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Session 2006 - 07 Publications on the internet General Committee Debates Tribunals, Courts and Enforcement Bill [Lords] |
Tribunals, Courts and Enforcement Bill [Lords] |
The Committee consisted of the following Members:Alan
Sandall, Hannah Weston, Committee
Clerks
†
attended the Committee
Public Bill CommitteeTuesday 20 March 2007(Afternoon)[John Bercow in the Chair]Tribunals, Courts and Enforcement Bill [Lords]Schedule 12Taking
control of
goods
Amendment
proposed [this day]: No. 90, in
schedule 12, page 209, line 16, at
end insert
‘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’.—[Mr.
Bellingham.]
4
pm
Question
again proposed, That the amendment be
made.
The
Chairman:
I remind the Committee that with this we are
discussing 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.
Henry Bellingham (North-West Norfolk) (Con): It is a great
pleasure to serve again under your chairmanship, Mr. Bercow.
I am sure that the deliberations of the Committee will be presided over
with the light touch and the charm that you showed last
week.
We have already
debated the amendments and have heard what the Minister has had to say
by way of
response—
The
Chairman:
Order. To refresh the hon. Gentleman’s
memory, we are continuing the debate on an amendment initiated by the
hon. Member for North Southwark and Bermondsey. No ministerial reply
has yet been extracted and no opportunity for the Minister
to provide it has been given, but I am sure that the hon. Gentleman will
want to continue his remarks until their
conclusion.
Simon
Hughes (North Southwark and Bermondsey) (LD): With
respect, Mr. Bercow, it was not a debate that I initiated. I
was just intervening before we adjourned. I apologise if I put the hon.
Member for North-West Norfolk in the firing line, but I am grateful to
him for trying to sweep up, as it
were.
My simple point
was to ask how we could create a system wherein others in the household
can have the authority either to take responsibility for a notice, or
to accept a bailiff saying that he will take possession of the goods
but that he will leave them there, in a way that is compatible with the
fact that those people may be independent of the person in relation to
whom the obligation first arises. “It is not my
responsibility”, is a common response to bailiffs on the
doorstep and happens frequently. I described such circumstances before
we adjourned. I wonder what the Minister’s thoughts are and what
advice officials have come up with on the best way to secure both the
interests of those who are seeking to enforce their debts and ensure
that money is paid and the interests of the household. Those in the
household may be unrelated to each other and someone might wittingly or
unwittingly take responsibility without necessarily having the
authority of the person whose goods they are to do more than be the
receiver of the message. Historically, it has been a fairly intractable
question. I should be grateful to hear the hon. and learned
Lady’s views on how the matter can best be dealt with in
everyone’s
interests.
The
Parliamentary Under-Secretary of State for Constitutional Affairs (Vera
Baird):
I, too, welcome you back to the Chair,
Mr. Bercow. I echo everything that was said about your
charm.
Amendment No.
90, tabled by the hon. Member for North-West Norfolk, is not necessary.
Paragraph 28(1), to which I have already referred, stipulates that an
enforcement agent must provide a notice for the debtor on entering the
premises. We have covered that territory. Regulations will be made
under paragraph 28(2) to determine the form and content of the notice,
and further details of its contents are contained in paragraph 160 of
the statement on delegated powers. We had a gallop around that course
this morning. The notice will set out details of the debt, how it can
be paid, any charges and any avenues of appeal or complaint, all of
which are essential.
I
understand the concerns behind amendment No. 91 about not
causing undue hardship, but those, too, are covered adequately, and we
have already considered them. We will regulate to exempt goods from
seizure when they are necessary for a debtor’s basic domestic
needs. We have been through the list as it is currently composed, and I
have said that I am happy to hear representations about anything that
should be added to it for the sake of completeness and
comprehensiveness. Anything that is necessary for the basic domestic
needs of the debtor can be added to the
list, as can those things that are necessary to enable him to carry on
his business, his work or his
vocation.
Paragraph 12
of schedule 12 limits the enforcement agent to take control of goods to
the value only of the outstanding debt and any future costs. One
expects that such a provision will not result in the cleaning out of
everything except the exempt goods, except on rare occasions. I believe
that the Bill finds an appropriate balance between creditors and
debtors and will not cause undue hardship to the debtor or his family,
or impair his ability to carry on his business or education.
Amendment Nos. 92 to
94 seek to provide that a controlled goods agreement—the new
name for the walking possession arrangement that we have discussed in
those terms—can be signed by a person other than the debtor. It
is the wish of Her Majesty’s Opposition that that should be so
if a competent person who is over 18 lives on the premises or works on
them where the premises are business premises, as long as he fully
understands the consequences of the procedure. As my noble Friend
Baroness Ashton has said many times in the other place, the Bill does
not preclude the possibility of another person signing for a controlled
goods agreement. In addition, paragraph 13(3) of the schedule provides
for regulations to make further provision about taking control of goods
by way of a controlled goods agreement. I am happy to confirm that the
regulations will specify that a controlled goods agreement may be
signed by a person other than the debtor, but such regulations would
also need to clarify that that person would require the debtor’s
consent.
Lest anyone
be troubled, I shall set out how we hope the procedure will work. Where
a person on the premises volunteers to sign the agreement saying that
they have the authority to do so, the enforcement agent will have to
ascertain their relationship to the debtor and, if satisfied, may
accept the statement at face value and allow the person to sign. It is
in the debtor’s interest to allow that to happen, as the
alternative might be that the goods are removed.
Where no one on the premises is
willing to claim the authority to sign, the enforcement agent should
try to contact the debtor by telephone to explain the situation and to
ask whether the debtor can instruct someone who is present to sign the
agreement or come over to sign it in person. Where it is not possible
to authorise someone who is present or no one is willing to sign the
agreement, the enforcement agent would be within his rights to take
control of the goods immediately by securing them on the premises or by
removing them for storage and sale.
A person who could sign in
those circumstances should not be someone under the age of 18 or
someone who is incapable of understanding the serious nature and
consequences of what they are signing. All of that is intended to be
put into regulation, and given that, I hope that hon. Members will not
press their amendments to a Division.
Mr.
Bellingham:
You slightly wrong-footed me at the start of
this sitting, and I apologise for not being more on the ball,
Mr. Bercow.
I am grateful to the Minister
for that explanation. She has gone through the matter most thoroughly.
Given the spirit in which we are conducting our
proceedings and the good will that everyone has shown towards each other
so far, I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Amendment proposed: No.
95, in schedule 12, page 209, line 34, at end
insert—
‘Premises occupied by a single woman or persons under 1613A Where a
dwelling is known or believed to be occupied by a single woman or a
child under 16, no visit with the intention of seizing goods shall be
permitted unless the enforcement officer is female or is accompanied by
a female enforcement officer.’.—[Mr.
Bellingham.]
Question
put, That the amendment be
made.
The
Committee divided: Ayes 5, Noes
10.
Division
No.
3
]
AYESNOES
Question
accordingly negatived.
‘(7) Entry
without a warrant by an enforcement agent to premises containing
domestic or living accommodation is restricted to the normal methods
and places of entry used by visitors to the
premises.’.
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 98, in
schedule 12, page 210, line 28, leave
out paragraphs 17 to 22 and
insert—
‘Application for power to use reasonable force16A (2) This paragraph
applies if an enforcement agent has the power to enter the premises
under paragraph 14 or 16 or under a warrant under paragraph
15.
(3) If the creditor applies
to the court, it may issue a warrant authorising an enforcement agent
to use, if necessary, reasonable force to enter the premises for the
purpose of taking control of
goods.
(4) The court may issue
a warrant under sub-paragraph (2) only if it is satisfied that there
are exceptional
circumstances.
(5) In
considering whether to issue a warrant under sub-paragraph (2), the
court shall have regard to the matters set out in sub-paragraph
(5).
