Schedule 12
Tribunals, Courts and Enforcement Bill [Lords]
4:00 pm
Henry Bellingham (Shadow Minister, Constitutional Affairs; North West Norfolk, Conservative)
The amendments go to the heart of an important part of the Bill and are vital to the powers of bailiffs. I can deal with amendment No. 97 fairly swiftly. Our aim is to prevent bailiffs using entry methods that might be in any way underhand or unconscionable. Anyone who saw the recent BBC “Whistleblower” programme on bailiffs would have noticed with dismay bailiffs gaining access through windows and managing to get their foot inside the door when it was half open. That is why I wish to insert a reference to
“normal methods and places of entry used by visitors to the premises.”
In other words, getting in through an attic window or a window at the back of a house is simply not acceptable. Amendment No. 97 is a bit out on a limb from the others in the group.
Amendment No. 98 is important. The schedule contains the heading “General powers to use reasonable force” and in the following paragraphs, the Government give bailiffs a general power to use reasonable force. Our amendment would strike out paragraphs 17 to 22, thus removing that heading and another, “Application for power to use reasonable force”, and the paragraphs to which they apply. We would reinsert the title “Application for power to use reasonable force” and our own remodelled paragraphs, which make it clear what the bailiff can do. I shall not run through it in a lot of detail, as it is there in the amendment for members of the Committee to look at carefully, but I shall pick up on a few points. We say in the amendment:
“This paragraph applies if an enforcement agent has the power to enter the premises under paragraph 14 or 16 or under a warrant under paragraph 15.”
Paragraph 14, of course, concerns entry without warrant, paragraph 16 concerns re-entry and paragraph 15 concerns entry under a warrant. The amendment goes on:
“If the creditor applies to the court, it may issue a warrant authorising an enforcement agent to use, if necessary, reasonable force to enter the premises for the purpose of taking control of goods... The court may issue a warrant under sub-paragraph (2) only if it is satisfied that there are exceptional circumstances.”
I want to put the emphasis on the requirement for exceptional circumstances.
The amendment goes on to require that
“In considering whether to issue a warrant under sub-paragraph (2), the court shall have regard to the matters set out in sub-paragraph (5)”.
Those matters are listed in a way in which that would be helpful to the implementation of the system, as follows:
“Those matters are—
(a) the nature of the debt
(b) whether the debtor resides at the premises specified in the application
(c) whether the debtor carries on a trade or business at those premises
(d) the personal financial circumstances of a debtor and their family.”
The amendment goes on to list a few more items for consideration and goes on to define “exceptional circumstances” as:
“(a) that the debtor has been given a reasonable opportunity to repay by affordable instalments but has deliberately or wilfully chosen not to do so;
(b) that the debtor is not a vulnerable person;
(c) that there is a reasonable prospect that the sum recovered from the sale of a debtor’s goods would be at least be equal to an amount prescribed by order of the Lord Chancellor.”
The amendment would also tidy up other provisions.
Amendment No. 100 would remove paragraph 24, which appears under the title “Other provisions about powers of entry”. Sub-paragraph (1) states:
“The power to enter and any power to use force are subject to any restriction imposed by or under regulations.”
Sub-paragraph (2) states:
“A power to use force does not include power to use force against persons, except to the extent that regulations provide that it does”
which, it seems to me, is extremely verbose. We wish to take those paragraphs out and insert the text of the amendment so that sub-paragraph (1) would read:
“Nothing in this Act shall permit the entry by force to a dwelling house by a civil enforcement agent where...the door is locked or secured against entry”,
which is self-explanatory, and
“a householder has indicated to a civil enforcement officer or enforcement agent that such entry is refused; or...where a dwelling is occupied or appears to be occupied by a person or persons under 16 or by a person lacking the mental capacity to understand the consequences of entry.”
Sub-paragraph (2) would read:
“(2) Nothing in this Act shall allow a civil enforcement officer pursing a fine recoverable as a civil debt to...search a person without their consent”—
which is extremely important—
“search a person of the opposite sex”
and, because there have been cases in which bailiffs removed watches from the arms of debtors,
remove items of clothing or jewellery or other wearing apparel”
or
“remove a person from a dwelling who has sole care of children resident in that dwelling whether the children are physically present at the time or not.”
The amendment also proposes a paragraph (3) that mentions a number of important points.
Amendment No. 99 would preserve the common law rights that restrict entry by force. Why is that so important? There are a number of reasons. The Bill as it stands will overturn two fundamental principles of our common law on bailiffs’ power to enter private property: that bailiffs may only enter peaceably and with the permission of the debtor. Those rights are fundamental.
That force may not be used to effect entry has been established in law since at least the 14th century. The case most often cited in relation to the rule that an Englishman’s home is his castle is Semayne’s case. That laid down very clearly that an individual householder has every right to deny entry to a bailiff or agent of the Crown. There have been many famous comments on the case, but none are as well known as that from William Pitt the Elder, first Earl of Chatham. It is a classic passage that sums up why it is so important to preserve that part of common law. In Southam v. Smout in 1964, Lord Denning quoted Pitt, who said:
“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 of England cannot enter—all his force dares not cross the threshold of the ruined tenement”.
We know that there are circumstances in which the police can launch dawn raids on people’s property and in which the uniformed services of this country can enter a property, but that established right in our common law makes it clear that if entry is refused, force may not be used to make that entry.
It is worth bearing in mind that, in that respect, the pass was arguably sold in the Domestic Violence, Crime and Victims Act 2004, which introduced the right of forcible entry in respect of some fines levied under that Act. We are asking for that implicit reversal of common law to be overturned. We feel that that is important, because it goes to the heart of the protection that people need. We are talking about some of the most vulnerable people in society. If we are to give them more power, surely that common law right should be reinstated.