premises and may leave equipment on the premises if he leaves controlled goods there.
(5) The enforcement agent may enter and remain on the premises only within prescribed times of day.
(6) Regulations may give the court power in prescribed circumstances to authorise him to enter or remain on the premises at other times.
(7) The enforcement agent must leave the premises as effectively secured as he finds them.
General provisions about the use of force to enter and to re-enter 19 (1) This paragraph applies where an enforcement agent has power to use reasonable force if necessary to enter premises
(2) The power to enter and any power to use force are subject to any restriction imposed by or under regulations.
(3) A power to use force does not include power to use force against persons
Notices and lists of goods 20 (1) After entering or re-entering premises the enforcement agent must provide a notice for the debtor giving information about what the enforcement agent is doing. Regulations must state—
(a) the form of the notice; and (b) what information it must give. (2) Regulations may prescribe circumstances in which a notice need not be provided after re-entry to premises.
(3) If the debtor is on the premises when the enforcement agent is there, the enforcement agent must give him the notice then.
(4) If the debtor is not there, the enforcement agent must leave the notice in a conspicuous place on the premises.
(5) If the enforcement agent knows that there is someone else there or that there are other occupiers, a notice he leaves under sub-paragraph (1) must be in a sealed envelope addressed to the debtor.
(6) If the debtor is absent from the premises, the enforcement agent must leave at the premises a list of any goods he takes away.
(7) If the enforcement agent knows that there is someone else there or that there are other occupiers, a list he leaves under sub-paragraph (6) must be in a sealed envelope addressed to the debtor.”
The noble Lord said: My Lords, in speaking to Amendment No. 61, I shall speak also to Amendments Nos. 64 and 66. These amendments are designed to be helpful. My experience of the Bill has been marked from the very beginning by total confusion about the meaning of the powers it contains for taking control of goods. I am sad to say that that confusion is shared by almost everybody I have talked to. I have been in long and extensive discussions with people involved in or looking at the industry, and I have listened to the noble Lord, Lord Thomas of Gresford, on other occasions, and the way things are set out in the Bill is unclear. If that remains the case, it will be extremely difficult for whoever regulates the industry to make sure that those who are subject to the Bill because money is being recovered from them by a bailiff understand what their situation is and what the powers of the bailiff are.
This weighty amendment is an attempt to redraft things in a way and in an order that make the Bill, as we understand it, clear—it is quite possible that because of continued confusion we have misunderstood it. It is a plea to the Government to have this important part of the Bill set out with clarity, in clear English, in a logical order and all together, so that somebody looking at the legislation—for example, an advisor at the citizens advice bureau—can have a clear idea at first reading of whether, in particular circumstances, a bailiff is likely to be acting within the law. I have found that—and I am no lawyer, but I have been reading law, as it were, for the past 15 years in this place—extremely difficult to do with the Bill. Doubtless the noble Baroness will pick me up on some points where I have continued to misunderstand the provisions.
I would like the noble Baroness’s views on one important point of difference. At a meeting of the Enforcement Law Reform Group an issue attracted support from around the house, as it were—both from bailiffs and from the likes of the Zacchaeus 2000 Trust; that is, after the bailiffs have entered a house, probably peaceably, and taken control of goods, when they turn up again to deal with the matter and are refused entry they should have the power that they have currently to make a forcible entry without having to go to a court. Otherwise, their feeling was that the debtor, who at that point has refused to produce money and may well have an excess of courage and defiance to refuse them entry, would make them go through the whole business of applying to a court to get in again. Rather than that, whenever there is any doubt, they would be inclined to take the goods at first instance.
As I said on the previous amendment, bailiffs do not wish to do that. It is good neither for them nor for the debtor that they should. So, I very much hope that the noble Baroness will confirm that the existing practice will be allowed to continue. Furthermore, I understand that that has the support not only of the bailiffs but also of those whose primary care is the debtor. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Lucas. I shall deal first with Amendment No. 61 and then with the other three. Many of the provisions in the amendment are already contained in the Bill. I will not comment on those, but I will comment on the provisions where they deviate from the proposals in the Bill. Paragraph 14(7)(c) would introduce a new power to force entry without prior judicial authority on to commercial premises.
We do not think that that power is justifiable. Forced entry should be allowed only without prior judicial authority for the enforcement of unpaid fines in line with current law. To be allowed forced entry the creditor or enforcement agent would need to prove that such force is necessary and justifiable.
Paragraph 15(1) would introduce a power to force entry on to mixed-use premises when pursuing debts under the commercial rent arrears recovery system—CRAR. We think that that is unnecessary. The whole nature of the CRAR system is that it is only applicable for commercial tenancies in wholly commercial premises. As an out-of-court remedy, which this is, there is a real risk that it would not be compliant with the European Convention on Human Rights if we did not restrict it to commercial tenancies and premises and allowed it for mixed use.
Paragraph 15(2)(b) refers to entry being carried out by “normal methods”. I am not sure I understand what that means; we need to define “normal means”. I am a little worried that “normal means” could be interpreted as meaning that other methods will be considered acceptable in other circumstances. The Bill and its underpinning regulations intend to do away with many of the other methods of entry currently considered legal, such as climbing through broken windows and skylights and landlords lifting up floorboards to get into premises below. I do not want to see any of those methods returning by the back door, if I can use that analogy.
Paragraph 17 contains new powers regarding re-entry. That matter is touched on in Amendments Nos. 64 and 66, which I will come on to in a moment. Likewise, a new power in paragraph 19 covers some ground that we will shortly be debating in more detail in Amendments Nos. 69, 70 and 71. I hope that the noble Lord will understand why I would like to leave that matter for now. I also do not want to get into restraint issues because I want to talk about them in greater detail. I hope that, on the basis of what I said the effects of that would be, the noble Lord will feel able to withdraw Amendment No. 61.
I turn to Amendments Nos. 64 and 66 and government Amendment No. 65, which I propose not to move this evening. When the noble Lord, Lord Lucas, spoke eloquently in Grand Committee and on Second Reading, he was concerned that a debtor who worked from a room in his house might be subject to the powers of forced entry to commercial premises. He contrasted that with the commercial rent arrears recovery proposals, where entry to mixed-use premises is prohibited.
Having been taken by the noble Lord’s argument, I went away with the promise to consider it and came back with an amendment that did what I thought that he wanted. He now wants to do something quite different. I understand that, because since I drafted and laid that amendment, both the noble Lord and I have had representations from both sides of the debate—the enforcement industry and the debt advice sector—concerned that such a tightening of powers of re-entry may have unforeseen consequences of more enforcement agents being encouraged to remove goods on the first visit, rather than entering into a controlled goods agreement or securing goods on the premises. Naturally, that is something that we—and, more especially, the debt advice sector—are particularly keen to avoid.
The noble Lord subsequently tabled further amendments, Amendments Nos. 64 and 66, which would give the power of forced re-entry without prior judicial authority to all enforcement agents and all types of premises for all types of debt. I hesitate to give that proposal unqualified approval, as it may be going too far in the other direction.
I am also taken with what the advice agencies have said. We need to look at the matter in greater detail. There needs to be some provision to give the power of re-entry without prior judicial authority to avoid scenarios where enforcement agents feel compelled to remove goods on the first visit. I am, however, unsure that that would give sufficient protection to vulnerable debtors in domestic premises. Scope exists to provide for such limitations to be imposed by way of regulations under Paragraph 24(1) of Schedule 12, so there could be some protection for people in those circumstances. I would like to consider the matter further.
If noble Lords will permit me, I would like not to move government Amendment No. 65, to take away what lies behind Amendment Nos. 64 and 66 and have further discussions not only with the noble Lord but with different sides on this debate, in order to return to the matter at Third Reading, if that seems appropriate. On that basis, I hope that the noble Lord can withdraw Amendment No. 61 and allow me to take the other issues away and come back.
My Lords, of course I will withdraw Amendment No. 61. As for the rest of the discussion, it merely illustrates how confused I was. As the parliamentary draftsmen will be spending more time on the Bill, if they find opportunities to render this part more understandable—if not to the layman, at least to the informed layman—I shall be most grateful for those efforts. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
62: Schedule 12 , page 203, line 21, at end insert—
“( ) This Act expressly preserves all common law rights restricting entry by force to a private dwelling by a civil enforcement agent.”
The noble Lord said: I shall speak also to Amendments Nos. 78, 63, 68, 67, 72, 69, 71 and 73. The amendment is intended to undergo the damage to a constitutional convention under the Domestic Violence, Crime and Victims Act 2004. I shall speak in particular to Amendment No. 67. The Act tore up 400 years of common law that had achieved balance of justice between bailiffs and debtors. Neither this House nor another place were informed about that vital history of the common law when the Bill was debated.
“An Englishman's home is his castle” is one of the best-known and most influential maxims of English law. The rule is arguably one of the foundations of private life in England and Wales, along with the right to self-defence in the home. Brewer’s Dictionary of Phrase and Fable records:
“Englishman's castle. His house is so called, because as long as a man shuts himself up in his own house, no bailiff can break through the door to arrest him or seize his goods”.
