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Session 2006 - 07 Publications on the internet General Committee Debates Tribunals, Courts and Enforcement Bill [Lords] |
Tribunals, Courts and Enforcement Bill [Lords] |
The Committee consisted of the following Members:Alan
Sandall, Hannah Weston, Committee
Clerks
†
attended the Committee
Public Bill CommitteeTuesday 20 March 2007(Morning)[Mrs. Joan Humble in the Chair]Tribunals, Courts and Enforcement Bill [Lords]Further written evidence to be reported to the HouseTRI 12
Enforcement Services Association and the Association of Civil
Enforcement
Agencies
TRI 13
Morgoed Estates
Limited
TRI 14 Joint
submission from the Association of Civil Enforcement Agencies, the
Enforcement Services Association and the Local Authority Civil
Enforcement
Forum
Clause 57Enforcement
by taking control of
goods
Question
proposed, That the clause stand part of the
Bill.
10.45
am
The
Chairman:
With this it will be convenient to consider new
clause 1—Enforcement by taking control of goods (No.
2)—
‘(1) There shall be
a form of enforcement against corporeal moveable property for recovery
of money owed that 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 shall
apply 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.’.
Mr.
Henry Bellingham (North-West Norfolk) (Con): It is a
pleasure to be back in action with you, Mrs.
Humble—[
Laughter.
] No double entendre
intended.
The key
purpose of new clause 1 is to remove any misunderstanding about the
words “taking control of goods” and to determine exactly
what they mean. Is the ability of a bailiff to take control of goods
unduly restricted by the phrasing of schedule 13? Above all, is it not
clear that a bailiff can accept and take control of goods and so on
when the debtor is not present in a home, even when another responsible
adult is present?
In Scotland,
bailiffs can take what is called walking possession, which is a
flexible approach. As far as bailiffs are concerned, the object of the
exercise is not
necessarily to remove the goods; it is to secure the
money that is owed. The threat of removal of goods can achieve a
bailiff’s objective. Various bailiff organisations have
repeatedly told me and other Opposition Members that bailiffs do not
want to have to face up to the necessity of removing goods if there is
an alternative. Taking walking possession is such an alternative. I was
particularly impressed by the briefing given to me by Philip Evans of
the Enforcement Law Reform Group. New clause 1 would clarify the powers
open to bailiffs and it would give them more flexibility in their
approach. On that basis, and on the basis of all the assistance and
advice that we have been given, I commend the new clause to the
Committee.
The
Parliamentary Under-Secretary of State for Constitutional Affairs (Vera
Baird):
I am not convinced that new clause 1 is necessary,
because clause 57 and paragraph 13 of schedule 12 already provide for
what it seeks to do. In particular, proposed subsections (1), (2) and
(3) are just about the same as clause 57, in that they are about taking
control of goods in the style currently described as walking
possession. Similarly, the provisions in proposed subsection (4) about
taking control of goods replicate provision already made in paragraph
13(3)(a) of schedule 12, so they will add nothing to the
Bill.
Proposed
subsection (5) of the new clause is probably more dubious than the
other provisions on its merits because it seeks to exclude liability
when securing goods on the highway but does not cover goods secured on
premises. That would mean taking a different approach to taking control
of goods depending on whether they were on the highway or on premises.
There is no logical reason why that should be so; it is much better to
have clear, straightforward powers that are the same in all similar
circumstances. New clause 1 goes against the efforts that we have made
in the Bill to clarify and simplify the laws concerning enforcement
agencies.
There is no
need for the bulk of the provisions in new clause 1. Proposed
subsection (5) would add confusion and does not deal with a matter
about which the Government have received representations from
enforcement agencies. I hope that having been given those words of
explanation, the hon. Member for North-West Norfolk will, having probed
the rationale for clause 57, not press his
proposals.
Mr.
Bellingham:
I thank the Minister for that explanation. She
has reassured the Committee, and I will not seek to press the new
clause.
Question put and agreed to.
Clause 57 ordered to stand part of the Bill. Schedule 12Taking
control of
goods
Simon
Hughes (North Southwark and Bermondsey) (LD): I beg to
move amendment No. 158, in
schedule 12, page 206, line 16, after
‘means’,
insert—
‘(a)
’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 159, in
schedule 12, page 206, line 17, at
end insert—
‘(b) such tools, books, vehicles and other
items of equipment as are necessary to the debtor for use personally by
him in his employment, business or
vocation;
(c) such clothing,
bedding, furniture, household equipment and provisions as a necessary
for satisfying the basic domestic needs of the debtor and his
family;
(d) money where an
enforcement agent has reasonable cause to believe that this would be
necessary for the immediate domestic needs of the debtor and his
family;
(e) domestic
pets;’.
No.
161, in
schedule 12, page 206, line 17, at
end insert—
‘(b) goods that
fall within paragraph
4A(1);’.
No.
86, in
schedule 12, page 207, line 3, at
end insert—
‘4A (1) The
following fall into the definition of exempt goods so as to preclude
seizure of—
(a) any
goods which are fixtures or fittings attached to the premises including
goods which are plumbed in or connected to water, fuel or power
supplies,
(b) domestic animals
and animals kept as pets,
(c)
guard dogs,
(d) any dog on
which a blind person
relies,
(e) any animal which is
kept for commercial gain, save as allowed through common law and where
provision for the welfare of the animal has been arranged in
advance,
(f) in the case of
domestic dwellings no sum of money of £500 in cash or
below,
(g) in the case of
domestic dwellings no sum of money which would leave the debtor with
less than £500.
(2) In
the case of domestic dwellings no sum of money above £500 is to
be removed without the civil enforcement officer recording the purpose
for which the money is to be
used.’.
Simon
Hughes:
We are now coming to the meat not only of the
schedule, but the substantive part of the Bill, about which, when and
how goods can be taken from people in pursuit of a judgment in the
criminal law or some right that is claimed in civil law. The amendments
deal with the concept of exempt goods—the goods that should not
be taken away from someone’s home. The Minister said the other
day, as she did in a letter to me that she placed in the Library after
Second Reading—the Government have said the same in the
structure of the Bill—that she accepted the need to deal with
domestic premises separately from commercial premises. That view is
supported strongly on the Liberal Democrat
Benches.
There is a
general presumption that we should protect people from having
everything taken from their domestic premises and that we must decide
what sort of goods need to be protected from bailiffs at all times. The
criteria are what goods people need, which goods are the basic
necessities of life and the basic amount of cash that is needed to
survive. We live in a world where more people have material possessions
that used to be regarded as luxuries, but which are now viewed as
indispensable. They are often items that are expensive to buy or hire,
such as televisions, DVD players, cassette players and video recorders;
by and large, they are electronic equipment. There are also white
goods, such as fridge-freezers.
“Exempt goods”
under the Bill are certain goods that are defined by regulation. We
propose to add certain goods to the Bill. I realise that there will be
a proper debate about whether the list of exempt goods should be in the
Bill at all or whether it should be contained in regulations. It needs
to be somewhere, however, where it is clear and on an agreed basis.
Amendment No. 159 sets out what things we think should be exempt. We
are open to discussion about the accuracy and correctness of the list,
but we have taken advice and such a debate has taken place in the other
place.
Amendment No.
159 refers to
“such
tools, books, vehicles and other items of equipment as are necessary to
the debtor for use personally by him in his employment, business or
vocation”.
Mercifully, in
this country a lot of people still have skilled manual jobs, are
self-employed and can keep their work materials at home. Indeed, many
bring those materials into the house because they are not happy leaving
them overnight in a van, garage or lock-up. Pretty well everyone in the
building trade is self-employed, such as decorators, electricians and
plumbers, but many others work from home and keep their equipment
there. The last thing we should do is to take away people’s
means of earning a living. The amendment would protect those means, and
I hope that the Committee agrees that that is a proper thing to do.
Self-evidently, if people do not have the kit to earn a living, they
will not have the money coming in to pay off the debts and get out of
their financial
hole.
The second group
of items that should be exempt
includes
“such clothing,
bedding, furniture, household equipment and provisions as are necessary
for satisfying the basic domestic needs of the debtor and his
family.”
It clearly would
be wrong in a civilised society for someone to come in and take away
the children’s beds, table and chairs and any other basic
furniture that they need. There has to be a basic understanding of what
a home has to have, whatever the financial muddle or dispute that
people have got into over
debts.
The third
category that should be exempt is the money that a family needs
immediately. The phrase that we have used
is
“money where an
enforcement agent has reasonable cause to believe that this would be
necessary for the immediate domestic needs of the debtor and his
family.”
I am conscious
that in amendment No. 86, which is one of those tabled by the hon.
Member for North-West Norfolk, a more specific sum is mentioned. I
think that it would be right to debate the minimum amount that someone
can retain in the circumstances. The hon. Gentleman proposes that no
sum of money of £500 or below should be taken. If people have
more than £500, the excess can be taken to pay off debts, but a
family needs to have enough money. In some ways, £500 may be
regarded as generous, but for a family with children, it will not pay
for much more than a few weeks’ shopping and basic food
necessities. Therefore, there is a perfectly proper case to be put that
people should be allowed to retain a set amount of money in order to
survive. If they do not have that money, how do we expect them to
survive? The answer is that they would not. We cannot be unreasonable
or unfair about that.
The last group that we believe
should be exempt is domestic pets. We have had a debate about that. It
related to an amendment tabled by Lord Beaumont of Whitley in the other
place. In amendment No. 86, the hon. Member for North-West Norfolk has
listed not just domestic animals and animals kept as pets, but guard
dogs, any dog on which a blind person relies and animals kept for
commercial gain—any animals that are kept as part of a business
such as kennels. Certainly, the general argument is that if we are
trying to sustain the welfare of families, we will not get much money
if we take away someone’s cat, dog, hamster or gerbil. If we are
trying to minimise distress to the family, particularly the children,
it is important that animals are not part of the process. It is
probably regarded as a sign of a civilised society that one does not
take away animals that are used as pets. They should not be part of the
process of catching other people for debts that they have entered
into.
Let me return
now to the question of definition. If there is agreement that we give
better protection to domestic rather than commercial premises, which I
hope and believe that there is, that we do not allow enforcement
agents, whoever they are and whomever they act for, to come in and take
away everything, and that there are things that are protected and
exempt, which there clearly are, the question that then arises is what
we define as exempt. The Liberal Democrats think that the issue is
important enough for the bare necessities to be mentioned in the Bill
rather than in regulations. If we make the right decision now, we would
need to change this sort of thing later. One of the reasons why we have
not put a specific sum in the provision on how much cash can be kept is
that that sum will change with inflation. Therefore, if a specific sum
is to be included, it would have to be in the regulations rather than
in the Bill.
