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16 (1) If the enforcement agent applies to the court it may issue a warrant authorising him to use, if necessary, reasonable force to enter the premises or to do anything for which entry is authorised.
17 (1) An enforcement agent may re-enter any premises where there are controlled goods which have not been removed by the enforcement agent.
(2) The enforcement agent may if necessary use reasonable force to enter the premises to inspect the goods or to remove them for storage or sale.
(3) This paragraph authorises repeated re-entry to the same premises, subject to any restrictions in regulations.
18 (1) The enforcement agent must on request show the debtor and any person who appears to him to be in charge of the premises evidence of—
(3) The enforcement agent may take other people onto the premises who may assist the enforcement agent in exercising any power, including a power to use force, but who may not remain on the premises without the enforcement agent.
(4) The enforcement agent may take any equipment onto the premises and may leave equipment on the premises if he leaves controlled goods there.
(6) Regulations may give the court power in prescribed circumstances to authorise him to enter or remain on the premises at other times.
19 (1) This paragraph applies where an enforcement agent has power to use reasonable force if necessary to enter premises
(2) The power to enter and any power to use force are subject to any restriction imposed by or under regulations.
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20 (1) After entering or re-entering premises the enforcement agent must provide a notice for the debtor giving information about what the enforcement agent is doing. Regulations must state—
(2) Regulations may prescribe circumstances in which a notice need not be provided after re-entry to premises.
(3) If the debtor is on the premises when the enforcement agent is there, the enforcement agent must give him the notice then.
(4) If the debtor is not there, the enforcement agent must leave the notice in a conspicuous place on the premises.
(5) If the enforcement agent knows that there is someone else there or that there are other occupiers, a notice he leaves under sub-paragraph (1) must be in a sealed envelope addressed to the debtor.
(6) If the debtor is absent from the premises, the enforcement agent must leave at the premises a list of any goods he takes away.
(7) If the enforcement agent knows that there is someone else there or that there are other occupiers, a list he leaves under sub-paragraph (6) must be in a sealed envelope addressed to the debtor.”
The noble Lord said: My Lords, in speaking to Amendment No. 61, I shall speak also to Amendments Nos. 64 and 66. These amendments are designed to be helpful. My experience of the Bill has been marked from the very beginning by total confusion about the meaning of the powers it contains for taking control of goods. I am sad to say that that confusion is shared by almost everybody I have talked to. I have been in long and extensive discussions with people involved in or looking at the industry, and I have listened to the noble Lord, Lord Thomas of Gresford, on other occasions, and the way things are set out in the Bill is unclear. If that remains the case, it will be extremely difficult for whoever regulates the industry to make sure that those who are subject to the Bill because money is being recovered from them by a bailiff understand what their situation is and what the powers of the bailiff are.
This weighty amendment is an attempt to redraft things in a way and in an order that make the Bill, as we understand it, clear—it is quite possible that because of continued confusion we have misunderstood it. It is a plea to the Government to have this important part of the Bill set out with clarity, in clear English, in a logical order and all together, so that somebody looking at the legislation—for example, an advisor at the citizens advice bureau—can have a clear idea at first reading of whether, in particular circumstances, a bailiff is likely to be acting within the law. I have found that—and I am no lawyer, but I have been reading law, as it were, for the past 15 years in this place—extremely difficult to do with the Bill. Doubtless the noble Baroness will pick me up on some points where I have continued to misunderstand the provisions.
I would like the noble Baroness’s views on one important point of difference. At a meeting of the Enforcement Law Reform Group an issue attracted support from around the house, as it were—both from bailiffs and from the likes of the Zacchaeus 2000 Trust; that is, after the bailiffs have entered a house,
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As I said on the previous amendment, bailiffs do not wish to do that. It is good neither for them nor for the debtor that they should. So, I very much hope that the noble Baroness will confirm that the existing practice will be allowed to continue. Furthermore, I understand that that has the support not only of the bailiffs but also of those whose primary care is the debtor. I beg to move.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Lucas. I shall deal first with Amendment No. 61 and then with the other three. Many of the provisions in the amendment are already contained in the Bill. I will not comment on those, but I will comment on the provisions where they deviate from the proposals in the Bill. Paragraph 14(7)(c) would introduce a new power to force entry without prior judicial authority on to commercial premises.
We do not think that that power is justifiable. Forced entry should be allowed only without prior judicial authority for the enforcement of unpaid fines in line with current law. To be allowed forced entry the creditor or enforcement agent would need to prove that such force is necessary and justifiable.
Paragraph 15(1) would introduce a power to force entry on to mixed-use premises when pursuing debts under the commercial rent arrears recovery system—CRAR. We think that that is unnecessary. The whole nature of the CRAR system is that it is only applicable for commercial tenancies in wholly commercial premises. As an out-of-court remedy, which this is, there is a real risk that it would not be compliant with the European Convention on Human Rights if we did not restrict it to commercial tenancies and premises and allowed it for mixed use.
