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Other cases involve people who were in desperate plight. A case reported to us by the citizens advice bureau in Lincolnshire involved a tenant who had vacated premises without notice and owing rent. The client did not know where the tenant had gone and was unaware that he had not paid his TV licence. One day when the client was at the premises, two bailiffs arrived to collect the sum due. The client explained who he
was, and eventually the bailiffs believed him. However, they said that they had not come all that way to leave with nothing, and insisted that the client pay the fine instead. The client again said that he was not liable, but the bailiffs said that if he did not pay the fine in cash immediately, they would telephone for a lorry, break into his premises and take goods to the value of the fine. When the client explained that he did not have sufficient cash on him, the bailiffs insisted on accompanying him to the bank to withdraw the money. When the client phoned the magistrates court, he was told to take his complaint to the local CAB. The client told the CAB that he felt so intimidated and frightened that he had no choice but to pay the fine, and went to the bank with one of the bailiffs.
I gave an example earlier of a tragic case involving a woman from Manchester who was visited by bailiffs in respect of a debt owed by her daughter, who did not live with her. The bailiffs told her that she was responsible for her daughter’s debt and that they were permitted to move goods from the property, which of course was wrong.
I also gave an example earlier of a CAB client in Bedfordshire whose husband had died, but the next day the bailiffs called at her house. She explained that her husband had died, that there were real problems in the family and that he had not made his will, but they insisted on going ahead with enforcement action.
The Minister said in Committee, and she alluded to it again this afternoon, that various measures will be in place to help vulnerable people. She referred specifically to the national standards for enforcement agents, which make clear those who are potentially vulnerable, including the elderly, people with a disability, the seriously ill, the recently bereaved, single parent families and pregnant women. When the Minister replies, I hope that she will be able to make clear whether those national standards are being properly adhered to.
The Reverend Paul Nicholson of the Zacchaeus 2000 Trust has done a huge amount of work in helping the vulnerable over many years and has become an expert in bailiff procedure and enforcement procedure. He has been assiduous in briefing the Committee and hon. Members and I applaud him for his work. When the Minister wrote to him, she made it clear:
“We remain of the opinion that the best way to tackle the problems that enforcement agents may face when identifying or being confronted by so-called potentially vulnerable debtor groups or situations is through the training they will have to undergo and through the enhanced and extended certification process.”
Is she going to honour that pledge? Will the existing national guidelines be adhered to? I hope that they will. The Bill will give bailiffs substantially more power. I am concerned by the use of complicated language in schedule 12, and Philip Evans, national chair of the Certified Bailiffs Association, made it clear in a letter to members of the committee that he felt that the language used in the schedule was “gobbledegook.” He was concerned that, over many years, the Government had not enforced the national standards and made sure that they were adhered to properly. We will have a system of regulation for private bailiffs, but it will not cover Crown agents. There will be a new certification
process for them and the Minister says there will be remedies for people who have complaints. The Government have a huge vested interest in making sure that the money is collected—in many ways we respect and accept that—but there will be a great deal of pressure on bailiffs, who, we must bear in mind, will have increased powers.
I am concerned by the new forced entry powers, which, to be fair, do not flow from the Bill; they were brought in by the Domestic Violence, Crime and Victims Act 2004. This extra amendment to that Bill was tabled at the last moment and overturns many hundreds of years of common law.
Bailiffs now have far more power as a result of the 2004 Act and will receive additional powers under the Bill. In Committee, I quoted the argument about the Englishman’s home being his castle, which dates back to the 14th century Semayne case. The case was commented on by William Pitt the elder, the first Earl of Chatham, in a classic quote that sums up this part of common law. In the 1960s case 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 sums up the situation that was prevalent in common law until the Government changed it.
The Bill gives bailiffs yet more powers, including more powers of entry, and vulnerable people may suffer as a consequence. We do not want that to happen and it would be easy to add extra safeguards, which is what the amendment proposes. Why should not the tools of the trade be exempt in the Bill? Many of those who run into debt will be self-employed small business people. The hon. Member for Stroud (Mr. Drew) mentioned a constituency case in which a firm had run into debt and the bailiffs came round and removed what might have been vital equipment.
I would like the Minister to comment on two additional points. First, there has of late been a lot of discussion as to whether, once the bailiffs have been unleashed, for example by a central payment office, to go to visit a debtor and to raise the money, if the debtor then wants to go back to the magistrates court to request a hearing for a review of a disproportionate fine, the magistrates court can withdraw the bailiffs after the request to enter. The Minister wrote to Rev. Paul Nicholson saying that in her view the magistrates court does have the power to order the bailiffs to be called off so that the case for review can take place. On the other hand, I have seen an opinion by leading counsel, in reference to a particular case, making it clear that it does not have the power to withdraw the bailiffs. In fact, the clerks to the magistrates court in Her Majesty’s Courts Service central payments office in Buckinghamshire say that they do not have that power. They cited—it was also cited by leading counsel—the case of R v. Hereford and Worcester Magistrates Court, ex parte MacRae, 1998, 163 JP 433. The Minister needs to clarify this because it is very important in terms of how the vulnerable are treated once they get seriously into debt and run into major
problems. If Rev. Paul Nicholson and leading counsel are saying one thing and the Minister and her civil servants are saying something else, that is a pretty unfair and rum situation.
