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I turn to the issue of enforcement and bailiffs, because that is the most vexed and controversial part of the Bill. There has been a significant increase in the amount of abuse by bailiffs, of which we have heard a number of examples today. Indeed, my hon. Friend the Member for North-East Hertfordshire gave a very
good example. The hon. Member for Knowsley, South (Mr. O’Hara) told us about the very harrowing case of an elderly person who came home to find a bailiff in her house. He had entered it on the basis of debts that her grandson had run up and had drawn up a list including most of her household possessions.
Many of us have seen the BBC “Whistleblower” programme which was extremely critical of several large bailiff firms. The National Association of Citizens Advice Bureaux, which I gather is now called Citizens Advice, gave us a number of examples of abuse. I heard about a single mother who had been fined £1,072. The bailiffs visited her house and seized a television, a DVD player and 60 CDs, which they then auctioned for £72. After they had given £32 to the auctioneer, there was not a great deal left to settle her debt. Many of us would wonder why the bailiffs caused that level of distress to collect that very small amount of money, even though the debt was quite high.
As my hon. Friend the hon. Member for Braintree made clear, society is becoming more indebted. The Minister who opened the debate was right to say that the current situation is confused, with numerous common law judgments and different statutes going back many years and leading to considerable confusion. There is a need for a new code and certification process, and we support that, but that is in the context of the 2004 Act, which gave far greater powers of forced entry. On top of that, the Bill will extend powers so that forced entry will be allowed in relation to civil debts that are authorised by the court, albeit with very tight guidelines.
Many concerns have been expressed in this short debate, that much more power is being given to bailiffs. The hon. Member for Bolton, South-East (Dr. Iddon) expressed concern, as did the hon. Member for Twickenham (Dr. Cable) and several of my hon. Friends. One hon. Member after another has made it clear that a balance must be struck, but that the Bill strikes it in the wrong way. That was made clear by my hon. Friends the Members for Hornchurch (James Brokenshire), for South Staffordshire and for Braintree, and by others, including the hon. Member for Knowsley, South.
Of course, we have to strike a balance, because debts that are owed in society have to be collected. We cannot have a capitalist system if the creditors do not have a mechanism by which to collect that money. It is important that there be a system that is easy to understand and to implement, and that is why we support much of the Bill. However, the Opposition are concerned that two fundamental constitutional points or areas of constitutional law are being undermined, albeit through common law.
Mention has been made of the Englishman’s home being his castle. In his judgment in Southam v. Smout, Lord Denning cited William Pitt the Elder’s famous saying:
“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement”.
That pass has been sold. The 2004 Act fundamentally changed our constitutional law and the Bill will go further.
It is important to bear in mind another constitutional point. Criminal fines are civil debts, not criminal debts, so enforcement should not constitute an additional punishment. That is a fundamental point, and we should look at it carefully when analysing why and how Her Majesty’s Government are justifying allowing extra levels of forced entry. They say that it is to enforce criminal penalties, but if one drills down a bit further one sees that many of those criminal penalties involve fines for quite minor offences—for example, not having a TV licence or car tax disc—or parking tickets and congestion charge penalties. Many other examples have been given by the excellent Zacchaeus 2000 Trust, which made a convincing and compelling case that many debts are fuelled by poverty. Some of the most vulnerable people in society will lose rights, while the power of the state will grow.
We are giving extra powers to bailiffs, but we have heard many examples of abuse, so extra checks and balances are necessary. There is a strong argument for bailiffs wearing a distinctive uniform at all times, which was put succinctly by my hon. Friend the Member for South Staffordshire. We need clarity about exempt goods. Lord Beaumont of Whitley—I understand that he is the only Green peer in the other place—worked hard on the Bill, and moved an amendment to include a list of exempt goods that would be precluded from any form of seizure; for example, tools of a trade, as my hon. Friend the Member for Newbury said, as well as domestic animals kept as pets, guard dogs, dogs on which a blind person relies, sums of cash below a specific level, and other items that it would be wrong to seize.
