Clause 57 — enforcement by taking control of goods

Orders of the Day – in the House of Commons at 3:30 pm on 27th June 2007.

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Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice) 3:30 pm, 27th June 2007

I beg to move amendment No. 10, page 43, line 28, at end insert—

'(2A) The Lord Chancellor shall issue National Standards or other guidance requiring enforcement agents and those acting on their behalf not to act oppressively or disproportionately with regards to vulnerable and other persons.'.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss the following amendments:

No. 68, in clause 59, page 44, line 36 , at end insert—

'(h) requiring enforcement agents to work subject to a published contract when enforcing court fines, council tax and non-domestic rate arrears and road traffic debts.'.

No. 8, in clause 84, page 53 , leave out lines 13 to 15.

No. 11, in Schedule 12, page 205, line 27, at end insert—

'(5) In exercising any of their powers or duties under this procedure enforcement agents and any persons authorised to act on their behalf shall act in accordance with National Standards and any guidance issued by the Lord Chancellor.'.

No. 1, page 206, line 16, after 'means', insert—

'(a) '.

No. 2, page 206, line 17, at end insert—

'(b) such tools, books, vehicles and other items of equipment as are necessary to the debtor for use personally by him in his employment, business or vocation;

(c) such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the debtor and his family;

(d) money where an enforcement agent has reasonable cause to believe that this would be necessary for the immediate domestic needs of the debtor and his family;

(e) domestic pets;'.

No. 19, page 206, line 17, at end insert—

'(b) goods that fall within paragraph 4A(1);'.

No. 13, page 206, line 31, at end insert—

'Code of conduct

3A (1) The Secretary of State shall issue a code of conduct to ensure that the poor, vulnerable and socially excluded are protected from disproportionate enforcement.

(2) Enforcement agents, courts, creditors and others with responsibility for an enforcement action shall comply with the code of conduct.'.

No. 41, page 206, line 31, at end insert—

'Protection from disproportionate enforcement action

3A The Secretary of State shall issue guidance to ensure that the poor, vulnerable and socially excluded people are protected from disproportionate enforcement action.'.

No. 12, page 207, line 3, at end insert—

'4A (1) The following fall into the definition of exempt goods so as to preclude seizure of—

(a) any goods which are fixtures or fittings attached to the premises including goods which are plumbed in or connected to water, fuel or power supplies,

(b) domestic animals and animals kept as pets,

(c) guard dogs,

(d) any dog on which a blind person relies,

(e) any animal which is kept for commercial gain, save as allowed through common law and where provision for the welfare of the animal has been arranged in advance,

(f) in the case of domestic dwellings no sum of money of £500 in cash or below,

(g) in the case of domestic dwellings no sum of money which would leave the debtor with less than £500.

(2) In the case of domestic dwellings no sum of money above £500 is to be removed without the civil enforcement officer recording the purpose for which the money is to be used.'.

No. 3, page 207, line 42, at end insert—

'Rights and remedies information

6A (1) Her Majesty's Court Service shall prepare an information sheet to inform debtors of the rights and remedies available to them with respect to an enforcement power.

(2) Regulations must make provision for the information to be included in an information sheet to include—

(a) powers of entry and re-entry;

(b) limits and controls on the power to use reasonable force;

(c) exempt goods;

(d) ways of taking control of goods;

(e) permitted costs and charges;

(f) rights to redress;

(g) how to complain;

(h) how to ask for time to pay;

(i) where to go for advice and assistance.

(3) Regulations must make provision for the form, ordering and prominence of information.

(4) The Lord Chancellor shall consult such persons and bodies he considers appropriate on the content of regulations under this paragraph.'.

No. 25, page 208, line 2, at end insert—

'and has signed a form to indicate that the notice has been received'.

No. 69, page 208, line 2, at end insert—

'by recorded delivery mail and, in the event of any failure of delivery, by personal visit by the enforcement agent, acknowledged by the signature of the debtor.'.

No. 36, page 208, line 28, at end insert—

'and only if they are not money, clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the debtor and his or her family or such tools or other items of equipment as are necessary for the debtor to continue in his business, employment, vocation or education.

(2) Regulations may clarify, limit or expand the exemptions in subparagraph (1), including but not limited to placing an upper monetary limit on the value of a protected item where necessary.'.

No. 26, page 209, leave out line 6.

No. 38, page 209, line 14, leave out paragraph 13.

No. 27, page 209, line 21, leave out sub-paragraph (2).

No. 20, page 209, line 29, at end insert 'or other competent person'.

No. 16, page 209, line 34, at end insert—

'(5) In this paragraph a "competent person" is any person either residing at the relevant premises or working at the relevant premises where these are premises where the debtor carries out trade or business at the time when control is taken, who—

(a) is 18 years of age or over; and

(b) fully understands the consequences of the procedure being carried out.'.

No. 15, page 209, line 34, at end insert—

'Premises occupied by a single woman or persons under 16

13A Where a dwelling is known or believed to be occupied by a single woman or a child under 16, no visit with the intention of seizing goods shall be permitted unless the enforcement officer is female or is accompanied by a female enforcement officer.'.

No. 28, page 213, line 2, at end insert—

'and after notice has been given to the owner of any vehicle in relation to which the power is to be exercised'.

No. 70, page 213, line 2, at end insert—

'(1A) There shall be no enforcement action until notice has been served by recorded delivery mail, and in the event of any failure of delivery, by personal visit by the enforcement agent, acknowledged by the signature of the debtor.'.

No. 29, page 213, line 7, at end insert—

', before doing either of those things,'.

No. 30, page 213, line 12, leave out sub-paragraphs (3) and (4) and insert—

'(3) The enforcement agent must deliver the notice to any relevant premises in a sealed envelope addressed to the debtor.

(4) Premises are relevant if the enforcement agent reasonably believes that they are the place, or one of the places, where the debtor—

(a) usually lives, or

(b) carries on a trade or business.'.

