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I share the disappointment of a number of Members of your Lordships’ House who rightly, on the evidence, observe that the Government have resiled from a position we all thought that they would take before the Bill was published. Both the Green Paper and the subsequent White Paper proposed the statutory regulation of all bailiffs. The 2003 White Paper proposed that an individual would have to be licensed by a regulatory body such as the Security Industry Authority to be allowed to undertake enforcement work and that individual enforcement agents would have to apply for a licence relative to his or her area of work and expertise. But none of that has happened. I hope that the noble Baroness will indicate why the Government have changed their mind on this important matter.

Another matter in this context where the Government appear to have changed their mind has been to make a distinction between the public and private sectors. It appears that we will have different rules for bailiffs operating in those two camps. Why should that be? I know that the public sector deals with different sorts of debts, many of which are backed by the discipline of criminal law. But does that distinction have any intellectual, political or practical merit? It seems to us that it does not. The Government can expect a number of amendments in this area; so, sooner or later, their arguments will have to be deployed.

As regards rent arrears recovery, it seems to us that the common law right of distraint for arrears of rent has been abolished, which is a good thing. In terms of those people who are taking an interest in the Bill, there are very few who would dissent from that. The landlord has to rely on the courts now, which is absolutely as it should be. We have a number of questions about the commercial rent arrears recovery system, including the definition of rent, but those matters are much more appropriate for Committee than Second Reading.

On the enforcement of judgments to the attachment of earnings orders, as I understand it, the experience in magistrates’ courts has been very good. Deducting fixed sums has been an innovation which, rightly now, should be used more widely. But it is a bewildering area because it is extremely difficult to find out exactly the financial circumstances of any individual. Therefore, inevitably, deciding on the fixed sum that is paid over any given period will always be a bit of a stab in the dark, which we have to accept as perhaps an adverse consequence of an otherwise very good system.

I note that there is a related issue of charging orders. As I understand it, under current law, if a court has made an order for an instalment payment,

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that precludes, at the moment, the making of a charging order, because a charging order is a form of execution. Under the County Courts Act, I think that I am right in saying that if someone is up to date with their instalment payments, they are free of execution. The Government have changed that. However, that will probably work provided the threshold level is right. There should be a threshold before a charging order is made, which is the safeguard that we would like to see to deal with that problem. I think that the noble Baroness has got the point.

On administrative orders, it is important that this should not get confused with changes in bankruptcy law. As your Lordships know, quite substantial changes were made in the bankruptcy law as a result of the Enterprise Act. There has been a remarkable increase in the number of bankruptcies as a result. I hope that the Government will ensure administrative orders are not mixed up with that saga, because they are very useful only in relation to people who are rather impecunious—often people who are on social security benefits. I hope that the operation of administrative orders will itself be subject to a threshold but in the opposite direction to the threshold on charging orders; that is, up to a certain point—£5,000 or something like that—the administrative order regime should apply, but no further than that.

Noble Lords will be relieved to know that I have come to my last two points. The first is on Clause 132, covering judicial review; that is, the power to substitute a decision. A number of noble Lords have expressed astonishment at the appearance of provisions on works of art, so the noble Lord, Lord Thomas of Gresford, and I are probably entitled some astonishment at this clause because it is a constitutionally revolutionary clause. It will allow the administrative court, having quashed a decision, to substitute its own decision for the substantive decision in issue made by the forum which decides the merits of the matter.

Throughout the jurisprudence of the administrative court, even in the world of human rights law and proportionality that we now inhabit, judges, particularly in the higher reaches of the judicial echelons, are at pains to emphasise that judicial review, while of course it is based on fairness, is in the end about the mechanics of the decision-making process; it is not about the merits of the decision made by the lower tribunal or court. Judges in the administrative court cannot place weight on the various relevant considerations that those who are responsible for deciding the merits of a case have to consider.

Perhaps it would be helpful if I read out the scope of Clause 132(5A):

to substitute its own decision—

I have no problems with that—

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How could the administrative court possibly know that? For example, a decision in a case could be quashed because the administrative court decides that two matters which the lower court in question dealt with and thought were relevant were not relevant at all; and, therefore, the whole basis upon which the lower court performed its balancing act—relevance and weight—has been changed completely. The administrative court is in no position to reconsider the matter unless it rehears the whole case ab initio. If it does that, it must hear evidence from all the people who made submissions to the lower court. In my view, in the context of our jurisprudence and the development of the whole law of judicial review, this marks the most extraordinary reversal. I really do hope that the Government will think very hard about Clause 132 before they take it any further.

