Committee stage in the Lords
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The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)Labour- Quote
- I am grateful to the noble Lord. I made sure that I had seen some examples of practice directions; as he knows, it is important to be clear what we are trying to do. He is right in his interpretation of the clause—that we seek to ensure that the role of the senior president is well defined. The view that we have taken is from the Constitutional Reform Act 2005. The judicial-related functions transferred to the Lord Chief Justice, and it is not appropriate for the Lord Chancellor to be involved in the making of practice directions concerning the interpretation of law or the making of decisions by tribunal members. Those rest firmly with the judiciary, in this case the Senior President of Tribunals. It is part of making sure that we do nothing that could undermine the independence of the judiciary. The noble Lord rightly recognises that, for other practice directions, the Lord Chancellor’s authority would be required. That is simply because there are resource and staffing implications for which the Lord Chancellor is responsible. A practice direction on the listing of cases would be an example. Listing is a judicial function but much of the work is carried out by staff, and the Lord Chancellor has a legitimate interest in how staff are used and in the resource implications. That is how it is done. I take what the noble Lord says about the breadth, but nothing that I have seen suggests to me that it is particularly unusual or inappropriate. Perhaps I may think further to see whether I can add anything to that for the noble Lord between now and Report, but the provision is not designed to do anything other than differentiate and to do what has been part of what the Lord Chief Justice has done since the Constitutional Reform Act. In this case, the senior president will consider the issues as the head of the Tribunals Service.
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Baroness Butler-SlossCrossbench- Quote
- May I interrupt? I used to give practice direction when I was President of the Family Division. There is a clear understanding by judges, particularly judges who are head of a division, as the president of the upper tribunal will be, as to the distinction between substance, which is not the matter of a practice direction, and procedure, which is eminently the matter. I feel confident that the president—I think that the first president will be a Court of Appeal judge—will totally understand that distinction. If he did not, I have no doubt that he would consult either the President of the Queen’s Bench Division or the Lord Chief Justice.
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- Baroness Ashton of UphollandLabour
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- Of course I am pleased that the noble Lord has raised the point. Lord Justice Carnwath, as the noble Baroness will know, is a very eminent judge. I am sure that what she said would apply, but of course the noble Lord is right to raise issues. I will write to him if there is anything that we need to add to what the noble Baroness said.
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Lord Newton of BraintreeConservative- Quote
- I should make it clear that what I am about to say is not said as chairman of the Council on Tribunals, an interest I have repeatedly declared in these proceedings, but simply as a Member of the Committee. Regardless of the drafting of the substitute proposition, I find it a little difficult to sign up to the proposition that people can be dismissed “without cause”—which, in plain English, apparently means “for no reason”. There needs to be a good explanation before the Committee can be expected to sign up to that proposition.
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Lords, Lord Kingsland and Lord Newton, for raising this issue. We have based what is in the Bill on the Cabinet Office guidance on the establishment of non-departmental public bodies. As the noble Lord, Lord Newton, knows, the Administrative Justice and Tribunals Council will be an advisory NDPB, as was the Council on Tribunals. Let me say out loud, as it were, what the guidance says. It was published in 2006 and states: “The statute or instrument creating an NDPB or conferring the relevant functions on it, should normally provide suitable powers of appointment and dismissal over the Chairman and board members. Grounds for dismissal normally include criminal behaviour, poor performance and other grounds which make members unable or unfit to discharge the functions of the body”. The purpose behind paragraph 3(5) of Schedule 7 is to provide for the removal of appointees on the grounds of inability or misbehaviour. I am confident that this formulation is wide enough to cover the point that has been raised. Indeed, noble Lords have not queried it in that sense. The guidance goes on to state: “Except in the case of tribunal NDPBs the statute should also provide for a power for the removal from office without assigning cause, on the giving of notice by the Secretary of State, with associated power for compensation to be paid”. I reiterate that the Administrative Justice and Tribunals Council does not fall into the category of a tribunal NDPB—it will be an advisory NDPB—so, in that sense, it is not excluded from the guidance and responding to it. That is why the provision concerning removal without cause is in the Bill. The Committee will know that this is about enabling us to remove people if they are not performing their functions adequately. Even though the noble Lords, Lord Kingsland and Lord Newton, have not suggested this, I hasten to add, very firmly, that it is not meant to interfere with the independence of the Administrative Justice and Tribunals Council. Having said that, I see the point that has been raised and I would like, if I might, to go away and reconsider whether we need those words in the Bill. If noble Lords will allow me to discuss it with those who have given me the guidance, to make sure that I can do something about it, I should like to be given the opportunity to do so.
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- Lord Newton of BraintreeConservative
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- I know it is unusual but I was told that, if I gave notice to the Deputy Chairman, the Clerk and the Minister, it would be in order to raise one or two points on Schedule 7 stand part. The reason I am doing it in this slightly unusual way—for which I ought perhaps to apologise—is that, as I strongly support both Clause 42 and Schedule 7, it would be too artificial to put down a blocking motion merely in order to make a point or two. I have indicated the two main points that I want to raise with the Minister. I re-declare my interest, in view of the direct relationship between my present position as chairman of the Council on Tribunals and these provisions.
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- Baroness Ashton of UphollandLabour
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- I am very grateful for those comments, including the bouncers. I am grateful to the noble Lord for advising me of at least the first two points that he wished to make, although I hope he realises that I would have answered them anyway, without the briefing. I describe what is happening as radical evolution. The noble Lord is right to ask what will happen to the members of the Council on Tribunals. They have done an outstanding job. I pay tribute to both the noble Lord and the members of the council. My message to them is that they do not escape that easily. We want to ensure that we do not lose continuity of membership or the expertise that they have. As the noble Lord rightly said, the measure does not contain provisions for the transition because we do not need them; we can do it administratively. But, for the record, those who are members of the Council on Tribunals on the day that it is abolished will become members of the Administrative Justice and Tribunals Council and serve out the remainder of their term of office in the new body. New members of the Council on Tribunals—that is, those who are recruited between now and the creation of the AJTC—will be appointed to the Council on Tribunals in the expectation that their term of office will cover a period as a Council on Tribunals member and a period as an AJTC member. I understand that the Office of the Commissioner for Public Appointments is happy with this approach. I hope that the noble Lord is, too. The answer to the bouncer of a second question is that we are looking at June next year to implement all this. The noble Lord was kind enough to advise me that he intended to comment on research. We do not want the council to spend time developing a massive in-house research capacity. In any event I do not think that is in the noble Lord’s mind. As he rightly says, there is no money available for that. I completely agree with him that it is often hugely relevant and important for independent bodies, especially those with expertise in a particular field, to do research. We have sought to ensure in the Bill that the council informs us of areas where it thinks that research will be needed. However, there is absolutely nothing to stop the council itself commissioning research. I accept that that would confer advantages on the council and the Government. There is no question but that the council could do other than bid for a share of the departmental research budget if it so wished. I hope that I have fully answered that question. On the first bouncer question regarding attendance as observers and deliberations, the answer is yes. That is intended to be included.
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- Lord Newton of BraintreeConservative
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- I thank the Minister. I could hardly have asked for more, so I shall simply sit down and shut up. Schedule 7 agreed to. Clauses 43 to 45 agreed to. Schedules 8 and 9 agreed to. Clause 46 [Orders and regulations under Part 1: supplemental and procedural provisions]:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 64:
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- Baroness Butler-SlossCrossbench
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- I am not content that Clause 47 should stand part. Yet again I declare an interest as a former judge. I am concerned about Clause 47(4)(b), together with Clause 48(1); that is to say, the purpose of a relevant qualification, if the person holds a qualification that under Clause 48(1) is a relevant qualification in relation to the office. This, as I understand it, is intended to improve diversity. I thank the Minister for her very helpful letter on the concern that I had expressed at an earlier stage. I strongly support diversity. I am a product of it, because I was one of the very few women who got to the higher realms of the judiciary. I think I am still a first in certain judicial roles. However, I have a concern about qualifications. Let us take the example of the legal executive. It is an excellent idea that legal executives should have the right to become chairmen of tribunals and, indeed, district judges. My concern, however, is this. It has been thought for some time by many of us who have been judges that it is desirable that those who have an appointment at one level should have an opportunity for promotion. Again, I am a product of that. I moved from being a divorce registrar to a divorce judge to a High Court judge. I can tell noble Lords that the gap is enormous from one post to the next because the intellectual and decision-making requirements for being a High Court judge are completely different from those for someone who sits as a district judge or chairman of a tribunal. It is therefore perfectly possible for a legal executive, having gone on to the Bench quite properly as a chairman, to have displayed characteristics that make one think that perhaps he or she should be promoted. But the training of a legal executive is not of the same calibre as that of either a barrister or a solicitor. Although that candidate for a higher post may have extremely good qualifications on the ground, he will not have had the training necessary either for a circuit judge these days or, even more so, for a High Court judge. At the moment, there is a requirement for someone sitting as a district judge—and, I suspect, as a chairman of a tribunal—who would like to be considered for a more demanding and senior post to become a part-time recorder and therefore to display such appropriate characteristics for promotion by that part-time sitting. However, that is not a statutory requirement. It does not have to be taken into account by the Judicial Appointments Commission. I have, if I may respectfully say so, the utmost confidence in the present very distinguished noble Baroness who is the chairman of the Judicial Appointments Commission. One does not know whether that will be the case in 10 or 15 years. I am simply concerned that a legal executive, or, particularly under Clause 48(1), someone for whom the Lord Chancellor has by order provided for a qualification that may come through the Institute of Legal Executives or some other body, may have training that would be excellent for a chairman of a tribunal or a district judge but would not be adequate for the High Court Bench and probably not for the circuit Bench. I therefore express my very considerable concern about these two clauses.
