House of Commons - Explanatory Note
Tribunals, Courts and Enforcement Bill - continued          House of Commons

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Consent of the Scottish Parliament

612.           At Introduction, this Bill contains the following provisions that require and have received the consent of the Scottish Parliament:

?     the transfer of the Criminal Injuries Compensation Appeals Panel to the First-tier Tribunal;

?     the abolition of the Council on Tribunals and its replacement by the Administrative Justice and Tribunals Council; and

?     the protection of cultural objects on loan to the UK.

613.           Should further provisions be included by amendment that require the consent of the Scottish Parliament, this consent will be sought in line with the Sewel Convention. The Convention states that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.


614.           Part 1 of the Bill raises issues as to article 6 (right to fair trial) and First Protocol, article 1 (protection of property) but the Department is of the view that the provisions of Part 1 are compatible with the Convention.

615.           Article 6 will be engaged in most of the proceedings before the First-tier Tribunal and Upper Tribunal, and there will therefore be a requirement that the tribunal be independent and impartial. The Department's view is that the Bill secures independence and impartiality, in particular through:

    a)     the procedure for appointing and selecting judges and other members of the First-tier Tribunal and Upper Tribunal, which involves the JAC;

    b)     the security of tenure enjoyed by judges and other members of the First-tier Tribunal and Upper Tribunal;

    c)     the extension of the obligation in section 3 of the CRA 2005 to uphold the independence of the judiciary to include the judges and other members of the First-tier Tribunal and Upper Tribunal.

616.           The new tribunals' procedures will also need to comply with article 6 (where it is engaged). Since the jurisdictions which the new tribunals will exercise are so diverse, there is little procedural detail in the Bill. That detail will be contained in Tribunal Procedure Rules made by the Tribunal Procedure Committee, which will be obliged to act compatibly with the Convention.

617.           The Bill provides for the abolition of the General Commissioners under the Taxes Management Act 1970 and the office of clerk to the Commissioners. It does not make any provision for the compensation of clerks. But the Department takes the view that this does not breach article 1 of the First Protocol because neither the office of clerk nor the possible expectations of remuneration or pensions associated with the office constitute possessions for the purposes of that Article.

618.           The Parts of the Bill that deal with the enforcement of debts and with debt relief engage the Convention rights of debtors and creditors to a fair trial (ECHR Article 6), to respect for private life (ECHR Article 8) and to the protection of property (ECHR First Protocol, Article 1). A creditor is entitled to the effective recovery of money lawfully due to him or her. A debtor is entitled to no greater intrusion on his or her property or privacy than is needed to achieve that. The provisions in those Parts all involve striking a balance between those sometimes competing rights.

619.           The provisions that deal with obtaining information about a debtor from someone else depend on there being a court judgment for the debt or a court order for the information. And the information can only be sought and used for the specific purpose of enforcing the judgment.

620.           The provisions that deal with enforcing a court judgment for a debt by entering a debtor's or other premises, if necessary searching them, and then taking control of the debtor's goods in order to pay the creditor depend on there being a judgment in the creditor's favour in the first place. The enforcement procedure is under the ultimate control of the court and the debtor can ask the court to stop it if there is a good reason. If someone enforcing a judgment abuses the power to do so, there are sanctions. And if a debtor obstructs the enforcement without a lawful reason, there are sanctions against that debtor.

621.           The provisions that impose limitations on the enforcement of debts (administration orders, enforcement restriction orders and debt management schemes) all involve a court order or access to a court. They require or allow the participation of debtors and creditors. Their purpose is to achieve a managed discharge of debts so that creditors will receive as much as possible of what they are owed.

622.           The provisions that deal with the recovery of commercial rent arrears are in response to concerns that the present law is insufficiently clear to be compatible with the Convention rights of either debtors or creditors. Landlords and tenants of commercial premises deal with each other on commercial terms. It is right that each should discharge his or her obligations to the other promptly, including the tenant's obligation to pay the rent. So it is fair and in the interests of the economic well-being of the country to allow landlords to recover unpaid commercial rent by taking control of the tenant's goods without first going to court. But if they do then the Bill imposes the same procedures and safeguards as apply to the enforcement of a court judgment, including intervention by the court, and any abuse of those powers is subject to sanctions.

623.           Finally, where in the general public interest other legislation already allows the recovery of certain debts by taking control of goods without a court judgment - for example, the collection of some taxes - the Bill again imposes the same procedures and safeguards as apply to the enforcement of a judgment. So it enhances the compatibility of that other legislation with the rights of everyone concerned.

624.           The provisions governing protection of cultural property on loan also engage Convention rights to access to court (ECHR Article 6) and protection of property (ECHR First Protocol, Article 1). The right of access to court under Article 6 is not an absolute right, but subject to limitations, provided that any limitations imposed serve a legitimate aim, are proportionate to that aim and do not restrict or reduce the access left to the individual in such a way, or to such an extent that the very essence of the right is impaired. In this case, we are considering a temporary limitation on one form of relief available to a claimant in this jurisdiction. This limitation would serve the legitimate aims of assisting museums and galleries, and so protecting the welfare of an important sector of the UK economy, and of facilitating public access to works of art and cultural objects from other countries through major exhibitions. We consider that the restriction is proportionate to these aims, and that it does not impair the essence of the rights guaranteed under Article 6.

625.           Interference with property is justified under Article 1, Protocol 1 of the European Convention on Human Rights if it is lawful, proportionate and strikes a fair balance between the demands of the community and the protection of the individual's interests. Where a claimant seeks to pursue a substantive claim to a work of art which is being loaned to this country for a temporary exhibition, his claim may be considered to be "property" for the purposes of the Article. However the limitation we are considering would not extinguish those rights, but only imposes a limited control over their use. We consider that preventing a potential claimant from seeking a particular form of relief in this jurisdiction for a limited period of time does strike a fair balance between the rights of the claimant and the public interest in promoting cultural exchanges and enhancing understanding of other cultures by facilitating public access to works of arts and cultural objects from other countries through major exhibitions.

626.           Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined in section 1 of that Act). The statement has to be made before Second Reading. Vera Baird has made the following statement:

    "In my view, the provisions of the Tribunals, Courts and Enforcement Bill [HL] are compatible with the Convention rights".


ACAS               Advisory, Conciliation and Arbitration Service

AIT               Asylum and Immigration Tribunal

AJTC               Administrative Justice and Tribunals Council

AO               Administration Order

AEA 1971          Attachment of Earnings Act 1971

AEO               Attachment of Earnings Order

CCA 1984          County Courts Act 1984

COA               Charging Orders Act 1979

CLSA 1990          Courts and Legal Services Act 1990

CPR 1998          Civil Procedure Rules

CRA 2005          Constitutional Reform Act 2005

CRAR               Commercial Rent Arrears Recovery

DAC               Discipline and Appeals Committee

DCA               Department for Constitutional Affairs

DMS               Debt Management Scheme

DRO               Debt Relief Order

DRP               Debt Repayment Plan

DTI               Department for Trade and Industry

DWP               Department for Work and Pensions

ERO               Enforcement Restriction Order

HMRC          Her Majesty's Revenue and Customs

IVA               Individual Voluntary Arrangement

JAC               Judicial Appointments Commission

RDAT               Registered Designs Appeals Tribunal

SCA 1981          Supreme Court Act 1981

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Prepared: 23 February 2007