I hope
that those points form a good starting point for the debate. Such
provision is important because we must have a civilised society in
which people can hang on to what they need to survive and to earn a
living. I hope that the Committee will be responsive to that
argument.
Mr.
David Drew (Stroud) (Lab/Co-op): It is a delight to serve
under your chairmanship once again, Mrs. Humble.
I would like
to ask my hon. and learned Friend the Minister a question that relates
to commercial properties rather than domestic properties. It relates to
a case of a non-domestic rate debt, which I know from my
constituency is not unusual. The case is indicative of the sort of
problems that can arise, and I shall be careful how I talk about it,
because it is fairly well known.
11
am
The case
involved a fish and chip shop owner who faced the bailiffs coming in.
The argument here—this is the reason why I am sympathetic with
those who wish to identify what is meant by constraint on
somebody’s ability to do the business—is that, with the
best will in the world, anyone who knows anything about the fish and
chip business knows that it relies on the fryer and the basic
equipment. When the bailiffs arrived in their
white van, the only thing that they could have taken in this case was
the fryer, but they could not have got it into the van and they
certainly would have destroyed the business if they had taken
it.
I
hope that my hon. and learned Friend the Minister will respond to my
point, which is about a completely fallacious visit, because although
there was no way that the bailiffs could have taken anything from the
property, they charged the owner £350. If bailiffs are to have
any credibility, there has to be some foreknowledge of what they are
rightfully to be taking and what is to be done if they are clearly
going to damage a business or cannot take anything. In this case, the
moneys were subsequently paid and the debt was off-laid. However, I
should like my hon. and learned Friend to comment on such cases, in
which, to my mind, the bailiffs are outwith any credible reason for
going to take any goods from a particular commercial premises. I want
to know what restraints there are on bailiffs to ensure that they do
not just go on a trip, even though they cannot take anything from the
business, whack the owner with the extra charge and then say,
“Well, we’ve tried our best, but there was no way that
debt could have been off-laid by seizing
goods.”
Mr.
Tobias Ellwood (Bournemouth, East) (Con): It is a pleasure
to be working under your tutelage once again, Mrs.
Humble.
I should like
to speak to amendments Nos. 161 and 86. Amendment No. 161 is a paving
amendment for the core amendment, No. 86. Like the Liberal Democrats,
we would like to see more detail included in the Bill, rather than
pushed into secondary legislation. The Bill currently leaves any
definition of the exemption of goods purely for the regulations. Having
sought advice from a number of groups, including citizens advice
bureaux, it is clear that there is a desire to see more information in
the Bill about exactly what goods can be taken by a bailiff and which
are exempt.
Amendment
No. 86, would alter schedule 12 by inserting at the end of line 3 a
definition of what exempt goods can be precluded from seizure,
including
“any goods
which are fixtures or fittings...domestic
animals”,
guard dogs,
any dog for blind persons
or
“any animal which is
kept for commercial
gain”
whose removal would
have a direct financial impact on the
individual.
The
Liberal Democrats also mentioned the sums of money that could or could
not be taken by a bailiff. We would like to see limitations on the
amount of cash that could be removed, because otherwise we would leave
the individual worse off than they would be without such protective
measures being put in place. The Zacchaeus 2000 Trust made that clear;
the Reverend Paul Nicholson commented on the fact that the seizure of
pets should not be left to regulations introduced at a later stage.
Although the Minister has argued many times during debates on probing
amendments tabled by my hon. Friend the Member for North-West Norfolk
that sometimes we have to bestow a bit of faith in secondary
legislation, there is a fine balance between what should be included in
the Bill and what should be left out. It would be most appropriate to
have some strong definitions of what is exempt to make that clear-cut
and not leave it to a body outside Parliament to make that
decision.
There are
concerns about the Bill at the Swindon CAB. Will the Minister consider
some of them? In particular, local people are concerned that the
safeguards on the Bill’s proposed powers of forcible entry for
bailiffs are inadequate and should be strengthened. They are concerned
that some of the examples that we have seen in Swindon might be made
worse by some of the Bill’s proposals, and are hoping that she
might consider some of them. We have heard of an elderly lady who was
not a debtor being harassed by bailiffs for her son’s debt. The
CAB adviser was told by the bailiff that he did not care that the son
was not in the house, and that he and his colleague would sit outside
the house all day until she opened the
door.
The
Chairman:
Order. I must interrupt the hon. Lady. This
group of amendments deals with the sorts of goods that bailiffs can
take. A later group of amendments deal with the power to which she is
referring. I ask her to speak to the amendments before us and to the
question
proposed.
Anne
Snelgrove:
I beg your pardon, Mrs. Humble. I
think that the CAB’s concern is that the powers are all wound in
together, and that the power of entry means that goods could be taken
from people’s houses when they are feeling under pressure from
the bailiffs’ power of entry. One of our biggest concerns in
Swindon is that the rise in council tax of more than 20 per cent.
during the past 10 years has meant that many people’s houses and
goods have been threatened by bailiffs’ entry, and goods have
been taken that would not have been taken
before.
Mr.
Richard Benyon (Newbury) (Con): I rise to support the
words of my hon. Friend the Member for Bournemouth, East. My local
citizens advice bureau is concerned about the proposed powers for
bailiffs. In support of their concerns and of the points made by the
hon. Member for North Southwark and Bermondsey, we must consider
precisely what we are talking about in terms of exempt items. It is
important that they should be named in the Bill.
When we talk about tools,
people instantly think of the means by which someone can continue a
form of manual labour, whether plumbing or work in the construction
industry, but I argue that for many people, the tools of their trade
could include, for example, their PC. That is an area that perhaps
needs more definition. I understand that the Minister feels that such
matters can be covered in regulations, which offer more flexibility as
the times and workplace requirements move
on.
Mr.
Brooks Newmark (Braintree) (Con): My hon. Friend makes an
excellent point, which I had not thought through, on PCs as well as
manual tools. If people are in financial trouble, we want to encourage
them to keep working. If one removes their tools, whether they are a
PC, a wrench or a toolbox, that will prevent them from getting out
there to earn back the necessary money to repay debts and prevent the
bailiffs from returning to repossess more
items.
Mr.
Benyon:
My hon. Friend makes a good point. It is
underlined by a case highlighted to me by my local citizens advice
bureau. A garage workshop owner was visited by bailiffs. In the course
of an altercation, he was removed by the police. While he was being
detained, the bailiffs re-entered the premises and took his tools. They
also took a vehicle that did not belong to him, but I recognise that
that is not part of this
discussion.
The most
important point to reflect on is that the individual’s means for
getting himself out of debt should be protected. Do we satisfy
ourselves that that will be guarded in regulations, or do we want it
put more precisely in the Bill? I agree with the hon. Member for North
Southwark and Bermondsey that we do not need the wording to be so
precise that we must revisit it in future, but there should be some
understanding in the Bill that the means for such individuals to get
themselves out of debt must be
protected.
Mr.
Newmark:
I, too, support the comments of my hon. Friend
the Member for Bournemouth, East, but in reading proposed paragraph
(b), I thought of a new slogan that could be added with respect to
household pets. We could say, “Bailiffs might be able to take
the Rover from the driveway, but there should be no doubt that they
cannot take the Rover from the kennel.” That might be an
interesting amendment for the Minister to consider—perhaps she
will even smile for a
moment.
The amendment
is quite right in seeking to protect the vulnerable by preserving the
necessities of life, as my hon. Friend the Member for Newbury discussed
in some depth, as well as sums of money covering reasonable living
expenses. Those are the two things that I should like us
recognise—people need the tools to continue working, and they
need some basic cash to help them get through the days and look after
their families. For those reasons, I support the
amendment.
Vera
Baird:
My dog is called Zack. I think that that is a much
more imaginative name than Rover. However, it was not such a bad joke
overall.
I shall deal
first with the point made by my hon. Friend the Member for Stroud,
although obviously the Government cannot say anything particular about
an individual case. I do not know whether the bailiffs in question knew
that there was any non-essential among the business items. The new fee
regime in paragraph 62 of schedule 12, to which we will come in due
course, means that the amounts taken will be regulated properly and
cannot be outrageous, as my hon. Friend’s example appears to
have been. Paragraph 12 contains an extra precaution, which is not
directly on the point but might be interesting for him to hear about.
It states that enforcement agents can take control only of goods whose
value is equal to the amount outstanding plus reasonable costs. Taking
huge amounts of fixtures and fittings would be unlawful under the
Bill.
My hon. Friend
the Member for South Swindon recovered brilliantly from starting a
speech about forcible entry to say that it was really about what could
be taken out if a forced entry were made. We shall come to forcible
entry soon, and I am sure that I will be
able to help alleviate her concerns and those of her CAB. I met some CAB
representatives yesterday, and I have detailed conversations with my
own CAB in Redcar, so I have been apprised of the troubles that can be
caused by
bailiffs.
Anne
Snelgrove:
I thank my hon. and learned Friend for her kind
words. One of the issues is that a number of bailiffs’ companies
have codes of practice on what to take and what not to take from the
houses of vulnerable people, such as those on incapacity benefit.
Unfortunately, individual bailiffs from those companies ignore the
codes of practice and do exactly the opposite of what the companies say
they believe in. Will the Bill help people in such
situations?
Vera
Baird:
Yes, it will. In due course, it will regulate
bailiffs properly under structures already in place in the Private
Security Industry Act 2001. In the meantime, a beefed-up certification
process at the county court will ensure that such companies and their
employees are properly regulated in two respects—the bailiff on
the street, and the people supervising the bailiffs. Both will be tied
up. We will be ensuring that they are securely regulated when the Bill
comes into force, and all the more so when we introduce the new
security industry authority
system.
The hon.
Member for Bournemouth, East made points supporting those made by his
colleagues. It has just come to me that there are also offences that
can be used against enforcement agents under paragraph 66 of schedule
12 for improper behaviour of the kind mentioned. I hope that that is
helpful.
11.15
am
The hon. Member
for Newbury made some points in support of the hon. Member for
North-West Norfolk and the gist of what was said by the hon. Member for
North Southwark and Bermondsey. I am sure that I am right in asserting
that it has never been possible for a bailiff lawfully to take away
tools of trade. Although one might immediately associate tools of trade
with a screwdriver or axe, they are not confined to such things. I
recall when I was a barrister having a conversation about what my tools
of trade would be—not, I hasten to say, that I was in debt.
