HL Deb 13 December 1990 vol 524 cc604-11

—(1) Where default is made in paying a sum adjudged to be paid by a maintenance order of a magistrates' court and the court decides to issue a warrant of distress under section 76 of the Magistrates' Court Act 1980 for the purpose of levying the sum and the warrant is not directed to the constables of the police area in which the warrant is issued, the warrant shall not be executed otherwise than by a bailiff holding a certificate issued under the Distress for Rent Rules 1988.

(2) A warrant of distress issued under section 76 of the Magistrates' Court Act 1980 shall provide that—

  1. (a) a person appointed to execute the warrant shall make reasonable efforts to make personal contact with the person against whom the distress is to be levied and, upon doing so, shall show that person their written authorisation to act;
  2. (b) where a person appointed to execute the warrant discovers that the person against whom the distress is to be levied is either in hospital, has a mental or physical disability or a language difficulty that the warrant will not be executed without further instruction from the magistrates' court;
  3. (c) tools, books, vehicles, and other items of equipment as are necessary to the defaulter for use personally by him in his employment, business or vocation shall not be taken under the warrant;
  4. (d) such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the defaulter and his family shall not be taken under the warrant;
  5. (e) any items bought with social fund loans or grants shall not be taken under the warrant;
  6. (f) a reserve price is fixed for any distress which is to be sold at public auction;
  7. (g) there is a maximum charge, for expenses and any other costs, that the person executing the warrant may deduct out of the amount realised by sale of the distress.").

The noble Lord said: The amendment is concerned with the subject of bailiffs. The Bill is concerned with the framework for setting and collecting maintenance. It dots not seek to review the existing arrangements for the enforcement of maintenance orders made by magistrates.

One method of enforcing orders is the issue of warrants which may be carried out by bailiffs. It is a system of enforcement increasingly used by magistrates' courts, particularly in relation to the so-called coma unity charge. We are concerned about the effect of more frequent use of such enforcement in respect of maintenance orders if the Bill is passed.

There is urgent need for reform and for more rigorous control of the activities of bailiffs appointed by the magistrates' courts who currently execute warrants largely unregulated. Bailiffs who work for the county courts are subject to regulation under the Courts and Legal Services Act 1990 which stipulates goods which may not be seized under a warrant of execution. Most importantly, bailiffs acting on county court warrants are employed directly by the court. On the other hand, magistrates' courts rely on private bailiffs.

The use of bailiffs is costly. In the context of maintenance payments, the debtor's capacity to meet future payments may easily be directly diminished. Under the warrant, goods belonging to the defaulter are seized by bailiffs and sold to raise money in order to pay off the amount that is owing. Also, bailiffs add on the cost of collection; that can be quite considerable. If essential goods are seized, the defaulter may need to use money that would have gone into future maintenance payments for the family in order to replace the goods which have been seized.

Evidence has been brought before me from citizens advice bureaux all over the country concerning the actions of private bailiffs when they execute warrants issued by magistrates' courts. There are a number of problems which the amendment seeks to resolve. A citizens advice bureau in Cheshire recently reported that a bailiff charged £70 to the debtor for sending a van to collect that debtor's goods, even though no goods were taken away. Another citizens advice bureau in Essex reports a bailiff taking a second-hand three-piece suite which had been given by the local authority social services department. In addition, they took a black and white portable television set which did not belong to the debtor.

Additional information arrived on my desk only this morning from the National Consumer Council. It gives many examples of bailiffs seizing goods which are essential to families. Refrigerators, washing machines and cookers are frequently taken. The removal of essential household goods causes families great hardship and forces them further into debt if they have to borrow money to replace those goods. The sum of £100 of exemption for clothing and bedding is ridiculously low. Sometimes the items have been purchased with public funds in order to meet a family's desperate need. The National Consumer Council brings to my attention one case of a mother with an incontinent daughter who lost a washing machine that had been bought with a social security fund loan which she had to continue to repay.

