Report stage in the Lords
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The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)Labour- Quote
- moved Amendment No. 1:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 2:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 3:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 4:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 5:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 6:
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Lord Thomas of GresfordLiberal Democrat- Quote
- moved Amendment No. 7:
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- Baroness Ashton of UphollandLabour
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- My Lords, my diplomatic approach is to try to agree with everybody, on the grounds the more that we can have “law by consensus”, which is a phrase that I heard yesterday evening, the better we all will be. I thought carefully about the amendment. We consulted widely across government on its impact, because I know that the noble Lord quite reasonably took my words from Committee and sought to develop the filter system. I therefore took the time and trouble to pass the amendment right across government to get their views. I cannot accept the amendment, but I want to explain why, because it is important that it is understood why, when we looked at the possible implications, there were genuine concerns. Although the noble Lord may not agree with them, I hope that he will accept them as such. We have tried to make the tribunal system that is proposed in the Bill as simple and as straightforward as possible. It includes the full right to appeal on fact, law and other relevant bases to the independent and expert tribunal. That gives a reasoned decision. There is a further right of appeal to the upper tribunal if there has been a mistake about the law. My fear is that the amendments could unintentionally undermine both tribunals, because there would not necessarily be finality about any aspect of the first-tier tribunal’s decision, and the upper tribunal, we fear, would be inundated. We cannot estimate the number of applications that the prospect of appeal on the facts might generate but, for instance, there are about 250,000 social security and child support appeals each year. There is a right to apply for leave to appeal on a point of law to the Social Security Commissioners but there are about 4,000 applications a year, so that is less than 2 per cent of the total. Where there is a right of appeal on facts there are no constraints on the number of applications; each appellant can make an application for permission purely because they are unhappy with the decision against them.
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, I am most grateful to the noble Baroness for the care with which she has considered the matter and for taking the trouble to consult across government departments, as she said. I fear that instead of appeals to the upper tier, the High Court will be swamped with applications for judicial review on the basis that findings of fact made at the first-tier tribunal are unreasonable. There is a balance. The judicial review hearings are likely to go up even if the noble Baroness succeeds in keeping down the volume of appeals between the two tribunals. However, I am happy to have aired this issue and to have heard the noble Baroness’s response. I do not seek to press the amendment to a vote tonight. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 8 and 9 not moved.] Clause 18 [Limits of jurisdiction under section 15(1)]:
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Lord Lloyd of BerwickCrossbench- Quote
- moved Amendment No. 10:
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, we on these Benches strongly support the principle that lies behind the amendment of the noble and learned Lord, Lord Lloyd. We note that he wishes to add some words and perhaps we can reach the consensus to which the noble Baroness referred a short while ago. The principle is absolutely fundamental. It is a bulwark of our constitution—that may be a hackneyed phrase—that we have the High Court to check government through the judicial review process. In no other sort of case is there such a direct clash between the Government and the court, which acts to protect the individual. It would be wrong to weaken that principle in any way, simply because we are seeking to extend the jurisdiction of the courts by this tribunals Bill. We are trying to increase the profiles of tribunals in an important way and to have a rational consensus on how they should work. But it would be wrong to allow the principle that has lasted a thousand, or at least very many, years to be weakened with a Bill such as this. The names of the prerogative writs—certiorari, mandamus and the rest of them—are absolutely fundamental to our law. I look forward to hearing what the noble and learned Lord can agree with the noble Baroness or, if they cannot agree, to seeing what he brings forward at Third Reading, when he will have our support.
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Lord Clinton-DavisLabour- Quote
- My Lords, I agree with what has just been said. The noble and learned Lord, Lord Lloyd, has made a powerful case and the amendment that he suggests, which is not before us at the moment, would also be practical. I hope that my noble friend will accept the suggested amendment. If she cannot, she will need to put forward a case that would appeal to many of us. At the moment, the suggestion that has been made to the House is compelling—and that is not a party point of view in any way. I hope she will recognise that this matter is very important in terms of practicality and would add to the reputation of the court, a point that I hope will not be forgotten in this context.
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Baroness Butler-SlossCrossbench- Quote
- My Lords, I wonder whether before the Minister replies I might just add a few words in support of the noble and learned Lord, Lord Lloyd of Berwick. I entirely agree with all the previous speakers. I add only that I do not think that it would be very difficult to find phraseology that would permit of deputies approved by the Lord Chief Justice or the judge in charge of the administration of the judges on suitable occasions, so long as one has the principle that a High Court judge should sit. It is well known that from time to time deputies do sit. That may be the way round some of the practical difficulties.
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Lord Newton of BraintreeConservative- Quote
- My Lords, I am not quite sure whether I dare, as a non-lawyer, to intervene in these proceedings. I ought to declare my interest as chairman of the Council on Tribunals, although what I am about to say is entirely my view having listened to this debate. I can quite understand the force of the point that is made about a High Court judge, particularly in respect of the high-profile cases that the noble and learned Lord, Lord Lloyd, referred to. But if my ears were not deceiving me he also referred to large numbers of what he described as—this is his word, not mine—rubbishy applications for judicial review. I have to express some reservations about the desirability of insisting that the scarce resource of High Court judges should be used to deal with such applications. Some element of flexibility or, one could even say, judgment probably needs to be applied to what is required in particular cases. That is my individual reaction to what I have heard.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am very grateful, not only for all the contributions but for the spirit of the contributions. In particular, I thank the noble and learned Lord, Lord Lloyd of Berwick, for his introduction of this issue. I completely understand that these issues are of great import to Members of your Lordships’ House. Let me begin by explaining again, particularly for the benefit of noble Lords who were not with us in Committee, precisely what we are seeking to achieve and why. We are trying to make sure that we get the best possible service that the justice system can provide to users by making it possible that cases can benefit from the specialist skills and the knowledge of a senior judge in a tribunal, rather than—and I mean this in the best sense of the word—the generalist skill and knowledge of a judge in the administrative court. We think that the provision would mean more appropriate access to justice, but we have hedged this power with safeguards. There is no reduction in the right to apply for judicial review. It is not the Government but the senior judiciary who decide which cases are suitable for transfer. Under the Bill, a senior president, a Lord Justice of Appeal or his delegate would decide which judge heard which case. The amendments would remove the advantages conferred by the transfer, so noble Lords will understand why I am extremely hesitant about them. I know from a discussion that I had earlier with the noble and learned Lord, Lord Lloyd of Berwick, that he, along with other noble Lords, is very keen to see whether there is a way through this issue. I, too, have spoken to the Lord Chief Justice. I do not have his permission to quote him but I think that his position in this set of circumstances may not be quite as noble Lords have indicated. He is very keen to ensure that I, together with the Lord Chief Justice, Lord Justice Carnwath as president of the Tribunals Service, the noble and learned Lord, Lord Lloyd of Berwick, the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and anyone else who wishes to join in have a conversation to see whether we can find a way through this. It is not simply a question of resources; there is a point of principle behind it as well. We would all benefit from hearing the Lord Chief Justice speak for himself. That would be better than my attempting to interpret what he said, which, as I said, I would not do without his permission. I hope that noble Lords accept that I agree to do exactly as the noble and learned Lord, Lord Lloyd of Berwick, wishes—that is, I shall take this matter away with the understanding that, if I am unable to convince him, the amendment will reappear and your Lordships will be able to exercise their right to, as it were, decide for me on this issue. However, I believe that our conversations will find a way to tackle the underlying concerns without removing the principle, on which I think we agree.
