Previous Section Back to Table of Contents Lords Hansard Home Page

Our museums are already having problems in arranging exhibitions. An important Chinese exhibition planned by the British Museum for 2004 was cancelled after a major loan from Taiwan could not be secured because the lender could not be assured that the material would be protected from seizure while it was in the United Kingdom. The immunity that we propose will be for only a temporary period and will apply only to works of art that are to be put on public display. It will not apply to objects that are coming here for sale, or objects on long-term loan to museums. Works of art that are usually kept in the United Kingdom, or are owned by a UK resident, will not qualify for protection. The immunity will only provide protection from seizure. It will not protect museums in the UK or lenders from being subject to a claim in conversion. Specific restitution of a work of art being claimed is only one of the remedies that the court can award; it can also award damages.

The immunity will only be given to museums and galleries approved by the Secretary of State for Culture, Media and Sport. We will be looking very carefully at the procedures for due diligence followed by each museum wanting immunity before approval is given. We have published a code of practice setting out guidelines on the due diligence that should be undertaken by a museum that is considering the acquisition or loan of cultural material. If museums do not maintain high standards of due diligence, and in particular if they do not follow these guidelines,

29 Nov 2006 : Column 767

they risk that approval—and the protection given by these provisions—being withdrawn.

Part 7 contains miscellaneous provisions, including measures to allow the High Court in judicial review proceedings to substitute its decision for that of a court or tribunal where the original decision is quashed on the grounds that there has been an error in law. Part 8 contains general provisions, including those relating to extent and commencement.

This is an excellent Bill. The proposed reforms will have a profound effect on the lives of many people. The Bill will improve access to justice, reform institutions to deliver better services to users and deliver reforms to protect many of the most vulnerable in society. I commend this Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)

4.14 pm

Lord Newton of Braintree: My Lords, I had been going to start by declaring my rather direct and specific interest as chairman of the Council on Tribunals, but the noble and learned Lord the Lord Chancellor has very kindly already done that for me, and I am grateful to him. I certainly should declare that interest in opening my remarks. Unlike those of the noble and learned Lord the Lord Chancellor, my remarks will focus entirely on the part of the Bill concerning tribunals. On that front, I am rather in the same situation as the noble and learned Lord, Lord Lloyd of Berwick, in that on the rest of the Bill I am less well sighted, and I certainly have no wish to become embroiled today in the controversy which appears to surround the recently added Part 6, on which I make no comment.

Even if I did not have the interest which I have just mentioned, I would welcome the most significant legislation on tribunals since the Tribunals and Inquiries Act 1958, which flowed from the 1957 Franks report and which, among other things, established the Council on Tribunals.

As the noble and learned Lord the Lord Chancellor indicated, in the intervening period of nearly 50 years, tribunals have proliferated—some would say over-proliferated—as an accepted and important means of resolving disputes between the citizen and the state, as well as in resolving disputes between one private party and another, notably, but not only, in the field of employment. Indeed, even as long as a quarter of a century ago—here, again, I echo something that the Lord Chancellor said but in a slightly different way—the Royal Commission on Legal Services, which reported in 1979, pointed out that the number of cases heard by tribunals was six times the number of contested civil cases disposed of at trial before the High Court or the county courts.

Despite the growing importance of all this to the citizen, tribunals have generally had much less attention than courts, whether civil or criminal. They have—to use a phrase that I first learnt in relation to

29 Nov 2006 : Column 768

mental health in another capacity many years ago—been a bit of a Cinderella in our system of justice. Therefore, as the Lord Chancellor rightly said, it is much to the credit of his predecessor, the noble and learned Lord, Lord Irvine of Lairg, that he recognised the need for a wide-ranging fresh look at the tribunal scene in the 21st century and commissioned Sir Andrew Leggatt to produce his report of March 2001. I, too, pay tribute to Sir Andrew for producing such a significant report in a remarkably short time—only about a year. Its title, Tribunals for Users: One System, One Service, was a good reflection of its recommendations, and it has very much paved the way for where we are today.

I want to pay tribute to one or two others. The first is the present Lord Chancellor, who carried the work forward so effectively into the 2004 White Paper, Transforming Public Services: Complaints, Redress and Tribunals. The second is the predecessor of the noble Baroness, Lady Ashton, the noble Lord, Lord Filkin, who, I am glad to see, has now joined the proceedings. He played a key role in bringing into that White Paper the wider perspective of the administrative justice landscape as a whole and set tribunals into the broader context.

