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Tribunals, Courts and Enforcement Bill [HL]

Volume 689: debated on Tuesday 20 February 2007

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Tribunals, Courts and Enforcement Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.

Clause 18 [Limits of jurisdiction under section 15(1)]:

1: Clause 18 , page 15, line 3, leave out “3” and insert “4”

The noble and learned Lord said: My Lords, I moved a similar series of amendments on Report. I did not press the amendments on the understanding that there would be further discussions with the noble Baroness in order to meet certain concerns that the Lord Chief Justice had expressed. Such discussions have now taken place, with the result that I have added a new paragraph (b) to the proposed subsection (7A). This, I believe, gives the Lord Chief Justice and the Senior President of Tribunals all the flexibility to which they are entitled, while at the same time preserving the principle that I and others regard as so important. I have confirmed that the Lord Chief Justice is content with the amendment in its present form. That deals with Amendments Nos. 1 and 2.

As to Amendments Nos. 3, 4 and 5 my view is, has been and remains that they are a logical corollary of Amendments Nos. 1 and 2; others take a different view. Since, on any view, they are not a necessary corollary to Amendments Nos. 1 and 2, which can stand perfectly well on their own, I would be willing not to move Amendments Nos. 3, 4 and 5 if the noble Baroness could see her way to accepting Amendments Nos. 1 and 2. If, between now and the time when the Bill reaches the Commons, she can find a way of incorporating the substance of Amendments Nos. 3, 4 and 5 to everyone’s satisfaction then that would obviously be even better. I beg to move.

My Lords, I rise to express satisfaction that there has been such dialogue with the Lord Chief Justice. That appears to have arrived at a conclusion that both combines the objective of ensuring that judicial review is properly conducted in the upper tribunal by those with the authority to do so, and to discharge that extremely important role to complete satisfaction.

It is also satisfactory that the Lord Chief Justice has found an administratively convenient way to seek to give effect to the principle behind the amendments of the noble and learned Lord, Lord Lloyd of Berwick. We supported the noble and learned Lord’s earlier proposals and we are happy to transfer our support to the amendment today. We hope that it enjoys a positive response from the Government.

My Lords, I support Amendments Nos. 1 and 2. Judicial review is a discretionary remedy, in which the powers of the upper tribunal are set out in Clause 12. The exercise of such powers requires judicial expertise, as proposed by these amendments, as a safeguard for due administration.

Statutory provision as judicial review, which this is, in no way alters the essence of the discretion, which goes to the root of the grant of leave and the grant of relief on substantive hearing. There is no entitlement to grant of leave and no entitlement to relief on hearing. This form of judicial relief, taken from the old prerogative writs, has been developed since the last war, which was not so long ago, in a form of administrative law by judge-made decision in the High Court and the Court of Appeal, and will no doubt continue to do so. We are concerned here with a point of law. True, if proportionality arises—which can, but need not, be a point of law—the facts must come into consideration. That is a matter of very expert judicial attention, not to be exercised by anyone other than a High Court judge or a member of the Court of Appeal.

It is not always understood, so I shall say so, that this process is not an appellate process. It is not concerned with the merits, but with what is, in a sense, a technical, procedural question in which this expertise, as proposed in these amendments, is wholly essential.

My Lords, my name is also affixed to Amendments Nos. 1 to 5. Clauses 15 to 21 introduce a remarkable constitutional innovation. For the first time, the power to exercise judicial review jurisdiction has been delegated to a judicial level other than the High Court. That is, as a matter of principle, a remarkable change.

For that reason, the noble and learned Lord, Lord Lloyd of Berwick, and I introduced an amendment on Report requiring that the only judges to sit on the upper tribunal to hear judicial review matters be High Court judges—that is the High Court judges who sit in the Crown Office, now renamed the administrative court, to hear judicial review matters.

We were reluctant to dilute this principle. However, as is his duty, the Lord Chief Justice has pointed out that the volume of business likely to ensue in the upper tribunal in relation to the number of available High Court judges will, inevitably, mean that, in some circumstances, judges other than High Court judges will be required to sit. That is why the amendment has been modified in this way. The Lord Chief Justice is squarely on the face of the Bill and his responsibility is engaged to ensure that those judges, other than High Court judges, who will sit in the upper tribunal to hear judicial review matters, are of appropriate rank and quality.

I should like to underline everything that the noble and learned Lord, Lord Lloyd, has said about his satisfaction with the conclusion that has been reached. I am likewise satisfied.

My Lords, I am extremely grateful to the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Kingsland, not least for the work that they have done today in helping us to reach what I hope will be a very satisfactory conclusion. I am extremely grateful that the noble and learned Lord, Lloyd of Berwick, and the noble Lord, Lord Kingsland, have tabled revised amendments, which incorporate the flexibility that this whole Bill seeks to achieve for tribunals.

Amendments Nos. 1 and 2 retain the noble and learned Lord’s original concept: that judicial review cases transferred to the upper tribunal are to be heard by High Court judges or their equivalent. They also acknowledge that the Lord Chief Justice, the Lord President or the Lord Chief Justice of Northern Ireland, together with the senior president, can agree on others they consider suitable within the terms just described by the noble Lord, Lord Kingsland.

