I beg to move, That the Bill be now read a Second time.
I hope that hon. Members in all parts of the House will welcome at least some of the Bill, which was generally well received in the other place. The Government have listened and responded to the thoughtful debates there, and I hope that we can attain equal levels of thoughtfulness and responsiveness in this House.
The Bill reflects three key principles in the Government's legislative programme: institutional reform, extending opportunity, and protection for the vulnerable. The Bill aims to improve the experience of the public in their dealings with legal and quasi-legal problems by improving access to justice and the administration of justice.
The Bill makes far-reaching reforms in a number of areas. Part 1 delivers significant reform of tribunal institutions—the most significant changes to the system for 50 years. In part 2, we change the eligibility requirements for appointment to judicial office, thereby widening the pool of potential applicants. In part 3, we create a consolidated code of enforcement law and introduce increased regulation of enforcement agents, while part 5 will offer greater help to those who have fallen into debt and need assistance with their problems. Taken together, those measures will offer greater protection to the vulnerable. Part 4, by way of contrast, sets out more effective powers to pursue irresponsible judgment debtors who have the means to pay but choose not to do so. In addition, the Bill provides a regime to allow cultural artefacts to come to this country for exhibition without undue risk of seizure.
Tribunals deal with more than 500,000 disputes a year, often involving very vulnerable people. That includes people who have been victims of crime, persecution, discrimination or unfair treatment, or who are involved in disputes over benefit entitlement, tax or employment. Tribunals are an important means of resolving disputes between the individual and the state. They originally grew as attachments to the individual Departments with which the dispute occurred, and they grew in a disparate and unstructured manner over many years.
I pay tribute to Lord Irvine for perceiving, when Lord Chancellor, the need for a thorough and independent examination of tribunals, and to Sir Andrew Leggatt for his independent review of tribunals, published in 2001, which was the consequence of that referral. He found many faults with the system, and he recommended one that would be independent, coherent, professional, cost-effective and user-friendly: a system that he said would be
"fit for the users for whom they were intended".
We agree. We have already brought the administrative support for tribunals together, having launched the Tribunals Service agency last April. The service's aim is to provide the best possible support to enable tribunals to resolve disputes quickly, fairly and economically. The Bill reforms tribunals with a similar aim in mind. It intends to optimise the use of all tribunals with the user in mind. Its watchwords are openness, fairness and impartiality.
I am sure that there will be much discussion about that in Committee. The need for flexibility makes this an appropriate framework at present. If there are serious concerns that matters that we propose to deal with in secondary legislation should be in primary legislation, that will have to be discussed.
The Minister and I have had other conversations about legal aid, and I want to ask her about it in the context of this Bill. She knows that detailed factual and legal issues come up before tribunals, but what is the Government's position on whether legal aid should and will be available in any, some or all such cases? Do they have any proposals to make the immigration and asylum judicial process the same as other such processes, because it appears to be exempt from the two-tier system of a first hearing followed by an appeal, which the rest of the tribunal service will have as a result of the Bill?
The hon. Gentleman is certainly correct regarding his second point. There are no plans to incorporate the system beyond the current position. As for legal aid, if the changes that we are introducing—putting lawyers on to fixed fees for standard cases, with exceptional cases being paid for by the hour—have the desired effect, the legal aid budget will level out and become predictable. The reason for the changes is partly so that we can move legal aid over to the welfare benefit sector. I am not putting any particular tribunal as a first likely recipient of that impact, but it is key that we move money by introducing the fixed-fee regime now. I urge the hon. Gentleman, who I know is extremely interested in legal aid, to support those moves. Legal aid is available for the Lands Tribunal and the Employment Appeal Tribunal, and legal help is available for all preparatory work up to, but not including, representation at all tribunals.
Does the Minister know that a number of solicitors no longer give advice to asylum seekers, and does she think that there is any particular reason for that?
That is a big question. I am sure that my hon. Friend knows that there has been an attempt to ensure that only the best calibre asylum advice is given. The steps that we have taken to ensure that change have reduced the supplier base. A new set of legal aid fees for asylum advice was published on Thursday or Friday, which I hope will boost the confidence of current suppliers as to the profitability of that work.
I am grateful. On employment tribunals, when the last changes were made, there was quite a lot of concern about costs and wasted cost orders. It was clear that they cannot be made against non-profit making representatives such as the citizens advice bureau and trade unions. Will the Minister reassure me, regarding clause 29, that there is no intention to change that? Will she confirm that people who are acting in a voluntary capacity to assist others at employment tribunals will not be affected? There appears to be a contradiction, and I would be grateful if the Minister put my mind at rest on that.
I am grateful to my hon. Friend for mentioning that beforehand, because it enables me to confirm that there is no intended change in clause 29.
First and foremost, chapter 1 of part 1 puts it beyond doubt that the tribunal judiciary are independent of the Executive, and that the tribunals themselves are independent of the Departments that make the decisions that the tribunals will review. It is right that that has happened, and it strengthens our commitment to increasing public confidence in tribunals.
Chapter 1 creates a new judicial office. The senior president of tribunals, who will be the leader of the system, will hold a distinct statutory and independent office, and will be the voice of tribunals. I would like to say how pleased I am that the president designate is Lord Justice Robert Carnwath.
Chapter 2 of part 1 creates a new statutory framework for tribunals, which will be a two-tier system. The first-tier tribunal will deal mainly with first instance appeals from Departments and local authorities. The upper tribunal will deal with appeals on questions of law from the first tier. It will also be able to deal with judicial review cases in the specialist areas covered by tribunals when they are transferred by the High Court or the Court of Session.
Chapter 3 of part 1 will allow the Lord Chancellor to transfer to the new two-tier system the work of the tribunals listed in schedule 6. We envisage that that will occur between 12 and 18 months after Royal Assent. It will bring tribunals dealing with, for example, social security, tax, mental health and special educational needs into the new structure.
Because of the special nature of their work, the Asylum and Immigration Tribunal, employment tribunals and the Employment Appeal Tribunal will retain their existing legal frameworks, being separate pillars of the new structure, but they will still enjoy the benefits of the overarching Tribunals Service's single administrative structure. The tribunal reforms will create a single pool of tribunal judges and non-legal members. Judges and members will be able to sit in more than one jurisdiction, provided they have the appropriate skills or experience, and want to do so.
Chapters 4 and 6 of part 1 set out ancillary matters. Chapter 5 replaces the Council on Tribunals with a new Administrative Justice and Tribunals Council, which will have a wider remit to look at the administrative justice system as a whole, ensuring that relationships between the courts, tribunals, ombudsmen and alternative dispute resolution routes satisfactorily reflect the users' needs. It was pleasing that Lord Newton of Braintree, who is currently the chair of the Council on Tribunals, appeared to be ready for and pleased with that broader role in the administrative law arena. Again there will, of course, be a specific component to look at users' needs.
Finally, the Bill makes it easier for those who are awarded compensation by a tribunal or who are subject to an ACAS-brokered settlement to have that award or settlement enforced. We believe that will further increase confidence that justice can be delivered effectively.
Part 2 deals with judicial appointments and amends the minimum eligibility requirements for judicial appointments, which will comprise three elements. First, applicants will have to be suitably qualified as a barrister, solicitor or, for some appointments, as a legal executive, patent agent or trade mark attorney.
Secondly, they must have held that qualification for seven years or five years, depending on the post. That is a reduction from the current 10-year and seven-year qualification periods—thus, the qualification for circuit and High Court judges will be reduced from 10 to seven years, and for district judges it will be reduced from seven to five years. Tribunal appointments will match.
Thirdly, during the qualifying period they must have gained post-qualification legal experience. That would include, for example, practice or employment as a lawyer, acting as an arbitrator or mediator, carrying out judicial functions, or teaching or researching law.
The changes will increase the pool of those who are eligible for appointment, particularly by enabling fellows of the Institutes of Legal Executives, Patent Agents and Trade Mark Attorneys to become eligible to apply for judicial office. The changes will also ensure that those in the pool have actually been engaged in legal work after qualifying and before becoming eligible.
Overall, we think the numbers in the pool will increase. Of course, all appointments will continue to be made on merit, and merit alone. That remains the test of suitability, and the Judicial Appointments Commission will continue to apply it rigorously. The larger the pool of people qualified to apply to be judges, the higher the quality should be of those who are appointed.
The jurisdiction that obtains in England and Wales is much sought after around the world for various dispute resolutions and it is a considerable source of foreign earnings for this country. I am concerned that the provisions in part 2 might dilute that reputation, so will my hon. and learned Friend reinforce what she said just before she kindly gave way to me—that there will still be a process of rigorous scrutiny to ensure that the wider pool of applicants are thoroughly investigated so that we retain high standards in our judiciary?
I can give my hon. Friend that assurance entirely. It is a very odd notion that widening the pool will dilute the quality. The usual understanding is that widening the pool of appropriately qualified people will inevitably enhance the quality of the people chosen from that pool. The selection process will be on merit and in every way compatible with the Constitutional Reform Act 2005, which was recently brought into force.
Many people have the concern that this is not widening the pool in order to gain a higher calibre of people, but widening it in order to meet some politically correct target to get more women or people from ethnic minorities in as judges. Unlike the politically correct consensus in this place, I do not want more women judges; I just want the best people to be judges—irrespective of whether they are women or men or from ethnic minorities. Will the Minister explain why she is giving up on selecting people by merit when the number of women judges appears to be about the same proportion as the number of men in the Equal Opportunities Commission? Why is it such a big issue?
I cannot think that the hon. Gentleman has listened to what I just said. I said that selection will be on merit and, clearly contrary to how the hon. Gentleman's thought processes work, women are capable of being meritorious—
One widens the pool in order to extend the diverse range of people who are eligible and one then chooses rigorously from those. I cannot see how even the hon. Gentleman could find fault with that.
If a magistrate obtains a legal qualification or was previously legally qualified, or if an academic is a solicitor or member of the Bar, or if someone in the commercial sector has a legal qualification, would they after a certain number of years' service in those three areas of work be eligible—if they were suitably competent and passed the other merit tests—to be appointed to the bench?
I am sure about the magistrate and the commercial lawyer, but I am less sure about the academic who had not practised. I think so, but I will shortly provide the hon. Gentleman with an answer to that specific question.
I move on now to deal with part 3, which is about enforcement by taking control of goods. Chapter 1 of part 3 provides a comprehensive code for the enforcement of civil debts, judgments and criminal fines by the seizure and sale of goods.
My office has had several run-ins with bailiffs and I hope that my hon. and learned Friend can provide some answers this afternoon to my concerns about them. We have had cases of bailiffs turning up at houses to collect goods, when the previous householder who owed the debt has moved. We have had two cases of large companies pursuing debts against householders whose identities had been stolen, and we have had many cases of bailiffs turning up to collect debts when the company or the local authority have had the debt paid but failed to communicate that fact to the bailiffs whom they instructed. While the Minister is discussing part 3, will she give me some assurances about providing safeguards for such innocent people?
I know of even worse problems with bailiffs than that. Sometimes it is not just about them turning up at the right place, but about how they behave when they get there, which has often been a cause of concern. I will come on to setting out the particular provisions shortly, but the intention is that there should no longer be any bailiffs who are not certificated by a county court judge. There should be no such people at all, so that should get rid of those who make those sorts of errors or behave in a disreputable way. I will come on to the specific powers in the Bill a little later, if I may.
Will the Minister make it clear that, during the Bill's progress, she intends to heed the advice of the advice agencies and the bailiffs themselves that there should be no question whatever of physical force and restraint being empowered, since it appears that only High Court enforcement officers are seeking that power, and they already have powers of arrest? Will she rule out completely any provision in the Bill for the use of physical force and restraint?
The hon. Gentleman is right that High Court enforcement officers already have the power to use force where necessary. There is a debate about whether it should be extended to other certificated bailiffs. We are consulting on that issue, and it will be discussed if the view from the consultation is that the power is necessary. However, the Government have a fairly open mind about whether there should be any such power, and there is nothing in the Bill to permit it. Schedule 12 says that there shall be no use of force, unless regulations provide for it.
The hon. and learned Lady has been very generous, as she always is on these occasions. She refers to the consultations. Clearly, groups such as the citizens advice bureaux have made their understandable concern known to hon. Members, but one of my constituents is chairman of the Enforcement Law Reform Group and he tells me that it is the view of the bailiffs' representative organisation that the
"Government is turning a deaf ear to almost everyone with a legitimate interest in bailiff law."
So I am sure that the Minister will understand that there is concern, now that we are overturning 400 years of accepted legal practice in this country, about the Government's consultation process. Will she share with the House what the vested interested groups are? As far as I can see, neither the citizens advice bureaux for consumers nor the bailiffs themselves are entirely happy with what she is proposing.
I think that the topic has moved on from the one that was raised by Dr. Cable. I assume that the hon. Gentleman's cogent, if not pungent, reference to 400 years of history relates to any right to enter property using reasonable force, so I shall now turn to that provision. It is very important that the Bill provides a comprehensive code for the enforcement of civil debts, judgments and criminal fines by seizure and sale, because it has been a very confused, overlapping and interwoven picture so far. I understand that some elements of the law go back as far as 1267. An enforcement agent's powers to seize and sell goods when enforcing judgments, civil debts and criminal fines have been set out in different places, with different rules applying to different debts—for example, depending on whether the debt is a tax debt or relates to a county court judgment. That does not make much difference to the recipient of the visit from the bailiff, but the various powers have been set out in different places—very confusing.
Clauses 57 to 60 and schedules 12 and 13 will replace innumerable common law rules and repeal various statutory provisions and replace them with a single comprehensive code for enforcement by taking control of goods. Everyone—creditors, debtors and agents—will benefit from clear, modernised enforcement law. Given the reference to 400 years of history, let me set out the position of bailiffs and the right to enter using reasonable force. First, the power to use reasonable force to enter premises to recover money without any specific prior judicial authority was introduced in the Domestic Violence, Crime and Victims Act 2004. So there is an existing right to use reasonable force to enter premises to recover money without specific, prior judicial authority—that is, on a case-by-case basis—and that power is not widened or extended at all in the Bill: it is reiterated in paragraph 18 of schedule 12. I am told that the power has been used rarely, even in situations of fine enforcement.
The change proposed in the Bill will permit an application to a judge in a specific case, to permit an enforcement agent to use reasonable force to enter premises to recover a civil debt. That is, in a sense, a change of principle, so I pause to make it clear that the change proposed relates to an individual's civil debt, rather than a debt owed to the state by a fine defaulter. The debt may be to an individual or to a state Department. There are all sorts of moral possibilities. The debt may be owed by a one-parent family, about which there has been much talk in the press today; by the owner of a big business who is refusing to pay, although he obviously has the cash or possessions to do so; or by a small sole trader who would go out of business and put his family on to benefits if it is not paid soon. It is the state, though, through the mechanism of the courts, that will totally control the use of the power, in that its use will involve an application to a judge and there will be guidance, which is currently set out in a detailed policy statement, in delegated powers as to what he must have regard to before granting the application.
My biggest concern is not what will happen to big companies that are forced to deal with the contracts; it is the fact that the most vulnerable people in our society will be the most affected by the legislation. I am curious to know how the hon. and learned Lady will deal with the sensitivities involved in dealing with the most vulnerable people in our society.
It is a pretty sweeping statement to say that it is the most vulnerable people in society who are covered; it is, of course, all debtors.
All right. I am happy to share the hon. Gentleman's concern for the most vulnerable in society; there would be few in the Chamber who would say that they did not.
As I have said, it is proposed that, in specific cases, there will be an application to a judge if there is a need to permit an enforcement agent to use reasonable force to enter premises. 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 walk-in possession—now to be called controlled goods agencies—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 can put conditions on the power if he chooses to grant the application.
As the Minister will be aware, one of the concerns of Citizens Advice is the fact that disreputable bailiffs may misrepresent their powers. Some 39.5 per cent. of its bureaux report that bailiffs are misrepresenting their powers of entry. Will she confirm the likely time scale for the introduction of the codified powers and what she has described as a change of principle? How will that interrelate with the new registration process, which is subject to consultation? The consultation period expires at the end of April. How will those two issues be interlinked, given the concerns that have been expressed?
The simplifying code of procedure is in the Bill, so it will be available to be introduced on Royal Assent. The process of certificating all bailiffs can also commence as soon as the Bill comes into force. As the hon. Gentleman perhaps knows, and as I will come on to say, this is intended to be an interim solution until there can be proper regulation by, probably, the Security Industry Authority. By introducing a coherent code and simultaneously requiring that all bailiffs be certificated, we hope that we can dovetail the two things that are causing difficulty at the moment.
Would it not be better to wait for the full solution of regulation before introducing the powers, or at least before implementing them? Grave concerns have been outlined by Citizens Advice and others. Is the Minister really happy with the way the process is working?
The powers should not, in my view, be used by anybody who is not a certificated bailiff; it would be necessary for that certification to have been attained before anyone could use the powers. We urgently need to bring in a coherent code, because the abuses to which various people have alluded are taking place.
I am grateful to the hon. and learned Lady for that answer, but I was referring to the fuller system of regulation of bailiffs, on which she is consulting. Given that it is obviously the Government's view that a full system of regulation is required, should it not be put in place before strong extra powers are implemented?
We think that the county court judges doing the regulating are capable of ensuring that there is acceptable quality. More detailed regulation needs to follow, but it seems to us that the right balance is struck in the Bill.
As the hon. and learned Lady has made plain, she does not think that any bailiff who is not certificated should be able to be involved in the procedures. Would it not be sensible, and reassuring to Citizens Advice and others, to delay the implementation of the part of the Bill that we are discussing?