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- Lord Lloyd of BerwickCrossbench
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- My Lords, I, too, am hopeful, and I am very grateful for the Minister’s response. It was very typical of her willingness to agree where agreement can be reached. On the basis of her undertaking, I am happy to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 11 not moved.] Clause 19 [Transfer of judicial review applications from High Court]: [Amendments Nos. 12 and 13 not moved.]
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 14:
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- Lord Lloyd of BerwickCrossbench
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- My Lords, I have already complimented the noble Baroness on her ability to see the light, and the light is there on this occasion. She has seen the light and I entirely support her amendment. I shall not move my amendment in favour of hers, which I think provides exactly the same result. On Question, amendment agreed to.
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The Deputy Speaker (Baroness Hooper)Conservative- Quote
- My Lords, if Amendment No. 15 is agreed to, I cannot call Amendments Nos. 16 and 17.
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 15:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 18 and 19:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 20 and 21:
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- Lord Newton of BraintreeConservative
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- My Lords, I am grateful for the generosity of my noble friend’s remarks, which reveal that he has pursued the point I raised in direct response to the debate in Committee with greater assiduousness than I did. I was undoubtedly speaking for myself rather than the Council on Tribunals on that occasion, but I presume that it would support a proper balance between the interests of justice and those of speed and efficiency. I strongly support my noble friend’s amendment.
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, the amendment has been grouped with Amendment No. 23, possibly before the two sides got together. We do not think that the interests of justice will be achieved or that the proceedings before a tribunal will be accessible and fair if one party cannot afford to be there. It is vital that legal aid is available at all hearings before the first tribunal. That has not been the case in the past and, as I said at Second Reading and in Committee, much of that work has been done for nothing by young lawyers, who have taken it to a high point without the benefit of legal aid.
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- Baroness Ashton of UphollandLabour
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- My Lords, Amendment No. 22A can be described as “win, win, win”. I am extremely grateful to the noble Lord, Lord Kingsland, for responding so quickly to enable us to accept the amendment he tabled. It was the noble Lord, Lord Newton of Braintree—and who am I to do anything other than what he tells me to?—who put this forward, and I agree with it completely. Rather than having to take the amendment away, I am delighted that we can simply accept it with grateful thanks. It does everything that noble Lords have said. The noble Lord, Lord Thomas of Gresford, raised an important point about legal aid. I know he feels strongly about it. At Second Reading, my noble and learned friend the Lord Chancellor said: “I am supportive of the proposition that, for issues such as welfare benefit, legal aid should be more widely available than it is at the moment. However, that requires first of all getting a grip on criminal legal aid to ensure that some money is available”.—[Official Report, 26/11/06; col. 762.] My noble and learned friend made clear the importance that we attach to legal aid. I know that the noble Lord, Lord Thomas of Gresford, does not dispute that one of the great joys of tribunals is that they operate differently from the traditional court system. We hope that the more informal and, perhaps, more inquisitorial system will enable people to represent themselves when that is appropriate. However, it is important that they are able to get high-quality advice and support and, in bringing together tribunal services, I am looking at how we provide that advice to those who come to tribunals; it is an important issue. I also accept that there will be circumstances where we would want to do more than that and where legal aid might be appropriate. I am, therefore, resisting Amendment No. 23, but a huge review of legal aid is going on—there have been 2,372 replies to the consultation paper. Noble Lords know that the amount of money spent has risen from £1.5 billion in 1997 to more than £2 billion now and that Lord Carter examined the position in depth. However, I am resisting the amendment in the light of the commitment given by my noble and learned friend at Second Reading. In civil justice and in the Tribunals Service he wishes to make sure that where legal aid is needed, we will consider it, for precisely the reason indicated by the noble Lord—to make sure that people get access to justice. I cannot simply insert it in the Bill without putting it in the broader context of the legal aid reforms; however, I shall take the proposition forward. My noble and learned friend said clearly what his view is, and I hope that noble Lords will recognise that that commitment is there and will hold the Government to account in future to make sure that we fulfil it.
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- Lord Thomas of GresfordLiberal Democrat
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- moved Amendment No. 23:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 24:
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, I should like to express my gratitude to the Minister for acceding to the point made by the noble Lord, Lord Maclennan of Rogart. We are very happy that this important provision is now in the Bill. On Question, amendment agreed to.
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Lord GoodladConservative- Quote
- moved Amendment No. 25:
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- Lord Newton of BraintreeConservative
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- My Lords, I rise briefly to support the general thrust of my noble friend’s remarks. The background from my point of view is slightly ironic. I too had noticed this and discussed it with the Minister. I told her that I was minded to put down the clause from the draft Bill today only to be told that my noble friend had got in ahead of me. I am happy, as it were, to hitch my wagon to his, with thanks to him. I had noticed the disappearance of this clause, but I also have some sympathy with the point that it may not be needed strictly in terms of what you can or cannot do. Without doing quite as much constitutional heavy breathing as my noble friend, I see some merit in running up this particular flag as part of the legislation—or something like it—not least because of the point he made about the policy goals and the advantage perhaps for the development of the approach. I am not going to comment on whether the detail is right. I know that some members of the Council on Tribunals were concerned about the omission of the clause. Some also have concerns about whether it may not be too restrictive or need some refinement in detail. I do not want to enter into that, but I hope that in general terms—
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- Lord Clinton-DavisLabour
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- My Lords, will the noble Lord give way?
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- Lord Newton of BraintreeConservative
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- I am nearly finished, my Lords, but I will give way.
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- Lord Clinton-DavisLabour
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- My Lords, I thank the noble Lord. I have a great deal of sympathy for the purpose of the amendment, but is the noble Lord sure that it is in the right place? Should it not be the subject of a separate piece of legislation?
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- Lord Newton of BraintreeConservative
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- My Lords, on that point I have a fairly clear-cut view. The policy background to the Bill is a very wide-ranging White Paper in which the Government rightly took the view that there were various needs in this area, one of which was to create a more coherent tribunal system. We now have that in the form of the Tribunals Service, which can be developed still further in some aspects with the passage of the Bill. Another need was the desirability of ensuring that disputes between the citizen and the state—and sometimes between citizens themselves—should be resolved in the most proportionate, effective and sensible way. That is what we are talking about here and, in my view, it belongs fairly and squarely in a Bill which is designed to advance that wider and sensible objective. I have a great deal of sympathy with what my noble friend has said. I am not going to argue about the detail but, knowing the spirit in which the Minister approaches these matters, I am sure she will find some way of accommodating the main point while improving the detail if she feels that is necessary.
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, we also support the amendment. The noble Lord, Lord Kingsland, has just made the point that people should not be pushed into mediation. They should always have at the back of their mind that they are entitled to a hearing within the structure of the tribunal system and that an independent judge will decide. The problem with mediation is that you have the Government or a similar body on the one side and the individual on the other, and the bargaining power is not equal. Mediation is very attractive because you do not have to face a tribunal, you can agree things and so on, but, ultimately, the remedy through the tribunal should always be available. I agree with the sentiment behind the amendment.