Would my tools of trade have been wig, gown, bands,
“Archbold” and perhaps a civil law textbook? Tools of
trade might be an old fashioned piece of terminology but it means
anything that is necessary for a person to earn their living. The hon.
Member for Braintree was absolutely right about the need to leave a
person with the ability to work to get out of debt. Giving bailiffs the
ability to take tools of trade away was never on the scene, even as a
possibility, and it is certainly not in the Bill.
Drawing attention to the list,
which is
non-exhaustive—
Mr.
Newmark:
On the point about tools of trade, something that
I had not thought about—I was thinking about plumbers and
electricians—was mentioned by my hon. Friend the Member for
Newbury. Is it right for bailiffs to take PCs, or should they be seen
as a tool of trade?
Vera
Baird:
I was going to refer hon. Members to the detailed
policy statement on delegated powers that is in the House of Commons
Library and on the Table, and which contains a list in paragraphs 129
to 133.
Mr.
David Kidney (Stafford) (Lab): Before my hon. and learned
Friend deals with that list, if I heard correctly, a moment ago she
said to one of my hon. Friends that, in paragraph 66 of schedule 12,
there are offences that control the behaviour of bailiffs detailed. I
have looked at paragraph 66. I see that there are civil wrongs for
which a debtor can take an enforcement agent to High Court or county
court, but I did not see any offences.
The
Chairman:
Order. We have not come to that provision yet,
and it is not directly to do with the debate at hand. Perhaps the
Minister will deal with the point at a later stage and return to the
amendments.
Vera
Baird:
There are remedies that will stand my hon. Friend
the Member for South Swindon’s constituents in good stead, but
we will discuss them later.
Turning again to the list in
the policy document, hon. Members will find that they need not worry
about whether the Government have looked at the question of what should
not be seized. Paragraph 129
states:
“An
enforcement agent will only be able to take control of goods that are
not exempt from
seizure.”
Jenny
Willott (Cardiff, Central) (LD): If the Minister is saying
that it has always been the case that tools of trade and such like have
been exempt from being taken by bailiffs, will she explain why the
Government are so reluctant to put that in the
Bill?
Vera
Baird:
There is no need for such an explanation. I am
setting out the reasons why the Government do not want to put such
things in the Bill. We will not do so because of the need for
flexibility, pretty much of the kind referred to by the hon. Member for
Braintree.
Paragraph
132 contains the express provision
that:
“A
computer may be considered a necessary tool for the debtor’s
employment, business or
vocation.”
I do not want
a situation in which we have put a list of items in the Bill and then
have to relegislate to bring into its ambit a new technological
invention or some refinement on a PC that has emerged, possession of
which is imperative. Such an item could be for the education of
children, not just a tool of trade. We will not put such a list in the
Bill because it will be too rigid and is unnecessary. There is no
problem about clarity. The regulations will be as clear as the statute.
There is no problem about definition. It will be as clear as the
statute. Such matters should go in the appropriate tier of legislation.
That is where they properly
belong.
I wish to
reassure members of the Committee that the Government already have in
mind as regards the delegated legislation powers rather more than the
list of items that they have talked about. Paragraph 130 makes clear
that exempt goods will
include
“tools, books,
vehicles and other items of equipment as are necessary to the debtor
for use personally by him in his employment, his business or vocation;
and such clothing,
bedding, furniture, household equipment and
provisions as are necessary for satisfying his basic domestic needs and
those of his family. The definition may also include domestic
pets”—
so the
gerbil is pretty secure, and I dare say that we will put his cage in as
well—
“and
sufficient cash to support basic domestic needs.”
I am sure that everyone will agree that
it is best not to define the amount because families probably have
different needs. Families with two children need a different sum from a
family with four children. To set the amount arbitrarily at one figure
is not wise or particularly helpful to
people.
White goods
are listed in paragraph 131. It includes a dining table and chairs so
that people can still sit and eat,
“bed and bedding for each member
of the household”,
and a
telephone. That is important and would not have been in the Bill had we
accepted the amendments. Furthermore, necessary medical equipment
should not be removed and that would not have been listed had we
accepted the proposals. I have mentioned the computer. We then specify
as exempt from
seizure
“Fixtures
and fittings attached to external power and water supplies to provide
lighting, washing and heating
facilities”,
which are
baths, gas fires and light
sockets.
We have
covered the range of goods that are in both amendments. I do not think
that there would be difficulty regarding a guide dog. A hearing dog is
missed off the amendment, but I should think that that would be covered
by domestic pets. However, we can put in a provision to make sure that
matters are clear. Guard dogs will probably be covered by the
definition, too. I imagine that dogs used for businesses would fall
into the territory of items necessary for the person’s business
or vocation. If there is an argument that they should be expressly
identified because they had a particular generic nature, that can all
be done during the consultation that will come within the framework of
the schedule when we have passed the Act and are looking to
regulations.
Mr.
Bellingham:
We will be very reliant on subsequent
regulations. When will the Department for Constitutional Affairs lay
the regulations? Let us assume that the Bill becomes an Act in the
middle of the summer. When will the regulations be laid? We will have
an Act, which will be the law of the land, but we will not have
regulations and, thus, not the protection that might be necessary
unless the exempt goods are described in the
Bill.
Vera
Baird:
We want to ensure that the Act is not implemented
until the exemptions are clear in regulations so that people are as
secure as the hon. Gentleman wants them to be. We will consult as soon
as we have draft regulations and, on Royal Assent, we will not need to
bring into force that aspect of the Bill until we have had the
regulations. That is the safeguard that the hon. Gentleman seeks.
Although I shall have to firm that up, we must be sure that that
happens.
I agree with
members of the Committee that it is not tenable to have a power of
seizure without specifying the exemptions, so they will have to be
specified and that is the way forward. Hon. Members will be well aware
that it is extremely difficult to gain legislative time in this House
or the other place, and the notion of
having to do so to ensure that some item that has been missed off an
amendment is included is just not tenable. I have already mentioned
three or four items that have been missed today. I hope that my
comments have reassured the hon. Member for North Southwark and
Bermondsey and that he will ask leave to withdraw his
amendment.
Mr.
Ellwood:
I am encouraged by some things that the Minister
said, particularly about the certification process for bailiffs. One of
the most stressful, difficult and upsetting times that a family or an
individual can face is hearing a bailiff knocking on the door. It is
imperative that there are stringent guidelines, rules and regulations
to ensure that the process of taking goods away from an individual is
conducted fairly.
The
Minister stated that there is no problem about clarity or definition in
schedule 12. I should like to deal with the same paragraphs that she
mentioned. Paragraph 3 of schedule 12, for example, is titled,
“General interpretation”. That is the sort of vagueness
that we are trying to get rid
of.
Vera
Baird:
I did not say that at all. I said that the
regulations will be clear and definite and as clear as legislation.
They are drafted by the same people. The schedule covers the territory
that the regulations will cover, but regulations, as everyone surely
knows, have to be couched in terms drawn up by parliamentary counsel
and will be absolutely as clear and unavoidable as the
Bill.
Mr.
Ellwood:
As my hon. Friend said, they cannot be amended.
It is for us to make the judgment and to debate the matter now. The
Minister says that there will be consultation, but this is a
major question. We are debating primary legislation. She admitted that
we will now delay primary legislation and wait for secondary
legislation that cannot be passed until the primary legislation is
agreed. This is becoming confusing. We are asking for a simple
recognition that some key aspects need to be included and must be
exempt to ensure that the matter is
clear-cut.
Because of
their background, court bailiffs currently operate under different
guidelines from private bailiffs. We are getting into an overhaul of
what can and cannot be exempt, which prompted the Bill in the first
place.
Paragraph 130
of the policy statement, which deals with schedule 12,
says:
“It is
intended that exempt goods will include
tools”
and
“books”.
It
does not say that it will include those. It
continues:
“The
definition may also include domestic pets, and sufficient cash to
support basic domestic
needs”,
not “it
will include”. Paragraph 131
mentions
“The
items that will be considered as
necessary”,
rather than
those that will be necessary. Paragraph 132
says:
“A
computer may be considered a necessary tool”
and does not specify
at all. The Minister acknowledged that there is some vagueness
concerning dogs. For example, guide dogs are not mentioned. However, we
are grateful that she is willing to include them. Will guard dogs be
included? She hinted that they might be. Why not have clarity on all
dogs—and all pets? That is what we are asking for. We are
confusing things by having to delay primary legislation to have a hint
about, or a glance at, the secondary
legislation.
Mr.
Drew:
I was a Committee member on the Animal
Welfare Bill, where we spent a long time on the role of those who could
seize animals. Is the hon. Gentleman not aware that there are strict
restrictions on who can enter a building for the purpose of taking an
animal? There may be a need to link the Bill with
that.
Mr.
Ellwood:
The hon. Gentleman makes a fair point. However,
we are stressing that, in a difficult time, when a bailiff knocks on
the door, the individual whose goods are being taken away from them and
the person taking them away must both be working from the same rule
sheet. Currently, that is unclear. It is left to the ambiguities of
secondary legislation, over which we have no
control.
On that note,
we shall not press amendment No. 158, but will support Liberal Democrat
amendment No.
159.
11.30
am
Simon
Hughes:
The Minister said that she asked her Department to
produce an indication of what would be in the regulations. I have it
here for my colleagues who have not seen it. When the Minister read
from it, she will have noticed that the wording of paragraphs (b), (c)
and (e) comes from, and is identical to, the wording that is set out as
part of the plan that the Government have for regulations. The question
for us is whether we think that there should be anything in the Bill or
everything in the regulations. I have listened to the debates and the
arguments, and I believe that we should have the items that will always
be in the category of exempt goods—the items that are
unchanging—in the Bill itself. That does not preclude them from
being in the regulations as well. Our amendment No. 158 would expressly
permit that if the Bill is amended as my hon. Friend the Member for
Cardiff, Central and I have asked and as my colleagues
support.
Under
schedule 12, exempt goods would mean
“(a) goods that regulations exempt
by description or circumstances or
both;”
and then
paragraphs (b), (c), (d) and (e). Therefore it is not an either/or
debate; it is about whether we put anything or nothing in the Bill,
accepting that we will always have regulations. I accept that the sum
of money that a person is allowed to keep stays in the regulations
because that sum will vary. I accept that anything that is
technological may change and so, of course, needs to be in the
regulations. The mobile phone, for example, may disappear in 20 years
and be replaced by another device that fulfils the same purpose. If we
are serious about making the statement of principle in such a
consolidating Bill, which will become the Act that governs how
enforcement can
happen, the message should be clear that certain
things are protected. They include things that are needed for a job,
such as computers, adzes, saws and ladders, the things that are needed
to run a household, a basic amount of money and the animals at
home.