When the Minister opened the debate, she said that it was better to deal with the matter by way of regulation because the nature of goods changes as society changes—for example, mobile phones. Who had a mobile phone 10 or 12 years ago? It makes sense to change the list of goods by regulation, but we do not trust the Government, and we want a provision in the Bill. We shall push hard for that in Committee.
It is also necessary for bailiffs to have a clear focus and effective guidance. I asked the Minister about the magistrates courts guidance on search and entry powers under the Domestic Violence, Crime and Victims Act 2004 and pointed out that when Lord Beaumont asked for a copy of it, he was given a 31-page document, of which 15 had been redacted—blacked out completely. That was disappointing. We are looking for more open government, and to ensure that the bailiff system carries public confidence, but that will not happen if a key guidance document of instructions to bailiffs has redacted pages. What is so secret about those instructions? Are bailiffs being given hints and tips about how to enter people’s homes and cause maximum grief to our constituents? I do not know, but we must see that guidance published in full. The lack of its publication is a sorry state of affairs.
There was overwhelming support on both sides of the House for a system of independent regulation by a respected independent regulator who would be in charge of all aspects of regulation, licensing, the certification process, and monitoring all bailiff activity.
My hon. Friend the Member for Old Bexley and Sidcup mentioned Philip Evans, chairman of the Enforcement Law Reform Group, who made it absolutely clear time and again that the bailiff industry wants regulation. It is concerned not only that the extra powers will lead to additional abuse by a small minority of bailiffs, but also about public support for the law. That is why they are clearly saying that there should be regulation.
It is worth bearing in mind the fact that the situation in Britain is almost unique, as bailiffs are agents of the creditor in some cases, but agents of the Crown in others. In every other country bailiffs are agents of the state, so we must have regulations when bailiffs are given extra powers, as they were under the 2004 legislation and as they will be under the Bill.
The Minister in the other place has come up with the proposal that regulation should be handed over to the Security Industry Authority, which I want to give some brief consideration, as it is essential to the way forward. The SIA was established under the Private Security Industry Act 2001, so it would be possible under regulations to extend the authority’s power of regulation of the bailiff sector. However, I gather that the SIA is not keen on having those extra powers.
Furthermore, the authority’s reputation is mixed. It has been slow to process licence applications in its existing area of work. I do not like its policy whereby if 80 per cent. of an approved contractor’s staff are licensed, the rest can act as though they are licensed. The SIA has been poor in responding to justified criticisms of the wheel-clamping sector, where many cowboys operate. Above all, when the SIA investigates a complaint, it does not tell the complainant of the outcome, even when the complainant is the victim of illegal action. Under the Minister’s proposals, the SIA will regulate only private bailiffs, not Crown agents. We need a system for regulating all bailiffs. That is only sensible.
The Under-Secretary of State for Constitutional Affairs explained that a joint DCA-Home Office consultation process is under way to look at the cost and impact of regulation. The consultation will end on 25 April, which is quite soon, so I agree entirely with my hon. Friend the Member for Hornchurch that there is an overwhelming argument for delaying the granting of enhanced powers until we have clarity about the whole regulatory framework. What will happen if HMG turn their back on even the modest regulation that has been proposed? What happens if they decide that the SIA is unsuitable for carrying out that role? Unless we have that delay, the Bill will pass into law with no guarantee that there will be a proper regulation system.
Many excellent points have been made during the debate. The Conservatives are in broad agreement with much of the Bill, which will bring in long overdue legislation. However, when there is unprecedented debt in society, when huge heartache and grief are caused by debt and there is ever-increasing abuse by bailiffs—albeit only a small minority—it is not the time to be giving bailiffs extra powers and putting into reverse some key constitutional principles. It is not the time to be making fundamental changes that will give bailiffs extra power without a proper regulatory framework, which is why we shall hold the Government to account
in Committee and on Report. We shall do all we can to make sure that the most vulnerable people in society do not fall victim to the extra powers in the Bill.
7.58 pm
The Parliamentary Under-Secretary of State for Wales (Nick Ainger): This has genuinely been a good and interesting debate. I shall attempt to respond to the many points made by Members on both sides of the House.