No. 31, page 213, line 37, leave out 'Before the end of the minimum period' and insert—

'If a vehicle is clamped or removed under the provisions of this Schedule'.

No. 32, page 214, line 1, leave out sub-paragraph (2).

No. 40, page 217, line 24, leave out sub-paragraph (2).

No. 7, page 221, line 28, at end insert—

'(4A) Regulations must make provision for legal aid to be available where financially necessary in all such actions.'.

Government amendments Nos. 64 and 65.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The amendments relate to enforcement by taking control of goods, and the relevant procedure. I shall say a word about the amendments in my name and that of my hon. Friends. Amendment No. 10 is about protection for vulnerable people. Amendment No. 11 makes it clear that enforcement agents must act in accordance with national standards. Amendment No. 19 is about exempt goods. Amendment No. 13 is about a code of conduct to protect the vulnerable, and is closely related to amendment No. 10. Amendment No. 12 deals with the tools of trade. Amendment No. 3, which is about rights and remedies information, was tabled by the Liberal Democrats but we have signed it. Amendments Nos. 16 and 20 are about the competent persons test. Amendment No. 15 is about protection for the under-16s.

We have heard today about vulnerable groups and the pressure that they may come under. Although the vast majority of bailiffs act correctly and properly and do an excellent job, there are those who do not do such a good job and who abuse their power. We have already debated whether it would appropriate to bring in tougher regulation for those who do abuse their power, but too many cases have come to our attention of bailiffs turning up on the doorsteps of vulnerable people.

I want to refer to one or two cases that should never have happened. A case in 2001 involved a man from Southwark suffering from serious learning difficulties, who might well have been a constituent of Simon Hughes, and the local council outsourced the collection of the debt to a private bailiff. This man had a council house debt of £235.10, plus the costs of a hearing, and he received a summons, parts of which were highlighted and in bold type. Many such summonses are despatched every day. It said:

"If a liability order is granted the Council will be able to take one or more of the following actions: instruct bailiffs to take your goods to settle your will be liable to pay the bailiffs' costs...instruct your employer to deduct payments...deduct money...make you bankrupt, or make a charging order against your home, or have you committed to prison."

That person had no support or help whatever and he ended up committing suicide.

Other cases involve people who were in desperate plight. A case reported to us by the citizens advice bureau in Lincolnshire involved a tenant who had vacated premises without notice and owing rent. The client did not know where the tenant had gone and was unaware that he had not paid his TV licence. One day when the client was at the premises, two bailiffs arrived to collect the sum due. The client explained who he was, and eventually the bailiffs believed him. However, they said that they had not come all that way to leave with nothing, and insisted that the client pay the fine instead. The client again said that he was not liable, but the bailiffs said that if he did not pay the fine in cash immediately, they would telephone for a lorry, break into his premises and take goods to the value of the fine. When the client explained that he did not have sufficient cash on him, the bailiffs insisted on accompanying him to the bank to withdraw the money. When the client phoned the magistrates court, he was told to take his complaint to the local CAB. The client told the CAB that he felt so intimidated and frightened that he had no choice but to pay the fine, and went to the bank with one of the bailiffs.

I gave an example earlier of a tragic case involving a woman from Manchester who was visited by bailiffs in respect of a debt owed by her daughter, who did not live with her. The bailiffs told her that she was responsible for her daughter's debt and that they were permitted to move goods from the property, which of course was wrong.

I also gave an example earlier of a CAB client in Bedfordshire whose husband had died, but the next day the bailiffs called at her house. She explained that her husband had died, that there were real problems in the family and that he had not made his will, but they insisted on going ahead with enforcement action.

The Minister said in Committee, and she alluded to it again this afternoon, that various measures will be in place to help vulnerable people. She referred specifically to the national standards for enforcement agents, which make clear those who are potentially vulnerable, including the elderly, people with a disability, the seriously ill, the recently bereaved, single parent families and pregnant women. When the Minister replies, I hope that she will be able to make clear whether those national standards are being properly adhered to.

The Reverend Paul Nicholson of the Zacchaeus 2000 Trust has done a huge amount of work in helping the vulnerable over many years and has become an expert in bailiff procedure and enforcement procedure. He has been assiduous in briefing the Committee and hon. Members and I applaud him for his work. When the Minister wrote to him, she made it clear:

"We remain of the opinion that the best way to tackle the problems that enforcement agents may face when identifying or being confronted by so-called potentially vulnerable debtor groups or situations is through the training they will have to undergo and through the enhanced and extended certification process."

Is she going to honour that pledge? Will the existing national guidelines be adhered to? I hope that they will. The Bill will give bailiffs substantially more power. I am concerned by the use of complicated language in schedule 12, and Philip Evans, national chair of the Certified Bailiffs Association, made it clear in a letter to members of the committee that he felt that the language used in the schedule was "gobbledegook." He was concerned that, over many years, the Government had not enforced the national standards and made sure that they were adhered to properly. We will have a system of regulation for private bailiffs, but it will not cover Crown agents. There will be a new certification process for them and the Minister says there will be remedies for people who have complaints. The Government have a huge vested interest in making sure that the money is collected—in many ways we respect and accept that—but there will be a great deal of pressure on bailiffs, who, we must bear in mind, will have increased powers.

I am concerned by the new forced entry powers, which, to be fair, do not flow from the Bill; they were brought in by the Domestic Violence, Crime and Victims Act 2004. This extra amendment to that Bill was tabled at the last moment and overturns many hundreds of years of common law.

Bailiffs now have far more power as a result of the 2004 Act and will receive additional powers under the Bill. In Committee, I quoted the argument about the Englishman's home being his castle, which dates back to the 14th century Semayne case. The case was commented on by William Pitt the elder, the first Earl of Chatham, in a classic quote that sums up this part of common law. In the 1960s case 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 sums up the situation that was prevalent in common law until the Government changed it.

