Schedule 12

Tribunals, Courts and Enforcement Bill [Lords] – in a Public Bill Committee on 20th March 2007.

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Taking control of goods

Amendment proposed [this day]: No. 90, in schedule 12, page 209, line 16, at end insert

‘by serving a notice on the debtor or a person in control of the premises and additionally, if the enforcement agent deems it necessary, by physically securing the goods’.—[Mr. Bellingham.]

Question again proposed, That the amendment be made.

Photo of John Bercow John Bercow Conservative, Buckingham

I remind the Committee that with this we are discussing the following amendments: No. 91, in schedule 12, page 209, line 19, at end insert

‘, if this will not cause undue hardship to the debtor or his family or significantly impair his ability to continue in his business, employment or vocation’.

No. 92, in schedule 12, page 209, line 20, at end insert

‘or with a person in control of the premises where the goods are found’.

No. 93, in schedule 12, page 209, line 29, at end insert ‘or other competent person’.

No. 94, in schedule 12, 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.’.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

It is a great pleasure to serve again under your chairmanship, Mr. Bercow. I am sure that the deliberations of the Committee will be presided over with the light touch and the charm that you showed last week.

We have already debated the amendments and have heard what the Minister has had to say by way of response—

Photo of John Bercow John Bercow Conservative, Buckingham

Order. To refresh the hon. Gentleman’s memory, we are continuing the debate on an amendment initiated by the hon. Member for North Southwark and Bermondsey. No ministerial reply has yet been extracted and no opportunity for the Minister  to provide it has been given, but I am sure that the hon. Gentleman will want to continue his remarks until their conclusion.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

Indeed, and on that basis I am happy to hear what the Minister has to say.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

With respect, Mr. Bercow, it was not a debate that I initiated. I was just intervening before we adjourned. I apologise if I put the hon. Member for North-West Norfolk in the firing line, but I am grateful to him for trying to sweep up, as it were.

My simple point was to ask how we could create a system wherein others in the household can have the authority either to take responsibility for a notice, or to accept a bailiff saying that he will take possession of the goods but that he will leave them there, in a way that is compatible with the fact that those people may be independent of the person in relation to whom the obligation first arises. “It is not my responsibility”, is a common response to bailiffs on the doorstep and happens frequently. I described such circumstances before we adjourned. I wonder what the Minister’s thoughts are and what advice officials have come up with on the best way to secure both the interests of those who are seeking to enforce their debts and ensure that money is paid and the interests of the household. Those in the household may be unrelated to each other and someone might wittingly or unwittingly take responsibility without necessarily having the authority of the person whose goods they are to do more than be the receiver of the message. Historically, it has been a fairly intractable question. I should be grateful to hear the hon. and learned Lady’s views on how the matter can best be dealt with in everyone’s interests.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

I, too, welcome you back to the Chair, Mr. Bercow. I echo everything that was said about your charm.

Amendment No. 90, tabled by the hon. Member for North-West Norfolk, is not necessary. Paragraph 28(1), to which I have already referred, stipulates that an enforcement agent must provide a notice for the debtor on entering the premises. We have covered that territory. Regulations will be made under paragraph 28(2) to determine the form and content of the notice, and further details of its contents are contained in paragraph 160 of the statement on delegated powers. We had a gallop around that course this morning. The notice will set out details of the debt, how it can be paid, any charges and any avenues of appeal or complaint, all of which are essential.

I understand the concerns behind amendment No. 91 about not causing undue hardship, but those, too, are covered adequately, and we have already considered them. We will regulate to exempt goods from seizure when they are necessary for a debtor’s basic domestic needs. We have been through the list as it is currently composed, and I have said that I am happy to hear representations about anything that should be added to it for the sake of completeness and comprehensiveness. Anything that is necessary for the basic domestic needs of the debtor can be added to the  list, as can those things that are necessary to enable him to carry on his business, his work or his vocation.

Paragraph 12 of schedule 12 limits the enforcement agent to take control of goods to the value only of the outstanding debt and any future costs. One expects that such a provision will not result in the cleaning out of everything except the exempt goods, except on rare occasions. I believe that the Bill finds an appropriate balance between creditors and debtors and will not cause undue hardship to the debtor or his family, or impair his ability to carry on his business or education.

Amendment Nos. 92 to 94 seek to provide that a controlled goods agreement—the new name for the walking possession arrangement that we have discussed in those terms—can be signed by a person other than the debtor. It is the wish of Her Majesty’s Opposition that that should be so if a competent person who is over 18 lives on the premises or works on them where the premises are business premises, as long as he fully understands the consequences of the procedure. As my noble Friend Baroness Ashton has said many times in the other place, the Bill does not preclude the possibility of another person signing for a controlled goods agreement. In addition, paragraph 13(3) of the schedule provides for regulations to make further provision about taking control of goods by way of a controlled goods agreement. I am happy to confirm that the regulations will specify that a controlled goods agreement may be signed by a person other than the debtor, but such regulations would also need to clarify that that person would require the debtor’s consent.

Lest anyone be troubled, I shall set out how we hope the procedure will work. Where a person on the premises volunteers to sign the agreement saying that they have the authority to do so, the enforcement agent will have to ascertain their relationship to the debtor and, if satisfied, may accept the statement at face value and allow the person to sign. It is in the debtor’s interest to allow that to happen, as the alternative might be that the goods are removed.

Where no one on the premises is willing to claim the authority to sign, the enforcement agent should try to contact the debtor by telephone to explain the situation and to ask whether the debtor can instruct someone who is present to sign the agreement or come over to sign it in person. Where it is not possible to authorise someone who is present or no one is willing to sign the agreement, the enforcement agent would be within his rights to take control of the goods immediately by securing them on the premises or by removing them for storage and sale.

A person who could sign in those circumstances should not be someone under the age of 18 or someone who is incapable of understanding the serious nature and consequences of what they are signing. All of that is intended to be put into regulation, and given that, I hope that hon. Members will not press their amendments to a Division.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

You slightly wrong-footed me at the start of this sitting, and I apologise for not being more on the ball, Mr. Bercow.

I am grateful to the Minister for that explanation. She has gone through the matter most thoroughly. Given the spirit in which we are conducting our  proceedings and the good will that everyone has shown towards each other so far, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 95, in schedule 12, 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.’.—[Mr. Bellingham.]

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 10.

Division number 3 Nimrod Review — Statement — Schedule 12

Aye: 5 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move amendment No. 97, in schedule 12, page 210, line 7, at end insert—

‘(7) Entry without a warrant by an enforcement agent to premises containing domestic or living accommodation is restricted to the normal methods and places of entry used by visitors to the premises.’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following: Amendment No. 98, in schedule 12, page 210, line 28, leave out paragraphs 17 to 22 and insert—

‘Application for power to use reasonable force

16A (2) This paragraph applies if an enforcement agent has the power to enter the premises under paragraph 14 or 16 or under a warrant under paragraph 15.

(3) If the creditor applies to the court, it may issue a warrant authorising an enforcement agent to use, if necessary, reasonable force to enter the premises for the purpose of taking control of goods.

(4) The court may issue a warrant under sub-paragraph (2) only if it is satisfied that there are exceptional circumstances.

(5) In considering whether to issue a warrant under sub-paragraph (2), the court shall have regard to the matters set out in sub-paragraph (5).

