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This group of amendments makes minor and consequential changes to Schedules 2 and 3. Amendments Nos. 12 and 13 are technical amendments required as a result of changes made on Report in the way that members of the Asylum and Immigration Tribunal fit into the new tribunals. Noble Lords will recall that amendments to Clauses 4 and 5 were made on Report to clarify which legally qualified members of the Asylum and Immigration Tribunal are to be considered judges of the first-tier tribunal and which are to be considered judges of the upper tribunal. The Government’s intention, which is reflected in the Bill that we published in draft last July, is that only the president or deputy president or a senior immigration judge would sit as a judge of the upper tribunal. All other AIT judges are to be part of the first-tier tribunal only. In the process of redrafting the Bill for introduction in your Lordship’s House, that visible distinction was lost. The amendments tabled on Report restored the distinction. Amendments Nos. 12 and 13 carry through those changes into Schedule 2.
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Amendment No. 14 remedies an omission from the Bill by providing for the oath of allegiance and the judicial oath to be taken by a person transferring into the new tribunal structure as a deputy judge of the upper tribunal. In order to cement their status as judges within the new system and the wider administrative justice system, it is intended that the oaths should be taken by all of the tribunal judiciary unless they have already done so as the result of holding an existing judicial office. Provisions in various parts of the Bill apply that requirement to all other judicial office holders. Paragraph 10 of Schedule 3 makes it clear that all deputy judges should take the oath. Amendment No. 14 completes the set by including those transferring in. I beg to move.
On Question, amendment agreed to.
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Baroness Ashton of Upholland moved Amendment No. 13:
On Question, amendment agreed to.
Schedule 3 [Judges and other members of the Upper Tribunal]:
Baroness Ashton of Upholland moved Amendment No. 14:
(ii) becomes a deputy judge of the Upper Tribunal as a result of provision under section 31(2),”On Question, amendment agreed to.
Schedule 8 [Tribunals and Inquiries: consequential and other amendments]:
Baroness Ashton of Upholland moved Amendment No. 15:
(1) Employment tribunal procedure regulations may include provision enabling practice directions to provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings.
(2) The provision that may be included in employment tribunal procedure regulations by virtue of subsection (1) includes provision for enabling practice directions to provide for a member to act as mediator in relation to disputed matters in a case even though the member has been selected to decide matters in the case.
(3) Once a member has begun to act as mediator in relation to a disputed matter in a case that is the subject of proceedings, the member may decide matters in the case only with the consent of the parties.
(4) Staff appointed under section 40(1) of the Tribunals, Courts and Enforcement Act 2007 (staff for employment and other tribunals) may, subject to their terms of appointment, act as mediators in relation to disputed matters in a case that is the subject of proceedings.
(5) Before making a practice direction that makes provision in relation to mediation, the person making the direction must consult the Advisory, Conciliation and Arbitration Service.
“member” means a member of a panel of members of employment tribunals (whether or not a panel of chairmen);
On Question, amendment agreed to.
Schedule 12 [Taking control of goods]:
Lord Lucas moved Amendment No. 16:
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 17 to 20. I shall not trouble the noble Baroness for a detailed reply on why these amendments work or do not. I want to use the opportunity to note two ways in which I think the Government are going wrong in principle in the Bill, to urge them to use the Bill’s progress in the Commons to think further on these matters, and
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The first issue is the use of force against the person. The Bill authorises regulations that will authorise the use of such force. That is an unnecessary and unhelpful evolution in the relationship between a bailiff and a debtor. I can see some arguments for that in theory but think it is something we will come to regret in practice. It is not the way in which a relationship should exist between a bailiff and a debtor. The use of force generally between the agents of the state and the citizen is something that we need to be very careful of. We have seen how easy it is to tread the wrong side of the line in several recent police cases. They have to exercise immense restraint in these circumstances. It is all too easy for something to go wrong. I do not think that this is a danger that we should introduce into bailiff legislation. Beyond anything else, I do not think it is really necessary. There is only a tiny constituency in the bailiff community that thinks that it might even be of use. I do not think that we should endanger our social arrangements. Once you allow this sort of thing, it has a tendency to become commonplace. I would not like to see that happen.
Secondly, I would like to go back to some arguments we had in Committee and later concerning Semayne’s case and related matters—an Englishman’s home is his castle, or not—and to the basic principle, which I thought had largely been followed, that although a criminal fine derives from a criminal prosecution, the recoupment of a criminal fine is a civil matter. Those principles are transgressed by the idea—which I agree is not new in this Bill but derives from an amendment made in 2004—that criminal fines and certain government debts can allow bailiffs to force entry without a court order. We do not have the history on it yet, but that seems to me something that will turn out to be a step in the wrong direction. It should not be the relationship between a government and the governed that they can break into one’s home without the matter having been carefully considered on an individual basis. If the use of these powers becomes at all commonplace, I believe that it will add—in the way that many practices that we have allowed to grow up do—to the discontent that the citizen feels towards the Government and to the disillusionment with politicians and the political process.
