Tribunals, Courts and Enforcement Bill [Lords]

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New Clause 6

Judicial reviews of enforcement agents employed by private companies
‘The actions and decisions of private companies and their agents enforcing the orders of the courts shall be reviewable in the High Court.’.—[Mr. Bellingham.]
Brought up, and read the First time.
Mr. Bellingham: I beg to move, That the clause be read a Second time.
We now move from the slightly racy subject of uniforms to a more arcane and lugubrious matter—judicial review. Nevertheless, it is important. The new clause states:
“The actions and decisions of private companies and their agents”—
it remains to be seen whether they will be wearing uniforms—
“enforcing the orders of the courts shall be reviewable in the High Court.”
The reason for the new clause is simple: when enforcement is undertaken by agents employeddirectly by the courts, Crown agents or Her Majesty’s Government, the actions and decisions of the court and agent in question are reviewable by the High Court. Having researched that matter, I am virtually certain that I am correct in saying that. At all times their actions can be subject to judicial review.
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There is a substantial concern that if that rulingis upheld and applied across the board to private organisations and operations of all kinds, including sub-contractors for local authorities, there will be no possibility of judicial review in the High Court. We are therefore faced with a contradictory situation. We know that judicial review is available when it comes to the actions of court bailiffs—that is, Crown agents. The Minister has said on a number of occasions that she wants a unified and consolidated service, so that everything is brought back under one piece of legislation and everyone knows exactly where they stand, be they consumers or creditors, or commercial organisations trying to enforce their debts or debtors. Basically, there will be one law for everyone.
We know from what we have discussed so far, however, that there are in fact one or two different powers in different parts of the Bill. I would have thought it necessary to ensure that all bailiffs are treated in the same way when their actions are reviewed. For all creditors, whether their debts are being enforced through Crown agents—that is often the case if a Government body of some kind is involved, but not always—or through private bailiffs, and for all debtors, whichever type of bailiff is dealing with the matter, surely there should the same level playing field when it comes to one of the ultimate recourses to justice available to people in this country: judicial review.
We feel strongly about the new clause, which would put those private bailiffs on exactly the same footing as Crown agents—in other words, those agents directly employed by the court or by Her Majesty. On the basis of wanting to make things simpler, easier and fairer, I commend the new clause to the Committee.
Simon Hughes: My hon. Friend the Member for Cardiff, Central and I support the new clause, and hope that the Minister’s response is positive.
Vera Baird: Judicial review is the supervisory jurisdiction of the High Court over an inferior tribunal or a public authority. The hon. Member for North-West Norfolk referred to the case of Heather and others v. Leonard Cheshire Foundation, which is a Human Rights Act 1998 case that concerns the question what constitutes a public authority. When the 1998 Act was passed, it was intended that the definition of a public authority would be a functional one. That is to say—to use the hon. Gentleman’s example—that if a public service is being delivered by a local authority,it is definitely a public authority. If the service is contracted out to a private provider, as long as that body carries out a public function, it, too, should be a public authority and come within the definition of the 1998 Act, even though it is a private body. The issue in the Leonard Cheshire case was whether that body fell within the definition of a public authority. The ruling was that it did not.
I am not sure that that case is going to the House of Lords, but there are other cases on the same point, which is quite a knotty problem from a human rights perspective. When I was on the Joint Committee on Human Rights, I initiated an inquiry into the current state of the law on public authorities, which is a troubled area. One wants to avoid giving rights with one hand under the Human Rights Act, but then taking them away with the other by contracting out services. The issue remains an area of contention, but I do not think that it has direct application in this case.
Mr. Bellingham: The Minister does, or does not think so?
Vera Baird: I do not, and let me say why. I hope that I can satisfy the hon. Gentleman as to why not. His argument rests on two assumptions. One is that High Court enforcement officers are Crown employees.They are not; they are business men and women, independent of the Crown, who have been appointed to the post on behalf of the Lord Chancellor by the Senior Master of the Queen’s bench division of the High Court.
I think that the other assumption, which probably follows from that first misapprehension, is that those in question are subject to judicial review. They are not; they are subject to the supervisory role of the Senior Master of the High Court. In that sense, they are reviewed by a lower-level judge in the High Court, but they are not subject to judicial review by the divisional court. The Senior Master has a complaints procedure in his hand, which is right and proper, because he has made the appointments and is responsible and liable for the enforcement of High Court writs. It is correct that complaints should go to him. However, that is not judicial review by the divisional court, which would not, in any case, be the right sort of remedy to seek.
Judicial review is about supervising decisions to see whether they have been made in a situation that is unreasonable—that is, contrary to the Wednesbury reasonableness test—or in which something has been incorrectly taken into account or left out. The officials in question do not make decisions, however; they implement decisions that have already been made by the court. In this case, they would be implementing decisions made by the High Court, and the supervisory jurisdiction of the High Court cannot supervise itself.