The Bill contains a range of important measures, including reform of the tribunal system, changes to the eligibility requirements for judicial appointments, reform of enforcement law, greater regulation of bailiffs, improvements in the effectiveness of the enforcement of judgments and a series of measures to assist the over-indebted and immunity from seizure for works of art on loan to the United Kingdom. Colleagues have debated how that package of measures will help to improve access to justice and the administration of justice. We have also, rightly, talked much of the need to protect the most vulnerable in our society, which is one of the key aims of the Bill.
May I start by dealing with part 1 and the issues that it raises? I am grateful to all hon. Members for the welcome they have given to that part of the Bill and for their understanding of why now is a good time to take these proposals forward. The hon. Members for North-East Hertfordshire (Mr. Heald), for North Southwark and Bermondsey (Simon Hughes), for South Staffordshire (Sir Patrick Cormack) and for North-West Norfolk (Mr. Bellingham) all welcomed the proposed changes, but raised a number of issues.
The hon. Member for North Southwark and Bermondsey referred to judicial review, as did the hon. Member for North-East Hertfordshire, and asked whether a High Court judge would be in charge. As was pointed out in the debate, the Government accepted an amendment in the other place that inserted a new provision in clause 18, stipulating that judicial reviews transferred to the upper tribunal will have to be heard by a High Court judge or a Court of Session judge or a judge on a list approved by the senior president of the tribunal and the three chief justices. Selection for individual cases will be made by the senior president of the tribunal or his delegate, so the House can be assured that if a judicial review is referred to the upper tribunal, a senior judge will take it forward.
Mr. Heald: Can the Minister give us any idea of how many judges who are not High Court judges are thought likely to be given this ticket to take on those administrative cases?
Nick Ainger: I am getting indications that it could be as many as 20. They would be justices with a particular expertise in the relevant area of the judicial review. As I say, up to about 20 are likely to be involved.
The hon. Member for North Southwark and Bermondsey also referred to the Joint Committee on Human Rights and asked whether the Government had accepted all the recommendations. In fact, the Government have not accepted them all, but my noble Friend Baroness Ashton responded to the Chairman
of the Joint Committee on Human Rights on 21 February, setting out her views. I am sure that her letter can be made available to the House.
The hon. Members for North Southwark and Bermondsey and for South Staffordshire also raised points relating to part 3—the most contentious part of the Bill—on the regulation of bailiffs and forcible entry. Several hon. Members also referred to problems of identification. All bailiffs will have to carry clear identification that can be presented to a debtor. I acknowledge the point about bailiffs having a specific uniform so that anyone can clearly establish that they are not just people banging on the door. I am sure that members of the Committee will be able to raise that matter again at an appropriate point in proceedings.
Simon Hughes: I would like to reinforce the point about how easy it is for someone who looks like an official to appear at the door with a certificate of authorisation or what looks like an official warrant taken out of the pocket. Lots of older people, for example, open their doors to people who allege that they are from the water board, the gas board, the electricity company or whatever. The reality is that bits of paper or card do not really confer any obvious authority and they are no substitute for something that can be clearly checked at some particular place where confirmation can be established that a person with that number and name is indeed entitled to come through the door.
Nick Ainger: I understand the hon. Gentleman’s point, but I emphasise that a bailiff will not only have to present identification but provide details of their authority to be there. That will relate to the judgment of the court.
The hon. Member for North-East Hertfordshire and several others, including my hon. Friend the Member for Knowsley, South (Mr. O'Hara)—I congratulate him on his work in bringing to the House’s attention the importance of regulating bailiffs—raised further issues about the new regulations that would be introduced under clause 59, which deals with certification. I reiterate what the Under-Secretary of State for Constitutional Affairs, my hon. and learned Friend the Member for Redcar (Vera Baird), said earlier—we can give an assurance that those regulations about the certification of bailiffs will be available and in place before the new powers are given to bailiffs.
A number of hon. Members referred to individual cases and to the statistics produced by Citizens Advice about the serious problems created for vulnerable families by rogue bailiffs. Clearly, we need to get regulation in place as quickly as possible and I can assure the House that it will be in place before any new powers are given to bailiffs.
Mr. O'Hara: I said earlier that if the regulations were not included in the Bill, they would presumably be passed through secondary legislation. That means that they would not be subject to the rigorous scrutiny that they would receive were they in the Bill. Will my hon. Friend address that issue?