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Lord Thomas of GresfordLiberal Democrat- Quote
- I support the Government on this matter. I do not believe there should be a ceiling for legal executives. I appreciate that it will be very difficult for them to qualify for appointment to a higher judicial role. However, an awful lot of them have not had the opportunities that others have had to qualify as solicitors and barristers, yet they have advanced in the legal profession through the Institute of Legal Executives and its examinations. If they are thought suitable for appointment as a chairman of a tribunal or a district judge and show in that capacity that they have the talent and the intellectual capacity to go further, there should be no barrier to them. I am sure that the Judicial Appointments Commission would take their background into account when making appointments, but it might include a much wider social background that would be of great assistance in the role that the legal executives seek to fulfil. As the noble Baroness, Lady Butler-Sloss, has said, I have no doubt that, before they ever achieved a higher position as a judge, they would be required to sit as recorders and part-time judges to be tested to see whether they are fit for a full-time role. But no ceilings, please.
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Lord LucasConservative- Quote
- I note, since I spent a happy couple of hours yesterday in Sub-Committee E discussing the Court of First Instance in Luxembourg, that European practice admits a wide variety of backgrounds to the degree of judge sufficient to get on to that court. There are economists and accountants—people without proper legal background whatsoever. I am not suggesting that we go that far. Perhaps admitting people who have experience other than purely legal experience, particularly to the tribunal level, is only a good thing.
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- Baroness Ashton of UphollandLabour
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- The noble Lord, Lord Kingsland, is right; there is very little between what noble Lords have said. I completely accept that there is a general view that enabling people from a wider set of backgrounds to be considered is a good thing, if done appropriately, and that the Judicial Appointments Commission, led very ably by the noble Baroness, Lady Prashar, is also a good thing, and is a place where merit will be the only consideration. Those are principles upon which we are all agreed. I shall set out a little more about what we are proposing in terms of legal executives. I shall take on board what has been said as we begin to draft the regulations, and take the opportunity to talk further with the noble Baroness, Lady Butler-Sloss, and other noble Lords who would be interested. The existing requirements are that there are two years’ fee-paid experience before being able to apply for a salaried post. Members of ILEX will not be eligible for direct appointment to the High Court. Eligibility would be limited to the district Bench and to certain tribunals that are set out in the policy statement we produced. From there, once they had acquired the relevant qualifying experience, they would be eligible to apply for appointment to a circuit Bench, subject to the rigorous assessment processes of the JAC. Trademark attorneys and patent agents would be eligible to apply for appointments to a limited number of circuit judge and High Court judge posts, but only in the specialist patent court jurisdiction. In both cases they would have to demonstrate relevant fee-paid experience at the appropriate level, and would again be subject to assessment on the merit principle laid out by the Judicial Appointments Commission. I hope that the progress people can make is more clearly defined, and that this will give comfort to the noble Baroness. It is an important point that people can progress and gain experience. I completely take on board the point that has been made about ensuring that they are able to acquire additional qualifications or training, if required. I will make sure that is fed back into the system. I hope that gives an assurance that we are all heading in the same direction, with the right and proper safeguards. Clause 47 agreed to. Schedule 10 [Amendments relating to judicial appointments]:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 67:
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- Lord Thomas of GresfordLiberal Democrat
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- moved Amendment No. 68:
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- Baroness Ashton of UphollandLabour
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- The powers relate to re-entry, not entry. That may make no difference to what the noble Lord is saying, but he is talking about entry when it is re-entry.
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- Lord Thomas of GresfordLiberal Democrat
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- That was a very nice point. It almost balanced on a pinhead, if I may say so. The basic principle that we are discussing is forcible entry into domestic premises. However that is expressed—no doubt the noble Baroness can tell me in due course if I am wrong and explain precisely why—it certainly looks as though forcible entry is a power granted under the schedule. What are missing are safeguards. Safeguards are left to regulation. The law that protects domestic premises from forcible entry by bailiffs is an extremely ancient and settled law—as expressed by the noble Lord, Lord Beaumont of Whitley, in his Second Reading speech, if I recall—that an Englishman's home is his castle. For the benefit of the record, that is the same in Wales as England. Indeed, I think that we have more castles per head of population than the English. The Bill attacks a principle that is almost a constitutional right. If there is a chance of excessive use or misuse of a power of forcible entry, the safeguards should be in the Bill. Such a power can, in certain circumstances, be quite disproportionate. For example, collecting congestion charges does not really require a power of forcible entry into domestic premises. I referred to that in my Second Reading speech in a case that I know well. The amendment is intended to define the nature of the regulations to be proposed and, in particular, to require the Courts Service to prepare an information sheet to be sent out when a judgment debt is created, to inform the judgment debtor precisely of the rights and remedies available to them with regard to enforcement powers. Amendment No. 70 sets out the nature of the information to be included in those regulations. As for the power to use reasonable force, we argue that that should be allowed only under a court order. In Amendment No. 88, we set out the matters that the court should take into account in deciding whether to issue a warrant for forcible entry. To involve the court is, in our view, the right way to go about it. That is fundamental. Finally, Amendments Nos. 76, 78 and 80 deal with what is now to be called a controlled goods agreement, but which is better known as a walking possession agreement. That gives the idea of the bailiff walking in and walking out with everything that you own, but a walking possession agreement is an agreement whereby the goods remain in the premises and the bailiff indicates to the householder that they will be removed unless they reach some sort of agreement. Currently, a walking possession agreement can be signed by any responsible person on the premises, but both paragraphs 13(1)(d) and 13(4) in Schedule 12 suggest that a controlled goods agreement must be signed by the debtor. What happens if the debtor is not at home? What if the debtor is out working to try to raise the money to pay the judgment debt?
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Lord Beaumont of WhitleyGreen Party- Quote
- There are a number of amendments in this group in my name. I have put down amendments at the urging of Zacchaeus 2000 and in consonance with the policy of the Green Party to protect the poor as much as possible. The helpful document produced yesterday by the DCA provides some useful information on Amendment No. 69. I am extremely grateful to the noble Lord, Lord Thomas, my quondam friend, for the way in which he introduced the grouping, which I wholeheartedly support. There are some specialities in Amendment No. 69, and there are one or two other amendments in my name to which I shall speak to separately later. We were relieved to read in the DCA’s helpful document that the pet cat or budgie will not be seized. I should be grateful for confirmation that the proposed regulations covering exempt goods, pets and cash to be left in domestic premises will also cover bailiffs enforcing fines on behalf of magistrates’ courts and council tax on behalf of local authorities. I would also like assurance that a computer, which these days is an essential tool in a child’s education, apart from being of necessary assistance to the rest of us, will be on the exempt list for families. Many families on low pay would not be able to afford another, and many families receiving unemployment benefits cannot afford one at all. May I also be assured that a telephone also means a mobile phone? BT has cut off more than 1 million landlines, and many impoverished families rely on a pay-as-you-go mobile for emergency and other calls. They can be bought for £19 and charged with a pre-payment of £5 when money has not already run out by the end of the week. In addition to the proposed regulation ensuring that the value of goods seized is not disproportionately large in relation to the debt, fine or council tax debt, I ask that in homes where the value of goods is very small or non-existent, the goods seized should not be disproportionately small in relation to the debt, fine or council tax debt. I have been told of a case in which goods of little value belonging to a lone parent receiving unemployment benefit, with a child aged four, were seized and sold at auction for £70. Thirty pounds was given to the auctioneer; the total of the fines outstanding, which were for motoring offences, came to £1,072. It is surely totally disproportionate that goods of very little value should be seized for a debt that size. When the parent went back to court, the magistrates settled for £5 a week deducted from benefit to pay off the balance. That could have been done without the trauma of bailiffs entering the premises by threat of force and seizing goods of ineffective value if the enforcement agent had told the vulnerable defaulter to go back to court or the police had taken her back to court on a warrant of arrest. As I said, I will speak to one or two of the other amendments in my name when they come up. I hope the Minister will respond to the points I have just raised.
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- Lord LucasConservative
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- I sympathise with the noble Lord, Lord Beaumont of Whitley. This is a disreputable grouping. It contains far too many subjects, it is far too complicated and it is not the proper way in which to group subjects.
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- Baroness Ashton of UphollandLabour
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- I cannot hear the noble Lord—I do not quite know why. I heard him say “disreputable”, but I do not know whether he was talking about me or the Bill.
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- Lord LucasConservative
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- Am I supposed to press a switch?
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- Baroness Ashton of UphollandLabour
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- Could the noble Lord say again what is disreputable?
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- Lord LucasConservative
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- Perhaps it will help if I stand back, although these microphones are made to be spoken into when sitting down. This is a disreputable grouping. It covers too many subjects and forces us to have an extremely complicated debate which will prove difficult to follow. I have responded to this by degrouping a lot of my amendments; the noble Lord, Lord Beaumont, has responded by not speaking to most of his. Quite where we will end up in this state of chaos, I do not know, but I think it was a bad decision to try this on a group of this size and to insist on it. I rather wish that it had not been done.
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- Baroness Ashton of UphollandLabour
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- Nobody has insisted on anything. We have tried to put things together in the right order. The noble Lord is at liberty to degroup all his amendments if he wishes and take them one by one.