The saying originates from the judgment in the Semayne case, which laid down the role that no one may break into a dwelling house without proper lawful authority. For generations, this principle has been recited in numerous judgments and has been an unspoken presence in many more. It is a perfect example of how common-law rule has entered into the language and culture and shaped social conduct thereafter, to the point that it is accepted automatically and even unconsciously by all law-abiding citizens.
In 1964, Lord Denning, in Southam v Smout, quoted a speech in Parliament by William Pitt the Elder, first Earl of Chatham, which is described as the classic passage on the principle. He said:
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement”.
We maintain that the Government have lost all sense of proportion by sweeping away such wisdom from the law.
From 1604 to 2004, the bailiffs had to enter domestic premises peacefully. Forcible entry and the use of force against the person by bailiffs were not allowed. Now, for fines with a warrant, bailiffs can force entry without notice and, it is proposed, restrain the defaulter. The Bill will also allow bailiffs to restrain, with force against the person, debtors who interfere or threaten to interfere with their seizure of goods. The Government have received a copy of the minute from the meeting of the Enforcement Law Reform Group, which comprises bailiffs, creditors and the advice sector, showing that none of them wants the Government to allow bailiffs to restrain debtors who interfere with their work, preferring to rely on the general right to self-defence.
Such a bad law will certainly be used and abused. I can visualise the possibility of an unemployed lone parent with several children receiving benefits and under stress because of her poverty. Indeed, the DCA has been shown a copy of an Answer to a Parliamentary Question showing that all unemployment benefits are below the Government’s poverty threshold. The lone parent has been fined for failure to pay her TV licence, which the DCA now refers to as a criminal fine, when such fines have in the past been enforced as a civil debt, as they are a debt to the Crown. She has debts to Provident plc, the leading home credit company, of £500, on which she pays £300 in interest over a year. HM Revenue and Customs was late cancelling the child benefit for her eldest son when he reached 18, finished full-time education and left home, so she is repaying an £800 overpayment. She has not responded to the summons about the TV licence because she is semi-literate and cannot afford the transport to the courts, and there is no one to look after the children while she is out. She is fined disproportionately in her absence. The male civil enforcement officer has a warrant to seize her goods to cover the fine and his fees. He forcibly enters the property with a male colleague, she threatens to punch him on the nose, the two men hold her down, and a fight ensues. The children join in defence of their mother and are traumatised. In different circumstances, social services put children on the at-risk list when they are traumatised by domestic violence between partners. Any complaint will be her word against the bailiffs, and the chances of her having advice or legal aid are very slim. Repercussions in the community against the bailiffs are more likely than any appeal. Such a bad law authorising violence will certainly be used and abused by bailiffs. Noble Lords may think that I have put together an extreme sob story, but every bit of it could actually happen.
The problem of increasing violence against the officers of the state and others in public office is very serious, and is faced by bailiffs, civil enforcement officers, probation officers, police, social workers, doctors and nurses, and sometimes even the clergy. It needs to be addressed across the board rather than piecemeal or in a manner that will create more violence, as in the particular case of the proposals for bailiffs. I ask the Government to think again about the clauses that make the way for regulations authorising restraint against the person. I beg to move.
My Lords, as I indicated to the noble Lord, Lord Beaumont, the only way in which we can deal with this on Report is to deal with the groupings in order, which I intend to do. He has raised individual cases, but he will know very well that I cannot respond in these circumstances. Reverend Nicolson was good enough to raise some of these issues with me. I am always mindful when looking at how this law will be enacted that we consider individual circumstances put before us. I take heart from the fact that the noble Lord is willing to do that. Better for us to discuss that beyond your Lordships’ Chamber than my clear inability to respond, for I know not the facts and am unable to deal with the information now.
Perhaps I may turn to these amendments so that we have clarity about where we sit. I will commit, as ever, to continuing discussions beyond your Lordships’ House—I think that many of the noble Lord’s concerns are about what we do. I reiterate one thing, which I hoped that I had covered in my opening remarks on the previous group and is pertinent to much of what he said on this group. The purpose behind this legislation is to bring together, to simplify and to clarify the law covering the work of bailiffs and other enforcement agencies, specifically in order to make it better for them, but also better for the debtors. Much of the provision in Part 5 is designed to support vulnerable people with debts in the circumstances in which they find themselves, but also to recognise that creditors have rights too.
The Bill is very balanced, so the noble Lord will understand my personal anguish when it is suggested that it is other than that, because that is exactly what I seek to do. In enacting this legislation, we will be very careful to ensure we take on board the points that have been raised, but deal with them in an appropriate manner. As I have said, we have to find that right balance between creditors and the rights of those to whom they owe money. The current system, which is based on common law conceived hundreds of years ago, needs to be brought up to date. It is complex, confusing and difficult to understand, which the noble Lord indicates with many of his examples. That has to change. There is an overwhelming case for simplification and clarification. One of the long-standing objectives of the civil enforcement review is to make enforcement law understandable and more straightforward.
This Bill will achieve that. It will introduce in one piece of legislation a single piece of enforcement agent law that will contain in one place the legal structure for virtually all enforcement of civil debts, judgments and criminal fines, written in terms that identify and outline the rights and responsibilities of creditors, debtors and enforcement agents alike. That needs to be achieved in one place. The retention of certain common-law rights and responsibilities standing totally separately from the Bill would in many ways run contrary to the main objective, which I think the noble Lord supports. This includes the current powers of entry, based on common law conceived hundreds of years ago.
It is not right that debtors can simply evade payment by refusing to open the door. With appropriate safeguards, the Bill allows a power of entry using reasonable force—a power which, other than for the existing powers of forced entry for enforcing unpaid criminal fines, will be exercised only with prior judicial authority. The court plays a critical role and will need to be satisfied that it is reasonable to grant a warrant to use reasonable force, and will balance the rights of the debtor and creditor when making such a decision. Being appraised of the facts, the court is best placed to make this decision impartially.
Paragraphs 149 and 150 of our detailed policy statement set out the conditions that will have to be met for such a warrant to be granted. I hope that the noble Lord will take the spirit of what I have said about this bringing things together to achieve some of his objectives, and that he will feel able to withdraw his amendment.
My Lords, of course I realise the good intentions of the Minister—even, occasionally, the good intentions of the Government. The trouble is that when you have simplification and clarification, which sound as if they are very good in themselves, and the dusting is done, what may be dusted away and hardly noticed is something very valuable which happens to be lurking in a corner. In a way, the tradition that an Englishman’s home is his castle is one of those.
It is not for me to pursue the issue any further at this stage, but I hope sincerely that when the Bill goes to another place and is considered by Members of the House of Commons with constituents who have probably suffered in this kind of situation, they will be able to do something to persuade the Government to go back on their decision. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 63 to 68 not moved.]
70: Schedule 12 , page 205, leave out line 20
The noble Lord said: My Lords, I had better take this opportunity to address this simple amendment. It arises out of another surprising display of unanimity at the last meeting of the Enforcement Law Reform Group. Bailiffs said to a man that they do not want the power to sit on a debtor. If a debtor is misbehaving, they are entirely content with the powers they have at the moment and do not want to put themselves in the position where they might be seen to have special privileges in dealing roughly with a debtor. They felt that that would not enhance the reputation of their profession or improve the circumstances in which they find themselves during their ordinary day-to-day business. I therefore propose to delete this sub-paragraph and I hope that the Government will at least agree to consider it. I beg to move.
My Lords, I am grateful to the noble Lord for raising this. This reason for including this provision is important. We feel it is important to have the opportunity to make clear the circumstances where if one needed to use restraint, it could be used. I too have had discussions with the enforcement group about this, but I have to say that other enforcement parts of the industry, such as High Court enforcement officers, take a different view. However, I am interested in drawing this up only if there is a clear desire for us to do so and if there is agreement on how it would work. It is designed to make sure that if restraint is to be used, the circumstances for doing so are very clear. I hope he will agree that this is a positive approach.
I understand that some elements of the enforcement industry do not want it for the reasons outlined by the noble Lord, but others do. What I will commit to is that if, when we have consulted on this there is a clear view that the existing powers are sufficient, I shall reconsider it. We do not have to do anything about the regulations. However, I do not want to lose the flexibility provided in the Bill to enable such a power to be taken forward if there is a clear view that this would be helpful to the industry and, indeed, to those who could be on the receiving end. On that basis, I hope the noble Lord will agree to withdraw his amendment in the knowledge that I will not do anything with it unless it becomes clear that the provision is needed.
74: Clause 55, page 40, line 32, leave out “certificate” and insert “licence”
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 75 and 77. I have been gazumped here by the Government, who have decided that rather than moving in the direction I have been urging them, they will do what I hope is much the same thing but in their own way. That is one of the many privileges of government and I shall not seek to rail too hard against it. However, I would be enormously grateful if the noble Baroness could go through the crucial requirements in my amendment and give me a reassurance so far as she is able that, following the principal route she is outlining—to give this power and responsibility to the Security Industry Authority—the SIA will be able to match up to those requirements.
