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Clause 126 - Main definitions
534. The clause sets out the main definitions for this Chapter.
Clause 127 - Expressions relating to debts
535. This clause defines a "qualifying debt" as any debt that is not secured against an asset or which cannot, by virtue of the terms of the DMS, be included in the plan. A "business debt" is defined as a debt incurred in the course of a business.
Clause 128 - Periods of protection
536. This clause defines a "period of protection" as a period beginning when a debtor asks for a plan to be arranged and, if a plan is not arranged, ending when the decision not to arrange the plan is made. Where a plan is made, the period of protection ends when the plan ceases to have effect. The definition is however subject to subsection (4) which provides that where other debt management arrangements are in force immediately proceeding a debtor's request for a plan to be arranged, the period of protection does not begin until the plan is both arranged and comes into effect. This prevents debtors being simultaneously subject to different schemes.
PART 6: PROTECTION OF CULTURAL OBJECTS ON LOAN
SUMMARY
537. Part 6 provides immunity from seizure to objects which have been lent to this country from overseas to be included in a temporary exhibition at a museum or gallery. Immunity will be given from any form of seizure ordered in civil or criminal proceedings, and from any seizure by law enforcement authorities. It will apply to objects of any description which are owned by a person or an institution which is not resident in this country which are lent for temporary exhibitions to the public at any museum or gallery within the United Kingdom, provided that the import of the object in question complies with the law on the import of goods, and that the museum or gallery has published information about the object as required in regulations made by the Secretary of State.
BACKGROUND
538. Under the previous law, the United Kingdom has only given immunity to objects which are covered by the provisions of the State Immunity Act 1978. The absence of a more general immunity for works of art and other cultural objects which are lent to temporary exhibitions in this country has made museums and private owners in other countries increasingly reluctant to lend to such exhibitions without a guarantee that their art treasures will be returned. Provisions in Part 6 will enable such a guarantee to be given.
COMMENTARY ON CLAUSES: PART 6
Clause 129: Protected objects
539. Clause 129 defines the conditions that need to be met for an object to be protected from seizure and specify where and for how long the protection will be given.
540. Subsection (2) provides that an object will only be protected if five conditions are satisfied: the object must usually be kept outside the United Kingdom; it must not be owned by anyone resident in the United Kingdom; the import of the object must comply with the law on the import of goods; it must be brought to the United Kingdom to be displayed to the public in a temporary exhibition at a museum or gallery and the museum has complied with regulations requiring publication of information about the object. The Secretary of State is given power to make such regulations.
541. Subsection (4) provides for the extent of the protection. An object must only be in the United Kingdom for the permitted purposes (defined further in subsection (7)) and, with one exception, the protection will only last for twelve months. It is only intended to protect from seizure objects which are being lent for the purposes of a temporary exhibition. Objects on long term loans to museums will not be protected.
542. Subsection (5) provides for the single exception to this rule. Where an object has been damaged since coming to the United Kingdom, and is being repaired, conserved or restored in this country, it will continue to be protected until it has left the United Kingdom following the completion of the repair, conservation or restoration.
543. Subsection (7) ensures that objects will only be protected if they are on display in a temporary exhibition at museums, undergoing related repair, conservation or restoration, or travelling to or from the place where they are being displayed or repaired/restored. Subsection (8) defines the repairs, conservation or restoration which will be considered to be related for these purposes.
544. Subsection (9) gives the Secretary of State a power to require a museum or gallery to provide further information about an object to inquirers. The information which must be produced, the circumstances in which it must be produced, and any conditions on the production of information may be specified in the regulations. This power is additional to the power given to the Secretary of State in subsection (2) to require museums and galleries to publish particular information about an object.
545. Subsections (10) and (11) make further provision in relation to the regulations to be made under subsections (2) and (9). The regulations may only be made with the consent of the devolved authorities, and they will be made by statutory instrument, subject to the negative resolution procedure.
Clause 130: Effect of protection
546. Clause 130 defines the effect of the protection and sets out the limited circumstances under which it will not be given.
547. Subsection (1) ensures that where seizure or forfeiture of an object is required to enable the UK to comply with its obligations under EU or international law, the object concerned will not be protected. This could apply where, for example, the court is asked to enforce an order for the seizure of an object made by the courts of another country to confiscate proceeds of crime.