Mr.
Bellingham:
The hon. Gentleman mentioned household goods
and the basic domestic needs of the debtor. Presumably, that would
include central medical equipment as well. Perhaps he could comment on
the point made by the Minister that, if we include some of the
definitions in the Bill, we could not have regulations. Surely, the
best way forward is to have some core categories in the Bill but to
link that with the regulations to give flexibility in the
future.
Simon
Hughes:
That is my view. I am not saying that we have the
perfect formula—that is not something that anyone could argue in
Committee—but the argument is clear. Should we have core items
within the Bill? We believe that we should and I should like to test
the opinion of the Committee. I hope that Labour Members will
understand and be sensitive to that. I hope that they will consider
supporting us and making a statement. We could certainly negotiate on
the detail if there is further thought and reflection. We could come
back on Report and make it an even more perfect
Bill.
Vera
Baird:
I should like to indicate that I have now
got some advice about the timing. We will introduce the Bill and the
regulations simultaneously, but we will not put such things into the
Bill.
Simon
Hughes:
I am grateful to the Minister for that statement;
it is as I hoped and as I expected, but it does not change our view
about the principle. No matter how wonderful the regulations are, we
still think that some things should be included in the Bill.
Question put, That the
amendment be
made:—
The
Committee divided: Ayes 7, Noes
9.
Division
No.
2
]
AYESNOES
Question
accordingly negatived.
‘Code of conduct3A (1) The Secretary
of State shall issue a code of conduct to ensure that the poor,
vulnerable and socially excluded are protected from disproportionate
enforcement.
(2) Enforcement
agents, courts, creditors and others with responsibility for an
enforcement action shall comply with the code of
conduct.’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 87, in
schedule 12, page 207, line 42, at
end insert—
‘Rights and remedies information6A (1)
Her Majesty’s Court Service shall prepare an information sheet
to inform debtors of the rights and remedies available to them with
respect to an enforcement
power.
(2) Regulations must
make provision for the information to be included in an information
sheet to include—
(a)
powers of entry and
re-entry;
(b) limits and
controls on the power to use reasonable
force;
(c) exempt
goods;
(d) ways of taking
control of goods;
(e) permitted
costs and charges;
(f) rights
to redress;
(g) how to
complain;
(h) how to ask for
time to pay;
(i) where to go
for advice and assistance.
(3)
Regulations must make provision for the form, ordering and prominence
of information.
(4) The Lord
Chancellor shall consult such persons and bodies he considers
appropriate on the content of regulations under this
paragraph.’.
No.
89, in
schedule 12, page 208, line 9, at
end insert—
‘(2A) A notice
given under this paragraph shall include an information sheet prepared
under paragraph
6A.’.
No.
95, in
schedule 12, page 209, line 34, at
end insert—
‘Premises occupied by a single woman or persons under 1613A Where a
dwelling is known or believed to be occupied by a single woman or a
child under 16, no visit with the intention of seizing goods shall be
permitted unless the enforcement officer is female or is accompanied by
a female enforcement
officer.’.
No.
108, in
clause 59, page 44, line 36, at
end insert—
‘(h) for a code
of practice to be followed by enforcement
agents;’.
Mr.
Bellingham:
Amendments Nos. 85, 87, 89, 95 and 108 were
tabled in my name and the names of other Opposition Members. Amendment
No. 85 would introduce a code of conduct to ensure that the poor,
vulnerable and socially excluded are protected from disproportionate
enforcement. No. 87 would insist that HM Courts Service prepare an
information sheet to inform debtors of the rights and remedies
available to them. Amendment No. 89 is consequential. No. 95 would
issue protection for single women and any persons under 16, and No. 108
is consequential on No.
85.
Opposition Members
feel that a code of conduct is needed to protect the
vulnerable in society. Amendments Nos. 85 and 87 need to be discussed
as part of a package. We take the view that the poor and vulnerable in
society need to know where they stand. After all, the Bill will give
bailiffs substantial extra powers. Surely, it is incumbent on us as
legislators to provide extra protection to those people who are likely
to be caught up in difficult
situations.
We all
know that the vast majority of bailiffs in this country are exemplary,
professional and do a very good job, but there are too many examples of
abuse,
bully-boy tactics and downright intimidation. It gives me no pleasure to
point out that there are cases in which bailiffs go over the top and
use disproportionate, bullying tactics, certainly in respect of goods
being seized.
CABs
and other organisations have given us a number of examples, and I shall
refer to one or two to back up the case for a code of conduct as well
as an information sheet. The information sheet would be supplied by the
bailiffs on their first visit. It would include the rights of a debtor,
the powers available to bailiffs and the details about what bailiffs
can and cannot do. I hope that it is in order to consider some examples
of abuse. We have all been briefed by our local CABs, and most of us on
the Committee probably received briefings from the National Association
of Citizens Advice Bureaux, or Citizens Advice as it is now
called.
A case was
brought to my attention by the Rev. Paul Nicholson of the Zacchaeus 2000
Trust that involves a lone parent on full benefits with a child aged
four. The lone parent owed £1,072, mainly as a result of four or
five fines for motoring offences. The fines were not paid, the court
costs accumulated and the sum in question got bigger and bigger. The
bailiffs arrived and decided to seize a variety of goods. They were not
essential goods; there were items of china, one or two ornaments, a
television, a radio and some kitchen goods.
Those goods probably filled the
back of a van. They were handed over to an auctioneer. Although they
were prized goods that meant a great deal to the family and had
substantial sentimental value, they raised £70 at auction, of
which £30 was given to the auctioneer. We are talking about a
debt of £1,072, yet the amount raised was £40. The lone
parent went back to court, and the magistrates settled for payments of
£5 a week, deducted from benefits. Why the procedure before the
magistrates court and the deduction decision did not occur before the
bailiffs’ visit I do not know, but the parent had no idea what
her rights were. We take the view that a code of conduct would have
protected that
individual.
I shall
consider another case that involves a person who was pursued for
council tax arrears. The arrears were paid off in due course, but the
person—a constituent of one of my colleagues—wrote in an
e-mail:
“As I
write this, I am sitting in my house with all the windows and doors
closed...because we are waiting for a visit from a
bailiff—for something we do not owe. The bailiffs insist that we
owe them £258 for council tax arrears. The council have
confirmed that we have no arrears either for council tax or business
rates—but the council nevertheless insists that we do owe the
bailiffs the money for visiting us.”
The upshot was that they owed £500
for one visit from the bailiff. They owed that sum to the bailiff,
despite the fact that their debt was paid. Obviously, the bailiff
company was completely out of order in that case, but it does not
remove the fact that that happened. It was brought to our attention,
and it causes me great
concern.
One need only
look at some of the evidence presented by Citizens Advice. CABs
throughout the country performed a survey between October 2006 and this
January. Citizens Advice received 500 submissions
from 131 bureaux. From that evidence, 40 per cent. of reports indicated
that bailiffs misrepresented their powers of entry. Some 25 per cent.
reported that bailiffs were threatening clients with
imprisonment; 43 per cent. reported that they were
overcharging clients for their fees—as illustrated in the case
that I mentioned a moment ago—and 64 per cent. reported that
bailiffs were harassing or intimidating
clients.
We are
obviously talking about a small minority of cases, but there is no
question but that they build up. Each case that has been brought to my
attention indicates a worrying trend. Some bailiffs out there are just
using unnecessary bully-boy tactics. One such occasion was brought to
the attention of Sean Poulter, the consumer affairs correspondent for
the Daily Mail. In that case, the bailiffs threatened a woman
that her mobility car would be taken away. That is completely wrong and
out of order, and quite despicable. Again, a small minority of
bailiffs are behaving in an unconscionable and totally unacceptable
way.
Anne
Snelgrove:
The hon. Gentleman gives some good examples to
illustrate his point, but surely he is talking about the very people
who would ignore a code of conduct. They are not the people who will
sit down to read a code of conduct, because their behaviour is extreme
already. A code of conduct is pretty much nonsense,
surely.
Mr.
Bellingham:
I am surprised by that intervention. I submit
that with the combination of a code of conduct, an information sheet
that gives the debtor some indication of their rights and the proper
independent regulation of bailiffs, along with the certification system
in the Bill, we might make some progress. What concerns me is that a
minority of bailiffs are bringing the whole bailiff industry into
disrepute. As I said, most bailiffs do an excellent job. There is no
doubt about
that.
11.45
am
In a successful
market economy, creditors have to enforce their debts. We have not
discussed at any great length the fact that if someone is owed a debt,
whether an individual, a company, an organisation or an arm of
government, it is only fair that that debt be paid. It is only fair to
council tax payers in the case of the Government or to employees in the
case of a business. Of course there must be a system for collecting
debt, and we are saying that the system works well in the main. It
needs improving, which is why we support so much of the Bill, but there
is still a small rogue element that is bringing the whole industry into
disrepute.
On the code
of conduct and the information sheet, the amendment would make a
difference. We are saying that the Government should bring in a clear
code of conduct. Combined with an information sheet supplied to the
debtor, that would at least mean that the debtor knew exactly where
they stood.
I wish to ask
the Minister about the guidance given to civil enforcement officers. We
discussed it on Second Reading, and the Minister has written to me
about it since then. It sets out the rules and is a full, comprehensive
guide telling bailiffs what they can and cannot do. The Zacchaeus 2000
Trust asked for the document in July 2006, and I am afraid that it took
a great deal of correspondence—e-mails, letters and telephone
calls—before eventually, on 23 January 2007, the DCA came up
with Her Majesty’s Courts Service’s magistrates courts
guidance on search and entry powers. There are 31 pages in the document
and unfortunately 15 of them have been redacted, which means blacked
out. The Minister wrote to me, because I raised the matter on Second
Reading, and pointed
out:
“I would
like to make it quite clear that this document does not contain
‘secret instructions’ about how to make use of powers of
forced entry for enforcing distress warrants. What this document
contains is procedural guidance that advises enforcement agents on how
to react and what to look for in certain operational situations. It was
provided to HMCS employed staff who carry out enforcement work in the
magistrates’ courts as an instruction guide. It was also
provided to those contracted in from outside companies as part of the
compulsory training package they had to
undergo”.
