Office of Public Sector Information

622.Subsection (9) gives the Secretary of State a power to require a museum or gallery to provide further information about an object to inquirers. The information which must be produced, the circumstances in which it must be produced, and any conditions on the production of information may be specified in the regulations. This power is additional to the power given to the Secretary of State in subsection (2) to require museums and galleries to publish particular information about an object.

623.Subsections (10) and (11) make further provision in relation to the regulations to be made under subsections (2) and (9). The regulations may only be made with the consent of the devolved authorities, and they will be made by statutory instrument, subject to the negative resolution procedure.

Section 135: Effect of protection

624.Section 135 defines the effect of the protection and sets out the limited circumstances under which it is not available.

625.Subsection (1) ensures that where seizure or forfeiture of an object is required to enable the UK to comply with its obligations under EU or international law, the object concerned will not be protected. This could apply where, for example, the court is asked to enforce an order for the seizure of an object made by the courts of another country to confiscate proceeds of crime.

626.Subsection (2) ensures that the protection given to an object loaned to an exhibition does not give any protection from prosecution to those dealing with the object, where the dealing in question constitutes an offence.

627.Subsection (3) clarifies the extent of the protection which will be given to objects under this Act. It includes immunity against all forms of execution which might be made against an object protected under the Act, any order made in civil proceedings and any measure taken in criminal proceedings (or for the purposes of a criminal investigation) which might affect the control or custody of an object. The protection given is intended to exclude any form of seizure or detention of an object lent to an exhibition in this country whether by a claimant to the object, a creditor or by law enforcement authorities.

Section 136: Relevant Museums and Galleries

628.Section 136 defines “museum or gallery” for the purposes of Part 6. Only objects which are loaned to those institutions which have been approved by the relevant authority will qualify for immunity under this Part.

629.Subsection (2) sets out the factors to which the approving authority must have regard in deciding whether or not a particular institution should be approved. These are the institution’s procedures for establishing the provenance and ownership of objects, and whether it complies with guidance published by the Secretary of State on such procedures. This list is not exclusive. The approving authority may also take account of other factors in deciding whether an institution should be approved.

630.Subsection (3) makes it clear that once approval has been given, it may be withdrawn, and identifies two situations in particular which are likely to lead to the loss of approved status. These are if an institution’s procedures for establishing the provenance and ownership of objects are deemed to be inadequate, and if an institution fails to provide information on request as required in regulations. The approving authority may however also consider other factors.

631.Subsection (4) clarifies the effect of withdrawal of approval. Those objects which are already in the museum or in the United Kingdom en route to the museum on the date on which approval is withdrawn will not lose their approved status. However, objects which are loaned to the museum after its approval has been withdrawn will not qualify for immunity.

632.Subsection (5) identifies the appropriate authority. The Secretary of State will be responsible for approving museums and galleries in England. Each of the devolved administrations will be responsible for approving museums and galleries in their respective countries.

Section 137: Interpretation

633.Section 137 contains interpretation provisions for Part 6.

634.“Public display” is defined to include any display to which the public have admission, except displays with a view to sale. The immunity will not apply to any objects which are included in an exhibition organised by art and antiques dealers or auctioneers to advertise works for sale, or to publicise an auction.

635.This section also sets out the rules for determining whether an individual, the trustees of a settlement, a partnership or a body corporate should be considered to be resident in the United Kingdom.

Section 138: Crown application

636.This section provides for Part 6 to apply to the Crown, and agents of the Crown, in the same way as to all other persons and institutions.

Part 7: Miscellaneous. Summary

637.Part 7 enables High Court enforcement officers to execute writs of possession issued to enforce compulsory purchase orders, and removes the obligation for enforcement of such writs from High Sheriffs. This Part also amends subsection 31(5) of the SCA 1981, reproducing and extending the effect of the existing judicial review provision. In particular, it provides that where the decision maker in question is a court or tribunal and the decision is quashed on the ground that there has been an error in law, the High Court will be able to substitute its own decision where, without that error, it is satisfied that there would have been only one decision which the court or tribunal could have reached. Part 7 also changes the way in which ACAS negotiated settlements are enforced and reforms the process for hearing design right appeals.

Background

Compulsory purchase

638.Currently, there is an anomaly as regards the execution of High Court writs in that High Court enforcement officers and High Sheriffs are able to execute High Court writs of execution, but only High Sheriffs are able to enforce writs of possession issued to enforce compulsory purchase orders. The proposed changes will align the enforcement of compulsory purchase orders with the regime for enforcing High Court writs of execution contained in section 99 of and Schedule 7 to the Courts Act 2003.