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- Lord LucasConservative
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- Yes, that was done yesterday, but the rest of the group is still there. We had a long speech from the noble Lord, Lord Thomas, which covered many subjects. The point of grouping amendments is to separate subjects, and that should have been done in this case. The noble Lord, Lord Beaumont, responded by not speaking to half his amendments, and quite where they will be addressed I do not know. I will find this extremely confusing to deal with. Nevertheless, I shall do my best and listen carefully to what the Minister says. I shall move my amendments only if I feel there are things left to discuss on them. She is at liberty to discuss any ideas I have put forward in my amendments in her reply to this group in the hope that it will render my moving them unnecessary. The group as it is starts with an amendment covering what goods should not be taken. I see that the noble Baroness is finding it difficult to hear me. This is my first time in this Room since it has been refitted and I do not know how to position myself so that she can hear me.
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- Baroness Ashton of UphollandLabour
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- It is partly to do with the noise level around me. I, too, have not been in this Room before and I have found it difficult to hear both today and yesterday.
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- Lord LucasConservative
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- Perhaps we should have a system whereby we speak sitting down.
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- Baroness Ashton of UphollandLabour
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- If the noble Lord would like to do that, there is no reason why he should not. I have a problem with hearing, so it is particularly difficult for me.
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- Lord LucasConservative
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- I will try that. Is that better? Yes? Excellent. We start with the question of what goods should be left with a debtor. I know it is not within the scope of this Bill, but generally we should try and have the same rules across all similar practices. At the moment—
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The Deputy Chairman of Committees (Viscount Allenby of Megiddo)Crossbench- Quote
- It might be easier to follow the noble Lord if he tells us which amendment he is addressing.
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- Lord LucasConservative
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- If the amendments had been grouped better, I might find it easier. I seem to be speaking to Amendments Nos. 68, 69 and 73, which cover a particular subject. Different rules apply under different jurisdictions. If you are being pursued for a VAT debt, people can take the bath; if you are being chased under the rules of bankruptcy, the rules are different. It is pointless to so impoverish someone that they cannot then earn a living and continue an ordinary family existence. By giving the creditor his money, you create more problems for society than you solve. It seems to me that having started down this path—which is entirely laudable—we ought to try to reach the position, over time, where we have a common understanding of what can and cannot be done under all kinds of similar circumstances.
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- Baroness Ashton of UphollandLabour
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- I thank noble Lords. I apologise to the noble Lord, Lord Lucas. We tried, when setting up the groupings, to ensure that everyone was comfortable with them and that they were grouped around particular themes. I will try to go through all the points that have been made as best I can. I know that noble Lords will jump in and tell me if I have missed anything on the way. Noble Lords began by talking about the exemption of certain goods. I should say by way of introduction that I agree with what the noble Lord, Lord Kingsland, said about the balance that we are trying to strike here. I think noble Lords will recognise that we have considered issues of debt more generally and have tried to set out new approaches in the Bill to support people with debts who need either time to pay or a better method of paying. I hope that when one looks at the Bill in the round as well as at this part of it, one will see that we have tried to address those issues in other ways as well. As noble Lords have already indicated, I have set out in the policy statement a list of goods that will be considered exempt, but I thought it would probably do no harm simply to repeat them very briefly so that they are in Hansard too for noble Lords who are not present today and who may not have a copy of this document. It is intended that the list will include tools, books, vehicles and other items of equipment necessary for the debtor to use personally in their employment, business or vocation, and such clothing, bedding, furniture, household equipment and provisions necessary to satisfy basic domestic needs for the person and their family. It will also include domestic pets and sufficient cash to support basic domestic needs. These specific items will be included: cooker, fridge, washing machine, dining table and chairs to seat each member of the household, bed and bedding for every member of the household, a telephone—including a mobile phone—and any medical equipment. A computer would be considered exactly for the reasons that noble Lords have given—use for employment, business or a vocation. I interpret “vocation” to include the use by children for their schoolwork. Fixtures and fittings attached to external power and water supplies to provide lighting, washing and heating facilities—baths, gas fires and electric light sockets—would be exempt from seizure. I am resisting the temptation to put the list into the Bill because times change and the list would need to be updated. A mobile phone is a very good example of an item that we would not have considered even a few years ago but which, as the noble Lord, Lord Beaumont, quite rightly says, has taken the place in many households of a phone connected by old-fashioned wiring. It should therefore be included for the reasons that have been given. The items I have indicated will be dealt with in the way I have said. The list, which will not be exhaustive, will change according to circumstances. I hope that when Members of the Committee have had a chance to reflect on the list and the context in which I have set it out in the document, they will feel reassured. I should like to go through all the amendments and then come back to any outstanding points so that I have covered them properly for the benefit of those who read our debates. Amendments Nos. 70 and 72 cover the availability of information sheets and other guidance notes. We will have to ensure that we have made these available to court users in a variety of formats regarding all the new enforcement laws contained in Schedule 12 and its underpinning provisions, and we will. Information will also be given to debtors under paragraphs 7 and 28 of Schedule 12. However, I cannot commit to producing huge amounts of paper with every notice of enforcement. We think that we have captured the essence of what was being asked for in having information available at the court and, under paragraph 28(1), requiring an enforcement agent to provide a notice to the debtor. The policy statement in paragraph 156 shows that the legislative provision authorising the action and the avenues of appeal or complaint will be set out in notice in accordance with regulations. Information is available at the courts and on the operation of bailiffs. I hope that that will capture most if not all of what noble Lords wish to see. I hope my assurances will be accepted that information will be made available in a number of formats by Her Majesty’s Courts Service for all parties to access at any time. On Amendment No. 71, the noble Lord, Lord Kingsland, asked about the minimum period of notice. He was concerned that it would be raised far higher than the one day he is seeking to achieve. We think that a minimum notice period of one day would be too short; it would not give the debtor the one last chance to pay or to come to an arrangement with the creditor before taking control of the goods becomes necessary. In that respect, we believe it is a necessary protection for vulnerable debtors who would be able to use that window of opportunity to get financial help or seek legal advice if they genuinely could not pay. It is our intention to lay down the minimum regulations under paragraph 7(2)(a) of Schedule 12. Again, the detailed policy statement in paragraph 134 says that we intend the minimum notice to be seven calendar days other than for commercial rent arrears recovery purposes, when it will be 14 calendar days. This is an out-of-court remedy and the notice will be the first indication that action would be taken, so we think that 14 days is appropriate in those circumstances rather than seven. Where there is evidence, which I think is the nub of the noble Lord’s point, that the creditor would remove the goods or abscond before recovery action can take place, paragraph 7(4) of Schedule 12 gives scope for the creditor to apply to the court for the notice period to be reduced. In addition, where a debtor removes goods to another location in the period between notice and recovery action in a bid to avoid successful recovery action, paragraph 15(1) of Schedule 12 gives scope for the granting of a warrant permitting entry to other specified premises for the purposes of taking control of goods that have been moved there. I think the Bill has the balance that Members of the Committee were seeking between giving a suitable notice period in which to enable people, particularly vulnerable debtors, to have the opportunity to deal with the situation, and allowing creditors to take swift and appropriate action where circumstances dictate that to be necessary, including being able to apply to the court.
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- Lord Thomas of GresfordLiberal Democrat
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- I am grateful to the noble Baroness for her lengthy explanation. I assure the noble Lord, Lord Lucas, that I had nothing to do with putting all these matters together, nor did I consent to it. However, that is neither here nor there. With regard to the notice that we have suggested in Amendments Nos. 70 and 72, we do not suggest that it is enough for the bailiff to produce a notice saying to the debtor, “This is how much you owe. This is how you can discharge it”, and so on. The amendment proposes that the debtor should be told not simply how much he owes and how he can pay but what his rights and remedies are and what are the powers of the bailiff who calls at the house. That goes rather further than the existing paragraphs in the schedule to which the Minister drew our attention. I would be grateful if she could take some time to think about that because it is an important matter. The debtor is in a vulnerable position when the bailiff calls and should know the limits of the powers to be granted to the bailiff under the schedule. I shall return to the matter but I hope the Minister can assure me that she will think about it. As to the application for power to use reasonable force, again the noble Baroness is a little off beam. The paragraphs with which we are concerned and which we seek to delete are headed: “General powers to use reasonable force”. Reasonable force can be used without further application if paragraph 14, “Entry without warrant”, or paragraph 16, “Re-entry”—I think I am now on the same wavelength as the noble Baroness on this topic—apply. The purpose of the amendment is to make it necessary to go to the court to obtain authorisation for the use of reasonable force. That is not simply for a power of entry without the use of force but for authorisation where, in the view of the bailiff, reasonable force is required. Where it is proposed that you should break into someone’s house, we suggest that the court should be seized of the matter and should take into account the various elements set out in sub-paragraphs (5) and (6), in particular, of our amendment. This is not a question of obtaining a warrant to enter premises but to enter premises with reasonable force. That is the point. In the Bill as drafted it looks as though a bailiff, if he gets a warrant, for example, from a court for execution, can use reasonable force at his discretion. If I am right, I do not think that that is acceptable. Accordingly, I will return to the issue in due course. I agree with the noble Lord, Lord Lucas, that we have lumped together a number of issues. Perhaps we can separate them out on Report, by which time further thought can be given to the matters to which I have referred. I am grateful to the Minister, however, for producing the document on the regulatory policy. It is very useful, particularly in regard to my first amendment. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Beaumont of WhitleyGreen Party
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- had given notice of his intention to move Amendment No. 69:
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- Lord LucasConservative
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- moved Amendment No. 74:
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- Baroness Ashton of UphollandLabour
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- I am grateful to have the chance to talk about this. When I looked at the question originally when the noble Lord raised it—I am so sorry, the noble Lord has not yet moved the amendment. I was leaping in and I will be told off.
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The Deputy Chairman of Committees (Lord Tordoff)Liberal Democrat- Quote
- It is my fault, having only just arrived.
