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Neither the enforcement nor the creditors nor the advice sector were consulted, and no notice was given to the public. Even though the citizen has a right to refuse forced entry, 76 per cent of fines were collected. A substantial part of the balance was due to
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The reason given for allowing forced entry, as reported at col. 239 of the House of Lords Official Report for 2 November, was to enforce criminal penalties. We were not told that many of the criminal penalties involving fines were simply for petty shoplifting, truancy, having no TV licence, fare-dodging or having no tax disc on a caroffences very often fuelled by poverty. A parliamentary Question, answered on 20 July 2004, illustrates that all unemployment benefits are below the Governments poverty threshold. They remain so. Magistrates courts are faced with taking the fine from the jobseekers allowance, of £45.50 a week, of unemployed single adults aged between 18 and 24. It is very likely that a social fund loan is being deducted from that allowance, at £10 a week, when the allowance is already at half the level of the Governments poverty threshold. The fine is then deducted at £5 a week, leaving the person with £30.50. When it is not paid, a warrant is issued to the bailiff. We have created such poverty in this country that all fines for unemployed people, who are struggling to survive below the poverty line on state benefits, are disproportionate.
The Zacchaeus 2000 Trust, which has been advising me on this matter and which I shall refer to using the rather ugly abbreviation Z2K, has met these criminals. They have had a contract for nine years with Wycombe magistrates court to help people to fill in their means-test statements at the enforcement court on Wednesday mornings. They used to be able to assist vulnerable defaulters and, with the permission of the bench, get their facts before the court so the fines could be as proportionate as possible or reduced if circumstances, such as unemployment, illness, divorce or bankruptcy, had changed their means.
For fines to be effective, they must be proportionate to income. Setting the correct level of fine is the key to successful enforcement. To enable it to be set correctly, it is vital that magistrates have accurate and up-to-date information about an offenders means at the time of sentencing and, indeed, throughout the enforcement process. However, with the arrival of the fines officers, who took over enforcement under the Courts Act 2003, Z2K intervention has been all but shut out. The procedures have become merciless. If the fine is not paid, a warrant is given to the bailiffs to smash and grab. Z2K has been told by officials at the Department for Constitutional Affairs that forced entry will be used only as a last resort, but the DCA will not say who decides, and in what circumstances, that that time has been reached. I ask the Minister to write to me with that information.
Z2K asked the Department for Constitutional Affairs for a copy of the civilian enforcement officers guidance. On 31 October, it received a letter from Her Majestys Court Service, which states that, to release a copy,
These days, civil enforcement officers is the official upmarket vernacular for bailiffs, which means that they have secret instructions from the Government about how to break into your home and seize your goods.
Z2K has sought an internal review by the Access Rights Unit at the DCA on the grounds that justice on the doorstep and in the home by bailiffs, like everywhere else, should be seen to be done; and fine defaulters or their advisers cannot call the bailiffs to account for failing to carry out the correct procedures if they do not know what procedures the Government require the bailiffs to implement. The effect is to make the bailiffs untouchable. Z2K has not yet had a reply. Perhaps the Minister would like to expedite that.
The Government get a free service from bailiffs; the fine defaulter pays their fees: no wonder forced entry falls very short of a last resort. In one case, a bailiff seized a TV, DVD player and 60 CDs from a lone mother, sold them for £72 and gave £30 to the auctioneer, which did not pay off the disproportionate fine of £1,072. In another case, an unemployed young man on state benefits had a fixed penalty for fare dodging. He is homeless and used his girlfriends address; the bailiff called and threatened to seize her property to cover his fine and the bailiffs costs. Another bailiff from the same company threatened to seize a pensioners property because her unemployed grandson used her address.
I seek the introduction into law of page 9 of the National Standards for Enforcement Agents, which would protect vulnerable households from excessive and disproportionate enforcement against inadequate, poverty-level incomes. It currently has no legal force and is largely ignored. It suggests:
Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with.