The proposed approach rests on two erroneous assumptions, and it would deny us the single area of enforcement law that we want, as it would remove private companies and agents and put them under a different regime—one that would not fit and is not in force at present, and which would be wholly impractical for the reasons that I have stated, as I hope the hon. Member for North-West Norfolk will accept.
Simon Hughes: I am following the Minister’s argument and understand it. First, can she tell us what sanctions the Senior Master of the Queen’s bench division has under either the present or the proposed regime? Secondly, if we want to have one common regime, could somebody who has the necessary authority have brought under his wing the activities of bailiffs who are not court bailiffs? It would be good if somebody who was able to manage people well came into play before anybody felt that they had to start taking criminal or civil action.
Vera Baird: At the moment, the master can removea person’s authorisation to act as a High Court enforcement officer. Presumably he issues warnings and so on in advance of taking that fairly draconian step, so he has a lot of power. The hon. Gentleman will be aware that the Bill contains remedies and that, as we discussed, it is intended to ensure that there is proper regulation by the Security Industry Authority in the case of one kind of bailiff and, as clearly stated by my noble friend Baroness Ashton in the Lords, parallel regulation of those who are not private bailiffs. Hon Members have little to worry about. There is already a civil service complaints procedure in relation to county court bailiffs. The measure would not fill a gap or bring coherence; it would be an odd measure to introduce and is based on two erroneous assumptions seized, I think, by Rev. Paul Nicholson.
Mr. Bellingham: I am grateful to the Minister. It was not Rev. Paul Nicholson who came up with the suggestion; it came from a colleague of mine at the Bar. One of the points that my colleague made—I should be grateful if the Minister considered it—was that High Court enforcement officers, who are employed by the Crown, are subject to the Wednesbury rules, but those employed by private companies are not. Can she comment on that?
My other point relates to the supervisory role of the Senior Master. Is the Minister saying that there are no circumstances in which judicial review could be employed against bailiffs? As she said, bailiffs do not take decisions, and the essence of judicial review is to challenge and review decisions, but there have been cases in which bailiffs have had not only to implement decisions made elsewhere, but to use their own intelligence and judgment. I should have thought that that came very close to a decision-making process, and although such things might happen only rarely, I can envisage cases in which there could be a strong argument for judicial review. Perhaps she could comment briefly on those additional points and further put my mind at rest.
Mr. Bellingham: I am very grateful to the Minister and I shall have a word with my learned colleague at the Bar to put him right on this issue; indeed, we may well correspond on it in the future. However, I am grateful to the Minister for clarifying things and, on that basis, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Clause 86 ordered to stand part of the Bill.
Schedule 15 agreed to.

Clause 87

Attachment of earnings orders: finding the debtor’s current employer
Question proposed, That the clause stand part of the Bill.
Simon Hughes: We now move to part 4, which is about the enforcement of judgments and orders. I have a couple of points about the importance of this part of the Bill and of getting it right. I seek the Minister’s help in setting the issues out, and I think that this is the right clause to do that.
If the Bill goes forward, procedures can be applied to ensure that all the information that is needed in the courts is in the same place. My question is about all court proceedings and comes from my experience in the courts in my previous life and as a constituency MP dealing with such issues. Like all hon. Members, I deal with matters relating to tax, tax credits, benefits, the Child Support Agency and payment orders after a divorce or marital breakdown.
My general objective is that we should give the courts the ability to obtain from all those who are properly authorised and from the appropriate departments the information that they need to make appropriate orders. My concern is greatest historically, and I have two circumstances in mind. First, in criminal matters, people who have come before the court will put to it a statement of their position when it decides what penalty, fine or other punishment to impose. My experience until recently has been that the court often does not have any information other than that given by the defendant or the person representing them.
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In a way, the more worrying sorts of case are those in which somebody is trying to escape a civil liability, often to a member of their family or someone to whom they have a personal obligation. It is normally a man trying to reduce his proper liability toward his wife or partner or, quite often, his responsibility for his child. However, the third sort is a case in which someone is clearly trying to give the run-around to someone to whom they owe money by pretending that they do not have it.
In terms of attachment of earnings orders, the Bill contains a welcome proposal to give the court powers to find a debtor’s current employer—to track them down by their employer, if they are employed. My understanding is that two major Government bodies, a Department and an agency, will now be the normal source of information. The Department for Work and Pensions should have social security records and all the other information. The agency is Her Majesty’s Revenue and Customs, which should have information about people’s incomes and how much tax they are paying. Those are the two major places to look for such information.
I do not yet know, and I have not been able to check in the time available, whether each will have the power to exchange information without authority. I am always careful about not giving Departments power to swap information around. That would have to be authorised. I am quite keen to know whether, for example, if a request were made to the Department for Work and Pensions under the measures to provide information to the court, it would have the right to check things with HMRC or vice versa.
Other people also have information that is relevant if a matter is before the court. The local authority will know, for example, in whose name the council tax for a property is paid and who is registered as the owner of the property. There might be other information. My question is a request at the beginning of this short debate for the Minister’s help. I have read the explanatory notes, the Library notes and the Bill, and I am keen for the court to have the maximum availability of information.
