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The noble Lord said: My Lords, I will speak at the same time to Amendment No. 58. The amendments are intended to be entirely helpful. They follow on from discussions in Committee and arise from widespread misunderstanding of what the words “taking control of goods” in the Bill meant. Many people in the industry, and observers, have expressed concern, reading the words in the Bill as they do, that the ability of the bailiff, if I may use that word in the
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It is not clear, although it has been widely canvassed, that the bailiff should be able to take walking possession of goods in the manner in which that is done in Scotland. Both make for a flexible service, because the object of individual bailiffs, although not necessarily the law on bailiffs, is that they should not actually remove goods—what they want to remove is the debtors’ money, and bailiffs use the threat of the removal of goods to achieve that, albeit over a reasonably short timescale. All sectors of the industry would like the Bill to end the necessity for the removal of goods when you cannot take walking possession.
My amendment is an attempt to put that into English and to put it into regulations in which all noble Lords feel that a matter of this complexity best resides. Any problems that arose could then be dealt with easily and we could ensure that the practice, as it would have arisen under this Bill, could be adjusted to ensure that the system was working correctly. I beg to move.
Baroness Ashton of Upholland: My Lords, I am extremely grateful to the noble Lord, Lord Lucas, for raising these issues. Perhaps I may say at this stage that I am also grateful for the helpful way in which we have debated the issues around this part of the Bill and the amount of work that the noble Lord has done on it.
I have thought very carefully about what the noble Lord is seeking to achieve. I went back and looked at the recommendations of the Independent Review of Bailiff Law, published in 2000 by Professor Jack Beatson. On the face of it, the idea of moving this matter into regulations and being able to manoeuvre the situation in the way that the noble Lord suggests is always attractive, because that would achieve his aims and it is usually my desire to do that. But Professor Beatson’s Recommendation (1)(a) struck me as vital in this context. He said that the fundamental rules governing distress should be set out in one place—in statute. Recommendation (21) set out what the methods of taking control of goods should be. We have set those out in paragraph 13 of Schedule 12. Noble Lords have generally welcomed the bringing of bailiff law together into one place.
We had to make a decision as to whether we used primary or secondary legislation. I have talked the matter through with officials at some length over the past few days to see whether we were in the right place—and I think that we are, because it is important to bring bailiff law together on the face of legislation. That is because my objective is to clarify, rationalise and simplify enforcement agent law for all the reasons that were dealt with in Grand Committee and to bring certainty, both to professionals who deal with the law and to those who are at the receiving end of it. Noble Lords will recall that we talked about all the different pieces of law—some in statute, some in common law—through which bailiff law had grown
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The fact that there are many regulation-making powers within the Bill does not preclude continuing to talk, not only to the noble Lord, Lord Lucas, and other noble Lords, but to the members of the industry with whom we have begun a dialogue, Citizens Advice and others, about precisely how the regulation-making powers are set out. I am keen to do that over the next few months as we develop this area.
The noble Lord was particularly concerned about those who sign a controlled goods agreement, which we talked about in Grand Committee. I made it clear then, and I reiterate again, that we are not precluding someone else signing on behalf of the debtor, provided that they have been authorised to do so. If a person volunteers to sign, it is for the enforcement agent to ascertain the relationship and to be satisfied that the debtor wants that person to sign. We will look to developing how that will look, the criteria and so on, in conjunction with those involved—both those who are concerned that someone might sign inappropriately and those who are concerned to ensure that if you are able to sign on behalf of the debtor, it is done properly. If no one is willing to claim such authority, the enforcement agency should try to contact the debtor by telephone to explain the situation and see whether they can instruct someone else to sign the agreement. If no one is willing to sign the agreement, the enforcement agency must act within its rights to take control of the goods immediately.
Of course such an agreement should not be signed by someone who is under 18 or would not understand the nature of what they were doing and the consequences of the document that they were signing. We are going to work very carefully to make sure that we set this out properly, which I think is what the noble Lord, Lord Lucas, is keen should be done. In the light of the principle that I have set out, and with the assurance that we will consider carefully how we do this so that we do it properly and get it right, I hope that the noble Lord will not press his amendment.
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Lord Lucas: My Lords, I am grateful for the consideration that the noble Baroness and her team have given this. I still think that she has come to the wrong conclusion, but she is entitled to do that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 12 [Taking control of goods]:
Lord Beaumont of Whitley moved Amendment No. 57:
(a) any goods which are fixtures or fittings attached to the premises including goods which are plumbed in or connected to water, fuel or power supplies, (b) domestic animals and animals kept as pets,31 Jan 2007 : Column 270
(2) In the case of domestic dwellings no sum of money above £500 is to be removed without the civil enforcement officer recording the purpose for which the money is to be used.”