(6) Those matters
are—
(a) the nature of
the debt;
(b) whether the
debtor resides at the premises specified in the
application;
(c) whether the
debtor carries on a trade or business at those
premises;
(d) the personal and
financial circumstances of the debtor and their
family;
(e) whether the likely costs arising from execution
of the enforcement power (including, but not limited to, those costs
arising from use of reasonable force) are proportional to the
debt;
(f)
whether the creditor has, so far as it is reasonable, attempted to
enforce payment of the debt by other
means.
(7) For the purposes of
this paragraph, exceptional circumstances
are—
(a) that the debtor
has been given reasonable opportunity to repay by affordable
instalments but has deliberately or wilfully chosen not to do
so;
(b) that the debtor is not
a vulnerable person;
(c) that
there is a reasonable prospect that the sum recovered from the sale of
the debtor’s goods would be at least equal to an amount
prescribed by order of the Lord
Chancellor.
(8) Regulations
shall prescribe the circumstances in which debtors are to be defined as
vulnerable persons for the purposes of this
paragraph.
(9) The Lord
Chancellor shall consult such persons or bodies as he considers
appropriate on the content of the regulations made under sub-paragraph
(7).
(10) The court may not
issue a warrant under sub-paragraph (2) until regulations under
sub-paragraph (7) have come into
force.
(11) The court may
suspend the operation of a warrant under sub-paragraph (2) on such
terms as it sees fit on its own volition or on the application of the
debtor at any time before goods taken under control have been
sold.’.
Amendment
No. 99, in schedule 12, page 210, line 28, leave out
paragraphs 17 to 22 and
insert—
‘Preservation of common law rights restricting entry by force16A
This Act expressly preserves all common law rights restricting entry by
force to a private dwelling by a civil enforcement
agent.’.
Amendment
No. 100, in schedule 12, page 211, line 30, leave out
paragraph 24 and insert—
‘24
(1) Nothing in this Act shall permit the entry by force to a dwelling
house by a civil enforcement agent
where—
(a) the door is
locked or secured against
entry;
(b) a householder has
indicated to a civil enforcement officer or enforcement agent that such
entry is refused; or
(c)
where a dwelling is occupied or appears to be
occupied by a person or persons under 16 or by a person lacking the
mental capacity to understand the consequences of
entry.
(2) Nothing in this Act
shall allow a civil enforcement officer pursuing a fine recoverable as
a civil debt to—
(a)
search a person without their
consent;
(b) search a person of
the opposite sex;
(c) remove
items of clothing or jewellery or other wearing
apparel;
(d) remove a person
from a dwelling who has sole care of children resident in that dwelling
whether the children are physically present at that time or
not.
(3) Nothing under this Act
permits a civil enforcement officer or agent enforcing any other civil
order or judgment of the court
to—
(a) use force
against an occupier or person present in the dwelling save in as is
permitted at common law or under section 3 of the Criminal Law Act 1967
(c. 58);
(b) conduct a search
of a person in a dwelling;
(c)
remove any item of clothing, jewellery or wearing apparel or other
object from a person.’.
Amendment No. 101, in schedule
12, page 212, line 6, leave out sub-paragraph
(2).
Amendment No.
102, in schedule 12, page 212, line 8, leave out sub-paragraph
(4).
Amendment No.
103, in schedule 12, page 212, line 9, leave out sub-paragraph
(5).
Amendment No.
104, in schedule 12, page 212, line 37, leave out
sub-paragraph
(4).
Amendment No.
128, in clause 60, page 44, line 42, at end insert
‘, except those common law rules
and restrictions expressly
preserved.’.
Amendment
No. 129, in
clause 60, page 45, line 8, at
end insert—
‘(e) rules of
peaceful and forced entry and re-entry to
property.’.
Clause
60 stand part.
Mr.
Bellingham:
The amendments go to the heart of an important
part of the Bill and are vital to the powers of bailiffs. I can deal
with amendment No. 97 fairly swiftly. Our aim is to prevent bailiffs
using entry methods that might be in any way underhand or
unconscionable. Anyone who saw the recent BBC
“Whistleblower” programme on bailiffs would have noticed
with dismay bailiffs gaining access through windows and managing to get
their foot inside the door when it was half open. That is why I wish to
insert a reference to
“normal methods and places of
entry used by visitors to the
premises.”
In other
words, getting in through an attic window or a window at the back of a
house is simply not acceptable. Amendment No. 97 is a bit out on a limb
from the others in the group.
Amendment No. 98 is important.
The schedule contains the heading “General powers to use
reasonable force” and in the following paragraphs, the
Government give bailiffs a general power to use reasonable force. Our
amendment would strike out paragraphs 17 to 22, thus removing that
heading and another, “Application for power to use reasonable
force”, and the paragraphs to which they apply. We would
reinsert the title “Application for power to use reasonable
force” and our own remodelled paragraphs, which make it clear
what the bailiff can do. I shall not run through it in a lot of detail,
as it is there in the amendment for members of the Committee to look at
carefully, but I shall pick up on a few points. We say in the
amendment:
“This
paragraph applies if an enforcement agent has the power to enter the
premises under paragraph 14 or 16 or under a warrant under paragraph
15.”
Paragraph 14, of
course, concerns entry without warrant, paragraph 16 concerns re-entry
and paragraph 15 concerns entry under a warrant. The amendment goes
on:
“If the
creditor applies to the court, it may issue a warrant authorising an
enforcement agent to use, if necessary, reasonable force to enter the
premises for the purpose of taking control of goods... The court
may issue a warrant under sub-paragraph (2) only if it is satisfied
that there are exceptional
circumstances.”
I want to
put the emphasis on the requirement for exceptional
circumstances.
4.15
pm
The amendment
goes on to require that
“In considering whether
to issue a warrant under sub-paragraph (2), the court shall have regard
to the matters set out in sub-paragraph
(5)”.
Those matters are
listed in a way in which that would be helpful to the implementation of
the system, as
follows:
“Those
matters
are—
(a) the
nature of the debt
(b)
whether the debtor resides at the premises specified in the
application
(c)
whether the debtor carries on a trade or business at those
premises
(d) the
personal financial circumstances of a debtor and their
family.”
The amendment
goes on to list a few more items for consideration and goes on to
define “exceptional circumstances” as:
“(a) that the debtor has
been given a reasonable opportunity to repay by affordable instalments
but has deliberately or wilfully chosen not to do
so;
(b) that the
debtor is not a vulnerable
person;
(c) that there
is a reasonable prospect that the sum recovered from the sale of a
debtor’s goods would be at least be equal to an amount
prescribed by order of the Lord
Chancellor.”
The
amendment would also tidy up other provisions.
Amendment No. 100 would remove
paragraph 24, which appears under the title “Other provisions
about powers of entry”. Sub-paragraph (1)
states:
“The
power to enter and any power to use force are subject to any
restriction imposed by or under
regulations.”
Sub-paragraph
(2) states:
“A
power to use force does not include power to use force against persons,
except to the extent that regulations provide that it
does”
which, it seems to
me, is extremely verbose. We wish to take those paragraphs out and
insert the text of the amendment so that sub-paragraph (1) would
read:
“Nothing
in this Act shall permit the entry by force to a dwelling house by a
civil enforcement agent where...the door is locked or secured
against entry”,
which is
self-explanatory, and
“a
householder has indicated to a civil enforcement officer or enforcement
agent that such entry is refused; or...where a dwelling is
occupied or appears to be occupied by a person or persons under 16 or
by a person lacking the mental capacity to understand the consequences
of entry.”
Sub-paragraph
(2) would read:
“(2) Nothing in this Act
shall allow a civil enforcement officer pursing a fine recoverable as a
civil debt to...search a person without their
consent”—
which is
extremely
important—
“search
a person of the opposite
sex”
and, because there
have been cases in which bailiffs removed watches from the arms of
debtors,
remove items of
clothing or jewellery or other wearing
apparel”
or
“remove
a person from a dwelling who has sole care of children resident in that
dwelling whether the children are physically present at the time or
not.”