We have to recognise that just because we are the Government and we are owed money it should not give us rights beyond those which accrue to somebody who is owed money in the ordinary way of things. We should not allow ourselves privileges of harm against the citizen that we do not allow other people and which disrupt the relationship and make it seem a more oppressive form of government than I should like to see. We have to be careful about doing damage through little things because it is in little things like this that the damage is done, not through some great big purpose to oppress the citizen. Damage is done through little things that allow the citizen to come off worse in circumstances where they ought to have a better right of justice and be treated better.
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I hope that the Government will think again about going down this route and that my noble friends on the Front Bench here and in another place will use this opportunity to set their minds against the measure when they get the chance to reverse it in another Bill, should that be the way in which elections turn out. This is a wrong turning and not a direction in which we should go. In the end it will be harmful to all our interests if we continue down this route. I look forward to the Government’s reply. I beg to move.
Lord Beaumont of Whitley: My Lords, I speak in support of Amendment No. 19, which seeks to leave out line 33 at page 210. I remind noble Lords whose attention may not necessarily be concentrated on this particular matter that line 32 states:
Those are slightly weasel words. In supporting Amendment No. 19, I refer to what the noble Baroness said on Report:
“There are no secret instructions. I would be more than happy to talk about how we intend to talk to the industry and share what we will be doing next with noble Lords as far as I can. There is no secrecy on my part; I find that practically impossible. We want to be as clear as we can. The greater clarity comes because we will be as open as possible. I reassure the noble Lord, and trust that he will hold me to that as we progress from legislation to action”.—[Official Report, 31/01/07; col. 272.]
I take the noble Baroness at her word.
The noble Baroness has now been sent a copy of the Magistrates’ Courts Guidance—Search and Entry Powers (Domestic Violence, Crime and Victims Act 2004), which, as I said on Report, has 31 pages, on 15 of which paragraphs have been blacked out. One or two whole pages have been blacked out. They are secret instructions about which she obviously had not been informed. This was sent to the Reverend Paul Nicolson by the Access to Rights Unit at the DCA after he had sought a review of the department’s decision not to tell him when the last resort had been reached that would enable a bailiff to break into domestic property to enforce a fine, who makes that decision and under what circumstances. Secret guidance of this kind is particularly worrying because, although this Government will not implement regulations allowing restraint of debtors by bailiffs unless necessary, any other Government of whatever hue might slip them in without telling anyone, while letting the circumstances of their implementation disappear into the invisible guidance.
The noble Baroness has also been sent a copy of counsel’s opinion on the department’s decision and the invisible guidance by Alan Murdie, a barrister trustee of the Zacchaeus 2000 Trust. It is strange enough that there should be any secret instructions to a bailiff about how to break into a domestic property and seize goods, but it also seems that the grounds for withholding information under the exemptions allowed in the Freedom of Information Act are extremely flimsy. The information is withheld because it would be likely to prejudice the prevention or detection of crime under Section 31(1)(a) of the Freedom of
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Mr Murdie also says that it is important to note that until 27 March 2006, the law of bailiffs relating to fine enforcement could be established in law with sufficient clarity, and could be discovered by any interested citizen and their representative. Nothing was concealed, and the enforcement of justice was an open matter. He suggests that the Domestic Violence, Crime and Victims Act and this Bill are not compliant with human rights law, in which the actions of the state affecting the citizen must be clear and be capable of being stated with certainty.
He suggests too that there is a public interest in understanding what can be done if bailiffs act in a way, while enforcing a fine, that gives rise to a complaint. Unless citizens and their representatives know what procedures the Government require the bailiff to implement, they cannot know whether they have been kept. There are other points in his opinion, but I will not labour the point any further. I would be grateful if the noble Baroness could shed some light on a very puzzling and rather murky area of her department’s decision-making.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Lucas, for returning to this issue. Noble Lords will recall that on Report we had a bit of confusion about the power of re-entry and about whether judicial authority should be available in that context. Noble Lords might recall, too, that one of the concerns was that some of the advice agencies were worried that if judicial authority were needed for re-entry to be enabled, that might encourage some bailiffs to take goods on the first visit. I have been looking at that, and we are in discussion with the industry and with the advice services. We have powers in paragraph 13(3) of Schedule 12 and paragraph 24(1) of Schedule 12 that would enable me to look at that through regulations to ensure that we deal with it appropriately when, for example, we are ensuring that we set out the criteria that should be followed the first time that people enter premises, so that it does not become a matter of course that they take goods on that first visit. Also, that would make getting judicial authority for a re-entry as simple and easy as possible, thereby reducing the incentive to take goods on the first visit. I wanted to say that at the beginning, because that was an area that we discussed at length, and I hope that I have tackled that.