As the hon. and learned Lady will know, we are discussing the most controversial part of the Bill, and the part that gives rise to the greatest concerns. I absolutely share the view expressed by the hon. Members for South Staffordshire (Sir Patrick Cormack) and for North-East Hertfordshire (Mr. Heald). Will she tell us whether there is any remedy for somebody who believes that their goods were taken wrongly or inappropriately, either in the current guidance or in the Government's proposals for developing that guidance and putting it to the regulatory authority? Often, one of the issues is that when something is taken there is no recourse, even if that enforcement was wrongly done. Is there an available remedy, or a holding time—a time for putting right what may have been done wrongly?
I cannot say that there is a holding period, or that it would be practical to provide one. There will be remedies, both of a penal kind and of a recovery kind, for people who act without certificates and for wrongful enforcement. In fact, there is a course of action for wrongful enforcement now. The hon. Gentleman asked me earlier whether magistrates, commercial lawyers and legal academics were eligible under the judicial appointments system. All would be eligible if they met the qualifying period requirements, assuming that they were suitably qualified as solicitors, barristers, legal executives, trademark attorneys or patent agents. I am sorry that I could not give him a comprehensive reply earlier.
What safeguards will there be, either in the Bill or in the secondary legislation, to protect people whose identities have clearly been stolen? In one of the cases to which I referred earlier, it took us a week to prove to a large multinational company that it was pursuing a gentleman who clearly was not responsible for the goods for which it accused him of being responsible.
The reassurance that I can immediately offer is that the judge will have to be satisfied that the action is a last resort, and that all other relevant means of trying to recover judgment have been used. It would be pretty extraordinary if a whole course of conduct had been gone through to try to enforce against a particular individual, yet it had not become clear that it was not the right individual. The last resort position is helpful in that respect, but if my hon. Friend can envisage something more specific that is likely to give people further reassurance, of course we would be ready to consider it. As I say, the warrant to enforce fines is used very rarely, and we anticipate that the measure will be a last resort. There will have been many dealings and attempted dealings between the court and the debtor before we even arrive at a situation in which the power could be used, so a situation such as that described by my hon. Friend ought to have been clarified by then.
To return to the issue of forced entry, I listened carefully to the conditions that a judge would consider before granting a warrant, and I applaud all of them. My hon. and learned Friend concluded with the catch-all expression, "any other...circumstances". Does that refer to financial circumstances or to personal circumstances? Other hon. Members have mentioned, vulnerability—a generic term that covers advanced age, disability, recent bereavement, young children whose welfare could be put at risk, serious long-term or acute illness, and properties that are classified as sheltered housing. Would such conditions be considered by a judge, too, before granting a warrant?
Yes. My hon. Friend set out very clearly the considerations we intend to include under a heading that, I accept, was a catch-all, as it refers to any other information about the debtor's personal circumstances. The decision will be made by an experienced county court judge, who must have all the facts before them, so that it will be a reasonable one. It is a big step for anyone to be authorised to take, and I do not doubt for one minute that it will be taken only in the rarest circumstances, when every other possibility has been exhausted.
Independent regulation of bailiffs was suggested in the White Paper "Effective Enforcement", in 2003. If the Government decide after their current consultation to make the Security Industry Authority the independent regulator, when is the earliest possible date at which that decision could come into effect?
It is hard to be specific. An affirmative resolution would be required to bring bailiffs within the Private Security Industry Act 2001. That necessary step could be taken before the summer recess, and it would then be a question of putting training in place. Indeed, increased training is an important consideration.
I am grateful to the hon. and learned Lady for giving way; she has been generous in accepting interventions. On the question of training, concern has been expressed that private bailiffs, who will be properly trained and can exercise reasonable force, can take other people under their direction on to the premises. Who will those people be, how will they be trained, and what safeguards will there be to ensure that they do not behave unsatisfactorily?
Reasonable force can be used to enter premises. Bailiffs are not entitled to use reasonable force against people at all. The plan is that the locksmith should come with the bailiff to remove the lock from the door—that is the best way of getting in—and to put another lock on the door afterwards to secure the property. Training will be available for people who have a supervisory role in the security industry, and under the new system they will be responsible for those whom they take with them. In the model at which we are looking, the locksmith is needed for practical reasons to support the bailiff's activity.
No doubt it is self-evident after that analysis, but any condition can be imposed by a judge on the warrant for entry. It may be appropriate, for instance, to ask a constable or a police community support officer to go along, or to ensure that a woman officer is present if a woman is likely to be the person in a premises. That would be an entirely reasonable and probably desirable condition for a judge to consider putting on such an order.
That is the nature of the new proposal, and given everything that I have set out, it is far likelier to be used, if it is used, against the "won't pay" rather than the "can't pay". Is it a necessary power? The alternative is to say that whatever the debt, whatever family distress may be caused by non-payment of the debt, and however clear it is that someone can pay but will not pay, even if attachment of earnings has failed, and judges have made orders of all kinds to try to enforce, someone can avoid recovery against his goods if he simply keeps his front door shut. That is not satisfactory for judgment creditors, for businesses that require bills to be paid to keep going, or for a belief in the administration of justice. Is there any point at all in people going to court if, in the end, all someone needs to do is to close their front door to prevent enforcement?
I have experience of complaints about bailiff abuse. We will regulate—I will come to that. We cannot allow a continuation of the present situation, which gives rise to visits to our surgeries because some bailiffs who do not have the right to enter through the formal channel use force. They stick their foot in the door, go in through an open window or a skylight, wait till the garden is open and so on. Such appalling, scary behaviour cannot continue. We believe that the regulation that I shall describe will stop that, and that this carefully and finely tailored procedure is the way forward.
The changes should control the actions of enforcement agencies, determining, for example, when the agent goes in—between fixed hours, not at dead of night. The changes introduce a simplified fee structure applicable to enforcement agents when seizing and selling goods, an aspect that has been open to abuse in the past. If they are paid an up-front fee for what they do, they will be less desperate to get their cut through enforcement.
Coupled with these changes, clauses 58 and 59 introduce greater regulation of enforcement agents who are not Crown employees or constables. Currently only certain enforcement agents hold a certificate under the 1888 legislation. The Bill extends and modifies certification to cover any enforcement agent who is not exempt and who wishes to seize and sell goods for the enforcement of judgments and fines. The certification process is set out in regulations made under clause 59.
In order to qualify, agents will have completed suitable training, which will include an understanding of vulnerability, diversity training, how to mediate heated situations, and an understanding that they represent the public interest and are the officers of the court, not solely the fee-earning agent of the creditor—an important realisation. They will be subject to strict criminal record checks. It is possible, and indeed likely, that judges will take evidence in court from individuals to ensure that they understand their role and their powers, and a bond will need to be deposited. I hope that even in this interim proposal, pending the advent of full regulation by the Security Industry Authority, there will be a strong guarantee of better quality in bailiffs. The level of fine for acting without a certificate will be increased from a derisory £200 to £5,000.
This is, however, an interim solution. The Government remain committed to regulating all non-Crown employed enforcement agents through an independent regulator. A consultation document was issued on
Before the hon. and learned Lady goes into more detail about the SIA, may I ask her about the magistrates courts guidance on search and entry powers, which was brought in under the 2004 Act to which she referred? That is the guidance to bailiffs as to how they should conduct themselves and what they may do. I understand that part of the guidance has been published, but 15 of the 31 pages have been redacted—that is, blacked out. Is there any possibility of our seeing the full text of the guidance? In the context of her remarks, it is important for us to know what guidance there is to bailiffs.
I am aware that there have been applications to see the full text, but the rationale for leaving out part of the guidance is that if people are told how bailiffs are to go about their business, they can put defence mechanisms in place to stop them. I will make inquiries to see whether parliamentarians on a particular footing may be entrusted with the information. I imagine that that will be possible, but I will have to take advice.
May I ask the Minister the simple real-world question that she, I and others will have faced in surgeries? How does an ordinary member of the public know that somebody who is not a police officer or dressed to look like a police officer has authority to require them to open the door, and to go in? Most people naturally say, "I'm not opening the door, because I'm not certain that this person has any authority to come into my house."
Bailiffs must carry their authorisation with them, and they must display it on request either before admission or, if necessary, after admission. The guidance might be better if it simply said that they must show it as they arrive. I would have no personal problem with their wearing uniforms, which has not been suggested but which is worth considering.
I suggest that the police should be informed. There was a situation involving one of my constituents in which someone, who rejoiced in the alias "Mr. Colorado", showed up and effectively stole a digging machine, which was not the subject of court proceedings. The owner of the digging machine called the police, who said, "This is a bailiff. You must let him have it." Neither the digging machine nor Mr. Colorado have been seen again, and my constituent came to see me because, unsurprisingly, he had had a barney with the police officers who allowed that rogue to disappear with his digging machine. Is it possible to let the police know about the proper certification procedure, to ensure that that does not happen again?
The police must know the proper procedure. My hon. Friend has raised a powerful point.
Chapter 2 of part 3 also abolishes the common law right of distress for rent and replaces it with a new, more limited power of commercial rent arrears recovery, which will apply only to the seizure and sale of goods in the enforcement of commercial rent arrears. That procedure will not apply to residential premises. Taken together, that package of measures will help to protect the vulnerable from the over-zealous or illegal pursuit of debts.
Part 4 concerns the enforcement of judgments and orders. By contrast, it aims to tackle those who have the means to pay their debts but who choose not to. Clause 86 will simplify and streamline the arrangements for deducting payment of a judgment debt directly from a debtor's salary. In future, deductions from salary will be made according to fixed rates, as they are for council tax debts and magistrates courts fines, rather than setting a specific rate for each debtor. A further difficulty is the lapse in orders where debtors change employers but fail to notify the court or the creditor. Clause 87 will allow Her Majesty's Revenue and Customs to provide the court with the new employer's details in such cases.
Clauses 88 and 89 make changes to the law governing charging orders. They close a loophole in the current law that prevents the charging of a property, if the debtor is maintaining payments under an instalment order. That means that if a debtor with large judgment debts is meeting their regular instalments, they can sell assets such as a second home or shares without paying off those debts in full. That loophole will be blocked, but it will not be possible for the creditor to obtain an order for sale as long as such an individual is paying the instalments. There will also be minimum thresholds below which a creditor will not be allowed to apply for a charging order to introduce some balance.
Part 4 will also help the civil courts track missing judgment debtors. It cannot be right for those who owe money and who have a judgment against them to avoid payment by going to ground. Clauses 90 to 97 therefore include measures to allow the courts to seek information from Revenue and Customs and a designated Secretary of State about a debtor. The Secretary of State for Work and Pensions is likely to be designated for those purposes.
The courts will also be empowered to request information from other bodies designated in regulations made by the Lord Chancellor to assist in the enforcement of judgments. We anticipate that banks and credit reference agencies are likely to be designated. Safeguards have been built into the process, including the new offences in clause 97, to ensure that information collected in that way is not abused.
I want to make two brief points. First, clause 90(1) is infelicitously worded. After the word, "information", it should say, "to assist that creditor to make an informed decision". Secondly, clause 92(4)(d) refers to "prescribed information", but I cannot find an indication either in the explanatory notes or on the face of the Bill as to what that is. When I was an articled clerk doing such work about 20 years ago, such cases would go to what was known as "an oral examination as to means"—I think that that involved form N39—to consider matters such as whether the debtor was employed. In such cases, the debtor answered questions under oath. I wonder what prescribed information a court would seek from a Ministry on application.
My hon. Friend has bought himself an opportunity to serve on the Committee. I will take advice on the point that he raises about clause 92(4)(d).
Part 5 is about debt management and relief. It affords greater protection to those who should be able to pay their debts but cannot deal with their financial problems, or require temporary protection to enable them to get back on their feet. It also deals with those who cannot pay their debts and are unable to access current debt relief procedures. It introduces a package of targeted measures that improve and extend the range of solutions available to help debtors with low incomes and debts. Those solutions seek to promote financial inclusion and are targeted particularly at those who are disproportionately affected by debt and are generally least able to deal with competing creditor demands.
Chapter 1 of part 5 updates and amends the system of county court administration orders, removing the statutory limit on debts, which is currently set at £5,000, and allowing the Lord Chancellor to set it at a more realistic level so as to be helpful to more people.
Chapter 2 introduces an enforcement restriction order allowing the court to make an order to protect a debtor from enforcement by their unsecured creditors for up to 12 months. That is likely to cover a sudden and unexpected deterioration in a person's financial circumstances—for instance, through losing their job or sudden illness—and where there is a realistic prospect of their being able to repay their debts within a reasonable time scale, through recovery, for example. That is an important provision.
Chapter 3 introduces a new individual insolvency procedure called the debt relief order for those who owe relatively little, are on low incomes with low levels of assets, and who have no realistic financial prospect of paying their debts within a reasonable time frame. Bankruptcy would be disproportionate for such people, who are financially excluded from the other debt solutions that are available because they have no money to pay their creditors and cannot afford the £325 required to present a petition for bankruptcy.
Chapter 4 will let the Lord Chancellor approve debt management schemes. Many organisations negotiate with creditors on behalf of debtors and set up debt repayment plans, but those depend on voluntary creditor participation, and one unco-operative creditor can block the creation of such a plan. The Bill will allow that to be addressed.
These measures strike an appropriate balance between the rights of the creditor and the needs of the debtor. They provide clear incentives to encourage debtor compliance for the lifetime of an order, including powers to tackle abuses. At the same time, orders that include a repayment element will offer creditors potentially higher returns than provided by the current system. Details of orders made under the new measures in part 5 will be available on public registers so that creditors can make better-informed decisions on future lending. In conjunction with the Bill, the Government are committed to encouraging responsible lending through a range of actions, including implementation of the reformed consumer credit licensing regime introduced by the Consumer Credit Act 2006.
Part 6 provides immunity from seizure for cultural objects that are lent to the United Kingdom for temporary exhibitions to the public at an approved museum or gallery. We currently have no anti-seizure legislation, and foreign lenders are becoming reluctant to lend works of art to the UK. The problems that that may cause were illustrated by the seizure in 2005 of 55 Russian impressionist paintings on loan to an exhibition in Switzerland, under a court order obtained by one of Russia's creditors. This places us at a disadvantage compared with other countries and will ultimately limit our museums' ability to stage major exhibitions. Apparently, problems have already arisen. An important Chinese exhibition planned by the British Museum for 2004 was cancelled after a major loan from Taiwan could not be secured because the lender could not be assured that the material would be protected from seizure while it was in the UK. The measure is particularly important for London as it becomes the centre of the world stage in the lead-up to the 2012 Olympics, at a time when many of our leading institutions are planning major exhibitions to coincide with that.
This part of the Bill has received a widespread welcome, particularly from directors of museums and galleries. Does the hon. and learned Lady agree that it is very important that it should be implemented as soon as is reasonably possible, because London has already slipped down the league table of major exhibition cities?
Does the Minister accept that, although I understand and sympathise with the point that the museums and galleries and Sir Patrick Cormack made, there are two interests to consider? One is the ability of museums and galleries to loan and borrow works, and the other is the interest of people who have a claim to works of art that may have been illicitly traded or looted, especially by Nazis in the second world war. It is not impossible to reconcile both interests, but despite the constructive changes that have been made in the other place, I do not accept that we are quite there yet. I hope that my hon. and learned Friend will retain an open mind, because it is possible to reconcile the interest of the museums and galleries with those of putative owners, but we are not there yet.
I note my hon. Friend's comments. My noble Friend Baroness Ashton has worked hard in the House of Lords to try to reconcile those interests. We owe a debt of gratitude to Lord Janner, who has also worked hard on the matter. I had hoped that we were there, but doubtless the issue will arise again in Committee.
The immunity will provide protection only from seizure. It will not protect museums in the UK or lenders from being subject to a claim in conversion. The specific restitution of a work of art being claimed is only one of the remedies that the court can award. It can also award damages. The lawyers present will know that that means that all that is being protected is the picture, not its value. The immunity will be given only to museums and galleries approved by the Secretary of State for Culture, Media and Sport, or, for institutions in Wales or Scotland, Welsh or Scottish Ministers.
We have listened to concerns expressed in the other place and added an extra safeguard to the Bill in clause 131, which lists the factors that must be considered before a museum or gallery can be approved. In particular, to be approved for receiving immunity, institutions will have to satisfy the relevant Minister that their procedures for checking the provenance of an item that they intend to borrow are satisfactory and comply with Department for Culture, Media and Sport guidance on due diligence. If museums do not maintain high standards of due diligence, especially if they do not follow the guidelines, they risk the withdrawal of that approval—and the protection given by the provisions.
Museums and galleries will have to publish specified information about objects that they intend to borrow, in advance of bringing them to the UK. That will enable anyone to raise questions about an object's provenance before it arrives. When a query is raised, the institution will need to examine the evidence carefully before taking a final decision on whether to borrow the object.
Parts 7 and 8 deal with miscellaneous provisions, including measures to allow the High Court in judicial review proceedings to substitute its decision for that of a court or tribunal when the original decision is quashed on the ground that there has been an error in law. Part 8 contains general stuff, including extent and commencement.
The proposed reforms will have a profound effect on the lives of many people. The Bill will improve access to justice—
My hon. and learned Friend suddenly accelerated through part 7. I want to ask about clause 137, which is entitled "Recovery of sums payable under compromises involving ACAS". Will she briefly explain the need for the provision, given that the majority of signed compromise agreements never go near ACAS and are enforceable in the civil courts?
My hon. Friend refers to an ACAS-negotiated agreement. It is simply a contract, so it has to be sued on, just like any other commercial contract, in the civil court. People who believe that they have toiled through one set of proceedings and got an answer have to start again with another set in the civil court. The clause therefore provides for a much speedier process to ensure enforcement.
I have an answer to my hon. Friend's earlier question about prescribed information but I shall hand it to him, if I may.
The Bill will improve access to justice, reform institutions to deliver better services to users, and deliver reforms to protect many of the most vulnerable in society. After nearly one hour, I commend it to the House.