Our first concern in proposing the amendment is that magistrates' courts should always use certificated bailiffs; that is, bailiffs who have been granted a certificate by a judge or registrar of the county court. That is currently the only means of quality control in the private bailiffs sector. The county court will not grant a certificate to an applicant who fails to satisfy the court that he is a fit and proper person to hold a certificate or that he has sufficient knowledge of the law about distress. Nor will a certificate be granted to an applicant who carries on or will be employed in any business which includes buying debts. When applying for a certificate a bailiff needs to disclose previous convictions for fraud, dishonesty or violence and needs to give information about debt judgments, insolvency, bankruptcy or receiverships. Once the procedure and the court are satisfied, the holder is given a general certificate which lasts for two years. No provision exists which ensures that bailiffs who are appointed by magistrates' courts hold such certificates.

The amendment would be a great improvement. I beg to move.

Baroness Faithfull

I support the amendment. Social services departments find themselves in a very real dilemma. I know of cases such as those cited by the noble Lord, Lord Morris. In some cases bailiffs have removed equipment from the home which means that a mother has been unable to look after her child properly. Therefore, the child is in need of care and protection.

We have a situation where two Bills contradict each another and result in social workers being placed in an extraordinarily difficult situation.

Lord Gisborough

I support the amendment. It does not give anything away; it states what magistrates should do in any event.

Earl Ferrers

The noble Lord, Lord Morris of Castle Morris, has produced yet another amendment which I find attractive. In some ways it grieves me to inform the noble Lord that I find it difficult to accept the amendment. I do not state that by way of being obstinate or through lack of understanding. I say it because of the technical problem that the amendment, like some others, produces.

We understand the problems and distress that occur when bailiffs are involved, but we have had the benefit of the recently published report on private bailiffs by the National Consumer Council. The chairman of that council sent the report to my right honourable friend the Home Secretary with a request that he consider its suggestions in so far as they concern magistrates' courts. The report is receiving careful consideration. The amendment seeks to embody the proposals in primary legislation, but I hope I can give the Committee some encouragement by explaining the action which we propose to take. I should perhaps at the same time tell the Committee that we do not consider it would be sensible to accept the amendment at this stage.

The Committee should be aware that the Home Office has established a group of practitioners from the magistrates' courts service which is charged with identifying and disseminating best practice. The group is well advanced with the preparation of guidance on fine enforcement. This will include material on bailiffs and will, among other things, include in effect a model contract for their employment. The group has been asked specifically to consider the National Consumer Council's proposals with a view to their inclusion, where appropriate, as best practice.

The first part of the amendment would enable distress warrants to be executed only by the police or duly certificated bailiffs. I understand that the best practice guidance is likely to recommend that certificated bailiffs should be used; but we have here a good illustration of the dangers of incorporating into primary legislation very specific procedural requirements which, in due course and for one reason or another may have to be changed. The amendment would also have the effect of excluding the execution of warrants by the courts' own enforcement staff, which I assume is not the intention. Even if that omission were to be corrected it would be undesirable to tie the courts' enforcement powers to specific procedures under which certification of bailiffs is made and which, as I said, might be changed in due course. Indeed, my noble and learned friend the Lord Chancellor is planning a revision of the Distress for Rent Rules 1988.

A similar point arises in relation to the remaining parts of the amendment which set out detailed procedural rules. I do not wish to quarrel with their substance in all cases. For example, we are at present consulting the magistrates' courts service with a view to bringing the rules defining which goods may be distrained into line with the rules governing distress ordered by the higher courts, as proposed by the National Consumer Council. However, these are matters properly governed by rules and best practice guidance as the National Consumer Council envisages rather than by primary legislation. If we try to do this by primary legislation we shall almost certainly find, before too long, that some adjustment is needed which will then be difficult to accommodate.

Some of the matters covered by the amendment are already covered by rules of court, and rightly so. We are looking hard at those rules and at the guidance to support them. With that background to our views I hope that the noble Lord, Lord Morris of Castle Morris, will consider that on the whole it is better to leave these matters to rules and guidance rather than put them into primary legislation.

