3rd reading in the Lords
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The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)Labour- Quote
- My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Tribunals, Courts and Enforcement Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill. Bill read a third time. Clause 18 [Limits of jurisdiction under section 15(1)]:
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Lord Lloyd of BerwickCrossbench- Quote
- moved Amendment No. 1:
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Lord Maclennan of RogartLiberal Democrat- Quote
- My Lords, I rise to express satisfaction that there has been such dialogue with the Lord Chief Justice. That appears to have arrived at a conclusion that both combines the objective of ensuring that judicial review is properly conducted in the upper tribunal by those with the authority to do so, and to discharge that extremely important role to complete satisfaction. It is also satisfactory that the Lord Chief Justice has found an administratively convenient way to seek to give effect to the principle behind the amendments of the noble and learned Lord, Lord Lloyd of Berwick. We supported the noble and learned Lord’s earlier proposals and we are happy to transfer our support to the amendment today. We hope that it enjoys a positive response from the Government.
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Lord Campbell of AllowayConservative- Quote
- My Lords, I support Amendments Nos. 1 and 2. Judicial review is a discretionary remedy, in which the powers of the upper tribunal are set out in Clause 12. The exercise of such powers requires judicial expertise, as proposed by these amendments, as a safeguard for due administration. Statutory provision as judicial review, which this is, in no way alters the essence of the discretion, which goes to the root of the grant of leave and the grant of relief on substantive hearing. There is no entitlement to grant of leave and no entitlement to relief on hearing. This form of judicial relief, taken from the old prerogative writs, has been developed since the last war, which was not so long ago, in a form of administrative law by judge-made decision in the High Court and the Court of Appeal, and will no doubt continue to do so. We are concerned here with a point of law. True, if proportionality arises—which can, but need not, be a point of law—the facts must come into consideration. That is a matter of very expert judicial attention, not to be exercised by anyone other than a High Court judge or a member of the Court of Appeal. It is not always understood, so I shall say so, that this process is not an appellate process. It is not concerned with the merits, but with what is, in a sense, a technical, procedural question in which this expertise, as proposed in these amendments, is wholly essential.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am extremely grateful to the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Kingsland, not least for the work that they have done today in helping us to reach what I hope will be a very satisfactory conclusion. I am extremely grateful that the noble and learned Lord, Lloyd of Berwick, and the noble Lord, Lord Kingsland, have tabled revised amendments, which incorporate the flexibility that this whole Bill seeks to achieve for tribunals. Amendments Nos. 1 and 2 retain the noble and learned Lord’s original concept: that judicial review cases transferred to the upper tribunal are to be heard by High Court judges or their equivalent. They also acknowledge that the Lord Chief Justice, the Lord President or the Lord Chief Justice of Northern Ireland, together with the senior president, can agree on others they consider suitable within the terms just described by the noble Lord, Lord Kingsland. On Report, the noble and learned Lord, Lord Lloyd of Berwick, tabled amendments which would have permitted only High Court judges or their equivalents to hear applications. The noble and learned Lord did not press the amendments and we agreed to explore further, not least with the Lord Chief Justice, what we might then do. The Lord Chief Justice wrote to me on 7 February and set out his thoughts, copying his letter to the noble and learned Lord, Lord Lloyd, the noble Lord, Lord Kingsland, the noble Lord, Lord Thomas of Gresford, and Lord Justice Carnwath. The Lord Chief Justice was sympathetic to the issues raised, but did not support this amendment, because, “some cases in the Upper Tribunal will need High Court judges to hear them, and I intend to make such judges available to sit on those cases. However, it is imperative that there is flexibility in relation to the circumstances where cases should be transferred to the upper tribunal, and flexibility as to who they will be heard by”. That flexibility would be disturbed if the Bill included a provision limiting such cases to High Court judges, regardless of the circumstances of the case. There are some persuasive examples of cases where judges of the upper tribunal will have the expertise to handle particular cases in the most appropriate way. Technical tax cases, for example, have been mentioned in our discussions. Given that Amendments Nos. 1 and 2 meet the requirements of the Lord Chief Justice, as well as those of the Government, I am pleased to be able to accept them. I am sure that, as the noble and learned Lord has said, as the Bill progresses, we will look again at Amendments Nos. 3 to 5. We will, of course, look at Amendment Nos. 1 and 2 to make sure that we have got this absolutely right. I am delighted to accept Amendments Nos. 1 and 2 and I am grateful to the noble and learned Lord for agreeing not to press Amendments Nos. 3 to 5.
