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New clause 5— Enforcement by taking control of goods
‘(1) There shall be a form of enforcement against corporeal moveable property for recovery of money owed that it is to be known as taking control of goods.
(2) Taking control of goods shall include selling them to recover a sum of money.
(3) Schedule 12 applies where an enactment, writ or warrant confers power to take control of goods.
(4) Regulations may make provision about taking control of goods, including provision determining the time when control is taken.
(5) Any liability of an enforcement agent (including criminal liability) arising out of his securing goods on a highway is excluded to the extent that he acted in accordance with Schedule 12 and with reasonable care.’.
New clause 6— Independent regulatory authority for bailiffs and enforcement agents
‘(1) The Lord Chancellor must by regulations establish an independent regulatory authority for bailiffs and enforcement agents.
(2) Regulations under subsection (1) must make provision for—
(a) the licensing of enforcement agents;
(b) the approval of the businesses and organisations which employ them;
(c) the accreditation of the professional bodies which represent them;
(d) the setting of standards of conduct;
(e) the monitoring of performance;
(f) the investigation of complaints;
(g) the punishment of failure to comply with standards of conduct; and
(h) the provision of redress where appropriate.’.
Amendment No. 37, page 43, line 21, leave out clause 57.
Amendment No. 21, in clause 58, page 44, line 4, leave out paragraph (c).
Amendment No. 33, page 44, line 6 , leave out from ‘as’ to end of line 10 and insert ‘a constable’.
Amendment No. 34, page 44, line 11, leave out subsections (4) and (5).
Amendment No. 35, in clause 59, page 44, line 29 , at end insert—
‘(ba) for certificates to be issued to—
(i) officers of a Government department, and
(ii) persons appointed under section 2(1) of the Courts Act 2003 who are directly employed by a Government department or an executive agency;’.
Amendment No. 5, in clause 143, page 110, line 3 , at end insert—
‘(4A) No order may be made under this section to bring Chapter 1 of Part 3 into force unless the provisions of section [Commencement of Chapter 1 of Part 3] have been complied with.’.
Amendment No. 42, page 110, line 3 , at end insert—
‘(4A) No order may be made under this section to bring Chapter 1 of Part 3 into force unless the provisions of section [Independent regulatory authority for bailiffs and enforcement agents] have been complied with.’.
Amendment No. 24, in schedule 12, page 205, line 21, leave out sub-paragraph (3).
Simon Hughes:
My hon. Friend the Member for Cardiff, Central (Jenny Willott) and I tabled new clauses 2 and 4 and amendment No. 5, but I am
conscious that other new clauses and amendments were tabled by the hon. Member for Great Grimsby (Mr. Mitchell). [ Interruption. ] I beg his pardon—that was an aberration; I was looking for him in the wrong place. We have all been a bit thrown by the events of the past 24 hours, so I apologise. I am also conscious that for the next hour or two, great attention will be probably paid to the activities of the state elsewhere, and not here. None the less, these are important matters, and I am grateful for the opportunity to come back to them.
Our new clauses relate to the important part of the Bill about the enforcement of court orders that was much discussed on Second Reading and in Committee. In particular, I refer to the enforcement of control orders by taking control of goods, and to the activities of bailiffs. They have a perfectly proper job to do, but they can become tyrants to the poor and the dispossessed. A regular theme of our debates has been to try to ensure that that this set of provisions in the Bill does not come into force until there is a registration scheme for bailiffs. That is the burden of new clause 2.
The Minister has been helpful in this respect, and I pay tribute to her for that. In Committee, she confirmed that the application of the Bill will be delayed until it can be placed in the context of the system for proper registration that exists under earlier legislation dating from the Private Security Industry Act 2001. I am grateful to her for that. To be honest, I must explain that the new clause is the rerunning of the argument about whether what she said should appear on the face of the Bill. The proposal is to put such a provision into the Bill, to lock into place the undertakings that she gave without equivocation or qualification earlier in the Bill’s passage.
I do not want to be confrontational, because there has been a coming together and the Bill has made significant progress on a matter that was controversial. My hon. Friend the Member for Cardiff, Central and I expressed concerns in different ways that reflected our constituency experience and the wider knowledge that we need to make sure that the bailiff and enforcement agency industries are properly regulated. New clause 2 was tabled to that end.
New clause 4 is a specific proposal that would require those who do enforcement work to be identifiable by wearing some form of uniform or having other identifying characteristics. Again, this is not new territory and the new clause is self-explanatory. It says:
“All enforcement agents, both private and Crown-employed, must at all times wear such uniforms or other means of identification as shall be prescribed.”
It does not goes into detail—one would not expect it to—as to what the uniform should be, but it would make it clear that people must be able to recognise the enforcement agents. Many agencies do such work, so if we are not careful, people will appear at people’s doors and they will not be obviously identifiable. They do not appear in police uniform or, necessarily, in any other recognisable uniform. Therefore, someone on the receiving end may not know that a document, letter, card or pass signifies with any authority what the person is there for.
