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.
On the other
hand, when enforcement is undertaken by a private company and its
agents, which happens a
lot, their actions might well not be reviewable by the High Court. I am
particularly concerned about arecent case: Heather and others
v. Leonard Cheshire Foundation heard by the Court of Appeal in
2002. As I understand it, that case is still on appeal to the House of
Lords. What happened was that elderly people were placed in the care of
the Leonard Cheshire Foundation by the local authority. The Court of
Appeal found that if they had been placed in a local authority
homethey would have had the protection of the
courtfrom unreasonable or perverse actions and decisions.
However, the Court of Appeal ruled that they could not make use of
those rights of protection from the court because they were in an
independent, private
home. 9.45
am
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.
Vera
Baird:
I am happy to do my best. High Court enforcement
officers are not subject to Wednesbury rules. To say that they are is a
different way of putting the allegation that they are subject to
judicialreview, given that the principle of Wednesbury
unreasonableness applies to judicial review—it is the same
misapprehension repeated in a different way. I
would not want to say categorically that judicial review could never
apply to a High Court enforcement officer, but it seems an odd notion,
given that High Court supervisory jurisdiction is intended to apply to
lower tribunals and public officials. Given that a High Court official
implements that jurisdiction, the High Court would be reviewing itself,
and it does not have a power to do that. At the very least, such a
concept—it might not be impossible, although it might well
be—would be very awkward and would fit poorly with what I hope
is a coherent system that has plenty of
protections.
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.
10 am
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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