I have two last points, one of which is procedural. A lot of court time is wasted when matters come before the courts, the information is not there and the courts must order that it be provided or sought. Is the Minister satisfied that the Bill will avoid court appearances wherever possible—in other words, that it will ensure that as much work as possible is done on paper without people having to appear? That would save huge amounts of time and effort. In particular, if there is difficulty tracking down someone who is reluctant to appear in court—they may not want to own up to their obligations and not be willing to pay the money that they owe—getting them to court once might be difficult, but getting them there a second or a third time might be just as difficult, if not more so. It seems to me from my experience that the court system, whether civil or criminal, could save a lot of money if we minimise the time for which we expect people to appear in court to deal with such matters.
How can people on whose behalf information is given to the court challenge it if there is a dispute? We all encounter such cases. I am dealing with a tax credit case at the moment involving a serious dispute about liability. It all has to do with what box was ticked on the form and so on. It is a proper dispute, an MP has become involved and it is therefore being taken seriously by HMRC. If the information comes before the court, as it should in the name of maximum information to minimise problems, and it is alleged to be untrue—that may happen if somebody owns a property but has sold it, or owns a property of which somebody else is the tenant—how will we ensure that the court can obtain that information? I ask out of concern from my own experience. Can the Minister help? This is an opportunity to get those things right, and to have the most effective and streamlined system, while ensuring that it is compatible with people’scivil liberties and rightful protection of personal information.
Vera Baird: We are talking in this clause only about attachment of earnings orders, and the point of it is pretty clear, of course: it applies where somebody’s earnings are attached under an AEO and they change their job, but do not tell the court the new employer’s details. I am not quite sure what the hon. Member for North Southwark and Bermondsey was referring to when he talked about tenancies or people having moved out of their addresses. The provision is about attaching earnings and facilitating the court in tracing somebody who has moved jobs and who does not want to let the court know that they have done so.
My understanding is that the DWP and HMRC share the same database, so it is the same issue. The clause will enable HMRC to provide to the courts, for the purpose of redirecting the AEO, information that it has on file about the employment of the judgment debtor. It enables an AEO to be reactivated if the situation lasts. It is likely that the judgment creditor will be the person who knows that the money has stopped, so they will need to come and tell the court in order to initiate the procedure. That probably requires them to fill in another form or make another application, but it seems hard to get around that requirement, since they will be the person who knows.
Apparently, there will be an ability to seek a hearing with a judge if either party is unhappy with the way in which things proceed. That is what one would normally expect, but it is hard to envisage the sort of mistake that the hon. Member for North Southwark and Bermondsey described. All the provision is about is whether somebody has moved to a job wherever else; if that is confirmed, the court will contact the employer and transfer the AEO. If it is not confirmed, the information could be incorrect; the person may have moved on again, even before HMRC has had time to pin him down. That is really all that this issue is about.
Of course, there is a very great need—the hon. Gentleman asked how much information we should make readily available in these circumstances—to ensure that the Human Rights Act 1998 is complied with, and to ensure a proportionate balance between the privacy of the individual and the rights of the judgment creditor. Of course, article 8 of the European convention on human rights is a conditional one and in this case is rightly in balance because the rights of the judgment creditor are put high up. However, that is all the information that is required in order to make the power work. I hope that I have satisfied the hon. Gentleman that his fairly wide-ranging concerns are without foundation and that this is a pretty straightforward measure.
Simon Hughes: I was trying to make points about this and the subsequent clauses rather than make such points on each one. I am grateful to the Minister, and I share her view that we have to balance people’s human rights. I have said explicitly that we should not have greater access to information than we need.
Will the Minister deal with one other matter that I raised? Is she satisfied that in this clause and the others in this part of the Bill, we are avoiding people having to come to court other than in the most exceptional circumstances? Has this part of the Bill been proofread to avoid any unnecessary or excessive court appearances, so that we keep down the risk? I am not objecting at all to people filling in the form; I would rather it was done in that way to minimise time and expense.
I have one last small point. Proposed new section 15A to the Attachment of Earnings Act 1971 refers to “the commissioners”. I presume that they are commissioners of Inland Revenue, whom I think we are abolishing elsewhere in the legislation on tribunals. Can I have an assurance that we have done the cross-referencing across the whole Bill, so that if we are ending up with a new structure, we are not left with anomalous terminology?
Vera Baird: Yes, I can reassure the hon. Gentleman about that point, but I do not think that it presents a problem. What is happening is that the Bill is correctly reciting earlier legislation; the commissioners have been included in order to amend it. Any subsequent changes introduced when the Bill is enacted, however, will knock on to those provisions and change the terminology if it is no longer appropriate. I think that that is the right sequence.
Essentially, this is about a form-filling exercise. I imagine that people will be able to get the form online; lots of forms are available online now. I cannot exclude the possibility that someone who is not connected to the internet will have to go to the court or a citizens advice bureau to get one, but a court hearing is not necessary.
Question put and agreed to.
Clause 87 ordered to stand part of the Bill.
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