I shall address my remarks to the Government amendments, but also to new clause 7, which deals with bailiffs, and amendment 100 on judicial diversity.
Let me start with a positive. We are pleased that the Government have seen fit to include new clause 5. These provisions were debated favourably in the other place and were introduced by the Opposition in Committee. The creation of the Supreme Court was, I think, an excellent achievement of the previous Government and it is right that Ministers have accepted the argument put to them by the Opposition and many in the profession
for a further transfer of powers to strengthen the Court’s independence. We welcome the Government’s agreement with the recommendations and their decision to include in the Bill these important changes.
Continuing on a positive note, we completely accept the other Government new clauses and I am sure that you, Mr Deputy Speaker, will be pleased that a member of the Judicial Appointments Commission will have special knowledge of Wales in the future.
Amendment 100 was tabled by my right hon. Friend the Member for Blackburn (Mr Straw). I have not heard what he is about to say, but I feel confident that I should agree with it. The Opposition are strongly in favour of that amendment. My noble Friend Baroness Hale gave a lecture a few weeks ago, in which she stated she was going to
“start by taking it for granted that judicial diversity is a good thing.”
For the purposes of this debate, I shall use a few more words to echo the arguments that will be put by my right hon. Friend the Member for Blackburn, but I think the House will agree that my noble Friend also speaks with considerable expertise on this issue.
The Government have recognised in the Bill that diversity in our judiciary is desirable, and unless we hold with the idea that talent is innately concentrated in one social group, we must acknowledge that for every exceptional judge we have, we are losing out on able candidates because we do not do enough to find them. Measures to support diversity seek not to give credit where it is not due, but to encourage ability wherever it may be found. We have seen many instances where it has been argued that merit and diversity are mutually exclusive, but we have argued that a diverse judiciary is not artificial or missing out on talent—it is quite the other way round. Diversity matters in both principle and practice. A judiciary that incorporates a range of voices, backgrounds and experiences brings more to the table. The differences, as Baroness Hale put it,
“add variety and depth to all decision-making.”
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The amendment confers a duty on the Lord Chancellor and the Lord Chief Justice
“as far as it is reasonably practicable to do so”
—that is important—to encourage the establishment of a judiciary that better reflects the society that it serves. That brings many obvious and stated benefits, not least public confidence in the courts.
One of the major strengths of the amendment is that it has a precedent. It is modelled directly on a law in Northern Ireland that was implemented to ensure that all sections of society were respected in judicial appointments. It is popular across the political spectrum in Northern Ireland, and has met with considerable success there. I understand that it is reasonably uncontroversial. A second strength of the amendment is that it is in the spirit of the diversity provisions that are already in the Bill. It does not specify process or demand the filling of quotas, and it is in keeping with the aim to bring about a long-term shift in the present culture. It asks for awareness, intelligent decision making, and encouragement for the best from every
background to enter the profession. We are rightly proud of our judiciary, and we want that pride to continue.
The Government have taken some welcome steps in the Bill, not least the introduction of flexible working conditions and the tipping-point provision, and I commend them for that. As I am sure they recognise, however, the limit of the tipping point is that it requires a candidate to reach that point in the first place. We need a good pool from which to recruit. Opening up the possibilities of recruitment and promotion in the profession is vital if we are to gain the best and the brightest young people from the length and breadth of our constituencies. I do not know how many of my constituents have become judges. I assume that some have, but probably not as many as I would wish.
The amendment is a proven and highly desirable provision. It proposes a small change in the law that would present opportunities for many more talented individuals to prove their ability to guard and interpret the law as members of the judiciary. It represents welcome progress, although it is long overdue. Should my right hon. Friend wish to press it to a vote, he will have our support.
New clause 7, entitled “Enforcement services”, deals with the issue of an independent complaints procedure for bailiff practice. It allows a complainant against a bailiff redress through an ombudsman. The issue has some history in relation to the Bill, in which this important provision has previously been included. I am grateful for the opportunity to bring it back to the House, but it is more than a little disappointing to have to argue yet again for its inclusion in the face of Government opposition.
The new clause amends the Legal Services Act 2007 to provide for enforcement services to be treated as a reserved legal activity, which means that the Office for Legal Complaints would have jurisdiction to deal with complaints about bailiffs. It was first introduced as an amendment by Baroness Meacher, who said that it
“seeks to provide some protection for vulnerable people who have suffered unacceptably at the hands of a bailiff.”—[Official Report, House of Lords, 18 December 2012; Vol. 741, c. 1475.]
