Previous Section Back to Table of Contents Lords Hansard Home Page

In this case, it is important to look at the scope of Clause 126. The object in question must normally be kept outside the United Kingdom, not owned by a person resident in the United Kingdom, and must be brought in for public display. The immunity extended to such an object would automatically expire after 12 months or at the end of the exhibition, whichever is earlier. The objects in question are not limited to those where there is a suggestion that their ownership might have changed under highly undesirable circumstances between 1933 and 1945. The only recent exhibition in London I know of that had to be cancelled because of objects that would have been on display was a British Museum exhibition of Chinese art, where the Taiwanese lenders could not lend because there was no immunity in force here.

The scope is not limited to Europe. The biggest problem concerns Russia, but our galleries will be unable to borrow for temporary exhibitions from the United States, Canada, France, Germany, Austria and all the countries where an immunity of this kind exists.

29 Nov 2006 : Column 789

It may be a matter of judgment but, in my view, a number of examples of spoliation of art stolen in the Nazi era have come to light precisely because the picture was on temporary exhibition. I am not sure that the noble Lord, Lord Janner, is right to feel that temporary exhibitions are wrong in this connection per se if some of the art turns out to be of suspect provenance. It is important to add that the immunity expires automatically, and in no way affects title. The claim is not extinguished by the temporary immunity; it is perhaps even stronger because the artefact has come to public notice. I hope that the House will support the Bill, and Part 6 in particular.

5.49 pm

Lord Maclennan of Rogart: My Lords, the speeches that we have just heard from the noble Lords, Lord Kerr, Lord Janner and Lord Howarth, have focused exclusively on the provisions of Part 6. Perhaps it would be appropriate to animadvert on what has been said before addressing the major thrust of the Bill.

There can be no doubt that the museums and galleries of this country have a justified concern that, as the law stands, temporary exhibitions with contributions from other countries may become increasingly difficult to mount. While it is possible to have the deepest understanding of the representations that museums and galleries have made to the Government about the need to take action, it is also possible legitimately to question whether the action proposed is appropriate or, as the noble Lord, Lord Howarth, suggested, whether it strikes a proper balance between the interests of exhibition and the interests of justice. For example, it may be called into question whether he is right to say that the problem essentially lies in the inability of other countries to give a remedy to those who believe that their work of art has been stolen. In a number of cases to which the galleries themselves drew attention, that possibility came to light only as a result of public exhibition in another country.

I do not think that the arguments are as clearly established as has been suggested. Indeed, it may be thought that the issue is of sufficient importance for it to have been proper to proceed by way of international agreement rather than by a national measure of this kind. The noble Lord, Lord Howarth, referred to attempts made by UNESCO and by others within the European Union to address this, but if those measures are insufficient, surely the proper approach is to go back and seek agreement. There could be a number of ways in which that could be done. For example, a list of works apprehended to be stolen could be established, and that list could be added to as prima facie but sufficiently compelling evidence to justify such a listing came to light.

It is not entirely satisfactory that we find ourselves being dictated to on these issues by any country, and there is a smack of dictation in the attitude of the Russians on this issue. As the museum directors have stated, the Russians have indicated that they will not be prepared to lend objects to countries that do not have legislation of this kind. That is a serious threat, and it has to be taken seriously. I do not blame the

29 Nov 2006 : Column 790

Government in the least for addressing it, but I think that there might have been, and still could be, better ways of tackling this.

I regret that this matter has come before us in the manner that it has. A matter that is arousing deep concern on both sides of the argument should not be appended to a Bill that is basically about the reform and updating of our administrative system. I fear that there may not be proper time during the passage of the Bill—I understand that the Government are anxious to have it on the statute book quite soon—to deal with this matter in a proper way. However, let us address this issue as best we can in the time that we have been given.

The first five parts of the Bill appear by and large to have enjoyed warm support in this House, particularly so far as the modernisation of administrative tribunals is concerned. They are based on careful recommendations by Sir Andrew Leggatt, Professor Beatson and others who set out arguments in extenso for most of the provisions in the Bill, although I will draw attention to one or two areas where the Government have somewhat disappointingly departed from the recommendations.

It may be asked why a system that has operated for 50 years—since the Franks report came out in 1957—needs such a total restructuring. The answer must in part be the amplification of the number of tribunals and the extension of the remedies that they provide in a somewhat ad hoc way. It is interesting to reflect on what the Franks committee said about the extent of the remedies on offer in 1957. It said:

I think that that no longer reflects the actuality of the relationship between the citizen and public administration in this country today. The network is very widespread and the arrangements are particularised.

