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5 Mar 2007 : Column 1301

Dr. Brian Iddon (Bolton, South-East) (Lab): My office has had several run-ins with bailiffs and I hope that my hon. and learned Friend can provide some answers this afternoon to my concerns about them. We have had cases of bailiffs turning up at houses to collect goods, when the previous householder who owed the debt has moved. We have had two cases of large companies pursuing debts against householders whose identities had been stolen, and we have had many cases of bailiffs turning up to collect debts when the company or the local authority have had the debt paid but failed to communicate that fact to the bailiffs whom they instructed. While the Minister is discussing part 3, will she give me some assurances about providing safeguards for such innocent people?

Vera Baird: I know of even worse problems with bailiffs than that. Sometimes it is not just about them turning up at the right place, but about how they behave when they get there, which has often been a cause of concern. I will come on to setting out the particular provisions shortly, but the intention is that there should no longer be any bailiffs who are not certificated by a county court judge. There should be no such people at all, so that should get rid of those who make those sorts of errors or behave in a disreputable way. I will come on to the specific powers in the Bill a little later, if I may.

Dr. Vincent Cable (Twickenham) (LD): Will the Minister make it clear that, during the Bill’s progress, she intends to heed the advice of the advice agencies and the bailiffs themselves that there should be no question whatever of physical force and restraint being empowered, since it appears that only High Court enforcement officers are seeking that power, and they already have powers of arrest? Will she rule out completely any provision in the Bill for the use of physical force and restraint?

Vera Baird: The hon. Gentleman is right that High Court enforcement officers already have the power to use force where necessary. There is a debate about whether it should be extended to other certificated bailiffs. We are consulting on that issue, and it will be discussed if the view from the consultation is that the power is necessary. However, the Government have a fairly open mind about whether there should be any such power, and there is nothing in the Bill to permit it. Schedule 12 says that there shall be no use of force, unless regulations provide for it.

Derek Conway (Old Bexley and Sidcup) (Con): The hon. and learned Lady has been very generous, as she always is on these occasions. She refers to the consultations. Clearly, groups such as the citizens advice bureaux have made their understandable concern known to hon. Members, but one of my constituents is chairman of the Enforcement Law Reform Group and he tells me that it is the view of the bailiffs’ representative organisation that the

So I am sure that the Minister will understand that there is concern, now that we are overturning 400 years of accepted legal practice in this country, about the Government’s consultation process. Will she share with
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the House what the vested interested groups are? As far as I can see, neither the citizens advice bureaux for consumers nor the bailiffs themselves are entirely happy with what she is proposing.

Vera Baird: I think that the topic has moved on from the one that was raised by the hon. Member for Twickenham (Dr. Cable). I assume that the hon. Gentleman’s cogent, if not pungent, reference to 400 years of history relates to any right to enter property using reasonable force, so I shall now turn to that provision. It is very important that the Bill provides a comprehensive code for the enforcement of civil debts, judgments and criminal fines by seizure and sale, because it has been a very confused, overlapping and interwoven picture so far. I understand that some elements of the law go back as far as 1267. An enforcement agent’s powers to seize and sell goods when enforcing judgments, civil debts and criminal fines have been set out in different places, with different rules applying to different debts—for example, depending on whether the debt is a tax debt or relates to a county court judgment. That does not make much difference to the recipient of the visit from the bailiff, but the various powers have been set out in different places—very confusing.

Clauses 57 to 60 and schedules 12 and 13 will replace innumerable common law rules and repeal various statutory provisions and replace them with a single comprehensive code for enforcement by taking control of goods. Everyone—creditors, debtors and agents—will benefit from clear, modernised enforcement law. Given the reference to 400 years of history, let me set out the position of bailiffs and the right to enter using reasonable force. First, the power to use reasonable force to enter premises to recover money without any specific prior judicial authority was introduced in the Domestic Violence, Crime and Victims Act 2004. So there is an existing right to use reasonable force to enter premises to recover money without specific, prior judicial authority—that is, on a case-by-case basis—and that power is not widened or extended at all in the Bill: it is reiterated in paragraph 18 of schedule 12. I am told that the power has been used rarely, even in situations of fine enforcement.

