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Noble Lords may have forgotten, conveniently, that we have already agreed to set up a new committee on regulators, whose work will start very shortly. I am afraid that that new ad hoc committee this coming Session has to take priority over the communications committee that, if the House agrees to this report, will be set up. It is really a question of staff resources, not of finance. We simply do not have the staff available to clerk another new committee. I hope that it will be before Easter—we will do our best to make it so.

On Question, Motion agreed to.

Mental Health Bill [HL]

3.48 pm

Baroness Royall of Blaisdon: My Lords, I beg to move the Motion on the Order Paper standing in the name of my noble friend Lord Warner.

Moved, that it be an instruction to the Committee of the Whole House to which the Mental Health Bill [HL] has been committed that they consider the Bill in the following order:

Clause 1,

Schedule 1,Clauses 2 to 20,Schedule 2,Clauses 21 to 25,Schedules 3 and 4,Clauses 26 to 32,Schedule 5,Clauses 33 to 38,Schedules 6 to 8,Clauses 39 to 41,Schedule 9,Clauses 42 and 43,Schedule 10,Clauses 44 to 47.—(Baroness Royall of Blaisdon.)

On Question, Motion agreed to.

Tribunals, Courts and Enforcement Bill [HL]

3.48 pm

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, on behalf of my noble friend Lady Ashton of Upholland, I beg to move that this Bill be now read a second time.

I am delighted to be moving the Second Reading of the Bill today. I pay tribute to three people who have done the most to bring it before us. My predecessor and noble and learned friend Lord Irvine of Lairg, who sadly is not in his place, started the inquiry into tribunals that led to the Leggatt recommendations that led in part to the Bill. I also pay tribute to the noble Lord, Lord Newton of Braintree—the exit of people who are, I am disappointed to see, not staying

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for Second Reading obscured him from my view for a moment, but I see him now. He has done so much for tribunals. My noble friend Lady Ashton of Upholland too has pressed within government for tribunals, which has led to the Bill being before us today.

The Bill aims to improve the experience of the public in its dealing with legal and connected problems. In addition, it provides a regime to allow cultural artefacts to come to this country for exhibition without undue risk of seizure. In all too many cases, the public’s experience of legal problems is difficult and complicated. Tribunals are the bodies which resolve most legal disputes in this country. In this Bill we introduce reform to the tribunal system to protect tribunal members’ independence and to make tribunals more accessible and comprehensible to the public. In addition, and separately, we change the eligibility for people who can apply to become non-tribunal judges and we extend the pool for judges. Merit, which is high, will improve. Also, and separately, we make the enforcement of civil debts and judgments more efficient and subject to safeguards and, also separately, introduce additional measures for those who have fallen into debt from which they cannot emerge to put their affairs in order for their benefit and for the benefit of their creditors.

First, tribunals are a large part of the justice system, making a significant contribution. They deal with over 500,000 disputes a year, often involving the most vulnerable in society—those who have been victims of crime, persecution, discrimination or unfair treatment, or who are involved in disputes over benefit entitlement, tax, asylum or employment. Tribunals are one of the most visible aspects of the justice system. Members of the public with a dispute to resolve are more likely to have direct experience of a tribunal than any other part of the justice system. I pay tribute to the many people, legally qualified and otherwise, who play their part in the tribunal system as members or chairs of tribunals. They do an excellent job and should be congratulated.

The public need confidence that they can obtain justice in their dealings with the state and in their workplace. They need access to institutions that enable them to resolve their disputes quickly, fairly and proportionately. They need a place to go where they believe that they can get justice without undue expense. Tribunals have grown in a disparate and unstructured manner over many years. Change is long overdue. That is why my predecessor, my noble and learned friend Lord Irvine of Lairg, asked Sir Andrew Leggatt, with Dame Valerie Strachan, to undertake the Legatt review.

Sir Andrew’s excellent review found many faults with the tribunals system, most notably the lack of independence of tribunals from the government departments that sponsored them. He recommended a system which would be independent, coherent, professional, cost-effective, user-friendly and, as he described it,

For these reasons, I have already taken steps to bring the administrative support for tribunals

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together in a single service in my department. I launched the Tribunals Service in April this year with a mission to provide a single coherent administration for central government tribunals, so that the independence of tribunals from government is strengthened and to ensure that they have the best possible support to be able to resolve disputes quickly, fairly and economically. The Bill now reforms the tribunals themselves with a similar aim in mind.