Now we have this Bill, which—again, I am almost repeating what the Lord Chancellor said—brings another name into the list of credits. I agree with the noble and learned Lord that the noble Baroness, Lady Ashton, who will be winding up the debate, has played a huge part with her energy, enthusiasm and commitment, not to mention what I hope I may call without embarrassing her some pretty skilful manoeuvring with the business managers behind the scenes—I ask the Minister whether I am allowed to say that—to get this Bill before us today.

I am happy that, from what the Lord Chancellor said, it has been possible to make much progress in the direction of the Leggatt recommendations, even in advance of the Bill. Since April this year we have had the Tribunals Service, under the auspices of the Department for Constitutional Affairs, bringing together many of the largest and most significant tribunal systems from around Whitehall. That is already opening the way to better service, better use of resources and better career opportunities for staff. There is a senior president-designate in place—a role that Lord Justice Carnwath has fulfilled to very good effect.

All of that is a clear gain and it moves us in the right direction towards real independence of tribunals. If I may indulge in a small reminiscence, nearly 25 years ago, when I was working for my noble friend Lord Fowler in the modest capacity of a junior Minister, I was responsible for a reform of the social security appeals system, although officials did a lot of the work, of course. One ingredient of that was the creation of a presidential system and transferring the appointment of the senior judiciary from what was then the DHSS to the Lord Chancellor’s Department. I remember thinking and, indeed, saying—although not in public at the time—that I did not see why we could not sensibly transfer the whole lot to the Lord

29 Nov 2006 : Column 769

Chancellor’s Department. That was a bridge too far, and I am glad that, nearly 25 years later, what I thought was right then is being done.

For all the advantages of the practical progress made, we need this Bill, for reasons that the Lord Chancellor touched on, not least to allow more flexible use of the tribunal judiciary, to reinforce the role of the Senior President of Tribunals and to get rid of something that I know he is a little sensitive about: the slightly tentative flavour conveyed by the word “designate”. It will be much easier when he is senior president and not senior president designate, so the sooner the Bill is enacted the better.

In the few minutes left to me, I want to acknowledge my special interest in Clauses 42 and 43 and Schedule 7, concerning the evolution of the Council on Tribunals into an Administrative Justice and Tribunals Council, which will play a part on that wider Filkin landscape. Although the form of the Bill suggests revolution, abolition and then a new body, I hope that the Minister will confirm that an evolutionary, rather than a revolutionary, process is intended, as far as is possible. In answer to the Lord Chancellor, the Council on Tribunals and I strongly support evolution into a somewhat different body with a wider role.

It is intended that we retain our oversight of tribunals and inquiries but be given a wider function of keeping under review the administrative justice system as a whole. That fulfils a long-standing aspiration of the council, going back to a special report in 1980—I did not know that until I received some notes for today’s debate—which gives concrete expression to Leggatt’s concept of the council as the hub of the wheel of administrative justice. With the support of the department, we are already preparing for that new role, even in advance of the legislation, as far as we can.

We have greatly developed our partnerships with other interested bodies—academics, the advice sector, the Judicial Studies Board in particular, the Law Commission and the British and Irish Ombudsman Association—and we have started to be more proactive in arranging and attending conferences and seminars. Indeed, both the Ministers on the Front Bench did me the honour of attending the Council on Tribunals conference less than a fortnight ago. It is not often that Ministers hunt in pairs; I am grateful to them. We are already moving in a direction which I hope will, with the support of Ministers and the department, fulfil both the aspirations and provisions of the Bill.

I conclude by saying simply that one thing will not change. The watchwords of Franks, which have been watchwords of the Council on Tribunals, were “openness, fairness, impartiality”. Those will continue to be the watchwords of the Administrative Justice and Tribunals Council, and I share the view of the government Front Bench that the tribunal provisions of the Bill will help to make those concepts even more of a reality in the day-to-day working of the system. The sooner this part of the Bill becomes law the better.



29 Nov 2006 : Column 770

4.25 pm

Lord Thomas of Gresford: My Lords, as we have already heard, the menu is slightly mixed up today. I hope that your Lordships will forgive me if I open and my noble friend Lord Maclennan replies.

I will not follow the noble Lord, Lord Newton of Braintree, in lengthy credits, but I detect here the hand of the noble and learned Lord, Lord Irvine of Lairg, who started this process and has been responsible for the most important and significant reforms in 10 years of this Government. I pay tribute to his successors for bringing this work forward. Equally, I pay tribute to Sir Andrew Leggatt for his excellent report.