(6) Those matters are—

(a) the nature of the debt;

(b) whether the debtor resides at the premises specified in the application;

(c) whether the debtor carries on a trade or business at those premises;

(d) the personal and financial circumstances of the debtor and their family;

(e) whether the likely costs arising from execution of the enforcement power (including, but not limited to, those costs arising from use of reasonable force) are proportional to the debt;

(f) whether the creditor has, so far as it is reasonable, attempted to enforce payment of the debt by other means.

(7) For the purposes of this paragraph, exceptional circumstances are—

(a) that the debtor has been given reasonable opportunity to repay by affordable instalments but has deliberately or wilfully chosen not to do so;

(b) that the debtor is not a vulnerable person;

(c) that there is a reasonable prospect that the sum recovered from the sale of the debtor’s goods would be at least equal to an amount prescribed by order of the Lord Chancellor.

(8) Regulations shall prescribe the circumstances in which debtors are to be defined as vulnerable persons for the purposes of this paragraph.

(9) The Lord Chancellor shall consult such persons or bodies as he considers appropriate on the content of the regulations made under sub-paragraph (7).

(10) The court may not issue a warrant under sub-paragraph (2) until regulations under sub-paragraph (7) have come into force.

(11) The court may suspend the operation of a warrant under sub-paragraph (2) on such terms as it sees fit on its own volition or on the application of the debtor at any time before goods taken under control have been sold.’.

Amendment No. 99, in schedule 12, page 210, line 28, leave out paragraphs 17 to 22 and insert—

‘Preservation of common law rights restricting entry by force

16A This Act expressly preserves all common law rights restricting entry by force to a private dwelling by a civil enforcement agent.’.

Amendment No. 100, in schedule 12, page 211, line 30, leave out paragraph 24 and insert—

‘24 (1) Nothing in this Act shall permit the entry by force to a dwelling house by a civil enforcement agent where—

(a) the door is locked or secured against entry;

(b) a householder has indicated to a civil enforcement officer or enforcement agent that such entry is refused; or

(c) where a dwelling is occupied or appears to be occupied by a person or persons under 16 or by a person lacking the mental capacity to understand the consequences of entry.

(2) Nothing in this Act shall allow a civil enforcement officer pursuing a fine recoverable as a civil debt to—

(a) search a person without their consent;

(b) search a person of the opposite sex;

(c) remove items of clothing or jewellery or other wearing apparel;

(d) remove a person from a dwelling who has sole care of children resident in that dwelling whether the children are physically present at that time or not.

(3) Nothing under this Act permits a civil enforcement officer or agent enforcing any other civil order or judgment of the court to—

(a) use force against an occupier or person present in the dwelling save in as is permitted at common law or under section 3 of the Criminal Law Act 1967 (c. 58);

(b) conduct a search of a person in a dwelling;

(c) remove any item of clothing, jewellery or wearing apparel or other object from a person.’.

Amendment No. 101, in schedule 12, page 212, line 6, leave out sub-paragraph (2).

Amendment No. 102, in schedule 12, page 212, line 8, leave out sub-paragraph (4).

Amendment No. 103, in schedule 12, page 212, line 9, leave out sub-paragraph (5).

Amendment No. 104, in schedule 12, page 212, line 37, leave out sub-paragraph (4).

Amendment No. 128, in clause 60, page 44, line 42, at end insert

‘, except those common law rules and restrictions expressly preserved.’.

Amendment No. 129, in clause 60, page 45, line 8, at end insert—

‘(e) rules of peaceful and forced entry and re-entry to property.’.

Clause 60 stand part.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The amendments go to the heart of an important part of the Bill and are vital to the powers of bailiffs. I can deal with amendment No. 97 fairly swiftly. Our aim is to prevent bailiffs using entry methods that might be in any way underhand or unconscionable. Anyone who saw the recent BBC “Whistleblower” programme on bailiffs would have noticed with dismay bailiffs gaining access through windows and managing to get their foot inside the door when it was half open. That is why I wish to insert a reference to

“normal methods and places of entry used by visitors to the premises.”

In other words, getting in through an attic window or a window at the back of a house is simply not acceptable. Amendment No. 97 is a bit out on a limb from the others in the group.

Amendment No. 98 is important. The schedule contains the heading “General powers to use reasonable force” and in the following paragraphs, the Government give bailiffs a general power to use reasonable force. Our amendment would strike out paragraphs 17 to 22, thus removing that heading and another, “Application for power to use reasonable force”, and the paragraphs to which they apply. We would reinsert the title “Application for power to use reasonable force” and our own remodelled paragraphs, which make it clear what the bailiff can do. I shall not run through it in a lot of detail, as it is there in the amendment for members of the Committee to look at carefully, but I shall pick up on a few points. We say in the amendment:

“This paragraph applies if an enforcement agent has the power to enter the premises under paragraph 14 or 16 or under a warrant under paragraph 15.”

Paragraph 14, of course, concerns entry without warrant, paragraph 16 concerns re-entry and paragraph 15 concerns entry under a warrant. The amendment goes on:

“If the creditor applies to the court, it may issue a warrant authorising an enforcement agent to use, if necessary, reasonable force to enter the premises for the purpose of taking control of goods... The court may issue a warrant under sub-paragraph (2) only if it is satisfied that there are exceptional circumstances.”

I want to put the emphasis on the requirement for exceptional circumstances.

The amendment goes on to require that

“In considering whether to issue a warrant under sub-paragraph (2), the court shall have regard to the matters set out in sub-paragraph (5)”.

Those matters are listed in a way in which that would be helpful to the implementation of the system, as follows:

“Those matters are—

(a) the nature of the debt

(b) whether the debtor resides at the premises specified in the application

(c) whether the debtor carries on a trade or business at those premises

(d) the personal financial circumstances of a debtor and their family.”

The amendment goes on to list a few more items for consideration and goes on to define “exceptional circumstances” as:

“(a) that the debtor has been given a reasonable opportunity to repay by affordable instalments but has deliberately or wilfully chosen not to do so;

(b) that the debtor is not a vulnerable person;

(c) that there is a reasonable prospect that the sum recovered from the sale of a debtor’s goods would be at least be equal to an amount prescribed by order of the Lord Chancellor.”

The amendment would also tidy up other provisions.

Amendment No. 100 would remove paragraph 24, which appears under the title “Other provisions about powers of entry”. Sub-paragraph (1) states:

“The power to enter and any power to use force are subject to any restriction imposed by or under regulations.”

Sub-paragraph (2) states:

“A power to use force does not include power to use force against persons, except to the extent that regulations provide that it does” which, it seems to me, is extremely verbose. We wish to take those paragraphs out and insert the text of the amendment so that sub-paragraph (1) would read:

“Nothing in this Act shall permit the entry by force to a dwelling house by a civil enforcement agent where...the door is locked or secured against entry”,

which is self-explanatory, and

“a householder has indicated to a civil enforcement officer or enforcement agent that such entry is refused; or...where a dwelling is occupied or appears to be occupied by a person or persons under 16 or by a person lacking the mental capacity to understand the consequences of entry.”

Sub-paragraph (2) would read:

“(2) Nothing in this Act shall allow a civil enforcement officer pursing a fine recoverable as a civil debt to...search a person without their consent”— which is extremely important—

“search a person of the opposite sex” and, because there have been cases in which bailiffs removed watches from the arms of debtors, remove items of clothing or jewellery or other wearing apparel” or

“remove a person from a dwelling who has sole care of children resident in that dwelling whether the children are physically present at the time or not.”