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- Lord LucasConservative
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- I beg to move.
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- Baroness Ashton of UphollandLabour
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- My legal advice originally was that the way in which the Bill was drafted meant that it covered other people being able to sign if the bailiff arrived and there was another adult present. Since the noble Lord has raised the question, I have looked at it again because it does not look as if the Bill does that. I want to look at how to deal with that in regulations. There are two issues for which I do not yet have an answer. First, there is the bailiff’s relationship to the person he finds on the premises and the criteria that need to be considered. A critical factor is that it has to be an adult, not a minor, which raises other issues such as withdrawing from the premises. Secondly, the debtor would have to give the other person permission to sign. What would the logistics of that be? I will take that point away to consider properly and write to Members of the Committee who have participated in the debate. It is an interesting area. In principle, I do not wish people to lose things when there is someone else on the premises who can sign where that is appropriate. I have to safeguard the debtor from someone signing on their behalf in an inappropriate way. We need to think through what has to be done to address that. I hope that that will give the noble Lord comfort.
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- Lord LucasConservative
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- I apologise to our new Deputy Chairman. I am sitting down because the microphone does not pick up my voice if I stand. I am entirely content with the noble Baroness’s answer; I look forward to Report and beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 75 to 83 not moved.]
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- Lord LucasConservative
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- moved Amendment No. 84:
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Lord. The question of bailiffs’ forced entry without a warrant applies to paragraphs 18 and 19 of Schedule 12 only with regard to criminal fines. That is already in the Magistrates’ Court Act, to which I have referred a few times now. The wording regarding re-entry replicates the common law for the county court and the High Court on tax debts. There is nothing else in the legislation. It is important that we are clear about that. I’m sorry, but I cannot resist this. We keep hearing that “an Englishman’s home is his castle”, so we dug out what the judgment in Semayne’s case of 1604 actually said. I just had to put this in Hansard—that, “the house of anyone is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house or the goods of any other which are brought and conveyed into his house to prevent a lawful execution”. I said in paragraph 146 of the detailed policy statement that we will bring forward regulations under paragraph 14(3) of Schedule 12 to restrict entry to normal methods, through doors, French windows or whatever. The noble Lord will know that, because of the way in which the law has grown up, there are many odd things about how people can enter if a window has been left open by someone. All that will disappear, and we will move to normal methods of entry. We intend to put the detail of acceptable methods of entry into regulations. Again, I am using regulations because I want to keep that flexibility. If we find that something is not working properly, we can deal with it. If we find that changes need to be made, we can make them. Furthermore, the concept of normal methods and places of entry used by visitors to premises is very difficult to define, as the noble Lord will accept. I understand what he is seeking to do. I do not want to remove the powers of re-entry because we want to enable people to go back to inspect or remove goods when they have taken control. That is why the powers must remain. Again, I am trying to achieve a balance between what is appropriate for creditors and what is appropriate for debtors. Amendment No. 87, as the noble Lord rightly points out, envisages permitting forced re-entry to premises where the debtor carries on a trade or business. The noble Lord made a point about the computer and the desk in the corner. I will think about tabling an amendment on Report to prevent any such re-entry to any premises that are wholly or partly residential. I think that that will address the noble Lord’s particular concern. We have appropriate safeguards especially to ensure that the level of force is reasonable, except in the cases that I have identified in relation to convictions. Under the Magistrates’ Courts Act, that power applies only with prior judicial authority. That is a fundamental part of it. I hope that, given the alterations that I propose, the noble Lord will feel reassured, at least in part, and will be able to withdraw his amendment.
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- Lord LucasConservative
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- I am very grateful for that answer. I will rely on the noble Lord, Lord Thomas, to put his keen legal mind to the question of whether he is happy about the incursions on the Welshman in his castle.
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- Lord Thomas of GresfordLiberal Democrat
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- I have just realised why there are so many ruined castles.
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- Lord LucasConservative
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- That includes that of my ancestors, I am glad to say. That reinforces the point behind one of the other amendments tabled by the noble Lord, Lord Thomas; namely, that the bailiff must present something when he appears that gives the debtor a very clear understanding of what will happen and the circumstances in which his premises may be broken into forcibly so that the bailiff may re-inspect his goods or whatever. That is the sort of thing that must be made clear to a debtor so that he knows exactly where he stands and what he is in for. I would be grateful for some correspondence from the Minister on the technical aspects of Amendment No. 87 and the reflections later in the Bill, to which I have not tabled amendments but which I talked about. It is not a matter that will run well in the format of Report, so I should be most grateful if we can have sorted that out between us before then. Otherwise, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 85 to 91 not moved.]
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 92:
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- Lord LucasConservative
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- With regard to the Minister’s first remark, when my ancestors had a castle in Wales they ran their own courts. Their justice was so acclaimed by the Welsh that when my ancestor was eventually removed by Owain Glyndwr, there was general rejoicing for several weeks. There is still a plaque in the church commemorating the departure of my ancestors. We have a better system at the moment. Will the Minister sketch in a bit the sort of circumstances in which she sees force against the person being reasonable? I can imagine when that force is reasonable and what kind of force that would be, but I would be grateful to know her thinking. How does she currently envisage these powers being used?
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- Baroness Ashton of UphollandLabour
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- I would rather set that out for the noble Lord in writing. As we have prepared for this legislation, I have had many discussions about how bailiffs are currently operating. I have indicated to the noble Lord that consistency of approach is part of reasonableness overall, although I know that that does not specifically cover the point about entry. Reasonableness is very important. We are generally considering where people are behaving unreasonably, and where that the time has arrived to do something to redress the balance in favour of the creditor. In the context of doing that, we have been as mindful as possible, not least through the other provisions of the Bill, of the vulnerability of the debtor in many circumstances. The courts must also play their full and proper role in this. We want to design the Bill so that we are very clear what is and is not permissible in terms of entry—not least, as the noble Lord understands, to take account of the way the law has grown up over the years and the different ways in which people have been allowed to enter. We want that clarified as far as possible. This also takes us back to the earlier discussion about information to those against whom these powers would be used. I take the point about making sure we get as much information to them as possible. I am only resisting my department having to find the money to get lots of pieces of paper out, but I am not resisting the principle that those against whom these powers will be used need to have information. We just need to think of a way of ensuring that. I will set out more as we develop that, and in any event we will be bringing this back via affirmative regulations. On Question, amendment agreed to. [Amendments Nos. 93 and 94 not moved.]
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 95:
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- Lord LucasConservative
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- moved Amendment No. 97:
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- Baroness Ashton of UphollandLabour
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- I begin by saying that the wording applies only to county court bailiffs; that is, those employed in the public sector. My understanding is that it is an important aspect of dealing properly with anyone who is behaving inappropriately and therefore liable for damages. I do not see it as trying to address the issue the noble Lord mentioned of the wrong kind of incentive to sort out the debt and get the goods. I saw it the other way up: it would ensure that if they did something inappropriate, the aggrieved person would have a right to complain to the court and then get damages because the court could say, “This was a very wrong thing to do”. That should include neglect, connivance or omission in something that the bailiff did. I need to take this away and look at it again, but on the basis on which I have considered this issue—I am not getting any help here, so I hope I am right—the question is actually the other way around from the way in which the noble Lord is seeking to deal with it. The note I have just been handed is the same as what I already have. I will come back to the noble Lord.
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- Lord LucasConservative
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- I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Schedule 13 agreed to. Clause 55 [Enforcement agents]:
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- Lord Thomas of GresfordLiberal Democrat
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- moved Amendment No. 98:
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- Lord LucasConservative
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- As is well known from my speech at Second Reading, I am very much in favour of a proper system of licensing for bailiffs. In the various amendments in this group, I have also tried to consider what is necessary if we do not go down that road. Amendments Nos. 99 to 102 try and bring home to the Government the great importance of a person who appears to be a bailiff being subject to a common set of rules and regulations, a common set of expectations of how they will behave and a common set of rights for the debtor. This is supposed to be a unitary piece of bailiff law, and it ought to produce a common experience for both the bailiff and the debtor. If we are to have exemptions, I would much rather they ran along the lines of my Amendment No. 107. It is something done in regulations in sympathy with the detail of regulations elsewhere, so that they are merely dealing with technical problems associated with the different employment and technical nature of different classes of bailiffs. We are running anyway into considerable problems as a result of abandoning the terminology of “bailiff”. Everyone understands what a bailiff is. By calling them “enforcement agents”, we run into the difficulty that there are many other kinds of enforcement agent in regulations and in practice. There are enforcement agents who pick you up if you litter, and who deal with health and safety matters. We are adopting a common terminology that has no common practice. I suspect it is too late in this Bill, but I hope that when we get to the system of regulation we can allow these people to be called “bailiffs”. It distinguishes them as a category of person, and in terms of the way the public need to react to them. There has been on my part—and, it seems, on the part of the Government—considerable confusion over who is exempted under the Bill. I merely note that the principal bad behaviour in the BBC “Whistleblower” programme was from people who would now be exempt under the Bill, as a result of the way Clause 56 has been drafted. I am happy to enter into correspondence with the Minister on that, if it is a distinction she wishes to continue to draw, but the arrangement at the moment seems very problematic. Amendment No. 104 runs along the same lines as Amendment No. 109, tabled by the noble Lord, Lord Thomas. I want to pick up the various things that, if we go for a licensing body, it is important for that body to be able do. It should be the source of rules. There should be rules it is able to make and enforce; something the bailiff community can be held to. It should be able to conduct investigations. When a complaint, or a series of them, gets to the point that the authority needs to know what is going on, it should be able to look. It should have teeth—it should be able to react against bailiffs or look after members of the public in ways that make a difference. My feeling is that as soon as the authority is in place, bailiffs will behave. They are not daft. Most of the big firms are owned by reputable organisations—Equita is owned by Capita. It is not as if these firms are run by criminals or by people of dubious reputation. As soon as a set of rules is in place, it will by and large be complied with, and there will be far fewer problems. If we do not have a licensing authority, the matters listed in Amendment No. 106 are what we will have to require of certificate holders. They should be properly trained; they will have to follow rules, provide information to debtors, and they should be insured. If a bailiff, particularly one who is acting as an individual, does something wrong, there should be a practical redress for the debtor—he should not have to send in a bailiff to pursue a bailiff to get his money back. That should run alongside a compensation scheme if bailiffs misbehave. Whichever way we do this, there will be far fewer problems than at the moment.
