House of Lords Journal 239 (Session 2005-06)


Previous Next

Wednesday 12th July 2006

The House met at a quarter before ten o’clock.

The following Lords Spiritual and Temporal were present:

Hayman, B.
(Lord Speaker)

Acton, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.

Page 1032

2005-06

Volume 239      

Anelay of St Johns, B.
Archer of Sandwell, L.
Armstrong of Ilminster, L.
Arran, E.
Ashley of Stoke, L.
Ashton of Upholland, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Bach, L.
Baker of Dorking, L.
Ballyedmond, L.
Barker, B.
Barnett, L.
Beaumont of Whitley, L.
Berkeley, L.
Bernstein of Craigweil, L.
Best, L.
Bhatia, L.
Biffen, L.
Billingham, B.
Birt, L.
Blackstone, B.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Borrie, L.
Boston of Faversham, L.
Bowness, L.
Boyce, L.
Brabazon of Tara, L.
Bradshaw, L.
Bragg, L.
Bramall, L.
Brennan, L.
Brett, L.
Bridgeman, V.
Brooke of Alverthorpe, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brookman, L.
Brooks of Tremorfa, L.
Brougham and Vaux, L.
Brown of Eaton-under-
Heywood, L.
Burlison, L.
Burnett, L.
Buscombe, B.
Butler of Brockwell, L.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Cameron of Lochbroom, L.
Campbell-Savours, L.
Carnegy of Lour, B.
Carter, L.
Carter of Coles, L.
Chadlington, L.
Chandos, V.
Chidgey, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Colwyn, L.
Cope of Berkeley, L.
Corbett of Castle Vale, L.
Cotter, L.
Courtown, E.
Cox, B.
Craig of Radley, L.
Craigavon, V.
Crawley, B.
Crickhowell, L.
Crisp, L.
Cunningham of Felling, L.
Currie of Marylebone, L.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
De Mauley, L.
Dean of Harptree, L.
Dean of Thornton-le-Fylde, B.
Dearing, L.
Denham, L.
Desai, L.
Dholakia, L.
Dixon, L.
Dixon-Smith, L.
Donoughue, L.
D’Souza, B.
Dubs, L.
Dundee, E.
Dykes, L.
Eames, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elder, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Emerton, B.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Exeter, Bp.
Ezra, L.
Falkender, B.
Falkland, V.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ferrers, E.
Filkin, L.
Finlay of Llandaff, B.
Flather, B.
Fookes, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Freyberg, L.
Fritchie, B.
Fyfe of Fairfield, L.
Gale, B.
Garden, L.
Garel-Jones, L.
Geddes, L.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Golding, B.
Goodhart, L.
Goodlad, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Greaves, L.
Greengross, B.
Greenway, L.
Gregson, L.
Griffiths of Burry Port, L.
Griffiths of Fforestfach, L.
Grocott, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Hanningfield, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Hastings of Scarisbrick, L.
Haworth, L.
Hayhoe, L.
Henig, B.
Henley, L.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Hoffmann, L.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Hope of Craighead, L.
Howard of Rising, L.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hylton, L.
Inglewood, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jenkin of Roding, L.
Joffe, L.
Jones, L.
Jones of Cheltenham, L.
Jopling, L.
Jordan, L.
Judd, L.

Page 1033

2005-06

Volume 239

Back to top

Kerr of Kinlochard, L.
Kilclooney, L.
Kimball, L.
King of Bridgwater, L.
King of West Bromwich, L.
Kingsland, L.
Kingsmill, B.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laming, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lea of Crondall, L.
Lee of Trafford, L.
Leitch, L.
Lester of Herne Hill, L.
Lewis of Newnham, L.
Lindsay, E.
Linklater of Butterstone, B.
Lipsey, L.
Listowel, E.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Low of Dalston, L.
Lucas, L.
Luke, L.
Macaulay of Bragar, L.
McCluskey, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mallalieu, B.
Mance, L.
Mar, C.
Marland, L.
Marlesford, L.
Marsh, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Mawhinney, L.
Maxton, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Montagu of Beaulieu, L.
Montgomery of Alamein, V.
Montrose, D.
Moonie, L.
Moran, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Bolton, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Mowbray and Stourton, L.
Moynihan, L.
Murphy, B.
Naseby, L.
Neuberger, B.
Newby, L.
Newcastle, Bp.
Newton of Braintree, L.
Nicholls of Birkenhead, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbourne, L.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
O’Cathain, B.
O’Neill of Clackmannan, L.
Ouseley, L.
Owen, L.
Oxburgh, L.
Palmer, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Patten, L.
Paul, L.
Pearson of Rannoch, L.
Peel, E.
Pendry, L.
Perry of Southwark, B.
Peston, L.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Prys-Davies, L.
Quin, B.
Quirk, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rana, L.
Randall of St. Budeaux, L.
Rawlings, B.
Razzall, L.
Rea, L.
Reay, L.
Redesdale, L.
Rees, L.
Rees-Mogg, L.
Rendell of Babergh, B.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton, L.
Richard, L.
Rix, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Robertson of Port Ellen, L.
Rodger of Earlsferry, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Rosser, L.
Rosslyn, E.
Rotherwick, L.
Rowlands, L.
Royall of Blaisdon, B.
Russell-Johnston, L.
Ryder of Wensum, L.
St. Edmundsbury and Ipswich, Bp.
St. John of Bletso, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Sanderson of Bowden, L.
Sandwich, E.
Sawyer, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sewel, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Sheldon, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Simon, V.
Skelmersdale, L.
Skidelsky, L.
Slim, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Snape, L.
Soulsby of Swaffham Prior, L.
Southwark, Bp.
Southwell and Nottingham, Bp.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Symons of Vernham Dean, B.
Tanlaw, L.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tope, L.
Tordoff, L.
Trefgarne, L.
Triesman, L.
Trimble, L.
Trumpington, B.
Truscott, L.
Tugendhat, L.