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- Lord Lloyd of BerwickCrossbench
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- My Lords, I am also grateful to the noble Baroness for the courtesy that she has shown me throughout. I ought, perhaps, to apologise to the House for not repeating the speech I made on Report on the importance of preserving the distinction of the High Court judge. I thought that could be taken as read. Anyway, the point has been underlined, both by the noble Lord, Lord Campbell, and of course, by other speakers. On Question, amendment agreed to.
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- Lord Lloyd of BerwickCrossbench
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- moved Amendment No. 2:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 6:
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Lord GoodladConservative- Quote
- My Lords, I thank the Minister first, for accepting the amendments that I moved on Report with the support of my noble friend Lord Newton of Braintree, my noble and learned friend Lord Lyell of Markyate, the noble Lord, Lord Thomas of Gresford, and my noble friend on the Front Bench. Secondly, I thank her for her explanation of the consequential amendments, which have resulted from her further consultations. I would be happy to support them and thank her for her part in a helpful scrutiny, making this a stronger Bill than it would otherwise have been.
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Lord Newton of BraintreeConservative- Quote
- My Lords, as one of my noble friend’s accomplices in this matter I join in thanking the Minister for her positive response. I noticed the difference, to which she has referred, between the new clause inserted on Report and the modification of Schedule 8 proposed today in her amendment. I was going to quiz her about it but she has predicted that someone would, so I will not. Having met those conducting the review of employment tribunal matters only last week, I understand the noble Baroness’s point and think it is a reasonable explanation of the difference. I have one other more general point, on which the answer may be clear to the lawyers who read the provisions but not to me. They seem to be couched in terms of which staff or members of tribunals can carry out mediation or receive fees for it. However, very few staff currently in the system will be trained in, or have experience of, mediation. Outside the tribunal service a significant number of people have experience in and are trained in mediation. If the Minister cannot give me an answer to my question off the cuff, I would like her to write to me. Is it envisaged that it will be possible to use people outside the service to provide mediation? It would seem sensible to at least provide for that opportunity.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord, Lord Newton of Braintree. I can confirm that it would be possible under the legislation to use those outside the tribunal. I am extremely grateful to the noble Lord, Lord Goodlad, for welcoming these tidying up amendments and recognising the change that I made. I hope that noble Lords will accept the amendments. On Question, amendment agreed to.
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 7:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 8:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 9 and 10:
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Lord LucasConservative- Quote
- moved Amendment No. 11:
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Lord Clinton-DavisLabour- Quote
- My Lords, should not monitoring follow a complaint? It is, in my view, unwise to monitor regardless of that.