Lord Morris of Castle Morris

I detect encouraging signs of warmth, sympathy and movement from the Minister. I am delighted that he views this matter in the same way as we do. I am encouraged also by the fact that at his back is the noble Baroness, Lady Faithfull. Other Members on the Government Back Benches seem to be supporting us.

Earl Ferrers

I intervene only to say that it is always a frightening experience to have my noble friend behind me.

Lord Morris of Castle Morris

We on this side of the Committee sometimes regard the noble Baroness as one of our greatest friends.

Earl Ferrers

So do we.

Lord Morris of Castle Morris

We are all agreed that in the operation of private bailiffs errors are made in some quantity, and there is wide concern about that. Private bailiffs certainly need to be regulated. I am not convinced that the best method of doing that is not through primary legislation, and the Bill offers a good opportunity. However, I prefer not to press the matter now. I should like to consider what has been said, encouraged by the warmth generated across the Dispatch Box by the noble Earl. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Revocation, variation, etc. of orders for periodical payment in magistrates' courts: general]:

[Amendment No. 24 not moved.]

Clause 4 agreed to.

Clause 5 [Variation of orders for periodical payment made under Part I of the Domestic Proceedings and Magistrates' Courts Act 1978]:

[Amendment No. 25 not moved.]

Clause 5 agreed to.

Clause 6 [Variation of orders for periodical payment made in magistrates' courts under Schedule 1 to the Children Act 1989]:

[Amendment No. 26 not moved.]

On Question, Whether Clause 6 shall stand part of the Bill?

5.15 p.m.

Lord Simon of Glaisdale

I mentioned earlier the recommendation of the senior Scottish judges to the Renton Committee and the endorsement by the Renton Committee of their recommendations: in other words, that there should be legislation in general rules which the courts can then apply to the specific instances that come before them rather than endeavouring to cover every situation that can be envisaged. This clause points the moral and adorns that tile. It deals with amendments to the Children Act of two Sessions ago. That Act was drafted in the current style of seeking to cover every possible situation.

Sure enough, it was rapidly discovered that there were many situations that had not been envisaged. At every stage of the Children Bill's progress through this Chamber, where it originated, amendments were made to cover further situations, including on Third Reading. The Bill then went to the House of Commons and was returned to this Chamber with more amendments to it, almost all of them government amendments, which exceeded in length the Bill as originally sent to the other place.

The matter did not even rest there. When the Courts and Legal Services Bill was going through Parliament last Session it included a long schedule —Schedule 12—making further amendments to the Children Act to cover situations that had been thought of since that Act came into force. Again, that happened when the Commons amendments to the Courts and Legal Services Bill were considered, and once more that long schedule had to be further amended.

Now we have this Bill, with still more amendments to the Children Act. If ever there was a lesson to be learnt—the Renton Committee and the two great Scottish judges have been vindicated—it is from the history of the Children Act. Therefore I ask the Government and in particular the noble Earl, who is the Deputy Leader of the House, to draw the lesson that is finally pointed—or perhaps not so finally—by this clause and to reconsider our method of drafting.

Earl Ferrers

The noble and learned Lord, Lord Simon of Glaisdale, seems to have it in for the parliamentary draftsmen this evening. I realise that it is difficult when substantial amendments are made as they were to the Children Bill and also when they are tabled regarding this Bill. Clause 6 simply repeats the powers given under the Act in other maintenance legislation which is mentioned in Clauses 4 and 5. It is necessary to make these alterations to the Children Act.

The noble and learned Lord knows far better than I that all the legislation dealing with maintenance orders is extremely complicated. It is complicated for those who are versed in the law and it is also unbelievably complicated for those who are not. I shall see to it that the Exocet which the noble and learned Lord has launched towards the parliamentary draftsmen finds its home. I do not guarantee that I will support the noble and learned Lord's observations, but I shall see to it that those concerned are made aware of them.

Clause 6 agreed to.

Clauses 7 to 11 agreed to.