We are trying to find a way of making sure that the citizen can understand that when people have particular powers to enter a property to take possessions—the sort of powers that are regarded as powers of the state or powers that the state gives to other people—those powers cannot be abused. Citizens should understand their rights in the real world, in which the poorest are often those who face the most oppressive debt. They are most harassed by such activity and find it troubling, and it can lead to the most severe consequences. Personal debt has gone through the roof, and many more people have hire purchase agreements, get into terrible trouble with their credit cards and finances and face huge interest rates. In the end, people may come to enforce the agreement, which legally in contract they may be entitled to do, but without the citizen knowing about it.
The Minister has been sympathetic to the concerns that have been expressed, and I am glad that this is not an issue of fundamental controversy. There are many people at the bottom of the income scale in her constituency and mine, and in that of the hon. Member for Great Grimsby. The new clause says that there should be a means by which the enforcer can be identified.
Amendment No. 5 deals with the commencement date for chapter 1 of part 3. It is linked to the new clause and would defer the commencement date until we know that we have the other security in place. It is tied to the first point that I made, and I think that it is covered by what the Minister has said. The provision would be locked into statute, because we are keen that we should come out of Report and Third Reading with everyone clear that no additional powers will be given to those doing enforcement work, unless there is a proper regulatory system.
Before I sit down, Mr. Deputy Speaker, it may be helpful to you, the Clerk, and my colleagues if I say that I do not think that there is now much disagreement on new clause 2. There may still be an issue with new clause 4. If so, I would be grateful if we could press new clause 4 to a Division, although I am conscious that that may come at a different stage in the proceedings.
Mr. Austin Mitchell (Great Grimsby) (Lab): It a pleasure to follow my hon. Friend across the tramlines, or rather, across the tracks—if I may call him that. He has put a lot of effort and thought into the measure and speaks with a good knowledge of the background. I was not on the Public Bill Committee because of the habit of not putting Government party critics of Bills on those Committees, so I am catching up from behind and cannot speak with his wealth of experience. I want to echo the concerns that he has expressed.
The bailiff provisions are one of the worst parts of the Bill. I have no great quarrel with the rest of the Bill. It would be better to omit part 3 and start again, but as the Government are determined to press on with it, it is important that the provisions fit into the social background. Society is being engulfed by a rising tide of debt. The problem is that the poor, who are struggling against debt and trying to rise above it, are in danger of being pushed down by over-harsh debt recovery provisions.
Debts abound. We are a society built on debt. Not only do we have student debt, which will have to be recovered at some stage, we have mortgage debt and the possibility of negative equity, which I hope does not arise again. More and more people have bigger and bigger mortgages. We have fines and fixed penalties, which will have to be recovered at some stage, local government fines and charges for council tax, bank charges, credit card debt, hire purchase debt, and tax credit recovery. All that will pose an increasing problem—a problem that will press on the poor, in particular. We do not want that section of society to be threatened by a massive and brutal recovery process. But, unless the new clauses and amendments are accepted, the Bill will do exactly that.
Bailiffs are a big business, and the reputation of the sector is not high. There are instances all over the country of brutal, and in many cases misguided, enforcements of debts. Sometimes those debts were never owing. People report their bad experiences with bailiffs. The situation is largely unregulated. Councils and courts have contracts with firms of bailiffs, but the contracts are weak. Many of them are not published, and it is difficult to get at them. They do not set a fair basis for charges and they do not set the fees, which can escalate. We have a system in which there is an onus on bailiffs not to recover the debt or trace the person, because they make their money by enforcement—by distraint on goods or by clamping cars, and by charging for that service. The whole system is slanted towards charges of that nature.
A regulatory framework is needed. My hon. and learned Friend the Minister, who has listened to the complaints with care and consideration, unfortunately still persists in saying that the regulatory framework will be provided through the Security Industry Authority. My new clauses would create an independent regulator for the industry, because the Security Industry Authority, to which, under regulations, the Minister proposes to give the powers, is not adequate. We are not talking about people who are bouncers at nightclubs. Some of them may behave like thugs and brutes, but they do not fall into that category. In many cases, they are acting as agents of the state, the court or the council—particularly in respect of road traffic fines. We need more effective regulation than the Security Industry Authority can provide. We need registration. We need that kind of structure to impose discipline.
1.15 pm
New clause 5 proposes a new method of taking control of goods. In practice, one of the Liberal Democrat new clauses is better, and I would be happy to accept that instead. The nub of my argument is dealt with in new clause 6, which proposes an independent regulatory authority for bailiffs and enforcement agents. It would apply to all people enforcing debts, whether they are from the court, the council or the Government. It proposes a framework that involves licensing the businesses that employ those people and accrediting the professional bodies that represent them. The authority would set standards of conduct, which is the key point.
