Clause
132
Interpretation
Question
proposed, That the clause stand part of the
Bill.
Vera
Baird:
This clause provides further interpretation to the
terms used throughout the immunity from seizure clauses. The most
important in this context is “public display”, which is
defined to include any display to which the public have admission,
except displays with a view to sale. Objects included in an exhibition
put on by a major auction house to advertise an auction will not
qualify for
immunity.
Question
put and agreed to.
Clause
132
ordered to stand part of the
Bill.
Clause
133
Crown
application
Question
proposed, That the clause stand part of the
Bill.
Vera
Baird:
This clause ensures that these provisions apply to
the Crown. Without this provision the immunity would not be effective
against agents of the Crown, such as HM Revenue and Customs. This would
significantly reduce the value of the immunity we are
granting.
Question
put and agreed to.
Clause
133
ordered to stand part of the
Bill.
Clause
134
ordered to stand part of the
Bill.
Schedule
22
agreed
to.
Clause
s
135 to 139
ordered to stand part of the
Bill.
Clause
140
Power
to make supplementary or other
provision
Mr.
Bellingham:
I beg to move amendment No. 155, in
clause 140, page 109, line 12, at
end add—
‘(8) The Lord
Chancellor must consult any interested parties before making an order
under this
section.’.
Clause
140 follows on from clause 139, which talks about the protected
function of the Lord Chancellor. I am interested in subsection (1),
where it
says:
“The Lord
Chancellor (or, in relation to Chapter 3 of Part 5 only, the Secretary
of State)”.
Perhaps the
Bill knows something we do not and anticipates the fact that the Lord
Chancellor may be an extinct species at some stage in the future. I
thought that the Lord Chancellor and the Secretary of State were one
and the same person. It was in that light that we tabled the
amendment.
Subsection
(2) says:
“An
order under this section may in
particular”
and then
gives details in paragraphs (a) and (b). Subsections (3) to (7) explain
the orders in more depth. These are important orders. We feel that the
Lord Chancellor should consult interested parties. There is nothing in
the Bill to ensure that that consultation takes place. It might be
obvious to the Minister and to
other members of the Committee that the consultation
with interested parties would take place in any event, but why not say
so in the Bill to add the extra discipline that we believe is
needed? 12.30
pm
Vera
Baird:
The amendment would require the Lord Chancellor or
the Secretary of State—it is the same person—to consult
any interested parties before making orders under the clause. In fact,
to return to the question of the Secretary of State and the Lord
Chancellor, when I look more closely, I think that we are referring to
the Secretary of State for Trade and Industry. That is why there is
what looks like a double reference, and I am grateful to the hon.
Gentleman for pointing that out, as I did not grasp the point. That is
the answer to that
problem.
The clause is
a safety net that is intended to ensure that the Bill can be
effectively implemented. It supplements the rest of the provisions and
can be used only alongside one of those provisions, including specific
order-making powers. As hon. Members are well aware, a detailed policy
statement has been published. That explains how the order-making powers
in the Bill would be used and sets out our commitment to extensive
consultation when we use those
powers.
Mr.
Newmark:
I listened carefully to my hon. Friend the Member
for North-West Norfolk, but the Minister’s response has given me
cause for concern. If she did not understand what was in the Bill,
surely the public will not do so, so it would be appropriate
to have some clarification on the point about the Secretary of
State.
Vera
Baird:
I have just given exactly that clarification. It is
the Secretary of State for Trade and Industry. Can I say
more?
Mr.
Newmark:
I appreciate that the Minister has
verbally given that explanation. Perhaps I am a novice who needs these
things explained, but given that the reference to the Secretary of
State is ambiguous, notwithstanding that she has told us to whom it
refers, should there not be a closer definition in the Bill? That is
what I was asking.
Vera
Baird:
We might change the name, but then we would be
stuck with an inappropriate appellation in the Bill. The real point is
that clause 103 introduces measures on behalf of the Insolvency
Service, which is part of the Department of Trade and Industry. The
purpose of allowing both Secretaries of State the power is to cover
that provision, but it is the Secretary of State for Trade and Industry
who is referred to in clause 140.
The detailed
policy statement that we published sets out how the specific
order-making powers, to which these are ancillary and supplementary,
will be used. It says unambiguously, as I am now doing, that we will
consult extensively when we use the order-making powers. The proposed
amendment would require consultation for literally every consequential
or transitional order made under clause 140. That could be hugely
resource intensive and would not give much positive benefit, so we
could not dream of agreeing to it. There are effective and
proportionate safeguards in the clause to ensure that any order
amending or repealing an Act has to be approved by both
Houses.