The amendment also proposes a paragraph (3) that mentions a number of important points.

Amendment No. 99 would preserve the common law rights that restrict entry by force. Why is that so important? There are a number of reasons. The Bill as it stands will overturn two fundamental principles of our common law on bailiffs’ power to enter private property: that bailiffs may only enter peaceably and with the permission of the debtor. Those rights are fundamental.

That force may not be used to effect entry has been established in law since at least the 14th century. The case most often cited in relation to the rule that an Englishman’s home is his castle is Semayne’s case. That laid down very clearly that an individual householder has every right to deny entry to a bailiff or agent of the Crown. There have been many famous comments on the case, but none are as well known as that from William Pitt the Elder, first Earl of Chatham. It is a classic passage that sums up why it is so important to preserve that part of common law. In Southam v. Smout in 1964, Lord Denning quoted Pitt, who said:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement”.

We know that there are circumstances in which the police can launch dawn raids on people’s property and in which the uniformed services of this country can enter a property, but that established right in our common law makes it clear that if entry is refused, force may not be used to make that entry.

It is worth bearing in mind that, in that respect, the pass was arguably sold in the Domestic Violence, Crime and Victims Act 2004, which introduced the right of forcible entry in respect of some fines levied under that Act. We are asking for that implicit reversal of common law to be overturned. We feel that that is important, because it goes to the heart of the protection that people need. We are talking about some of the most vulnerable people in society. If we are to give them more power, surely that common law right should be reinstated.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats 4:15 pm, 20th March 2007

I am sympathetic to not giving up people’s right to resist other people entering their property to enforce civil debts and so on, but I have also believed for a long time that we ought to codify our law so that people can find it all in one place. Is not the weakness of the argument for keeping the common law as it is the old problem that people will not know what the law is as clearly as if it were all written down in one place? I do not dissent from the objective, but I am concerned about the means.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

That is a fair point, and one could debate it. It is a pretty academic subject, but I submit that if we use amendment No. 99 to preserve the common law rights, combine it with amendment No. 98—which would rewrite the application for power to use reasonable force and which the hon. Gentleman signed, for which I am grateful to him—and combine their provisions with the changes made by amendment No. 100, the package that we are presenting for inclusion in the Bill would provide extra protection, which would not otherwise be available.

I should mention the other common law right that the Bill will overturn. The first common law right that I mentioned in connection with Semayne’s case is one on which the pass was sold in the 2004 legislation, but as I understand it, at present, entry may take place only with the permission of the occupier. Paragraph 14 of schedule 12 aims to overturn that right, and I ask the Minister to comment on that. I submit that if bailiffs are granted a power to enter or remain against the wishes of the occupier, they will actually be in a more privileged position than police officers executing warrants of arrest, despite the fact that they will be immeasurably less well regulated and disciplined than constables. I find that worrying. The provision needs to be discussed and debated in detail.

I do not want to test your patience, Mr. Bercow, by considering what regulation we need. I would certainly regard clauses on regulating and rewriting the certification system as part of a wider response to the Bill to help people in a vulnerable position. We are discussing people who are facing crises in their lives—those who have the bailiffs on their doorsteps. Furthermore, bailiffs are to have more rights. In that context, it is of fundamental importance that the Bill contain more protection.

As legislators we should be extremely wary of overturning common law. I understand the comments of the hon. Member for North Southwark and Bermondsey: common law is often difficult to understand and gives lawyers a field day, and one can conclude that codification would be better. However, if a Bill does not include appropriate codification, and instead gives additional powers, the Opposition believe that it is a retrograde step to tear up hundreds of years of common law. That is why we are proposing the amendments.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I shall make a short contribution now. After that I believe that it would be helpful if the Minister were to put on the record her understanding both of the current legal position regarding citizens’ right not to open their doors and let people in, and of the effect of the proposed change. The provisions that we are considering are the most controversial in the Bill, and they combine two elements. The first relates to the rights that people have to stop others entering their property, and the second to the occasions on which someone seeking entry has a right to use reasonable force. Will the Minister explain the current status of the law and its defects, as well as, in the context of amendment No. 98, the reason why paragraphs 17 to 22 and the following paragraphs should remain in the Bill?

All the representations that I have seen suggest that bailiffs and the rest of the enforcement fraternity do not want an additional right to use reasonable force. They do not want to use any more force than the criminal law allows. They fear that if they are given the right to use reasonable force, altercations might be precipitated that might escalate and make matters worse. At present, if someone lawfully enters a house and someone else attacks them unreasonably, they are justified in using force to defend themselves. However, my understanding is that there is no lobby for the statutory availability of greater powers to use force, as is being proposed.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

The provision is not about the use of force on people. I do not think that bailiffs want the right to use force on people, although there is an existing power for certain people to use it. We are talking about the use of force only when a warrant has been applied for and the judge has allowed it.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

That is right. There are two species of force: the force to kick the door in, and the force to deal with something thereafter. As far as I know, the bailiffs are saying that they do not want any additional powers in relation to people whom they encounter in properties.

Photo of Jennifer Willott Jennifer Willott Opposition Deputy Chief Whip (Commons), Shadow Minister (Education)

Does my hon. Friend agree that this debate relates to the one we had this morning on codes of conduct and on bailiffs who either do or do not conform to the rules? If extra powers are provided to bailiffs, the people who are most likely to abuse them are those who are already not behaving as they should.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I am sure that that is correct. People who make representations to us as Members of Parliament often make the point that some people exceed the limit, although there are many who do their job competently.

Photo of David Kidney David Kidney PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs 4:30 pm, 20th March 2007

I was not sure what the hon. Gentleman meant when he said that no one wants the extra power. We have a memorandum—TRI 6—from Barrie Minney, who chairs the local authority civil enforcement forum, expressing strong approval for the extra power:

“We agree that force (with a court order) is needed for those professional debt avoiders who can simply circumvent the law by not answering the door or hiding behind locked gates.”

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

My understanding is that there is wish in some circumstances for the enforcement agents to be able to get through the door. However, people do not want the agents to have any additional powers to do anything to anyone behind the door. I therefore think that there is an agreement between us. I am not dissenting from the Minister’s or the hon. Gentleman’s proposition that there are two issues.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

As other people will hear and read the report of this debate, it is very important to make it clear that we are not talking about the use of force against people. We are talking about an application to a judge to be permitted to use reasonable force to gain entry under very confined circumstances, which we will talk about in a minute. It is terribly important that we do not muddle the two uses of force or we will mislead the public and worry them completely unnecessarily.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I am happy to ring-fence the debates separately. May I make two additional points? In this group, amendment No. 97 makes it clear that entry by an agent is restricted to what is described as

“normal methods and places of entry used by visitors”.

I hope that the Minister will be sympathetic to that; it is the conventional argument. If an agent is seeking entry, they should do so by knocking at the door or at the French windows—they are doors as well—but it is not acceptable for an agent to seek to get in by a window, a skylight, or by the top window on the latch. They have to get in conventionally.

My last point relates to the comment I made this morning about the confusing nature of this part of the schedule. I was not seeking to damn the whole of schedule 12. However, the sequence in this part of the schedule and in paragraph 14 is confusing. I can see how the draftspeople have sought to put this on paper. We start with a section called “Entry without warrant”, then “Entry under warrant” and then “Re-entry”. I understand that triple division. Then there are paragraphs on

“General powers to use reasonable force”.