The amendment also
proposes a paragraph (3) that mentions a number of important
points.
Amendment No. 99 would preserve
the common law rights that restrict entry by force. Why is that so
important? There are a number of reasons. The Bill as it stands will
overturn two fundamental principles of our common law on
bailiffs’ power to enter private property: that bailiffs may
only enter peaceably and with the permission of the debtor. Those
rights are fundamental.
That force may not be used to
effect entry has been established in law since at least the 14th
century. The case most often cited in relation to the rule that an
Englishman’s home is his castle is Semayne’s case. That
laid down very clearly that an individual householder has every right
to deny entry to a bailiff or agent of the Crown. There have been many
famous comments on the case, but none are as well known as that from
William Pitt the Elder, first Earl of Chatham. It is a classic passage
that sums up why it is so important to preserve that part of common
law. In Southam v. Smout in 1964, Lord Denning quoted Pitt, who
said:
“The
poorest man may in his cottage bid defiance to all the forces of the
Crown. It may be frail—its roof may shake—the wind may
blow through it—the storm may enter—the rain may
enter—but the King of England cannot enter—all his force
dares not cross the threshold of the ruined
tenement”.
We know that
there are circumstances in which the police can launch dawn raids on
people’s property and in which the uniformed services of this
country can enter a property, but that established right in our common
law makes it clear that if entry is refused, force may not be used to
make that entry.
It
is worth bearing in mind that, in that respect, the pass was arguably
sold in the Domestic Violence, Crime and Victims Act 2004, which
introduced the right of forcible entry in respect of some fines levied
under that Act. We are asking for that implicit reversal of common law
to be overturned. We feel that that is important, because it goes to
the heart of the protection that people need. We are talking about some
of the most vulnerable people in society. If we are to give them more
power, surely that common law right should be
reinstated.
Simon
Hughes:
I am sympathetic to not giving up people’s
right to resist other people entering their property to enforce civil
debts and so on, but I have also believed for a long time that we ought
to codify our law so that people can find it all in one place. Is not
the weakness of the argument for keeping the common law as it is the
old problem that people will not know what the law is as clearly as if
it were all written down in one place? I do not dissent from the
objective, but I am concerned about the
means.
Mr.
Bellingham:
That is a fair point, and one could
debate it. It is a pretty academic subject, but I submit that if we use
amendment No. 99 to preserve the common law rights, combine it with
amendment No. 98—which would rewrite the application for power
to use reasonable force and which the hon. Gentleman signed, for which
I am grateful to him—and combine their provisions with the
changes made by amendment No. 100, the package that we are presenting
for inclusion in the Bill would provide extra protection, which would
not otherwise be available.
I should mention the other
common law right that the Bill will overturn. The first common law
right that I mentioned in connection with Semayne’s case is one
on which the pass was sold in the 2004 legislation, but as I understand
it, at present, entry may take place only with the permission of the
occupier. Paragraph 14 of schedule 12 aims to overturn that right, and
I ask the Minister to comment on that. I submit that if bailiffs are
granted a power to enter or remain against the wishes of the occupier,
they will actually be in a more privileged position than police
officers executing warrants of arrest, despite the fact that they will
be immeasurably less well regulated and disciplined than constables. I
find that worrying. The provision needs to be discussed and debated in
detail.
I do not want
to test your patience, Mr. Bercow, by considering what
regulation we need. I would certainly regard clauses on regulating and
rewriting the certification system as part of a wider response to the
Bill to help people in a vulnerable position. We are discussing people
who are facing crises in their lives—those who have the bailiffs
on their doorsteps. Furthermore, bailiffs are to have more rights. In
that context, it is of fundamental importance that the Bill contain
more
protection.
As
legislators we should be extremely wary of overturning common law. I
understand the comments of the hon. Member for North Southwark and
Bermondsey: common law is often difficult to understand and gives
lawyers a field day, and one can conclude that codification would be
better. However, if a Bill does not include appropriate codification,
and instead gives additional powers, the Opposition believe that it is
a retrograde step to tear up hundreds of years of common law. That is
why we are proposing the amendments.
Simon
Hughes:
I shall make a short contribution now. After that
I believe that it would be helpful if the Minister were to put on the
record her understanding both of the current legal position regarding
citizens’ right not to open their doors and let people in, and
of the effect of the proposed change. The provisions that we are
considering are the most controversial in the Bill, and they combine
two elements. The first relates to the rights that people have to stop
others entering their property, and the second to the occasions on
which someone seeking entry has a right to use reasonable force. Will
the Minister explain the current status of the law and its defects, as
well as, in the context of amendment No. 98, the reason why paragraphs
17 to 22 and the following paragraphs should remain in the
Bill?
All the
representations that I have seen suggest that bailiffs and the rest of
the enforcement fraternity do not want an additional right to use
reasonable force. They do not want to use any more force than the
criminal law allows. They fear that if they are given the right to use
reasonable force, altercations might be precipitated that might
escalate and make matters worse. At present, if someone lawfully enters
a house and someone else attacks them unreasonably, they are justified
in using force to defend themselves. However, my understanding is that
there is no lobby for the statutory availability of greater powers to
use force, as is being proposed.
Vera
Baird:
The provision is not about the use of force on
people. I do not think that bailiffs want the right to use force on
people, although there is an existing power for certain people to use
it. We are talking about the use of force only when a warrant has been
applied for and the judge has allowed it.
Simon
Hughes:
That is right. There are two species of force: the
force to kick the door in, and the force to deal with something
thereafter. As far as I know, the bailiffs are saying that they do not
want any additional powers in relation to people whom they encounter in
properties.
Jenny
Willott (Cardiff, Central) (LD): Does my hon. Friend agree
that this debate relates to the one we had this morning on codes of
conduct and on bailiffs who either do or do not conform to the rules?
If extra powers are provided to bailiffs, the people who are most
likely to abuse them are those who are already not behaving as they
should.
Simon
Hughes:
I am sure that that is correct. People who make
representations to us as Members of Parliament often make the point
that some people exceed the limit, although there are many who do their
job
competently.
4.30
pm
Mr.
David Kidney (Stafford) (Lab): I was not sure what the
hon. Gentleman meant when he said that no one wants the extra power. We
have a memorandum—TRI 6—from Barrie Minney, who chairs
the local authority civil enforcement forum, expressing strong approval
for the extra power:
“We agree that force
(with a court order) is needed for those professional debt avoiders who
can simply circumvent the law by not answering the door or hiding
behind locked gates.”
Simon
Hughes:
My understanding is that there is wish in some
circumstances for the enforcement agents to be able to get through the
door. However, people do not want the agents to have any additional
powers to do anything to anyone behind the door. I therefore think that
there is an agreement between us. I am not dissenting from the
Minister’s or the hon. Gentleman’s proposition that there
are two
issues.
Vera
Baird:
As other people will hear and read the report of
this debate, it is very important to make it clear that we are not
talking about the use of force against people. We are talking about an
application to a judge to be permitted to use reasonable force to gain
entry under very confined circumstances, which we will talk about in a
minute. It is terribly important that we do not muddle the two uses of
force or we will mislead the public and worry them completely
unnecessarily.
Simon
Hughes:
I am happy to ring-fence the debates separately.
May I make two additional points? In this group, amendment No. 97 makes
it clear that entry by an agent is restricted to what is described
as
“normal methods and
places of entry used by visitors”.
I hope that the Minister will be
sympathetic to that; it is the conventional argument. If an agent is
seeking entry, they should do so by knocking at the door or at the
French windows—they are doors as well—but it is not
acceptable for an agent to seek to get in by a window, a skylight, or
by the top window on the latch. They have to get in
conventionally.