Let me outline the principal matters that interest me. The authority should be able to license bailiffs, and clearly that will be possible. One can stretch regulations in an amazing way. You can read through the Private Security Industry Act and not get a clue that that was ever intended when it was passed by Parliament. The authority should be able to establish standards by introducing requirements for licensing, codes of practice and other similar matters. I understand that it has the power to do that, although, as I will explain in a moment, it has not always chosen to exercise that power in its other jurisdictions.
I am keen that it should set standards and investigate complaints. This may be the one area where we fall out, but I shall come back to it. Where there has been wrongdoing, the authority should be able to impose financial or other requirements on those who have misbehaved. In other words, bailiffs who do not go along with the standards or rules should be dealt with in a way that discourages them—ideally, in the early stages, quite severely discourages them—from trying such things again. That is absolutely essential to set the major companies in the industry right. I am sure that if they believe there is a regulator with teeth, they will very effectively regulate themselves in a way that they do not at the moment.
The authority should be able to liaise with whatever systems are put in place for the government-employed enforcement agents in a way which produces a common set of standards and a common appearance from the point of view of a debtor who is confronted with an enforcement agent or bailiff.
Those are the key things that the regulator should be able to do. I hope that the Minister will be able to give me comfort that that is the direction in which her alternative is headed. The Security Industry Authority does not come to this party with a particularly entrancing reputation. It has in carrying out its existing duties a track record of being extremely slow to issue licences. For example, when the licensing of door supervisors and wheel clampers came into force, a very high proportion of the industry was not registered at that time. This was entirely due to the extremely slow way in which the SIA had proceeded. If this happens with bailiffs, of course, it would have a significant impact on government revenue and would also be undesirable in other ways.
The SIA’s current policy is that if 80 per cent of an approved contractor’s staff are licensed, the rest of its staff can act as if they are licensed. That would be an extremely undesirable practice in the case of bailiffs. The SIA is the subject of great criticism at present in regard to wheel clampers because, although it issues licences, it does nothing to regulate practice. If this organisation is to be in charge of bailiffs, it must make sure that bailiffs follow the guidelines and do something about it if they do not.
When the SIA investigates a complaint it does not tell the complainant of the outcome—which I find quite extraordinary—even when the complainant was the victim of illegal action. Given the nature of enforcement action, I would find this attitude completely unacceptable were it to be carried forward into the enforcement agency field. The SIA will often refuse to investigate a complaint about the action of an unlicensed person because it regards it as a police matter. So you come down to trying to persuade the police to investigate whether someone is passing themselves off as a bailiff. We need to have a regulator that is effective from the debtor’s point of view. If a debtor is visited by a person who says that he is a bailiff but is not, the SIA ought to be the place to which the debtor turns. It is refusing to do this in areas that it currently regulates.
I find that kind of history difficult to deal with. As it is a Home Office agency, perhaps I should not be surprised by some of these matters, but, none the less, if we are going to hand it this new important area of regulation, I would like to be sure that the SIA will come up to scratch. I and others draw some comfort from the reappearance of Ann-Marie Goddard on the scene. She has a very high reputation in the industry and I hope that presages things going well.
I turn briefly to the elegant purple document, Regulation of Enforcement Agents. Paragraph 31 explains that abuse may be more common than is known because,
“debtors are not aware of their rights”.
That is one of the reasons why I want the powers of entry to be more clearly set out than they are in the Bill. If the Bill remains as it is, I would look to the regulator to set out these matters much more clearly, in plain English, so that everyone can understand them. The document states that the bailiff industry was supportive of the SIA, but that is not my experience.
The document throws a very surprising light on the nature of the British population and it would appear that there has been an alien invasion. Page 17 refers to approximately 1 per cent of the population of England having no gender because it is listed as “male”, “female” and “other”. I do not know who qualifies for “other”. I understand that it means “unknown”, but “other” is interesting.
I am worried that paragraph 55 means that the Government are looking at an agency that does not have real teeth. I hope that when the agency has been up and running for a while and the industry is by and large well behaved, teeth can be applied extremely infrequently. It is important to get matters right to begin with. As the Minister knows, because I and doubtless many others have spoken to her about it, there is currently a level of abuse because of the lack of regulation that is completely unacceptable. When the agency starts up, it will need to be seen as a toothy agency. I believe that it will not need to continue to be seen that way, but it needs to have real powers to begin with.
My real difficulty with the document relates to the second bullet point in paragraph 11. It is stated on page 7 that the regulatory body would not be responsible for overseeing a complaints scheme or establishing a complaints board. It continues:
“This is due to a legal concern in respect of Article 6 of the European Convention on Human Rights that complaints should not be allowed to bypass the court, even where a right of appeal on the decision to the courts exists”.
What is the basis for this and why, if it is true, have the Scots decided to do the exact opposite? Paragraph 67 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 establishes an investigatory power of the kind that I am looking for. I am completely at sea as to what aspect of the Human Rights Act makes this perfectly ordinary ombudsman function illegal. It is crucial that it should be part of the regulatory authority’s powers.
If a bailiff does something wrong, the person likely to complain about it will be either someone who is chronically vulnerable or someone who is seriously short of time. Those are generally the reasons why people get themselves into this sort of mess. They have to have a way of complaining about what has happened to them that does not involve lengthy and complicated court procedures, the very prospect of which will defeat most people. There has to be an easy means of complaint, where you say, “This has happened. This is wrong”, and you find you have a friend who will help you investigate it. They might chuck you out of court if you are being unreasonable, but someone has to be there on your side. That is a crucial role of any regulator, and I hope I can get some support on this. I will return to it at Third Reading if I cannot. I beg to move.
My Lords, we on these Benches associate ourselves with the proposed amendments. We warmly admire the work that has been done by the noble Lord, Lord Lucas, in digging into this field and reflecting in the amendment the concerns of a number of organisations, such as Citizens Advice and the Children’s Society. It would be interesting to hear from the Minister what the Government’s thought processes have been, not only about the present position but about how we got to it. It has been something of an uphill task to raise these issues. We were somewhat surprised at that, particularly as it was believed that the Government were sympathetic to the concept of licensing. As the noble Lord, Lord Lucas, has spoken at some length, I will not protract the debate on this topic, but I look forward very much to the Minister’s reply.
My Lords, I intervene on this part of the Bill with some trepidation, because I have not followed it with the care with which I have followed the earlier parts. I listened with considerable attention to my noble friend Lord Lucas. While I am simply not in a position to either associate myself with, or dissociate myself from, some parts of his overall argument, I noted his last point in particular, which involves the relationship between complaint handlers or ombudsmen and the courts. That is exactly the point on which I hope to focus attention later, in a wider sense, with regard to Amendment No. 96 and the new clause it contains. Without feeling that I wish to make some great declaration, I shall be particularly interested to hear the Minister’s comments on the last point my noble friend made about precisely that relationship.
My Lords, I am grateful to the noble Lord, Lord Lucas, not just for this evening but for the way he has brought forward these issues of regulation of the industry. I hope he will agree that I have encouraged him to do so from the beginning.
The answer to the question asked by the noble Lord, Lord Maclennan of Rogart, is that it is not always a matter of a willingness to do something, but sometimes of finding the mechanisms to do it. One of the issues has been, and continues to be, the need to ensure that the Security Industry Authority is able to regulate the industry properly, in the way that the noble Lord has said. I cannot comment on its current status; I imagine that the role it performs is a difficult one. I am quite certain, however, that we will not bring this in until we are all certain that we have got everything properly in place. I have made that commitment not only to your Lordships’ House but also to the industry, which has been extremely generous—I single out Stephen Everson and Vernon Phillips, who have met me on several occasions to talk this through—and to colleagues in the Home Office, who have been very helpful.
Before I answer specific questions, it may be helpful if I outline exactly what we have done and refer to the consultation paper Regulation of Enforcement Agents, from which the noble Lord, Lord Lucas, was quoting. The word “other” refers to companies, by the way. I agree that it is not very clear in the document, but it is not suggesting that we find a new gender. I too pay tribute to Ann-Marie Goddard, who has done an incredible amount of work in a very short time. I support what the noble Lord said about her work.
Yesterday the Department for Constitutional Affairs and the Home Office issued a joint consultative partial regulatory impact assessment, with ministerial forewords signed by my honourable friend Vernon Coaker and myself, that explores the costs and impact of regulation. Much of what the noble Lord, Lord Lucas, referred to is contained within that document. We have sought to set out options for the future regulation of enforcement agents, and in the document we explore three. Our preferred option is regulation by the Security Industry Authority, an agency of the Home Office, as has already been discussed at length. We have included in our list of consultees organisations that we consider will capture most, if not all, of the groups the noble Lord includes in his amendment—and, dare I say, more besides. I should point out that implementing our preferred option can be achieved through secondary legislation, using powers in the Private Security Industry Act 2001.