Page 1034

2005-06

Volume 239

Back to top

Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Turner of Ecchinswell, L.
Tyler, L.
Uddin, B.
Ullswater, V.
Verma, B.
Vincent of Coleshill, L.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walker of Gestingthorpe, L.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Waverley, V.
Weatherill, L.
Whitaker, B.
Whitty, L.
Wilcox, B.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Wilson of Tillyorn, L.
Windlesham, L.
Woolmer of Leeds, L.
Wright of Richmond, L.
Young of Norwood Green, L.

PRAYERS were read by the Lord Bishop of Newcastle.

Judicial Business

1.Majrowski (Respondent) v. Guy’s and St. Thomas’ NHS Trust (Appellants)—It was moved by the Lord Nicholls of Birkenhead that the 65th Report from the Appellate Committee be agreed to; the motion was agreed to. It was ordered and adjudged that the Order of the Court of Appeal of 16th March 2005 be affirmed and the appeal dismissed; and that the appellants do pay or cause to be paid to the respondent his costs in this House, the amount thereof to be certified by the Clerk of the Parliaments if not agreed between the parties. [2006] UKHL 34
2.Smith (FC) (Appellant) v. Secretary of State for Work and Pensions and another (Respondents)—It was moved by the Lord Nicholls of Birkenhead that the 66th Report from the Appellate Committee be agreed to; the motion was agreed to. It was ordered and adjudged that the appeal be allowed; that the Order of the Court of Appeal of 19th October 2004 be set aside and the decision of Mr Commissioner Howell QC of the Child Support Commissioners of 6th October 2003 restored; and that the question of costs be adjourned in order that the parties may make written submissions within 14 days. [2006] UKHL 35
3.Down Lisburn Health and Social Services Trust and another (AP) (Respondents) v. H (AP) and another (AP) (Appellants) (Northern Ireland)—It was moved by the Lord Nicholls of Birkenhead that the 67th Report from the Appellate Committee be agreed to; the motion was agreed to. It was ordered and adjudged that the Order of the Court of Appeal in Northern Ireland of 22nd November 2005 be affirmed and the appeal dismissed; and that the question of costs be adjourned in order that the parties may make written submissions within 14 days. [2006] UKHL 36
4.Bradford & Bingley plc (Appellants) v. Rashid (FC) (Respondent)—It was moved by the Lord Hoffmann that the 68th Report from the Appellate Committee be agreed to; the motion was agreed to. It was ordered and adjudged that the appeal be allowed; that the Order of the Court of Appeal of 22nd July 2005 and also the Order of His Honour Judge Hawkesworth QC in the County Court at Bradford of 14th December 2004 be set aside and the Order of Deputy District Judge Heaton in the County Court at Bradford of 26th May 2004 restored; and that the respondent do pay or cause to be paid to the appellants their costs in this House and below, the amounts thereof, if any, to be paid by the respondent and to be paid out of the Community Legal Service Fund to be determined by a Costs Judge, if not agreed between the parties, for those costs incurred in the courts below and certified by the Clerk of the Parliaments, if not agreed between the parties, for those costs incurred in this House, in accordance with regulations pursuant to section 11 of the Access to Justice Act 1999; and that the costs of the respondent be taxed in accordance with the Access to Justice Act 1999. [2006] UKHL 37
5.Marks and Spencer plc (Appellants) v. Her Majesty’s Commissioners of Customs and Excise (Respondents)—Further to the Order of the House of 28th July 2005 (11th Report Session 2005-06 [2005] UKHL 53), the 69th Report from the Appellate Committee was agreed to and it was ordered that the following questions be referred to the Court of Justice of the European Communities for a preliminary ruling under Article 234 of the Treaty establishing the European Community: “1. Where, under Article 28(2)(a) of the Sixth VAT Directive (both before and after its amendment in 1992 by Directive 92/77), a Member State has maintained in its domestic VAT legislation an exemption with refund of input tax in respect of certain specified supplies, does a trader making such supplies have a directly enforceable Community law right to be taxed at a zero rate? 2. If the answer to Question 1 is in the negative, where, under Article 28(2)(a) of the Sixth VAT Directive (both before and after its amendment in 1992 by Directive 92/77), a Member State has maintained in its domestic VAT legislation an