We welcome the Bill as a whole. Parts require clarification and explanation, and we shall no doubt delve into it in considerable detail in Committee. The first principle emerging from this reformed single structure for tribunals is its independence of the government departments concerned in having decisions appealed. In the past, it was always difficult to feel that one was getting a fair hearing when one appealed a government decision, perhaps made at a lowly level, to a tribunal within the same ministry. I welcome the independence of the new tribunals. Equally, there is the independence of those who will administer and man the tribunals both as judges and members. We are glad to see that.

The provision of the first-tier and upper tribunals appears to envisage an appeal from one to the other. I would like clarification. Under the “Review of decisions and appeals” part of Chapter 2, it seems that someone aggrieved by a decision may appeal to the upper tribunal only with leave. It is not an appeal as of right. The decision of the upper tribunal is discretionary, because it may refuse a remedy even if there is an error on a point of law. That smacks of judicial review, and it is consequently rather surprising to see that the process by which appeals are to be carried out by judicial review is parallel to this right of appeal requiring leave and with a discretionary remedy. I wondered which way I would choose if I were advising a person aggrieved by a decision to appeal against the first-tier tribunal. Would it be Clause 11 or Clause 15(1)? What is the difference? What is the practical reason for such duplication of a right of appeal?

The tribunal procedure rules must be simple and straightforward. I am sure that it is envisaged by those who put the Bill forward that, as at present, many individuals will appeal without legal assistance. The procedure rules will therefore need to be very clear and straightforward and the practice directions that are laid down for the procedures of these tribunals must be user-friendly. It must be possible for individuals to exercise their powers simply and easily. However, if one sets up tribunals of this nature, a structure of precedents that will apply across the range of the tribunals is bound to develop, so that what happens in one chamber, as it is proposed, and the decisions that are made there will be relevant to future decisions and the future consideration of whether application should be made.



29 Nov 2006 : Column 771

Once one gets into precedents, reports and so on, lawyers are inevitably going to be involved, and it will be difficult for an individual to present his case properly without proper legal assistance. For that reason, I support the intervention of the noble Lord, Lord Clinton-Davis, about legal aid. I note that the noble and learned Lord the Lord Chancellor said that legal aid would be more widely available. In practice at the moment, young barristers and solicitors act pro bono in many of these tribunals and cut their teeth on them. I remember doing so myself. In 1972, I appeared on a judicial review on the War Pensions Tribunal. I was entirely on my own and had a back sheet from my brother, who is a solicitor, but no instructions except from the client. On the other side was the noble and learned Lord, Lord Woolf, who was the Senior Treasury Counsel at that time, and who was backed, as I recall, by some 12 civil servants, lawyers and so on. I am afraid that he lost, but that was the nature of the case.

It is important that there is equality of arms and that lawyers who appear in these tribunals should not simply do it for nothing. Nobody can make a living by appearing in tribunals as they have been structured to the present time, so I hope that the construction of a proper division of the Supreme Court for these tribunals will produce proper rewards for those who seek to make a career in the very rewarding area of assisting the most vulnerable people in the community. For that reason, I will look with some care at the circumstances in which costs can be awarded against an unsuccessful litigant under Clause 28 and shall also want to know a little more about the fees that it is proposed to charge under Clause 40.

I wish that the part of the Bill on tribunals had come forward separately, not with all the stuff that follows tagging along. However, it contains the outlines of an excellent structure that will serve the people of this country well for a long time. None the less, we must try to clarify some of the issues that arise.

I welcome the extension of the pool for judicial appointments. I am glad that the noble and learned Lord the Lord Chancellor has recognised my friends in ILEX, who do sterling work as legal executives. They deserve to be considered for judicial appointments. I am sure that the same goes for patent agents and trademark attorneys. I am a little concerned about the manner in which the Lord Chancellor may extend, by regulation, the categories of people available for judicial appointments. I suppose that it is impossible to tie his hands at this stage, but I should like to know a little more about which areas he is thinking of.

Part 3 is on enforcement by taking control of goods. I am very sorry that the Government have held back from pursuing the proposals set out in the White Paper Effective Enforcement, which was to require the regulation of bailiffs. I am delighted that the noble Lord, Lord Lucas, is raising this point and has tabled a Bill to that effect. It seems to me that bailiffs should be properly regulated.