Nick Ainger: That is true, but it will be done through the affirmative order process. I accept my hon. Friend’s point, which I am sure will be forcefully made again in Committee.
The hon. Member for North-East Hertfordshire mentioned a leaflet providing details of the powers that can be imposed on debtors. Under the Bill, the Department is committed to producing information leaflets that will outline the rights and responsibilities of all parties—debtors, creditors and enforcement agents. Paragraph 7 of schedule 12 requires a notice of enforcement to be given to the debtor before action is taken; and paragraph 28 of the same schedule requires further notice to be given on enforcement about what the enforcement agent is doing. Information will therefore be made available.
The hon. Member for North-West Norfolk raised the matter of the Private Security Industry Act 2001 and his concerns about the effectiveness of the industry. It has taken some time for the authority to get up and running, but we feel certain that the authority is the correct body for the enforcement of those regulations. We believe that it is appropriate to use that organisation.
Mr. Bellingham: I am obviously concerned about a number of points that relate to the Security Industry Authority, but is there any possibility of it regulating Crown bailiffs, so that it would regulate all bailiffs across the spectrum?
Nick Ainger: The current proposal is that the authority would regulate not Crown agents, but those who work for local authorities. Those who work for the Crown are civil servants. There are open and transparent complaints procedures, and so on. At the moment, the Department does not feel that such an additional burden of regulation on Crown agents is necessary; but, again, I am sure that the Committee will return to it.
I want to give a further reassurance to my hon. Friend the Member for Knowsley, South, who asked about when forced entry would be sought and what restrictions will be placed on that. The conditions that apply to an application for forcible entry are as follows: other methods of enforcement have failed; the property is inhabited by the debtor; normal entry attempts have been unsuccessful; there is reason to believe that there are suitable goods on the premises to satisfy the debt and evidence to support that belief; the enforcement agent has considered the likely means required to gain entry; and the enforcement agent will leave the property in a secure state. However, the judge who considers the application for forced entry must consider the size of the debt and whether such action is in proportion, the type of debt and, most importantly, any other information about the debtor’s personal circumstances. Such approval will not be given lightly, and there will be an opportunity for the debtor, or his or her representative, to make representation at the hearings.
Mr. O'Hara:
I thank my hon. Friend for that, and I applaud all of it. My concern continues to be that the other circumstances will include not just financial
circumstances but personal ones, for which the generic term “vulnerability” has been used many times during the debate.
Nick Ainger: Yes, and I am sure that that issue will have to be considered. Whether there is illness and the other relevant circumstances are important matters.
The hon. Member for North Southwark and Bermondsey asked how often forced entry had been used under existing legislation. Apparently, between July 2005 and February 2006, six forced entries have been carried out. He also suggested that the register of county court judgments needs to be available. I can tell him that the register is available online, and the general public have access to it.
Simon Hughes: Of course the register is available. The point that I made was that people need somewhere locally where they can see not only what the registered judgment says, but whether a recent payment has been made. The problem is often that payment has been made two days before the bailiffs arrive, but that fact has not been marked up for everyone to see.
Nick Ainger: Yes, I appreciate that, and although it is important that we have a record of the judgments—this is where the information is so important—those who find themselves in such a position do not necessarily contact the court or deal directly with the bailiffs. They deal with their creditor, whoever it may be, to establish whether that creditor has received the payment that they have made, and so on. That is the process. The hon. Gentleman also referred to cases in which a payment is made on the Friday before a bank holiday. It is often difficult to establish whether a payment has been made, but the people who are seeking the judgment and putting in the bailiffs should be contacted initially to establish that.
The hon. Member for Old Bexley and Sidcup (Derek Conway), who is no longer in his place, spoke about the concerns that bailiffs have put to him that the proposals would be likely to lead to the seizure of goods at an earlier stage, rather than allowing time for the debtor to make payment. The Bill contains a swift and simple method to apply for a warrant that allows the bailiffs to force re-entry once they have identified goods for seizure, so it is far more likely that that time will be used by debtors, if they have the resources, to pay their debts or to make a contribution to paying them.
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