The Tribunals, Courts and Enforcement Bill may not be the raciest title to come before us this Session, but the Bill covers important subjects that affect people in their everyday lives. I want first to pay tribute to my noble Friends Lords Kingsland and Lucas, who made some important improvements in the other place and turned this into a better Bill.
Tribunals exist to allow people straightforward, inexpensive and relatively informal access to justice and they play a crucial role in our justice system and our society. Equally, the enforcement of debt is crucial to business, but also vital to consumers, particularly as debt is at an all-time high.
We support the broad objectives of the Bill. It will unify the tribunal system, and much of it is based on Sir Andrew Leggatt's report, "Tribunals for Users", which proposed significant structural reform of the tribunal system, including a move towards a unified service. The purpose of that is to improve and simplify the tribunals for those who are required to use them, which is an objective that we fully support.
There are 70 tribunals with many different sets of rules of procedure. That makes the system more complicated than it needs to be and difficult for users. Sir Andrew's report set out three key principles for reform: first, and most important, the tribunal system should be completely independent of the Executive; secondly, the system should be rationalised to give the full benefit of economies of scale; and, thirdly, tribunals should not be courts and should be there for the users and be a reflection not of the state, but of the needs of the consumer.
On the first principle, the Bill is a great improvement on the existing arrangements. Each Department of State provides administrative support for each relevant tribunal, appoints and pays the members, and sets out—or promotes—the legislation defining what their procedural rules should be. However, for bodies that have an important judicial function, tribunals have not been constituted sufficiently independently. Responsibility for administering tribunals should not fall on the very Department whose decision the tribunal will be judging, so we support the Government's proposals in that area.
Economies of scale will achieve improvements of two sorts. With the Department for Constitutional Affairs responsible for a single tribunal system, there will be opportunities to make savings by amalgamating functions: dealing with the appointment of staff, more flexible working of staff between tribunals, the purchase of equipment in bulk, united interpretation and other communications services, training, and the efficient use of premises. However, we have certain concerns over some ways in which the intentions behind the Bill are to be delivered.
Quite understandably, and as is his usual practice, my hon. Friend has set out his concerns in a reasonable manner, but is he angered by the fact that the Bill, which on the whole seems to be welcomed by all sides, will be in Committee only until
My hon. Friend comes from a tradition in this place of believing that it is important to have full debate. I remember serving with him some years ago on a Committee considering a criminal justice Bill, which I recall sat for 245 hours. That is the tradition that I know he wishes to uphold. I am sorry that the Bill is unlikely to have quite so long to be set in context, but I know that he is making a powerful bid to be a member of the Committee, and I am sure that he will grace it and enhance its deliberations.
As one who is not making a bid to be on the Committee, may I ask my hon. Friend whether he would be kind enough to agree that that is a classic illustration of the need for a second Chamber whose Members are not encumbered by constituency problems and who may devote plenty of time to critical scrutiny of a Bill? Does he agree that the House of Lords has done a brilliant job in this particular case?
I agree that the other place has done an excellent job on this Bill, and that it does an excellent job on many Bills, which we do not have adequate time to consider fully. I also agree that the powers of the other place must remain undimmed, unchanged and certainly not eroded. I would like to see a few more Members of the other place with some constituency interests—[Hon. Members: "Why?"] Well, in two days' time, I am winding up the debate on the composition of the House of Lords, so hon. Members will get the whole nine yards—
That is exactly my point, Madam Deputy Speaker.
To return to the exciting measure before us, the Opposition have some concerns about the Department for Constitutional Affairs. It is struggling to manage its current responsibilities for the courts system. The Magistrates Association recently felt compelled to write to the Prime Minister to complain about chaos in the magistrates courts. The senior county court judge in London has also been highly critical of the situation in county courts. As the Minister knows, there is concern over legal aid, and the Government are behind on their freedom of information cases and are trying desperately to pull back using more restrictive rules. There is blistering criticism of the Department over electoral fraud.
It is being suggested, however, that the DCA should take over not just tribunals but prisons, the probation service, the Privy Council Office and criminal justice policy. If those proposals were building on strength, one might say, "That'll be a challenge." But the Department is already failing in almost all the areas that it covers. Can the Minister assure us that the Department is up to the challenge of taking over the world in the way that seems to be suggested?
I do not know how many would share the Minister's blind confidence.
On the user-friendliness of tribunals, which the Minister mentioned, Sir Andrew Leggatt explicitly emphasised that tribunals exist for users, and should be as accessible as possible, unthreatening, relatively informal and consumer-friendly environments. Most tribunal members are good at relating to and dealing with the people who come before them. As the Minister knows, I practised in the then industrial, now employment, tribunals for many years. There was pride in the fact that the tribunal was not legalistic and its members were from and understood the workplace, and were often referred to as an industrial jury. One issue that concerns us is that the legally qualified members of tribunals are now to be called judges. Will the Minister explain that? The term "judge" is associated with courts, and is not the sort of title or standing that one associates with a tribunal, in which the person who fills that role has always been described as the chairman.
I am happy to respond. It is intended that the usual form of address—"sir", "madam" or whatever—will continue. The person filling that position has variously been called the commissioner, the chair and, as I remember from the Lands Tribunal, the member, but the name "judge" connotes independence, so we wanted that to be used.
I know that the name "adjudicator" has been abolished in favour of "judge" in the immigration jurisdiction, but in this case it seemed odd. If the Minister is saying that measures will be taken to ensure that the form of address is not "your honour", and that the tribunal will remain informal, that would be helpful, and we would certainly like to see that happen.
Concerns have been raised about the ability of the new upper tribunal to hear judicial review cases. As the Minister knows, that area of law has traditionally been reserved for the administrative court list in the Queen's Bench division, because of the nature of the work and the experience and competence that it requires. While we support access to justice for all, and judicial review is included in that, reforms must not be made at the expense of quality decision-making, particularly in a delicate and developing area of law that includes many cases with a human-rights element.
We all know of the Lord Chancellor's recent comment that decisions under the Human Rights Act are common sense and anyone who says otherwise is bonkers. Now, however, he seems to be saying that it would be right for matters of this sort to be dealt with at a lower level than the High Court. Can the Minister explain why that decision was made? Obviously there may be a shortage of High Court judges, but is it really right to downplay such an important role?
But the amendment also states that other judges can be allowed to do the work. Why is that?
Part 3 relates to enforcement. The enforcement of justice is vital to the rule of law; none the less, we shall want to explore in Committee whether some of the new powers that the Bill gives to enforcement agents justify greater protections for the vulnerable. We welcome the Government's consultation on the regulation of enforcement agents, announced on
As the hon. Gentleman says, it was then not abolished. It took 250 amendments in the other place, a U-turn and a concordat with the Lord Chief Justice to sort out that mess.
I may share the hon. Gentleman's reservations about some consultations, but the example he has just given is not a very good one. The proposal to abolish the post of Lord Chancellor went out to consultation, following which the post was not abolished. Ergo, it appears that the Government took account of the consultation.
I think the hon. Gentleman is describing as consultation what was in fact a forced U-turn, when the Government realised that what they were proposing would not work.
What worries us is that the Bill sweeps away ancient British rights with only the offer of protection by regulation some time in the future. In that respect in particular, it is very much a skeleton Bill. We will therefore aim to ensure that the powers of enforcement are not increased while individuals are left almost entirely unprotected.
I raised the question of the regulation of bailiffs just before Christmas, and received a somewhat unsatisfactory answer from the Minister of State. A consultation exercise is currently under way, but does the hon. Gentleman agree that it is unfortunate that the Security Industry Authority will not be given any powers to handle and resolve complaints about bailiffs? People will still have to go to court. Moreover, the authority will have no powers to deal with persistent bad conduct on the part of firms or individuals, which is seen daily by citizens advice bureaux throughout the land. Are we not missing an opportunity to include the regulation of bailiffs in the Bill now, rather than at some uncertain time in the future following consultation?
I agree with the hon. Gentleman and, in a way, the consultation appears to be a response to the sorts of concerns that he, the citizens advice bureaux and others have been expressing.
Some of the examples given by citizens advice bureaux are worrying. One of them involved bailiffs forcing their way into a London woman's flat to recover a parking fine that had, in fact, been imposed many months after she had sold the car concerned. She had confirmation of the change of ownership from the Driver and Vehicle Licensing Agency, so she had followed her responsibilities, but the bailiffs threatened to call the police, accused her of assaulting them and then listed property that they were going to take from the flat and said that they would not take it immediately if she paid them £200. Her grandmother, who was visiting, paid on her behalf, even though that woman did not owe a penny.
Am I right in inferring that the hon. Gentleman would be happy to work with colleagues on the Government Back Benches and members of my party and others to try to persuade the Government, as the Bill passes through the House, that it would be sensible to do the two things in one—to do both the review of the rights of bailiffs and the regulation of the entire industry of people who do that work—given that we now have a structure in place from legislation that we passed only about two years ago?
I would welcome that. My hon. Friend Sir Patrick Cormack has suggested the alternative, which is not to implement the increased powers at this stage—I would, of course, accept a commitment to that effect from the Minister—and then for the regulation to come in at the same time. That is what most Members of all parties consider to be the obvious way forward. [Interruption.] Members are expressing agreement. The Government's proposals are a funny way of consulting on, and dealing with, these matters.
We hope to receive a cast-iron commitment that none of the important new powers in the Bill will come into force until the regulation of enforcement agents has been completed. Baroness Ashton was not prepared to give that commitment, although she promised that the regulations would be debated.
The regulations must set out clear standards of conduct for those who are given these new powers, and there must be clear and enforceable penalties for those who do not respect them. It must be known to bailiff and debtor alike what standards of conduct are expected. Those standards must be made clear at the outset of the process; the practice of High Court bailiffs offers a possible example to follow in that regard. A debtor should be handed a leaflet explaining the procedure and their rights, so that all is made clear and there is no scope for the sort of deception that we have heard about. There must be effective monitoring and a proper regulator. In terms of the common law right of distraint for arrears of rent, we agree to its abolition in the Bill. That will ensure that there is less scope for misconduct and that issues between landlord and tenant are resolved in court, rather than at the doorstep or on the street.
Part 4 of the Bill deals with the issue of access to debtor's information, which we will want to pursue in Committee. We recognise, for example, that providing the details of a debtor's employer might be important in enforcing a debt, but we would want to ensure that that is not misused by unscrupulous persons to harass a debtor.
Part 5 of the Bill covers helping people deal with over-indebtedness and multiple debts through debt management. Over-indebtedness is an issue of vital concern in our society. With the number of individual insolvencies reaching a record 107,000 in 2006, and with the amount people owe on credit cards, loans and mortgages now more than £1 trillion, this is clearly an area where help is needed. Over-indebtedness can be caused by low levels of financial literacy and awareness, and we would like more effort to be made in that regard.
The citizens advice bureaux state that
The debt relief orders will enable many people who were unable to access any of the debt solutions currently available to plan their debt repayments, and will help them in respect of the question of application fees.
We therefore cautiously welcome the intention behind the envisaged debt relief orders. As with much of the Bill, secondary legislation will be needed. For debt relief orders, it will cover the criteria specifying liabilities, and the levels of assets and of surplus income. The debt relief orders will also reduce some of the pressure on the courts, because to maintain the lowest application fee possible, applicants will need not to apply to them but to use the internet. With the court system currently in crisis, anything that can reduce the burdens is an important benefit.
Finally, the Bill also deals with objects lent from overseas for inclusion in exhibitions. This is an important area, because it affects the ability of museums to attract loans for exhibition, and the ability of those who have had artwork stolen to be aware of when those artworks travel and where to, and to make a claim in respect of them. We accept that great progress has been made on that provision in the other place, but we will continue to probe it in Committee to ensure that the Government strike the right balance.
The Bill deserves a Second Reading, although there are some important issues to deal with in Committee. On that basis, the Government have our support for its broad objectives.
I thank the Minister for, and congratulate her on, bringing to the House this much-needed Bill, which addresses much of the confusion and difficulty caused by the accretion of legislation and practice over the years. I thank her also for her generosity when presenting the Bill in giving way so much for the purposes of clarification.
I shall address my remarks narrowly—as, I suspect, other Members will—to the one or two opportunities that the Bill has missed with regard to the law on bailiffs, and in particular to regulation. I begin with an anecdote from my constituency about an incident that took place in the past couple of weeks. In fact, by coincidence, I have received several such anecdotes in the past couple of weeks, but the one that specifically concerned me was about an 89-year-old lady in my constituency who had a particularly harrowing experience.
The lady's grandson, whom she had brought up since he was a child but who several years ago moved elsewhere in the country, incurred a parking fine in Ipswich. The address on his driving licence was Halewood, in my constituency, and to cut a long story short, she entered her house one day to discover a bailiff sitting in her chair. She said that he had made a forced entry. I do not know how he got in, but he was there when she walked in and he had made a list of her possessions. The fine was £120, which, with on-costs, had accumulated to £185; with bailiff on-costs, it had accumulated to about £485.
I have seen the bailiff's inventory, which included the lady's television, VCR, three-piece suite and fixed living room wall units—items that could not possibly have belonged to her grandson, even if he had lived on the premises. When she protested that she owned that property, the bailiff gave her 20 minutes to find the receipts. It just so happened that this lady—who is in very poor health, takes a cocktail of pills every day for heart problems, and has a husband who had just had a major stroke and been admitted to a nursing home—had during all that distress been going through the various papers, so she was able to produce the receipts. The inventory had been made, however, and he had taken possession of the items on it.
Some of the younger members of her family, who live within sight of her front door, saw that something was going on. Her daughter-in-law went into the house, and eventually she went to the bank, withdrew £480 and paid the bailiff. As he went off down the path, he was heard saying into his mobile phone: "I got all the money off those—blank, blank, blank—scousers."
There were other aspects to that case. The lady's son came in and, seeing a stranger in the house, confronted him and ended up being arrested by the police. I think that he got hold of the bailiff by the lapels, which I do not condone, but what could he do in those circumstances, not knowing what was going on? As I said, the lady is in ill-health. When she phoned my office on one occasion, my secretary diverted her to talk about how her husband was, because she thought that my constituent was going to have a heart attack just from talking about the incident on the phone. When I visited her several days later, I, too, was concerned for her physical well-being. Those were the effects of that bailiff's visit.
My constituent's case illustrates several of the abuses that the CAB has catalogued, including harassment, intimidation, failing to exercise discretion in the case of a vulnerable person, removing or threatening to remove protected third-party goods, and, I think, but am not sure, refusing reasonable offers of payment. The CAB has catalogued other abuses such as the misrepresentation of powers, false threats of imprisonment and the overcharging of fees. The latter is an interesting one that I came across in a subsequent case involving someone who has observed the practices of bailiffs in the course of his work, and then had personal experience of those practices. He is a sort of street engineer, and he has seen bailiffs put notices through people's doors, without knocking, thus incurring an extra fee for those visits. He then experienced the same treatment in his own case.
The hon. Gentleman has told us about a very moving case, but does he agree that there is an argument that so-called exempt goods should appear in the Bill and not be specified by regulations? If they were clearly included in the Bill, perhaps some of those abuses could be prevented.
There is a case for that, but it needs to be examined carefully in Committee.
I do not doubt for a moment that there is much responsible bailiff practice. Indeed, my local council, Knowsley, has such a tight system for the bailiffs that it employs that it has not had a bailiff complaint for seven years. Features of that good practice include employing bailiffs only as a last resort after other preliminary procedures have been gone through. Its bailiffs are employed by contract from tender and have to be members of a relevant professional association such as the Enforcement Services Association or the Association of Civil Enforcement Agencies.
The council's bailiffs must also follow strict procedures. As I said in an earlier intervention, they have to take careful account of vulnerabilities such as advanced age, disability, recent bereavement, the welfare of young children, long-term, acute illness, and if someone lives in sheltered property. If there are such circumstances, the bailiffs must use discretion and seek the council's guidance if necessary. If they do not, their contracts can be cancelled. The council uses mystery shoppers who are presented as debtors and report on the conduct of the bailiffs who visit them. Also—I shall finish on this point, although I could say more—bailiffs are required to make notes about every visit and record them on a computer. Those computer records are then accessed and monitored by the council. Further procedures, with which I shall not burden the House, show that it is possible to control the behaviour of bailiffs.
Does the hon. Gentleman agree that it would be more sensible to leave implementation of the extra powers until the regulations have been sorted out?
I thank the hon. Gentleman for that intervention, and I was just coming to that point. Unfortunately, not all bailiffs' clients are fortunate enough to be protected by a code of procedure such as that laid down by my local authority. The opportunity is missed in a Bill that is otherwise excellent in many ways to provide a proper and effective system for the regulation of bailiffs.
It is true that a sizeable minority of bailiffs and firms routinely threaten, harass, intimidate, lie to and overcharge clients. Firms that are guilty of such bad practice are, in theory, being supervised by county court judges. That is the flaw. We put too much faith in that process, and there is almost never any withdrawal of the certification that the court can provide.
That is central to my point. Only 2 per cent. of Knowsley's council tax is collected in that way, and most debts are collected with no trouble at all because of the checks and balances. The unfortunate cases to which I referred were all from county courts.
The opportunity is being lost to put a proper regulation system in the Bill. The Minister will be aware of the Bailiffs (Licensing) Bill, introduced by Lord Lucas, which would provide for a bailiffs licensing authority with powers to issue licences, lay down rules, receive complaints, conduct investigations, impose fines and revoke licences. However, I realise that the Government do not see the need for such a body, which I understand, given the existence of the Security Industry Authority. However, the terms of reference and powers of that body are deficient in that, importantly, it has no role in handling and resolving complaints, for example, and there must be recourse to the courts. Those interventions and sanctions are missing.
