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|Session 2006 - 07|
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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 Committee
Tuesday 20 March 2007
[Mrs. Joan Humble in the Chair]
Further written evidence to be reported to the House
TRI 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
Enforcement by taking control of goods
Question proposed, That the clause stand part of the Bill.
The Chairman: With this it will be convenient to consider new clause 1Enforcement 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
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.
Taking 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
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 goodsthe goods that should not be taken away from someones home. The Minister said the other day, as she did in a letter to me that she placed in the Library after Second Readingthe Government have said the same in the structure of the Billthat 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 peoples 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 childrens 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 gainany 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 someones 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.
The case involved a fish and chip shop owner who faced the bailiffs coming in. The argument herethis is the reason why I am sympathetic with those who wish to identify what is meant by constraint on somebodys ability to do the businessis 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
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, weve 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 Bills 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 Bills 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 sons 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 CABs concern is that the powers are all wound in together, and that the power of entry means that goods could be taken from peoples 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 peoples 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 individuals 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 considerperhaps 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 recognisepeople 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. Friends 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
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 respectsthe 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.
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 benot, 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 aboutI was thinking about plumbers and electricianswas 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 Swindons 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 debtors 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,
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 persons 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
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
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 dogsand 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.
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 goodsthe items that are unchangingin 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
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 formulathat is not something that anyone could argue in Committeebut 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 ]
Question accordingly negatived.
Code of conduct
3A (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 information
6A (1) Her Majestys 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 16
13A 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,
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 persona constituent of one of my colleagueswrote 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 bailifffor 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 ratesbut 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
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.
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
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 bailiffs bible. She is telling us that the bailiffs 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 sinisterthe hon. Member for North Southwark and Bermondsey is as concerned as me
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 themno one is trying to suggest that that is not the casebut, 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 arethey 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 oclock 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 systemI believe that they are called wont paysare 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.
Anne Snelgrove: I want to detail my worries about a voluntary code of conduct and the piece of paper setting out peoples rights. I do not disregard the Oppositions concern about such matters and, indeed, welcome the Conservative partys 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 companys 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 companys code of conduct, as sure as eggs is eggs he will not take notice of the Governments 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
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 lawseparate from any guidance, toolkit or manual that might be available to bailiffsto 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
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 Committees 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.
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 vulnerableliabilities must be dealt withbut 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
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 Nicholsons 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 currentlyit is proposed that this should continuerules 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 courtthose doing enforcement on behalf of the public authoritiesand 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 secretso farand 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
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 wereI suppose that some are debt collectors and are bound to muddle their rolesa quarter threatened debtors with imprisonment, which is wholly unacceptable, and 42 per cent. charged excessive fees
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 Chancellors 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.
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
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 poorthat is what we are talking aboutthey 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 peoples 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, howevernotices 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 noticesan 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 SIAs 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 SIAs 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
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 answerI am not that kind of lawyerbut 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.
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 simplerit 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 ones 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 ownmarried, 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
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 someones 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 homethe amendment makes it quite clear who they areshould 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, Theyre 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
It being One oclock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four oclock.
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