I hope that that reassurance,
and our unambiguous statement that we will consult where appropriate,
as we have said in the policy document, are sufficient to persuade the
hon. Member for North-West Norfolk not to press the
amendment.
Mr.
Bellingham:
I am grateful to the Minister, and I shall not
press the amendment. May I ask her, however, to reflect again on
subsection (1) and the
words
“or, in relation to
Chapter 3 of Part 5, only, the Secretary of
State”?
We often talk
about the Lord Chancellor or the Secretary of State in the context of
the Department for Constitutional Affairs, because they are one and the
same person. Perhaps my hon. Friend the Member for Braintree raises a
good point, however, and we need clarification in the Bill, although I
take on board the Minister’s point. We keep hearing that, should
the current Chancellor of the Exchequer ever become Prime Minister, one
of his first moves could be to scrap the DTI, so if we inserted a
reference to the Secretary of State for Trade and Industry, it could be
obsolete pretty quickly. Perhaps we should insert the words “the
relevant Secretary of State”, however, which would immediately
lead anyone reading the Bill to conclude that neither the Lord
Chancellor nor the Secretary of State for Constitutional Affairs were
being referred to. Will the Minister therefore consider tabling an
amendment on Report to insert the word “relevant” before
“Secretary of
State”?
Vera
Baird:
I am grateful for the suggestion, although I think
it is plain enough that, since we are talking only about chapter 3 of
part 5 and the relevant Secretary of State is consequently the head of
the Department of Trade and Industry, that is who we are talking about.
I am helpfully prompted to survey, as I shall indeed do shortly, every
clause in the Bill, as I am told that it always refers to the Lord
Chancellor when we mean the Lord Chancellor, and never calls him the
Secretary of State. However, I will double check that, so that the
Opposition Members are
satisfied.
Mr.
Bellingham:
I am grateful to the Minister for that
explanation. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
140 ordered to stand part of the
Bill.
Clause
14
1
ordered to stand part of the
Bill.
Schedule
23 agreed
to.
Clause
14
2
ordered to stand part of the
Bill.
Clause
143
Commencement
Question
proposed, That the clause stand part of the
Bill.
Jenny
Willott:
Given that the clause is about when different
parts of the Bill will come into force, I want to reiterate our concern
about the proposal that there should be an interim regime in which
bailiffs have extra
powers before the registration system has been
brought in to regulate them. We are concerned about the timing of the
introduction of that part of the Bill, before the registration scheme
is introduced. Throughout our proceedings, the Minister has commented
on the timing of the introduction of various parts, but I wanted to say
that we are not satisfied that the interim measures are appropriate. We
feel that the introduction of the additional powers for bailiffs should
be delayed until a registration scheme such as the one that was
discussed can be
introduced.
Vera
Baird:
I thought that the hon. Lady was here when I
announced last week that the only new power for bailiffs, namely to
make an application to the court for consent to use, as a last resort,
reasonable force to enter private premises, will not come into force
until the regulatory system is in place. The system in the Bill, which
will—I have put it this way before—beef up the current
certification process, will not be the system that applies to the use
of that power. Again, the use of that power will be made available only
when the full regulation system is in place. I hope that she is now
twice
assured.
Mr.
Newmark:
Again, I would like to ask the Minister for
clarification. The explanatory notes
state:
“Clause
143 provides for the Lord
Chancellor”—
again,
the next phrase appears in
brackets—
“or the
Secretary of State in relation to Chapter 3 of Part
5”
and so on. Can the
Minister again clarify whether the provision refers to the Secretary of
State for Constitutional Affairs or the Secretary of State for Trade
and
Industry?
Vera
Baird:
In references to chapter 3 of part 5, the
responsibility will lie either with the Lord Chancellor or the
Secretary of State for Trade and
Industry.
Jenny
Willott:
I accept the point that the Minister made
previously. However, we still have concerns that changes are being made
to the bailiff system before the introduction of the registration
scheme. Over the past few years, a lot of concern has been raised about
the need for a proper registration scheme for bailiffs. We remain
unhappy that that part of the proposals has been delayed significantly
and that there is a need for an interim measure, which we do not agree
with.
Question put
and agreed
to.
Clause 143
ordered to stand part of the
Bill.
Clause
144
Short
title
Vera
Baird:
I beg to move amendment No. 1, in
clause 144, page 110, line 10, leave
out subsection
(2).
This is purely a
technical amendment to remove the privilege amendment inserted by the
House of Lords because the Bill contains financial provisions. This is
to ensure that the Commons’ financial privilege was not
infringed.
