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Lord Hunt of Wirral: My Lords, I take note of the Minister's response to these amendments, especially the commitment that he would like to make about the commissioning of further research. There is widespread concern, which I recognise the noble Lord does not share, about the effects of these provisions—the lack of independent research, and the lack of any real consideration of the effect on consumer bankruptcies.

I note that the Minister has some contextual concerns about the amendment, but it is perfectly possible for him to seek to amend the proposed new clause in the other place should be choose to press his concern about the wording. However, such is the level of concern that I feel I must press Amendment No. 53. In the meantime, I beg leave to withdraw Amendment No. 48.

Amendment, by leave, withdrawn.

[Amendments Nos. 49 to 51 not moved.]

Clause 257 [Investigation by official receiver]:

[Amendment No. 52 not moved.]

Lord Hunt of Wirral moved Amendment No. 53:

(1) The Secretary of State shall commission a reputable and appropriate qualified body to carry out a rolling study of the effects of the personal insolvency aspects of this Act in sections 255 to 271 and Schedules 19 to 23 on—
(a) numbers of personal bankrupts;
(b) cost to unsecured lenders; and
(c) effect on lending rates and on access to credit.
(2) Following the third anniversary of this Act coming into force, and annually thereafter, the Secretary of State shall arrange for an annual report of the findings of the study commissioned in accordance with subsection (1) to be laid before Parliament."

The noble Lord said: My Lords, I beg to move.

7.25 p.m.

On Question, Whether the said amendment (No. 53) shall be agreed to?

Their Lordships divided: Contents, 61; Not-Contents, 103.

Division No. 4


Anelay of St Johns, B.
Attlee, E.
Barker, B.
Beaumont of Whitley, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Clement-Jones, L.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Dean of Harptree, L.
Falkland, V.
Fearn, L.
Geddes, L.
Glentoran, L.
Hanningfield, L.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Holme of Cheltenham, L.
Hooson, L.
Howe, E.
Hunt of Wirral, L.
King of Bridgwater, L.
Kingsland, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Maddock, B.
Mancroft, L.
Masham of Ilton, B.
Monson, L.
Moynihan, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Plumb, L.
Rawlings, B.
Razzall, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton, L.
Roper, L.
Rotherwick, L. [Teller]
Scott of Needham Market, B.
Shrewsbury, E.
Shutt of Greetland, L.
Smith of Clifton, L.
Taylor of Warwick, L.
Thomas of Walliswood, B.
Waddington, L.
Walmsley, B.


Acton, L.
Ahmed, L.
Amos, B.
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Blease, L.
Borrie, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hughes of Woodside, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jordan, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Milner of Leeds, L.
Mitchell, L.
Morgan, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L.
Sawyer, L.
Simon, V.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Turnberg, L.
Turner of Camden, B.
Walker of Doncaster, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Winston, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

28 Oct 2002 : Column 83

7.35 p.m.

Schedule 4 [Tribunal: procedure]:

Lord McIntosh of Haringey moved Amendments Nos. 54 to 56:

    Page 211, line 30, leave out from second "the" to end of line and insert "direction may be enforced as if it"

    Page 214, line 3, at end insert "or

"(ii) such recovery or inspection of documents as might be ordered by a sheriff;"
Page 214, line 20, leave out from "than" to "of" in line 21 and insert "proceedings under section 47A or 47B"

On Question, amendments agreed to.

Schedule 5 [Proceedings under Part 1 of the 1998 Act]:

Lord McIntosh of Haringey moved Amendment No. 57:

    Page 217, line 8, after "or" insert "as to".

On Question, amendment agreed to.

Schedule 6 [Schedule to be inserted in the Water Industry Act 1991]:

Lord McIntosh of Haringey moved Amendment No. 58:

    Page 220, line 31, at end insert—

"(2) This paragraph is without prejudice to the power of the Secretary of State to provide in regulations made under paragraph 1 above for extensions of the four month period; and, if any such provision is made in such regulations, the provision which is to be made in regulations under paragraph 1 above by virtue of sub-paragraph (1) above or paragraph 6 below may be adjusted accordingly."

On Question, amendment agreed to.

Schedule 16 [Schedule B1 to Insolvency Act 1986]:

[Amendments Nos. 59 and 60 not moved.]

Lord Hunt of Wirral moved Amendment No. 61:

    Page 286, line 22, leave out "harm" and insert "prejudice"

The noble Lord said: My Lords, we return to the argument about "harm" or "prejudice". In relation to these specific amendments, on Report the Minister, the noble Lord, Lord McIntosh of Haringey, suggested that there was no real distinction between the terms "harm" and "prejudice" and that he preferred the word "harm" as part of his solo drive to simplify legal language.

I can only reiterate that use of the term "harm" instead of "prejudice" will cause confusion and difficulty for both practitioners and courts. If they try to interpret how to apply the word "harm" in this new context, there will be no case law whatever to guide them. Will the Minister accept that I strongly support his drive for simplified language but that, in this case, the use of the word "prejudice" is far from complicated or archaic?

I understand that the noble Lord's officials are reviewing this issue with the assistance of parliamentary counsel. Therefore, I hope that he will accept this relatively simple amendment and at least give it proper consideration. I beg to move.

Lord McIntosh of Haringey: My Lords, I do not know who told the noble Lord, Lord Hunt, that we are

28 Oct 2002 : Column 84

reviewing the matter with parliamentary counsel. Such matters are usually treated with the utmost confidentiality. But now that he has blown the gaff, so to speak, I can tell him that we have reviewed the matter with parliamentary counsel, who do not want us to change the word "harm".

This is not a solo campaign to update legal language; it is a campaign led by my noble and learned friend the Lord Chancellor. I wish that he had stayed for a few minutes to support me but, in the circumstances, I shall have to do it by myself.

Of course, there are circumstances in which one has to use special words for legal purposes. But the word "prejudice" has two totally different meanings. It has one meaning in common language, such as in the term "racial prejudice" or other forms of prejudice of that kind, and it has a totally different legal meaning, as in "without prejudice". For this purpose, "harm" means the same as "prejudice".

I said it before; I say it again; and I say it in full knowledge of the consequences of the judgment in Pepper v Hart. I have been advised, and I see no reason to doubt, that there is no distinction between "harm" and "prejudice". But until we start to use this and other more up-to-date words and phrases, there will be no opportunity for case law to attach and develop. "Harm" is a commonly used word which is far more likely to be understood not only by the courts and practitioners, for whom the noble Lord, Lord Hunt, is concerned, but by the professional advisers and, above all, by the public. I resist the amendment.

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