The Bill also needs to clarify who, in the case of a fine, is the creditor and who should agree the procedures. Is it the magistrates, HM Court Service or the DCA? I also ask for the publication during the passage of the Bill of a list of goods exempt from seizure by bailiffs; for example, cookers and fridges, which are essential for daily living, and tools of trade such as personal computers used by self-employed
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The law should be amended to bring magistrates back into the supervision of the bailiffs who enforce the orders they make. Parliament has carelessly removed magistrates from that task in the Courts Act 2003 and the Domestic Violence, Crime and Victims Act 2004. By also allowing forced entry by bailiffs, it has diminished the administration of justice by the British courts. An Englishmans home is no longer his castle.
Baroness Gibson of Market Rasen: My Lords, I rise with some trepidation because on looking at the list of speakers I realise that a number of them are members of the legal profession, bringing their specialist knowledge of this particular area of work to the debate. I do not have their expertise and my intervention will be short. I shall speak only to Part 1 of the Bill, specifically the proposals relating to employment tribunals, about which I seek some clarification.
The aim of Part 1 is to create a new framework for tribunals with new jurisdictions and new rights of appeal. I am not an expert on employment tribunals, but here I declare an interest in that my husband has served on such tribunals for the past 11 years. I know, therefore, about the expertise of current employment tribunal members and the difficult and sometimes complex cases that can come before them. Paragraph 23 of the Explanatory Notes makes it clear that, although employment tribunals will share a common administration with other forms of tribunal and come under the leadership of the proposed Senior President of Tribunals, the jurisdiction of employment tribunals will not be transferred to the new two-tier structure. This is because of the nature of the cases that come before employment tribunals, involving one party against another rather than hearing appeals from citizens against the state. That seems clear and unambiguous: the current jurisdiction of employment tribunals will remain as it is.
However, paragraph 133 of the Explanatory Notes refers to the two new tribunals, the first-tier tribunals and the upper tribunals, and the transferral of functions to them from the tribunals listed in the relevant part of Schedule 6, such as, for example, the Pensions Appeal Tribunal or the Mental Health Review Tribunal. But here is the confusing factor for me. Reference is made in this paragraph to the transferral of jurisdiction from the tribunals listed in Schedule 6 not only to the first-tier and upper tribunals, but also to employment tribunals. This reference has caused some concern among those currently serving on employment tribunals, because it appears to be saying that, in future, members of employment tribunals may have to consider cases from other kinds of tribunal. This appears somewhat contradictory. While on the one hand the Government acknowledge the uniqueness of employment tribunals, on the other hand they appear to be proposing that, in future, employment tribunals
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When industrial tribunals, now known as employment tribunals, were originally established, they were widely recognised as the working peoples courts. Their aim was to bring simplicity to industrial disputes between an employee and his or her employer. Of course, subsequent employment legislation has evolvedin discrimination legislation, for exampleso employment tribunals have become more complex and often more costly. Today, employment tribunals can award hundreds of thousands of pounds to an individual. If I have read the Bill correctly, this extra burden on what I understand to be already busyin some parts of the country, overburdenedemployment tribunals could have a direct impact on their ability to work effectively. Even more important, if employment tribunals are now to be asked to consider other types of cases, this may cause confusion about their exact role, and their uniqueness could be undermined.
Finally, I shall make a brief comment about the overall proposals in this part of the Bill. Making the tribunals system more efficient and ensuring that it is easier to approach are obviously worthy aims, which I support. However, I am on record as being something of a sceptic when it comes to amalgamating administrations. My first instinct is to ask why, whether it is logical and what would be the advantage. My second instinct is to ask whether such proposals could be considered as cost-cutting exercises rather than as measures that will streamline and increase efficiency. On the surface, the proposals in this Bill appear to be the latter. I am sure that my noble friend will be able to assure me that this is the case.