I am aware that shortly before the Bill's Report stage in the House of Lords the Government conceded—reference has been made to this—to the pressure for more robust regulation of bailiffs by publishing the consultation paper setting out options for such regulation. That is welcome, albeit late in the day, but does not go far enough. The consultation process will take anything up to six months. This Bill will be out of Committee by
My hon. and learned Friend the Minister will be aware of my early-day motion 220 on this subject. Eighty-three Members of the House seem to share my view that it is not good enough to proceed in the current fashion. The abuses are too rife and the victims frequently too vulnerable for there not to be a more stringent approach to the matter. I ask the Minister to reflect on the importance of establishing a regulatory framework in the Bill, which otherwise has so much to commend it.
I would like to deal briefly with one other issue that has already been mentioned—the powers of forced entry and, in particular, the proposals to extend bailiffs' powers when they enter domestic premises. The threat of forcible entry is a technique already frequently employed by bailiffs, but, when the Bill comes into force, in many cases that technique will no longer be needed because bailiffs will have the right of entry by law.
I was interested to hear what the Minister said about this issue—that "minimum conditions" have to be laid down to enable an enforcement agent
"to secure a warrant for the use of force", which is a quotation from the Joint Committee on Human Rights. I largely welcomed what the Minister had to say about the circumstances that a judge would have to consider before granting a warrant, and I was encouraged by her suggestion that the vulnerability of the client would be taken into account. That is certainly an important consideration in respect of the vast majority of clients of bailiffs in my constituency. I recognise that some people who try to avoid enforcement by bailiffs may be better off than the creditors trying to get the money back from them, but my constituents, by and large, fall into the vulnerable category. I believe that stronger safeguards should be included in the Bill to ensure that forcible entry is a last resort, that vulnerable debtors are protected and that reasonable offers of settlement are not rejected out of hand.
As I said at the beginning, there is much in the Bill to be commended and I intend to support its Second Reading, but I hope that the Government will listen, take heed and be prepared to include in the Bill those provisions that I and many other hon. Members feel are missing from it.
I just wanted to take up the point raised by my hon. Friend David Taylor, who is unfortunately no longer in his place. He asserted that the bailiffs mentioned in the anecdotes must have been certificated by a county court judge, but that is not the case. They need not have been. Under our provisions, all bailiffs will have to be certificated, but, at the moment, quite a lot are not certificated at all.
The intermediate step is missing. Certificates may be issued and they may not be reissued in the light of evidence, but currently missing from the Bill are the power of intervention, sanctions and revocation of licences. We would like their inclusion so as to strengthen the Bill.
I am proud to represent a part of London where Charles Dickens lived when he was young and where his father was imprisoned in the Marshalsea prison, which was cited in some of the most famous books in the English language—"Oliver Twist", "Little Dorrit" and so forth. When we discuss these issues, I have to say that the image that first comes to my mind is one that Dickens portrayed most vividly about 150 years ago—the poor being oppressed by people who came to take away their goods, irrespective of whether it was justified. Sometimes it was the landlords who did it, sometimes other people.
Mr. O'Hara represents a constituency in the north-west in which many people are living on low incomes or are out of work. Parts of the Minister's constituency are also like that, as are parts of mine. I believe that I represent the constituency with a higher percentage of council properties and a lower percentage of owner occupation—something in the order of 10 per cent.—than any other English MP.
The reality is that all hon. Members—you, too, Madam Deputy Speaker, I am sure—see at our surgeries week after week people who have suffered at the hands of people coming to knock on their doors and take things away in all our communities. These are live issues, and it is very proper that we are debating them and that the Government have introduced proposals to deal with them. Of course, there are other very important things in the Bill, but these issues relate to the core, the most significant and the most controversial provisions—parts 3, 4 and 5—and I will make a brief comment or two on the other important issues and then return to the substantive parts.
The Minister started by introducing part 1, on the restructuring of the tribunals system, and we support the proposal that it should be restructured. Administrative law has grown over 50 years and become a recognised part of the English legal system. There has been a growth in the number of places that are not courts but tribunals, which seek to resolve, bluntly, the implications in large measure of the welfare state, which is clearly a welcome development of British society since the last war. It is good that the public should understand that there is an administrative court structure and that there should be some independence about it. I welcome the fact that the Bill will give it independence. The Liberal Democrats welcome the House of Lords Judicial Committee becoming the supreme court—it will give it independence and it will be seen to be different from the legislature and the Executive.
I know that the hon. Gentleman does not, but the Liberal Democrats in both Houses have consistently welcomed it, and we are sure that it is the right way forward. This is another step in giving the judicial system welcome independence.
Something has not yet been mentioned, but I hope that it is a corollary of what is being done: one of the most important things in all these systems is that we have good mediation processes. My borough has a well respected, well reputed and well supported mediation service. We need to ensure that, as we develop the possibilities of legal remedy, we also develop the agencies that can resolve the problems before they ever reach a tribunal or a court. I want to put down a marker for the importance of the mediation process before we have to bring disputes before legally qualified tribunals.
I have put the third general administration point to the Minister before. There may be differences of view about the Government's current proposals on legal aid, but I welcomed her answer in which she said that, where appropriate, the Government intend to extend legal aid in the difficult and important work that goes before tribunals. That seems the right way forward. One of the remedies is that the Minister's Department must be much more resolute in batting towards the Treasury, under its present and any successive leadership, for a bigger share of the Government cake.
Ministers have heard me say before that the Department for Constitutional Affairs—the legal system—has not received proportionate growth in its finances, compared with the health service, education and the other parts of the welfare state. If we are going to do these things, we must ensure that they are adequately resourced. Yes, of course, we have one of the most generous legal aid systems in the world. [ Interruption. ] I concede to the Minister that it is perhaps even the most generous, but the growth has been much smaller—27 per cent.—since the Labour Government came to power, compared with three or four times that for health and education. If we want to support legal aid and people in the tribunal system, we need such growth.
Although I agree with my hon. Friend that there are circumstances where legal aid in tribunals is urgently necessary, I hope that he also recognises that many tribunal procedures are probably conducted more expeditiously if no lawyer is directly involved—I hope that hon. Members will forgive me for putting it that way—and that we do not want to encourage an expectation that legal representation is necessary at a wide range of tribunals, thus resulting in severe cost implications, as that would not achieve the objective that he and I share.
I absolutely agree with my right hon. Friend: the presumption should be that there should not be lawyers and legal representation, but occasionally they will be needed. Lawyers should be the exception in tribunals, rather than the rule.
I want to make two more points about part 1. I mentioned one of them in an intervention. The Joint Committee on Human Rights has done us a good service, as always. It produced two relevant reports that address these matters and they make it clear that it is anomalous that immigration and asylum matters, alone, do not have a second tier of adjudication. Paragraph 6.31 of its second report of this Session states:
"We therefore share the concern of our predecessor Committee in its report on what is now the 2004 Act that the differential access to legal remedies in creating a unique single-tier tribunal for immigrants and asylum seekers lacks objective justification in Convention"— that is the European convention on human rights—
"terms. We do not consider that the figures provided by the Government concerning the average length of time cases are now taking compared to before the 2004 reforms amount to a justification for the differential treatment."
The Committee says that it will return to the matter in other reports. As somebody who does some of the highest amounts of immigration work—I have seen the Home Office figures—of any of my colleagues, I have to say that there is sometimes a feeling that people in that bit of the administrative system do not get the same fairness of treatment as people get in employment law, social security law or elsewhere.
Indeed it is. The hon. Gentleman's colleague in the other place was supported by colleagues on our Benches when that amendment was put forward. There was good work. I pay tribute to Lord Lucas for his work on bailiffs and so on. There was much collaboration across the parties, and with Cross Benchers too.
There was originally a clause about mediation in the Bill, but we took it out because we thought that it was not necessary. It was then put back in, so it is a sort of belt-and-braces situation. I wanted to take the opportunity to agree with Mr. Beith, who said that most tribunals were better off without lawyers. We wanted to reroute money into the social welfare law sector, not necessarily into tribunals. I hope that I made that clear.
I understand, and although two of us in this three-way exchange are lawyers, my right hon. Friend Mr. Beith is an academic, as well as an esteemed politician. I spend huge amounts of my constituency time rescuing people from lawyers, rather than sending them in the direction of lawyers, because often that is the last place that they ought to be and it gives them more problems than they need. There are some very good lawyers, but one does not always need a lawyer to solve the problem. I welcome what I think is the intention now: that in the upper level of tribunal, any hearing of a judicial review application will be before a High Court judge. I am clear that, if one asks somebody to assess whether the rights of a citizen have been upheld by the state, they need to be somebody with the proper authority.
Part 2 of the Bill is welcome. I put questions to the Minister and I was grateful for her replies. We need to broaden the base of our judicial system and the proposals go in the right direction. We have talked about parts 3, 4 and 5 the most. We all had a litany of concerns that we had encountered as constituency Members of Parliament. Those of us who have been engaged in these areas have had representations from people outside this place who are properly concerned about what the new proposals mean. They are concerned that, since the Domestic Violence, Crime and Victims Act 2004 came into place, there has been a step too far in giving powers to bailiffs. I am a bit troubled because, although the Minister said that, as far as she was aware, the new powers have been used sparingly, I do not think that we have seen evidence of how many times that means. It would be helpful if the Under-Secretary of State for Wales could give us that information when he winds up. If that information has been given elsewhere and I have missed it, I apologise.
On the point about judicial review in the tribunal, if the hon. Gentleman looks at clause 18(8), he will see that it says that the judge presiding must be either, under paragraph (a), a High Court judge, or, under paragraph (b), one of
That is the point that I was raising a concern about.
I take the view, as I think the hon. Gentleman does, that judicial review should be carried out by High Court judges, and we might be able to bring in retired High Court judges to do that. We are talking about important decisions on whether the Home Office has broken the law. There is a proposal towards the end of the Bill that would allow the higher court to replace the lower court's decision with its own. If that is to happen, there is even more reason to make sure that a judge of authority is involved. I think that the hon. Gentleman and I are arguing along the same lines; if we are to have a new regime, the higher part of the tribunal regime should include High Court judges of authority who can say whether a council, Government Department or agency of Government was wrong, who can say what should happen, and who can make the decision in the body's stead. If that last power is to be added, there is even more reason for someone of authority to make the initial case.
To return to the substantive part of the Bill, one of the things that troubles me, and that clearly troubled the hon. Members for Knowsley, South and for North-East Hertfordshire (Mr. Heald) and others, is that there have been fits and starts in getting the process right. The Government have been consulting on the measures for a long time, but we then got into a muddle. There was a draft Bill last year, and there were consultation responses to the draft Bill, but they were not published or assessed. We went from a draft Bill—draft Bills are meant to be a good new procedure for discovering what people out there think—to a final Bill before we had seen any of the information, and that is bad practice.
I will defend the Department for Constitutional Affairs as an important Department, and I hope that we soon have a properly constituted ministry of justice to replace it. However, if we are to do the job properly, and if pre-legislative scrutiny is to matter, we should do more than just put Bills out for consultation in draft; we should listen to the responses, publish them, and let everybody—not least Parliament—evaluate them. Consultations are not just for Ministers; they are for Members of Parliament, too.
I want to make some proposals, but like the Conservative party, we will not oppose the Bill on Second Reading. There is much that is good in the Bill, and I hope that we will work together in Committee to improve it. We will see how far we can get before Report. The Joint Committee on Human Rights made many points about the European convention on human rights, suggesting that there are rights that are not being met, and that are certainly not met under the Bill. I shall not read all its points on to the record, but the Minister will know that there are sets of proposals in the two reports, which only came out in the past two months. Indeed, the second was published last month. They include proposals about rights of entry and the right of forced entry. I would be grateful if Ministers told us whether they accept all the Committee's proposals, recommendations and requests for the House to consider matters.
Do the Government accept that there ought to be a difference between residential premises and commercial premises? It seems to me that there is all the difference in the world. Having bailiffs break into someone's home—the hon. Member for Knowsley, South, gave a good example—is significantly different from having bailiffs break into an office where somebody works. There should be greater protection for people's homes and for residential properties than for commercial businesses. Similarly, I have always believed that a crime against a person should, in principle, always be viewed more seriously than a crime against property, because human beings are much more vulnerable than any building.
The hon. Gentleman makes an important point that is echoed by bailiffs. They are concerned that some of the provisions will put them at greater risk. The hon. Gentleman is right to be concerned for the vulnerable, but he also speaks for those people who will enforce the Bill. Not everyone is completely happy with what is proposed.
None of us argues that every bailiff firm does bad work or does not do its job responsibly; there are some very good examples. Some of them have made representations to us, and have said clearly that they do not want more powers, in certain areas. For example, they do not want people below the level of bailiffs acting for the High Court to be given the power to restrain people physically. They say that that is not their job, and I agree with them. We should be careful about that.
I thank the hon. Gentleman for giving way. Is he aware that the Government have, in part, accepted the logic of his point about the distinction between commercial and residential purposes, particularly on the issues of distraint and rent arrears? As the Government accept the distinction in that context, they are not a million miles away from moving on to the issues that he is addressing.
Yes, I am aware of that, and it is welcome. I think that the logic should be followed through, completely.
I am grateful to the hon. Gentleman. I do not have a problem with considering whether the regulations should provide different levels of protection for homes and commercial properties. I thought that I set out a fairly good list of conditions that would have to be met, in respect of homes. We are open-minded about whether there should be fewer conditions for commercial properties, or whether the conditions should be changed around in some way. We want to stop the abuse that occurs.
I welcome what the Minister says. I have a proposal on a subject that I asked the Minister about. The real issue for most people is whether the person at the door is someone with authority. People can usually tell whether someone is a police officer; they know what to expect from police officers, and they know how they behave, and what their powers are. However, people may appear at the door in civilian dress. They may present a piece of paper, but who knows what its authenticity is? The person at home may not have anything to do with the debt that was incurred; they may be family or a friend, on a visit. I am sympathetic to the possible way forward that the Minister mentioned, namely that people of authority, specifically if they have the authority ever to break into someone's property, should be uniformed.
In this day and age, we need a broader debate about the role of the people in authority in all our communities who are not police officers, including community support officers and neighbourhood wardens. They may not all want to be uniformed, and I am not arguing that they should be; I am just opening up the question of how we can make sure that someone—whether it is the 87-year-old lady on her own, or the person who has just moved in—can identify people in authority who come to their front door. That is a real issue, and we need to protect people from the fright and fear that is caused when the knock on the door is not justified.
My next proposition is that there ought to be a local place where people can go to check registers of debt and judgment. Not everybody has access to websites and e-mails at home; a pensioner aged 75 who lives on their own will not immediately rush to check a website. More important, in a way, although it is a linked point, is the issue raised by Dr. Iddon. We should ensure that we can address cases in which a bailiff has come to take property, and the person says, "But I've paid!" Certainly, I have done casework, as have others, involving people who have paid on the deadline, which was the Friday before a bank holiday Monday. The money may not have cleared by Tuesday, but that is when the people come in and take property away. We must have a system that allows us to check. We all leave some things to the last minute, and people often leave to the last minute the payment of money that they can barely afford, or that they do not want to pay. We need to be careful about that.
My last proposal is for a cooling-off period. When property is taken, it should be held for a time in a holding place, somewhere relatively local, so that if something is wrong, that property has not disappeared irretrievably. It is a bit like the car pound theory for vehicles. We need somewhere that property can be held, without it disappearing or being sold off to raise the money. That is a real issue, and I will play a constructive part in working out how that might be done.
I would have thought that the ideal way forward was what pretty well happens now. The bailiff's first task is to take walk-in possession, which means that he puts the item under his formal control, but leaves it in the house, in the hope that the person will come up with the cash, and will never need to have it seized. That is the best interim step, really.
Absolutely. One of the issues is that the system was already confusing. We must make sure that at the end of the exercise, the citizen or resident knows their rights, and knows the sequences of the process. It needs to be as simple as possible. I agree with the Minister that the first step should be technical possession, with the property being left in the home. The next should be possession elsewhere, with the property being recoverable, for a reasonable period. The third would be disposal.
In conclusion, part 4 deals with the enforcement of judgments and orders. From my days in the courts, I know that people who are asked to reveal their income when, for example, they are asked to pay child maintenance, often do not reveal the whole picture. Anyone who has heard people talk about their income in court knows that they may conceal the reality. The difficult enforcement of judgments and orders encompasses not just county court judgments but matrimonial payments, child maintenance payments and payments owed to Customs and to the Revenue. We need better to co-ordinate the different pieces of information on people's financial circumstances held by the state. If someone appears in court and is asked how much they can afford to pay their ex-wife or ex-partner, how much they can pay to support the child of that relationship, or how much debt they can afford to pay off, all the information that the state holds on their circumstances should be made available to the court. I know for a fact that verbal statements are not always checked—they cannot be checked when the order is made—and further down the road other information appears on someone's tax return, their benefit claim and so on. If we are to introduce a system to enforce judgments and orders, it must be based on the best information available. I resist the notion that the state should have any more information than it needs, but once someone appears in court, the court should have powers to obtain the information that it needs much more quickly. That information can be challenged by the individual if they think that it is wrong, but it provides the best foundation for enforcement, as it will be based on facts and is more likely to be credible.
My hon. Friend Dr. Cable produced a report based on Government figures last year that drew attention to the fact—and this is a recurrent theme of his—that increasing numbers of people are incurring higher debts. Some 1.5 million people say that they have fallen behind with bills or credit commitments, according to the Financial Services Authority last year, and a third of them are in serious financial difficulties. The number of mortgage possession proceedings has gone up, as there are more than 100,000 a year. At least 20 per cent. of people with credit cards do not pay off the full amount every month, and repossessions, according to the Council of Mortgage Lenders, have increased to more than 10,000 a year. Given that we have a debt-fuelled society—that trend is bad and wrong, and we should reverse it—we must be much more careful to put protection in place so that people are not doubly penalised by huge charges and inappropriate interventions in their lives and homes.
