New Clause 7

Tribunals, Courts and Enforcement Bill [Lords] – in a Public Bill Committee at 1:45 pm on 22nd March 2007.

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Requirement for permission of court before enforcement

‘The Civil Procedure Rules must provide that no order for possession, whether made in the County Court or the High Court or in any other court of civil jurisdiction, shall be capable of being enforced without the appropriate court first granting permission to issue a warrant of possession to a party whohas applied, on notice to the occupying party, for such permission.’.—[Simon Hughes.]

Brought up, and read the First time.

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

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

I hope that the Minister will be sympathetic to the new clause. It was tabled specifically followingan approach by Vivien Gambling, the chair of the Housing Law Practitioners Association, a well-regarded organisation of which the Minister will know. I shall describe the new clause as the association does, as the proposition comes via us from the association.

The new clause is concerned with the manner in which orders for possession of land are enforced. The current law allows a lender or landlord to enforce an order for eviction in the county court by completing an administrative form in the court office. That might result in the enforcement of the order without notice to the occupier, and without lender or landlord having to give evidence of any breach. The risk of injustice to the occupier is obvious. In the High Court the party seeking a possession order has to apply for permission on notice for a warrant to issue.

The new clause would align the procedures across all civil courts, so the risk of injustice would not arise. A short supplementary note was prepared by Nowsheen Bhatti, the association’s parliamentary officer, which it will be helpful to put on the record as it completes the argument:

“The vast majority of possession orders are made against tenants of social landlords (councils and housing associations) and home-owners (mortgage borrowers). The bulk of those are orders ‘suspended’ or ‘postponed’ on terms which provide that the order shall not be enforceable so long as the occupier complies with certain conditions (e.g. to pay the mortgage instalments or the rent or to comply with other tenancy conditions). A lender or landlord wishing to enforce an unconditional order or a ‘suspended’ or ‘postponed’ order (e.g. in the belief that the terms have not been complied with) may obtain a bailiffs warrant for eviction in the County Court by the simple completion of an administrative form...In the High Court, the practice currently reflected in the Rules of the Supreme Court RSC Ord 45 r3)...The need for such amendment was well demonstrated by the case of a council tenant who was evicted while going in and out of hospitals for treatment {Leicester CC v Aldwinkle [1992] 24HLR 49). In that case, the Court of Appeal said that the injustice would not have arisen had the practice of the County Court been the same as that of the High Court. This amendment is long overdue.”

From my constituency experience, I can say that that is a common state of affairs. It might be slightly different in other constituencies; I think that I still represent a larger proportion of council tenants than any of my colleagues in England. Such situations arise often with council property and, as the notes said, they arise with similar frequency with social housing, housing association and housing trust property. They also arise in the context of people who are paying off a  mortgage. People regularly get into trouble. Cases regularly end up going to court and the court, in the first place, normally makes a suspended possession order and lays down the conditions. If we believe—as we do, and the law has obviously established the principle—that nobody can be deprived of their occupancy without a court making that decision, it seems absolutely vital in the interests of justice that, if someone is on notice that they might lose their possession and matters then develop, there should at least be an opportunity for a hearing before a judge who can weigh the balance of the argument.

The case cited—the Leicester city council case—was a case where somebody was in hospital. There may be many circumstances where entirely unforeseen and unpredictable events arise: somebody may have a heart attack or a stroke, suffer bereavement, have a terrible accident, become mentally ill, be coping with the severe illness or death of a relative, and so on. Therefore, it is not sufficient that a piece of paperwork turns the threat over someone’s head into the reality of people coming to throw them out. I hope that this measure is something that the Minister can be sympathetic to and I commend the new clause to the Minister and hon. Members in all parts of the Committee.

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

The new clause is not related to any provision in the Bill; it is an attempt to compel the Civil Procedure Rules Committee to amend the rules about enforcement of possession orders. I heard what the hon. Member for North Southwark and Bermondsey said about justice, but this procedure has been found to be entirely compatible with the Human Rights Act 1998 by the Court of Appeal. Consequently, there is no clash with justice implicit in the procedure.

Additionally, we have a Civil Procedure Rules Committee to which the hon. Gentleman’s constituent can rightly direct submissions for changes to the civil procedure rules through the hon. Gentleman, by writing in any way and at any time that she wishes. Perhaps she has already done so. The Committee will take her comments into account. There is absolutely no doubt that it considers carefully all the procedural rules that are required and amends them as and where necessary.

Parliament has given the responsibility for changing the civil procedure rules to that Committee; thereis no justification, in this instance, for removing that responsibility. There is a parliamentary procedure for objecting to rule changes by the Committee, and the Government are content with that position.

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 a less sympathetic response than I would have hoped for. The Minister is right and, of course, there is a Civil Rules Procedure Committee and a Courts Rules Committee. However, we are just about to deal with the rules of the county court. The Bill is amending the way in which our courts act. We have just dealt with a part headed “Enforcement of judgments and orders”. The new clause is entirely in line with those issues: it concerns enforcement of judgments. Elsewhere, the Bill deals with both the legislation and regulation of courts. The Minister and her colleagues have spatchcocked into the Bill a measure that we will come to later, related to works of art, which appears to be entirely unrelated to anything  else in the Bill. It is certainly far less connected with these matters than the new clause.

The Government are used to accommodating something that is appropriately linked to a Bill. I ask the Minister to think again about the new clause. If I may say so, her reaction was an instinctive procedural reaction as to why another route is better. Here is a legislative opportunity to do something that we could do easily. I am not aware that there has been any great objection anywhere in the profession or, indeed, in the judiciary, to the measure. It seems to be an opportunity for a Labour Government to implement a bit of social justice. The Minister keeps telling us how committed she is to social justice. I hope that this is an opportunity for her to confirm her commitment to that ideal and to say that this measure is a way of ensuring that we have fewer people out on the streets as a result of some failure of the system than we would otherwise have. I hope that she might reconsider.

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

The hon. Gentleman is barking up the wrong tree, I am afraid. This has absolutely nothing to do with social justice, but with us in Government not wanting to order the High Court judge who runs the civil procedure rules committee to get his act together and do a summersault just to please the hon. Gentleman. He can write to the High Court judge, using all his measureless rhetorical power, to try and persuade the judge to change the rule. That is the right procedure and the one that we will stick with.

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 always willing to take suggestions. However, I am always willing to tryand persuade Governments to act. Sometimes one succeeds; sometimes one does not. I will reflect on whether or not to come back to this during the Bill, and the Minister might reflect on that too. I may see if I can get some support from the judiciary between now and Report. In the mean time, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.