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- Baroness Ashton of UphollandLabour
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- This takes us into the area of certification and regulation, and I am grateful to have the opportunity to discuss this in Committee. We have referred to “enforcement agents” because we are trying to develop a new approach to debt and the collection of debt and to bring under one set of rules, guidelines and regulations those affected, not least to protect the vulnerable by making it clear what people can and cannot do. We use “enforcement agents” to cover bailiffs, tax collectors, civilian enforcement agents and so on. A lot of the people involved are not technically called bailiffs any more, and never were. It is as good a name as any—people felt it was an appropriate name for the work they do. Three or four key issues have been raised under the amendments. If we are to have a certification process, as proposed in Amendment No. 98 and others, why are Crown servants not included within that? County court bailiffs and civilian enforcement officers are subject to Civil Service recruitment procedures; the Civil Service Code governs their behaviour. There are strict controls over their conduct and discipline under Civil Service disciplinary procedures, and complaints against them can be made to the court manager. They are also subject to continued training and development provided by the department and subject to compulsory criminal records checks. For those people, there is already a huge amount going on. I will leave for a moment the subject of moving away from certification to regulation. We feel we have a very good process in place for those people. I do not want to spend £22 million—which it would cost to develop a certification process—that I do not have available and on which I have many demands, because we think that those people are already covered. Yesterday I met representatives from the Enforcement Services Association and the Association of Civil Enforcement Agents. They were incredibly generous with their time and we had a good discussion. They met the noble Lord as well and found that meeting extremely valuable, and I think he agrees that there is a very good debate to be had with them. I am keen that we think about the industry in an overarching way while recognising that there are different people working in different places. I do not have a problem with the principle of one industry and one approach. The problem at the moment is that we have one system which is well covered and another area where there are real issues, particularly in terms of complaints, that we need to address. The industry is mindful of these concerns and is keen to address them. Leaving aside regulation for a minute, I hope noble Lords will accept that as the reason why I have not moved to try to get certification in both areas. I make no apology for the fact that I cannot spend the money in that way. Turning to Amendment No. 103, I do not want to make failure to comply with regulations a criminal offence. As I understand it, applications are made to the county court on standard court forms and the content of those forms is sworn on oath. Therefore the examination of applicants is carried out, under oath, by a judge. We think that a contravention of that procedure amounts to contempt of court, which is probably the right sanction for dealing with contravention rather than making it a criminal offence. I shall be happy to discuss that in more detail if noble Lords wish.
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- Lord Thomas of GresfordLiberal Democrat
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- Does the Minister know of any instance where contempt of court proceedings have been brought?
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- Baroness Ashton of UphollandLabour
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- I do not—but that does not mean there have not been any. I shall find out and let the noble Lord know. I am sure that it will influence which way he decides to move on this question. Moving on from certification and my explanation of why we have done it in this way—noble Lords may want to think about the position of court employees and the private industry—Amendment No. 104 relates to the bigger question, which noble Lords were right to raise, of what was said originally about moving to regulation. Although I am not yet in a position to say too much about it, I am very mindful of the commitments the Government have made and of our desire to look at the matter appropriately. We need to consider the position of the vulnerable people who have been widely described in the debate, but also make sure that we support the industry appropriately. As I said, I have had very good meetings with the industry and I have made it clear that I want to talk to its representatives. I will talk, of course, to noble Lords in particular about the most appropriate vehicle whereby we might take this matter forward. They have been extremely helpful, not least in saying that they see this as a self-financing exercise, which is always a good position for government. But I need to think very carefully. I have already had a meeting with my colleague Vernon Coaker, the Minister at the Home Office, to consider how we might take this matter forward. I am very mindful of the issues. We need to think about it and consult more widely and, if noble Lords will allow me, between now and Report that is precisely what I will do. I shall talk to noble Lords before I bring anything forward at that stage. Amendment No. 105 seeks to change “may” to “shall”. The trouble is, we need to change it from “may” to “must” in this legislation because every “may” becomes a “must”. Although I accept the amendment in principle, it needs to be “must” and not “shall”. I am sure we can find a way of doing that between us. Of course we will produce the regulations. I am perfectly happy to say “must” but I cannot say “shall”, apparently, on this issue. On Amendment No. 106, I do not think we need extra requirements in the certification process. We have set out a great deal of what we are going to do in paragraph 185 of the policy statement on page 30. As to some of the specific requirements, the provision of information to debtors is already contained in paragraphs 7 and 28 of Schedule 12. We have discussed information being provided for the reasons that noble Lords have raised. I do not think prescribing insurance requirements is practical for individual agents because bailiff companies employ many different agents. That is the difficulty I have with that proposal. In any case, they have to provide bonds as part of the certification process which can be used to pay compensation to debtors who successfully complain about their actions. Again, paragraph 185 of the policy statement will give noble Lords a little more detail. Amendment No. 107 in the name of the noble Lord, Lord Lucas, is tied to Amendments Nos. 99 to 102. In a sense, it seeks to provide exemptions to the earlier amendments exempting certain kinds of agents. I am trying to think through how we may deal with this in a more consistent way. Amendment No. 108 relates to the provision of a code of practice. We need to talk to the industry about that. Such codes are very important when seeking to develop our relationship with industry and in thinking through certification and regulation. They are part of that debate, so I would want to have the discussion in that context.
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- Lord LucasConservative
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- There are a lot of technical bits and pieces to do with who comes under which bit of this Bill, in what way and how the thing works in practice. I would prefer to deal with that by letter, or rather by e-mail if the noble Baroness is happy to correspond on it. On the major question of where we are going on regulation, I am delighted by what the noble Baroness says. I know that in government these things are never easy. I hope that she has a very good Christmas where that is concerned. I shall be looking forward to my rather late present some time in January. It is a provision which I very much hope the Chamber will wish to hold the Government to. We want to have a properly regulated system that works well. That view is very widely supported—by the most vocal critics of bailiffs, the bailiffs and everybody in between. I know that there are always complications in making these things happen, but there is an enormous amount of good will and desire on all sides that it should happen. I very much hope that the Bill will leave this House either with an amendment to make clear its support for that or with an expression of the Government’s clear intention that that is the direction they are going in.
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- Lord Thomas of GresfordLiberal Democrat
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- Certification by the court where the sanction is contempt of court proceedings is a very unsatisfactory way to proceed, yet that really is what the Government are setting out in this Bill. A great deal of thought must be put into that. I am very tempted by Amendment No. 104 in the name of the noble Lord, Lord Lucas, which I think sets out the issue very clearly as to whether there should be an independent regulatory authority or whether the Government’s halfway house—it is not really a halfway house; it has only just set off on the road from the existing system—will be satisfactory. I hear what the noble Baroness says. I hope that over Christmas she will think very carefully about enforcement agents and how they should be regulated and will come back in the new year with some news for us. For the moment, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 99 to 104 not moved.] Clause 55 agreed to. Clause 56 [Certificates to act as an enforcement agent]: [Amendments Nos. 105 to 109 not moved.] Clause 56 agreed to. Clause 57 [Common law rules replaced]: [Amendment No. 110 not moved.]
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- Lord LucasConservative
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- moved Amendment No. 111:
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- Baroness Ashton of UphollandLabour
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- The noble Lord is entirely right: they have been abolished. I will follow up with a letter and explain it in detail.
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- Lord LucasConservative
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- I am sorry.
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- Baroness Ashton of UphollandLabour
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- The noble Lord is entirely right in his assumption that they have been got rid of. I will follow up with a letter and spell it out in detail. Amendment, by leave, withdrawn. Clause 57 agreed to. Clauses 58 to 67 agreed to. Clause 68 [Rent]:
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Lord for raising this issue. He will be aware that the provision is based on the observation of the Law Commission’s report Distress for Rent in 1991, which was itself based on existing case law in this area. It said that rent should only comprise sums that are directly attributable to the tenant’s enjoyment of the land belonging to the landlord. Items such as service charges, repair costs, insurance premiums and so on may well be directly attributable to something other than enjoyment of the use of the land and for that reason do not fall within the definition of rent for CRAR purposes. The fact that in the past some landlords have passed off these charges as rent—and, indeed, distrained for them as though they were rent—does not mean that the practice should be carried forward to the new regime. In its report, the Law Commission questioned whether such action was ever correct. The issue of certainty is very important here, given that CRAR is a non-court-based remedy. The rent will of course be certain, whereas the service charge may not be; it may be variable and therefore not covered within this. It should go without saying that any method of calculating the minimum amount payable will take into account the sometimes conflicting needs of both landlords and tenants. Landlords need to know that they will be able to enforce their debts swiftly, but tenants need protection from unduly vigorous pursuit of relatively small debts. So our initial proposal for CRAR purposes is that the trigger sum should be either one week’s rent or £200, whichever is the smaller, or four weeks’ arrears if the rent is less than £50 per week. As to the two stages, the minimum rent needs to be outstanding at issue of notice and when recovery action is actually taken to stop the pursuit of unduly small arrears. CRAR cannot be used if you cannot identify the split for the split rent and use for possession. I hope that gives the noble Lord an explanation of the policy behind this part of the Bill and that he can withdraw his amendment.