The Bill is an extremely important piece of legislation, and we must get it right. I hope that we can persuade the Minister that the best way to proceed is by introducing regulation that puts everything in one piece of legislation. We should wait for the outcome of the consultation on the regulation of the industry, and implement it with whatever measure is necessary to secure maximum agreement. It is better to take a little more time and get it right than rush and make mistakes that could lead to the sad, wrong and potentially fatal risk of citizens' freedoms being impaired.
I am grateful for the opportunity to follow Simon Hughes. I agree with everything he said, particularly his peroration, in which he made the point that this important, much-needed legislation is welcomed by Members from all parts of the House. That is particularly true of parts 3 and 4, on bailiffs, and part 5, on debt. The measure is long overdue, and the Government are to be congratulated on its introduction.
The hon. Member for North Southwark and Bermondsey took us back to Dickens 150 years ago, and it is extraordinary that we should have tolerated a situation in which the law protects the most powerful. It is weighted in their interests, but it is weighted against the most powerless members of society, which is not right. The poorest members of society are driven further into debt and the little that they have is repossessed, in a hitherto unregulated world. The Bill is therefore welcome, as it demonstrates that we have begun to look at the problem. Of course there are decent, honourable and civilised bailiffs—we should not taint the whole profession—but the lack of regulation has resulted in a considerable discreditable minority who are no more than cowboys with enormous powers at their disposal, which they use carelessly, and often cruelly and thoughtlessly. The Bill is a further step on the road to correcting that imbalance. Its introduction is long overdue, but the fact that it has now been introduced is greatly to the Government's credit.
Part 5 introduces debt management schemes and debt repayment plans. The hon. Member for North Southwark and Bermondsey gave us figures to demonstrate the enormous growth of debt in our highly material and materialistic society, and anyone who has seen how citizens advice bureaux deal with the misery caused by escalating debt will accept that anything that begins to give shape and coherence to the way in which we organise debt is welcome. Traditionally, the House deals with our constituents' grievances, but we should remember, too, that it is our duty as Members of Parliament to protect the weakest members of society—and there is no one weaker than someone who has nothing. It is not right that their few possessions and any money that they have, which constitutes their last shred of dignity and would allow them to protect their way of life and their families, should be taken away. If the Bill begins to correct those imbalances it is a thoroughly good measure, and we ought to support it.
Virtually every hon. Member knows more about the law and about those issues than I do, and we have heard good speeches from Members on both sides of the Houses in which they displayed genuine knowledge and expertise to which I cannot lay claim, except as a constituency MP. I wish to make one or two remarks, however, about part 6. It is a small, ancillary provision but, as Sir Patrick Cormack said, it is important to anyone who cares about the state of our museums, galleries and their worldwide reputation in the sphere of culture and fine art.
As the Minister explained, part 6 deals with the protection of cultural objects on loan, and provides immunity against seizure for objects from overseas that are lent to our museums and galleries. It sits oddly with the rest of the Bill, but it was introduced following pressure and lobbying from our great museums and galleries, including the Tate, the V and A, and the Royal Academy, which have observed the growing number of difficult cases in which objects whose provenance is at issue are threatened with seizure. The Minister cited the case of the Russian impressionist paintings in Switzerland that were seized. That is a serious danger, and if it is not addressed loans will dry up, or we will put at risk the system of temporary exhibitions on which museums and galleries depend for the growing attendance figures that justify public support and the expenditure that we rightly make in them. If that system is put at risk, so, too, is our reputation. Museums and galleries have lobbied for action to tackle that serious problem, and part 6 undoubtedly addresses it. We will join the United States and most European countries by introducing specific legislation to deal with the problem.
However, in addressing those problems and justified concerns, the Government have not yet got the balance right, and have not been as careful as they should about the interests of people whose families—typically, holocaust victims—owned works of art before the second world war that were looted by the Nazis or the Russians. The grievance that they rightly feel is not yet adequately addressed by the Bill, but it can be addressed through amendments to the Bill.
The problem is not confined to holocaust victims, although that is probably the most obvious and highest-profile case. Since the war in Iraq, the art market across Europe has been flooded with works looted from the Baghdad museum. That is a bad and dangerous development and leads to an atmosphere of great insecurity in the world of international museums and loans. Immunity is important, but we must protect those who have a right, or believe they have a right, to ownership. That element needs to be identified and pursued.
Depending on how it is implemented, immunity can mean that the rightful owner will see on display a work of art that they believe belongs to their family, but they will not be able to do anything about it. If we do not correct some of the weaknesses in the Bill, that will be the outcome. In the other place Lord Janner lobbied very well on the point, and made a powerful speech on Second Reading. I am glad that the Government have listened to the concerns expressed by him and others, such as Lord Howarth, about the imperfections in the immunity provisions.
The Government responded, and made some helpful amendments. For instance, museums and galleries will be required to exercise due diligence in trying to establish the provenance of a work of art. Museums will have to publish a list of objects before they are brought into the United Kingdom, and immunity will be granted only to a fairly small number of museums nominated and approved by the Secretary of State for Culture, Media and Sport. All those are good amendments to the Bill as originally published, but there are still aspects that we must tighten.
For example, the nature, extent and form of due diligence is not clearly specified. Due diligence could easily be satisfied in a token way unless we pin it down much more precisely. The guidelines for applying due diligence are not specified. There is no provision for monitoring the enforcement of due diligence. There is no detailed specification of the quality of information that museums should publish about works of art, so that people who feel that a work is rightfully theirs can identify it. Unless the information is clear and is published, that will be difficult to do.
Crucially, there is nothing to stop a work imported into this country under immunity being sold while it is here and disappearing into the marketplace. That must be wrong. Such loopholes should be corrected if, despite the good intentions in part 6, we are to avoid the danger of the United Kingdom becoming an international centre for the laundering of works of art, instead of the international centre for great loan exhibitions.
These are not impossible provisions to get right, but they need further attention in Committee. I believe that the interests of the two sides can be reconciled. Other countries across Europe—such as Germany, France and Switzerland—have stronger and more specific legislation than part 6. We need to examine their legislation more carefully. With the exception of the state of New York, which is an aberration, the United States and Canada have good, clear legislation, with some characteristics that we should adopt in part 6.
Will the hon. Gentleman clarify one point? He said that he wanted amendments in Committee to prevent works of art from being sold. Is he saying that the owner of a work of art on temporary display in this country could authorise its sale?
Absolutely. Once immunity, and therefore protection from a suit—brought by somebody who believed that they had a better claim to ownership of the work—had been gained, while the immunity was in force and the object was in the country under an immune order, it could be taken off to Sotheby's or Christie's and sold. That is not satisfactory, and I am sure it is not what the Government intend.
Of course that would not be satisfactory, but if the exhibition ends, the work remains in this country and the owner decides that he or she wishes to sell it, the immunity is over. Although the hon. Gentleman, whom I greatly respect and admire in these matters, has raised an important point, I honestly do not think that there is a problem.
These matters need to be explored in Committee and worked out. I accept that the intentions of other hon. Members, such as the hon. Member for South Staffordshire, are good, and that it is not the intention of the Government, or of the hon. Gentleman, that immunity should be a cloak to allow the putative owner to dispose of a work of art while the possibly better claim of another potential owner is disregarded. We must clarify that, and ensure that the Bill does not inadvertently allow it to happen.
The United States legislation contains simple characteristics that make it much better than part 6. For example, immunity under US legislation applies only to civil claims, not to criminal claims. We must make that distinction in part 6. There is a longer notice period that allows potential claimants to identify and recognise works that might be theirs. Sales are not allowed in the United States. Those are simple and fairly uncontroversial amendments, which we should make to part 6 to get it right.
The immunity and the regulations need to be much more specific and need more teeth. The due diligence that we are correctly introducing as a result of deliberations in another place should be mandatory. There is no reason why it should not be, and we should make it so. Museums should be required to publish sufficient information to make it possible for a potential owner to establish whether the work of art is a work that they think was taken from their family in the past or illicitly traded.
That information should include details of the lender. Often lenders are not keen to identify themselves. Because museums and galleries are so dependent on the generosity of lenders they are very protective of them, but a lender who has nothing to fear and who is confident that they have proper title to the work of art that they are lending has nothing to lose by identifying themselves. The identity of the lender should be an essential part of the information that museums and galleries are required to publish.
There should be a longer time for owners to come forward. The system of due diligence should not be self-regulating. There is no reason why it should be. We need a committee based, for instance, on the acceptance in lieu committee—a voluntary committee that would monitor and oversee due diligence and ensure that a proper procedure is followed for all claims to objects that have entered the country under immunity.
Those obligations would not be onerous on museums and galleries. They would allow them to have the immunity, but it would be a proper and balanced immunity which would recognise the possible rightful claims of other owners. Without such amendments we will, in effect, be derogating from the commitments that we made when we signed up to the 1998 Washington principles on Nazi-confiscated art. The Government were right to sign up to those principles, but if we enact the immunity in part 6 without the amendments that I have suggested, we will effectively derogate from that agreement, which would be a great sadness.
I should have declared a small interest earlier in my speech: I am a member of the National Museum Directors Conference committee on the spoliation of works of art, which advises the National Museum Directors Conference on such matters. In 1998, the committee put out a statement of principles on the spoliation of works of art, which is generally recognised to be sane and balanced. Both sides of the argument, owners and galleries, are represented on the committee—for example, Sir Nicholas Serota, the director of the Tate, and Anne Webber, the joint chair and chief executive of the Commission for Looted Art in Europe, are both members—and the principles that it published in 1998 are sane and have not been criticised. Those principles pitch a balance, which we need to embed in this legislation.
We can still improve those sensible and necessary provisions in Committee, because it would be wrong if we were to allow the Bill to be enacted in its present state. The Bill understandably addresses the interests and needs of museums, but it does not address the rights of people who have had works of art looted or otherwise illicitly taken from them. We need to get the balance right—it can be struck—and I hope that we can achieve that, in Committee or at a later stage.
It is a pleasure, as always, to follow Mark Fisher, who has an encyclopaedic knowledge of our museums and galleries. Indeed, he published an encyclopaedia on the subject a couple of years ago, which I warmly commend to all hon. Members—I am not on commission.
The hon. Gentleman has, however, over-egged the pudding tonight. He has spoken proudly and rightly about his membership of the National Museum Directors Conference, but I received a statement from the conference this morning that clearly indicates that it believes that the Government have got the balance right. It is, of course, entirely proper for the hon. Gentleman to express his concerns, which any civilised Member of this House, and even some of the uncivilised ones, share. He has made it plain that a work of art that is a misgotten gain should not be totally immune. We should obviously place an obligation on those who stage exhibitions to try to establish the provenance of the works that they are displaying.
The hon. Gentleman was with me and the all-party group at the wonderful Rodin exhibition just before Christmas, which was one of a series of marvellous exhibitions—Holbein, Velasquez, Rodin and Hockney—that brought grace and elegance to our capital. At the moment, hon. Members who want to escape the confines of this place can go to the Tate and see the Hogarth and to the National Gallery to see the Renoir landscapes. All those exhibitions are to some degree—I do not want to exaggerate, having accused the hon. Gentleman of slight exaggeration—at risk, if those who lend were to feel vulnerable.
The hon. Gentleman has mentioned the problem of sale. On the face of it, that is a real problem, but in fact it is not, because the immunity is over and done with when the exhibition is over. If somebody then tries to sell something to which they are not entitled, the law can come into play, as it rightly should. However, I believe that proper care and discretion will be exercised, because I do not believe that scholars and directors of the eminence of Sir Nicholas Serota or Charles Saumarez Smith at the National Gallery and others would be anything other than very diligent. If such diligence is exercised, we do not face a real worry.
As the National Museum Directors Conference has recognised in its paper, we must recognise that this country is merely coming into line with many other countries in putting such legislation on the statute book. I welcome what the Government have done. In particular, I welcome the thorough debate in the other place, where the Bill was noticeably and properly improved in that regard and in others. Although it is entirely proper for the hon. Gentleman to introduce amendments in Committee, I think that the Government have got the balance about right; I therefore welcome the Bill.
I do not want to make a long speech, but I want to refer to one or two other aspects of the Bill and to the nature of the debate. All hon. Members are concerned about the plight of the vulnerable, of those people who have incurred debts with which they cannot cope and, in particular, of those people who are pursued for debts for which they are not responsible—Mr. O'Hara told us a very moving story about that. In response to my earlier intervention, the Minister said that she was minded to concede that I had a very good point, or words to that effect, in saying that we should wait until all bailiffs are properly accredited before implementing that part of the Bill. I think that the House is more or less united on that point, and I urge the Under-Secretary of State for Wales, who will reply to the debate, to ensure it when this monumental and major Bill—it is both—comes fully into force.
We should not give powers to people who have not been adequately and properly trained and accredited, bearing in mind the extreme sensitivity of the issues involved. I hope that the Government come up with an assurance on that point. My hon. Friend Mr. Heald, who spoke from the Opposition Front Bench, has made it plain that he would accept such a categorical assurance. I hope that we shall have it, perhaps buttressed by amendments in Committee.
Like other hon. Members who have spoken, I believe that bailiffs should be recognisable. Earlier in the debate, my hon. Friend Mr. Benyon muttered from a sedentary position that they always used to wear bowler hats—they were occasionally mistaken for the man from the Pru, which led to some amusing incidents. Bowler hats are now reserved for the judging ring in constituencies such as that of my hon. Friend, so they are not appropriate, but a uniform is. Whoever is calling on a house to discharge such a duty should be instantly recognisable. We expect our postmen to wear uniforms; we expect people who call from various statutory agencies to be readily identifiable by their clothes; we certainly expect our policemen, community support officers and others to be instantly recognisable; and I believe that bailiffs should wear a uniform. The very first thing that they do when they knock on the door should be to produce photo identity; then, and only then, should they be allowed admission. I hope that a suitable amendment will be tabled in Committee to toughen the Bill in that respect.
My hon. Friend the Member for North-East Hertfordshire made an admirable and succinct speech from the Front Bench—he spoke for 20 minutes, and I congratulate him on that. He said that he was a little troubled about—he did not put it in quite these terms, but I will—the promiscuous use of the word "judge". To most of us, that word means something very special, and we should not scatter it around like confetti. Some words become devalued by overuse—we devalued the word "university" when we were in government—and we are in danger of doing so in this case. I hope that the Minister, who was exemplary in giving way so frequently and seemed to listen to the points that were made, will think about using another word such as "adjudicator", because "judge" should not be so widely used.
Let me end with a general point. Here is a Bill of 297 pages, six parts, 144 clauses and 23 schedules. The debate in this House is unlikely to go until 10 o'clock; I am trying to set a reasonable example by speaking fairly briefly myself. Nevertheless, this is a Bill of monumental importance—a landmark Bill of the sort that needs the most detailed parliamentary scrutiny, discussion and debate. I do not want to anticipate the debates of the next two days, but all I would say to the House is this: we impoverish our parliamentary system and weaken the system of scrutiny if we inadvertently create a Parliament that does not have within it a House that can do what the other place did in relation to this Bill. Without guillotine or timetable, it was able to discuss it in detail and to improve it. Many of the people who took part in those debates were experienced, informed and expert. There are not many Members in this Chamber this evening. Whatever we think of the Bill, when it leaves us it will go into Committee next week and come out a fortnight later. We will agree to that because, for reasons of which I personally approve, the official Opposition have said that they will not vote against it. The timetable motion will go through, and then, on
That would be a terrible scandal had the Bill not been properly considered at the other end of the Corridor. That illustrates the wisdom of a Government introducing a Bill of this nature—complex and somewhat controversial, but not in a party political sense—in the House of Lords. That was the right thing to do. It also demonstrates the value of having what one might call an unencumbered Chamber that has no ultimate power over this one but has both the expertise and the time to give such a Bill the treatment that it so richly deserves.
It is a privilege to follow my hon. Friend Sir Patrick Cormack, whose speech to the House tonight, as on so many occasions, exemplifies why he should be here for at least another two decades, if not more. I agree with much of what he said. He, as like Mark Fisher, has a reputation in this place for his interest and experience in the arts; we would all bow to their judgment and sensitivities in that field. My remarks are more concerned with what may be a less civilised area of human activity—what bailiffs have to do in securing debts.
As my hon. Friend the Member for South Staffordshire said, the Minister was generous in giving way during her opening remarks. Having served on many Committees with her, I know that she is a very sane and sensible person. I am reassured that in her hands and in those of her colleagues, and with the pressure that will come from my own Front Benchers, the Bill will be better when it comes back to this Chamber
The Bill has been welcomed on both sides of the House, by my own party and by the Liberal Democrats; it is not one that the House will get overheated about. That is why what my hon. Friend the Member for South Staffordshire said about scrutiny is so important—although we old dogs may go on about it a bit. My hon. Friend Mr. Heald mentioned the 250-odd hours that we spent considering a criminal justice Bill in Committee. Perhaps rightly, those days are long behind us. The upper House has been praised for its consideration of the Bill. Indeed, it scrutinised it very well, but only for two sittings, so it has not been slaving away on it. Members should not think that it has already been given a huge amount of parliamentary scrutiny and should therefore float gently through the Commons. We will discuss it tonight, for whatever length of time—it is noticeable that not many Labour Back Benchers are here—and it will spend perhaps 12 hours in Standing Committee; it might run into a second week, but I suspect not.
Because of agreements between the Front Benches, such party politically non-controversial Bills now have a habit of not spending much time under consideration. This Bill was considered as a draft Bill, but the response to the draft is not widely known, so the House would find it difficult to judge what progress the Government made on that. Such non-partisan Bills are classic examples of Bills that should be considered through the evidence-taking procedure that the House adopted on the recommendation of the Modernisation Committee, whereby people who have to implement them are given the opportunity to present evidence to hon. Members. In this case, those with vested interests have communicated with Members. We have read in today's media several representations from Citizens Advice, which all of us as Members of Parliament find an extraordinarily useful organisation. In Bexley, the volunteers at the citizens advice bureau do a remarkable job in helping people, and they are understandably worried about the changes that will come about in bailiffs' practices.
