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At the moment, there is a requirement for someone sitting as a district judge—and, I suspect, as a chairman of a tribunal—who would like to be considered for a more demanding and senior post to become a part-time recorder and therefore to display such appropriate characteristics for promotion by that part-time sitting. However, that is not a statutory requirement. It does not have to be taken into account by the Judicial Appointments Commission. I have, if I may respectfully say so, the utmost confidence in the present very distinguished noble Baroness who is the chairman of the Judicial Appointments Commission. One does not know whether that will be the case in 10 or 15 years. I am simply concerned that a legal executive, or, particularly under Clause 48(1), someone for whom the Lord Chancellor has by order provided for a qualification that may come through the Institute of Legal Executives or some other body, may have training that would be excellent for a chairman of a tribunal or a district judge but would not be adequate for the High Court Bench and probably not for the circuit Bench. I therefore express my very considerable concern about these two clauses.
Lord Thomas of Gresford: I support the Government on this matter. I do not believe there should be a ceiling for legal executives. I appreciate that it will be very difficult for them to qualify for appointment to a higher judicial role. However, an awful lot of them have not had the opportunities that others have had to qualify as solicitors and barristers, yet they have advanced in the legal profession through the Institute of Legal Executives and its examinations. If they are thought suitable for appointment as a chairman of a tribunal or a district judge and show in that capacity that they have the talent and the intellectual capacity to go further, there should be no barrier to them. I am sure that the Judicial Appointments Commission would take their background into account when making appointments, but it might include a much wider social background that would be of great assistance in the role that the legal executives seek to fulfil. As the noble Baroness, Lady Butler-Sloss, has said, I have no doubt that, before they ever achieved a higher position as a judge, they would be required to sit as recorders and part-time judges to be tested to see whether they are fit for a full-time role. But no ceilings, please.
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Lord Kingsland: There is no incompatibility between what the noble Baroness said and what the noble Lord, Lord Thomas of Gresford, said. The Committee is looking for an undertaking by the Government that, in circumstances where able legal executives are appointed, the necessary training will be there so that, in appropriate circumstances, they can enjoy the fruits of promotion.
Lord Lucas: I note, since I spent a happy couple of hours yesterday in Sub-Committee E discussing the Court of First Instance in Luxembourg, that European practice admits a wide variety of backgrounds to the
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Baroness Ashton of Upholland: The noble Lord, Lord Kingsland, is right; there is very little between what noble Lords have said. I completely accept that there is a general view that enabling people from a wider set of backgrounds to be considered is a good thing, if done appropriately, and that the Judicial Appointments Commission, led very ably by the noble Baroness, Lady Prashar, is also a good thing, and is a place where merit will be the only consideration. Those are principles upon which we are all agreed.
I shall set out a little more about what we are proposing in terms of legal executives. I shall take on board what has been said as we begin to draft the regulations, and take the opportunity to talk further with the noble Baroness, Lady Butler-Sloss, and other noble Lords who would be interested.
The existing requirements are that there are two years’ fee-paid experience before being able to apply for a salaried post. Members of ILEX will not be eligible for direct appointment to the High Court. Eligibility would be limited to the district Bench and to certain tribunals that are set out in the policy statement we produced. From there, once they had acquired the relevant qualifying experience, they would be eligible to apply for appointment to a circuit Bench, subject to the rigorous assessment processes of the JAC.
Trademark attorneys and patent agents would be eligible to apply for appointments to a limited number of circuit judge and High Court judge posts, but only in the specialist patent court jurisdiction. In both cases they would have to demonstrate relevant fee-paid experience at the appropriate level, and would again be subject to assessment on the merit principle laid out by the Judicial Appointments Commission.
I hope that the progress people can make is more clearly defined, and that this will give comfort to the noble Baroness. It is an important point that people can progress and gain experience. I completely take on board the point that has been made about ensuring that they are able to acquire additional qualifications or training, if required. I will make sure that is fed back into the system. I hope that gives an assurance that we are all heading in the same direction, with the right and proper safeguards.
Schedule 10 [Amendments relating to judicial appointments]:
Baroness Ashton of Upholland moved Amendment No. 67:
On Question, amendment agreed to.