My
last point relates to the comment I made this morning about the
confusing nature of this part of the schedule. I was not seeking to
damn the whole of schedule 12. However, the sequence in this part of
the schedule and in paragraph 14 is confusing. I can see how the
draftspeople have sought to put this on paper. We start with a section
called “Entry without warrant”, then “Entry under
warrant” and then “Re-entry”. I understand that
triple division. Then there are paragraphs on
“General powers to use reasonable
force”.
Anyone who does
not carry around a copy of “Halsbury’s Statutes”
would probably not understand what that means, because it implies that
there is a general reference to powers to enter the premises under two
earlier paragraphs or under a warrant under another paragraph. There is
then a power to enter under an enforcement power conferred by the
Magistrates’ Courts Act 1980 and another power, which is an
entitlement to execute the warrant by virtue of two other sections of
the 1980 Act. Then there is a whole set of conditions.
The schedule then goes back to
talk out of sequence about the fact that an agent would need to apply
for permission. Therefore, if we are really trying to clarify the law
and represent what the public wants, we must start with the presumption
that people cannot enter someone else’s property. After that, we
have to set out the occasions when they can. Before that, however, we
need to set out the procedure that gives people permission to enter
someone else’s property. Therefore, we say that people cannot
come in.
If an agent
goes to court, however, and makes the case—that is the subject
of another amendment in this group—and they persuade the judge
of the circumstances, they will be given permission to go in. If the
agent goes in, they are entitled to go in by the front door or the
French windows. They are even entitled to push the door in. I make my
case for that in a constructive way. That is one of the most
fundamental bits of our unwritten constitution. The civil liberties of
people in their own homes include having their own territory, which is
not entered into by other people, other than in the most exceptional
circumstances.
If I,
like the Minister, am arguing that we should seek to consolidate and
codify—I generally start from that proposition—we need to
be doubly clear about what we mean. If the legislation goes through, my
presumption is that common law will not be as easily prayed in aid, so
we must ensure that the guarantees that make the Englishman’s
home his castle—or, as discussed in the Lords, the
Welshman’s home his castle—are defined in a way that
everyone understands. That is my reflection. Will the Minister help us
by setting out the law, common law and all, and the changes to the law
and whether we are right in thinking that the measure disadvantages the
civil liberties of a citizen, because it takes away some of their
current rights?
Mr.
Richard Benyon (Newbury) (Con): Before the Minister
responds, I draw her attention to the amendment’s key words,
which are that entry to
the
“accommodation is
restricted to the normal methods...of entry used by visitors to
the premises.”
The
amendment would exclude the types of entry through different points of
the house that the hon. Member for North Southwark and Bermondsey
discussed, and it would be a vital addition to the
Bill.
Emily
Thornberry (Islington, South and Finsbury) (Lab): Will my
hon. and learned Friend help with an aspect of the matter? I am
concerned that, immediately after the Bill becomes law, bailiffs will
not be regulated by the Security Industry Authority, so will she
consider withholding their right to enter premises using reasonable
force until they are regulated by the
SIA?
Vera
Baird:
I should be intrigued to know what it said. I shall
deal with that point presently, but my hon. Friend has put her finger
on the next point with characteristic accuracy. It is highly germane to
the amendment, and I shall state the Government’s position.
First, the hon. Member for North-West Norfolk referred to what he
called a separate point in amendment No. 97, to which the hon. Member
for Newbury has just referred. The amendment would restrict entry to
normal methods of entry—through doors and French windows. We
will undertake exactly that provision, and regulations in paragraph
14(3) will restrict that entry.
The remaining amendments in the
group are amendments Nos. 97, 99, 128 and 129, and the hon. Member for
North-West Norfolk has said little enough about the latter two. Their
essence is the preservation of common law rights, but the trouble is
that, if those rights are preserved, they will also preserve the modes
of entry discussed by the hon. Member for North Southwark and
Bermondsey. In certain circumstances, using a skylight or getting a
foot in the door to enter are not violations of the law, but elements
of the common law that bailiffs have gained over the years. It is
imperative that we repeal and take out of use all that common law, so
that there is no mistaking bailiffs’ powers, which will comprise
those in schedule 12 and in the Bill, and no others at all. That is the
way forward.
Mr.
Bellingham:
If entry to a premises by what I would
describe as unconventional methods is established in common law, I
accept entirely what the Minister says. However, I should like her to
focus on the two areas of common law in which force may not be used to
effect entry and in which entry may not take place without the
occupier’s permission, because they are fundamental. Although
much of the Bill’s codification is welcomed, if those two extra
items of common law were preserved, we would have a stronger Bill that
worked better in the interests of the wider
public.
Vera
Baird:
I thought I had made it clear that if we were to
preserve the common law as the amendments request, we would preserve
the queer old precedents
that allow people to put their foot through the skylight and enter. They
are odd cases that have occurred over the years, and this stuff is very
old, as everybody has conceded, but the notion that oldness and
veneration are virtues is completely misplaced when it comes to such
matters. We must prescribe the way in which people can enter the
property and totally erase from the law the remaining modes of
entry.
Mr.
Bellingham:
The Minister is being very patient. We do not
want to turn this debate into a lawyer’s discussion, although I
appreciate that she is a learned QC and I am only an unknown junior.
Would she be more sympathetic to the amendment if we had proposed
preserving one or two of the more fundamental common-law rights, rather
than all of them? I entirely take on board her point about preserving
all common-law rights, because doing so would have the consequences
that she has outlined. In the spirit of a probing amendment, we are
discussing the issues around the amendment, so would the Minister be
happy to preserve any of the common-law rights that currently
apply?
Vera
Baird:
No; the purpose of the legislation, as has been
said many times, is to consolidate and clarify bailiff law and put it
all in one place. It should be in everyone’s interests that that
law should be easily accessible, in much the same way as we discussed
during this morning’s sitting the need for complete
accessibility to what the law is generally.
It is the long-standing
objective of the civil enforcement review to make enforcement law
completely straightforward and understandable, and the Bill will
achieve that. It will put in one piece of legislation a consolidated
code of enforcement agent law, setting out the legal structure for
virtually all the enforcement of civil debts, judgments and criminal
fines. The Bill is written in terms that clearly outline the rights and
responsibilities of creditors, debtors and enforcement agents alike,
and it is written in good statutory language.
Even picking
and choosing which common-law rights to retain—that is certainly
not what the amendment provides for—would run contrary to the
main objective of the Bill. One would then have to run through the
precedents to try to find out whether somebody was indeed allowed to
make a queer entry in 1384, or whether we had repealed that
incidentally, as part of getting rid of another precedent. Chapter 1 of
part 3 will replace all the common-law rules on the exercise of the
powers that, under chapter 3, will become the powers to use the
procedure as set out in schedule 12. That is the situation, and it is
our deliberate
intention.
The hon.
Member for North-West Norfolk talked about paragraph 14 of schedule 12
overturning the common law that a debtor’s permission is needed.
Under paragraph 14, a debtor must agree to entry when an approach is
first made, so people cannot disregard the need for a person’s
authority to enter. They must ask first and then use the powers under
paragraph 14. People will be able to apply to the court only if they
cannot gain entry in any other way. However, people cannot disregard
what a creditor says
and run in—of course not; they should try peaceful means first,
and if the creditor agrees, that is the end of the matter.
Most people agree to let
bailiffs in for the purposes of making an inventory or enforcing a
controlled goods agreement. If the creditor does not agree, however,
one has recourse to the court. Only the court can authorise a single
step further. It is hugely important to say that strongly and
repeatedly. Although it has been put out by responsible bodies, an
impression has been created at large that we are licensing bailiffs to
knock once and then break in. That is completely contrary to what we
are
doing.