The Bill gives bailiffs yet more powers, including more powers of entry, and vulnerable people may suffer as a consequence. We do not want that to happen and it would be easy to add extra safeguards, which is what the amendment proposes. Why should not the tools of the trade be exempt in the Bill? Many of those who run into debt will be self-employed small business people. Mr. Drew mentioned a constituency case in which a firm had run into debt and the bailiffs came round and removed what might have been vital equipment.

I would like the Minister to comment on two additional points. First, there has of late been a lot of discussion as to whether, once the bailiffs have been unleashed, for example by a central payment office, to go to visit a debtor and to raise the money, if the debtor then wants to go back to the magistrates court to request a hearing for a review of a disproportionate fine, the magistrates court can withdraw the bailiffs after the request to enter. The Minister wrote to Rev. Paul Nicholson saying that in her view the magistrates court does have the power to order the bailiffs to be called off so that the case for review can take place. On the other hand, I have seen an opinion by leading counsel, in reference to a particular case, making it clear that it does not have the power to withdraw the bailiffs. In fact, the clerks to the magistrates court in Her Majesty's Courts Service central payments office in Buckinghamshire say that they do not have that power. They cited—it was also cited by leading counsel—the case of R v. Hereford and Worcester Magistrates Court, ex parte MacRae, 1998, 163 JP 433. The Minister needs to clarify this because it is very important in terms of how the vulnerable are treated once they get seriously into debt and run into major problems. If Rev. Paul Nicholson and leading counsel are saying one thing and the Minister and her civil servants are saying something else, that is a pretty unfair and rum situation.

Secondly, I should like to touch on the point relating to judicial review. As we know, judicial review is used to control illegal or unlawful decisions—decisions which break the law or which a body or organisation has no power to make. For example, there could be procedural impropriety, or a situation where unfair decisions are made, or the decision maker is biased, or unreasonable decisions take place where the bodies in question have discretion but do not use it. In 1948, a well known case—Associated Provincial Picture Houses v. Wednesbury Corporation—laid down the Wednesbury rules, which refer to all cases of judicial review. When it comes to Crown bailiffs—the Government-employed bailiffs—who act on behalf of Her Majesty's Government, public bodies and local authorities, there is no proper system of judicial review, which means that the actions of these Government employees and Crown servants cannot be properly held to account in the courts. That concerned us a great deal in Committee, where we had a substantial debate about it. That strengthens the case for amendment No. 10, which would lay down in the Bill a proper code to help the vulnerable.

Earlier, the Minister said that schedule 12 lays down the appropriate remedies and protection. She mentioned the use of reasonable force, methods of address and the procedures relating to the sale of goods. We accept a great deal of that, but it does not go far enough. We feel very strongly at a time when the Government are giving bailiffs more power, when more and more people are falling into debt, and when, sadly but inevitably as more debts are enforced and more private bailiffs are employed, that there will be abuses of the system. The Bill's consequences will be felt in places, and we are grateful for that. For example, the Security Industry Authority will regulate private bailiffs.

Not only the small minority of private bailiffs abuse power, however. Government bailiffs also do that from time to time. There are far too many cases of vulnerable people who are at their wits' end suffering persecution, strain and stress that none of us would wish on anyone. We get such cases in our surgeries and advice centres and we read about them. They are unfortunately a fact of life. The Bill will help to reduce such cases; but granting more power, not putting in place a proper system of judicial review, and relying exclusively on schedule 12 and its remedies are not enough.

I therefore urge the Under-Secretary to consider the amendment, which would provide for issuing national standards and guidance that required enforcement agencies not to act oppressively or disproportionately. If she accepts it, I shall not press amendments about the tools of the trade, the code of conduct, the rights and remedies information sheet, the competent persons test and protection for the under-16s. Amendment No. 10 goes to the core of what we are trying to achieve.

We have grave concerns about the Bill, but it will do a substantial amount of good through the unified tribunal system, the provisions on looted art and the measures to update the enforcement system. However, if we go ahead without the amendment, we will unleash on the public a system that will not give them a fair deal.

Photo of Austin Mitchell Austin Mitchell Labour, Great Grimsby 4:30 pm, 27th June 2007

I shall speak about amendments Nos. 68, 25, 69, 36, 26, 38, 27, 28, 70, 29 to 32 and 40. Reading them out is a speech in itself, so I shall try to be brief. I do not want to hold up proceedings—we are here, feeling the hand of history on our shoulders, while our constituents are feeling the waters of history in their wellingtons and basements. I would much rather be in my constituency helping my constituents deal with their problems.

I congratulate Mr. Bellingham because it is good to see the Conservative party taking up the defence of the poor and vulnerable, as he has done consistently throughout our debates on the Bill. My amendments have the same purpose.

A high proportion of mistakes occurs in many cases in which bailiffs are brought in. Those mistakes are made in the system of delivering fines and punishment, which is extraordinarily sloppy. We have a mobile society, especially in London, and fairly antiquated court procedures, which grind slowly on and get to grips with the issues some weeks after the matters have arisen, and then mistakes are often made in delivery.

I hope that my hon. and learned Friend the Minister will explain why we do not require all court matters and judgments to be sent by recorded delivery. It is not an expensive system—heaven knows it would not add substantially to costs. All European countries require delivery by such a system so that people can be sure that details and fines have arrived. My amendments attempt to avoid mistakes by ensuring that fines and details of bailiffs' intended actions are delivered.

The amendments would prevent the sort of abuses that happen now, when bailiffs make phantom visits. They are paid for visits and, in many cases, it suits them to claim for phantom visits—visits that never took place or left no record at the relevant house. They can charge for all such visits to increase their revenues. It is silly. There are cases where a mistake has been made, and the person involved is not responsible for the charge, yet visits are claimed to have been made, which adds to the bill and compounds the problem.

My amendments Nos. 28, 69, 70, 29 and 30 are an attempt to ensure effective delivery of the bailiffs' action, and of the fines and charges that have been claimed to have been made, to the people responsible. With proper delivery in place, if a mistake had been made the person concerned could contest it. That would cut the whole procedure off. This is a simple provision, and I do not know why we do not adopt it, to ensure that all deliveries by bailiffs, courts and councils are made by recorded delivery, so that guarantees are in place.