After the consultation ends on 25 April 2007, and after the work that will ensue as a consequence, the Home Office will lay before the House, before the Summer Recess, the necessary affirmative order. Following the making of that order, the Home Office and the SIA will take the regulation forward towards implementation, and we will be consulting the stakeholders. I have made sure that the wheels are in motion. The Bill currently provides an interim solution while we work towards this through the enhanced and extended certification process. I hope I have assured the noble Lord that we have found a way of doing this that uses existing legislation, but also builds on the work we have already begun with the stakeholders concerned to make sure that we get correct and appropriate regulation.
The noble Lord asked me some specific questions. Can this license bailiffs? Yes. Are standards important? Yes. With regard to financial penalties, Section 5 of the Private Security Industry Act 2001 creates offences, the penalties for which are imprisonment, a fine or both. Are we making sure that what we are bringing in for government-employed enforcement agents is of the same standard as what already exists? Yes. I have told the industry that I am committed to ensuring that this looks like a level playing field. We recognise that the two groups are already covered in different ways, but it is important that it should feel like one industry at the end of the process, as I described.
On the specific point about the European Convention on Human Rights, my understanding is that the Scottish system is not the same. Scotland is setting up a commission that deals with this matter differently. I will write to the noble Lord formally and address his point, so that he can make his decision about what he wishes to do further. I would say, though, that the noble Lord is referring to the consultation document. He is quite entitled to raise these issues as part of the consultation process as well, and I am sure he will. I hope he does.
I hope noble Lords will feel that I have taken seriously the points they have raised. We have endeavoured to get the consultation document into your Lordships’ hands before Report, and I have committed in Hansard to the process that will then follow, saying that the order will be laid before the Summer Recess. We are all committed to the proper regulation of bailiffs.
My Lords, before the Minister sits down—which I believe is the right formulation—I wish to place on record, in order to ensure some clarity in Hansard, that when I referred earlier to Amendment No. 96, my memory had failed me and it was actually Amendment No. 93.
My Lords, I indeed welcome what the Minister has done. One always hopes that one’s own particular remedies will be adopted, but clearly the Government have identified the same disease as we have, and have chosen to treat it in their own way. I shall do everything I can to support their effort and encourage others to do the same. There has been a great gathering together of the industry and those interested in it over this Bill. I give particular thanks to Philip Evans, who has been helping me throughout this effort, but many people have played a part, and I am glad it has had such a useful outcome—almost.
The point about establishing a mechanism to enable people who are aggrieved about the behaviour of enforcement agents to have an effective route of appeal is crucial. We do not have an effective system if we do not have that. I should be grateful if the Minister would agree to meet me to go over that point and to see what can be done and where we find ourselves. If we cannot get a satisfactory answer on that, the issue is one on which we should seek an amendment to the Bill.
My Lords, I am not sure that it is a matter of amending the Bill, because I am talking about a consultation process, and those issues are contained in it. I will of course be delighted to meet the noble Lord to seek to address his point, but I am not sure that it is an amendment to the Bill that he looks for; it is the outcome of the consultation that will tackle it.
My Lords, I thank the Minister, but amending a Bill is all that I can do. One has to be conscious of one’s own limitations. An amendment would at least carry the arguments through to the Commons, where I hope that it might prompt further thinking by the Government. I am grateful to the Minister, and to her officials in the Box and others for their efforts. They have been immensely helpful throughout the passage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 75 not moved.]
Clause 56 [Certificates to act as an enforcement agent]:
76: Clause 56 , page 41, line 14, leave out from beginning to “provision” in line 15 and insert—
“(2) The Lord Chancellor must make regulations about certificates under this section.
(2A) The regulations may in particular include”
On Question, amendment agreed to.
[Amendment No. 77 not moved.]
Clause 57 [Common law rules replaced]:
[Amendment No. 78 not moved.]
Clause 85 [Payment by instalments: making and enforcing charging orders]:
79: Clause 85 , page 53, line 32, at end insert—
“(9) Where the judgment that is the subject of a charging order application relates to an agreement regulated by the Consumer Credit Act 1974, the court shall not make a charging order if an order under sections 129 to 135 of that Act is appropriate.””
The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 80, 81 and 82. We expressed concern in Grand Committee that an unsecured debt could become a secured judgment. We had a valuable discussion on the relevant amendment. Considerable concerns were expressed to me by Citizens Advice about the effect of these provisions. However, since that time—it was 12 January—the Minister has written to me at length and has pointed out that everything is in the hands of the court and that, where a judgment has been obtained, whether a charging order is granted in the first place is at the discretion of the judge. She has pointed out also that the order for sale under the charging order will not be made so long as the debtor complies with any instalment order that may be made. The concerns of Citizens Advice seem to have been answered by the letter which the Minister has sent to me and has placed in the Library. I move the amendment simply so that she can put it on the record in her response. I beg to move.
My Lords, I am grateful to the noble Lord. I hope that my speaking note will completely reflect what is in the letter. Perhaps the letter will reach me in the next few minutes to make sure that it does—I left my copy of it behind.
The critical point which the noble Lord has rightly accepted is that we are concerned that the impartiality and discretion of the judiciary are not interfered with when considering whether to grant an application for a charging order or order for sale in respect of debts regulated by the Consumer Credit Act.
I am confident—I am sure that the noble Lord is, too—that judges will consider applications for the granting of time orders made in the proper manner, but to require them to do so would be to ask them to take the debtor’s side in the case. That could leave them open to a charge of bias. It is not the first time that this proposal has been raised. It was raised in the course of consultation on proposals for reforming the consumer credit regime in 2002 and 2003. The judiciary does not wish to have this responsibility foisted upon it, because it believes that it would compromise its impartiality. The noble and learned Baroness, Lady Butler-Sloss, who is not in her place, reinforced in Grand Committee the need for any decision regarding the granting of a final charging order to be a judicial decision, and subject to judicial discretion.
Under our proposals, therefore, even where a debtor is complying with an instalment order in a judgment, the court has discretion to make a charging order to give security to the creditor. However, the charge property may not be sold unless the debtor defaults in making payments under the instalment order. The charging order system is neither automatic nor administrative. The final charging order hearing is held before a judge, and all parties are able to participate in it. Each case is treated on its merits. The judge has complete discretion whether to grant the charging order or to place conditions on the granting of it. Therefore, an order will be granted only where the judge feels that it is appropriate. That is a critical part of the Bill.
The noble Lord reflects in his Amendment No. 81 our current thinking on timing. We agree that the new powers contained in Clause 85 should not come into effect until the protections contained in Clause 86 come into effect. We do not think that we need to place such a provision in the Bill, but I hope that the confirmation of that will reassure the noble Lord of the Government’s intention. I hope that I have put on the record what the noble Lord was seeking and that he is able to withdraw his amendment.
My Lords, I am grateful for that response. It seems that the individual circumstances of the judgment debtor will be looked at; the judge will exercise his discretion accordingly; and the rights of both parties will thereby be preserved. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 80 to 82 not moved.]
Clause 86 [Charging orders: power to set financial thresholds]:
moved Amendment No. 83:
83: Clause 86 , page 54, line 30, leave out “provide that a charge may” and insert “recommend that a charge should”
The noble Lord said: My Lords, this group of amendments would leave the decision whether to make a charging order to judicial discretion in a limited number of cases. We want to emphasise that the amendments would not prevent the Lord Chancellor making regulations that would set guidelines—guidelines which a district judge would have to have very good reason not to follow.
Regulations under the Bill, as I understand it, would impose a floor below which charging orders could not be made. The circumstances that our amendments envisage do not concern the small amounts of money that are the targets of the regulations. We have in mind, for example, a utilities board with many debts from an individual, all of which are below the threshold. A water authority, for example, might have multiple debts owed to it, each amounting to only £500 or £600. In this case, it would not be able to obtain a charging order. The amendments do not undermine the broad intention of the Government, which we entirely endorse. I beg to move.
My Lords, I am grateful to the noble Lord for supporting the thrust of what we are seeking to do, and I hope that I shall be able to reassure him. The financial thresholds will prevent a charging order or order for sale being made in relation to a debt falling under the threshold, our aim being to protect vulnerable debtors where the debt being pursued is disproportionately small.
This is particularly important because the Bill introduces measures which will allow creditors to apply for charging orders in circumstances where the debtor is not in arrears with an instalment arrangement. We need to maintain a sense of fairness between creditor and debtor, and ensure that the vulnerable are not subject to over-zealous pursuit for relatively small debts. Recommended thresholds could be ignored and contradict the principle that we are seeking to establish.
Our approach to financial thresholds is found elsewhere in the civil justice system, not least in the administrative order procedure. We hope that that will be the principle on which we operate. Guidance for the judiciary already exists and the proper place for recommendations is in judicial guidance rather than in legislation.
I can confirm to the noble Lord that my officials are already in contact with representatives from the water industry, with a view to ensuring that they are fully involved in the consultation on the level at which the thresholds should be set and that their concerns are taken into account. They cannot cut people off—rightly so—but they are concerned that they should be able to act appropriately. In that context we shall be looking at how the debts add up. Those representatives want to act in a proportionate manner.