We welcome the
comprehensive training package. The letter
continued:
“The
disclosure of this guidance more widely could potentially assist
offenders in evading enforcement agents in the execution of their
lawful duties, and hinder or even prevent the administration of
justice. Much of the guidance, for example that pertaining to searching
persons taken into custody when executing a warrant of arrest,
commitment or detention, is designed to ensure the protection of the
agent and the offender. Most of the redacted material is with regard to
executing commitment warrants, and the powers and procedures for
searching an arrested person. Disclosing this guidance, however, could
give unscrupulous offenders details as to how to evade
arrest”.
In
some ways, what the Minister wrote was fair and made sense. She was
saying that the guidance is issued to both court officers and private
bailiffs under the training scheme, and that it is the bailiff’s
bible. She is telling us that the bailiff’s bible cannot be
disclosed to the wider public under either freedom of information
applications or any other request. In fact, she kindly said that MPs
could be invited into her private office to have a look at the document
in full and perhaps satisfy ourselves that nothing in it is too
draconian, underhand or unconscionable. However, I am concerned that we
have those instructions and that set of guidance rules, yet we have no
code of conduct and no information sheet for the
debtor.
I take the
point made by the hon. Member for South Swindon that a small minority
of bailiffs will ignore any code of conduct. We have a situation in
which the bailiff has instructions but the debtor has nothing at all,
apart from his or her common sense and reaction to circumstances that
arise on the day. Most of us have not been in a situation in which a
bailiff is knocking on the door, using intimidatory language,
threatening with imprisonment, harassing and intimidating. As Citizens
Advice discovered in its survey, many bailiffs misrepresent their
powers of entry, which in most circumstances they do not
have.
The debtor must
know where they stand just as the bailiff does. We welcome the extra
training that bailiffs are having, but we question why their
instructions cannot be made public. Perhaps the Minister can explain
and elaborate on that. Having seen it, I find the document quite
sinister—the hon. Member for North Southwark and Bermondsey is
as concerned as me
about it. If the document is as innocent as the Minister claims it is,
why did operational purposes and the other reasons given in the letter
prevent it from being produced for members of the Committee and
Opposition spokesmen, except at a private meeting? If the Minister
feels so strongly about the document, why did the Department not make
it available to the Zacchaeus 2000 Trust at the first request? For the
trust, getting to see the document was like getting blood out of a
stone. There was endless correspondence: all sorts of letters going
backwards and forwards, e-mails, and telephone calls. Eventually, the
existence of the document became apparent.
The balance
of power in any situation involving bailiffs and a debtor heavily
favours the former, and many debtors have no idea about their rights.
One could argue that people with debts should pay them—no one is
trying to suggest that that is not the case—but, often, the
debtor is at an extremely vulnerable time in his or her life. They owe
money, their whole life might be falling apart, they might be a single
parent going through a time of huge stress, and they do not know what
their rights are—they do not have a clue. They cannot afford
legal advice. They might get help from a citizens advice bureau or from
friends, but when they get a knock on the door at 6 o’clock in
the morning from a bailiff armed with the document and knowing exactly
where he stands, they may not know their rights.
That is why we want to put into
the Bill some redress for vulnerable people. Perhaps the code of
conduct idea is not perfect, but the information sheet concept is a
good idea. If a bailiff is armed with the bailiffs guidance document,
which tells him what his rights are, why should he not hand the debtor
a document detailing his or her rights?
Jenny
Willott:
The Liberal Democrats support a number of the
proposals put forward by the hon. Member for North-West Norfolk. For
us, the key part of the proposals is the protection of the rights of
vulnerable people. As he mentioned, a number of firms provide
information sheets to the people on whom they call, and a number of
firms have voluntary codes of conduct that their employees follow.
However, it is not necessarily those firms that we are most concerned
about; we are most concerned about the firms that do not provide
information and codes of conduct. If such firms do not act voluntarily,
we need to do something to make sure that they follow the letter of the
law and that they are ensuring that particularly vulnerable people are
protected. Given the implications for the rights of privacy of all the
measures in the Bill, it is clearly fundamental that we get the code of
conduct completely right, protect the rights of privacy, ensure that
people know what their rights are and ensure that the borderlines are
not crossed.
The code
of conduct should also protect those bailiffs who act within the law
and behave as they should. They would be protected by their actions in
following the code, and as long as they could show that they had acted
in the way in which they are supposed to, they would be offered a
measure of protection against unfounded allegations from debtors.
Vulnerable debtors would also have the protection of knowing that
bailiffs were acting within a certain code.
The debtors who are most likely
to abuse the system—I believe that they are called
“won’t pays”—are more likely to know what
their rights are and what the process is than those who are vulnerable
and most in need of protection. Ensuring that an information sheet is
provided to everyone in that situation effectively levels the playing
field. It ensures that everybody has the same information and the same
protection. Information about how to complain is a fundamental part of
that. Pretty much all public bodies and Departments ensure that they
provide information on how to complain about services in big letters on
the front of leaflets and on display boards in the entrances to public
buildings. It is a fundamental part of ensuring that a service is up to
scratch and that people know what to expect and what to do if something
goes wrong. I do not see why it should be any different for bailiffs.
Information about what people can expect, and how they can do something
about it if something goes wrong, is a fundamental part of ensuring
that the service is provided properly.
As a non-lawyer, can I put in a
plea that the information sheet should be in plain English? When a
vulnerable individual has the bailiff at the door, the information
needs to be in language that they can understand. The Government have a
lot of experience of putting together leaflets and information sheets
in language that people can readily understand and take in at a glance.
That would be fundamental in ensuring that an information sheet
worked.
Vera
Baird:
I agree entirely about plain language. What worries
me somewhat in this argument is that, if people are in the distress
that the hon. Member for North-West Norfolk said they are likely to be
in, whether they are culpable or not, it is a bit late in the day to
give them something when they are confronted by a bailiff, however
plain the English is, to invite them to reflect on their rights and to
deal with them appropriately. Surely we have a duty to ensure much
earlier that there is a maximum amount of public information about
debtors’ rights, and codifying it all in one Bill, so that it is
available to lawyers and bailiffs at least, even if not necessarily in
plain English, is much more important than notices. I have plenty to
say about the notices that we will give, but it is much more important
to ensure that people know their rights up front, rather than struggle
in a panic to find out what they
are.
Jenny
Willott:
I suggest that it is not an either/or situation.
Clearly, the information needs to be available up front. However, many
of the people who find that the bailiffs are coming to call might have
been given the information in advance, but put off reading it. People
think that it will not happen to them and that there will be a way out
of the situation. They probably will not have taken in the information;
they might not even know where it is. When someone knocks at the door,
it becomes real. At that point, it is important that they should be
given information about their rights and about what the bailiff can and
cannot do, so that the bailiff cannot misrepresent their ability to
seize goods, to enter, to use force or whatever they might want to do.
Evidence shows that some bailiffs are doing that. It is important that
at that point the debtor receives further information to give them the
protection that they need.
Amendment No. 95 concerns the
situation where a bailiff calls at the door of vulnerable people,
including single women and young people under the age of 16. Clearly,
they need extra protection. It can be intimidating when someone is
alone if great big hulking blokes come to the door and try to take
their goods away. There is a need for some protection. While I
understand the reason behind ensuring a female is present when that
happens, I am not entirely convinced that some women are not just as
scary and intimidating as some male bailiffs. That might not be the
only protection that is needed and we need to ensure that the
information sheets and the code of conduct back it
up.
12
noon
Anne
Snelgrove:
I want to detail my worries about a voluntary
code of conduct and the piece of paper setting out people’s
rights. I do not disregard the Opposition’s concern about such
matters and, indeed, welcome the Conservative party’s belated
worry about vulnerable people. I remember the days of poll tax when
people could be locked up for non-payment and bailiffs’ powers
were extended for the first time. However, the example that I gave
earlier demonstrates that codes of conduct will not be effective in the
protection of vulnerable
people.
I
shall set out an example from Swindon. A single parent was living on
incapacity benefit and was really intimidated by a bailiff. She let him
in to draw up an inventory and take walking possession. The bailiff
failed to apply his company’s code of practice in relation to
vulnerable people, and levied goods, including a washing machine and a
kettle. That illustrates two points: the problem with the Bill is that
vulnerable people might still be in that situation, and secondly that
the bailiff might not take notice of a code of conduct. If he ignores
his company’s code of conduct, as sure as eggs is eggs he will
not take notice of the Government’s code of
conduct.
The other
issue concerns the piece of paper setting out the rights. My experience
of working with people in Swindon who are in considerable debt is that
the average debt before people ask for help is £36,000. That is
before mortgage debt. Very vulnerable people also have reading
difficulties, and I do not believe that a bailiff handing them a piece
of paper, if he can be persuaded to do that, especially at the last
minute when they are in a panic, will have any effect whatever. It will
just confuse them even more. Neither method will be
effective.
Simon
Hughes:
There is an argument both ways. It is true that
some people cannot read, but the Government have introduced new
regulations that require the police to give pieces of paper to people
they stop. They do not discriminate in respect of those regulations
about whether the people can read or speak English. What is the
difference between the police being required, when they are on the
beat, to give information to people in paper form, and bailiffs being
required to do
it?
Anne
Snelgrove:
There is a difference. I do not believe that
some of those whom the police meet on the streets
are particularly vulnerable, especially if they have been committing
crimes. I was talking about very vulnerable people who, in my
experience, are up to their eyes in debt and subject to bailiffs. I
said not that they could not read but that they had reading
difficulties. There is a difference. They panic in such situations, and
that makes it more difficult for them to read
clearly.
Will the
Minister comment on the Security Industry Authority and its role in
regulating bailiffs? The SIA is the organ to ensure that, if their
powers were strengthened, bailiffs would behave in a reasonable way
when dealing with vulnerable people. It has a good record with doormen
and security officers. I have been impressed with its action in my
constituency when training doormen and ensuring that people with
records for grievous bodily harm and other issues are removed from the
industry. Can she reassure us about the position of the SIA in
regulating
bailiffs?
James
Brokenshire (Hornchurch) (Con): I am grateful to my hon.
Friend the Member for North-West Norfolk for having tabled amendments
that enabled our debate to extend to the wider issues of ensuring that
bailiffs act in accordance with their rights and restrictions, and that
information is made available so that people are fully cognisant of
their rights should they be subject to a judgment debt but unable to
make the necessary payments as a consequence of the involvement of
bailiffs.
Bailiffs
have a difficult job. When a debtor is unwilling or unable to pay a
court judgment or other judgment debt, they act as the mechanism that
ensures that the law is upheld and orders are properly enforced. We
should have no illusions about the challenges that they face. This
mini-debate is not about seeking additional favours or suggesting that
one group within society should be subject to different rules or laws;
it is about justice, fairness and proportionality.
