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New Clause 6

Tribunals, Courts and Enforcement Bill [Lords] – in a Public Bill Committee at 9:30 am on 22nd March 2007.

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Judicial reviews of enforcement agents employed by private companies

‘The actions and decisions of private companies and their agents enforcing the orders of the courts shall be reviewable in the High Court.’.—[Mr. Bellingham.]

Brought up, and read the First time.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move, That the clause be read a Second time.

We now move from the slightly racy subject of uniforms to a more arcane and lugubrious matter—judicial review. Nevertheless, it is important. The new clause states:

“The actions and decisions of private companies and their agents”— it remains to be seen whether they will be wearing uniforms—

“enforcing the orders of the courts shall be reviewable in the High Court.”

The reason for the new clause is simple: when enforcement is undertaken by agents employeddirectly by the courts, Crown agents or Her Majesty’s Government, the actions and decisions of the court and agent in question are reviewable by the High Court. Having researched that matter, I am virtually certain that I am correct in saying that. At all times their actions can be subject to judicial review.

On the other hand, when enforcement is undertaken by a private company and its agents, which happens a  lot, their actions might well not be reviewable by the High Court. I am particularly concerned about arecent case: Heather and others v. Leonard Cheshire Foundation heard by the Court of Appeal in 2002. As I understand it, that case is still on appeal to the House of Lords. What happened was that elderly people were placed in the care of the Leonard Cheshire Foundation by the local authority. The Court of Appeal found that if they had been placed in a local authority homethey would have had the protection of the courtfrom unreasonable or perverse actions and decisions. However, the Court of Appeal ruled that they could not make use of those rights of protection from the court because they were in an independent, private home.

There is a substantial concern that if that rulingis upheld and applied across the board to private organisations and operations of all kinds, including sub-contractors for local authorities, there will be no possibility of judicial review in the High Court. We are therefore faced with a contradictory situation. We know that judicial review is available when it comes to the actions of court bailiffs—that is, Crown agents. The Minister has said on a number of occasions that she wants a unified and consolidated service, so that everything is brought back under one piece of legislation and everyone knows exactly where they stand, be they consumers or creditors, or commercial organisations trying to enforce their debts or debtors. Basically, there will be one law for everyone.

We know from what we have discussed so far, however, that there are in fact one or two different powers in different parts of the Bill. I would have thought it necessary to ensure that all bailiffs are treated in the same way when their actions are reviewed. For all creditors, whether their debts are being enforced through Crown agents—that is often the case if a Government body of some kind is involved, but not always—or through private bailiffs, and for all debtors, whichever type of bailiff is dealing with the matter, surely there should the same level playing field when it comes to one of the ultimate recourses to justice available to people in this country: judicial review.

We feel strongly about the new clause, which would put those private bailiffs on exactly the same footing as Crown agents—in other words, those agents directly employed by the court or by Her Majesty. On the basis of wanting to make things simpler, easier and fairer, I commend the new clause to the Committee.

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

Judicial review is the supervisory jurisdiction of the High Court over an inferior tribunal or a public authority. The hon. Member for North-West Norfolk referred to the case of Heather and others v. Leonard Cheshire Foundation, which is a Human Rights Act 1998 case that concerns the question what constitutes a public authority. When the 1998 Act was passed, it was intended that the definition of a public authority would be a functional one. That is  to say—to use the hon. Gentleman’s example—that if a public service is being delivered by a local authority,it is definitely a public authority. If the service is contracted out to a private provider, as long as that body carries out a public function, it, too, should be a public authority and come within the definition of the 1998 Act, even though it is a private body. The issue in the Leonard Cheshire case was whether that body fell within the definition of a public authority. The ruling was that it did not.

I am not sure that that case is going to the House of Lords, but there are other cases on the same point, which is quite a knotty problem from a human rights perspective. When I was on the Joint Committee on Human Rights, I initiated an inquiry into the current state of the law on public authorities, which is a troubled area. One wants to avoid giving rights with one hand under the Human Rights Act, but then taking them away with the other by contracting out services. The issue remains an area of contention, but I do not think that it has direct application in this case.

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

I do not, and let me say why. I hope that I can satisfy the hon. Gentleman as to why not. His argument rests on two assumptions. One is that High Court enforcement officers are Crown employees.They are not; they are business men and women, independent of the Crown, who have been appointed to the post on behalf of the Lord Chancellor by the Senior Master of the Queen’s bench division of the High Court.