Amendment No. 68 would require the publication of the contracts between the courts, the local authorities and the firms of bailiffs, so that people would know how effectively the firms were being regulated, what the bailiffs' rights and responsibilities were, and what their own rights were. All too often, inquiries have revealed contracts to be out of date, badly drafted or ineffective, and councils are often reluctant to produce them. People have to go through freedom of information procedures to see the contracts on which this whole system is based, which is ridiculous. We need published contracts to ensure proper enforcement and the proper regulation of bailiffs.

Amendment No. 36 is intended to rectify a major omission from the Bill by providing protection for essential household items and other things needed by the debtor or his family to continue earning a living. Bailiffs should not be able to seize such items, and they need to be protected. I know that essential items are exempt under various statutes. For example, the tools of a person's trade are exempt, except in relation to the enforcement of non-domestic rates and VAT payments. As the amount of penalties and sanctions increases, we need to define what items bailiffs can take, and to extend the basic provision to cover money and foods, which are necessary for the survival of the family.

The policy statement sets out the protection to be given to goods in the regulations. However, if Parliament, through this legislation, effectively abolishes the common law protections, we should enact their replacement in the form of statutory protections, rather than delegating the task to the Minister. The Minister is responsible for using bailiffs to recover Government revenues, and therefore has a vested interest in sustaining and helping them. That is a conflict of interest. We should therefore define what is protected in the legislation and not leave it to be set out in regulations. That is why my amendment No. 36 defines what bailiffs may and may not take, in a clear and simple fashion. What is wrong with that?

I turn to amendment No. 40. Paragraph 53(2) of schedule 12 states that goods that are unsold at auction are to be "abandoned" and must be returned to the debtor. Paragraph 54(1)(a) states that, if that happens,

"the enforcement power ceases to be exercisable".

Surely that will cause problems. At the moment, if an item does not attract a reasonable price at auction, it is kept back until the next auction. That is sensible, because someone will eventually buy it, and we want to get the best price for such items. Am I correct in saying that the new paragraph will prohibit that? If the alternative to selling the item is to return it, it will surely be flogged for whatever the auctioneers can get for it. It is therefore likely to attract a much lower price than if it is put back in the next auction.

Currently, failure to sell one item does not affect the sale of any other items taken from the debtor. Under paragraph 54, however, if the enforcement power ceases to become exercisable, none of the other items can be sold. It is therefore probable that all the items will be sold off as a simple job lot. That means that they will raise less money than they would if they were sold individually. It is in all our interests that the debtor gets the best price for the items confiscated. I worry that the provision will stop that.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The hon. Gentleman might not be aware of it, but I gave an example in Committee of a woman who had a substantial debt, of about £500. The bailiffs took from her about £1,000 worth of household goods—white goods, a television set and other bits and pieces—but they made only £30 at auction.

Photo of Austin Mitchell Austin Mitchell Labour, Great Grimsby

I am grateful for that example; I have heard similar examples, but not of such a low price for an estimated £1,000 worth of goods. We must protect people from such a possibility. We want the debtor to get the maximum possible price for the goods confiscated. That is the only protection that we can decently offer. It is ridiculous to consider such goods to be abandoned, and my amendment No. 40 would therefore remove paragraph 53(2) of schedule 12.

Having heard the speech and the examples given by the hon. Member for North-West Norfolk, I am sorry that I missed the joys of the Committee. It has been a real pleasure to contribute to today's debate. Having enjoyed the disrepute of leading the first major rebellion of the new Government, involving a massive number of my colleagues—the Whip is glaring at me already—may I say to my hon. and learned Friend the Minister that I do not intend to hold the terrible threat of further rebellions over her head? Given that we must protect the vulnerable, however, I hope that she will assure me that the protections that I want to introduce through the amendments will be secured under her new regime.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

We had an interesting discussion during the voting as to whether, before the new Prime Minister appoints his Government, there is a Government at all, and whether there are such things as Government amendments. The Minister and others have assured me that there are, and we are working on that basis. Therefore, we can still rebel.

Photo of Austin Mitchell Austin Mitchell Labour, Great Grimsby

That is another reason for expediting proceedings. I want to go home and wait for the phone not to ring.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

There may be time yet.

This group of amendments was introduced by Mr. Bellingham. Were he to seek to divide the House on his lead amendment, my hon. Friends and I would support him. As he rightly says, the purpose of this group is to ensure that standards apply in all places and at all times to prevent the vulnerable from being adversely affected by bailiffs and people coming to their homes and taking their property.

Amendment No. 10 is a permissive amendment, which would require national standards and guidance, thus providing a gold standard. That would be a welcome initiative. In this large group of amendments, the majority of which were tabled by Mr. Mitchell, the Liberal Democrats have tabled amendments Nos. 8, 1, 2, 3 and 7.

Amendments Nos. 1 and 2 are a return to the proposal that we should be more specific in the Bill about what constitute exempt goods. I remember the debate, and the Minister's summary response was that we need flexibility. The lack of specificity in the Bill would be covered if there were general guidance and national standards, and amendment No. 10 would cover the criticism of amendments Nos. 1 and 2. Amendment No. 8 has been discussed, but it is an anomaly in this day and age that clause 84 should state:

"This part binds the Crown"— and then continues:

"But the procedure in Schedule 12 may not be recover debts due from the take control of or sell goods of the enter premises occupied by the Crown."

I understand that there would be great embarrassment, for instance, if the bailiffs could go into Buckingham palace, especially this afternoon at the same time as other people. That would clearly be inappropriate. However, we discovered in Committee that that provision also referred to Crown agencies—all of those acting under the authority of the Crown. We believe that there should be no exemption. Some years ago we changed the rules to reduce the exemptions that apply in general to the Crown and they should be reduced here too.