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Schedule 10, as amended, agreed to.
Schedule 12 [Taking control of goods]:
Lord Thomas of Gresford moved Amendment No. 68:
(a) such tools, books, vehicles and other items of equipment as are necessary to the debtor for use personally by him in his employment, business or vocation;(b) such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the debtor and his family;(c) money where an enforcement agent has reasonable cause to believe that this would be necessary for the immediate domestic needs of the debtor and his family;(d) domestic pets.”The noble Lord said: We are moving from the fascinating area of tribunals and judicial appointments to the even more fascinating area of the enforcement of debts. Although I am making the lead speech on the group, I pay tribute to the noble Lords, Lord Beaumont of Whitley and Lord Lucas, who seized these issues by the throat at Second Reading and have tabled some very cogent and suitable amendments. My amendment has come about only with the support of Citizens Advice. I recognise the work that it has done from its great experience in the area. The views that it has put forward are very pertinent.
Amendment No. 68 is similar to the amendment tabled by the noble Lord, Lord Lucas. As Members of the Committee know, current bailiff law allows for certain goods to be exempt from seizure, but the rules of exemption are not consistent across the different legal powers authorising enforcement by bailiffs. The Bill rightly proposes a common set of rules for the goods to be exempt from seizure in all cases. Having regard to the mishmash of powers that exists—it is a maze—it is good that all those strands will be drawn together by the Bill. However, the Bill leaves the definition of exempt goods entirely to regulations. We and Citizens Advice believe that it is an essential and fundamental safeguard to put the definition of exempt goods into the Bill, and to discuss the nature of the goods that ought to be exempt, if we have to, instead of simply tidying up the provisions.
Proposed new sub-paragraph (1)(a) and (b) in my amendment is taken from Section 283(2) of the Insolvency Act 1986, which unifies the way in which chattels are treated in bankruptcy and enforcement by bailiffs. Proposed new sub-paragraph (1)(c) seeks to prevent a debtor having a large sum of cash—for example, a week’s wages—seized by a bailiff, which would obviously cause undue hardship. Proposed new sub-paragraph (1)(d) is on domestic pets and reflects the position taken by the Zacchaeus 2000 Trust. Again, I must pay tribute to Mr Paul Nicolson, who has been extremely assiduous in lobbying all those interested in the Bill on the issue, including the Government, no doubt. The noble Lord, Lord Beaumont, expands on the matter,
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Amendment Nos. 70, 72 and 88 are grouped with Amendment No. 68, and deal with a different matter. Paragraphs 17 to 19 of Schedule 12 are described as:
Paragraph 19 re-codifies the power of bailiffs forcibly to enter business premises. Paragraph 18 re-codifies the provisions of the Domestic Violence, Crime and Victims Act 2004 that allow bailiffs enforcing magistrates’ court fines to forcibly enter domestic premises. Paragraphs 20 to 22 extend a power for all other bailiffs forcibly to enter domestic premises. That is a great step backwards. The English law has never permitted a general power for forcible entry. The provisions could be a charter for bad practice. Bailiffs have threatened vulnerable debtors that they will break into their homes to seize goods when that power is not open to the bailiff. It is a way in which bailiffs intimidate debtors into paying amounts that they cannot afford. Those sums are handed over when the proper course should be for the bailiffs to negotiate affordable and sustainable debt payments.
The granting of a more general power of forcible entry gives an unwelcome weapon to the hand of the bailiff to say, “If you do not pay, I will come back tomorrow and break into your house”.
Baroness Ashton of Upholland: The powers relate to re-entry, not entry. That may make no difference to what the noble Lord is saying, but he is talking about entry when it is re-entry.
Lord Thomas of Gresford: That was a very nice point. It almost balanced on a pinhead, if I may say so. The basic principle that we are discussing is forcible entry into domestic premises. However that is expressed—no doubt the noble Baroness can tell me in due course if I am wrong and explain precisely why—it certainly looks as though forcible entry is a power granted under the schedule.