548. Subsection (2) ensures that the protection given to an object loaned to an exhibition does not give any protection from prosecution to those dealing with the object, where the dealing in question constitutes an offence.
549. Subsection (3) clarifies the extent of the protection which will be given to objects under this Bill. It includes immunity against all forms of execution which might be made against an object protected under the Bill, any order made in civil proceedings and any measure taken in criminal proceedings (or for the purposes of a criminal investigation) which might affect the control or custody of an object. The protection given is intended to exclude any form of seizure or detention of an object lent to an exhibition in this country whether by a claimant to the object, a creditor or by law enforcement authorities.
Clause 131: Relevant Museums and Galleries
550. Clause 131 defines "museum or gallery" for the purposes of Part 6. Only objects which are loaned to those institutions which have been approved by the relevant authority will qualify for immunity under this Part.
551. Subsection (2) sets out the factors to which the approving authority must have regard in deciding whether or not a particular institution should be approved. These are the institution's procedures for establishing the provenance and ownership of objects, and whether it complies with guidance published by the Secretary of State on such procedures. This list is not exclusive. The approving authority may also take account of other factors in deciding whether an institution should be approved.
552. Subsection (3) makes it clear that once approval has been given, it may be withdrawn, and identifies two situations in particular which are likely to lead to the loss of approved status. These are if an institution's procedures for establishing the provenance and ownership of objects are deemed to be inadequate, and if an institution fails to provide information on request as required in regulations. The approving authority may however also consider other factors.
553. Subsection (4) clarifies the effect of withdrawal of approval. Those objects which are already in the museum or in the United Kingdom en route to the museum on the date on which approval is withdrawn will not lose their approved status. However, objects which are loaned to the museum after its approval has been withdrawn will not qualify for immunity.
554. Subsection (5) identifies the appropriate authority. The Secretary of State will be responsible for approving museums and galleries in England. Each of the devolved administrations will be responsible for approving museums and galleries in their respective countries.
Clause 132: Interpretation
555. Clause 132 contains interpretation provisions for Part 6 of the Bill.
556. "Public display" is defined to include any display to which the public have admission, except displays with a view to sale. The immunity will not apply to any objects which are included in an exhibition organised by art and antiques dealers or auctioneers to advertise works for sale, or to publicise an auction.
557. This clause also sets out the rules for determining whether an individual, the trustees of a settlement, a partnership or a body corporate should be considered to be resident in the United Kingdom.
Clause 133: Crown application
558. This clause ensures that Part 6 of the Bill applies to the Crown, and agents of the Crown, in the same way as to all other persons and institutions.
PART 7: MISCELLANEOUS
SUMMARY
559. Part 7 enables High Court enforcement officers to execute writs of possession issued to enforce compulsory purchase orders, and removes the obligation for enforcement of such writs from High Sheriffs. This Part also amends subsection 31(5) of the SCA 1981, reproducing and extending the effect of the existing judicial review provision. In particular, it provides that where the decision maker in question is a court or tribunal and the decision is quashed on the ground that there has been an error in law, the High Court will be able to substitute its own decision where, without that error, it is satisfied that there would have been only one decision which the court or tribunal could have reached. Part 7 also changes the way in which ACAS negotiated settlements are enforced and reforms the process for hearing design right appeals.
BACKGROUND
Compulsory purchase
560. Currently, there is an anomaly as regards the execution of High Court writs in that High Court enforcement officers and High Sheriffs are able to execute High Court writs of execution, but only High Sheriffs are able to enforce writs of possession issued to enforce compulsory purchase orders. The proposed changes will align the enforcement of compulsory purchase orders with the regime for enforcing High Court writs of execution contained in section 99 of and Schedule 7 to the Courts Act 2003.
Judicial review
561. Section 31(5) of the SCA 1981 currently provides that where the High Court quashes a decision, it can return the matter to the relevant body with a direction that it reach a decision in accordance with the findings of the High Court. In its 1994 Report, Administrative Law: Judicial Review and Statutory Appeals 3 the Law Commission confirmed that there was significant support for the High Court to alternatively have the power to substitute its own decision for that of an inferior court or tribunal provided that it was restricted to situations where the decision to remit was a mere formality.