I envisage a low threshold. At this stage, I cannot indicate what we shall set it at but I shall keep the noble Lord informed about that. I hope that he will participate in our consultation.
It is worth remembering that under the Bill the thresholds for charging orders and orders for sale need not be set at the same level. It is possible to have a relatively low threshold for a charging order and a high one for an order for sale. Likewise, it is possible to set different thresholds for different creditor groups to enable the unique problems faced by certain industries to be taken into account. I referred to the water industry in that regard.
Given that that is the basis on which we shall consult, I hope that the noble Lord will withdraw his amendment.
My Lords, I am most grateful to the noble Baroness, who responded to my amendment with her characteristic sensitivity. I look forward to hearing about the progress that is made in her discussions with representatives of the water industry and, indeed, other utilities.
Our intention in tabling the amendment is simply to ensure that the approach that the Government are taking is not undermined by a very simple avoidance practice. If the Government are confident that they can deal with that matter, my amendment will have served its purpose. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 84 to 86 not moved.]
Clause 126 [Protected objects]:
87: Clause 126 , page 95, line 36, leave out “and” and insert—
“( ) its import does not contravene a prohibition or restriction on the import of goods, imposed by or under any enactment, that applies to the object, a part of it or anything it conceals,”
The noble Baroness said: My Lords, in moving Amendment No. 87, I wish to speak also to Amendments Nos. 88, 89, 90, 91 and 99.
We had a very useful discussion on Part 6 both at Second Reading and in Grand Committee. I am extremely grateful for all the helpful comments that I received. I listened to the many concerns expressed on this matter. The following amendments are designed to meet the concerns raised on this part of the Bill.
Amendment No. 87 amends Clause 126 to ensure that protection under these provisions will not be given to a work of art or any other object that is used to conceal contraband items so that they can be smuggled into the United Kingdom.
Amendment No. 88 will make it a condition of approval under Clause 126 that museums and galleries must publish specified information about the objects they intend to borrow in advance of the objects coming to the United Kingdom. The Secretary of State is given power to make regulations about the publication of such information, which will specify the information which must be published, the method of publication to be adopted and how far ahead of an exhibition the information must be published. This amendment will ensure that information about the objects to be exhibited is made publicly available and will enable anyone to raise questions about their provenance before they come to the United Kingdom. Where a query is raised, it will not automatically remove protection against seizure but will allow the borrowing institution to look very carefully at the evidence before taking a final decision on whether to borrow. We intend to consult widely with those concerned, including key interest groups, before we make the regulations.
Amendment No. 89 amends Clause 126 to give the Secretary of State power to make regulations requiring museums to provide additional information to an inquirer about an object in an exhibition and to specify the circumstances under which such information should be provided.
The amendment ensures that the consent of Scottish and Welsh Ministers and the Department for Culture, Arts and Leisure in Northern Ireland is required for any regulations made under Clause 126 and provides for the regulations to be made by statutory instrument using the negative resolution procedure.
Amendment No. 90 inserts a new clause on relevant museums and galleries. This sets out the factors that must be considered by the relevant authority before giving approval to museums and galleries under these provisions. Museums and galleries in England must satisfy the Secretary of State that their procedures for checking the provenance and ownership of the objects they intend to borrow are satisfactory and that they comply with guidance on due diligence issued by the Department for Culture, Media and Sport. Scottish Ministers, Welsh Ministers and the Department for Culture, Arts and Leisure in Northern Ireland will be responsible for the approval of institutions within their respective territories and must apply the same factors. DCMS officials will work closely with their counterparts in those areas to ensure that we operate similar standards throughout the United Kingdom.
Museums and galleries will be invited to apply for approval and to demonstrate through the submission of their due diligence procedures and associated documentation that they carry out very thorough checks of items they intend to borrow. Our national museums pride themselves on operating very high standards of due diligence when it comes to hosting exhibitions, and quite rightly so.
This amendment will ensure that approved museums comply with guidance about due diligence procedures issued by the Secretary of State and makes it clear that approval may be withdrawn if it becomes apparent that a museum is not maintaining sufficiently high standards of due diligence. Where approval is withdrawn from an institution, it will not immediately affect the protected objects which will continue to enjoy immunity from seizure until the end of the exhibition. Museums that have had their approved status withdrawn will therefore not be able to offer immunity in relation to any subsequent exhibition but will be able to reapply and will need to satisfy the Secretary of State that their standards have improved to an acceptable level before approval is granted again.
Amendment No. 91 removes subsection (3) in Clause 128 which defines approved institutions. This is replaced by the new clause after Clause 127.
Finally, Amendment No. 99 amends Clause 139 to allow the provisions on immunity from seizure to be brought into force by order rather than automatically two months after Royal Assent. This is to allow time for detailed consultations on the regulations on the publication of information about protected items, which must be made before the immunity is brought into force. I beg to move.
My Lords, I express the strong gratitude of these Benches for the work that the Government have done to meet the concerns expressed on Second Reading about the possible impact of the understandable wish to meet the desires of museums and galleries to continue short-term loans while taking all possible steps to protect the interests of those who might have an interest in art which has been the subject of spoliation.
It is not, of course, possible for one country or one Government wholly to deal with what is essentially an international problem. I hope that the Government will think it right to raise these matters in an international forum, probably UNESCO. Similar publications to those proposed in the very useful Amendments Nos. 87 through to 89 would carry even greater clout if they were replicated on a wider stage.
The Government have responded magnificently to the representations which were received and have sought all practical ways of dealing with a difficult problem.
My Lords, I, too, wish to say a few words on these amendments. This part of the Bill is concerned with the problem of looted art, although that phrase is not used in the Bill. However, I think that we all know what it means. The purpose of this part is to protect museums and galleries that wish to exhibit foreign works of art which may have been looted. Obviously, they do not wish to be involved in expensive legal proceedings. The pressure for this part of the Bill comes from them. One can see their point, especially as this matter involves a departure from the ordinary rules of English law.
But there is another side to the matter: those who claim to be the owners of the works of art in question. The last thing they want is for the works of art that they claim to be theirs to be exhibited in this country, and that exhibition to be used as a shop window for the sale of what they claim to be their works of art. As I understand it, there would be no way in which such a sale could be prevented.
The purpose of the amendments, which is very beneficial, is to give some assurance to such people. My only suggestion, in welcoming the amendments, would be that they might go a little further, and that when the regulations are made there should be a specific regulation that the protection will not be afforded to works of art coming to this country about which there is reasonable ground to believe they may have been looted. I am told—this point was made to me by someone who has made a considerable study of this subject and has had some personal experience—that that is the equivalent provision in the comparable German legislation. I just hope that when the regulations are made there could be some provision to that effect, to give further protection to the claimants.
My Lords, first, I thank the noble and learned Lord, Lord Lloyd, for his comments. The one thing I am sure that he would not wish to do is to give the impression that he wants to prevent sales. Certainly what all of us want to do is to ensure that stolen goods do not come here in that way, where they have the protection of the law while they are here, so the owners have no access to them and they will then disappear again afterwards. I thank and commend my noble friend and her department for the work that they have done on the Bill and the amendments that they have tabled since it received its Second Reading in early December. I am especially grateful that she and her team, and that of the Minister for Culture, David Lammy, have noted my particular concerns. I declare an interest, because nearly all my family were murdered in the Holocaust. This Bill gave no access to people if they found that family paintings or other objects of art were being sold. I am grateful that the Government are dealing with the question of immunity for exhibitors of spoliated art, as mentioned in Part 6.
I thank my noble friend for her assurance that proper standards for provenance research and due diligence will be introduced and enforced. I am delighted that the Secretary of State will grant immunity only to institutions adhering to appropriate standards and that there will be government oversight to ensure that these standards are continued. I have been assured that the standards and methods for this research will be clarified in future regulations; I hope that the Minister will confirm that. I look forward to consultations with my noble friend and other colleagues whenever they may be useful. I am also pleased that methods of presenting the research will be created. I hope that we can agree not only on such methods but on how they should best be publicised. Once claimants visit the register and recognise artwork that they know or believe to be theirs, they will now have what they have not had before—the opportunity to pursue their claims in the countries of origin. I call on the Government to give people the opportunity to pursue their claims in the countries of origin and to establish procedures that will enable claimants to obtain advice on how best to approach such legal proceedings in foreign jurisdictions. I trust that they will create and maintain a library of helpful information on those processes and provide the necessary support for claimants’ campaigns for justice.
I know that my noble friend and her team recognise my deep concern that victims of the Holocaust do not suffer further unnecessary injustices, and that they will do all that they can to ensure that does not happen. I will welcome the opportunity for further discussions on these matters. Again, I thank her for her concern and for that of her department and colleagues.
My Lords, I add my expression of appreciation to my noble friend for all the care that she has taken to reconcile the variety of reasonable and proper requirements that the Government have sought to meet in this legislation. She has proceeded with great sensitivity, and the amendments are thoroughly constructive and are to be welcomed.