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- Lord LucasConservative
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- My Lords, I shall be satisfied whichever direction the Government take on that, so long as it is understood that the regulator has that ability. As the noble Lord says, or implies, monitoring without a complaint tends to evolve into monitoring for its own sake. When I take my daughter to nursery school, I have to sign her in and out morning and evening. Why? No one will use that register. It is just a bit of monitoring that Ofsted has put there for the sake of it. I would like to avoid that. If complaint-related monitoring is the way to do that, that seems a reasonable course for the Government to take. However, I do not want a regulator that sits there believing that mischiefs are taking place but thinks that it can do nothing until someone complains, because that is another mischief. If it has to wait until there is an active complaint, rather than saying, “No, this is going the wrong way. The reputation of the industry is being damaged even if we do not have an individual complaint”, that would be a mischief also. How can one tell? This creature does not yet exist. I hope that it will be well regulated and perform better than the SIA in its early days. However, it has to be able to investigate complaints; otherwise it will have no teeth at all. If someone approaches a regulator saying that a bailiff has misbehaved and it can do nothing about it, then the regulator will have no effect. I want a commitment from the Government to an investigatory power and practice which is open and which goes beyond that which the SIA has chosen to exercise. The SIA does not tell those who have complained what the results of its actions have been, which seems entirely inappropriate in the case of bailiffs. At the end of the day, it must have the ability to exact fines or the cessation of licences in a way which hurts a serious business enough for it to sit up and take notice. On the other hand, I would not like to see bailiffs regulated in the way that teachers are regulated. If teachers have a complaint made against them, they are suspended and can spend one or two years sitting around waiting for adjudication. I do not think that is necessary in the case of bailiffs, except in extreme cases. Generally, if you are trusted to be a bailiff in the first place, you are trusted to continue in the business until you are found to have done wrong. I am looking for something not heavy-handed but which has real force and where the big boys in the business—who are always going to carry most of the business because they will have the big local authority and government contracts—will want to behave and will regulate themselves because the consequence of not doing so could be to lose the business altogether. If I can have not comfort but commitment from the Government that they will see this through, I will be content to withdraw the amendment. For now, I beg to move.
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- Lord Maclennan of RogartLiberal Democrat
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- My Lords, we have seen considerable movement in this sphere of regulation and enforcement during the debates on this Bill and so far they have been in a positive direction. At an earlier stage the Minister said that there was no lack of will on the part of the Government to do something about regulation but there was some uncertainty about the mode of doing it most effectively. The sole purpose of my intervention behind the noble Lord, Lord Lucas, whose work in this sphere has evoked admiration across the House, is simply to inquire whether the Government intend that the options on which they are consulting should not be confined by the timing for the remaining stages of the Bill, excluding the possibility of including provisions which satisfy the concerns expressed by many consumer bodies, including citizens’ advice, that the SIA is not, through a regulatory process that it might devise, necessarily the best way to proceed. I hope that the Government will avail themselves of the opportunity to reach a conclusion on matters that have given rise to concern. Before the opportunity for amendment of primary legislation ceases, it may be necessary to take account of the concerns voiced.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am extremely grateful to the noble Lord, Lord Lucas. He has, as the noble Lord, Lord Maclennan of Rogart, said, worked tirelessly on this issue. He has held me to account in many ways and ensured that the Government have moved considerably to address his concerns. I am more than happy to give him as much commitment as I can, not on my own behalf, important though that may be, but on behalf of the Government, because it will be a team effort to bring in this provision. I said when we discussed this issue previously that we plan to lay the regulations by the summer. That is our timetable; it will be an important conclusion. I hear what the noble Lord, Lord Maclennan of Rogart, says about primary legislation and I understand the desire for it; in a sense it is where I began. However, we believe that we have the legislation in place and that we need to use the regulations in the Private Security Industry Act 2001 to enable us to do this. The noble Lord, Lord Lucas, is also right to say that we must make sure that we get the regulator right, which is what lies behind the proposals of the noble Lord, Lord Maclennan. The regulator must be able to do the job. I have already made that commitment to those in the industry itself, who are of course keen to see this come into being. We will work as closely as we can with the industry to ensure that regulation is robust and proper and that the regulator can carry out its functions. On the amendment before us, what I cannot commit to is a 12-month timescale because I do not yet know what the timetable will be. However, I