3 Report No.226
562. This recommendation was partly implemented in October 2000 by Rule 54.19(3) of the CPR, which provides that the court may substitute its own decision, subject to any statutory provision. It is unclear, however, whether the power would be available in respect of all inferior courts or tribunals. In addition, the power is not defined as proposed by the Law Commission in that it is not currently limited to either: decisions of inferior courts and tribunals only; or, situations where the court is satisfied that there was
only one decision that could be arrived at and the decision arose out of an error of law. As a result, the scope of the current power is unclear and anecdotal evidence suggests that the power has not, in fact, been used since its introduction.
563. The Law Commission's recommendation was fully endorsed in Sir Jeffrey Bowman's Review of the Crown Office List, which was published in March 2000. The government subsequently consulted on the Law Commission's proposal during summer 2001. A response paper in October 2003, summarising the responses received, confirmed that the introduction of a primary power for the High Court to substitute its own decision as proposed by the Law Commission was both necessary and welcome.
Enforcement of ACAS brokered agreements
564. ACAS has no enforcement powers of its own. Transforming Public Services undertook to simplify the system so that an award of compensation, whether ordered by an employment tribunal or agreed between the parties (under compromises involving the Advisory, Conciliation and Arbitration Service (ACAS)), can be enforced with the minimum of bureaucracy as if it were an order of the civil courts. The Bill makes such agreements enforceable in England and Wales as if they were sums payable under a county court order, and in Scotland by diligence as if the certificate were an extract registered decree arbitral bearing a warrant of execution issued by the sheriff court.
Appeal in relation to design rights
565. The Registered Designs Appeal Tribunal (RDAT) was created by section 28 of the Registered Designs Act 1949. Any appeal from the registrar (the Comptroller-General of Patents, Designs and Trade Marks) under that Act lies to the RDAT. The Bill transfers the jurisdiction of the RDAT to the Patents County Court and the High Court in England and Wales, the Court of Session in Scotland and the High Court in Northern Ireland.
566. At present there are restrictions preventing the Parliamentary Commissioner for Administration, the Commission for Local Administration and the Health Service Commissioners from investigating a matter where the aggrieved person has or had a remedy before a tribunal or through the courts. The Bill removes these restrictions.
COMMENTARY ON CLAUSES: PART 7
Clause 134: Enforcement by enforcement officers
567. This clause amends the Land Clauses Consolidation Act 1845 and the Compulsory Purchase Act 1965 to enable writs of possession issued to enforce compulsory purchase orders to be executed by High Court enforcement officers.
568. This change aligns the enforcement of compulsory purchase orders with the regime for enforcing High Court writs of execution contained in section 99 of and Schedule 7 to the Courts Act 2003. The Bill would not remove the right of a sheriff to enforce a writ of possession issued to enforce a compulsory purchase order, should one be directed to him and should he wish to enforce it. The clause removes the obligation, with the attendant legal responsibilities and liabilities, to enforce such writs of possession (High Sheriffs being unpaid volunteers who are appointed annually).
Clause 135: Supplementary and Schedule 22: Compulsory purchase: consequential amendments
569. Clause 135 amends Schedule 7 to the Courts Act 2003 to enable the arrangements that are currently in place for enforcement officers executing High Court writs of execution, (identifying enforcement districts, providing for administrative arrangements for enforcement of such writs and extending to enforcement officers powers and obligations that sheriffs have under common law), to be extended to High Court enforcement officers executing writs of possession issued to enforce compulsory purchase orders.
570. Schedule 22 makes consequential amendments in connection with the above.
Clause 136: Judicial review: power to substitute decisions
571. This clause replaces the existing section 31(5) of the SCA 1981 and extends the power of the High Court in respect of quashing orders. The High Court will still have the power to return a matter to a decision maker with a direction that it reach a decision in accordance with its findings. However, where the decision maker is a court or tribunal and the decision is quashed on the ground that there has been an error of law, the court will, alternatively, be able to substitute its own decision for that decision if it is satisfied that without the error there would have been only one decision that the court or tribunal could have reached.
572. Unless the High Court directs otherwise, a substitute decision will have effect as if it were a decision of the relevant court or tribunal.