The noble Lord said: My Lords, first of all I would like to say a word about the groupings. The next few groups—those down to Amendment No. 73—are almost all in my name. I had an opportunity to change the groupings when I got an e-mail this morning telling me what they were but, for one reason or another, I was not able to do it. I have no complaints about that; I had every opportunity. I merely want to say that the two main speeches that I am going to make are on Amendments Nos. 57 and 62, although I will be speaking to quite a lot of the other amendments on the way. I hope that your Lordships will help me to steer my way through this considerable maze of amendments and I thank the Minister for all the work that she has done in this area and all the people she has seen and talked to about it.
The crucial paragraph is, where a person falling into the above category,
- “is discovered by an enforcement agent to be the occupier ... the matter shall be referred back to the court and no seizure of goods may proceed without leave of the court; and the person may be bailed to appear at the court by the enforcement agent”.
I have been told of a case in which a lone mother with two children under 16 was, in her absence, fined £175 for the truancy of one of them. The enforcement agent put her on bail to appear in court on a certain day. It was discovered by a volunteer who prepared her means statement that the child in question was deaf, the mother was long-term unemployed on income support—which is below the Government’s poverty threshold—and their home was more than three and a half miles away from the school. They were vulnerable people. The education authority had failed to inform the magistrates of these essential facts. When they heard them, the magistrates set their decision aside. The case was tried again, and she was acquitted. Under the present regime and the proposed regime of collection orders and warrants for forced entry, the most likely outcome would be that the fine would have been enforced, threats would be made to force entry, goods could have been seized and the magistrates could never know the facts.
Compassionate allowance must be made for the difficulty of paying for transport and telephones for impoverished families to reach and communicate with the court. Lone parents on benefit who do not get to the court for minor misdemeanours, such as the absence of a TV licence or truancy by their children, are all treated as hardened criminals in the Bill. The Government’s list of those in vulnerable situations, set out in a letter to me, to be covered in bailiffs’ training does not include people who are unemployed on benefit with no assets, those who are illiterate or those
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In my experience, an awful lot of debt enforcement authorities are totally illiterate. I receive at about 10-day intervals debt demands for someone who has not lived in my house for the past 16 years. I explain this in considerable detail—much more than I think is called for by the law—and send back what I receive, but I get no acknowledgement and, sure enough, in a week’s time the same notice appears. There are considerable inaccuracies in this kind of work.
The only mention of vulnerable groups or persons in the document produced by the DCA relates to the training that enforcement agents will need to undertake before they receive a certificate. Page 9 of the National Standards for Enforcement Agents, which covers vulnerable situations, is ignored. Training is not enough. It is certainly possible that, once the bailiff has received his certificate, he will forget his training under pressure from his management to collect their fees. Mistakes will be made in good faith or bad, and remedies should be sought on behalf of vulnerable people against legal criteria.
Although an upfront fee will be paid by the Government, we do not know how much it will be, and the vast majority of the companies’ profits will come from fees paid by debtors and defaulters. Bailiffs should earn that upfront fee by ensuring that justice is done when they find themselves enforcing disproportionate fines against vulnerable people. At this stage, I add that, in our experience, bailiffs are only too ready to do that.
Very great powers are being given in the Bill to thousands of civilians to exercise force against the persons of other civilians and force entry into their homes. Enforcement agents should receive training on the laws governing their behaviour when they encounter vulnerable situations. That requires description in the Bill under the provisions covering vulnerable people. It is said by the department that these powers will be used only in the last resort, but what that means in practice is a state secret.
The Zacchaeus 2000 Trust has at last been sent the magistrates’ courts’ guidance about the search-and-entry powers in the Domestic Violence, Crime and Victims Act. It has 31 pages, 15 of which have paragraphs redacted. I am far from clear what the word “redacted” means but, so far as I have been able to see by looking at the document, it means “crossed out with a black pencil”. The public are not to be told the secret instructions given by the Government to bailiffs about how to knock on their doors and seize their goods. That information is needed by the volunteers of NGOs working with vulnerable households, because they are the only people who can monitor the performance of the bailiffs against government guidance and call them to account if that guidance is not adhered to or the bailiffs are dishonest, perverse, unreasonable or unlawfully violent, all of which can happen.
I should be grateful to be given assurance that certification of an enforcement agent will apply to
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Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for, first, identifying that he wanted to cover a range of issues. I shall deal with some of his general points, but he will forgive me if I can better deal with some of the issues—on certification and bailiffs, for example—when addressing them in the round. It is no disrespect to the noble Lord that I do not deal with them effectively.
I also pay tribute to the Reverend Nicolson, from the Zacchaeus 2000 Trust, who did me the courtesy of seeing me on 18 January. We had a good and, at times, robust discussion which I found extremely useful. He gave me a lot of food for thought. Although we come at this from slightly different perspectives, I thank him very much. Many of the things he has written to the department about, and will continue to raise with us, are important as we put this legislation into practice.
I completely understand the desire to recognise vulnerability in everything that we do. We are dealing with circumstances with creditors and debtors, and where the courts have made decisions. We must therefore be mindful of upholding the law. In so doing, however, we must be clear that there are extremely vulnerable people. One reason for bringing the legislation together into one piece of law—from common law, statute, regulations and so on—is to enable greater clarity both for those who enforce the law and those at the receiving end, as I said on the previous amendment. That is an important part of what we have done.