On Report, the noble and learned Lord, Lord Lloyd of Berwick, tabled amendments which would have permitted only High Court judges or their equivalents to hear applications. The noble and learned Lord did not press the amendments and we agreed to explore further, not least with the Lord Chief Justice, what we might then do. The Lord Chief Justice wrote to me on 7 February and set out his thoughts, copying his letter to the noble and learned Lord, Lord Lloyd, the noble Lord, Lord Kingsland, the noble Lord, Lord Thomas of Gresford, and Lord Justice Carnwath. The Lord Chief Justice was sympathetic to the issues raised, but did not support this amendment, because,

“some cases in the Upper Tribunal will need High Court judges to hear them, and I intend to make such judges available to sit on those cases. However, it is imperative that there is flexibility in relation to the circumstances where cases should be transferred to the upper tribunal, and flexibility as to who they will be heard by”.

That flexibility would be disturbed if the Bill included a provision limiting such cases to High Court judges, regardless of the circumstances of the case. There are some persuasive examples of cases where judges of the upper tribunal will have the expertise to handle particular cases in the most appropriate way. Technical tax cases, for example, have been mentioned in our discussions.

Given that Amendments Nos. 1 and 2 meet the requirements of the Lord Chief Justice, as well as those of the Government, I am pleased to be able to accept them. I am sure that, as the noble and learned Lord has said, as the Bill progresses, we will look again at Amendments Nos. 3 to 5. We will, of course, look at Amendment Nos. 1 and 2 to make sure that we have got this absolutely right. I am delighted to accept Amendments Nos. 1 and 2 and I am grateful to the noble and learned Lord for agreeing not to press Amendments Nos. 3 to 5.

My Lords, I am also grateful to the noble Baroness for the courtesy that she has shown me throughout. I ought, perhaps, to apologise to the House for not repeating the speech I made on Report on the importance of preserving the distinction of the High Court judge. I thought that could be taken as read. Anyway, the point has been underlined, both by the noble Lord, Lord Campbell, and of course, by other speakers.

On Question, amendment agreed to.

2: Clause 18 , page 15, line 21, at end insert—

“(7A) Condition 4 is that the judge presiding at the hearing of the application is either—

(a) a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or (b) such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals.”

On Question, amendment agreed to.

Clause 19 [Transfer of judicial review applications from High Court]:

[Amendments Nos. 3 to 5 not moved.]

Clause 24 [Mediation]:

6: Clause 24, page 21, line 1, leave out “of the First-tier Tribunal or the Upper Tribunal” and insert “appointed under section 40(1)”

The noble Baroness said: My Lords, in moving Amendment No. 6, I shall also speak to Amendments Nos. 7 to 10 and 15. In accepting the amendment tabled on Report by the noble Lord, Lord Goodlad, which restored to the Bill a clause governing mediation, I undertook to table consequential amendments at Third Reading to ensure that what is now Clause 24 fits properly back in. Amendment No. 6 tidies up the terminology to refer to all tribunal staff appointed under Clause 40(1), so that they can act as mediators wherever they work in the Tribunals Service.

Amendment No. 7 deletes Clause 24(6) to (9) to enable some restructuring of the role of ACAS and the payment of fees to mediators. Subsection (6), which requires consultation with ACAS before a practice direction can be made in relation to mediation, has been removed from Clause 24 because ACAS needs to be consulted only in employment cases.

Amendment No. 15 restores to Schedule 8 the provisions extending the mediation principles to the employment tribunals, which were originally included in Schedule 8 to the draft Bill. There are, however, some important differences. In subsection (4), the reference to tribunal staff has been broadened to include all tribunal staff. References to fees have been deleted—I shall explain why shortly—and the definition of “member” has been changed to make it clear that mediation may be carried out by members other than those assigned to the tribunal to hear the particular matter. I should explain that one provision that appears in the new Clause 24 has been omitted from the parallel provisions in Schedule 8. This is the stipulation that tribunal procedure rules or practice directions must be made with regard to the principles that mediation is to take place only by agreement between the parties in dispute, and that the failure of mediation is not to affect the outcome of the proceedings. This is a very deliberate distinction. It is accepted that the employment tribunals should remain outside the new tribunals structure, and that they will retain their own rules and policy priorities in some areas. This is due to their different character and their party versus party nature rather than their administrative nature.

The Department of Trade and Industry is currently undertaking a review of dispute resolution, which is due to report shortly. Against that background, we felt that it would be wrong to put anything in legislation now that might pre-empt the outcome of the review, or to fetter the discretion of the Secretary of State for Trade and Industry in this area. However, I emphasise that the omission of these provisions from Schedule 8 should not be taken to imply that the Government intend to force mediation on parties who are not willing to agree to it; it does not. Anything that the Government might eventually decide to do that changes the current position on mediation in employment tribunals would be subject to parliamentary scrutiny.