We have argued that clear information should be given to individuals about their rights, and our amendment No. 3 is similar to those tabled by the hon. Member for Great Grimsby. It would require that Her Majesty's Court Service prepare an information sheet, to be made generally available and that reflects the rules and tells debtors of the rights and remedies available to them. That is the same point as that made by the hon. Gentleman. At the moment, the law is confusing. If we went down the Old Kent road in my constituency and asked people when they thought they had a duty to let someone who was chasing them for money into their house, we would get all sorts of different answers, because the law is not generally known or understood. People do not know when they are obliged to let people in. Many people would say that a home in England is a castle and that we must be allowed to keep people out. It is indeed the case that in many cases people do not have to let others into their house, even if they come with some rights over property, because there are processes that have to be gone through. It is important to make that clear.

The document should cover the powers of entry; the powers of re-entry; when reasonable force can be used; when force can be used; exempt goods; how goods can be secured; how goods can be taken away; what can be charged, because goods can be removed and retained, while the costs tick up like a meter and the owners cannot recover them; what remedy is available if goods are collected wrongly; how one can complain; how one can ask for time to pay; and where one should go for advice and assistance. That information is important.

Amendment No. 7 proposes that the debtor, when seeking to enforce rights against those who come to seize their goods, should have legal aid. There should be an ability to challenge the authority, whether it is the state, local government or the private sector.

Our amendments are about giving the citizen the power to know the law and their rights, and ensuring that people in positions of authority—especially those with a financial hold over them—cannot abuse that position. We need a new regime and the amendments would help towards that end. I hope that the Minister will be sympathetic to them.

Photo of Brooks Newmark Brooks Newmark Conservative, Braintree 4:45 pm, 27th June 2007

I am delighted to be able to return to this important if somewhat heterogeneous Bill, although I very much doubt that our deliberations will be among the top one or two stories on the news tonight. The Minister may look doubtful about that, but it is a shame because the Bill will have a considerable impact on those of our constituents unfortunate enough to find themselves in financial difficulty.

If anything is more stressful than moving house, it is probably the thought that someone may enter it to remove treasured possessions. The Opposition have been consistent in our appeals for a code of conduct that is transparent and accessible to members of the public, and on which they can rely when they are in difficulty with bailiffs. The poor, vulnerable and socially excluded are at particular risk, but a code of conduct or set of notional standards would bring universal benefits.

The slightly tenuous argument was advanced in Committee that bailiffs already have their own code of conduct, and that a Government code would be to no avail in dealing with the few bailiffs who have decided to ignore their own. However, national standards or a code of conduct set by the Government would ensure consistency and hold up a mirror to the whole enforcement profession, and that could not but be to the advantage of the public as a whole.

If that is not sufficient, proposed new paragraph (2) of amendment No. 13 makes it explicit that the code would not be a matter of whimsy, but that people would be expected to adhere to it. We are all aware of the sterling work of the citizens advice bureaux in assisting people who get into debt. Staff at the office covering Braintree, Witham and Halstead have written to me with their general concerns about the Bill, and specific examples of problems that they have encountered recently.

In one example, a client was being chased for a debt even though she thought that she was up to date with it. Indeed, it turned out that the debt was nearly 10 years old. That was unfortunate in itself, but her real concern was that the bailiff involved was demanding entry to her house and would not accept any payment terms whatsoever. The CAB client had offered to pay the debt over a period of six months, but the bailiff said that he could only accept three monthly instalments.

I know that such problems are all too common, and that is why I continue to believe that the Bill is missing an opportunity to set out, clearly and accessibly, the behaviour expected from bailiffs when dealing with the poor, vulnerable or socially excluded. Society and Government have a special responsibility to those people—an implicit responsibility that ought to be made explicit.

Requiring bailiffs to act proportionately would also be an attempt to legislate for common sense. The Minister has that quality in abundance, but unfortunately it is sometimes lacking in bailiffs, who can clock up hundreds of pounds of costs in order to get their hands on pennies.

The Minister places her trust in training as part of the beefed-up certification process, but training can still fall short of the mark, even when those participating in it have the best of intentions. In addition, the certification process will almost certainly be opaque to public scrutiny, whereas a code of conduct and minimum standards would be clearly understood by the enforcement profession and, more importantly, the public.

In Committee, there was some question over the secrecy of the bailiffs bible. The Minister keeps it under lock and key in her office because it concerns operations issues which, in her opinion, should not be made public. That is indicative of one of the problems with the Bill. There is a suspicion, or even just a perception, that a lot is going on behind closed doors in terms of available guidance, standards and training.

A code of conduct or recognisable national standards would go a long way towards dispelling that perception. The Minister has been kind enough to acknowledge that the predecessors to these amendments were all well intentioned, but suggested that they were unnecessary because the conduct of bailiffs would be well enough regulated by appropriate regulations. However, she hit the nail on the head when she said that she did not expect a debtor to read them and that there was no chance of that happening, but more chance that they might lead to national standards or a code of conduct that is clearly in the public domain. She has been steadfast in her position on that line of argument, but I hope that she will reconsider the position today.

I also wish to speak in support of amendment No. 12 on the need to provide in the Bill a list of items exempted from possessions that enforcement officers are able to remove. I do not in any way suggest that it is a full list. As we discussed in Committee, regardless of whether it is even possible to provide a full list, it is also inexpedient to do so because such a list would need to evolve over time. Nevertheless, a core list in the Bill and further exemptions spelled out by regulations are not mutually exclusive. If I am incorrect in that assumption, I hope that the Minister will correct me in her usual gracious way. My concern is that parts of the Bill are so skeletal that it is remarkable that they have not been seized upon by Damien Hirst as a candidate for diamond-plating.