We have done quite a lot in improving the opportunities to deal with debts in different ways. I know that we have not spent a huge amount of time on that in either Committee or your Lordships’ House today. That is not through lack of interest, but because there is a general view among noble Lords that these are good things to do. There is a general recognition in all that we are doing that we must provide a range of opportunities to help and support people who get into debt, while recognising that creditors have a right to get their goods back or have their debts resolved. That is the premise on which I speak to the next groups of amendments.
There are no secret instructions. I would be more than happy to talk about how we intend to talk to the industry and share what we will be doing next with noble Lords as far as I can. There is no secrecy on my part; I find that practically impossible. We want to be as clear as we can. The greater clarity comes because we will be as open as possible. I reassure the noble Lord, and trust that he will hold me to that as we progress from legislation to action.
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To answer the noble Lord’s amendments, I think I also read out the list in paragraphs 130 to 133 of our policy statement, a copy of which has been placed in the Library, in Grand Committee. It is a list of exempt items which we intend to contain in regulations so that we can amend them in response to changes; mobile phones might be in or out, but we certainly would not have put them in 20 years ago. It includes fixtures and fittings, including those connected to water, fuel and power supplies. It also includes domestic pets and dogs that aid the blind or hard of hearing, and a minimum amount of cash that must be left on premises for the purpose of sustaining normal everyday living for the debtor and his family.
As I have indicated, it is better to keep this in regulations to give flexibility and ensure that changes can be made easily and quickly in response to experience. For example, the amount of cash that must be left on the premises will vary from household to household, for reasons the noble Lord will know well. We do not want a fixed sum in the Bill, as amending it in future legislation would be difficult and time consuming. That is the basis on which we will be open. I hope that our lists will offer the noble Lord comfort, and that he will feel able to withdraw his amendment.
On Amendments Nos. 59 and 60, we do not want a code of practice to deal with vulnerable debtors; it is not necessary. We want to ensure that everything we do clarifies what enforcement agents are and are not legally entitled to do. Schedule 12 and its underpinning regulations will do that. Paragraph 12 of Schedule 12 in general restricts what may be taken to the value of the outstanding debt plus future costs. Regulations under paragraph 3(1) of Schedule 12 will stipulate a list of exempt goods. Regulations will also reflect the provisions from the National Standards for Enforcement Agents, which state that on discovering that the only person on the premises is a child aged 12 years or under, the enforcement agent must withdraw immediately without making further enquiries. If the enforcement agent were to ignore those regulations, remedies would be available to the debtor under paragraph 66 of Schedule 12.
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The training requirements for enforcement agents in Clause 56 and the training for agents who are Crown employees will also cover how enforcement agents should identify and deal with vulnerable and potentially vulnerable debtor groups. Enforcement agents, suitably trained and in full possession of the facts of the case, will then be in the best position to judge and to know what they should do. The concept of vulnerability is difficult to define. The noble Lord would probably say that it is not possible to be sure that he has covered everyone he would want to, but it is difficult to argue that someone who does not speak English as a first language is necessarily always vulnerable.
Finally, I should add that, in many circumstances, debtors already have the right to apply to the court to stay enforcement action, and Part 5 of the Bill introduces a new set of targeted measures to help
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Lord Beaumont of Whitley: My Lords, I am grateful to the Minister, who is obviously taking immense trouble over this area. Although the two sides are moving together, I cannot say that we are completely satisfied, and we would like to see more in the Bill. However, this is not something that I want to take to Third Reading, particularly under the new definitions of what should be done at that stage, as it is a matter that can be pursued in another place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 58 to 60 not moved.]
The Deputy Speaker (Lord Geddes): My Lords, before calling Amendment No. 61, I must advise the House that if it is agreed to I shall not be able to call Amendments Nos. 62 to 71 due to pre-emption.
Lord Lucas moved Amendment No. 61:
“Entry to take control of goods(3) This paragraph authorises repeated entry to the same premises, subject to any restriction in regulations.
(4) If the enforcement agent is acting under section 64(1) (CRAR), the only relevant premises are the demised premises.
(5) If the enforcement agent is acting under section 121A of the Social Security Administration Act 1992, premises are relevant if they are the place, or one of the places, where the debtor carries on a trade or business.
(6) Otherwise premises are relevant if the enforcement agent reasonably believes that they are the place, or one of the places, where the debtor—
(7) An enforcement agent may if necessary use reasonable force to enter relevant premises or to do anything for which the entry is authorised if any of these conditions are met—
(8) Where an enforcement agent is not authorised to use reasonable force by virtue of paragraph 14(7) he may apply to the court for an order under paragraph 16 authorising him to use reasonable force if necessary to enter the premises or to do anything for which entry is authorised.
15 (1) When an enforcement agent is acting under section 64(1) (CRAR), the enforcement agent may, if he considers it necessary, use reasonable force to enter or to do anything for which the entry is authorised at the premises if they include domestic or living accommodation in actual use.
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