Lord Lucas: My Lords, I had intended to concentrate on Part 3 of the Bill but, after listening to the speech of the noble Lord, Lord Thomas of Gresfordyou tend to listen to a speech when someone is being nice about youI am tempted to take an interest in Part 4, on the information provisions, when it passes by us in Committee.
I was going to ask the Minister today whether there is any hope of including PATAS in Schedule 6I had a quick look through to see whether it was includedbecause it always seems iniquitous that that tribunal should be owned and controlled by the boroughs whose parking tickets it is enforcing. It is the London parking tribunal in front of which you appear if you want to appeal a parking ticket or a congestion charge. It would be nice to see it in Schedule 6, as that would be a welcome addition to its independence. I know that it is possible to win cases against it, but I would prefer to see cases going right at PATAS rather than having to go for judicial review.
As regards Part 3, perhaps I may start with my problems with what is in the Bill and then come on to my problems with what is not in the Bill. The noble and learned Lord the Lord Chancellor said that it is a single piece of bailiff law. I do not think that it is. I am
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I share the concerns of the noble Lord, Lord Beaumont of Whitley, about the provisions on forced entry. I like Schedule 12 paragraph 15, which seems to provide a good basis, but, as the noble Lord, Lord Beaumont, said, we have not dealt with the alternative powers in the 2004 Act. Schedule 12 paragraph 19 would seem to allow forced entry to premises if some part of that premises is being used for business. So, if I have my office in a back room of my house, the bailiffs can come in because the house is treated as a commercial premises. However, in Clause 67 et al, the exact opposite principle seems to apply to rent, because where there is only domestic use of premises, landlords cannot get their rent by using the bailiffs. There is some confusion here and I very much tend towards what the noble Lord, Lord Beaumont, said is a matter of principle: we should have a system that gives a debtor a measure of reasonable security in their own home.
I am also concerned that the method of taking control set out in Schedule 12 paragraph 13 is too prescriptive; it could have the effect in practice that the bailiffs will have to remove goods on their first visit, particularly if the debtor is not there. I urge the Government to look at the Scottish system whereby the bailiff can take control without consent. He just says, I am taking control of these goods, but does not have to possess them; he does it by fiat.
I would like to see proper protections for essential household items and tools of trade on the face of the Bill. To leave this very important protection in relation to the seizure of goods entirely to secondary legislation is just too bare.
My main concerns lie in the absence of proper bailiff regulations, which, as the noble Lord, Lord Thomas, mentioned, were supposed to be in the Bill. To my mind and to the minds of many other people, such regulations are neededand here they are in the Bailiffs (Licensing) Bill. That Bill is not before us todayit is sitting in the Printed Paper Officebut doubtless we will discuss it extensively at the Committee stage.
The concept of proper regulations governing bailiffs is widely supported. The Association of Civil Enforcement Agencies has written to me asking for it, as has The National Association of Citizens Advice Bureaux. The Local Authority Civil Enforcement Forum, adviceUK and the Institute of Money Advisers all support it. I have had extensive support in preparing the Bill from the Enforcement Law Reform Group and not least from the London Motorists Action Group, of which I am chairman. So support for the Bailiffs (Licensing) Bill extends from the industry and the main bailiffs organisation to Disgusted of Camden who is their victim. Faced with such a wide call for proper regulation, I hope that the Government will feel able to respond.
As the noble and learned Lord said, the Bill addresses the matter, but it contains so many exemptions and its provisions are so thin that it does
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As to the reasons why we need bailiff regulation, many of your Lordships may have received the briefing from the National Association of Citizens Advice Bureaux, which contains a number of case histories, and may have seen the BBCs Whistleblower programme, with which LMAG helped considerably. LMAG has its own experience of the practices of bailiffs. There are phantom and fabricated visits, and work is done that is not required to be done. Letters are pushed through the door by a courier who runs away, and when the letter is opened, it says, I ... certified bailiff, which the courier clearly was not. That is all done by large and reputable firms. We have not regulated the industry and it has taken advantage. I do not particularly blame the industry for that; if you leave a pot of money on the table, people will take it.