The change proposed in the Bill will permit an application to a judge in a specific case, to permit an enforcement agent to use reasonable force to enter premises to recover a civil debt. That is, in a sense, a change of principle, so I pause to make it clear that the change proposed relates to an individual’s civil debt, rather than a debt owed to the state by a fine defaulter. The debt may be to an individual or to a state Department. There are all sorts of moral possibilities. The debt may be owed by a one-parent family, about which there has been much talk in the press today; by the owner of a big business who is refusing to pay, although he obviously has the cash or possessions to do so; or by a small sole trader who would go out of business and put his family on to benefits if it is not paid soon. It is the state, though, through the mechanism of the courts, that will totally control the use of the power, in that its use will involve an application to a judge and there will be guidance, which is currently set out in a detailed policy statement, in delegated powers as to what he must have regard to before granting the application.

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Mr. Brooks Newmark (Braintree) (Con): My biggest concern is not what will happen to big companies that are forced to deal with the contracts; it is the fact that the most vulnerable people in our society will be the most affected by the legislation. I am curious to know how the hon. and learned Lady will deal with the sensitivities involved in dealing with the most vulnerable people in our society.

Vera Baird: It is a pretty sweeping statement to say that it is the most vulnerable people in society who are covered; it is, of course, all debtors.

Mr. Newmark: May I just clarify what I said?

Vera Baird: Of course.

Mr. Newmark: My concern is with the most vulnerable people in society; I was not saying that the legislation deals only with them.

Vera Baird: All right. I am happy to share the hon. Gentleman’s concern for the most vulnerable in society; there would be few in the Chamber who would say that they did not.

As I have said, it is proposed that, in specific cases, there will be an application to a judge if there is a need to permit an enforcement agent to use reasonable force to enter premises. The judge will have to have regard to a whole catalogue of criteria before making his or her decision. For instance, it is intended that the court’s power will be used only as a last resort. The judge needs to be satisfied of that. All relevant other methods of enforcement, such as attachment of earnings, peaceable entry, and walk-in possession—now to be called controlled goods agencies—should have failed. The property should be inhabited by the debtor. Normal entry attempts—peaceable entry—should have been unsuccessful. There should be reason to believe that there are suitable goods on the premises to satisfy the debt and there should be evidence to support that reasonable belief. The enforcement agent should have considered the likely means required to gain entry and should be able to—and will—leave the property in a secure state. We would urge judges to take into account other factors, such as the size of the debt, the type of the debt and any other information about the debtor’s personal circumstances. He can put conditions on the power if he chooses to grant the application.

James Brokenshire (Hornchurch) (Con): As the Minister will be aware, one of the concerns of Citizens Advice is the fact that disreputable bailiffs may misrepresent their powers. Some 39.5 per cent. of its bureaux report that bailiffs are misrepresenting their powers of entry. Will she confirm the likely time scale for the introduction of the codified powers and what she has described as a change of principle? How will that interrelate with the new registration process, which is subject to consultation? The consultation period expires at the end of April. How will those two issues be interlinked, given the concerns that have been expressed?

Vera Baird: The simplifying code of procedure is in the Bill, so it will be available to be introduced on Royal Assent. The process of certificating all bailiffs can also
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commence as soon as the Bill comes into force. As the hon. Gentleman perhaps knows, and as I will come on to say, this is intended to be an interim solution until there can be proper regulation by, probably, the Security Industry Authority. By introducing a coherent code and simultaneously requiring that all bailiffs be certificated, we hope that we can dovetail the two things that are causing difficulty at the moment.

Mr. Oliver Heald (North-East Hertfordshire) (Con): Would it not be better to wait for the full solution of regulation before introducing the powers, or at least before implementing them? Grave concerns have been outlined by Citizens Advice and others. Is the Minister really happy with the way the process is working?

Vera Baird: The powers should not, in my view, be used by anybody who is not a certificated bailiff; it would be necessary for that certification to have been attained before anyone could use the powers. We urgently need to bring in a coherent code, because the abuses to which various people have alluded are taking place.