The Bill makes provision for specialist areas, which are treated somewhat differently from the generality. The noble Baroness, Lady Gibson, raised in particular the issue of employment tribunals, and I hope that her questions will be addressed in due course. The Government’s proposal to establish an overarching system with basically a single structure and an appeal structure seems to me to be eminently reasonable. It will assist in what has become an extension to the Franks characteristics of openness, fairness and impartiality, which have been embraced by the Council on Tribunals, of the characteristics of efficiency, timeliness and accessibility. These goals are also important. The noble Lord, Lord Newton, who works so hard in this sphere, spoke forcefully on that matter.

It is interesting that a number of the contributions to the debate—including that of the noble Lord, Lord Clinton-Davis, on legal assistance—focused on accessibility. I heard the Lord Chancellor's answer to the noble Lord’s question about why the Bill does not cover legal aid provision. All I can say about that is that, although I understand it as a ministerial response, we have had quite a long time to wait for the restructuring. I hope that we do not have to wait too

29 Nov 2006 : Column 791

long for the answer to the arguments about legal aid and assistance because, as these matters become inevitably complex, it is reasonable to dissent from the view of Sir Andrew Leggatt that the best case is likely to be made by the applicant himself or herself. I hope that I do not do an injustice to what he said, but it seems to me a surprising recommendation and one that I hope will not govern the consideration of legal aid as it evolves.

The provisions restructuring the tribunals system seem to have a great deal of merit, but one question immediately arises. Do they take account of the judgment of the European Court of Human Rights against the United Kingdom, as reported on 23 November in the Times law reports? That judgment, as I understand it, held that there was a serious violation of the Article 6 rights resulting from the fact that our law and our judicial review do not allow the review of the facts—they allow only review of the law—and that too many other tribunals permit the appointment to their boards of members who are perceived to be associated with one side of the argument. That is a profound judgment. I do not know whether it is capable of being appealed by the Government, but it was issued last week. Many of the issues arising in the Bill are directly affected by that finding against the British Government's case. I very much hope that the Government will address that matter before the later stages of the Bill.

The importance of the independence of the tribunal has been emphasised by several of those who have spoken. I raise in the most tentative way the issue of appointments to tribunals. We had a general debate on some of the cognate issues with respect to court appointments in our debate on the Constitutional Reform Bill, which led to the establishment of the Judicial Appointments Commission. Are we to continue to regard administrative tribunals as sui generis? As I said, I put the point very tentatively: is it acceptable that such appointments should be made ministerially rather than at arm’s length if we are seeking to achieve independence?

The Bill provides for oversight by the Administrative Justice and Tribunals Council. I understand that it follows very closely the recommendations of the Council on Tribunals itself, and the fact that the chairman, the noble Lord, Lord Newton, who has been pressing for that reform, is content with it must give Members of this House considerable reassurance.

With respect to the provisions for enforcement, I welcome the simplification, especially giving direct access to claimants to courts for payments. I note en passant that that brings the law more closely into alignment with that of Scotland. The omission of those intermediate steps is entirely beneficial to the consumer. Of course, the fact that provision for fees should be prescribed by the Lord Chancellor, which my noble friend Lord Thomas addressed in his opening remarks, is something to which we will need to return. The National Association of Citizens

29 Nov 2006 : Column 792

Advice Bureaux, now calling itself Citizens Advice, has made a very strong case that no fee should be required for social security decisions. It has sought precise provision in the Bill to cover that point. Perhaps the Minister could address that.

I turn briefly to the question of judicial appointments, which are dealt with in the second part of the Bill. The expansion of the pool is not something that one should argue against in principle. The Lord Chancellor intervened in response to my inquiry about the size of the pool, but in assessing the qualifications it is obviously important—the Bill provides for this—that merit should be the principal consideration. It must be acknowledged that sometimes qualifications are a necessary guide as a first step in the process of assessment of merit. As long as those making the appointments are of such quality as the noble Baroness, Lady Prashar, there is reassurance that merit will be considered, but reducing the period of qualification from 10 to seven or from seven to five years, although it may introduce some more people to the pool, may make the task of selection just a little more difficult. We shall want carefully to consider any proposal from the Lord Chancellor further to extend the list of relevant qualifications.

