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Tribunals, Courts and Enforcement Bill [Lords]

I begin by declaring an interest as a qualified barrister. During my time at the Bar, I appeared before a number of different tribunals. I pay tribute to the numerous organisations that have briefed us on the Bill and played a full part in ensuring that the debate in the House of Lords was so well informed. They include Citizens Advice, the Zacchaeus 2000 Trust, the Association of Civil Enforcement Agencies, the enforcement law reform group, the Enforcement Services Association and a number of other different organisations and associations. I agree with my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack) that the House of Lords did a quite excellent job in going through the Bill in significant detail. Many aspects of it were not debated because they were self-explanatory and straightforward, but their Lordships—particularly those representing the official Opposition and the other parties—focused on one or two key areas, and as a consequence they improved the Bill considerably. I turn first to part 1 of the Bill. Tribunals are one of the most visible parts of the legal system. As the Minister pointed out, the huge growth in the tribunal system has been unstructured, which is why Sir Andrew Leggatt was asked to carry out a full review, which reported in 2001. My only regret is that it has taken so long to introduce legislation to implement much of that excellent review. Sir Andrew recommended a single coherent administration system, independent of Government Departments. He also recommended the two-tier system along with the better use of back-up infrastructure, so that the staff and the different tribunal heads can be used flexibly and interchangeably. I take on board the point that my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) made about whether the term ““judges”” should be used; we may well return to that point in Committee. There was substantial debate in the other place on judicial review, and the Government granted a substantial concession. My hon. Friend described how the Bill now makes it clear that a hearing must involve a High Court judge, or"““such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals.””" We will probe that issue in Committee, because I agree with my hon. Friend that, if at all possible, a High Court judge should be involved. A judicial review is an extremely serious issue, as the hon. Member for North Southwark and Bermondsey (Simon Hughes) also pointed out. We will push that point hard in Committee. Bringing together different parts of an existing organisation and putting in place a substantial consolidation exercise makes sense in theory, but this Government’s record of bringing together different organisations into what is meant to be a more focused and streamlined body is not particularly good. There have been many examples of their making it clear that they wanted to go ahead with a consolidation exercise, save money and build in efficiencies, only for us to end up with an organisation that costs far more once the process had been completed. I could give a number of examples, but an obvious one is the Commission for Equality and Human Rights. Given the sum total of its different parts, it is a much bigger organisation that costs much more, with far more scope for adding extra costs to the end users. We will have to be very careful about that with this legislation. We want to reconsider some of the points raised in the other place about judicial appointments. The hon. Member for Wolverhampton, South-West (Rob Marris) and my hon. Friend the Member for Shipley (Philip Davies)—in his own inimitable style—made the point that those appointments must be made on merit alone. The Opposition of course understand why the Government want to widen the pool of prospective appointees to the bench, but the absolute and overriding criterion must be the quality of those applicants, who must be appointed on merit. My hon. Friend the Member for Newbury (Mr. Benyon) made an excellent speech in which he brought to bear his substantial small business experience. He flagged up the plight of small firms in the context of a claims culture in which an increasing number of vexatious claims are being made. There is a growing compensation culture; indeed, it is difficult to open the business pages of any newspaper without seeing yet another case of a claim by an employee. Often, such claims are totally vexatious. As the CBI pointed out in its briefing to us, its latest trend survey highlights the fact that many of the firms that it questioned felt compelled to settle cases, despite receiving advice that they were likely to win at tribunal, because of the cost and amount of management time that it would take to defend claims, which are often vexatious. It is interesting that my hon. Friend the Member for Newbury made that point, because our policy at the last election was to introduce a system whereby the tribunal could ask for a bond or deposit from the applicant before the case could go forward. That would go a long way to prevent the plethora of vexatious cases that are tying up management time and destroying wealth creation in this country. On debt relief, a range of new solutions will be targeted at those who are least able to cope. Given the record amount of money owed in society, we support measures that will make it easier for such people to sort their lives out. We support the principle of debt relief orders. I was interested to hear the wise and sensible words of my hon. Friend the Member for Braintree (Mr. Newmark), who brought to bear his experience and knowledge, especially given his involvement in the two Treasury Committee reports. He made some very sensible suggestions that we will consider in Committee and perhaps put forward in amendments. I thank him for his contribution. I am staggered by the proposals in the Bill on immunity from seizure for works of art and cultural objects, as that has nothing whatever to do with tribunals, courts or enforcement. It may well be highly desirable to introduce those measures, but this Bill is not