Clause 137: Recovery of sums payable under compromises involving ACAS
573. This clause amends the Employment Tribunals Act 1996 to provide that sums payable under ACAS negotiated settlements are enforceable in England and Wales as if they were sums payable under a county court order, and in Scotland by diligence as if the certificate were an extract registered decree arbitral bearing a warrant of execution issued by the sheriff court. In each case, the sum is not recoverable if the person by whom it is payable applies for a declaration in the relevant jurisdiction that the sum would not be recoverable from him under the general law of contract.
Clause 138: Appeals in relation to design rights
574. Clause 138 abolishes the Registered Designs Appeals Tribunal and diverts its jurisdiction in England and Wales to the Patents County Court and the High Court concurrently. The Patents County Court is one with which users are familiar, the present judge is highly experienced in design matters, and its rules allow for affordable representation by patent agents and efficient procedures. While the Patents County Court and the High Court have concurrent jurisdiction, it is intended that appeals must first come to the Patents County Court which can then decide whether the appeal should be transferred to the High Court. The RDAT's Scottish jurisdiction is transferred to the Court of Session and its jurisdiction in relation to Northern Ireland to the High Court in Northern Ireland. The courts to which cases from the Isle of Man are to be diverted can be prescribed by an Order in Council under section 47 of the Registered Designs Act 1949.
575. The RDAT also has the power to deal with some appeals on (unregistered) design rights pursuant to section 249 of the Copyright, Designs and Patents Act 1988. Design rights are rather different in nature to registered designs and are more complex, as they
raise issues that are much more akin to copyright than registered designs. Clause 138(3) therefore provides that in England and Wales and Northern Ireland, appeals relating to design rights are to be heard by the High Court and that, in Scotland, appeals will lie to the Court of Session.
PART 8: GENERAL
SUMMARY
576. Part 8 provides for the territorial extent of the provisions of the Bill. It also provides for provisions of the Bill to come into force in accordance with orders made by the Lord Chancellor (or by the Secretary of State in relation to Chapter 3 of Part 5 or the Secretary of State or the Scottish Ministers in relation to Part 6), and confers power on the Lord Chancellor (or on the Secretary of State in relation to Chapter 3 of Part 5) to make transitional and consequential provision by order.
COMMENTARY ON CLAUSES: PART 8
Clause 139: Protected functions of the Lord Chancellor
577. Clause 139 makes all the Lord Chancellor's functions under (or under amendments made by) Part 1, clauses 51 and 54, Parts 3 and 4, Chapters 1 and 2 of Part 5 and certain functions under Part 2 protected functions for the purposes of section 19(5) of the CRA 2005, so that they cannot be transferred to another Minister without primary legislation.
Clause 140: Power to make supplementary or other provision
578. Subsection (1) allows the Lord Chancellor (or the Secretary of State in relation to Chapter 3 of Part 5) to make an order for supplementary, consequential and transitional provisions, while subsection (2) makes it clear that such an order can amend or repeal other enactments. This type of clause is not unusual in Bills which reform existing statutory schemes and therefore require transitional provisions and/or which have a large number of consequential amendments, see for example the Courts Act 2003.
Clause 141: Repeals
579. Clause 141 introduces Schedule 23. Schedule 23 lists repeals arising from, among other things, the new statutory framework for tribunals and the new, unified law on enforcement.
Clause 142: Extent
Clause 143: Commencement
Clause 144: Short Title
580. By virtue of clause 142, Parts 1, 2, 6 and 8 of the Bill extend to England and Wales, Scotland and Northern Ireland and Parts 3, 4, 5, and 7 extend only to England and Wales. This is subject to subsections (4) and (5). Subsection (4) allows for amendments to other Acts to extend to the same extent as those other Acts. For example, the amendment made by clause 137 will extend to Scotland (as well as to England and Wales). Subsection (5) extends provisions to the Isle of Man. This is in connection to amendments in clause 138 to appeals in relation to design rights. Accordingly, clause 138(1) and (2) will extend throughout the United Kingdom by virtue of subsection (4) and also to the Isle of Man by virtue of subsection (5).
581. Clause 143 provides for the Lord Chancellor (or the Secretary of State in relation to Chapter 3 of Part 5 and Part 6 except in so far as those provisions extend to Scotland) to specify commencement dates for provisions in the Bill by order.