Enforcement of ACAS brokered agreements

639.The Advisory, Conciliation and Arbitration Service (ACAS) has no enforcement powers of its own. Transforming Public Services undertook to simplify the system so that an award of compensation, whether ordered by an employment tribunal or agreed between the parties (under compromises involving ACAS), can be enforced with the minimum of bureaucracy as if it were an order of the civil courts. The Act makes such agreements enforceable in England and Wales as if they were sums payable under a county court order, and in Scotland by diligence as if the certificate were an extract registered decree arbitral bearing a warrant of execution issued by the sheriff court.

Appeal in relation to design rights

640.The Registered Designs Appeal Tribunal (RDAT) was created by section 28 of the Registered Designs Act 1949. Any appeal from the registrar (the Comptroller-General of Patents, Designs and Trade Marks) under that Act lies to the RDAT. The Act transfers the jurisdiction of the RDAT to the Patents County Court and the High Court in England and Wales, the Court of Session in Scotland and the High Court in Northern Ireland.

Commentary on Sections: Part 7

Section 139: Enforcement by enforcement officers

641.This section amends the Lands Clauses Consolidation Act 1845 and the Compulsory Purchase Act 1965 to enable writs of possession issued to enforce compulsory purchase orders to be executed by High Court enforcement officers.

642.This change aligns the enforcement of compulsory purchase orders with the regime for enforcing High Court writs of execution contained in section 99 of and Schedule 7 to the Courts Act 2003. It does not remove the right of a sheriff to enforce a writ of possession issued to enforce a compulsory purchase order, should one be directed to him and should he wish to enforce it. The section removes the obligation, with the attendant legal responsibilities and liabilities, to enforce such writs of possession (High Sheriffs being unpaid volunteers who are appointed annually).

Section 140: Supplementary and Schedule 22: Compulsory purchase: consequential amendments

643.Section 140 amends Schedule 7 to the Courts Act 2003 to enable the arrangements that are currently in place for enforcement officers executing High Court writs of execution, (identifying enforcement districts, providing for administrative arrangements for enforcement of such writs and extending to enforcement officers powers and obligations that sheriffs have under common law), to be extended to High Court enforcement officers executing writs of possession issued to enforce compulsory purchase orders.

644.Schedule 22 makes consequential amendments in connection with the above.

Section 141: Judicial review: power to substitute decisions

645.This section replaces the existing section 31(5) of the SCA 1981 and extends the power of the High Court in respect of quashing orders. The High Court will still have the power to return a matter to a decision maker with a direction that it reach a decision in accordance with its findings. However, where the decision maker is a court or tribunal and the decision is quashed on the ground that there has been an error of law, the court will, alternatively, be able to substitute its own decision for that decision if it is satisfied that without the error there would have been only one decision that the court or tribunal could have reached.

646.Unless the High Court directs otherwise, a substitute decision will have effect as if it were a decision of the relevant court or tribunal.

Section 142: Recovery of sums payable under compromises involving ACAS

647.Section 142 amends the Employment Tribunals Act 1996 to provide that sums payable under ACAS negotiated settlements are enforceable in England and Wales as if they were sums payable under a county court order, and in Scotland by diligence as if the certificate were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court. In each case, the sum is not recoverable if the person by whom it is payable obtains a declaration in the relevant jurisdiction that the sum would not be recoverable from him under the general law of contract.

648.Rules of court may make provision as to time limits within which an application to a county court (or, in Scotland, a sheriff) for a declaration that a compromise sum is not recoverable is to be made; and when an application (whether made to a county court, the sheriff or an employment tribunal) for a declaration that a sum is not recoverable is pending.

Section 143: Appeals in relation to design rights

649.Section 143 abolishes the Registered Designs Appeals Tribunal and diverts its jurisdiction in England and Wales to the Patents County Court and the High Court concurrently. The Patents County Court is one with which users are familiar, is experienced in design matters, and its rules allow for affordable representation by patent agents and efficient procedures. While the Patents County Court and the High Court have concurrent jurisdiction, it is intended that appeals must first come to the Patents County Court which can then decide whether the appeal should be transferred to the High Court. The RDAT’s Scottish jurisdiction is transferred to the Court of Session and its jurisdiction in relation to Northern Ireland to the High Court in Northern Ireland. The courts to which cases from the Isle of Man are to be diverted can be prescribed by an Order in Council under section 47 of the Registered Designs Act 1949.