We decided to omit from Schedule 8 the provision that the failure of mediation is not to affect the outcome of the proceedings, because it would proscribe the use of an award uplift or reduction. The Department of Trade and Industry regards this as a legitimate tool to encourage settlement, and this is reflected in current arrangements under Section 31 of the Employment Act 2002. Under that provision, an employment tribunal may enhance or reduce an award dependent on the parties’ efforts on completion of the three-stage procedure. Again, we do not want to upset existing arrangements or to pre-empt the results of the review. Noble Lords may have seen an earlier version of the amendment to Schedule 8 in which the distinction between it and Clause 24 was not drawn. I apologise for any confusion that that may have caused.

Amendments Nos. 8 and 10 restructure the provisions on fees. Amendment No. 8 amends Clause 42 to enable the Lord Chancellor to prescribe by order the fees payable in respect of mediation conducted by any tribunal staff. This replaces the two references to fees in Clause 24 and Schedule 8. Amendment No. 10, to Clause 49, ensures that fees payable for mediation are subject to the negative procedure.

On orders setting fees for mediation by staff, the consultation draft of the Bill provided only that the orders be laid before Parliament. The Government believe that the negative procedure provides an appropriate level of control for orders setting the level of such fees, as the House has already accepted the principle that fees may be, but do not have to be, charged.

Finally, Amendment No. 9 was prompted by the mediation amendments and adds the words “a resolution of” after “approved by” to ensure clarity of the desired procedure before the House. I beg to move.

My Lords, I thank the Minister first, for accepting the amendments that I moved on Report with the support of my noble friend Lord Newton of Braintree, my noble and learned friend Lord Lyell of Markyate, the noble Lord, Lord Thomas of Gresford, and my noble friend on the Front Bench. Secondly, I thank her for her explanation of the consequential amendments, which have resulted from her further consultations. I would be happy to support them and thank her for her part in a helpful scrutiny, making this a stronger Bill than it would otherwise have been.

My Lords, as one of my noble friend’s accomplices in this matter I join in thanking the Minister for her positive response. I noticed the difference, to which she has referred, between the new clause inserted on Report and the modification of Schedule 8 proposed today in her amendment. I was going to quiz her about it but she has predicted that someone would, so I will not. Having met those conducting the review of employment tribunal matters only last week, I understand the noble Baroness’s point and think it is a reasonable explanation of the difference.

I have one other more general point, on which the answer may be clear to the lawyers who read the provisions but not to me. They seem to be couched in terms of which staff or members of tribunals can carry out mediation or receive fees for it. However, very few staff currently in the system will be trained in, or have experience of, mediation. Outside the tribunal service a significant number of people have experience in and are trained in mediation. If the Minister cannot give me an answer to my question off the cuff, I would like her to write to me. Is it envisaged that it will be possible to use people outside the service to provide mediation? It would seem sensible to at least provide for that opportunity.

My Lords, I am grateful to the noble Lord, Lord Newton of Braintree. I can confirm that it would be possible under the legislation to use those outside the tribunal. I am extremely grateful to the noble Lord, Lord Goodlad, for welcoming these tidying up amendments and recognising the change that I made. I hope that noble Lords will accept the amendments.

On Question, amendment agreed to.

7: Clause 24 , page 21, line 4, leave out subsections (6) to (9)

On Question, amendment agreed to.

Clause 42 [Fees]:

8: Clause 42 , page 33, line 33, at end insert “, and

(e) mediation conducted by staff appointed under section 40(1).”

On Question, amendment agreed to.

Clause 49 [Orders and regulations under Part 1: supplemental and procedural provisions]:

9: Clause 49 , page 37, line 23, after “by” insert “a resolution of”

10: Clause 49 , page 37, line 28, leave out “42(1)” and insert “42(1)(a) to (d)”

On Question, amendments agreed to.

11: After Clause 69 , insert the following new Clause—


Within twelve months of Royal Assent, the Secretary of State shall lay before Parliament regulations to create a specialist regulator of enforcement agents that will—

(a) licence enforcement agents, (b) approve the businesses and organisations that employ them, (c) accredit the professional bodies that represent them, (d) set standards of conduct, (e) monitor performance, (f) investigate complaints, and (g) punish failure to comply with standards of conduct and order redress where appropriate.”

The noble Lord said: My Lords, perhaps I may start by being nice and saying that the Minister and her whole team have been immensely helpful in dealing with bailiff regulation since the Bill first appeared. I am grateful to them for their time and effort. However, I think that they have taken a severe wrong turning in trying to cobble together a regulator out of the Security Industry Authority and various other bits of legislation that they happen to have lying around. It will be extremely difficult to get it right and it will require a lot of perseverance and diplomacy to make it happen at all. The noble Baroness has those characteristics; I hope that she remains in her place for long enough to do it.