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 118 and 119:
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Lord. I was having a little difficulty working out where the measure fitted in. I felt it applied to attachment of earnings orders. The noble Lord will not be surprised to hear that I do not want to include in the Bill the list that he has identified. He knows that, through orders to obtain information, we can get relevant information in the areas he has suggested. I am not sure that the amendment adds much to what we might do but I may have misunderstood the noble Lord’s purpose.
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Lord. I have always understood that those issues are dealt with within the courts system itself. However, I should like to take the matter away and think about it. I can see exactly what the noble Lord seeks to do but I cannot quite see how to make it fit in the Bill. If the noble Lord will permit me, I should be grateful to take the matter away.
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Lord Clinton-DavisLabour- Quote
- Would the noble Lord be kind enough to describe the conflict? I cannot see any at all, but if he would adumbrate that point I would be much obliged.
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- Lord Thomas of GresfordLiberal Democrat
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- I wonder if I may assist because I have a briefing on this which the noble Lord, Lord Kingsland, may not have. The issue which arises is the possibility that this Bill permits an unsecured creditor to obtain a security for his debt. When an unsecured creditor lends money or provides goods, he incorporates in the price the concept that they are unsecured. If a secured debt were created, no doubt the cost of it to the debtor would be cheaper. The Bill gives to an unsecured creditor the value of security. Generally speaking, for people who are not very well off it means a charging order on their home. Clause 85 introduces changes to the Charging Orders Act 1979 which provides creditors with a way of enforcing a court judgment by placing a charge on the debtor’s property. As I say, that is often the home. So the creditor who uses this procedure can secure a previously unsecured debt. A creditor who obtains a charging order can obtain a court order to sell off the asset subject to the charge, although such sale orders are comparatively rare. The Bill proposes that even though there is an agreement between the creditor and the debtor for the repayment of the debt by agreed instalments, and even though the debtor is keeping up those instalments, nevertheless the creditor can obtain a charging order and thereby ultimately, if necessary, sell off the debtor’s home.
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- Lord Clinton-DavisLabour
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- I cannot see what advantage would accrue to the creditor under those circumstances.
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- Lord Thomas of GresfordLiberal Democrat
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- The advantage is fairly clear-cut. The instalment order which may be agreed between the parties is being met. Let us assume that the person is pretty impoverished and can afford to pay only £20 a month out of their income. The creditor may say, “That is too slow. You are paying your £20 a month. Although I have agreed to that, I am not satisfied. I am now going to apply to the court for a charging order on your home. That will secure me against the whole value of the debt and it will also be held in terrorem over you to make sure that you pay the instalments”.
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- Lord Clinton-DavisLabour
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- Is that not surrendering practicality to theory? I cannot see that any advantage would accrue to the creditor under those circumstances. If the debtor is paying the instalments which he can afford, that is perfectly okay.
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- Lord Thomas of GresfordLiberal Democrat
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- That is my point. I agree entirely with the noble Lord. We await an explanation from the noble Baroness, Lady Ashton, on why this is the case.
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- Baroness Butler-SlossCrossbench
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- I have had to make charging orders. A charging order nisi comes automatically, but the charging order absolute—which is the point at which you could eventually sell the property—has to be a judicial decision. If the judge or master who hears it finds that the money is being paid, he will not make the order.
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- Lord Thomas of GresfordLiberal Democrat
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- I entirely agree. Therefore, why do the Government want the provision in the Bill?
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- Baroness Ashton of UphollandLabour
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- I am grateful to have the opportunity to resolve this matter. The noble Baroness is absolutely right about the role of the judiciary in this. A judge would determine that an order should be made absolute. Very few, if any, examples occur of a judge deciding that a home will be sold. We have charging orders to enable us to recognise different circumstances. Not all debtors are the poorest of people. Different debtors have different assets. An order for sale will not be permitted under regulations in the Bill if the instalment arrangements are kept up to date. That must be somewhere in the policy statement. If it is not, I shall make sure that it is added. But that is what we propose to do. The charging order secures the judgment, not the debt. We are not seeking to allow people who have unsecured debts and who have made their own charging arrangements to bring in another arrangement through the back door. There is no conflict with the Consumer Credit Act. Under the charging orders the court will have the power to grant a timed order, although it does not have to. The amendment seeks to prevent a charging order that restricts the court’s discretion, which we do not want to do. If the noble Lord is not satisfied with my response, I shall set out the matter in writing. I hope he now feels that his fears on this matter are groundless.
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- Lord Thomas of GresfordLiberal Democrat
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- I do not understand it—that is the problem. The noble Baroness says that it is not a security that is obtained for the debt but for a judgment. Is that what she is saying?
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- Baroness Ashton of UphollandLabour
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- Yes.
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- Lord Thomas of GresfordLiberal Democrat
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- So the way in which it operates is that even if you are paying an instalment order under a judgment, the creditor can still obtain a charging order on your home and hold that over your head. Is that right?
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- Baroness Ashton of UphollandLabour
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- When we were looking at whether we should do that, we were mindful of the various circumstances in which people can find themselves. In some circumstance it might be appropriate to secure the judgment not the debt because of concerns that that would be an important thing to do. It is not a question of holding something over someone’s head but of going to the court and asking if one can do that. I tried to spell it out in my letter to the noble Lord by saying that if a debtor with large judgment debts is meeting regular payments, he can benefit from the sale of assets such as a house or shares without paying off those debts. On the creditor’s side, where someone is paying regularly but has large assets, that fact could be recognised in a charging order. But the decision to use the charging order rests with the judiciary, which provides safety and security. I have already indicated what will be done within regulations. I suggest that I set this out more fully and then the noble Lord will have a chance to see whether I have met all his concerns and whether he feels that the Bill is explanatory enough to deal with these issues. If not, I will of course look at it again.
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- Lord Thomas of GresfordLiberal Democrat
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- This is the amendment of the noble Lord, Lord Kingsland, so he will have to decide what to do with it. However, I think clarification is called for. It would be undesirable if creditors rushed to the court to obtain charging orders on people’s homes even though the debtor was keeping up the payments. If there is a realisation of assets and the person concerned becomes wealthier as a result of his home or shares being sold, it is open at that point for the creditor to go back to court and ask for a different order. It is not necessary to hold over a person the possibility that at some future date he might sell his home or his shares and obtain a charging order for an event that may not happen. If it is a judicial decision, obviously all these issues will be considered by the court.
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- Baroness Ashton of UphollandLabour
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- We are trying to prevent a situation arising where once the asset is sold, it is too late. You cannot get a charging order against something that does not exist. Although there are people for whom this might not be appropriate, there are also people who are paying off debts who have assets, and it might be appropriate to make sure that if they moved to sell those assets the debt would be recognised. That is all we are seeking to do. It is completely reasonable. Debtors come in all shapes and sizes and have a variety of assets. This is a recognition that such action may be appropriate. It is not about trying to hold something over someone’s head, to use the noble Lord’s terminology, but a recognition for the creditor that when someone is paying regularly, there may be circumstances in which it is appropriate to take that action. The judiciary would consider it appropriately. This is not about trying to sell someone’s family home and force them out—quite the opposite. It is a recognition that when they come to sell something, there is a debt to be realised within that.
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- Baroness Ashton of UphollandLabour
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- I hope that I can be helpful. I apologise to the noble Lord, Lord Lucas, who I am preventing from speaking only because I hope I can deal with this amendment quickly. The idea behind it is that the courts would be able to ask Her Majesty’s Revenue and Customs or perhaps other government departments for specific pieces of information. That is covered in Clause 89(3)(a) to (e). We are not asking for financial information from which people could make judgments. The areas that would be covered would be name, address, date of birth, national insurance number, and name and address of employer. That kind of information is to do with where people are; it is not about what they earn. Clause 89(3)(e) is in the Bill because of the machinery of government changes that take place from time to time. What is in one department one day is in a different department another day, and we wanted to make sure that we could deal with that. It is not about what someone earns, but about specific information. The noble Lord looks puzzled; I was rather hoping that that would solve his problem.
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- Lord LucasConservative
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- Before the noble Lord withdraws his amendment, I should like to widen the question. If the information is so narrow, why is the clause drawn so widely? Under Clause 89(3)(e), the process could be widened to any government department. One could ask the court to look at any records that might be available in any government department regarding where the assets might be. Where the debtor in question has buried their crock of gold is likely to be known to the Government one way or another. If the debtor has property, they may well have obtained grants on it. The Government have all sorts of information that might help them obtain a debtor’s assets. As it is drawn, Clause 89 is not capable of expansion to anything beyond the limited purposes the Minister has described. If it is limited in the way she has explained, I do not have a problem with it—but I do not see the limitation in that clause. Nor do I understand the direction of Clause 90: who are these other people, what information will be asked of them and what will happen to them if they do not give it? This is so widely and loosely drawn, at least to my eyes, that I cannot see where it stops. The Minister is very helpful in saying that it will be used only to find their employer, but why should Clauses 89 and 90 not be used much more widely? And what is Clause 90 for at all?