necessarily the vehicle by which to do so. Having said that, there are substantial problems. We heard about the Russian loan of French Impressionist pictures to the Swiss museum, and about the 2004 exhibition of paintings and other exhibits that were going to be on loan from Taiwan. That exhibition did not take place because of threats from the People’s Republic of China, which said that it had a legitimate objection because those exhibits were misappropriated by the ex-leader of Taiwan and Free Chinese President Chiang Kai-shek. My hon. Friend the Member for South Staffordshire made it clear that there is a serious problem in the museums sector and that there are fears about the future as we move into a more litigious time. That is quite right, given that much more emphasis is being placed on works of art that were looted, particularly during the Nazi era and the holocaust. That point was well made by the hon. Member for Stoke-on-Trent, Central (Mark Fisher). There is a need to balance the rights of original owners against the need for museums to stage exhibitions and widen the cultural horizons of the people who go to them. I welcomed the changes that the Government made during the Grand Committee and Report stages in the House of Lords. I agree with my hon. Friend the Member for South Staffordshire that the Government have listened, been pragmatic and introduced sensible changes, particularly on due diligence and in setting up the approval mechanisms for museums and other centres. However, we will reconsider the definition of due diligence. I would appreciate it if the Minister addressed the point made by the hon. Member for Stoke-on-Trent, Central about the possibility of works of art being sold after exhibitions. That is most unlikely, because they will be protected with immunity only for a very specific, fixed period of time. The idea that the original owner, or the person or gallery who owns the picture or work of art at the time of the exhibition, could somehow intervene and enable that picture to be sold or put up for auction after the exhibition is slightly far-fetched, but perhaps the Minister could clarify that point, because it is causing concern to a number of colleagues. I turn to the issue of enforcement and bailiffs, because that is the most vexed and controversial part of the Bill. There has been a significant increase in the amount of abuse by bailiffs, of which we have heard a number of examples today. Indeed, my hon. Friend the Member for North-East Hertfordshire gave a very good example. The hon. Member for Knowsley, South (Mr. O’Hara) told us about the very harrowing case of an elderly person who came home to find a bailiff in her house. He had entered it on the basis of debts that her grandson had run up and had drawn up a list including most of her household possessions. Many of us have seen the BBC ““Whistleblower”” programme which was extremely critical of several large bailiff firms. The National Association of Citizens Advice Bureaux, which I gather is now called Citizens Advice, gave us a number of examples of abuse. I heard about a single mother who had been fined £1,072. The bailiffs visited her house and seized a television, a DVD player and 60 CDs, which they then auctioned for £72. After they had given £32 to the auctioneer, there was not a great deal left to settle her debt. Many of us would wonder why the bailiffs caused that level of distress to collect that very small amount of money, even though the debt was quite high. As my hon. Friend the hon. Member for Braintree made clear, society is becoming more indebted. The Minister who opened the debate was right to say that the current situation is confused, with numerous common law judgments and different statutes going back many years and leading to considerable confusion. There is a need for a new code and certification process, and we support that, but that is in the context of the 2004 Act, which gave far greater powers of forced entry. On top of that, the Bill will extend powers so that forced entry will be allowed in relation to civil debts that are authorised by the court, albeit with very tight guidelines. Many concerns have been expressed, in this short debate, that much more power is being given to bailiffs. The hon. Member for Bolton, South-East (Dr. Iddon) expressed concern, as did the hon. Member for Twickenham (Dr. Cable) and several of my hon. Friends. One hon. Member after another has made it clear that a balance must be struck, but that the Bill strikes it in the wrong way. That was made clear by my hon. Friends the Members for Hornchurch (James Brokenshire), for South Staffordshire and for Braintree, and by others, including the hon. Member for Knowsley, South. Of course, we have to strike a balance, because debts that are owed in society have to be collected. We cannot have a capitalist system if the creditors do not have a mechanism by which to collect that money. It is important that there be a system that is easy to understand and to implement, and that is why we support much of the Bill. However, the Opposition are concerned that two fundamental constitutional points or areas of constitutional law are being undermined, albeit through common law. Mention has been made of the Englishman’s home being his castle. In his judgment in Southam v. Smout, Lord Denning cited William Pitt the Elder’s famous saying:"““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””." That pass has been sold. The 2004 Act fundamentally changed our constitutional law and the Bill will go further. It is important to bear in mind another constitutional point. Criminal fines are civil debts, not criminal debts, so enforcement should not constitute an additional punishment. That is a fundamental point, and we should look at it carefully when analysing why and how Her Majesty’s Government are justifying allowing extra levels of forced entry. They say that it is to enforce criminal penalties, but if one drills down a bit further one sees that many of those criminal penalties involve fines for quite minor offences—for example, not having a TV licence or car tax disc—or parking tickets and congestion