The Government have chosen to go for a mix of Security Industry Authority and existing DCA powers to try between them to provide for a regulator that will come up to scratch in regulating bailiffs. It will clearly take a long while to get there. Today I am aiming, not to impose on the noble Baroness my own idea of what a regulator should be—I hope that this is a fight that will carry on into the Commons and that they might do that—but to obtain from the Government a commitment to see the matter through to the end. Where we are now is where we began in 1992 when it first became apparent that bailiffs were misbehaving in their enforcement of poll-tax debts. That misbehaviour has carried on unabated; indeed, it has been exacerbated because so many more aspects of our lives are now frequently attended to by bailiffs, notably congestion charges and other incidental taxes on motorists. The more time passes and the more fixed penalties are invented to avoid lengthy procedures for our police force, the more bailiffs will come into the necessary matter of enforcement at the end of the day. From the many people who have written to me, I know that it is enormously important that that serial and compounded injustice is brought to an end in a way that preserves the revenue of the Government and their various offshoots and preserves the principle that those who are owed money should pay it. It is crucial to get that right.

My amendment sets out the principal matters on which I am looking for a commitment—I emphasise the word “commitment”. We all hope that we will go in the same direction; but I want a commitment. Paragraphs (a) and (b) are self-explanatory: not only are we looking for the individual bailiff to be regulated but also the people who control bailiffs; otherwise it is too easy to maintain the fiction that people are running a reputable bailiff business but allow individual bailiffs to misbehave below that. It must bite on those such as Equita, a subsidiary of Capita, which is a very reputable company. They must realise that they must behave.

It must involve setting standards of conduct which have consequences for a bailiff. It must be known both to the bailiff and to the people whom they are dealing with what standards of conduct are expected. That must be made evident at the beginning of the process, as the High Court bailiffs do now. The first part of the transaction is that the debtor is handed a leaflet or leaflets explaining the procedure and their rights, so that everything is clear from the outset and we do not have the licensed deception that we have at present.

The regulator must monitor performance. It must be an active regulator, but not an overbearing one. One or two of the smaller bailiffs have written to me to say that they really do not want a body that will charge them immense fees just for the pleasure of investigating them. I hope that the process will result in an industry that largely behaves; none the less, there must be monitoring.

My Lords, should not monitoring follow a complaint? It is, in my view, unwise to monitor regardless of that.

My Lords, I shall be satisfied whichever direction the Government take on that, so long as it is understood that the regulator has that ability. As the noble Lord says, or implies, monitoring without a complaint tends to evolve into monitoring for its own sake.

When I take my daughter to nursery school, I have to sign her in and out morning and evening. Why? No one will use that register. It is just a bit of monitoring that Ofsted has put there for the sake of it. I would like to avoid that. If complaint-related monitoring is the way to do that, that seems a reasonable course for the Government to take.

However, I do not want a regulator that sits there believing that mischiefs are taking place but thinks that it can do nothing until someone complains, because that is another mischief. If it has to wait until there is an active complaint, rather than saying, “No, this is going the wrong way. The reputation of the industry is being damaged even if we do not have an individual complaint”, that would be a mischief also. How can one tell? This creature does not yet exist. I hope that it will be well regulated and perform better than the SIA in its early days. However, it has to be able to investigate complaints; otherwise it will have no teeth at all. If someone approaches a regulator saying that a bailiff has misbehaved and it can do nothing about it, then the regulator will have no effect.

I want a commitment from the Government to an investigatory power and practice which is open and which goes beyond that which the SIA has chosen to exercise. The SIA does not tell those who have complained what the results of its actions have been, which seems entirely inappropriate in the case of bailiffs. At the end of the day, it must have the ability to exact fines or the cessation of licences in a way which hurts a serious business enough for it to sit up and take notice.

On the other hand, I would not like to see bailiffs regulated in the way that teachers are regulated. If teachers have a complaint made against them, they are suspended and can spend one or two years sitting around waiting for adjudication. I do not think that is necessary in the case of bailiffs, except in extreme cases. Generally, if you are trusted to be a bailiff in the first place, you are trusted to continue in the business until you are found to have done wrong. I am looking for something not heavy-handed but which has real force and where the big boys in the business—who are always going to carry most of the business because they will have the big local authority and government contracts—will want to behave and will regulate themselves because the consequence of not doing so could be to lose the business altogether.

If I can have not comfort but commitment from the Government that they will see this through, I will be content to withdraw the amendment. For now, I beg to move.

My Lords, we have seen considerable movement in this sphere of regulation and enforcement during the debates on this Bill and so far they have been in a positive direction. At an earlier stage the Minister said that there was no lack of will on the part of the Government to do something about regulation but there was some uncertainty about the mode of doing it most effectively.

The sole purpose of my intervention behind the noble Lord, Lord Lucas, whose work in this sphere has evoked admiration across the House, is simply to inquire whether the Government intend that the options on which they are consulting should not be confined by the timing for the remaining stages of the Bill, excluding the possibility of including provisions which satisfy the concerns expressed by many consumer bodies, including citizens’ advice, that the SIA is not, through a regulatory process that it might devise, necessarily the best way to proceed.

I hope that the Government will avail themselves of the opportunity to reach a conclusion on matters that have given rise to concern. Before the opportunity for amendment of primary legislation ceases, it may be necessary to take account of the concerns voiced.