Simon
Hughes:
My hon. Friend the Member for Cardiff, Central
just pointed out to me that the sequence that the Minister has
described is not clearly set out in the schedule. The sequence that she
has outlined is that the bailiff can knock on the door and is allowed
to enter if given permission to do so by the person behind it. That is
obvious—it would apply to anyone knocking on a door. If the
person behind the door lets them in, they can go in. However, it is not
clear what right the citizen has to ask, “Who are you?”
and if the answer is “I’m a bailiff” to say,
“I’m not letting you in”, or what sequence of
events would have to happen next for that to be overruled. I put it to
the Minister that nobody reading the schedule would discover that. I am
with her in wanting to consolidate matters, but I ask her to look again
at the proposal, because it does not match the sequence that she
has set out.
4.45
pm
“If an enforcement agent
applies to the court it may issue a
warrant”.
It
continues:
“Before issuing the
warrant the court must be satisfied that...conditions are
met”.
It then sets out
the conditions, the situation in which there may be re-entry and the
general power to use reasonable force. It provides that the application
to use reasonable force may be made if such authority exists under
paragraphs 14, 15 or 16—I particularly alluded to paragraph
15—and it goes on to say that a person may make an application
and there will be certain conditions, and so on. It is as clear as day
that a person has a right to do what they have to do, either under
warrant or in some other way. If they need further powers they must
apply to the court, when the conditions under which the court can even
consider their application come into play. That is not only
transparently clear as a sequence, but it is actually in sequence, so
it is not difficult to
follow.
I
want to mention a couple of other aspects of common law raised by the
hon. Member for North-West Norfolk. Common law allows forced entry to
commercial premises and forced re-entry to domestic premises in certain
circumstances. If a person has obtained, under the ordinary provisions
and with the individual’s permission, a walking possession
agreement—its name will soon change—and they withdraw
satisfied that the goods are secure but is then refused further entry,
they have a
power to break in. The Englishman’s castle is not totally
surrounded by a moat and high wall, as envisaged by Opposition Members
and various propagandists against the proposals, who, I venture to
suggest, have not entirely followed their
purpose.
This
Englishwoman wants to have a right to enforce her debts against
somebody and she does not want that person, whoever he may be, to be
able to defy her for ever, simply by closing his front door, when he
owes her money. This Englishwoman wants a right to be able to apply to
a judge and say, “May my bailiff have permission under very
restricted circumstances to break in to get my money back?” That
is what the proposal is about, and only that.
I want to mention one more
thing before I turn to the change in powers. There has been much fairly
casual reference to the increase in bailiff powers. The phrase
“reasonable force” was also bandied about, although the
hon. Member for North Southwark and Bermondsey and I have agreed that
we are talking only about force to break in. I make it clear that there
are no increases in bailiff powers in the Bill, save for this one: if,
in due course, there is a consultation exercise and anyone wants the
ability to use restraining force on an individual, that will be a
completely separate matter, and we will consult on it and consider it.
My best guess is that nobody would want that ability, as the right of
self-defence is sufficient to satisfy most people who have to deal with
others in heated situations.
I want to make it clear that
loose talk about increases in powers is inappropriate, because this
power is the only one and it is extremely heavily regulated, as I will
now describe. Its use must be fair and reasonable. It cannot be right
for a debtor to evade payment just by closing the door, thus making a
mockery of the creditor and the judge who has ruled that the debtor
must pay and of every other means of enforcing the will of justice
against that debtor. That simply cannot be
right.
If there is to
be a right to enter someone’s premises as a last resort, it must
be very carefully regulated. That is exactly what the Bill
allows—a heavily circumscribed power of entry, using reasonable
force, with prior judicial authority. The necessary conditions for that
power include those to which I have alluded: under paragraphs 14, 16 or
15, a power to apply for consent to enter must already be in place,
which, in some circumstances, will require going to court for an
express warrant to enter the premises with consent. Those statutory
requirements must be complied with first.
After those conditions are met,
an application must be made to a judge. As all hon. Members who were
present on Second Reading know, there is a strict list of conditions to
which a judge must have regard before he or she can consider granting
leave to enter. They are outlined in paragraphs 149 and 150 of our
detailed policy statement on delegated powers, and they will be put
into regulations. If hon. Members think that further restrictions are
necessary, they should let us know and we will consider them. I had a
meeting with the citizens advice bureaux yesterday, and I think that I
satisfied them that those conditions will be enough, but that is not
the last word.
As a condition, the judge will
have to be satisfied
“that other methods of enforcement
have failed”.
That
probably ought to come into regulations as a satisfaction that all
other methods of enforcement have failed. The judge must be sure
that
“the
property is inhabited by the debtor; normal entry attempts have been
unsuccessful; there is reason to believe there are suitable goods on
the premises to satisfy the debt (and evidence to support that belief);
the enforcement agent has considered the likely means required to gain
entry”—
the judge
will want to know what that
is—
“and the
enforcement agent will leave the property in a secure
state.”
All those
conditions that must apply before the judge will even consider granting
a right of forced entry. At present, paragraph 150 says that the
judge
“may also take
other factors into account when making his decision, including: the
size of the debt; the type of debt; and any other information about the
debtor’s personal
circumstances.”
Mr.
Brooks Newmark (Braintree) (Con): I am not a lawyer, so I
hope that the hon. and learned Lady will be patient with my question.
She talked about the enforcement of debts and bailiffs’ rights.
Can bailiffs use force in a different way when dealing with a fine, as
opposed to an ordinary civil debt? Are there differences in
bailiffs’ rights to try to get hold of assets, force their way
into a house or anything like that with respect to a
fine?
Vera
Baird:
Yes. There is a power in the Domestic Violence,
Crime and Victims Act 2004 for the enforcement of a fine by reasonable
force, but that is not what we are talking about at the moment. We are
talking about the proposal to give a bailiff enforcing power against a
civil creditor, not a criminal fine debtor. I shall carry on to discuss
that power, which is the new power in schedule 12. The other power is
not new. It has been in force since 2004, and it has presumably felt
the approbation of all parties—it did, as I
recall.
Mr.
Newmark:
I am still not clear. Will the Minister explain
why there is a difference in the powers? I think that I am hearing that
bailiffs can use force to get assets for a fine, as opposed to a civil
debt. Why does that distinction exist, as she seems to be
implying?
Vera
Baird:
I am not implying anything. I am telling the hon.
Gentleman that a power in the 2004 Act will now exist in the Bill. The
power to enforce a fine by entry using reasonable force has been in
existence since 2004. It has been that long since the
Englishman’s castle crumbled around his
ears.
I turn to the
powers in the Bill, which is what we are
discussing.
Simon
Hughes:
I want to pursue this question. I understand that
the Minister wants to talk about the powers in the Bill, but we are
talking about enforcement and bailiffs in the Bill as a whole. The
Minister argued that the Government want to put everything together, so
there seems to be a strong argument for putting all powers under
English and Welsh law in the same Bill from now on and for repealing
all previous legislation dealing with that—both common law and
the Domestic Violence, Crime and Victims Act 2004—and then
making a political decision on whether we want one form of process,
irrespective of whether the debt arises from a criminal fine or a civil
bailiff, or two different forms of process. What is the argument
against putting everything in the Bill and having one form of
process?
Vera
Baird:
There is no argument against that, and it is in the
Bill. We have repealed, or will repeal, the provision and have put it
in the Bill for the sake of having everything under one roof. That is
important, because a great deal of concern has been raised about the
exercise of the powers, and it must be made clear how they will
function.
I
was about to say something that needs saying. In our original
proposals, the detailed policy statement on how we intend to use our
delegated powers set out two circumstances that the judge must look at
before granting the right to use reasonable force to enter. I have set
out all the conditions that he must consider. It is also provided that
the judge may then take other factors into account when making his
decision, including the size of the debt, the type of debt and any
other information about the debtor’s personal circumstances.
Clearly, the third of the relevant paragraphs is the important one, and
I was able to assure a Labour Member on Second Reading that the
phrase
“any other
information about the debtor’s personal
circumstances”
was
intended to embrace all aspects of vulnerability that he then raised
and which are recorded in Hansard. I have made it clear that the
terminology is intended to be very
wide.