A constituent of mine, Philip Evans, who is chairman of the Enforcement Law Reform Group, has made his views known to me in relation to part 3, which deals with enforcement by taking control of goods. Earlier, I suggested to the Minister that about 400 years of judicial opinion is being overturned. It is a serious matter, as this Government have tended to change longstanding matters of procedure and habit, not always taking full account of the consequences. The old phrase "An Englishman's home is his castle" came about in a 1604 ruling. As Lord Gresford QC said:
"The law that protects domestic premises from forcible entry by bailiffs is an extremely ancient and settled law".—[ Official Report, House of Lords,
We are about to change that dramatically.
Concerns have rightly been expressed in another place and here today about the new powers that bailiffs will have, particularly the change that will come about as regards commercial property and residential properly. Most of us would have fewer concerns about how bailiffs behave when chasing a large corporation for a debt than how they behave when intimidating somebody in their home. That is why the point about uniforms has been aptly made, and I hope that the Minister will seriously consider it—if not today, then in Committee. The way in which one identifies someone who is trying forcibly to enter one's house against one's wishes is important.
Schedule 12 details provisions for power of entry on page 211. As hon. Members know, many of the powers will be made by subsequent regulation, so it will not be possible for my hon. Friends on the Front Bench or Liberal Democrat Front Benchers, who are giving the Bill a fair wind, to scrutinise the Government's exact intentions, because we simply do not know them. We are being asked to place much trust in the Minister and people are understandably concerned about that. That applies not least to bailiffs. They are worried that some of the powers that they are to receive will be impractical and that the provisions will increase the violence against them. That may change if the Government take on board the points about ease of identification, which could allay bailiffs' concerns.
On Report in the House of Lords, the Minister claimed that High Court enforcement officers wanted power of entry. I am surprised that that statement was not challenged, because they already have such a power, which was restated in the Courts Act 2003. However, the current proposal is to extend the power to a further group. I was a bit confused, because when the Minister described the way in which the new forcible activity would take place at a lower level than that of court enforcement officers, she said that homes would be visited only at certain times. Will it happen by letter of appointment?
We have all dealt with constituents who have sailed a bit close to the wind, and in some cases we think that they deserve a visit from the bailiffs. Not all the people who come to our surgeries are angels who have fallen on hard times. Some of them know exactly what they are about. I cannot imagine that those who understand the system will wait for a letter from the bailiff or the Minister saying, "Will next Tuesday be convenient? If you could be there at 10 o'clock, we'll come for a chat." That simply will not happen. We look forward to hearing, by Report, how the Government envisage such visits happening in practice, given the nature of bailiffs' work.
Schedule 12(14) deals with forced entry to premises. Hon. Members of all parties have criticised it and the Minister's response was unconvincing. I remain confused about the way in which bailiffs will get access to houses when they are unwelcome. Perhaps some of the powers are not unlike those to which Parliament agreed in 2004 in the Domestic Violence, Crime and Victims Act. However, many involved in implementing the Act are not convinced that it works well and there are anxieties about it. Yet we propose to extend such powers to bailiffs. We are concerned about the way in which that will work.
I am not so worried about whether bailiffs will be heavy men in bowler hats, forcing their way in against the will of unsuspecting people. Doubtless, the odd one will go too far—I suspect that that is the nature of the game. However, there is a concern that people who may not be terribly well educated, are vulnerable and find difficulty coping with our legal system and their debt, will be made more vulnerable because of the Bill. The provisions for taking control of goods in schedule 12 are very prescriptive.
Bailiffs are worried that the powers that the measure gives them are so immediate that they make first-call seizure more likely. Earlier, Mr. O'Hara mentioned a case in which a grandmother paid £200 to help a grandchild who was being pursued by bailiffs. The bailiffs' view is that that will not happen in future but that seizure will happen in the first instance. I therefore believe that much heartache will accompany the new proposals and hon. Members should know that.
Everyone will welcome the new certification process. I doubt whether anyone will oppose it. However, is it necessary? Does not the existing process work? There is little evidence of that. Bailiffs who go too far appear to be swiftly removed. I know of no examples of action not being taken. We must also bear it in mind that the majority of bailiff work is to do with Government and local government fines, for, for example, non-payment of council tax. We must therefore be cautious that we do not extend powers considerably and change centuries of tradition in this country for a process that is mainly about enforcing the recovery of Government debt.
Although I am happy that Conservative Front Benchers have been positive about the matter, and with the tenor of the debate, questions remain that Ministers must address in Committee. Although the proceedings will be brief, I hope that the Minister realises that we are watching for some movement on Report to ensure that bailiffs' powers have not gone too far and that constituents who have the misfortune to encounter them are protected.
My hon. Friend will appreciate that, at this stage, we are considering the general principle of the Bill. Of course, there are opportunities later for a stiffening of resolve if all our arguments fall on deaf ears.
My hon. Friend, who has spent hundreds of hours in Committee going through legislation, issues an apposite warning. The Minister must take it seriously. I am glad that the House will not, by all accounts, divide on the Bill today. It is a sign of maturity when the Opposition do not vote for the sake of it all the time, and when the Government understand that the process will be positive. Those who observe our proceedings and those who are affected by them should take encouragement from the non-partisan tenor of the debate. Hon. Members of all parties have raised some serious concerns and we look forward to some movement from the Minister on them in his response and in Committee.
It is a great pleasure to follow my hon. Friend Derek Conway, who added a timely note of caution, with which I concur, to the debate. I also concur with his support for Citizens Advice and its work in our constituencies. My experience of serving more than a dozen years on the management board of my local citizens advice bureau, and closely following the organisation's social policy recommendations locally and nationally since I have been a Member of Parliament, has informed me when considering the Bill. I agree with hon. Members of all parties that the Bill is important and will affect the lives of millions of people, especially the most vulnerable members of society.
The second experience that I bring to the debate is that of being an employer who has been the subject of a vexatious claim that ended in a tribunal. It happened some years ago but one holds such experiences in one's head and hopes that they can add a little to debates on important subjects. The experience gave me an insight into the tribunal system and showed me the way in which a vexatious claimant can use it on a nothing-to-lose basis. I am glad to say that the tribunal found in my favour.
As we have heard, a plethora of different tribunals has emerged in recent years—more than 70 at the last count. They hear 1 million cases a year at a cost of more than £250 million a year to the taxpayer in administrative costs. Growth in that part of the legal system has been unstructured and it is therefore right for hon. Members of all parties to welcome moves to create a single administrative system. The Government's record in unifying organisations across Government has not been universally happy, and we must therefore wait and see how the matter develops, but I broadly support the thrust of the Government's intentions.
Like my hon. Friend Sir Patrick Cormack, I pay special tribute to the work done at the other end of the Corridor. The Bill has been well debated, thought through and amended in a way that has improved it.
I am concerned that there should be a better means of weeding out vexatious claims before they reach a tribunal. Opportunities exist for individuals to pursue a vexatious claim, with nothing to lose. Even if the employer wins, as in the case that I mentioned, he has suffered enormous cost, not only financially but in time, and has often left the court—as I did after three days of a hearing—asking why anybody employs anyone in this country. At times, that sense of despair—among small business men in particular—will be felt across the country.
Given that a rampant compensation culture has entered our society and the extent to which many legal rights have been extended in recent years, we must look seriously—there may be such an opportunity in Committee—at following recommendations from organisations such as the CBI on weeding out vexatious claims before they get to tribunal. The CBI has suggested that some form of bond or deposit arrangement could be used. Therefore, if it was felt during pre-hearing scrutiny that a claim could be vexatious, the decision could be left to the tribunal, adjudicator or whoever and they could demand that a bond or a deposit be left with the tribunal, which would fall if the tribunal decided that the claim was indeed vexatious.
It is worth noting that many of Sir Andrew Leggatt's proposals would not require legislation. As a member of the Home Affairs Committee, last year I spent a lot of time looking into asylum and immigration tribunals, but since then responsibility for those tribunals has fallen to the Department for Constitutional Affairs. I thought that there was, at the very least, a conflict of interest—perhaps a perverse anomaly—whereby the Department whose decisions were being questioned was responsible for the tribunals themselves.
I came to the debate concerned about how much of the detail of the new tribunal system has been left out of the Bill, and I wanted to echo the concerns of the citizens advice bureaux on that, but I have been encouraged by the Minister's response to my hon. Friend Mr. Ellwood, which seemed to suggest Government willingness to look at the matter in Committee and report back to the House.
I pay particular tribute to an important amendment, achieved in the other place by Lord Goodlad, on introducing much more mediation to the tribunals process. I am glad that it was accepted in all parts of the House.
I want briefly to discuss the enforcement of judgments and orders—part of the Bill that has attracted the attention of a lot of Members this afternoon. It is a shame that the intentions of the White Paper have not found their way into the Bill. I was very affected by details of the Citizens Advice survey of bureaux around the country, which received almost 500 submissions from 131 bureaux. I shall not list them all, but it is worth pointing it out that 40 per cent. report that bailiffs are misrepresenting their powers of entry; 64 per cent. report that bailiffs are harassing or intimidating the client; a staggering 79 per cent. report problems negotiating with bailiffs; and 56 per cent. report that the client was vulnerable when those negotiations occurred. That shows that there is a serious problem with the process.
My hon. Friend Derek Conway used the time honoured phrase, "An Englishman's home is his castle," but it is worth noting that an awful lot of other bodies and organisations can enter a person's home. That is true not only of the emergency services, of course, but of utilities and several local authority departments such as planning and council tax, and even of pest and vermin control officers. It is becoming increasingly difficult to address the direct importance of the concept of who is allowed into a person's house and in what circumstances such an entry can be made.
The Citizens Advice pamphlet "Putting Bailiffs on the Spot" says:
"Unfortunately, the government has dropped from the draft Bill any plans to regulate the activities of bailiffs even though the legislation, if enacted, will give them added powers. We think this is unacceptable, given the outrageous practices by some bailiff firms reported in the evidence sent in by bureaux."
I accept that there may be movement on that, and I am delighted by it, but I hope that the assurance given to my hon. Friends that there could be some time link to allow the consultation process and the new regulations to form part of the Bill will achieve an excellent outcome. I commend the Government for moving on that.
I am not one who tends to call for greater regulation, but I believe that it is necessary in this area of enforcement. If the Credit Services Association, citizens advice bureaux and the civil enforcement agencies all agree on this, it is time to take note.
In west Berkshire, our experience with bailiffs is interesting and the magistrates courts bailiffs seem to be a law unto themselves. The citizens advice bureaux can find no means of negotiating or of trying to make them take a wider view than the precise circumstances of the order that they are seeking to enforce, whereas the bailiffs contracted to the council are a completely different animal altogether. They seem to be able to work with organisations such as the money advice service to ensure that a wider view is taken of the debts of a vulnerable individual. I am delighted that the Bill will incorporate a degree of control over all the different types of bailiff in that respect.
There is one other important item. We need in the Bill a list of exempt goods. In another place, it was said that it is too complicated to list those exempt items because this is a constantly changing world and making such a list is too difficult. I am not asking for great detail, but it should be accepted that bailiffs should not seize the means for an individual to continue his employment. For example, the tools of a carpenter or a plumber should not be taken. Also, there should be a wider application so that control of goods may be taken—for example, if a taxi driver has fallen into debt, his taxi clearly should not be seized in respect of those debts, but we might be able to prevent him from selling the taxi until the debts have been settled and an agreement made with an organisation such as the citizens advice bureau.
Those moves must be made hand in glove with a serious attempt to educate people about debt. I am staggered by the financial illiteracy in the world, and I am staggered by the economic illiteracy that sometimes exists in this place, but the Government should have a cross-Government objective in this area. My party attempted on its website, through the introduction of a certain character whose name is probably unparliamentary, to address and educate people. That was a faintly risible but honest and straightforward attempt to inform people of the problems of getting into debt.
The Daily Mail needs congratulating on the debt service that it runs through its website and the many articles that it writes on the subject of debt. The ease of getting a loan is everywhere to be seen and the Sunday papers offer endless opportunities to take out reverse mortgages to resolve debt—get rid of debt in one fell swoop and all people's problems will go away.
Does my hon. Friend agree that the real problem lies not just in advertisements for loans in respectable newspapers such as the Daily Mail, but in the fly sheets that go through letter boxes on the estates, offering loans but at interest rates in excess of 100 or 200 per cent?
Some of those organisations are undoubtedly committing real villainy—in some cases, within the law.
In yesterday's edition of the News of the World, one advertisement had the headline, "Repossessions stopped. Be free of debt. Pay off your mortgage." It is as if all one's debts can suddenly go away overnight; of course, they cannot. A real attempt should be made to educate people, not only at school but through adult debt advice services. By the time that people come into our surgeries or use the money advice service provided by citizens advice bureaux, it is too late; it is vital to get to them much earlier.
The savings index has never been so low, and consumer credit has never been so high. For some, credit is simply too readily available. Anyone can go into a store and get a £500 store card on demand, whatever debt they face. Many mobile phone contract arrangements are equally damaging to vulnerable people who are already in debt. The cost of the bailiff and enforcement service to which the Bill refers would be dramatically reduced if we addressed the cultural problem at the heart of our society at its source.
It is a pleasure to follow my hon. Friend Mr. Benyon. I echo his comments in relation to current levels of personal debt of about £1.3 trillion—some estimate the figure to be higher—and the impact on individuals. His comments about the need for restrictions on the way in which loans are offered to individuals echo some of the debates on the Consumer Credit Bill 12 months ago in relation to promoting responsible lending. As shown by the reports that constituency advice surgeries continue to receive about ordinary people getting into serious problems as a consequence of debt, we need to maintain our focus on this area. Before I address part 4 of the Bill, on enforcement, I should declare my entry in the Register of Members' Interests as a non-practising solicitor.
If we are to have a system of law that is seen to be just and to address disputes effectively, that must be reflected at all stages: in access to justice; in the manner in which individual claims are dealt with in court; and, thereafter, in obtaining redress once a court or tribunal has reached its determination. In the previous Session, I was a member of the Select Committee on Constitutional Affairs, which conducted an evidence session and, subsequently, issued a formal report on all aspects of the small claims court. In his evidence to the Committee, Professor John Baldwin, head of the school of law at the university of Birmingham, focused on the issue of enforcement, and the fact that it is possible to go all the way through the process and end up with virtually nothing to show for it. He said:
"In my view, ineffective enforcement procedures undermine the credibility and integrity of the civil courts—and the credibility and integrity of small claims—more than any other factor. When enforcement mechanisms fail, claimants feel let down, if not cheated. Access to justice requires more than the provision of fair, expeditious and inexpensive procedures to resolve legal disputes; for judicial procedures to have meaning, the courts must in addition provide effective mechanisms by which litigants can enforce the judgment."
That touches on a crucial aspect of our system of law. The current weakness in relation to ensuring that judgments are properly enforced is fundamental.
The weakness in the system has been underlined by practitioners as well as the judiciary. The Association of District Judges highlighted its concerns in evidence to the Committee. It said:
"The Association recognises that enforcement of judgments has been highly unsatisfactory for many years. We understand that, statistically, only one third of judgments are paid in full. Some payment is made in half the remaining cases, but in one third of cases no payment is made at all. We suspect that, since insurance companies or other commercial litigants will meet their obligations in full, the great majority of litigants whose judgments are unsatisfied are private individuals. This is a deplorable state of affairs."
Given the measures introduced in the Bill, I recognise that the Government have taken that on board. It is hardly surprising that the Select Committee, in advocating certain key recommendations, said that reform needed to be undertaken "expeditiously" and that the process needed to be monitored and kept closely under review.
In part, the Bill makes important changes to the enforcement of judgments, and perhaps brings greater certainty to the process for individuals who seek to resolve disputes and enforce claims through the courts system. The attachment of earnings in the provision of information on employers is a welcome measure to assist in tracking people down and ensuring that court judgments are enforced. The provision of fixed rates of deduction might also provide greater certainty. Clauses 90 and 96 also introduce information orders and departmental information requests. I was interested to read in clause 96(3) that the
"relevant court may use the debtor information for the purpose of providing the creditor with information about what kind of action (if any) it would be appropriate to take in court (whether the relevant court or another court) to recover the judgment debt."
The issue of information is important. I have been contacted in my constituency advice surgery by people who have been frustrated at not being able to identify the address, or other related information, of the creditor against whom they are seeking to enforce. The clause makes an interesting suggestion as to the involvement of the court and what might be an appropriate remedy for the person who has obtained a judgment in their favour. It will be interesting to hear in the wind-up or in Committee whether the process is intended to be more dynamic in assisting people in recovering their judgment debt. Certainly, information, support and guidance for individual claimants would be beneficial, especially in the context of the small claims track of the county court.
During my involvement in the Select Committee investigation, I had the opportunity to spend some time in the small claims court. That was informative and instrumental in showing that people require quite a lot of assistance in making their case, providing the correct documentation to establish a claim, and presenting their case in a manner that demonstrates that they have good grounds for seeking recompense. It is understandable that people seeking justice may feel that, having gone through a lengthy process, they are being denied the opportunity to see judgments being enforced and justice being done. We must be clear about what is achievable. I hope the Minister will assure us that enforcement assistance will not be represented merely by words in statute, and that a much more constructive process will be introduced to give individual claimants advice, information and support.
The Department has focused on helping such claimants through the small claims procedure. People would be let down if access to information and support were shut off following a judgment, and would feel frustrated at the fact that justice had not been done. Members, including the Minister, have said that lawyers should not be involved when that is not necessary. People would certainly be let down if they had to have recourse to legal advice to enforce a judgment that they had obtained through their own merits, and to secure payment. While I welcome the Government's proposals to add to existing enforcement mechanisms, I hope that they will be examined closely in Committee, and that the Government will be pressed on the subject of the information and support that will accompany the strict legal measures in the Bill.