What are missing are safeguards. Safeguards are left to regulation. The law that protects domestic premises from forcible entry by bailiffs is an extremely ancient and settled law—as expressed by the noble Lord, Lord Beaumont of Whitley, in his Second Reading speech, if I recall—that an Englishman's home is his castle. For the benefit of the record, that is the same in Wales as England. Indeed, I think that we have more castles per head of population than the English.
The Bill attacks a principle that is almost a constitutional right. If there is a chance of excessive use or misuse of a power of forcible entry, the safeguards should be in the Bill. Such a power can, in certain circumstances, be quite disproportionate. For example, collecting congestion charges does not really require a power of forcible entry into domestic premises. I referred to that in my Second Reading speech in a case that I know well.
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The amendment is intended to define the nature of the regulations to be proposed and, in particular, to require the Courts Service to prepare an information sheet to be sent out when a judgment debt is created, to inform the judgment debtor precisely of the rights and remedies available to them with regard to enforcement powers. Amendment No. 70 sets out the nature of the information to be included in those regulations.
As for the power to use reasonable force, we argue that that should be allowed only under a court order. In Amendment No. 88, we set out the matters that the court should take into account in deciding whether to issue a warrant for forcible entry. To involve the court is, in our view, the right way to go about it. That is fundamental.
Finally, Amendments Nos. 76, 78 and 80 deal with what is now to be called a controlled goods agreement, but which is better known as a walking possession agreement. That gives the idea of the bailiff walking in and walking out with everything that you own, but a walking possession agreement is an agreement whereby the goods remain in the premises and the bailiff indicates to the householder that they will be removed unless they reach some sort of agreement. Currently, a walking possession agreement can be signed by any responsible person on the premises, but both paragraphs 13(1)(d) and 13(4) in Schedule 12 suggest that a controlled goods agreement must be signed by the debtor. What happens if the debtor is not at home? What if the debtor is out working to try to raise the money to pay the judgment debt?
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We put forward the simple solution that other, defined people should be competent to sign the agreement, as with the walking possession agreement. That is the purpose of these amendments. Allowing absolutely anybody to sign the agreement could lead to abuses—for example, it would be possible to persuade children to sign such an agreement. It is necessary to define with some precision who can have this power. These amendments seek to provide a simple definition of other people who may sign. I apologise for taking so much time to introduce and explain this group. I beg to move.
Lord Kingsland: My name is attached to Amendments Nos. 70 and 71. There is no difference in principle between me and the noble Lord, Lord Thomas of Gresford, or, indeed, between us and the Government. We live in a market economy, which will work only if debts are paid. The issues that are about to be debated in the Committee are not so much on principles, but about getting the balance absolutely right between the creditor and the debtor. Inevitably, there will be differences between us at the margin, but I do not think that today we are debating the underlying importance of what the Government seek to do. Powers of entry are essential to ensure that debts are enforceable. But we must guard against any abuse of these powers and, in particular, as the noble Lord, Lord Thomas of Gresford, emphasised, the ignorance surrounding them.
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Amendment No. 70 would introduce a requirement to supply a debtor with an information sheet on a bailiff’s first visit. The information would include the rights of the debtor, the powers available to the bailiffs, and, perhaps most importantly, what the bailiff cannot do. The general concern with this part of the Bill is that bailiffs are given, as the noble Lord, Lord Thomas, indicated, increased powers of entry, and we must ensure that debtors are properly protected against bad practice.
On Amendment No. 71, we support the Government’s aim to update the law of distress, allowing landlords to recover rent arrears through the new commercial rent arrears recovery procedure. This small amendment relates to the appropriate notice period. Any minimum period of notice set out under regulations allowed for in this section must, in our view, be as short as reasonably possible to prevent tenants disposing of goods, hence the recommendation of no more than one working day.
Under current Distress for Rent Rules, a landlord is permitted to take action as soon as rent is overdue and without notice. The Bill will require the landlord to give the tenant notice that the enforcement action will commence if the arrears are not paid. The minimum period and form of notice are not specifically included in the Bill and, according to paragraph 7 of Schedule 12, will be set down in future regulations. The provision of giving notice will put the landlord at a disadvantage as the tenant will be in a position to dispose of the goods prior to the rent arrears procedure being exercised. As such, the period of notice should be no more than one working day.
