I agree with my noble friend.
It is important to point out that the guidelines, in Chapter 6.31, state:
"The contractor shall not take any action to levy distress without prior reference to court if the defaulter"— and it then goes on to provide a list of who may be considered vulnerable. It continues:
"The Department also reserves the right to withdraw enforcement action where there is evidence that the defaulter is vulnerable".
These are the terms, conditions and specifications in the contracts between Her Majesty's Courts Service and the private enforcement companies which execute distress warrants on behalf of the department. In other words, the contractors are obliged to comply with these requirements.
If the bailiff considers the person to be vulnerable, or if the bailiff does not think so but the offender considers himself or herself to be vulnerable, what can be done? The short answer is that the matter needs to be brought back to the court so that its attention can be grasped and, if the court considers it appropriate, the distress warrant can be withdrawn. Under the powers contained in Section 142 of the Magistrates' Courts Act, subsection (1) provides that,
"a magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender", if it appears to the court to be in the interests of justice to do so. Subsection (2) is also relevant. It states that where a person is convicted by a magistrates' court,
"and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may ... so direct".
In the other place, the honourable Member for Enfield Southgate, who sits on the Opposition Benches and is a practising solicitor in criminal law—the noble Lord, Lord Campbell of Alloway, and I had the pleasure of serving with him on a Select Committee a year or so ago—spoke of his experiences as a youth court solicitor. He said:
"I know that in such situations there are ways to get the warrant withdrawn and to ensure that true account is taken of the young person's means. That often means that the fine remitted to a level that can be paid.".—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 23/11/07; col. 491.]
Our case is that, one way or another, distress warrants can be and are withdrawn. However, I must emphasise that the court's power to withdraw a warrant is discretionary.
The criminal courts have to pass sentence on those who are guilty. The sentences include fines, which must be adequately enforced otherwise the public may lose confidence in our system. Of course, the enforcement of fines must be done with regard to those who may be vulnerable, and such people must have adequate opportunities to alert the court to their circumstances and the court to take account of them. We are satisfied that such opportunities exist and that procedures are in place to deal with those who are vulnerable.
I do not apologise to the Committee for having gone on at some length. The noble Lord, Lord Thomas, has raised an important point with the amendment. I hope I have put the Government's case that this new clause is not necessary because what it seeks can and does happen.