I proposed to
Citizens Advice yesterday that we should change the reference in the
policy statement that
“The judge may also take
other factors into account when making his
decision”,
so that the
judge must take those factors into account, to make the
individual’s vulnerability—the size and type of
debt—a first order consideration and not an additional one. That
is important, and it will ensure that people are comfortable that a
judge must take into account every aspect of the individual when
considering whether reasonable force may be used to enter their house.
All their vulnerabilities will be taken into account before a judge
allows the use of
force.
Furthermore,
the judge may put conditions on the entry power. I note that when an
application is granted under paragraph 20(2) of schedule 12—this
plays on an issue raised by the hon. Member for North-West Norfolk this
morning—the warrant given to the bailiff may require a constable
to assist the enforcement agent to execute the warrant. Paragraph 22
refers to “any constable”, which may be a useful adjunct
in the
circumstance that the hon. Gentleman was worried about this
morning—namely, that if it were known that the debtor was a
women on her own or a women with children in the house, one could
ensure that a police officer also attended, preferably a female
officer. All sorts of conditions can be imposed to ensure that there is
no disproportionate treatment of anyone, whether vulnerable or not, but
that is particularly important when vulnerable people are
involved.
My hon.
Friend the Member for Islington, South and Finsbury raised a hugely
important point. It has not yet had much airspace because it is yet to
be discussed, but the Government envisage the question of regulated
bailiffs as a double-decker process. As is well known, the Security
Industry Authority was not ready to take the responsibility to regulate
bailiffs, so that they could be part and parcel of the
Bill.
5
pm
There will be
what I call a beefed-up version of the county court certification
process. That will require a lot of investigation by a county court
judge before he certifies a bailiff and the training to which I have
alluded in diversity, vulnerability and dealing with conflict
resolution. It should be a powerful source of regulation, but it will
not be as good as when bailiffs are regulated properly within the ambit
of the Private Security Industry Act 2001. The regulation will then be
as tight as one could hope and will provide as good a set of
protections as my hon. Friend the Member for South Swindon rightly said
that the SIA has given to doormen.
I intend that the power even to
apply to use reasonable force in domestic premises should not come into
force until the industry is properly regulated by the SIA. That is a
useful reassurance, and I hope that it comforts those who have been
concerned. That seems to be what the press release mentioned by the
hon. Member for North Southwark and Bermondsey said before I even
announced it. He is quite a remarkable man.
Anne
Snelgrove (South Swindon) (Lab): I thank my hon. and
learned Friend for that reassurance. She will know from our discussions
this morning that concerns have been raised with me by my citizens
advice bureau about the powers of the SIA. It will reassure citizens
advice bureaux up and down the country if the regulations will not come
into force until the SIA is ready to take them
on.
Vera
Baird:
I need to make it clear that what will not come
into force is the new power to apply for reasonable force to gain
entry. The application of the power under the Domestic Violence, Crime
and Victims Act 2004, which is to be transferred to this legislation,
will not be affected. Only that single example of how bailiffs’
powers will be increased in the Bill will not come into force until the
industry is regulated by the SIA.
I talked about amendment No.
97. The rest of the concerns of the hon. Member for North-West Norfolk
rested—I am not being unkind—on tinkering with the
conditions under which we have said judges may grant the warrants and
putting those conditions on the face
of the Bill. We think that it is better not to have them in the Bill but
to have them in clearly set out regulatory forms, so that they can be
changed if they need to be. It is not impossible that we will put the
provisions into regulations and find that we want to add something
more. We could do that if they were in regulations, and we would not
have to legislate.
Amendment No. 100 concerns the
powers to enforce a criminal fine. We intend not to reduce or remove
the powers in the Domestic Violence, Crime and Victims Act, but to
bring them into the Bill. The introduction of those powers has played
an important role in the ongoing improvement in the recovery levels for
unpaid fines. My understanding is that the powers have not been used
often, but the fact that they exist has played a significant role. As
my hon. Friend the Under-Secretary of State for Wales said in closing
the debate on Second Reading, they have been used sparingly.
There is no intention to
introduce any new power that would allow physical body searches on a
debtor, or forcible coercion for the removal of clothing or jewellery
or wedding rings; neither is there any intention to force debtors to do
anything against their will. That includes not removing debtors from
premises and not escorting them to other premises where they might be
holding goods.
I am
not sure whether the hon. Member for North-West Norfolk addressed
amendment No. 101 and the following amendments in the
group.
Mr.
Bellingham:
In fact, amendments Nos. 101 to 104 are all
concerned with consequential deletions, as are amendments Nos. 128 and
129. They flow from the earlier key amendments, which I
addressed.
Vera
Baird:
One or two of them go a tiny bit further. For
instance, amendment No. 101 would restrict the people who were
permitted to accompany an enforcement agent on entry. The point of
allowing agents to be accompanied is that if one goes into large
business premises to take an inventory, one needs to take another
person, or possibly two or three people. For that reason, we do not
want the amendment to proceed. The enforcement agent would of course be
responsible for the actions of those who accompanied him to assist in
the exercise of his powers unless those accompanying the agent did
something absolutely outwith the ambit of the exercise. If an
individual hit somebody, for instance, it would be he rather than the
bailiff who was responsible.
It is sometimes necessary to
take a locksmith to assist with the removal of locks and thereby avoid
a more brutal, forced entry. Enforcement agents therefore need to be
able to call for assistance. Amendments Nos. 102 and 103 would restrict
their ability to take equipment on to premises and, if necessary, leave
it there. However, the type and nature of the goods and assets in the
commercial and industrial premises of some large-scale businesses mean
that an enforcement agent often has to take equipment on to premises to
get access to goods, take control of them or secure or immobilise them.
That might require the carrying of tools for the purpose and the
leaving of equipment on the premises. There seems to be no reason why
we should restrict that ability—it is part and parcel of
entering premises.
Amendment No. 104 concerns the
way in which reasonable force can be used to control goods on the
highway, but the hon. Member for North-West Norfolk has not mentioned
it at all, so I imagine that having probed what he wanted to probe by
means of the other amendments he intends not to press
it.
I
hope that hon. Members now feel secure that the single increase in
bailiff power will not come into force until the whole industry is
properly regulated and governed by a judge. That judge
will—himself or herself—operate under strict conditions,
including a requirement to have due regard to the vulnerability of the
individuals involved. I hope that the amendments will therefore not be
pressed.
Simon
Hughes:
In answer to the
Minister’s question, it was not my press release or news release
from the Department for Constitutional Affairs—it was hers. It
is not timed, but it has today’s date. It gave me the exciting
anticipation that the Minister was going to make an announcement. It
also meant that the question planted with the hon. Member for
Islington, South and Finsbury was entirely expected, and I was ready
for it. Nevertheless, I am very glad that we had both the paper version
and the spoken words on the same
day.
As
to the substance of the matter, I am pleased that, regardless of our
debate on the merits, the Minister has accepted that the powers will
not come into force until the new system is in place. I shall talk to
my colleagues and no doubt the hon. Member for North-West Norfolk will
talk to his. I think that the Minister is right—the powers
passed by Parliament under the 2004 Act were in general
supported across the House. There may be a view that they ought also to
be encompassed in the general regulatory framework, but that is a
matter to which Liberal Democrat Members will return.
The Minister has been
straightforward in telling the Committee that the proposal is a step
forward and puts on a statutory basis further powers for bailiffs to
obtain permission from the courts to enter people’s houses in
certain circumstances. That is clearly the case. I know that the
Minister has not accepted the point, and I shall not argue line by line
with her now, but my hon. Friend the Member for Cardiff, Central and I
still contend, as would most people who examined the proposals, that
the schedule, the sequence and the conditions could be much clearer and
much more
straightforward.