can make a commitment to lay the regulations before Parliament. That in itself will give us another opportunity to consider and debate in more detail what is to happen. I hope that what I say now will satisfy the noble Lord and allow him to withdraw his amendment in the recognition that we are planning to do what he seeks to achieve. Our proposal means that all enforcement agents who are not Crown employees will be licensed by the SIA and that there will be no exceptions. The noble Lord, Lord Lucas, asked on Report whether there might be exceptions for some employees of large companies where a significant proportion of the employees are already licensed. That will not be the case. I should add that licensing will also apply to managers and supervisors in companies directing enforcement activity. Through regulations we want to drive up standards across the industry, in particular by setting strict competencies and conditions for those individuals who apply for a licence. On punishment for failure to comply with standards and redress, as I said on Report, a whole range of offences is set out in the Private Security Industry Act and specifies penalties where any person contravenes a condition of the licence granted to him. The penalty for this is a term of imprisonment not exceeding six months, a fine not exceeding £5,000, or both. The SIA also has the power to revoke or modify licences. These sanctions represent the most serious end of the scale, of course, and I understand that the SIA also uses sanctions such as written warnings and improvement notices as part of its compliance activity. Further details of those are set out in the enforcement policy code of practice. Along with other regulators, the SIA is considering whether it wishes to take on additional or alternative powers as recommended by Professor Richard Macrory in his independent review of regulatory penalties. I agree with the noble Lord that it is vital for debtors to have access to a workable system for complaints and redress. My officials are committed, as are the Government, to developing appropriate procedures with their colleagues in the SIA and the Home Office as well as with stakeholders across the system. For example, we need to consider what role might be played by alternative dispute resolution in this. For a complaints system to be effective, debtors as well as enforcement agents need to be aware of their rights, particularly in relation to the powers available to agents. I believe the Bill is clearly drafted in this respect, but my department wants to ensure that information about these rights is clear and accessible to the public. This will be achieved through information leaflets and so forth. Finally, although Crown employees will be exempt from regulation, I am committed to ensuring a common set of standards and a common appearance across the enforcement industry. I hope that the word “commitment” has been used sufficiently often for the noble Lord to feel that I have addressed the concerns he has raised.
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- Lord LucasConservative
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- My Lords, I will withdraw the amendment. The noble Baroness has continued in her tradition of helpfulness on this and has gone far enough. As I have said, I hope that this argument is raised again in the Commons because it requires to be tested in terms of whether the Government’s chosen route is the right one. Given that this is the way they are going, I wish them every good fortune and beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Schedule 2 [Judges and other members of the First-tier Tribunal]:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 12:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 13:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 14:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 15:
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- Lord LucasConservative
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- moved Amendment No. 16:
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Lord Beaumont of WhitleyGreen Party- Quote
- My Lords, I speak in support of Amendment No. 19, which seeks to leave out line 33 at page 210. I remind noble Lords whose attention may not necessarily be concentrated on this particular matter that line 32 states: “A power to use force does not include power to use force against persons”. Line 33 continues, “except to the extent that regulations provide that it does”. Those are slightly weasel words. In supporting Amendment No. 19, I refer to what the noble Baroness said on Report: “There are no secret instructions. I would be more than happy to talk about how we intend to talk to the industry and share what we will be doing next with noble Lords as far as I can. There is no secrecy on my part; I find that practically impossible. We want to be as clear as we can. The greater clarity comes because we will be as open as possible. I reassure the noble Lord, and trust that he will hold me to that as we progress from legislation to action”.