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Tribunals, Courts and Enforcement Bill [HL]

My Lords, I am grateful to the noble Lord. I hope that my speaking note will completely reflect what is in the letter. Perhaps the letter will reach me in the next few minutes to make sure that it does—I left my copy of it behind. The critical point which the noble Lord has rightly accepted is that we are concerned that the impartiality and discretion of the judiciary are not interfered with when considering whether to grant an application for a charging order or order for sale in respect of debts regulated by the Consumer Credit Act. I am confident—I am sure that the noble Lord is, too—that judges will consider applications for the granting of time orders made in the proper manner, but to require them to do so would be to ask them to take the debtor’s side in the case. That could leave them open to a charge of bias. It is not the first time that this proposal has been raised. It was raised in the course of consultation on proposals for reforming the consumer credit regime in 2002 and 2003. The judiciary does not wish to have this responsibility foisted upon it, because it believes that it would compromise its impartiality. The noble and learned Baroness, Lady Butler-Sloss, who is not in her place, reinforced in Grand Committee the need for any decision regarding the granting of a final charging order to be a judicial decision, and subject to judicial discretion. Under our proposals, therefore, even where a debtor is complying with an instalment order in a judgment, the court has discretion to make a charging order to give security to the creditor. However, the charge property may not be sold unless the debtor defaults in making payments under the instalment order. The charging order system is neither automatic nor administrative. The final charging order hearing is held before a judge, and all parties are able to participate in it. Each case is treated on its merits. The judge has complete discretion whether to grant the charging order or to place conditions on the granting of it. Therefore, an order will be granted only where the judge feels that it is appropriate. That is a critical part of the Bill. The noble Lord reflects in his Amendment No. 81 our current thinking on timing. We agree that the new powers contained in Clause 85 should not come into effect until the protections contained in Clause 86 come into effect. We do not think that we need to place such a provision in the Bill, but I hope that the confirmation of that will reassure the noble Lord of the Government’s intention. I hope that I have put on the record what the noble Lord was seeking and that he is able to withdraw his amendment.