In their provisions on distraint for recovery of rent the Government have followed recommendations, and have acted on the basis that the existing law is to be abolished and a distinction is to be drawn between the recovery of rent in commercial circumstances and its recovery in residential circumstances. They have addressed concerns that the existing law is unfair and disproportionate, and might unnecessarily penalise non-commercial tenants with rent arrears. However, as many Members have pointed out, they have chosen to extend bailiffs' rights to force entry to property and seize assets without providing, at this stage, the full protection of a regulatory system.
I took on board what the Minister said about the certification process providing some reassurance, but that is obviously not the end result. It has been accepted that in many respects the current arrangement is a halfway house. It is rather unfortunate that the Select Committee had to consider half the issue— the codification of the law on bailiffs' rights, and the extension of certain aspects of that law—without also being able to consider, fully and properly, the question of regulation. The Government are consulting on it now; the consultation is due to conclude at the end of April, and the Minister assured us today of the intention to present regulations and orders to Parliament before the summer recess. I hope that the Minister and the Government will take account of our wish for a mechanism to prevent a mismatch, and for an opportunity to consider the issue in its entirety.
Arguments that we have heard today have persuaded me that we should delay the implementation of provisions to extend bailiffs' powers until there is clarity and certainty about the regulatory aspects of their work. If what we have been told today is true—that once orders have been laid before Parliament, they will be followed by regulations and then by training—it is to be hoped that the two sides of the issue can be married within a manageable time framework.
Members have mentioned representations made by citizens advice bureaux. My hon. Friend the Member for Newbury told us that about 39.5 per cent. of them had reported problems with bailiffs misrepresenting their powers of entry. As I told the Minister, I fear that any new laws may cause further confusion by suggesting that bailiffs have new powers when they have no such powers, thus increasing the risk of misrepresentation. The problem of misrepresentation is important, and underlines the need for regulation to provide more protection for individuals against the small proportion of bailiffs who are abusing their powers and bringing their whole area of practice into disrepute.
I pay tribute to the work of Havering citizens advice bureau, which wrote to me about a case in which car wheels were chained by a firm of bailiffs that then tried to charge £554 for the release of the vehicle, although an offer had been made to pay the relevant parking fine and £200 for the release. Eventually the police were called, and warned the bailiffs about obstructing the highway and causing a breach of the peace. That is typical of the problems that our constituents face every day when bailiffs wish to extend their powers further than they should, and to abuse their position.
I appreciate that the Bill is an interim measure. The Government have made it clear that they want to introduce a system of regulation that will, in all likelihood, involve the Security Industry Authority. While it is to be hoped that appropriate regulations and orders will be presented before the summer recess, I for one feel somewhat uncomfortable about a potential extension of bailiffs' rights and powers without the establishment of such protective measures.
It is unfortunate that we cannot deal with the whole issue in a seamless way. Given the concern about certain rogue operators, I hope that the Government will consider introducing further protections. If that is not practicable, I hope that they will assure us that there will be no extension of powers until a proper regulatory regime has been put into effect.
I am delighted to follow my hon. Friend James Brokenshire, who covered part 4 in his usual forensic manner.
I pay tribute to Lord Newton, who has already made such a valuable contribution to debate on the Bill in the other place. Although, as a successor of his, I now have the pleasure of representing the people of Braintree, unlike him I have had no involvement with the Council on Tribunals. I must therefore steer clear of part 1 and confine my remarks to parts 3 and 5, which deal with enforcement proceedings and debt management. I also pay tribute to the Minister, who delivered the Government's case cogently and responded to interventions thoughtfully.
Much of the debate on part 3 has revolved around the vital question of balance. As Lord Kingsland was at pains to make clear in the other place, market economies are dependent on contracts being enforceable, and the necessary result of that is that debtors must be made to pay. Foreign investment is dependent on the rule of law and the enforcement of contract, as countries such as China have found, to their credit, in recent years. However, that somewhat cold principle must be balanced against the consequences of enforcement against more vulnerable debtors, of whom we have heard much during the debate. If we fail to strike that balance correctly, we truly will show the unacceptable face of capitalism. Treating debtors with greater humanity in what are usually very stressful circumstances should never be seen as undermining either commercial certainty or the rule of law. I am pleased that the Government have recognised that principle by bringing this Bill before the House.
There has been plenty of comment on the delicacy of the balance between the rights of creditors and debtors, and I do not intend to add to that. However, it is important that each group should know their rights without having to go through legal gymnastics. Citizens advice bureaux have dealt with 1.4 million debt problems in the last year—about 5,300 per day—and I am sure that they would be happy if those numbers were to come down because people could find their own answers.
Unfortunately, debt is a widespread problem and it tends to afflict those who are least able to deal with it; I have spent a considerable amount of time in the Treasury Committee trying to tackle that issue. That being so, there is a strong case for taking two steps in particular: first, proper regulation of bailiffs, and secondly, the provision of clear and standardised information to debtors, setting out their rights, responsibilities and remedies at the first point of contact with a bailiff.
On the first point, the Government seem to have resiled from a promise to regulate the industry, and the justification that has been given is based on cost, not need. That is perplexing to me, because the Government are not known for stinting on the cost of regulation elsewhere, and if ever regulation were needed, it is here. Bailiffs have the potential to cause more distress and loss than any other arm of the state—except perhaps the Child Support Agency. If the Government are to make a case against the regulation of bailiffs, they must do so for better reasons than cost.
On the second point, it seems to me reasonable that bailiffs should have to provide clear and standardised information to debtors. Let me raise by way of comparison the situation that currently applies in the mortgage lending and insurance industries. At the instigation of the Financial Services Authority, for the last two years providers have had to provide a "key facts" analysis of the service that they give and the products that they are offering. It is a standardised and branded format that sets out, as the name suggests, key facts. That system is easily accessible to the layman and makes for sensible consumer protection. I would like something comparable to apply to bailiffs, which provides debtors with standardised and easily understood information. Such a document should include all relevant details of the debt, the charges and the expectations about repayment. More importantly, it should also set out the debtor's rights, and details of how to pursue complaints about any breach of those rights.
That principle is very much in line with recommendations 3, 4 and 5 of Professor Beatson's independent review of bailiff law. It also underpinned the amendments tabled, but not pursued, by Lord Kingsland and Lord Thomas in another place. Lord Kingsland argued that the information provided to debtors should
"include the rights of the debtor, the powers available to the bailiffs, and, perhaps most importantly, what the bailiff cannot do."—[ Official Report, House of Lords,
The information that bailiffs must provide by virtue of paragraphs 7 and 28 of schedule 12 currently falls far short of that standard. Baroness Ashton said in another debate:
"One reason for bringing the legislation together into one piece of law—from common law, statute, regulations and so on—is to enable greater clarity both for those who enforce the law and those at the receiving end".—[ Hansard, House of Lords, 31 January 2007; Vol. 689, c. 272.]
I say: let us ensure that that new-found clarity is communicated to those affected. I hope that the Minister will reconsider whether the mandatory provision of a standardised document along the lines suggested can be incorporated into the Bill.
I shall now turn to the proposals in part 5 on debt management and relief. That part of the Bill received very little comment, and almost no alteration, during its passage through the other place. Perhaps the reason for that is that these provisions have been broadly welcomed. However, I want to make some broad comments not on what is present in part 5, but on what is absent from it.
In November, the Treasury Committee, of which I am a member, published a pair of reports addressing financial inclusion and the ways in which it is lacking for many of the most vulnerable people in our society. One of the points that we looked at was the difficulty that undischarged bankrupts and others with irregular credit histories encounter when trying to open basic bank accounts. That appears to be an innocuous issue, but in my view it is the tip of the iceberg.
Figures compiled by Credit Action show that there were 27,644 individual insolvencies in England and Wales in the third quarter of 2006—an increase of 55.4 per cent. on the same period a year previously. The number of people becoming insolvent in 2006 is likely to exceed 110,000, which is more than the population of Exeter. The estimate for 2007 has already risen to 150,000. That trend has been affected by the Government's commitment in the Enterprise Act 2002 to
"allow a fresh start for those who have failed through no fault of their own" by removing some of the stigma of insolvency. That intention is good, as is the intention behind the provisions in part 5 of the Bill, but what worries me is that the Government have yet to address the issue of personal debt in the round.
As my hon. Friend Mr. Benyon said, the level of consumer debt is staggering, at well over £1.3 trillion; indeed, the only other sum that reaches such dizzy heights is the time bomb of public sector net debt. Of that more than £1.3 trillion of personal debt, more than £200 billion is unsecured, with the average British adult owing £4,524 in unsecured debt at the end of last year.
The Bill is an unsightly agglomeration of a number of necessary reforms, all bundled together into a weighty 297-page document; my hon. Friend Sir Patrick Cormack alluded to that. It has already been remarked upon that the provisions in part 6 concerning the protection of cultural objects on loan seem incongruous in the context of the Bill.
Instead of the hotch-potch that we have been given, I would have preferred a Bill that addressed all the factors that come into play in relation to consumer credit and enforcement. The first, and in my view most important, step that should be taken is to reappraise the terms on which personal credit is offered. I have come across one case in which a man who had recently been granted leave to remain in this country and was living off benefits nevertheless managed to secure a loan of £25,000. He proceeded to withdraw the entire sum from the bank the day after it was paid to him, and returned to his country of origin, leaving his young wife to deal with the bailiffs. Such situations are not rare, and some fault must attach to unscrupulous lenders. Secondly, there should be debt management and relief to provide people who are in a financial muddle with a second chance. Thirdly, then—and only then—there should be clear and complete regulation of the bailiffs, who step in when all other options have been exhausted.
The Government have missed a valuable opportunity in the Bill to examine not only debt, but its causes. I am unable to resist an offering from 1758 by Dr. Johnson on that theme. Speaking of the practice of imprisonment for debt, he said:
"We have now learned that rashness and imprudence will not be deterred from taking credit; let us try whether fraud and avarice may be more easily restrained from giving it."
We may have abolished imprisonment for debt in the 1860s, but for many people, getting out of the debt trap remains as difficult as escaping from prison.
It has already been said that many of the people who get into debt are the most vulnerable in our society and the least well equipped to deal with the situation. The Bill's debt management and relief proposals may offer them a key, but I would rather that they did not serve a sentence at all. There appears not to be a meeting of minds within the Government on that issue. I should like the Minister's assurance that the Department of Trade and Industry and the Department for Constitutional Affairs have agreed on what must be done. If so, will he tells us what discussions have taken place?
"maybe the banks are lending too much money or maybe they're not being as careful as they used to be in scrutinising the applications...If they'd not lent it in the first place then they wouldn't be in the difficulty of trying to recover it."
However, the real problem is not with high street banks, but, as we have heard, with the less reputable end of the market, where credit is more aggressively marketed and less rigorously vetted. Many IVA—individual voluntary arrangement—providers have been placed in that bracket, but the DTI still seems opposed to regulating them.
Chapter 4 of part 5 creates approved debt management schemes that can arrange debt repayment plans, which amounts to partial regulation. Those new schemes are intended to complement other provisions—including IVAs. So some schemes are approved by the Lord Chancellor and others not, the sole difference being that only approved schemes can compel creditor participation. I question whether that is good enough, because debtors will still be vulnerable to aggressive marketing of unapproved IVAs; there was still a 118 per cent. increase in the use of IVAs last year. It is a great shame that although we have such positive progress on providing more options for those caught in the debt trap, we do not go further to protect both creditors and debtors by requiring the approval of all IVAs.
I welcome many of the provisions in the Bill relating to debt and enforcement proceedings. The Government have indeed recognised the need to tie up a number of loose ends and to offer debtors more options for a second chance. However, I am convinced that there are several areas in which the Bill could be improved, and I look forward to continuing our discussions in Committee.
I begin by declaring an interest as a qualified barrister. During my time at the Bar, I appeared before a number of different tribunals. I pay tribute to the numerous organisations that have briefed us on the Bill and played a full part in ensuring that the debate in the House of Lords was so well informed. They include Citizens Advice, the Zacchaeus 2000 Trust, the Association of Civil Enforcement Agencies, the Enforcement Law Reform Group, the Enforcement Services Association and a number of other different organisations and associations. I agree with my hon. Friend Sir Patrick Cormack that the House of Lords did a quite excellent job in going through the Bill in significant detail. Many aspects of it were not debated because they were self-explanatory and straightforward, but their lordships—particularly those representing the official Opposition and the other parties—focused on one or two key areas, and as a consequence they improved the Bill considerably.
I turn first to part 1 of the Bill. Tribunals are one of the most visible parts of the legal system. As the Minister pointed out, the huge growth in the tribunal system has been unstructured, which is why Sir Andrew Leggatt was asked to carry out a full review, which reported in 2001. My only regret is that it has taken so long to introduce legislation to implement much of that excellent review. Sir Andrew recommended a single coherent administration system, independent of Government Departments. He also recommended the two-tier system along with the better use of back-up infrastructure, so that the staff and the different tribunal heads can be used flexibly and interchangeably. I take on board the point that my hon. Friend Mr. Heald made about whether the term "judges" should be used; we may well return to that point in Committee.
There was substantial debate in the other place on judicial review, and the Government granted a substantial concession. My hon. Friend described how the Bill now makes it clear that a hearing must involve a High Court judge, or
"such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals."
We will probe that issue in Committee, because I agree with my hon. Friend that, if at all possible, a High Court judge should be involved. A judicial review is an extremely serious issue, as Simon Hughes also pointed out. We will push that point hard in Committee.
Bringing together different parts of an existing organisation and putting in place a substantial consolidation exercise makes sense in theory, but this Government's record of bringing together different organisations into what is meant to be a more focused and streamlined body is not particularly good. There have been many examples of their making it clear that they wanted to go ahead with a consolidation exercise, save money and build in efficiencies, only for us to end up with an organisation that costs far more once the process has been completed. I could give a number of examples, but an obvious one is the Commission for Equality and Human Rights. Given the sum total of its different parts, it is a much bigger organisation that costs much more, with far more scope for adding extra costs to the end users. We will have to be very careful about that with this legislation.
We want to reconsider some of the points raised in the other place about judicial appointments. Rob Marris and my hon. Friend Philip Davies—in his own inimitable style—made the point that those appointments must be made on merit alone. The Opposition of course understand why the Government want to widen the pool of prospective appointees to the bench, but the absolute and overriding criterion must be the quality of those applicants, who must be appointed on merit.
My hon. Friend Mr. Benyon made an excellent speech in which he brought to bear his substantial small business experience. He flagged up the plight of small firms in the context of a claims culture in which an increasing number of vexatious claims are being made. There is a growing compensation culture; indeed, it is difficult to open the business pages of any newspaper without seeing yet another case of a claim by an employee. Often, such claims are totally vexatious. As the CBI pointed out in its briefing to us, its latest trend survey highlights the fact that many of the firms that it questioned felt compelled to settle cases, despite receiving advice that they were likely to win at tribunal, because of the cost and amount of management time that it would take to defend claims, which are often vexatious.
It is interesting that my hon. Friend the Member for Newbury made that point, because our policy at the last election was to introduce a system whereby the tribunal could ask for a bond or deposit from the applicant before the case could go forward. That would go a long way to prevent the plethora of vexatious cases that are tying up management time and destroying wealth creation in this country.
On debt relief, a range of new solutions will be targeted at those who are least able to cope. Given the record amount of money owed in society, we support measures that will make it easier for such people to sort their lives out. We support the principle of debt relief orders. I was interested to hear the wise and sensible words of my hon. Friend Mr. Newmark, who brought to bear his experience and knowledge, especially given his involvement in the two Treasury Committee reports. He made some very sensible suggestions that we will consider in Committee and perhaps include in amendments. I thank him for his contribution.
I am staggered by the proposals in the Bill on immunity from seizure for works of art and cultural objects, as that has nothing whatever to do with tribunals, courts or enforcement. It may well be highly desirable to introduce those measures, but this Bill is not necessarily the vehicle by which to do so. Having said that, there are substantial problems. We heard about the Russian loan of French impressionist pictures to the Swiss museum, and about the 2004 exhibition of paintings and other exhibits that were going to be on loan from Taiwan. That exhibition did not take place because of threats from the People's Republic of China, which said that it had a legitimate objection because those exhibits were misappropriated by the ex-leader of Taiwan and Free Chinese President Chiang Kai-shek.
My hon. Friend the Member for South Staffordshire made it clear that there is a serious problem in the museums sector and that there are fears about the future as we move into a more litigious time. That is quite right, given that much more emphasis is being placed on works of art that were looted, particularly during the Nazi era and the holocaust. That point was well made by Mark Fisher.
There is a need to balance the rights of original owners against the need for museums to stage exhibitions and widen the cultural horizons of the people who go to them. I welcomed the changes that the Government made during the Grand Committee and Report stages in the House of Lords. I agree with my hon. Friend the Member for South Staffordshire that the Government have listened, been pragmatic and introduced sensible changes, particularly on due diligence and in setting up the approval mechanisms for museums and other centres. However, we will reconsider the definition of due diligence.
I would appreciate it if the Minister addressed the point made by the hon. Member for Stoke-on-Trent, Central about the possibility of works of art being sold after exhibitions. That is most unlikely, because they will be protected with immunity only for a very specific, fixed period of time. The idea that the original owner, or the person or gallery who owns the picture or work of art at the time of the exhibition, could somehow intervene and enable that picture to be sold or put up for auction after the exhibition is slightly far-fetched, but perhaps the Minister could clarify that point, because it is causing concern to a number of colleagues.
I turn to the issue of enforcement and bailiffs, because that is the most vexed and controversial part of the Bill. There has been a significant increase in the amount of abuse by bailiffs, of which we have heard a number of examples today. Indeed, my hon. Friend the Member for North-East Hertfordshire gave a very good example. Mr. O'Hara told us about the very harrowing case of an elderly person who came home to find a bailiff in her house. He had entered it on the basis of debts that her grandson had run up and had drawn up a list including most of her household possessions.