I am grateful for the Ministry's detailed policy statement on delegated powers, but the fact that it reaches 65 pages on its own suggests either that it is the very model of detail or that there are an awful lot of delegated powers. In Committee, the Minister advanced two principal arguments for the Government's reliance on regulations, and I should like to challenge each of them. First, she said that it was necessary to preserve flexibility by not pinning the exemptions to a list on the face of the Bill. I quite agree with that, and I have no doubt that thorough consultation, which I hope the Government are committed to, will turn up some worthy exemptions that have not yet occurred to the Minister.

In the space of just a few minutes, members of the Committee thought of a number of potentially necessary additions to the list, but I do not think that anyone has suggested that a list appearing in schedule 12 need be exhaustive. The amendment tabled by my hon. Friend Mr. Bellingham does not seek to address matters like the prophesy of future technological advances, or to start listing all trade tools that might conceivably stand in the line of fire—wigs and gowns included. However, a list included in schedule 12 merely needs to cover some of the ground as an explicit indication of the Government's intentions, and one which has statutory authority.

That brings me to the second of the Minister's arguments, which was that the paucity of parliamentary time would make any list contained in the Bill entirely untenable because of the scant opportunity to amend it. That perfectly reasonable objection could be overcome by the simple addition of a reference to any further regulations that the Minister should, from time to time, need to lay before Parliament. I assume that I am right in thinking that the Government would not envisage the need to come to Parliament to repeal the protection that the amendment offers to guide dogs. The Minister will be glad to hear that I shall not devote any further time to the potential inequity of canine repossession, but will she address one question that arose from my reading of the detailed policy statement?

Paragraphs 143 and 144 concern situations in which enforcement officers may take control of goods that would normally be exempted but that have a value beyond their common use and can therefore be easily replaced. The guidance gives the example of an antique dining table, which could easily be replaced by a utilitarian table in order to release some value. How does the Minister envisage that process operating in practice, given that enforcement officers will not be replacing like with like? That seems to be a recipe for confusion or even abuse.

If the enforcement officers take the table and replace it, who meets the cost of the replacement until such a time as the original is sold, and what provision is made for the cost of the related logistics? Enforcement officers could spend a considerable sum on finding replacements for otherwise exempted items—for example, money would be spent on buying and transporting them—but the underlying debt might not be reduced at all by the whole process. Perhaps the Minister could comment on the complexity and the potential for abuse represented by the guidance. I do not wish to go any wider of the amendment, but I hope that she will reconsider the Government's position on the inclusion of a list in the schedule.

Finally, I deal with amendment No. 15 which relates to single women and children. I am conscious that the issue has already been addressed at some length, but I wish to make two points. First, it seems an entirely reasonable proposition that single women—by which I mean women on their own—should be dealt with by female enforcement officers. It is a well established principle that searches by police, Customs officers and security staff are sensitive to gender, because searches are invasive. Visits by bailiffs are similarly invasive and deserve to be treated with comparable sensitivity.

Secondly, on the issue of children under the age of 16, the amendment is necessary to reinforce the available protection. The Minister confirmed in Committee that there is something of a lacuna between the protection offered to children under 12 and that offered to children under 18. If the only person on the premises is under 12, the bailiff is required to withdraw, but if there is someone aged between 12 and 18 the bailiff is entitled to make inquiries before leaving. The protections deal only with situations in which a child is home alone and do not address the position of children who are otherwise subjected to a visit by a bailiff. I hope that the Minister will comment on that situation. I am conscious that she will argue that bailiffs will be trained in how to deal with children and other vulnerable people, but I just question whether that is enough.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Ministry of Justice 5:00 pm, 27th June 2007

As everyone has said, this is quite a sizeable group of amendments. I will deal with them painstakingly and thoroughly, although I hope not tediously. Mr. Bellingham talked about the Englishman's castle again. I want to quote briefly from an article in The Times, which said:

"An 'Englishman's castle' fuss will always erupt when someone claiming special rights wants the portcullis raised. The argument is every bit as old as the language it is couched in. Victor Tunkel, secretary of the legal-history group the Selden Society, explains that creditors even in Anglo-Saxon times had a 'right of distress', allowing them to 'seize a bloke's best beast, the tools of his trade"— we do not want to do that—

"or his bed'. Royal tax collectors similarly were seldom shy of crossing the threshold, and history has offered few ruder awakenings than 'Open up in the name of the King!' All that has changed is the volume and complexity of the law".

We intend to protect the vulnerable and to ensure that the law is known to the public. I have already mentioned on many occasions, both in Committee and in the Chamber, the extent to which we will go to ensure that the Bill does exactly that. The hon. Gentleman makes much play of the increased powers in the Bill. He knows that I have undertaken that, until there is a satisfactory and full regulatory process in place, and a complaints system and a licensing system, the new power that he is particularly concerned about—breaking into houses—will not be introduced. I am at a loss as to what the hon. Gentleman thinks anyone could possibly add to that.

The hon. Gentleman tells horror story after horror story, but I could do the same thing because I, too, have a citizens advice bureau and vulnerable people in my constituency. I do not doubt that Redcar has as many rogue bailiffs as his constituency and that of Mr. Newmark. That is exactly why we are introducing the new regime. This part of the Bill is designed to put an end to precisely the kind of mischief about which we have heard.

The hon. Member for Braintree made an attractive speech, as ever. Contrary to his assertion, I have no kind of bible under lock and key anywhere in my possession. The bailiffs bible, which he mentioned, was made available to a body that asked for it—perhaps it was the Zacchaeus 2000 Trust—with redacted passages. He says that I keep the document secret, but I offered each and every member of the Public Bill Committee the opportunity to look at the document without the redacted bits. Who has come to look at it? No one.

Let me deal first with amendment No. 8. Hon. Members might recall that there was some discussion in Committee about clause 84 and the application of part 3 to the Crown. There are already statutory obligations on the Crown to ensure that creditors who might be owed money by the Crown are paid. The Crown can be sued and it cannot ignore any judgment made against it by a court. Section 25 of the Crown Proceedings Act 1947 makes provision for the satisfaction of orders against the Crown. The Crown will thus not escape its obligations simply because it is exempt from enforcement under schedule 12.