I,
too, have examined the detailed policy statements and delegated powers
that anticipate what is coming. I am glad that the Minister anticipates
saying that judges “must” rather than “may”
take things into account. The more I hear of this debate, the more I am
clear about the fact that the conditions that the judge must apply
before granting permission should be in the Bill. Unless I have
misinterpreted things, that is exactly what the Joint Committee on
Human Rights said when it examined this part of the legislation. I
understand that it recommended that both Houses examine these matters
again, using the normal and fairly courteous phrase that it draws them
to the “attention of both Houses”. It clearly argues that
such conditions ought to be in the Bill.
Paragraph 2.31 of that
Committee’s fifth report of session 2006-07, published on 12
February, states:
“We reiterate our view
that where safeguards are necessary to ensure the protection of
Convention rights, those safeguards
ought to be clearly identified on the face of the Bill. In cases where
the State is using, or authorising the use of, intrusive powers such as
entry, search and seizure, we consider that the case for including
minimum safeguards (such as the requirement that an enforcement agent
should identify himself and the authority for his entry the premises to
an occupier without need for a request; the minimum period of notice
required; the requirement that entry take place at a
‘reasonable’ time, and protection for material subject to
legal professional privilege) on the face of primary legislation is
particularly strong. We draw this to the attention of both
Houses.”
I
accept that many of those things are in the schedule, but people ought
to be able to find the law setting out what happens when somebody goes
to court requesting permission to enter the house of Vera Baird QC MP,
John Bercow MP or Henry Bellingham MP in an Act of Parliament, so that
they know the score and the process. Such things are not variables, and
we will not be coming back to them every two minutes; they are not
detailed procedural matters.
The sorts of things that seem
to be fundamental preconditions, without prejudice to the general
argument, are: that other methods of enforcement have failed; that the
property is inhabited by the debtor; that normal entry attempts have
been unsuccessful; and that there is reason to believe that suitable
goods should be on the premises. I see no reason why such things cannot
be provided for in the Bill.
I am not one of those people
who argue that we have more and more legislation and more and more
stuff in it, but people’s rights and liberties—the right
of people to close their door to someone and the right of others to
enter a person’s home—are among the rare cases where one
should start from the presumption that the relevant provision is made
in an Act of Parliament that someone can refer to, examine and
know.
As the hon.
Member for North-West Norfolk started by saying, we are discussing an
area of great legal tradition and the historic and famous presumption
that an Englishman’s home is his castle. If we are changing
that, even in limited additional circumstances, we must do so
explicitly in the Bill, and not in regulations, whenever they may come
into
force.
5.15
pm
Mr.
Bellingham:
We obviously need to try to make some
progress. I appreciate what the Minister said about a judge having to
take into consideration what will be in the regulations and common law.
We could debate this for a long time. In spite of what she
said—I support the argument of the hon. Member for North
Southwark and Bermondsey—many of the provisions under the
headings “General powers to use reasonable force” and
“Application for power to use reasonable force” are
vague. The schedule gives substantial new powers and, even having
listened to the hon. and learned Lady, I believe that there is an
argument for her accepting amendment No. 98 to which the hon. Member
for North Southwark and Bermondsey has added his name. It is our wish
to press it to a Division so, on that basis, I want to withdraw
amendments Nos. 97, 99, 100, 101, 102, 103, 104, 128 and
129.
However, I wish
to put some quick points to the Minister. We have discussed force being
used, but the
Bill prohibits force against a person by bailiffs unless permitted by
regulations. My concern is that regulations might permit restraint
against debtors who interfere with the seizure of their goods.
Different trade associations were worried about that force. What effect
will the new proposal have on Wheatham orders that have been signed by
magistrates courts? Will the Minister clarify the situation? Despite
what she has said, I am not satisfied with the response that we have
received to amendment No. 98 because the way in which this part of the
Bill is written will provide more specific
protection.
Vera
Baird:
I shall deal first with the issues raised by the
Joint Committee on Human Rights, and will quote what it said as the
hon. Member for North Southwark and Bermondsey did. It
stated:
“In
cases where the State is using, or authorising the use of, intrusive
powers...minimum safeguards (such as the requirement that an
enforcement agent should identify himself and the authority for his
entry on the premises to an occupier without need for a request; the
minimum period of notice required; the requirement that entry take
place at a ‘reasonable’ time, and protection for material
subject to legal professional
privilege)”
should be
included on the face of the Bill.
Paragraph 26 states that the
enforcement agent should be asked to prove his identity. He has to show
his authority to be on the premises. Under paragraph 8, he must provide
a notice as to what he is doing when he has entered the premises. The
times when an enforcement agent can call will be contained within
regulations, for the sake of flexibility. Again, that seems pretty
sensible. We have met the demands of the JCHR, save for the protection
of materials subject to legal professional privilege, which is a fairly
arcane point to make. It is pretty unlikely that materials subject to
legal professional privilege are likely to be the target of a bailiff
looking for assets to realise or to freeze for future
realisation.
I do not
know what the hon. Member for North-West Norfolk meant when he referred
to a Wheatham order. I shall ask him for clarification after our
proceedings and write to him. If it is of more general relevance, I
shall write to all members of the
Committee.
Last week,
the hon. Member for North Southwark and Bermondsey criticised the Bill
for having too much in it. He is now criticising it this week for not
having enough in it. We are satisfied that we have got the correct
balance, and I commend the schedule to the
Committee.
Amendment,
by leave,
withdrawn.
Amendment
proposed: No. 98, in schedule 12, page 210, line 28, leave
out paragraphs 17 to 22 and
insert—
‘Application for power to use reasonable force16A (2) This paragraph
applies if an enforcement agent has the power to enter the premises
under paragraph 14 or 16 or under a warrant under paragraph
15.
(3) If the creditor applies to the court, it may
issue a warrant authorising an enforcement agent to use, if necessary,
reasonable force to enter the premises for the purpose of taking
control of goods.
(4) The court
may issue a warrant under sub-paragraph (2) only if it is satisfied
that there are exceptional
circumstances.
(5) In
considering whether to issue a warrant under sub-paragraph (2), the
court shall have regard to the matters set out in sub-paragraph
(5).
(6) Those matters
are—
(a) the nature of
the debt;
(b) whether the
debtor resides at the premises specified in the
application;
(c) whether the
debtor carries on a trade or business at those
premises;
(d) the personal and
financial circumstances of the debtor and their
family;
(e) whether the likely
costs arising from execution of the enforcement power (including, but
not limited to, those costs arising from use of reasonable force) are
proportional to the debt;
(f)
whether the creditor has, so far as it is reasonable, attempted to
enforce payment of the debt by other
means.
(7) For the purposes of
this paragraph, exceptional circumstances
are—
(a) that the debtor
has been given reasonable opportunity to repay by affordable
instalments but has deliberately or wilfully chosen not to do
so;
(b) that the debtor is not
a vulnerable person;
(c) that
there is a reasonable prospect that the sum recovered from the sale of
the debtor’s goods would be at least equal to an amount
prescribed by order of the Lord
Chancellor.
(8) Regulations
shall prescribe the circumstances in which debtors are to be defined as
vulnerable persons for the purposes of this
paragraph.
(9) The Lord
Chancellor shall consult such persons or bodies as he considers
appropriate on the content of the regulations made under sub-paragraph
(7).
(10) The court may not
issue a warrant under sub-paragraph (2) until regulations under
sub-paragraph (7) have come into
force.
(11) The court may
suspend the operation of a warrant under sub-paragraph (2) on such
terms as it sees fit on its own volition or on the application of the
debtor at any time before goods taken under control have been
sold.’.—[Mr.
Bellingham.]
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 6, Noes
9.
Division
No.
4
]
AYESNOES
Question
accordingly negatived.
‘(3) Where an enforcement agent seizes a sum
in cash it must be accounted for, receipts must be issued, and the
creditor and the court must be
notified.’.
We
will try to make some progress, because we still have much important
business to discuss. The amendment, which stands in my name and in
those of my hon. Friends on the Opposition Benches, is simple. It would
insert:
“(3) Where an enforcement
agent seizes a sum in cash it must be accounted for, receipts must be
issued, and the creditor and the court must be
notified.”