First and foremost, Chapter 1 of Part 1 puts it beyond doubt that the tribunal judiciary is independent from the Executive and that the tribunals themselves are independent of the departments which make the decisions under review. It is right that this has happened and it strengthens our commitment to increasing public confidence in tribunals. It is a vital part of the Bill.

Part 1, Chapter 1, creates a new judicial office, the Senior President of Tribunals. The senior president will be the leader of the tribunals system and will hold a distinct statutory and independent office. Lord Justice Carnwath has filled this post on a non-statutory basis and I pay tribute to the leadership that he has already displayed.

Chapter 2 creates a new statutory framework for tribunals. It creates a two-tier system. The first-tier tribunal will deal mainly with first instance appeals from government departments and local authorities. The upper tribunal will deal with appeals on questions of law from the first-tier tribunal. It will also be able, with the consent of the Lord Chief Justice and the Lord Chancellor, to deal with judicial review cases in the specialist areas covered by tribunals and which are transferred by the High Court or Court of Session.

Chapter 3 of Part 1 will allow me to transfer to this two-tier system the work of the tribunals in Schedule 6. We envisage that occurring 12 to 18 months after Royal Assent. It will bring tribunals dealing with, for instance, social security, tax, mental health and special educational needs into this new structure. The Asylum and Immigration Tribunal, the Employment Tribunals Service and the Employment Appeal Tribunal will retain their existing legal frameworks, acting as separate pillars of the new structure. They will still enjoy the benefits of the overarching Tribunals Service’s single administrative structure. The tribunal reforms will create a single pool of tribunal judges and non-legal members. Judges and members will be able to sit in more than one jurisdiction, provided that they have the appropriate skills or experience.

Chapters 4 and 6 of Part 1 set out ancillary matters in relation to the tribunal system. Chapter 5 replaces the Council on Tribunals with a new Administrative Justice and Tribunals Council. The new body will have a wider remit to look at the administrative justice system as a whole, ensuring that the relationships between the courts, tribunals, ombudsman and alternative dispute resolution routes satisfactorily reflect the needs of users. I pay specific tribute to the noble Lord, Lord Newton of Braintree, for his leadership of the Council on Tribunals and the support and assistance that he and the council as a

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whole have provided in developing these reforms. I hope I can say these reforms have his support, but he can say so himself later in the debate, if that is his position.

Lord Clinton-Davis: My Lords, on the whole I support what the Bill is intended to do. I am concerned, however, about the fact that legal aid will not be available. My submission is that if the tribunal considers that legal aid, involving legal representation, is helpful as far as time-saving and complex issues are concerned, should that not be dealt with in the Bill?

Lord Falconer of Thoroton: My Lords, my noble friend has been a staunch supporter of tribunals, and has acted for people on legal aid for many years. In this Bill we deal with the structure of tribunals, in so far as we deal with them at all. Legal aid is a different issue, and I am supportive of the proposition that, for issues such as welfare benefit, legal aid should be more widely available than it is at the moment. However, that requires first of all getting a grip on criminal legal aid to ensure that some money is available.

I see that the noble and learned Lord, Lord Lloyd of Berwick, is poised. I am not sure if he wants me to go on for a bit before he lunges in with legal aid. I shall explain a bit more about the Bill. I am grateful.

Lord Lloyd of Berwick: My Lords—

Lord Falconer of Thoroton: Prematurely grateful.

Lord Lloyd of Berwick: My Lords, I have a question to ask before the noble and learned Lord leaves the subject of tribunals. Like him, I entirely support the thinking behind the Bill, particularly this part of it, which is the only part I have so far taken in. I am worried about new Section 31A(7)(b) in Clause 19, which seems to give the Lord Chancellor the power to give a direction to exclude ordinary judicial review as we know it from immigration cases. That has been a great problem in the past, as the noble and learned Lord will remember. If that is the effect of the clause, we will need to look at it very carefully in Committee, but maybe I have misunderstood it.