Paragraph 15(2)(b) refers to entry being carried out by “normal methods”. I am not sure I understand what that means; we need to define “normal means”. I am a little worried that “normal means” could be interpreted as meaning that other methods will be considered acceptable in other circumstances. The Bill and its underpinning regulations intend to do away with many of the other methods of entry currently considered legal, such as climbing through broken windows and skylights and landlords lifting up floorboards to get into premises below. I do not want to see any of those methods returning by the back door, if I can use that analogy.
Paragraph 17 contains new powers regarding re-entry. That matter is touched on in Amendments Nos. 64 and 66, which I will come on to in a moment.
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I turn to Amendments Nos. 64 and 66 and government Amendment No. 65, which I propose not to move this evening. When the noble Lord, Lord Lucas, spoke eloquently in Grand Committee and on Second Reading, he was concerned that a debtor who worked from a room in his house might be subject to the powers of forced entry to commercial premises. He contrasted that with the commercial rent arrears recovery proposals, where entry to mixed-use premises is prohibited.
Having been taken by the noble Lord’s argument, I went away with the promise to consider it and came back with an amendment that did what I thought that he wanted. He now wants to do something quite different. I understand that, because since I drafted and laid that amendment, both the noble Lord and I have had representations from both sides of the debate—the enforcement industry and the debt advice sector—concerned that such a tightening of powers of re-entry may have unforeseen consequences of more enforcement agents being encouraged to remove goods on the first visit, rather than entering into a controlled goods agreement or securing goods on the premises. Naturally, that is something that we—and, more especially, the debt advice sector—are particularly keen to avoid.
The noble Lord subsequently tabled further amendments, Amendments Nos. 64 and 66, which would give the power of forced re-entry without prior judicial authority to all enforcement agents and all types of premises for all types of debt. I hesitate to give that proposal unqualified approval, as it may be going too far in the other direction.
I am also taken with what the advice agencies have said. We need to look at the matter in greater detail. There needs to be some provision to give the power of re-entry without prior judicial authority to avoid scenarios where enforcement agents feel compelled to remove goods on the first visit. I am, however, unsure that that would give sufficient protection to vulnerable debtors in domestic premises. Scope exists to provide for such limitations to be imposed by way of regulations under Paragraph 24(1) of Schedule 12, so there could be some protection for people in those circumstances. I would like to consider the matter further.
If noble Lords will permit me, I would like not to move government Amendment No. 65, to take away what lies behind Amendment Nos. 64 and 66 and have further discussions not only with the noble Lord but with different sides on this debate, in order to return to the matter at Third Reading, if that seems appropriate. On that basis, I hope that the noble Lord can withdraw Amendment No. 61 and allow me to take the other issues away and come back.
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Lord Lucas: My Lords, of course I will withdraw Amendment No. 61. As for the rest of the discussion, it merely illustrates how confused I was. As the parliamentary draftsmen will be spending more time on the Bill, if they find opportunities to render this part more understandable—if not to the layman, at least to the informed layman—I shall be most grateful for those efforts. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 pm
Lord Beaumont of Whitley moved Amendment No. 62:
“( ) This Act expressly preserves all common law rights restricting entry by force to a private dwelling by a civil enforcement agent.”
The noble Lord said: I shall speak also to Amendments Nos. 78, 63, 68, 67, 72, 69, 71 and 73. The amendment is intended to undergo the damage to a constitutional convention under the Domestic Violence, Crime and Victims Act 2004. I shall speak in particular to Amendment No. 67. The Act tore up 400 years of common law that had achieved balance of justice between bailiffs and debtors. Neither this House nor another place were informed about that vital history of the common law when the Bill was debated.
“An Englishman's home is his castle” is one of the best-known and most influential maxims of English law. The rule is arguably one of the foundations of private life in England and Wales, along with the right to self-defence in the home. Brewer’s Dictionary of Phrase and Fable records:
“Englishman's castle. His house is so called, because as long as a man shuts himself up in his own house, no bailiff can break through the door to arrest him or seize his goods”.
The saying originates from the judgment in the Semayne case, which laid down the role that no one may break into a dwelling house without proper lawful authority. For generations, this principle has been recited in numerous judgments and has been an unspoken presence in many more. It is a perfect example of how common-law rule has entered into the language and culture and shaped social conduct thereafter, to the point that it is accepted automatically and even unconsciously by all law-abiding citizens.
In 1964, Lord Denning, in Southam v Smout, quoted a speech in Parliament by William Pitt the Elder, first Earl of Chatham, which is described as the classic passage on the principle. He said:
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement”.