Mr.
Bercow, you may call me pedantic, but several organisations have
advised me that in the past, there has been a problem with bailiffs
accounting for cash that they have received, so the amendment—a
probing amendment—would afford that extra protection, which we
feel is most necessary.
Vera
Baird:
Amendment No. 105 has been covered in the other
place. Baroness Ashton said in Grand Committee that the regulations
made under paragraph 34(4), covering the inventory of goods to be given
to the debtor when goods are seized, will include the provision for
ensuring that the inventory takes the form of a receipt for any cash
that an enforcement agent takes. I am happy to restate that commitment
today.
I should add,
however, that the schedule also deals with non-court debts such as tax
and commercial rents, so it would not make sense for an enforcement
agent enforcing those debts to have to notify a court when taking money
from a debtor. The amendment would therefore be misplaced.
Notwithstanding that fact, I hope that the reassurance that I have
given the hon. Gentleman will persuade him to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Question proposed, That
this schedule be the Twelfth schedule to the
Bill.
Mr.
Kidney:
It is a pleasure to serve on a Committee chaired
by you, Mr. Bercow, with your assured touch and good humour.
Although you were not present this morning, I shall treasure for a very
long time the praise that I received from my hon. and learned Friend
the Minister for my perspicacity. However, on the very point to which
she referred, I should like to ask her a question before we approve the
schedule.
This
morning we discussed offences, and paragraph 68 includes a couple of
offences that relate to the obstruction of enforcement agents carrying
out their lawful duties. My hon. and learned Friend mentioned paragraph
66 as including the remedies that are available to a debtor who feels
wronged by the actions of an enforcement agent. I thought that she had
said “offences”, and that it was a slip of the tongue,
but when I pointed it out, she said that she had meant
“remedies”.
Paragraph 62 is about cost, and
my hon. and learned Friend said this morning that there will be
regulations so that enforcement agents do not make up fees that they
say they are entitled to receive. In my time as an MP, the most common
complaint has been from
constituents on the receiving end of such enforcement action, and in
fact, the most recent complaint was at my advice surgery just last
month, so it is a current and constant matter. My hon. and learned
Friend quoted some statistics about a high proportion of complaints on
that point, so when we have regulations that say that someone cannot
abuse their position of authority as an enforcement agent by claiming
costs and charges beyond the regulations, what will be the remedy? Will
debtors have to go to county court to stop them claiming that money, or
will they be able to do something more?
I would like to think that in
the most abusive cases a criminal offence will be deemed to have been
committed, and that in the least abusive cases there will be a remedy
such as alternative dispute resolution by which to solve the problem
there and then. Nowhere in the Bill, never mind in the schedule, do I
see any offences except the one in clause 58 about a person claiming to
be an enforcement agent when they do not have the authority to do so. I
cannot see any controls over them. My hon. Friend the Minister
mentioned the Security Industry Authority this morning. I know that
there is a consultation process about that organisation becoming the
licensing or regulatory body for enforcement agents, but I cannot see
anything to tie the Bill to that, if it happens, so how will people get
an easy, simply remedy when they think that they have been ripped off
by an enforcement
agent?
Simon
Hughes:
I have two or three questions for the Minister,
two of which are along the same lines as those of the hon. Member for
Stafford. Like him, I discovered in clause 58—I appreciate that
we will come to that clause later, but it is tied to the schedule so I
hope that you will permit these comments, Mr.
Bercow—the proposed, presumably new, offence of purporting to
act as an enforcement agent. Is that the only new offence either in the
Bill or that is envisaged to apply to enforcement agents, bailiffs and
that family of individuals? There is an argument for considering what
the proper sanctions should be and how best to get the message out that
someone who abuses this power is likely to be caught. I assume that any
such criminal offence will be actionable in the normal way, with
someone making a complaint that the police then pursue, and would not
require the person to take action
themselves.
In
paragraph 68, “Offences”, there are four sub-paragraphs.
Sub-paragraph (1)
proposes:
“A
person is guilty of an offence if he intentionally obstructs a person
lawfully acting as an enforcement
agent.”
Sub-paragraph (2)
states:
“A
person is guilty of an offence if he intentionally interferes with
controlled goods without lawful
excuse.”
The rest of the
paragraph sets out what the penalties will be and makes adjustments in
relation to a transition period. Are those two offences new or are they
existing offences that have been pulled from elsewhere? Are they the
only offences that can be committed by a debtor as a consequence of
this legislation?
My
last point is about paragraph 66. Like the hon. Member for Stafford,
and probably every other hon.
Member who has constituents come and see him or her, one of the most
frequent complaints that I hear is that constituents cannot take action
against what they believe to be inappropriate behaviour. Clause 66 is
entitled “Remedies available to the debtor”, but the
sanctions in it strike me as being pretty bureaucratic and not very
user-friendly. People will have to bring proceedings
“in the High Court, in relation to
an enforcement power under a writ of the High Court”
or in a county court to take action. Is
there not an easier way of doing things without requiring people to go
through a long and complicated court process with a course of action, a
claim, a defence and all the proceedings that come with that? Could not
these matters be better dealt with in the small claims court or with
some form of arbitration—somewhere where there is a civil
remedy? I am asking a question rather than making a
suggestion.
Lastly,
the Minister and the Committee have heard our concerns about the
schedule not being nearly as user-friendly or straightforward as it
could be. Some parts of the schedule are welcome. Given that, it would
be inappropriate to press for a Division. My hon. Friend the Member for
Cardiff, Central and I will therefore seek to work with our colleagues
and to persuade the Minister before Report that there are better ways
in which to set out the new plan presented in the schedule. We reserve
our position. I wish to put on the record that we are not fully content
with the measure, but we hope that it can be improved at a later stage.
I would also be grateful for answers to the specific questions asked by
both me and the hon. Member for
Stafford.
5.30
pm
Mr.
Bellingham:
I have one question for the Minister. Will she
tell the Committee whether the enforcement and collection of a fine
incurred for a criminal offence is a civil or criminal matter? I would
like her to clarify that point, because there has been some confusion,
and I felt that a debate about the schedule as a whole was the
appropriate time to ask that question. Other than that, as we have
discussed the schedule at great length through the various groups of
amendments, I have no further questions.
Vera
Baird:
Watch my lips: it is criminal. Certainly, I agree
that, if possible, mediation or alternative dispute resolution should
be involved in issues concerning the excessive use of bailiffs’
powers and fees to short-circuit the current route, which is none the
less pretty plain. It was a slip of the tongue that led me to say
“remedies”—I read my note too quickly and did not
think, but I am a lawyer and I know the difference between a remedy and
a criminal offence. The remedies in paragraph 66 allow an individual to
come back to the court that granted an authority and to make a claim
that the fees charged were too high.
There will,
however, be some changes. Up-front fees will be paid to bailiffs so
that they can no longer rely on the cut, as it were, that they take
from recovered money. That ought to take the bite out of the kind of
complaints of which both I and my hon. Friend the Member for Stafford
are aware. The fees that bailiffs charge will be
fixed and made public, so they should be known. However, one would have
to go back to the court that gave an authority to try to get some
resolution. It is important that we try to include mediation and
alternative dispute resolution in that, which I accept completely. The
Government are committed to the whole notion of mediation and
alternative dispute resolution because they help to avoid the stress of
court proceedings and enable simple recovery.
I shall answer some of the
questions asked by members of the Committee. It is correct that clause
58 contains the only new offence. Disputed amounts will be assessed by
the court, as I mentioned. Offences under paragraph 68 are offences
against the enforcement agent and no others, and the remedies are as I
stated. I hope that I have covered everything asked of me, and I
commend the schedule to the Committee.
Question put and
agreed to.
Schedule 12 agreed
to.
Schedule
13 agreed to.
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