A large part of the debate focused eloquently on the issue of bailiffs as raised by the Bill. The noble Lords, Lord Beaumont of Whitley and Lord Lucas, have said more than I can in the time available to me, beyond saying that the points that they raised will definitely need to be addressed. The proposals advanced by the noble Lord, Lord Lucas, in his Bill merit considerable attention and, no doubt, support.

There are several somewhat unsatisfactory aspects of this part of the Bill. The Lord Chancellor did not refer to the fact that the Government originally intended to establish a regulatory system for bailiffs. I regret that he did not do so and did not explain why there has been a redirection of the Bill towards certification, because that does not deal adequately with the matters that would be covered by regulation and it requires the dissatisfied complainant to go to court. I hope that the detailed points eloquently made by Citizens Advice will be considered and that the Government will be able to bring forward amendments later.

We welcome Parts 4 and 5 almost without qualification, although obviously we will wish to probe further. This has been a very valuable debate and I am extremely pleased that the Government have proposed this reform of a most important aspect of the access of citizens to justice in this country.

6.09 pm

Lord Kingsland: My Lords, we also support the objectives of the Bill and are delighted that it is before your Lordships' House. Our amendments will be tabled in the light of that statement. However, making it does not mean that we do not have certain reservations. My task this afternoon is to describe them to the noble Baroness, so that she can reflect on them between now and the next stage.

29 Nov 2006 : Column 793

Our first reservation is one that has been had about many government Bills recently: this is a skeleton Bill. I see the Minister nodding. That presents us with two problems, both of which are familiar to your Lordships’ House. First, many important issues will be covered only by delegated legislation, which your Lordships cannot amend. Indeed, as your Lordships know, there is a convention that we can vote against delegated legislation only in very exceptional circumstances. This also poses a problem at the amendment stage, because, if we do not really know what the Government are getting at until we see the delegated rules, how can we cast our amendments sufficiently accurately at this stage to achieve the objectives that we want to achieve?

With that in mind, I do not know how helpful the Minister can be about this, but it would be extremely good if we could, ideally, see some of the delegated legislation in draft or, at least, be given some indication of the lines on which the Minister is working. Some areas are particularly important. For example, in setting up a common tribunal service, which we applaud, it would be very helpful to know something about what the common rules of procedure will be. At the moment, we have 70 tribunals and 70 sets of rules of procedure. Which ones will the Government go for? On enforcement and the very important area of rights of entry, which gives rise to all sorts of questions which my noble friend has asked, the devil will be very much in the detail. This issue touches on fundamental rights, the protection of property and so forth; so we want to know what the Government are minded to do. Unless we know, the whole process of amending the Bill in Committee and on Report will be otiose.

Your Lordships have said many nice things about the noble and learned Lord, Lord Irvine of Lairg, the noble and learned Lord, the Lord Chancellor, the noble Lord, Lord Filkin, and the noble Baroness, and quite rightly too; but I think everyone would agree that the man to whom we owe the greatest tribute is Sir Andrew Leggatt. His report has set out the decisive principles on which the Bill has been based, and I congratulate the Government—with one reservation, which I shall explain in a minute—on following him almost exactly.

As I understand it, Sir Andrew had three principles. First, we need a tribunal system that is completely independent of the Executive. Secondly, we need to rationalise the tribunal system to get the best advantages of economies of scale. Thirdly, tribunals are not courts. They are there for the users. They are a reflection not of the state but of the consumer.

On the first principle, as your Lordships know, the arguments against the existing situation are very strong. At the moment, the department of state provides all the administrative support for a tribunal. It pays the members, appoints a very large number of them, and sets out the legislation defining what their procedural rules should be. They are, quite simply at the moment, not independent. In any case, responsibility for managing these tribunals should not fall to those persons whose policies the tribunal

29 Nov 2006 : Column 794

must take into account when it makes its decisions. For all those reasons, the Government have got it constitutionally absolutely right by following Sir Andrew’s arguments.

Secondly, the question of economies of scale also follows in a way from giving the whole responsibility for tribunals to the Department for Constitutional Affairs. In a sense, the problems of economies of scale sort themselves out to some degree because, with a single tribunal system, the appointment of staff, the interchangeability of staff between certain tribunals without having to re-advertise, the purchase of equipment, communication across barriers, the provision of training and the provision of premises should all, in theory, lead to a much more economic tribunal system. I do, however, take what the noble Baroness, Lady Gibson, said about her experience of amalgamations. One might say that it sounds all very well in theory; but we all know what happens when new institutions are set up: people have new ideas of what is needed and, before you know where you are, you have something much more extravagant than you anticipated. I absolutely take that on board; but in principle this is an excellent idea.