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- Baroness Ashton of UphollandLabour
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- I thought we had drawn Clause 89 quite tightly, because it lists the specific information. It is not our intention to ask for financial information, it is not about assets and it certainly does not allow for fishing expeditions. We are not designating all government departments; one department will be designated. I made the point in my earlier remarks that we recognise that changes in government machinery sometimes affect things. Clause 90 deals with other people from whom we can ask for other information; for example, banks or credit reference agencies. My view is that we have drawn this in precisely the way we wanted, referring to specific information that government departments would have but no one else would. The courts would request that information—no one else.
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- Lord LucasConservative
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- Yes, but would it allow me, for instance, to apply to the court to requisition information from Defra about any agricultural holdings that might be in the possession of the debtor?
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- Baroness Ashton of UphollandLabour
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- Absolutely not. It is for the court that is trying to find out these very specific pieces of information to say that it needs to know someone’s name, address, date of birth, national insurance number and the name and address of their employer because it is trying to find that person. That is all. No one can ask the courts to do anything, and it is certainly not about fishing around in Defra, as it were. It applies to Her Majesty’s Revenue and Customs, and it recognises that from time to time the machinery of Government changes. It is one of the more specific clauses.
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- Lord LucasConservative
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- What places the restrictions on subsection (3)(e) that mean it cannot be expanded?
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- Baroness Ashton of UphollandLabour
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- The point of subsection (3)(e), as I have said, is to enable us to recognise that the machinery of Government changes. I take the point that, on reading it, the noble Lord may feel we are going to widen the provision, but it is clear that we have not. If that wording needs to be looked at again, I shall do so.
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- Lord LucasConservative
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- Turning to Clause 90, I cannot see restrictions on the type of information that can be requested. Credit reference agencies have a great deal of information about a person’s location, assets and financial affairs, as might a bank. I understand what the Minister is saying, but I do not see the limitations on the face of the Bill.
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- Baroness Ashton of UphollandLabour
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- I do not know what limitations I could put in Clause 89, other than specifying in the Bill, “the full name of the debtor… the address of the debtor… the date of birth… the national insurance number”. Those are very clear. Clause 90 is different altogether. It is not part of this amendment. It is for when courts are seeking other information from banks or credit reference agencies, and we will prescribe in regulations exactly what that information will be.
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- Lord LucasConservative
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- In that case, does the Minister have draft regulations that we might see before Report?
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- Baroness Ashton of UphollandLabour
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- I have a policy statement, which has thus far been acceptable, and which details all the things we will do. We do not have draft regulations ready on many aspects of the Bill, because we are working with those whom we have to consult first. I am happy to give the noble Lord more information if he feels there is not enough in the policy statement.
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- Lord LucasConservative
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- I will write to the Minister.
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 126:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 127 to 129:
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Lord Davies of OldhamLabour- Quote
- This may be a convenient moment for the Committee to adjourn sine die. We do not normally speak to such Motions but an explanation is due to the Committee. A Statement will be made in the House by the Attorney-General between quarter past five and quarter to six. Several key Members of this Committee will want to be briefed before that Statement is made and Members may wish to be in the Chamber to hear it as a matter of course. Accordingly, I am obliged to move the adjournment of the Committee.
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- Baroness Ashton of UphollandLabour
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- We can adjourn during pleasure. I interrupt my noble friend only because I know that three or four Members of this Committee have waited all afternoon, and if we break, we will have three groups left to discuss. If Members are willing to come back at the end of the Statement, I am sure we can finish the Bill in a very short time, because the issues are very clear.
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- Lord Davies of OldhamLabour
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- I am guided by my noble friend, who knows a great deal more about the proceedings of the Committee than I could ever hope to know. Perhaps the Committee will be agreeable to that. Again, I have no option but to adjourn the sitting for a short time. We could adjourn during pleasure and resume in an hour or so.
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- Baroness Ashton of UphollandLabour
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- The noble Lord is, as ever, generous. If we adjourn during pleasure, I will undertake, as the Attorney-General’s Statement is winding up, to find appropriate Members of the Committee who are still available. We can take a final decision then. I am conscious of the fact that a particular issue is very important to certain noble Lords who have waited, and I have many important things to say to them today. I will completely understand if the noble Lord, Lord Kingsland, cannot be present, and we will move on sine die. [The Sitting was suspended for a Statement in the House from 5.02 to 5.47 pm.] Clause 128 [Interpretation]:
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- Lord Thomas of GresfordLiberal Democrat
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- moved Amendment No. 130:
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- Baroness Ashton of UphollandLabour
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- I must say that I am ashamed.
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- Lord Thomas of GresfordLiberal Democrat
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- Clause 128(3) states: “‘Museum or gallery’ means an institution in the United Kingdom approved for the purpose of this section by the Secretary of State”. It should not refer to the section; it should refer to Part 6. That is why I tabled the amendment thinking that it was uncontroversial. “Museum or gallery” is certainly mentioned in Clause 128(6), but that is about all, whereas “museum or gallery” is also referred to in Clause 126(2), (7)(a), (8)(a) and elsewhere. Do we assume that “museum or gallery” means something else in Clauses 126 and 127? Surely the word “section” should read “Part”. I continue with Amendment No. 132. It is a substantive amendment. The Committee will recall that there were questions about a museum or gallery being approved and that there might be loans to museums or galleries only if they were approved. As I understand it, there is an informal procedure whereby museums or galleries have a mechanism to investigate with due diligence provenance and ownership of any object brought to the United Kingdom. All I seek to do is to put that in the Bill. It is an important matter. I notice that the noble Lord, Lord Renfrew, has tabled a very similar amendment, which is grouped with mine. The force behind the amendments is obvious. I beg to move.
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Lord Renfrew of KaimsthornConservative- Quote
- I support this chapter in general but, like the noble Lord who has just spoken, I am a little anxious that the Bill is insufficiently clear upon this matter. In his Second Reading speech, the noble and learned Lord, Lord Falconer of Thoroton, said: “The immunity will only be given to museums and galleries approved by the Secretary of State for Culture, Media and Sport. We will be looking very carefully at the procedures for due diligence followed by each museum wanting immunity before approval is given. We have published a code of practice setting out guidelines on the due diligence that should be undertaken by a museum that is considering the acquisition or loan of cultural material”.—[Official Report, 29/11/06; col. 766.] I am sure that is fine so far as it goes, but that assurance is not given in the Bill, and I think that there are grounds for wondering how this procedure might be applied. I have in mind two hypothetical cases, although one of them might not be altogether hypothetical. I am confident that the Minister would be inclined to grant approval, for instance, to the Royal Academy of Arts, which is a very worthy institution. But it may be recalled that less than a decade ago the Royal Academy of Arts put on an exhibition with the rather grandiose title “In Pursuit of the Absolute”, which comprised the private collection of Mr George Ortiz. I do not wish to say anything inappropriate, but it is fair to say that many items within that collection would not have passed the criteria very clearly spelt out in the code of conduct for combating illicit trade, which was subsequently published by the Department for Culture, Media and Sport. It is clear to me that the Royal Academy of Arts would need explicitly to subscribe to this code of conduct before it was approved, but it is not clear to me that the Bill requires that. Moreover, it is not clear to me which staff on the Royal Academy of Arts have the expertise to undertake the necessary due diligence scrutiny for that purpose. The second case I have in mind is the possibility of a loan from the Metropolitan Museum of Art, whether to the British Museum or, say, to the Serpentine Gallery. The lay person might think that the Metropolitan Museum of Art was an institution beyond reproach in these matters, but I can offer a scintilla of doubt on such a proposition because the Metropolitan Museum of Art accepts into its permanent collection many items which would not pass the criteria of due diligence required by the DCMS code of conduct. Indeed, one can foresee the possibility that a piece might be lent by the Metropolitan Museum of Art that would fall foul of the Dealing in Cultural Objects (Offences) Act 2003 if it could be held that it was dealing. An exhibition might carry that connotation, although it would be a legal point, so we need a provision in the Bill. I am happy with Amendment No. 132, to which the noble Lord, Lord Thomas, has spoken, but I would make one further point. I think an essential component of due diligence where antiquities are concerned is the 1970 rule, which is thoroughly embedded in the current guidelines combating illicit trade. That might be implied in the amendment to which the noble Lord has already spoken, but it is perhaps less explicit than in my own amendment which makes reference to the code of conduct. It is very explicit on that point. Some further assurance is needed. Something ought to be in the Bill, otherwise we will have a loophole through which a case such as I have described might inadvertently pass. I beg to move.