Many of us have seen the BBC "Whistleblower" programme which was extremely critical of several large bailiff firms. The National Association of Citizens Advice Bureaux, which I gather is now called Citizens Advice, gave us a number of examples of abuse. I heard about a single mother who had been fined £1,072. The bailiffs visited her house and seized a television, a DVD player and 60 CDs, which they then auctioned for £72. After they had given £32 to the auctioneer, there was not a great deal left to settle her debt. Many of us would wonder why the bailiffs caused that level of distress to collect that very small amount of money, even though the debt was quite high.
As my hon. Friend the hon. Member for Braintree made clear, society is becoming more indebted. The Minister who opened the debate was right to say that the current situation is confused, with numerous common law judgments and different statutes going back many years and leading to considerable confusion. There is a need for a new code and certification process, and we support that, but that is in the context of the 2004 Act, which gave far greater powers of forced entry. On top of that, the Bill will extend powers so that forced entry will be allowed in relation to civil debts that are authorised by the court, albeit with very tight guidelines.
Many concerns have been expressed in this short debate, that much more power is being given to bailiffs. Dr. Iddon expressed concern, as did Dr. Cable and several of my hon. Friends. One hon. Member after another has made it clear that a balance must be struck, but that the Bill strikes it in the wrong way. That was made clear by my hon. Friends the Members for Hornchurch (James Brokenshire), for South Staffordshire and for Braintree, and by others, including the hon. Member for Knowsley, South.
Of course, we have to strike a balance, because debts that are owed in society have to be collected. We cannot have a capitalist system if the creditors do not have a mechanism by which to collect that money. It is important that there be a system that is easy to understand and to implement, and that is why we support much of the Bill. However, the Opposition are concerned that two fundamental constitutional points or areas of constitutional law are being undermined, albeit through common law.
Mention has been made of the Englishman's home being his castle. In his judgment in Southam v. Smout, Lord Denning cited William Pitt the Elder's famous saying:
"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement".
That pass has been sold. The 2004 Act fundamentally changed our constitutional law and the Bill will go further.
It is important to bear in mind another constitutional point. Criminal fines are civil debts, not criminal debts, so enforcement should not constitute an additional punishment. That is a fundamental point, and we should look at it carefully when analysing why and how Her Majesty's Government are justifying allowing extra levels of forced entry. They say that it is to enforce criminal penalties, but if one drills down a bit further one sees that many of those criminal penalties involve fines for quite minor offences—for example, not having a TV licence or car tax disc—or parking tickets and congestion charge penalties. Many other examples have been given by the excellent Zacchaeus 2000 Trust, which made a convincing and compelling case that many debts are fuelled by poverty. Some of the most vulnerable people in society will lose rights, while the power of the state will grow.
We are giving extra powers to bailiffs, but we have heard many examples of abuse, so extra checks and balances are necessary. There is a strong argument for bailiffs wearing a distinctive uniform at all times, which was put succinctly by my hon. Friend the Member for South Staffordshire. We need clarity about exempt goods. Lord Beaumont of Whitley—I understand that he is the only Green peer in the other place—worked hard on the Bill, and moved an amendment to include a list of exempt goods that would be precluded from any form of seizure; for example, tools of a trade, as my hon. Friend the Member for Newbury said, as well as domestic animals kept as pets, guard dogs, dogs on which a blind person relies, sums of cash below a specific level, and other items that it would be wrong to seize.
When the Minister opened the debate, she said that it was better to deal with the matter by way of regulation because the nature of goods changes as society changes—for example, mobile phones. Who had a mobile phone 10 or 12 years ago? It makes sense to change the list of goods by regulation, but we do not trust the Government, and we want a provision in the Bill. We shall push hard for that in Committee.
It is also necessary for bailiffs to have a clear focus and effective guidance. I asked the Minister about the magistrates courts guidance on search and entry powers under the Domestic Violence, Crime and Victims Act 2004 and pointed out that when Lord Beaumont asked for a copy of it, he was given a 31-page document, of which 15 had been redacted—blacked out completely. That was disappointing. We are looking for more open government, and to ensure that the bailiff system carries public confidence, but that will not happen if a key guidance document of instructions to bailiffs has redacted pages. What is so secret about those instructions? Are bailiffs being given hints and tips about how to enter people's homes and cause maximum grief to our constituents? I do not know, but we must see that guidance published in full. The lack of its publication is a sorry state of affairs.
There was overwhelming support on both sides of the House for a system of independent regulation by a respected independent regulator who would be in charge of all aspects of regulation, licensing, the certification process, and monitoring all bailiff activity. My hon. Friend the Member for Old Bexley and Sidcup mentioned Philip Evans, chairman of the Enforcement Law Reform Group, who made it absolutely clear time and again that the bailiff industry wants regulation. It is concerned not only that the extra powers will lead to additional abuse by a small minority of bailiffs, but also about public support for the law. That is why they are clearly saying that there should be regulation.
It is worth bearing in mind the fact that the situation in Britain is almost unique, as bailiffs are agents of the creditor in some cases, but agents of the Crown in others. In every other country bailiffs are agents of the state, so we must have regulations when bailiffs are given extra powers, as they were under the 2004 legislation and as they will be under the Bill.
The Minister in the other place has come up with the proposal that regulation should be handed over to the Security Industry Authority, which I want to give some brief consideration, as it is essential to the way forward. The SIA was established under the Private Security Industry Act 2001, so it would be possible under regulations to extend the authority's power of regulation of the bailiff sector. However, I gather that the SIA is not keen on having those extra powers.
Furthermore, the authority's reputation is mixed. It has been slow to process licence applications in its existing area of work. I do not like its policy whereby if 80 per cent. of an approved contractor's staff are licensed, the rest can act as though they are licensed. The SIA has been poor in responding to justified criticisms of the wheel-clamping sector, where many cowboys operate. Above all, when the SIA investigates a complaint, it does not tell the complainant of the outcome, even when the complainant is the victim of illegal action. Under the Minister's proposals, the SIA will regulate only private bailiffs, not Crown agents. We need a system for regulating all bailiffs. That is only sensible.
The Under-Secretary of State for Constitutional Affairs explained that a joint DCA-Home Office consultation process is under way to look at the cost and impact of regulation. The consultation will end on
Many excellent points have been made during the debate. The Conservatives are in broad agreement with much of the Bill, which will bring in long overdue legislation. However, when there is unprecedented debt in society, when huge heartache and grief are caused by debt and there is ever-increasing abuse by bailiffs—albeit only a small minority—it is not the time to be giving bailiffs extra powers and putting into reverse some key constitutional principles. It is not the time to be making fundamental changes that will give bailiffs extra power without a proper regulatory framework, which is why we shall hold the Government to account in Committee and on Report. We shall do all we can to make sure that the most vulnerable people in society do not fall victim to the extra powers in the Bill.
The Parliamentary Under-Secretary of State for Wales (Nick Ainger): This has genuinely been a good and interesting debate. I shall attempt to respond to the many points made by Members on both sides of the House.
The Bill contains a range of important measures, including reform of the tribunal system, changes to the eligibility requirements for judicial appointments, reform of enforcement law, greater regulation of bailiffs, improvements in the effectiveness of the enforcement of judgments and a series of measures to assist the over-indebted and immunity from seizure for works of art on loan to the United Kingdom. Colleagues have debated how that package of measures will help to improve access to justice and the administration of justice. We have also, rightly, talked much of the need to protect the most vulnerable in our society, which is one of the key aims of the Bill.
May I start by dealing with part 1 and the issues that it raises? I am grateful to all hon. Members for the welcome they have given to that part of the Bill and for their understanding of why now is a good time to take these proposals forward. The hon. Members for North-East Hertfordshire (Mr. Heald), for North Southwark and Bermondsey (Simon Hughes), for South Staffordshire (Sir Patrick Cormack) and for North-West Norfolk (Mr. Bellingham) all welcomed the proposed changes, but raised a number of issues.
The hon. Member for North Southwark and Bermondsey referred to judicial review, as did the hon. Member for North-East Hertfordshire, and asked whether a High Court judge would be in charge. As was pointed out in the debate, the Government accepted an amendment in the other place that inserted a new provision in clause 18, stipulating that judicial reviews transferred to the upper tribunal will have to be heard by a High Court judge or a Court of Session judge or a judge on a list approved by the senior president of the tribunal and the three chief justices. Selection for individual cases will be made by the senior president of the tribunal or his delegate, so the House can be assured that if a judicial review is referred to the upper tribunal, a senior judge will take it forward.
I am getting indications that it could be as many as 20. They would be justices with a particular expertise in the relevant area of the judicial review. As I say, up to about 20 are likely to be involved.
The hon. Member for North Southwark and Bermondsey also referred to the Joint Committee on Human Rights and asked whether the Government had accepted all the recommendations. In fact, the Government have not accepted them all, but my noble Friend Baroness Ashton responded to the Chairman of the Joint Committee on Human Rights on
The hon. Members for North Southwark and Bermondsey and for South Staffordshire also raised points relating to part 3—the most contentious part of the Bill—on the regulation of bailiffs and forcible entry. Several hon. Members also referred to problems of identification. All bailiffs will have to carry clear identification that can be presented to a debtor. I acknowledge the point about bailiffs having a specific uniform so that anyone can clearly establish that they are not just people banging on the door. I am sure that members of the Committee will be able to raise that matter again at an appropriate point in proceedings.
I would like to reinforce the point about how easy it is for someone who looks like an official to appear at the door with a certificate of authorisation or what looks like an official warrant taken out of the pocket. Lots of older people, for example, open their doors to people who allege that they are from the water board, the gas board, the electricity company or whatever. The reality is that bits of paper or card do not really confer any obvious authority and they are no substitute for something that can be clearly checked at some particular place where confirmation can be established that a person with that number and name is indeed entitled to come through the door.
I understand the hon. Gentleman's point, but I emphasise that a bailiff will not only have to present identification but provide details of their authority to be there. That will relate to the judgment of the court.
The hon. Member for North-East Hertfordshire and several others, including my hon. Friend Mr. O'Hara—I congratulate him on his work in bringing to the House's attention the importance of regulating bailiffs—raised further issues about the new regulations that would be introduced under clause 59, which deals with certification. I reiterate what the Under-Secretary of State for Constitutional Affairs, my hon. and learned Friend Vera Baird, said earlier—we can give an assurance that those regulations about the certification of bailiffs will be available and in place before the new powers are given to bailiffs.
A number of hon. Members referred to individual cases and to the statistics produced by Citizens Advice about the serious problems created for vulnerable families by rogue bailiffs. Clearly, we need to get regulation in place as quickly as possible and I can assure the House that it will be in place before any new powers are given to bailiffs.
I said earlier that if the regulations were not included in the Bill, they would presumably be passed through secondary legislation. That means that they would not be subject to the rigorous scrutiny that they would receive were they in the Bill. Will my hon. Friend address that issue?
That is true, but it will be done through the affirmative order process. I accept my hon. Friend's point, which I am sure will be forcefully made again in Committee.
The hon. Member for North-East Hertfordshire mentioned a leaflet providing details of the powers that can be imposed on debtors. Under the Bill, the Department is committed to producing information leaflets that will outline the rights and responsibilities of all parties—debtors, creditors and enforcement agents. Paragraph 7 of schedule 12 requires a notice of enforcement to be given to the debtor before action is taken; and paragraph 28 of the same schedule requires further notice to be given on enforcement about what the enforcement agent is doing. Information will therefore be made available.
The hon. Member for North-West Norfolk raised the matter of the Private Security Industry Act 2001 and his concerns about the effectiveness of the industry. It has taken some time for the authority to get up and running, but we feel certain that the authority is the correct body for the enforcement of those regulations. We believe that it is appropriate to use that organisation.
The current proposal is that the authority would regulate not Crown agents, but those who work for local authorities. Those who work for the Crown are civil servants. There are open and transparent complaints procedures, and so on. 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.
I want to give a further reassurance to my hon. Friend the Member for Knowsley, South, who asked about when forced entry would be sought and what restrictions will be placed on that. The conditions that apply to an application for forcible entry are as follows: other methods of enforcement have failed; the property is inhabited by the debtor; normal entry attempts have been unsuccessful; there is reason to believe that there are suitable goods on the premises to satisfy the debt and evidence to support that belief; the enforcement agent has considered the likely means required to gain entry; and the enforcement agent will leave the property in a secure state. However, the judge who considers the application for forced entry must consider the size of the debt and whether such action is in proportion, the type of debt and, most importantly, any other information about the debtor's personal circumstances. Such approval will not be given lightly, and there will be an opportunity for the debtor, or his or her representative, to make representation at the hearings.
I thank my hon. Friend for that, and I applaud all of it. My concern continues to be that the other circumstances will include not just financial circumstances but personal ones, for which the generic term "vulnerability" has been used many times during the debate.
Yes, and I am sure that that issue will have to be considered. Whether there is illness and the other relevant circumstances are important matters.
The hon. Member for North Southwark and Bermondsey asked how often forced entry had been used under existing legislation. Apparently, between July 2005 and February 2006, six forced entries have been carried out. He also suggested that the register of county court judgments needs to be available. I can tell him that the register is available online, and the general public have access to it.
Of course the register is available. The point that I made was that people need somewhere locally where they can see not only what the registered judgment says, but whether a recent payment has been made. The problem is often that payment has been made two days before the bailiffs arrive, but that fact has not been marked up for everyone to see.
Yes, I appreciate that, and although it is important that we have a record of the judgments—this is where the information is so important—those who find themselves in such a position do not necessarily contact the court or deal directly with the bailiffs. They deal with their creditor, whoever it may be, to establish whether that creditor has received the payment that they have made, and so on. That is the process. The hon. Gentleman also referred to cases in which a payment is made on the Friday before a bank holiday. It is often difficult to establish whether a payment has been made, but the people who are seeking the judgment and putting in the bailiffs should be contacted initially to establish that.
Derek Conway, who is no longer in his place, spoke about the concerns that bailiffs have put to him that the proposals would be likely to lead to the seizure of goods at an earlier stage, rather than allowing time for the debtor to make payment. The Bill contains a swift and simple method to apply for a warrant that allows the bailiffs to force re-entry once they have identified goods for seizure, so it is far more likely that that time will be used by debtors, if they have the resources, to pay their debts or to make a contribution to paying them.
Mr. Benyon asked why exempt goods should not be listed in the Bill. Such details will be contained in regulations to make the law more flexible should there be a need to review it in the future. Details of what is exempt should not be set in stone. Reference has been made to the mobile phone and the iPod, for example. Clearly, things move on and it would be far better if that were done by regulation. However, let me make it clear—this is another issue that has been raised—that it is intended that exempt goods will include tools, books, vehicles and other items of equipment that are necessary to the debtor for use personally by him in his employment, business or vocation and such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying his basic domestic needs and those of his family.
The Minister might also wish to tell us about the position of the pet dog and leaving a certain amount of cash in a household where the people do not have a bank account. What about the idea of including in the Bill the list of exemptions that he has just given us—the things that are known now—and having a provision that such other items as may become necessary in future may be added to the list by order?
I am sure that the hon. Gentleman will raise that point in Committee.
I will move on to part 5, to which some Members referred. Mr. Newmark referred to rights and remedies in relation to information to be given to debtors. Under the document in the Library, after entering premises, the enforcement agent must provide the debtor with a notice. The form of the notice and what information it must give will be contained in regulations made under paragraph 28(2) of schedule 12. It will cover the statutory liability or judgment that has given rise to the debt, the legislative provision authorising the action, the amount for which the warrant was issued, the charges that have been and can be made in relation to it, and how payment can be made. It will state that the goods will be sold if the debt and costs are not paid, and will cover in outline any right of appeal or avenues of complaint that the debtor may have.
In relation to information for debtors, under paragraph 7(1) of schedule 12, the debtor will be entitled to a notice detailing the procedure and financial consequences to the debtor of failing to pay the debt. That will include the amount outstanding, the enforcement power that will be exercised to enforce the debt, and where and by when payment should be made if such action is to be avoided.
My hon. Friend Mark Fisher is not in his place, but both he and the hon. Member for South Staffordshire spoke eloquently on part 6 and there was a difference of opinion between them. My hon. Friend felt that the balance was not quite right yet, although he recognised that significant improvements had been made. The hon. Gentleman felt that the Government had recognised and listened to what was being said in the other place. He felt that the balance was about right. I want to make it clear that the nature and extent of due diligence is specified in the Bill, in clause 131(2)(b), which makes it clear that museums must comply with the guidance—it is therefore mandatory—that is published by the Secretary of State. The current guidance that combats elicit trade and that is endorsed by museums requires detailed due diligence to be exercised.
My hon. Friend believed that, compared with other countries, our proposals were lax, but, in fact, we will require two months' notice of the intent to bring a work of art into the country. In Switzerland, it is only 30 days. In France, it is two days. In New York, there are no requirements for publication at all. I hope that, when he reads Hansard tomorrow, he can be assured that due diligence is, in effect, mandatory and that we take the matter extremely seriously. He also asked whether a work of art that had been exhibited in this country could be then be sold and whether the immunity would continue. I can give the House the assurance that the immunity covers only the transportation of the work of art, its exhibition and its return to its country of origin. If, as he suggested, an exhibit was shown at the Tate, for example, and then its owners decided to send it to Sotheby's, as soon as that happened, the immunity would be lifted. I think that that issue was also raised by the hon. Member for North-West Norfolk.
This has generally been a helpful debate and hon. Members have raised a number of issues that I am sure that they will wish to expand on in Committee. In short, the Bill will widen access to justice, improve the administration of justice and protect the vulnerable. I commend it to the House.
Question put and agreed to.
Bill read a Second time.