Quite apart from anything else, it often takes many months for the administrative court to hear a matter like this. By the time it has made its decision, the situation on the ground might have moved on. In planning law, for example, it is up to the local authority to take into account when making its decision any changes in planning law that may have taken place between the time it made its original decision and the time when something is quashed and it has to go back and consider the issue again. How on earth is the administrative court to know about all these things without engaging in an extremely time-consuming exercise? With the greatest possible respect, I think that the Government have a great deal of explaining to do about this.

I turn finally to the question of works of art. Here I must say that my heart is very much with the noble Lord, Lord Janner. I am sure your Lordships will agree that this afternoon we heard a quite outstanding speech from the noble Lord. Not only was it extremely moving, but it was also impeccably argued. For the moment, however, my head is with the Government; and I must say that I found the speech of the noble and learned Lord the Lord Chancellor rather compelling. The two things that particularly struck me were that these provisions would not apply to objects coming here for sale or to those coming here on a long-term loan. He emphasised that they would apply only to museums and galleries certified by the DCMS. I think that that is important.

What lies behind this is the fact that unless we have a provision of this kind, short and medium-term loans of works of art to this country from abroad will completely dry up, and that has to be set against all the other well merited considerations. However, the noble Lord, Lord Janner, made a number of points which the Government will have to think about. The question of the definition of “cultural” is not easy. What is the scope of this part? In terms of objects, what are we talking about? The noble Lord, Lord Janner, made that point very well. He also asked an important question: for how long should this immunity last? Some pictures come here to be exhibited for three months while others are on show for perhaps two years. The Government need to think

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hard about how long this immunity is going to last; and in my submission that needs to be set out in the Bill.

There are other aspects about our approach to looted art which we need to think about, quite apart from these provisions. As the noble Lord, Lord Maclennan, pointed out, it is rather strange to find all this in the Bill, but the fact is that the subject has now been opened up and I hope we can have a thorough debate about it in Committee because it touches on absolutely vital questions about human rights and what we stand for as a nation. Indeed, this may turn out to be what forms the longest part of our deliberations.

I have gone on for rather a long time, for which I apologise, and for the moment I shall leave matters there. I look forward to seeing the noble Baroness, and from time to time the noble and learned Lord the Lord Chancellor, in Committee.

6.38 pm

Baroness Ashton of Upholland: My Lords, we have had a good and very interesting debate and I am grateful for the overall welcome expressed for many of the Bill’s provisions. I, too, thank my noble and learned friend Lord Irvine of Lairg for his work, the noble Lord, Lord Newton of Braintree, for his continuing work—I acknowledge the occasional pressure he exerts on me—and my noble friend Lord Filkin, who, I am pleased to see, is still in his place. He too has played an important part in bringing forward this legislation. Moreover, I agree with the noble Lord, Lord Kingsland, that much credit must go to Sir Andrew Leggatt for his work. I should say to my noble friend Lord Clinton-Davis that, as always, I shall keep an open door for those organisations that wish to come and see me about the Bill. I hope that when noble Lords respond to representations made to them about this Bill, they will make it clear that I shall be pleased to see people. Indeed, I have already begun that process with citizens advice bureau representatives and the Civil Court Users’ Association.

Several noble Lords pointed to the role of secondary legislation. In every Bill I have been involved in the role of orders has come into play. That is why the Delegated Powers and Regulatory Reform Committee is so important. I am sure that, under its new chairmanship, it will report to us in good time for the Government to take account of what has been said. However, secondary legislation is very important, and at the risk of using my entire 20 minutes to talk about it, if you want flexibility it is important to recognise in legislation that sometimes you need to make changes because experience tells you that they should be made, and that it is time to change. Noble Lords will be only too well aware, particularly with this legislation, that sometimes it is difficult to find parliamentary time when it is needed to make things better or work more effectively. I do not recognise this as a skeleton Bill but, as always, I recognise my obligations to provide policy statements where I cannot provide draft regulations. I

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point noble Lords to the schedules, in which we have tried to put as much detail as possible.