Amendments Nos. 88 and 89 would allow the Secretary of State to introduce a system of discretionary immunity from seizure, as opposed to the system of automatic immunity that the museums and galleries originally asked for, and which was provided for in the Bill until these amendments were tabled. The Secretary of State could require institutions to publish in advance a list of objects that they proposed to borrow from abroad to exhibit in this country. That would bring us into line with legislation and practice in numerous other jurisdictions, including Switzerland, where most recently anti-seizure legislation was enacted.
The benefits would be that a discretionary system would allow someone to make an objection, in advance of the exhibition, about the inclusion of an item that was considered inappropriate to be exhibited because of dubiety concerning its legal and ethical status. To that extent, it makes it less likely that exhibitions in this country would be tainted by the presence of objects whose provenance and ownership were unsound. It would perhaps enable a claimant to identify the whereabouts of an object that had been lost sight of and the location of which the claimant no longer knew. On the other side of the fence, it would alert a lending institution to the risk that an action might be brought to make a claim to such property, and to that extent it may discourage lenders from lending.
I cannot see that the provision would improve the prospect of a claimant achieving satisfaction in the UK courts, unless of course the claimant refrained from raising an objection when the list was published. But there is a wider moral point—it was powerfully expressed by my noble friend Lord Janner, as always, and by the noble and learned Lord, Lord Lloyd of Berwick—that it is simply indecent that stolen art should be paraded in exhibitions around the world.
The objection to advertising an intention to borrow particular cultural objects and to particularise them in a list was made by museums and galleries that were worried about the administrative complexity and the cost of the procedure. Would there be any significant increase in complexity and cost for museums and galleries if they were practising due diligence with the thoroughness that the Government already specify in guidance? I think not. I would go further and say that the publication of a list of cultural objects that they are minded to borrow, with the invitation for people to comment, should be seen as an aspect of due diligence and as an enhancement of the process.
It would be useful if a borrowing institution that perhaps is otherwise not very well placed—whether due to a lack of resources or a lack of availability of relevant documentation—to conduct the research that due diligence requires, and thereby is perhaps excessively reliant on the information provided by the lending institution, had available to it new sources of information that arose because of the consultation process.
Trustees and staff of museums and galleries are, almost by definition, civilised people, but it is not their duty solely to promote appreciation of art; they ought to be good citizens and they should be anxious to adopt procedures that guarantee that they will not breach propriety and they should be willing to support their fellow citizens in having access to justice. That is the spirit in which Sir Nicholas Serota and the committee that he chairs under the auspices of the National Museum Directors’ Conference has proceeded for several years past—and that should be recognised. So I hope that museums and galleries will accept these amendments without demur.
I have one question for the Minister about Amendment No. 89, which is permissive only. It states:
“The Secretary of State may make regulations requiring a museum or gallery to provide … specified information about an object”.
May we take it that it is the intention of the Secretary of State and of the other UK authorities to introduce such regulations and is my noble friend able to give the House any inkling of what they might provide? I ask that particularly in relation to timescale. How far in advance will museums and galleries have to publish the details of their intended borrowing? It is generally agreed that the provision in Switzerland that 30 days’ notice should be given is, in practice, too short; it does not allow people who are likely to be working across international frontiers to have the time they need to investigate the status of an object, take the advice that they require and then to register their objections. On the other hand, we should not prolong that process beyond what is genuinely reasonably necessary, because lead times for the organising of great international exhibitions are formidably long and, for entirely understandable reasons, agreements on the loan of some items are often reached at a late stage. I have noted that my noble friend said that the department would consult museums and galleries on this matter. Will the department consider also publishing the regulations in draft, so that there can be wider consideration of them before they are enacted?
Amendment No. 90 would introduce a new clause that would elaborate on the face of the Bill the Government’s requirements in respect of due diligence. I suspect that the amendment is technically unnecessary, but it is helpful that the language of the legislation should be made plainer and the policy clearer to those who are not specialists in this field. It is right that the Government should be required not just to consider the declared procedures of an institution in carrying out due diligence to establish provenance and ownership, but they should also ensure that those procedures are more than notional. Therefore, it is right that the Secretary of State should be required to satisfy herself as to their compliance with the best practice guidelines that she publishes.
Will the Minister say something about how the department will monitor that compliance and will she clarify some elements in the current guidance, Combating Illicit Trade? At section 3, it is roundly stated:
“Museums should acquire and borrow items only if they are legally and ethically sound”.
Can my noble friend either now or, perhaps more likely through one of her ministerial colleagues at the DCMS in due course, cast light on some illustrative cases? I understand that the Government’s position is that although objects that were wrongfully taken in the Nazi era may be protected in their present ownership by the expiry of limitation periods, they remain ethically unsound and should not be acquired or borrowed by public collections in this country. Is it similarly the Government’s view that objects that were forcibly expropriated without compensation, for example by the Bolsheviks, are protected in their present ownership by sovereign immunity, but also remain ethically unsound and should not be borrowed for exhibitions in this country? What is the Government’s view—
My Lords, I am extremely sorry to interrupt my noble friend, but there is a strong feeling that he is making a Second Reading speech and a great number of his remarks are general and not specifically related to the amendments that we are considering.
My Lords, I take the admonition of my noble friend. I am endeavouring to speak to the amendments and it is not unimportant that Parliament should be seen to have scrutinised this legislation; but I certainly appreciate the force of what he said.
Do the Government consider that an institution should not be able to borrow objects that were taken at one time by Chiang Kai-shek to Taiwan and are now claimed by the People’s Republic of China as its property? What would be the view of the Government in monitoring compliance as to the propriety of an institution seeking such loans from St Petersburg or Taipei? In what respect does this anti-seizure legislation alter the position that applied previously? These are real and pertinent questions of genuine concern to important institutions in this country that will want to know the answers; I hope that the Minister will advise us on these matters in due course.
Finally, I wish to ask the Minister about subsection (3) of Amendment No. 90. Why is the power made discretionary regarding the withdrawal of approval where the Government consider that the,
“institution’s procedures for establishing provenance or ownership of objects are inadequate”?
Is it not the case that sauce for the goose should be sauce for the gander? Why should not the rigour that the department enjoins on museums and galleries be applied to itself? If an institution falls short in its practice of due diligence, perhaps the Secretary of State should have a duty to withdraw approval. Why is “may”, rather than “must”, written into this amendment? Is it to protect the Secretary of State from the possibility of a suit on the part of a frustrated claimant? If so, is that a good enough reason? Are the Government willing to consider amending this amendment at Third Reading by substituting “must” for “may”?
My Lords, I am grateful to all noble Lords who have spoken and for the general welcome that has been given to these amendments. I pay tribute to the officials at the Department for Culture, Media and Sport, who have been nothing short of magnificent in helping me to sort out the amendments; noble Lords will know that I am not an expert on art or on the workings of that department, so I am grateful to my honourable friend David Lammy, who has been extremely supportive and who has met a number of organisations.
I agree with the noble Lord, Lord Maclennan, that we should be keen to talk to our international partners and colleagues about what we have done in this legislation and I agree with what he said about clout being important in this context. Overall, I agree with the noble and learned Lord, Lord Lloyd of Berwick, on the powerful moral point that lay behind many of the discussions that we had at Second Reading and in Grand Committee and I hope—in fact, I know—that noble Lords will feel that what we have brought forward attempts to deal with that, while recognising that, sadly, there are issues that we cannot deal with in the way that we would like to.
I am grateful for the comments of the noble Lord, Lord Janner. I confirm that the standards will be met in the way that my noble friend asked, and I will look at the whole question of legal proceedings. We will give serious consideration to the point that was made about helping claimants to pursue claims in other jurisdictions. We appreciate how difficult that can be and we will certainly explore whether it would be possible to make other information available for that purpose.
The noble and learned Lord, Lord Lloyd of Berwick, asked about the protection that should not be afforded to works of art that we have reasonable grounds to believe are looted. All major museums in this country accept that works of art that have been looted should not be exhibited and it is not the intention of these provisions to enable them to do so. Approval of museums will be dependent on their demonstrating that they have due diligence procedures that will ensure that, when objects are borrowed, there is an appropriate way to take this forward. Publication of information about objects will, we hope, provide a further safeguard, enabling concerns about particular objects to be raised and ensuring that objects identified as looted are not exhibited.
My noble friend Lord Howarth raised a series of issues. I met my noble friend in the hope that I might have been able to tackle some of these issues. I apologise that, inevitably, I do not have the detail at my fingertips. I will try to deal with as many of the issues as I can, with the promise of writing to my noble friend and placing a copy in the Library.
We have considered the different forms of community legislation adopted in other countries. In particular, we considered whether a discretionary system such as that in Switzerland, which requires museums to submit an application for each exhibition, would provide sufficient benefits to outweigh the costs and concluded that it would not. The major benefits can be achieved by requiring museums to publish information about each object, as we propose. We think that that would be a better way forward. We intend to publish regulations and will be discussing what the appropriate timescale for publication should be both with interest groups and with museums and galleries. We are currently considering requiring publication of information two months before the start of an exhibition. We will refine that in consultation, if it is required.