As a matter of fact amendment No. 8 would not work, because although it would allow an enforcement agent to use the power in schedule 12 against the Crown to take control of or to sell goods, the agent would not be able to enter premises to get them in the first place. He would thus be able to take control of or sell only Crown goods found on premises occupied by a third party. I am sure that that is not what anyone intends. Given that it is clear that existing provisions will ensure that orders against the Crown will be satisfied, there is no need for the amendment.

I acknowledge the good intentions behind amendment No. 68, which was tabled by my hon. Friend Mr. Mitchell. Indeed, there are good intentions behind all his amendments, including even his rebellion-causing new clause. Contracts between Her Majesty's Courts Service and enforcement companies for the enforcement of unpaid magistrates courts fines are already published. They are available on the departmental website.

While the Department has no direct control over the contractual negotiations that local authorities carry out when tendering out work to outside enforcement companies for the enforcement of parking fines and local taxes, we would certainly consider that the publication of such contracts would be good practice. However, hon. Members should bear in mind the fact that that many local authorities do not contract out such services. They are often carried out in-house by directly employed members of a local authority's staff. In that case, the contract would be a contract of employment between the local authority and its employee and the publication of such a contract would be intrusive, improper and unnecessary. However, I hope that my assertion is sufficiently strong to allow my hon. Friend to feel that real steps forward have been made.

Amendments Nos. 10, 11, 13, 15 and 41 are concerned with protecting the vulnerable. As I have said many times, I agree entirely with the sentiments behind the amendments, as will hon. Members on both sides of the House. I am surprised and sorry that anyone thinks that schedule 12 is gobbledegook. I think that it is straightforward and easy to understand.

National standards have been talked about. Although I do not have a chained-up 'bible', I have a copy of the national standards in question: "Effective Enforcement"—the national standards for enforcement agents. They will be reflected in the new enhanced and extended certification process for enforcement agents who are not Crown employees but who will work through the county court. They will also be reflected in future regulation by the Security Industry Authority, when that fine day dawns. The training requirements for enforcement agencies will ensure that all agents have a thorough working knowledge of all the relevant areas of enforcement law and of the national standards.

Agents will have to comply with many other things to undertake enforcement work, and the training will cover those requirements. Agents will need to be able to deal with potentially dangerous or aggressive situations, develop negotiating skills and understand and acquire the ability to deal with vulnerable or potentially vulnerable debtors, as well as undergoing enhanced criminal record checks. I have already alluded to the fact that the deposit of a bond will be required, and that it could be used and forfeited if there was a breach of certification.

Crown-employed enforcement agents will continue to be subject to their own high standards of training and guidance, which include diversity awareness and dealing with the vulnerable and with potentially vulnerable situations. As I have repeatedly said, no one disputes the fact that there is little complaint about those people. I reiterate that the intention is for a commonality of standards in the future among those against whom there is no complaint, so as to bring up to those standards those against whom there is complaint—in so far as those people survive in the industry at all, because if they are cowboys, they will be out at first base.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

Is there an automatic penalty for breach of any of the standards in the manual?

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Ministry of Justice

I do not know that it would be an automatic penalty. We intend to bring the national standards and the requirements of schedule 12 into the terms of certification and ultimately the terms of licensing. The question will then be whether there has been a breach of the certificate or the licence, depending on the stage in the evolution of regulation in which the breach occurs. At that point, the processes and responses that I have already set out will apply, so it is more complicated than an automatic penalty.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

May I deduce, therefore, that the answer is that breach of standards would normally result in loss of licence? I am not trying to trap the Minister; I just wanted to find out about the status of the standards and what the effect of a breach would be.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Ministry of Justice

I do not feel trapped. The hon. Gentleman makes an inappropriate inquiry, if I may say so, but the question is not as simple as he suggests. Somebody who breached their licence or certificate in a fairly minor way, which might still be couched in terms of a breach of national standards, might not automatically lose their licence. The hon. Gentleman will recall that a range of penalties is available to the county court judge, who may, when dealing with a complaint in certain circumstances, think it appropriate to summon the bailiff before him and tell him off. Many steps would be taken before actually ending somebody's livelihood, but I have no doubt that in serious or repeated breaches of standards judges will act appropriately and with rigour. Similarly, the SIA will implement the standards with rigour.

On amendment No. 15, I am not sure why the hon. Member for Braintree and others consider it necessary to include a specific provision for dealing with premises where the occupant is known to be a single woman, in the sense of a woman alone. What about protecting women who are not known to be on their own? The distinction is arbitrary. The process is not intrusive in the way that searches by police officers are. We are talking about a bailiff knocking on the door and presumably, as a rule, seeking walking possession. That is not about personal searches or anything that requires gender-specific treatment, so we think there is no need for the amendment. The training requirements will include training in how to identify and deal with vulnerable and potentially vulnerable debtors.

After consultation, and if it is considered appropriate, regulations made under paragraph 24 of schedule 12 will reflect those parts of the national standards that state that, on discovering that the only person on the premises is a child, the enforcement agent should withdraw immediately, without making further inquiries. If those regulations were breached, remedies would be available under paragraph 66 of the schedule. That would put that part of the national standards into a higher, more immediate category, and a separate code of conduct and separate responsibilities to comply with the code would therefore become unnecessary.

Our proposals go beyond what amendment No. 41 is designed to achieve. In particular, the status of the guidance issued by the Lord Chancellor and the sanctions that would be available if an enforcement agent chose to ignore it are not clear. Concepts such as "vulnerability" are difficult to put in statutory terms, and generic definitions would make it difficult to predict who would fall into the vulnerable category. What is important is good character, accredited training and getting people who do not behave properly or understand their responsibilities out of the business entirely.

Amendments Nos. 1, 2, 12, 19 and 36 are about exempt goods and are similar to amendments that were debated in Committee. Our intention is that both the general definition of exempt goods and the specific list of goods themselves will be clearly set out in regulations. The hon. Member for Braintree will remember that during the Committee debate, hon. Members suggested a number of goods that, thanks to technical innovation, are now considered to be essential to a debtor's livelihood. That made the point that any list put into statute could never be exhaustive because circumstances change.