I hope that I can give the noble Lord some comfort on Amendment No. 19. I know that he feels very strongly about this, and we have had discussions about the restraining of the debtor and of anyone else who is preventing an enforcement agent from taking control of goods to carry out their lawful duties. I want to
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However, I do not want to lose the flexibility in the Bill because, although some organisations have been concerned about it, others feel strongly that it is very important to set this out properly so that those who have to use the restraining powers do so properly and appropriately. We need to have that conversation; depending on the outcome, I shall undertake to act appropriately and accordingly and keep the noble Lord informed.
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Amendment No. 16, as the noble Lord says, replicates the current law in the Magistrates’ Courts Act 1980, which is inserted by the Domestic Violence, Crimes and Victims Act 2004. The powers target those who have been convicted of a criminal offence, fined and who subsequently refuse to engage with the courts and pay the fine.
It cannot be right that someone who has committed a criminal offence and received a sentence imposed by the courts can evade justice simply by refusing to open the door to an enforcement agent going about his lawful business. For a long time, non-payment of fines has been treated differently from non-payment of civil debts, with imprisonment still being available ultimately as a sanction for fine default. We think it is important to retain the powers set out in Schedule 4A to the Magistrates’ Courts Act 1980 as a key component of the enforcement tools available to those who have responsibility for enforcing criminal fines.
In my earlier comments about how I intend to approach the matter I dealt with Amendments Nos. 17 and 18. I hope that the noble Lord will accept that. I shall not refer to the technicalities of these amendments for the precise reasons mentioned by the noble Lord.
The noble Lord, Lord Beaumont, was kind enough to let me have his speaking note. I am the Minister responsible for freedom of information in the department. As the noble Lord knows, we have, under the Freedom of Information Act, the ability to withhold information, on the ground that sharing guidance to civilian enforcement officers on what to do in specific situations would prejudice the administration of justice. We think that the disclosure of methods used by enforcement agencies could assist defaulters to evade enforcement officers in the execution of their duties. That is why specific paragraphs were withheld. There is a risk that making the guidance more widely available would give an inappropriate advantage to defaulters by giving them an insight into the techniques used by enforcement officers. We are concerned to avoid a situation where our guidance is used by defaulters to avoid enforcement officers and, subsequently, their duty to pay financial penalties.
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Of course, fines need to be enforced effectively. Wider publication of the guidance could impinge on the efficiency of the enforcement activity, and on that basis exemptions under Section 31(1)(c) of the FOI Act apply. There is no possibility, which I know the noble Lord is concerned about, of any other Government slipping in or implementing the provisions, as the regulations under paragraphs 24(2) and 31(5) of Schedule 12 are subject to the affirmative resolution procedure. I think that if the Reverend Nicolson, who was in receipt of the letter, is discontent with the responses that he has had so far, he is entitled to pursue the matter with the Information Commissioner, Richard Thomas. I hope that the noble Lord is satisfied with my answers.
Lord Lucas: My Lords, the best news that I have had today is that the noble Baroness is responsible for freedom of information within the Government. That is not today's subject but it gives me some hope on other matters. I think the noble Baroness has gone as far as she is able to; I would invite her to go further, but I am happy to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 17 to 20 not moved.]
Schedule 13 [Taking control of goods: amendments]:
Baroness Ashton of Upholland moved Amendment No. 21:
The noble Baroness said: My Lords, I shall also speak to Amendments Nos. 22 to 29 inclusive. This group of amendments correct minor drafting errors in some of the consequential amendments set out in Schedule 13. They are being laid in an effort to ensure that the consequential amendments regarding taking control of goods in Schedule 13 achieve the desired result. Amendments Nos. 21 and 22 correct consequential amendments to Section 104 of the Criminal Justice Act 1967, paragraph 30 of Schedule 13. Section 104 currently refers to “any sum of money”, whereas paragraph 30 of Schedule 13 incorrectly refers to,
The proposed amendments simply correct that.
Amendments Nos. 23, 24, 25, 26 and 27 correct consequential amendments to the Local Government Finance Acts 1988 and 1992—paragraphs 89, 107 and 108 of Schedule 13—making it clear that it is the relevant billing authority and not the Secretary of State who has the right to use the procedure laid down in Schedule 12 to this Bill to recover outstanding sums of non-domestic rates and council tax.
Amendment No. 28 revises the consequential amendment to Section 5 of the Road Traffic (NHS Charges) Act 1999—paragraph 130 of Schedule 13. Paragraph 130 of Schedule 13 makes provision until a repeal comes into force; the repeal is now in force, so the amendment brings the provision up to date.
Amendment No. 29 corrects consequential amendments to Section 78 of the Powers of Criminal Courts (Sentencing) Act 2000—paragraph 133 of Schedule 13. Section 78 currently refers to “a fine”
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