My Lords, I am extremely grateful to the noble Lord, Lord Lucas. He has, as the noble Lord, Lord Maclennan of Rogart, said, worked tirelessly on this issue. He has held me to account in many ways and ensured that the Government have moved considerably to address his concerns. I am more than happy to give him as much commitment as I can, not on my own behalf, important though that may be, but on behalf of the Government, because it will be a team effort to bring in this provision. I said when we discussed this issue previously that we plan to lay the regulations by the summer. That is our timetable; it will be an important conclusion.

I hear what the noble Lord, Lord Maclennan of Rogart, says about primary legislation and I understand the desire for it; in a sense it is where I began. However, we believe that we have the legislation in place and that we need to use the regulations in the Private Security Industry Act 2001 to enable us to do this. The noble Lord, Lord Lucas, is also right to say that we must make sure that we get the regulator right, which is what lies behind the proposals of the noble Lord, Lord Maclennan. The regulator must be able to do the job. I have already made that commitment to those in the industry itself, who are of course keen to see this come into being. We will work as closely as we can with the industry to ensure that regulation is robust and proper and that the regulator can carry out its functions.

On the amendment before us, what I cannot commit to is a 12-month timescale because I do not yet know what the timetable will be. However, I can make a commitment to lay the regulations before Parliament. That in itself will give us another opportunity to consider and debate in more detail what is to happen. I hope that what I say now will satisfy the noble Lord and allow him to withdraw his amendment in the recognition that we are planning to do what he seeks to achieve.

Our proposal means that all enforcement agents who are not Crown employees will be licensed by the SIA and that there will be no exceptions. The noble Lord, Lord Lucas, asked on Report whether there might be exceptions for some employees of large companies where a significant proportion of the employees are already licensed. That will not be the case. I should add that licensing will also apply to managers and supervisors in companies directing enforcement activity. Through regulations we want to drive up standards across the industry, in particular by setting strict competencies and conditions for those individuals who apply for a licence. On punishment for failure to comply with standards and redress, as I said on Report, a whole range of offences is set out in the Private Security Industry Act and specifies penalties where any person contravenes a condition of the licence granted to him. The penalty for this is a term of imprisonment not exceeding six months, a fine not exceeding £5,000, or both. The SIA also has the power to revoke or modify licences. These sanctions represent the most serious end of the scale, of course, and I understand that the SIA also uses sanctions such as written warnings and improvement notices as part of its compliance activity. Further details of those are set out in the enforcement policy code of practice.

Along with other regulators, the SIA is considering whether it wishes to take on additional or alternative powers as recommended by Professor Richard Macrory in his independent review of regulatory penalties. I agree with the noble Lord that it is vital for debtors to have access to a workable system for complaints and redress. My officials are committed, as are the Government, to developing appropriate procedures with their colleagues in the SIA and the Home Office as well as with stakeholders across the system. For example, we need to consider what role might be played by alternative dispute resolution in this. For a complaints system to be effective, debtors as well as enforcement agents need to be aware of their rights, particularly in relation to the powers available to agents. I believe the Bill is clearly drafted in this respect, but my department wants to ensure that information about these rights is clear and accessible to the public. This will be achieved through information leaflets and so forth. Finally, although Crown employees will be exempt from regulation, I am committed to ensuring a common set of standards and a common appearance across the enforcement industry.

I hope that the word “commitment” has been used sufficiently often for the noble Lord to feel that I have addressed the concerns he has raised.

My Lords, I will withdraw the amendment. The noble Baroness has continued in her tradition of helpfulness on this and has gone far enough. As I have said, I hope that this argument is raised again in the Commons because it requires to be tested in terms of whether the Government’s chosen route is the right one. Given that this is the way they are going, I wish them every good fortune and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Judges and other members of the First-tier Tribunal]:

12: Schedule 2 , page 120, line 3, after “Tribunal” insert “by virtue of section 4(1)(d) or”

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 13 and 14.

This group of amendments makes minor and consequential changes to Schedules 2 and 3. Amendments Nos. 12 and 13 are technical amendments required as a result of changes made on Report in the way that members of the Asylum and Immigration Tribunal fit into the new tribunals. Noble Lords will recall that amendments to Clauses 4 and 5 were made on Report to clarify which legally qualified members of the Asylum and Immigration Tribunal are to be considered judges of the first-tier tribunal and which are to be considered judges of the upper tribunal. The Government’s intention, which is 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 Lordship’s House, that visible distinction was lost. The amendments tabled on Report restored the distinction. Amendments Nos. 12 and 13 carry through those changes into Schedule 2.

Amendment No. 14 remedies an omission from the Bill by providing for the oath of allegiance and the judicial oath to be taken by a person transferring into the new tribunal structure as a deputy judge of the upper tribunal. In order to cement their status as judges within the new system and the wider administrative justice system, it is intended that the oaths should be taken by all of the tribunal judiciary unless they have already done so as the result of holding an existing judicial office. Provisions in various parts of the Bill apply that requirement to all other judicial office holders. Paragraph 10 of Schedule 3 makes it clear that all deputy judges should take the oath. Amendment No. 14 completes the set by including those transferring in. I beg to move.