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- Baroness Ashton of UphollandLabour
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- My Lords, I agree too, both with the sentiments and with the amendment. The amendment appeared, as the noble Lord, Lord Goodlad, eloquently said, as a consequence of what was in the White Paper and in the draft Bill. We listened with care to what the Constitution Committee said. Its interpretation of ADR is a little different. I say to noble Lords who have not had the opportunity to meet those involved in mediation that I had the privilege of meeting our mediator in Manchester, and met some of the clients who have been extremely well served by his work in the court system. I accept what all noble Lords have said about the value of alternative dispute resolution—particularly mediation, in this context—in providing greater opportunities for access to justice. The caveat has been put forward that it does not preclude users from pursuing their cases in the courts of the tribunals. That is important too. We took ADR out only because we did not think we needed it, not because there was anything wrong with the principle. I am perfectly happy to accept the amendment, and I am grateful to the noble Lord for tabling it. I give notice that I will have to make one or two consequential amendments at Third Reading, just to ensure that it fits properly back in, but I am sure noble Lords will be happy with that. I have nothing to add; everything has been said. On Question, amendment agreed to. Clause 29 [Transfer of functions of certain tribunals]:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 26:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 27:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 28 and 29:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 30:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 31:
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- Lord Newton of BraintreeConservative
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- My Lords, I share my noble friend’s hope, not least because of the interest, which I have already indicated, that I am one of the people who could be dismissed in these circumstances. In Committee I indicated that I found it difficult to understand this phrase, which would be widely interpreted by persons who are not lawyers, or indeed by persons of any kind, as meaning “for no reason”. That needs a bit of explanation before it is allowed to stay in the Bill. On the whole, I strongly support my noble friend’s amendment. I share the ambition that the noble Baroness should be her usual friendly self about it.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am very worried about the precedent that I have set. I was going to say that when the noble Lord, Lord Kingsland, opposed the relevant provision, he was ably supported by the noble Lord, Lord Newton, and I said that I would reconsider it. Noble Lords may remember that during that debate I explained that the provisions were based on a requirement of Cabinet Office guidance on the creation of non-departmental public bodies. My officials have since queried the guidance and it has been acknowledged that provisions allowing removals without cause are inappropriate. I understand that the guidance has now been revised accordingly. I am grateful to the noble Lord, Lord Kingsland, for tabling the amendment. We would have tabled our own had he not done so, but he deserves the credit. I have no hesitation in accepting it. On Question, amendment agreed to.
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 36:
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, I make a formal objection to the use of the expression, “territory” for “England and Wales”. I do not think that is appropriate and I do not wish it to be a precedent to appear in any future legislation. On Question, amendment agreed to. Schedule 8 [Tribunals and Inquiries: consequential and other amendments]:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 37 to 39:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 40 and 41:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 42:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 43 to 54:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 55:
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Lord LucasConservative- Quote
- moved Amendment No. 56:
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- Baroness Ashton of UphollandLabour
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- My Lords, I am extremely grateful to the noble Lord, Lord Lucas, for raising these issues. Perhaps I may say at this stage that I am also grateful for the helpful way in which we have debated the issues around this part of the Bill and the amount of work that the noble Lord has done on it. I have thought very carefully about what the noble Lord is seeking to achieve. I went back and looked at the recommendations of the Independent Review of Bailiff Law, published in 2000 by Professor Jack Beatson. On the face of it, the idea of moving this matter into regulations and being able to manoeuvre the situation in the way that the noble Lord suggests is always attractive, because that would achieve his aims and it is usually my desire to do that. But Professor Beatson’s Recommendation (1)(a) struck me as vital in this context. He said that the fundamental rules governing distress should be set out in one place—in statute. Recommendation (21) set out what the methods of taking control of goods should be. We have set those out in paragraph 13 of Schedule 12. Noble Lords have generally welcomed the bringing of bailiff law together into one place. We had to make a decision as to whether we used primary or secondary legislation. I have talked the matter through with officials at some length over the past few days to see whether we were in the right place—and I think that we are, because it is important to bring bailiff law together on the face of legislation. That is because my objective is to clarify, rationalise and simplify enforcement agent law for all the reasons that were dealt with in Grand Committee and to bring certainty, both to professionals who deal with the law and to those who are at the receiving end of it. Noble Lords will recall that we talked about all the different pieces of law—some in statute, some in common law—through which bailiff law had grown over the centuries. For that reason, I am inclined to keep it where it is—that is a key recommendation on what we should do. The fact that there are many regulation-making powers within the Bill does not preclude continuing to talk, not only to the noble Lord, Lord Lucas, and other noble Lords, but to the members of the industry with whom we have begun a dialogue, Citizens Advice and others, about precisely how the regulation-making powers are set out. I am keen to do that over the next few months as we develop this area. The noble Lord was particularly concerned about those who sign a controlled goods agreement, which we talked about in Grand Committee. I made it clear then, and I reiterate again, that we are not precluding someone else signing on behalf of the debtor, provided that they have been authorised to do so. If a person volunteers to sign, it is for the enforcement agent to ascertain the relationship and to be satisfied that the debtor wants that person to sign. We will look to developing how that will look, the criteria and so on, in conjunction with those involved—both those who are concerned that someone might sign inappropriately and those who are concerned to ensure that if you are able to sign on behalf of the debtor, it is done properly. If no one is willing to claim such authority, the enforcement agency should try to contact the debtor by telephone to explain the situation and see whether they can instruct someone else to sign the agreement. If no one is willing to sign the agreement, the enforcement agency must act within its rights to take control of the goods immediately. Of course such an agreement should not be signed by someone who is under 18 or would not understand the nature of what they were doing and the consequences of the document that they were signing. We are going to work very carefully to make sure that we set this out properly, which I think is what the noble Lord, Lord Lucas, is keen should be done. In the light of the principle that I have set out, and with the assurance that we will consider carefully how we do this so that we do it properly and get it right, I hope that the noble Lord will not press his amendment.
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- Lord LucasConservative
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- My Lords, I am grateful for the consideration that the noble Baroness and her team have given this. I still think that she has come to the wrong conclusion, but she is entitled to do that. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Schedule 12 [Taking control of goods]:
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Lord Beaumont of WhitleyGreen Party- Quote
- moved Amendment No. 57:
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord for, first, identifying that he wanted to cover a range of issues. I shall deal with some of his general points, but he will forgive me if I can better deal with some of the issues—on certification and bailiffs, for example—when addressing them in the round. It is no disrespect to the noble Lord that I do not deal with them effectively. I also pay tribute to the Reverend Nicolson, from the Zacchaeus 2000 Trust, who did me the courtesy of seeing me on 18 January. We had a good and, at times, robust discussion which I found extremely useful. He gave me a lot of food for thought. Although we come at this from slightly different perspectives, I thank him very much. Many of the things he has written to the department about, and will continue to raise with us, are important as we put this legislation into practice. I completely understand the desire to recognise vulnerability in everything that we do. We are dealing with circumstances with creditors and debtors, and where the courts have made decisions. We must therefore be mindful of upholding the law. In so doing, however, we must be clear that there are extremely vulnerable people. One reason for bringing the legislation together into one piece of law—from common law, statute, regulations and so on—is to enable greater clarity both for those who enforce the law and those at the receiving end, as I said on the previous amendment. That is an important part of what we have done. We have done quite a lot in improving the opportunities to deal with debts in different ways. I know that we have not spent a huge amount of time on that in either Committee or your Lordships’ House today. That is not through lack of interest, but because there is a general view among noble Lords that these are good things to do. There is a general recognition in all that we are doing that we must provide a range of opportunities to help and support people who get into debt, while recognising that creditors have a right to get their goods back or have their debts resolved. That is the premise on which I speak to the next groups of amendments. There are no secret instructions. I would be more than happy to talk about how we intend to talk to the industry and share what we will be doing next with noble Lords as far as I can. There is no secrecy on my part; I find that practically impossible. We want to be as clear as we can. The greater clarity comes because we will be as open as possible. I reassure the noble Lord, and trust that he will hold me to that as we progress from legislation to action. To answer the noble Lord’s amendments, I think I also read out the list in paragraphs 130 to 133 of our policy statement, a copy of which has been placed in the Library, in Grand Committee. It is a list of exempt items which we intend to contain in regulations so that we can amend them in response to changes; mobile phones might be in or out, but we certainly would not have put them in 20 years ago. It includes fixtures and fittings, including those connected to water, fuel and power supplies. It also includes domestic pets and dogs that aid the blind or hard of hearing, and a minimum amount of cash that must be left on premises for the purpose of sustaining normal everyday living for the debtor and his family. As I have indicated, it is better to keep this in regulations to give flexibility and ensure that changes can be made easily and quickly in response to experience. For example, the amount of cash that must be left on the premises will vary from household to household, for reasons the noble Lord will know well. We do not want a fixed sum in the Bill, as amending it in future legislation would be difficult and time consuming. That is the basis on which we will be open. I hope that our lists will offer the noble Lord comfort, and that he will feel able to withdraw his amendment. On Amendments Nos. 59 and 60, we do not want a code of practice to deal with vulnerable debtors; it is not necessary. We want to ensure that everything we do clarifies what enforcement agents are and are not legally entitled to do. Schedule 12 and its underpinning regulations will do that. Paragraph 12 of Schedule 12 in general restricts what may be taken to the value of the outstanding debt plus future costs. Regulations under paragraph 3(1) of Schedule 12 will stipulate a list of exempt goods. Regulations will also reflect the provisions from the National Standards for Enforcement Agents, which state that on discovering that the only person on the premises is a child aged 12 years or under, the enforcement agent must withdraw immediately without making further enquiries. If the enforcement agent were to ignore those regulations, remedies would be available to the debtor under paragraph 66 of Schedule 12.