We appreciate that undertaking due diligence investigations into the provenance and ownership of cultural objects that the museum wishes to borrow will require museums to devote resources to this. As my noble friend says, our museums have already committed themselves to this by accepting the guidance on due diligence issued by the department and endorsed by the Museums Association and other professional bodies. It may be the case that some museums feel that they do not have the resources to meet the standards. No museum is obliged to apply for approval for the purpose of the amenity; it is up to the museum to decide how to spend its resources.
My noble friend asked whether the museums and galleries would be consulted on the content of regulations and whether draft regulations would be published. We will be consulting museums, galleries and interest groups on the detailed content of our regulations and they will be shown drafts of the regulations. No final decision has been taken over a formal publication of the draft.
As for objects appropriated without compensation in, for example, the Russian Revolution—my noble friend gave other examples—these are quite difficult questions. I know that he intends for me to write to him or for my colleagues to do so. I will ensure that that happens and that, as I indicated, copies are placed in the Library of the House.
My noble friend also asked how compliance with due diligence guidance will be monitored. Museums will be required to submit detailed information on their procedures, including how they will investigate provenance and ownership of the objects that they propose to borrow and how these procedures are operated in practice. They will be expected to apply the DCMS guidance and they will be subject to a programme of spot checks to make sure that that is actually happening.
Finally, I was asked about changing “may” to “must” in Amendment No. 90 to oblige the authority to withdraw approval. We do not think that that is appropriate, because the approving authority would have to consider all the circumstances. It may be the case that official failure has been immediately rectified by the museum concerned and we think that it would be unjust to have mandatory withdrawal. But I say that within the context that, if museums do not do this, approval would be withdrawn without question.
On Question, amendment agreed to.
88: Clause 126, page 95, line 38, at end insert “, and
( ) the museum or gallery has complied with any requirements prescribed by regulations made by the Secretary of State under this paragraph about the publication of specified information about the object.”
89: Clause 126, page 96, line 26, at end insert—
“(9) The Secretary of State may make regulations requiring a museum or gallery to provide persons with specified information about an object in specified circumstances (which may include in particular compliance with conditions imposed by or under the regulations).
(10) Regulations under this section—
(a) may not be made without the consent of the Scottish Ministers, the Welsh Ministers and the Department for Culture, Art and Leisure in Northern Ireland, and (b) must be made by statutory instrument. (11) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”
On Question, amendments agreed to.
90: After Clause 127, insert the following new Clause—
“Relevant museums and galleries
(1) In this Part “museum or gallery” means an institution in the United Kingdom approved under this section by the appropriate authority.
(2) The matters that the appropriate authority must have regard to when deciding whether to approve an institution include—
(a) the institution’s procedures for establishing the provenance and ownership of objects, and (b) in particular, compliance by the institution with guidance about such procedures published by the Secretary of State from time to time. (3) The appropriate authority may withdraw approval from an institution if it thinks fit, and, in particular, if—
(a) it thinks that the institution’s procedures for establishing the provenance or ownership of objects are inadequate (because of the institution’s failure to comply with guidance published by the Secretary of State or for some other reason), or (b) the institution has failed to comply with a requirement of regulations under section 126(9). (4) The withdrawal of approval from an institution does not affect the application of sections 126 and 127 to any object which is a protected object immediately before the withdrawal.
(5) In this section “the appropriate authority” means—
(a) the Secretary of State, in relation to an institution in England, (b) the Welsh Ministers, in relation to an institution in Wales, (c) the Scottish Ministers, in relation to an institution in Scotland, and (d) the Department for Culture, Art and Leisure, in relation to an institution in Northern Ireland.”
On Question, amendment agreed to.
Clause 128 [Interpretation]:
91: Clause 128, page 97, line 8, leave out subsection (3)
On Question, amendment agreed to.
Clause 132 [Judicial review: power to substitute decision]:
moved Amendment No. 92:
92: Clause 132, leave out Clause 132
The noble Lord said: My Lords, the terms of the amendment may appear rather dramatic, but the intention is simply to extract an undertaking from the Government. Clause 132 concerns judicial review. Its specific purpose is to give the administrative court, where it quashes the decision of a lower court or tribunal, power to substitute its decision for the decision of that lower court. Normally when the administrative court quashes a decision, the matter is remitted to the lower court for reconsideration. However, the Bill says that, in the light of the quashing, where the decision that the lower court will take is obvious—where there can be only one decision—the administrative court is entitled to take that decision.
The Civil Procedure Rules, in particular Rule 54.19, contain a similar provision to the one in Clause 132, but its terms are cast much more widely than those in the Bill. I would like the Government to say that, when the Bill becomes a statute, they will use their best endeavours to ensure that the Civil Procedure Rules are amended so as to align their text with the text in the future Act. I beg to move.
My Lords, I am grateful to the noble Lord for returning to this issue and for indicating his purpose beforehand. As he rightly points out, Rule 54.19(3) covers similar ground to that contained in Clause 132. The rule is, however, drafted in a slightly different way from Clause 132, as he said, and is rather ambiguous. We do not consider it satisfactory. I will therefore ask the Civil Procedure Rule Committee to amend the rule in order to ensure consistency with Clause 132, and I hope that it will look favourably on that request. I hope that that reassures the noble Lord and that he now feels able to withdraw his amendment.
My Lords, I am most grateful to the noble Baroness. I could not possibly have asked for more than the response that I got. In those circumstances, I am exceedingly happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
93: After Clause 134, insert the following new Clause—
“Concurrent jurisdiction of courts, tribunals and public sector ombudsmen
(1) In section 5 of the Parliamentary Commissioner Act 1967 (c. 13), omit subsection (2).
(2) In section 26 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57), omit subsection (6).
(3) In section 4 of the Health Service Commissioners Act 1993 (c. 46), omit subsection (1).”
The noble Lord said: My Lords, I now find myself in the deeply uncomfortable position of speaking to the last amendment in a House that is largely occupied by people who are interested not in this debate, but in the next one. I can only say that I will keep my remarks to a minimum and, as far as I can with such notice, reduce what I have in front of me.
I have endlessly declared my interest as chairman of the Council on Tribunals. In respect of this amendment, I should also make the point that the Parliamentary Ombudsman is an ex officio member of the council and would be an ex officio member of the proposed Administrative Justice and Tribunals Council.
On the substance of the new clause, some of your Lordships may remember that as long ago as 1996, in his report on access to justice, the noble and learned Lord, Lord Woolf, recommended among other things that the relationship between ombudsmen and the courts should be broadened, enabling issues to be referred by ombudsmen to the courts and by courts to the ombudsmen with the consent of those involved. His report also recommended that the discretion of the public ombudsmen to investigate issues involving maladministration that could be raised before the courts should be extended.
The noble and learned Lord is unable to be present today, but he has authorised me to say that he is supportive of what I am seeking to achieve, which also, I understand, has the support of the head of the administrative court, Mr Justice Collins. It certainly has the support of the Senior President of Tribunals designate, Lord Justice Carnwath. It also has the support of the Council on Tribunals, the Parliamentary Ombudsman and the Health Service Ombudsman, as well as my own personal support.
The purpose of what I propose is to get rid of some of the impediments. They were originally intended to make sure that ombudsmen did not trespass on or usurp the jurisdiction of courts or tribunals, but, over time, developing case law has narrowed the discretion of the ombudsmen in a way that has been seen to present them with severe difficulties and has created considerable injustice for complainants. That is what I am seeking to redress.
In putting forward this amendment, I am conscious that it could be argued that there are ways in which I might have gone further to facilitate co-ordination between the various strands. For example, it could be helpful to give the court specific power to suspend an investigation by the ombudsman where the court considers that it would not be in the interests of justice for it to continue; or, alternatively, to stay the court proceedings where the court considers that the ombudsman is better placed to investigate. I also believe that, where an investigation raises a question of law which needs to be determined, it would assist the ombudsman to have the power to ask for a ruling from the appropriate court or tribunal on that question.
Although I have not sought to cover those last points, with the legal advice available to me, I hope that the Minister will take them into consideration if, as I hope, she feels able to accept my basic point in principle, and that she will take it away for the attention of the expert drafting advice available to her with a view to bringing forward an amendment at Third Reading. I beg, rather breathlessly, to move.
My Lords, I am grateful to the noble Lord, Lord Newton. I agree that the provisions that the amendment proposes to repeal, which, as the noble Lord said, go back to the original ombudsman legislation 40 years ago, could get in the way of effective and efficient redress of grievances and resolution of disputes. Much has changed in the courts, tribunals and ombudsman world. We need provisions that reflect a more sophisticated understanding of the proper relationship between these institutions.
I accept that we may well need to get rid of the absolute bar on ombudsman action when legal proceedings have been commenced. However, as the noble Lord knows, I need to take the opportunity to consider whether further measures might also be needed to achieve the desired result.
I also want to take the opportunity to consider whether there are other ombudsmen to whom any changes should apply, such as the Public Services Ombudsman in Wales. I am sure your Lordships will agree that these are important issues. I am keen that we should get them right. If the noble Lord agrees and is prepared to withdraw his amendment, I am happy to undertake to consider the matter further and come back to it at Third Reading.