Lord Beaumont of Whitley: There are a number of amendments in this group in my name. I have put down amendments at the urging of Zacchaeus 2000 and in consonance with the policy of the Green Party to protect the poor as much as possible.
The helpful document produced yesterday by the DCA provides some useful information on Amendment No. 69. I am extremely grateful to the noble Lord, Lord Thomas, my quondam friend, for the way in which he introduced the grouping, which I wholeheartedly support. There are some specialities in Amendment No. 69, and there are one or two other amendments in my name to which I shall speak to separately later.
We were relieved to read in the DCA’s helpful document that the pet cat or budgie will not be seized. I should be grateful for confirmation that the proposed regulations covering exempt goods, pets and cash to be left in domestic premises will also cover bailiffs enforcing fines on behalf of magistrates’ courts and council tax on behalf of local authorities.
I would also like assurance that a computer, which these days is an essential tool in a child’s education, apart from being of necessary assistance to the rest of us, will be on the exempt list for families. Many families on low pay would not be able to afford another, and many families receiving unemployment benefits cannot afford one at all.
May I also be assured that a telephone also means a mobile phone? BT has cut off more than 1 million
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In addition to the proposed regulation ensuring that the value of goods seized is not disproportionately large in relation to the debt, fine or council tax debt, I ask that in homes where the value of goods is very small or non-existent, the goods seized should not be disproportionately small in relation to the debt, fine or council tax debt. I have been told of a case in which goods of little value belonging to a lone parent receiving unemployment benefit, with a child aged four, were seized and sold at auction for £70. Thirty pounds was given to the auctioneer; the total of the fines outstanding, which were for motoring offences, came to £1,072. It is surely totally disproportionate that goods of very little value should be seized for a debt that size. When the parent went back to court, the magistrates settled for £5 a week deducted from benefit to pay off the balance. That could have been done without the trauma of bailiffs entering the premises by threat of force and seizing goods of ineffective value if the enforcement agent had told the vulnerable defaulter to go back to court or the police had taken her back to court on a warrant of arrest.
As I said, I will speak to one or two of the other amendments in my name when they come up. I hope the Minister will respond to the points I have just raised.
Lord Lucas: I sympathise with the noble Lord, Lord Beaumont of Whitley. This is a disreputable grouping. It contains far too many subjects, it is far too complicated and it is not the proper way in which to group subjects.
Baroness Ashton of Upholland: I cannot hear the noble Lord—I do not quite know why. I heard him say “disreputable”, but I do not know whether he was talking about me or the Bill.
Lord Lucas: Am I supposed to press a switch?
Baroness Ashton of Upholland: Could the noble Lord say again what is disreputable?
Lord Lucas: Perhaps it will help if I stand back, although these microphones are made to be spoken into when sitting down.
This is a disreputable grouping. It covers too many subjects and forces us to have an extremely complicated debate which will prove difficult to follow. I have responded to this by degrouping a lot of my amendments; the noble Lord, Lord Beaumont, has responded by not speaking to most of his. Quite where we will end up in this state of chaos, I do not know, but I think it was a bad decision to try this on a group of this size and to insist on it. I rather wish that it had not been done.
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Baroness Ashton of Upholland: Nobody has insisted on anything. We have tried to put things together in the right order. The noble Lord is at liberty to degroup all his amendments if he wishes and take them one by one.
Lord Lucas: Yes, that was done yesterday, but the rest of the group is still there. We had a long speech from the noble Lord, Lord Thomas, which covered many subjects. The point of grouping amendments is to separate subjects, and that should have been done in this case. The noble Lord, Lord Beaumont, responded by not speaking to half his amendments, and quite where they will be addressed I do not know. I will find this extremely confusing to deal with. Nevertheless, I shall do my best and listen carefully to what the Minister says. I shall move my amendments only if I feel there are things left to discuss on them. She is at liberty to discuss any ideas I have put forward in my amendments in her reply to this group in the hope that it will render my moving them unnecessary.
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