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- Lord Beaumont of WhitleyGreen Party
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- My Lords, I am grateful to the Minister, who is obviously taking immense trouble over this area. Although the two sides are moving together, I cannot say that we are completely satisfied, and we would like to see more in the Bill. However, this is not something that I want to take to Third Reading, particularly under the new definitions of what should be done at that stage, as it is a matter that can be pursued in another place. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 58 to 60 not moved.]
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The Deputy Speaker (Lord Geddes)Conservative- Quote
- My Lords, before calling Amendment No. 61, I must advise the House that if it is agreed to I shall not be able to call Amendments Nos. 62 to 71 due to pre-emption.
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- Lord LucasConservative
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- moved Amendment No. 61:
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord, Lord Lucas. I shall deal first with Amendment No. 61 and then with the other three. Many of the provisions in the amendment are already contained in the Bill. I will not comment on those, but I will comment on the provisions where they deviate from the proposals in the Bill. Paragraph 14(7)(c) would introduce a new power to force entry without prior judicial authority on to commercial premises. We do not think that that power is justifiable. Forced entry should be allowed only without prior judicial authority for the enforcement of unpaid fines in line with current law. To be allowed forced entry the creditor or enforcement agent would need to prove that such force is necessary and justifiable. Paragraph 15(1) would introduce a power to force entry on to mixed-use premises when pursuing debts under the commercial rent arrears recovery system—CRAR. We think that that is unnecessary. The whole nature of the CRAR system is that it is only applicable for commercial tenancies in wholly commercial premises. As an out-of-court remedy, which this is, there is a real risk that it would not be compliant with the European Convention on Human Rights if we did not restrict it to commercial tenancies and premises and allowed it for mixed use. Paragraph 15(2)(b) refers to entry being carried out by “normal methods”. I am not sure I understand what that means; we need to define “normal means”. I am a little worried that “normal means” could be interpreted as meaning that other methods will be considered acceptable in other circumstances. The Bill and its underpinning regulations intend to do away with many of the other methods of entry currently considered legal, such as climbing through broken windows and skylights and landlords lifting up floorboards to get into premises below. I do not want to see any of those methods returning by the back door, if I can use that analogy. Paragraph 17 contains new powers regarding re-entry. That matter is touched on in Amendments Nos. 64 and 66, which I will come on to in a moment. Likewise, a new power in paragraph 19 covers some ground that we will shortly be debating in more detail in Amendments Nos. 69, 70 and 71. I hope that the noble Lord will understand why I would like to leave that matter for now. I also do not want to get into restraint issues because I want to talk about them in greater detail. I hope that, on the basis of what I said the effects of that would be, the noble Lord will feel able to withdraw Amendment No. 61. I turn to Amendments Nos. 64 and 66 and government Amendment No. 65, which I propose not to move this evening. When the noble Lord, Lord Lucas, spoke eloquently in Grand Committee and on Second Reading, he was concerned that a debtor who worked from a room in his house might be subject to the powers of forced entry to commercial premises. He contrasted that with the commercial rent arrears recovery proposals, where entry to mixed-use premises is prohibited. Having been taken by the noble Lord’s argument, I went away with the promise to consider it and came back with an amendment that did what I thought that he wanted. He now wants to do something quite different. I understand that, because since I drafted and laid that amendment, both the noble Lord and I have had representations from both sides of the debate—the enforcement industry and the debt advice sector—concerned that such a tightening of powers of re-entry may have unforeseen consequences of more enforcement agents being encouraged to remove goods on the first visit, rather than entering into a controlled goods agreement or securing goods on the premises. Naturally, that is something that we—and, more especially, the debt advice sector—are particularly keen to avoid. The noble Lord subsequently tabled further amendments, Amendments Nos. 64 and 66, which would give the power of forced re-entry without prior judicial authority to all enforcement agents and all types of premises for all types of debt. I hesitate to give that proposal unqualified approval, as it may be going too far in the other direction. I am also taken with what the advice agencies have said. We need to look at the matter in greater detail. There needs to be some provision to give the power of re-entry without prior judicial authority to avoid scenarios where enforcement agents feel compelled to remove goods on the first visit. I am, however, unsure that that would give sufficient protection to vulnerable debtors in domestic premises. Scope exists to provide for such limitations to be imposed by way of regulations under Paragraph 24(1) of Schedule 12, so there could be some protection for people in those circumstances. I would like to consider the matter further. If noble Lords will permit me, I would like not to move government Amendment No. 65, to take away what lies behind Amendment Nos. 64 and 66 and have further discussions not only with the noble Lord but with different sides on this debate, in order to return to the matter at Third Reading, if that seems appropriate. On that basis, I hope that the noble Lord can withdraw Amendment No. 61 and allow me to take the other issues away and come back.
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- Lord LucasConservative
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- My Lords, of course I will withdraw Amendment No. 61. As for the rest of the discussion, it merely illustrates how confused I was. As the parliamentary draftsmen will be spending more time on the Bill, if they find opportunities to render this part more understandable—if not to the layman, at least to the informed layman—I shall be most grateful for those efforts. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Beaumont of WhitleyGreen Party
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- moved Amendment No. 62:
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- Lord LucasConservative
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- My Lords, I had better speak to Amendment No. 70, since this group has grown rather. Oh! The noble Baroness would rather that I did not.