Mr. Heald: I am grateful to the hon. and learned Lady for that answer, but I was referring to the fuller system of regulation of bailiffs, on which she is consulting. Given that it is obviously the Government’s view that a full system of regulation is required, should it not be put in place before strong extra powers are implemented?

Vera Baird: We think that the county court judges doing the regulating are capable of ensuring that there is acceptable quality. More detailed regulation needs to follow, but it seems to us that the right balance is struck in the Bill.

Sir Patrick Cormack (South Staffordshire) (Con): As the hon. and learned Lady has made plain, she does not think that any bailiff who is not certificated should be able to be involved in the procedures. Would it not be sensible, and reassuring to Citizens Advice and others, to delay the implementation of the part of the Bill that we are discussing?

Vera Baird: The hon. Gentleman’s point ought to be considered seriously; I accept that.

Simon Hughes rose—

Vera Baird: I give way to the hon. Gentleman, and I have an answer to his earlier question, too.

Simon Hughes: As the hon. and learned Lady will know, we are discussing the most controversial part of the Bill, and the part that gives rise to the greatest concerns. I absolutely share the view expressed by the hon. Members for South Staffordshire (Sir Patrick Cormack) and for North-East Hertfordshire (Mr. Heald). Will she tell us whether there is any remedy for somebody who believes that their goods were taken wrongly or inappropriately, either in the current guidance or in the Government’s proposals for developing that guidance and putting it to the regulatory authority? Often, one of the issues is that when something is taken there is no recourse, even if
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that enforcement was wrongly done. Is there an available remedy, or a holding time—a time for putting right what may have been done wrongly?

Vera Baird: I cannot say that there is a holding period, or that it would be practical to provide one. There will be remedies, both of a penal kind and of a recovery kind, for people who act without certificates and for wrongful enforcement. In fact, there is a course of action for wrongful enforcement now. The hon. Gentleman asked me earlier whether magistrates, commercial lawyers and legal academics were eligible under the judicial appointments system. All would be eligible if they met the qualifying period requirements, assuming that they were suitably qualified as solicitors, barristers, legal executives, trademark attorneys or patent agents. I am sorry that I could not give him a comprehensive reply earlier.

Dr. Iddon: What safeguards will there be, either in the Bill or in the secondary legislation, to protect people whose identities have clearly been stolen? In one of the cases to which I referred earlier, it took us a week to prove to a large multinational company that it was pursuing a gentleman who clearly was not responsible for the goods for which it accused him of being responsible.

Vera Baird: The reassurance that I can immediately offer is that the judge will have to be satisfied that the action is a last resort, and that all other relevant means of trying to recover judgment have been used. It would be pretty extraordinary if a whole course of conduct had been gone through to try to enforce against a particular individual, yet it had not become clear that it was not the right individual. The last resort position is helpful in that respect, but if my hon. Friend can envisage something more specific that is likely to give people further reassurance, of course we would be ready to consider it. As I say, the warrant to enforce fines is used very rarely, and we anticipate that the measure will be a last resort. There will have been many dealings and attempted dealings between the court and the debtor before we even arrive at a situation in which the power could be used, so a situation such as that described by my hon. Friend ought to have been clarified by then.

Mr. Edward O'Hara (Knowsley, South) (Lab): To return to the issue of forced entry, I listened carefully to the conditions that a judge would consider before granting a warrant, and I applaud all of them. My hon. and learned Friend concluded with the catch-all expression, “any other...circumstances”. Does that refer to financial circumstances or to personal circumstances? Other hon. Members have mentioned, vulnerability—a generic term that covers advanced age, disability, recent bereavement, young children whose welfare could be put at risk, serious long-term or acute illness, and properties that are classified as sheltered housing. Would such conditions be considered by a judge, too, before granting a warrant?

Vera Baird: Yes. My hon. Friend set out very clearly the considerations we intend to include under a heading that, I accept, was a catch-all, as it refers to
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any other information about the debtor’s personal circumstances. The decision will be made by an experienced county court judge, who must have all the facts before them, so that it will be a reasonable one. It is a big step for anyone to be authorised to take, and I do not doubt for one minute that it will be taken only in the rarest circumstances, when every other possibility has been exhausted.