Anyone who does not carry around a copy of “Halsbury’s Statutes” would probably not understand what that means, because it implies that there is a general reference to powers to enter the premises under two earlier paragraphs or under a warrant under another paragraph. There is then a power to enter under an enforcement power conferred by the Magistrates’ Courts Act 1980 and another power, which is an entitlement to execute the warrant by virtue of two other sections of the 1980 Act. Then there is a whole set of conditions.

The schedule then goes back to talk out of sequence about the fact that an agent would need to apply for permission. Therefore, if we are really trying to clarify the law and represent what the public wants, we must start with the presumption that people cannot enter someone else’s property. After that, we have to set out the occasions when they can. Before that, however, we need to set out the procedure that gives people permission to enter someone else’s property. Therefore, we say that people cannot come in.

If an agent goes to court, however, and makes the case—that is the subject of another amendment in this group—and they persuade the judge of the circumstances, they will be given permission to go in. If the agent goes in, they are entitled to go in by the front door or the French windows. They are even entitled to push the door in. I make my case for that in a constructive way. That is one of the most fundamental bits of our unwritten constitution. The civil liberties of people in their own homes include having their own territory, which is not entered into by other people, other than in the most exceptional circumstances.

If I, like the Minister, am arguing that we should seek to consolidate and codify—I generally start from that proposition—we need to be doubly clear about what we mean. If the legislation goes through, my presumption is that common law will not be as easily prayed in aid, so we must ensure that the guarantees that make the Englishman’s home his castle—or, as discussed in the Lords, the Welshman’s home his castle—are defined in a way that everyone understands. That is my reflection. Will the Minister help us by setting out the law, common law and all, and the changes to the law and whether we are right in thinking that the measure disadvantages the civil liberties of a citizen, because it takes away some of their current rights?

Photo of Richard Benyon Richard Benyon Conservative, Newbury

Before the Minister responds, I draw her attention to the amendment’s key words, which are that entry to the

“accommodation is restricted to the normal methods...of entry used by visitors to the premises.”

The amendment would exclude the types of entry through different points of the house that the hon. Member for North Southwark and Bermondsey discussed, and it would be a vital addition to the Bill.

Photo of Emily Thornberry Emily Thornberry Labour, Islington South and Finsbury

Will my hon. and learned Friend help with an aspect of the matter? I am concerned that, immediately after the Bill becomes law, bailiffs will not be regulated by the Security Industry Authority, so will she consider withholding their right to enter premises using reasonable force until they are regulated by the SIA?

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

I should be intrigued to know what it said. I shall deal with that point presently, but my hon. Friend has put her finger on the next point with characteristic accuracy. It is highly germane to the amendment, and I shall state the Government’s position. First, the hon. Member for North-West Norfolk referred to what he called a separate point in amendment No. 97, to which the hon. Member for Newbury has just referred. The amendment would restrict entry to normal methods of entry—through doors and French windows. We will undertake exactly that provision, and regulations in paragraph 14(3) will restrict that entry.

The remaining amendments in the group are amendments Nos. 97, 99, 128 and 129, and the hon. Member for North-West Norfolk has said little enough about the latter two. Their essence is the preservation of common law rights, but the trouble is that, if those rights are preserved, they will also preserve the modes of entry discussed by the hon. Member for North Southwark and Bermondsey. In certain circumstances, using a skylight or getting a foot in the door to enter are not violations of the law, but elements of the common law that bailiffs have gained over the years. It is imperative that we repeal and take out of use all that common law, so that there is no mistaking bailiffs’ powers, which will comprise those in schedule 12 and in the Bill, and no others at all. That is the way forward.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

If entry to a premises by what I would describe as unconventional methods is established in common law, I accept entirely what the Minister says. However, I should like her to focus on the two areas of common law in which force may not be used to effect entry and in which entry may not take place without the occupier’s permission, because they are fundamental. Although much of the Bill’s codification is welcomed, if those two extra items of common law were preserved, we would have a stronger Bill that worked better in the interests of the wider public.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

I thought I had made it clear that if we were to preserve the common law as the amendments request, we would preserve the queer old precedents  that allow people to put their foot through the skylight and enter. They are odd cases that have occurred over the years, and this stuff is very old, as everybody has conceded, but the notion that oldness and veneration are virtues is completely misplaced when it comes to such matters. We must prescribe the way in which people can enter the property and totally erase from the law the remaining modes of entry.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The Minister is being very patient. We do not want to turn this debate into a lawyer’s discussion, although I appreciate that she is a learned QC and I am only an unknown junior. Would she be more sympathetic to the amendment if we had proposed preserving one or two of the more fundamental common-law rights, rather than all of them? I entirely take on board her point about preserving all common-law rights, because doing so would have the consequences that she has outlined. In the spirit of a probing amendment, we are discussing the issues around the amendment, so would the Minister be happy to preserve any of the common-law rights that currently apply?

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

No; the purpose of the legislation, as has been said many times, is to consolidate and clarify bailiff law and put it all in one place. It should be in everyone’s interests that that law should be easily accessible, in much the same way as we discussed during this morning’s sitting the need for complete accessibility to what the law is generally.

It is the long-standing objective of the civil enforcement review to make enforcement law completely straightforward and understandable, and the Bill will achieve that. It will put in one piece of legislation a consolidated code of enforcement agent law, setting out the legal structure for virtually all the enforcement of civil debts, judgments and criminal fines. The Bill is written in terms that clearly outline the rights and responsibilities of creditors, debtors and enforcement agents alike, and it is written in good statutory language.

Even picking and choosing which common-law rights to retain—that is certainly not what the amendment provides for—would run contrary to the main objective of the Bill. One would then have to run through the precedents to try to find out whether somebody was indeed allowed to make a queer entry in 1384, or whether we had repealed that incidentally, as part of getting rid of another precedent. Chapter 1 of part 3 will replace all the common-law rules on the exercise of the powers that, under chapter 3, will become the powers to use the procedure as set out in schedule 12. That is the situation, and it is our deliberate intention.

The hon. Member for North-West Norfolk talked about paragraph 14 of schedule 12 overturning the common law that a debtor’s permission is needed. Under paragraph 14, a debtor must agree to entry when an approach is first made, so people cannot disregard the need for a person’s authority to enter. They must ask first and then use the powers under paragraph 14. People will be able to apply to the court only if they cannot gain entry in any other way. However, people cannot disregard what a creditor says  and run in—of course not; they should try peaceful means first, and if the creditor agrees, that is the end of the matter.

Most people agree to let bailiffs in for the purposes of making an inventory or enforcing a controlled goods agreement. If the creditor does not agree, however, one has recourse to the court. Only the court can authorise a single step further. It is hugely important to say that strongly and repeatedly. Although it has been put out by responsible bodies, an impression has been created at large that we are licensing bailiffs to knock once and then break in. That is completely contrary to what we are doing.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

My hon. Friend the Member for Cardiff, Central just pointed out to me that the sequence that the Minister has described is not clearly set out in the schedule. The sequence that she has outlined is that the bailiff can knock on the door and is allowed to enter if given permission to do so by the person behind it. That is obvious—it would apply to anyone knocking on a door. If the person behind the door lets them in, they can go in. However, it is not clear what right the citizen has to ask, “Who are you?” and if the answer is “I’m a bailiff” to say, “I’m not letting you in”, or what sequence of events would have to happen next for that to be overruled. I put it to the Minister that nobody reading the schedule would discover that. I am with her in wanting to consolidate matters, but I ask her to look again at the proposal, because it does not match the sequence that she has set out.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs 4:45 pm, 20th March 2007

The hon. Gentleman is wholly incorrect. For example, paragraph 15 states:

“If an enforcement agent applies to the court it may issue a warrant”.