I agree with the noble Lord, Lord Newton, that an evolutionary approach has been taken, but there is a little touch of radicalism as well. Openness, fairness and transparency are indeed the watchwords of the Tribunals Service. We want to ensure that, in creating the new Tribunals Service, we get the right economies of scale. Yes, releasing resources is important, but this is about using members of the judiciary, non-legal members, buildings, time and energy better and more effectively to give people access to justice. The Tribunals Service will play a critical part in the department’s work to give people access to justice.

I agree with what the noble Lord, Lord Thomas, in particular, said—this was echoed elsewhere—about the importance of independence. The noble Lord, Lord Kingsland, described it as a fundamental part of where Sir Andrew Leggatt had begun his work. I am also very mindful that we need to be as clear as possible about what we are trying to do. I accept that we need to make the rules clear so that they are, as the noble Lord, Lord Thomas of Gresford, said, user-friendly.

I take the points about legal aid. My noble and learned friend was very clear that it is important to look at legal aid in the context of access to justice. The review by the noble Lord, Lord Carter, is a very important part of this but there is a great deal of work still to be done. Of course, we do not need to legislate in those areas. It is important that we use lawyers appropriately in the Tribunals Service while recognising that one of its greatest assets is that a person does not always need to have a lawyer to pursue their case. As a non-lawyer, I wholeheartedly support that.

My noble friend Lord Clinton-Davis asked about the appointment of the judges. As with the courts, judges will be appointed by the Lord Chancellor after selection by the Judicial Appointments Commission. My noble friend also asked about the Asylum and Immigration Tribunal. He will know that immigration appeals are unique in that the appellant perhaps has a vested interest in delaying the decision because of the nature of these cases. It has a single-tier structure, and that is why it is outside but a separate pillar of the Tribunals Service.

My noble friend Lady Gibson was concerned about the role of employment tribunals in this. She should not have any trepidation about her lack of legal expertise because she is in very good company in that—not least with me. It is not the purpose of the Bill to make tribunals do things that they are not qualified to do, but it is intended to provide flexibility. Employment tribunals have already about 70 different jurisdictions. There may be a relevant and appropriate point at which they will take on other or additional work. We are not thinking about that at present, but the flexibility will be there. We are absolutely not thinking of foisting inappropriate work on the Employment Tribunals Service, which, I think, my noble friend is concerned about. We value its expertise and wish to use it appropriately.

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The noble Lord, Lord Lucas, asked whether we could include PATAS in Schedule 6. I must confess that I did not know what that was until the noble Lord kindly explained it. Other tribunals can be brought into the schedule by order, and it will be one of the tribunals considered for inclusion as part of the review of local government tribunals promised in the White Paper. So watch this space.

The noble Lord, Lord Maclennan, asked about fees. I have not discussed this with the citizens advice bureau but I have written to Stewart Wright at the Child Poverty Action Group. I shall send the noble Lord a copy of the letter and put it in the Library. In my letter of 27 November I said:

The noble Lord, Lord Thomas of Gresford, asked about the difference between the right of appeal under Clause 11 and judicial review. I may regret reading this out because I recognise that I am into the legal world. Clause 11 is intended to be the standard way of challenging a decision of the first-tier tribunal on a question of law. The High Court would not grant judicial review where there is an appeal right of this kind, so the advice to the client would be to seek permission to appeal. There is a permission requirement in order to filter out cases that should not be taken forward. I think that is a common and usual practice. The upper tribunal has wider powers than the court. If it allows an appeal it can make any decision that the first tier could have made. So the High Court can only send back or, if Clause 132 is agreed to, make a new decision if there is only one option.

The noble Lord, Lord Maclennan, referred to judicial appointments under Part 2. Merit is the only consideration. It is not the principal consideration or a principled decision; it is the only consideration for appointments. The noble Lord, Lord Thomas of Gresford, and my noble friend Lord Clinton-Davis raised a concern—which, in a sense, was addressed by the noble Lord, Lord Kingsland, in his closing remarks—about the breadth of the ability to place other people within the remit of those eligible to apply for appointment. The noble Lord is absolutely right: this is about ensuring that we have the flexibility to include people where appropriate. We seek to do that. There are no plans at the moment to extend beyond those indicated by my noble and learned friend the Lord Chancellor.