EFFECTS OF THE BILL ON PUBLIC EXPENDITURE
582. The main impact of implementation of this legislation will be felt across the DCA.
Tribunals
583. It is estimated that it will cost around £50,000 to implement the new tribunal arrangements, with additional annual running costs of approximately £160,000. (These costs stem principally from support for the Senior President of Tribunals and the new Tribunal Procedure Committee.)
Judicial Appointments
584. The changes to judicial eligibility requirements are expected to result in
additional annual costs of up to £250,000. These costs will stem from the JAC having to process an increased number of applications for judicial posts and the time it will take JAC staff to consider whether an applicant has obtained the necessary legal experience post-qualification.
Enforcement by Taking Control of Goods
585. The new, unified law on enforcement is expected to result in one-off implementation costs of approximately £300,000. These costs will be incurred through training and publicity for the new regime.
Enforcement of Judgments and Orders
586. The main costs flowing from Part 4 will arise from a new IT system to implement the data-sharing powers. The system is expected to cost around £1.5M. Annual running costs will be met through the fees creditors will be charged to use the service.
587. Other costs arising under this part of the Bill include £250,000 for the Attachment of Earnings fixed rate deductions provisions, which will cover changes to IT systems, training and publicity.
Debt Management and Relief
588. Costs of £200,000 will also arise for changes to IT systems, training and publicity for Enforcement Restriction Orders. The Debt Relief Order proposals are likely to cost around £190,000 to implement. These costs will arise from training and publicity material.
EFFECT ON PUBLIC SECTOR MANPOWER
589. The Tribunals, Courts and Enforcement Bill necessitates only minor changes to public service manpower. The Judicial Appointments proposals are likely to lead to an increased number of applications for judicial posts and it is estimated that an additional six members of staff at the JAC would be required to process these. The remainder of the proposals should be met from within existing resources.
COST TO BUSINESS AND REGULATORY IMPACT
590. The provisions in the Bill relating to judicial diversity will have no significant or disproportionate impact on business, charities or the voluntary sector. Separate Regulatory Impact Assessments have been completed for the following provisions: tribunal reform (public sector impact only); regulation of enforcement services; reform of court-based enforcement processes; Administration Orders, Enforcement Restriction Orders and Non-Court Based Debt Management Schemes; Debt Relief Orders; and protection of cultural property on loan. The RIAs have been prepared in consultation with the Better Regulation Executive.
591. The Regulatory Impact Assessments concluded that the Bill will not significantly affect business. The main cost to business would be the requirement that persons taking control of goods who are not Crown employees or constables and who do not hold a county court certificate must obtain one (assuming that businesses pay the fee on behalf of their employees). There would also be some associated training costs. These would be offset by other proposals in the Bill to introduce a simplified and consolidated piece of enforcement agent law (which will be easier for agents to use) and a new, unified fee structure that will reward their activity more proportionately.
592. The Regulatory Impact Assessments for this Bill are being placed in the libraries of both Houses and on the web-site of the Department for Constitutional Affairs and (for Debt Relief Orders) the web-site of the Department for Trade and Industry.
COMMENCEMENT
593. The provisions in the Bill other than clauses 140 (Power to make supplementary or other provision), 142 (Extent), 143 (Commencement) or 144 (Short title) will come into force on days appointed by the Lord Chancellor (or by the Secretary of State in relation to Chapter 3 of Part 5 or by the Secretary of State or the Scottish Ministers in relation to Part 6) by order.
EXTENT
594. Clause 142 provides for the territorial extent of the provisions of the Bill.
595. Some of the provisions in Part 1 make special provision for Northern Ireland, Scotland and Wales, as set out in the following paragraphs.
Territorial application - Northern Ireland
596. Clause 30(5) prohibits the transfer to the First-tier Tribunal or Upper Tribunal of functions of a tribunal where the provision conferring that function is within the legislative competence of the Northern Ireland Assembly. But by virtue of clause 30(6), appellate functions of the Secretary of State under the following provisions may be transferred:
a) section 41 of the Consumer Credit Act 1974; and
b) section 7(1) of the Estate Agents Act 1979,
as may functions of the Consumer Credit Appeals Tribunal.