We maintain that the Government have lost all sense of proportion by sweeping away such wisdom from the law.
From 1604 to 2004, the bailiffs had to enter domestic premises peacefully. Forcible entry and the use of force against the person by bailiffs were not allowed. Now, for fines with a warrant, bailiffs can force entry without notice and, it is proposed, restrain
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Such a bad law will certainly be used and abused. I can visualise the possibility of an unemployed lone parent with several children receiving benefits and under stress because of her poverty. Indeed, the DCA has been shown a copy of an Answer to a Parliamentary Question showing that all unemployment benefits are below the Government’s poverty threshold. The lone parent has been fined for failure to pay her TV licence, which the DCA now refers to as a criminal fine, when such fines have in the past been enforced as a civil debt, as they are a debt to the Crown. She has debts to Provident plc, the leading home credit company, of £500, on which she pays £300 in interest over a year. HM Revenue and Customs was late cancelling the child benefit for her eldest son when he reached 18, finished full-time education and left home, so she is repaying an £800 overpayment. She has not responded to the summons about the TV licence because she is semi-literate and cannot afford the transport to the courts, and there is no one to look after the children while she is out. She is fined disproportionately in her absence. The male civil enforcement officer has a warrant to seize her goods to cover the fine and his fees. He forcibly enters the property with a male colleague, she threatens to punch him on the nose, the two men hold her down, and a fight ensues. The children join in defence of their mother and are traumatised. In different circumstances, social services put children on the at-risk list when they are traumatised by domestic violence between partners. Any complaint will be her word against the bailiffs, and the chances of her having advice or legal aid are very slim. Repercussions in the community against the bailiffs are more likely than any appeal. Such a bad law authorising violence will certainly be used and abused by bailiffs. Noble Lords may think that I have put together an extreme sob story, but every bit of it could actually happen.
The problem of increasing violence against the officers of the state and others in public office is very serious, and is faced by bailiffs, civil enforcement officers, probation officers, police, social workers, doctors and nurses, and sometimes even the clergy. It needs to be addressed across the board rather than piecemeal or in a manner that will create more violence, as in the particular case of the proposals for bailiffs. I ask the Government to think again about the clauses that make the way for regulations authorising restraint against the person. I beg to move.
Lord Lucas: My Lords, I had better speak to Amendment No. 70, since this group has grown rather. Oh! The noble Baroness would rather that I did not.
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Baroness Ashton of Upholland: My Lords, as I indicated to the noble Lord, Lord Beaumont, the only way in which we can deal with this on Report is to deal with the groupings in order, which I intend to do. He has raised individual cases, but he will know very well that I cannot respond in these circumstances. Reverend Nicolson was good enough to raise some of these issues with me. I am always mindful when looking at how this law will be enacted that we consider individual circumstances put before us. I take heart from the fact that the noble Lord is willing to do that. Better for us to discuss that beyond your Lordships’ Chamber than my clear inability to respond, for I know not the facts and am unable to deal with the information now.
Perhaps I may turn to these amendments so that we have clarity about where we sit. I will commit, as ever, to continuing discussions beyond your Lordships’ House—I think that many of the noble Lord’s concerns are about what we do. I reiterate one thing, which I hoped that I had covered in my opening remarks on the previous group and is pertinent to much of what he said on this group. The purpose behind this legislation is to bring together, to simplify and to clarify the law covering the work of bailiffs and other enforcement agencies, specifically in order to make it better for them, but also better for the debtors. Much of the provision in Part 5 is designed to support vulnerable people with debts in the circumstances in which they find themselves, but also to recognise that creditors have rights too.
The Bill is very balanced, so the noble Lord will understand my personal anguish when it is suggested that it is other than that, because that is exactly what I seek to do. In enacting this legislation, we will be very careful to ensure we take on board the points that have been raised, but deal with them in an appropriate manner. As I have said, we have to find that right balance between creditors and the rights of those to whom they owe money. The current system, which is based on common law conceived hundreds of years ago, needs to be brought up to date. It is complex, confusing and difficult to understand, which the noble Lord indicates with many of his examples. That has to change. There is an overwhelming case for simplification and clarification. One of the long-standing objectives of the civil enforcement review is to make enforcement law understandable and more straightforward.
This Bill will achieve that. It will introduce in one piece of legislation a single piece of enforcement agent law that will contain in one place the legal structure for virtually all enforcement of civil debts, judgments and criminal fines, written in terms that identify and outline the rights and responsibilities of creditors, debtors and enforcement agents alike. That needs to be achieved in one place. The retention of certain common-law rights and responsibilities standing totally separately from the Bill would in many ways run contrary to the main objective, which I think the noble Lord supports. This includes the current powers of entry, based on common law conceived hundreds of years ago.
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