It continues:

“Before issuing the warrant the court must be satisfied that...conditions are met”.

It then sets out the conditions, the situation in which there may be re-entry and the general power to use reasonable force. It provides that the application to use reasonable force may be made if such authority exists under paragraphs 14, 15 or 16—I particularly alluded to paragraph 15—and it goes on to say that a person may make an application and there will be certain conditions, and so on. It is as clear as day that a person has a right to do what they have to do, either under warrant or in some other way. If they need further powers they must apply to the court, when the conditions under which the court can even consider their application come into play. That is not only transparently clear as a sequence, but it is actually in sequence, so it is not difficult to follow.

I want to mention a couple of other aspects of common law raised by the hon. Member for North-West Norfolk. Common law allows forced entry to commercial premises and forced re-entry to domestic premises in certain circumstances. If a person has obtained, under the ordinary provisions and with the individual’s permission, a walking possession agreement—its name will soon change—and they withdraw satisfied that the goods are secure but is then refused further entry, they have a  power to break in. The Englishman’s castle is not totally surrounded by a moat and high wall, as envisaged by Opposition Members and various propagandists against the proposals, who, I venture to suggest, have not entirely followed their purpose.

This Englishwoman wants to have a right to enforce her debts against somebody and she does not want that person, whoever he may be, to be able to defy her for ever, simply by closing his front door, when he owes her money. This Englishwoman wants a right to be able to apply to a judge and say, “May my bailiff have permission under very restricted circumstances to break in to get my money back?” That is what the proposal is about, and only that.

I want to mention one more thing before I turn to the change in powers. There has been much fairly casual reference to the increase in bailiff powers. The phrase “reasonable force” was also bandied about, although the hon. Member for North Southwark and Bermondsey and I have agreed that we are talking only about force to break in. I make it clear that there are no increases in bailiff powers in the Bill, save for this one: if, in due course, there is a consultation exercise and anyone wants the ability to use restraining force on an individual, that will be a completely separate matter, and we will consult on it and consider it. My best guess is that nobody would want that ability, as the right of self-defence is sufficient to satisfy most people who have to deal with others in heated situations.

I want to make it clear that loose talk about increases in powers is inappropriate, because this power is the only one and it is extremely heavily regulated, as I will now describe. Its use must be fair and reasonable. It cannot be right for a debtor to evade payment just by closing the door, thus making a mockery of the creditor and the judge who has ruled that the debtor must pay and of every other means of enforcing the will of justice against that debtor. That simply cannot be right.

If there is to be a right to enter someone’s premises as a last resort, it must be very carefully regulated. That is exactly what the Bill allows—a heavily circumscribed power of entry, using reasonable force, with prior judicial authority. The necessary conditions for that power include those to which I have alluded: under paragraphs 14, 16 or 15, a power to apply for consent to enter must already be in place, which, in some circumstances, will require going to court for an express warrant to enter the premises with consent. Those statutory requirements must be complied with first.

After those conditions are met, an application must be made to a judge. As all hon. Members who were present on Second Reading know, there is a strict list of conditions to which a judge must have regard before he or she can consider granting leave to enter. They are outlined in paragraphs 149 and 150 of our detailed policy statement on delegated powers, and they will be put into regulations. If hon. Members think that further restrictions are necessary, they should let us know and we will consider them. I had a meeting with the citizens advice bureaux yesterday, and I think that I satisfied them that those conditions will be enough, but that is not the last word.

As a condition, the judge will have to be satisfied

“that other methods of enforcement have failed”.

That probably ought to come into regulations as a satisfaction that all other methods of enforcement have failed. The judge must be sure that

“the property is inhabited by the debtor; normal entry attempts have been unsuccessful; there is reason to believe 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”— the judge will want to know what that is—

“and the enforcement agent will leave the property in a secure state.”

All those conditions that must apply before the judge will even consider granting a right of forced entry. At present, paragraph 150 says that the judge

“may also take other factors into account when making his decision, including: the size of the debt; the type of debt; and any other information about the debtor’s personal circumstances.”

Photo of Brooks Newmark Brooks Newmark Conservative, Braintree

I am not a lawyer, so I hope that the hon. and learned Lady will be patient with my question. She talked about the enforcement of debts and bailiffs’ rights. Can bailiffs use force in a different way when dealing with a fine, as opposed to an ordinary civil debt? Are there differences in bailiffs’ rights to try to get hold of assets, force their way into a house or anything like that with respect to a fine?

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

Yes. There is a power in the Domestic Violence, Crime and Victims Act 2004 for the enforcement of a fine by reasonable force, but that is not what we are talking about at the moment. We are talking about the proposal to give a bailiff enforcing power against a civil creditor, not a criminal fine debtor. I shall carry on to discuss that power, which is the new power in schedule 12. The other power is not new. It has been in force since 2004, and it has presumably felt the approbation of all parties—it did, as I recall.

Photo of Brooks Newmark Brooks Newmark Conservative, Braintree

I am still not clear. Will the Minister explain why there is a difference in the powers? I think that I am hearing that bailiffs can use force to get assets for a fine, as opposed to a civil debt. Why does that distinction exist, as she seems to be implying?

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

I am not implying anything. I am telling the hon. Gentleman that a power in the 2004 Act will now exist in the Bill. The power to enforce a fine by entry using reasonable force has been in existence since 2004. It has been that long since the Englishman’s castle crumbled around his ears.

Photo of Brooks Newmark Brooks Newmark Conservative, Braintree

So there is a difference in the mechanisms—

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

Yes, there is, and I hope that that is now clear.

I turn to the powers in the Bill, which is what we are discussing.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I want to pursue this question. I understand that the Minister wants to talk about the powers in the Bill, but we are talking about enforcement and bailiffs in the Bill as a whole. The Minister argued that the Government want to put everything together, so there seems to be a strong argument for putting all powers under English and Welsh law in the same Bill from now on and for repealing all previous legislation dealing with that—both common law and the Domestic Violence, Crime and Victims Act 2004—and then making a political decision on whether we want one form of process, irrespective of whether the debt arises from a criminal fine or a civil bailiff, or two different forms of process. What is the argument against putting everything in the Bill and having one form of process?

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

There is no argument against that, and it is in the Bill. We have repealed, or will repeal, the provision and have put it in the Bill for the sake of having everything under one roof. That is important, because a great deal of concern has been raised about the exercise of the powers, and it must be made clear how they will function.

I was about to say something that needs saying. In our original proposals, the detailed policy statement on how we intend to use our delegated powers set out two circumstances that the judge must look at before granting the right to use reasonable force to enter. I have set out all the conditions that he must consider. It is also provided that the judge may then take other factors into account when making his decision, including the size of the debt, the type of debt and any other information about the debtor’s personal circumstances. Clearly, the third of the relevant paragraphs is the important one, and I was able to assure a Labour Member on Second Reading that the phrase

“any other information about the debtor’s personal circumstances” was intended to embrace all aspects of vulnerability that he then raised and which are recorded in Hansard. I have made it clear that the terminology is intended to be very wide.