29 Nov 2006 : Column 772

Some of your Lordships may recall that my noble friend Lady Walmsley took a case on judicial review to the High Court, which she conducted herself. Incidentally, there were 19 lawyers and civil servants on one side and only her conducting her case—and she won. She was judicially reviewing the decision of PATAS, a parking authority. On the very day of, or the day before, the hearing, bailiffs were standing at her door demanding her furniture. She already had leave to bring judicial review proceedings. She was all ready to go and to pursue her remedies in the High Court, but the court had instructed the bailiffs. The bailiffs were there, and an attempt to reverse that situation showed that there was absolutely no communication between this firm of bailiffs, the court and the ultimate client. It is a very unhappy fact that those who operate as private firms do not seem to have proper communication with those who instruct them. I shall support very much the comments of the noble Lord, Lord Lucas.

Part 4 is about the enforcement of judgments and orders. The first thing one learns as a young solicitor is that it is not enough to get the judgment; you have to get the money, too. Consequently, ways of enforcing judgments that are more streamlined are to be commended. We need to discuss whether it is right to standardise the fixed rates for attachment of earnings orders. At the moment, the attachment of earnings goes before a judge and the individual circumstances of the person who is the debtor are considered on a case-by-case basis. This is to be replaced by standardised rates, which are all very bureaucratic and simple, but may very well bring about injustice in particular areas.

Information requests and orders must also be considered. Is it right that the Inland Revenue should be handing out information concerning its clients? We will need to see what regulations are put forward to prevent disclosure of the information to be obtained from the Inland Revenue and what safeguards are to be put in place as a result.

Part 5 deals with what is a major social problem and may very well be an increasingly major social problem. People are unable to deal with the amount of debt imposed on them in modern society, through advertising and so on. The various ways in which they may deal with that debt are addressed in Part 5. Some of those seem to be good ideas, and we will look at them with some care.

Part 6 is on the protection of cultural objects on loan. What on Earth that is doing in the Bill I cannot imagine. It has nothing to do with anything else that the Bill deals with. I understand the Government to be giving an assurance to those who would seek to loan items temporarily to selected museums in this country that the items loaned will not be seized in pursuance of a judgment debt by a creditor in this country. That is a good aim, but we must have regard to looted objects that find their way to this country. Is it enough to have a code of due diligence imposed on museums, as is currently the case, or do we need to strengthen that code significantly? Part 6 cannot go unchallenged. We will need to ensure that proper safeguards are in place.



29 Nov 2006 : Column 773

I mention only one last matter, which is tucked in at the very end in Clause 132. It states that the court, on judicial review, has power to substitute its own decision for the decision subject to that judicial review. That is contrary to the whole tide of history, but here it is, slipped under the carpet just as we are leaving the house. It is an extraordinary change of constitutional practice and procedure, but so far it seems to have created no stir at all. I am sure that it will before our proceedings come to a close.

I may say that I fully approve of the proposal; I have often found with judicial review that the final decision to remit the case back to those who made the wrong decision in the first place is an extremely irritating result, even if the largest amount of costs are awarded in addition. Although it is extraordinary to find this under the heading “Miscellaneous” in Part 7 of a Bill that also deals with cultural objects and loans, we welcome it.

There is clearly a lot of work to be done to consider all that and I look forward to that and to testing the stamina of the noble Baroness, Lady Ashton, and others in the process.

4.42 pm

Lord Beaumont of Whitley: My Lords, this is a large Bill and I will devote my speech only to Part 3. The noble Lord, Lord Newton, had a rather elegant phrase for avoiding dealing with other parts of the Bill; I will merely say that in my case it is due to pure ignorance. I will be asking for information from the Minister on various points on which my colleagues and I have been unable to collect the correct answers and will later suggest a new clause.

I regret that there is no attempt in the Bill to repeal or amend Schedule 4 to the Domestic Violence, Crime and Victims Act 2004, in particular, paragraph 3 of the new Schedule 4A to the Magistrates’ Courts Act 1980, which abolished the centuries-old common law preventing forced entry by bailiffs. It was abolished on 6 July 2004 by Standing Committee E considering a Department for Constitutional Affairs amendment to the Home Office’s Domestic Violence, Crime and Victims Bill in another place and passed in this House on 2 November 2004 without objection, after off-the-record discussions between the major parties.

Bailiffs’ powers are already excessive and the Bill increases them. In neither House was there any mention of either Semayne’s case in 1604 or Lord Denning's judgment in Southam v Smout, in which he cited William Pitt the Elder, the first Earl of Chatham. He said that it was the classic passage on the principle that an Englishman’s house is his castle. In 1767, William Pitt said:


Next Section Back to Table of Contents Lords Hansard Home Page