It is clear from the cases that
we have seen in our constituencies, and had explained to us by citizens
advice bureaux and other interest groups that provide Committee members
with information, that there are rogue operators who seek to abuse
their powers or to misrepresent them. The amendments highlight the need
for clarity about the manner in which those rights should be exercised.
It is difficult to separate regulation, which is accepted by all in
this House as being necessary to ensure that proper standards are
maintained by bailiffs in the conduct of their duty, and the need for a
code of conduct. The legislation sets out the law, the basic framework
within which bailiffs should operate, and there is an argument for a
code to sit alongside the sheer legal drafting of the
law—separate from any guidance, toolkit or manual that might be
available to bailiffs—to inform them how they may use their
powers. That would provide those who are subject to the actions of
bailiffs with a clear understanding of the service and the standards
that they should expect in those circumstances.
It is important to have the
debate. We need to understand how regulation would operate in order to
provide individuals who are subject to enforcement with a context in
which to seek to complain to a regulator, should that be necessary.
Equally, where enforcement and the upholding of standards are
concerned, bailiffs should have a prescribed manner in
which to work and a framework within which to
conduct their duties and fulfil their responsibilities.
On the information sheet, I
agree with the Minister that information should be available at all
stages of a court or enforcement process, so that people understand
what is taking place. When I was involved in the Constitutional Affairs
Committee’s investigation into the small claims court, I saw
that it was essential for people involved in the process to understand
what was going on and what steps and procedures were involved in a
case, whether in the small claims court or elsewhere. I am aware that
the Government are seeking to make information more generally available
at an earlier stage.
The point that the hon. Member
for Cardiff, Central made is that when one is subject to enforcement it
is an acute situation. The issues are writ large: one is subject to
enforcement and is likely to have assets seized to ensure that that
enforcement takes place. There is therefore a strong case for further
information to be provided at that point, to reinforce the message and
to ensure that people properly understand the procedures that are
undertaken. We need to ensure that the law is not only enforced but
seen to be enforced, and that it is much harder for that small
proportion of unscrupulous bailiffs to misrepresent their
powers.
The hon.
Member for South Swindon made a valid point about whether unscrupulous
bailiffs would seek to ignore the code of conduct. It comes down to
enforcement. The amendment
states:
“Enforcement
agents, courts, creditors and others with responsibility for an
enforcement action shall comply with the code of
conduct.”
I see the
amendment as an interlinking factor of the overall regulation. If the
code of conduct is not adhered to, there would be a regulatory
sanction, whether through the SIA or another regulator, to ensure that
standards are properly maintained and enforced and that the system is
robust and
credible.
Anne
Snelgrove:
The hon. Gentleman seeks to create more work
for lawyers and more interpretations in court. If the Opposition had
the courage of their convictions, they would write something into the
Bill, in law, rather than in the code of conduct. Does he not agree
that the Security Industry Authority is the better way
forward?
James
Brokenshire:
The hon. Lady makes an interesting point
about lawyers. As a lawyer, albeit non-practising, I think that we
sometimes get a bad press. I understand why, because of the manner in
which certain people conduct themselves, but I do not see the amendment
as a lawyers’ charter. It is a mechanism to ensure that proper
standards are upheld.
The hon. Lady talks
about the SIA almost as a panacea. Surely for people to understand
whether they have recourse to the SIA, there needs to be a context and
a framework. A code of conduct would simplify that and make it clearer
to people, if it was a separate document written in plain English. That
would ensure that people properly understood the standards that could
be expected. It is an essential part of maintaining standards and
ensuring that the regulation, through the SIA or otherwise, is properly
adhered to, which would ensure the necessary
protection.
Jenny
Willott:
Does the hon. Gentleman agree that the other
advantage of having a code of conduct is that it gives other bodies,
such as Citizens Advice or NGOs, the opportunity to complain on behalf
of people, particularly vulnerable people, and to highlight severe
breaches?
James
Brokenshire:
The hon. Lady makes a reasonable point. It
emphasises the issue of content, which I sought to advance in my
comments. If the framework is there, it is all very well to point to a
schedule to the Bill. Despite the best efforts of the parliamentary
draftsman to use plain English, however, a schedule fulfils a slightly
different purpose from a code of conduct. The concept of a code of
conduct is that individuals, Citizens Advice and other
organisations are able to point to it to maintain fair and appropriate
standards, to provide protection and to ensure, for the industry
itself, that it is seen to adhere to a high standard of service and
performance, so that the law is not only enforced but seen to be
enforced.
The
amendment might not be a perfect solution, and my hon. Friend the
Member for North-West Norfolk certainly highlighted that in his
comments, but we must consider it properly and appropriately to ensure
that protections are afforded people, that bailiffs are clear about
what rules they operate within, and that we have greater clarity and
protection. The rules and regulations introduced under the Bill must be
seen to be effective and to ensure that we have proper and robust
enforcement that is fair, clear, understandable and
proportionate.
12.15
pm
Mr.
Newmark:
I will try to be brief. I add my words of support
to those of my hon. Friends the Members for North-West Norfolk and for
Hornchurch. As we have heard, amendment No. 85 would require all those
with responsibility for the enforcement of an action to comply with a
code of conduct to ensure that the poor, the vulnerable and the
socially excluded are protected from disproportionate enforcement. It
is the disproportionate aspect on which I shall focus.
My first point is a general,
fundamental point. I think that all hon. Members would agree that
protection of the most vulnerable ought to be at the core of this part
of the Bill. It might as well be explicit as well as implicit, which I
fear is the direction in which the Minister seems to be going.
Secondly, in requiring that action should not be disproportionate, the
amendment is advocating the use of common sense. I know that it is hard
to legislate common sense, but it is an important aspect. I am not
saying that there should be a blanket ban on enforcement against the
vulnerable—liabilities must be dealt with—but bailiffs
should not feel that they have carte blanche to do what they like. That
is what is driving the amendment. Thirdly, by drawing
“agents, courts, creditors and
others with
responsibility”
into the
equation, the amendment would achieve the vital objective of preventing
creditors from abdicating responsibility for those who act on their
behalf.
I turn to
amendment No. 95. The hon. Member for Cardiff, Central did an excellent
job in making her points. The amendment seeks to recognise that women
and children are particularly vulnerable when it comes to visits from
bailiffs, and that they therefore deserve special protection. I am sure
that we all agree that protecting women and children, particularly when
dealing with the dramatic changes in circumstance that necessitate the
use of bailiffs to take their basic livelihoods away, is something that
we should be focusing on. That is why I welcome amendment No.
95.
As a matter of
law, can a person under 16 allow a bailiff entrance to a building for
the purpose of removing property? Do they have the legal capacity to
allow the bailiff to take control of goods, and can they give informed
consent? If the Minister could answer that for me, it would be helpful.
Further, given that bailiffs are not likely to be shy and retiring, is
it not absolutely necessary that a woman on her own or looking after
children, particularly young children, should be protected from the
implicit threat of a man, or even an aggressive woman, entering her
house? We need to focus on the issue and address it, which is why I
welcome amendment No.
95.
Simon
Hughes:
I just want to say a word about the guidance
document to which the hon. Member for North-West Norfolk referred. It
has been partly revealed and partly not, and it has been the fruit of
the Rev. Paul Nicholson’s labour on behalf of his trust to
discover what the rules are. I guess that the matter may go to the
Information Commissioner and that in the end it may all be in the
public domain anyway. That would be a sensible way to proceed. However,
I am troubled about the fact that there are currently—it is
proposed that this should continue—rules that are public in law,
statute, regulations or published guidance, and rules that are private.
It is important that the citizen knows exactly what the powers of the
state, or officers of the state, are in respect of people acting on
behalf of the court—those doing enforcement on behalf of the
public authorities—and that the citizen knows what rights they
have, whether they are dealing with people acting on behalf of the
state or acting on behalf of other citizens. Therefore, a guidance
document about how bailiffs should react and what their powers,
strategies and tactics are ought to be in the public domain. I presume
always that such documents ought to be in the public
domain.
I can see, by
comparison, that if the police produced a manual on how they dealt with
somebody who was taken hostage and what their tactics were, perhaps it
would be sensible for certain things to be kept private. However, that
should be the exception rather than the rule. I should be grateful if
the Minister explained why she thinks that it is necessary for the
information to be kept secret—so far—and why the
Government have insisted that it be generally kept secret, subject to
the offer that she has made for parliamentarians to read the document,
which does not get it out into the public
domain.
If these
matters go to the Information Commissioner and there is a ruling
that says that such guidance or some of the guidance can be kept
secret, it is none the less sensible that the maximum amount of
information governing the way that bailiffs behave is in the public
domain. It should not be about how clever they are at getting up the
drainpipes, through the
skylight, or whatever; it should be about what the rules are and what
people can expect. I thought that that was what we were trying to do in
the Bill: to make clear complicated law, some of which is common law
and some of which is statute law, and to bring it all together, as the
Minister says, so that everybody can look in one place. I am in favour
of that. If that is so, we should have maximum openness and
transparency and as little hidden as
possible.
Vera
Baird:
Having as little hidden as possible is the
watchword, as far as I am concerned, for how the Bill and all these
proceedings will be conducted. I have no idea what the delay was in
respect of the Zacchaeus 2000 Trust. I apologise for that if it was
inappropriate. It certainly was not my delay. I guess that, because
difficulties have been raised about disclosure, there was a delay in
order to take advice. But I do not know. I hope that the Zacchaeus 2000
Trust was kept informed about what the reasons
were.
The hon. Member
for North-West Norfolk said that the Zacchaeus 2000 Trust and the Rev.
Paul Nicholson were at the end of the road, but they are not, as the
hon. Member for North Southwark and Bermondsey has just said. It can
appeal against the decision of the Department for Constitutional
Affairs’ access rights unit to the Information Commissioner, if
it wishes to do so.
It is not a document that is
properly described as including rules that ought to be made public. It
is about operational issues and how it is recommended that bailiffs
should approach particular operational situations. Consequently, it is
deemed wise and within the Freedom of Information Act 2000 exemptions
to keep it private. I repeat the offer that I made in my letter and on
Second Reading, which both hon. Gentlemen mentioned. Any Member of
Parliament who wants to see the document, so that they can better judge
whether there is a problem, is welcome to do so, on the terms that they
use it only for their own information for the time being, pending any
appeal that there may be to the Information
Commissioner.