I proposed to Citizens Advice yesterday that we should change the reference in the policy statement that

“The judge may also take other factors into account when making his decision”,

so that the judge must take those factors into account, to make the individual’s vulnerability—the size and type of debt—a first order consideration and not an additional one. That is important, and it will ensure that people are comfortable that a judge must take into account every aspect of the individual when considering whether reasonable force may be used to enter their house. All their vulnerabilities will be taken into account before a judge allows the use of force.

Furthermore, the judge may put conditions on the entry power. I note that when an application is granted under paragraph 20(2) of schedule 12—this plays on an issue raised by the hon. Member for North-West Norfolk this morning—the warrant given to the bailiff may require a constable to assist the enforcement agent to execute the warrant. Paragraph 22 refers to “any constable”, which may be a useful adjunct in the  circumstance that the hon. Gentleman was worried about this morning—namely, that if it were known that the debtor was a women on her own or a women with children in the house, one could ensure that a police officer also attended, preferably a female officer. All sorts of conditions can be imposed to ensure that there is no disproportionate treatment of anyone, whether vulnerable or not, but that is particularly important when vulnerable people are involved.

My hon. Friend the Member for Islington, South and Finsbury raised a hugely important point. It has not yet had much airspace because it is yet to be discussed, but the Government envisage the question of regulated bailiffs as a double-decker process. As is well known, the Security Industry Authority was not ready to take the responsibility to regulate bailiffs, so that they could be part and parcel of the Bill.

There will be what I call a beefed-up version of the county court certification process. That will require a lot of investigation by a county court judge before he certifies a bailiff and the training to which I have alluded in diversity, vulnerability and dealing with conflict resolution. It should be a powerful source of regulation, but it will not be as good as when bailiffs are regulated properly within the ambit of the Private Security Industry Act 2001. The regulation will then be as tight as one could hope and will provide as good a set of protections as my hon. Friend the Member for South Swindon rightly said that the SIA has given to doormen.

I intend that the power even to apply to use reasonable force in domestic premises should not come into force until the industry is properly regulated by the SIA. That is a useful reassurance, and I hope that it comforts those who have been concerned. That seems to be what the press release mentioned by the hon. Member for North Southwark and Bermondsey said before I even announced it. He is quite a remarkable man.

Photo of Anne Snelgrove Anne Snelgrove PPS (Rt Hon Patricia Hewitt, Secretary of State), Department of Health 5:00 pm, 20th March 2007

I thank my hon. and learned Friend for that reassurance. She will know from our discussions this morning that concerns have been raised with me by my citizens advice bureau about the powers of the SIA. It will reassure citizens advice bureaux up and down the country if the regulations will not come into force until the SIA is ready to take them on.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

I need to make it clear that what will not come into force is the new power to apply for reasonable force to gain entry. The application of the power under the Domestic Violence, Crime and Victims Act 2004, which is to be transferred to this legislation, will not be affected. Only that single example of how bailiffs’ powers will be increased in the Bill will not come into force until the industry is regulated by the SIA.

I talked about amendment No. 97. The rest of the concerns of the hon. Member for North-West Norfolk rested—I am not being unkind—on tinkering with the conditions under which we have said judges may grant the warrants and putting those conditions on the face  of the Bill. We think that it is better not to have them in the Bill but to have them in clearly set out regulatory forms, so that they can be changed if they need to be. It is not impossible that we will put the provisions into regulations and find that we want to add something more. We could do that if they were in regulations, and we would not have to legislate.

Amendment No. 100 concerns the powers to enforce a criminal fine. We intend not to reduce or remove the powers in the Domestic Violence, Crime and Victims Act, but to bring them into the Bill. The introduction of those powers has played an important role in the ongoing improvement in the recovery levels for unpaid fines. My understanding is that the powers have not been used often, but the fact that they exist has played a significant role. As my hon. Friend the Under-Secretary of State for Wales said in closing the debate on Second Reading, they have been used sparingly.

There is no intention to introduce any new power that would allow physical body searches on a debtor, or forcible coercion for the removal of clothing or jewellery or wedding rings; neither is there any intention to force debtors to do anything against their will. That includes not removing debtors from premises and not escorting them to other premises where they might be holding goods.

I am not sure whether the hon. Member for North-West Norfolk addressed amendment No. 101 and the following amendments in the group.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

In fact, amendments Nos. 101 to 104 are all concerned with consequential deletions, as are amendments Nos. 128 and 129. They flow from the earlier key amendments, which I addressed.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

One or two of them go a tiny bit further. For instance, amendment No. 101 would restrict the people who were permitted to accompany an enforcement agent on entry. The point of allowing agents to be accompanied is that if one goes into large business premises to take an inventory, one needs to take another person, or possibly two or three people. For that reason, we do not want the amendment to proceed. The enforcement agent would of course be responsible for the actions of those who accompanied him to assist in the exercise of his powers unless those accompanying the agent did something absolutely outwith the ambit of the exercise. If an individual hit somebody, for instance, it would be he rather than the bailiff who was responsible.

It is sometimes necessary to take a locksmith to assist with the removal of locks and thereby avoid a more brutal, forced entry. Enforcement agents therefore need to be able to call for assistance. Amendments Nos. 102 and 103 would restrict their ability to take equipment on to premises and, if necessary, leave it there. However, the type and nature of the goods and assets in the commercial and industrial premises of some large-scale businesses mean that an enforcement agent often has to take equipment on to premises to get access to goods, take control of them or secure or immobilise them. That might require the carrying of tools for the purpose and the leaving of equipment on the premises. There seems to be no reason why we should restrict that ability—it is part and parcel of entering premises.

Amendment No. 104 concerns the way in which reasonable force can be used to control goods on the highway, but the hon. Member for North-West Norfolk has not mentioned it at all, so I imagine that having probed what he wanted to probe by means of the other amendments he intends not to press it.

I hope that hon. Members now feel secure that the single increase in bailiff power will not come into force until the whole industry is properly regulated and governed by a judge. That judge will—himself or herself—operate under strict conditions, including a requirement to have due regard to the vulnerability of the individuals involved. I hope that the amendments will therefore not be pressed.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

In answer to the Minister’s question, it was not my press release or news release from the Department for Constitutional Affairs—it was hers. It is not timed, but it has today’s date. It gave me the exciting anticipation that the Minister was going to make an announcement. It also meant that the question planted with the hon. Member for Islington, South and Finsbury was entirely expected, and I was ready for it. Nevertheless, I am very glad that we had both the paper version and the spoken words on the same day.

As to the substance of the matter, I am pleased that, regardless of our debate on the merits, the Minister has accepted that the powers will not come into force until the new system is in place. I shall talk to my colleagues and no doubt the hon. Member for North-West Norfolk will talk to his. I think that the Minister is right—the powers passed by Parliament under the 2004 Act were in general supported across the House. There may be a view that they ought also to be encompassed in the general regulatory framework, but that is a matter to which Liberal Democrat Members will return.

The Minister has been straightforward in telling the Committee that the proposal is a step forward and puts on a statutory basis further powers for bailiffs to obtain permission from the courts to enter people’s houses in certain circumstances. That is clearly the case. I know that the Minister has not accepted the point, and I shall not argue line by line with her now, but my hon. Friend the Member for Cardiff, Central and I still contend, as would most people who examined the proposals, that the schedule, the sequence and the conditions could be much clearer and much more straightforward.

