Clause
92
Departmental
information
requests
Mr.
Bellingham:
I beg to move amendment No. 151, in clause 92,
page 59, line 22, at end
insert—
‘(da) the driving
licence number and vehicle registration of the
debtor;’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 152, in clause 92, page 59,line 28, at end
insert—
‘(ca) the driving
licence number and vehicle registration of the
debtor;’.
Mr.
Bellingham:
We have referred briefly to these amendments.
In fact, the hon. Member for Cardiff, Central alluded to them, although
she was out of order in doing so, and we have discussed clause 92 stand
part.
The amendments are
very simple. If clauses 91 and 92 are to stand part of the Bill, and if
clause 92(3) sets out the sort of harmless, straightforward information
that could be made available, putting the driving licence number and
vehicle registration of a debtor on that list would add to the
information that is easy to access, and it would be perfectly
acceptable for that information to be made available to the court
incertain circumstances. My suggestion would assist the
Government, and I hope that they examine it
carefully.
Jenny
Willott:
Will the Minister give us some information about
the circumstances under which she believes it would be of benefit to
the courts to have information about an individual’s driving
licence
number?
Vera
Baird:
It is not my amendment, and I have no reason to
think why I might want something thatthe hon. Gentleman
offers. However, we do not need the amendment because we can already
access the information through an electronic link to the Driver and
Vehicle Licensing Agency. I therefore invite him to withdraw the
amendment.
Mr.
Bellingham:
Will the Minister elaborate further? She says
that there is an electronic link, but between what? Is it between the
DVLA and the Courts Service, so that if courts want to get the
information they can do so readily? Can they get it without the
permission of the individual in
question?
Vera
Baird:
Yes, that is correct. The county courts and the
High Court have access to the information through an electronic link
with the
DVLA.
Mr.
Bellingham:
I am most grateful to the Minister for that
explanation. On that basis, she has satisfied me and explained that the
amendments are unnecessary. We want to keep the Bill as tight and as
focused as possible, so I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
92 ordered to stand part of the
Bill.
Clauses
93 to 100 ordered to stand part of the
Bill.
New
Clause
4
Assessing
household income
‘(1) The
debtor must, at the prescribed times, provide the proper county court
with household particulars
of—
(a)
earnings,
(b)
income,
(c)
assets,
(d) outgoings,
and
(e)
liabilities.
(2) For the
purposes of this section, “household” is to be considered
as the aggregate income for a family or couple
co-habiting.
(3) In this
section “prescribed” means prescribed by regulations made
by the Lord Chancellor.’.—[Mr.
Bellingham.]
Brought
up, and read the First time.
Mr.
Bellingham:
I beg to move, That the clause be read a
Second time.
The new
clause is simple and straightforward, but significant because we want
to define household income in relation to attachment of earnings orders
to make it absolutely clear that the key relevant figure to be
considered by the court is net household income.It is
important to consider liabilities and define household
income.
When an
attachment of earnings order is made, there should be a clear
definition of the earnings that are to be attached so that, if there
are extra overheads or other liabilities, they can be taken into
account. I imagine that a court would normally do that, and of course
it will use common sense and judgment to consider the income, overheads
and commitments of a family. They may have young children, an elderly,
ill relative or other commitments, or mortgages might suddenly go up or
the household runs into major problems over managing its income and
making it go as far as
possible.
We all come
across such examples in our constituencies, not least as a consequence
of actions—even rightful actions—by the Child Support
Agency. People come to our constituency surgeries and talk about the
problems that they face as a result of attachment of earnings orders,
and they often argue convincingly that some of the liabilities and
outgoings in their household are not catered for or taken care of. Most
of the time, the courts will get that right. They will consider the
overall picture and make a decision that is fair and
balanced.
Obviously,
courts have guidance on deciding on the attachment of earnings order,
but what other guidance is there? Will there be any guidance in the
regulations? Would it not make sense for a new clause specifically to
lay down what can be considered? Is there not merit in having a clause
to assess household income and make the rights of a debtor absolutely
clear? Above all, it should be made clear that the debtor must make the
information available, but at the same time the court must listen to
what the debtor is saying so that we end up with a completely balanced,
fair picture of the situation.
In the spirit of what I have
said, I hope that the Minister will consider the new clause carefully,
constructively and favourably.
Vera
Baird:
I am not entirely sure which clause the new clause
is intended to support. It may relate to an assessment that is required
at any
time—
Mr.
Bellingham:
Yes, indeed.
Vera
Baird:
It certainly does not seem to attach to one
particular part of the Bill, although the hon. Gentleman has mostly
talked about attachment of earnings orders, so that is perhaps what he
is primarily concerned about.
Similar amendments were tabled
in Grand Committee in the Lords by the hon. Gentleman’s noble
Friend Lord Kingsland. We understood then that the amendments had come
from a lobby group that was worried about the rise in creditors and
thought that indebtedness should be assessed at household level
rather than that of the debtor. If that is the hon. Gentleman’s
purpose, we are deeply opposed to it. It should be the debtor and the
debtor’s income only that are taken into account. Let me make a slightly more
technical point. The way in which deductions are calculated for all
varieties of attachment of earnings order are in the Attachment of
Earnings Act 1971. The new clause, standing free in the Bill, would not
interface with that Act. Attachment of earnings orders are used by lots
of Departments and many branches of the judicial system, and not only
by those with which we are dealing. We run the risk of a fundamental
change to the law having an effect on those areas outside this
Department’s remit.
The proposal would replace the
existing attachment of earnings order system with fixed tables. The
court would not determine the debtor’s means exactly, as such,
and it would be the debtor’s earnings from which the deductions
were made by the employer. There are obvious practical reasons why that
would be difficult to change, but there are legal principles, too. When
an attachment of earnings order or any form of execution are concerned,
we should consider the debtor’s income, because it is their
debt. That seems central to us; it should not relate to other income in
the household. I do not know whether the hon. Gentleman appreciated
that that would follow, because what is being spoken of is household
income.
The problem
is that if I, as a mother, had a debt and my grown-up sons lived with
me, they would have to submit to an assessment under the provision to
see whether it would be appropriate for their income to be lent to me
to get rid of my debt. What should be considered is what I am earning
and at what rate I can pay off the debts. That is the mischief of the
new clause, and I hope that I have made that clear. A new means form
will be developed for the attachment of earnings procedures, which will
cover lots of information. I imagine that it will cover all the
information that anybody would wish it to. The court will carry out a
thorough investigation before it makes any orders at
all.
1.45
pm
I hope that I
have satisfied the hon. Gentleman that the proposal is mischievous
rather than helpful, and that there are satisfactory provisions in
place that will be superseded by a thorough means form. It will ensure
that appropriate generosity is given to poor debtors and that
appropriate, fair enforcement is provided for
creditors.
Mr.
Bellingham:
I am grateful to the Minister for her
explanation. The new clause was not meant to be mischievous. I slightly
resent the word “mischief” being brought into the
discussion; far be it from me ever to try to create mischief. The new
clause was designed to give the Minister the opportunity to explain
more fully to the Committee exactly how household income will be
assessed. On the basis of her explanation, I beg to ask leave to
withdraw the
motion.
Motion and
clause, by leave, withdrawn.
New Clause
7
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.
Simon
Hughes:
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 ...is 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.
Vera
Baird:
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.
Simon
Hughes:
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.
Vera
Baird:
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.
Simon
Hughes:
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.
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