Memorandum submitted by Mr P Nicholson (TRI 2)

 

 

Tribunals Courts and Enforcement Bill,

 

Here is the briefing we are sending to all parties in the Commons about the Tribunals Courts and Enforcement Bill. I continue to fear for families if there is not a statutory procedure for dealing with vulnerable situations. I would be grateful if you would inform Harriet Harman.

 

Our focus in the Bill is on vulnerable people, who are fined disproportionately to their incomes, and the way in which centuries of common law balance created by the courts between debtor and bailiff has been swept aside. The government has sided with the bailiffs, who abuse the significant powers they already have, giving them draconian rights of forcible entry into domestic premises and, if regulations are implemented, draconian rights of forcible restraint against persons.  

 

I am attaching a chronology of our discovery of the secret instructions to bailiffs about their use of forced entry. A copy of the blacked out pages has been sent to several MPs by post. Also attached is Page 9 of the National Standards for Enforcement Agents, which I refer to later.

 

We regret that there is no attempt in this Bill to repeal or amend schedule 4 to the Domestic Violence, Crime and Victims Act 2004 in particular paragraph 3 of the new schedule 4A to the Magistrates' Courts Act 1980.

This had the effect of abolishing the centuries old common law preventing forced entry by bailiffs. It was abolished on the 6th July 2004 by Standing Committee E considering a DCA amendment to the Home Office Domestic Violence, Crime and Victims Bill. Our complaint to the speaker and the reply from his office is also attached.

 

In neither House was there any mention of Semayne's case in 1604; nor Lord Denning's judgement in Southam v Snout in 1964, in which he quoted William Pitt the Elder, the first Earl of Chatham; Denning said it was the "classic passage" on the principle that an Englishman's house is his Castle; William Pitt said in 1767 "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 cannot enter - all his forces dare not cross the threshold of the ruined tenement". There was no consultation with the enforcement industry, creditors or the advice sector. No 

The Bill prohibits force against the person by bailiffs, unless permitted by regulations. Regulations would permit restraint against debtors who interfere or threaten to interfere with their seizure of goods. The government has received a copy of the minute from the meeting of the Enforcement Law Reform Group comprising bailiffs, creditors and the advice sector showing that none of them want the government to allow bailiffs to restrain debtors who interfere with their work, preferring to rely on the general right to self defence. It is the High Court Enforcement Officers who have lobbied for this, by they never meet vulnerable people who have been fined by Magistrates for absence of TV licences, fared dodging, breaking an ASBO or children's truancy often caused by poverty. 

Such a bad law will certainly be used and abused. I can visualise the possibility of an unemployed lone parent with several children receiving benefit and under stress because of her poverty. The DCA has been shown a copy of answer to the PQ showing that all unemployment benefits are below the government's poverty threshold. She has been fined for failure to pay her TV licence (now referred to by the DCA as a criminal fine when such fines have in the past been enforced as a civil debt - being a debt to the Crown). She has debts to Provident Plc, the leading home credit company, for 500 on which she is paying 300 interest over a year; HM Revenue and Customs was late in cancelling the child benefit for her eldest son when he reached the age of 18, finished full time education and left home so she repaying an 800 overpayment.

She has not responded to the summons about the TV licence because she is semi literate and cannot afford the transport to the courts and there is no one to look after the children while she is out. She was fined disproportionately in her absence. The male civil enforcement officer/bailiff has a warrant to seize her goods to cover the fine and his fees; he forcibly enters the property with a male colleague; she threatens to punch him on the nose; the two men hold her down and a fight ensues; the children join in defence of their mother and are traumatised. (In different circumstances Social Services put children on the "at risk list" when they are traumatised by domestic violence between partners). Any complaint will be her word against the bailiffs; the chances of her having advice or legal aid are very, very slim. Repercussions in the community against the bailiffs are more likely than any appeal. Such a bad law authorising violence will certainly be used and abused by bailiffs.

 

The problem of increasing violence against the officers of the State, and others in public office, is a very serious and is faced by bailiffs/civil enforcement officers, probation officers, police, social workers, doctors and nurses, and sometimes clergy. It needs to be addressed across the board rather than piece-meal or in a manner that will create more violence, as in the particular case of the proposals for the bailiff. I ask for the government to withdraw their amendment making way for regulations authorising restraint against the person.

The crucial paragraph in page 9 of The National Standards for Enforcement Agents reads as follows.

Where a person falling into the above category is discovered by an
enforcement agent to be the occupier, the matter shall be referred back to
the court and no seizure of goods may proceed without leave of court. The
person may be bailed to appear at the court by the enforcement agent.

I have dealt with a case in which a lone mother with two children under 16 was fined 175 in her absence for the truancy of one of them. The enforcement agent put her on bail to appear in court on a certain day. It was discovered by a volunteer who prepared her means statement that the child in question was deaf, the mother was long term unemployed on Income Support, which is below the government's poverty threshold, and their home was over three and a half miles away from the school. They were vulnerable. The education authority had failed to inform the magistrates of these essential facts. When they heard them the magistrates' set their decision set aside. The case tried again and she was acquitted.

Under the present regime of collection orders and warrants to force entry, the most likely outcome was that the fine would have been enforced threats will be made to force entry, goods could have been be seized and the magistrates never know the facts.

Compassionate allowance must be made for the difficulty of paying for transport and telephones for impoverished families to reach and communicate with the court. Lone parents on benefit who do not get to court for minor misdemeanours like absence of TV licence or the truancy of their children are all treated as hardened criminals in this Bill.

The government's list of vulnerable situations set out in their policy statement to be covered in bailiffs training does not include the unemployed on benefit with no assets, the illiterate or those who do not yet speak English. A clear procedure should be set out for wrong address, wrong name and other bureaucratic errors which are all too frequent.

The only mention of vulnerable groups or persons in the document produced by the DCA is in relation to the training enforcement agents will need to undertake before they receive a certificate. Page 9 of the National Standards for Enforcement Agents covering vulnerable situations is ignored.

Training is not enough. It is certainly possible that once a bailiff has received his certificate he will forget his training under pressure from his management to collect their fees. Mistakes will be made in good faith or bad. Remedies should be sought on behalf of vulnerable people against legal criteria.

Even though there will be an up front fee paid by government, we do not know how much it will be and the vast majority of their companies' profits will come from fees paid by debtors and defaulters. Bailiffs should earn that up front fee by ensuring that the justice is done when they find themselves enforcing disproportionate fines against vulnerable people.

Training is not enough. Very great powers are being given in this Bill to thousands of civilians to exercise force against the persons of other civilians and forcible entry into their homes. Enforcement agents should be trained about the laws governing their behaviour when they meet vulnerable situations. They require description on the face of the Bill with these provisions covering vulnerable people. It is said by the Department that these powers will only be used in the last resort. But what that means in practice is a State secret.

 March 2007