Secondly, I should like to touch on the point relating to judicial review. As we know, judicial review is used to control illegal or unlawful decisions—decisions which break the law or which a body or organisation has no power to make. For example, there could be procedural impropriety, or a situation where unfair decisions are made, or the decision maker is biased, or unreasonable decisions take place where the bodies in question have discretion but do not use it. In 1948, a well known case—Associated Provincial Picture Houses v. Wednesbury Corporation—laid down the Wednesbury rules, which refer to all cases of judicial review. When it comes to Crown bailiffs—the Government-employed bailiffs—who act on behalf of Her Majesty’s Government, public bodies and local authorities, there is no proper system of judicial review, which means that the actions of these Government employees and Crown servants cannot be properly held to account in the courts. That concerned us a great deal in Committee, where we had a substantial debate about it. That strengthens the case for amendment No. 10, which would lay down in the Bill a proper code to help the vulnerable.
Earlier, the Minister said that schedule 12 lays down the appropriate remedies and protection. She mentioned the use of reasonable force, methods of address and the procedures relating to the sale of goods. We accept a great deal of that, but it does not go far enough. We feel very strongly at a time when the Government are giving bailiffs more power, when more and more people are falling into debt, and when, sadly but inevitably as more debts are enforced and more private bailiffs are employed, that there will be abuses of the system. The Bill’s consequences will be felt in places, and we are grateful for that. For example, the Security Industry Authority will regulate private bailiffs.
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Not only the small minority of private bailiffs abuse power, however. Government bailiffs also do that from time to time. There are far too many cases of vulnerable people who are at their wits’ end suffering persecution, strain and stress that none of us would wish on anyone. We get such cases in our surgeries and advice centres and we read about them. They are unfortunately a fact of life. The Bill will help to reduce such cases; but granting more power, not putting in place a proper system of judicial review, and relying exclusively on schedule 12 and its remedies are not enough.
I therefore urge the Under-Secretary to consider the amendment, which would provide for issuing national standards and guidance that required enforcement agencies not to act oppressively or disproportionately. If she accepts it, I shall not press amendments about the tools of the trade, the code of conduct, the rights and remedies information sheet, the competent persons test and protection for the under-16s. Amendment No. 10 goes to the core of what we are trying to achieve.
We have grave concerns about the Bill, but it will do a substantial amount of good through the unified tribunal system, the provisions on looted art and the measures to update the enforcement system. However, if we go ahead without the amendment, we will unleash on the public a system that will not give them a fair deal.
Mr. Austin Mitchell: I shall speak about amendments Nos. 68, 25, 69, 36, 26, 38, 27, 28, 70, 29 to 32 and 40. Reading them out is a speech in itself, so I shall try to be brief. I do not want to hold up proceedings—we are here, feeling the hand of history on our shoulders, while our constituents are feeling the waters of history in their wellingtons and basements. I would much rather be in my constituency helping my constituents deal with their problems.
I congratulate the hon. Member for North-West Norfolk (Mr. Bellingham) because it is good to see the Conservative party taking up the defence of the poor and vulnerable, as he has done consistently throughout our debates on the Bill. My amendments have the same purpose.
A high proportion of mistakes occurs in many cases in which bailiffs are brought in. Those mistakes are made in the system of delivering fines and punishment, which is extraordinarily sloppy. We have a mobile society, especially in London, and fairly antiquated court procedures, which grind slowly on and get to grips with the issues some weeks after the matters have arisen, and then mistakes are often made in delivery.
I hope that my hon. and learned Friend the Minister will explain why we do not require all court matters and judgments to be sent by recorded delivery. It is not an expensive system—heaven knows it would not add substantially to costs. All European countries require delivery by such a system so that people can be sure that details and fines have arrived. My amendments attempt to avoid mistakes by ensuring that fines and details of bailiffs’ intended actions are delivered.
The amendments would prevent the sort of abuses that happen now, when bailiffs make phantom visits. They are paid for visits and, in many cases, it suits them to claim for phantom visits—visits that never took place or left no record at the relevant house. They can charge for all such visits to increase their revenues. It is silly. There are cases where a mistake has been made, and the person involved is not responsible for the charge, yet visits are claimed to have been made, which adds to the bill and compounds the problem.
My amendments Nos. 28, 69, 70, 29 and 30 are an attempt to ensure effective delivery of the bailiffs’ action, and of the fines and charges that have been claimed to have been made, to the people responsible. With proper delivery in place, if a mistake had been made the person concerned could contest it. That would cut the whole procedure off. This is a simple provision, and I do not know why we do not adopt it, to ensure that all deliveries by bailiffs, courts and councils are made by recorded delivery, so that guarantees are in place.