Amendment
agreed
to.
Clause 144,
as amended, ordered to stand part of the
Bill.
New Clause
5
Concurrent
jurisdiction of courts, tribunals and public sector
ombudsmen
‘(1) In section 5
of the Parliamentary Commissioner Act 1967 (c. 13), omit subsection
(2).
(2) In section 26 of the
Local Government Act 1974 (c. 7), omit subsection
(6).
(3) In section 4 of the
Health Service Commissioners Act 1993 (c. 46), omit subsection
(1).’.—[Mr.
Bellingham.]
Brought
up, and read the First
time.
Mr.
Bellingham:
I beg to move, That the clause be read
a Second
time.
I
am grateful to you, Mrs. Humble. This is the last time that
I will trouble the Committee this morning and perhaps even today. The
new clause would extend the scope of ombudsmen in various ways. I refer
the Committee to a report published by Lord Justice Woolf in 1996. He
recommended that the relationship between ombudsmen and the courts
should be broadened, enabling issues to be referred by ombudsmen to the
courts and by the courts to the ombudsmen, obviously with the consent
of all those involved. That makes sense. The new clause would remove
some of the impediments that are currently in place. Obviously, the
impediments—the tight rules—were put in place to ensure
that ombudsmen did not trespass on or usurp the jurisdiction of courts
or tribunals. Over time, developing case law has narrowed the
discretion of ombudsmen in a way that has been seen to present them
with severe difficulties and has created some injustice for
complainants. This is quite an arcane point, but it is important. We
have plenty of constituents who come to our surgeries and advice
centres and complain about various matters, either local or national,
and want us to refer them to the ombudsman. When it comes to the
parliamentary ombudsman, the MP has to endorse the complaint before it
can be referred. Many of us have been put in the invidious position of
deciding whether to sign up to a complaint. I think that most of us, to
keep the peace, tend to go along with what the constituent wants on the
basis that if that is what they feel needs doing, we should support
them.
Very often,
cases go to an ombudsman when a concurrent legal case is under way.
Having looked at the way in which case law has developed—I do
not want to go into a long discussion about it now—I think that
we need to follow Lord Woolf’s suggestion and broaden the
relationship between the ombudsmen and the courts. That means that the
issues can be referred either way.
The new clause has the support
of the head of the administrative court, Mr. Justice
Collins, and the senior president of tribunals designate, Lord Justice
Carnwath. That is quite an endorsement. In the spirit of good will,
given that lunch is pending and the Minister is in a good
mood—her officials look demob happy—perhaps she could
give us something to take away by accepting the new
clause.
12.45
pm
Vera
Baird:
The new clause would give the ombudsman the
discretion to investigate cases in which court proceedings had been
started. I am sympathetic to it, but I do not think that we can take it
forward
now. The hon. Gentleman is absolutely right that the law has developed
significantly since 1967, when the ombudsman legislation was passed.
Much of what was then maladministration and thus without legal remedy
is now potentially a legal failure and subject to judicial review.
Judicial review is subject to tight time limits; complainants who think
that they have that remedy have to move quickly to claim it. The
ombudsman has discretion to pursue cases that have a legal remedy but
no proceedings, but the courts have ruled—inevitably, given the
1967 Act—that there is no discretion if proceedings have been
started, even if the action is effectively moribund. Those cases, which
are better dealt with by the ombudsman, are obstructed by that
mechanism.
The hon.
Gentleman rightly rehearsed the history of the matter, and more detail
could indeed be sketched in, if time allowed. We considered an
identical proposal made by his noble Friend Lord Newton, which was that
we could make changes now, so that people were not inconvenienced and
cases did not run the risk of injustice because of the 1967
legislation. My noble Friend Baroness Ashton indicated that she would
consider the issue further. She held some round table discussions, in
which it was agreed that there were complex issues that would have to
be resolved before we could go forward. They arise particularly in
judicial review cases; they need to be dealt with quickly, for the sake
of both complainants and public authorities, so that they know what
they need to do to continue administration. Judicial review has tight
time limits, so we have to get the balance right between those who have
a genuine grievance and those who are looking for a reason to prevent
the legitimate outcome of the decision from being put into
effect.