I, too, have examined the detailed policy statements and delegated powers that anticipate what is coming. I am glad that the Minister anticipates saying that judges “must” rather than “may” take things into account. The more I hear of this debate, the more I am clear about the fact that the conditions that the judge must apply before granting permission should be in the Bill. Unless I have misinterpreted things, that is exactly what the Joint Committee on Human Rights said when it examined this part of the legislation. I understand that it recommended that both Houses examine these matters again, using the normal and fairly courteous phrase that it draws them to the “attention of both Houses”. It clearly argues that such conditions ought to be in the Bill.

Paragraph 2.31 of that Committee’s fifth report of session 2006-07, published on 12 February, states:

“We reiterate our view that where safeguards are necessary to ensure the protection of Convention rights, those safeguards  ought to be clearly identified on the face of the Bill. In cases where the State is using, or authorising the use of, intrusive powers such as entry, search and seizure, we consider that the case for including minimum safeguards (such as the requirement that an enforcement agent should identify himself and the authority for his entry the premises to an occupier without need for a request; the minimum period of notice required; the requirement that entry take place at a ‘reasonable’ time, and protection for material subject to legal professional privilege) on the face of primary legislation is particularly strong. We draw this to the attention of both Houses.”

I accept that many of those things are in the schedule, but people ought to be able to find the law setting out what happens when somebody goes to court requesting permission to enter the house of Vera Baird QC MP, John Bercow MP or Henry Bellingham MP in an Act of Parliament, so that they know the score and the process. Such things are not variables, and we will not be coming back to them every two minutes; they are not detailed procedural matters.

The sorts of things that seem to be fundamental preconditions, without prejudice to the general argument, are: that other methods of enforcement have failed; that the property is inhabited by the debtor; that normal entry attempts have been unsuccessful; and that there is reason to believe that suitable goods should be on the premises. I see no reason why such things cannot be provided for in the Bill.

I am not one of those people who argue that we have more and more legislation and more and more stuff in it, but people’s rights and liberties—the right of people to close their door to someone and the right of others to enter a person’s home—are among the rare cases where one should start from the presumption that the relevant provision is made in an Act of Parliament that someone can refer to, examine and know.

As the hon. Member for North-West Norfolk started by saying, we are discussing an area of great legal tradition and the historic and famous presumption that an Englishman’s home is his castle. If we are changing that, even in limited additional circumstances, we must do so explicitly in the Bill, and not in regulations, whenever they may come into force.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice) 5:15 pm, 20th March 2007

We obviously need to try to make some progress. I appreciate what the Minister said about a judge having to take into consideration what will be in the regulations and common law. We could debate this for a long time. In spite of what she said—I support the argument of the hon. Member for North Southwark and Bermondsey—many of the provisions under the headings “General powers to use reasonable force” and “Application for power to use reasonable force” are vague. The schedule gives substantial new powers and, even having listened to the hon. and learned Lady, I believe that there is an argument for her accepting amendment No. 98 to which the hon. Member for North Southwark and Bermondsey has added his name. It is our wish to press it to a Division so, on that basis, I want to withdraw amendments Nos. 97, 99, 100, 101, 102, 103, 104, 128 and 129.

However, I wish to put some quick points to the Minister. We have discussed force being used, but the  Bill prohibits force against a person by bailiffs unless permitted by regulations. My concern is that regulations might permit restraint against debtors who interfere with the seizure of their goods. Different trade associations were worried about that force. What effect will the new proposal have on Wheatham orders that have been signed by magistrates courts? Will the Minister clarify the situation? Despite what she has said, I am not satisfied with the response that we have received to amendment No. 98 because the way in which this part of the Bill is written will provide more specific protection.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

I shall deal first with the issues raised by the Joint Committee on Human Rights, and will quote what it said as the hon. Member for North Southwark and Bermondsey did. It stated:

“In cases where the State is using, or authorising the use of, intrusive powers...minimum safeguards (such as the requirement that an enforcement agent should identify himself and the authority for his entry on the premises to an occupier without need for a request; the minimum period of notice required; the requirement that entry take place at a ‘reasonable’ time, and protection for material subject to legal professional privilege)” should be included on the face of the Bill.

Paragraph 26 states that the enforcement agent should be asked to prove his identity. He has to show his authority to be on the premises. Under paragraph 8, he must provide a notice as to what he is doing when he has entered the premises. The times when an enforcement agent can call will be contained within regulations, for the sake of flexibility. Again, that seems pretty sensible. We have met the demands of the JCHR, save for the protection of materials subject to legal professional privilege, which is a fairly arcane point to make. It is pretty unlikely that materials subject to legal professional privilege are likely to be the target of a bailiff looking for assets to realise or to freeze for future realisation.

I do not know what the hon. Member for North-West Norfolk meant when he referred to a Wheatham order. I shall ask him for clarification after our proceedings and write to him. If it is of more general relevance, I shall write to all members of the Committee.

Last week, the hon. Member for North Southwark and Bermondsey criticised the Bill for having too much in it. He is now criticising it this week for not having enough in it. We are satisfied that we have got the correct balance, and I commend the schedule to the Committee.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 98, in schedule 12, page 210, line 28, leave out paragraphs 17 to 22 and insert—

‘Application for power to use reasonable force

16A (2) This paragraph applies if an enforcement agent has the power to enter the premises under paragraph 14 or 16 or under a warrant under paragraph 15.

(3) If the creditor applies to the court, it may issue a warrant authorising an enforcement agent to use, if necessary, reasonable force to enter the premises for the purpose of taking control of goods.

(4) The court may issue a warrant under sub-paragraph (2) only if it is satisfied that there are exceptional circumstances.

(5) In considering whether to issue a warrant under sub-paragraph (2), the court shall have regard to the matters set out in sub-paragraph (5).

(6) Those matters are—

(a) the nature of the debt;

(b) whether the debtor resides at the premises specified in the application;

(c) whether the debtor carries on a trade or business at those premises;

(d) the personal and financial circumstances of the debtor and their family;

(e) whether the likely costs arising from execution of the enforcement power (including, but not limited to, those costs arising from use of reasonable force) are proportional to the debt;

(f) whether the creditor has, so far as it is reasonable, attempted to enforce payment of the debt by other means.

(7) For the purposes of this paragraph, exceptional circumstances are—

(a) that the debtor has been given reasonable opportunity to repay by affordable instalments but has deliberately or wilfully chosen not to do so;

(b) that the debtor is not a vulnerable person;

(c) that there is a reasonable prospect that the sum recovered from the sale of the debtor’s goods would be at least equal to an amount prescribed by order of the Lord Chancellor.

(8) Regulations shall prescribe the circumstances in which debtors are to be defined as vulnerable persons for the purposes of this paragraph.

(9) The Lord Chancellor shall consult such persons or bodies as he considers appropriate on the content of the regulations made under sub-paragraph (7).

(10) The court may not issue a warrant under sub-paragraph (2) until regulations under sub-paragraph (7) have come into force.

(11) The court may suspend the operation of a warrant under sub-paragraph (2) on such terms as it sees fit on its own volition or on the application of the debtor at any time before goods taken under control have been sold.’.—[Mr. Bellingham.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Division number 4 Nimrod Review — Statement — Schedule 12

Aye: 6 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move amendment No. 105, in schedule 12, page 213, line 35, at end insert—

‘(3) Where an enforcement agent seizes a sum in cash it must be accounted for, receipts must be issued, and the creditor and the court must be notified.’.

We will try to make some progress, because we still have much important business to discuss. The amendment, which stands in my name and in those of my hon. Friends on the Opposition Benches, is simple. It would insert:

“(3) Where an enforcement agent seizes a sum in cash it must be accounted for, receipts must be issued, and the creditor and the court must be notified.”