597. Clause 36(2) prohibits the transfer to the Lord Chancellor or Tribunal Procedure Committee, under clause 36(1), of rule-making powers where the provision conferring those powers is within the legislative competence of the Northern Ireland Assembly. But by virtue of clause 36(3), functions of the Secretary of State under the following provisions may be transferred:
a) section 41(2) of the Consumer Credit Act 1974; and
b) section 7(3) of the Estate Agents Act 1979,
as may functions of the Lord Chancellor under section 40A(3) of the Consumer Credit Act 1974.
Territorial Application - Scotland
598. Clauses 20 and 21 provide for the transfer to the Upper Tribunal from the Court of Session of certain applications made to the Court of Session for an exercise of its supervisory jurisdiction.
599. Clause 30(5) prohibits the transfer to the First-tier Tribunal or Upper Tribunal of functions of a tribunal where the provision conferring that function is within the legislative competence of the Scottish Parliament. But by virtue of clause 30(6) and (7), functions of an adjudicator under section 5 of the Criminal Injuries Compensation Act 1995 may be transferred with the concurrence of Scottish Ministers.
600. Clause 36(2) prohibits the transfer to the Lord Chancellor or Tribunal Procedure Committee, under clause 36(1), of rule-making powers where the provision conferring those powers is within the legislative competence of the Scottish Parliament. However the prohibition in clause 36(2) does not apply to certain functions under the Consumer Credit Act 1974 and the Estates Agents Act 1979: see clause 36(3).
601. Clause 42(8), which provides for tribunal fees prescribed by an order under clause 40 to be recoverable summarily as a civil debt, does not apply to recovery of fees in Scotland.
602. Paragraph 1(2)(a) of Schedule 7 provides for Scottish Ministers to appoint either two or three members to the AJTC, with the concurrence of the Lord Chancellor and the Welsh Ministers.
603. Paragraph 4 of Schedule 7 creates a Scottish Committee of the Administrative Justice and Tribunals Council.
604. Paragraphs 25(2) and 26 of Schedule 7 enable the Scottish Ministers to cause certain tribunals to be "listed tribunals" for the purposes of Schedule 7.
Territorial Application - Wales
605. Clause 30(8) prohibits the transfer to the First-tier Tribunal or Upper Tribunal of functions of a tribunal without the consent of the Welsh Ministers, where any functions relating to the operation of the tribunal or to expenses for attending the tribunal's proceedings are exercised by the Welsh Ministers.
606. Clause 32 contains special provisions which apply where a tribunal's functions are transferred to the First-tier Tribunal in respect of England but not Wales. This could have the effect that onward appeals in respect of the same jurisdiction lie to the Upper Tribunal in relation to England and (for example) to the High Court in relation to Wales. In those situations the Lord Chancellor may by order provide for the onward appeals in Welsh proceedings to be to the Upper Tribunal. Clause 32(3) also gives the Lord Chancellor power to provide by order for appeals from a number of Wales-only tribunals to be to the Upper Tribunal instead of to the court.
607. Clause 37(2)(c) restricts the Lord Chancellor's power to add a tribunal to any of the lists of tribunals in Schedule 6 to the Act (which would enable the Lord Chancellor's powers to transfer functions to be exercised in relation to that tribunal) where any functions relating to the operation of the tribunal or to expenses for attending the tribunal's proceedings are exercised by the Welsh Ministers. That power may be exercised only with the Welsh Minister's consent.
608. Paragraph 1(2)(b) of Schedule 7 provides for the Welsh Ministers to appoint either two or three members to the Administrative Justice and Tribunals Council, with the concurrence of the Lord Chancellor and Scottish Ministers.
609. Paragraph 7 of Schedule 7 creates a Welsh Committee of the Administrative Justice and Tribunals Council.
610. Paragraphs 25(2) and 27 of Schedule 7 enable the Welsh Ministers to cause certain tribunals with functions exercisable in relation to Wales to be "listed tribunals" for the purposes of Schedule 7.
Isle of Man
611. Clause 138(1) and (2) (which make provision about appeals in relation to design rights), and the provisions of the Bill related to clause 138(1) and (2), extend to the Isle of Man (as well as throughout the UK). This is because the provision of the Registered Designs Act 1949 being repealed by clause 138(1) extends to the Isle of Man (as well as throughout the UK).
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