Page 1035

2005-06

Volume 239

Back to top

  exemption with refund of input tax in respect of certain specified supplies but has mistakenly interpreted its domestic legislation with the consequence that certain supplies benefiting from exemption with refund of input tax under its domestic legislation have been subject to tax at the standard rate, do the general principles of Community law, including fiscal neutrality, apply so as to give a trader who made such supplies a right to recover the sums mistakenly charged in respect of them? 3. If the answer to Question 1 or Question 2 is in the affirmative, do the Community law principles of equal treatment and fiscal neutrality in principle apply with the result that they would be infringed if the trader in question is not repaid the entire amount mistakenly charged on the supplies made by him in circumstances where: (i) the trader would be unjustly enriched by repayment to him of the entire amount; (ii) domestic legislation provides that overpaid tax cannot be repaid to the extent that repayment would lead to unjust enrichment of the trader; but (iii) domestic legislation makes no provision similar to that referred to in (ii) in the case of claims by ‘repayment traders’? (A ‘repayment trader’ is a taxable person who, in a given prescribed accounting period, makes no payment of VAT to the competent national authorities but receives a payment from them because, in that period, the amount of VAT that he is entitled to deduct exceeds the amount of VAT due in respect of supplies made by him.) 4. Is the answer to Question 3 affected by whether or not there is evidence that the difference of treatment between traders making claims for the repayment of overpaid output tax and traders making claims for additional amounts by way of input tax deduction (resulting from the over declaration of output tax) has, or has not, caused any financial loss or disadvantage to the former and, if so, how? 5. If, in the situation described in Question 3, the Community law principles of equal treatment and fiscal neutrality apply and would otherwise be infringed, does Community law require or permit a court to remedy the difference of treatment by upholding a trader’s claim to a repayment of overpaid tax in such a way as to enrich him unjustly or require or permit a court to grant some other remedy (and, if so, which)?”; and that further consideration of the appeal be adjourned sine die.
6.Principal and Fellows of Newnham College in the University of Cambridge (Respondents) v. Her Majesty’s Revenue and Customs (Appellants)—The appeal of the Commissioners for Her Majesty’s Revenue and Customs was presented and it was ordered that in accordance with Standing Order VI the statement and appendix thereto be lodged on or before 11th October.
7.Appeal Committee—The 117th Report from the Appeal Committee was agreed to and the following Orders were made—

Johnson (Petitioner) v. Perot Systems Europe Limited and another (Respondents)—That the petition be dismissed as inadmissible.

Gover and others (Petitioners) v. Propertycare Limited (Respondents)—That the respondents be invited to lodge objections by 26th July.

Mando (FC) (Petitioner) and 4 v. Secretary of State for the Home Department (Respondent)—That leave to appeal be refused; that the costs of the petitioner be taxed in accordance with the Access to Justice Act 1999; and that the respondent be at liberty to apply for his costs in accordance with direction 5.1(c); and, if the application is granted, that the amount thereof be certified by the Clerk of the Parliaments if not agreed between the parties.

SN (FC) (Petitioner) v. Secretary of State for the Home Department (Respondent)—That leave to appeal be refused; that the costs of the petitioner be taxed in accordance with the Access to Justice Act 1999; and that the respondent be at liberty to apply for his costs in accordance with direction 5.1(c); and, if the application is granted, that the amount thereof be certified by the Clerk of the Parliaments if not agreed between the parties.

ZT (FC) (Petitioner) v. Secretary of State for the Home Department (Respondent)—That leave to appeal be refused; that the costs of the petitioner be taxed in accordance with the Access to Justice Act 1999; and that the respondent be at liberty to apply for his costs in accordance with direction 5.1(c); and, if the application is granted, that the amount thereof be certified by the Clerk of the Parliaments if not agreed between the parties.