It was supported by a majority of the Lords, who passed it in a Government defeat.
The fact that aggressive and unlawful bailiff action is a problem that is both serious and too widespread is not in contention. The Government’s consultation has acknowledged the unacceptable occurrence of intimidating, aggressive and threatening behaviour by some in the bailiff industry. Citizens advice bureaux report receiving over 24,000 complaints against private bailiff practice in 2011 and 2012. After too many months of silence following their consultation, the Government have made a great deal over the past few weeks of their intention to transform bailiff action, but their proposal is to implement part 3 of the Tribunals, Courts and Enforcement Act 2007 introduced by the previous Government, which codified over 800 years of enforcement law and paved the way for extensive reform to challenge bad practice. Part 3 sets out improved procedures and rules for the seizure of goods, including scope for regulations to be brought forward on a clear fee structure.
Credit is due on both sides of the House for recognising that problem. Some of the Government’s proposals, in particular regarding banning the use of force against
the person, are to be commended, but, unfortunately, that is where the congratulations should end. The previous Government laid out the foundations of the Act with the intention of building on them. It was, and remains, the Opposition’s position that the clarification of enforcement law should be backed by a robust independent system of regulation. The enhanced certification regime is a key thread of the Government’s package and was intended as an interim measure en route to this long-term goal. The Government have not only stopped, but settled halfway along that road and so are offering a bit of a half-hearted solution.
New clause 7 provides for one small but central element in an independent regulatory system: an independent grievance process. The Government’s position is that such a system is unnecessary, but we disagree, as did the majority of the advice sector respondents to the Department’s consultation. They do not believe that the in-house system of complaints in relation to enforcement firms is objective or adequate. Rather than building on the foundations of the Act, the Government chose in Committee to knock down the progress that had been made and to force the removal of the new clause.
In Committee, the Minister suggested that the vote on that provision in the Lords was born out of frustration that the Government had not yet responded to its consultation on bailiff action. I wonder whether he will now concede that support for the provision is born out of frustration that the Government have responded, but have done so disappointingly, and have prevented an effective and reasonable safeguard from being included.
The Minister centred his argument on the premise that the Government’s proposals will make a robust complaints procedure unnecessary. He said that things have “moved on” and that most of the reasons for current complaints will be removed. It is not good enough for the Government to say “We’ve dealt with this and there will be fewer problems next year”. We do not believe that.
Members across this House know what is facing families in the months to come. In the next year, hundreds of families, including many working households, will be hit by the 1% uprating of social security, the bedroom tax, cuts to working tax credit and many other austerity measures. I am not making a political point here; I am just observing that that is the case. We predict that many people will be pushed into tough times and will have to face bailiffs for the first time.
The Minister acknowledged in Committee that there will be cases where “things go wrong”. The Government’s consultation acknowledges that there is confusion over who should deal with complaints against bailiffs, not least among the victims. Citizens advice bureau guidance for victims of aggressive action has to navigate the variety of factors that govern what complaints can be taken where, including the unhelpful truth that a victim might have to ask the aggressive agent where they should register a complaint. We should not tolerate that.
We do not hold with the Government’s arguments for removing the new clause. The Minister has stated that he believes it subjects the industry to over-burdensome regulation, and that the Government’s proposals offer a more “measured and proportionate” response to concerns. We simply disagree with that. Ombudsmen are not extraordinary in public life. They are pretty much the norm, and we have them in the fields of health, housing, local government, financial services, legal services,
telecommunications and prisons. Do we really believe it is disproportionate for a person who has redress to an ombudsman over a phone bill disagreement also to have redress to an ombudsman if their door is kicked down or their family are threatened by an aggressive bailiff?
The Minister also made the point in Committee that some bailiff practice is already subject to the jurisdiction of the local government ombudsman. If ombudsman action is appropriate for some complaints, why do the Government believe it is not appropriate for all complaints? In particular, why would they hold it disproportionate to ensure that the entire private bailiff sector, which generates the vast majority of complaints, is covered, rather than just the public sector work?
We believe that an independent complaints procedure is an important and necessary safeguard, and would like to see it re-included in the Bill. An ombudsman can provide objective redress, root out bad behaviour, publish data on good and bad practice, and suggest improvements. I should make it clear to the House, just as Baroness Meacher made it clear in another place, that the legal ombudsman is able and willing to take on that role, which is compatible with other responsibilities of that office. This is a volatile area, and we would like the Government to commit to a robust complaints procedure.