Schedule 1 [Amendment of certain enactments relating to maintenance orders registered in or confirmed by magistrates' courts or registered in the High Court]:

Earl Ferrers moved Amendments Nos. 27 to 36: Page 16, line 47, leave out ("respectively"). Page 19, line 33, leave out ("specified in") and insert ("falling within"). Page 19, line 39, leave out ("by standing order, etc. or not") and insert ("or not by any method of payment falling within section 59(6) of that Act"). Page 22, line 50, leave out ("specified in") and insert ("falling within"). Page 23, line 17, leave out ("specified in") and insert ("falling within"). Page 24, line 13, leave out ("respectively"). Page 26, line 48, leave out from ("Act") to ("be") in line 49. Page 27, line 5, leave out from ("Act") to end of line 6. Page 28, line 39, leave out ("in") and insert ("conferred by"). Page 28, line 47, leave out ("respectively").

The noble Earl said: These are all minor technical and drafting amendments which clarify the provisions of Schedule 1. That schedule applies the provisions of the Bill to the reciprocal enforcement of maintenance orders. I beg to move.

On Question, amendments agreed to.

Schedule 1, as amended, agreed to.

Schedules 2 and 3 agreed to.

In the Title:

Lord Simon of Glaisdale

I have a very small point to make concerning the Title which I hope the noble Earl will consider. I refer to the last words of the Title. If any words can be omitted from almost any Bill it is to the advantage of the public. The words are: to amend section 10 of the Courts and Legal Services Act". That is another example of second and third thoughts having to be made. That section of the Courts and Legal Services Act is only amended in a line or two of the schedule relating to minor amendments. The majority of the amendments in that schedule are not mentioned in the Title. For the life of me I cannot see why that particular amendment is mentioned.

Earl Ferrers

I assume the reason why that was included was because the parliamentary counsel considered it necessary. As with so many of the amendments with which the noble and learned Lord has sought to take issue, I shall discuss this matter with the parliamentary draftsmen as well. I hope that the noble and learned Lord will not ask me to consider the whole Bill with the parliamentary draftsmen, but I shall certainly consider this aspect with them.

Lord Simon of Glaisdale

I express my thanks to the noble Earl for his usual courtesy. I would not like it to be thought that I "have it in" in any derogatory sense towards parliamentary counsel. The present mode of drafting is wrong in many ways. I am very sorry that the recommendations of the Renton Committee were not accepted. I believe that part of the fault lies in the fact that the legislation committee of the Cabinet no longer performs its traditional role of scrutinising legislation from the point of view of draftsmanship. It appears that the noble Lord, Lord Boyd-Carpenter, approves of that. He sat on the legislation committee for many years.

I have nothing against the parliamentary draftsmen. Their job is made all the more difficult by the present style of drafting. From going through a schedule to this Bill it astonishes me to see the depth and thoroughness of the research that has taken place. I have worked in many capacities with parliamentary counsel. I have the highest admiration for their intellectual attainment and industry. I would like to see the style of drafting simplified not only for the benefit of the ordinary citizen but to ease the existence of parliamentary counsel.

Earl Ferrers

I realise that the noble and learned Lord, Lord Simon of Glaisdale, has not "got it in" for the parliamentary counsel. I think that I used that expression in a somewhat colloquial sense. The noble and learned Lord was quite right to raise these matters. All of us hate the excessive use of words. It is only when people like the noble Lord, Lord Simon of Glaisdale, are vigilant that we are made to think again. Drafting has become more complicated. The whole of life and Bills have become more complicated. Those who have to try to deal with such Bills, whether as legal or lay people, are always glad when matters are simple. I am sure that the parliamentary draftsmen would consider the matter that way. I have a horrible trait myself in that I covet almost everyone else's job. However, the one job that I do not covet is that of the parliamentary draftsman. He loves it. I assure the noble and learned Lord that his views are passed to the parliamentary counsel together with his sympathy.

Title agreed to.

House resumed: Bill reported with amendments.

5.28 p.m.