charge penalties. Many other examples have been given by the excellent Zacchaeus 2000 Trust, which put forward a convincing and compelling case that many debts are fuelled by poverty. Some of the most vulnerable people in society will lose rights, while the power of the state will grow. We are giving extra powers to bailiffs, but we have heard many examples of abuse, so extra checks and balances are necessary. There is a strong argument for bailiffs wearing a distinctive uniform at all times, which was put succinctly by my hon. Friend the Member for South Staffordshire. We need clarity about exempt goods. Lord Beaumont of Whitley—I understand that he is the only Green peer in the other place—worked hard on the Bill, and moved an amendment to include a list of exempt goods that would be precluded from any form of seizure; for example, tools of a trade, as my hon. Friend the Member for Newbury said, as well as domestic animals kept as pets, guard dogs, dogs on which a blind person relies, sums of cash below a specific level, and other items that it would be wrong to seize. When the Minister opened the debate, she said that it was better to deal with the matter by way of regulation because the nature of goods changes as society changes—for example, mobile phones. Who had a mobile phone 10 or 12 years ago? It makes sense to change the list of goods by regulation, but we do not trust the Government, and we want a provision in the Bill. We shall push hard for that in Committee. It is also necessary for bailiffs to have a clear focus and effective guidance. I asked the Minister about the magistrates courts guidance on search and entry powers under the Domestic Violence, Crime and Victims Act 2004 and pointed out that when Lord Beaumont asked for a copy of it, he was given a 31-page document, of which 15 had been redacted—blacked out completely. That was disappointing. We are looking for more open government, and to ensure that the bailiff system carries public confidence, but that will not happen if a key guidance document of instructions to bailiffs has redacted pages. What is so secret about those instructions? Are bailiffs being given hints and tips about how to enter people’s homes and cause maximum grief to our constituents? I do not know, but we must see that guidance published in full. The lack of its publication is a sorry state of affairs. There was overwhelming support on both sides of the House for a system of independent regulation by a respected independent regulator who would be in charge of all aspects of regulation, licensing, the certification process, and monitoring all bailiff activity. My hon. Friend the Member for Old Bexley and Sidcup mentioned Philip Evans, chairman of the Enforcement Law Reform Group, who made it absolutely clear time and again that the bailiff industry wants regulation. It is concerned not only that the extra powers will lead to additional abuse by a small minority of bailiffs, but also about public support for the law. That is why they are clearly saying that there should be regulation. It is worth bearing in mind the fact that the situation in Britain is almost unique, as bailiffs are agents of the creditor in some cases, but agents of the Crown in others. In every other country bailiffs are agents of the state, so we must have regulations when bailiffs are given extra powers, as they were under the 2004 legislation and as they will be under the Bill. The Minister in the other place has come up with the proposal that regulation should be handed over to the Security Industry Authority, which I want to give some brief consideration, as it is essential to the way forward. The SIA was established under the Private Security Industry Act 2001, so it would be possible under regulations to extend the authority’s power of regulation of the bailiff sector. However, I gather that the SIA is not keen on having those extra powers. Furthermore, the authority’s reputation is mixed. It has been slow to process licence applications in its existing area of work. I do not like its policy whereby if 80 per cent. of an approved contractor’s staff are licensed, the rest can act as though they are licensed. The SIA has been poor in responding to justified criticisms of the wheel-clamping sector, where many cowboys operate. Above all, when the SIA investigates a complaint, it does not tell the complainant of the outcome, even when the complainant is the victim of illegal action. Under the Minister’s proposals, the SIA will regulate only private bailiffs, not Crown agents. We need a system for regulating all bailiffs. That is only sensible. The Under-Secretary of State for Constitutional Affairs explained that a joint DCA-Home Office consultation process is under way to look at the cost and impact of regulation. The consultation will end on 25 April, which is quite soon, so I agree entirely with my hon. Friend the Member for Hornchurch that there is an overwhelming argument for delaying the granting of enhanced powers until we have clarity about the whole regulatory framework. What will happen if HMG turn their back on even the modest regulation that has been proposed? What happens if they decide that the SIA is unsuitable for carrying out that role? Unless we have that delay, the Bill will pass into law with no guarantee that there will be a proper regulation system. Many excellent points have been made during the debate. The Conservatives are in broad agreement with much of the Bill, which will bring in long overdue legislation. However, when there is unprecedented debt in society, when huge heartache and grief are caused by debt and there is ever-increasing abuse by bailiffs—albeit only a small minority—it is not the time to be giving bailiffs extra powers and putting into reverse some key constitutional principles. It is not the time to be making fundamental changes that will give bailiffs extra power without a proper regulatory framework, which is why we shall hold the Government to account in Committee and on Report. We shall do all we possibly can to make sure that the most vulnerable people in society do not fall victim to the extra powers in the Bill.