Memorandum submitted by the Enforcement Services Association (ESA) and the Association of Civil Enforcement Agencies (ACEA) (TRI 12)
The two Associations represent approximately 75% of certificated private bailiffs. The vast majority of the work relates to the enforcement of debt, post court/warrant stage in respect of local taxation, road traffic offences, etc. The profession has consistently supported the Government's proposals for regulation as being the best way to provide a transparent, easy to understand system that will benefit the industry, debtors and creditors.
When the Bill was initially introduced into the House of Lords its main proposals consisted of an expanded form of certification based on the current system but with no specific regulation of enforcement agents. This was felt to be unsatisfactory by all involved; bailiffs, debtors and creditors. After considerable lobbying by the two associations and others, coupled with powerful speeches from the members of the Upper House, the Government has published a Consultation Paper: Regulation of Enforcement Agents, proposing possible means by which a regulatory body could be established. The DCA's preferred option is to regulate through the Security Industry Authority (SIA) and we shall be responding to that Consultation Paper in due course.
In the meantime there are a number of issues we would respectfully ask the Committee to take into account when considering the various clauses and schedules to the Bill relating to enforcement (Part 3).
Exempting categories of enforcement agents from the provisions of the Bill:
The DCA has consistently refused to incorporate Crown employees within the provisions of the Bill, primarily on the grounds that there are already Civil Service disciplinary provisions in place to deal with any malpractice. We would suggest that this argument misses the point. It has always been the Government's professed intention, strongly supported by the industry, to use the Bill to create 'a single piece of bailiff law'. To exempt a considerable number of potential enforcement agents from its provisions, we suggest, makes a total nonsense of that claim. Not only must the industry be accountable and properly regulated, even more importantly, it must be seen to be so. During the Second Reading debate the Minister said that:
"there should no longer be any bailiffs who are not certificated by a county court judge."
We would respectfully ask how the Minister can square that statement with the exclusion of all Crown employees, including county court bailiffs.
In his closing remarks, the Parliamentary Under-Secretary of State for Wales (Nick Ainger) stated that:
"At the moment, the Department does not feel that such an additional burden of regulation on Crown agents is necessary; but, again, I am sure that the Committee will return to it."
We would respectfully ask the Committee to consider this issue and encourage the Government to re-think this fundamental area of regulation. We believe that without a unified regulatory system encompassing all enforcement agents, the regulations, in whatever form they finally take, will lack credibility.
Perceived increase in bailiff powers:
There has been considerable discussion about the apparent increased rights of bailiffs to force entry. Many commentators have conveniently ignored the fact that such a right will only be granted by warrant following an application to the Court. The criteria to be adopted for granting a warrant are considerable and were clearly set out by the Parliamentary Under-Secretary of State for Constitutional Affairs (Vera Baird) during the Second Reading debate:
"The judge will have to have regard to a whole catalogue of criteria before making his or her decision. For instance, it is intended that the court's power will be used only as a last resort. The judge needs to be satisfied of that. All relevant other methods of enforcement, such as attachment of earnings, peaceable entry, and walking possession - now to be called controlled goods agreements - should have failed. The property should be inhabited by the debtor. Normal entry attempts - peaceable entry - should have been unsuccessful. There should be reason to believe that there are suitable goods on the premises to satisfy the debt and there should be evidence to support that reasonable belief. The enforcement agent should have considered the likely means required to gain entry and should be able to - and will - leave the property in a secure state. We would urge judges to take into account other factors, such as the size of the debt, the type of the debt and any other information about the debtor's personal circumstances. He [the judge] can put conditions on the power if he chooses to grant the application."
We would suggest that the proposals as outlined by the Minister offer substantial safeguards to the vulnerable debtor and do not believe it will open a floodgate of applications.
There is an additional concern about the need for a warrant for re-entry to recover goods which have been seized under a controlled goods agreement. Under the present arrangements where goods are seized and left on the premises under a walking possession agreement bailiffs can, when necessary, force entry to recover the seized goods. Under the proposals in the Bill, this right will only apply in respect of commercial premises for county court bailiffs, High Court Enforcement Officers and the enforcement of national taxes. Enforcement agents will therefore have to apply to the court for authority to force re-entry to remove previously seized goods from both domestic and commercial premises. The probable outcome is that enforcement agents will avoid this difficulty by simply removing the goods at first instance. This will be to nobody's benefit. We feel that the present arrangements should be retained.
The right to use reasonable force:
There is concern about the proposals for an enforcement agent to be able to restrain a debtor by the use of reasonable force. If the agent is being subjected to physical abuse by a debtor then there is sufficient protection within existing law to enable him to defend himself and, we would suggest, restrain the debtor to enable him to carry out his lawful duties. This is a matter of some concern and there is a general view that there is already sufficient protection in the law. The DCA has already said that it will not define the term 'reasonable force' as it considers this to be a matter for the courts. This raises considerable concerns and we would suggest that this provision be removed from the Bill. If the DCA is unwilling to do this we would, in the alternative, ask for much greater clarification as to the powers that may be used by an enforcement agent in restraining people while carrying out their work.