650.The RDAT also has the power to deal with some appeals on (unregistered) design rights pursuant to section 249 of the Copyright, Designs and Patents Act 1988. Design rights are rather different in nature to registered designs and are more complex, as they raise issues that are much more akin to copyright than registered designs. Section 143(3) therefore provides that in England and Wales and Northern Ireland, appeals relating to design rights are to be heard by the High Court and that, in Scotland, appeals will lie to the Court of Session.

Part 8: General. Summary

651.Part 8 provides for the territorial extent of the provisions of the Act. It also provides for provisions of the Act to come into force in accordance with orders made by the Lord Chancellor (or by the Secretary of State in relation to Chapter 3 of Part 5 or the Secretary of State or the Scottish Ministers in relation to Part 6), and confers power on the Lord Chancellor (or on the Secretary of State in relation to Chapter 3 of Part 5) to make transitional and consequential provision by order.

Commentary on Sections: Part 8

Section 144: Protected functions of the Lord Chancellor

652.Section 144 makes all the Lord Chancellor’s functions under (or under amendments made by) Part 1, sections 51 and 57, Parts 3 and 4, Chapters 1 and 2 of Part 5 and certain functions under, or under amendments made by, Part 2 protected functions for the purposes of section 19(5) of the CRA 2005, so that they cannot be transferred to another Minister without primary legislation.

Section 145: Power to make supplementary or other provision

653.Subsection (1) allows the Lord Chancellor (or the Secretary of State in relation to Chapter 3 of Part 5) to make an order for supplementary, consequential and transitional provisions, while subsection (2) makes it clear that such an order can amend or repeal other enactments. This type of provision is not unusual in Acts which reform existing statutory schemes and therefore require transitional provisions and/or which have a large number of consequential amendments, see for example the Courts Act 2003.

Section 146: Repeals

654.Section 146 introduces Schedule 23. Schedule 23 lists repeals arising from, among other things, the new statutory framework for tribunals and the new, unified law on enforcement.

Section 147: Extent

655.By virtue of section 147, Parts 1, 2, 6 and 8 of the Act extend to England and Wales, Scotland and Northern Ireland and Parts 3, 4, 5, and 7 extend only to England and Wales. This is subject to subsections (4) and (5). Subsection (4) allows for amendments to other Acts to extend to the same extent as those other Acts. For example, the amendment made by section 142 will extend to Scotland (as well as to England and Wales). Subsection (5) extends certain provisions to the Isle of Man. This is because section 143(1) and (2) amends the Registered Designs Act 1949, which itself extends to the Isle of Man. Therefore section 143(1) and (2), the relevant provisions of the repeals Schedule and section 147 extend to the United Kingdom and the Isle of Man.

Section 148: Commencement

656.Section 148 provides for the Lord Chancellor (or the Secretary of State in relation to Chapter 3 of Part 5 or the Secretary of State or the Scottish Ministers in relation to Part 6) to specify commencement dates for provisions in the Act by order. The provisions in the Act other than sections 53 (Transfer from salaried to fee-paid judicial office), 55 (Appointment of deputy Circuit judges), 56 (Appointment of deputy district judges, etc.), 57 (Deputy, and temporary additional, Masters etc.), 60 (Appointment as Chairman of Law Commission), 145 (Power to make supplementary or other provision), 147 (Extent), 148 (Commencement), 149 (Short title) or Schedule 11 (District judges and deputy district judges) will come into force on days appointed by order. Sections 53, 55, 56 and 57 and Schedule 11 come into force on Royal Assent. Sections 145 and 147-149, as is usual for general provisions of this sort, also come into force on Royal Assent; and section 60 comes into force two months after Royal Assent.

Glossary of Abbreviations

ACAS Advisory, Conciliation and Arbitration Service

AIT Asylum and Immigration Tribunal

AJTC Administrative Justice and Tribunals Council

AO Administration Order

AEA 1971 Attachment of Earnings Act 1971

AEO Attachment of Earnings Order

CCA 1984 County Courts Act 1984

COA Charging Orders Act 1979

CLSA 1990 Courts and Legal Services Act 1990

CPR 1998 Civil Procedure Rules

CRA 2005 Constitutional Reform Act 2005

CRAR Commercial Rent Arrears Recovery

DAC Discipline and Appeals Committee

DMS Debt Management Scheme

DRO Debt Relief Order

DRP Debt Repayment Plan

DTI Department for Trade and Industry

DWP Department for Work and Pensions

ERO Enforcement Restriction Order

HMRC Her Majesty’s Revenue and Customs

IVA Individual Voluntary Arrangement

JAC Judicial Appointments Commission

MoJ Ministry of Justice

RDAT Registered Designs Appeals Tribunal

SCA 1981 Supreme Court Act 1981

Hansard References