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- Baroness Ashton of UphollandLabour
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- My Lords, as I indicated to the noble Lord, Lord Beaumont, the only way in which we can deal with this on Report is to deal with the groupings in order, which I intend to do. He has raised individual cases, but he will know very well that I cannot respond in these circumstances. Reverend Nicolson was good enough to raise some of these issues with me. I am always mindful when looking at how this law will be enacted that we consider individual circumstances put before us. I take heart from the fact that the noble Lord is willing to do that. Better for us to discuss that beyond your Lordships’ Chamber than my clear inability to respond, for I know not the facts and am unable to deal with the information now. Perhaps I may turn to these amendments so that we have clarity about where we sit. I will commit, as ever, to continuing discussions beyond your Lordships’ House—I think that many of the noble Lord’s concerns are about what we do. I reiterate one thing, which I hoped that I had covered in my opening remarks on the previous group and is pertinent to much of what he said on this group. The purpose behind this legislation is to bring together, to simplify and to clarify the law covering the work of bailiffs and other enforcement agencies, specifically in order to make it better for them, but also better for the debtors. Much of the provision in Part 5 is designed to support vulnerable people with debts in the circumstances in which they find themselves, but also to recognise that creditors have rights too. The Bill is very balanced, so the noble Lord will understand my personal anguish when it is suggested that it is other than that, because that is exactly what I seek to do. In enacting this legislation, we will be very careful to ensure we take on board the points that have been raised, but deal with them in an appropriate manner. As I have said, we have to find that right balance between creditors and the rights of those to whom they owe money. The current system, which is based on common law conceived hundreds of years ago, needs to be brought up to date. It is complex, confusing and difficult to understand, which the noble Lord indicates with many of his examples. That has to change. There is an overwhelming case for simplification and clarification. One of the long-standing objectives of the civil enforcement review is to make enforcement law understandable and more straightforward. This Bill will achieve that. It will introduce in one piece of legislation a single piece of enforcement agent law that will contain in one place the legal structure for virtually all enforcement of civil debts, judgments and criminal fines, written in terms that identify and outline the rights and responsibilities of creditors, debtors and enforcement agents alike. That needs to be achieved in one place. The retention of certain common-law rights and responsibilities standing totally separately from the Bill would in many ways run contrary to the main objective, which I think the noble Lord supports. This includes the current powers of entry, based on common law conceived hundreds of years ago. It is not right that debtors can simply evade payment by refusing to open the door. With appropriate safeguards, the Bill allows a power of entry using reasonable force—a power which, other than for the existing powers of forced entry for enforcing unpaid criminal fines, will be exercised only with prior judicial authority. The court plays a critical role and will need to be satisfied that it is reasonable to grant a warrant to use reasonable force, and will balance the rights of the debtor and creditor when making such a decision. Being appraised of the facts, the court is best placed to make this decision impartially. Paragraphs 149 and 150 of our detailed policy statement set out the conditions that will have to be met for such a warrant to be granted. I hope that the noble Lord will take the spirit of what I have said about this bringing things together to achieve some of his objectives, and that he will feel able to withdraw his amendment.
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- Lord Beaumont of WhitleyGreen Party
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- My Lords, of course I realise the good intentions of the Minister—even, occasionally, the good intentions of the Government. The trouble is that when you have simplification and clarification, which sound as if they are very good in themselves, and the dusting is done, what may be dusted away and hardly noticed is something very valuable which happens to be lurking in a corner. In a way, the tradition that an Englishman’s home is his castle is one of those. It is not for me to pursue the issue any further at this stage, but I hope sincerely that when the Bill goes to another place and is considered by Members of the House of Commons with constituents who have probably suffered in this kind of situation, they will be able to do something to persuade the Government to go back on their decision. In the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 63 to 68 not moved.]
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- The Deputy SpeakerConservative
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- My Lords, before calling Amendment No. 69, I must advise the House that if this amendment is agreed I shall not be able to call Amendment No. 70 due to pre-emption. [Amendment No. 69 not moved.]
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- Lord LucasConservative
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- moved Amendment No. 70:
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord for raising this. This reason for including this provision is important. We feel it is important to have the opportunity to make clear the circumstances where if one needed to use restraint, it could be used. I too have had discussions with the enforcement group about this, but I have to say that other enforcement parts of the industry, such as High Court enforcement officers, take a different view. However, I am interested in drawing this up only if there is a clear desire for us to do so and if there is agreement on how it would work. It is designed to make sure that if restraint is to be used, the circumstances for doing so are very clear. I hope he will agree that this is a positive approach. I understand that some elements of the enforcement industry do not want it for the reasons outlined by the noble Lord, but others do. What I will commit to is that if, when we have consulted on this there is a clear view that the existing powers are sufficient, I shall reconsider it. We do not have to do anything about the regulations. However, I do not want to lose the flexibility provided in the Bill to enable such a power to be taken forward if there is a clear view that this would be helpful to the industry and, indeed, to those who could be on the receiving end. On that basis, I hope the noble Lord will agree to withdraw his amendment in the knowledge that I will not do anything with it unless it becomes clear that the provision is needed.
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- Lord LucasConservative
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- My Lords, I am quite content with that answer and I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 71 to 73 not moved.] Clause 55 [Enforcement Agents]:
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- Lord LucasConservative
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- moved Amendment No. 74:
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Lord Maclennan of RogartLiberal Democrat- Quote
- My Lords, we on these Benches associate ourselves with the proposed amendments. We warmly admire the work that has been done by the noble Lord, Lord Lucas, in digging into this field and reflecting in the amendment the concerns of a number of organisations, such as Citizens Advice and the Children’s Society. It would be interesting to hear from the Minister what the Government’s thought processes have been, not only about the present position but about how we got to it. It has been something of an uphill task to raise these issues. We were somewhat surprised at that, particularly as it was believed that the Government were sympathetic to the concept of licensing. As the noble Lord, Lord Lucas, has spoken at some length, I will not protract the debate on this topic, but I look forward very much to the Minister’s reply.
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- Lord Newton of BraintreeConservative
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- My Lords, I intervene on this part of the Bill with some trepidation, because I have not followed it with the care with which I have followed the earlier parts. I listened with considerable attention to my noble friend Lord Lucas. While I am simply not in a position to either associate myself with, or dissociate myself from, some parts of his overall argument, I noted his last point in particular, which involves the relationship between complaint handlers or ombudsmen and the courts. That is exactly the point on which I hope to focus attention later, in a wider sense, with regard to Amendment No. 96 and the new clause it contains. Without feeling that I wish to make some great declaration, I shall be particularly interested to hear the Minister’s comments on the last point my noble friend made about precisely that relationship.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord, Lord Lucas, not just for this evening but for the way he has brought forward these issues of regulation of the industry. I hope he will agree that I have encouraged him to do so from the beginning. The answer to the question asked by the noble Lord, Lord Maclennan of Rogart, is that it is not always a matter of a willingness to do something, but sometimes of finding the mechanisms to do it. One of the issues has been, and continues to be, the need to ensure that the Security Industry Authority is able to regulate the industry properly, in the way that the noble Lord has said. I cannot comment on its current status; I imagine that the role it performs is a difficult one. I am quite certain, however, that we will not bring this in until we are all certain that we have got everything properly in place. I have made that commitment not only to your Lordships’ House but also to the industry, which has been extremely generous—I single out Stephen Everson and Vernon Phillips, who have met me on several occasions to talk this through—and to colleagues in the Home Office, who have been very helpful. Before I answer specific questions, it may be helpful if I outline exactly what we have done and refer to the consultation paper Regulation of Enforcement Agents, from which the noble Lord, Lord Lucas, was quoting. The word “other” refers to companies, by the way. I agree that it is not very clear in the document, but it is not suggesting that we find a new gender. I too pay tribute to Ann-Marie Goddard, who has done an incredible amount of work in a very short time. I support what the noble Lord said about her work. Yesterday the Department for Constitutional Affairs and the Home Office issued a joint consultative partial regulatory impact assessment, with ministerial forewords signed by my honourable friend Vernon Coaker and myself, that explores the costs and impact of regulation. Much of what the noble Lord, Lord Lucas, referred to is contained within that document. We have sought to set out options for the future regulation of enforcement agents, and in the document we explore three. Our preferred option is regulation by the Security Industry Authority, an agency of the Home Office, as has already been discussed at length. We have included in our list of consultees organisations that we consider will capture most, if not all, of the groups the noble Lord includes in his amendment—and, dare I say, more besides. I should point out that implementing our preferred option can be achieved through secondary legislation, using powers in the Private Security Industry Act 2001.