A major part of our discussions in Committee will concern enforcement by taking control of goods and the role of bailiffs. The noble Lord, Lord Kingsland, asked about the different regulatory schemes, as he saw it, within the Bill for private and public sector bailiffs. The reason it looks different is that Crown employees and police constables will be exempt from holding a certificate. Because they are Crown employees they are subject to strict controls and have their own complaints process. Other enforcement agents will have to obtain a certificate.

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The core part of the concerns raised by noble Lords is ensuring that these people are appropriately controlled within the Bill. Noble Lords pointed to what the Green Papers and the White Paper said about heading down the regulatory route. The noble Lord, Lord Lucas, has very helpfully brought forward his Bill. I had the privilege of talking to him very briefly about that and we will continue the dialogue.

Behind all that, we have sought to do a number of things. First, we want to be absolutely clear that bailiffs operate within one set of rules. Noble Lords will know that over the years the situation has developed whereby there are different hours when people are allowed to go into premises, to do different things, with different financial arrangements and so on. We seek to provide support for vulnerable people by making it clear what is and is not allowed. That is, in essence, a balancing act between the competing demands of those who, quite rightly, want to see their debts recognised and recovered and those who are vulnerable in this context. Other aspects of the Bill, such as how we are organising repayments and so on, seek to address this problem. No doubt we shall consider that in Committee.

The Bill provides, for the first time, a single piece of enforcement law. It is about updating the language and modernising the terminology to make it easier to understand. I am sure this will help to stamp out any abuse or malpractice that might occur. We have set out in the schedules quite a lot of the detail, which we will no doubt seek to discuss in our debates.

The noble Lord, Lord Lucas, referred to “badging”—bailiffs having clear ID when they go to other people’s houses. That is part and parcel of what is proposed.

I am very grateful to the noble Lord, Lord Beaumont, because, just before he spoke, he gave me a copy of his speech. I shall seek to address the points which he asked me to write to him about, but let me deal with a couple of them now. He asked me about the Zacchaeus 2000 Trust and the situation regarding the civilian enforcement officers’ guidance. It is being reviewed by the Access Rights Unit to see whether some or any of the information could be released without compromising the ability of those who need to be able to do their job to do so. We will be in touch with it shortly.

The noble Lord said the Government were getting a free service from bailiffs as the costs were passed on to the debtor. The Bill will introduce a simplified fee structure which will be less open to abuse. We intend that bailiffs will receive an upfront fee for their work. Having looked in great detail at the noble Lord’s speech, and the report and proposals of the Zacchaeus 2000 Trust, I hope that when he looks back on the Bill he will recognise that it covers many of the issues of great concern to him. I look forward to receiving probing amendments—nothing more, I trust—that will help us to examine that in greater detail.

I will listen to whether noble Lords feel that the Bill adequately deals with the issues raised about the enforcement regime, not only in your Lordships' House but by other organisations. In discussion with

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noble Lords, I will be looking at whether there are further steps we might consider. I can say no more at this point, but I am open to doing so; as noble Lords have indicated, it is a very important aspect of the Bill, which we will need to consider with great care.

The noble Lord, Lord Beaumont, asked whether there would be a list of exempt goods. We will publish a policy statement in time for the Committee stage on how we intend to use the powers in the Bill. The noble Lord will therefore have that in advance, and I hope that he will get back to me if he has concerns.

I greatly look forward to the amendments that the noble Lord, Lord Kingsland, will table on debt. It is a very important area, as the noble Lord has said and, without going into detail, I agree that thresholds will play an important role in both directions. I have not met the Royal Institution of Chartered Surveyors, but I have met with the National Association of Citizens Advice Bureaux. Perhaps the noble Lord would tell the royal institution that I would be more than happy to meet representatives to talk about these issues. As he indicated, there is a balance between those, like the National Association of Citizens Advice Bureaux, who are very concerned with the most vulnerable in society and others who are concerned to ensure that the issue is dealt with appropriately for the creditors.

The noble Lord, Lord Thomas of Gresford, asked about attachment of earnings. As the noble Lord, Lord Kingsland, indicated, the idea is to make this easier. It seems to work quite well in other places. It allows circumstances such as number of children to be taken into account. The ambition is to standardise in the best possible way, to ensure consistency. We can talk more fully in Committee about how that will work and discuss examples of how it is currently working. Information that is provided will be judicially led—the judiciary can ask for information from government departments or the Inland Revenue but not the creditor.

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