Greater protection to residential properties than commercial premises:
This issue was raised during the Second Reading debate in the House of Commons and appeared to find favour with the Minister. Whilst there is no argument whatsoever from the industry that vulnerable debtors should be adequately protected, there is concern that those who are perfectly able to pay their dues (sometimes referred to as the 'won't pays') might make use of a system of greater protection to residential properties. Whatever safeguards the Government might wish to introduce should also reflect the right of creditors to have their bills paid, the duty of individuals to pay those bills and the additional cost burden to be carried by those that do pay.
The need for bailiffs to clearly identify themselves to the debtor:
Again, there is no argument from the enforcement industry that a bailiff should identify himself to a debtor. There is, however, some concern about the suggestion that bailiffs should wear uniforms. Any member of the public seeing an enforcement agent in a nationally recognised uniform walking up their path will clearly not open the door, regardless of whether or not they owe the sum which the agent has come to collect. This will merely serve to frustrate the enforcement procedure and could ultimately lead to an increase in the number of applications for warrants for forced entry. At a time when the courts are already struggling with the work they have, to increase that further would simply put more pressure on the system. The second concern is that as most people would not wish their neighbours to know they had received a call from an enforcement agent, the wearing of a nationally recognised uniform would simply serve to announce to the surrounding neighbourhood that an agent was calling at a particular address. There is also concern that by making the visit 'public' in this way, the debtor's Human Rights have been breached in so far as his right to privacy is concerned. Looked at from the enforcement agent's point of view, there is a health and safety aspect to be considered as the wearing of a readily identifiable uniform could place him at risk in some areas. We suggest that a suitable form of identification, readily produced by the enforcement agent, should be sufficient and meet the concerns of all parties.
Provision of information to the debtor:
There is, of course, no objection to debtors being made fully aware of the procedure involved in enforcement and of explaining the powers of entry. Many bailiff firms already provide literature explaining all of this and much more. Our main concern is that the debtor should not be presented with a flood of information which, human nature being what it is, he or she will simply ignore as they can't be bothered to read it. Where there is information to be provided it should be done so in a simple, straightforward manner and the number of documents should be kept to a minimum. For example, a notice will have been served on the debtor at least seven days before any enforcement action begins. We would suggest that it is then unnecessary to hand a further notice to the debtor when the enforcement agent subsequently enters the premises to explain what the agent is doing (Para. 28 Schedule 12).
A cooling off period before disposing of property:
This proposal was raised during the Second Reading debate in the Commons and is, we believe, unnecessary in view of the proposals for the controlled goods agreement. By the time the situation arises in which property is to be seized there should be no doubt as to the liability of the debtor and/or his or her likelihood to pay the debt other than by the goods being removed.
Listing exempted goods in the Act rather than in secondary legislation:
We support the DCA's view that the list should be contained in secondary legislation rather than in the Act. Whilst acknowledging the concern expressed by some about the need to ensure such basics as tools of the trade are incorporated into the Act this will be of little assistance unless the details are set out in the secondary legislation. It therefore seems sensible to deal with the entire issue in one place. Another factor concerns the changing needs of the public as time passes. The example of the mobile 'phone has been cited a number of times as being an object which, even ten years ago, would not have been regarded as qualifying as exempted goods. Few would now argue against it and, if the list of such goods were only set out in the Act, it would not be possible to add to or remove from that list without primary legislation.
Persons on premises without the enforcement agent being present:
Para. 27 (3) of Schedule 12 states that persons should not remain on premises without the enforcement agent being present. This could be unworkable as it could mean, for example, that the agent must be present when an auctioneer is selling seized goods. Whilst it is accepted that they should only be there with the agent's permission, which can be evidenced in writing, we would suggest that there is no reason for the enforcement agent to be present in such a situation and that the wording of the paragraph be amended to read:
"They must not remain on the premises without the enforcement agent's permission".
Goods on a highway:
Paragraph 31(1) of Schedule 12 refers to an enforcement agent applying for a warrant authorising him to use, if necessary, reasonable force to take control of goods on a highway. There is no indication as to whether the warrant will be needed if there is no perceived need for the use of reasonable force. Where there is no such need there would seem to be no requirement for a warrant (although there is still a need to define 'reasonable force'). Both Associations have asked the DCA to clarify this but it has failed to do so, merely stating that a warrant will be required in those situations where a warrant would normally be issued. We ask that the Committee clarify this situation as there could potentially be a cause for dispute.
Para 34(2) of Schedule 12 places the onus on the enforcement agent to notify co-owners of goods that have been taken into control. We would suggest that this is an unnecessarily complicated requirement and that the co-owners are more likely to be notified if the onus is placed on the debtor (who is more likely to know who the co-owners are) than the enforcement agent.
We hope that this submission will assist the Committee in its deliberations and we will be glad to offer further assistance should that be requested.