94: Clause 135, page 103, line 14, at end insert—
“( ) In the entry for the London Building Acts (Amendment) Act 1939 (c. xcvii) after “109(2)” insert “and (4)”.”
95: Clause 135, page 103, line 34, at end insert—
“( ) In the entry for the Social Security Act 1998 (c. 14) insert in the appropriate place—
On Question, amendments agreed to.
Schedule 23 [Repeals]:
96: Schedule 23, page 287, line 18, column 2, at beginning insert—
“In section 34(2A)(a), the words “or 41(2)”.”
“In section 34(2A)(a), the words “or 41(2)”.”
On Question, amendment agreed to.
Clause 138 [Extent]:
97: Clause 138, page 104, line 38, leave out “subsection (4)” and insert “subsections (4) and (5)”
98: Clause 138, page 105, line 3, at end insert—
“(5) The following extend also to the Isle of Man—
(a) section 134(1) and (2), (b) the repeal by this Act of any provision specified in Part 6 of Schedule 23 that extends to the Isle of Man, (c) sections 136 and 139(3) to (5) so far as relating to— (i) section 134(1) and (2), and (ii) the provisions of this Act by which the repeals mentioned in paragraph (b) are effected, and (d) this section and section 140.”
On Question, amendments agreed to.
Clause 139 [Commencement]:
99: Clause 139, page 105, line 7, leave out subsection (2) and insert—
“(2) The provisions of Part 6 come into force, except as provided by subsection (2A), in accordance with provision made by the Secretary of State by order.
(2A) The provisions of Part 6 come into force, in so far as they extend to Scotland, in accordance with provision made by the Scottish Ministers by order.”
On Question, amendment agreed to.
Health: Palliative Care
asked Her Majesty’s Government how they assess the effectiveness of palliative care services; and on what basis decisions to fund additional services are taken.
The noble Baroness said: My Lords, I am very grateful to my noble friend. I had intended in my opening sentence to say what a good thing it was that this very important debate was now the last business and that therefore all the distinguished speakers would have a little more time for their contributions. I also thank everyone in advance for taking part in the debate. As this is my first opportunity to do so, I congratulate the Minister on returning to the Department of Health and on his promotion.
I congratulate the Government as a whole on their recent decision to develop an overall strategy on palliative care under the distinguished leadership of Professor Mike Richards. As the House will be aware, Professor Richards is the so-called cancer tsar for the NHS, but I understand that this project will extend well beyond cancer services to develop a much more general programme on how we look after people who are reaching the end of their lives.
I was surprised to discover that this is the first time that the health service has taken a systematic look at services for the dying. The founding father of the NHS, Aneurin Bevan, famously promised that care for us would go from the cradle to the grave and, in the 60 years since, the cradle has been properly looked after. Developments in obstetrics, maternity services and neonatal care have all ensured that at the beginning of life most people are well cared for, but there has been much less attention to the end. Perhaps it is a combination of social taboos and medical disinterest, which has far too often resulted in poor provision for the more than 600,000 people who die in Britain every year.
Personally, as a member of various local health authorities and, later, as a Minister for Health, I have always encouraged more and better palliative care for those at the end of their lives. I am a particular supporter of the hospice movement, which, as many noble Lords will know, has struggled for NHS resources over many years.
Nevertheless, I think that the Government's current review gives us an opportunity to take an overview of how we as a society want to develop those end-of-life services so that they are fit for the 2lst century. For example, can we assume that palliative medicine, if it is well resourced and expertly practised, can provide all the answers? On what basis should we judge its effectiveness? In this short debate, I can only express my questions and concerns in headline form, and they really fall under three broad headings.
To start with, I am concerned about the exact remit and scope of palliative care. When I first became interested in this area, the explicit aim of palliation was, as I understood it, to control the pain and other physical symptoms of those suffering from terminal illness—specifically cancer. No one, of course, could possibly question those compassionate aims. In many cases, palliation involves very sophisticated drug therapy and medical treatment, and I pay a warm tribute to those specialists who have made so much progress in this field in the past few years.
However, when I look at some of the contemporary definitions of palliative care and listen to some contemporary practitioners, I sense what in other policy areas might be called mission creep. For example, the noble Baroness, Lady Finlay, who I am delighted is to speak in the debate and who is of course recognised as a leading specialist in this field, has introduced a Private Member’s Bill, which is to be heard by your Lordships very shortly, to create a duty on the NHS to provide universal palliative care. In the Bill, her definition of this care goes much further than the relief of physical symptoms to include,
“psychological, social and spiritual help and support”.
I wonder what exactly is intended by that, what it should include and, very importantly, how such provision would be evaluated. How and on what basis, for example, would NHS performance managers measure the efficacy of spiritual interventions?
I raise that not least because, as a member of the Select Committee on the Bill on assisted dying introduced by the noble Lord, Lord Joffe—I am delighted that he, too, is in his place tonight—I heard some palliative care practitioners make what I thought were extravagant claims for their services. Several witnesses asserted that appropriate palliative care could alleviate all the possible suffering of all patients at the end of life. They were certain that that could include psychological problems, emotional difficulties and what one could call the more existential issues of loss of dignity and personal control. One consultant physician claimed that if patients would, in his words, co-operate and “let go”—in a particular religious context, I understood—then they would always, again in his words,
“die with great ease and comfort”.
I deliberately use the verbs “assert” and “claim” to describe those witness statements because, although we heard individual examples from practical experience to support their remarks, the witnesses were unable to give the kind of research references which I think would be considered essential by most clinical specialities in a similar situation.
That is, indeed, my second concern about palliative care. There seem to be few randomised control trials and few peer-reviewed experiments to support the view that palliative care, in its broadest sense, is always effective. I believe that the noble Baroness, Lady Murphy, will speak later in the debate from her professional viewpoint about the difficulties of using outcome measurements and other conventional tools of evaluation in the palliative care field.
As a lay person, I simply note that the health service now places great reliance—in my view, quite rightly—on evidence-based therapies and payment by results to determine both policy priorities and resource decisions. I very much hope that these principles can, and will, be rigorously applied to palliative care.
A further important strand of this Government's health reforms has been to introduce the concept of patient choice. Personally, I have some difficulty in recognising patient choice in some palliative care practice that I have observed, and this is my third area of concern.
I was disturbed when the previous chairman of the Ethics Committee at the Royal College of Physicians told your Lordships’ Select Committee that palliative care could become,
“the last bastion of unreconstructed paternalism in UK medicine”.
As your Lordships will be aware, the Commission for Patient and Public Involvement in Health has existed since 2003 precisely to give proper expression to patients’ views in developing services; in the commission’s words,
“to help place patients at the centre of everything the NHS does”.
I hope that, as Professor Richards develops his end-of-life strategy, he will work closely with the commission and other representational bodies. We already have some relevant research results, and obviously need more in greater depth. I was interested in the report this month from the Journal of Medical Ethics of interviews with 41 terminally ill patients. The majority of those interviewed wanted a change in the law to allow people like themselves to choose when to die. I obviously appreciate that the Department of Health’s current work can consider end-of-life strategies only within the present legal framework, but I am also aware of growing public pressure to widen the debate about how we die. The Minister will not need reminding that the 2007 British Social Attitudes Survey published last week showed that 80 per cent of the public now support voluntary euthanasia for the terminally ill.
I conclude with one person’s story which illustrates some of the present difficulties of palliative medicine, emphasising the need to think carefully, widely and probably laterally about how the health service should look after those at the end of their life. The NHS is caring for a terminally ill young woman whose suffering has not responded to the various combinations of therapies prescribed by her palliative care specialist. In December, last month, she asked three doctors who were looking after her, including a palliative care consultant, to increase her pain-relieving drugs to a level which would produce deep sedation. All the doctors refused her request on the basis that it would be tantamount to euthanasia. The patient then consulted lawyers, who took expert advice from a leading professor of intensive care medicine. He disagreed with his professional colleagues and argued the principle of double effect applied to this patient, a principle about which I know that the noble Lord, Lord McColl of Dulwich, who is also speaking tonight, has given much thought.
I remind your Lordships that the principle of double effect has established that it is lawful for a doctor to provide a patient with treatment that may shorten his or her life if its primary purpose is to relieve pain and suffering. This case shows the difference in current professional views and in practice regarding end-of-life care. It highlights the need for a better grasp of what can and cannot lawfully be done, and what the boundaries and limitations of palliative care may be.
I hope that my questions and concerns are not seen as a critical challenge to palliative medicine as a whole, which I know is practised with great skill and is of great value to many patients. My concern is that palliative care should not unthinkingly be accepted as a universal panacea for the dying, but should be rigorously assessed and evaluated on the same basis as other health service therapies. Most importantly, I want the views of NHS users, particularly those imminently facing death, to weigh heavily with those charged with developing the health service’s new end-of-life strategy. I look forward to the debate and the Minister’s reply.