Amendment No. 68 would require the publication of the contracts between the courts, the local authorities and the firms of bailiffs, so that people would know how effectively the firms were being regulated, what the
bailiffs’ rights and responsibilities were, and what their own rights were. All too often, inquiries have revealed contracts to be out of date, badly drafted or ineffective, and councils are often reluctant to produce them. People have to go through freedom of information procedures to see the contracts on which this whole system is based, which is ridiculous. We need published contracts to ensure proper enforcement and the proper regulation of bailiffs.
Amendment No. 36 is intended to rectify a major omission from the Bill by providing protection for essential household items and other things needed by the debtor or his family to continue earning a living. Bailiffs should not be able to seize such items, and they need to be protected. I know that essential items are exempt under various statutes. For example, the tools of a person’s trade are exempt, except in relation to the enforcement of non-domestic rates and VAT payments. As the amount of penalties and sanctions increases, we need to define what items bailiffs can take, and to extend the basic provision to cover money and foods, which are necessary for the survival of the family.
The policy statement sets out the protection to be given to goods in the regulations. However, if Parliament, through this legislation, effectively abolishes the common law protections, we should enact their replacement in the form of statutory protections, rather than delegating the task to the Minister. The Minister is responsible for using bailiffs to recover Government revenues, and therefore has a vested interest in sustaining and helping them. That is a conflict of interest. We should therefore define what is protected in the legislation and not leave it to be set out in regulations. That is why my amendment No. 36 defines what bailiffs may and may not take, in a clear and simple fashion. What is wrong with that?
I turn to amendment No. 40. Paragraph 53(2) of schedule 12 states that goods that are unsold at auction are to be “abandoned” and must be returned to the debtor. Paragraph 54(1)(a) states that, if that happens,
“the enforcement power ceases to be exercisable”.
Surely that will cause problems. At the moment, if an item does not attract a reasonable price at auction, it is kept back until the next auction. That is sensible, because someone will eventually buy it, and we want to get the best price for such items. Am I correct in saying that the new paragraph will prohibit that? If the alternative to selling the item is to return it, it will surely be flogged for whatever the auctioneers can get for it. It is therefore likely to attract a much lower price than if it is put back in the next auction.
Currently, failure to sell one item does not affect the sale of any other items taken from the debtor. Under paragraph 54, however, if the enforcement power ceases to become exercisable, none of the other items can be sold. It is therefore probable that all the items will be sold off as a simple job lot. That means that they will raise less money than they would if they were sold individually. It is in all our interests that the debtor gets the best price for the items confiscated. I worry that the provision will stop that.
Mr. Bellingham:
The hon. Gentleman might not be aware of it, but I gave an example in Committee of a woman who had a substantial debt, of about £500. The
bailiffs took from her about £1,000 worth of household goods—white goods, a television set and other bits and pieces—but they made only £30 at auction.
Mr. Mitchell: I am grateful for that example; I have heard similar examples, but not of such a low price for an estimated £1,000 worth of goods. We must protect people from such a possibility. We want the debtor to get the maximum possible price for the goods confiscated. That is the only protection that we can decently offer. It is ridiculous to consider such goods to be abandoned, and my amendment No. 40 would therefore remove paragraph 53(2) of schedule 12.
Having heard the speech and the examples given by the hon. Member for North-West Norfolk, I am sorry that I missed the joys of the Committee. It has been a real pleasure to contribute to today’s debate. Having enjoyed the disrepute of leading the first major rebellion of the new Government, involving a massive number of my colleagues—the Whip is glaring at me already—may I say to my hon. and learned Friend the Minister that I do not intend to hold the terrible threat of further rebellions over her head? Given that we must protect the vulnerable, however, I hope that she will assure me that the protections that I want to introduce through the amendments will be secured under her new regime.
Simon Hughes: We had an interesting discussion during the voting as to whether, before the new Prime Minister appoints his Government, there is a Government at all, and whether there are such things as Government amendments. The Minister and others have assured me that there are, and we are working on that basis. Therefore, we can still rebel.
Mr. Mitchell: That is another reason for expediting proceedings. I want to go home and wait for the phone not to ring.
Simon Hughes: There may be time yet.
This group of amendments was introduced by the hon. Member for North-West Norfolk (Mr. Bellingham). Were he to seek to divide the House on his lead amendment, my hon. Friends and I would support him. As he rightly says, the purpose of this group is to ensure that standards apply in all places and at all times to prevent the vulnerable from being adversely affected by bailiffs and people coming to their homes and taking their property.
Amendment No. 10 is a permissive amendment, which would require national standards and guidance, thus providing a gold standard. That would be a welcome initiative. In this large group of amendments, the majority of which were tabled by the hon. Member for Great Grimsby (Mr. Mitchell), the Liberal Democrats have tabled amendments Nos. 8, 1, 2, 3 and 7.
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Amendments Nos. 1 and 2 are a return to the proposal that we should be more specific in the Bill about what constitute exempt goods. I remember the debate, and the Minister’s summary response was that we need flexibility. The lack of specificity in the Bill would be covered if there were general guidance and national standards, and amendment No. 10 would
cover the criticism of amendments Nos. 1 and 2. Amendment No. 8 has been discussed, but it is an anomaly in this day and age that clause 84 should state:
“This part binds the Crown”—
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