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- Lord Newton of BraintreeConservative
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- My Lords, before the Minister sits down—which I believe is the right formulation—I wish to place on record, in order to ensure some clarity in Hansard, that when I referred earlier to Amendment No. 96, my memory had failed me and it was actually Amendment No. 93.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am sure we are all grateful for that clarification. I hope that the noble Lord, Lord Lucas, will feel able to welcome what we have been able to do and withdraw his amendment.
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- Lord LucasConservative
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- My Lords, I indeed welcome what the Minister has done. One always hopes that one’s own particular remedies will be adopted, but clearly the Government have identified the same disease as we have, and have chosen to treat it in their own way. I shall do everything I can to support their effort and encourage others to do the same. There has been a great gathering together of the industry and those interested in it over this Bill. I give particular thanks to Philip Evans, who has been helping me throughout this effort, but many people have played a part, and I am glad it has had such a useful outcome—almost. The point about establishing a mechanism to enable people who are aggrieved about the behaviour of enforcement agents to have an effective route of appeal is crucial. We do not have an effective system if we do not have that. I should be grateful if the Minister would agree to meet me to go over that point and to see what can be done and where we find ourselves. If we cannot get a satisfactory answer on that, the issue is one on which we should seek an amendment to the Bill.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am not sure that it is a matter of amending the Bill, because I am talking about a consultation process, and those issues are contained in it. I will of course be delighted to meet the noble Lord to seek to address his point, but I am not sure that it is an amendment to the Bill that he looks for; it is the outcome of the consultation that will tackle it.
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- Lord LucasConservative
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- My Lords, I thank the Minister, but amending a Bill is all that I can do. One has to be conscious of one’s own limitations. An amendment would at least carry the arguments through to the Commons, where I hope that it might prompt further thinking by the Government. I am grateful to the Minister, and to her officials in the Box and others for their efforts. They have been immensely helpful throughout the passage of the Bill. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 75 not moved.] Clause 56 [Certificates to act as an enforcement agent]:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 76:
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- Lord Thomas of GresfordLiberal Democrat
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- moved Amendment No. 79:
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord. I hope that my speaking note will completely reflect what is in the letter. Perhaps the letter will reach me in the next few minutes to make sure that it does—I left my copy of it behind. The critical point which the noble Lord has rightly accepted is that we are concerned that the impartiality and discretion of the judiciary are not interfered with when considering whether to grant an application for a charging order or order for sale in respect of debts regulated by the Consumer Credit Act. I am confident—I am sure that the noble Lord is, too—that judges will consider applications for the granting of time orders made in the proper manner, but to require them to do so would be to ask them to take the debtor’s side in the case. That could leave them open to a charge of bias. It is not the first time that this proposal has been raised. It was raised in the course of consultation on proposals for reforming the consumer credit regime in 2002 and 2003. The judiciary does not wish to have this responsibility foisted upon it, because it believes that it would compromise its impartiality. The noble and learned Baroness, Lady Butler-Sloss, who is not in her place, reinforced in Grand Committee the need for any decision regarding the granting of a final charging order to be a judicial decision, and subject to judicial discretion. Under our proposals, therefore, even where a debtor is complying with an instalment order in a judgment, the court has discretion to make a charging order to give security to the creditor. However, the charge property may not be sold unless the debtor defaults in making payments under the instalment order. The charging order system is neither automatic nor administrative. The final charging order hearing is held before a judge, and all parties are able to participate in it. Each case is treated on its merits. The judge has complete discretion whether to grant the charging order or to place conditions on the granting of it. Therefore, an order will be granted only where the judge feels that it is appropriate. That is a critical part of the Bill. The noble Lord reflects in his Amendment No. 81 our current thinking on timing. We agree that the new powers contained in Clause 85 should not come into effect until the protections contained in Clause 86 come into effect. We do not think that we need to place such a provision in the Bill, but I hope that the confirmation of that will reassure the noble Lord of the Government’s intention. I hope that I have put on the record what the noble Lord was seeking and that he is able to withdraw his amendment.
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, I am grateful for that response. It seems that the individual circumstances of the judgment debtor will be looked at; the judge will exercise his discretion accordingly; and the rights of both parties will thereby be preserved. On that basis, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 80 to 82 not moved.] Clause 86 [Charging orders: power to set financial thresholds]:
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord for supporting the thrust of what we are seeking to do, and I hope that I shall be able to reassure him. The financial thresholds will prevent a charging order or order for sale being made in relation to a debt falling under the threshold, our aim being to protect vulnerable debtors where the debt being pursued is disproportionately small. This is particularly important because the Bill introduces measures which will allow creditors to apply for charging orders in circumstances where the debtor is not in arrears with an instalment arrangement. We need to maintain a sense of fairness between creditor and debtor, and ensure that the vulnerable are not subject to over-zealous pursuit for relatively small debts. Recommended thresholds could be ignored and contradict the principle that we are seeking to establish. Our approach to financial thresholds is found elsewhere in the civil justice system, not least in the administrative order procedure. We hope that that will be the principle on which we operate. Guidance for the judiciary already exists and the proper place for recommendations is in judicial guidance rather than in legislation. I can confirm to the noble Lord that my officials are already in contact with representatives from the water industry, with a view to ensuring that they are fully involved in the consultation on the level at which the thresholds should be set and that their concerns are taken into account. They cannot cut people off—rightly so—but they are concerned that they should be able to act appropriately. In that context we shall be looking at how the debts add up. Those representatives want to act in a proportionate manner.
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 87:
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- Lord Maclennan of RogartLiberal Democrat
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- My Lords, I express the strong gratitude of these Benches for the work that the Government have done to meet the concerns expressed on Second Reading about the possible impact of the understandable wish to meet the desires of museums and galleries to continue short-term loans while taking all possible steps to protect the interests of those who might have an interest in art which has been the subject of spoliation. It is not, of course, possible for one country or one Government wholly to deal with what is essentially an international problem. I hope that the Government will think it right to raise these matters in an international forum, probably UNESCO. Similar publications to those proposed in the very useful Amendments Nos. 87 through to 89 would carry even greater clout if they were replicated on a wider stage. The Government have responded magnificently to the representations which were received and have sought all practical ways of dealing with a difficult problem.
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- Lord Lloyd of BerwickCrossbench
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- My Lords, I, too, wish to say a few words on these amendments. This part of the Bill is concerned with the problem of looted art, although that phrase is not used in the Bill. However, I think that we all know what it means. The purpose of this part is to protect museums and galleries that wish to exhibit foreign works of art which may have been looted. Obviously, they do not wish to be involved in expensive legal proceedings. The pressure for this part of the Bill comes from them. One can see their point, especially as this matter involves a departure from the ordinary rules of English law. But there is another side to the matter: those who claim to be the owners of the works of art in question. The last thing they want is for the works of art that they claim to be theirs to be exhibited in this country, and that exhibition to be used as a shop window for the sale of what they claim to be their works of art. As I understand it, there would be no way in which such a sale could be prevented. The purpose of the amendments, which is very beneficial, is to give some assurance to such people. My only suggestion, in welcoming the amendments, would be that they might go a little further, and that when the regulations are made there should be a specific regulation that the protection will not be afforded to works of art coming to this country about which there is reasonable ground to believe they may have been looted. I am told—this point was made to me by someone who has made a considerable study of this subject and has had some personal experience—that that is the equivalent provision in the comparable German legislation. I just hope that when the regulations are made there could be some provision to that effect, to give further protection to the claimants.