—[Official Report, 31/01/07; col. 272.] I take the noble Baroness at her word. The noble Baroness has now been sent a copy of the Magistrates’ Courts Guidance—Search and Entry Powers (Domestic Violence, Crime and Victims Act 2004), which, as I said on Report, has 31 pages, on 15 of which paragraphs have been blacked out. One or two whole pages have been blacked out. They are secret instructions about which she obviously had not been informed. This was sent to the Reverend Paul Nicolson by the Access to Rights Unit at the DCA after he had sought a review of the department’s decision not to tell him when the last resort had been reached that would enable a bailiff to break into domestic property to enforce a fine, who makes that decision and under what circumstances. Secret guidance of this kind is particularly worrying because, although this Government will not implement regulations allowing restraint of debtors by bailiffs unless necessary, any other Government of whatever hue might slip them in without telling anyone, while letting the circumstances of their implementation disappear into the invisible guidance. The noble Baroness has also been sent a copy of counsel’s opinion on the department’s decision and the invisible guidance by Alan Murdie, a barrister trustee of the Zacchaeus 2000 Trust. It is strange enough that there should be any secret instructions to a bailiff about how to break into a domestic property and seize goods, but it also seems that the grounds for withholding information under the exemptions allowed in the Freedom of Information Act are extremely flimsy. The information is withheld because it would be likely to prejudice the prevention or detection of crime under Section 31(1)(a) of the Freedom of Information Act. Bailiffs enforcing a fine have a court order to collect the money owing. There is nothing in that order that requires them to undertake “Hercule Poirot” activity and the detection of crime. Also, that section of the Freedom of Information Act does not apply in the present context, because enforcement of a fine is a civil matter, not a criminal one. Constitutionally and legally, fine enforcement is the collection of a debt payable to the Crown. Mr Murdie also says that it is important to note that until 27 March 2006, the law of bailiffs relating to fine enforcement could be established in law with sufficient clarity, and could be discovered by any interested citizen and their representative. Nothing was concealed, and the enforcement of justice was an open matter. He suggests that the Domestic Violence, Crime and Victims Act and this Bill are not compliant with human rights law, in which the actions of the state affecting the citizen must be clear and be capable of being stated with certainty. He suggests too that there is a public interest in understanding what can be done if bailiffs act in a way, while enforcing a fine, that gives rise to a complaint. Unless citizens and their representatives know what procedures the Government require the bailiff to implement, they cannot know whether they have been kept. There are other points in his opinion, but I will not labour the point any further. I would be grateful if the noble Baroness could shed some light on a very puzzling and rather murky area of her department’s decision-making.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Lord, Lord Lucas, for returning to this issue. Noble Lords will recall that on Report we had a bit of confusion about the power of re-entry and about whether judicial authority should be available in that context. Noble Lords might recall, too, that one of the concerns was that some of the advice agencies were worried that if judicial authority were needed for re-entry to be enabled, that might encourage some bailiffs to take goods on the first visit. I have been looking at that, and we are in discussion with the industry and with the advice services. We have powers in paragraph 13(3) of Schedule 12 and paragraph 24(1) of Schedule 12 that would enable me to look at that through regulations to ensure that we deal with it appropriately when, for example, we are ensuring that we set out the criteria that should be followed the first time that people enter premises, so that it does not become a matter of course that they take goods on that first visit. Also, that would make getting judicial authority for a re-entry as simple and easy as possible, thereby reducing the incentive to take goods on the first visit. I wanted to say that at the beginning, because that was an area that we discussed at length, and I hope that I have tackled that. I hope that I can give the noble Lord some comfort on Amendment No. 19. I know that he feels very strongly about this, and we have had discussions about the restraining of the debtor and of anyone else who is preventing an enforcement agent from taking control of goods to carry out their lawful duties. I want to reiterate what I said on Report, as it may in some ways help to solve the noble Lord's problem. The regulations made under paragraphs 24(2) and 31(5) of Schedule 12 will be drawn up only after consultation with the advice sector and with the enforcement industry—and that is another commitment. If after such consultation the consensus is that existing powers are sufficient, we will reconsider our position. I shall ensure that the noble Lord knows about that. However, I do not want to lose the flexibility in the Bill because, although some organisations have been concerned about it, others feel strongly that it is very important to set this out properly so that those who have to use the restraining powers do so properly and appropriately. We need to have that conversation; depending on the outcome, I shall undertake to act appropriately and accordingly and keep the noble Lord informed.
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- Lord LucasConservative
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- My Lords, the best news that I have had today is that the noble Baroness is responsible for freedom of information within the Government. That is not today's subject but it gives me some hope on other matters. I think the noble Baroness has gone as far as she is able to; I would invite her to go further, but I am happy to withdraw my amendment. Amendment, by leave, withdrawn. [Amendments Nos. 17 to 20 not moved.] Schedule 13 [Taking control of goods: amendments]:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 21:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 22 to 29:
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- Baroness Ashton of UphollandLabour
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- My Lords, I beg to move that this Bill do now pass. Moved accordingly, and, on Question, Bill passed, and sent to the Commons.
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