Standards of conduct and behaviour vary widely, and in effect there is no redress for a person who is afflicted by the behaviour of bailiffs. If we had an independent authority that set standards, people could appeal to it and take their complaints to it. It would monitor performance. Much of the performance is unseen. The state and the courts want debts to be enforced. Bailiffs bring in money on an enormous scale, so there is, in effect, a kind of conspiracy between the authorities and the bailiffs. By monitoring performance, an independent authority could ensure that standards were maintained. It could investigate complaints, punish failure to comply with proper standards of conduct and provide the redress that is not presently available—or at least, it is extraordinarily difficult to secure—for anybody who suffers from the activities of bailiffs or mistakes made by bailiffs.
We know of large numbers of cases involving the distraint of goods, and in particular, the clamping of vehicles, in order to enforce debts. People are charged massive sums to take the clamps off. Those people need some machinery of redress and complaint, and the Security Industry Authority will not provide it. The Government have wavered on whether there should be some machinery of redress and complaint. First, they said that there should, and then they changed their mind and said that there should not. New clause 6 would require the provision of some machinery of complaint, because that is a basic democratic right.
The amendments in the group are less important than the new clauses. Amendment No. 37 is, in effect, covered by the new clauses. Amendments Nos. 21 and 24 provide that distraint and clamping should be done by bailiffs, not by somebody acting in the name of bailiffs, or even somebody supervised by bailiffs. Several cases have been brought to my attention in which the work was done by people who were not qualified or registered as bailiffs, but who said that they were acting under the supervision of bailiffs. My daughter’s car was clamped by somebody claiming to be a bailiff, who was not in fact the bailiff and was not registered as such. We might need more bailiffs—it is true that the numbers are not large, given the amount of work that is to be done—but it is important that they be registered, to ensure that they are supervised and working to proper standards. That is better than having the work done by untrained unqualified subordinates.
Amendments Nos. 33 to 35 would put Government officers on the same basis as bailiffs, so that only constables would be exempt from the relevant enforcement provisions. Amendment No. 42 would provide simply that the enforcement procedures would not come into force until an effective and proper independent regulator of the type that I want had been established.
I have given a quick tour d’horizon of my amendments, which resulted from burning the midnight oil to try to bring easement to the situation. However, I will want to press new clause 6 to a Division, because it is crucial that we have an independent regulator. I am not satisfied by the proposals put forward by my hon. and learned Friend the Minister. Although she has modified the Bill considerably and effectively, I am not happy about the Security Industry Authority, so I want the independent regulator for which new clause 6 would provide.
Mr. Bellingham: I listened carefully to what the hon. Member for North Southwark and Bermondsey (Simon Hughes)—my hon. Friend, in this context—said. We would certainly support him on new clause 4. The hon. Member for Great Grimsby (Mr. Mitchell) obviously carried out a good deal of research before preparing his new clauses and amendments, to which he spoke with eloquence. When I saw the amendment paper, I was amazed that so many of his proposals were similar to those tabled by the official Opposition in Committee. We devoted a substantial time to debating this subject in Committee. The Minister was able to explain that some of our fears were unfounded, and we were comfortable on some fronts after hearing what she said. However, there are many aspects of the Bill that still cause us great concern. That is why Conservative Members will be minded to support the Lib Dems on new clause 4, which would require bailiffs to wear uniforms—we tabled such an amendment in Committee—and the hon. Member for Great Grimsby on new clause 6, which would provide for regulation by an outside body.
The Bill gives bailiffs a substantial number of extra powers, such as increased powers to enter homes. It also takes away existing constraints. As the hon. Member for Great Grimsby pointed out, that is happening at a time when the amount of debt in our society is increasing, as is the pressure on individuals throughout our constituencies. More and more people are being persuaded to take out debt, or bamboozled into doing so.
The Government have created an additional 2,900 criminal offences and there are many new fines and penalties. To some extent, the Government have warped our sense of what is criminal. Many bailiff actions stem from crimes that resulted in fixed penalty notices. There has been a huge proliferation in the use of such notices. There is great concern in the enforcement industry that many Government Departments have created a situation in which more people will get into debt, which will have to be enforced.
I should make it clear that people who run up debts should of course pay those debts, whether they are owed to companies or to other individuals. There should be a mechanism by which debts may be enforced. If people owe money to government-related organisations for council tax or because of fines, including parking fines, those debts should be paid, because if they are not paid, other taxpayers suffer. However, at the same time, there must be a proper system for protecting the vulnerable. We have tabled amendments in a later group that would specifically protect the vulnerable.
Everyone who has examined this issue will know that the vast majority of bailiffs behave responsibly. There is no doubt that the industry prides itself on high standards. However, as the hon. Member for Great Grimsby pointed out, and as we discussed at length in Committee, a small minority of bailiffs bring the industry into disrepute by going completely over the top. We have all come across examples in our constituencies of bailiffs acting in an intimidating way.
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