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Lord Janner of BraunstoneLabour- Quote
- My Lords, first, I thank the noble and learned Lord, Lord Lloyd, for his comments. The one thing I am sure that he would not wish to do is to give the impression that he wants to prevent sales. Certainly what all of us want to do is to ensure that stolen goods do not come here in that way, where they have the protection of the law while they are here, so the owners have no access to them and they will then disappear again afterwards. I thank and commend my noble friend and her department for the work that they have done on the Bill and the amendments that they have tabled since it received its Second Reading in early December. I am especially grateful that she and her team, and that of the Minister for Culture, David Lammy, have noted my particular concerns. I declare an interest, because nearly all my family were murdered in the Holocaust. This Bill gave no access to people if they found that family paintings or other objects of art were being sold. I am grateful that the Government are dealing with the question of immunity for exhibitors of spoliated art, as mentioned in Part 6. I thank my noble friend for her assurance that proper standards for provenance research and due diligence will be introduced and enforced. I am delighted that the Secretary of State will grant immunity only to institutions adhering to appropriate standards and that there will be government oversight to ensure that these standards are continued. I have been assured that the standards and methods for this research will be clarified in future regulations; I hope that the Minister will confirm that. I look forward to consultations with my noble friend and other colleagues whenever they may be useful. I am also pleased that methods of presenting the research will be created. I hope that we can agree not only on such methods but on how they should best be publicised. Once claimants visit the register and recognise artwork that they know or believe to be theirs, they will now have what they have not had before—the opportunity to pursue their claims in the countries of origin. I call on the Government to give people the opportunity to pursue their claims in the countries of origin and to establish procedures that will enable claimants to obtain advice on how best to approach such legal proceedings in foreign jurisdictions. I trust that they will create and maintain a library of helpful information on those processes and provide the necessary support for claimants’ campaigns for justice. I know that my noble friend and her team recognise my deep concern that victims of the Holocaust do not suffer further unnecessary injustices, and that they will do all that they can to ensure that does not happen. I will welcome the opportunity for further discussions on these matters. Again, I thank her for her concern and for that of her department and colleagues.
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Lord Howarth of NewportLabour- Quote
- My Lords, I add my expression of appreciation to my noble friend for all the care that she has taken to reconcile the variety of reasonable and proper requirements that the Government have sought to meet in this legislation. She has proceeded with great sensitivity, and the amendments are thoroughly constructive and are to be welcomed. Amendments Nos. 88 and 89 would allow the Secretary of State to introduce a system of discretionary immunity from seizure, as opposed to the system of automatic immunity that the museums and galleries originally asked for, and which was provided for in the Bill until these amendments were tabled. The Secretary of State could require institutions to publish in advance a list of objects that they proposed to borrow from abroad to exhibit in this country. That would bring us into line with legislation and practice in numerous other jurisdictions, including Switzerland, where most recently anti-seizure legislation was enacted. The benefits would be that a discretionary system would allow someone to make an objection, in advance of the exhibition, about the inclusion of an item that was considered inappropriate to be exhibited because of dubiety concerning its legal and ethical status. To that extent, it makes it less likely that exhibitions in this country would be tainted by the presence of objects whose provenance and ownership were unsound. It would perhaps enable a claimant to identify the whereabouts of an object that had been lost sight of and the location of which the claimant no longer knew. On the other side of the fence, it would alert a lending institution to the risk that an action might be brought to make a claim to such property, and to that extent it may discourage lenders from lending. I cannot see that the provision would improve the prospect of a claimant achieving satisfaction in the UK courts, unless of course the claimant refrained from raising an objection when the list was published. But there is a wider moral point—it was powerfully expressed by my noble friend Lord Janner, as always, and by the noble and learned Lord, Lord Lloyd of Berwick—that it is simply indecent that stolen art should be paraded in exhibitions around the world. The objection to advertising an intention to borrow particular cultural objects and to particularise them in a list was made by museums and galleries that were worried about the administrative complexity and the cost of the procedure. Would there be any significant increase in complexity and cost for museums and galleries if they were practising due diligence with the thoroughness that the Government already specify in guidance? I think not. I would go further and say that the publication of a list of cultural objects that they are minded to borrow, with the invitation for people to comment, should be seen as an aspect of due diligence and as an enhancement of the process. It would be useful if a borrowing institution that perhaps is otherwise not very well placed—whether due to a lack of resources or a lack of availability of relevant documentation—to conduct the research that due diligence requires, and thereby is perhaps excessively reliant on the information provided by the lending institution, had available to it new sources of information that arose because of the consultation process. Trustees and staff of museums and galleries are, almost by definition, civilised people, but it is not their duty solely to promote appreciation of art; they ought to be good citizens and they should be anxious to adopt procedures that guarantee that they will not breach propriety and they should be willing to support their fellow citizens in having access to justice. That is the spirit in which Sir Nicholas Serota and the committee that he chairs under the auspices of the National Museum Directors’ Conference has proceeded for several years past—and that should be recognised. So I hope that museums and galleries will accept these amendments without demur. I have one question for the Minister about Amendment No. 89, which is permissive only. It states: “The Secretary of State may make regulations requiring a museum or gallery to provide … specified information about an object”. May we take it that it is the intention of the Secretary of State and of the other UK authorities to introduce such regulations and is my noble friend able to give the House any inkling of what they might provide? I ask that particularly in relation to timescale. How far in advance will museums and galleries have to publish the details of their intended borrowing? It is generally agreed that the provision in Switzerland that 30 days’ notice should be given is, in practice, too short; it does not allow people who are likely to be working across international frontiers to have the time they need to investigate the status of an object, take the advice that they require and then to register their objections. On the other hand, we should not prolong that process beyond what is genuinely reasonably necessary, because lead times for the organising of great international exhibitions are formidably long and, for entirely understandable reasons, agreements on the loan of some items are often reached at a late stage. I have noted that my noble friend said that the department would consult museums and galleries on this matter. Will the department consider also publishing the regulations in draft, so that there can be wider consideration of them before they are enacted? Amendment No. 90 would introduce a new clause that would elaborate on the face of the Bill the Government’s requirements in respect of due diligence. I suspect that the amendment is technically unnecessary, but it is helpful that the language of the legislation should be made plainer and the policy clearer to those who are not specialists in this field. It is right that the Government should be required not just to consider the declared procedures of an institution in carrying out due diligence to establish provenance and ownership, but they should also ensure that those procedures are more than notional. Therefore, it is right that the Secretary of State should be required to satisfy herself as to their compliance with the best practice guidelines that she publishes. Will the Minister say something about how the department will monitor that compliance and will she clarify some elements in the current guidance, Combating Illicit Trade? At section 3, it is roundly stated: “Museums should acquire and borrow items only if they are legally and ethically sound”. Can my noble friend either now or, perhaps more likely through one of her ministerial colleagues at the DCMS in due course, cast light on some illustrative cases? I understand that the Government’s position is that although objects that were wrongfully taken in the Nazi era may be protected in their present ownership by the expiry of limitation periods, they remain ethically unsound and should not be acquired or borrowed by public collections in this country. Is it similarly the Government’s view that objects that were forcibly expropriated without compensation, for example by the Bolsheviks, are protected in their present ownership by sovereign immunity, but also remain ethically unsound and should not be borrowed for exhibitions in this country? What is the Government’s view—
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Lord Evans of Temple GuitingLabour- Quote
- My Lords, I am extremely sorry to interrupt my noble friend, but there is a strong feeling that he is making a Second Reading speech and a great number of his remarks are general and not specifically related to the amendments that we are considering.