I will
pick out one or two elements of the debate before I move on to the
amendments themselves. My hon. Friends the Members for South Swindon
and for Stroud and Opposition Members have all referred to how private
bailiffs behave. It is not up to me to say that that behaviour does not
happen, and I do not. Although, as the hon. Member for North-West
Norfolk said, many bailiffs are excellent, professional, courteous and
simply do their job properly, there is also a good deal of evidence to
the contrary. Much of it comes from citizens advice bureaux, but some
of it comes from a number of other sources, including from face-to-face
meetings in surgeries in my own constituency.
I do not find it difficult to
accept that, in 500 case reports that citizens advice bureaux referred
to their central office in 2006, two thirds of bailiffs were allegedly
guilty of harassment or intimidation, 40 per cent. misrepresented their
powers of entry either deliberately or because they did not know what
those powers were—I suppose that some are debt collectors and
are bound to muddle their roles—a quarter threatened debtors
with imprisonment, which is wholly unacceptable, and 42 per cent.
charged excessive fees
back to, for example, the fish fryer in Stroud. In more than half of
those cases, the CAB described the debtor as vulnerable, although how
that is defined is a difficulty, which brings me to the amendment and
the thrust of what it intends to do.
The amendment is
extraordinarily well meant. It is good that all parties want to ensure
that there is not disproportionate enforcement against the vulnerable,
and that is certainly our intention. Let me indicate that we have
probably gone far further than hon. Members expected. It is necessary
to look at some detail of the legislation, which they probably have not
had a chance to do.
Let me start with schedule 12
and the regulations that will underpin it. Those regulations will
clarify what enforcement agents are and are not legally entitled to do.
I am not suggesting that debtors should read those, but it is excellent
and important that there will be a comprehensive code available in one
place. For example, paragraph 12 restricts what can be taken to the
value of any outstanding debt plus future costs. Therefore, there has
to be imposed on the agents an element of care about what they seek to
take. As has already been made clear from the earlier debate, there is
a list of exempt goods that cannot be touched at all. It is important
that all that information should be centrally
available.
Simon
Hughes:
I have a general point. The Minister is right to
say that a lot of the important detail is under schedule 12. After we
have concluded the debates on the detail of the Bill, will she be
willing to have a meeting between the parties? Having read the schedule
over and again and consulted my hon. Friend the Member for Cardiff,
Central, who has read it but who is not a lawyer, I think that the
schedule is very complicated and confusing. I would be happy to try to
draft the schedule in a shape and form that avoids some of the
cross-referencing and pitfalls which, to be honest, do not help us very
much.
Vera
Baird:
I think that the schedule is very comprehensive and
well put. It was subject to scrutiny in the other place and it arrived
with us in a final form that sets out what it intends. It is extremely
helpful in doing
that.
Furthermore,
regulations will reflect the provisions for the national standards for
enforcement agents. Let me refer to that document. The standards were
produced by my Department, when it was still the Lord
Chancellor’s Department, to share, to build on and to improve
existing good practice and to raise the level of professionalism across
the whole sector. The standards are intended for use by all enforcement
agents, public and private, the enforcement agencies that employ them,
and the major creditors who use their services. The national guidance
does not replace local agreements, existing agency codes of practice or
legislation, but it does set out what the Department, those in the
industry and the major users regard as minimum standards. The document
is not legally binding yet, but it is intended to underpin the
regulations that follow. There is already a code, as it were, of
minimum standards, which in many areas is built upon by local agency
codes of practice and local area
agreements.
12.30
pm
If a bailiff
arrives and the only person on the premises is a child aged 12 or
under, the enforcement agent simply has to withdraw without making any
further enquiries. The regulations would also say that, where a young
person is over 12 but under 18, the bailiff may simply ask for
confirmation of the address of the debtor and when the debtor will
return. After that, the agent should leave the
premises.
All
enforcement agents will be required to use their discretion in deciding
whether to withdraw without taking goods if it appears that the debtor
is in any way vulnerable. Training will become part and parcel of the
job; once the Bill has been enacted, nobody will be able to be a
bailiff unless they have gone through training. That training will
cover diversity awareness, which has not been raised here, although it
is vital that people who are dealing with the public in this fashion
should learn it, as well as dealing calmly and properly with situations
of potential conflict, and understanding vulnerability and ascertaining
its
level.
Mr.
Bellingham:
The Minister has mentioned an important point.
Will the training include an awareness of religious festivals, for
example, such as Yom Kippur, the Chinese new year or some of the Muslim
festivals? Will there be recognition of the times of day when some
religions instruct their members to be in
prayer?
Vera
Baird:
It would be important that all those factors were
understood. I cannot see how one could train people about diversity and
miss out elements such as beliefs or diverse ways of
behaving.
The issue
goes further and is broader than anything anyone has raised today. I
hope that it is clear, even now when I have a good deal left to say,
that the Government intend to ensure that there is a proper bailiff
service, reflecting in its behaviour not simply the creditors’
interest, but the public interest, which is that such matters should be
conducted in a proper fashion. The training requirements relate to
clause 59 and the certification process that will immediately follow
the introduction of the legislation. That comes before the
SIA, to which I will turn shortly, for my hon. Friend the Member for
South
Swindon.
Nobody
will be able to be a bailiff until they have gone through the training.
The problem with the amendment, which I alluded to when I started to
speak, is that vulnerability and social exclusion are very difficult to
define. Many people in prison for grave offences would be regarded as
socially excluded, but they probably do not need the protection that
Opposition Members are looking for. Vulnerability is probably on a
sliding scale across a range of difficulties, and there might be
difficulties about definitions at the margins. What we ought to do is
ensure that nobody suffers disproportionate enforcement, so the
vulnerable will be safe without our seeking, as the amendment somewhat
laboriously does, to define them. That is our intention. That is why we
are codifying and training, and why we are going to certificate and
ultimately
regulate.
As to
information, the hon. Member for Cardiff, Central is right: I was not
suggesting that this is an either/or question. Clearly, a lot of
information must be made available about creditors’ and
debtors’ rights
so that vulnerable people are not exposed, as long as they look at the
information, to a situation that might end up with the bailiff not
knowing the rights and wrongs. Her Majesty’s Courts Service is
excellent at producing information leaflets and ensuring their
availability at advice centres and libraries. The Legal Services
Commission is also excellent at producing documents in fairly plain
English—as good as we have got so far—that indicate what
people’s rights are in an accessible way.
It is not correct to suggest,
as the hon. Member for North-West Norfolk did, that debtors would not
be entitled to legal advice; anybody who is in debt is entitled to
legal advice. If they are poor—that is what we are talking
about—they are entitled to free legal advice. Through the LSC,
we fund an enormous amount of debt advice, from Citizens Advice, law
centres and private solicitors. The financial inclusion fund has just
allocated 500 new positions with training by Citizens Advice to give
debt advice, and the Department of Trade and Industry already has debt
advisers. I think that I am right in saying that in my citizens advice
bureau, one debt adviser is funded by the LSC and two by the DTI.
Advice is available if people look for
it.
People might have
heard on the radio this morning about the Consumer Credit Counselling
Service, which is the credit card and loan organisations body that
tries to manage debt. It produces very good information indicating how
it can help, which can be accessed online and through documentation.
There should be no shortage of information on the codes and
people’s general rights and it will have to be updated and made
as publicly available as practical.
That is a very important step
to emphasise, as the Government have every intention of ensuring that
people are fully informed. If they are getting into debt difficulties,
they need to know where those difficulties can lead and, if necessary,
to get advice quickly. We intend not only to provide the information,
but to ensure that the advice is there as well. The notion that it is
sufficient protection for somebody to be given a notice when the
bailiff is on the doorstep is not a realistic one. Everybody is
familiar with stress such as that of an individual who is visited by a
bailiff; we have all experienced it ourselves when the finger points
and we have to confront a position in which we are vulnerable. It is
not easy to read and digest information put before us in such
situations. It is not enough to say, “If they give them the
notice, that will do.” Clearly, those involved ought to be
talking to people, apart from anything else. The notice is not
sufficient.
Plenty of
notices will be given, however—notices in advance and notices on
the arrival of the bailiff. Paragraph 7(1) of schedule 12 requires that
an
“enforcement agent may
not take control of goods unless the debtor has been given
notice.”
That notice must
state
“the minimum period
of notice”
before any
further action can be
taken,
“the form of the
notice...what it must
contain”—
the
sorts of information that I have
mentioned—
“how it
must be given”,
and “who must give it”. The
enforcement agent is required to
“keep a record of the time when
the notice is given”,
so
that he can provide proof. That notice should be given not when
somebody arrives to take the goods away; somebody should deliver a
notice to a debtor that the intention is to take goods away if they do
not make moves in the right direction and contact the
creditor.
In addition,
paragraph 28(1) of schedule 12 requires the enforcement agent to
produce a notice to the debtor on arrival at the premises. Paragraph
160 of the policy statement on delegated powers lists what will be
provided for in regulations in order to compel the contents of those
notices. When an enforcement agent enters a premises in order to levy
execution, he must provide the debtor with a notice, the form of which
will be contained within regulations. It will cover the statutory
liability or the judgment that has given rise to the debt; the
legislative provisions authorising the action; the amount for which the
warrant is issued; the charges that have been and can be made in
relation to it; how payment can be made; the fact that the goods will
be sold if the debt and costs are not paid; and any rights of appeal or
avenues of complaint that the debtor may have. It is clearly intended
that the notice should be given in
writing.
The Bill
therefore provides for what one could almost call an abundance of
notices—an essential amount of notice. It is imperative that
debtors should be well informed about the difficulty that will
ultimately confront them. I hope that hon. Members are satisfied that
we have gone far further than the amendments would provide for, and
that we intend to treat people properly and be as fair as we
can.
Regulatory
structures within the SIA are substantial. My hon. Friend the Member
for South Swindon mentioned the SIA’s good reputation when it
got into a position of being able properly to regulate doormen, and it
has done an excellent job. It has raised standards immensely and
good-quality professionals are pleased that that has happened. It has
got rid of many of the bandits and improved the situation. It is the
ideal body to do exactly the same in this
regard.
An extract
from the SIA’s policy code of conduct indicates that it will
regulate in detail and that it will use verbal or written warnings if
it finds companies, organisations or individuals failing to comply.
That is important at all levels, not just in relation to the bailiff on
the ground. If the SIA did something to him, the company could simply
employ another bailiff who might be just as bad. If a company is badly
run, there needs to be a power against it. SIA investigators can issue
improvement notices that offer advice and guidance and a manageable
time frame within which to rectify matters. The SIA can also initiate
prosecutions for breaches of legislation, although it will always
prefer compliance to
prosecutions.