Mr. Bercow, you may call me pedantic, but several organisations have advised me that in the past, there has been a problem with bailiffs accounting for cash that they have received, so the amendment—a probing amendment—would afford that extra protection, which we feel is most necessary.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

Amendment No. 105 has been covered in the other place. Baroness Ashton said in Grand Committee that the regulations made under paragraph 34(4), covering the inventory of goods to be given to the debtor when goods are seized, will include the provision for ensuring that the inventory takes the form of a receipt for any cash that an enforcement agent takes. I am happy to restate that commitment today.

I should add, however, that the schedule also deals with non-court debts such as tax and commercial rents, so it would not make sense for an enforcement agent enforcing those debts to have to notify a court when taking money from a debtor. The amendment would therefore be misplaced. Notwithstanding that fact, I hope that the reassurance that I have given the hon. Gentleman will persuade him to withdraw the amendment.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the Twelfth schedule to the Bill.

Photo of David Kidney David Kidney PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs

It is a pleasure to serve on a Committee chaired by you, Mr. Bercow, with your assured touch and good humour. Although you were not present this morning, I shall treasure for a very long time the praise that I received from my hon. and learned Friend the Minister for my perspicacity. However, on the very point to which she referred, I should like to ask her a question before we approve the schedule.

This morning we discussed offences, and paragraph 68 includes a couple of offences that relate to the obstruction of enforcement agents carrying out their lawful duties. My hon. and learned Friend mentioned paragraph 66 as including the remedies that are available to a debtor who feels wronged by the actions of an enforcement agent. I thought that she had said “offences”, and that it was a slip of the tongue, but when I pointed it out, she said that she had meant “remedies”.

Paragraph 62 is about cost, and my hon. and learned Friend said this morning that there will be regulations so that enforcement agents do not make up fees that they say they are entitled to receive. In my time as an MP, the most common complaint has been from  constituents on the receiving end of such enforcement action, and in fact, the most recent complaint was at my advice surgery just last month, so it is a current and constant matter. My hon. and learned Friend quoted some statistics about a high proportion of complaints on that point, so when we have regulations that say that someone cannot abuse their position of authority as an enforcement agent by claiming costs and charges beyond the regulations, what will be the remedy? Will debtors have to go to county court to stop them claiming that money, or will they be able to do something more?

I would like to think that in the most abusive cases a criminal offence will be deemed to have been committed, and that in the least abusive cases there will be a remedy such as alternative dispute resolution by which to solve the problem there and then. Nowhere in the Bill, never mind in the schedule, do I see any offences except the one in clause 58 about a person claiming to be an enforcement agent when they do not have the authority to do so. I cannot see any controls over them. My hon. Friend the Minister mentioned the Security Industry Authority this morning. I know that there is a consultation process about that organisation becoming the licensing or regulatory body for enforcement agents, but I cannot see anything to tie the Bill to that, if it happens, so how will people get an easy, simply remedy when they think that they have been ripped off by an enforcement agent?

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I have two or three questions for the Minister, two of which are along the same lines as those of the hon. Member for Stafford. Like him, I discovered in clause 58—I appreciate that we will come to that clause later, but it is tied to the schedule so I hope that you will permit these comments, Mr. Bercow—the proposed, presumably new, offence of purporting to act as an enforcement agent. Is that the only new offence either in the Bill or that is envisaged to apply to enforcement agents, bailiffs and that family of individuals? There is an argument for considering what the proper sanctions should be and how best to get the message out that someone who abuses this power is likely to be caught. I assume that any such criminal offence will be actionable in the normal way, with someone making a complaint that the police then pursue, and would not require the person to take action themselves.

In paragraph 68, “Offences”, there are four sub-paragraphs. Sub-paragraph (1) proposes:

“A person is guilty of an offence if he intentionally obstructs a person lawfully acting as an enforcement agent.”

Sub-paragraph (2) states:

“A person is guilty of an offence if he intentionally interferes with controlled goods without lawful excuse.”

The rest of the paragraph sets out what the penalties will be and makes adjustments in relation to a transition period. Are those two offences new or are they existing offences that have been pulled from elsewhere? Are they the only offences that can be committed by a debtor as a consequence of this legislation?

My last point is about paragraph 66. Like the hon. Member for Stafford, and probably every other hon.  Member who has constituents come and see him or her, one of the most frequent complaints that I hear is that constituents cannot take action against what they believe to be inappropriate behaviour. Clause 66 is entitled “Remedies available to the debtor”, but the sanctions in it strike me as being pretty bureaucratic and not very user-friendly. People will have to bring proceedings

“in the High Court, in relation to an enforcement power under a writ of the High Court” or in a county court to take action. Is there not an easier way of doing things without requiring people to go through a long and complicated court process with a course of action, a claim, a defence and all the proceedings that come with that? Could not these matters be better dealt with in the small claims court or with some form of arbitration—somewhere where there is a civil remedy? I am asking a question rather than making a suggestion.

Lastly, the Minister and the Committee have heard our concerns about the schedule not being nearly as user-friendly or straightforward as it could be. Some parts of the schedule are welcome. Given that, it would be inappropriate to press for a Division. My hon. Friend the Member for Cardiff, Central and I will therefore seek to work with our colleagues and to persuade the Minister before Report that there are better ways in which to set out the new plan presented in the schedule. We reserve our position. I wish to put on the record that we are not fully content with the measure, but we hope that it can be improved at a later stage. I would also be grateful for answers to the specific questions asked by both me and the hon. Member for Stafford.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice) 5:30 pm, 20th March 2007

I have one question for the Minister. Will she tell the Committee whether the enforcement and collection of a fine incurred for a criminal offence is a civil or criminal matter? I would like her to clarify that point, because there has been some confusion, and I felt that a debate about the schedule as a whole was the appropriate time to ask that question. Other than that, as we have discussed the schedule at great length through the various groups of amendments, I have no further questions.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

Watch my lips: it is criminal. Certainly, I agree that, if possible, mediation or alternative dispute resolution should be involved in issues concerning the excessive use of bailiffs’ powers and fees to short-circuit the current route, which is none the less pretty plain. It was a slip of the tongue that led me to say “remedies”—I read my note too quickly and did not think, but I am a lawyer and I know the difference between a remedy and a criminal offence. The remedies in paragraph 66 allow an individual to come back to the court that granted an authority and to make a claim that the fees charged were too high.

There will, however, be some changes. Up-front fees will be paid to bailiffs so that they can no longer rely on the cut, as it were, that they take from recovered money. That ought to take the bite out of the kind of complaints of which both I and my hon. Friend the Member for Stafford are aware. The fees that bailiffs charge will be  fixed and made public, so they should be known. However, one would have to go back to the court that gave an authority to try to get some resolution. It is important that we try to include mediation and alternative dispute resolution in that, which I accept completely. The Government are committed to the whole notion of mediation and alternative dispute resolution because they help to avoid the stress of court proceedings and enable simple recovery.

I shall answer some of the questions asked by members of the Committee. It is correct that clause 58 contains the only new offence. Disputed amounts will be assessed by the court, as I mentioned. Offences under paragraph 68 are offences against the enforcement agent and no others, and the remedies are as I stated. I hope that I have covered everything asked of me, and I commend the schedule to the Committee.

Question put and agreed to.

Schedule 12 agreed to.

Schedule 13 agreed to.