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Tribunals, Courts and Enforcement Bill [HL]

My Lords, this is a large Bill and I will devote my speech only to Part 3. The noble Lord, Lord Newton, had a rather elegant phrase for avoiding dealing with other parts of the Bill; I will merely say that in my case it is due to pure ignorance. I will be asking for information from the Minister on various points on which my colleagues and I have been unable to collect the correct answers and will later suggest a new clause. I regret that there is no attempt in the Bill to repeal or amend Schedule 4 to the Domestic Violence, Crime and Victims Act 2004, in particular, paragraph 3 of the new Schedule 4A to the Magistrates’ CourtsAct 1980, which abolished the centuries-old common law preventing forced entry by bailiffs. It was abolished on 6 July 2004 by Standing Committee E considering a Department for Constitutional Affairs amendment to the Home Office’s Domestic Violence, Crime and Victims Bill in another place and passed in this House on 2 November 2004 without objection, after off-the-record discussions between the major parties. Bailiffs’ powers are already excessive and the Bill increases them. In neither House was there any mention of neither Semayne’s case in 1604 nor Lord Denning's judgment in Southam v Smout, in which he cited William Pitt the Elder, the first Earl of Chatham. He said that it was the classic passage on the principle that an Englishman’s house is his castle. In 1767, William Pitt said: "““The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement””." Neither the enforcement nor the creditors nor the advice sector were consulted, and no notice was given to the public. Even though the citizen has a right to refuse forced entry, 76 per cent of fines were collected. A substantial part of the balance was due to disproportionate fines that could not be paid in full; to fines that should have been reduced or remitteddue to a change of circumstances such as illness, unemployment or bankruptcy; and to fines directed to the wrong person or address which cannot be collected. Apparently, enforcement agencies are quite unable to read. I have been advising one enforcement agency that the person whom they are trying to pursue has not, to my knowledge, lived in my house for the past 20 years. It is quite unable to take this in, and continues to serve me with dark threats. The reason given for allowing forced entry, as reported at col. 239 of the House of Lords Official Report for 2 November, was to enforce criminal penalties. We were not told that many of the criminal penalties involving fines were simply for petty shoplifting, truancy, having no TV licence, fare-dodging or having no tax disc on a car—offences very often fuelled by poverty. A parliamentary Question, answered on 20 July 2004, illustrates that all unemployment benefits are below the Government’s poverty threshold. They remain so. Magistrates’ courts are faced with fining the jobseeker’s allowance, of £45.50 a week, of unemployed single adults aged between 18 and 24. It is very likely that a social fund loan is being deducted from that allowance, at £10 a week, when the allowance is already at half the level of the Government’s poverty threshold. The fine is then deducted at £5 a week, leaving the person with £30.50. When it is not paid, a warrant is issued to the bailiff. We have created such poverty in this country that all fines for unemployed people, who are struggling to survive below the poverty line on state benefits, are disproportionate. The Zacchaeus 2000 Trust, which has been advising me on this matter and which I shall refer to using the rather ugly abbreviation Z2K, has met these ““criminals””. They have had a contract for nine years with Wycombe magistrates’ court to help people to fill in their means-test statements at the enforcement court on Wednesday mornings. They used to be able to assist vulnerable defaulters and, with the permission of the bench, get their facts before the court so the fines could be as proportionate as possible or reduced if circumstances, such as unemployment, illness, divorce or bankruptcy, had changed their means. In 2002, the then Lord Chancellor, the noble and learned Lord, Lord Irvine, wrote to Z2K: "““For fines to be effective, they must be proportionate to income””." Setting the correct level of fine is the key to successful enforcement. To enable it to be set correctly, it is vital that magistrates have accurate and up-to-date information about an offender’s means at the time of sentencing and, indeed, throughout the enforcement process. However, with the arrival of the finesofficers, who took over enforcement under the Courts Act 2003, Z2K intervention has been all but shut out. The procedures have become merciless. If the fine is not paid, a warrant is given to the bailiffs to smash and grab. Z2K has been told by officials at the Department for Constitutional Affairs that forced entry will be used only as a last resort, but the DCA will not say who decides, and in what circumstances, that that time has been reached. I ask the Minister to write to me with that information. Z2K asked the Department for Constitutional Affairs for a copy of the civilian enforcement officers’ guidance. On 31 October, it received a letter from Her Majesty’s Court Service, which states that, to release a copy, "““would prejudice the administration of justice by sharing guidance which provides advice to CEOs on what to do in specific situations. The disclosure of methods used by enforcement agents could assist defaulters to evade enforcement officers in the execution of their duties. This information is therefore exempt from disclosure under Section 31(1)(C) of the Freedom of Information Act 1999””." These days, ““civil enforcement officers”” is the official upmarket vernacular for bailiffs, which means that they have secret instructions from the Government about how to break into your home and seize your goods. Z2K has sought an internal review by the Access Rights Unit at the DCA on the grounds that justice on the doorstep and in the home by bailiffs, like everywhere else, should be seen to be done; and fine defaulters or their advisers cannot call the bailiffs to account for failing to carry out the correct procedures if they do not know what procedures the Government require the bailiffs to implement. The effect is to make the bailiffs untouchable. Z2K has not yet had a reply. Perhaps the Minister would like to expedite that. The Government get a free service from bailiffs; the fine defaulter pays their fees: no wonder forced entry falls very short of a last resort. In one case, a bailiff seized a TV, DVD player and 60 CDs from a lone mother, sold them for £72 and gave £30 tothe auctioneer, which did not pay off the disproportionate fine of £1,072. In another case, an unemployed young man on state benefits had a fixed penalty for fare dodging. He is homeless and used his girlfriend’s address; the bailiff called and threatened to seize her property to cover his fine and the bailiffs’ costs. Another bailiff from the same company threatened to seize a pensioner’s property because her unemployed grandson used her address. I seek the introduction into law of page 9 of the National Standards for Enforcement Agents, which would protect vulnerable households from excessive and disproportionate enforcement against inadequate, poverty-level incomes. It currently has no legal force and is largely ignored. It suggests: "““Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with””." The Bill also needs to clarify who, in the case of a fine, is the creditor and who should agree the procedures. Is it the magistrates, HM Court Service or the DCA? I also ask for the publication during the passage of the Bill of a list of goods exempt from seizure by bailiffs; for example, cookers and fridges, which are essential for daily living, and tools of trade such as personal computers used by self-employed people working from home. In addition, bailiffs are permitted to seize cash, but they should be required to leave enough to live on in the house. The law should be amended to bring magistrates back into the supervision of the bailiffs who enforce the orders they make. Parliament has carelessly removed magistrates from that task in the CourtsAct 2003 and the Domestic Violence, Crime and Victims Act 2004. By also allowing forced entry by bailiffs, it has diminished the administration of justice by the British courts. An Englishman’s home is no longer his castle.