KM (FC) (Petitioner) v. Secretary of State for the Home Department (Respondent)—That leave to appeal be refused; that the costs of the petitioner be taxed in accordance with the Access to Justice Act 1999; and that the respondent be at liberty to apply for his costs in accordance with direction 5.1(c); and, if the application is granted, that the amount thereof be certified by the Clerk of the Parliaments if not agreed between the parties.

The House was adjourned during pleasure.

The House was resumed.

Papers

8.Command Paper—The following paper, having been presented to the House by command of Her Majesty, was ordered to lie on the Table:

Industrial Injuries—Report by the Industrial Injuries Advisory Council reviewing the prescription of extrinsic allergic alveolitis for work involving exposure to mists from metalworking fluids.

(6867)

Page 1036

2005-06

Volume 239

Back to top

9.Negative Instruments—The following instruments were laid before the House and ordered to lie on the Table:
1.Education (Pupil Registration) (England) Regulations 2006, laid under the Education Act 1996;
 (1751)
2.Local Justice Areas (No. 1) Order 2006, laid under the Courts Act 2003;
 (1839)
3.Export of Radioactive Sources (Control) Order 2006, laid under the Export Control Act 2002;
 (1846)
4.Civil Procedure Act 1997 (Amendment) Order 2006, laid under the Civil Procedure Act 1997.
 (1847)
10.Papers not subject to parliamentary proceedings—The following papers were laid before the House and ordered to lie on the Table:
1.Report and Accounts for 2005-06 of the Health Protection Agency, together with the Report of the Comptroller and Auditor General, laid under the Health Protection Agency Act 2004;
2.Accounts for 2005-06 of the Nursing and Midwifery Council, laid under the Nursing and Midwifery Order 2001;
3.Report and Accounts for 2005-06 of the Land Registry, laid under the Government Trading Funds Act 1973;
4. (i)Report for 2005-06 of the Parliamentary and Health Service Ombudsman—
(ii)Accounts for 2005-06 of the Parliamentary and Health Service Ombudsman—
 laid under the Parliamentary Commissioner Act 1967;
5.Report and Accounts for 2005-06 of the Gambling Commission, incorporating the Accounts of the Gaming Board for the period until 30th September 2005, laid under the Gaming Act 1968;
6.Report and Accounts for 2004-05 of the Criminal Injuries Compensation Authority, laid under the Criminal Injuries Compensation Act 1995;
7.Report for 2005-06 of the Secretary of State for Communities and Local Government on Performance in Complying with Statutory Timetables for Planning Decisions, laid under the Planning and Compulsory Purchase Act 2004;
8.Report and Accounts for 2005-06 of Passenger Focus, laid under the Railways Act 2005.

Select Committee Reports

11.Statutory Instruments—The following Reports from the Joint Committee were made and ordered to be printed:

33rd Report on certain statutory instruments; (HL Paper 225)

2nd Special Report: Departmental Returns 2005. (HL Paper 230)

12.Delegated Powers and Regulatory Reform—The following Report from the Select Committee was made and ordered to be printed:

24th Report, on the following bills:

Disabled Persons (Independent Living) Bill [HL];

Education and Inspections Bill—Government Response;

and on the following draft order under the Regulatory Reform Act 2001:

Draft Regulatory Reform (Agricultural Tenancies) (England and Wales) Order 2006. (HL Paper 226)

Public Business

13.Water and Sewerage Services (Miscellaneous Provisions) (Northern Ireland) Order 2006—
14.Budget (No. 2) (Northern Ireland) Order 2006—
15.Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006—

It was moved by the Lord Rooker that the draft Orders laid before the House on 5th, 6th and 12th June be approved en bloc; the motion was agreed to.

16.Education and Inspections Bill—The House again resolved itself into a Committee upon the bill; amendments were moved and (by leave of the Committee) withdrawn; the House was resumed.
17.General Lighthouse Authorities (Beacons: Automatic Identification System) Order 2006—It was moved by the Lord Davies of Oldham, on behalf of the Baroness Crawley, that the draft Order laid before the House on 12th June be approved; after debate, the motion was agreed to.

Page 1037

2005-06

Volume 239

Back to top

18.Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2006—It was moved by the Lord Davies of Oldham that the draft Regulations laid before the House on 14th June be approved; after debate, the motion was agreed to.
19.Education and Inspections Bill—The House again resolved itself into a Committee upon the bill; amendments were agreed to; amendments were moved and (by leave of the Committee) withdrawn; the House was resumed after amendment 57A.

The House was adjourned at twenty minutes before eleven o’clock
till tomorrow, eleven o’clock.