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- Lord Howarth of NewportLabour
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- My Lords, I take the admonition of my noble friend. I am endeavouring to speak to the amendments and it is not unimportant that Parliament should be seen to have scrutinised this legislation; but I certainly appreciate the force of what he said. Do the Government consider that an institution should not be able to borrow objects that were taken at one time by Chiang Kai-shek to Taiwan and are now claimed by the People’s Republic of China as its property? What would be the view of the Government in monitoring compliance as to the propriety of an institution seeking such loans from St Petersburg or Taipei? In what respect does this anti-seizure legislation alter the position that applied previously? These are real and pertinent questions of genuine concern to important institutions in this country that will want to know the answers; I hope that the Minister will advise us on these matters in due course. Finally, I wish to ask the Minister about subsection (3) of Amendment No. 90. Why is the power made discretionary regarding the withdrawal of approval where the Government consider that the, “institution’s procedures for establishing provenance or ownership of objects are inadequate”? Is it not the case that sauce for the goose should be sauce for the gander? Why should not the rigour that the department enjoins on museums and galleries be applied to itself? If an institution falls short in its practice of due diligence, perhaps the Secretary of State should have a duty to withdraw approval. Why is “may”, rather than “must”, written into this amendment? Is it to protect the Secretary of State from the possibility of a suit on the part of a frustrated claimant? If so, is that a good enough reason? Are the Government willing to consider amending this amendment at Third Reading by substituting “must” for “may”?
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to all noble Lords who have spoken and for the general welcome that has been given to these amendments. I pay tribute to the officials at the Department for Culture, Media and Sport, who have been nothing short of magnificent in helping me to sort out the amendments; noble Lords will know that I am not an expert on art or on the workings of that department, so I am grateful to my honourable friend David Lammy, who has been extremely supportive and who has met a number of organisations. I agree with the noble Lord, Lord Maclennan, that we should be keen to talk to our international partners and colleagues about what we have done in this legislation and I agree with what he said about clout being important in this context. Overall, I agree with the noble and learned Lord, Lord Lloyd of Berwick, on the powerful moral point that lay behind many of the discussions that we had at Second Reading and in Grand Committee and I hope—in fact, I know—that noble Lords will feel that what we have brought forward attempts to deal with that, while recognising that, sadly, there are issues that we cannot deal with in the way that we would like to. I am grateful for the comments of the noble Lord, Lord Janner. I confirm that the standards will be met in the way that my noble friend asked, and I will look at the whole question of legal proceedings. We will give serious consideration to the point that was made about helping claimants to pursue claims in other jurisdictions. We appreciate how difficult that can be and we will certainly explore whether it would be possible to make other information available for that purpose. The noble and learned Lord, Lord Lloyd of Berwick, asked about the protection that should not be afforded to works of art that we have reasonable grounds to believe are looted. All major museums in this country accept that works of art that have been looted should not be exhibited and it is not the intention of these provisions to enable them to do so. Approval of museums will be dependent on their demonstrating that they have due diligence procedures that will ensure that, when objects are borrowed, there is an appropriate way to take this forward. Publication of information about objects will, we hope, provide a further safeguard, enabling concerns about particular objects to be raised and ensuring that objects identified as looted are not exhibited. My noble friend Lord Howarth raised a series of issues. I met my noble friend in the hope that I might have been able to tackle some of these issues. I apologise that, inevitably, I do not have the detail at my fingertips. I will try to deal with as many of the issues as I can, with the promise of writing to my noble friend and placing a copy in the Library. We have considered the different forms of community legislation adopted in other countries. In particular, we considered whether a discretionary system such as that in Switzerland, which requires museums to submit an application for each exhibition, would provide sufficient benefits to outweigh the costs and concluded that it would not. The major benefits can be achieved by requiring museums to publish information about each object, as we propose. We think that that would be a better way forward. We intend to publish regulations and will be discussing what the appropriate timescale for publication should be both with interest groups and with museums and galleries. We are currently considering requiring publication of information two months before the start of an exhibition. We will refine that in consultation, if it is required. We appreciate that undertaking due diligence investigations into the provenance and ownership of cultural objects that the museum wishes to borrow will require museums to devote resources to this. As my noble friend says, our museums have already committed themselves to this by accepting the guidance on due diligence issued by the department and endorsed by the Museums Association and other professional bodies. It may be the case that some museums feel that they do not have the resources to meet the standards. No museum is obliged to apply for approval for the purpose of the amenity; it is up to the museum to decide how to spend its resources. My noble friend asked whether the museums and galleries would be consulted on the content of regulations and whether draft regulations would be published. We will be consulting museums, galleries and interest groups on the detailed content of our regulations and they will be shown drafts of the regulations. No final decision has been taken over a formal publication of the draft. As for objects appropriated without compensation in, for example, the Russian Revolution—my noble friend gave other examples—these are quite difficult questions. I know that he intends for me to write to him or for my colleagues to do so. I will ensure that that happens and that, as I indicated, copies are placed in the Library of the House. My noble friend also asked how compliance with due diligence guidance will be monitored. Museums will be required to submit detailed information on their procedures, including how they will investigate provenance and ownership of the objects that they propose to borrow and how these procedures are operated in practice. They will be expected to apply the DCMS guidance and they will be subject to a programme of spot checks to make sure that that is actually happening. Finally, I was asked about changing “may” to “must” in Amendment No. 90 to oblige the authority to withdraw approval. We do not think that that is appropriate, because the approving authority would have to consider all the circumstances. It may be the case that official failure has been immediately rectified by the museum concerned and we think that it would be unjust to have mandatory withdrawal. But I say that within the context that, if museums do not do this, approval would be withdrawn without question. On Question, amendment agreed to.
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 88 and 89:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 90:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 91:
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord for returning to this issue and for indicating his purpose beforehand. As he rightly points out, Rule 54.19(3) covers similar ground to that contained in Clause 132. The rule is, however, drafted in a slightly different way from Clause 132, as he said, and is rather ambiguous. We do not consider it satisfactory. I will therefore ask the Civil Procedure Rule Committee to amend the rule in order to ensure consistency with Clause 132, and I hope that it will look favourably on that request. I hope that that reassures the noble Lord and that he now feels able to withdraw his amendment.
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- Lord Newton of BraintreeConservative
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- moved Amendment No. 93:
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord, Lord Newton. I agree that the provisions that the amendment proposes to repeal, which, as the noble Lord said, go back to the original ombudsman legislation 40 years ago, could get in the way of effective and efficient redress of grievances and resolution of disputes. Much has changed in the courts, tribunals and ombudsman world. We need provisions that reflect a more sophisticated understanding of the proper relationship between these institutions. I accept that we may well need to get rid of the absolute bar on ombudsman action when legal proceedings have been commenced. However, as the noble Lord knows, I need to take the opportunity to consider whether further measures might also be needed to achieve the desired result. I also want to take the opportunity to consider whether there are other ombudsmen to whom any changes should apply, such as the Public Services Ombudsman in Wales. I am sure your Lordships will agree that these are important issues. I am keen that we should get them right. If the noble Lord agrees and is prepared to withdraw his amendment, I am happy to undertake to consider the matter further and come back to it at Third Reading.
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- Lord Newton of BraintreeConservative
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- My Lords, as ever, the Minister could charm birds out of trees. On the basis of what she has said, I am happy to beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 135 [Protected functions of the Lord Chancellor]:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 94 and 95:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 96:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 97 and 98:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 99:
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