My hon.
Friend the Member for Stafford perspicaciously pointed out that there
are not actually any offences in the schedule, only remedies. However,
there are offences in the Private Security Industry Act 2001
that carry penalties such as a £5,000 maximum fine or six
months’ imprisonment or, if the case goes to the Crown court,
five years’ imprisonment
or an unlimited fine for serious breaches in how
licensable tasks are carried out or for carrying out tasks unlicensed.
There will in due course be a proper regulatory system, which I hope
will satisfy everybody. I hope rather more that what I have set out
here, and how, has made it plain that the Government intend people to
have all the information that they require if they are in the position
of being confronted by a
bailiff.
Mr.
Newmark:
I do not think that the Minister has answered my
question about people aged under 16. Can a person under 16 open a door
and let a bailiff in to empty the contents of the
house?
Vera
Baird:
I cannot tell the hon. Gentleman. If he wants me to
act as his legal adviser on that point I shall do my
best.
Vera
Baird:
I am not being critical. I do not know the
answer—I am not that kind of lawyer—but I have read out
the fact that a bailiff will have to withdraw if he finds a 16-year-old
there. The question whether, should the bailiff not withdraw, the
individual has the capacity to consent to his entering does not arise.
The regulatory system requires the bailiff to withdraw. The hon.
Gentleman will know as well or as badly as I do whether a 16-year-old
can open the door and let somebody
in.
12.45
pm
Mr.
Bellingham:
I am grateful to the Minister for her words of
assurance on the code of conduct, the protection for people who need
information on their rights and remedies and the information
sheet.
On the code
of conduct, I take on board what the Minister said about schedule 12,
but it is extremely complex, however one looks at it. I accept that
schedule 12 lays out a great deal of information and goes to the core
of what bailiffs can do and how they should go about their job and,
certainly, I am quite attracted by the suggestion of the hon. Member
for North Southwark and Bermondsey to make it that much
simpler—it is very long and complicated. It contains a lot of
references backwards and forwards and, to be honest, one would need a
wet cloth over one’s head and to put aside a number of hours in
order to go through and understand it. That is why we feel that a code
of conduct in the Bill would make
sense.
I shall return
to a point made by the hon. Member for South Swindon when she asked why
we did not put more details in the code of conduct. I think that she
said that we would have been braver as the Opposition if we had spelled
that out in more detail. However, if she looks at our proposal, she
will see that actually we suggest that the Secretary of State should
come up with the code. We suggest that the Secretary of State
should
“issue a code of
conduct to ensure that the poor, vulnerable and socially excluded are
protected from disproportionate
enforcement.”
We are
saying that the Secretary of State is competent, wise and able enough
to come up with a code of conduct. However, I take on board what the
Minister said about the code of conduct, and in the light of her very
full explanation, we are not inclined to push that amendment to a
vote.
On the information sheet on
rights and remedies, again I take on board what the Minister said about
people faced with the prospect of the bailiffs arriving at their house.
If they are being dragged out of bed at the crack of dawn and the
bailiffs are on their doorstep saying, “Here is an information
sheet, here are your rights”, they might be even more bemused.
But, of course, it is a question of how that information is drafted. If
it is user-friendly and contains no more than, say, a dozen or so
bullet points, it surely would give the debtor some basic information
about, above all, what the bailiff can and cannot do and about their
own rights, such as the right not to admit the bailiff in to their
house. Those are simple and obvious rights of which the debtor might
not be aware. We will probably want to come back to that on Report and
certainly keep on raising it with the
Minister.
I want to
push the Minister a bit more on amendment No. 95, because we might be
minded to press it to a vote if we do not get assurances from her. My
point is slightly different from that raised by my hon. Friend the
Member for Braintree. Let us look again at the proposed new paragraph
entitled: “Premises occupied by a single woman or persons under
16”. It
reads:
“Where a
dwelling is known or believed to be occupied by a single woman or a
child under 16, no visit with the intention of seizing goods shall be
permitted unless the enforcement officer is female or is accompanied by
a female enforcement
officer.”
Surely, that
will provide the extra protection to young single woman facing a very
difficult, stressful and traumatic situation. We have heard examples
from Citizens Advice, the Zacchaeus 2000 Trust and other organisations
of how a minority of bailiffs have used bully-boy tactics and
misrepresented their powers. I think that putting that protection in
the Bill would make sense and I do not think that the extra costs would
be significant. Before we take a final decision on whether to push that
amendment to a vote, will the Minister assure me on that point, because
she did not really give a full
response?
Vera
Baird:
I am happy to indicate our position. I do not think
that there is any need for that protection, but not because I do not
think that people need to be protected. I suppose that when the
amendment refers to “a single woman”, it actually means a
woman on her own—married, divorced, widowed or whatever. The
amendment would give protection only if it could be shown that the
bailiff knew or believed that there was a woman on her own in the
relevant house at the relevant time. That would be an extraordinarily
difficult thing to prove. Furthermore, that category is not the only
category of women on their own that I want to see protected; I want
such women to be protected even if the bailiff does not know that they
are on their own. That is why we shall have a comprehensive code of
conduct that will deal with vulnerability, and training on
vulnerability.
We have
not yet quite reached the powers to use reasonable force to gain entry,
but I said on Second Reading that it would be possible for judges to
place conditions on any warrant granting such power. I also said that
if a woman were known to be on her own it would be sensible for another
woman to accompany the agent, and I think that probably rather rashly I
suggested that that could be a police community support officer. In any
case, that might be an important step to allow judges to
consider.
Nevertheless,
that will be possible only if it is known that the woman is a sole
occupant. Furthermore, some women are quite fierce, whether they are on
their own or not, so the proposal does not necessarily hit the spot.
Much more important than specific rules for a specific category of
relatively vulnerable people, therefore, is the kind of extensive
protection that I have indicated will be available. It is better not to
pinpoint one sub-category of
people.
I hope that
the hon. Gentleman is content enough not to press amendment No. 95. If
he wishes to press it to a vote, that is up to him, but the amendment
is a poor attempt at protection and the Government are putting far
better protection in
place.
Mr.
Bellingham:
I entirely take on board what the Minister has
said. She is saying that the protection will exist anyway by way of
schedule 12, and that it will be better, so that our suggestion for a
code of conduct is unnecessary. However, on amendment No. 95 she said
that single women and children under 16 have protection under the code
of conduct. That might well be the case, but having specific protection
would surely make sense. I do not think that we are putting too great
an onus on bailiffs. Judges will often have a clear idea of what is
happening and will be able to issue
instructions.
Mr.
Ellwood:
My hon. Friend might be interested to know that
the armed forces have their own code of conduct, which is a helpful
indication of the expected standards of behaviour. I understand that
the police and NHS doctors and nurses do too. It seems entirely
appropriate to have one for bailiffs.
Mr.
Bellingham:
My hon. Friend is right. That is relevant to
the code of conduct. On amendment No. 95, I want to see
express provision in the Bill. The Minister alluded to the fact that
many single women are not that vulnerable, but generally speaking such
people are in a difficult and stressed situation. We shall therefore
press amendment No. 95 to a vote at the appropriate time. However, as
to the lead amendment, No. 85, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
‘by serving a
notice on the debtor or a person in control of the premises and
additionally, if the enforcement agent deems it necessary, by
physically securing the
goods’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 91, in
schedule 12, page 209, line 19, at
end insert
‘, if this
will not cause undue hardship to the debtor or his family or
significantly impair his ability to continue in his business,
employment or vocation’.
No. 92, in
schedule 12, page 209, line 20, at
end insert
‘or with a person in control of the
premises where the goods are
found’.
No. 93,
in
schedule 12, page 209, line 29, at
end insert ‘or other competent
person’.
No.
94, in
schedule 12, page 209, line 34, at
end insert—
‘(5) In this
paragraph a “competent person” is any person either
residing at the relevant premises or working at the relevant premises
where these are premises where the debtor carries out trade or business
at the time when control is taken,
who—
(a) is 18 years of
age or over; and
(b) fully
understands the consequences of the procedure being carried
out.’.
Mr.
Bellingham:
The amendments are not dissimilar to new
clause 1, which we discussed earlier. When a bailiff enters
someone’s house, they obviously want to take possession, perhaps
walking possession, of the goods in question. The amendments propose
the simple solution that other defined people apart from the debtor
should be competent to sign the agreement. I think that there is a
strong argument to allow someone specified in the Bill and of competent
age who is physically in control of the goods to sign them
away.
Amendment No.
90, for example,
says:
“by serving a
notice on the debtor or a person in control of the premises and
additionally, if the enforcement agent deems it necessary, by
physically securing the goods”.
Amendment No. 91 would
insert
“if this will not
cause undue hardship to the debtor or his family or significantly
impair his ability to continue in his business, employment or
vocation”.
That is not
dissimilar to what we were talking about under new clause
1.
Amendment No. 92
would insert
“or with a
person in control of the premises where the goods are
found”,
and No. 93 would
insert
“or other
competent person”.
No.
94, which is arguably the most important amendment in the group, speaks
for itself.
We are
suggesting giving the system greater flexibility. It is important that
the details are put into the Bill. We are aiming at a situation in
which the bailiff leaves the goods in place where that is sensible to
give the debtor more time to find the money. Bailiffs should not be put
in the position of having to take goods because of what is in the Bill.
We do not want the wording to give them the idea that in all
circumstances, they should take the goods if the debtor is not in the
home.
We are
suggesting that other responsible people who might be in the
home—the amendment makes it quite clear who they
are—should be able to sign for the goods in front of the
bailiff. That would give the bailiff more flexibility, meaning that
they would not have to take the goods on that occasion simply because
the debtor is not home. We feel that the group of amendments gives the
system that much more flexibility. On that basis, I commend them to the
Committee.
Simon
Hughes:
I just want to make one point about the amendments
on a common issue. If people come to collect goods, it is clearly a
better option that they register their interest without walking out
with the cooker, fridge or whatever it is, but the person at the door
will often say, “They’re not mine.” It could
be the son who answers the door, when the goods belong to the
parents. It could be a student house, a house full
of nurses, a house full of single people or a lodging house where people
are paying to rent the room. It could be a house where people are
renting but the landlord lives on the
premises—
It
being One o’clock,
The Chairman
adjourned the Committee without Question put, pursuant
to the Standing
Order.
Adjourned
till this day at Four
o’clock.
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