I think that the other assumption, which probably follows from that first misapprehension, is that those in question are subject to judicial review. They are not; they are subject to the supervisory role of the Senior Master of the High Court. In that sense, they are reviewed by a lower-level judge in the High Court, but they are not subject to judicial review by the divisional court. The Senior Master has a complaints procedure in his hand, which is right and proper, because he has made the appointments and is responsible and liable for the enforcement of High Court writs. It is correct that complaints should go to him. However, that is not judicial review by the divisional court, which would not, in any case, be the right sort of remedy to seek.

Judicial review is about supervising decisions to see whether they have been made in a situation that is unreasonable—that is, contrary to the Wednesbury reasonableness test—or in which something has been incorrectly taken into account or left out. The officials in question do not make decisions, however; they implement decisions that have already been made by the court. In this case, they would be implementing decisions made by the High Court, and the supervisory jurisdiction of the High Court cannot supervise itself.

The proposed approach rests on two erroneous assumptions, and it would deny us the single area of enforcement law that we want, as it would remove private companies and agents and put them under a different regime—one that would not fit and is not  in force at present, and which would be wholly impractical for the reasons that I have stated, as I hope the hon. Member for North-West Norfolk will accept.

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 following the Minister’s argument and understand it. First, can she tell us what sanctions the Senior Master of the Queen’s bench division has under either the present or the proposed regime? Secondly, if we want to have one common regime, could somebody who has the necessary authority have brought under his wing the activities of bailiffs who are not court bailiffs? It would be good if somebody who was able to manage people well came into play before anybody felt that they had to start taking criminal or civil action.

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

At the moment, the master can removea person’s authorisation to act as a High Court enforcement officer. Presumably he issues warnings and so on in advance of taking that fairly draconian step, so he has a lot of power. The hon. Gentleman will be aware that the Bill contains remedies and that, as we discussed, it is intended to ensure that there is proper regulation by the Security Industry Authority in the case of one kind of bailiff and, as clearly stated by my noble friend Baroness Ashton in the Lords, parallel regulation of those who are not private bailiffs. Hon Members have little to worry about. There is already a civil service complaints procedure in relation to county court bailiffs. The measure would not fill a gap or bring coherence; it would be an odd measure to introduce and is based on two erroneous assumptions seized, I think, by Rev. Paul Nicholson.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I am grateful to the Minister. It was not Rev. Paul Nicholson who came up with the suggestion; it came from a colleague of mine at the Bar. One of the points that my colleague made—I should be grateful if the Minister considered it—was that High Court enforcement officers, who are employed by the Crown, are subject to the Wednesbury rules, but those employed by private companies are not. Can she comment on that?

My other point relates to the supervisory role of the Senior Master. Is the Minister saying that there are no circumstances in which judicial review could be employed against bailiffs? As she said, bailiffs do not take decisions, and the essence of judicial review is to challenge and review decisions, but there have been cases in which bailiffs have had not only to implement decisions made elsewhere, but to use their own intelligence and judgment. I should have thought that that came very close to a decision-making process, and although such things might happen only rarely, I can envisage cases in which there could be a strong argument for judicial review. Perhaps she could comment briefly on those additional points and further put my mind at rest.

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

I am happy to do my best. High Court enforcement officers are not subject to Wednesbury rules. To say that they are is a different way of putting the allegation that they are subject to judicialreview, given that the principle of Wednesbury unreasonableness applies to judicial review—it is the same misapprehension repeated in a different way. I  would not want to say categorically that judicial review could never apply to a High Court enforcement officer, but it seems an odd notion, given that High Court supervisory jurisdiction is intended to apply to lower tribunals and public officials. Given that a High Court official implements that jurisdiction, the High Court would be reviewing itself, and it does not have a power to do that. At the very least, such a concept—it might not be impossible, although it might well be—would be very awkward and would fit poorly with what I hope is a coherent system that has plenty of protections.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I am very grateful to the Minister and I shall have a word with my learned colleague at the Bar to put him right on this issue; indeed, we may well correspond on it in the future. However, I am grateful to the Minister for clarifying things and, on that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 86 ordered to stand part of the Bill.

Schedule 15 agreed to.