Mr. John Grogan (Selby) (Lab): Independent regulation of bailiffs was suggested in the White Paper “Effective Enforcement”, in 2003. If the Government decide after their current consultation to make the Security Industry Authority the independent regulator, when is the earliest possible date at which that decision could come into effect?

Vera Baird: It is hard to be specific. An affirmative resolution would be required to bring bailiffs within the Private Security Industry Act 2001. That necessary step could be taken before the summer recess, and it would then be a question of putting training in place. Indeed, increased training is an important consideration.

Mr. Heald: I am grateful to the hon. and learned Lady for giving way; she has been generous in accepting interventions. On the question of training, concern has been expressed that private bailiffs, who will be properly trained and can exercise reasonable force, can take other people under their direction on to the premises. Who will those people be, how will they be trained, and what safeguards will there be to ensure that they do not behave unsatisfactorily?

Vera Baird: Reasonable force can be used to enter premises. Bailiffs are not entitled to use reasonable force against people at all. The plan is that the locksmith should come with the bailiff to remove the lock from the door—that is the best way of getting in—and to put another lock on the door afterwards to secure the property. Training will be available for people who have a supervisory role in the security industry, and under the new system they will be responsible for those whom they take with them. In the model at which we are looking, the locksmith is needed for practical reasons to support the bailiff’s activity.

No doubt it is self-evident after that analysis, but any condition can be imposed by a judge on the warrant for entry. It may be appropriate, for instance, to ask a constable or a police community support officer to go along, or to ensure that a woman officer is present if a woman is likely to be the person in a premises. That would be an entirely reasonable and probably desirable condition for a judge to consider putting on such an order.

That is the nature of the new proposal, and given everything that I have set out, it is far likelier to be used, if it is used, against the “won’t pay” rather than the “can’t pay”. Is it a necessary power? The alternative is to say that whatever the debt, whatever family distress may be caused by non-payment of the debt, and however clear it is that someone can pay but will not pay, even if attachment of earnings has failed, and judges have made orders of all kinds to try to enforce, someone can avoid recovery against his goods if he simply keeps his front door shut. That is not
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satisfactory for judgment creditors, for businesses that require bills to be paid to keep going, or for a belief in the administration of justice. Is there any point at all in people going to court if, in the end, all someone needs to do is to close their front door to prevent enforcement?

I have experience of complaints about bailiff abuse. We will regulate—I will come to that. We cannot allow a continuation of the present situation, which gives rise to visits to our surgeries because some bailiffs who do not have the right to enter through the formal channel use force. They stick their foot in the door, go in through an open window or a skylight, wait till the garden is open and so on. Such appalling, scary behaviour cannot continue. We believe that the regulation that I shall describe will stop that, and that this carefully and finely tailored procedure is the way forward.

The changes should control the actions of enforcement agencies, determining, for example, when the agent goes in—between fixed hours, not at dead of night. The changes introduce a simplified fee structure applicable to enforcement agents when seizing and selling goods, an aspect that has been open to abuse in the past. If they are paid an up-front fee for what they do, they will be less desperate to get their cut through enforcement.

Coupled with these changes, clauses 58 and 59 introduce greater regulation of enforcement agents who are not Crown employees or constables. Currently only certain enforcement agents hold a certificate under the 1888 legislation. The Bill extends and modifies certification to cover any enforcement agent who is not exempt and who wishes to seize and sell goods for the enforcement of judgments and fines. The certification process is set out in regulations made under clause 59.

In order to qualify, agents will have completed suitable training, which will include an understanding of vulnerability, diversity training, how to mediate heated situations, and an understanding that they represent the public interest and are the officers of the court, not solely the fee-earning agent of the creditor—an important realisation. They will be subject to strict criminal record checks. It is possible, and indeed likely, that judges will take evidence in court from individuals to ensure that they understand their role and their powers, and a bond will need to be deposited. I hope that even in this interim proposal, pending the advent of full regulation by the Security Industry Authority, there will be a strong guarantee of better quality in bailiffs. The level of fine for acting without a certificate will be increased from a derisory £200 to £5,000.

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