The Law
Commission is undertaking work on remedies in public law. That includes
the relationship between the courts and the ombudsman. Bearing in mind
the wealth of difficulties that arose when my noble Friend, with the
best intentions, tried to resolve the issue sufficiently quickly to put
something in the Bill, we think that the better course is to let the
Law Commission take its customary mature, rounded view and bring
forward a report in due course. Its expertise and independence will
allow the best balance of conclusions to be reached. For those reasons,
my noble Friend did not return to the issue in the other place after
she had indicated that she would try her best. We do not feel that we
are in a position to accept the new clause at present, but work is
ongoing in this area and the Government are well apprised of the
mischief that the hon. Gentleman so pertinently pointed
out.
Mr.
Bellingham:
I am grateful to the Minister. I think that
one can mark that as six out of 10—a minor victory—given
that the proposal will be taken forward. I would be grateful if she
could keep my noble Friend Lord Kingsland and me informed of the
progress that is made. If there is anything that we can to do assist,
we will most certainly do it. On that basis, I beg to ask leave to
withdraw the
motion.
Motion and
clause, by leave,
withdrawn.
Ordered,
That
certain written evidence already reported to the House be
appended to the proceedings of the Committee.—[Vera
Baird.]
Question proposed, That
the Chairman do report the Bill, as amended, to the
House.
Vera
Baird:
On a point of order, Mrs. Humble. I
thank all parties for the way in which the Bill has been perused,
probed and improved and for how our understanding of its import has
been broadened and deepened by the deliberations of the Committee. I
thank you, Mrs. Humble, and, in his absence, Mr.
Bercow, for the very pleasant and fair way in which you have chaired
our proceedings. I also thank your Clerk. I have served on Committees
on which he has clerked before. His advice is matchless; he is an
immense asset. We would be in great difficulty if we did not have such
an expert person with
us.
I thank the
officials, who have helped me greatly with the Bill. I also thank the
Hansard writers and the officials who have looked after the
doors. Mercifully, they have not been required to go out and shout
“Division” often, because we have been able to agree on a
Bill that had already been substantially improved in the other
place.
I have enjoyed
taking my first Bill through Committee. I have been accused of being
trendy, but it was said that the Bill was not sexy and it was suggested
that I should design a uniform for bailiffs. Presumably it was a case
of giving me any job that stopped me talking about the Bill. I joke, of
course, because the exchanges have been in the main very pleasant and
very helpful.
I thank
very much the hon. Member for North-West Norfolk for the attention that
he has given to the Bill. It has been good to have the company of the
hon. Member for North Southwark and Bermondsey. I thank all my hon.
Friends for their diligent following of the issues raised in Committee
and I thank Opposition Members for the attention that they have paid to
the issues. It is a better Bill for our deliberations and I am very
grateful indeed to all who have played a
role.
Mr.
Bellingham:
Further to that point of order,
Mrs. Humble. I endorse the Minister’s thanks,
particularly to you and to Mr. Bercow, and to the senior
Clerk and to his deputy, Dr. Weston, who has also been very helpful. I
thank everyone who has been
involved with the Committee for the very efficient way in which it has
been managed. We all know that such Committees would not run smoothly
if it was not for the officials who lay out the papers and attend to
our every need. I also thank the police, who attend to the doors and
ensure that everything goes
smoothly.
I agree that
this has been a good-humoured Committee. We have had plenty of time to
debate the issues and I am very grateful to the usual channels for
ensuring that time to debate the issues has been made available. I do
not think that anyone can complain that we have not had that time. I
agree with the Minister that we are now more knowledgeable about the
Bill. Opposition Members are disappointed that we have not secured all
the changes that we would like, but of course we reserve the right to
return to the relevant issues on
Report.
I am very
grateful to the various organisations outside the House that have kept
Opposition Front Benchers fully briefed and informed. We do not have
the resource and the huge intellectual capacity of the civil service to
brief us, but we are privileged and fortunate to have many outside
organisations that take a great interest in these matters and they take
every opportunity to ensure that we can table amendments and speak to
them. I am grateful to those organisations for that and I look forward
to returning to the Bill on Report. I also look forward to perhaps
serving under your chairmanship again at some stage in the future,
Mrs.
Humble.
Jenny
Willott:
Further to that point of order, Mrs.
Humble. I echo all the thanks that have been given. This is the first
such Committee of which I have been a member, and it has been an
interesting induction to the process of Committee work. I thank you,
Mrs. Humble, and Mr. Bercow, for your patience
with those of us who are new to such work. I have learned more this
morning about parliamentary procedure and moving and withdrawing
amendments than I would have thought possible, and I have learned
significantly more about the inner workings of tribunals than I ever
thought I wanted to know. It has been a very interesting experience. I
thank everyone very
much.
Question put
and agreed
to.
Bill, as
amended, to be
reported.
Committee
rose at six minutes to One
o’clock.
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