On Question, amendment agreed to.

13: Schedule 2, page 120, line 36, after “Tribunal” insert “by virtue of section 4(1)(d) or”

On Question, amendment agreed to.

Schedule 3 [Judges and other members of the Upper Tribunal]:

14: Schedule 3 , page 125, line 24, after “Tribunal” insert “, or

(ii) becomes a deputy judge of the Upper Tribunal as a result of provision under section 31(2),”

On Question, amendment agreed to.

Schedule 8 [Tribunals and Inquiries: consequential and other amendments]:

15: Schedule 8 , page 168, line 8, at end insert—

“After section 7A insert—

“7B Mediation

(1) Employment tribunal procedure regulations may include provision enabling practice directions to provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings.

(2) The provision that may be included in employment tribunal procedure regulations by virtue of subsection (1) includes provision for enabling practice directions to provide for a member to act as mediator in relation to disputed matters in a case even though the member has been selected to decide matters in the case.

(3) Once a member has begun to act as 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.

(4) Staff appointed under section 40(1) of the Tribunals, Courts and Enforcement Act 2007 (staff for employment and other tribunals) may, subject to their terms of appointment, act as mediators in relation to disputed matters in a case that is the subject of proceedings.

(5) Before making a practice direction that makes provision in relation to mediation, the person making the direction must consult the Advisory, Conciliation and Arbitration Service.

(6) In this section—

“member” means a member of a panel of members of employment tribunals (whether or not a panel of chairmen);

“practice direction” means a direction under section 7A;

“proceedings” means proceedings before an employment tribunal.””

On Question, amendment agreed to.

Schedule 12 [Taking control of goods]:

16: Schedule 12 , page 209, line 31, leave out paragraph 18

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 17 to 20. I shall not trouble the noble Baroness for a detailed reply on why these amendments work or do not. I want to use the opportunity to note two ways in which I think the Government are going wrong in principle in the Bill, to urge them to use the Bill’s progress in the Commons to think further on these matters, and perhaps to urge my colleagues in the Commons to take these matters seriously when they have the chance.

The first issue is the use of force against the person. The Bill authorises regulations that will authorise the use of such force. That is an unnecessary and unhelpful evolution in the relationship between a bailiff and a debtor. I can see some arguments for that in theory but think it is something we will come to regret in practice. It is not the way in which a relationship should exist between a bailiff and a debtor. The use of force generally between the agents of the state and the citizen is something that we need to be very careful of. We have seen how easy it is to tread the wrong side of the line in several recent police cases. They have to exercise immense restraint in these circumstances. It is all too easy for something to go wrong. I do not think that this is a danger that we should introduce into bailiff legislation. Beyond anything else, I do not think it is really necessary. There is only a tiny constituency in the bailiff community that thinks that it might even be of use. I do not think that we should endanger our social arrangements. Once you allow this sort of thing, it has a tendency to become commonplace. I would not like to see that happen.

Secondly, I would like to go back to some arguments we had in Committee and later concerning Semayne’s case and related matters—an Englishman’s home is his castle, or not—and to the basic principle, which I thought had largely been followed, that although a criminal fine derives from a criminal prosecution, the recoupment of a criminal fine is a civil matter. Those principles are transgressed by the idea—which I agree is not new in this Bill but derives from an amendment made in 2004—that criminal fines and certain government debts can allow bailiffs to force entry without a court order. We do not have the history on it yet, but that seems to me something that will turn out to be a step in the wrong direction. It should not be the relationship between a government and the governed that they can break into one’s home without the matter having been carefully considered on an individual basis. If the use of these powers becomes at all commonplace, I believe that it will add—in the way that many practices that we have allowed to grow up do—to the discontent that the citizen feels towards the Government and to the disillusionment with politicians and the political process.

We have to recognise that just because we are the Government and we are owed money it should not give us rights beyond those which accrue to somebody who is owed money in the ordinary way of things. We should not allow ourselves privileges of harm against the citizen that we do not allow other people and which disrupt the relationship and make it seem a more oppressive form of government than I should like to see. We have to be careful about doing damage through little things because it is in little things like this that the damage is done, not through some great big purpose to oppress the citizen. Damage is done through little things that allow the citizen to come off worse in circumstances where they ought to have a better right of justice and be treated better.

I hope that the Government will think again about going down this route and that my noble friends on the Front Bench here and in another place will use this opportunity to set their minds against the measure when they get the chance to reverse it in another Bill, should that be the way in which elections turn out. This is a wrong turning and not a direction in which we should go. In the end it will be harmful to all our interests if we continue down this route. I look forward to the Government’s reply. I beg to move.

My Lords, I speak in support of Amendment No. 19, which seeks to leave out line 33 at page 210. I remind noble Lords whose attention may not necessarily be concentrated on this particular matter that line 32 states:

“A power to use force does not include power to use force against persons”.