The noble Baroness may have read the Deloitte report on Drakes bailiffs. I do not know whether she is prepared to make it or any of its content public, but I would be fascinated to know what it says. The piece of evidence that convinces me most is the accounts of Equita; after presumably putting to expense everything it can, it still makes 40 per cent net profit. That is out of charging fees mostly to vulnerable people. There is supposed to be a set scaleclearly it is not being complied with, because no such scale set by any rational Government provides a 40 per cent net profit for its operators.
The national standards for enforcement agents are in place, but they are voluntary. As the noble Lord, Lord Beaumont, has said, they are widely disregarded, even by magistrates courts, which will not enforce their provisions when it comes to vulnerable debtors. Transport for London has now invented a whole set of additional fees that bailiffs can charge, increasing their profits even further.
The situation needs proper regulation and we must get it right. For those who rely on the revenue that bailiffs provide or give security to, it is important that that revenue is protected. It is only fair to all of us who pay up promptly that those who do not should be pursued, but we must also be fair to those who are being pursued. When a bailiff goes to someones door, that person must be able to know who it is, as they would a policeman or traffic warden. These people are essentially unidentified and many claim to be what they are not.
We must not think that the bailiffs are pursuing the bad boys. Bailiffs do not bother with the bad boys. They do not bother with people who have a string of unpaid parking fines100, 200 or even a dozenbecause they know they will not pay. They are cute; they know the rules and know that they will get away with it. Bailiffs go after the easy money. The only money they receive is what they get from the debtor. They do not get paid for doing the job by the person whose money they are collecting, so they go after the easy money.
The system in this country is almost unique in that the bailiffs are agents of the creditor rather than of
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The Bailiffs (Licensing) Bill is based on the Gangmasters (Licensing) Bill, so it follows an established government pattern. It is workable and fair but, of course, it is illustrative; there are many other ways in which to do this. I hope to persuade the Government that this is something that needs to be done and that we and all the other people involved, including Z2Kwhich has been very constructive in criticising this Bill, although it would wish to do things differently to some extentcan all join in producing a system that commands this Houses respect and will perhaps form part of this Bill but, if not, will follow soon thereafter.
Lord Clinton-Davis: My Lords, as this debate has evidenced, on the whole the Bill is to be thoroughly welcomed. I do not claim that it is perfect; indeed, I hope that it will be improved in Committee and at subsequent stages of consideration by this House and in another place. However, on the whole, although we have benefited from the criticisms voiced today, the advances that have been marked by this Bill are thoroughly to be applauded.
I hope that between this and subsequent stages the noble Baroness will consult the Law Society, the Bar Council and everybody else mentioned with regard to the Bill. Only today I had representations from the British Bankers Association and the TUC. It was very late in the day, but I hope that my noble friend will hear their criticisms, either by meeting them or hearing from them in writing.
My doubts about the Bill have been articulated already. For example, is it necessary to rely so heavily, as the Government do, on secondary legislation? The Law Society expressed that doubt, and I have not heard the Governments response. Certainly nothing has been said today. Equally, should we have so many general clauses delegating powers to relevant Ministers? Perhaps my noble friend will deal with that as well.
The concept of a single tribunal, with a first-tier tribunal and then an upper tribunal, into which existing tribunal jurisdictions can be transferred, is certainly, in my view, worth while. The idea of an appellate tribunal for some tribunals should be supported, because it would hear appeals against decisions by state authorities, whereas tribunals that deal with party and party cases should be dealt with under a separate regime. Exempting asylum and immigration tribunals from the new system is a concept which, with respect, I do not think has been made out today.
I am concerned that the Bill fails to determine who should be the judges of the new tribunals. In my view, to leave that solely to the Lord Chancellor is not
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