Furthermore, to change a statute takes a lot of parliamentary time. A regulation made under a statute carries just as much statutory authority: it is the law—not in exactly the same way, but just as patently as if it were statute—yet it can be refined, tidied up, added to and taken away from far more easily than amending a statute, which would occupy parliamentary time which, to be frank, ought to be occupied by much more high-level matters. Appropriate scrutiny is available for the list, but as I understand it, the hon. Gentleman's concern is not about the contents of the list, but about where the list is put—into which document. Our clear view is that regulation is the right place for it.

The hon. Gentleman will also remember that when an amendment suggesting a list of goods was debated in Committee, we looked at the list in the policy statement that we issued some time ago stating how we would use the powers in the Bill and found some differences between the two lists. That made the point that if we make a list, someone will have a bright idea about an item that should be added to it. What is proposed in the amendment is far too rigid— [ Interruption. ] The hon. Gentleman says, "Okay."

I understand that hon. Members have concerns about debating the provisions in advance of seeing the regulations, but the policy statement fills that gap. In paragraphs 133 to 136 of that statement we set out the goods that we currently think should be exempted, and they include tools of the trade.

Under amendment No. 25, a debtor would have to sign a form stating that notice had been received before goods could be taken away. I understand the concern, but it would enable people to thwart efforts to take control of goods by declining to sign the form. That would undermine the remedy, which is quite a good one.

Photo of Austin Mitchell Austin Mitchell Labour, Great Grimsby 5:15 pm, 27th June 2007

Of course, the signing could be for the recorded delivery of the letters—an acknowledgement that they have been received.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Ministry of Justice

My hon. Friend says that, but my response to his amendment No. 69, which would oblige post to be sent by recorded delivery, is that a person could easily thwart the whole process by refusing to sign the receipt for the recorded delivery. Other court notices are not sent by recorded delivery. Ours, at least, will by sent by first-class post, but many such notices are sent by second-class post. On amendments Nos. 16 to 20, a controlled goods agreement can be signed by a person other than the debtor; I think that that is clear.

Photo of Austin Mitchell Austin Mitchell Labour, Great Grimsby

I am sorry, but the Minister has given a trivial defence. The letter sent by recorded delivery could contain a large sum of money. No one would know what was is in it until they opened it.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Ministry of Justice

I did not really want to quibble on this subject, but the fact is that if recipients are knowing debtors, as we envisage they will be, if a recorded delivery letter came along, they would probably be very suspicious of it. The point is that we cannot say whether Mrs. X in Great Grimsby knew what the contents of the recorded delivery letter were, but we can say that refusing to sign for the letter is a sure way of thwarting the whole process. It would not allow us to go ahead with the seizure of goods or walking possession, although I thought that everyone in the Chamber, no matter what their party, thought that that was a desirable remedy that should be used—albeit with great care, as we have been at pains to set out.

I have dealt with a great many of the other amendments. On amendment No. 26, it is suggested that we should limit the value of the goods to be seized to the value of the debt owed, but that is a difficult line to draw finely. We have said in paragraph 12(1) of schedule 12 that an enforcement agent will take control only of goods that are proportionate to the value of the debt owed, plus any future costs. That seems to us to be the right way forward.

Amendment No. 27 would make a distinction between goods seized on the highway and goods seized in other ways. I have already addressed the principle: we think that the measure would just add confusion and would not improve matters. On the issue of abandoned goods—again, this is a concern raised by my hon. Friend the Member for Great Grimsby—the goods have to be sold for the best price. If goods that have been in a legally conducted sale are left unsold, they will be deemed abandoned. That is intended to protect the debtor from an enforcement agent keeping the debtor's goods indefinitely until they are eventually sold, possibly after many attempts.

Amendment No. 3 on information sheets is a Liberal Democrat amendment. We will provide a large amount of information, and the information on the sheet proposed by Simon Hughes is just a very small part of what we will make available. His amendment is, I fear, unclear, but he can rest assured that his aim, which is to ensure that people are entitled to know their rights, will be met. An enforcement agent has to provide a notice before action commences and after entering premises, as the hon. Gentleman knows. That is expressed in schedule 12.

Amendment No. 7, which is about legal aid, would insert a requirement that regulations must

"make provision for legal aid to be available where financially necessary" in all actions that are to be brought in the High Court, irrespective of the merits of the application. We just could not tolerate that; as the hon. Gentleman knows, there are merits and means tests for all legal aid applications, so that would be a great crashing change.

I hope that I have reassured hon. Members. We will protect the public and we will ensure that there is good information available to them, so that they know their rights. Part of that process will take place through legislation. I have dealt in detail with most of the amendments in the group, and I hope that hon. Members now feel that they can withdraw them.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I am grateful to the Minister for her response. She has put my mind at rest on some points, and certainly on exempt goods, tools for trade, and the code of conduct for the vulnerable. I am grateful to my hon. Friend Mr. Newmark for his excellent contribution on the subject of protection of the under-16s and children. The Minister answered many of his points. I should be grateful if she would write to me at some stage about the power to withdraw bailiffs who have been unleashed in cases in which the debtor wants to seek relief from a disproportionate fine at a magistrates court. I do not expect a reply now, as we want to get on, but I would be grateful if she wrote to me in due course.

I am concerned that the Minister has not given us a favourable or satisfactory response to amendment No. 10, which we have discussed at great length. I believe that we have won the argument, so it is my wish to press the amendment to a vote.

Question put, That the amendment be made:—

The House divided: Ayes 220, Noes 278.

Division number 161 Orders of the Day — Clause 57 — enforcement by taking control of goods

Aye: 220 MPs

No: 278 MPs

Ayes: A-Z by last name


Nos: A-Z by last name


Question accordingly negatived.