Line 33 continues,

“except to the extent that regulations provide that it does”.

Those are slightly weasel words. In supporting Amendment No. 19, I refer to what the noble Baroness said on Report:

“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”.—[Official Report, 31/01/07; col. 272.]

I take the noble Baroness at her word.

The noble Baroness has now been sent a copy of the Magistrates’ Courts Guidance—Search and Entry Powers (Domestic Violence, Crime and Victims Act 2004), which, as I said on Report, has 31 pages, on 15 of which paragraphs have been blacked out. One or two whole pages have been blacked out. They are secret instructions about which she obviously had not been informed. This was sent to the Reverend Paul Nicolson by the Access to Rights Unit at the DCA after he had sought a review of the department’s decision not to tell him when the last resort had been reached that would enable a bailiff to break into domestic property to enforce a fine, who makes that decision and under what circumstances. Secret guidance of this kind is particularly worrying because, although this Government will not implement regulations allowing restraint of debtors by bailiffs unless necessary, any other Government of whatever hue might slip them in without telling anyone, while letting the circumstances of their implementation disappear into the invisible guidance.

The noble Baroness has also been sent a copy of counsel’s opinion on the department’s decision and the invisible guidance by Alan Murdie, a barrister trustee of the Zacchaeus 2000 Trust. It is strange enough that there should be any secret instructions to a bailiff about how to break into a domestic property and seize goods, but it also seems that the grounds for withholding information under the exemptions allowed in the Freedom of Information Act are extremely flimsy. The information is withheld because it would be likely to prejudice the prevention or detection of crime under Section 31(1)(a) of the Freedom of Information Act. Bailiffs enforcing a fine have a court order to collect the money owing. There is nothing in that order that requires them to undertake “Hercule Poirot” activity and the detection of crime. Also, that section of the Freedom of Information Act does not apply in the present context, because enforcement of a fine is a civil matter, not a criminal one. Constitutionally and legally, fine enforcement is the collection of a debt payable to the Crown.

Mr Murdie also says that it is important to note that until 27 March 2006, the law of bailiffs relating to fine enforcement could be established in law with sufficient clarity, and could be discovered by any interested citizen and their representative. Nothing was concealed, and the enforcement of justice was an open matter. He suggests that the Domestic Violence, Crime and Victims Act and this Bill are not compliant with human rights law, in which the actions of the state affecting the citizen must be clear and be capable of being stated with certainty.

He suggests too that there is a public interest in understanding what can be done if bailiffs act in a way, while enforcing a fine, that gives rise to a complaint. Unless citizens and their representatives know what procedures the Government require the bailiff to implement, they cannot know whether they have been kept. There are other points in his opinion, but I will not labour the point any further. I would be grateful if the noble Baroness could shed some light on a very puzzling and rather murky area of her department’s decision-making.

My Lords, I am grateful to the noble Lord, Lord Lucas, for returning to this issue. Noble Lords will recall that on Report we had a bit of confusion about the power of re-entry and about whether judicial authority should be available in that context. Noble Lords might recall, too, that one of the concerns was that some of the advice agencies were worried that if judicial authority were needed for re-entry to be enabled, that might encourage some bailiffs to take goods on the first visit. I have been looking at that, and we are in discussion with the industry and with the advice services. We have powers in paragraph 13(3) of Schedule 12 and paragraph 24(1) of Schedule 12 that would enable me to look at that through regulations to ensure that we deal with it appropriately when, for example, we are ensuring that we set out the criteria that should be followed the first time that people enter premises, so that it does not become a matter of course that they take goods on that first visit. Also, that would make getting judicial authority for a re-entry as simple and easy as possible, thereby reducing the incentive to take goods on the first visit. I wanted to say that at the beginning, because that was an area that we discussed at length, and I hope that I have tackled that.

I hope that I can give the noble Lord some comfort on Amendment No. 19. I know that he feels very strongly about this, and we have had discussions about the restraining of the debtor and of anyone else who is preventing an enforcement agent from taking control of goods to carry out their lawful duties. I want to reiterate what I said on Report, as it may in some ways help to solve the noble Lord's problem. The regulations made under paragraphs 24(2) and 31(5) of Schedule 12 will be drawn up only after consultation with the advice sector and with the enforcement industry—and that is another commitment. If after such consultation the consensus is that existing powers are sufficient, we will reconsider our position. I shall ensure that the noble Lord knows about that.

However, I do not want to lose the flexibility in the Bill because, although some organisations have been concerned about it, others feel strongly that it is very important to set this out properly so that those who have to use the restraining powers do so properly and appropriately. We need to have that conversation; depending on the outcome, I shall undertake to act appropriately and accordingly and keep the noble Lord informed.

Amendment No. 16, as the noble Lord says, replicates the current law in the Magistrates’ Courts Act 1980, which is inserted by the Domestic Violence, Crimes and Victims Act 2004. The powers target those who have been convicted of a criminal offence, fined and who subsequently refuse to engage with the courts and pay the fine.