Lord Falconer of Thoroton: My Lords, the intention of the Bill is not to revisit the territory to which I think the noble and learned Lord is implicitly referring. The intention is to refer to the upper tier of the tribunal issues that are currently dealt with by the High Court; for example, specific tax questions or vires questions about, say, social security, and some immigration questions that, with the agreement of the Chief Justice and the Lord Chancellor, would be better dealt with by tribunals. It is not intended at all to oust judicial review in the sorts of area to which the noble and learned Lord is referring. Perhaps I may give more detail on that. The intention is certainly not to do by the back door that which we withdrew by the front door.



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Finally on tribunals, Clause 26, paragraph 42 of Schedule 8 and Clause 133 make it easier for those who are awarded compensation as a result of a tribunal decision or an ACAS-brokered settlement to have that award or settlement enforced. We believe that that will further increase confidence that justice can be delivered effectively.

I move from tribunals to judicial appointments, which are not to tribunals but to the courts. Part 2 amends the minimum eligibility requirements for judicial appointments. Under it, eligibility for becoming a judge will comprise three elements. First, the applicants will have to be suitably qualified as a barrister, solicitor or, for some appointments, legal executive, patent agent or trademark attorney. Secondly, they must have held this qualification for seven or five years, depending on the post. That will be a reduction from the current 10 and seven-year qualification periods. Thus the qualification required for circuit and High Court judges will be reduced from 10 to seven years and the qualification for district judges from seven to five years. Tribunal appointments will also be changed in this way.

Thirdly, during this qualifying period they must have gained post-qualification legal experience. This would include, for example, practice or employment as a lawyer, acting as an arbitrator or mediator, carrying out judicial functions, or teaching or researching law. These changes will increase the pool of those eligible for application and appointment, particularly by enabling fellows of the Institute of Legal Executives, patent agents and trademark attorneys to become eligible to apply for judicial office, and by shortening the qualifying period. But the changes will also ensure that those in the pool have actually been engaged in legal work after qualifying.

Overall, I have no doubt that the numbers in the pool will increase. Of course all appointments will continue to be made on merit and merit alone. This remains the test of suitability.

Lord Maclennan of Rogart: My Lords, would the Lord Chancellor care to take this opportunity to indicate whether the pool is too small? I have heard that, so far as the appointment of district judges is concerned, there was a pool of 600 from which 60 had to be chosen. It does not suggest a shortage in total numbers.

Lord Falconer of Thoroton: My Lords, it does not suggest a shortage in numbers; the question is whether one gets the right quality. I think that one does in relation to district judges, but I do not think that a reason for artificially restricting the pool. If there are people with the right qualification, I see no reason why they should not be considered. The wider the pool—or deeper, depending on how you look at it—the higher the merit.

Baroness Butler-Sloss: My Lords, may I seek the Lord Chancellor’s advice on whether widening the pool to include legal executives, patent agents and so on is intended for all appointments to the Bench, or at a lower level?



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Lord Falconer of Thoroton: My Lords, the qualifications are defined in statute as seven years’ experience for a circuit judge, X years for a district judge and seven years for a High Court judge. One would also need to have seven years of experience as, for example, a patent agent. However, although seven years acting as, for example, a trademark agent would formally qualify one to be, for example, a Family Division High Court judge, I cannot imagine that the Judicial Appointments Commission would put such a person forward. But such a qualification would obviously fit one to be, for example, a patent judge of some sort. But the qualification is framed for everybody in that way.

Merit remains the test of suitability and the Judicial Appointments Commission, ably led by the noble Baroness, Lady Prashar, will continue to apply it rigorously. But I firmly believe that the larger and deeper the pool of people qualified to apply to be a judge, the higher the quality will be of those who are appointed.

Finally in Part 2, Clauses 50 to 52 and Schedule 11 make improvements in the arrangements for some specific judicial appointments. In particular, they qualify the responsibility for appointing part-time deputy district judges and deputy masters and registrars of the current Supreme Court and change the procedures for making appointments to three tribunals.

I turn to a new topic, enforcement of judgments by taking control of goods. With a few minor exceptions, Chapter 1 of Part 3 provides a comprehensive code for the enforcement of civil debts, judgments and criminal fines by the seizure and sale of goods. Change is long overdue. Some elements of the law relating to enforcement by seizure and sale of goods date back as far as 1267. An enforcement agent’s powers to seize and sell goods when enforcing judgments and debts have hitherto been set out in a variety of places, with different rules applying to different debts, depending, for example, on whether the debt enforced was a tax debt or a county court judgment.