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Lord Howarth of NewportLabour- Quote
- We should be grateful to the noble Lord, Lord Renfrew, and the noble Lords, Lord Thomas and Lord Maclennan, for tabling Amendments Nos. 131 and 132, which give us the opportunity to consider whether the requirement of due diligence is satisfactorily built into the Bill and to inquire of the Minister how she anticipates it will work in practice. It may be helpful to articulate in the language of the Bill and to elaborate this requirement beyond the rather minimalist language of the Bill as it is at present. It is, after all, crucial that we do everything we can to build the confidence of both lenders and potential claimants. They equally, from their different perspectives, want to see a rigorous system of due diligence operating. We should, on the other hand, hesitate if the purpose is merely declaratory because it is not part of our legislative system to ornament Bills with rhetoric so that any lay reader of the Bill can be confidently assured that the intention of the Bill is as he or she might wish it to be. The question, therefore, is whether we would be adding something substantive if either of these amendments were to be accepted and become part of the Bill. I am not quite sure whether the amendment of the noble Lord, Lord Renfrew, would strengthen or weaken the requirements for due diligence in the Bill. After all, if it is a condition of such approval that any approved institution has agreed to apply and so on, that may not take us as far as we need to go. To have agreed is not quite the same as the requirement in the amendment of the noble Lord, Lord Thomas, that the Secretary of State will need to be satisfied that the museum or gallery in question has suitable procedures in place. So, on balance, I prefer the language and precision in the amendment of the noble Lord, Lord Thomas—although I think that the reference to the excellent guidelines published by the department is a valuable component of the amendment of the noble Lord, Lord Renfrew. It is fair to acknowledge that there are real problems for would-be borrowers in carrying through due diligence. After all, by definition, they are not the owners or the possessors of the objects they wish to borrow. It requires time, resources and expert knowledge or access to expert knowledge. I was pleased, for example, to see in the new programme announced by the Heritage Lottery Fund—a fund of £3 million to support acquisitions of cultural objects by museums across the country, which will be very useful for a range of institutions—that it is intended that part of that money should be used to develop the knowledge and the expertise within the institutions that are going to make acquisitions. Of course, the same applies where borrowing is concerned. I make this point because there are always problems if we attempt to legislate where we are willing the end but not the means. There is a very important issue about the capacity of institutions to carry through due diligence to the standard that the department and every Member of the Committee rightly require. The DCMS document Combating Illicit Trade is admirable. Section 6 is headed “Due diligence—What it should involve” and on page 9 we see that there is a requirement to take expert advice. Further on in the document, on page 23, there is a lengthy list of possible sources of expert advice. I make the point that these processes—proper and necessary as they are—are time-consuming and resource-intensive, both for those who seek the advice and for those who give the advice. It is further suggested in the document, also on page 9, that, if necessary, seek legal advice. The noble Lord, Lord Thomas, will perhaps confirm to the Committee that legal advice can come very dear. I appreciate that the responsibility for this extends far beyond the normal responsibilities of the Department for Constitutional Affairs, but my noble friend Lady Ashton, of course, speaks for the Government as a whole when she answers. Can she assure us that the Government’s intention is that institutions will be adequately resourced to carry through the requirements of genuine, effective and rigorous due diligence to the high standards set out in the document?
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- Baroness Ashton of UphollandLabour
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- This has been an interesting debate. It has ranged wider than the subject of the amendments. I intend to focus my remarks on the amendments. I take note of what my noble friend said in a debate which has included European legislation. I have a copy of the report Lending to Europe and am very grateful to officials for giving it to me. I shall not start by pretending that I am an expert on Departure for Culture, Media and Sport policy. I will refer specific questions to Ministers in that department, and I am sure that they will respond in plenty of time for Report. We are in Committee, and it is our opportunity to focus on the particular aspects in the amendments. As noble Lords know, I speak for the Government, but I am wise enough not to go down the road of the rumours of the Comprehensive Spending Review. As my noble friend will remember from his days as a Minister, it is always a danger to assume anything from the rumours of the Comprehensive Spending Review. In my experience they very rarely, if ever, turn out to bear relation to what then happens. I am very grateful to noble Lords for raising this important matter. I also want to put on record my gratitude to my noble friend Lord Janner, who has been to see me. He has been extremely helpful and we are in the middle of an exchange of correspondence. I begin with Amendment No. 130 and “section” or “Part”. I read Clause 128 quite differently. It talks about the approval list for the purposes of the definition of museums and galleries, which is given in “this section”, and “this section” is part of Part 6. I think that that is fine. Rather than get into a big debate on it now, however, I will look at it again, but it read to me as if it were referring to this section, in this part. I thought both words were in the appropriate place, but if parliamentary counsel wishes to review it again, I am sure it will. That is all I am going to say on that, you will not be surprised to hear. Amendments Nos. 131 and 132 are, in a sense, about balance. In the main, at Second Reading noble Lords accepted the principle of what the Department for Culture, Media and Sport proposed for this legislation, for the reasons that I gave then. However, although we have the document that my noble friend Lord Howarth referred to, Combating Illicit Trade, published in October last year, noble Lords were concerned that we should ensure that due diligence was recognised and put forward appropriately. We accept the principle behind the amendments, which is sensible. We are particularly interested in Amendment No. 132, and I will be looking at that carefully in conjunction with colleagues at the DCMS. It is right that the Secretary of State must have regard to the procedures followed by museums and galleries for establishing the provenance and ownership of objects that may qualify for protection under the Bill in deciding whether they should be approved for the purposes of immunity. With regard to the role already played by museums, due diligence does not come with the legislation as part of the requirements. It exists already. In that sense, they are funded to do it. We are talking about the major national museums, plus the main large regional museums that mount exhibitions—that is fewer than 60 in total. In my view they should be practising due diligence already. The question is whether we need to recognise that in the Bill. It is fundamental that any museum that benefits from immunity from seizure needs to have the strict controls that noble Lords seek, to ensure that it does not borrow items of dubious origin. We would expect it to follow the principles outlined in the guidelines, Combating Illicit Trade. I hear what my noble friend says; the guidelines talk mainly about purchase, but then say, “When you are talking about ‘acquisition’, think of ‘loan’”. However, I have not yet heard from colleagues in the department that that has caused any difficulty for museums, so I do not propose at this stage that that should be rewritten. Museums will also be asked to abide by the statement of principles issued by the National Museum Directors’ Conference on spoliation of works of art during the Holocaust and World War II period. Under the guidelines, museums should undertake appropriate investigations into any item they borrow. If there are any doubts about the item’s ethical status, they should not proceed with the loan. For the purpose of the clause, approval will require more than simply an agreement by the institution in question to follow guidelines published by the department from time to time. With the greatest respect, we do not think the amendment of the noble Lord, Lord Renfrew, goes far enough. Under our proposals, museums will be invited to apply for immunity from seizure and to submit evidence of their due diligence procedures—which I hope will answer in part my noble friend’s concerns about ensuring that it happens properly—and associated documentation to assure us that they are conducting appropriate checks into the provenance and ownership of items they propose to borrow for temporary exhibitions. They need to demonstrate how they implement due diligence guidelines and what checks they make into the provenance and ownership of items. Only then will they be approved for the purposes of Clause 128. That is very important. It is our intention, with gratitude to those who have moved amendments, to take away Amendment No. 132 and consider that as the basis on which I shall seek to come back on Report. I hope I have answered my noble friend’s questions in part, but I will ensure that he gets a full answer before Report. I hope he will accept that for the time being.
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- Lord Thomas of GresfordLiberal Democrat
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- I am grateful to the Minister for her exposition. The exercise of due diligence seems to be a trade-off for immunity, however that is expressed. I look forward to seeing what further progress we can make. If I can be of any assistance, I am available. For the moment, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Renfrew of KaimsthornConservative
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- moved Amendment No. 131:
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- Baroness Ashton of UphollandLabour
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- Yes, the Serpentine Gallery and the Royal Academy of Arts are included in the definition I was seeking to give. There is no difficulty with that, and I will confirm that to the noble Lord in writing.
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- Lord Renfrew of KaimsthornConservative
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- I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 128 agreed to. [Amendment No. 132 not moved.] Clauses 129 and 130 agreed to. Schedule 22 agreed to. Clause 131 agreed to. Clause 132 [Judicial review: power to substitute decision]: On Question, Whether Clause 132 shall stand part of the Bill?
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Lord for being very succinct and clear about the issues on which he seeks clarification. I will deal with the detail followed by the generality. New subsection (5)(a) does not apply the power of substitution; it simply reiterates the existing position, which is why it refers to the “authority”. New subsection (5)(b) refers to the power of substitution. As the noble Lord will see from new subsection (5B), “a decision substituted … under subsection (5)(b) has effect as if it were a decision of the relevant court or tribunal”. It does not mention “authority”. I am told that that is how we ensure that this does not apply to areas such as local and national authorities, officials, government Ministers, and so on. I know the noble Lord is concerned about that. That is how Clause 132 reads. New subsection (5)(a) relates to the existing position. New subsection (5)(b) is the substitution. I am told that the civil procedure rules came in in 2000. I hope that that will help the noble Lord. The noble Lord rightly says that the difficulty with the civil procedure rules is that they are unclear and ambiguous. That is why we wanted to make sure that we clarified the position. The evidence suggests that the courts are not using the provision because they consider that it is ambiguous. I am being corrected. The amendment to the CPR was in 2000. I think that that was what I was asked about. We hope that putting the measure in statute will make it clear and give it statutory force rather than making it purely procedural. The measure is deliberately intended to remove the ambiguity. But it is absolutely essential that we understand that it is about the cases where only one decision could properly have been made. I give an example from a tribunal to illustrate the point. A tribunal might decide that a child should not be admitted to a particular class in a school because of a cap on numbers. For whatever reason that decision is overturned and the child is admitted to that class. Rather than incurring the cost—which is sometimes borne by the individual who is trying to get the decision made—of the measure being reviewed with consequent delay taking place, it would be much easier if the relevant decision could simply be substituted. We want to apply the measure in a very limited set of circumstances to clear up the ambiguity in the civil procedure rules. We also want to pick up the Law Commission’s recommendations and ensure that we define the measure as appropriate within the legislation. The noble Baroness, Lady Butler-Sloss, who has had to leave, asked me to say how much she supports what the Government are doing in this regard. I hope that the noble Lord does not mind my doing that. We believe that we have the balance right here. I hope that the noble Lord will reflect on it. If I can give him any further information, I shall do so.
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- Baroness Ashton of UphollandLabour
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- Apparently, it is the existing position in the Supreme Court Act.
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- Baroness Ashton of UphollandLabour
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- The noble Lord is absolutely right; that is not the case. I shall write to the noble Lord setting the matter out properly, but new subsection (5)(a) simply contains the wording that will be inserted in the Supreme Court Act 1981. New subsection (5)(b) amends it, as it were.
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