It cannot be right that someone who has committed a criminal offence and received a sentence imposed by the courts can evade justice simply by refusing to open the door to an enforcement agent going about his lawful business. For a long time, non-payment of fines has been treated differently from non-payment of civil debts, with imprisonment still being available ultimately as a sanction for fine default. We think it is important to retain the powers set out in Schedule 4A to the Magistrates’ Courts Act 1980 as a key component of the enforcement tools available to those who have responsibility for enforcing criminal fines.

In my earlier comments about how I intend to approach the matter I dealt with Amendments Nos. 17 and 18. I hope that the noble Lord will accept that. I shall not refer to the technicalities of these amendments for the precise reasons mentioned by the noble Lord.

The noble Lord, Lord Beaumont, was kind enough to let me have his speaking note. I am the Minister responsible for freedom of information in the department. As the noble Lord knows, we have, under the Freedom of Information Act, the ability to withhold information, on the ground that sharing guidance to civilian enforcement officers on what to do in specific situations would prejudice the administration of justice. We think that the disclosure of methods used by enforcement agencies could assist defaulters to evade enforcement officers in the execution of their duties. That is why specific paragraphs were withheld. There is a risk that making the guidance more widely available would give an inappropriate advantage to defaulters by giving them an insight into the techniques used by enforcement officers. We are concerned to avoid a situation where our guidance is used by defaulters to avoid enforcement officers and, subsequently, their duty to pay financial penalties.

Of course, fines need to be enforced effectively. Wider publication of the guidance could impinge on the efficiency of the enforcement activity, and on that basis exemptions under Section 31(1)(c) of the FOI Act apply. There is no possibility, which I know the noble Lord is concerned about, of any other Government slipping in or implementing the provisions, as the regulations under paragraphs 24(2) and 31(5) of Schedule 12 are subject to the affirmative resolution procedure. I think that if the Reverend Nicolson, who was in receipt of the letter, is discontent with the responses that he has had so far, he is entitled to pursue the matter with the Information Commissioner, Richard Thomas. I hope that the noble Lord is satisfied with my answers.

My Lords, the best news that I have had today is that the noble Baroness is responsible for freedom of information within the Government. That is not today's subject but it gives me some hope on other matters. I think the noble Baroness has gone as far as she is able to; I would invite her to go further, but I am happy to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 17 to 20 not moved.]

Schedule 13 [Taking control of goods: amendments]:

21: Schedule 13, page 224, line 40, leave out “fine or other”

The noble Baroness said: My Lords, I shall also speak to Amendments Nos. 22 to 29 inclusive. This group of amendments correct minor drafting errors in some of the consequential amendments set out in Schedule 13. They are being laid in an effort to ensure that the consequential amendments regarding taking control of goods in Schedule 13 achieve the desired result. Amendments Nos. 21 and 22 correct consequential amendments to Section 104 of the Criminal Justice Act 1967, paragraph 30 of Schedule 13. Section 104 currently refers to “any sum of money”, whereas paragraph 30 of Schedule 13 incorrectly refers to,

“a fine or other sum”.

The proposed amendments simply correct that.

Amendments Nos. 23, 24, 25, 26 and 27 correct consequential amendments to the Local Government Finance Acts 1988 and 1992—paragraphs 89, 107 and 108 of Schedule 13—making it clear that it is the relevant billing authority and not the Secretary of State who has the right to use the procedure laid down in Schedule 12 to this Bill to recover outstanding sums of non-domestic rates and council tax.

Amendment No. 28 revises the consequential amendment to Section 5 of the Road Traffic (NHS Charges) Act 1999—paragraph 130 of Schedule 13. Paragraph 130 of Schedule 13 makes provision until a repeal comes into force; the repeal is now in force, so the amendment brings the provision up to date.

Amendment No. 29 corrects consequential amendments to Section 78 of the Powers of Criminal Courts (Sentencing) Act 2000—paragraph 133 of Schedule 13. Section 78 currently refers to “a fine” whereas paragraph 133 of Schedule 13 incorrectly refers to a “fine or other sum”. The proposed amendment corrects this. I beg to move.

On Question, amendment agreed to.

22: Schedule 13 , page 225, line 3, leave out “fine or other”

23: Schedule 13 , page 232, line 21, leave out “Secretary of State” and insert “billing authority”

24: Schedule 13 , page 234, line 30, leave out “Secretary of State” and insert “billing authority concerned”

25: Schedule 13 , page 235, line 6, leave out “Secretary of State” and insert “authority concerned”

26: Schedule 13 , page 235, line 12, leave out paragraph (c)

27: Schedule 13 , page 235, line 30, leave out “Secretary of State” and insert “authority concerned”

28: Schedule 13 , page 239, line 37, leave out from “(4)” to “for” in line 38 and insert “(so far as it continues to have effect)”

29: Schedule 13 , page 240, line 17, leave out “or other sum”

On Question, amendments agreed to.

Amendment (privilege) made.

My Lords, I beg to move that this Bill do now pass.

Moved accordingly, and, on Question, Bill passed, and sent to the Commons.