The disparate nature of the rules is confusing. My predecessor and noble and learned friend Lord Irvine of Lairg asked Mr Justice Beatson to conduct a review. This thorough and extremely valuable work forms the basis of much of this part of the Bill. The key recommendation of the review was that the rules relating to the seizure and sale of goods should be set out clearly in one place and that the differences between the various schemes should, where possible, be eliminated. The review also recommended that the rights and responsibilities of all parties should be clearly laid out. The Bill does this through Clauses 54 and 57 and Schedules 12 and 13. It replaces numerous common-law rules and repeals various statutory provisions and replaces them with a comprehensive code for enforcement by taking control of goods. We believe that everyone—creditors, debtors and enforcement agents—will benefit from clear and modernised enforcement law. The changes will also control the actions of enforcement agents and

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introduce a simplified fee structure applicable to enforcement agents when seizing and selling goods to enforce judgments or debts.

Coupled with this, Clauses 55 and 56 also introduce greater regulation of enforcement agents who are not Crown employees or constables. Currently, only certain enforcement agents are required to hold a certificate issued by a county court judge under the Law of Distress Amendment Act 1888. The Bill extends and modifies certification to cover any enforcement agents wishing to seize and sell goods for the enforcement of judgments and fines who are not exempt. The certification process, which will be set out in regulations made under Clause 56, will also be enhanced. To qualify for such a certificate, agents will have to have completed suitable training and will be subject to a strict criminal record check. The level of fine for acting without a certificate will be increased from £200 to £5,000. Taken together, these measures will help to protect the vulnerable from overzealous or illegal pursuit of debts.

Chapter 2 of Part 3 also abolishes the common-law right of distress for rent and replaces it with a new, more limited power of commercial rent arrears recovery, which will apply only to the seizure and sale of goods in the enforcement of commercial rent arrears. The procedure will not apply to residential premises.

Part 4 aims to ensure that creditors receive the money to which they are properly entitled. Clause 83 will simplify and streamline the arrangements for deducting payment of a judgment debt direct from a debtor’s salary. In future, deductions from salary will be made according to fixed rates, as they are for council tax debtors, rather than on an individual case-by-case basis. A further difficulty which Part 4 seeks to address is the lapse of these orders where debtors change employers. Currently, the court depends on the debtor to provide up-to-date information. This is unsatisfactory, so Clause 84 will allow Her Majesty’s Revenue and Customs to provide the court with the new employer’s details in such cases.

Clauses 85 and 86 in Part 4 also make changes to the law governing charging orders. In particular, they close a loophole in the current law that prevents the sale of a charged property if the debtor is maintaining payments under an instalment order. Part 4 will also help the civil courts track missing judgment debtors. It cannot be right for those who owe money and have a judgment made against them to avoid payment by going to ground. Clauses 87 to 94 therefore include measures to allow the courts to seek information about a debtor from Her Majesty’s Revenue and Customs and a designated Secretary of State. The Secretary of State for Work and Pensions is likely to be designated for those purposes. The courts will also be empowered to request information from other bodies designated in regulations made by me to assist in the enforcement of judgments. We anticipate that banks and credit reference agencies will be designated for those purposes. Safeguards are built into the

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process in Clause 94 in the form of new offences to ensure that information collected in this way is not abused.

At the same time, Part 5 affords greater protection to those who should be able to pay but are unable to deal with their financial problems or require temporary protection to enable them to get back on their feet. It also deals with those who cannot pay their debts and are unable to access current procedures of debt relief. Part 5 introduces a package of targeted measures that improve and extend the range of solutions available to assist debtors with relatively low income and debts. Those solutions seek to promote financial inclusionand are targeted, in particular, at those who are disproportionately affected by debt and are generally least able to deal with a range of creditor demands.

Part 6 covers an entirely separate category to the rest of the Bill. It will provide immunity from seizure for cultural objects that are lent to the United Kingdom for temporary exhibitions to the public at any museum or gallery that is approved by the Secretary of State. We currently have no such anti-seizure legislation, and foreign lenders are becoming increasingly reluctant to lend works of art to the United Kingdom. The problems that that may cause were illustrated by the seizure, in 2005, of 55 Russian impressionist paintings on loan to an exhibition in Switzerland, under a court order obtained by one of Russia’s creditors. That places us at a serious disadvantage compared with other countries, which will ultimately limit our museums’ ability to stage major exhibitions.


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