I have some hesitation about the user-friendliness of the tribunals. Sir Andrew was at pains to emphasise that tribunals exist for users, and they will not fulfil their function unless they are accessible to those who want to use them. It is therefore very important to make them unthreatening, consumer-friendly environments. Tribunal chairmen have a big responsibility to ensure that this is done.

My hesitation about all this—I want to make sure that I am right about this—relates to the decision that the legally qualified members of the tribunal will be called judges. Is that correct? If it is, it severely undermines the whole concept of user-friendliness and informality. A judge is associated with a court and the process of court decision-making. If certain people on the first-instance tribunals—there appears to be some uncertainty about this—will have the title of judge, that flies completely in the face of everything not only that Sir Andrew Leggatt asserts but everything in which Lord Franks, who was the originating genius of this system, believed. He said that, at best, the tribunals have only a quasi-judicial role. So, with great respect to the Minister and the noble and learned Lord the Lord Chancellor, it would be extremely ill advised to call these legally qualified members of the first-instance tribunals judges if that is the intention—and it is not clear to me that it is. The Government should think again about this, because it will create completely the wrong atmosphere.

Lord Clinton-Davis: My Lords, I think the noble Lord is talking about quasi-judges.

Lord Kingsland: My Lords, that is a characteristically constructive suggestion from the noble Lord.

There is still no answer from the Front Bench on the question of judges generally.

29 Nov 2006 : Column 795

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I will answer it. They are called judges. What is interesting is the force of the noble Lord’s argument, which is being well understood on this side of your Lordships’ House.

Lord Kingsland: My Lords, I am most grateful. I very broadly support the observations of the noble and learned Lord the Lord Chancellor on qualifications. It is right to remove rights of appearances. I am perfectly content with dropping the figure of experience to five years, and with the reasons behind that. The noble Lord, Lord Clinton-Davis, and one or two other noble Lords have expressed reservations about the power of the noble and learned Lord the Lord Chancellor to declare that someone who has no defined legal qualification should nevertheless be a legal member of a tribunal. There is something to be said for having more about that in the Bill. This also underlines my point about calling legally qualified members judges. If someone falling into that class is to be called a judge—someone who does not possess a defined legal qualification—that would seem to me to be quite extraordinary. I will leave that matter there because I think I have made my point.

I turn to debts and the second part of the Bill, which is equally important, although perhaps less glamorously advertised by the Government. This is a crucial issue for our economy. We have a market economy, which is underpinned by the law of contract. If contracts are not obeyed, the market mechanism breaks down. The whole enforcement issue is intimately related with wealth creation in this country. It is terribly important and we have to take this part of the Bill just as seriously as the first part. This is at a time when credit is—to borrow the title of that famous song by Miss Marilyn Monroe in the immortal film “Some Like It Hot”—“Runnin’ Wild” in this country. What the Government are doing here is timely; but that does not mean we will leave this part of the Bill unamended, because I think that it is here that the greatest number of amendments will occur.

I have been lobbied by a large number of groups on this, including two which are, in a sense, in opposite camps, although they are not in any way hostile; namely, the National Association of Citizens Advice Bureaux and the Royal Institution of Chartered Surveyors, which both make very good points. We do not accept all their arguments but we nevertheless think that it is right that their concerns should be ventilated in Committee. So we may table some probing amendments because we think that it is right that the answers to these matters should be known, without in any way necessarily accepting everything that is said.

The noble and learned Lord the Lord Chancellor touched on all these matters and I want to draw out a few points on enforcement. He rightly applauded the Beatson review and reminded us that some of our law on writs of execution and writs of possession derives from 13th century feudal law. I entirely agree that it is about time that something is done about it, however

29 Nov 2006 : Column 796

great an affection one might have for the history of medieval law in this country. But we have to recognise that the powers of enforcement agents, including the right to enter premises by force and conduct searches, are very substantial. There is a real danger of the over-zealous enforcement officer who, instead of using the minimum necessary powers, uses the maximum possible, which is why this discussion about bailiffs is so important.

Next Section Back to Table of Contents Lords Hansard Home Page